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United Firefighters Union of Australia
Response to the Department of Employment and Workplace Relations Stakeholder
Consultation Issues Paper: Presumptive Workers’ Compensation Provisions for First
Responders
Introductory Remarks
1. The United Firefighters Union of Australia (UFUA) is the federal representative of
career firefighters and workers employed in fire services throughout Australia.
2. The UFUA represents approximately 10,000 members across the states and
territories of Australia and in aviation.
3. The Department of Employment and Workplace Relations (Department) is seeking
stakeholder views on a proposed amendment to the Safety, Rehabilitation and
Compensation Act 1988 (Cth) (SRC Act) to introduce presumptive provisions in
relation to Post-Traumatic Stress Disorder (PTSD) injuries obtained in the course of
work by first responders, including firefighters.
4. The UFUA became aware that the Department was seeking feedback from relevant
stakeholders including firefighters and their representative union by email on the
afternoon of 8 November 2022.
5. A consequence of the UFUA’s late notification of the Department’s call for feedback
was that this call came at a time when important changes were being proposed to the
SRC Act with respect to the presumptive liability provisions for members of the ACT
Fire and Rescue Service for certain types of cancer. This meant that the UFUA twice
had to request a two-week extension of time to provide its feedback.
6. This also meant that the UFUA considers itself well informed on the issues arising
out of presumptive legislation for firefighters.
7. With respect to the amendments proposed by the Department, the UFUA made
submissions on 20 June 2018 to Senate Standing Committee on Education and
Employment: Inquiry into the Role of Commonwealth, State and Territory
Governments in Addressing the High Rates of Mental Conditions Experienced by
First Responders, Emergency Service Workers and Volunteers (2018 Inquiry). The
UFUA repeats and relies upon those submissions in full, which are annexed to this
position paper.
Executive Summary
8. Following one of the recommendations of the 2018 Inquiry the Department is
presently seeking stakeholder views on a proposal to amend the SRC Act to
introduce presumptive provisions in relation to PTSD injuries.
9. In particular, the Department is seeking comment on the scope of the proposal and
any potential implementation issues (Scope and Definition Question).
10. The Department is also particularly interested in better understanding stakeholder
experience with PTSD injuries in the workplace to make sure the proposed
provisions are fit for purpose (Fit for Purpose Question).
11. The UFUA’s primary position with respect to presumptive legislation, both in the case
of first-responder mental health and cancer-causing workplaces, is that the integrity
of any legislative scheme that seeks to streamline claims processing and reduce
litigated outcomes by introducing a legal presumption, requires that the relevant legal
presumption is supported by the evidence (including scientific research and findings).
12. The UFUA also notes that presumptive legislation is but one part of a multi-faceted
approach to improving first-responder mental health.
13. This position informs the UFUA’s position with respect to both the Scope and
Definition Question as well as the Fit for Purpose Question.
14. For this reason the UFUA considers that any definition of first responder for the
purpose of the presumptive provisions must be supported by the evidence, as a
category of worker repeatedly exposed to trauma such that they have a heightened
risk of PTSD injury and related or similar mental-health injuries.
15. The UFUA also considers that the legislation must be harmonious with other
workplace mental-health wellness programs.
16. In this context the UFUA welcomes a proposal which will make the claims process
more streamlined and less adversarial but expresses caution about introducing a
financial-incentive for any one particular type of mental-health diagnosis over any
other.
2018 Inquiry
17. The UFUA provided detailed submissions to the 2018 Inquiry, a copy of which is
annexed to this position paper and marked “Annexure A”.
18. The UFUA also invited recognised international experts from the International
Association of Firefighters and the Canadian Association of Fire Chiefs to provide
submissions to the 2018 Inquiry. These submissions were made by Alex Forrest and
Ken Block, which are annexed and marked Annexures “B” and “C” respectively.
19. The UFUA submissions to the 2018 Inquiry were supported by five supporting
documents included as attachments to that submission. Those attachments included
a scientific research paper and two relevant reports germane to the issue of mental
health amongst our members:
a. Samuel B Harvey et al, ‘The mental health of fire-fighters: An examination of
the impact of repeated trauma exposure’, (2016) 50(7) Australian & New
Zealand Journal of Psychiatry 649;
b. The University of Adelaide Centre for Traumatic Stress Studies, MFS Health
& Wellbeing Study (Report, 3 July 2017); and
c. Beth Cook and William Mitchell, Centre of Full Employment and Equity,
Occupational health effects for firefighters: The extent and implications of
physical and psychological injuries (Report prepared for the United
Firefighters Union of Australia, Victorian Branch, January 2013).
20. Those attachments have been annexed to this position paper and marked
Annexures “D”, “E” and “F” respectively.
