Today’s correspondent asks about presumptive workers compensation legislation for firefighters in Victoria. My correspondent
… was wondering if now that the bill has passed, [I] would … provide comment specifically on the Victorian presumptive legislation. There appears to be much opinion to the effect that Volunteers would be treated differently in that they would still have to provide evidence to prove their cancer was a result of fire fighting operations in circumstances where a claim has been made.’. How does this law compare with other states and in your opinion, is it truly presumptive for volunteers?
The Bill was the Firefighters’ Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Bill 2019 (Vic). According the Victorian Parliament’s website (as at 20 June 2019) the Bill ‘will now go to the Governor for royal assent’ so it is not yet law, but Royal Assent is a mere formality so it will soon become part of the law of Victoria.
The Bill not only introduces presumptive legislation it will, according to Adam Carey, State Political Correspondent for The Age (see ‘A lot of pain’: Labor’s contentious fire services reforms pass into law’ The Age (Online) June 20, 2019) also mean that:
… the Country Fire Authority will be devolved into a volunteer-only organisation while maintaining its 1220 volunteer brigades.
A new professionals-only agency called Fire Rescue Victoria will run metropolitan fire services, replacing the Metropolitan Fire Brigade. It will take control of the 38 professional CFA brigades at “integrated” stations that are currently shared by the professional CFA firefighters and CFA volunteers.
The state’s fire services boundaries will be changed, bringing outer suburban areas of Melbourne that are served by the CFA under the control of Fire Rescue Victoria.
The model will come into effect in mid-2020, meaning there will be no change to the status quo until after the 2019-20 fire season.
Presumptive legislation
Presumptive legislation is legislation intended to reduce fights over compensation. It says that if firefighters are diagnosed with certain prescribed conditions it is assumed that those conditions were caused by their firefighting service and they are entitled to workers compensation without having to prove an actual connection between their work and their illness. Such legislation already exists at the Commonwealth level and in every state and territory other than the Australian Capital Territory.
The Victorian presumptive provisions
Section 1 says:
The purposes of this Act are to—
(a) provide a rebuttable presumption for—
(i) career firefighters suffering from specified forms of cancer that the cancer is presumed to be due to the nature of their employment for the purposes of claiming compensation under the Workplace Injury Rehabilitation and Compensation Act 2013; or
(ii) volunteer firefighters suffering from specified forms of cancer that the cancer is presumed to be due to the nature of their service as a firefighter for the purposes of claiming compensation under the Workplace Injury Rehabilitation and Compensation Act 2013…
The first thing to note is that it is a ‘rebuttable presumption’, that is if the defendant insurer can show that the cancer is not caused by the firefighter’s service, then the fire service’s insurer can avoid liability to pay workers compensation.
Career firefighters
A career firefighter is ‘a person who is or was employed by a fire service as a firefighter in a role in which firefighting duties are or were a substantial portion’ (s 4).
A career firefighter who:
- develops one of the listed diseases;
- whilst employed, or within 10 years after ceasing employment as a firefighter;
is presumed to have contracted that disease as a result of their firefighting work provided,
- they were engaged in firefighting for the relevant qualifying period (s 6(1)) and
- they contracted the disease on or after 1 June 2016
The qualifying period is both volunteer and employed firefighting combined (s 7). The relevant diseases and the qualifying periods are:
| Column 1 | Column 2 |
| Disease | Qualifying period |
| Primary site brain cancer | 5 years |
| Primary site bladder cancer | 15 years |
| Primary site kidney cancer | 15 years |
| Primary non-Hodgkins lymphoma | 15 years |
| Primary leukemia | 5 years |
| Primary site breast cancer | 10 years |
| Primary site testicular cancer | 10 years |
| Multiple myeloma | 15 years |
| Primary site prostate cancer | 15 years |
| Primary site ureter cancer | 15 years |
| Primary site colorectal cancer | 15 years |
| Primary site oesophageal cancer | 25 years |
For example, a person who was a volunteer firefighter for 10 years and then joins the employed staff for 5 years and who, within 10 years of leaving the fire service, contracts Primary site bladder cancer is presumed to have contracted the cancer due to their firefighting and they are entitled to workers compensation.
