Injured Workers Accrue Leave

Historically the decision to accrue (or the cheaper alternative not to accrue) leave entitlements for injured workers on workers compensation has been a grey area. The resulting uncertainty for many businesses is caused by differences between various legislation. A recent Federal Circuit Court case decision provides greater clarity on this at least for NSW.

INJURED WORKERS ACCRUE LEAVE – a recent court ruling is likely to to set legal precedence for other businesses to ensure they continue to accrue leave entitlements for workers who are workers compensation. An exert fro the article below outlines this decision as follows:

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

The relevant provision of NSW Workers Compensation Act 1987 (WCA), section 49, does not expressly permit an employee to take or accrue leave during a Compensation Period.  However, it does allow workers to continue to receive payments of weekly compensation, without deduction, during periods where they are also entitled to receive paid annual leave.

Until the decision of Justice Emmett in NSW Nurses & Midwives Association –v- Anglican Care [2014] FCCA 2580, NSW employers had reasonable grounds to believe that employees were not entitled to take or accrue annual leave during a Compensation Period.

Although her Honour accepted that the WCA did not in itself create an express right to receive annual leave payments during a Compensation Period, she adopted a “beneficial construction”of Section 49 which permitted employees to accrue annual leave during a Compensation Period as required by the FWA.

Justice Emmett found that Section 49 of the WCA “expressly provides the opportunity for the worker to receive both workers compensation and accrue annual leave” and accepted “that a liberal approach to statutory interpretation is appropriate when dealing with legislation aimed at protecting the safety of workers and providing for compensation for injured workers”.

As a result of her Honour’s decision, NSW employees accrue annual leave (and potentially other leave entitlements) during a Compensation Period, and have had that entitlement since the commencement of the FWA.  This entitlement also applies to employees in other states and territories in which such “beneficial construction” is available.

For further information, please refer to:

Source: Hunt & Hunt Lawyers

Title: Leave Accruals continue whilst on workers compensation

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