CHAPTER 3
Key issues
Burden of proof
3.1
Firefighters who are killed or injured attending a fire incident are
given compensation for work-related injuries. However, firefighters who develop
cancer and believe their illness to be work-related currently face substantial
obstacles to seeking compensation.
3.2
The committee was informed that, at present, any attempt to obtain
compensation requires firefighters to undertake adversarial, costly and often protracted
legal proceedings to establish:
a) The link
between firefighting and cancer; and
b) Causation
between a specific fire incident and their illness.
3.3
The United Firefighters Union of Australia (UFUA) informed the committee
that medical practitioners generally advise firefighters with cancer to
minimise stress and focus on their cancer treatment.[1]
Many firefighters, as the committee heard from personal accounts relayed in the
next chapter, fund their own leave from work and even their treatment. Their
families cannot access compensation in the event that they die.[2]
3.4
As a result, the emotional and financial costs of litigation involved
mean that not many firefighters who develop cancer seek to access any
entitlement or compensation:
These transactional costs and the potential stress and delay
often act as a disincentive for firefighters with cancer to pursue their proper
entitlements. I myself have seen firsthand several firefighters with potential
claims discouraged from pursuing those claims for these reasons. Often the
shock and trauma of a cancer diagnosis and subsequent treatment places a great
strain on those affected and their families. The threat of litigation is often
overwhelming and the need to focus on treatment and improving health is often
paramount. In this way, the scheme can sometimes be as confronting as the
injury.
The introduction of presumptive legislation will therefore
lead to greater transactional efficiency. It will remove some of the emotional
and financial hurdles facing workers at the most vulnerable times in their
lives. This in turn will improve client satisfaction with the scheme and
hopefully drive down litigation costs.[3]
3.5
Those who would pursue compensation face considerable litigation costs.
Representatives from Slater and Gordon Lawyers informed the committee that
presumptive legislation in other jurisdictions often results in a reduction in
litigation:
The presence of the rebuttable presumption means that it is
open to insurers to still defend those claims where the cause of the cancer may
be in question. However, I have certainly seen it in the proclaimed diseases
provisions within the Accident Compensation Act in Victoria, where it does
create more of a culture of acceptance of the claim rather than disputation. To
give you an example, it might be the occurrence of Q fever amongst abattoir
workers. Rather than having a protracted legal argument as to whether that
disease has been caused by that type of employment, I have noticed that where that
has occurred here it has been more readily accepted. That is to be applauded.
It means that we are putting the resources into the appropriate places; they
are not going to be expended on litigation. In litigation it is not only the
cost; it is the emotional toll too. For workers who are quite ill and who quite
often have a battle for their lives, the emotional toll of going to see doctor
upon doctor for independent opinion or going to see a lawyer or going to court
to give evidence can be quite stressful. Those people are, I guess, discouraged
from pursuing that and sometimes will relinquish what their proper entitlement
might otherwise be. So when we speak of these amendments not creating a new
entitlement, it does not, but it does make it more efficient and more readily
available for those who perhaps are most deserving of our support.[4]
The SRC Act
3.6
The Safety, Rehabilitation and Compensation Act (the SRC Act) sets up
the framework for workers' compensation and rehabilitation for the Government's
Comcare[5]
scheme. The Department of Education, Employment and Workplace Relations
provided the following on the Act:
It establishes a fully funded premium based system and a
licensed self-insurance based system of compensation and rehabilitation for
employees who are injured in the course of their employment. The scheme covers
approximately 211,000 Australian and ACT government employees and approximately
163,000 employees of self-insured licensees (as of 30 June 2010).
It provides a comprehensive benefit structure that includes:
- the payment of the reasonable cost of medical treatment;
- income replacement for periods of incapacity for work;
- payment of a lump sum for permanent impairment; and
- payment for rehabilitation programs.
