Firefighters' Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019

The central concept is a rebuttable presumption that a listed disease is due to the nature of a person’s employment or service as a firefighter or vehicle and equipment maintenance employee. The presumption is triggered when three cumulative conditions are satisfied: the injury is a disease in column 1 of Schedule 1; the injury occurs on or after 1 June 2016; and the injury occurs either during employment or service as a firefighter or within 10 years after the person ceases that employment or service (sections 6(1)(b), 9(1)(b), 12A(1)(b)). For career firefighters and vehicle and equipment maintenance employees, the person must have been employed or served for at least the qualifying period in column 2 of Schedule 1 opposite the disease (sections 6(1)(c), 12A(1)(c)). For volunteer firefighters and vehicle and equipment maintenance employees, there is an additional requirement: the person must have attended fires to the extent reasonably necessary to fulfil the purpose of their service or employment (sections 9(1)(c), 12A(1)(c)). The injury is taken to have occurred on the date of first diagnosis or death from the disease, whichever occurs first (sections 6(2), 9(2), 12A(2)).

The Act defines three categories of persons. A career firefighter means a person employed by a fire service as a firefighter in a role where firefighting duties are or were a substantial portion (section 4(1)). A volunteer firefighter means a person who performs or has performed firefighting duties, in a role where firefighting duties are or were a substantial portion, and who receives no remuneration for those duties (section 4(1)). A vehicle and equipment maintenance employee is a person employed in duties involving mechanical, auto-electrical or fitting and turning maintenance and repair of firefighting vehicles and equipment, whose role includes attending fires from time to time to perform that maintenance and repair, and who is or was employed by the CFA or Fire Rescue Victoria (section 4A). The definition of firefighting is exposure to the hazards of a fire scene, including extinguishing, controlling or preventing the spread of fires (section 4(1)).

Schedule 1 lists 15 diseases, each with a required qualifying period: primary site brain cancer (5 years), bladder cancer (15 years), kidney cancer (15 years), non-Hodgkins lymphoma (15 years), leukemia (5 years), breast cancer (10 years), testicular cancer (10 years), multiple myeloma (15 years), prostate cancer (15 years), ureter cancer (15 years), colorectal cancer (15 years), oesophageal cancer (25 years), cervical cancer (10 years), ovarian cancer (10 years), and uterine cancer (10 years). The long qualifying periods (up to 25 years for oesophageal cancer) reflect the latency of occupational diseases.

Qualifying period determination is governed by section 12D. A worker is taken to have been employed or served for a full year in respect of any year where they served only part of that year. Periods of service as a career firefighter, volunteer firefighter, vehicle and equipment maintenance employee, occupational forest firefighter, and surge forest firefighter may be combined (consecutive or non-consecutive) for the purpose of meeting the qualifying period. However, if a person served in two or more of those roles at the same time, the concurrent period is counted only once (section 12D(3)). This avoids double-counting of overlapping service.

Special consideration under Division 4 allows a firefighter or vehicle and equipment maintenance employee who suffers a Schedule 1 disease but does not meet the qualifying period to still obtain the presumption if they can prove they have had an exceptional exposure event in a firefighting capacity (or, for maintenance employees, in the course of attending a fire to repair and maintain vehicles and equipment) whether within or outside Victoria (sections 13, 13(1A)). An exceptional exposure event is determined by reference to the nature of the event, relevant coronial findings, court proceedings or official inquiries regarding exposure to carcinogens, and any relevant records or data (section 14). The person must apply for special consideration under section 15: the application may be made at the same time as a claim for compensation, after a claim but before it is accepted or rejected, or within 60 days after the claim has been rejected. The Authority must forward the application to the advisory committee for an expert opinion and then determine the application having regard to that opinion (section 16). The Authority is not bound by the expert opinion (section 16(5)).

The advisory committee is established by the Minister under section 20. Its purposes are to provide expert opinions to the Authority on whether a volunteer firefighter has attended fires to the extent reasonably necessary (sections 12, 20(2)(a)), whether a vehicle and equipment maintenance employee has attended fires to the extent reasonably necessary (section 20(2)(ab)), and whether a firefighter or maintenance employee has had an exceptional exposure event (section 20(2)(b)). The regulations may prescribe the committee’s membership, qualifications, powers, procedures and conditions of confidentiality.

