If an employee is absent and receiving workers compensation, are they entitled to payment for the upcoming Kings Birthday public holiday? 

Q. One of our employee’s recently suffered a workplace-related injury for which the employee is absent from work and receiving workers compensation. On the current medical prognosis, the employee will be returning to work near the end of June. 

Our pay office has asked whether the employee will receive payment for the upcoming Kings Birthday public holiday in New South Wales. Is the employee entitled to payment for the holiday despite being absent on workers compensation? 
 
A. The Fair Work Act (s130) provides that an employee is not entitled to take or accrue any leave or absence (whether paid or unpaid) during a period when the employee is absent from work because of a personal illness, or a personal injury, for which the employee is receiving compensation payable under a law of the Commonwealth, a state or a territory that is about workers' compensation.  
 
While this section of the Fair Work Act does not specifically refer to public holidays (or specifically any other form of leave), a public holiday would be regarded as a paid absence for the purposes of the Fair Work Act.  
  
This means an employee who is absent from work and receiving workers compensation is NOT entitled to receive payment for the public holiday, unless otherwise provided by the relevant workers compensation law.  
  
At this stage, no state or territory workers compensation law bestows an entitlement to payment for a public holiday that would override the provisions of the Fair Work Act. 
 
This section of the Fair Work Act applies to annual leave, personal/carer’s leave, compassionate leave, public holidays, jury service, and award-derived long service leave terms.