Report 117 (2007) - Jury selection - Law Reform Commission : Lawlink NSW

14.1 An employer in NSW cannot dismiss an employee, or injure him or her in employment, or prejudicially alter his or her position for the reason that the person has been summoned to serve as a juror,¹ or threaten any of the above actions.² Actions and threats of action of this kind constitute offences, and each carries a separate penalty of 20 penalty units ($2,200) where an employer is convicted of such an offence. The court may order the employer to pay a specified sum to the employee by way of the salary or wages lost, and to reinstate that employee in his or her old or similar position.³ Failure to give effect to an order for reinstatement also constitutes an offence, which carries an additional penalty of 20 penalty units. The onus is placed on the employer to show that the reason for the dismissal, other detriment or threat was not actuated because of the juror’s service.⁴

14.2 The NSW provision was first introduced in 1947, at the same time that the qualification to serve as a juror was extended from a property-based franchise to all males who were enrolled to vote.⁵ It was modelled on provisions in the Industrial Arbitration Act 1940 (NSW), which offered similar protections to employees who were dismissed, or treated prejudicially, as a result of industrial union activities, so long as the activities did not interfere with the performance of the employee’s duties.⁶

14.3 The provision was not introduced in response to any particular incident. Rather, it was intended to overcome the problems associated with citing an employer for contempt of court for interfering with the administration of justice.⁷

14.4 Notwithstanding these provisions, there are still occasions when people complain that their employers have raised the possibility of terminating their employment, or of otherwise jeopardising their position, particularly when they may be involved in a lengthy jury trial. Some report that they have been placed under express or implicit pressure by such employers to endeavour to be excused from service. Others report that they have served, but have later discovered that they have missed important career opportunities as a result of their service.⁸ There has also been at least one very recent media report of a juror being dismissed in NSW as a result of prolonged jury service.⁹ To some extent, this may be due to a general ignorance on the part of employers in relation to these provisions, which could be overcome if a handbook, provided to potential jurors with the jury summons, was accompanied by a document addressed to their employer, setting out in plain English the relevant prohibitions and available penalties, and at the same time dealing with matters such as make-up pay.

14.5 It is understood that during the period April 2002-March 2006 only one employer has been fined in the Local Courts for dismissing an employee who was summoned to jury service. It is highly unlikely that there has only been one such instance over this period. It is understood that the Sheriff’s Office deals informally with some instances of threatened dismissals of employees who undertake jury service in preference to prosecution, while, in other cases, judicial intervention has been sufficient to remove any threat of dismissal or demotion.

14.6 The absence of additional cases is more likely to be due to the fact that it is very difficult to detect such conduct, since many jurors would be reluctant to report their employer. They would probably prefer to pursue an application to be excused on personal grounds, if threatened with dismissal or loss of promotional opportunity, particularly if their service will result independently in a reduction of their effective weekly income. They may themselves be unaware in any event of their specific statutory right to protection.

14.7 We consider it important to retain the existing provisions preventing termination of employment, prejudicial alteration of position, or threat thereof, including the powers of the court to order reinstatement and reimbursement of any lost salary or wages.¹⁰ This clearly should apply to both full-time and permanent part-time employees. We address the situation of casual employees later in this chapter.

14.8 In our view, this protection has greater value, by reason of its specificity and special evidentiary onus, than reliance on the traditional industrial remedies for wrongful dismissal, which were identified in one submission as being available,¹¹ at least in relation to those employees or workers who can still have recourse to such remedies under State laws.¹²

14.9 We also consider that it would be appropriate to extend a similar protection to independent contractors who, in substance, are providing services on an ongoing basis, in recognition of the increasing trend within many industries, or areas of commercial activity, to move from traditional employment to service contracts. In such cases, the engaging party might elect either to terminate the services of the independent contractor, or to act otherwise to his or her detriment, where he or she is required to perform jury service. As the law currently stands, the Jury Act would not provide any relief and the contractor may have, at best, and dependent on the terms of the contract, a questionable cause of action for breach of that contract. By way of analogy, the Defence Reserve Service (Protection) Act 2001 (Cth), protects Defence Reserve personnel from discrimination in relation to the engagement, or continuation of contracts of service to third parties, if they provide those services in the course of their civilian life.¹³