The Act primarily affects firefighters , both career and volunteer , and vehicle and equipment maintenance employees who are employed by the Country Fire Authority or Fire Rescue Victoria. It also affects fire services employers, namely Fire Rescue Victoria and the CFA, who face claims for compensation under the WIRC Act where the presumption shifts the burden of proof onto the Authority (the Victorian WorkCover Authority) to disprove causation. The Victorian WorkCover Authority is the central body responsible for determining claims, seeking expert opinions from the advisory committee, and making payments from the WorkCover Authority Fund (sections 21, 18(8)). The Authority must administer claims for volunteer firefighters as if they were workers, computing pre-injury average weekly earnings by reference to their other employment or on any basis best calculated to give appropriate compensation (section 18(6)). The advisory committee is a body whose expert opinions are required for certain determinations, though its opinions are not binding on the Authority (sections 12(3), 16(5)). The Minister is responsible for establishing the advisory committee (section 20(1)).

The Act also affects former firefighters and maintenance employees who have ceased employment or service but who develop a Schedule 1 disease within 10 years after cessation (sections 6(1)(b), 9(1)(b), 12A(1)(b)). Volunteer firefighters may also be affected by their ability to claim under the Country Fire Authority Regulations 2014 Part 6 as an alternative or fallback, but they cannot recover compensation under both regimes for the same injury (section 19). The Act extends to persons who had previously made a claim for a Schedule 1 disease that was rejected before the Act’s commencement (sections 17, 17A); they are entitled to make a new claim under the Act. This retrospective element affects persons whose injuries occurred on or after 1 June 2016, before the Act came into force. Occupational forest firefighters and surge forest firefighters as defined in the Forests Act 1958 are relevant because their periods of service can be combined to meet the qualifying period (section 12D(1)(b)(iv), (v)), though they are not themselves direct subjects of the presumption. Insurers and legal practitioners involved in WIRC claims will need to manage the shift in evidentiary burden and the interaction with the advisory committee process. Finally, the Act affects the Consolidated Fund because payments under section 18 (compensation for volunteer firefighters) are paid out of the WorkCover Authority Fund but must be reimbursed from the Consolidated Fund (section 21(2)).

The Act confers on eligible claimants a right to rely on the rebuttable presumption that their Schedule 1 disease is due to the nature of their firefighting employment or service. This right is available if the conditions in sections 6, 9 or 12A are met. Once the presumption is invoked, the burden of proof shifts to the Authority or the employer to prove that the injury was not due to the nature of employment or service (“in the absence of proof to the contrary”, sections 6(1), 9(1), 12A(1)). This is a significant evidentiary advantage for the claimant.

Claimants have a right to make a new claim if a previous claim for the same Schedule 1 disease occurring on or after 1 June 2016 was rejected before the Act’s commencement (sections 17 for firefighters, 17A for vehicle and equipment maintenance employees). Claimants who do not meet the qualifying period may apply for special consideration under Division 4, provided they can prove an exceptional exposure event. The application must be made in the prescribed form within the time limits: at the same time as a claim, after a claim but before acceptance or rejection, or within 60 days after rejection (section 15(2)). The Authority must forward the application to the advisory committee for a non binding expert opinion and determine the application within 10 days of receiving that opinion (section 16(4), (5)).

Volunteer firefighters have a right to compensation as if they were workers under the WIRC Act, including weekly payments, medical expenses, and return to work assistance (section 18). The Authority may plan the volunteer’s return to work, approve rehabilitation providers, or provide alternative assistance (section 18(7)). Pre-injury average weekly earnings for volunteers are computed by reference to their employment by any employer or, if not working under a contract of service, on any basis best calculated to give appropriate compensation, subject to WIRC Act maximum limits (section 18(6)).

The Act imposes a duty on the Authority to seek expert opinions from the advisory committee in two circumstances: when determining whether a volunteer firefighter or vehicle and equipment maintenance employee attended fires to the extent reasonably necessary (sections 12, 12C), and when determining an application for special consideration (section 16(2)). The Authority must have regard to the opinion but is not required to follow it (sections 12(3), 16(5)). The Authority also must make payments for administration of the Act out of the WorkCover Authority Fund (section 21(1)).

The Act establishes a right of exchange of information between the Authority and the CFA in relation to volunteer firefighters’ claims under both the WIRC Act and the CFA Regulations, to prevent double recovery (section 19(8)). The advisory committee has a duty to have regard to relevant records, brigade records, CFA data, employer data, local knowledge, and any prescribed matters when providing expert opinions (sections 12(2), 12C(2), 14(a)-(d)).

