CHANGES TO THE LEGAL SERVICES AWARD 2010

A decision of the Full Bench of the Fair Work Commission was just handed down relating to two issues under the Legal Services Award 2010. In [2018] FWCFB 4709 the Full Bench rejected a proposal that 26 weeks be ‘the specified period’ over which hours of work be averaged because there was no probative evidence whether the current Award provision allowing for the averaging of ordinary hours over 28 days was insufficient and whether the 26 week period was necessary. The Law Firms had submitted that employees under the Legal Services Award work side-by-side with qualified and admitted lawyers who are not covered by the Award. Therefore, they argued, it is reasonable and desirable that employees covered by the Award should be permitted to average hours of work over a 26 week period. Regarding leave entitlements of law graduates, a new clause 39 was substituted adequately and appropriately accommodating the various study leave requirements of PLT students and supervised training as well as those undertaking a graduate diploma. It reads: Special conditions of employment—Law graduate 39.1 A law graduate is entitled to paid study leave not exceeding a total of 20 days in any 12 month period to attend a course of instruction, and prepare for and attend examinations that relate to the practical legal training required for their admission to practise as an Australian lawyer. 39.2 Paid study leave may be taken for a period or periods agreed between the employer and employee. The employer will not unreasonably refuse to agree to a request by the employee to take paid study leave in accordance with this...

Recent Employee or Independent Contractor Cases

Employee or Independent Contractor Case [2018] FWC 4038 NSW Barratt-Hassett v PERC Group P/L (initially, the A accepted work with R and invoiced R – subsequently A accepted a formal employment contract, but claimed he was also an employee in the initial period he worked – it was finely balanced, but A held to be an employee from the beginning as he was not running his own business and establishing goodwill) [2018] FWC 4285 Vic Seaver v Trade Fair @ Falls Creek (the A “was a skilled graphic designer who exercised a degree of expertise and autonomy in performing her work. She clearly did not require any direct supervision, but was simply provided with direction by email in regard to what was to be done in respect of each publication. She worked from home and did not have set hours. She was simply provided with direction by email, often close to deadline, and then was expected to do whatever was required to complete the work in accordance with those directions” @21 – A “generally earned around 80 percent of her income from her work with K C Bell Enterprises, although she also indicated that this figure might actually have been higher. However, she did have another part-time job, although this was unrelated to her work as a graphic designer. It also appears that she had some capacity to do other work, given she only worked for the Respondent for around 34 weeks each year, and the hours she worked appeared to be concentrated around publication times. KC Bell Enterprises indicated … it understood Ms Seaver did work on occasions...