LawTalk Blog

Do I still accrue leave entitlements while I’m receiving workers compensation payments?

workers compensation claim south australia

It’s understandable that a worker may be concerned about whether or not their leave entitlements are affected if they are unable to work and receiving workers compensation payments. However, generally speaking, a worker is entitled to sick leave and annual leave accrued at their full rate regardless of their incapacity.

Section 50(2) of the Return to Work Act 2014 confirms that:
If a worker is absent from employment in consequence of a work injury, the period of absence must 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.

There is however an exception to the rule as covered in section 50(3) of the Act and relates to where a worker has received weekly payments of income maintenance for 52 weeks or more. The Act states:

If 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 where an incapacity lasts for 12 months or more a worker’s annual leave will be deemed to be taken. However, Employers are still required to pay workers their annual leave loading as they would have normally been entitled to it.

Sick leave is not affected which means that workers will continue to accrue sick leave even when they have been absent from work for more than 52 weeks (continuous or separate periods).

In South Australia the Long Service Leave Act 1987 ensures that an employee continues to accrue long service leave even if they are absent from employment due to an incapacity to work and receiving workers compensation payments.

It’s important to note however; 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 their 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 receiving workers compensation payments you should discuss this with you Return to Work case manager as it may impact on your rehabilitation and return to work obligations under the act.

If you have questions about workers compensation claims, you can contact today’s author Madelaina Mestroni


Get in touch with today's blog writer:
Madelaina Mestroni

Senior Associate in Personal Injury  and  Workplace Accidents

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.

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