Q. We have an employee absent on workers' compensation who has contacted the company with a request to take two months’ accrued long service leave. The employee has requested leave due to severe financial stress caused by the level of workers' compensation payments being received. The company is happy to agree to the employee’s request for leave; however, we are not sure whether this arrangement is permitted under the Fair Work Act. The Act appears to prevent an employee from taking paid leave while on workers' compensation leave.

Would this provision apply to long service leave prescribed by a state law? The employee is employed in Queensland. 

A. While the Fair Work Act (s.130) prevents an employee from taking paid or unpaid leave (except unpaid parental leave) during an employee’s absence on workers compensation, unless otherwise permitted by the relevant state or territory workers compensation law, this provision only applies to those conditions covered under the National Employment Standards. The long service leave entitlements for the majority of private sector workers are regulated by the relevant state or territory long service leave legislation.  

In this case, the employer would need to refer to the relevant workers' compensation law and long service leave legislation in Queensland to determine whether an employee could take long service leave while receiving workers' compensation. 

 

Queensland law 

Long service leave in Queensland is subject to the Industrial Relations Act 1999 [Qld]. There is no provision in that legislation that prohibits taking long service leave during a workers' compensation absence, while a period of absence on WorkCover counts as continuous service for the purpose of accruing long service leave. 

The Workers Compensation and Rehabilitation Act 2003 [Qld] (s.119A(2)) provides that a worker is entitled to take or accrue paid annual leave, sick leave and long service leave during the period to which the compensation relates. Consequently, the employee can take long service leave during a period of workers' compensation absence. 

 

Long service leave - other jurisdictions 

The majority of state and territory long service leave legislation does not specifically prevent an employee from taking long service leave during a workers' compensation absence. The Long Service Leave Act 1976 [Tas] (s.12(2)) states that an employee is not required to take long service leave while absent on workers' compensation, although it does not appear to prevent an employee from requesting long service leave in such circumstances. 

The Workers Compensation and Injury Management Act 2023 (WA) explicitly allows for the accrual of LSL during income compensation. 

 

Bottom line 

Typically, an employee can request and take long service leave during workers' compensation leave. It is essential to review the specific legislation in the relevant state or territory, including the Long Service Act, to verify entitlements.