In a recent post I discussed why an employee may, or may not, want to be classified as a ‘firefighter’ (see RFS Operational officer deemed firefighter v2 (September 25, 2023)).  The issue arose again, but in a different context, in Chiswell and Australian Capital Territory (Compensation) [2023] AATA 3101 (29 September 2023) (O’Donovan SM).

In most if not all jurisdictions, there is a presumptive workers compensation legislation that applies to firefighters. This legislation provides that where a person has provided qualifying service and then develop certain cancers, the worker will not need to get expert evidence to show that their service contributed to their cancer. The link between the cancer and their service is presumed and they are then entitled to workers compensation insurance.  In Chiswell’s case the issue was whether Mr Chiswell had provided the necessary qualifying service.

Mr Chiswell commenced as a firefighter in 1990. By 2002 he was no longer involved in direct firefighting as he now worked fulltime in the Communications Centre. He retired in 2018 and was diagnosed with a cancer in 2021 ([2]). To benefit from the statutory presumption, he had to demonstrate 15 years’ service as a firefighter.

The Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) s 8(a) says ‘an employee is taken to have been employed as a firefighter if firefighting duties made up a substantial portion of his or her duties’.  Senior Member O’Donovan said (at [8]):

At the hearing in January 2023 it became clear that because the applicant’s period of service as an active firefighter fell short of the 15-year qualifying period, it was necessary to determine whether his time spent performing duties in Comcen, in a position classified as a firefighter, but not attending fires, counted towards the qualifying period…

Comcare, the Commonwealth and ACT workers compensation insurer argued Mr Chiswell was not a ‘firefighter’ (as defined by s 8(a)) for 15 years so did not benefit from the presumption. Mr Chiswell argued that throughout his career his positions had all been designated as ‘firefighter’ or ‘senior firefighter’ ([2]) and he was therefore entitled to the benefit of the presumption.  At [9]-[11] the Tribunal said

The parties advanced two very different approaches to the provisions. The applicant advances a straightforward reading of the text of the provision. The respondent on the other hand seeks to emphasise the context of the provision as a better guide to Parliament’s intention and a proper understanding of the provisions. Each approach is orthodox in its own way, but a purposive approach which takes account of context is essential to the correct analysis of a statute.

The applicant contends that he satisfies the requirements of subsection 7(8) under either the pre- or post-December 2022 version of the provisions. The argument is simple. He was employed as a firefighter and retained that classification until he was medically retired in 2018. His total period of employment as a firefighter was approximately 30 years. He was exposed to the hazards of a fire scene during that 30-year period…

The respondent’s position is that the term ‘firefighter’ should be given its ordinary meaning which refers to ‘a person whose task is to extinguish fires’. The respondent rejects the position advanced by the applicant that a person employed by the Fire Service who holds the classification of a firefighter is thereby ‘employed as a firefighter’ for the purposes of the SRC Act…

The Tribunal, to understand the relevant sections, looked at the information considered by Parliament when deciding to make the law. The Senate Committee’s report on the Safety, Rehabilitation and Compensation Amendment (Fair Protection for Firefighters) Bill 2011 said (at [61] of the judgement; emphasis added by the Tribunal):

The committee heard that the proposed legislation draws a line around firefighters AND those engaged in firefighting activities. Coverage would not expend (sic) to other officers—such as mechanics or clerical officers—employed by the fire services.

Senior Member O’Donovan said (at [62])

These passages indicate that subsection 7(8)’s objective was to provide protection to the class of employees who are firefighters, rather than to a subset of persons engaged in firefighting activities who can demonstrate accumulated exposure. The fact that the Committee identified two classes of person to be protected – ‘firefighters’ and ‘those engaged in firefighting activities’ – indicates that the Committee understood that not every person who is employed as a ‘firefighter’ actually fights fires. Armed with that understanding of the Bill’s purpose, it is difficult to read the phrase ‘employed as a firefighter’ as a phrase which only encompasses a subclass of people who actually fight fires.

And (at [64]):

Consequently, I am satisfied that the applicant was, while working in Comcen, ‘employed as a firefighter’. To read the provision down as referring only to persons who actually fight fires would impose an evidential burden on the applicant which the provisions were designed to avoid.

Another second requirement was that Mr Chiswell had to prove that he ‘was exposed to the hazards of a fire scene during that period’ (s 7(8)(c)).  Mr Chiswell argued that having attended a single fire would be sufficient. The tribunal disagreed saying (at [73]-[76]):

… First, attendance at a fire is not necessary – only exposure to hazards that are have a fire scene as their source. Exposure to these, even in other contexts such as at the fire station, are sufficient to meet the threshold.

…

Being exposed to hazards which have their origin at fire scenes ‘during’ the 15 year qualifying period is what is required. In this context I am satisfied that the word ‘during’ is closer in meaning to ‘throughout’ than it is to ‘at some point’, although either interpretation is open on the text. I am satisfied that the Parliament intended that this paragraph impose a meaningful threshold for exposure. A single exposure threshold would not be consistent with the Committee’s acceptance that it is cumulative exposure to toxins which is the source of the risk to firefighters.

In the applicant’s case, I am satisfied that he was exposed to the hazards of a fire scene during the qualifying period. When he was an active firefighter he was exposed to those hazards by his attendance at active fires and when he was working at Comcen he was exposed to those hazards when active firefighters came in wearing uncleaned personal protective equipment. On this basis I am satisfied that the applicant’s employment at Comcen meets the threshold specified in subsection 7(8)(c).

The Tribunal determined that Mr Chiswell was entitled to the presumption and the decision by Comcare to deny him compensation for his cancer was set aside.  The presumption is ‘rebuttable’ so the Tribunal could not order Comcare to pay compensation but it could order Comcare to make a decision on the basis the presumption did apply.  It is still open to ‘the respondent to consider whether it wishes to obtain medical and other evidence relating to whether the presumption is capable of rebuttal’ ([88]).

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.