Under the National Employment Standards, an employee is entitled to be absent from employment when engaging in an eligible community service activity. This provision does not apply to employees of sole traders and partnerships in Western Australia, but otherwise, it is universal.
“Eligible Community Service activities” include voluntary emergency management activity and jury service.
Voluntary emergency management activities
These activities cover employees who are also volunteer members of the various State Emergency Services, and volunteer fire brigades. Any membership based organisation that has a role in coping with emergencies or natural disasters would count – generally speaking, firefighting, civil defence or rescue organisations.
The employee’s participation in the activity must be voluntary. Leave to undertake a voluntary emergency management activity is unpaid under the NES, but State or Territory legislation might require payment of ordinary wages – as is the case in Queensland, Tasmania & Western Australia.
What is covered by the leave?
An employee may take community service leave for:
- any period in which they engage in an eligible community service activity;
- any reasonable travelling time associated with the activity; and
- any reasonable rest time immediately following the activity.
Can an employee insist on taking leave to undertake a voluntary activity?
Under the NES, an employee may take this type of leave if it is reasonable in all the circumstances. The employee should consult with you prior to committing to undertake a voluntary activity, to check that you will allow them to take the leave, although this may not always be possible. If, for example, you already have several people off work, and it’s your busy season, then it may be reasonable for you to refuse permission for the employee to take the leave. It is certainly worth having a discussion with the employee, and coming to a mutually acceptable arrangement.
It is definitely worth checking your local State or Territory laws on this question.
Can I dismiss or discipline someone for taking this type of leave if I haven’t agreed to it?
Most States and Territories have laws making it an offence to dismiss or discipline someone in certain circumstances surrounding voluntary emergency management activities. Seek specific advice if you about to embark on this course of action!
Can I require an employee give me evidence of their need to take community service leave?
Yes, you can. Employers are entitled to require that an employee provide reasonable evidence that they are engaging in the relevant activity, and you can also require that an employee notify you that they will be taking leave. This might be in the form of an email, or a letter from their Unit or Brigade management team.
Jury service is also a recognised type of community service. The National Employment Standards (NES) allow an employee, other than a casual, to take leave to participate in jury service. Jury service is usually a compulsory obligation that a citizen must fulfil. State and Territory laws may extend obligations on employers regarding jury service beyond the entitlement in the NES.
An employer’s obligation is to release the employee for jury service, and under the NES, make up the employee’s pay for the first 10 days of absence – unless they are a casual employee. However, State legislation in Queensland, Victoria and Western Australia require that employers continue to make up pay for the employee beyond the initial 10 day period. In some jurisdictions, casual employees are entitled to be paid make up pay by the employer.
Note that there are specific provisions in the Timber Industry Award 2010 relating to payment for jury service. This award requires that all weekly employees (full time or part time, not casual) be paid the difference between the payment made to the employee for attending court and their ordinary pay for the time they are absent, with no cap on the period of time for which this payment must be made.
In all States and Territories outside Queensland, Victoria and Western Australia, this provision will mean that you will have employees covered by the Timber Industry Award 2010 who are entitled to jury service make up pay for an unlimited period of time, and employees who are covered by another award whose jury service make up pay is limited to 10 days.
What about Defence Reserve Leave?
Employees who are members of the defence reserve are entitled to take defence service leave under the Defence Act 1903 (Cth) and the Defence Reserve Service (Protection) Act 2001 (Cth). This is not covered by the NES, but nonetheless, the obligation exists. There is no maximum or minimum entitlement to this type of leave, but if you are aware that an employee is a member of the defence reserve, it would be wise to require them to give you as much notice as possible of dates they will be absent from work.
Usually employers are not required to pay employees who are on defence service leave, however, the time away would count as service, and entitlements such as personal/carer’s leave and annual leave would continue to accrue.