Update on injured workers’ leave entitlements

What’s happened?

The Federal Court of Australia recently handed down a decision of Anglican Care v NSW Nurses and Midwives’ Association [2015] FCAFC 81 which impacts Tasmanian industrial law.

The Federal Court has clarified the meaning of s.130 of the Fair Work Act 2009 which is a provision concerning employees’ entitlement to leave while receiving compensation.

Section 130 prevents employees from accruing or taking leave unless a relevant compensation law “permits” the taking or accruing of leave.

The Court resolved the meaning of the word “permits” in section 130 and its application to New South Wales workers compensation law.

It held that workers in New South Wales continue to accrue leave while receiving compensation.

What that means for Tasmania?

Injured workers can take leave in Tasmania while receiving compensation subject to some requirements.  However, it remains unclear whether an injured worker continues to accrue leave.

The issue is whether s.84 and s.69(4)(a) of the Workers Rehabilitation and Compensation Act1988 (TAS) “permits” the accrual of leave within the meaning of s.130 of the Fair Work Act 2009 as interpreted by Anglican Care.

Although it is not beyond doubt due to statutory differences, it appears that Fair Work Australia or The Federal Court is likely to determine that leave continues to accrue in Tasmania while a worker receives compensation and their employment remains on foot.

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