The case, NSW Nursing & Midwives Associations v Anglican Care  FCCA 2580, involved a lady by the name of Ms Copas, who was receiving weekly payments of compensation as a result of a workplace injury for a number of years.
The question the Court had to answer was whether Ms Copas was entitled to accrue annual leave whilst she was not working and receiving weekly payments of compensation. Importantly, Ms Copas had not been terminated and was still an employee of Anglican Care.
Section 49 of the Workers Compensation Act 1987 provides that an injured worker is entitled to compensation even though they are entitled to holidays or long service leave. That has been long interpreted as allowing an injured worker to receive both, workers compensation payments and annual leave or long service leave, assuming the worker had annual leave or long service leave owing.
Section 130 of the Fair Work Act 2009 (Cth) provides that a worker is not entitled to take or accrue any leave if they were absent from work because of a personal injury or personal illness, unless the taking or accruing of leave is permitted by compensation law.
The Federal Court held that the NSW legislation is a ‘compensation law’ and that because of section 49 of the NSW legislation, it allows workers to accrue annual leave and long service leave throughout the period that they off work receiving weekly payments of compensation, and prior to them being terminated.
This decision has wide ranging consequences for both employers and employees, for both the past and future. As the decision is very recent, it may well be that there is an appeal to a higher court and the full ramifications take some time to filter through.
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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