As is often the case with these types of matters we have recently received a couple of enquiries in relation to this topic.MB900387775

This article is intended to provide some background on this matter – it does not constitute legal advice or opinion – it remains Workwise’s view that employers should always seek legal opinion in relation to these sorts of matters.

In the first instance the State is governed by the Workers’ Compensation and Injury

Management Act 1981 for matters relating to the process and rights and obligations of employees and employers, this Act and its Regulations specifies due and proper process.

In turn the question of Annual Leave accrual is also dealt with in any applicable Award and the Fair Work Act.

Section 130(1) of the Fair Work Act deals directly with the question of annual leave accruals whilst an employee is on workers compensation and specifically states that:

‘An employee is not entitled to take or accrue any leave…..when the employee is absent from work because of a personal illness or a personal injury for which the employee is receiving compensation………’

Section 130(2) however moderates this position and states that:

‘Subsection (1) does not prevent an employee from taking or accruing leave during a compensation period if the taking or accruing of the leave is permitted by a compensation law.’ (This refers back to WA Act for clarity).

It should be noted that the Workers’ Compensation and Injury Management Act 1981 (WA) is specific that personal /carer’s leave is not to accrue but silent on annual leave during periods of absence on Workers’ Compensation. It may therefore be assumed that with no specific guidance or direction to accrue Annual Leave (AL) that AL does not accrue.

However a State decision by Justice Emmet in NSW – Nurses & Midwives Association – v – Anglican Care FCCA 2580 – found that the NSW State Act (and specifically Section 49) ‘expressly provides the opportunity for the worker to receive both workers compensation and accrue annual leave during a Compensation Period….’

Interestingly the construction of Section 49 of the NSW Act is very similar to that of Section 80 of the WA Act and the way is therefore clear for the same interpretation to be made with regard to this situation in WA. Workwise however is unaware of any determinations made by a WA Court that has brought this into legal affect within our State.

Workwise has noted that a generic flyer from the Fair Work Ombudsman states ‘Yes’ as to whether AL accrues in WA when a worker is on Workers Compensation but provides little specific detail. The footer of this flyer makes reference to the above decision in NSW. On what basis the FWO has determined this position – other than by reference to this NSW Decision is unclear.

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