When an employee is required to attend court as a witness, they often wonder whether they are entitled to jury service pay or wage make-up. Understand the difference between jury service and witness attendance under the Fair Work Act and relevant awards.


Q. We have an employee who has been called as a witness in a criminal matter being heard before the Western Australia Supreme Court. Because of the nature of the trial, the witness has said they are expected to attend court for at least two days. The employee has enquired whether they are entitled to be paid for jury service.

While the employee is expected to receive payment from the Court to cover witness expenses, this will not be sufficient to cover the employee’s wages for each day. Is the company required to make up the difference between the witness expenses and their ordinary rate of pay? The employee is employed under the Electrical, Electronic and Communications Contracting Award 2020. 


A. An employee ordered to appear in court proceedings as a witness is not covered by the jury service provisions under the National Employment Standards nor the jury service clause in a modern award. These provisions only relate to jury service, not to summons for any other court attendance. Specific state and territory jury service legislation also applies when a person is called for jury service.  

Specific legislation in Western Australia provides payment for an employee who is called as a witness in court proceedings. Generally, modern awards do not offer make-up pay for an employee called as a witness, although such a term may be included in an enterprise agreement.  

 

Western Australia  

The Evidence Act 1906 (WA) (s. 119) states that an employer must continue to pay any earnings that a witness could reasonably expect to have been paid while attending Court. The employer may then submit a claim to the Office of the Director of Public Prosecutions for Western Australia for reimbursement of these costs. 

Self-employed witnesses or contractors may also be entitled to some reimbursement if an actual loss of income can be clearly established. If an employee receives a summons to appear as a witness, they will receive further information on how to claim loss of income. 

 

Other jurisdictions 

In other states and territories, there is no statutory obligation imposed on an employer to pay an employee who has been called as a witness in proceedings before a court or tribunal. Generally, the relevant Commonwealth, state or territory statute will enable an employee to claim reasonable expenses from the person or lawyer who called them as a witness.  

 

Witness expenses

Generally, a person called as a witness in court proceedings can claim compensation for reasonable expenses incurred in attending court. For example, a person called as a witness to a matter before the Federal Court of Australia is entitled to claim: 

  • any cost of travelling to and from the court 
  • the cost of overnight accommodation (if necessary) 
  • a reasonable amount to compensate the person for any wages or income lost when attending the court, and 
  • if the person is called as an expert witness, payment for the time the person spent preparing a report. 

The employee should make enquiries regarding compensation for reasonable expenses with officials at the attending court. The employer should also check the applicable modern award or enterprise agreement to determine whether an employee has an entitlement to payment for attending court as a witness. 

 

Bottom line 

The jury service provisions of the Fair Work Act or a modern award does not cover an employee called as a witness in court proceedings. Except in Western Australia, there is no statutory entitlement for an employee to be paid make-up pay when required to attend court as a witness. However, reasonable expenses can usually be claimed.