In general, access to benefits under the SRC Act depends upon
whether or not the injury, illness or disease can be demonstrated, on the
balance of probabilities, to be work related.[6]
3.7
'Disease' is defined by the SRC Act as an ailment suffered by an
employee that was contributed to by employment:
The way that scheme works is that there is an ILO [International
Labour Organisation] list of occupational diseases. There is an expert panel
that assesses exposure and likelihood of causation. Once a disease is on that
list, under the provisions of the act as it applies, if—to take a
hypothetical—one of our firefighters were to acquire a disease to which these
deeming provisions apply, then that would bring into effect the workers
compensation arrangements under the act.[7]
The ILO list of occupational
diseases
3.8
All Australian jurisdictions except Queensland already include in their
respective workers' compensation legislation lists of biological agents and
chemicals with known links to certain diseases. These, including those listed
under the SRC Act, are all based on the International Labour Organisation's
(ILO) List of Occupational Diseases.[8]
3.9
The ILO list was created following the Workmen's Compensation
(Occupational Diseases) Convention (Revised) 1934. Australia ratified this
convention in 1959. The diseases included in the ILO's list adhere to set
criteria:
(i) there is a causal relationship with a specific agent, exposure or work
process;
(ii) they occur in connection with the work environment and/or in specific
occupations;
(iii) they occur among groups of persons concerned with a frequency which
exceeds the average incidence within the rest of the population; and
(iv) there is scientific evidence of a clearly defined pattern of disease
following exposure and plausibility of cause.[9]
3.10
Although most Australian jurisdictions list some of the toxins cited by
the ILO's list, not all have updated their respective lists of deemed diseases
to reflect reviews and updates made by the ILO.[10]
3.11
Furthermore, the committee heard that the list of deemed diseases in the
SRC Act, which is based on the ILO list, does not in fact include all the
cancers listed by the proposed Bill:
Advice from Comcare is that their preliminary research—noting
that that research has not been conducted through a medical or scientific
expert—indicates that the existing list of declared diseases that can be caused
by exposure to relevant toxins would encompass certain cancers but may not
encompass all cancers listed in the firefighters bill. Comcare have further
advised that this would continue to be the case even if the current list of
declared diseases and toxins under the SRC Act is updated to bring it into line
with the current ILO list of occupational diseases.[11]
Subsection 7(1) of the SRC Act
3.12
Subsection 7(1) of the Act provides that:
Where:
(a) an employee has suffered, or is suffering, from a disease
or the death of an employee results from a disease;
(b) the disease is of a kind specified by the Minister, by
legislative instrument, as a disease related to employment of a kind specified
in the instrument; and
(c) the employee was, at any time before symptoms of the
disease first became apparent, engaged by the Commonwealth or a licensed
corporation in employment of that kind;
the employment in which the employee was so engaged shall,
for the purposes of this Act, be taken to have contributed, to a significant
degree, to the contraction of the disease, unless the contrary is established.[12]
3.13
That is, arguably the SRC Act already '...makes specific provision for
what is intended by this Bill.'[13]
It provides presumptions for certain prescribed occupational diseases,
although, as seen in paragraph 3.11, not for all the cancers listed by this
Bill.
3.14
It does so by enabling:
...the Minister to specify certain diseases are related to
employment of a specific kind, unless the contrary can be proved. This presumes
that certain diseases (specified by the Minister), that are contracted by an
employee in a specific kind of employment, are related to that employment.[14]
3.15
The ACT Government argued that the above subsection of the SRC Act
already provides adequate coverage for ACT firefighters. Mr Andrew Kefford,
Deputy Director-General in the ACT's Chief Minister and Cabinet Directorate
stated:
...all of those firefighters we have mentioned are covered in
the course of their duties by the act to which this bill relates. We note in
that context that that act provides a reverse onus of proof where a worker—and
they are all classified as workers for this purpose—contracts a disease that is
specified under the act. The act provides for compensation for all territory
workers where diseases associated with particular toxin exposure in their
employment on the balance of probabilities involved exposure to such toxins.
