Workcover Employment issues

Important employment-related issues when on Workcover

Injured worker on workers compensation (workcover) also face other , such as time-off on workers compensation affect accruing for annual and/or long service leave; retirement and workcover; rehabilitation and termination (sacking) issues; public holidays; long service leave; superannuation, and rostered days off (i.e for nurses and others working rostered shifts)

In this section, and by popular demand, we attempt to summarise those employment related issues and very important entitlement questions on one page!

Can an employer ask a job applicant about their workcover history?

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The following excerpt comes form the South Australian Ombudsman website; however broadly speaking the same applies to all states in Australia, (even in Queensland).

People often tell me that when they apply for a job, the application form asks whether they have had a workers compensation claim, and if so, they are required to provide details of their claim history. Many people who have a WorkCover history are intimidated by this and believe that if they answer the question truthfully the employer will be biased against them. Are employers allowed to ask this question and what should a job applicant do if the question appears on the application form?

In the Ombudsman’s view, although it would be against anti-discrimination laws for an employer to refuse a person’s application because the applicant has previously made a claim for workers compensation, there is nothing unlawful about an employer asking the job applicant to provide their WorkCover history. Even so, while it is not against the law for an employer to ask a general question about a person’s WorkCover history it is still inappropriate. Questions on a job application form should be relevant to the type of job being considered. A general question about an applicant’s WorkCover history is no more relevant to the job than, say, their marital status or religion. If a decision to grant or refuse the application cannot lawfully be based on the answer to the question, why ask it? If an applicant is asked such a question, he or she would be entitled to respond with, ‘Not Applicable’ or by ruling a line through it.

Instead of asking an applicant about their WorkCover history, a relevant question would be, ‘Are you currently affected by any injury or condition that may impact upon your ability to perform all the duties of the job? If so, please provide details and advise on what measures may be taken to accommodate your injury or condition so that you could perform the job satisfactorily.’ This information is necessary to the employer fulfilling their workplace safety obligations and ensuring that the applicant could undertake the job without endangering themselves or others. An employer can also lawfully refuse to give a job to someone whose physical or mental impairment would render them unable to perform the job.

If such a question is asked, the applicant should provide an accurate answer. A failure to disclose details of an injury that could affect the applicant’s ability to perform the job might lead to disciplinary action or dismissal if, after being given the job, further injury occurs. However, any question that is irrelevant to the job, such as a general question about whether the applicant has ever made a workers compensation claim in previous employment, does not need to be answered and the applicant can ignore it.

[source: http://www.wcombudsmansa.com.au/TopicalIssues/CananemployeraskajobapplicantabouttheirWorkCoverhistory.aspx]

Workcover and leave

Accrual of entitlements — transitional arrangements

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The Fair Work Act 2009 [Cth] continued the minimum entitlements prescribed by the Australian Fair Pay and Conditions Standard (AFPCS) from the (previous) Workplace Relations Act until the National Employment Standards (NES) and the modern award system was introduced on 1 January 2010. The AFPCS allowed for the accrual of leave during an employee’s/injured workers’ absence on workcover. This changed with the introduction of the National Employment Standards.

Accrual of entitlements — National Employment Standards

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S.130 of the Fair Work Act states that an employee who is absent from work and receiving workers compensation will not be entitled to take or accrue any paid or unpaid leave, eg annual leave, unless the taking or accruing of the leave is permitted by a Commonwealth, a state, or a Territory workers compensation law. Workers compensation does not usually refer to the accrual of employment entitlements when an employee is receiving workers compensation, although there may be reference to the ability of an employee to take annual leave, long service leave or a public holiday during workers compensation. An example of the latter can be found under s.49 of the Workers Compensation Act 1987 [NSW]. See: Taking leave below.

Public holidays

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An employer may receive a claim from an employee regarding an entitlement to be paid for any public holiday that falls during an employee’s absence on workers compensation.

Because of the provisions of s.130 of the Fair Work Act, an employee who is absent from work on a public holiday is not entitled to receive payment for the day unless otherwise provided by the relevant workers compensation law.

Long service leave

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The accrual of long service leave during an employee’s absence on workers compensation is usually dependent on the relevant state or Territory legislation, consequently the accrual of long service leave during workers compensation may vary depending on the jurisdiction.

For example, under NSW and Queensland legislation, an employee continues to accrue long service leave during an absence on workers compensation, whereas, under Victorian legislation, an employee ceases to accrue long service leave when an absence from work exceeds 48 weeks in any year on account of illness or injury. Therefore, reference should be made to the relevant state or territory long service leave statute to establish an employee’s accrual of long service leave during an employee’s absence on workers compensation.

