Only support staff

All firms contacted by The Australian Financial Review said they were still working through the FWC decision following the four-year review of annualised agreements, but some declared the ruling only applied to support staff.

Clayton Utz indicated it would still record the hours worked, despite its belief that the decision does not apply to the firm.

"The nature of our employment contracts means the additional administrative obligations don't apply," Clayton Utz said in a statement.

"However, we will continue to closely monitor hours worked by our LSA employees and adjust existing pay arrangements as necessary.

"In addition to annual pay, we have a recognition program to reward and recognise our employees, as well as various health and wellbeing, financial and other benefits available."

Maddocks chief executive Michelle Dixon reflected many of the responses when she said the firm was "assessing the implications, if any, of the decision for us".

Gilbert + Tobin and MinterEllison said it would "fully comply with the FWC decision", while Ashurst said it was working on system updates to meet the time-recording requirements.


Nick Ellery, an employment and labour partner at Corrs Chambers Westgarth, said the LSA "covers some of our legal and support teams".

"We will ensure any changes are appropriate to the working practices of those teams and are fully compliant with the award,'' Mr Ellery said.

DLA Piper managing partner Amber Matthews said the firm "absolutely" respected the FWC decision.

"This is a people business. We have a number of initiatives and policies in place to enhance our employee wellbeing, including a focus on flexible working," she said.

Push back plea

The 20 national firms that opposed the ruling argued the date it took effect should be pushed back from March 1 to July 1 2020 and cited a survey conducted by the director of human resources at K &L Gates, Nick Grant about the burden it would impose.

Mr Grant is president of HR Minds, a group of 15 law firms that formed in 2012 "to provide an employer and HR perspective on the draft Award". K &L Gates represented the opposing firms at the Fair Work Commission.

Mr Grant reported in his witness statement that:


Most employees on annualised salary arrangements were paid well in excess of minimum rates under the LSA;

Only 11 per cent of those employees were always paid overtime; 58 per cent were only paid extra when "an inordinate number of overtime hours were performed in a period; 32 per cent had "other arrangements";

No firm asked full-time employees to fill out timesheets;

42 per cent of firms do not have HR systems that can capture start and finish times; 47 per cent said it would take 12 months or more to get systems up to speed.

In 2010, legal practices became "national system employers" under the Commonwealth’s Fair Work Act. The Legal Services Award also started from January 1 and applied to all private enterprises in the business of providing legal services or legal support services.

It sets out the terms and conditions of employment for legal. clerical and administrative staff, law clerks (paralegals) and law graduates. It does not cover those with a practising certificate, which limits its application to those in their first year of practice. Lawyers are usually formally admitted to practice in that time after fulfilling some post-university requirements. In most states, this is done via a college of law.

Under scrutiny

The FWC ruling followed a year in which the profession came under scrutiny for the long hours worked by junior lawyers, especially during the Hayne royal commission. King & Wood Mallesons faced a WorkSafe Victoria investigation after a complaint by one of its lawyers and Gilbert + Tobin was the subject of allegations to SafeWork NSW about "extreme" working conditions.

Young lawyers surveyed by the Financial Review earlier this year cited aligning base pay with overtime worked as the second-most important change that could improve their lives.

Law Council of Australia president Arthur Moses said "keeping track of the days and hours worked by graduate lawyers and paralegals is an important way to monitor their health and safety and ensure their longevity in the legal profession".

"Many firms already do this. This ensures that young lawyers are not consistently working long hours, which may be detrimental to their health," he said.


He said that when long hours needed to be worked it was important "to ensure people receive appropriate time off and are properly remunerated".

Michael Tidball, the chief executive of the Law Society of NSW, which represents 30,000 solicitors, said it was "no secret that certain aspects of legal work require long hours".

Step in right direction

"It is the responsibility of the employer to ensure the wellbeing of employees, including young lawyers," he said.

Keeping time: Law Council president Arthur Moses, SC. Supplied

Law Institute of Victoria director Brendan Lacota said the rules were "a great step in the right direction" but their effectiveness would be limited as they only covered graduates until they obtained a practising certificate towards the end of their year.

"It's plugging a gap, but as early year lawyers aren't covered by the award, it's missing a huge portion of the vulnerable employees it seeks to protect," Mr Lacota said.

He said supply of entry-level lawyers was outstripping demand at commercial firms, diminishing new recruits' negotiating power.

The 20 firms represented at the FWC, were Arnold Bloch Leibler, Allen & Overy, Allens, Ashurst, Baker McKenzie, Clayton Utz, Corrs, Davies Collison Cave, DLA Piper, Gadens, Gilbert + Tobin, Hall and Wilcox, Herbert Smith Freehills, King & Wood Mallesons, Lander & Rogers, Maddocks, MinterEllison, Norton Rose Fullbright, Piper Alderman and Russell Kennedy Lawyers.