This means in practice that, if a firefighter contracts cancer and that disease
is linked to exposure to toxins during their employment, then it would more
than likely be taken to be a compensable injury, although I note for the
information of the committee that to the best we have been able to ascertain
from the history there has not been a claim for occupational cancer amongst the
territory's firefighters.[15]
3.16
Mr Kefford added that records of incident notifications kept by the
ACT's fire services would help ACT firefighters obtain compensation:
If we were in the situation of someone who had been a
firefighter in the ACT contracting cancer then part of the process that applies
at the moment is that they would need to show that they had been a firefighter
and exposed in the course of their work. There would be records that would
permit them to do that.[16]
3.17
The records in question refer to the Australian Incident Reporting
System (AIRS). The committee heard that AIRS data, however, is used to measure
emergency response effectiveness and is not designed to collect information
which could be reliably used in compensation claims:
AIRS is a mechanism for fire services to collect data as to
the incidence of fire and is used to identify trends in fires and incidents. It
is not a system designed to record the event from the firefighter's
perspective, experience or exposure to toxins.[17]
3.18
UFUA provided the committee with an excerpt from the Australasian Fire
and Emergency Service Authorities Council (AFAC) website, which acknowledges
the limitations of AIRS:
Some anomalies in the data exist due to separate development
of the reporting systems by each fire service. It is not required that AIRS
reports be supported by irrefutable evidence.[18]
3.19
UFUA expanded on the limitations of the AIRS system, citing the
following drawbacks:
- The system does not record firefighters' exposure to toxins as a
result of combustion at the fire scene;
- The exposure recorded refers to exposure from the fire scene—for example
from spread to another structure—not exposure to the firefighter;
- The use of breathing apparatus and specialist protective
equipment is recorded as the number of sets used without details about which
firefighter used the equipment;
- The recording of respiratory protection and protective equipment
is not compulsory for structure fires;
- It is not mandatory to fill each field in the system; this may
mean that important information is at times omitted;
- The recorded data relies on what is visible to the officer at the
scene; and
- Due to the short timeframes firefighters operate in, officers do
not have adequate time to record precisely which toxins or carcinogens are
present in the environment.[19]
3.20
Therefore the records available do not appear sufficiently reliable to
form the basis of solid compensation claims.
Does the SRC Act provide adequate
cover?
3.21
The ACT Government's evidence that any ACT firefighters who wish to make
a claim can already do so under subsection 7(1) of the SRC Act reaffirmed the position
expressed by the ACT Government earlier in its submission:
The SRC Act already provides presumptions for prescribed
occupational diseases.[20]
3.22
However, the same part of the above submission goes on to explain:
That is, the disease is deemed to be work-related if the
worker's employment involved exposure to certain chemicals, toxins and
biological agents.[21]
3.23
This means that ACT firefighters who develop cancer may technically seek
and obtain compensation under the SRC Act as it stands. Importantly however,
they still have to prove on the balance of probabilities:
(i) That the disease (cancer) was caused by the exposure to the particular
chemical or toxic compound; and
(ii) That the employee was exposed to that particular chemical or toxic
compound.[22]
3.24
Mr Steve Kibble of Comcare outlined for the committee the tests and
process involved in determining claims under subsection 7(1) of the SRC Act as
it stands:
When we determine claims under that subsection there are two
evidentiary tests considered. The first one is disease of a kind—and I am
referring to the legislation—and the second is employment of a kind, which
involves exposure to a specified risk. For example, the notice of the deemed
diseases provides coverage for occupational diseases caused by benzene, for
those employees whose employment involves exposure to benzene.