Most State and territory long service leave statutes are silent on whether an employee may take, or be sent, on long service leave when an employee is absent on workers compensation, although such a prohibition does exist under the Long Service Leave Act 1976 [Tas] (s.12(2)).

National Employment Standards

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Although the National Employment Standards provide for long service leave, they only apply to those employees whose pre-reform federal award contained a provision for long service leave provision. Section130 of the Fair Work Act prevents the accruing or taking of any paid or unpaid leave (other than unpaid parental leave) that is provided under the National Employment Standards during an employee’s absence on workers compensation. This may apply to certain employers in the metal industry, printing industry, and meat industry.

Taking leave

Section 130 of the Fair Work Act states that an employee is not entitled to take or accrue any leave or absence (whether paid or unpaid) under the NES during a period of absence due to personal illness or injury where the employee is receiving workers compensation payable under a Commonwealth, a state or a territory law relating to workers compensation. The Fair Work Act applies, subject to the relevant workers compensation law permitting the taking or accrual of leave, although no state or territory workers compensation law appears to permit this in the form referred to in the Fair Work Act.

The effect of s130 is to ‘switch off’ the leave accrual and taking rules under the NES for the period of the employee’s absence on workers compensation. It does not impact on the calculation of an employee’s service or continuous service, meaning service prior to and subsequent to the absence on workers compensation is taken into account when calculating an employee’s accrual of leave.

This means an employee cannot take or accrue annual leave or personal/carer’s leave, nor take a public holiday, any compassionate leave or community service leave (including jury service).

It should be noted that s130 of the Fair Work Act does not prevent an employee from taking unpaid parental leave during a compensation period.

For example, s.49 of the NSW Workers Compensation Act 1987 permits the taking of annual leave, public holidays and long service leave during a period of workers compensation, but it does not permit the taking or accruing of these forms of paid leave where the employee is not otherwise entitled to such leave. Therefore, the Fair Work Act would still prohibit the taking and accruing of leave in New South Wales that is sourced from the NES.

Long service leave

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The taking and accrual of long service leave during an absence on workers compensation will depend on the relevant state or territory long service leave (or award-derived long service leave provision under the NES). This can differ depending on the jurisdiction. For example, under New South Wales and Queensland long service leave legislation, an employee continues to accrue long service leave during an absence on workers compensation; whereas, under Victorian legislation, an employee ceases to accrue long service leave when an absence from work exceeds 48 weeks in any year on account of illness or injury.

There is normally no requirement under the various statutes that prohibits an employee taking accrued long service leave during a period of workers compensation. Generally, long service leave legislation requires the employer to give the requisite amount of notice before sending the employee on long service leave, although in some jurisdictions this may be impracticable, (i.e we believe Queensland requires three months notice).

Partial incapacity

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An worker who returns to partial duties as required by their rehabilitation program can take paid leave under the NES for the number of hours the employee is required to work. For example, an employee who works four hours as part of their rehabilitation program and receives workers compensation for the remaining four hours each day can take annual leave for the period the employee is working (ie four hours). In this example, the employee is unable to take a total of eight hours paid annual leave for that day because this would include a period the employee is receiving workers compensation.

Dismissal due to absence on workers compensation

Termination of an injured worker who has been absent from work because of prolonged illness or injury is not a simple matter. injured worker are protected by several pieces of overriding legislation, including federal/state unfair dismissal legislation, state/territory workers compensation legislation, state/territory anti-discrimination legislation, and federal disability discrimination legislation.

Generally, the intent of workers compensation legislation throughout Australia is to accommodate an injured worker return to work after a workplace-related injury or illness, usually through the establishment of an appropriate rehabilitation program.

Dismissal is seen by legislators as preventing the rehabilitation process from occurring, with the relevant legislation usually providing the injured worker with a reasonable period of time in which to recover from their injury or illness before dismissal may be considered as an option for an employer.

General

Generally, the intent of workers compensation legislation is to accommodate an employee’s return to work after a workplace-related injury or illness, usually through the establishment of an appropriate rehabilitation program. Most jurisdictions prohibit the dismissal of an employee absent on workers compensation until a specified period of time has elapsed. This is to provide employees with sufficient time to be rehabilitated and return to their normal duties.

An employee who is on workers compensation may be protected by several overriding pieces of legislation, including federal unlawful dismissal laws; Commonwealth, state or territory workers compensation laws; state or territory anti-discrimination laws, or federal disability discrimination laws.

