​Can you claim jury pay while on unpaid leave?

​Can you claim jury pay while on unpaid leave?

By Paul Munro on 23 October 2018 Is an employee entitled to 'make-up pay' if she attends jury duty while on unpaid parental leave?

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Q A manager is absent on 12 months unpaid parental leave and is not due to return to work until April 2019. She has contacted the company to inform us she has been empanelled for jury service on a case that is expected to last three weeks. Her contract of employment refers to the National Employment Standards with respect to leave conditions, which would include jury service.

Our payroll department is unsure whether the employee is entitled to ‘make-up pay’, representing the difference between the jury service payment by the court and the employee’s ordinary rate of pay, as she is absent on unpaid parental leave. Can the employee claim jury service pay during an absence on unpaid parental leave?
 
A The Fair Work Act (s79(3)) provides that an employee is not eligible for any payment under community service leave, which includes jury service, in relation to activities the employee engages in while taking unpaid parental leave. However, this does not deprive an employee of his/her entitlement to be paid for jury service under applicable state or territory jury service laws. This is specifically provided in the Fair Work Act (s112).
 
Also, an employee absent on unpaid parental leave is not entitled to take paid personal/carer’s leave or compassionate leave. However, an employee could take accrued annual leave or, where applicable, long service leave during a period of unpaid parental leave.

Jury service entitlement – NES

 
The Fair Work Act (s111) provides a minimum entitlement to jury service. Jury service only applies to full-time and part-time employees, not casuals. An employer is required to ‘make up’ the difference between the amounts paid to an employee for attending jury service and the employee’s base rate of pay. The employer is only required to pay the employee make-up pay for the first 10 days of the absence. In the case of part-time employees, jury service payment applies when it coincides with a day on which the employee would normally be required to work.
 
Most modern awards refer to the NES with respect to entitlements to community service leave. An exception to this is the Manufacturing and Associated Industries and Occupations Award 2010 (cl 43.2) which provides make-up pay to an employee’s actual rate of pay for jury service, and the amount of absence on jury service is uncapped.
 

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