This article summarises an employees entitlement to jury service under the Fair Work system.
Employers may sometime receive enquiries regarding an employee who has been directed to attend for jury service and the employee’s entitlement to payment for such an absence.
An employee’s minimum entitlement to jury service is covered under the community service leave provisions of the National Employment Standards (NES), while additional entitlements may be provided by the applicable industrial instrument (eg modern award or enterprise agreement) as well as the relevant state or territory jury service statute.
It should be noted that any jury service entitlement provided by an industrial instrument that is more beneficial than the NES will prevail.
National Employment Standards (NES)
Payment for jury service represents a make up pay that is the difference between the employee’s base rate of pay and the amount the employee receives from the court for attending jury service under the relevant state or territory jury service law or regulation.
The employee’s base rate of pay is the wage rate for their ordinary hours, excluding incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates and other separately identifiable amounts.
Section 111 of the Fair Work Act 2009 also provides that an employer’s obligation to pay a full-time or part-time employee is capped at 10 days in total.
This would mean that a full-time employee working Monday to Friday, would be entitled to make-up pay for the first two weeks of the absence. In the case of a part-time employee working two days per week, the 10-day
The Explanatory Memorandum to the Fair Work Bill 2009 provided an example for employers on the method of calculating make up pay with respect to an employee’s absence on jury service.
The person is a part-time employee employed in New South Wales working four days per week. Their gross wage is $800 per week ($200 per day).
The employee is absent on jury service for four weeks.
Under the NSW Jury Act 1977 and NSW Jury Regulation 2004, the employee is entitled to an attendance fee of $88.40 per day for the first week of jury service, rising to $102.60 per day for the second week and $119.70 per day for the third and fourth weeks. The employee is also entitled to a travelling allowance of up to $29.60 per day.
Under this law, the attendance fee is only payable if the employee’s full wage is reduced during the period of jury service and only to the extent of that reduction. The employee must provide a statutory declaration to that effect when claiming the attendance fee from the Court. After this is verified, the make-up pay the employer is required to provide is as follows:
Week 1: $446.40, calculated as $800 (4 × $200) minus jury allowance of $353.60 (4 × daily jury allowance of $88.40)
Week 2: $389.60, calculated as $800 (4 × $200) minus jury allowance of $410.40 (4 × daily jury allowance of $102.60)
Week 3: $160.60, calculated as $400 (2 × $200) minus jury allowance of $239.40 (2 × daily jury allowance of $ 119.70)
Week 4: nil (because of the 10-day cap).
The amount of payment a person receives for attending jury service will depend on the relevant state or territory law, therefore reference should be made to the relevant state or territory law to determine an employee’s entitlement to payment from the Court in this regard.
A common provision in modern awards is that a full-time employee required to attend for jury service during ordinary working hours is reimbursed an amount equal to the difference between the amount paid to the employee for attending jury duty and the wages the employee would have received for their ordinary hours had the employee not been on jury service. This would appear to include amounts such as work-related allowances (eg leading hand, industry, tool allowance) and shift penalties (as opposed to the base rate of pay prescribed under the NES).
In addition, the make-up pay for jury service under a modern award may be payable for the entire period the employee is absent on jury service, not capped at 10 days. Reference should be made to the applicable modern award to determine whether a cap applies to jury service make up pay by the employer.
The Manufacturing and Associated Industries and Occupations Award 2010 is an example of a modern award that provides jury service make-up pay to the employee’s actual rate of pay, and the period of absence an employee is on paid jury service is uncapped.
State/territory jury service laws
Section 112(1) of the Fair Work Act states that state or territory laws which provide employee entitlements in relation to community service activities (eg jury service) are not excluded and continue to apply where there is a more beneficial entitlement.
For example, the Fair Work Act does not exclude a state or territory law that entitles a casual employee to be paid jury service pay. Likewise, a state or territory law that provides that the employer pays jury service pay for a period longer than 10 days will also apply to the employer.
The following state and territory laws regulate jury service:
ACT Juries Act 1967
NSW Jury Act 1977
NT Juries Act
Qld Jury Act 1995
SA Juries Act 1927
Tas Juries Act 2003
Vic Juries Act 2000
WA Juries Act 1957
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