The Act itself does not create specific criminal offences or civil penalties for non-compliance. Enforcement of the compensation regime occurs through the existing mechanisms of the Workplace Injury Rehabilitation and Compensation Act 2013. If the Authority fails to properly determine a claim, or if an employer fails to comply with a compensation order, the usual WIRC Act penalties apply: these include penalties for failing to pay compensation, obstructing claims, or providing false information. The Act does not prescribe any specific monetary penalty or imprisonment term for breach of its provisions. The advisory committee’s opinions are not binding, so there is no penalty for the Authority if it disagrees with the committee. The Act’s enforcement relies on the underlying WIRC Act’s dispute resolution processes, including conciliation, Medical Panel determinations, County Court and Magistrates’ Court proceedings (section 18(4)). The Act does, however, create a precondition for certain claims: a volunteer firefighter cannot make a claim under the WIRC Act and the CFA Regulations at the same time for the same injury (section 19(1)). If a claim under Division 3 is rejected because the Authority proved the injury was not due to firefighting service, the volunteer cannot then claim under the CFA Regulations for the same injury (section 19(4)). This prohibition acts as a form of enforcement against double recovery. The Act also provides that rejection of a claim under one regime does not prejudice a claim under the other regime (sections 19(3), 19(6)), subject to the exception just noted. The regulations made under section 22 may also create enforcement mechanisms, but the Act does not detail them. Section 22(2)(a) allows regulations to confer powers or impose duties in connection with the regulations on any specified person or class of persons, which could include compliance obligations. Practitioners should consult the regulations for any additional penalty provisions.

The Act is expressly designed to be read as part of the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act). Section 5(1) states that the Act is to be read as if it formed part of the WIRC Act, and section 5(3) provides that words and expressions defined in section 3 of the WIRC Act have the same meaning in this Act, unless inconsistent with the context or subject matter. In case of inconsistency, this Act prevails (section 5(2)). This means that for the purposes of persons covered by the presumption, the WIRC Act’s definitions, claim procedures, dispute resolution mechanisms, and benefit structures apply, but the presumptive provisions override any conflicting WIRC Act provisions. For example, the WIRC Act’s usual requirement that a claimant prove causation is displaced by the rebuttable presumption.

The Act also interacts with the Country Fire Authority Regulations 2014, specifically Part 6, which provides a separate compensation scheme for volunteer firefighters. Section 19 carefully coordinates the two regimes: a volunteer cannot claim under both the WIRC Act (via this Act’s presumption) and the CFA Regulations at the same time for the same injury (section 19(1)). If a claim under Division 3 (WIRC Act) is rejected, the volunteer may claim under the CFA Regulations, unless the rejection was based on the Authority proving the injury was not due to firefighting service (section 19(4)). Conversely, if a CFA Regulations claim is rejected, the volunteer may claim under Division 3 (section 19(5)). The Authority and the CFA may exchange information to administer these cross-claims (section 19(8)). No double compensation is permitted (section 19(7)).

The Act incorporates definitions from the Forests Act 1958 for “occupational forest firefighter” and “surge forest firefighter” (section 4(1)). These persons’ periods of service can be combined with other firefighting service for the purpose of meeting the qualifying period under section 12D(1)(b)(iv) and (v). This interaction ensures that a person who has served in multiple firefighting capacities across different statutory schemes can aggregate that service.

The Act’s reference to the Country Fire Authority Act 1958 and the Metropolitan Fire Brigades Act 1958 (now Fire Rescue Victoria Act 1958) is relevant for determining who is an employer for career firefighters and vehicle and equipment maintenance employees. The definition of “CFA” and “Fire Rescue Victoria” in section 4(1) links to those Acts. The amendment provisions in Parts 3-11 (now repealed) originally amended these Acts to restructure fire services, but the compensation provisions in Part 2 operate independently.

The Act also interacts with the WorkCover Authority Fund and the Consolidated Fund under section 21. Administrative costs are paid from the WorkCover Authority Fund, but compensation for volunteer firefighters under section 18 is paid out of the WorkCover Authority Fund with reimbursement from the Consolidated Fund (section 21(2)). This creates a special financial arrangement outside the usual WIRC Act funding.