A firefighter can claim compensation even if he or she does not meet the qualifying period if it can be shown that there was ‘an exceptional exposure event in a firefighting capacity’ (s 13).
Volunteers
The rules for volunteers are the same as for career firefighters with the one difference. A volunteer must have ‘attended fires to the extent reasonably necessary to fulfil the purpose of their service as a firefighter’; that is a person cannot enrol in a CFA brigade, attend two fires in their first year but not attend any more and claim to have met the qualifying period. In determining whether a fire fighter has ‘attended fires to the extent reasonably necessary to fulfil the purpose of their service as a firefighter’ the Victorian WorkCover Authority, responsible for meeting the compensation payments, must (s 12) ‘seek an expert opinion from the advisory committee’ (established under s 20).
In providing the expert opinion to the Authority, the advisory committee must have regard to—
(a) any relevant records, brigade records, CFA data, employer data and local knowledge; and
(b) any other matter prescribed by the regulations.
Where a volunteer meets the presumptive requirements, he or she is to receive compensation as if he or she were an employee (s 18).
Discussion
My correspondent said
There appears to be much opinion to the effect that Volunteers would be treated differently in that they would still have to provide evidence to prove their cancer was a result of fire fighting operations in circumstances where a claim has been made.
I cannot see on what basis anyone would draw that conclusion. There is no requirement for a volunteer to ‘provide evidence to prove their cancer was a result of fire fighting operations’. Volunteers are treated like employed firefighters with the only extra requirement being that the WorkCover authority must be satisfied that the firefighter ‘attended fires to the extent reasonably necessary to fulfil the purpose of their service as a firefighter’. For a volunteer with many year’s service who regularly turns out with their brigade that is not going to be an issue. It will be an issue for the firefighter who signs up, never turns up and for who it takes time to remove them from the books. That is not going to be a significant issue in most cases and it is not the case that the volunteer has to ‘provide evidence to prove their cancer was a result of fire fighting operations’.
I was also asked ‘… in your opinion, is it truly presumptive for volunteers?’. In my opinion, yes it is truly presumptive for volunteers.
How does this law compare with other states?
The law is virtually identical with other states see:
- Workers Compensation Act 1987 (NSW) s 19A (for employees) and Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) s 10A (for volunteers);
- Return to Work Act 1986 (NT) s 50A;
- Workers’ Compensation and Rehabilitation Act 2003 (Qld) ss 36B-36E;
- Return to Work Act 2014 (SA) Sch 3;
- Workers Rehabilitation and Compensation Act 1988 (Tas) s 27;
- Workers’ Compensation and Injury Management Act 1981 (WA) ss 49A-49E (for employees) and Fire and Emergency Services Act 1998 (WA) ss 36ZM-36ZPN for volunteers)
The Commonwealth legislation (the Safety Rehabilitation and Compensation Act 1988 (Cth) s 7(8)) does not refer to volunteers. Presumably Commonwealth firefighters are employed by the Australian Defence Force, Aviation Rescue and Fire Fighting and agencies responsible for managing Commonwealth land. It may be that the Commonwealth does not engage volunteer firefighters.
Australian Emergency Law 
I note your thoughts that the new Presumptive legislation is truly presumptive for volunteers in Victoria. If that is the case, then:
1. Why has the legislation been written in the manner it has? Surely the legislation could have been greatly simplified, because it should be identical for both paid and volunteer firefighters, but with a single additional clause to cover the requirement for volunteers to “have attended fires to the extent reasonably necessary…..etc”.
2. Why have several other commentators alluded to legislation in other states as being equal for volunteer and paid firefighters, in comparison with the Victorian legislation? In particular, the South Australian Government is understood to have amended their original legislation following protests from volunteers of unequal treatment. The Tasmanian Government is believed to have done the same.
