By Ben Marshall, Partner, Ben Holding, Lawyer, Linda Hanley, Practice Director & Kathy Galanos, Law Clerk. This article was originally published on 6 November 2019 and was updated on 28 April 2025.
Under the Fair Work Act 2009, an employee is not entitled to take or accrue paid leave such as annual leave and personal leave while that employee is also absent from work and receiving workers’ compensation payments. The exception to this, as provided under section 130 of the Act, is where the applicable workers’ compensation scheme ‘permits’ the worker to do so.
Following cases such as Nursing and Midwifery Federation v Alfred Care [2017] FWCFB 4420 in Victoria, the position has now become clear for Victoria.
Am I entitled to accrue leave while also receiving workers' compensation?
In Victoria, if you are still employed with the injury employer and not employed on a casual basis, you are entitled to accrue annual leave while you are on WorkCover. In addition, you can take annual leave whilst you are receiving workers’ compensation payments through WorkCover.
Am I entitled to accrue personal leave while also receiving workers’ compensation?
In Victoria, you are not entitled to accrue personal leave while you are on WorkCover.
Case study
The case of Australian Nursing and Midwifery Federation v Alfred Health (C2016/5980) (C2017/591) revolved around whether an Australian Nursing and Midwifery Federation (ANMF) member was entitled to take or accrue annual leave while she was absent for work due to her workplace injury. During this period of time, the ANMF member was in receipt of weekly payments of compensation.
In this case, it was ultimately found that under both Fair Work Act and Victorian Workers Compensation legislation, the member was permitted to take or accrue annual leave whilst in receipt of weekly payments of compensation.
Accordingly, injured workers can now feel encouraged and reassured that they now have an additional financial protection while in receipt of worker's compensation.
If you or someone you know have been injured at work, contact our advice line and speak directly to our legal team on (03) 9321 9988 or submit an online enquiry today.
