Personal Leave does it accrue and salary continuous wages payable

We have an employee who has been off for 4 weeks now in hospital, he has the personal leave hours but the director has been advised that unless it is written in the employee’s contract, the personal leave doesn’t accrue only annual leave so he would be only entitled to the 10 days from his anniversary date.
The business contract doesn't have a clause about personal leave accruing. And fair work states about 10 days personal leave per year. So we are hoping that someone can shed some light on this subject.

Also this employee is collecting salary continuous wages from their insurance company while being paid by the company, in most places I have worked the insurance company has paid the company their portion of the salary continuous i.e. 75% then the company usually pays the other portion not included by the insurance policy to maintain full wages. Would like to hear about other experiences in this area as we are unsure whether we should be paying full wages as well.

any help would be appreciated..

Can't help with the second para.

As far as leave accrual is concerned, I'm fairly certain it is continuous, meaning you accrue personal leave as you go. That's certainly the way we have always done it and payroll software we have used calculates it that way.

Back in the day (like 25 years ago) it was common for companies to state that employees couldn't take leave in the first year, (stupid rule), but they still accrued the leave.

Thanks Moz i understand it to be that way and Fairwork have stated on their fact sheets as well you accrue and then it accumulates year after year.
The director says his friend who is an employment lawyer says unless it is written in the contract you forfeit any remaining personal leave on your anniversary. In all the places I have worked here and abroad I haven't seen this written in the contracts but i have seen a clause about they will payout the personal leave on the anniversary rather let it accumulate each year. I asked the director to get his friend to send through the clause in the act that states this.

Hi Tempsol, that's great that your director has a friend who is an employment lawyer. He will have someone to represent him when he gets hauled in front of the Fair Work Commission ;)

There are some changes afoot re leave accumulation, they may even have been enacted. From memory they do allow employers to pay out accumulated personal leave above certain number of weeks, but it's more than four.

Yes I agree Moz and thank you for the chuckle but according to him even after i gave him the evidence in writing via fairwork fact sheets, etc the lawyer would know better. I suppose it is in the interpretation of the act but I certainly read it as accumulative.

If he's a national system employee (covered by the Fair Work Act) then the personal leave definitely accumulates without limit. Only 10 days per year might be added to the balance, but the unused balance of personal leave from previous years is available to be used now if required. See section 96 of the Fair Work Act which states "An employee’s entitlement to paid personal/carer’s leave ... accumulates from year to year". And if your employee is hospitalised, he should certainly be able to provide medical evidence that would enable him to use his accumulated balance of personal leave.

This right to use the accumulated personal leave will apply regardless of any contract provisions and any insurance arrangements. However, the detail of any applicable insurance policy will set out whether the employee receives insurance payments, or the employer is reimbursed, and by how much.

Greg