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.