Your questions answered: Can workers accrue leave while absent on workers’ compensation?

By Portner Press on October 26th, 2018
  1. Fire, Emergency & Incidents
  2. Workers' Compensation

 

Q
Can workers accrue or be paid leave while receiving workers’ compensation? Our company is based in NSW.

 

A
Whether an employee, who is absent from work and receiving workers’ compensation, is also entitled to accrue or take and receive payments for leave varies depending on the relevant jurisdiction’s workers’ compensation legislation.

Section 130 of the Fair Work Act 2009 (Cth) provides that an employee is not entitled to take or accrue any leave if they are absent from work because of illness or injury for which they are receiving workers’ compensation payments under a Commonwealth, State or Territory law unless permitted by that law to do so.

The relevant provision in NSW is section 49 of the Workers’ Compensation Act 1987, which does not expressly permit an employee to take or accrue leave while they are receiving workers’ compensation. However, it does allow employees to continue to receive payments of weekly compensation, without deduction, during periods where workers are also entitled to receive paid annual leave.

The Federal Court decision of Anglican Care v NSW Nurses and Midwives’ Association (2015) clarified the position with the view that workers’ compensation legislation ‘permits’ an entitlement if it does not expressly prevent or prohibit it. As a result of the decision, NSW employees are entitled to accrue or be paid annual leave (and potentially other leave entitlements) while receiving workers’ compensation benefits if the employee is still employed.

Learn more about workers’ compensation in chapter W1 Workers’ Compensation in the Health & Safety Handbook.

Comprising more than 70 chapters, the Handbook covers all areas of Australian health and safety law.

 

 





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