We receive enquiries from injured workers about whether their leave entitlements will be affected by workers compensation payments. We also receive enquiries about whether workers compensation payments will be affected by leave entitlements. These are important issues and all workers should be aware of their workplace rights. This article is specific to injured workers in New South Wales.
Weekly compensation payable despite holiday pay etc.
Section 49 of the Workers Compensation Act (NSW) 1987 includes that compensation is still payable to an injured worker in respect of a period of incapacity for work. This is even though the worker is entitled to receive in respect of the period, an allowance or benefit for holidays, annual holidays or long service leave.
The legislation includes that if a worker has been paid an allowance or benefit for holidays etc. then the amount of compensation so payable is the amount which would have been payable to the worker had the worker not received or been entitled to receive the payment, allowance or benefit.
Therefore, if an injured worker has already received annual leave for a period of incapacity, they can still receive weekly payments under the workers compensation scheme for this period if the insurer has accepted liability. An injured worker can also take annual leave whilst being paid workers compensation.
Annual Leave and Long Service Leave Accrual
If you are absent from work and are receiving workers compensation payments you can continue to accrue annual leave and long service leave entitlements.
Annual Leave Accrual
In NSW Nurses & Midwives Association v Anglican Care  FCCA the court found that Section 49 of the Workers Compensation Act “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”.
Long Service Leave Accrual
Generally, Under the Long Service Leave Act 1955 (NSW), an employee continues to accrue long service leave during any absence on workers compensation. The Act applies to all NSW private sector workers, except those workers covered by a federal award or enterprise agreement, which provides for long service leave.
In New South Wales, the injured worker being paid workers compensation payments can take sick pay if the sick pay is higher than the workers compensation weekly payment. The sick pay in this scenario is the difference between the sick pay and the workers compensation amount.
For employees that are under the New South Wales workers compensation scheme, sick leave cannot accumulate during workers compensation. However, for Commonwealth employees sick leave can accumulate for 45 weeks only.