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Do I still accrue leave entitlements whilst I am in receipt of workers compensation payments?


employment law leave entitlements while on Workcover

Many workers worry about their entitlements to leave such as annual leave, sick leave, long service leave when they are in receipt of workers compensation payments. Section 40(2) of the Workers Rehabilitation and Compensation Act 1986 confirms that:

Where a worker is absent from employment in consequence of a compensable injury, the period of absence shall for the purposes of computing the worker's entitlement to annual leave or sick leave under any Act, award or industrial agreement, be counted as a period of service in the worker's employment.

A worker is therefore entitled to sick leave and annual leave accrued at their full rate regardless of their incapacity.

There is however an exception set out in section 40(3) of the Act where a worker has received weekly payments of income maintenance for 52 weeks or more as follows:

Where a worker has received weekly payments in respect of total incapacity for work over a period of 52 weeks or more, the liability of the employer to grant annual leave to the worker in respect of a year of employment that coincides with, or ends during the course of that period shall be deemed to have been satisfied.

This exception only applies to annual leave and not sick leave, so workers will continue to accrue sick leave even when they have been absent from work for more than 52 weeks (continuous or separate periods). Therefore where an incapacity lasts for 12 months or more a workers annual leave will be deemed to be taken.

Employers are also still required to pay workers their annual leave loading as they would have normally been entitled to it.

In South Australia the Long Service Leave Act 1987 also confirms that an employee continues to accrue long service leave even if are absent from employment due to an incapacity to work and whilst in receipt of workers compensation payments. It is however important to note that there may be some exception for workers who are covered by a federal award or enterprise agreement which addresses long service leave.

If at any time a worker ceases their employment with the pre injury employer, all leave entitlements should be paid out immediately and will no longer accrue.

Annual and long service leave is the responsibility of the employer and any concerns with the accrual of leave should be discussed directly with the employer. If you plan on taking leave during a time in which you are in receipt of workers compensation payments you should discuss this with you WorkCover case manager as it may impact on your rehabilitation and return to work obligations under the act.

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to South Australian legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.