|Victoria, New South Wales and Western Australia||Although workers compensation legislation is silent on accruing annual leave, case law has determined that State workers compensation laws ‘permit’ an entitlement if they do not expressly prevent or prohibit it (see Anglican Care v NSW Nurses and Midwives’ Association  FCAFC 81).|
|Queensland||A worker continues to accrue annual, sick and long service leave while absent from work in receipt of workers’ compensation. See section 119A of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).|
|South Australia||A worker may continue to accrue annual leave while absent from work in receipt of workers’ compensation if they are entitled to under a relevant award or industrial instrument.
If they do not have that entitlement, they may be entitled to the monetary value of the annual leave that would have accrued had they not been absent from work. See section 50 of the Return to Work Act 2014 (SA).
|Tasmania||A worker continues to accrue sick, annual, and long service leave while absent from work in receipt of workers’ compensation. See sections 84A and 84B of the Workers Rehabilitation and Compensation Act 1988 (Tas).|
Note: The provisions of workers compensation legislation only apply insofar as they are not inconsistent with an Industrial Act or industrial instrument.
In the case of Leonard v State of Queensland (Queensland Health) & Anor  QIRC 207, the provisions of the Industrial Relations Act 2016 (Qld) were somewhat inconsistent with the above, in that workers were not entitled to accrue leave entitlements for periods of unpaid absences exceeding 3 months.
The worker commenced a period of workers’ compensation leave which was backdated by approximately seven months by WorkCover Queensland. He notified the Commission of a dispute with his employer after it did not attribute any accrued annual or sick leave to his employment while he was absent (on its understanding that the worker was absent without pay).
The Queensland Industrial Relations Commission found the worker was entitled to accrue annual and sick leave while he was absent from work, in receipt of workers’ compensation payments.
The employer tried to argue the employee was unpaid because they did not receive wages while absent on workers compensation. The Commission rejected this argument, noting an employer’s obligation with respect to an employee is not limited to the payment of wages – payments are made pursuant to a legal obligation on the employer to provide insurance to the worker.
In considering Queensland’s applicable workers compensation and industrial legislation the Commission noted that, so long as a worker remains in employment with the employer during their absence, the period of absence counts towards service, and a worker is not ‘absent without pay’ if they are paid workers’ compensation payments.
Lessons for employers
- An absence from work while in receipt of workers compensation payments is not an unpaid absence for the purposes of interpreting the FW Act, and applicable workers compensation and industrial legislation.
- Periods of absences while receiving workers compensation payments also count towards an employee’s continuous service. In Workpac Pty Ltd v Bambach  FWAFB 3206, the employer was unsuccessful in raising a jurisdictional objection to its workers unfair dismissal claim, on the basis that he had not worked for the minimum qualifying period.
Written by Nes Demir
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