The answer to this question may vary dependent upon the Award an injured worker is paid under. The following looks at an entitlement to annual leave under the Fair Work Act 2009 (Cth) (“FWA”).
The entitlement to annual leave derives from section 87 of the FWA which provides relevantly as follows:-
87 Entitlement to Annual Leave
Amount of leave:-
(1) For each year of service with his or her employer, an employee is entitled to:-
(a) Four (4) weeks of paid annual leave; or
(2) Accrual of leave to an employee’s entitlement to get paid annual leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.
What is service?
The term “service” as used in section 87 of the FWA is defined in section 22 of the Act. The courts have determined that a period spent on workers’ compensation by a Queensland worker constitutes service under section 22 of the FWA. Section 87 of the FWA would therefore entitle the worker to annual leave accruing in respect of such service.
However, the provisions of section 130 of the FWA also need to be taken into account. Section 130 takes away the right of a worker to receive annual leave entitlements in respect of his/her period on compensation, unless a “compensation law” permits him/her to do so. The relevant provision here is section 119A of the Workers’ Compensation and Rehabilitation Act 2003 (“WCRA”).
The intent of section 119A is clear, that it will act as a “compensation law” permitting the taking and accruing of annual leave for the purpose of section 130 under the FWA.
The legislative scheme is clear. In respect of a period in receipt of workers’ compensation benefits, there is a right to accrual annual leave under section 22 and 87 of the FWA that is then effectively taken away by section 130, but subject to the existence for a Queensland worker of section 119A of the WCRA.
Interestingly, the fair work Ombudsman at http://www.fairwork.gov.au/faqs/leave/pages/default.aspx advises that “in Queensland you can accrue and take personal and annual leave” while on worker’s compensation. Queensland is apparently the only State in which legislation so provides.
In summary therefore, a Queensland injured worker is entitled to the accrual of annual leave whilst on worker’s compensation, pursuant to the FWA and it is the combined effect of section 130 of the FWA and section 119A of the WCRA to preserve the entitlements.