Since the Fair Work Act was implemented in 2009 there has been a great deal of debate and uncertainty about whether or not annual leave and personal/carer’s leave accrues during workers’ compensation absences.

Under the Work Choices version of the Workplace Relations Act 1996, which operated between 2006 and 2009, it was clear that annual leave and personal/carer’s leave accrued during workers compensation absences. However, the situation became far less clear once the Fair Work Act 2009 was implemented.

Section 130 of the Fair Work Act 2009 deals with whether an employee is entitled to accrue or take leave under the National Employment Standards (NES) during workers compensation absences.

Subsection 130(1) provides that generally employees are not entitled to accrue or take leave under the NES during a workers compensation absence. However, s.130(2) goes on to state that an employee is not prevented from taking or accruing leave under the NES, “if the taking or accruing of the leave is permitted by a compensation law”.

In Anglican Care v NSW Nurses and Midwives’ Association, the Full Federal Court interpreted s.130 of the Fair Work Act 2009 in the context of the relevant provisions of the NSW Workers Compensation legislation and determined that annual leave accrues during workers compensation absences in NSW.

Two separate judgments were handed down in the Anglican Care case, a joint judgment by Justices Bromberg and Katzmann, and a judgment by Justice Jessup. The judgments contain different reasoning and different principles for applying s.130 of the Fair Work Act 2009 in the context of State and Territory workers compensation laws. The reasoning and principles in the joint judgment of Bromberg and Katzmann JJ prevails, given that this is the majority judgment.

If you would like assistance in determining leave entitlements during worker’s compensation absences, please contact Ai Group’s Workplace Advice Service on 1300 55 66 77.
Alternatively, if you would like assistance in managing employees on workers compensation, please contact your local employment, workplace and industrial lawyer in Sydney, Newcastle, Wollongong, Melbourne or Brisbane or email Ai Group Workplace Lawyers at info@aigroupworkplacelawyers.com.au.

 

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