While the legal profession is notorious for its long working hours, recent years have seen an increase in the number of lawyers in Australia working irregular and unpredictable hours. The demands of the job and the increasing pressure to meet deadlines and billable hour targets often require late nights, early mornings, and sometimes even weekends at work.Access to work technology at home can also increase the pressure on employees to work ‘out of hours’. 

Unfortunately, if you combine these unpredictable hours with poor payroll systems and a lack of observation of the Legal Services Award 2020, it can lead to systemic underpayments. With the Fair Work Ombudsman clamping down on underpayment issues across all industries in Australia, the legal sector must be vigilant in ensuring compliance.

Lawyers may have a better understanding of the legal language within the Legal Services Award compared to employers in other industries, but they’re not immune from non-compliance risks. Sometimes lawyers are not even aware of the fact that some of their employees are actually covered by an award, although paid a salary. There are a number of potential pitfalls that can trip up even the most experienced lawyer, from failing to keep accurate records of hours worked to misclassifying employees. 

So, staying up-to-date on the latest award changes and ensuring that your law firm’s HR professionals  have a comprehensive understanding of the Legal Services Award can reduce the risk of non-compliance.

Here’s a breakdown of everything you need to know within the Legal Services Award.

Who Does the Legal Services Award Cover?

The Legal Services Award is a set of wage rates and conditions that apply to the legal and legal support services industry. It largely covers employers who provide legal and support services and their employees in the following categories: 

• Law graduates who have not yet been admitted to practice
• Clerical employees
• Administrative employees
• Law clerks 

Beyond these employers, the Legal Services Award also applies to businesses in the labour hire industry who place their employees who are in these categories, in a law firm or any other legal support services organisation. 

Importantly, it does not cover qualified lawyers.

Further, it does not cover the following employers and their employees: 

• community legal centres
• Aboriginal legal services 
• Employers whose primary activity is not within the legal services industry

Different Employment Types Under the Legal Services Award

Employees under the Legal Services Award generally fall into one of three employment categories:

Part-Time Employee Minimum Engagement Periods and Entitlements 

Although part-time legal service employees work fewer than 38 ordinary hours per week, employers must engage them for a minimum pay period of at least 3 hours per shift. In other words, employees must pay them for at least 3 hours per shift even if they actually work for a shorter period. 

Part-time employees must also receive the same pay rates and employment conditions (e.g. annual leave and personal leave) as full-time employees, but on a pro-rata basis according to their average number of hours per week.

Casual Minimum Engagement Periods and Loading Rates

The minimum engagement period per shift for casual employees is 4 hours.

Since casual employees are not given the same entitlements as full-time and part-time employees under the Legal Services Award, they are paid a loading of 25% in addition to their base rate of pay. This loading essentially makes up for the lack of paid annual and personal leave entitlements, paid public holidays, potential redundancy benefits, and notice of termination. 

Right to Request Casual Conversion in the Legal Services Industry

Employers with 15 or more employees are legally required (in terms of the National Employment Standards) to offer a casual employee who has worked for 12 months an opportunity to convert to full-time or part-time employment if they have worked a regular pattern of hours for the last 6 months, which they could continue working without significant adjustment as a full-time or part-time employee. If the casual employee accepts the offer of casual conversion, they will cease to receive their casual loading. The employee may decide to reject an offer of casual conversion.

However, such an offer is not required to be made where there are reasonable business grounds not to do so.

Where an employer has fewer than 15 employees, a casual employee may request to convert their employment type to full-time or part-time if they have been employed for at least 12 months and worked regular hours for the last 6 months. Employers can only refuse on reasonable business grounds.

Shift Work Employees

Employees who do not work within the ordinary span of hours are considered shift workers for the purpose of the Legal Services Award. Where an employer wishes to engage an employee as a shiftworker, the employee’s employment contract should state that they are engaged as a shiftworker.

The award distinguishes between continuous and non-continuous shift work. In legal practices, it would be unusual to employ persons as continuous shift workers since it is atypical to have workers working right through the night over at least 6 days a week.

