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 lawThe 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.