Legal Services Award 2010

Transcription

1 Legal Services Award 2010 An introductory guide Version Practice support

2 a. User Warning This Introductory Guide to the Legal Services Award 2010 has been prepared as an indicative guide to the Modern Award applicable to the legal profession and aspects of the National Employment Standards. The treatment of either subject is not intended to be exhaustive or authoritative and no part of this document should be relied upon as legal advice or advice addressing any particular individual s or firm s circumstances. This Introductory Guide is intended to be a concise summary of the major provisions of the Legal Services Award and National Employment Standards only and all readers are strongly encouraged to independently satisfy themselves of the full scope of their obligations. The does not guarantee, and accepts no legal responsibility whatsoever arising from or connection to, the accuracy, reliability, currency, correctness or completeness of any material contained in this material. Users should exercise their own skill and care with respect to their use of the information contained in this publication. While every effort has been taken to ensure the accuracy of this publication members are kindly requested to provide comments, suggestions or notice of omissions or mistakes to the Society s Principal Policy Solicitor, Mr Matt Dunn, via on [email protected] or via fax on (07) b. Acknowledgements This Introductory Guide was produced by and is the copyright material of the Queensland Law Society. The Society wishes to acknowledge its contributing authors Matthew Dunn, Giles Watson, Bree Bignell and Patrese McVeigh as well as the integral role played by its Business Law Section, Industrial Law Committee and Chair, Anne Milner, and Practice Development and Management Section and contribution of Andrew Jones of Indigo Field Legal Services Award 2010 An introductory guide version 2.0

3 Table of Contents Introduction Busy Practitioners Summary Which employers are covered?...3 a. Legal Services Industry Coverage...3 b. Specific Inclusions...3 c. Specific Exclusions Which employees are covered?...5 a. Legal clerical and administrative employee...5 b. Law graduate...6 c. Law clerk (paralegal employees)...6 d. Others work experience clerk...7 e. High income exclusion...7 f. A cautionary note on classifications What are the obligations?...8 a. Award Flexibility...8 b. Making the Award and National Employment Standards available...9 c. Consultation regarding major workplace change...9 d. Dispute Resolution...9 e. Types of Employment...10 f. Termination of Employment...11 g. Redundancy...11 h. Classifications...12 i. Annualised Salaries...12 j. Minimum Wages...12 k. Junior Employees...13 l. Higher Duties...13 m. Supported Wage System...13 n. National Training Wage...13 o. Allowances...13 p. Accident Pay...14 q. Payment of Wages...14 r. Superannuation...14 s. Ordinary hours of work and rostering...15 t. Breaks...16 u. Overtime and Penalty Rates...16 v. Annual Leave...18 w. Personal/carer s leave and compassionate leave...19 x. Community Service Leave...19 y. Public holidays...19 z. Special conditions of employment for law graduates...19 Legal Services Award 2010 An introductory guide version 2.0

4 5. When do I have to comply...20 a. Minimum Wages...20 b. Loadings and Penalty Rates...22 c. Redundancy Pay A Practice Management Perspective...25 Appendix A National Employment Standards...26 a. Maximum Hours of Work...26 b. Annual Leave...26 c. Personal/Carer s Leave and Compassionate Leave...27 d. The Right to Request Flexible Working Arrangements...28 e. Parental Leave and Related Entitlements...28 f. Community Service Leave...29 g. Long Service Leave...30 h. Public Holidays...30 i. Notice of Termination and Redundancy Pay...31 j. Provision of Fair Work Information Statement...32 Further Reading and Assistance...33 Legal Services Award 2010 An introductory guide version 2.0

