Last updated August 11, 2023

Am I Entitled to Annual Leave and Long Service Leave Whilst on Workers Compensation in NSW?

The short answer is yes, employees receiving workers compensation payments, even if they are off work, are entitled to accrue annual leave during their absence as well as long service leave.

In a decision of the Federal Court in the matter of NSW Nurses and Midwives Association -v- Anglican Care (2014) FCCA2580 Justice Emmert made a decision in a case where the worker was receiving workers compensation for a period of 18 months due to a workplace injury and a dispute arose after employment was terminated as to whether or not the worker was entitled to be paid any annual leave entitlements

A piece of blue paper with the words, WORKERS COMPENSATION INSURANCE written on it and the caption “Am I Entitled to Annual Leave and Long Service Leave Whilst on Workers Compensation in NSW”

The employer argued that an employee was not entitled to accrue annual leave whilst on workers compensation

Justice Emmert found that Section 130 of the Fair Work Act 2009 states that an employee is prevented from taking or accruing leave whilst they are absent from work due to illness or injury unless a relevant state compensation law permits the taking and accruing of leave.

Section 49 of the Workers Compensation Act 1987 (NSW) does allow for taking or accruing leave whilst on Workers Compensation.

For those reasons Justice Emmert found that annual leave was accrued whilst receiving workers compensation payments, as long as you remain an employee.

It is most likely that long service leave is also accrued.

However, where employment has been terminated then long service leave and annual leave ceases to accrue.

Employees, therefore, can on being terminated receive payment of accrued annual leave and long service leave whilst they have been off work on workers compensation benefits.

It should be noted that an employer is legally entitled to terminate an employee six months after an injury if the employee has not returned to their pre-injury duties

What benefits am I entitled to on Workers Compensation in NSW?

We have many blog articles which may assist you to understand your rights to compensation which can be found on our Blog. Here are some examples;

There are many more articles that answer all your questions on claiming workers’ compensation in NSW.

Please do not hesitate to contact our lawyers as follows;

Complete our FREE case assessment form HERE
Email us at info@garlingandco.com.au
Give us a call on (02) 8518 1120

Matthew Garling

Matthew Garling is an Accredited Specialist in Personal Injury Law approved by New South Wales Law Society. He is admitted to practice in the Supreme Court of NSW and the High Court of Australia. Matthew is also a member of...

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I engaged with Garling and Co to assist me for my weekly payment dispute with the insurance. I was upset with Natasha, as she didn't prepare me to the worse outcome or told me about the kind of... negotiation in the hearing. I assumed that as a Lawyer she should have an experience with the process or the way to solve the case. Even though I asked her what should I do or what would be happened in the hearing a week before but she didn't mentioned anything, and told me not do anything. But in the hearing she and the Barrister only gave me less than 5 minutes to make decision and pushed me to accept the disappointed outcome and what she said in the hearing totally different with what she said earlier. I don't trust her at all, her words is not consistent.I would like to express my appreciation to Matthew Garling who had stepped in to handle my weekly payment issue with the insurance. He is very professional, knowledgeable, easy to talk to and very humble. My disappointment earlier has melted away by his kindness and caring to resolve my issue which has came out the great outcome. Now I am satisfied with his expertise therefore I would not hesitate to let him to handle the case I might have in the future.As I said before I would not hesitate to let my other claim to be handled by a professional as Matthew Garling. I would like to thank him for his time and effort to settle my case smoothly and I trusted him to give me the best outcome. Also I appreciated his support and his patience to answer my questions from the time I signed the agreement up to the day before the mediation. He did not promise the unrealistic outcome but what ever he promised that what the result was according to his experiences. And I would not forget to Alison, Nathan who also have assisted this matters, by gathering all documents and answering my questions.Also my appreciation to a Barrister Mr Dallas Morgan.So, in summary I am really grateful to have Garling and Co as my lawyer to handle my damaged claim.read more

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So very impressed with the professional team who looked after me throughout the last 4 and 1/2 years. A special mention to Kerry and Nathan who navigated each request to fight for my right to gain... access to further treatments and physio and to ensure medical treatment would be covered moving forward. I was so grateful I could hand it all over to you and not have to go through this very challenging time without your support.I thank you for the compassion you have provided to me, from the first contact with Matthew and Natasha, to finalisation with Kerry and Nathan.I highly recommend the team at Garling and Co for any third party compensation claims. You are in good hands with them all.read more

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Emma, Rebecca and the team at Garling and Co have worked diligently throughout my workers compensation claim. The level of professionalism, support and communication has been faultless. Of particular... note has been the sensitivity displayed to me throughout the lengthy process. Worker’s compensation claims are complex and not easy to navigate, particularly when you are unwell. I do not hesitate to recommend Garling and Co to help you find a way through this otherwise unfathomable system.read more

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After my case stalled with another firm, I decided to give Matthew Garling a call. He took my case and not only won, but achieved an outcome that far exceeded my expectations. This firm is the best... in the business in my opinion and I wouldn't hesitate to recommend them to anyone.read more

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Am I Entitled to Annual Leave and Long Service Leave Whilst on Workers Compensation in NSW?

The employer argued that an employee was not entitled to accrue annual leave whilst on workers compensation

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