Claiming Leave while off-work on Compensation

Posted 30-06-2020
Written by admin 101
Category Compensation

The Workers Compensation laws concerning the use and accrual of annual and personal leave for injured workers while they are receiving compensation benefits can be confusing. RMB Lawyers Partner and head of the Compensation Division CHRIS SHEPPARD explains:

Our expert compensation lawyers act for many people injured at work and who are receiving workers compensation benefits while they are unable to work.

Unfortunately, injured workers often experience financial difficulty whilst they are receiving income support benefits – which may be as low as 80% of their pre-injury earnings.

Not surprisingly, people in this position see their untaken annual and personal leave as a potential source of additional funds to help them through what is generally a very difficult time for them and their families.

Consequently, two common questions we are asked are:-

  1. “Am I entitled to use my accrued annual and personal leave while I am not able to work?”
  2. “Do I accrue annual and personal leave while I am unable to work?”

Often, injured workers utilise their accrued annual leave to supplement their income support payments while they are recovering from injury.

However, our Federal and State laws clash over whether the types of leave entitlements can be used while injured.

The Federal Fair Work Act which applies to most people’s employment states that an employee is not entitled to take or accrue annual or personal leave while absent from work and receiving workers compensation payments. However, there is an exception to that law if the person’s State workers compensation scheme allows it.

The good news for workers injured in NSW is that the NSW workers compensation scheme allows them to:-

  • take annual leave while being unable to work.
  • take personal leave while being unable to work
  • receive workers compensation benefits and annual or personal leave entitlements
  • continue to accrue annual leave while receiving workers compensation benefits.

However, personal leave does not continue to accrue.

The NSW workers compensation scheme has undergone many changes over the past seven years. If you have been injured at work, it is important that you obtain advice from a lawyer who is an expert in this area of the law.

If you have been injured at work, RMB Lawyers have a team of expert lawyers who only practice in this area. Please  contact us. We'll be able to help you via a quick phone call, or ask us a question via email.