Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW)

Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 No 83 An Act to continue the special compensation scheme for bush fire fighters, emergency service workers and rescue association workers; and for other purposes. Part 1 Preliminary 1 Name of Act This Act may be cited as the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987. 2 Commencement (1) Sections 1 and 2 shall commence on the date of assent to this Act. (2) Except as provided by subsection (1), this Act shall commence on such day as may be appointed by the Governor and notified by proclamation published in the Gazette. (3) The day referred to in subsection (2) shall not be earlier than the day appointed for the repeal of Parts 2A and 2B of the Workers' Compensation Act 1926. 3 Definitions (1) In this Act— Principal Act means the Workers Compensation Act 1987. regulations means regulations made under this Act. Self Insurance Corporation means the NSW Self Insurance Corporation constituted by the NSW Self Insurance Corporation Act 2004. the 1998 Act means the Workplace Injury Management and Workers Compensation Act 1998. (2) Expressions used in this Act have the same meanings as they have in the Principal Act unless a contrary intention appears. (3) In this Act— (a) a reference to a function includes a reference to a power, authority and duty, and (b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty. 4 Act binds Crown (1) This Act binds the Crown, not only in right of New South Wales but also, so far as the legislative power of Parliament permits, in all its other capacities. (2) Nothing in this Act renders the Crown liable to be prosecuted for an offence. Part 2 Bush fire fighters compensation Division 1 Preliminary and interpretation 5 Definitions (cf former s 17B (1)) In this Part— associated operation or work is defined by section 8. bush fire means a bush or grass fire or a fire in or at any building or a fire of any kind at which a rural fire brigade or fire fighter operates or is in attendance for the purpose of its control or suppression. fighting, in relation to a bush fire, includes any reasonable act or operation performed by a fire fighter at or about the scene of or in connection with a bush fire which is necessary for, directed towards, or incidental to, the control or suppression of the fire or the prevention of the spread of the fire, or in any other way necessarily associated with the fire. fire fighter means— (a) an official fire fighter, being the captain, deputy captain or any member of a rural fire brigade or the group captain or deputy group captain of any rural fire brigades, (b) any person who, without remuneration or reward, voluntarily and without obligation engages in fighting a bush fire— (i) with the consent of or under the authority and supervision of the captain, or deputy captain of a rural fire brigade or the group captain or deputy group captain of any rural fire brigades, or (ii) in conjunction with any civil authority, and (c) any person who, without remuneration or reward, voluntarily and without obligation engages in fighting a bush fire and who, in the opinion of the Self Insurance Corporation having regard to all the circumstances, should be deemed to be a fire fighter. injury means an injury to which this Part applies under section 7. official fire fighter means the captain, deputy captain or any member of a rural fire brigade, or the group captain or deputy group captain of any rural fire brigades. personal property damage, in relation to a fire fighter, means the destruction or loss of or damage to— (a) the clothing or personal effects on the fire fighter, or (b) the crutches, artificial members, eyes or teeth, or other artificial aids, or spectacles of the fire fighter. relevant journey is defined by section 9. rural fire brigade means any rural fire brigade formed under the Rural Fires Act 1997. 6 Operation of Part outside the State (cf former s 17A (2)) This Part applies to and in respect of injury or destruction or loss of or damage to property sustained within the Commonwealth and its Territories but outside New South Wales by— (a) any person referred to in paragraph (a) of the definition of fire fighter in section 5, (b) any person referred to in paragraph (b) of that definition, resident in New South Wales, or (c) any person referred to in paragraph (c) of that definition, resident in New South Wales, if the bush fire referred to in that paragraph was within or partly within or, in the opinion of the Self Insurance Corporation, likely to spread to New South Wales, as though the injury, destruction, loss or damage had been sustained in New South Wales. 