Unlawful dismissal

Firstly, unlawful dismissal laws prohibit an employer from terminating an employee’s employment for reasons based on the employee’s ‘temporary absence due to illness or injury’.

Regulations to the Fair Work Act 2009 define ‘temporary absence’ as an unpaid absence of not more than a total of three months in any 12-month period. From 1 July 2009, workers compensation is now considered a period of unpaid leave and counts towards the three-month temporary absence threshold.

However, unlawful dismissal laws, anti-discrimination laws or federal disability discrimination laws may apply where an employee claims their dismissal was due to their physical incapacity.

The employer would have to show that he/she took reasonable steps to accommodate the employee’s condition.

Failure of an incapacitated employee to participate in an accredited rehabilitation program would be a defence for an employer; whereas, an employer’s failure to provide light duties, if appropriate, may contravene these laws.

Workcover legislation

The employer should also check the relevant workers compensation law (see State/Territory headings, below) because some jurisdictions prevent the dismissal/sacking of an (injured) worker for a specified period, where the reason for the dismissal is because of the employee’s absence on workers compensation.

For example, in New South Wales this period is six months, while in Victoria this period is 12 months.

Reference should be made to the relevant commonwealth, state or territory workers compensation law to determine whether a dismissal can occur in a particular circumstance.

The following is a summary of the laws in each state and territory with respect to rehabilitation and the termination of an employee who is absent on workcover.

Australian Capital Territory (ACT)

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An employer is required to provide suitable employment (where possible) for an employee, subject to the employee’s request, within six months after the day the employee commenced receiving workers compensation. The employee may be dismissed for a reason other than the employee’s absence due to an injury subject to workers compensation.

As part of the Injury Management Process, an employer must provide for suitable employment after an injury has occurred where a request for work is received within six months of injury, and take part in vocational rehabilitation for the injured worker.

An obligation on the employer does not apply where the employee leaves the employment of their own volition; or, the employer ended the employment for a reason other than the employee’s absence on workers compensation; or where the employer cannot provide suitable employment.

New South Wales (NSW)

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An employer cannot terminate an employee within 6 months of being injured if the reason for the termination is due to the employee’s absence on workers compensation.

Under industrial relations legislation, an employer cannot terminate an employee within six months of being injured, if the reason for the termination is due to the injured worker’s absence on workers compensation.

An employer must have a workplace rehabilitation program and a written return-to-work plan for an employee incapacitated for more than 12 weeks.

Northern Territory (NT)

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Under the relevant workers compensation legislation, and according to NT WorkSafe, suitable employment must be reasonably available up until 104 weeks (two years) of incapacity has elapsed. The employer must assist with any rehabilitation program and take all reasonable steps to provide or obtain suitable employment. However, this does not apply to an employee who, because of the seriousness of their injury, will have little or no real ability to return to the workforce.

The employer must assist with any rehabilitation program and take all reasonable steps to provide suitable employment.

If the employer is unable to provide the worker with suitable employment they, in consultation with their insurer, must refer the worker to an alternative employer incentive scheme.

There is no time limit prescribed after which the injured worker may be dismissed.

Queensland (QLD)

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An employer cannot dismiss an employee within six months of being injured if the reason for the termination is due solely or mainly because the employee is not fit for employment because of a workers compensation injury. An employee may apply to the employer, within 12 months after the injury, for reinstatement to the employee’s former position. The worker must provide a medical certificate that certifies the worker is fit for employment in the former position.

Under industrial relations legislation, the employer must not dismiss an employee within six months after he or she becomes injured, solely or mainly because the employee is not fit for employment in a position because of the injury.

An employer must take all reasonable steps to provide rehabilitation and suitable duties to injured workers. Employers with 30 or more employees at a workplace must appoint a fully-trained and WorkCover-accredited rehabilitation coordinator and have a rehabilitation policy and procedures in place.

South Australia (SA)

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According to the WorkCover Corporation of South Australia, when a worker is injured at work, the employer must provide alternative duties (where possible) and work cooperatively with the claims agent. In certain circumstances a worker’s employment can be terminated but you should seek advice from the claims agent before doing so.

An employer with less than 10 employees is required to keep a position open for an injured worker for 12 months. An employer with 10 or more employees is required to keep a position open indefinitely.

The position must be employment for which the worker is fit and, so far as reasonably practical, the same as or equivalent to the position in which the worker was employed immediately before the incapacity. If the employer does not make a suitable job offer, heavy penalties may apply. The WorkCover Corporation is obliged to prepare a rehabilitation plan after three months, which is binding on both the worker and the employer.

Tasmania (TAS)

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The employer is required to keep a position open for the injured worker for 12 months, unless it is not practicable to do so or a reason for the position no longer exists.

