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​Can annual leave be accrued whilst on Workers Comp benefits?

Monday, July 27, 2015

Can annual leave be accrued whilst on Workers Comp benefits?

In the case of Anglican Care v NSW Nurses and Midwives’ Association [2015] FCAFC 81 an age care provider was denied accrued annual leave by her previous employer while she was absent and on workers compensation. Her employer had stopped accruing annual leave once she had started receiving workers compensation payments.

It was claimed that her employer had breached the Fair Work Act by failing to allow the accrual of annual leave. Her previous employer argued that nowhere in the NSW Workers Compensation Act did it expressly say that employees whilst receiving workers compensation payment are entitled to accrue annual leave.

The court decided in favour of the employee holding that by not expressly stating an employee’s rights to accruing annual leave whilst on Workers Compensation the Act did not prohibit it. If the Workers Compensation Act intended to prohibit a worker from being entitled to accruing annual leave whilst on Workers Compensation the Act would need to expressly state that it is prohibited, which it currently does not.

The decision in Anglican Care v NSW Nurses and Midwives’ Association means that as an employee on Workers Compensation you are entitled to the accrual of annual leave whilst on Workers Compensation. If your employer is not allowing you to accrue annual whilst on Workers Compensation you should consult your lawyer about challenging your employer’s decision. 

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