Community Service Leave

Australians have a long history of community service and volunteering to help their local community. Members of the public are often reliant on the labour of volunteers during natural disasters, such as bushfires and floods. In fact, it is so enshrined in the Australian ethos that the Fair Work Act 2009 protects the right of employees to take unpaid leave to participate in identified community service activities. This article looks at workers’ right to take community service leave in Australia.

Legislative framework

Community Service Leave is one of the twelve worker entitlements under the National Employment Standards (NES). Without limit, the worker can take unpaid leave to engage in the activity, plus reasonable time to travel and rest immediately afterwards. A worker can be absent from the workplace if they are participating in:

• Jury service, including jury selection
• Voluntary Emergency Management activity
• Any activity mandated in specified regulations.

What is a voluntary emergency management activity?

A Voluntary Emergency Management activity relates to a natural disaster or emergency event. The activity must be voluntarily undertaken for no pay, to be eligible under protected Community Service Leave. The worker must be a member or otherwise associated with a recognised emergency management body and have been requested to participate in the activity (or it is reasonable in the circumstances for the employee to assume that they would be asked to participate). For instance, if a worker is a long-standing volunteer firefighter, it would be reasonable for that employee to assume that they will need to access Community Service Leave if there is a significant local bushfire.

Recognised emergency management body

Recognised emergency management bodies include the Country Fire Authority (CFA), the State Emergency Services (SES), and the RSPCA (for animal rescue during natural disasters and emergencies). Other recognised bodies include:

• Organisations that perform a function in a governmental response plan to cope with a natural disaster or emergency
• Bodies whose primary purpose is to respond to natural disasters or emergencies
• A civil defence or rescue body, or a firefighting service.

Notice and evidence

The employee must notify their employer as soon as practicable of their intent to take Community Service Leave and the expected period of absence. As emergencies usually happen without warning, this notification often happens after the employee has already commenced their leave. At this time, the employer can request that the employee provide evidence that they are entitled to community service leave.  

Jury duty

The Australian Constitution affords every accused criminal with the right to trial by jury. This ideal is enshrined in the Constitution to ensure that someone charged with a crime is judged by a cross-section of adults from their community so that the standards of the person’s own community govern the criminal trial. To make this system work, it is vital that a wide cross-section of the community is represented in the jury pool, and as such all Australian citizens should consider it their civic responsibility to participate in jury duty.

A worker only receives pay from their employer for this type of community service activity (though the situation is more complicated for casual workers). Employees who attend jury selection or jury service are entitled to ‘make-up pay’ for the initial 10 days of the Community Service Leave. This make-up pay covers the difference between the nominal court jury payment and the employee’s standard base rate of pay (excluding expenses and allowance) that they would have received if not for their absence on jury duty. If requested, employees must provide evidence of the court payment to their employer, otherwise they will not be entitled to the make-up pay.

Should the relevant state or territory law provide more generous provisions in relation to leave taken to perform community service than the NES, then the more generous provision will apply. For instance, in Victoria, a casual worker is not entitled to community service leave under the NES, but is eligible under state law if they work regular and consistent hours.

Employees who need to be absent from work to testify in court as a witness cannot use Community Service Leave for this purpose. For this type of attendance, the employee can arrange with their employer to take paid annual leave or request unpaid leave for the hours they are away from work.

Other paid community service leave

A growing number of employers choose to supplement the minimum entitlements under the NES by offering ‘volunteer days’ to workers as part of their employment package. Of the respondents to the State of Corporate Community Investment Survey, 78% of companies already had such a community service program in place, and a further 10% of companies reported that they planned to introduce one. Under these arrangements, employees can apply to their employer for paid leave to volunteer with a registered not-for-profit organisation or charitable group. These companies typically have rules that stipulate which organisations and activities are eligible.

For any legal advice about community service leave or other employee entitlements under the National Employment Standards, please call Go To Court Lawyers on 1300 636 846.