Employment Law Update
Court rules NSW employees entitled to accrue annual leave whilst absent from work on workers compensation

December 2014

Download PDF

The issue of accrual of annual leave whilst on workers’ compensation was the subject of a recent decision of the Federal Circuit Court.

The outcome of the case was that NSW employees on workers’ compensation are entitled to accrue annual leave under the Fair Work Act 2009 (Cth) (FW Act).

The employee (an aged care worker) was on workers’ compensation payments from December 2009 until her employment ended in May 2011. Her employer (Anglican Care) was ordered to pay her approximately $3,000 after the Court found the Workers Compensation Act 1987 (NSW) (WC Act) “permitted” the accrual of annual leave under section 130(2) of the FW Act.

Under section 49 of the WC Act, a worker is paid compensation even if he/she is entitled to receive a “…payment, allowance or benefit for …annual holidays”.

The Judge said that while the WC Act did not create a ‘right’ to receive annual leave payments while on workers’ compensation, it provided the ‘opportunity’ for a worker to receive both benefits.

However, we should point out that this is a situation that will be reversed if the Senate passes the government’s proposed amendments to the federal legislation.  Currently there is a Bill (the Fair Work Amendment Bill) which has been passed in the House of Representatives on 27 August 2014, but which is stalled in the Senate at present.

For further information, please contact:

Seamus Burke | Partner
P: +61 2 4926 1733

This document contains information only and should not be relied upon by anyone as constituting legal advice