7 Injuries to which Part applies (cf defn of "injury" in former s 17B (1)) (1) This Part applies to personal injury received by a fire fighter— (a) arising out of or in the course of fighting a bush fire, or (b) arising out of or in the course of a relevant journey by the fire fighter in relation to a bush fire. (2) This Part also applies to personal injury received by an official fire fighter (or a person of a prescribed class) arising out of or in the course of— (a) the carrying out of an associated operation or work, or (b) a relevant journey by the official fire fighter (or the person) in relation to an associated operation or work. (3) This Part also applies to an injury being a disease which is contracted, aggravated or exacerbated or which deteriorates in the course of doing anything referred to in subsection (1) or (2) if the doing of that thing was a contributing factor. 8 Associated operation or work (cf defn of "injury" in former s 17B (1)) (1) An associated operation or work is— (a) a bush fire preventive operation, (b) preparatory work, (c) work of a prescribed kind (which may, but need not, be related to bush fire fighting, bush fire preventive operations or preparatory work), or (d) work which, in the opinion of the Self Insurance Corporation having regard to all the circumstances and the advice of the Minister administering the State Emergency Service Act 1989, should be deemed to be work of a kind to which this paragraph applies. (2) A bush fire preventive operation is— (a) the burning, ploughing or clearing of firebreaks, or (b) any other operation including (but without being limited to) the inspection of fire breaks or other works and the survey of areas for the purpose of detecting fires or ascertaining the need for precautions against outbreak of fire, carried out by a rural fire brigade for the purpose of preventing the outbreak of bush fires or of restricting the spread of bush fires should they occur. (3) Preparatory work is— (a) the training or instruction of persons, by means of demonstrations, exercises, competitions or otherwise, in the fighting of bush fires, or in the carrying out of bush fire preventive operations, or (b) the examination, preparation, maintenance, adjustment or repair of any vehicle, equipment or thing used or intended to be used by a rural fire brigade for the fighting of bush fires or for the carrying out of bush fire preventive operations, and includes the giving or receiving of such training or instruction or the carrying out of or assisting to carry out such examination, preparation, maintenance, adjustment or repair. 9 Relevant journeys (cf para (b) and (i) of defn of "injury" in former s 17B (1)) (1) A journey by a fire fighter is a relevant journey if— (a) it is a journey between the place of abode or place of employment of the fire fighter, or place from which the fire fighter was called, and a bush fire, and (b) it is made exclusively and genuinely for the purpose of engaging in fighting a bush fire. (2) A journey by an official fire fighter is a relevant journey if it is a journey under subsection (1) or if— (a) it is a journey between the place of abode or place of employment of the official fire fighter, or place from which the official fire fighter was called, and the place where any associated operation or work was or is to be carried out, and (b) it is made exclusively and genuinely for the purpose of engaging in the carrying out of the operation or work. Division 2 Entitlement to compensation 10 Compensation payable for injury or death (cf former s 17C) A fire fighter who has received an injury (and in the case of the death of the fire fighter, the fire fighter's dependants) shall be entitled to receive compensation as follows— (a) where death results from the injury—the compensation payments prescribed by the Principal Act, sections 25(1)(a) and (b) and (1A), 26 and 28, (b) where total or partial incapacity for work results from the injury—the weekly payments of compensation prescribed by Division 2 of Part 3 of the Principal Act, (c) where medical or related treatment, hospital treatment, occupational rehabilitation service or ambulance service becomes necessary as a result of the injury—the benefits prescribed by Division 3 of Part 3 of the Principal Act, (d) where the worker receives an injury mentioned in Division 4 of Part 3 of the Principal Act—the compensation prescribed by that Division (including compensation for any pain and suffering resulting from that injury). 10A Presumptions relating to certain cancers—firefighters (1) In the application of this Act to an eligible volunteer firefighter, it is presumed (unless the contrary is established) that— (a) the disease contracted by the worker was contracted in the course of fighting a bush fire, and (b) the fighting of the bush fire was a contributing factor to the disease. (2) This section applies to an official fire fighter (an eligible volunteer firefighter) who— (a) in the capacity of an official fire fighter, has at any time performed firefighting activities, and (b) has contracted a disease that is a cancer of a kind specified in Schedule 4 to the Principal Act. (3) This section does not apply to a disease contracted by an eligible volunteer firefighter if the total aggregate period during which the eligible volunteer firefighter has served as an official fire fighter as at the date of injury (the service period) is less than the qualifying service period specified for the disease in Schedule 4 to the Principal Act. (4) Any