Presumptive legislation: Who is left behind when the law draws the line?

Yet Simon could not access the presumptive rights available to eligible firefighters, because his technical role did not fall within the scheme’s definition of an eligible firefighter.

Instead, he had to establish his entitlement through the ordinary WorkCover process. His initial claim was rejected. As his health deteriorated, he and his family gathered years of photographs, payslips, call-out records and other evidence to establish his workplace exposures. His claim was ultimately accepted, but the process consumed precious time he wanted to spend with his family.

Simon died on 12 May 2025, aged 56. Until his final days, he advocated for the legislation to be expanded to protect other CFA employees in similar roles.

His experience raises a question that deserves closer attention from lawyers and policymakers: Are Victoria’s presumptive frameworks adequately identifying the workers they are intended to protect?

The significance of the presumption

Presumptive legislation recognises the particular challenges of occupational disease claims. Unlike an injury arising from a single incident, an occupational disease may develop decades after exposure. Records may be missing, witnesses unavailable and medical causation difficult to establish.

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Where statutory requirements are satisfied, a presumption can change the evidentiary burden by treating a specified disease as work-related, unless there is evidence proving otherwise.

However, the protection is not universal. Eligibility depends on the relevant scheme’s definitions, prescribed diseases and qualifying criteria. In Victoria, the scheme covers career and volunteer firefighters, vehicle and equipment maintenance workers and forest firefighters, with a qualifying period of 25 years for oesophageal cancer. Professional, technical and administrative CFA staff are not included.

Simon’s case illustrates how a worker’s formal role can become decisive, even where their duties bring them into contact with the hazards the legislation seeks to address.

This does not mean every worker should automatically qualify for presumptive rights. Such schemes require evidence-based boundaries. But those boundaries should reflect the realities of workplace exposure, not simply the labels attached to particular jobs.

When statutory definitions meet workplace reality

In Simon’s case, the distinction between his technical role and an eligible firefighter meant he could not rely on the same presumption, despite attending major fire incidents. The consequence was that he had to establish his claim through a more demanding evidentiary process while living with terminal cancer.

For lawyers, this highlights an important issue: when advising workers with occupational disease, it is not enough to identify the diagnosis and exposure. We must also carefully examine the statutory definitions and eligibility requirements that determine which compensation pathway is available.

For policymakers, the question is whether those definitions adequately account for workers who perform different roles but encounter comparable occupational hazards.

Keeping the law responsive

Medical understanding of occupational disease evolves, and workplace roles change. Presumptive frameworks therefore require ongoing scrutiny to ensure their coverage remains supported by contemporary evidence. Victoria’s own scheme has already been expanded, with cervical, ovarian and uterine cancers added to the original list of 12.

In my view, there are three questions worth considering.

• First, should eligibility be reviewed where workers outside a scheme perform duties that expose them to hazards comparable to those encountered by covered workers?
• Second, is there a transparent process for reviewing prescribed diseases and eligibility criteria as medical and scientific evidence develops?
• Third, can workers who fall outside a presumption access a fair and practical alternative pathway to compensation?

These questions do not suggest that every claim should be presumed to be work-related. Rather, they recognise that the scope of a presumption should be justified by evidence and reviewed when circumstances warrant it.

The lesson for Victorian compensation law

Simon’s claim was ultimately accepted, but that outcome does not remove the question his experience raised. A worker should not have to fit an outdated or overly narrow understanding of a job title before their exposure can be properly recognised.

Presumptive legislation can provide vital protection. Its effectiveness, however, depends not only on the rights it creates, but also on whether its boundaries remain appropriate.

Simon spent his final days trying to make the process easier for those who would come after him. His experience should prompt continued examination of whether Victoria’s presumptive frameworks adequately reflect the realities of occupational exposure.

For lawyers, the challenge is to identify where statutory definitions may leave workers exposed to unnecessary evidentiary burdens. For policymakers, it is to ensure that those definitions remain fair, evidence-based and responsive to change.

The question is not whether presumptive legislation should have boundaries. It is whether those boundaries are drawn in the right place.

Ross Sottile is an associate at Maurice Blackburn.