With that example, firstly, it must be established that the
disease is of a kind caused by benzene and the person who is making a decision
about the claim would rely on specialist medical evidence or research that
provides a scientific and medical link to the contraction of a kind of disease
caused by benzene. Secondly, the delegate would rely upon the information
provided on the claim form or obtain factual evidence from the employer and/or
the employee to establish that the employee was engaged in a kind of employment
involving exposure to the risk—that is, of benzene—before they contracted the
disease and their employment involved exposure to the risk. For example, if a
firefighter fought structural fires, therefore it can be taken that he or she
had been exposed to benzene.[23]
3.25
However UFUA reminded the committee that:
Firefighters cannot prove 'exposure' to the particular
chemicals or toxins at the specific fires or incidents they have attended. It
is simply not possible or practicable for the detection of the numerous toxins
firefighters are exposed to at each particular fire. This problem is
exacerbated as the exposure can be over a long period of time at a number of
fires/incidents and the cancers have various latency periods.
Therefore, without being able to prove that exposure at any
particular time in the employment, the firefighter fails to meet the test for
the presumptive threshold as specified in section 7(1) [of the SRC Act]. The
firefighter is left in the impossible position of having to prove the link of
the cancer with their particular work as a firefighter.[24]
3.26
Asked how a firefighter could prove exposure under subsection 7(1) of the
SRC Act as it stands, representatives of the ACT Government stated the
following:
If we were in the situation of someone who had been a
firefighter in the ACT contracting cancer then part of the process that applies
at the moment is that they would need to show that they had been a firefighter
and exposed in the course of their work. There would be records that would
permit them to do that. I might come back to what you were saying before about
knowledge of the provisions. I should say that safety generally and workers'
safety generally in our fire services are things that are at the front of the
government's mind. They are at the front of the minds of all of the people
involved in it. So I am confident that any firefighter who contracted a disease
or work injury that even might have been related to their work would know about
the appropriate channels through which they should go to pursue their claim, whether
they be a member of our ESA or a volunteer brigade.[25]
3.27
The onus, therefore, would still be on the sick firefighter to prove
occupational exposure to carcinogens. In fact, given that cancer results from
cumulative exposure, firefighters seeking compensation could be required to
provide a trail of evidence on exposure going back a decade or more.
3.28
This, the committee understands, would be achievable only if, after
every fire event, authorities conducted a thorough scientific analysis of
chemicals present in the fire, and then provide each firefighter involved in
the response with a detailed list of chemicals they were exposed to. The
administrative burden and cost of such an endeavour would be prohibitive. Easing
the extremely difficult task of proving the link between their work and their
cancer goes, as outlined earlier in this report, to the very heart of the
proposed legislation.
3.29
In addition, this question of proving exposure leads to the fine point
of difference between the current SRC Act and amendments proposed by this Bill.
The latter would not require firefighters battling cancer to go out of their
way to prove exposure. It would assume exposure to carcinogens for firefighters
with a set number of years of service.
3.30
Slater and Gordon Lawyers pointed to the out that the Bill does not
represent a significant departure from the SRC Act, but rather a narrowing of
its intentions:
This Bill therefore represents an outcome of a type not only
already specifically contemplated by the drafters of the current Section 7 [of
the SRC Act], but is also narrower in application than that envisaged. It would
be errant logic to conceive of this Bill as some new tipping point that will
promote a flood of claims.[26]
3.31
The Slater and Gordon submission argued that the effect of the proposed
Bill is limited to:
...shift[ing] the balance of an evidentiary burden away from
a severely injured worker and their family at a time where that family is
likely experiencing significant stress. It shifts this burden to a professional
administrator who has ready access to the resources and expertise necessary to
assess the merits of the situation. Indeed, it is in many ways the core
business of this administrator to make such assessments. It does not deny the
administrator any legal defence that it may otherwise consider appropriate to
rely upon in the given circumstances.[27]
Committee view
3.32
The committee recognises that subsection 7(1) of the SRC Act already
allows for a presumption that employment contributed significantly to a listed
disease. However, critically, the Act still requires proof of exposure to be
established by the claimant before the presumption can take effect. A
firefighter would have to:
1. suffer
from a disease listed under the SRC Act (which appears not to include all the
cancers covered by the proposed legislation);
2. show
that their employment involved a risk of exposure to particular chemicals prior
to the disease; and
3. prove
a link between the chemical and disease in question.
