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Jury duty – can employee work outside court time?

Can we ask the employee to work outside of court hours?
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Jury duty – can employee work outside court time?

Jury duty – can employee work outside court time?

20 April 2021

Can we ask an employee who is on jury duty to work outside of court hours?

Q We have an employee serving on a jury in which the case is expected to last at least three weeks. He is employed as an engineering maintenance employee, which can involve after-hours work, as well as weekend work.

Can the company ask him to perform work at a time which does not clash with jury service? The employee is usually required to attend court from 9.30am to 4pm.

Do the jury service provisions prevent the employee from working during the entire period of jury service? If the employee does perform work outside jury service, at what rate is the employee paid?

A Being a juror can be a full-time job Monday to Friday, however there may be circumstances whereby an employer could direct an employee to work during a trial. For example, where the court finishes early or does not sit on a particular day. Occasional one-off work on a weekend might be appropriate in some circumstances.

The underlying principle to be considered is the employee’s health and well-being. The employer and the relevant juries authority are obliged to protect the health and safety of employees/jurors, which includes monitoring maximum work hours/periods, minimum break requirements and days worked consecutively. Jury service is considered work when assessing these obligations.

According to the Fair Work Act (s108), the employee is entitled to be absent from employment during jury service for the following reasons:

  • time when the employee engages in jury service
  • reasonable travelling time associated with the activity, and
  • reasonable rest time immediately following the activity.

The employer and the employee should agree on the necessary work arrangements relating to jury service, including returning to work if the court sits for only a short part of the day. In that case, the employee would be expected to return to work to complete their ordinary hours unless any of the above circumstances are applicable.

Reasonable overtime

The Fair Work Act (s62(2)) provides that, in determining whether the additional overtime hours are reasonable or unreasonable, the following must be taken into account:
  • any risk to employee health and safety from working additional hours
  • the employee’s personal circumstances, including family responsibilities
  • the needs of the workplace or enterprise in which the employee is employed
  • whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours
  • any notice given by the employer of any request or requirement to work the additional hours
  • any notice given by the employee of his or her intention to refuse to work the additional hours
  • the usual patterns of work in the industry, or part of the industry, in which the employee works
  • the nature of the employee’s role and the employee’s level of responsibility
  • whether the additional hours are in accordance with averaging terms prescribed by the Fair Work Act, or the applicable modern award or enterprise agreement.

The bottom line: An employee on jury service is considered to be working when an employer is assessing its workplace health and safety obligations.

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