Leave accrual while on workers’ compensation

New South Wales

Payment of weekly workers compensation benefits if a worker is on paid leave is permitted - ‘Compensation is payable under this Division to a worker in respect of any period of incapacity for work even though the worker has received or is entitled to receive in respect of the period any payment, allowance or benefit for holidays, annual holidays or long service leave under any Act (Commonwealth or State), award or industrial agreement under any such Act or contract of employment’ — s49, Workers Compensation Act 1987.

Victoria

Leave provisions are not covered under workers’ compensation legislation. WorkSafe Victoria does not advise employers whether a worker is entitled to the payment or accrual of leave and refers employers and workers to the appropriate employment agreement and/or the Fair Work Act 2009 (Cth). Where weekly payments are paid or payable, regard shall not be had to any sum paid or payable in lieu of accrued annual leave or long service leave — s174(d), Workplace Injury Rehabilitation and Compensation Act 2013.

Queensland

A worker is entitled to take or accrue annual leave, sick leave and long service leave under an Industrial Act or industrial instrument while they are entitled to and receiving workers’ compensation payments — s119A, Workers’ Compensation and Rehabilitation Act 2003.

Western Australia

Compensation is payable to a worker in respect of any period of incapacity notwithstanding that the worker has received or is entitled to receive in respect of any such period any payment, allowance, or benefit for annual leave, or long service leave — s80(1), Workers’ Compensation and Injury Management Act 1981. Any sick leave payments made in lieu of workers’ compensation payments must be repaid to the employer and the sick leave entitlement reinstated for the relevant period — s80(2). The Act does not specify whether leave can be accrued whilst receiving weekly payments of compensation.

South Australia

A worker receiving weekly payments for their compensable injury may continue to accrue annual leave entitlements depending on the terms of the relevant award, industrial agreement etc. If a worker is entitled to accrue annual leave but has received weekly payments for total incapacity for a period of 52 weeks or more (continuous or separate periods) the worker’s entitlement to annual leave is considered to be satisfied in respect of a year of employment that coincides with, or ends during that period. If the worker is not entitled to continue to accrue annual leave, the worker may be entitled, by way of compensation, to the monetary value of the annual leave that would have accrued if the worker had not been absent from employment — s50.

Tasmania

When compensation is payable and the worker would be entitled to be absent from his/her employment on annual recreational leave or long service leave:

• the worker must be given a similar period of leave on pay in lieu of that annual recreational leave or long service leave within 3 months from the date of their return to work or at the termination of their right to compensation if they do not then return to work, or
• if the worker so desires, he/she may by arrangement with the employer, take the leave during the period of incapacity for which compensation is payable. The worker is then not entitled to receive weekly payments during that period of annual recreational leave or long service leave.

An employer must not attempt to cause or require a worker to take annual recreational leave or long service leave during a period of incapacity for which compensation is payable — s84. A worker is entitled to be recredited with annual recreational leave or long service leave taken whilst his/her entitlement to workers’ compensation is pending — s84B. Workers are entitled to accrue various leave entitlements whilst in receipt of weekly payments under the Workers Rehabilitation and Compensation Act 1988.

Northern Territory

The Return to Work Act 1986 is silent on the taking or accruing of leave and therefore s130 of the Fair Work Act 2009 (Cth) applies. Under this section an employee is not entitled to take or accrue any leave of absence (whether paid or unpaid) under this Part during a period (a compensation period) when the employee is absent from work because of a personal illness, or a personal injury, for which the employee is receiving compensation payable under a law (a compensation law) of the Commonwealth, a State or a Territory that is about workers’ compensation. Section 130 of the Fair Work Act 2009 (Cth) does not prevent an employee from taking unpaid parental leave during a compensation period.

Australian Capital Territory

Workers Compensation Act 1951 (s46) does not affect an entitlement to annual or long service leave accrual that arises apart from the Act. An employee’s entitlement to accrue long service leave/annual leave would be covered under their award or agreement or in some cases under the Fair Work Act 2009 (Cth), specifically under the National Employment Standards. These are administered by the Fair Work Ombudsman and therefore enquiries of this nature would be usually directed to them. In the case of a construction worker or cleaner, they may be directed to the ACT Long Service Leave Authority. If an employee was covered by the Long Service Leave Act 1976, the Act stipulates that while off work on workers’ compensation people do not accrue long service leave, however the employee’s continuity would not be broken.

C’wealth Comcare

An injured employee cannot take leave (other than maternity leave) during a period of post-determination compensation leave — s116:

• Recreation leave and sick leave accrue for the first 45 weeks of post-determination leave.
• Long service leave accrues throughout the post-determination compensation leave period (as if the employee was at work).

Post-determination compensation leave starts the day after a claim for compensation is successful under s19 or s22 of the Safety, Rehabilitation and Compensation Act 1988.

C’wealth Seacare

An injured employee cannot take leave other than maternity leave while they are on compensation leave — s137

Long service leave entitlements continue to accrue in accordance with the applicable industrial instrument or National Employment Standard — s137.