3.33
The committee considers the SRC Act an inadequate mechanism to achieve
the objectives of the current Bill because of the heavy evidentiary burden it
places on firefighters with cancer.
3.34
The Bill being considered relies on scientific evidence and assumes an
association between the length of occupation as a firefighter and certain
cancers. If the Bill is passed, firefighters with these primary site cancers
will only have to prove length of service.
3.35
The committee acknowledges the volume of evidence received—particularly
that from Slater and Gordon Lawyers—pointing out that the ultimate effect of
this Bill would be to merely shift, not scrap, the evidentiary burden. The
committee recognises that the opportunity would still exist for employers and
insurance agencies to overcome claims for compensation in cases where such
claims were not warranted.
Costs
3.36
Workers' compensation claims through Comcare are funded by premiums paid
for by governments:
The way our scheme operates is that it is very much an
experience based scheme. You may be aware of some of the state and territory
workers compensation schemes which have some elements of an experience base in
terms of some of the claims experience and performance of individual employers
but because of the size of the schemes and the number of employers they quite
often operate on an industry basis et cetera. But our scheme is very much an
employer based experience, so the premium which is charged in each year is
based on the actual claims experience of the individual employers as well as
the overall costs of the scheme itself.[28]
3.37
The committee explored the possibility that the Bill could bring about
significant increases in premiums by improving the ease with which firefighters
can access compensation. However, based on overseas experience as well as the
fact that the legislation would not provide for any new grounds to claim, the
committee is of the view that there would be negligible impact on the
Commonwealth or ACT budget.
3.38
For information on the cost impacts of similar presumptive legislation
in other jurisdictions the committee considered evidence provided by the Fire
Chief Ken Block of Edmonton Fire Rescue Services in Canada. Fire Chief Block
informed the committee that the cost impact of presumptive legislation in
Canada had been 'minimal if not negligible.'[29]
3.39
To illustrate the point, Fire Chief Block cited the example of the
province of Alberta, Canada, for the committee. Alberta introduced presumptive
legislation in 2003, starting with seven cancers listed. In 2005 the province
added lung cancer in non–smokers to its list of covered cancers, then expanded
the list in 2010–2011 to include another six cancers. In all, Alberta now
covers 14 cancers in its presumptive legislation.
3.40
There are approximately 13 500 firefighters in Alberta, of which 3500
are full-time firefighters and 10 000 volunteer or part-time. Figures provided
for the committee show that in the period 2006–2010 there were 19 occupational
cancer claims with the Alberta Workers Compensation Board (WCB).[30]
3.41
The committee heard that the total cost of the WCB—including all
workplace injury and illness claims—to the Edmonton Fire Rescue Services budget
is less than two per cent of its $158 million recurrent operating budget:
Within the two per cent of the Edmonton Fire Rescue Services
recurrent operating budget it is estimated that there would be a very small
percentage of work related illness falling within presumptive legislation
coverage. Again, that two per cent encompasses all of the work related
injuries, not just cancer.
...
From 2003 the WCB cost for Edmonton Fire Rescue Services was
$916,347, increasing over a seven-year period to $2,332,414 in 2010. To put
that into perspective, that is the equivalent of a $202,295 increase per annum
in total for all claims, not just occupational cancer under WCB—and, again, all
claims include the range of work related illnesses, such as back injuries,
sprains, strains et cetera.[31]
3.42
The committee also heard that much of the increase in costs can be
attributed to increased staffing levels, with the Edmonton fire department
growing by approximately 15 per cent over the past decade.
