Do Australian Employers Have to Pay Staff During Jury Service?

An employee tells you they have been called up for jury duty, and the first question is usually simple: do we still have to pay them? This is where small businesses often get tripped up. Common mistakes include assuming jury service is always unpaid, deducting leave without checking the award or contract, and asking the employee to “swap shifts” or use annual leave as if the summons were optional.

The right answer depends on more than one rule. You need to look at the National Employment Standards, any applicable modern award or enterprise agreement, and the employee’s contract and payroll setup. You also need to handle evidence properly, work out how jury service make-up pay operates for permanent staff, and avoid steps that could amount to adverse action.

This guide explains what jury service paid means for Australian businesses, when you may need to pay, what records to collect, where employers often get it wrong, and what to check before you sign or rely on an employment contract clause.

Overview

Australian employers do not always have to keep paying normal wages for the full period of jury service, but many do have to provide limited make-up pay for eligible employees under the National Employment Standards. The detail matters, especially for permanent employees, casuals, payroll teams and anyone managing an award-covered workforce.

• Whether the employee is full-time, part-time or casual
• How the NES jury service leave rules apply
• Whether the employee is receiving jury service payments from the court
• What evidence you can request, such as the summons and proof of attendance
• Whether an award, enterprise agreement or contract gives extra paid entitlements
• How to calculate make-up pay and record it in payroll
• How to avoid adverse action, discrimination or leave-related mistakes

What Jury Service Paid Means For Australian Businesses

For most Australian businesses, jury service means an employee can be absent from work for jury duty, and some employees are entitled to a limited period of paid support rather than unlimited paid leave.

Under the National Employment Standards, employees can take leave to attend jury service. Permanent employees, meaning full-time and part-time employees, may be entitled to make-up pay for the first 10 days of jury service. Casual employees are generally entitled to the absence itself, but not the same make-up pay entitlement under the NES.

What is make-up pay?

Make-up pay is the difference between what the employee would have earned for their ordinary hours of work and the jury service payment they receive from the relevant state or territory authority.

In practice, that means the business does not necessarily pay the employee their full wages on top of the court payment. Instead, you usually calculate the gap between the two amounts for the first 10 days of jury service leave.

For example, if a full-time employee would ordinarily earn $300 for the day and receives $120 from the court, the make-up pay for that day would generally be $180. If the employee is on jury duty for more than 10 days, the NES does not require the employer to keep providing make-up pay after that period, although an award, enterprise agreement or contract might do more.

Which employees are covered?

Permanent employees are the main group to focus on for paid jury service obligations. Full-time and part-time staff can access jury service leave, and the make-up pay rule generally applies to them for up to 10 days.

Casual employees can still be absent to attend jury service if required, but they do not generally receive NES make-up pay in the same way. That said, you still need to check any applicable award, enterprise agreement, workplace policy or contract before you make assumptions.

What counts as jury service?

The entitlement usually relates to jury service, including attendance for jury selection and serving on a jury when required by law. You should not treat a jury summons as an ordinary personal appointment or ask an employee to choose work over attendance.

The practical point for employers is simple: once the employee has a lawful requirement to attend, your focus should shift to leave handling, payroll and records, not whether the business is inconvenienced.

Can you ask for proof?

Yes. An employer can usually ask the employee to provide evidence that would satisfy a reasonable person that they are entitled to the leave.

That commonly includes:

• A jury summons
• Proof of attendance from the court
• Evidence of the amount paid for jury service

This matters because the jury service payment amount is part of the make-up pay calculation. If you process payroll without checking the employee’s court payment, you may underpay or overpay.

Do awards or contracts change the result?

Yes, sometimes. The NES sets a minimum standard, but an award, enterprise agreement or employment contract may provide more favourable written terms.

That could include:

• Paying normal wages for a longer period
• Administrative rules about notice and evidence
• Specific payroll treatment for rostered hours or allowances
• Extra protections for part-time rostering and shift arrangements

This is where founders often get caught. They read the NES summary and stop there, even though the employee is award-covered or has a contract clause that gives more than the legal minimum.

Legal Issues To Check Before You Sign

Before you sign an employment contract, adopt a leave policy, or rely on a standard clause, make sure your documents match the minimum legal rules and do not create payroll problems later.

1. Check the employment status first

The first legal question is whether the worker is full-time, part-time or casual. Jury service paid obligations differ depending on that status, and misclassifying someone creates flow-on risk well beyond this one type of leave.

Before you classify someone as a contractor or casual, look at how they actually work, not just the label in the contract. If the person is really functioning like an employee, your business could face claims for unpaid entitlements.

2. Review the award or enterprise agreement

An award or enterprise agreement may affect how jury service absences are handled. That is especially relevant where ordinary hours, penalties, loadings or rostered shifts vary from week to week.

Check issues such as:

• Whether the employee is covered by a modern award
• How ordinary hours are defined
• Whether allowances are included in the relevant pay calculation
• Any notice or documentation requirements
• Any extra paid leave rights beyond the NES minimum

If you skip this step and only look at the contract, you may still get the pay calculation wrong.

3. Make sure the contract does not undercut minimum entitlements

An employment contract cannot remove minimum NES entitlements. A clause that says all community service leave is unpaid, or that the employee must use annual leave for jury duty, may be unenforceable if it undercuts the statutory position.

Before you accept the provider's standard terms or download a contract template, make sure the leave section does not say something overly broad. A short clause can create a long dispute if payroll follows it without a contract review.

4. Decide how payroll will calculate make-up pay

Payroll needs a workable method before the first jury service absence occurs. The legal rule sounds simple, but the calculation can become messy where part-time staff have changing rosters, employees receive allowances, or the court payment is evidenced late.

