Tag Archives: annual leave

Dual entitlement to annual leave and workers comp affirmed

In 2015 the Federal Court confirmed in the case of Anglican Care v NSW Nurses and Midwives’ Association1 (which was a case relating to an underpayment claim) that employees receiving workers’ compensation may be entitled to continue to accrue annual leave. In that case, a nursing assistant claimed that she was entitled to be paid, on termination of her employment, for the annual leave she had accrued during the two year period she had been absent from work and receiving workers compensation payments.

Until the Anglican Care decision, it was widely accepted that the effect of section 130 of the Fair Work 2009 (Cth) (FW Act) was clearly to prevent an employee from accruing or taking annual leave while they are receiving compensation payments unless this was expressly permitted by the relevant state workers’ compensation laws. Given that such laws are concerned with compensating employees for loss of earnings when off work due to a compensable injury, they generally do not expressly provide an entitlement to annual leave.

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Court of Justice ruling on annual leave and sickness

The Court of Justice of the European Union has recently given its judgment in case involving entitlement to payment for holidays that have not been taken due to sickness.

The Working Time Directive imposes an obligation on Member States to take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks. That minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.

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