In NSW, each year approximately 200,000 potential jurors are randomly selected from the NSW Electoral Roll and included on a jury list. Approximately 150,000 of these people are sent a jury summons notice at some point in the year. This notice will require them to attend Court where they may be selected as a juror for a specific trial.
Losing an employee for several days or even weeks while they serve jury duty is always inconvenient and can be difficult on any business. It is for this reason we commonly receive queries from employers about their rights and obligations when an employee is called for jury duty.
Jury duty (also known as jury service) is governed at State and Territory level, so unfortunately the rules regarding jury service differ slightly across Australia. In addition, the Fair Work Act 2009 (Cth) (“FW Act”) and the National Employment Standards (NES) provide for jury duty under the community service leave provisions.
Can I stop my employee from attending jury duty?
It is important to understand that as an employer, you are obliged to release any employee summoned for jury service. You must not stop the employee from attending, including by the use of threats to their employment, wages or working hours. An employee under the Jury Amendment Act 2010 (NSW) is considered anyone who is employed on a full time or part-time basis or has been a regular casual employee for the previous 12 months.
If the loss of your employee to jury service will cause significant hardship to the business, you may be able to request by application to the Court that the employee be excused. An employer would need to explain the significant negative impact on the business if the employee was compelled to serve. This will only be possible before the jurors have been selected, and should be done as soon as practicable after the employee first receives the letter of summons. Making such a request does not guarantee that the employee will be excused from the jury service.
An employee may themselves request to be excused on personal grounds, such as on the basis of family responsibilities, medical conditions, study commitments, transport difficulties or conflict of interest.
Do I need to pay an employee for attending jury duty?
Jury duty is the only form of community service leave that is paid. Under the FW Act, employers must pay full-time and part-time employees ‘make-up pay’ for the first 10 days of jury selection and jury duty. Make up pay is the difference between any jury duty payment the employee receives from the government and the employee’s base pay rate for the ordinary hours they would have worked. Employers do not need to pay community service leave for employees who are still completing jury duty after 10 days.
Before paying make-up pay, an employer is entitled to request evidence from an employee to show:
- that the employee has taken all necessary steps to obtain jury duty pay; and
- the total amount of jury duty pay that has been paid or will be payable to the employee for the period.
If the employee cannot provide evidence regarding the jury duty pay he has received or to which he or she is entitled, the employer is not obliged to pay the employee make-up pay.
All leave associated with jury service is known as community service leave. For periods in excess of 10 days, such leave will be treated as unpaid community service leave. Community service leave is treated as service with the employer regardless of the length of the leave.
Can I terminate or change an employee’s position while on jury duty?
Most Australian States and Territories have laws which impose significant penalties on employers who either terminate or detrimentally change an employee’s employment because they are performing jury service.
For example, the Jury Act 1977 (NSW) and the Jury Amendment Act 2010 (NSW) specifically outlines that an employer cannot:
- Force an employee to take their own leave, such as annual or personal leave, for the purpose of complying with a summons to serve as a juror;
- Dismiss, injure or alter an employee’s position by reason of the fact that the person is summoned to serve as a juror;
- Ask an employee to work on any day that they are serving as a juror;
- Ask an employee to complete additional hours or work to make up for time that they missed as a result of jury service.
Any contravention of the above may result in a fine of 200 penalty units ($22,000) for a corporation or 50 penalty units ($5,500) or imprisonment for an individual. In any event, taking any adverse action against an employee who is on jury duty would be a breach of the General Protection provisions of the FW Act.
For many employers having employees away from work for extended periods on jury service can be practically difficult and extremely costly. Unfortunately, given the civic duty required of most citizens to perform jury duty, this is a cost that must be worn by the business. It is however important for any business which may need to excuse one or more of its employees to allow them to perform jury duty to properly plan for this eventually. This would include understanding the possible length of the employee’s absence; putting in place appropriate measures to cover the absence; arranging for appropriate handover of work and the like. As such it is imperative for employers to have a carefully considered policy dealing with these issues and to ensure that employees who have been summoned to serve jury duty are aware of what is required of them.
If you wish to discuss any aspect of this article or require specialist advice or assistance in relation to an employment law matter, please do not hesitate to contact us.
This alert is not intended to constitute, and should not be treated as, legal advice.