Community Service Leave

Employees, including casual employees, are entitled to take community service leave for particular activities under the Fair Work Act, including:

• Voluntary emergency management activities
• Jury duty

With the exception of jury duty, community service leave is unpaid.

An employee is involved with a voluntary emergency activity when:

• The activity involves dealing with an emergency or natural disaster.
• The employee participates in this activity on a voluntary basis
• The employee was either requested to participate in an activity , or it would be reasonable to expect such a request would have been made if circumstances permitted
• The employee is a member of, or has an association with a recognised emergency management body.
• A recognised emergency management body is:
• A body that has a role or function under a plan that is for coping with emergencies or natural disasters.
• A fire fighting , civil defence or rescue body
• Any other body which is mainly involved in responding to an emergency or natural disaster including SES, the Country Fire Authority and the RSPCA.

Community service leave is likely to carry greater consequences in high risk and rural areas, especially during the summer when the threat of bushfires is much greater.

There is no limit on the amount of community service leave an employee can take however an employee who takes community service leave must give their employer notice of the absence as soon as possible and the expected period of absence. The employer can require the employee to give the employer evidence that would satisfy a reasonable person that the absence is because the employee has been, or will be, engaging in the eligible community service activity. An employer can face serious penalties for dismissing an employee that tries to take community service leave. A violation of a provision of the National Employment Scheme can result in penalties of up to $10,800 for an individual and $54,000 for a corporation.

Community service leave to volunteer in an emergency situation is unpaid leave under the National Employment Standards, although some State and Territory laws have created an obligation to pay employees for the time off. Queensland, Tasmania and Western Australia all expect you to pay ordinary wages during an employee’s absence.

Under the National Employee Standard, you are obliged to pay an employee jury duty for their first 10 days of service at their usual base rate of pay.

Is Unpaid Work Lawful?

Some unpaid work arrangements are considered lawful while others are not. It depends on the nature of the agreement whether an employee should be entitled to the minimum pay rate for the work they are doing as well as other minimum employment entitlements.

For an unpaid work arrangement to be lawful under the Fair Work Act 2009 it depends on if an employment relationship exists or the arrangement involves vocational placement.

If an unpaid work arrangement is not a vocational placement, the arrangement will only be legal if there is no employment relationship in place... If there is an existing employment relationship, the person is in fact actually an employee and entitled to a minimum wage, National Employment Standards and the terms of any applicable award or enterprise agreement.

When determining if a person is an employee each case must be judged on its own facts. There is no set definition of employment under the Fair Work Act. It is just a matter of figuring out if the arrangement to work involves an employment contract. This does not need to be a written contract, it may be a verbal agreement.

For an employment contract to exist it must be well defined that:

• Both parties intend to create a legally binding contract
• There is a commitment to perform work for the benefit of the business or organisation.
• The person performing work will gain something in return - this may just be experience or training.
• The person is not performing the work as a part of their own business.

When determining if an employment relationship does indeed exist it can be useful to consider the nature of the arrangement and not how the parties have chosen to describe it. These factors should be taken into consideration.

• Was the purpose of the arrangement to provide a learning experience or was it to get the person to assist with the everyday operation of the business? If the arrangement involves productive work instead of just training and skill development, it is more than likely an employment relationship exists.
• How long is the arrangement for? The longer the period of arrangement, the higher the chances of there being an employment relationship present. However short engagements can also be considered as having an employment relationship existing.
• How important is the arrangement to the business? The more essential the work is to the running of the business, the more likely it is that it’s an existing employment relationship.
• Who is benefitting from the relationship? The person who benefits the most in a genuine unpaid work arrangement should be the person undertaking the role.

A vocational placement is a formal work experience arrangement that is part of an education or training course. Vocational placement that meet the definition under the Fair Work Act are lawfully unpaid.

Redundancy Entitlements Exceptions

There are some circumstances where an employee whose job may have been made redundant will not be entitled to redundancy pay.

These circumstances are:

• The employee hands in their resignation without having an agreement in place with the employer to make a redundancy payment on termination.
• An employee is terminated due to misconduct or other reasons associated with the employees own performance or ability to do the job.
• The employer acquires other adequate employment for the employee.
• The employee has been employed for a period less than 12 months.
• The employee works for a small business. A business is considered to be a small business if the employer has less than 15 staff members.
• The employee had a contract or was employed for a fixed period of time that has come to an end.
• The employee was employed for an identified task or project.
• The employee is a trainee engaged only for the length of the training agreement.
• The employee is an apprentice.
• The employee was employed for a particular season.
• An employee was hired as a casual employee whose casual service is no longer needed.
• In a transfer of employment circumstance where it is proposed to transfer the employee to employment with a new employer.
• The employer is unable to pay the employee. This exception can only apply where Fair Work Australia relieves the employer from their redundancy pay obligations.

It is important to state that in a situation where an employee may not be entitled to redundancy pay, the employer will still be obligated to give notice, unless the employee has resigned or has been terminated due to serious misconduct.

Minimum notice periods.
An employer is obligated to give the following minimum notice periods when dismissing an employee:

Period of continuous service	Minimum notice period
Less than 1 year	1 week
1-3 years	2 weeks
3-5 years	3 weeks
over 5 years	4 weeks

An employee is entitled to an extra week of notice if they are over 45 years old and have worked for the employer for at least 2 years.

An award, registered agreement or employment contract can set out longer minimum notice periods, for example, 1 month as opposed to 1 week.

3 Common Employment Law Questions Answered

Sometimes employment law can be difficult to comprehend. Here are three common work place situations and their legal ramifications.
 
1: DISMISSAL DUE TO ILLNESS

There are three potential areas of legal exposure:

•    unfair dismissal;
•    unlawful termination; and
•    discrimination

From time to time an employee will have to leave your employment due to long term health issues. They may decide to resign or you may have to eventually consider dismissing them. It is beneficial to consider as many ways possible to help them back to work – dismissal should be a last resort and could be deemed unfair if not managed properly.

If continued employment is no longer achievable because there are no reasonable adjustments that can be made, it may be fair for you to dismiss them.

The Fair Work Act 2009 states that an employer must not dismiss an employee because the employee is temporarily absent from work due to illness or injury.

The Fair Work Regulation 2009 provides that it is not a “temporary absence” if the employees absence from work extends for more than 3 months , or the total absences of the employee , within a 12 month period , have been more than 3 months. The employer still requires a valid reason to dismiss the employee, even if the employee has been absent on unpaid leave for three months or over.

We suggest you ask the employee to provide medical information on his capacity for work and what support he might need to return to work.

2: EVIDENCE OF ILLNESS

You can insist on employees providing evidence that would satisfy a reasonable person that they are entitled to sick leave, for example, a medical certificate or statutory declaration. That being said there is no specific timeframe as the timeframe required is “as soon as practicable”.

For this reason you should devise a written policy that stipulates that your employees provide such information within a specific timeframe. Your policy should also specify that your employees inform their manager directly of their absence (when possible), or phone their manager within a certain timeframe to explain why they cannot make it to work and when they expect to return.

3: NOTICE OF REDUNDANCY

When dismissing an employee it is necessary to give them notice. The notice commences when the employer tells the employee that they want to end the employment. If you notify them of their redundancy just before leave, the time spent on annual leave will count towards their notice period.