It’s not an unheard of dilemma: an employee becomes ill whilst on annual leave. “I’d like to transfer the days during my annual leave that I was ill for my sick leave please”, an employee might say. But instead of laughing in their face, the Fair Work Act sets it out in black and white.
According to one IR expert, s.89(2) of the Fair Work Act addresses this issue. “If an employee falls ill during a period of annual leave, they are entitled to claim this period as [sick] leave and not annual leave. Obviously the employee will have to support the claim for [sick] leave with the requisite proof,” Daniel Houlihan from First IR Consultancy said.
Houlihan added that, much like workers’ compensation, the accrual of sick leave is a no-fault scheme. Therefore whether it’s a case of an accidental injury or illness, or an employee doing something reckless and becoming sick or injured as a result, employees are entitled to access their paid sick leave regardless of why they became ill or injured.
Yet as one HR consultant pointed out, the provision is in place for a good reason. Principally, the whole provision encourages employees to have a restful break that they enjoy, and can then come back to work happy and healthy. “It doesn’t matter if [an employee] goes overseas, interstate, or even stays at home, if they get the flu or even some tropical disease, and it means they’re bedridden – [an employee] can come back to work and legitimately ask for that leave to be re-credited,” Linda Norman from HR Plus told HC.
Norman added that in her experience, this provision of the Fair Work Act is not something that employers are commonly aware of. “It perhaps has that ‘little bit odd’ factor, maybe a difficult to understand, and some people would even have difficulty accepting that it is in fact a legitimate provision,” she said.
However, transferring annual leave for sick leave does not work the same way for long-service leave and maternity leave – these provisions differ from state-to-state, and this in not covered within the National Employment Standards (NES).