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If you’re receiving workers compensation payments in NSW or WorkCover in Victoria, you should still accrue annual leave, even if you’re not working.
Despite the Fair Work Act specifying that employees are not entitled to accumulate or take leave while receiving workers compensation, individual state and territory laws often allow for both. So, if you’re in NSW and Victoria, you should continue to accrue annual leave while you’re on workers compensation, but if you’re in the ACT it’s likely you won’t accrue leave.
However, if you’re on workers compensation you may have been given conflicting advice on leave entitlements, or you may not know how to check that you’re accruing leave correctly.
In this article we’ve answered all the common questions about accruing leave on workers compensation, how to tell if you’re accruing leave correctly, and what to do if you need help getting your full leave entitlements.
The best way to tell if you’re accruing leave correctly is to check your pay slips. You should receive regular pay slips even when you’re receiving workers compensation payments. These might be hard copy pieces of paper or through an online system and should include the amount of leave you’ve earned. You should check to make sure that your leave is continuing to accrue at the regular, pre-injury rate each time you get a pay slip.
If you notice that your leave isn’t accruing correctly then you should speak to your employer as soon as you can and make them aware of the error. If you have any trouble with this process, you can call 13 15 15 and get free legal advice on your options.
If you were receiving workers compensation payments and have now realised that you missed out on accruing leave, it’s not too late. You can speak to your employer and ask them to include leave from the period while you were receiving workers compensation.
If your employer doesn’t reinstate your leave, you should speak to a workers compensation lawyer and get some advice about how to make sure you don’t miss out on leave that you’re entitled to.
You should accrue leave on workers compensation the same way you did when you were working. This applies regardless of whether you were a full time, permanent part time, or contract employee. Casual employees generally don’t accrue leave at all.
The average full-time employee is entitled to four weeks of annual leave per year, which is true even while you’re receiving workers compensation payments. The exact amount will depend if your job offers more leave entitlements, or if you’re working part time then you’ll earn leave based on the hours you work. This means a full-time employee earns roughly 2.9 hours of annual leave per week, while someone working three days a week will earn about 1.7 hours.
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Get startedOscar was working 40-hour weeks in full time employment at a warehouse in NSW. Due to the strenuous and repetitive nature of his work lifting and moving heavy boxes, he suffered a rotator cuff strain. His employer’s insurer granted his workers compensation request, and he spent three months recovering while receiving weekly payments. After three months he had significantly more mobility and was able to return to work two days a week on light duties. As he was recovering at work, he continued to receive workers compensation payments to make up the difference between his current, and his pre-injury earnings.
For the first three months while he wasn’t working, Oscar continued to accrue his standard annual leave. As he began to return to work, he also accrued annual leave for the days he was at the warehouse, as well as his continued workers compensation payments to bridge the gap between his current and pre-injury earnings. Eight months after the injury, Oscar was deemed fully recovered and returned to his pre-injury hours. He had accrued annual leave while on workers compensation, and on his returning to work hours.
You’re allowed to take annual leave while you’re on workers compensation in NSW and Victoria, but not in the ACT. Commonwealth employees are also allowed to take their leave while they’re on workers compensation.
Workers compensation payments generally cover 95% of your pre-injury earnings, but you can take sick leave while you’re on workers compensation to cover the remaining 5%. You can use your existing sick leave entitlements to cover the gap between the workers compensation payments and your regular earnings.
The other way you can take sick leave on workers compensation is if you’re returning to work on light duties, or on reduced hours. For example, if you’re working two days a week while you recover and you’re sick on one of your suitable workdays, then you’ll still be paid for the hours you would have worked. You’ll still receive workers compensation for the days that you can’t work. You can’t accumulate sick leave while you’re on workers compensation. You can, however, take maternity or paternity leave as normal.
A commonwealth employee is someone who’s employed by an Australian Public Service, like a nurse or a teacher. Employees in these roles are only entitled to accrue annual and long service leave for 45 weeks while on workers compensation. This is the same with sick leave. Commonwealth employees aren’t allowed to take sick leave while on workers compensation, though there are some exceptions for members of the defense forces.
Knowing that you do accrue annual leave while on workers compensation and being informed about the process is important to make sure that you don’t miss out on anything that you’re entitled to. If you’re still unsure, or if you have questions about workers compensation, get in touch with us today. Our team of specialist workers compensation lawyers can help you maximise your claim, and give you some free, personalised advice to make sure you don’t miss out on anything that you’re entitled to.
Robert Hopper
Managing Solicitor
An accredited specialist in personal injury law, backed by over 15 years’ experience in assisting injured Australians receive everything they’re entitled to with their workers compensation claim.
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