Prior to a recent decision by the Full Federal Court of Australia in Anglican Care v NSW Nurses’ & Midwives’ Association  FCAFC 81 (5 June 2015) employers often believed that whilst an employee was not at work and receiving weekly payments of compensation, they were not entitled to accrue annual leave.
In the case that was before the Full Bench of the Federal Court, an aged care worker was not at work, but receiving weekly payments of compensation from December 2009 to May 2011. The worker had not been terminated and was still employed. The argument was whether the worker was entitled to accrue annual leave during that period, with the total value of the claim being $3,000.
The worker was represented by her union, as such the legal costs which would have far exceeded the claim, was not in issue.
The Federal Legislation, that being section 130 of the Fair Work Act 2009 (Cth), provides that an employee is not entitled to accrue annual leave if off work, unless permitted to by the State Law.
The State Legislation being section 49 of the Workers Compensation Act 1987, provides that workers are entitled to receive weekly payments of compensation, even though they are entitled to receive annual leave. It has always been thought that this meant that if you had accrued annual leave, you were entitled to take it even though you were receiving weekly payments of compensation.
Prior to going to the Full Bench, Justice Emmett of the Federal Circuit Court decided that this meant that a worker could accrue the annual leave whilst receiving weekly payments of compensation. This decision was then upheld by the Full Bench of the Federal Court.
This situation may however be reversed by Federal Legislation and there is at present an amendment to the Fair Work Act that is before the Senate.
At the moment however, workers are entitled to accrue annual leave whilst receiving weekly payments of compensation.
If you require any assistance in respect to these or other matters, please do not hesitate to contact us at Everingham Solomons because Helping You is Our Business.
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