Fair Work

Paying Employees serving Jury Duty

By Paolo Coniglio, 06.01.2022

Jury Duty

Jury Duty is an entitlement included with Community Service Leave as part of the National Employment Standards. However, unlike other types of Community Service Leave, Jury Duty is a paid entitlement for the Employee.

When an employee is summoned for Jury Duty, they are required to inform their Employer as soon as possible and notify them of their absence. It is unlawful for an Employer to prohibit an Employee from attending Jury Duty, or terminating their Employment.

There are two different types of Jury Duty Summon:

  1. Selection Day > This is the day an individual is required to turn up at their local court to be potentially selected as a Juror. However, only a small percentage of people summoned for Jury selection day ends up being selected to serve.
  2. Jury Duty > This is the true service component of Jury Duty and the period whose terms of payments are subject to both Federal and State legislation.

Preliminary Selection Day

Some States view the day of Preliminary Selection as a regular workday. This also means that, whenever practical, if an Employee is quickly dismissed from Jury Duty, they are required to attend work for the remainder of the day. In other States (i.e. Western Australia), this is simply a day the Employer has to wear the cost for the employee attending Jury Selection as a loss that has ‘minimal impact on the Employer’. Therefore, Jury Duty selection day should be paid as a regular payroll day. For small businesses it’s probably more laborious to create a separate Pay Category for this day, an easier way to highlight that the Employee wasn’t actually on work premises is to add a note in the payslip detailing their absence.

Jury Duty 

After the initial selection day, Jury Duty may include two stages. The first stage is Jury Selection. This is where the court selects the 12 jurors from the larger number picked on selection day. This process can take up to 10 working days. The second stage is when a person is empanelled to serve as a Juror for a trial. A trial may last weeks or even months, depending on the case.

Payments for Jury Duty

So, are Employees compensated for Jury Duty?

Generally yes, all individuals (Employed or Unemployed) receive compensation for Jury Duty or in some States, their Employers are required to keep paying them as per normal. The compensation is paid by the local court and consists of: a daily allowance (also called in some States an ‘Attendance fee’) and reimbursement of out of pocket expenses (Public Transport or Car Km travelled, Parking, Meal Allowance and even Childcare fees. This varies from State to State).

The daily allowance also increases after a set number of days of serving Jury Duty (between 6 -10 days depending on the State). Essentially, the allowance is lower during the estimated time of Jury Selection and then increases during the estimated time of the trial.

The Daily Allowance is considered assessable income reportable on the Annual Income Tax Return. Individuals who receive the Newstart Allowance should also declare this payment to Services Australia.

Employer’s Cost

Is Jury Duty a cost for an Employer?

Jury Duty may or may not be a cost for the Employer, depending on the Employee’s Employment Type (Permanent versus Casual) and the State where the Employee resides.

An Employer needs to review three separate pieces of legislation to determine whether to pay Jury Duty to an Employee, the number of days they should pay and how much per day.

Jury Duty In Australia

1. The Fair Work Act

Section 111.5 of the Fair Work Act 2009: ‘Payment to employees (other than casuals) on jury services’, stipulates that the Employer must pay up to the employee’s base rate of pay for the first 10 days of absence during a Jury Summon. This means the Employer is required to pay a make-up payment between the daily allowance paid by the court and the Employee’s regular daily pay rate. Out of pocket expenses reimbursed by the court, should not be included in this calculation.

This provision does not apply to Casual Employees.

For example, if a Full-Time Employee is normally paid $30 per hour and the court reimburses $100 for the day. The makeup pay should be calculated at: 7.6 * 30 = $228 – $100 Court Attendance Fees = $128 makeup pay.

However, Section 112 of the Act, also declares that State and Territory laws are not excluded. This means that if a State or Territory law requires the Employer to pay more than what is stipulated in the Fair Work Act, then the State and Territory law will supersede the provisions set out in the Fair Work Act.

2. The Classified Award or Enterprise Agreement

The next area Employers should review is their Employee’s classified Award or the Enterprise Agreement. Specifically, the ‘Community service leave’ section. Most Awards will simply state ‘Community service leave is provided for in the NES‘, in this case, the conditions stipulated in the Fair Work Act will be the applicable ones. However, other Awards, or more likely other Enterprise Agreements, may have other provisions which may include paying Jury Duty to Casual Employees or extending the payment of the makeup pay to longer than 10 days. In this case, these provisions will supersede the conditions specified in the Fair Work Act.

3. The State and Territory Laws

Jury Duty Service is covered by the State and Territory ‘Juries Act’ and the local Court Ruling. Employers should review whether the State and Territory Laws extend the requirements of payment days or employment type set out in the Fair Work Act 2009.