The employer is required to keep the position open for the injured worker for 12 months, unless it is not practicable to do so or a reason for the position no longer exists. In addition, arrangements to make available suitable alternative duties is also the duty of the employer.

Where incapacity exceeds 14 days, the employer is required to prepare a return-to-work plan and employers with more than 20 workers are required to prepare and display a rehabilitation policy.

Victoria (VIC)

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An employer is required to keep a position open, ie pre-injury equivalent or suitable employment, for an injured worker for 12 months.

An employer is required to keep a position open for an injured worker for at least 12 months.

In addition, an employer must prepare a return-to-work program for any injured worker off work for 20 days or more (whatever the size of the business).

Western Australia (WA)

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Except in certain circumstances, the employer of an injured worker who attains at least partial capacity for work within 12 months of the date upon which the injury occurred, is obliged to provide the worker with a job as reasonably practicable to the job he or she was doing immediately before the injury occurred.

Except in certain circumstances, the employer of an injured worker who attains at least partial capacity for work within 12 months of the date upon which he/she becomes entitled to receive weekly payments of compensation, is obliged to provide the worker with a job as reasonably practicable to the job he or she was doing immediately before becoming entitled to receive weekly payments.

After four consecutive weeks of incapacity, or 12 weeks of incapacity within a 12-month period, the employer must notify the Workers’ Compensation and Rehabilitation Commission, who in turn may require the employer to take reasonable steps to facilitate the rehabilitation of the worker.

In Summary

In the case of an injured worker in New South Wales for example, it is an offence if an injured employee is dismissed by the employer, within six months of incapacity, solely or principally because the injured worker is not fit for employment in a position as a result of an injury that entitles the employee to workers compensation.

In the majority of other jurisdictions/states, an employer is required to keep a position open for the injured worker for at least 12 months, while the Australian Capital Territory legislation is 6 months and the Northern Territory legislation has no requirement to keep the position open.

Under the Cwlth Disability Discrimination Act 1992, a failure to make reasonable adjustments can be found to be unlawful discrimination. An employer would need to look closely at any adjustments that may be able to be made to accommodate a person’s disability.

Retirement and workcover

For statements from WorkCover and retirement in your state, click on your state below (provided by NSM):

Long service leave accrual

It should be noted this summary does not apply to the building and construction industry, which usually has separate long service leave legislation applying in each state/territory.

Federal award/agreement

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Not all federal awards or enterprise agreements provide for long service leave and in the absence of a long service leave provision, the relevant state/territory long service leave legislation would apply. However, as a general rule under federal awards where long service leave is provided, an employee would continue to accrue long service leave during an absence on workers compensation, however, reference should be made to the applicable award/agreement to establish the accrual of long service leave under these circumstances.

New South Wales (NSW)

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Under the Long Service Leave Act 1955 [NSW], an employee continues to accrue long service leave during any absence on workers compensation. The Act applies to all NSW private sector workers, except those workers covered by a federal award or enterprise agreement which provides for long service leave.

Victoria (VIC)

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All Victorian private sector workers are entitled to the minimum long service leave provisions of the Long Service Leave Act 1992 [Vic]. However, some employees may be entitled to better provisions if those are contained in a federal award or enterprise agreement. Otherwise, the Act provides an employee will continue to accrue long service leave for the first 48 weeks of any absence due to illness or injury, after which, accrual of long service leave ceases until the employee returns to work.

Queensland (QLD)

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The long service leave provisions contained in the Industrial Relations Act 1999 [Qld] prescribe that a period of absence on WorkCover counts as continuous service for the purposes of long service leave accrual. The Act applies to all Queensland private sector workers, except those workers covered by a federal award or enterprise agreement containing a provision for long service leave.

South Australia (SA)

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Under the Long Service Leave Act 1987 [SA], an employee continues to accrue long service leave during any absence on workers compensation. The Act applies to all South Australian private sector workers, except those workers covered by a federal award or enterprise agreement which provides for long service leave.

Western Australia (WA)

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Workers under a Western Australian state award or agreement are subject to the Long Service Leave General Order of the Western Australian Industrial Commission. Private sector workers who are award-free are covered by the Long Service Leave Act 1958 [WA]. Under both the General Order and the Act, continuous employment includes any period of absence due to illness or injury, but only the first 15 working days are included in calculating long service leave accrual.

Tasmania (TAS)

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Under the Long Service Leave Act 1976 [Tas], an employee continues to accrue long service leave during any absence from work on account of illness or injury that has been certified as necessary by a medical practitioner. The Act applies to all Tasmanian private sector workers, except those workers covered by a federal award or enterprise agreement which provides for long service leave.

