Presumptive rights compensation

Presumptive rights explained

Presumptive rights mean in certain circumstances a worker diagnosed with a specified type of cancer has an entitlement to compensation. This is because the specified cancer is presumed to be due to the nature of their employment. The presumptive right applies unless there is information which proves otherwise.

The following people may have a presumptive right to compensation.

• Career and volunteer firefighters engaged by Fire Rescue Victoria (FRV) or the Country Fire Authority (CFA).
• Vehicle and equipment maintenance (VEM) workers engaged by FRV and the CFA.
• Occupational forest firefighters employed by Forest Fire Management Victoria agencies.
• Surge forest firefighters employed by Forest Fire Management Victoria agencies.

Calculating the qualifying period

The qualifying period is the length of employment. To determine if the relevant qualifying period is met, multiple different periods of employment can be combined. A partial year of service counts as a full year. Previous service as a career or volunteer firefighter, a VEM worker or a forest firefighter counts toward the qualifying period. Concurrent periods of employment or service can’t be counted twice.

Specified cancers and relevant qualifying periods

The following table lists the 15 specified types of cancers and the qualifying period for each cancer.

Special consideration

If you don’t meet the relevant qualifying period, you can apply for special consideration.

To be entitled to special consideration and receive the presumption, you must meet both the following criteria.

• You meet all the requirements under the Firefighters' Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019 or the Forest Amendment (Forest Firefighters Presumptive Rights Compensation) Act 2021 (the presumptive legislation) except the qualifying period.
• You were involved in an exceptional exposure event during your service as a firefighter in a firefighting capacity or as a VEM worker while attending a fire to repair and maintain firefighting vehicles and equipment.

An application for special consideration must be made in writing and include relevant supporting information. You can apply at any of the following times:

• when you submit the claim
• while the claim is being determined
• within 60 days after your claim has been rejected.

The agent must get an opinion from the advisory committee to determine if special consideration can be granted.

An application for special consideration can only be considered by the advisory committee if the firefighter’s or VEM worker’s claim under the Workplace Injury Rehabilitation Act 2013 (the WIRC Act) has been rejected.

The advisory committee will provide an expert opinion about whether you’ve attended an exceptional exposure event.

The presumptive legislation doesn’t define an exceptional exposure event.

To determine this, the advisory committee must consider the following factors

• The nature of the event.
• Any relevant findings from a coroner, court proceedings or official inquiry about an event known to have exposed firefighters to carcinogens.
• Relevant records, employer data or local knowledge.
• Any other matters prescribed by the regulations.

The advisory committee may directly contact the organisation that engaged you for this information. You’ll also have an opportunity to give the advisory committee further information if needed.

The advisory committee will provide its expert opinion to the agent within 60 days from receipt.

When the agent receives and reviews the advisory committee’s opinion, they will re-assess your claim and make a decision. It may take up to 10 days for the agent to let you know their decision in writing. This will also include a copy of the advisory committee’s opinion.

Entitlement

Eligible people are entitled to the relevant workers’ compensation benefits in line with the WIRC Act.

How to make a claim

Fill out a ‘Worker's injury claim form’ and give it to the organisation that engaged you as a worker.

The organisation will then send your completed form to its WorkSafe agent. The agent will review the information and determine whether you meet the requirements under the presumptive legislation.

Adverse decisions

If your claim is rejected

If your claim is rejected and you have submitted your application for special consideration, the Agent will seek advice about your application from the Advisory Committee. For more details, see the ‘Special consideration’ information.

If your special consideration application is rejected

If your application is rejected, you can dispute the decision. Dispute resolution information is included in your decision letter.

If you’re not eligible

Workers (excluding volunteer firefighters)

If you’re ineligible under the presumptive rights legislation, your agent will determine if you qualify for compensation under the WIRC Act.

Volunteer firefighters

If your claim is rejected because you don't meet the requirements to be considered a 'worker' under the WIRC Act, there may be other options available for you to apply for compensation.

CFA volunteer firefighters can apply for compensation under the CFA compensation scheme. You can find more information on the CFA website.

If your claim has already been rejected under the existing scheme

If you were injured on or after 1 June 2016 and have had a claim rejected under the existing workers' or volunteers' compensation schemes, you may be able to make a new claim under the presumptive rights scheme.

Getting help

If you have any questions about this process, contact WorkSafe Advisory or the organisation’s agent.