NSW Introduces Workers Compensation Legislation Amendment (Firefighters) Act 2018 

Thursday 6 December 2018 @ 9.51 a.m. | Legal Research

The Workers Compensation Legislation Amendment (Firefighters) Act 2018 (NSW) (‘the Act’) was passed by both houses of the NSW Parliament on 22 November 2018 and was assented on November 28 as Act 93 of 2018.  The Act amends certain legislation to establish presumptive rights to workers compensation for firefighters in certain situations.

Main Amendments

The Act amends the Workers Compensation Act 1987 (NSW) and the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW). These amendments have the objective of inserting presumptive rights to workers compensation for eligible firefighters in respect of certain cancers. The effect of the provisions will also insert the presumption that the cancer is contracted in the course of firefighting activities such as training or instruction.

The amendments to the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) have the effect of inserting the presumption that the cancer is presumed to be contracted in the course of fighting a bush fire. In addition to these amendments, provisions relating to the time limit for making a compensation claim will be inserted as a result of this Act.

In his second reading speech in the Legislative Assembly, Mr Victor Dominello, Minister for Finance, Services and Property, stated that the Bill was designed to simplify the process of claiming compensation for firefighters with certain cancers by ensuring a presumptive right to compensation.

He noted that the Bill was similar to other presumptive legislation in other Australian states and internationally, stating:

‘This bill introduces a presumptive right in the workers compensation scheme for firefighters who are diagnosed with one of 12 prescribed cancers. The bill reduces the existing evidentiary burden placed on firefighters to prove the work-relatedness of illness. This is achieved by reversing the onus of proof for firefighters who meet the minimum service period for each cancer type. This bill puts the onus on the workers compensation insurer to prove that the firefighter's cancer diagnosis is not work-related. Unlike in some other jurisdictions, this bill does not impose a 10-year post-service limit on making a claim or receiving a cancer diagnosis. Firefighters who are diagnosed more than 10 years after leaving active service will retain their right to presumption. This is in line with presumptive legislation introduced by the Western Australian Coalition Government in 2013.’

TimeBase has previously provided an overview on the similar presumptive legislation in Victoria and Western Australia.

On the list of specified cancers and the definition of ‘eligible firefighter’, Mr Dominello said:

‘An eligible firefighter is defined by proposed new section 19A (2) and 19A (3) as a worker who, at any time, has been engaged in firefighting employment for the qualifying service period and contracted one of the 12 specified cancers. These cancers, and the qualifying service periods, are as follows: primary site brain cancer, five years; primary leukaemia, five years; primary site breast cancer, 10 years; primary site testicular cancer, 10 years; primary site bladder cancer, 15 years; primary site kidney cancer, 15 years; primary non-Hodgkin lymphoma, 15 years; multiple myeloma, 15 years; primary site prostate cancer, 15 years; primary site ureter cancer, 15 years; primary site colorectal cancer, 15 years; and primary site oesophageal cancer, 25 years.’

Response to Act

Rural Fire Service (RFS) deputy commissioner Rob Rogers was reported by The Herald as having supported the legislation. Fire and Rescue NSW (FRNSW) deputy commissioner Mal Conellan was reported by The Herald as stating:

‘The amendments reverse the onus of proof for firefighters and do not impose a limit on accessing the provision post-employment, which will ensure our firefighters, who risk their own life and health to protect the people of NSW, promptly receive their entitlements when they need it most.'

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.

Sources:

Workers Compensation Legislation Amendment (Firefighters) Act 2018 (NSW), Bill, second reading speech and explanatory notes availabe from TimeBase's LawOne service.

Nick Bielby, ‘Legislation tabled in parliament to make compensation easier to access for firefighters with cancer,’ The Newcastle Herald, 24 October 2018. 

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