Northern Territory (NT)

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Under the Long Service Leave Act [NT], the Act prescribes ‘where the employee is or was absent otherwise than on leave granted with pay by the employer….the period of the absence does not form part of the period of employment with that employer for the purposes of the Act.’

As workers compensation is pay from the insurer rather than the employer, it would appear an employee does not accrue long service leave during an absence on workers compensation. The Act applies to all Northern Territory private sector workers, except those workers covered by a federal award or enterprise agreement which provides for long service leave.

Australian Capital Territory (ACT)

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The Long Service Leave Act 1976 [ACT] provides that an employee does not accrue long service leave during any period of workers compensation. The Act applies to all ACT private sector workers, except those workers covered by a federal award or enterprise agreement which provides for long service leave.

A question about the accrual of long service leave

Does an injured worker (or employee) continue to accrue long service leave when absent/off work on unpaid sick leave?

aworkcovervictimsdiary received the following question (several times in similar phrasings) from (an) injured worker(s)

I have been injured at work, however my claim is still pending and liability is in dispute. A lengthy investigation is in process as well as various dispute resolution proceedings. I am not receiving any weekly pay and have had no option but to exhaust my leave. I am concerned that I have exhausted my balance of sick leave, personal (could also be carer’s leave), as well as my balance of annual leave. So in theory once could argue that at this stage (given that liability for my injury is denied) my absence from work is not deemed as a result of a work-related injury or illness.

I was basically wondering whether I (or any other person in my situation) will continue to accrue long service leave when absent on unpaid sick leave?

Our best Answer An employee’s (we use the general term employee here as we can not deem you an injured worker for the purpose of the legislation) entitlement to accrue long service leave is regulated by the relevant state or territory legislation, or, where applicable, the award-derived long service leave terms of a pre-reform federal award, as explained above in the bulk of the article/reference material.

Long service leave legislation does not provide for the accrual of long service leave during an employee’s absence on leave without pay, although some jurisdictions/states do if the unpaid absence is due to the employee’s illness or injury (as explained in the bulk of the article, above).

For example and as outlined above, under the Long Service Leave Act 1992 [Vic], any absence on account of illness or injury in excess of 48 weeks is not to be counted as service for the purpose of accruing long service leave.

In WA, the Long Service Leave Act 1958 [WA] states that an employee continues to accrue long service leave when the absence is due to sickness or injury, but only to the extent of 15 working days in any year.

Again, because the accrual of long service leave during an absence of unpaid sick leave is dependent on the jurisdiction/state in which the employee is employed, reference should be made to the relevant state or territory long service leave legislation to check out whether unpaid sick leave counts as service for the purpose of long service leave.

Rostered Days Off

A RDO that occurs while an employee is on workers compensation is absorbed into the period of compensation. The RDOs cannot be accrued and taken at a later date. If an employee is incapacitated for work on a day which is a RDO, workers compensation will be payable in respect of the incapacity for that period.
The High Court has held that a payment made for an RDO was a payment for accrued time which had already been worked but not paid for in the preceding 19 days and that such a payment did not exclude the liability to pay compensation in respect of incapacity for work on the ordinary working day which coincided with an RDO.
If an employee is incapacitated for work on a day which is an RDO, workers compensation will be payable in respect of the incapacity for that period. This means an employee will receive workers compensation payment for the RDO from their insurer, but not payment of any ordinary pay from the employer in relation to hours of work, except payment of credits for any working days actually worked by the employee during the roster cycle. In such case, the employee would receive payment for a RDO for any time worked during the roster cycle on a proportionate basis. An employee on workers compensation for the whole of the roster cycle would not receive any payment for the RDO from the employer. See Steggles Pty Ltd v Vandenberg (1986) 6 NSWLR 233 and 163 CLR 321.

Superannuation

Under the Superannuation Guarantee (SG), employers must contribute 9% of an employee’s ordinary time earnings (OTE) to the employee’s relevant super fund.

Workers compensation payments, including top-up payments, where no work is performed by the employee, are NOT included in an employee’s OTE for the purposes of calculating the SG.

Workers compensation payments, including top-up payments, where work is performed by the employee, are to be included in the employee’s OTE for the purposes of the Superannuation Guarantee.

Note: injured workers in Vic receive now (since 2010) super contributions – this means that they have to be injured in 2010 to qualify. Those injured before then do not receive super. Refer to the relevant legislation in your state.

tipHow to access superannuation and TPD insurance for injury compensation