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Update on Workers Compensation Presumptive Legislation

Monday, 26 November 2018

The RFSA over the past 12 months has negotiated a position on Workers Compensation Presumptive Legislation with the Fire Brigade Employees Union (FBEU) and State Insurance Regulatory Authority (SIRA). The basis of that negotiation was fairly represented in the draft Private Member’s Bill introduced into Parliament by the opposition spokesperson on Emergency Services Mr Guy Zangari MP on 27 September 2018, and was subsequently incorporated in the Government’s legislation presented to Parliament on 24 October 2018.


In addition, the Government extended liability to a no cap period after a fire fighter leaves their duties. It is retrospective in its application to members who had previously lodged a claim that was rejected on the basis of proving causation between employment and cancer.


There was no suggestion during these negotiations that retrospectivity would be extended to apply more widely to all previously diagnosed cancers. The RFSA has welcomed the fact that the Government is enacting a protection for fire fighters that goes beyond any other State in Australia.


We are fully supportive of the efforts of The Hon. Victor Dominello MP, Minister for Finance, Services and Property and The Hon. Troy Grant MP, Minister for Emergency Services to ensure protections for fire fighters with respect to cancer.


On the 24 October 2018, the Hon. Victor Dominello MP, did not support unlimited retrospectivity on the basis that this would be inconsistent with every other jurisdiction in Australia and would add a significant financial burden on the NSW Rural Fire Service and Fire & Rescue NSW and estimated that the cost of doing so would be in excess of $350 million in additional claims liability.


It is important to note that the objective of the legislation is to simplify the process of making a claim by establishing presumptive rights to workers compensation for fire fighters suffering any of the 12 specified cancers unless proven otherwise by the insurer. Previously the onus of proof was placed on the claimant.


As mentioned previously the transitional provisions of the legislation also allow fire fighters who have previously claimed for one of the 12 specified cancers to make a further claim with the benefit of the presumption.


Yours sincerely,

Ken Middleton