Preface

This has to be one of the most complex answers I’ve tried to write. The Workers Compensation Act 1987 (NSW) has been constantly amended but the amendments do not always apply to all workers. In particular police, firefighters and paramedics have been exempt from changes made in 2012 and 2015 (at least). That means there are multiple versions of the Act in force at the same time. Trying to chase down every amendment and which one applies (or doesn’t) is a convoluted and complex problem and I confess to missing the important change in 2019 discussed below. In my original post I, wrongly, concluded that volunteers received around $250,000 less than paid firefighters. As discussed below that may have been correct between 2015 and 2019 but is not correct now. I thank Greg for bringing my error to my attention.

The issue

Today’s question is about volunteer compensation and the NSW RFS.  I have removed most of the text of the question to identify only the key issues and the questions to be answered.

The issue is a NSW RFS volunteer with a terminal cancer. iCare – the relevant insurer has accepted liability that is they accept that the cancer is a result of the volunteer’s long service with the RFS.  But, says my correspondent:

I understand that as a volunteer, the death benefit is much less (some $200,000) than firefighters with the same medical condition, who were employees of the RFS.

My questions are:

  • is this correct?
  • and why the difference?

Compensation for volunteers in NSW is governed by the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW). This Act applies, with some modifications, the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) to volunteers as if they were employees.

Compensation includes payment for loss of earnings and medical expenses. I’m told that ‘medical expenses etc are being covered’ so our discussion is limited to the issue of lump sum compensation.

Presumptive cancer legislation

Compensation is payable where a firefighter has received an ‘injury’ (s 10). The term ‘injury’ includes a disease (s 24).

There has been legislation introduced across Australia to presume that the presence of some cancers is the effect of the exposure of firefighters to carcinogens during the course of their firefighting work. For volunteers with the NSW RFS that legislation is found in the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) s 10A. For other firefighters (such as those employed by Fire and Rescue NSW) the relevant legislation is Workers Compensation Act 1987 (NSW) s 19A.

 I won’t go through the legislation but will assume, given we are told that liability has been accepted, that the firefighter, the subject of this question, has one of the cancers that are presumed to be the result of firefighting.  That is the firefighter as contracted a disease (cancer) arising from their duties as a firefighter and the liability to pay compensation has been accepted. 

Changes to workers compensation in 2015

There were changes made to restrict workers compensation in 2012 and again in 2015.  Certain workers were excluded from those changes. The Workers Compensation Amendment Act 2015 (NSW) made changes to the 1987 Act but also inserted a clause (that become the Workers Compensation Act 1987 (NSW) Sch 6, Part 19I, cl 3) that said:

The amendments made by the 2015 amending Act do not apply for the purposes of … the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 and a reference in either of those Acts to a provision of the Workers Compensation Acts is a reference to the provision without regard to any amendment made by the 2015 amending Act.

It also inserted a section that became the Workers Compensation Act 1987 (NSW) Sch 6, Part 19I, cl 14 that says (emphasis added):

(1) The amendments made by the 2015 amending Act do not apply to or in respect of an injury received by a police officer, paramedic or firefighter (before or after the commencement of this clause), and the Workers Compensation Acts (and the regulations under those Acts) apply to and in respect of such an injury as if those amendments had not been enacted.

(2) This clause does not apply to an amendment made by the 2015 amending Act to section 25 or 26 of the 1987 Act (or to clause 5 of this Part in its application to such an amendment).

Lump sum death benefits

Where a volunteer firefighter dies as a result of their injury (remembering that the definition of injury includes a disease) they are entitled to ‘compensation payments prescribed by paragraphs (a) and (b) of section 25 (1) of the [Workers Compensation Act 1987]’ (Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) ss 3 and 10).

The effect of the 2015 amendments was that the family of both a volunteer, and a paid firefighter were to be paid a lump sum death benefit based on s 25 of the 1987 Act. But, a volunteer was paid based on the Act before the 2015 amendments; a paid firefighter (or paramedic, or police officer) was paid based on the Act after the 2015 amendments.

Before the 2015 amendments s 25 provided for a lump sum death benefit of $425,000. This was the amount that applied to volunteer firefighters. After the 2015 amendments, the lump sum death benefit was $750,000 (Workers Compensation Amendment Act 2015 (NSW) Sch 1, cl 1). This was the amount that applied to employed firefighters.

