Are managers paid while on jury duty?


Are managers paid while on jury duty?

If an employee isn't covered by an award or agreement, are they entitled to jury service pay? Paul Munro explains.

Is a manager entitled to jury service pay?

This question was recently sent to our Ask an Expert service.

Q A manager in our New South Wales operation has been empanelled on a jury which is anticipated to last at least four weeks. As the employee’s duties involve management responsibilities, no modern award is applicable in this case.

The employee has queried her entitlement to jury service for the duration of the period and whether there is an entitlement for the duration of the case. The employee’s remuneration also includes commission payments.

What is the employee’s entitlement in this circumstance?

A In this case, the employee’s entitlement to jury service payment is subject to the Fair Work Act (s111), the Jury Act 1977 [NSW] and the terms of the employee’s contract of employment.

Payment for jury service is a ‘make up’ payment which represents the difference between the employee’s ‘base rate of pay’ and the amount the employee receives from the court for attending jury service under the New South Wales Jury Act.

‘Base rate of pay’ is defined in the Fair Work Act (s 16) to mean the rate payable to the employee for his or her ordinary hours of work, but not including:
  • incentive-based payments and bonuses
  • loadings,
  • monetary allowances,
  • overtime and penalty rates, or
  • any other separately identifiable amounts.
Commission would be considered an ‘incentive-based payment’ and consequently would not be included in the employee’s make-up payment.

Fair Work Act

The Fair Work Act provides that a full-time and part-time employee is entitled to be paid for the first 10 days of an absence on jury service. In this case, this would mean the employee would be entitled to make up pay for the first two weeks of jury service. For any period of jury service after the first two weeks, the employee would receive attendance fees from the relevant court. The employee must produce evidence of attendance for jury service to qualify for the make-up payment.

Jury Act [NSW] & Jury Regulation 2004 [NSW]

Under this statute (s72), the attendance fee is only payable if the employee’s full wage is reduced during the period of jury service and only to the extent of that reduction (Jury Regulation Reg. 6). The employee must provide a statutory declaration to that effect when claiming the attendance fee from the court.

The schedule of attendance fees can be found here SCHEDULE 1

Contract of employment

The employer should check the terms of the employee’s contract of employment to determine the relevant payment during jury service. For example, if the terms of the contract state the employee will receive her remuneration while employed with the company, the employee would continue to receive their contracted amount of remuneration during the period of jury service. Because of the provisions of the Jury Act [NSW], the employee could not claim the attendance fee from the court for that period of jury service the employee continues to receive their ordinary remuneration.

State & territory jury service laws

The Fair Work Act (s112(1)) states that state or territory laws that provide employee entitlements in relation to community service activities, such as jury service, are not excluded and continue to apply where there is a more beneficial entitlement. For example, the Fair Work Act does not exclude a
state or a territory law that entitles a casual employee to be paid jury service pay. Likewise, a state or a territory law that requires an employer to pay for a period of jury service longer than 10 days will also apply.

The following state and territory laws regulate jury service in the relevant jurisdiction:

Juries Act 1969 [ACT]
Jury Act 1977 [NSW]
Juries Act [NT]
Jury Act 1995 [Qld]
Juries Act 1927 [SA]
Juries Act 2003 [Tas]
Juries Act 2000 [Vic]
Juries Act 1957 [WA]

The bottom line: Unless the terms of an employee’s contract of employment provide that the employee continues to receive his/her remuneration during the period of jury service, the employee will receive make-up payment for the first two weeks of jury service – after which she will receive the appropriate attendance fee from the court for the duration of jury service.

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