period during which an eligible volunteer firefighter has been engaged in firefighting employment is to be counted towards the service period. (5) However, any period during which the eligible volunteer firefighter concurrently performs service as an official fire fighter and engages in firefighting employment is to be counted once only. (6) For the purposes of the application of section 261 of the 1998 Act to a disease to which a presumption under this section applies, the period required by that section for the making of a claim for compensation in respect of the disease is taken to commence on the date of injury in relation to the disease (regardless of when the eligible volunteer firefighter or any other person first became aware of the disease). (7) In this section— date of injury, in relation to a disease, means the date of whichever of the following occurs first— (a) the disease is first diagnosed by a medical practitioner, (b) the official fire fighter dies as a result of the disease. firefighting activities and firefighting employment have the same meanings as in section 19A of the Principal Act. 11 Provisions relating to compensation for injury or death (1) This section applies to compensation payable under section 10. (2) If death results from the injury, the compensation prescribed by section 25 (1) (a) of the Principal Act is payable even if the fire fighter left no dependants or left only dependants in part dependent for support on the fire fighter. (2A) (Repealed) (3) If the fire fighter left no dependants, the compensation payable under subsection (2) is payable to the legal personal representative of the fire fighter. (4) The compensation payable under subsection (2) to each dependant of a fire fighter may be apportioned by the Self Insurance Corporation. (4A) The compensation payable under subsection (2) is not to be apportioned if a fire fighter leaves only one dependant (whether wholly or partly dependent on the fire fighter for support) and the whole of the compensation payable under subsection (2) is to be paid to that one dependant. (4B) In apportioning the compensation payable under subsection (2) between 2 or more dependants, the whole of the amount payable is to be apportioned among those dependants (so that the sum of the apportioned amounts equals the full amount of the compensation payable under subsection (2)). (5) In determining the weekly payments of compensation payable to a fire fighter, the fire fighter's current weekly wage rate (if less than the fire fighter's average weekly earnings) shall be increased by the amount of the difference. (6) In determining the weekly payments of compensation payable to a fire fighter— (a) the maximum weekly payment prescribed by section 35 of the Principal Act does not apply, and (b) section 40 of the Principal Act (weekly payment during partial incapacity) shall be construed as if the words "but not exceeding $1,000" were omitted from that section. (7) If a fire fighter was not working under a contract of service at the time the fire fighter received the injury, the fire fighter's "average weekly earnings" or "current weekly wage rate" for the purposes of this Part shall be such amount as the Self Insurance Corporation considers is fair and reasonable in the circumstances. (8) Compensation payable to a fire fighter or other person under this Part shall be reduced by such amount as the fire fighter or other person is entitled to or has received as compensation in respect of the same injury under Part 3 of this Act or under any provisions of the Principal Act, or under any Act or ordinance relating to workers' compensation of any State or Territory of the Commonwealth. 12 Compensation for damage etc to personal property, vehicles etc (cf former s 17D) (1) Compensation is payable under this Part in respect of— (a) personal property damage to a fire fighter while fighting a bush fire or in the course of a relevant journey by the fire fighter in relation to a bush fire, and (b) personal property damage to an official fire fighter while carrying out an associated operation or work or in the course of a relevant journey by the official fire fighter in relation to an associated operation or work. (2) Compensation is payable under this Part in respect of the destruction of, damage to or loss of— (a) any vehicle, equipment or thing used in connection with fire fighting at or near the scene of a bush fire and owned by or in the possession or custody of a fire fighter, (b) any vehicle, equipment or thing used in connection with an associated operation or work at or near the place where the operation or work was being carried out and owned by or in the possession or custody of an official fire fighter carrying out the operation or work, (c) any vehicle used for the conveyance of a fire fighter on a relevant journey in relation to a bush fire and owned by or in the possession or custody of the fire fighter, or (d) any vehicle used for the conveyance of an official fire fighter on a relevant journey in relation to an associated operation or work and owned by or in the possession or custody of the official fire fighter. 