14.10 One submission suggested that similar protection should be extended to temporary or casual employees.¹⁴ It is uncertain whether the current statutory protection was intended to apply to any juror holding a position of casual or seasonal employment at the time when he or she was required to attend for jury service. The section is arguably wide enough to apply to such a situation, and to protect that employee from the loss of the benefits that would have accrued, at least during the term of any current arrangement for casual or seasonal employment. The provisions concerning reinstatement are less easy to apply. Having regard to the very many different forms of casual employment that exist, including regularity of engagement, and hours worked, there would be merit in clarifying the position in relation to those who fall within this category, particularly for those who have long-standing casual work opportunities. Alternatively, where the requirement to attend for jury duty would prevent someone undertaking casual employment, suitable compensation should be available.

14.11 Complaints about employers requiring jurors to use up their annual leave entitlements during their period of jury service come to the attention of the Sheriff’s Office from time to time. The current practice of that office is to caution employers that requiring employees to use annual leave entitlements, in order to serve on a jury, amounts to prejudice under the provisions that protect a juror’s employment during jury service.

14.12 It is not known to what extent employers currently require jurors to use up their annual leave entitlements during their period of service, nor is it clear whether it would be lawful for them to require this.¹⁵ While the extent of the problem is unclear, in order to avoid the uncertainty and possible occasion for friction between an employer and employee, we consider that it would be prudent to amend s 69 of the Jury Act 1977 (NSW) to make it clear that requiring an employee to use annual leave or other leave entitlements while serving as a juror amounts to a prejudicial alteration of his or her position.

14.13 The problem has also been raised of employers requiring jurors to work at times when they are not required for jury service, either after sitting hours, or during those times when they are not required to be present at court, for example, during legal argument. This might be required by an employer as a condition of having their current salary or wage maintained.¹⁶ Many submissions considered it undesirable that jurors be required to work shifts in addition to performing jury service, in order to make up for lost time.¹⁷ Practices of this kind are said to have had a negative effect on jurors who have become physically exhausted by the end of a trial of several weeks.¹⁸

14.14 It has been suggested that a provision should be added to the Jury Act forbidding employers from requiring that jurors report for work during the times when they are not required for jury service or that they make up for lost time by working at night.¹⁹ Our attention has been drawn to the fact that, under some Federal award provisions, which formerly applied to workers in Victoria, employees on afternoon or night shifts who were required to serve as jurors for more than half a day were not required to report for work until the expiration of their jury service.²⁰ We see merit in the adoption of provisions of this kind as they could reduce the need for jurors to seek to be excused where they are affected by demands from employers of the kind mentioned.

14.15 We accept that it may be reasonable to expect jurors to report for work, during normal working hours, on any day when they are excused from sitting, subject to any particular concerns that the court might entertain that they could use that opportunity to discuss the case with others. We do not, however, consider it reasonable or justifiable for employers to require jurors to work outside court sitting times in order to make up for the time lost while serving. We consider that the Act should be amended to prevent any such requirement being made.

14.16 In the course of our consultations, suggestions were made concerning the amendment of the Jury Act so as to include within its provisions specific offences relating to the hindering, intimidating, harassing, or corruptly influencing jurors. We are satisfied that any such conduct is the subject of specific and adequate provisions in the Crimes Act 1900 (NSW)²¹ and that no further provision is required.

14.17 Several submission argued that the existing penalties do not adequately address the seriousness of a breach of these provisions, and are such that some employers might prefer to take the risk of being prosecuted and of paying a penalty which would be substantially less than the costs to their business of losing or replacing an employee during a lengthy jury trial. We agree with these submissions and consider that the penalties should be significantly increased.

14.18 We note that in several other jurisdictions the amount of the fines or penalties for comparable offences is higher than those available in NSW and, in some State or Territories, there is the possibility of a sentence of imprisonment being passed upon an employer who is in breach. In the ACT, for example, a fine of up to 50 penalty units ($5,500) can be imposed and/or imprisonment for six months.²² In the NT, a fine of $5,000 or imprisonment for 12 months may be imposed²³ and in Queensland, up to one year imprisonment.²⁴ Victoria and Tasmania impose a separate penalty for corporations, so that natural people may be fined up to 120 penalty units ($12,000) or imprisoned for up to 12 months, and corporations may be fined up to 600 penalty units ($60,000).²⁵ A number of submissions supported increasing the penalties,²⁶ some suggesting that they be in line with those in the ACT,²⁷ or even greater.²⁸ One submission pointed out that the penalty was inadequate for many large corporations as it was currently the same as that imposed on an individual who fails to attend jury duty.²⁹

