The ins and outs of community service leave

February 16, 2021
FCB Workplace Law

Most Australians go above and beyond to help those in need – it’s in our nature to serve the community, no matter what the emergency, natural disaster or situation. You only have to think back to 2020 when our country was battling fires and cleaning up after mass flooding; we got through this thanks to the support of the people who volunteered their time and energy.

So how can a business support its employees if they decide they want to assist in a crisis situation? In some circumstances, your employees are entitled to community service leave – this allows them to be absent from work when they’re participating in a particular community service activity. Community service leave also applies to other circumstances. Here, explain the entitlement and when it applies.

What is the entitlement?

Community service leave is an entitlement under the NES. A person is entitled to be absent from the workplace when he or she is engaged in either:

  1. jury service, including attendance for jury selection; or
  2. a “voluntary emergency management activity” that involves dealing with an emergency or a natural disaster, for example firefighting or SES volunteers.

A staff member who intends to take community service leave must notify you of the expected period of their absence as soon as practicable. They must also provide evidence to prove that the reason for the absence is legitimate.

There is no limit on how much community service leave an employee is entitled to. Employee can be absent from their employment:

  1. For the time they’re engaged in the activity, including reasonable travelling time associated with the activity and reasonable rest time following the activity;
  2. If the absence is reasonable in the circumstances (remember jury service is always taken to be reasonable!)

When you must pay an employee for community service leave

Jury duty is the one type of community service leave that attracts payment for your employees (other than a casual employee).

Employees who are required to attend jury service or jury selection are entitled to be paid “make up pay” for the first 10 days of jury selection and jury duty. “Make up pay” is the difference between the amount the employee receives from the Court, and employee’s base rate of pay they would have received for the ordinary hours they would have normally worked, had they not been absent due to jury duty, excluding expense related allowances.

As an employer, you are entitled to ask the employee to provide evidence of any payment they received from the Court before you pay any make up pay. If your employee fails to provide evidence, they aren’t entitled to receive payment from you.

It is, however, important to keep in mind that if State and Territory laws provide for a better entitlement than the NES, then these will apply instead of the Fair Work Act 2009. For example, if a State or Territory law provides that a casual employee should receive payment for jury, this would apply.

When you do not have to pay an employee for community service leave

Community service leave that is taken because of a voluntary emergency management activity is unpaid. You also do not have to pay “make up pay” when an employee’s period of jury duty extends beyond 10 days.

Employees required to attend court as witnesses

Interestingly, employees who are required to attend court as witnesses are not entitled to community service leave. An employee who is required to attend court for a reason other than jury service may take paid annual leave or request unpaid leave for the period they will be away from work.

For more information on the recommendations in this article and what this means for you, contact the team at FCB Group.