Employees are entitled to be absent if they partake in an ‘eligible community service activity’. The two current types of eligible community service activities are jury service and voluntary emergency management activities.
Jury service involves participating as a part of a jury in a court proceeding. Attending for the jury selection process is also included as an eligible community service activity.
An employee engages in a ‘voluntary emergency management activity’ if the employee:
- is assisting with an emergency or natural disaster; and
- is assisting voluntarily; and
- is associated with a recognised emergency management body (such as the SES); and
- was requested to assist or it was likely that they would have been requested.
The employee’s participation will still be voluntary whether or not they accept some gratuity payment for their assistance.
Employees are entitled to be absent to engage in an eligible community service activity at any time. The period of the employee’s absence must be for:
- the time when the employee engages in the activity;
- reasonable travelling time associated with the activity; and
- reasonable rest time immediately following the activity.
If it is for a voluntary emergency management activity, the employee is entitled to be absent for as long as is reasonable in all the circumstances.
Employees who engage in voluntary emergency management activity are not entitled to payment. However, employees who participate in jury service generally are. In NSW, an employed person is entitled to payment for jury service. For the first 10 days they are absent, the employee is entitled to a daily allowance payable by the NSW Department of Justice. After 10 days, the allowance generally increases.
Under the Fair Work Act 2009 (Cth), employers are obliged to pay the employee at their base rate of pay during their absence. However, an employer should request evidence from the employee that they have taken all necessary steps to receive their daily allowance. If the request is made, the employee is then only entitled to payment from the employer of the difference between their base rate of pay in their employment, and the daily allowance which they are entitled to from the Department of Justice. Employers do not have to pay casual employees for jury service (however they are still entitled to a daily allowance from the Department of Justice). Employees who are absent for more than 10 days of jury service are only entitled to payment from the employer as described above for the first 10 days.
Employees who engage in voluntary emergency management activities are not entitled to payment from an employer for that absence.
In order for an employee to be able to take community service leave, they must provide the employer with notice of their absence. The notice must:
- be given to the employer as soon as practicable, which can be at a time after the absence has started; and
- advise the employer of the period of the absence (or the expected period).
The employer can request evidence from the employee that the absence is to engage in an eligible community service activity. The evidence must satisfy a reasonable person that the absence is for that purpose. The employee only has to provide evidence if requested. If an employee does not provide notice and evidence as above, then the employer can refuse their request.
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