Jury Duty Employee Payments and Employer Obligations by State

New South Wales

The State of New South Wales pays an attendance daily fee for the first 10 days of service. The daily fee then increases for the remainder of the Jury Service. However, the increase only applies to employed individuals.

Out of pocket expenses only include transport fees per Km travelled.

In terms of Employer’s obligations, the NSW Jury Act 1977 and the NSW Jury Amendment Act 2010 both confirm the same Employer obligations determined by the Fair Work Act.

Queensland

The State of Queensland pays an attendance daily fee to people during the Jury service, the fee then increases for people empanelled as Jurors and once again after the 20th weekday of the Trial.

Out of pocket expenses only include a travel allowance (reimbursement of public transport fares or km allowance if travelling by car).

The QLD Jury Act 1995, makes no mention of Employer’s responsibility and the Queensland Courts’ website simply states the payment of the employee depends on the Industrial Award they are employed under. The Court also allows the Employer to advance the money paid by the Court fees to the Employee and for the Employee to reimburse the money to the Employer once they receive payment from the Court.

Victoria

The State of Victoria pays an attendance daily fee for the first 6 days of service. The daily fee then increases for the remainder of the Jury Service.

The court site does not make any mention of out of pocket expense reimbursements.

In terms of Employer’s obligations, Section 52 of the VIC Juries Act 2000 requires Employers to pay up to the employee’s base rate of pay for the entire duration of the trial. Furthermore, it states that the makeup payment should be calculated based not on the Employee’s regular wages or salaries, but on the amount they would reasonably expect to earn had they not attended for jury service. This means the makeup pay calculation should include any applicable penalties, allowances and loadings. Furthermore, depending on certain circumstances (to be reviewed on a case by case basis by the Victorian Court) the same ruling could also extend to Casual Employees.

South Australia

The State of South Australia pays a very low daily fee (as of December 2021 $20 per day) for each day of Jury Attendance. However, if an individual suffers a monetary loss from attending Jury Duty, they can make a reimbursement claim to a maximum of $150 (as of December 2021) on top of the daily fee.

Out of pocket expenses only include transport fees per Km travelled.

Similarly to Queensland, the SA Juries Act 1927 makes very little mention of the Employer’s responsibilities. However, the South Australian Court website simply states the payment of the employee depends on the Industrial Award they are employed under. The Act also allows the Employer to advance the money paid by the Court fees to the Employee and for the Employee to reimburse the advance to the Employer once they are paid.

Australian Capital Territories

ACT pays different attendance fees that vary depending on the number of hours of court attendance (more or less than 4 hours) and the number of days of attendance, day 1 – 4, day 5 -10 and each day after the 10th day.

Out of pocket expense reimbursements include a daily travel allowance and meal allowance for lunch and dinner.

In terms of Employer’s obligations, the ACT Juries Act 1967 makes no mention of Employer’s responsibility. However, the ACT Court website refers the Employers to the National Employment Standards or specific clauses stipulated in the classified Award or Enterprise Agreement.

Tasmania

Tasmania, the most generous of all Australian States, matches the Employer’s salary up to a fairly generous daily amount (over $250 per day since July 2020). Employees must provide copies of payslips to the Tasmanian Supreme Court to receive wage reimbursements. Unemployed individuals receive a much smaller daily amount, only increased by $10 between the first three days of attendance and the remainder of the trial.

The State also offers lots of out of pocket expense reimbursements including parking, mileage and childcare fees. They also provide meals to Jurors including the option to provide special dietary requirements.

Once again no mentions of Employers’ obligations in the TAS Juries Act 2003 and the Tasmanian Supreme Court website only mentions basic employment rights of inability for Employers to prevent or dismiss Employees from attending Jury Duty. In absence of any additional details, an Employer should refer back to the conditions set out in the Fair Work Act or specific clauses stipulated in the Employee’s classified Award or Enterprise Agreement.

Northern Territory

The Supreme Court of the Northern Territory only pays a minimal amount for Jury Duty attendance ($20 per day as of December 2021) during Jury selection. The rate then increases for attendance during trial and doubles after the 9th day of the trial. Finally, if a person is able to prove hardship an additional $20 – $30 per day may be paid.

The court provides for food and refreshments and a small daily travel allowance.

Neither the NT Juries Act 1962, nor the NT Supreme Court’s website mention Employer’s obligations. Employers who have employees in the Northern Territory should refer to the Jury Duty clauses from either the National Employment Standards or their Employee’s classified Award or Enterprise Agreement.

Western Australia

The WA Government website states on their Jury Duty Page: ‘Jury Duty is a legal responsibility shared between all members of the community. This means the Employer has the legal responsibility to continue to pay their Employees their usual wages while attending Jury Duty.