3.43
Fire Chief Block discussed with the committee the 'immeasurable but
beneficial' impacts of presumptive legislation in Edmonton, Alberta. Raised
awareness of the correlation between firefighting and certain cancers has led
to a proactive approach to health awareness through the Edmonton Fire Rescue
Services Health and Wellness program, introduced in 2005. The program encourages
firefighters to undergo regular, voluntary medical assessments, which have
resulted in early detection of cancers and subsequently a much higher survival
rate.[32]
Through early occupational cancer detection, there is
transferring of costs between death benefits and issues such as lost time and
medical claims. This is essentially a balancing and neutral costing, while
detecting a cancer early and hopefully saving a firefighter, which is the right
thing to do.[33]
3.44
Raised health awareness and a proactive approach to health and wellbeing
have also resulted in a positive change in employee engagement and have helped Edmonton
Fire Rescue Services with recruitment and retention.[34]
Committee view
3.45
The committee notes the experience-based evidence provided by Fire Chief
Block. The committee also notes the very small number of claims lodged in
Alberta, Canada, and has no reason to believe that the introduction of
presumptive legislation here would lead to a flood of claims. Evidence suggests
otherwise, as only a small number of firefighters will be in the unfortunate
position of having to make a claim for occupational cancer.
3.46
On the basis of this evidence, the committee is confident that the cost
impact of the proposed legislation would be as insignificant in Australia as it
has been elsewhere.
3.47
The committee also notes with great interest that presumptive
legislation overseas has led to greater health awareness, earlier detection of
cancers and consequently a higher survival rate. First and foremost this is
positive in terms of the firefighters' lives saved. However, it also leads to a
reduced number of death benefits needing to be paid.
Coverage of volunteer firefighters
3.48
Some submissions sought clarification on which firefighters the Bill
would cover.[35]
3.49
The proposed legislation does not expressly differentiate between
volunteer and professional firefighters, but subsection 7(9) includes the
following definition of being employment as a firefighter:
(9) for the purpose of subsection (8):
(a) an employee is taken to have
been employed as a firefighter if firefighting duties made up a substantial
portion of his or her duties; and
(b) an employee who was employed
as a firefighter for several periods that add up to the qualifying period is
taken to have been so employed for the qualifying period.[36]
3.50
This definition means that volunteer firefighters would not be covered
by the legislation because firefighting does not comprise a substantial portion
of their duties, nor would they be able to satisfy the requirements of the
qualifying periods outlined in Chapter 1.
3.51
During the course of its inquiry the committee sought clarification as
to why the proposed legislation did not seek to cover volunteers, who are
covered in certain jurisdictions overseas. In response to its questions, the
committee heard that the definition of volunteer firefighter differs between
Australia and overseas:
The definition of 'volunteer' in Canada is different from the
definition of 'volunteer' here. In Canada, there is no such thing as a person
who gives their labour or their services for no remuneration. They are paid
on-call or are part-time firefighters.[37]
Cause of illness and period of employment
3.52
Subsection 7(8) of the proposed legislation states:
(8) If an employee:
(a) suffers a disease mentioned
in the following table; and
(b) before the disease was first
diagnosed, was employed as a firefighter for the qualifying period mentioned
for that disease; and
(c) was exposed to the hazards
of a fire scene during that period;
the employment is taken to have been the dominant cause of
the contraction of the disease, unless the contrary is established.
3.53
Slater and Gordon Lawyers questioned why subsection 7(8) of the Bill
employs the term 'dominant' instead of 'significant' cause, since the threshold
test for entitlement elsewhere in the SRC Act is that employment contributed to
a disease to a 'significant' degree:
It is not clear why the term dominant has been selected. The
threshold test for entitlement to compensation for disease under the Act is
that employment has contributed to a significant degree. The threshold test for
significance is less than for dominance, so the use of the higher test will not
disadvantage workers who otherwise qualify.[38]
3.54
Slater and Gordon Lawyers also pointed out to the committee that section
7(9) of the Bill could result in unintended consequences. It currently states:
(9) (b) an employee who was employed as a firefighter for
several periods that add up to the qualifying period is taken to have been so
employed for the qualifying period.[39]
3.55
The above subsection may risk being misinterpreted as not covering
firefighters who have only accrued two, instead of 'several', periods of
employment. Two periods and several periods can add up to the same number of
years, each satisfying the required qualifying period.