• Continuous shift workers work according to a regularly-rotated shift roster that covers 24 hours per day over at least 6 days a week (i.e. this is for organisations which operate 24/7 or similarly).
• Non-continuous shiftworkers work according to a roster that involves working an afternoon or night shift which does not continue for at least 5 consecutive afternoons or nights (or 6 if it is a 6 day workplace).

For example, an organisation may employ a law graduate to work 1 afternoon shift a week (being a shift that finishes after 6:00 pm but at or before midnight) and 4 day shifts, which means they are classified as a non-continuous shiftworker. 

This classification is important because it determines the type of penalty rate they must receive when they work shifts that are not wholly within the span of hours between 7:00 am and 6:30 pm, Monday to Friday.

The same rules in relation to hours worked each week / 4 weeks apply for shiftworkers.

Employers must pay penalty rates to shiftworkers according to the following penalty rates.  These rates of pay apply to all hours that are worked during the whole of the relevant shift.

Shift workers are instead paid Saturday and Sunday penalty rates when they work ordinary hours on a Saturday or Sunday.  These rates are set out below.

Penalty Rates for Shiftworkers Who Work Saturdays, Sundays and Public Holidays

Note: Casual shiftworkers under the Legal Services Award who work on weekends as part of their ordinary hours of work must receive penalty rates for Saturday, Sunday, and Public Holiday work in addition to their casual loading rates.

Employee Rosters and Rostered Days Off Under the Legal Services Award 2022

Employers can choose to use rosters over a fortnightly period to set working hours for employees. They should finalise the roster at least 14 days ahead of time so that the employee has sufficient notice of their next fortnightly roster and to comply with the award requirement. 

If operational requirements demand it, the employer can amend the rosters with less than 14 days’ notice after consulting with the employee and giving as much notice as possible. 

An employer and individual employee may also agree to certain rostered days off. However, the agreement must explicitly outline how the employee will accrue and accumulate these days off and when they can take the time off work. 

Can Legal and Legal Support Services Employees “Make Up” Time for Time Off?

• Ordinary hours worked on Saturday – 150% penalty rate 
• Ordinary hours worked on Sunday – 200% penalty rate

Yes, the Legal Services Award makes provision for make-up time. Employees (including shiftworkers) can agree with their employer to work any time they take time off during their ordinary hours, by working such hours at a later time, provided such time is worked during the ordinary span of hours. 

*If shiftworkers decide to make up time in a different shift schedule, the original penalty rates will apply.

Employees Must Receive Breaks

Employers must give employees under the Legal Services Award the requisite number of paid rest breaks and unpaid meal breaks based on their ordinary hours of work.

Paid Rest Breaks

All employees can take two 10-minute paid rest breaks each work day. The Legal Services Award suggests (but does not compel) allocating the rest breaks as follows: 

• before their unpaid meal break; and 
• after their unpaid meal break.

Unpaid Meal Breaks

Employees must take one 30- to 60 minute meal break within 5 hours from the start of their work day. 
If an employer directs an employee to work more than 5 hours without taking a meal break, the employer will need to allow them to take their meal break without deduction from their wages (i.e. as a paid break), as soon as possible, and pay them at the rate of 150% of the  ordinary hourly rate for the time they take for their meal break.

Legal Services Award Pay Rates

Employers must pay their employees under the Legal Services Award at least the pay rates and entitlements contained in the award either weekly or fortnightly, depending on their pay cycle. 

The Fair Work website has various tools and resources to help you calculate your wage obligations. 

Alternatively, you can access the pay guide summaries, which contain information about pay rates, penalties and allowances. 

Take note, however, that these pay rates are adjusted annually in accordance with the national minimum wage. Therefore, you need to make sure you’re using the applicable pay guide summary when determining the relevant pay rates.

Annualised Salary Arrangements

Under an annualised salary arrangement, employers divide an employee’s annual salary into equal payments that are made on a regular basis (usually fortnightly or monthly). Their fixed pay, which includes award entitlements, will remain the same even if their hours actually worked fluctuate. 

In 2020, the Fair Work Commission introduced additional requirements for employers who pay their staff annual salaries. The purpose of these changes is to implement additional measures to ensure that the annual wage is not less than what they would have received if they were getting paid according to the hourly rate with all award entitlements. 
You can read more about the annual salary requirements on the Fair Work website.

