Do you accrue annual leave on WorkCover in Victoria?

Yes, if you have an accepted WorkCover claim in Victoria you are entitled to accrue annual leave while you’re on WorkCover in Victoria as long as a few simple conditions are met.

The rest of this page will explore the issue of annual leave and WorkCover.

Annual leave – what is it?

Annual leave allows you as an employee to be paid when you’re off work by choice (i.e. not sick/personal leave).

All employees in Australia, other than casual employees, are entitled to accrue annual leave when they work.

Certain employers will offer more than four weeks of annual leave per year as a benefit to their workers, but four weeks annual leave per year is the minimum. If you’re either full time or part time, you should receive four weeks of annual leave which is based on your ordinary hours worked. If you’re a part time employee, annual leave will accrue on a pro rata basis.

In certain circumstances you can be entitled to an extra week on top, if you regularly work shifts on public holidays or Sundays, or you work for a business that operates twenty-four hours a day, seven days a week.

Annual leave is generally paid at the same rate as your normal ordinary hours. However, it can also be paid with an annual leave loading on top. This is usually at 17.5%, and is designed to compensate you for expenses during annual leave.

Annual leave begins accruing from the very first day of employment.

If you are on a probationary period at the commencement of your employment, this does not matter, annual leave will continue to accrue regardless.

How does annual leave accrue while I’m on WorkCover?

This question can cause confusion for workers, employers and WorkCover insurers. In our experience, both the Fair Work Ombudsman and the Victorian WorkCover Authority will refer an inquiry on this topic to each other – so it is hard to get an answer from either of them.

For most workers on WorkCover, as long as you are in receipt of WorkCover weekly payments through your employer, you’re entitled to the same amount of annual leave that you would accrue if you were working normally.

This has been the case since 2017, when the law around this issue was clarified by the Fair Work Commission in Australian Nursing and Midwifery Federation -v- Alfred Health and separately in United Firefighters Union of Australia -v-Emergency Services Telecommunications Authority T/A ESTA.

If you become a “direct payee” of your WorkCover insurer while still employed by your employer, they may seek to argue that you no longer accrue annual leave.

As far as we are aware, this issue is yet to be argued before the Fair Work Commission and there is no clear answer for what happens in this situation.

If your employment has been terminated and you become a direct payee of the WorkCover insurer, you will not be entitled to further accrual of leave.

If you are still employed with the injury employer, but your weekly payments have been terminated and you are not in receipt of a wage from the employer, then you will not accrue leave.

How much notice do I need to give before I take annual leave when I’m on WorkCover?

There is no specific rule in relation to this, but an employer can set out its own policies regarding taking and granting annual leave.

If you were taking annual leave related to your injury or condition that you have an accepted WorkCover claim for, then should potentially reconsider doing so as it may be more appropriately covered by WorkCover payments.

If for example you need medical treatment such as surgery, then you should be claiming weekly payments of compensation from the WorkCover insurer and keeping your annual leave entitlements there in case you need them for something else that is not for your work-related injury.

In order to obtain weekly payments from the WorkCover insurer, ensure you have a valid certificate of capacity and provide this to your employer.

Can I cash out my annual leave while on WorkCover?

You’re only able to cash out your annual leave when an award or a registered agreement permits this.

If an award or registered agreement does not cover this in relation to your employment, then you can still come to an agreement with your employer.

You should have at least four weeks of annual leave accrued before you can cash out your annual leave.

What should I do if I’m not getting paid annual leave while on WorkCover?

You should speak to your employer as the first port of call.

The chances are that there is an oversight and this is all you need to do to get the ball rolling with your annual leave accrual.

Keep in mind that you are entitled be back paid any annual leave that is owing to you that should have been accruing if not for the error.

If your employer disputes that you are entitled to annual leave while on WorkCover, then you can contact the WorkCover insurer that your claim is with and raise the issue with them. They may speak to your employer on your behalf.

You can also contact your lawyer and ask them to deal with the matter, if you have one.

The final thing you can do, which is really only a last resort option, is to get in contact with the Fair Work Commission or the Ombudsman. As we noted above, this can often result in you being told to contact your WorkCover insurer so doesn’t take you very far.

Conclusion

You are entitled to accrue annual leave while you’re on WorkCover in Victoria as long as a few simple conditions are met.

Those conditions are that you are still employed with the injury employer, that your employment classification allows for this (ie: you’re not a casual worker), and that you’re in receipt of WorkCover weekly payments.