C’wealth DVA

Military Rehabilitation and Compensation Act 2004 (MRCA)/ Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA) — If incapacity payments would have continued were it not for the pregnancy/maternity leave then they should still continue during the period that is generally considered to be the period of ‘confinement’ i.e. six weeks either side of the expected/actual birth date.

New Zealand

Leave provisions are not covered under accident compensation legislation. Annual leave continues to accrue if an employee is receiving accident compensation — Holidays Act 2003 (administered by Ministry of Business, Innovation and Employment).

Effect of taking leave while on compensation

New South Wales

Section 49 of the 1987 Act does not expressly permit the taking of leave. Rather, it permits the payment of weekly workers’ compensation benefits if a worker is on paid leave.

Victoria

If the current weekly earnings of a worker are reduced because the worker is on paid annual leave or long service leave, WorkSafe Victoria or self-insurer must not, by reason only of that reduction, alter the amount of compensation in the form of weekly payments — s185(4).

Queensland

If a worker requests to take annual or long service leave and the employer approves this request, WorkCover continues to pay weekly benefits for the duration of the leave.

Western Australia

Leave payments do not affect a worker’s compensation entitlements in any way. Any leave entitlements taken by the worker will be credited back if the worker’s claim is accepted — s80 (1–3).

South Australia

If the worker applies for, and takes, annual leave their weekly payments may be suspended while the worker is on leave — s50(7).

Tasmania

Section 84 was inserted by 16 of 1995 and subsequently amended by 8 of 2007 to include long service leave.

The worker can arrange with his or her employer to take annual leave or long service leave during a period that he/she would be entitled to workers’ compensation, but would not be entitled to receive weekly payments during that leave. An employer must not attempt to cause or require a worker to take annual leave or long service leave during a period of incapacity for which compensation is payable.

Section 84B was inserted by 81 of 2004 and amended by 8 of 2007 to include long service leave.

Where a worker takes annual leave or long service leave whilst his/her entitlement to workers’ compensation is pending or in dispute and the employer is subsequently found to be liable to pay weekly payments for that period, the worker’s annual leave or long service leave is to be recredited.

Northern Territory

The Return to Work Act 1986 is silent on the taking or accruing of leave and therefore s130 of the Fair Work Act 2009 (Cth) applies. Under this section an employee is not entitled to take or accrue any leave of absence (whether paid or unpaid) under this Part during a period (a compensation period) when the employee is absent from work because of a personal illness, or a personal injury, for which the employee is receiving compensation payable under a law (a compensation law) of the Commonwealth, a State or a Territory that is about workers’ compensation. Section 130 of the Fair Work Act 2009 does not prevent an employee from taking unpaid parental leave during a compensation period.

C’wealth Comcare

s116 of the SRC Act 1988:

(1) In spite of the provisions of any other Act, or an award, an employee is not entitled to be granted any kind of leave of absence with pay (other than maternity leave with pay) during, or in respect of, any period when the employee is or was on post-determination compensation leave.

C’wealth DVA

MRCA - Nil.

DRCA – s116:

(1) In spite of the provisions of any other Act, or an award, an employee is not entitled to be granted any kind of leave of absence with pay (other than maternity leave with pay) during, or in respect of, any period when the employee is or was on post-determination compensation leave but:

• sick leave and recreation leave entitlements continue to accrue in relation to the employee during each of the first 45 weeks during which he or she is on post-determination compensation leave, and
• long service leave entitlements continue to accrue in relation to the employee during the whole of the period of the post-determination compensation leave; as if the employee were not absent from work.

Seacare

Section 137 of the Seafarers Rehabilitation and Compensation Act 1992:

Despite any other Act, or any award, an employee is not entitled to be granted any kind of leave with pay (other than maternity leave with pay) during, or in respect of, any period when the employee is or was on compensation leave, but long service leave entitlements continue to accrue in relation to the employee in accordance with the applicable industrial instrument or National Employment Standards.

New Zealand

1. A client [employee] has a period of annual leave in the 52 weeks before the commencement of his incapacity. What is the effect of that annual leave on the calculation of his weekly benefit?
   Answer: ‘Earnings as an employee’ means all payments received by the client in the 52 weeks before the commencement of the incapacity that are subject to tax deductions.
2. A client in receipt of weekly compensation has made a partial return to work and is receiving partial weekly compensation. What is the effect on his weekly compensation if he takes a period of annual leave from his employment and receives holiday pay?
   Answer: In this scenario ACC would be required to abate the full amount of the holiday pay that he received, reducing the rate of weekly compensation that he received. ACC is also required to abate the full amount of any payment that the client receives for any statutory holiday.
3. A client in receipt of full unabated weekly compensation receives holiday pay on termination of employment.

Answer: In such a situation, the holiday pay would be abated. The period over which it is abated depends on whether the holiday pay is for a specific period. If it is for a specific period (i.e. four weeks and three days), it is abated over that period.