Q. A manager is currently absent on 12 months' unpaid parental leave and is not due to return to work until next year. She has advised the company that she has been empanelled for jury service on a case expected to last three weeks.

Her contract of employment refers to the National Employment Standards (NES), including leave entitlements such as jury service leave.

Our payroll department is unsure whether the employee is entitled to jury service “make-up pay” (being the difference between any jury service payment received from the court and the employee's normal pay) while she is on unpaid parental leave.

Can the employee claim jury service pay during a period of unpaid parental leave?
  
A. The National Employment Standards contained in the Fair Work Act 2009 (Cth) provide employees with an entitlement to community service leave, including leave for jury service. However, different rules apply where an employee is already on unpaid parental leave. 

 

Community service leave during unpaid parental leave

Section 79(3) of the Fair Work Act provides that an employee is not entitled to any payment under the community service leave provisions in relation to activities undertaken while the employee is taking unpaid parental leave. This includes jury service. 

Accordingly, an employee who is absent on unpaid parental leave is not entitled to jury service make-up pay under the National Employment Standards. This is because the employee is already absent from work on unpaid parental leave and the Act specifically excludes community service leave payments during that period. 

 

State and Territory jury payments still apply

While the employee is not entitled to employer-funded make-up pay, they may still receive any allowance, fee or payment payable under the relevant State or Territory jury service legislation. The Fair Work Act does not remove those entitlements. 

 

Other leave during unpaid parental leave

The Fair Work Act also provides that an employee taking unpaid parental leave is generally not entitled to take:

  • paid personal/carer's leave; or

  • compassionate leave (except in limited circumstances relating to the death or stillbirth of the child for whom the parental leave is being taken). 

However, an employee may take certain forms of paid leave during a period of unpaid parental leave, including:

  • annual leave (by agreement with the employer); and

  • long service leave, where applicable. 

Taking these forms of paid leave does not break the continuity of the unpaid parental leave period. 

 

Jury Service Entitlements Under the NES

Jury service is a form of community service leave under the National Employment Standards. All employees, including casual employees, are entitled to be absent from work to attend jury service. 

However, only full-time and part-time employees are entitled to employer-funded jury service make-up pay under the Fair Work Act. Casual employees are entitled to the leave itself but not to make-up pay. 

Under section 111 of the Fair Work Act, an employer must pay an eligible employee their base rate of pay for ordinary hours of work, less any jury service payment received from the court. This obligation applies only for the first 10 days of absence relating to a particular jury summons.

For part-time employees, make-up pay applies only where the jury service falls on days the employee would otherwise have worked. 

 

Check Awards and Agreements

Employers should also review any applicable modern award, enterprise agreement or employment contract. Some industrial instruments provide jury service entitlements that are more beneficial than the minimum standards contained in the Fair Work Act. 

 

Bottom line

An employee who is absent on unpaid parental leave is not entitled to jury service make-up pay under the National Employment Standards because the Fair Work Act specifically excludes community service leave payments during periods of unpaid parental leave. The employee may still receive any allowance or payment available under the relevant State or Territory jury service legislation. If the employee were not on unpaid parental leave, a full-time or part-time employee would generally be entitled to make-up pay for up to the first 10 days of jury service, subject to the Fair Work Act and any more beneficial entitlement contained in an applicable award, enterprise agreement or employment contract.