Can I use sick leave to top up my workers compensation payments?

If you are unable to work due to injury or illness, your employer may be liable to pay your accrued sick leave entitlements in accordance with your Award or other Agreement.

When you are unable to work due to a work related injury, you may also be entitled to receive workers compensation benefits.

Under section 50(2) of the NSW Workers Compensation Act 1987, the employer's liability to pay sick leave is deemed to have been satisfied by the payment of workers compensation benefits, but only to the extent of the payments made.

That means if your workers compensation payments are less than your sick leave entitlements for a period, your employer will remain liable to pay the difference out of your accrued sick leave, provided you meet the conditions for payment of sick leave under your Award and your Award does not preclude such "top up" payments.

Many Awards applying to NSW Government employees have specific clauses setting out the circumstances in which sick pay will be paid when there is also an entitlement to claim workers compensation. Those clauses can override the general entitlement to sick leave when there is also an entitlement to compensation (see for example Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 (Workers Compensation Top-Up) [2022] NSWIRComm 1080 ). If in doubt, check with your union.

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DISCLAIMER: This blog is made available by Mortimer Fox Lawyers to give you general information and a general understanding of the law, not to provide specific legal advice. Unless otherwise stated, all information provided pertains to injuries sustained in or in connection with New South Wales. By using this blog you understand that there is no solicitor client relationship between you and Mortimer Fox Lawyers. This blog should not be used as a substitute for legal advice. If you require legal advice please contact us for an appointment.