There appears to be differing views between WorkCover Authority of New South Wales, the insurers and some members of the legal profession as to whether from 1st January 2010, employees are no longer entitled to accrue or take any annual leave whilst in receipt of workers’ compensation.
Some members of the legal profession believe it is quite clear that Section 130 of the Fair Work Act 2009 prevails and an employee is not entitled to take or accrue any leave whilst on workers’ compensation on the basis that Section 49 permits the payment of compensation during a period of annual leave, but it does not permit the taking or accruing of annual leave where an employee is not otherwise entitled to such leave.
WorkCover Authority of New South Wales however is of the view that “By virtue of Section 130(2) of the Fair Work Act 2009, Section 49(1) of the Workers’ Compensation Act 1987 applies and therefore injured workers would still be able to take or accrue annual leave whilst receiving a workers’ compensation payment”.
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