The Act received Royal Assent on 2 July 2019 as Act No. 20 of 2019. Parts 1 and 2 (including sections 1-22) commenced on 3 July 2019, the day after assent (section 2(1)). Parts 3 to 11 (sections 23-192) commenced on 1 July 2020 by Special Gazette. However, section 192 of the Act itself (a self-repealing provision) repealed Parts 3-11 on 1 July 2021, meaning those structural fire services amendments were themselves repealed. The current version (No. 005) incorporates amendments up to 11 October 2023.

The Workplace Safety Legislation and Other Matters Amendment Act 2022 (No. 10 of 2022) made substantial amendments to Part 2, effective 1 September 2022. These amendments: inserted definitions of “occupational forest firefighter”, “surge forest firefighter”, and “vehicle and equipment maintenance employee”; inserted section 4A to define a vehicle and equipment maintenance employee; inserted Division 3A (sections 12A-12C) establishing the rebuttable presumption for vehicle and equipment maintenance employees, including definitions, determination of status, and expert opinion requirements; inserted Division 3B (section 12D) consolidating the rules for determining the qualifying period by allowing combination of service across multiple categories (career, volunteer, maintenance, occupational forest, surge forest) and counting part-years as full years; and amended sections 8, 11, 13, 14, 15, 16, 17 and 20 to extend references to include vehicle and equipment maintenance employees. These amendments significantly expanded the original scope of the Act beyond firefighters to include maintenance employees and clarified the aggregation of service.

The Justice Legislation Amendment Act 2023 (No. 26 of 2023) amended Schedule 1 of the Act on 11 October 2023 by adding three new diseases to the table: primary site cervical cancer (10 years qualifying period), primary site ovarian cancer (10 years), and primary site uterine cancer (10 years). The original Schedule 1 contained 12 cancers; the 2023 amendment brought the total to 15. This expansion reflects ongoing recognition of occupational cancer risks across a broader range of cancer types.

The text of the Act does not reference any specific court proceedings or case law. The Act creates a statutory presumption that operates within the established dispute resolution framework of the WIRC Act, which includes conciliation, Medical Panel referrals, the County Court and the Magistrates’ Court (section 18(4)). Because the Act is relatively recent (commenced 2019, with major amendments in 2022 and 2023), and because the presumption applies to injuries occurring on or after 1 June 2016, it is likely that litigation is only now emerging as claims are made and tested. The advisory committee’s opinions are not binding, which may generate disputes about whether the Authority properly considered the opinion or appropriately exercised its discretion under sections 12(3) and 16(5). Similarly, the definitional requirements , such as what constitutes “firefighting duties” as a “substantial portion” of a role, or whether a volunteer “attended fires to the extent reasonably necessary” , are likely to be litigated. The provisions allowing combination of service periods under section 12D may also give rise to interpretive issues, particularly where persons have served in multiple jurisdictions or across different fire services. The Act does not cite any decided cases, and no litigation history is provided in the source. Practitioners should monitor decisions of the County Court and the Magistrates’ Court on WIRC Act claims that invoke the presumption, as these will shape the operational meaning of the Act.

Several features of the Act can trap the unwary. The most significant is the 10-year post-employment window for the disease to manifest. If a firefighter or maintenance employee ceases employment or service and is diagnosed with a Schedule 1 cancer more than 10 years later, the presumption does not apply (sections 6(1)(b), 9(1)(b), 12A(1)(b)). This may affect older former firefighters who retired long before 2016. The qualifying periods in Schedule 1 range from 5 to 25 years. A person with less than the required period cannot rely on the standard presumption and must instead rely on the special consideration pathway, which requires proving an exceptional exposure event. But special consideration is only available if the claim has been rejected first (section 16(1)), and the application must be made within 60 days of rejection (section 15(2)(c)) , a tight deadline. The application for special consideration cannot be made before the claim is rejected; it must be made at the same time as the claim, after the claim but before acceptance or rejection, or within 60 days after rejection (section 15(2)). This timing is critical.

For volunteer firefighters and vehicle and equipment maintenance employees, there is an attendance-at-fires requirement. Section 9(1)(c) requires the volunteer to have “attended fires to the extent reasonably necessary to fulfil the purpose of their service”, and section 12A(1)(c) imposes a similar condition on maintenance employees. The advisory committee provides an opinion on this matter, but the Authority may disregard it (sections 12(3), 12C(3)). A volunteer who rarely attended fires , even if they served for the qualifying period , may fail this test. The definition of firefighting (section 4(1)) is limited to exposure to hazards at a fire scene; it does not include training, station duties, or responding to non-fire emergencies. This may limit the scope of covered exposure.