13 Provisions relating to compensation for personal property, vehicles etc (cf former s 17D) (1) The amount of the compensation payable under section 12 shall be such amount as the Self Insurance Corporation may, having regard to all the circumstances of the case, consider reasonable to indemnify the owner for the destruction, damage or loss. (2) The amount payable under section 12 shall not exceed— (a) in respect of all destruction of and damage to and loss of the crutches, artificial members, eyes, teeth, artificial aids, or spectacles of a person, sustained on any one occasion—the amount applicable under section 76 of the Principal Act in respect of damage referred to in that section, or (b) in respect of all destruction of and damage to and loss of clothing or personal effects on a person, sustained on any one occasion—the amount applicable under section 77 of the Principal Act in respect of damage referred to in that section. (3) Compensation is not payable under section 12 in respect of any loss— (a) occasioned by theft, unless the applicant has taken such action with a view to recovering the property stolen as the Self Insurance Corporation thinks reasonable, or (b) resulting from reasonable wear and tear. (4) Compensation is not payable under section 12 if the owner is entitled to adequate reimbursement under any policy of insurance or from any other source. 14 Compensation for personal property, vehicles etc—special circumstances (cf former s 17D) (1) Where, but for this section, a person would not be entitled to compensation under section 12 by reason only of the fact that the article destroyed, damaged or lost was not on the fire fighter at the time of the destruction, damage or loss, the fire fighter shall be entitled to that compensation if, at that time, the article was— (a) at or near the scene of the bush fire being fought by, or the associated operation or work being carried out by, that person (whether or not the article was in or on a vehicle), or (b) in or on a vehicle in the course of a relevant journey, and the Self Insurance Corporation is of the opinion that it was necessary or reasonable for the article to be where it was at the time of the destruction, damage or loss. (2) If the Self Insurance Corporation is satisfied that— (a) a vehicle or other thing has been destroyed or damaged, (b) in respect of that destruction or damage, a certain amount would, but for the operation of section 13 (4), have been payable as compensation under section 12, (c) that destruction or damage resulted from the act or omission of a fire fighter but was not wilfully or maliciously caused by the fire fighter, (d) at the time of the destruction or damage the fire fighter was engaged in fighting a bush fire or in associated operations or work or was in the course of a relevant journey, (e) the fire fighter is liable for, or was liable for and has paid, damages for that destruction or damage, and (f) the fire fighter is not entitled to indemnity or adequate indemnity in respect of that liability under any policy of insurance or from any other source, compensation is payable under this Part in respect of that liability or, if the fire fighter has paid damages, to reimburse the fire fighter, such amount not exceeding that referred to in paragraph (b) as the Self Insurance Corporation may, having regard to all the circumstances of the case, consider reasonable. (3) Any compensation payable under subsection (2) is payable— (a) to the fire fighter concerned, or (b) if the Self Insurance Corporation in its discretion so orders, to the person to whom the damages concerned are payable (the payment being to that extent a discharge of the liability to pay those damages). (4) For the purposes of subsection (2), a fire fighter shall be deemed to have become liable for any damages if the fire fighter has received a demand for those damages and the Self Insurance Corporation considers it to be reasonable and prudent for the fire fighter to have paid, or that there be paid, an amount in full or part satisfaction of that demand. 14A Returning to work with new employer (1) This section applies to a fire fighter who— (a) as a result of an injury received by the fire fighter, is not able to return to work with the fire fighter's pre-injury employer, and (b) accepts an offer of employment with a new employer. (2) Compensation is payable, subject to and in accordance with the regulations, to a fire fighter to whom this section applies for the cost of work assistance provided to assist the fire fighter to return to work with a new employer. (3) The maximum amount of compensation payable under this section for the injury concerned is $1,000. (4) Without limiting subsection (2), the regulations may make provision for or concerning the following— (a) limiting the classes of work assistance for which compensation is payable under this section, (b) otherwise limiting the circumstances in which compensation is payable for the cost of work assistance under this section. (5) In this section— group means a group constituted under the Principal Act, Part 7, Division 2B, but does not include a member of the group in relation to whom a determination under the Principal Act, section 175E is in force. new employer, in relation to a fire fighter, means an employer other than— (a) the pre-injury employer of the fire fighter, or (b) an employer who is a member of the same group as the pre-injury employer of the fire fighter. pre-injury employer, in relation to a fire fighter, means the employer of the fire fighter immediately before the fire fighter suffered the injury. work assistance means the provision of education or training, transport, child care, clothing, equipment or other similar service or assistance. 