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There are different workers compensation laws for:

• each state and territory
• Commonwealth employees.

Whether an employee is entitled to accumulate or take leave during a period of workers compensation will depend on the workers compensation law that applies to them.

Section 130 of the Fair Work Act 2009 says that employees aren’t entitled to accumulate or take leave during a period of workers compensation unless the workers compensation law permits it.

Please access the links to the workers compensation regulator in your state or territory for advice on workers compensation.

Does annual leave accumulate during workers compensation?

NSW, Qld, Tas, Vic and WA

Yes. Annual leave can accumulate during workers compensation.

SA

Usually, annual leave accumulates during workers compensation.

The rules are different for employees if they’re totally incapacitated on workers compensation for 52 weeks or more.

Annual leave for these employees is treated as having been taken and paid for by the workers compensation payments. However, employees that get annual leave loading under an award or agreement, still get paid the loading for the period of annual leave that is treated as having been taken and already paid.

ACT, NT and Norfolk Island

No. Annual leave doesn’t accumulate during workers compensation.

Commonwealth employees

Annual leave can accumulate for 45 weeks only.

Does sick leave accumulate during workers compensation?

Qld and SA

Yes. Sick leave accumulates during workers compensation.

ACT, NSW, NT, Tas, Vic, WA and Norfolk Island

No. Sick leave doesn’t accumulate during workers compensation.

Commonwealth employees

Sick leave can accumulate for 45 weeks only.

Can annual leave be taken during workers compensation?

NSW, Qld, Tas, SA, Vic and WA

Yes. Annual leave can be taken during workers compensation.

In most states, employees get paid for both the annual leave and workers compensation.

In Tasmania, employees won’t get paid for workers compensation at the same time they’re being paid for annual leave.

Workers compensation for 52 weeks or more

Example: South Australia

In South Australia, annual leave can be taken or paid out.

However, employees who have been on workers compensation with total incapacity for 52 weeks or more can’t take annual leave. This is because their accumulated annual leave is treated as having been taken and paid for by the workers compensation payments.

ACT, NT and Norfolk Island

No. Annual leave can’t be taken during workers compensation.

Commonwealth employees

No. There are some exceptions for members of the defence forces.

Can sick leave be taken during workers compensation?

NSW and Qld

Yes.

In New South Wales if the payment for sick leave is higher, payment is the difference between the sick leave payment and workers compensation.

ACT, NT, SA, Tas, Vic, WA and Norfolk Island

No. Sick leave can’t be taken during workers compensation.

Commonwealth employees

No. There are some exceptions for members of the defence forces.

Employees returning to work

Some employees on workers compensation return to work on reduced hours and/or alternative duties while recovering from an illness or injury.

Employees returning to work on reduced hours will accumulate annual leave and sick leave according to their reduced hours of work. They can also take annual leave and sick leave during this time.

This applies to employees in all states and territories.

Some employees who return to work on reduced hours also accumulate annual leave and/or sick leave while absent from work and receiving workers compensation. Please see the information above about accumulating annual leave and sick leave during workers compensation.

Example: Returning to work on reduced hours

Adam is a full-time employee in NSW.

Adam stopped working due to a workplace injury.

After 3 months on workers compensation, he returned to work on reduced hours working 20 hours a week. Adam continues to receive 18 hours of workers compensation each week.

In NSW, annual leave accumulates during workers compensation. This means that Adam will accumulate annual leave on both his hours worked and hours on workers compensation when he returns to work.

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