Consider the following scenario: you sustained an injury at work, and now you are not well enough to continue working for your employer. Your employer’s workers compensation insurer has been paying you a weekly wage while you recover, but now you have just found out you are pregnant. You are probably concerned about how you will care for your child while you are injured, and whether you can afford to provide for your newest family member. You likely have many questions, including, whether you can still take maternity leave, or whether your weekly payments can continue even though you probably would have taken time off work to care for your baby anyway.
At Turner Freeman Lawyers, our experienced worker’s compensation lawyers are there to listen to your concerns, and advocate for your rights. In this blog, we hope to answer some of your questions, and help put your mind at ease.
Can I take unpaid maternity leave while on workers’ compensation?
Yes. There is nothing in the Fair Work Act 2009 (Cth) that precludes workers in receipt of weekly workers compensation payments from accessing their unpaid parental leave rights. The NSW worker’s compensation legislation is also silent on the issue. If you are eligible to take unpaid parental leave, the fact that you are on worker’s compensation does not disqualify you from taking time off to care for your newborn.
Will I still receive weekly workers’ compensation payments while on maternity leave?
In Miller v New South Wales Police Service (No.2) (‘Miller’) Deputy President Bill Roche held that “an employer’s liability does not cease because of supervening incapacity as a result of external non-work related events”. This is because, under the workers compensation legislation, a supervening event such as the taking of maternity leave is not relevant to the question of whether an employee is entitled to receive weekly payments of worker’s compensation. Instead, section 33 of the Worker’s Compensation Act 1987 (NSW) merely states that if a worker is totally or partially incapacitated because of a work injury, they are entitled to weekly payments. Thus, when determining whether a police officer was entitled to be paid worker’s compensation while he was on parental leave, the Deputy President found that the relevant question is whether, if he did not take leave, he would have still been incapacitated as a result of his work injury. In that case, taking into account the medical evidence, the answer was yes.
Adopting this authority, you are entitled to receive weekly payments of compensation if you are incapacitated due to your work injury, regardless of whether you choose to take parental leave.
If I take paid parental leave, is the amount I am paid deducted from my workers’ compensation weekly payments?
Miller was recently confirmed in Kirkbride v State of New South Wales (Ambulance Service) (‘Kirkbride‘), where it was found that not even paid parental leave affects a worker’s entitlement to worker’s compensation. The Arbitrator held that the receipt of paid maternity leave while on workers compensation is not a dual benefit under s 46 of the Act, is not earnings, and does not offend the principle of restoring a worker to their pre-injury status. Thus, if a worker takes paid parental leave, the amount he or she is paid for that leave should not be taken into account when calculating PIAWE and should not be deducted as ‘earnings’ from a worker’s weekly payments of workers compensation.
Nonetheless, it is important to note that a worker’s entitlement to paid parental leave depends on their governing workplace instrument (i.e. the employment contract, enterprise agreement or award), and/or whether they are eligible to government payments under the Parental Leave Act 2010 (Cth) (‘PLA‘). For instance, in order to be entitled to government payments under the PLA, a ‘work test’ must be met, which requires the recipient to work a certain amount of hours in the 392 days before the baby is born or the expected date of birth or the date the worker goes on maternity leave. Thus, if you cannot work before going on maternity leave, you may not be eligible to receive paid parental leave through the government scheme if you have not worked enough prior to taking leave.
In summary, your entitlement to worker’s compensation is not affected by your entitlement to take maternity leave, and vice versa. For assistance calculating your entitlements, or challenging a dispute, contact our expert workplace lawyers today on 13 43 46.
 See ‘Payments & leave while on workers compensation’, Fair Work Ombudsman (Web Page) <https://www.fairwork.gov.au/leave/workers-compensation/payments-and-leave-while-on-workers-compensation>.
 Miller v New South Wales Police Service (No.2)  NSW WCCPD 216,  citing McCann v Scottish Co-op Laundry Association Ltd  1 All ER 475; Salisbury v Australian Iron & Steel Ltd  WCR 97 and Doudie v Kinneil, Cannell & Coking Coal Co Ltd  AC 377.
 Worker’s Compensation Act 1987 (NSW).
 Miller v New South Wales Police Service (No.2)  NSW WCCPD 216, .
 Kirkbride v State of New South Wales (Ambulance Service)  NSWWCC 236.
 Ibid -.
 Ibid -.
 Ibid -.