5 Introduction In 2009 many States referred their industrial relations powers to the Commonwealth and from 1 January 2010 legal practices became national system employers under the Commonwealth s Fair Work Act The industrial relations system under the Fair Work Act 2009 is comprised of two elements which set minimum standards for employment: ten National Employment Standards contained in the Fair Work Act 2009 itself, dealing with: maximum weekly hours of work the right to request flexible working arrangements parental leave and related entitlements annual leave personal/carer s leave and compassionate leave community service leave long service leave public holidays notice of termination and redundancy pay a Fair Work Information Statement for all employees that make clear their rights and entitlements under the new system and how to get advice and help. Modern Awards for specific industries set by Fair Work Australia (formerly the Australian Industrial Relations Commission), dealing with matters such as: minimum wages, including piecework rates types of employment (eg. full-time, part-time, casual) overtime and penalty rates work arrangements (eg. rosters, variations to working hours) annual wage or salary arrangements allowances (eg. travel allowances) leave, leave loading, and taking leave superannuation procedures for consultation, representation and dispute settlement employing outworkers and the work they perform an industry-specific redundancy scheme. Fair Work Australia made the Legal Services Award 2010 (the Award) which expanded on the obligations under the Fair Work Act 2009 for national system employers in the legal services industry. As a part of the transitional arrangements, at late notice, the Commonwealth Government also continued the effect of existing State awards as they applied to employers who were not constitutional corporations until 31 December 2010 (labelled as Division 2B State Awards under the legislation). Division 2B State Awards included the Queensland Clerical Employees Award, amongst others. Fair Work Australia continued the effect of the Division 2B State Awards to the end of the last full pay period commencing before 1 February From the first full pay period in February 2011 all employees on Division 2B State Awards transitioned to the Award and finally all staff in all legal practices were subject to the one set of award conditions. This QLS Introductory Guide focuses primarily on the obligations placed on legal practices under the Legal Services Award and through the transitional arrangements for Division 2B State Awards in early Practitioners should also keep in mind how the National Employment Standards affect their employment relations with their staff. A very brief introductory guide to the National Employment Standards is contained in Appendix A. Legal Services Award 2010 An introductory guide version 2.0 page 1

6 1. Busy Practitioners Summary The Legal Services Award 2010 commenced (along with new National Employment Standards) from 1 January 2010 and applied to all private enterprises in the business of providing legal services or legal support services. As a transitional measure the effect of certain previous State awards, such as the Queensland Clerical Employees Award were extended as Division 2B State Awards until 31 December Fair Work Australia then decided that: the effect of Division 2B State Awards continued until the first full pay period in February 2011; from the first full pay period in February 2011 all employees on Division 2B State Awards would transition to the Award; and employees moving to the Award commenced at the same minimum wage and penalty and loading levels as employees who have been subject to the Award since 1 January Generally, the Award sets out terms and conditions of employment for legal clerical and administrative staff, law graduates and law clerks (paralegals), including: classification levels for employees; minimum wages; annualised salaries to replace certain obligations; allowances; ordinary hours of work; breaks; overtime and penalty rates; annual leave; and other aspects of employment. The financial obligations relating to minimum wages and loadings and penalty rates commenced on 1 July 2010 and transition in steps until 1 July Employees of employers who are not constitutional corporations joined the Award on the same level as employees who were covered by the Award since 1 January 2010 and will then move the usual step requirements each July until This will mean that the minimum wage and penalty and loading entitlements for Division 2B State Award employees will change as of the first full pay period in February 2011 and then again from the first full pay period in July The Award introduces many documentary obligations for employers about agreeing terms and conditions with employees and keeping work records, as well as new aspects about consultation with employees about major workplace changes and new requirements around termination of employment and redundancy obligations. This Introductory Guide includes practice management steps that are a useful starting point for the busy practitioner. Further assistance in assessing and meeting new employment obligations is available from the Commonwealth Fair Work Ombudsman on , or on their website Legal Services Award 2010 An introductory guide version 2.0 page 2

7 2. Which employers are covered? Put simply, the Legal Services Award covers all private legal practices who employ staff, regardless of whether they are: an incorporated legal practice; a sole practitioner; a partnership; or a multi-disciplinary partnership. The Legal Services Award also covers all private service entities providing legal support services who may also employ staff. The Award covers only employers in the legal services industry and this consequently would exclude coverage to legal support staff working for in-house counsel. These staff may be covered by the general clerical award. Where an employee is covered by more than one Award the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work is to be applied. 1 a. Legal Services Industry Coverage The Award states that it covers employers throughout Australia in the legal services industry. 2 It specifically includes and excludes certain employer types, however, employers will only be covered by the Award if they are participants in the legal services industry. The Award defines legal services industry as: legal services industry means employers engaged in the business of providing legal and legal support services For many legal practices assessing whether they are in the legal services industry will be quite straightforward, however, practices which employ more complex support structures may need to examine thoroughly their position with respect to service and support entities. The Award does not helpfully define legal support services. b. Specific Inclusions The Award is stated to cover employees of national system employers in the legal services industry, which includes: 3 a constitutional corporation, so far as it employs, or usually employs, an individual; or any person in a referring State so far as the person employs, or usually employs, an individual an employer which supplies labour on an on-hire basis, provides group training or related temporary employment services for trainees in the legal services industry. 4 1 Award clause Award clause defined in sections 14 and 30D of the Fair Work Act 2009 (Cth) 4 Award clause 4.5 and 4.6 Legal Services Award 2010 An introductory guide version 2.0 page 3