What are the Legal Services Award Allowances?

Employees under the Legal Services Award receive additional pay, in the form of allowances, for specific work conditions and work-related skills, including: 

These allowances are generally adjusted annually. You can access the full allowance conditions in clause 18 of the Legal Service Award and the allowance rates in the relevant pay guide.

Superannuation Guarantee

All employers must pay a superannuation guarantee on behalf of their employees. The current rate is 10.5% of an employee’s ordinary earnings for the 2022–23 financial year. 

Pay Rates for Legal and Legal Support Service Employees Who Work Overtime

Where an employee is required to work beyond their ordinary hours of work, an employer must compensate them according to applicable overtime rates for the additional hours of work as follows.

Employers must compensate day-work and non-continuous shift-work employees who work overtime according to the rates in the table below:

An employer must pay an employee who works overtime on public holidays, Sundays, or after 12:00 pm on Saturdays, a minimum payment of 3 hours.

The overtime rates for continuous shiftwork employees are:

• Full-time and part-time continuous shiftwork employees: 200% of their minimum hourly rate; and
• Casual continuous shiftworkers: 225% of their minimum hourly rate.

Rest Breaks During Overtime Work 

Employers must allow their employees who work more than four hours of overtime to take a 20-minute paid rest break. 

However, where employees work more than 1.5 hours of overtime directly after their ordinary hours, they are entitled to take a 20-minute paid rest break.

Can Employees Request Time Off Instead of Overtime? 

Under the Legal Services Award, mutual agreement may be reached to allow the employee to take time off instead of receiving overtime rates. The agreement must, however, meet specific conditions, including: 

• the agreement must be in writing;
• there must be a separate written agreement for each occasion;
• the time off must be the same number of hours as the number of overtime hours worked (e.g. an employee who works 3 hours of overtime is entitled to 3 hours of time off); 
• employees must take the time off within 6 months of working the overtime (or be paid for the overtime at the overtime rate which applied when the overtime was worked); and 
• if an employer terminates the employee, they must pay the overtime out.

Other Overtime Conditions that Employers Must Note

Beyond the additional pay rates and time off, the Legal Services Award sets out additional conditions that apply when an employee works overtime: 

• Rest period after overtime: full-time and part-time employees must receive at least 10 consecutive hours off after working overtime and before their next shift starts, without loss of pay. If they don’t receive the 10 hours rest period, they must be paid a 200% penalty rate for each hour until they finish their shift – after which they must receive their 10 hours rest period. 

• Recall to work: if an employee is called back to work after their work day or shift ends (i.e. they left the premises), they must be paid for at least 4 hours of overtime work (even if they don’t work the full 4 hours) at the following rates: 

• Stand by: subject to any custom at the relevant workplace, if employers require their staff to be on standby (in other words, they must be prepared to go into work when called), they must pay them at their ordinary hours for the duration of the stand-by period. 

What are the Annual Leave Provisions?

• Leave in advance: Employees and employers can agree in writing that they want to take a paid annual leave before the leave has been accrued.

• Cashing out annual leave: Employees and employers may agree in writing to cash out a certain amount of paid annual leave, provided certain requirements are met including that the employee retains an accrued annual leave balance of at least 4 weeks.

• Excessive leave accruals: employers and employees may agree in writing on how to reduce or eliminate excessive leave accrual by the employee taking some of their leave. Fair Work defines excessive leave accrual as having accrued more than 8 weeks paid annual leave, or 10 weeks for a shift work employee.

Law Graduates are Entitled to Paid Study Leave

Law graduates have special employment conditions that allow them to take paid study leave to attend courses and prepare for examinations. These conditions are in place to help the law graduates meet the practical legal training requirements for admission to practise as an Australian lawyer. 

They are allowed a maximum of 20 days of paid study leave over a 12-month period. Employers cannot unreasonably refuse a law graduate’s request for paid study leave.

Key Takeaways

If you are unsure of your obligations under the Legal Services Award, it may be in your best interests to engage the services of an employment law firm. 

WilliamsonBarwick lawyers are experienced in dealing with the Legal Services Award and can help you understand your compliance obligations. We can also assist you with any disputes that may arise under the award.

Contact us today to discuss your needs.