Committee view
3.56
The committee agrees with the concerns expressed by Slater and Gordon
Lawyers, and believes the reference to 'dominant' cause in the Bill should be
revisited in order to preserve consistency within the SRC Act.
3.57
The committee also supports the view that the term 'several periods' of
employment should be amended to 'more than one period' of employment.
Recommendation 2
3.58 The committee recommends that proposed subsection 7(8) of the Bill be
amended to replace the term 'dominant' cause with 'significant' cause.
Recommendation 3
3.59 The committee recommends that proposed subsection 7(9)(b) of the Bill be
amended to replace the term 'several periods' with 'more than one period'.
The case for non-rebuttable legislation
3.60
The committee is aware that some submitters, such as the ACT Branch of
UFUA, believe the Bill should go further and provide stronger presumption of
occupational cancer possible for firefighters. This would require the
legislation to be non-rebuttable.[40]
3.61
As already outlined, the Bill as it stands reverses the onus of proof
from the individual to the employer or insurer, who can then rely on the
rebuttable nature of this legislation to deny a firefighter's claim for
compensation and have the case heard before the Administrative Appeals Tribunal
or the Federal Court.[41]
Making the presumption non-rebuttable would render it automatic and not provide
employers and insurers with the opportunity to reject a weak or unfounded claim
for compensation.
3.62
The committee is not aware of significant support for this alternative
approach. Furthermore, this is not the approach taken by leading jurisdictions
across Canada and the United States.
3.63
The Bill as it stands enjoys support from the overwhelming majority of
submissions to this inquiry. This, it should be mentioned, includes support
from the ACT Branch of UFUA, which represents the firefighters who would be
directly affected by this Bill:
The fact remains that whether it is one fire or one hundred
fires, our compensation system should be designed in such a way that it
protects firefighters, so that they can continue protecting Australian
communities.[42]
3.64
The committee is satisfied that the proposed presumptive legislation
should remain rebuttable.
Committee view
3.65
The committee understands that this legislation would not create a new
right or entitlement, and would not bring about a flood of new claims. Nor would
it fundamentally change the nature of the Australian compensatory system.
Rather, it would shift the burden of proof from a sick individual to their
employer or insurer, and only in defined cases founded on premises supported by
scientific research.
3.66
The committee notes that the proposed legislation as it stands could
lead to firefighters with two periods of service, which nonetheless add up to
the qualifying period, being denied compensation. For this reason the committee
has recommended amending subsection 7(9)(b) of the Bill to replace the term
'several periods' with 'more than one period'. Similarly, noting that the
threshold test for significance is less than for dominance, the committee has
recommended that subsection 7(8) be amended to maintain consistency throughout
the SRC Act.
3.67
The committee is convinced that this legislation removes, at least for
some firefighters, the unreasonable impediment to compensation that currently
exists. It is, the committee believes, legislation which finally recognises the
scientifically demonstrated link between firefighting as an occupation and
certain forms of cancer. As stated in 2002 when the Canadian province of
Manitoba was considering the introduction of such legislation:
A presumption assumes that, all other things being equal,
most cases of a certain type of cancer will be associated with occupational
exposure, even though it is not possible to determine which case is actually
caused by the occupation. A presumption is a way of being inclusive in the
acceptance of such claims given that it is not possible to distinguish among
them.
...
A presumption is also appropriate when the condition is rare
and there is a pattern or strong suggestion of strong association with an
occupation that may be concealed by other factor that complicate interpretation
of the risk estimate.[43]
3.68
On the weight of evidence the committee believes presumptive legislation
is the most appropriate protective policy response to recognise the personal
risk that firefighters take in the course of their careers and the sacrifices
some of them will make.
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