Relevant Principles
21. The UFUA considers that best practice in the field of the management of mental
health for firefighters and other first responders is an approach that is voluntary,
confidential and non-punitive.
22. This is supported by the experience of successful mental health approaches in
Canada1 and the United States.2
23. Presumptive legislation for the purposes of accessing workers compensation is an
important aspect of any mental health approach that seeks to apply voluntary,
confidential and non-punitive principles. This is because:
a. it removes a barrier to accessing treatment in the form of the need to identify
a particular incident that was the single cause of a mental health injury;
1 Ken G Block, Submission No 49 to the Senate Standing Committee on Education and Employment
Inquiry into the Role of Commonwealth, State and Territory Governments in Addressing the High
Rates of Mental Conditions Experienced by First Responders, Emergency Service Workers and
Volunteers (2018) 6.
2 Alex Forrest, Submission No 50 to the Senate Standing Committee on Education and Employment
Inquiry into the Role of Commonwealth, State and Territory Governments in Addressing the High
Rates of Mental Conditions Experienced by First Responders, Emergency Service Workers and
Volunteers (15 June 2018) 5–6.
b. it removes any fault-based arguments and/or processes that are harmful to
the treatment of a PTSD injury that a workers compensation claim may
otherwise involve;
c. it lessens the likelihood of protracted litigation arising from making a claim for
workers compensation; and
d. it may assist in removing any stigma that may attach to making a claim for
workers compensation.
24. In particular, presumptive legislation addresses a real hardship experienced by
firefighters which is the requirement to identify and prove a single incident that gave
rise to the psychological injury.
25. This is because the evidence establishes that PTSD injuries and other mental health
injuries often arise from repeated trauma exposure. As one study concluded:
“Cumulative trauma
exposure appears to
be a key risk factor for
mental disorder
among [firefighters]
with increasing rates
of PTSD, depression
and heavy drinking
with each additional
traumatic exposure”3
(see eg Figure 2
opposite, taken from Harvey et al, at 655).
26. Having regard to the observed correlation between accumulated trauma exposure
and risk of mental-health injury, presumptive legislation for first responders is
welcomed by the UFUA.
Scope and Definition Question
Definition of ‘first responder’
27. The Department has sought stakeholder views on the appropriate definition of “first
responder”.
28. We understand that the view ultimately taken by the Department on this question will
determine the scope of coverage of the presumptive provisions which the
Department will recommend be inserted into the Safety, Rehabilitation and
Compensation Act 1988 (Cth) (SRC Act).
29. The view of the UFUA is that as such, “first responder”, should be confined to those
persons who are exposed to repeated instances of evident trauma such that there is
a robust argument for a legal presumption.
30. The UFUA knows from the instructions it has received from its members and from
countless relevant studies that that is the case for professional firefighters. Moreover,
there already exists ample evidence—including the material annexed to this position
paper—to support such a presumption for professional firefighters.
31. From the evidence that we have around professional firefighters, we believe a similar
robust argument for a legal presumption could also be made with respect to:
a. ambulance officers;
b. paramedics; and
3 Harvey et al, at 657.
c. certain police officers (those who repeatedly attend the scene of an
emergency or similar types of traumatic incident).
32. For which reason we support the inclusion of career firefighters, ambulance officers,
paramedics and front-line police officers into the definition of first responders.
33. With respect to any further expansion of the definition of first responder, we do not
oppose a further expansion of the definition of first responder per se. But we would
strongly oppose any expansion of the definition that was not supported by robust
evidence.
34. We have not seen evidence that volunteer emergency service workers and volunteer
firefighters are exposed to the same repeated trauma that career firefighters are
exposed to, nor evidence that volunteers experience elevated levels of mental-health
injury as a result of their volunteer work.
35. With respect to Emergency Communications Officers employed within ACT Fire and
Rescue command, reliable data is not yet available concerning exposure to traumatic
events. This is attributable to:
a. the positions having only been recently created, with the first cohort of 6
commencing employment in April 2021;
b. significant turnover of staff; and
c. the size of the cohort, with no more than 12 having been employed at any
time.
36. It is understood that the ACT Government presently applies a presumptive approach
to PTSD-injury claims for this cohort through an administrative arrangement. Pending
further analysis of this cohort, we recommend that the arrangement continue, and
that the employing authority (Emergency Services Agency) provide details of how it
monitors exposure to traumatic incidents for this cohort as well as for ambulance
call-takers and dispatchers.