8 c. Specific Exclusions While the Award covers all private enterprises, it specifically does not cover: an employer bound by a State reference public sector transitional award or a State reference public sector modern award with respect to an employee who is covered by the State reference public sector transitional award or a State reference public sector modern award; or community legal centres; or Aboriginal legal services; or an employer whose primary activity is not within the legal services industry; or employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cwth)), or employers in relation to those employees Legal Services Award 2010 An introductory guide version 2.0 page 4

9 3. Which employees are covered? The Legal Services Award extends to the following employee types of a national system employer: legal clerical and administrative employees; law graduates; and law clerks. a. Legal clerical and administrative employee The Award defines a legal clerical and administrative employee as: legal clerical and administrative employee means an employee in the clerical and administrative stream The Award also divides this stream of employees into various classifications levels (1 to 5). Legal clerical and administrative employees must be assigned to a classification level based on certain sets of enumerated skills: Generic skills Problem solving Literacy Numeracy Core skills Information handling Communication Enterprise/industry Technology Organisational Team Business/financial Legal The Award also links a classification with an indicative training and vocational educational level, namely: Level indicative training and vocational educational level 1 Year 10 standard 2 Year 11 standard 3 Trade Certificate or equivalent TAFE/Year 12 standard 4 TAFE Advanced Certificate. 5 Associate Diploma at TAFE or tertiary level (or equivalent) The most important aspect of classifying a legal administrative and clerical employee is to match the core elements of a position to the appropriate level of skills and responsibilities set out in Schedule B of the Award. The table above is indicative only. Legal Services Award 2010 An introductory guide version 2.0 page 5

10 b. Law graduate The Award defines a law graduate as: law graduate means a lawyer not admitted to practice but who is undertaking a period of training within a law firm with the view to being admitted to practice Law graduates are given a level 5 classification under the Award, although with a higher minimum pay rate than legal clerical and administrative employees at level 5, and are expressed to have the following characteristics: This position requires the completion of a course of study which is recognised as an academic qualification for admission and a formal offer by the employer to the law graduate, the acceptance of that offer and registration and approval of all documentation required by the relevant governing bodies. 5 c. Law clerk (paralegal employees) The Award defines law clerks as: law clerk means a clerk who is engaged for the major part of their time in interviewing clients, preparing documents and general work assisting a barrister or solicitor in their practice, but will not include account clerks, law graduates, titles office clerks, receptionists and employees principally engaged in word processing, computer use, filing, machine operation, switchboard, delivery of documents or duties of a routine nature A law clerk is given a level 6 classification and is described as having an indicative training and vocational educational level of an Associate Diploma at TAFE or tertiary level (or equivalent). 6 The characteristics proposed for the position, include: Work is under limited guidance Responsibility and defined accountability for the management and output of the work of others and for a defined function or functions may be involved Competency involves self-directed development of knowledge with substantial depth across a number of areas and/or mastery of a specified area with a range of skills Competencies are normally used independently and are substantially non-routine Significant judgment is required in planning, design, technical or supervisory functions related to products, services, operations or processes of the firm Display a practical understanding and application of the structures, methods and procedures of the relevant State or Territory legal system. 7 The Award does not make reference to paralegal employees, however, the classification of law clerk may be the most appropriate level for truly paralegal employees to be placed. Practices may need to assess the duties of their paralegal employees to establish whether in fact they are best classified within the legal clerical and administrative employee levels or as a law clerk. However, caution should be exercised in making classification assessments as under-classification may lead to later claims for re-classification and payment of underpaid wages. 5 Award Schedule B Classifications, paragraph B Award Schedule b Classifications, paragraph B Award Schedule b Classifications, paragraph B.7.1 and B.7.2 Legal Services Award 2010 An introductory guide version 2.0 page 6