14B Compensation for education and training assistance (1) This section applies to a fire fighter if— (a) the injury received by the fire fighter has resulted in a degree of permanent impairment assessed for the purposes of the Principal Act, Part 3, Division 4 to be more than 20%, and (b) a weekly payment of compensation has been paid or is payable to the fire fighter under this Part for the injury for an aggregate period of more than 78 weeks. (2) Compensation is payable, subject to and in accordance with the regulations, to a fire fighter to whom this section applies for the cost of education or training provided to assist the fire fighter to return to work. (3) The maximum amount of compensation payable under this section for the injury concerned is $8,000. (4) Without limiting subsection (2), the regulations may make provision for or concerning the following— (a) limiting the classes of education or training for which compensation is payable under this section, (b) otherwise limiting the circumstances for which compensation is payable under this section. 15 Making of claims (cf former s 17C (4) (6)) (1) Claims for compensation under this Part shall be made in the manner prescribed by the Self Insurance Corporation. (2) The requirements of the 1998 Act as to the giving of notice of injury or damage to property and as to the making of claims for compensation apply (subject to the regulations) to the giving of notice of injury or damage to property and the making of claims for compensation under this Part, except that notices are to be given to, and claims made on, the Self Insurance Corporation instead of to or on the employer. (3) This section is subject to Part 3A. 16 Hearing of claims (cf former s 17BB) (1) Claims for compensation under this Part shall be decided by the Self Insurance Corporation. (2) If a claim for compensation is for a weekly payment of compensation, the Self Insurance Corporation shall, as far as is reasonably practicable, deal with the claim within 31 days after the claimant makes the claim and supplies the Self Insurance Corporation with the documentation it requires to decide the claim. (3) (Repealed) (4) A claimant dissatisfied with a decision of the Self Insurance Corporation may apply to the District Court for a determination of the claim and the Self Insurance Corporation must give effect to the determination of the Court. (5) (Repealed) (6) At a hearing before the District Court, the Self Insurance Corporation or its representative may appear before the District Court and exercise in respect of any matters and questions arising out of the application the same powers, rights and authorities as an employer may exercise in respect of a claim between a worker and employer under the Principal Act or the 1998 Act. Division 3 Miscellaneous 17 Persons supplying food or refreshments (cf former s 17BA) For the purposes of this Part— (a) a person when engaged at or about the scene of a bush fire in supplying food or refreshments to persons fighting the fire shall be deemed to be fighting the fire, and (b) any journeying or conveying of a person, if made for the purpose of his or her engaging in supplying food or refreshments to persons fighting a bush fire, shall be deemed to be made for the purpose of his or her engaging in fighting the fire. 18 Exclusion from Part—fire districts (cf former s 17A (1)) (1) In this section— fire district means a fire district constituted under the Fire and Rescue NSW Act 1989. (2) This section does not operate to exclude injury, damage, loss or destruction from this Part if it relates to a bush fire to or from which a rural fire brigade was proceeding, or at which a rural fire brigade operated or was in attendance, for the purpose of the control or suppression of the bush fire. (3) This Part does not apply to— (a) an injury received by a fire fighter arising out of or in the course of fighting a bush fire, or (b) personal property damage to a fire fighter while fighting a bush fire, if the place at which the fire fighter was fighting the bush fire was within a fire district. (4) This Part does not apply to— (a) an injury received by a fire fighter arising out of or in the course of a relevant journey, (b) personal property damage to a fire fighter in the course of a relevant journey, or (c) the destruction or loss of or damage to any vehicle used for conveying a fire fighter on a relevant journey, if the bush fire to or from which the relevant journey was made was within a fire district. (5) This Part does not apply to the destruction or loss of or damage to any vehicle, equipment or thing used in connection with fire fighting at or near the scene of a bush fire and owned by or in the possession or custody of a fire fighter if the destruction, loss or damage was sustained within a fire district. 