By Bethany Silverman

Most Australians will go out of their way 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 the start of 2020, when we were battling fires and cleaning up after floods – we got through it all thanks to the support of everyday Australians who volunteered their time and energy.

Given the long history of volunteering in this country, and the desire of many to continue such work, how can a business support its employees if they decide they want to assist the community in a crisis?

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, such as when working as an emergency services volunteer during a disaster. Community service leave also applies in other circumstances.

Here’s a simple explanation of the entitlement and when it applies:

What is the entitlement?

Community service leave is an entitlement under the National Employment Standards (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 (this may be at short notice in some cases, given the unpredictability of natural disasters). The employee must also provide evidence to prove that the reason for the absence is legitimate.

There is no limit on the amount of community service leave to which an employee is entitled. An 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; and
2. If the absence is reasonable in the circumstances (remember, jury service is always taken to be reasonable!)

When must you 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 casual employees).

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’re 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’s important to keep in mind that if individual State or Territory laws provide for a better entitlement than the NES, then the laws of that State or Territory 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 service, then this would apply.

When don’t you 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 don’t 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’re required to attend court as witnesses are not entitled to community service leave. An employee who has to attend court for a reason other than jury service may take paid annual leave or request unpaid leave for the period they’ll be away from work.

enableHR has a wealth of resources, automated workflows and powerful features that let you quickly and easily manage your employees. If you’re not already a client and would like more information about the benefits enableHR can bring to your business, contact us for a chat about your needs and a free demo of the software. It really is HR made simple!

Bethany Silverman is a qualified Senior Workplace Relations Consultant at enableHR’s parent company, FCB Group, as well as at HR Assured. She regularly advises a wide range of businesses on compliance with workplace laws and managing complex matters, including disciplinary and performance management processes and terminations.