PFAS Chemicals and Coal Mine Workers

In 2018, the New South Wales Parliament passed the Workers Compensation Legislation Amendment (Firefighters) Bill.  This was passed by the Parliament on 22 November 2018 and enables eligible firefighters diagnosed with any of 12 specific primary cancers, and who meet the corresponding minimum qualifying periods of service, to automatically be presumed to have developed the cancer because of their firefighting work or volunteer service.

The presumption applies to paid, volunteer, current and former firefighters from a range of organisations including Fire and Rescue NSW, NSW Rural Fire Service, Forestry Corporation of NSW and the Office of Environment and Heritage.

The 12 specified primary cancers can be found on the SIRA website: https://www.sira.nsw.gov.au/fraud-and-regulation/reforms/workers-compensation-reforms-for-firefighters2

Many of our clients working in the coal mining industry have performed training exercises and Fire Rescue exercises with NSW Mines Rescue.  NSW Mines Rescue has been an integral part of the emergency services arrangements in New South Wales since the enactment of the Mines Rescue Act in 1925.

The specialist first respondents, known as ‘Brigadesmen’ are bona fide firefighters and rescue workers and have responded to many fire incidents in underground coal mines.

Live fire training was also conducted approximately weekly (both indoors and outdoors) at the Mines Rescue stations over many decades. Brigadesmen and their instructors were regularly exposed to a range of known or suspected Carcinogens including Aqueous Film Forming Foam (AFFF).  A small number of former workers had decades of exposure and have now developed cancer.  As mentioned above, in 2018, legislation was passed to recognise the presumptive rights of firefighters.  However, it was not recognised at that time that the New South Wales Mines Rescue employed firefighters.

In October 2021, a petition was put before the New South Wales Parliament that the Workers Compensation Act 1987 be amended to include the New South Wales Mines Rescue (subsequently known as Coal Services since 2001), so that Mines Rescue firefighters diagnosed with one or more of the listed cancers who have met the requisite years of service would have their cancer presumed to be an occupational disease and as a result, they would have grounds to claim compensation without needing to go to excessive lengths to prove a direct cause of the disease.

This petition was put in October 2021 and a response received by the Honourable Victor Dominello on 16 November 2021.

The response confirmed that the amendments made under Section 19A of the Workers Compensation Act 1987 provide that eligible firefighter diagnose with any of 12 specific cancers, and who meet the corresponding minimum qualifying periods of service, are presumed to have contracted the cancer in the course of their employment or voluntary service.  The presumption does not create a new entitlement to workers compensation, rather, it is intended to make it easier for workers who are diagnosed with cancer, often many years or decades after exposure, to make a claim.

Eligible firefighters must have engaged in firefighting activities and being employed by one of the five firefighting bodies or agencies prescribed by the Workers Compensation Regulations 2016.  NSW Mines Rescue is not currently a prescribed body on that list.

Mr Dominello MP advised that the Workers Compensation Regulation 2016 is subject to statutory repeal and is planned to be remade in 2022.  As part of the regulation remake, consideration will be given as to whether NSW Mines Rescue should be added to the list of prescribed bodies/agencies.  The State Insurance Regulatory Authority (SIRA) will undertake public consultation on the regulation remake and information will be added to their website as it becomes available.

We now await the outcome as to whether those amendments will be made affording mine workers who have participated in firefighting activities to gain easy access to compensation for cancers known to be connected to exposure to the firefighting foam.