19 Bush Fire Fighters Compensation Fund (cf former s 17E) (1) There shall be established and kept in the Special Deposits Account in the Treasury an account to be called the "Bush Fire Fighters Compensation Fund". (1A) The Bush Fire Fighters Compensation Fund is to be administered by the Self Insurance Corporation. (2) There shall be paid into the Bush Fire Fighters Compensation Fund— (a) the amounts required to be transferred to the Fund under section 20, and (b) such amounts as are appropriated by Parliament for the purposes of the Fund, and (c) the investment earnings accruing from the investment of the Fund. (3) There shall be paid from the Bush Fire Fighters Compensation Fund— (a) compensation payable under this Part, (a1) to the Minister administering the District Court Act 1973, such of the costs of operation of the District Court relating to determinations under section 16 (4), being costs incurred after 30 June 2005, as the Minister administering the District Court Act 1973 and the Minister administering this Act agree are to be paid from the Fund, (b) the costs of administration of this Part, and (c) all expenses incurred by the Self Insurance Corporation in the exercise of its functions under this Part, and (d) all expenses incurred by or on behalf of a NSW Government agency in providing services (including staff and facilities) for or in connection with the compensation scheme established under this Part, and (e) all expenses (as approved by the Minister administering Part 3 of the State Insurance and Care Governance Act 2015) incurred by the State Insurance Regulatory Authority in exercising functions in relation to that scheme. (3A) The Self Insurance Corporation may invest money in the Bush Fire Fighters Compensation Fund that is not immediately required for the Fund— (a) if the Self Insurance Corporation is a GSF agency for the purposes of Part 6 of the Government Sector Finance Act 2018—in any way that the Self Insurance Corporation is permitted to invest money under that Part, or (b) if the Self Insurance Corporation is not a GSF agency for the purposes of Part 6 of the Government Sector Finance Act 2018—in any way approved by the Minister with the concurrence of the Treasurer. (4) The Bush Fire Fighters Compensation Fund established under section 17E of the Workers' Compensation Act 1926 shall, on the commencement of this Act, be deemed to have been established under this section. 20 Assessment and payment of contributions to Fund (cf former s 17G) (1) The Self Insurance Corporation shall, as soon as is reasonably practicable in each financial year, determine whether any contribution to the Bush Fire Fighters Compensation Fund will be necessary in order to maintain that Fund on a sound financial basis during the next following financial year. (2) If the Self Insurance Corporation determines that such a contribution will be necessary, the Self Insurance Corporation shall assess the amount of the contribution. (2A) Any such assessment has no effect unless it is approved by the State Insurance Regulatory Authority. (3) The Self Insurance Corporation shall cause notice of each such determination and assessment to be given to the Minister administering the Rural Fires Act 1997. (4) On 1 July next following the notification of each such assessment, an amount as so assessed shall be transferred to the Bush Fire Fighters Compensation Fund from the New South Wales Rural Fire Fighting Fund referred to in the Rural Fires Act 1997. (5) Amounts so transferred shall, for the purposes of the Rural Fires Act 1997, be deemed to be expenditure from the New South Wales Bush Fire Fighting Fund. (6) This section has effect notwithstanding anything to the contrary in the Rural Fires Act 1997. 21 Advances by Treasurer (cf former s 17H) (1) The Treasurer may at any time pay into the Bush Fire Fighters Compensation Fund sums by way of advance to provide the Self Insurance Corporation with temporary finance. (2) Any such sum shall be refundable by the Self Insurance Corporation as soon as practicable with interest— (a) at the rate of 3 per cent per annum, or (b) if some other rate is prescribed by the regulations with the concurrence of the Treasurer—at that other rate. 22 Prohibition on increased premium under motor vehicle insurance policy for bush fire damage (cf former s 17D (3)) (1) In this section— bush fire damage means, in relation to a vehicle, damage, loss or destruction that was caused to the vehicle in such circumstances and while the vehicle was in such ownership, possession or custody that in respect of that damage, compensation under section 12 was payable, or would have been so payable but for the operation of section 13 (4). i