When an employee is in receipt of workers’ compensation, that employee is deemed to be performing “service” in accordance with the Fair Work Act 2009 (Cth). Section 130 of the Act imposes a restriction on taking or accruing leave, or absence while receiving workers’ compensation.

Employees are not entitled to take or accrue any leave or absence (whether paid or unpaid) under the NES when they are absent from work because of a personal illness, or a personal injury, for which they are receiving statutory workers compensation.

An exception is if the taking or accruing of the leave is permitted by applicable workers’ compensation legislation. However, an employee can take unpaid parental leave while absent from work because of a personal illness, or a personal injury, for which the employee is receiving statutory workers’ compensation.

Victorian and NSW workers’ compensation legislation permits an employee to take or accrue annual leave and long service leave while absent from work and in receipt of compensation. However, an employee is not permitted to accrue personal leave while in receipt of workers’ compensation under the Victorian legislation.