The combination of service periods under section 12D is generous but has a trap: concurrent service is counted only once (section 12D(3)). If a person served simultaneously as a career firefighter and a volunteer (e.g., a retained firefighter who also volunteers), that period counts only once towards the qualifying period. Also, while periods of service as an occupational forest firefighter or surge forest firefighter can be combined, those categories are not themselves covered by the presumption , only career firefighters, volunteers, and vehicle and equipment maintenance employees are directly covered. So a forest firefighter who never served as a firefighter under this Act cannot claim the presumption unless they fall within one of those definitions.

The definition of career firefighter requires that firefighting duties be a “substantial portion” of the role (section 4(1)). A person employed as a firefighter but whose role is predominantly administrative or supervisory may not qualify. Similarly, a volunteer firefighter must have performed firefighting duties as a substantial portion of their role and received no remuneration. If a volunteer receives any remuneration for firefighting, they may be reclassified as a career firefighter, which changes the applicable rules.

The Act applies to injuries occurring on or after 1 June 2016. For injuries before that date, the presumption does not apply. However, the Act does not revive lapsed claims; it only allows new claims for injuries after 1 June 2016 if a previous claim was rejected (sections 17, 17A). Those sections require that the prior claim be for a Schedule 1 disease occurring on or after 1 June 2016 and that the claim was rejected before the commencement of this Part (3 July 2019). If a claim was rejected after 3 July 2019, the right to make a new claim under these sections is not available; instead the claimant would need to rely on the normal claim process under the presumption.

Finally, the Schedule 1 diseases are all “primary site” cancers. This wording excludes secondary or metastatic cancers from a primary site not listed. For example, if a person has metastatic liver cancer originating from a primary lung cancer, and lung cancer is not listed, the presumption does not apply. The Act covers only the 15 listed primary sites.

Compliance with the Act requires different actions by different parties. Fire services (CFA and Fire Rescue Victoria) must maintain accurate and accessible records of each person’s employment or service history, including the nature of duties, dates of service, attendance at fires, and any exposure events. These records are critical for the Authority to determine qualifying periods and for the advisory committee to assess attendance and exceptional exposure. Fire services should also ensure that employment classifications accurately reflect whether a person is a career firefighter, volunteer firefighter, or vehicle and equipment maintenance employee as defined, because misclassification could affect entitlement.

The Victorian WorkCover Authority must establish procedures for handling claims under the Act. This includes training staff to recognise when the presumption is invoked, calculating qualifying periods by combining service categories under section 12D, and seeking expert opinions from the advisory committee where required (sections 12, 12C, 16). The Authority should develop a process for receiving and processing applications for special consideration, including establishing a mechanism to time 60-day deadlines from claim rejections (section 15(2)(c)). The Authority must also set up a system for recovering reimbursement from the Consolidated Fund for volunteer compensation payments under section 18 (section 21(2)). The Authority is not required to follow the advisory committee’s opinions, but it should document its reasons for departing from them to avoid challenge.

The Minister must establish the advisory committee in accordance with the regulations (section 20(1)). The committee should have members with appropriate expertise in firefighting operations, occupational medicine, or epidemiology. The regulations may prescribe procedures and confidentiality conditions; the committee must follow these when providing opinions. The committee should keep its records for at least the duration of claim periods.

Claimants (firefighters and maintenance employees) should ensure they have documented proof of their service periods, including any periods of service as an occupational forest firefighter or surge forest firefighter that may be combined. Claimants should also maintain records of any significant exposure events, such as major fires involving known carcinogens, for potential special consideration applications. If a previous claim for the same injury was rejected before 3 July 2019, claimants should consider making a new claim under sections 17 or 17A. Claimants must also be aware of the 60-day deadline to apply for special consideration after a claim rejection (section 15(2)(c)); it is prudent to file the application at the same time as the initial claim to preserve the option.

Legal practitioners advising clients should verify that the injury is a listed primary site cancer in Schedule 1, that the injury occurred on or after 1 June 2016, and that the 10-year post-employment window has not expired. They should gather evidence of service and exposure for combination calculations. They must also advise volunteer clients about the attendance-at-fires requirement and the possibility of the advisory committee opinion being adverse. Practitioners should also check whether the client has any claim under the CFA Regulations and coordinate the two regimes to avoid the prohibition on simultaneous claims (section 19).