In Australia, all workers except casuals accrue 4 weeks of paid annual leave each year, as well as other benefits like sick leave. This leave accumulates based on your ordinary hours of work.
But what happens to your leave if you suffer a work-related injury and receive workers compensation benefits until you can work again? Will you still accrue sick and annual leave on workers compensation? Can you take leave while you’re on workers compensation?
In this article, we’ll answer some of those questions in general for you. This information is correct at the time of publishing, but could change at any time. Contact Main Lawyers to discuss your specific situation and find out all your options.
Laws around workers compensation and leave
Workers compensation is insurance that every employer must take out through an insurer like WorkCover. This insurance covers them for payments to any worker who is injured or becomes unwell due to their work.
Every state and territory has its own workers compensation laws that govern the rules relating to leave. So the question of whether you can accrue and take leave while you’re on workers compensation depends on the laws in your state.
The good news is that most states do allow you to accrue annual and sick leave, even if you’re not currently working.
However, the rules may be different if you’re totally incapacitated on workers compensation for more than 52 weeks. Contact a legal professional for advice if you’re in this situation.
Additionally, this applies only to workers who are eligible to accrue annual and sick leave. Casual workers, for example, don’t receive leave entitlements, but they may be eligible to receive workers compensation payments if they’re injured in the workplace.
Accruing annual leave on workers compensation
You can accumulate annual leave while you’re on workers compensation in New South Wales, Queensland, Tasmania, South Australia, Victoria, Western Australia and the ACT. But you can’t in the Northern Territory or Norfolk Island.
Accruing sick leave on workers compensation
You can continue to accrue sick leave while you’re on workers compensation in Queensland and South Australia. However, the other Australian states and territories don’t allow it.
Taking annual leave on workers compensation
Generally, you can use your accrued leave entitlements while you’re on workers compensation in New South Wales, Queensland, Tasmania, South Australia, Victoria, Western Australia and the ACT. But not the Northern Territory or Norfolk Island.
This means you will be paid both your annual leave and your workers compensation benefits.
However, if you’re totally incapacitated and have been on workers compensation for more than 52 weeks, you can’t take annual leave because it’s already been included in your workers compensation payments.
Does workers compensation affect sick leave?
You can use your accrued sick leave while on workers compensation in New South Wales and Queensland. But you can’t in the ACT, Victoria, Western Australia, Tasmania, South Australia, the ACT or Norfolk Island.
Note that, in New South Wales, if your sick leave payment is higher than your workers compensation payment, your payment will be the difference between the two.
But you can use your sick leave to cover the difference between your workers compensation and your usual income.
Commonwealth employees and workers compensation
The rules are a little different if you work for the Australian Government – no matter what state or territory you live in. If you’re a Commonwealth worker, you can accrue annual leave, long service leave and sick leave for only 45 weeks while you’re receiving workers compensation.
Additionally, you can’t take annual leave or sick leave while you’re on workers compensation (though there are exceptions if you’re in the defence forces).
Returning to work
The aim of workers compensation is to help you return to work after making a claim as soon as possible. Studies have shown that this can help speed up your recovery.
You may return to work on reduced hours or alternative duties as you fully recover. For example, you might work 15 hours a week and receive 25 hours a week of workers compensation.
Every Australian state and territory allows you to accrue annual and sick leave while you’re doing reduced hours of work (unless you’re a casual). And, in Queensland and New South Wales, you can accrue leave while on workers compensation. This means you can accrue leave on both your reduced hours of work and your workers compensation hours.
Parental leave and workers compensation
In Australia, workers can receive 12 months of unpaid parental leave, and can request additional leave if necessary.
Even if you’re on workers compensation, you can take unpaid parental leave if you are eligible and have been working for your employer for 12 months or more.
Note that, while being on workers compensation doesn’t prevent you taking unpaid parental leave, it does depend on your particular employment contract or award.
Public holidays on workers compensation
Many workers are entitled to higher rates when they work on public holidays. However, in Queensland and most other Australian states, you’re not entitled to public holidays while you’re on workers compensation. You won’t receive higher compensation amounts during weeks that have public holidays in them.
This is because your weekly WorkCover payment already accounts for the public holidays. It’s calculated on your average earnings in the 12 months before your injury – including any public holidays that occurred during that period.
What if your leave isn’t accruing?
While you may be eligible to accrue and take sick or annual leave on workers compensation, some employers may not agree to it. While you’re on workers compensation, always check your pay slips to make sure your leave is accruing as it should.
If it’s not, contact your employer as soon as possible to find out why. It might be a simple oversight. But if they refuse to fix the problem, you should get expert legal advice about your options.
How Main Lawyers can help
If you’re on workers compensation, you need to get the right advice about your leave entitlements and make sure you’re getting everything you deserve. If you have any questions, contact us for a free, no-obligation consultation.