Why the difference?

In the second reading speech to Parliament, the then Minister for Finance, Services and Property (and now the Premier) Dominic Perrottet said:

Schedule 1 to the bill provides for a large increase in the amount paid to dependants of a worker who has died—from $524,000 to $750,000. This is the most generous lump sum support package in Australia for families of workers who have died at work. This will apply to any fatality that occurs from today onwards.

(The reference to $524,000 was the indexed death benefit that applied on the date of this speech – 5 August 2015 (see Workers Compensation Benefits Guide, p. 68, [4.2.2])). 

The Minister said:

Workers who were excluded from the operation of the Workers Compensation Legislation Amendment Act 2012, such as police officers, paramedics, firefighters and some others, will not be affected by the changes in the bill.

The inference is that the 2015 Bill, apart from raising the lump sum death benefit was, in other ways, going to restrict workers compensation rights. As it had done in 2012, the Parliament sought to exempt firefighters, paramedics and police from those restrictions. What the legislators failed to notice was that they would not only exclude that cohort from the tougher laws, they they would also exclude them from the increased lump sum death benefit.

The 2015 Bill, as originally introduced, did not have cl 14(2), quoted above. As the Bill moved through parliament, the Legislative Council inserted cl 14(2) into the Bill.  Presumably the members of the Council noted the problem that the Bill was denying firefighters, paramedics and police the higher lump sum death benefit. Presumably they just missed the fact that without inserting a similar clause into cl 3 the Bill disadvantaged volunteers.

The 2019 Amendments

By 2019 the anomaly had been detected. Schedule 6 was amended by the Statute Law (Miscellaneous Provisions) Act (No 2) 2019 (NSW). That Act added a new paragraph to Part 19I, cl 3. Clause 3 then said, and says now:

(1)  The amendments made by the 2015 amending Act do not apply for the purposes of the Workers’ Compensation (Dust Diseases) Act 1942 or the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 and a reference in either of those Acts to a provision of the Workers Compensation Acts is a reference to the provision without regard to any amendment made by the 2015 amending Act.

(2)  This clause does not apply, and is taken never to have applied—

(a)  in respect of the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987, to an amendment made by the 2015 amending Act to section 25 of the 1987 Act, or

(b)  in respect of the Workers’ Compensation (Dust Diseases) Act 1942, to an amendment made by the 2015 amending Act to section 26 of the 1987 Act, or

(c)  to clause 5 of this Part in its application to either of those amendments.

This mirrors cl 14(2) (quoted above) and brings volunteer entitlements in line with employed firefighters. When introducing the Statute Law (Miscellaneous Provisions) Bill (No 2) to parliament, the Attorney-General Mark Speakman made no mention of the changes to the Workers Compensation Act 1987 (NSW). This was simply listed as a ‘minor amendment’.

What it does mean is that the value of the lump sum death benefit, between 2015 and 2019, was significantly less for a volunteer than it would have been for an employed firefighter; but today the benefits are the same.

Workers Compensation Benefits Guide

The lump sum death benefit has been increased over time (Workers Compensation Act 1987 (NSW) ss 79-82), so the value of the death benefits is not, $750,000 .  To confirm this we can look at the Workers Compensation Benefits Guide (October 2022) published by the State Insurance Regulatory Authority. That publication says that ‘the lump sum death benefit from 1 October 2022 until 31 March 2021 will be $871,200 (p. 66, [4.2.1])’.

Conclusion

My correspondent asked:

I understand that as a volunteer, the death benefit is much less (some $200,000) than firefighters with the same medical condition, who were employees of the RFS.

My questions are:

  • is this correct?
  • and why the difference?

My answers are:

  • It was correct between 2015 and 2019 but is no longer correct, and
  • It would appear that the difference in those years was because Parliament simply missed seeing the impact. The workers compensation scheme is ridiculously complex with amendments made but not applied to everyone, so the risk of egregious anomalies was always present. This appears to have been one but it was corrected by way of what was seen as a minor amendment.

References to earlier posts

For a discussion on ‘Workers who were excluded from the operation of the Workers Compensation Legislation Amendment Act 2012’ see:

 Fire fighters and paramedics exempted from workers compensation changes (June 22, 2012).  In that post I said there would need to be litigation to determine who fell within the definition of paramedic or firefighter, and indeed there was – see

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.