In December 2014 the then Queensland Premier, the Minister for Police, Fire and Emergency Services and the Rural Fire Brigades Association of Queensland (the RFBAQ) announced that the Queensland Parliament would consider ‘legislation to ensure that volunteer firefighters who contract certain cancers will be entitled to compensation without having to prove a direct link between their firefighting and the illness’ (see ‘Landmark legislation to protect [Queensland] firefighters’ (December 11, 2014))
Today there are two Bills before the Queensland Parliament. The Workers’ Compensation and Rehabilitation (Protecting Firefighters) Amendment Bill 2015 is a Private Members Bill introduced by the Member for Kawana on 3 June 2015. The Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2015 was introduced by the Treasurer, Minister for Employment and Industrial Relations and Minister for Aboriginal and Torres Strait Islander Partnerships on 15 July 2015.
A correspondent has written to me asking if I ‘might be able to offer an opinion that summarises these bills and the respective impacts to legislative outcomes in simple English? The volunteer association is heavily petitioning volunteers, media and political members in Queensland in favour of Bill 2 which only deals specifically with the presumption for specified cancers, whereas the other bill (Bill 1) provides this and other unrelated amendments to the act in question and others’.
My correspondent’s email is long so I will give my interpretation of the Bills and deal with the issues raised without reproducing the email and questions in full.
Workers’ Compensation and Rehabilitation (Protecting Firefighters) Amendment Bill 2015
This is a short Bill that would, if passed, amend the Workers’ Compensation and Rehabilitation Act 2003 (Qld) by providing that if a person develops a disease listed in column 1 of the table and the person is, or has been, employed as a firefighter for the relevant number of years listed in column 2, then the disease is presumed to have been caused by the employment.
The table from the Bill is reproduced below:
|Column 1||Column 2|
|Disease||Minimum number of years as firefighter|
|primary site brain cancer||5 years|
|primary site bladder cancer||15 years|
|primary site kidney cancer||15 years|
|primary non-Hodgkin 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|
The Bill refers to ‘employment as a volunteer’ (s 32A(3)(b) and 32A(4)). Employment is said to include ‘engagement’ (s 32A(7)).
The first problem is that volunteers are not employed. There is no deeming provision in the Bill. The Workers’ Compensation and Rehabilitation Act 2003 provides for compensation for volunteers including volunteer firefighters. It says (at ss 14 and 15) that WorkCover may enter into contracts of insurance to cover volunteer firefighters but a person is only entitled to compensation ‘while performing duties, including being trained, as a member of the rural fire brigade’ or as a volunteer fire fighter or volunteer fire warden. Under that contract ‘the activity covered by the contract is taken to be the person’s employment; and (b) the party with whom WorkCover enters the contract is taken to be the person’s employer’ (s 12(3)). One can infer that a court asked to apply the Bill (should it become an Act) would infer an intention to deem volunteer firefighters as employees.
Who is to be counted as a fire fighter is not clear. A person can join a fire brigade and undertake an ancillary role, such as communications or catering or office manager – are they are a firefighter? My correspondent does ask:
In your opinion, does Bill 2 prevent persons from joining a brigade to obtain cancer compensation without active participation?
The answer is ‘not clearly’. One could join a brigade and serve for 15 years and claim to be eligible for compensation if they develop prostate cancer even if they have never been to a fire. One can imagine that if one’s volunteer duties had been limited to working in the office, the insurer would argue that the volunteer was not a volunteer firefighter but that would be difficult if they have done the basic training and received a uniform. This would raise the sort of issues that NSW has faced ((See see ‘Who is a firefighter in NSW?’ (November 30, 2012) and NSW workers compensation and when is an employee a firefighter? or a paramedic? (July 30, 2015)) so it would be up to a court to determine who is a firefighter. If the volunteer is found to be a volunteer firefighter they would be eligible regardless of the number of fires they attended over the course of their volunteering.
Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2015
The second Bill is much more comprehensive which no doubt reflects its standing as a government Bill drafted, no doubt, by experienced Parliamentary Counsel. Relevantly this Bill would, if passed, introduce a new Subdivision 3B dealing with injuries sustained by firefighters. ‘Firefighter’ will be defined to include members of a rural fire brigade and ‘a volunteer fire fighter or volunteer fire warden engaged by the authority responsible for the management of the State’s fire services’ (s 36B). It will be clear who is a volunteer fire warden, defining who is a volunteer fire fighter will again raise issues of what their key role is. A person may, presumably, be a member of a fire brigade without ever intending to actually fight a fire as they may take on ancillary roles within the brigade.
The Bill will amend the various provisions dealing with volunteers to provide that volunteers are unable to get damages. Damages are defined as ‘damages for injury sustained by a worker in circumstances creating, independently of this Act, a legal liability in the worker’s employer’ (Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 10). That is an injured worker is entitled to compensation under the Act, if they can show that for some other legal reason their employer would be liable to pay damages (what we really mean here is if they can establish the employer was negligent) they can also recover damages. The Bill, if passed, would mean a volunteer can recover workers compensation but cannot sue the organisation for which they volunteer for damages (see Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2015 cl 14) but this would not extend to volunteer firefighters who could sue for damages if they develop one of the diseases listed in the table. The table in this Bill is the same as the table in the Workers’ Compensation and Rehabilitation (Protecting Firefighters) Amendment Bill 2015 and reproduced above.
Apart from being a firefighter or member, there will be other qualifying conditions. For employed firefighters they must have been employed for the number of years shown in column 2, above. A volunteer firefighter must have attended at least 150 exposure incidents that is a fire where the firefighter ‘participates in extinguishing, controlling or preventing the spread of the fire’. The Bill provides that in calculating the years of employment, only ‘periods during which the person is required, as part of the person’s employment as a firefighter, to attend exposure incidents’ are to be counted. Employment as a firefighter but away from firefighting duties eg in community education or senior management, do not count if the employee is not require to attend fires.
The Bill contains relevant deeming provisions to ensure that the protection is extended to volunteers even if they are not employed.
Interestingly the presumption that the disease is caused by work as a firefighter is rebuttable in the second Bill. That is if the first Bill were to become law and a firefighter met the qualifying conditions then the disease was caused by their firefighting career. If the second Bill were to become law the disease is presumed to have been caused by their firefighting exposure unless it is shown that it was not so caused (s 36D(3)).
The Bill will not be retrospective that is it will not apply to firefighters diagnosed with a relevant disease before the Act commences operation (s 712).
My correspondent does say;
A key concern for me is that most of the propaganda at present includes references that Bill 1 contains a 10 year limitation to make claims for volunteers which I cannot derive from reading this instrument.
I too can’t see a 10 year limitation in the Bill but that may be a detail hidden in the Workers’ Compensation and Rehabilitation Act 2003 (Qld) or some statute of limitations hidden somewhere. if there is such a limit it does not appear in this Bill.
The Government Bill is much more comprehensive and makes appropriate provision to ensure that volunteer firefighters are covered in the scheme. Whilst it is clear they are meant to be dealt with in the Private Members Bill the reference to employment is ambiguous. On the other hand, the Government Bill creates a rebuttable presumption that the listed disease is caused by a person’s exposure as a firefighter whilst the Private Members Bill determines the issue conclusively. The Government Bill is much clearer in imposing requirements that a person is actually exposed to fire and not merely a member of a brigade in roles that may not include actual firefighting. Limitations could be implied into the Private Members Bill by reference to the word ‘firefighter’ rather than ‘a member of a brigade’ but those limitations would have to be implied and would not doubt require a test case, such as those seen in NSW.
The reality is that a private members Bill is unlikely to see the light of day, so one would assume that is the government Bill, if either of them, that will become law.