Sec 130 of the Fair Work Act provides that NES leave does not accrue during a period when an employee is absent from work on workers compensation unless the taking or accruing of leave is permitted by “a compensation law.” In Anglican Care v NSW Nurses and Midwives’ Association ([2015) FCAFC 81 delivered on 5 June 2015 an employer attempted to argue before a Full Court of the Federal Court that this meant that unless a compensation law (meaning a State workers compensation law) actual expressly conferred such a right of accrual upon an employee on workers compensation, then the effect of the section was to disentitle the employee to the benefit of both workers compensation and leave.
The Full Court would have none of it pointing out that workers compensation law is specialized legislation and is therefore unlikely to descend into the positive creation of such rights as accruing leave.
“Since generally, workers’ compensation statutes are concerned with a worker’s entitlement to regular payments to compensate for loss of earnings brought about by inability to work on account of a compensable injury, and the calculation of any such entitlement. Such statutes do not generally either permit or prohibit the taking of leave,” Justice Jessup wrote. “While using the word “permitted” is “curious” in its context in s130(2) of the Act, it should not be construed in the sense of, “not prevented, prohibited or restrained”.
Bromberg and Katzmann JJ wrote “It would be odd if Parliament’s intention were to confine the operation of s 130(2) to compensation laws which actually created or conferred entitlements to leave. After all, compensation laws create or confer rights to compensation.”
The effect of this case is that, In Western Australia, annual and other leave can be taken and will accrue whilst an employee is on workers compensation since the State’s workers compensation legislation is silent about the issue and thus does not prohibit the dual benefit accruing.