Community service - the employer's obligations

The Fair Work Act (FW Act) provides that all employees, including casual employees, are entitled to be absent from work for the purposes of performing the following community service activities:

  • a voluntarily emergency management activity; or

  • jury duty that is required by a law of the Commonwealth, a State or a Territory.

An employee engages in a voluntarily emergency management activity if they:

  • engage in activities that involve dealing with an emergency or a natural disaster; and

  • do so on a voluntary basis; and

  • are a member of a recognised emergency management body; and

  • are requested by or on behalf of the body to engage in the activity or, when no such request is made, it would be reasonable to expect that if circumstances had permitted such a request would have been made.

For the purpose of the FW Act a recognised emergency management body is:

  • a body or part of a body that has a role or function under a plan, prepared by the Commonwealth, a State or a Territory, that is for coping with an emergency or a natural disaster;

  • a fire fighting civil defence or rescue body; or

  • any other body which substantially involves securing the safety of persons or animals, protecting property, or otherwise responding to an emergency or natural disaster.

There is no limit on the period of time an employee is entitled to be absent from his employment on community service.  The period of absence includes:

  • the time the employee is engaged in the activity;

  • reasonable travel time associated with the activity; and

  • a reasonable resting immediately time following the activity.

An employee who will be absent on a community service, must as soon as practical give their employer notice of the intended absence and its expected duration. 

Other than jury duty, attendance on community service is unpaid leave.  However, the period of absence does not break an employee’s continuity of service as an employee and no other penalty may be imposed upon an employee who participates in community service.

Whilst the FW Act does provide for jury duty, its provisions are not as beneficial as the requirements of the Juries Act 1957 (Juries Act), which applies in Western Australia.  Under that Juries Act, all employers in Western Australia are required to release their employees, without penalty, to attend for jury duty and to continue to pay the employees’ wages whilst they attend for jury duty. 

An employer may make a claim for the reimbursement of those wages once the employee has completed the jury duty.  However, reimbursement will only be for the time that the employee is required to attend for jury duty, that is either the selection process (half a day) or serving as a member of a jury (length of the trial).

Thus, an employer should also only pay for the time the employee is required to attend for jury duty.  The employee should be advised that if they are not chosen to serve as a juror, they must return to work or they will not be paid.

Failure by an employer to release an employee to attend for jury duty or pay the employee for that time is a breach of the Juries Act, with a maximum fine of $20,000.

Should you wish to know more about this topic please contact:

Ian Curlewis Michael Jensen
Partner Senior Associate
(08) 9288 6756 (08) 9288 6944

This snapshot is intended only to provide a summary of the subject matter covered.  It does not purport to be comprehensive or to provide legal advice or specific legal advice for a person’s particular needs.  No reader should act on the basis of any matter contained in this publication without first obtaining specific professional advice.

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.