14.19 In our view, it would be appropriate to increase penalties for employers breaching each of the above provisions to 50 penalty units ($5,500) and/or imprisonment for up to 12 months, and to make these penalties applicable both to the employer and to any person acting on behalf of the employer who is responsible for the breach, as well as to those directors and employees of a corporation who, under the current law, might be similarly liable to prosecution for the relevant conduct.³⁰ We also consider that a penalty of 200 penalty units ($22,000) should be applicable to corporations which are found guilty of infringing the relevant provisions. Such a level of penalty, if enacted, would embody the legislative view, based on community standards, of the seriousness of the corporation’s criminal conduct.³¹

14.20 One submission from the (then) Minister for Industrial Relations, John Della Bosca MLC, expressed concern that jurors will possibly be disadvantaged as a result of the introduction of the Work Choices amendments to the Workplace Relations Act 1996 (Cth)³² and its impact on the federal industrial relations system. If these concerns eventuate as the new system takes effect, they may make jury service significantly less attractive to employees who are subject to that industrial system, and who do not have all of the protections that were previously available under Commonwealth laws, but which are still available to those who can take advantage of State industrial laws. Concerns to similar effect were expressed in a number of other submissions.³³

14.21 In order to appreciate the nature of the problem, it is necessary to make some additional reference to certain legislative provisions and to the way that the Work Choices amendments have effected, or are capable of effecting, a change in the relationship between employers and employees.

14.22 The Workplace Relations Act applies to the Commonwealth and Commonwealth authorities, to employers who are trading or financial corporations formed within the limits of the Commonwealth, and to certain other employers. It has the effect of bringing the employment relationship between those employers and their employees, which was previously covered by the several industrial instruments that were available, into the Federal jurisdiction. This occurred because the applicable State awards were converted, on commencement of the Commonwealth Act, into the transitional arrangement known as “notional agreements preserving State awards” (“NAPSAs”). These NAPSAs are due to expire after three years, on 27 March 2009, although the terms and conditions of employment for which they provide can be changed prior to that date if the parties negotiate a new Workplace Agreement, or if they become subject to “award rationalisation” by the Industrial Relations Commission. This process is applicable to NAPSAs and to federal awards.

14.23 When a new Workplace Agreement is negotiated, an employer is required to include certain “preserved award terms” from the relevant NAPSA or federal award or include a clause expressly to change or exclude the operation of any such conditions. Preserved award terms include terms about “jury service”.³⁴ However, it is not clear whether any “preserved term” relating to jury service would extend beyond provisions that simply deal with the right to attend court to perform jury service or would extend to provisions that deal with “top up” pay.³⁵ As already noted, most awards include provisions dealing with “top up” pay for jury service.³⁶

14.24 If top up pay clauses are no longer considered as allowable or necessary conditions, then there is, potentially, a considerable disincentive for most wage earners to serve as jurors. It is no answer that top up pay is considered to be a matter regulated or preserved by State legislation since only Victoria has such a provision in its Juries Act. In any case, even if jury service provisions, including top up pay clauses, do survive the introduction of the Work Choices amendments, they are still open to negotiation in future bargaining rounds.

14.25 Next, as we have observed, s 69 of the Jury Act 1977 (NSW) was designed to protect employees who serve on juries, from being dismissed, or injured in their employment, or having their position prejudicially altered, by reason of being summoned to serve as a juror, and from being threatened with any of the above. Pursuant to s 16(3)(l) of the Workplace Relations Act, “attendance for service on a jury” remains a matter for State law. Questions arise, however, as to the ambit of this provision, and in particular whether it would preserve the operation of provisions such as s 69 of the Jury Act 1977 (NSW), or any provision in a State Act that required an employer to top up the pay of an employee summoned for jury duty. Construed narrowly,it might be confined to the simple obligation of employers to allow their employees to attend for jury duty when summoned.³⁷

