Payment of Annual Leave while on Compensation - An Update By Sam Kennedy | October 2010 Area of Expertise | OHS, Work Injury Damages, Workers Compensation & Workplace Relations In a TurkAlert circulated on 23 August 2010, I suggested that section 130 of the Fair Work Act prohibits the accrual or taking of leave by injured workers who are off work and receiving compensation. I have since received many enquiries about the TurkAlert -- from employers, Scheme Agents and WorkCover. This follow up is intended to make it clear that the opinion expressed in the TurkAlert is my personal opinion. It is based upon my interpretation of the legislation. I believe that my interpretation can be justified, but there may be others who reach a different conclusion. WorkCover, for example, takes a contrary view and says that section 49 of the Workers Compensation Act permits the taking and accrual of leave while a worker is receiving workers compensation payments. It is important to remember that no matter which interpretation is preferred, neither section 130 of the Fair Work Act nor section 49 of the Workers Compensation Act affects a worker’s entitlement to receive workers compensation payments. If an employer wishes to rely upon section 130 of the Fair Work Act Act, I recommend that the employer seeks specific legal advice regarding the application of that Act to that employer’s particular circumstances. It may be that the proper interpretation of the legislation will not be known until a decision is made by Fair Work Australia.
For more information, please contact: Sam Kennedy Partner T: 02 8257 5733 sam.kennedy@turkslegal.com.au
Sydney | Level 29, Angel Place, 123 Pitt Street, Sydney, NSW 2000 | T: 02 8257 5700 | F: 02 9239 0922 Melbourne | Level 10 (North Tower) 459 Collins Street , Melbourne, VIC 3000 | T: 03 8600 5000 | F: 03 8600 5099 Insurance & Financial Services | Commercial Disputes | Workers Compensation | Business & Property
www.turkslegal.com.au This Tur kAler t is cur rent at i t s d ate o f p u b l i c at i o n . Wh i l e eve r y c a re h a s b e e n t a k e n i n t h e p re p a rat i o n o f t h i s Tu r k Aler t it do es not constit ute legal advice a n d s h o u l d n o t b e re l i e d u p o n fo r t h i s p u r p o s e. Sp e c i f i c l e g a l a dv i ce s h o u l d b e s o u g ht o n p a r ticular matters. Tur ksLegal do es not ac ce p t re s p o n s i b i l i t y fo r a ny e r ro r s i n o r o m i s s i o n s f ro m t h i s Tu r k Al e r t . Th i s Tu r k Al e r t i s co py r i ght and no par t may b e repro duced in a ny fo r m w i t h o u t t h e p e r m i s s i on o f Tu r k s Le g a l . Fo r a ny e n q u i r i e s, p l e a s e co nt a c t t h e a u t h o r o f this Tur kAler t. © Tu r k s Le g a l 2 01 0
TURKSLEGAL
TUR K A L E R T