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Maternity leave and workers compensation payments – am I entitled to both at the same time?

Maternity leave and workers compensation payments – am I entitled to both at the same time?

Published on July 12, 2023 by Nada NajjarNada Najjar

If you’re receiving weekly workers compensation payments because you’ve been injured at work and you’re unfit to perform your pre-injury or other suitable employment as a result of your injury, what happens if you then find out you are pregnant and will now have a baby that requires your care? This article looks at whether your entitlement to workers compensation payments is affected by maternity leave.

Am I entitled to take unpaid maternity leave while receiving weekly workers compensation payments?

There is nothing contained in the Fair Work Act 2009 (Cth) that precludes you as a worker in receipt of weekly payments of workers compensation from accessing your unpaid parental leave (parental leave incorporates maternity leave, paternity and partner leave, and adoption leave). Therefore, yes, you can take unpaid maternity leave while in receipt of a weekly workers compensation payment. Being in receipt of weekly workers compensation payments does not disentitle you from taking time off to care for your baby.

Can I still receive my weekly workers compensation payments while on maternity leave?

Workers’ compensation legislation specifically deals with weekly payments, annual leave, long service leave, holiday leave and sick leave, however, is silent on whether you as an injured worker can receive parental leave payments while also receiving weekly payments of workers compensation.

This question has been dealt with in Miller v New South Wales Police Service (No.2) [2007] NSW WCCPD 216 and was confirmed in Kirkbide v The State of New South Wales (Ambulance Service) [2019] NSWWCC 236 (Kirkbide).

In Kirkbide, the Arbitrator held that an employer’s liability does not stop if you have a subsequent life event that then that causes you an incapacity that is not related to your work. This would be known as a supervening incapacity. So a supervening event, such as you taking maternity leave is not relevant to the question of whether you as an employee are entitled to receive weekly payments of workers compensation.

The Arbitrator found that not even paid parental leave will affect a worker’s entitlement to worker’s compensation payments, that maternity leave payments are not a ‘dual benefit’ under section 46 the Workers Compensation Act 1987 (NSW), and have no relationship or association with the receipt of weekly compensation payments due to your incapacity for work.

The Arbitrator also found that the receipt of paid maternity leave is not earnings and therefore if you take paid parental leave the amount you are to be paid for that leave should not be deducted from your weekly payment of workers compensation. Therefore, leave taken as a result of pregnancy does not affect your weekly entitlement to workers compensation as an injured worker.

It is important to note that your workers entitlement to paid parental leave will depend on your governing employment document (for example your employment contact, award or enterprise agreement or other workplace policies). If you cannot locate the relevant information, you should contact your Human Resources department and ask them.

The Australian Government also provides a Parental Leave Policy for employees that meet the Eligibility Test. From 1 July 2023, it is a payment of up to 100 days or 20 weeks’ pay while you care for your baby. If you are seeking paid leave, you must have worked for at least 330 hours in 10 out of 13 months before the birth or adoption of your baby; worked at least 330 hours in that 10-month period (it equals less than 2 days per week) and had no more than an eight-week gap between any two consecutive working days. Therefore, if you cannot work before commencing maternity leave you may not be eligible to receive the government paid parental leave payment if you are unable to satisfy this work test.

Uncertain about your workers compensation entitlements?

Please contact Nada Najjar if you have any queries around workers compensation and maternity leave payments.

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