Q. Our company employs a manager who is currently absent on 12 months of unpaid parental leave and is not due to return to work until April next year. The employee has advised the company she has been empanelled for jury service on a case that is expected to last five weeks. 

The contract of employment refers to the National Employment Standard with respect to leave entitlements, including jury service. The company is not sure whether the employee is entitled to ‘make-up pay’, representing the difference between the jury service payment by the court and the employee’s ordinary rate of pay. 
 
As the employee is already absent on unpaid parental leave is there still an entitlement to payment for jury service in this circumstance? 
 
 

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, special rules apply where an employee is already absent 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, where an employee is already absent on unpaid parental leave, the employer is not required to provide jury service make-up pay under the National Employment Standards.This is because the employee is already on an approved period of unpaid leave and is not entitled to community service leave payments during that period.

 

Court payments still apply

Although the employee is not entitled to make-up pay from the employer, they may still be entitled to receive any allowance, fee or payment available 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, such as annual leave (by agreement with the employer) and, where applicable, long service leave. Doing so does not break the continuity of the unpaid parental leave period. 

 

Jury service entitlements in other circumstances

For employees who are not on unpaid parental leave, 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 jury service make-up pay under the Fair Work Act. Casual employees are entitled to the leave but not to employer-funded 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 make-up pay 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 coincides with 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 unpaid parental leave. The employee may nevertheless 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 ordinarily be entitled to employer-funded make-up pay for up to the first 10 days of jury service, subject to the requirements of the Fair Work Act and any more beneficial entitlement under an applicable award, enterprise agreement or employment contract.