Does jury service make-up pay apply to casuals in Victoria?

Does jury service make-up pay apply to casuals in Victoria?
By Paul Munro on 17 October 2017 Do the jury service provisions in the National Employment Standards override any relevant state legislation?

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

Q We have offices in Victoria, South Australia and Queensland. A casual administrative employee in our Melbourne office has received a summons to attend for jury service. She is employed under the Clerks – Private Sector Award 2010. The award (cl.32) refers to the National Employment Standards (NES) with respect to an employee’s entitlement to jury service.

The make-up pay provisions under the NES do not apply to casual employees however the employee claims to have received advice from the Local Court she is entitled to make-up pay under state legislation.

If this is the case, do the National Employment Standards override any relevant state legislation where there is an inconsistency?

A The Juries Act 2000 [Vic] requires an employer to pay an employee the difference between the amount the employee receives for jury service and the amount the employee would have received if he/she had not been on jury service. This requirement applies to full-time, part-time and casual employees, but does not apply to independent contractors.

In Victoria, the make-up pay provisions of the Juries Act 2000 has no limitation. As such, an employer is required to continue to make up the pay of an employee for as long as that employee is on jury duty. This means a casual employee is entitled to make-up pay in relation to jury service, on a day the casual employee would have expected to work, for the whole period the employee is absent on jury duty.

The Juries Act 2000 [Vic] (s52) supersedes the jury service provisions under the Fair Work Act and all enterprise agreements and contracts of employment.

Certain state/territory laws not excluded

The Fair Work Act (s112) provides that is not intended to apply to the exclusion of laws of a state or a territory that provide employee entitlements regarding eligible community service activities, such as jury service, to the extent those entitlements are more beneficial to employees than the entitlements under the National Employment Standards.

The section notes that, for example, that the Fair Work Act would not apply to the exclusion of a state or territory law providing for a casual employee to be paid jury service pay, such as the Victorian Juries Act.

Because the Juries Act in Victoria is more beneficial than the entitlement under the National Employment Standards in two respects, it overrides the NES.

This is for two reasons. Firstly, it applies to casual employees and, secondly, it does not place a limit on the period of time make-up pay applies (maximum of 10 days under the NES).

The bottom line: A state or territory law which provides more beneficial entitlements for jury service, such in Victoria, will override the jury service provisions under the National Employment Standards.

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