The Workers' Compensation and Injury Management Amendment Bill 2013 (Bill No 25 of 2013) has reached its final stages of passage through the Western Australian (WA) Parliament and is as of 29 October 2013 listed as awaiting assent. The legislation is described in news reports as making it easier for career fire fighters in WA to get workers' compensation if they suffer certain types of cancer.
In the WA Legislative Council the purpose of the legislation was described as being to provide a "rebuttable presumption", for the purpose of facilitating access to workers’ compensation entitlements under the Workers’ Compensation and Injury Management Act 1981 (WA), in favour of firefighters who contract certain cancers.
In presenting the legislation the WA Government stated that it
". . . recognised the significant contribution that firefighters make in protecting life and property in Western Australia and acknowledge[s] risks to which they are exposed in the course of their duties".
The legislation establishes a presumption which is stated to be in response to various scientific studies which indicate an increased risk to "career firefighters" of contracting certain cancers from their accumulated exposure to carcinogens in the course of their fighting structural and chemical fires. The legislation is intended to reflect changes enacted by the Commonwealth Government in 2011 to the Safety, Rehabilitation and Compensation Act 2008 (Cth).
The current legal position in WA requires a worker’s employment to be a significant contributing factor to the contraction of a disease in order for the worker to be able to be eligible for workers’ compensation entitlements. This requirement in relation to firefighters who contract cancer to prove an occupational link between exposure to carcinogens through firefighting duties and cancer is difficult and costly according to the WA Government and to this end the legislation reverses the onus of proof in favour of firefighters by providing that certain specified cancers are work-related unless the employer proves the contrary is true. Thus the WA Government says it will be easier for career firefighters to claim workers’ compensation entitlements.
In presenting the legislation the WA Government was also keen to stress that:
"It is important to be aware that the proposed amendments do not create a new right to claim; nor do they change the benefit structure under the Workers’ Compensation and Injury Management Act 1981".
The legislation is just a shifting of the burden of proof regarding the cause of the cancer from the sufferer to their employer or insurer and it is still open to the employer or insurer to rebut the presumption if it can be proved by them that the firefighter contracted the cancer in some other way.
The legislation covers 12 types of primary site cancer and different qualifying periods are to apply depending upon the type of cancer contracted. The qualifying periods relate to employment as a firefighter and range from five years to 25 years. The 12 cancers and qualifying periods in the legislation are according to the WA Government in line with those enacted by the Commonwealth Government in its Safety, Rehabilitation and Compensation Amendment (Fair Protection for Firefighters) Act 2011 (Cth). There are also requirements relating to employment as a firefighter for the presumption to apply, generally it will apply to firefighters who are members or officers of a permanent fire brigade established under the Fire Brigades Act 1942 (WA).
It should be noted that the legislation is not intended as uniform legislation by the WA Government and does not ratify or give effect to an intergovernmental or multilateral agreement to which the Government of WA is a party.
The ABC reports the WA Emergency Services Minister, Joe Francis as saying:
"It's a historic day for Western Australian firefighters, it will provide immediate peace of mind for firefighters who are suffering from certain cancers, . . ."
The Opposition's is reported as saying it is glad the legislation has now passed but points out the laws could have been in place
". . . a lot sooner if the Government had supported a similar Bill which the Opposition introduced in February last year.
Some criticism of the laws is reported in the form of concern that the legislation does not go far enough because it doesn't as yet cover volunteer and Department of Parks and Wildlife firefighters. However, the government is reported to be investigating the introduction of similar legislation for some volunteer firefighters.
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