Q. One of our employees has been notified to attend for jury service in the coming weeks. The trial is expected to run for at least six weeks. The employee is a full-time employee covered by the Manufacturing and Associated Industries and Occupations Award 2020 and will receive jury service payments from the NSW Supreme Court.

Is the company required to pay the employee's ordinary wages for the entire six-week period of jury service, or only the difference between the court payment and the employee's normal pay?
Further, because the employee will be absent from work for an extended period, must the employee take annual leave after a certain period of time?

 

A. An employee's entitlement during jury service is determined by three potential sources:

  • the National Employment Standards (NES) in the Fair Work Act 2009 (Cth);

  • any applicable modern award or enterprise agreement; and

  • relevant State or Territory jury service legislation. 

Where an award or enterprise agreement provides a more beneficial entitlement than the NES, the more beneficial provision will generally apply. 

 

Community Service Leave

Jury service is a form of community service leave under the National Employment Standards. Employees are entitled to be absent from work for the time necessary to attend jury service, including jury selection and any period of service required by the court. 

Importantly, an employee is not required to take annual leave simply because a jury trial extends beyond a particular period. The employee remains on community service leave for the duration of the jury service obligation

 

Manufacturing Award Entitlement

Unlike many modern awards that simply refer employers and employees to the National Employment Standards, the Manufacturing and Associated Industries and Occupations Award 2020 contains a specific jury service provision. 

Under the Award, a full-time employee required to attend jury service during ordinary working hours must be reimbursed by the employer for the difference between:

  • the amount paid by the court for jury service; and

  • the wages the employee would have received for their ordinary hours of work had they not been absent on jury service. 

As a result, the employee is entitled to make-up pay rather than full duplicate payment. The employer effectively tops up the employee's jury service payment so that the employee receives the equivalent of their normal ordinary earnings.

Because this Award provision is more beneficial than the minimum entitlement under the NES, it applies to employees covered by the Award.

 

National Employment Standards

If the Award did not contain a specific jury service provision, the National Employment Standards would apply.

Under section 111 of the Fair Work Act, an employer must pay a full-time or part-time employee their base rate of pay for ordinary hours of work, reduced by 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. 

The employer may require the employee to provide evidence showing:

  • that they attended jury service; and

  • the amount of jury service payment received or payable from the court. 

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

 

Casual Employees

Casual employees are entitled to take community service leave for jury service. However, they are not entitled to employer-funded make-up pay under the National Employment Standards unless a more beneficial entitlement exists under an award, enterprise agreement or State or Territory law. 

 

State and Territory Jury Service Laws

State and Territory jury legislation continues to operate alongside the Fair Work Act and governs matters such as jury allowances and payments made by the court. The Fair Work Act specifically allows more beneficial State or Territory jury service entitlements to continue to apply. 

In New South Wales, jurors selected to serve on a trial receive jury allowances through the court system. Any employer make-up pay is generally calculated after taking those jury payments into account. 

 

Bottom Line

Because the employee is covered by the Manufacturing and Associated Industries and Occupations Award 2020, the Award's jury service provision should be considered before the National Employment Standards. The employee is entitled to receive make-up pay—the difference between the amount received from the court and the wages they would ordinarily have earned—for the duration of the jury service period. The employee is not required to take annual leave merely because the jury service extends beyond 10 days; the absence continues as community service leave for the entire period of jury service, subject to the employee providing any required evidence of attendance and jury payments received.