It does appear that we will now have an inequitable situation. For example paid firefighters in “quiet stations” may well attend far fewer actual fires and significant events than many volunteers. Yet the paid firefighters’ claims under Presumptive Legislation will be processed much quicker than the volunteers’ claims, because the volunteers will need to undergo scrutiny of their actual service history by a panel.
Your further thoughts appreciated. Thanks.
I think the legislation is largely identical for paid and volunteer firefighters. I’m not sure what you would want to do to make it ‘simpler’.
I have no idea why ‘several other commentators alluded to legislation in other states as being equal for volunteer and paid firefighters, in comparison with the Victorian legislation’. I would have to see that commentary to see where they perceive the inequity and whether I agree. Can you refer me to any?
Is is really an inequity? the qualifying periods range from 5 to 25 years. Regardless where a firefighter is now stationed a career firefighter is likely to attend many fires over a 5-25 year career. In any event whether ‘volunteers will need to undergo scrutiny of their actual service history by a panel’ remains to be seen. It may be uncontroversial in many if not most cases if a member has been an active member of the CFA for 5 to 25 years.
Just wondering whether having a 10 year sunset limitation period is common across the various states and territories?
Tony, doing a quick look and recognising that Workers COMpensation law is complex so time limits may be hidden elsewhere ti appears that the requirement for the disease to appear within 10 years of leaving firefighting applies in Victoria, the Northern Territory, South Australia and Tasmania. That limit does not appear to exist in New South Wales, Queensland, Western Australia or the Commonwealth.
I was interested to read the list of cancers to be eligible for compensation does not include lung cancer. Lung cancer is often associated with being a smoker but non-smokers can contract lung cancer as well, often it is thought from exposure to smoke in the environment.
peta2015, the listed cancers are based on findings made by Monash University’s Australian Firefighters’ Health Study. The Final Report of which states on page 12: “Lung cancer incidence was not increased compared to the Australian population, nor did it increase with employment duration in external or internal analyses, nor with number or type of incidents attended.
Definitive conclusions about the work-relatedness of lung cancer are
difficult to draw in the absence of individual smoking data.”
Simply put, firefighters do not have elevated incidences of contracting lung cancer.
Links to the Final Report and other associated studies can be found here: https://www.monash.edu/medicine/sphpm/coeh/researchprogram/ausfireftr
It seems as though we may have an elephant in the room here. Smoking has been long recognised as a potent causal agent for developing lung cancer. For those who have never smoked, finding the cause is difficult. This is an important area because a significant proportion of lung cancer patients have never smoked cigarettes. It would appear that the study would need to take account of the role of smoking (or not smoking) to be a comprehensive study. We have monitoring of air pollution (often because of smoke) and air quality alerts so that people can take steps to avoid the smoke presumably to reduce the risk of cancer including lung cancer.
Smoking may increase the risk of cancer and even cause lung cancer, but there are, as I understand it, different types of lung cancer and different risk factors. Clearly smoking is not the sole cause of lung cancer because, as you say, people who have not smoked get lung cancer and presumably so too do those without any industrial exposure to smoke.
peta2015, regardless of any accounting (or lack thereof) of smoking statistics in the Monash Uni reports, the bottom line is that Monash University’s study did not find higher incidences of lung cancer among firefighters than among average Australians. Therefore it cannot be proven that firefighting activities contribute to an increased risk of lung cancer.
The PL is here to compensate firefighters for losing our good health in our service of protecting lives and property. It is not here to compensate us for any and every illness on the face of Earth.
My father was a member of the fire brigade for 35 years and retired in 1984 – he developed non hodgkins disease in 2006 – does he qualify for compensation ???
Lisa, assuming your father was in Victoria, it appears that a key date is that the firefighter must have ‘contracted the disease on or after 1 June 2016’. That does not mean he’s not entitled to compensation but that he may not benefit from this legislation. This is not the place for getting legal advice however and your father should consult a personal injuries lawyer who can examine his particular case, not speak in generic broad brush terms which is all that I can do here.