What are the rules surrounding personal and annual leave while on workers' compensation? 

Because workers' compensation legislation is specific to the jurisdiction where the employer’s business is based – that is, the state, territory or the Commonwealth – the rules about taking leave while on workers comp differ across the country. 

 

Taking annual leave while on workers' comp 

Employees can take or accrue annual or personal leave if it's allowed under the relevant workers' compensation legislation. 

In some jurisdictions, it’s allowed, but in others, it’s not. In New South Wales, for example, workers are entitled to take – or accrue – annual leave while on workers’ comp. Workers should be paid for both the annual leave and the workers' comp payment. 

Under Commonwealth law, on the other hand, workers whose employers are insured for workers comp under the Commonwealth scheme may not take any paid leave (except maternity leave) while they are off work on workers comp.  

However, in the Commonwealth jurisdiction, compensation leave includes periods of a graduated return to work (GRTW) as well as periods of total incapacity, and in some circumstances annual leave while on a GRTW program will be approved. Requests for annual leave are considered case by case. The rehabilitation case manager must approve any request for annual leave while a worker is on a GRTW. Workers should discuss requests with their rehabilitation case manager, who will consult with their supervisor before deciding.  

Workers employed by Commonwealth employers who are on a GRTW program and cannot attend work because of an illness or injury unrelated to their compensable condition can claim personal leave for the hours they would have attended work on their GRTW. 

If they are still in a period of total incapacity for work for more than 45 weeks, however, Commonwealth employees will not be able to accrue any annual leave. 

In Victoria, Queensland, Western Australia and Tasmania, the position is the same as in NSW – employees can take annual leave while receiving workers' compensation payments. In these states, annual leave can also accumulate while employees are off on workers comp. 

Except in Tasmania, workers in these states should be paid for both the annual leave and workers compensation. In Tasmania, employees do not receive workers comp payments at the same time as receiving annual leave payments. 

For employees in South Australia, the position is the same as the other states, except in the case of total incapacity for 52 weeks or more, after which workers can’t take annual leave.  

In the Australian Capital Territory, the Northern Territory and Norfolk Island, annual leave cannot be taken while on workers comp. 

 

Taking personal leave while on workers' comp 

Personal leave covers both sick leave and carer’s leave. Employees (but not casuals) are entitled to 10 working days of paid personal/carer's leave for each year of employment. The leave protects those employees’ income when they are entitled to be absent from work due to illness or injury (or providing care or support to a family or household member who is ill, injured or suffering from an unexpected emergency). 

In New South Wales and Queensland, sick leave can be taken while on workers comp. In NSW, if sick pay is higher, payment is the difference between the sick pay and workers comp payments. 

In Victoria, Western Australia, South Australia, Tasmania, the NT and the ACT, sick leave cannot be taken during periods on workers comp. This is also the case for Commonwealth employees, though some exceptions exist for defence personnel. 

However, sick leave can only accumulate while on workers comp in Queensland and South Australia, and for 45 weeks only in the Commonwealth. Sick leave doesn’t accumulate during workers comp in the other jurisdictions. 

 

Should employers top up workers comp payments?

Many employers are unsure as to whether they should top up an injured worker’s weekly compensation payments so that the person continues to get the same regular income as before they were injured and, if so, whether this topping up should continue for the duration of the period, the person is off on workers comp. 

The answer to the question depends on the industry the person works in and the type of modern award they’re on.  

Some awards have entitlements to accident pay (aka top-up pay) for employees on workers' compensation. Accident pay is the difference between what an employee would normally get paid and the amount they get paid from workers' compensation. The employer pays it.