14.26 Finally, as a result of the commencement of the Work Choices amendments, employees who previously had a right of recourse to the unfair dismissal proceedings in the NSW Industrial Commission³⁸ and who are now subject to the Federal system, and are dismissed, are excluded from bringing any action for harsh, unjust or unreasonable dismissal³⁹ if their employer employed 100 employees or fewer.⁴⁰ While unlawful termination proceedings are open to all employees, they are based on a variety of grounds (including discrimination), none of which seemingly relate to jury service.⁴¹

14.27 The net result is that many employees coming within the Federal regime may lose the benefit of some of the existing protections which have been given to jurors in relation to their employment and that, over time, top up provisions in awards, enterprise agreements and Workplace Agreements may disappear. If so, they will be disadvantaged in comparison with employees of unincorporated employers, or of any other employers that remain within the State system; and a barrier to their service as a juror may well arise. Even for the group that remains within the State system, it is possible that the disappearance of the relevant protections that applied to those subject to the Federal system will provide an impetus for State awards and enterprise agreements to follow suit when the time for renegotiation arises.

14.28 We note that our recommendations relating to jurors’ daily allowances will alleviate some of the financial burden imposed on jurors and their employers, and potentially make it easier to negotiate the inclusion of jury service and top up pay provisions in future agreements. However, we consider that the State government should engage in discussions with the Commonwealth to identify and resolve any anomalies or uncertainties relating to jury service provisions arising by reason of the current Commonwealth employment laws.

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4. Jury Act 1977 (NSW) s 69(2) and s 69(8). See also Juries Act 1967 (ACT) s 44AA(2).

5. Jury (Amendment) Act 1947 (NSW) s 5(mm) inserting s 84B into the Jury Act 1912 (NSW).

6. Industrial Arbitration Act 1940 (NSW) s 95. See NSW, Parliamentary Debates (Hansard) Legislative Council, Hon R R Downing, Second Reading Speech, 25 November 1947, 1413.

7. At common law, dismissing an employee because he or she served as a juror is a contempt because it has a tendency to interfere with the administration of justice: Attorney-General v Butterworth [1963] 1 QB 696. See NSW, Parliamentary Debates (Hansard) Legislative Assembly, Mr Martin, Second Reading Speech, 13 November 1947, 1124.

8. See, eg, “Jury duty a service out of line with modern life”, Sydney Morning Herald (29 September 2006), 14 (letter to the editor).

9. C Merritt, “It’s time to hurry up” Weekend Australian (SA 1st edition) (14 October 2006), 3.

13. Defence Reserve Service (Protection) Act 2001 (Cth) Part 4 Div 5 and Part 11.

15. According to the New Zealand Law Commission, some employment contracts in that country expressly provide that employees must use their annual leave entitlement for jury service: New Zealand, Law Commission, Juries in Criminal Trials, Report 69 (2001), [488]. Express terms in some NSW awards and enterprise agreements granted employees leave of absence during jury service: See, eg, Animal Welfare, General (State) Award (2001) 322 NSW Industrial Gazette 531 (Publication No B9691) cl 24(i); Speedibake Enterprise Agreement 2003 (IRC3/6671; EA04/29) cl 18; Speedo Australia Certified Agreement 2003 (IRC3/5005; EA03/204) cl 5.6.

16. The Sheriff’s Office is aware of at least one case where an employee was required to work his normal hours at the end of jury duty each day: NSW Jury Task Force, Submission, 4.

17. NSW Public Defender’s Office, Submission, 11; J Goldring, Submission, 6; NSW Jury Task Force, Submission, J Della Bosca, Submission, 9; NSW Young Lawyers, Submission, 22-23; L Thomas, Submission, 3 (Ministerial correspondence).

18. K Shadbolt, Consultation; L Thomas, Submission, 3 (Ministerial correspondence).

27. NSW Public Defender’s Office, Submission, 11; NSW Young Lawyers, Submission, 22.

31. NSW Law Reform Commission, Sentencing: Corporate Offenders, Report 102 (2003), [6.14].

33. NSW Public Defender’s Office, Submission, 11; Legal Aid Commission of NSW, Submission, 16; NSW Young Lawyers, Submission, 22; J Goldring, Submission, 7; A Allan, Submission, 1; M J Stocker, Submission, 9.

39. Arguably, terminating the employment of an employee who performs a legal obligation to the State, such as jury service, would be seen as harsh, unjust or unreasonable.