Daily attendance fees are only available for unemployed jurors and they are a minimal amount ($20 for a full day attendance or $10 for half-day as of December 2021). The requirements to pay their Employees in full also extends to any Casual Employee who had a reasonable expectation of work during Jury Duty. This is set out in the WA Juries Act 1957 and the WA Juries Regulation Act 2008 which supersede the Fair Work Act 2009.

The only reimbursable cost mentioned on the Court’s website is a payment allowance whose amount depends on public transport cost to and from the Juror’s place of residence and the Court. Kilometre travelled reimbursement is only available in regional areas where public transport may not be available.

Employers can submit a claim to the WA Government for loss of income suffered from the absence of the employee as a consequence of attending Jury Duty. The same applies to Sole Traders. The Claims are assessed on a case by case basis and are only approved if the Employer can demonstrate a loss or show reasonable financial impact as a result of attending Jury Duty. Mor information on how to process the claim is available on the WA Government Website.

Processing Jury Duty Payments through Payroll

Based on the information provided by the Fair Work Act and State and Territory laws the correct way to pay Employees for Jury Duty changes depending on various factors, including the Jury Duty period and the State where the Employee resides. We have identified three specific pay categories you should create in your Payroll System to process Jury Duty Payments correctly.

  1. A Paid Leave Category called ‘Jury Duty Leave’
    You will need to use this pay category when the Employee is away on Jury Duty but you are still required to pay either their full wage (i.e. in WA) or the makeup pay.
  2. A Wage Category called ‘Jury Duty Daily Allowance’
    You will need to use this pay category together with the Jury Duty Paid Leave category and enter the total amount of Jury Duty allowance for the pay period as a negative value in your Employee’s pay.
  3. An Unpaid Leave Category called ‘Community Service Leave’
    A number of Payroll Systems already includes this Pay Category by default. You will need to use this category when you are no longer required to make payments to a Full-Time or Part-Time Employee whilst on Jury Duty, but you are still obligated to keep their job.

We have created comprehensive User Guides to help our Clients set up the Jury Pay Items and process payments for Jury Duty. These User Guides are available to our Clients on our Knowledge Base website.

References

https://www.legislation.gov.au/Details/C2017C00323

https://www.fairwork.gov.au/leave/community-service-leave/jury-duty

https://legislation.nsw.gov.au/view/html/compare/2002-01-18/2021-03-24/act-1977-018

https://courts.nsw.gov.au/courts-and-tribunals/for-jurors/what-employers-need-to-know0.html

http://classic.austlii.edu.au/au/legis/nsw/bill/jab2010181/

https://www.courts.qld.gov.au/jury-service/about-jury-service/payment-for-jury-service

https://www.legislation.qld.gov.au/view/whole/html/

https://www.courts.qld.gov.au/jury-service/about-jury-service/for-employers

https://www.juriesvictoria.vic.gov.au/individuals/jury-summons#:~:text=Jury%20payments%20are%20%2440%20per,mailed%20to%20your%20residential%20address.

https://www.legislation.vic.gov.au/in-force/acts/juries-act-2000/055

https://www.legislation.sa.gov.au/__legislation/lz/c/a/juries%20act%201927/current/1927.1805.auth.pdf

https://www.legislation.act.gov.au/View/di/2019-185/20190716-71831/html/2019-185.html

http://classic.austlii.edu.au/au/legis/act/consol_act/ja196797/

https://www.courts.act.gov.au/__data/assets/pdf_file/0016/1701331/Jurors-Information-for-Employers.pdf

https://www.legislation.tas.gov.au/view/html/inforce/current/act-2003-048

http://ntlawhandbook.org/foswiki/NTLawHbk/JuryService#:~:text=each%20jury%20summons.-,what%20to%20do%20at%20court,-A%20person%20called

https://legislation.nt.gov.au/Legislation/JURIES-ACT-1962

https://www.wa.gov.au/organisation/department-of-justice/jury-duty-reimbursement-of-wages-and-claims-payment

https://www.legislation.wa.gov.au/legislation/prod/filestore.nsf/FileURL/mrdoc_43167.htm/$FILE/Juries%20Act%201957%20-%20%5B08-b0-00%5D.html?OpenElement

https://www.legislation.wa.gov.au/legislation/prod/filestore.nsf/FileURL/mrdoc_43246.htm/$FILE/Juries%20Regulations%202008%20-%20%5B01-d0-00%5D.html?OpenElement

Disclaimer

This blog and attached resources are of general nature designed for informational and educational purposes only. They should not be construed as professional financial advice for your individual business. Should you need such advice, consult a licensed financial or tax advisor.

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