Juries Victoria understands most employers wish to fully comply with their obligations to their employees regarding jury service, but can become confused as what exactly these obligations are.

This confusion usually comes from the fact each state and territory's legislation regarding jury service is different. Additionally, the Fair Work Act 2009 (Cth) also makes provisions covering jury service, as do many enterprise bargaining agreements and employment contracts. this creates a number of competing sources of potential employer obligations.

What you need to know

  • Employers must adhere to the Juries Act 2000 (Vic) for any employee randomly selected for jury service in Victoria, regardless of where the business itself is based
  • The Juries Act 2000 (Vic) supersedes the Fair Work Act 2009 (Cth) and all enterprise bargaining agreements and employment contracts
  • Penalties may apply for breaching or failing to fulfil your obligations to your employees.

For clarity, key parts of the relevant legislation have been outlined below. Please note, this is not intended to be an exhaustive list of your obligations.

Fair Work Act 2009 (Cth)

 

Section 112 -State and Territory laws that are not excluded

State and Territory laws that are not excluded

(1) This Act is not intended to apply to the exclusion of laws of a State or Territory that provide employee entitlements in relation to engaging in eligible community service activities, to the extent that those entitlements are more beneficial to employees than the entitlements under this Division.

Note: For example, this Act would not apply to the exclusion of a State or Territory law providing for a casual employee to be paid jury service pay.

(2) If the community service activity is an activity prescribed in regulations made for the purpose of subsection 109 (External link)(4), subsection (1) of this section has effect subject to any provision to the contrary in the regulations.

Interpretation

While division 8 outlines some employer obligations to any employee attending jury service, section 112 determines that where a state or territory's legislation provides for entitlements which are more beneficial to the employee, the state or territory legislation takes precedence.

Victorian legislation does provide for more beneficial employee entitlements, and therefore employers are legally obligated to adhere to the Juries Act 2000 (Vic) when determining their obligations.

Juries Act 2000 (Vic) 

 

Section 8 -Juries Commissioner may excuse for good reason

Juries Commissioner may excuse for good reason

(3) For the purposes of subsection(2), good reason includes any of the following—

     (a) illness or poor health;

     (b) incapacity;

     (c) the distance to travel to the place at which the person would be required to attend for jury service is—

           (i) if the place is in Melbourne, over 50 kilometres; or

           (ii) if the place is outside Melbourne, over 60 kilometres;

     (d) travel to the place at which the person would be required to attend for jury service would take excessive time or cause excessive inconvenience;

     (e) substantial hardship to the person would result from the person attending for jury service;

     (f) substantial financial hardship would result from the person attending for jury service;

     (g) substantial inconvenience to the public would result from the person attending for jury service;

     (h) the person has the care of dependants and alternative care during the person's attendance for jury service is not reasonably available for those dependants;

     (i) the advanced age of the person;

     (j) the person is a practising member of a religious society or order the beliefs or principles of which are incompatible with jury service;

     (k) any other matter of special urgency or importance.

Interpretation

The above are the valid reasons for which somebody may be excused from jury service. Work is not considered a valid reason, except in cases of self-employment or employment in a small business.

 

Section 52 -Employer to make up pay

Employer to make up pay

(1) In this section and section 53 (External link)"employee" does not include an independent contractor.

(2) Despite any inconsistent term in a contract of employment, an employee who has been summoned for jury service and who has attended court, whether or not he or she has actually served on a jury, is entitled to be reimbursed by his or her employer an amount equal to the difference between the amount of remuneration paid under section 51 and the amount that he or she could reasonably expect to have received from the employer as earnings for that period had he or she not been performing jury service.

Interpretation

This section supersedes any enterprise bargaining agreement or employment contract.

Employers are required to make up the difference in pay between their employee's jury payment and what they would reasonably expect to have earned had they worked instead of attending jury service. Penalties, allowances, and loadings typically received during that time constitute a reasonable expectation of earnings, and therefore must also be paid to your employee.

 

Section 76 -Employment not to be terminated or prejudiced because of jury service

Employment not to be terminated or prejudiced because of jury service

(1) An employer must not—

     (a) terminate or threaten to terminate the employment of an employee; or

     (b) otherwise prejudice the position of the employee—

because the employee is, was or will be absent from employment on jury service.

Interpretation

Employers must release their employee for jury service, and cannot penalise them in any way or form for their attendance of jury service.

 

Section 83 -Employers

Employers

(1) The court may in a summary way impose a fine not exceeding 120 penalty units, or imprisonment for a term not exceeding 12 months, (or, in the case of a body corporate, a fine not exceeding 600 penalty units) on an employer who—

     (a) terminates or threatens to terminate the employment of an employee; or

     (b) otherwise prejudices the position of the employee—

because the employee is, was or will be absent from employment on jury service.

(2) If the court imposes a fine or imprisonment under subsection(1), subsections(3) to (6) of section 76 (External link) apply as if the employer had been found guilty of an offence against section 76(1).

Interpretation

This section proscribes the potential penalties for employers who violate section 76 of the Act.

Individual

  • Fine of up to $19,342.80*

  • Up to 12 months imprisonment

Company

  • Fine of up to $96,714*
*Based on amount payable per penalty unit from 1 July 2018 to 30 June 2019