What are presumptive rights
Presumptive rights are an entitlement for compensation under Victoria's Workers Compensation Scheme (the scheme) for people who satisfy certain criteria.
If these people are diagnosed with a specified cancer (outlined below) and satisfy the relevant criteria, they no longer need to prove that the cancer is directly attributable to their service.
The presumption applies unless it can be established that the cancer was not caused by their service.
Presumptive rights apply to the following people:
- career and volunteer firefighters engaged by Fire Rescue Victoria (FRV) and the Country Fire Authority (CFA)
- vehicle and equipment maintenance employees engaged by FRV and the CFA
- occupational forest firefighters (person employed in a role where forest firefighting is a substantial portion of the role) engaged by Forest Fire Management Victoria (effective from 14 September 2022)
- surge forest firefighters (person employed in a non-firefighting role who elects to take on fire and emergency management responsibilities as part of their department or agency's surge response) engaged by Forest Fire Management Victoria (effective from 14 September 2022)
What are the specified cancers and relevant qualifying periods
The table below lists the 15 specified types of cancers and the qualifying period associated with each cancer.
| Disease | Disease Qualifying period |
|---|---|
Primary site oesophageal cancer | 25 years |
Multiple myeloma | 15 years |
Primary non-Hodgkins lymphoma | 15 years |
Primary site bladder cancer | 15 years |
Primary site colorectal cancer | 15 years |
Primary site kidney cancer | 15 years |
Primary site prostate cancer | 15 years |
Primary site ureter cancer | 15 years |
Primary site breast cancer | 10 years |
Primary site cervical cancer | 10 years |
Primary site ovarian cancer | 10 years |
Primary site testicular cancer | 10 years |
Primary site uterine cancer | 10 years |
Primary leukemia | 5 years |
Primary site brain cancer | 5 years |
Eligibility
How to know whether you may be eligible
The compensation applies to people who:
- have been engaged as an eligible firefighter or vehicle and equipment maintenance employee for the relevant qualifying period
- have been diagnosed since 1 June 2016 with one of 15 specified types of cancer
- are diagnosed during their service or within 10 years after finishing their service
- can demonstrate they attended fires to the extent reasonably necessary to meet the requirements of the presumptive legislation
A partial year of service is counted as a full year of service to recognise seasonal workers. Previous service as a volunteer or career firefighter, a vehicle and equipment maintenance employee or a forest firefighter and equivalent interstate service count toward the qualifying period.
If you are a volunteer or forest firefighter or a vehicle and equipment maintenance employee, you will also need to demonstrate that you have attended fires to the extent necessary to meet the requirements of the presumptive legislation.
How eligibility is decided
All claims for presumptive rights (excluding career firefighters) require an expert opinion from an independent Advisory Committee established under the legislation. The Advisory Committee provides non-binding advice to WorkSafe as to whether a person:
- meets all the requirements including the qualifying period; or
- meets all the requirements except the qualifying period but has attended an 'exceptional exposure event'
Special consideration
Applying for special consideration
Where a person does not meet the relevant qualifying period, they can apply for special consideration to assess whether they have attended an exceptional exposure event. In order to receive the presumption, they must:
- meet all of the requirements under the presumptive legislation except the qualifying period; and
- believe they were involved in an exceptional exposure event during your service
The presumptive rights legislation does not define what an exceptional exposure event is.
However, the committee will consider:
- the nature of the event
- whether there are any relevant findings from a coroner, court proceedings or official inquiry regarding an event known to have exposed firefighters to carcinogens
- relevant records, employer data or local knowledge
- any other matters prescribed by the regulations
If your claim is rejected and you have submitted your application for special consideration, the Agent will seek advice on your application from an Advisory Committee.
The Advisory Committee has been established to provide your Agent with an expert opinion on your application for special consideration.
The information that the Advisory Committee will review as part of your application for special consideration are things like:
- any relevant findings from a coroner, any court proceedings or other official inquiry regarding an event known to have exposed firefighters to carcinogens
- any relevant records, employer data and/or local knowledge
They may directly contact the organisation that engaged you for this information.
The Advisory Committee will provide its expert opinion to the Agent within 60 days from receiving the application.
When the Agent has received the expert opinion, they will reassess your claim and make a decision to accept or reject your claim. It may take up to 10 days for the Agent to get back to you with a decision, which will also include a copy of the expert opinion.
If your special consideration application is rejected
If your application is not accepted, you can dispute the decision. Details on how to do this will be provided in your decision letter.
What workers (excluding volunteer firefighters) can do if they're not eligible
If you are not eligible under the presumptive rights legislation, your Agent will determine whether you qualify for compensation under the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act) and let you know of the outcome.
What volunteer firefighters can do if they're not eligible
If your claim isn't accepted, it will be because you don't meet the requirements to be considered a 'worker' under the WIRC Act. However there are still options available for you to apply for compensation.
Country Fire Authority (CFA) volunteer firefighters can apply for compensation under the CFA compensation scheme. You can find more information on the CFA website.
Making a claim
How to make a claim
You can submit the Worker's injury claim form to the organisation that engaged you as a worker.
The organisation will then provide your completed form to its WorkSafe Agent who will review the information and determine whether you meet the requirements of the FPRC Act.
If you are a career firefighter and meet the requirements, the Agent will accept your claim. If you are a volunteer or forest firefighter or a vehicle and equipment maintenance worker and meet the requirements, the Agent will refer your claim to an Advisory Committee to determine whether you have attended fires to the extent reasonably necessary to meet the requirements of the FPRC Act.
The Advisory Committee has been established to provide the Agent with an expert opinion on your claim.
Information about making a claim
What does the Advisory Committee look for
The Advisory Committee will consider relevant records, employer data and local knowledge.
Make sure to include this information in your claim where possible.
You will also have the opportunity to provide further information directly to the Advisory Committee if needed.
The Advisory Committee will provide its expert opinion to the Agent within 10 days of receiving the request.
Once the Agent has received the expert opinion, they will assess your compensation claim and make a decision to accept or reject your claim.
How to lodge a claim if you were previously rejected under the existing scheme
If a person injured on or after 1 June 2016 had a claim rejected under the existing workers' or volunteers' compensation schemes, it can be re-lodged for consideration under the presumptive rights scheme.
Compensation entitlements to be paid
People who qualify for compensation under the presumptive rights scheme will be entitled to the relevant volunteer compensation or workers’ compensation benefits provided by WorkSafe.
Need more help
We want to make things as easy as possible for you during this difficult and distressing time. If you have any questions about this process, please contact the WorkSafe Advisory Service or the Agent.
WorkSafe Advisory
WorkSafe's advisory service is available between 7:30am and 6:30pm Monday to Friday. If you need more support, you can also contact WorkSafe using the Translating and Interpreting Service (TIS National) or the National Relay Service.