Your internal process should cover:

• Who collects the summons and proof of attendance
• When the employee must provide evidence of court payments
• How ordinary hours are identified for the relevant day or days
• When the make-up pay will be processed
• How adjustments will be made if the original payroll run was wrong

That sort of process helps avoid rushed decisions by line managers who may not understand the leave rules.

5. Avoid adverse action risks

You cannot punish an employee because they exercise a workplace right or because they are temporarily absent for a lawful reason. Jury service can trigger general protections issues if a manager cuts shifts, threatens dismissal, or treats the employee as unreliable for attending.

The main risk is not just underpayment. It is also the way the business responds to the absence. A casual reduction in future opportunities, a hostile message from a supervisor, or pressure to avoid jury duty can all create larger employment law problems.

6. Keep records and communications clear

Clear records protect both the business and the employee. If you later need to explain why a payment was made, reduced or stopped after 10 days, written evidence matters.

Good practice usually includes:

• A copy of the summons
• Proof of attendance dates
• Confirmation of any court payments received
• A written payroll calculation
• A short email to the employee explaining how the leave and pay were handled

Before you rely on a verbal promise from a manager about “full pay no matter what”, check whether that statement matches the contract and workplace policy. Informal promises can cause genuine employee relations issues even if they were made casually.

Common Mistakes With Jury Service Paid

The most common mistake is treating jury service like ordinary unpaid leave or annual leave without checking the employee’s minimum rights first.

Assuming no pay is ever required

Some employers believe jury service is entirely the employee’s problem because the court pays something. That is not how the NES works for permanent employees during the first 10 days.

If you simply mark the leave as unpaid and move on, you may end up with an underpayment issue.

Paying full wages without deducting the court amount

The opposite problem also happens. A business wants to do the right thing and continues normal pay, but forgets to account for the jury service payment.

That can create overpayments, inconsistent treatment across employees and confusion if the arrangement changes mid-service. If you choose to be more generous than the minimum, document that clearly rather than leaving payroll to guess.

Forcing annual leave or personal leave

Jury service is its own category of leave under the NES framework. Requiring an employee to use annual leave or personal leave just because the timing is inconvenient is risky.

This often happens in smaller teams where absence creates roster pressure. The staffing issue is real, but the legal solution is not to relabel the leave.

Ignoring awards, enterprise agreements or policies

An outdated handbook or copied template can cause real trouble. If your policy says one thing, the award says another, and payroll does a third thing, your business is left with inconsistency and avoidable disputes.

Make sure your documents line up. This is especially important before you hire your first worker or before you scale from a founder-led team to a business with multiple managers handling leave requests.

Getting the 10 day period wrong

Employers sometimes assume the 10 days means 10 calendar days, or 10 separate attendances spread across any period. The practical calculation needs to reflect the statutory entitlement and the employee’s ordinary working days affected by the service.

If the employee is not usually rostered on a particular day, that day may not raise the same pay issue. This is one area where founders should be careful not to improvise.

Missing part-time roster nuances

Part-time staff are often where payroll mistakes show up. If the employee normally works fixed days, the calculation may be more straightforward. If the roster changes or ordinary hours are less predictable, you need a clear basis for working out what they would have earned.

Guesswork creates both legal and employee relations risk.

Pressuring the employee not to attend

A manager might say, “Can you ask to be excused? We’re too busy.” While there may be processes for individuals to seek exemption or deferral through the court system, the business should be very careful about applying pressure.

The safer approach is to let the employee manage their legal obligation and ask them to keep you informed about dates and documents.

Failing to train managers

Many jury service problems start with a casual comment from a supervisor, not a formal HR decision. If managers do not understand community service leave, they may send the wrong message, approve the wrong leave type, or make statements that later look like retaliation.

A short manager guide can help. It should set out:

• Who to notify internally
• What evidence can be requested
• What managers should not say to employees
• When payroll or HR must review the situation
• How to handle extended jury service beyond the first 10 days

FAQs

Do employers have to pay employees during jury service in Australia?

Often, yes for permanent employees, but usually only as make-up pay for the first 10 days of jury service under the NES. Casual employees do not generally have the same NES make-up pay entitlement, though you should still check any award, enterprise agreement or contract.

Can I require an employee to take annual leave instead of jury service leave?

No, not simply because the absence is inconvenient. Jury service is a separate legal entitlement, and forcing annual leave may breach minimum employment standards.

What proof can an employer ask for?

You can usually ask for reasonable evidence such as the jury summons, proof of attendance, and evidence of the amount the employee was paid for jury service. That information helps confirm the leave and calculate make-up pay correctly.

What happens after the first 10 days of jury service?

The NES make-up pay obligation generally applies for the first 10 days for eligible employees. After that, the position may depend on the award, enterprise agreement, contract or any discretionary arrangement the employer offers.

Does jury service apply differently to casual employees?

Yes. Casual employees can still be absent for jury service, but they do not generally receive the same paid make-up entitlement under the NES as full-time and part-time employees. It is still worth checking whether another industrial instrument changes the result.

Key Takeaways

• Jury service leave is recognised under the National Employment Standards, and permanent employees may be entitled to make-up pay for the first 10 days.
• Make-up pay is generally the gap between what the employee would have earned for ordinary hours and the jury service payment received from the court.
• Casual employees are treated differently, so employment status matters before you process leave or pay.
• You should check the NES, any applicable modern award or enterprise agreement, and the employee’s contract before you decide what is payable.
• Do not force annual leave, rely on assumptions, or pressure staff not to attend jury service.
• Clear records, a sensible payroll process and trained managers can prevent underpayment and workplace disputes.

If you want help with employment contracts, award compliance, leave policies, and payroll risk issues, you can reach us on 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.