Qualifying period
37. Having regard to:
a. the observed linear correlation between the cumulative number of traumatic
incidents attended by first responders across all years of service and rising
risk of mental-health injury;4 and
b. the significantly greater odds of suffering from probable PTSD and depression
by firefighters who had attended more than 21 fatal incidents compared to
those who had attended 1–5 fatal incidents,5
we consider that the introduction of a qualifying period into the proposed legislative
changes may be appropriate.
38. The length of that qualifying period would have to be determined with reference to
the evidence.
39. Such an appropriate qualifying period would not unfairly prejudice first responders
who suffered a mental-health injury after attending a single traumatic incident or a
few traumatic incidents as the evidentiary burden to prove that that specific incident
or those specific incidents were the cause would not be any greater than for any
other profession.
40. This can be contrasted with the career firefighter who, over many years, has
accumulated significant “emotional luggage”6 and where the proverbial straw that
4
Harvey et al, 652.
5 Ibid.
6 Forrest, 6.
broke the camel’s back might be an incident that was relatively minor in comparison
with other incidents they had attended over the course of their career.
41. We also note that the proposed legislative amendment appears to be limited in scope
to PTSD injuries. We consider that PTSD injury is but one of many mental-health
injuries that arise in the context of repeated trauma exposure. This is an issue we will
address in the next question.
Fit for Purpose Question
42. The 2018 Inquiry produced a report, that recommended, amongst other things:
“the Commonwealth Government establish a national stakeholder working group,
reporting to the COAG Council of Attorneys General, to assess the benefits of a
coordinated, national approach to presumptive legislation covering PTSD and
other psychological injuries in first responder and emergency service
agencies.”
(our emphasis)
43. Noting the principle of best practice approaches to mental health are “voluntary,
confidential and non-punitive” the UFUA considers that presumptive legislation for
PTSD injuries benefits an early intervention approach that is voluntary and
non-punitive.
44. However, the UFUA notes that the evidence suggests that, in addition to PTSD
injuries, repeat trauma also give rise to increased risk of depression and hazardous
alcohol consumption,7 amongst other types of psychological injury.8
45. Where the evidence supports it, the UFUA considers that other mental-health injuries
that arise in cases of repeat exposure to trauma should be included in the
presumptive legislation.
46. We consider that such an approach should be harmonious with mental-health
wellness programs implemented in each jurisdiction and by each employer that might
include other early intervention approaches such as firefighter training in
peer-support programs and access to psychologists and professional counselling.
47. In the context of such a best-practice wellness approach we note with caution and
concern the possibility that a legislative scheme that introduces a financial incentive
favouring one type of mental-health injury diagnosis (PTSD) over another
(depression, alcohol disorder, etc) may produce harmful outcomes for the welfare of
our members.
Conclusion
48. The UFUA welcomes the proposed introduction of presumptive legislation for first
responders suffering PTSD injuries in the line of their work.
49. The UFUA considers that maintaining the integrity of any such presumptive regime is
important to its effective functioning and this means that the legal presumption must
find support in the evidence available to the legislature.
50. If a legal presumption has no basis in fact, then this will simply incentivise insurers to
arm themselves with efficient systems and information-gathering processes to deny
claims.
51. For this reason the UFUA considers that at present the definition of first responder
should be confined to those presently identified:
7 Harvey et al, 651.
8 Beth Cook and William Mitchell, 36.
a. firefighters;
b. ambulance officers;
c. paramedics; and
d. police officers,
who attend the scene of an emergency.
52. If, for policy reasons (including recruitment and retention concerns), employers
wished to extend the scope of the workers compensation cover available to
volunteers or broader categories of employees, we say they could do so using
various policy tools without requiring a legislative amendment. For example, the
internal administrative arrangements such as the ACT Emergency Services Agency
currently use in their workers compensation scheme to allow emergency services
workers to make PTSD-injury claims on a de facto presumptive basis.
53. We welcome employers and insurers taking such non-adversarial, non-harmful
administrative and policy approaches to PTSD-injury claims.
54. The UFUA says such policy reasons, which may well be sound, should not be
conflated with the evidentiary underpinnings of presumptive legislation and do not
provide a reason to expand the definition of ‘first responder’ to persons such as
volunteers or officers not on the front line (such as investigators or triple-zero
operators).
55. The UFUA wishes to emphasis the importance of maintaining integrity of the scheme.
We recognise that there may be a temptation amongst policy-makers to be generous
in extending scope of the presumption, but the (unseen) risk from such an approach
is that a legal presumption that is not supported by evidence will be more likely to be
subject to a rebuttal and increased litigation, to the detriment of all.
56. The UFUA also reiterates that the way that workers compensation claims are
processed can only be but one part of the approach to mental-health wellness and it
must be consistent with other early intervention approaches that may be applied by
workplaces.
Greg McConville
National Secretary, United Firefighters Union of Australia
6 December 2022