11 d. Others work experience clerk The Award defines certain other types of employees who are not included within the classification system: work experience clerk means a person, whether a student or not, who is employed for not more than two months in any consecutive period of 12 months for the purposes of gaining experience, but does not include law students or any person who is undertaking work experience according to the provisions of the relevant State or Territory legislation or a secondary school student on a formal work program. An employee on a vocational placement 8 is specifically excluded from coverage by the Award. e. High income exclusion The national system has an exemption from Award coverage for employees classed as high income earners, however the National Employment Standards still apply to these employees. The Legal Services Award will not apply to any employee with a written guaranteed annual earning of more than $113,800 to 30 June 2011 (pro rata for part-time employees). The high income threshold is indexed annually. The Government Factsheet A strong and simple safety net, sets out the procedural requirements for the exemption: This exemption from the award applies if an employer provides a written undertaking to pay an employee annual earnings at or above the high income threshold over a period of 12 months or more. A guarantee for a shorter period may apply in the case of a short-term, fixed-term contract or a particular type of work on a short-term basis. The employer and employee must reach agreement about the undertaking before it commences operation. A guarantee can be entered into before employment commences. f. A cautionary note on classifications In transitioning employees to the new national system and classifying existing employees law practices will need to assess the duties of their existing employees to determine where they are best described within the classification system. Caution should be exercised in making classification assessments, especially in firms where salaries are at or near the new statutory minimum levels, as under-classification may lead to later claims for re-classification and payment of under-paid wages. 8 Defined in sections 13 and 30C of the Fair Work Act 2009 (Cth) Legal Services Award 2010 An introductory guide version 2.0 page 7

12 4. What are the obligations? The Legal Services Award contains many obligations on employers, many of which are set out below. This section of the Introductory Guide is not meant to be exhaustive but to outline some of the most important elements of the new Award of which members should be aware. Practitioners are advised to make an independent assessment of their obligations to ensure that they comply within time. a. Award Flexibility Under the Award an employer and an employee may agree to vary the conditions of the Award to meet the genuine individual needs of the employer and the individual employees. 9 Variation of these terms can only be agreed if: 10 the parties genuinely agree without coercion or duress; the agreement alters only one or more of terms relating to: arrangements for when work is performed; overtime rates; penalty rates; allowances; and leave loading; the agreement results in the employee being better off overall than the employee would have been if no individual flexibility had been agreed to; the agreement is: in writing stating the names of the employer and employee and is signed by both parties; states each term of the Award agreed to vary and details how it is varied; details how the employee is better off overall in relation to the individual employee s terms and conditions of employment; and states the date the agreement commences. The employer must give a copy of the agreement to the employee and keep a copy of the agreement themselves as a time and wages record. The agreement may be terminated: by the employer or the individual employee giving four weeks notice of termination, in writing, to the other party and the agreement ceasing to operate at the end of the notice period; or at any time, by written agreement between the employer and the individual employee See Award clause See Award clauses 7.1 to Award clause 7.8 Legal Services Award 2010 An introductory guide version 2.0 page 8

13 b. Making the Award and National Employment Standards available An employer must ensure that copies of the Legal Services Award and the National Employment Standards are available to all employees to which they apply. The Award suggests that they should be available by the most accessible of either: 12 being posted on a noticeboard located at or near the workplace; or through electronic means, such as on a firm intranet. c. Consultation regarding major workplace change Once a definite decision has been made an employer to make major changes to production, program, organisation, structure or technology in the workplace they must notify and discuss with employees significantly affected by the changes the effects on their employment. 13 Significant effects include termination of employment; major changes in the composition, operation or size of the employer s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. 14 In discussing changes with employees, employers must: 15 discuss the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects; give prompt consideration to matters raised by the employees; commence the discussions as early as practicable after a definite decision has been made to make changes; and provide in writing to the employees concerned all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer s interests. d. Dispute Resolution For disputes relating to the Award or the NES the parties must attempt to seek resolution at the workplace between the employee(s) and supervisor concerned and should this not be successful then more senior levels of management must become involved. 16 If still unresolved, the matter may be referred to Fair Work Australia who may employ any method of dispute resolution appropriate to resolve the dispute. 17 An employer or employee may appoint another person, organisation or association to accompany and/or represent them for the purposes of this dispute resolution process. 18 While a dispute is being resolved work must continue and an employee is not permitted to unreasonably fail to comply with a direction of their employer to undertake work which is safe for them to do Award clause 5 13 Award clause Award clause 8.1(b) 15 Award clause Award clause Award clauses Award clause Award clause 9.6 Legal Services Award 2010 An introductory guide version 2.0 page 9

14 e. Types of Employment Employment under the Award must be one of: a. Full-time; b. Part-time; or c. Casual. An employer must inform an employee when they are engaged of the terms of their employment, including whether they are full-time, part-time or casual. 20 A. Full-time Employment Full-time employment is where an employee works 38 hours per week. Any employee not specifically engaged as either part-time or casual is to be a full-time employee for the purpose of the Award. 21 B. Part-time Employment Part-time employment is where an employee is engaged to perform less than 38 hours per week on a reasonably predictable basis. A part-time employee must be paid for ordinary hours worked at a rate 1/38th of the weekly prescribed rate and is entitled on a pro rata basis to equivalent pay and conditions to those of full-time employees. 22 Before commencing part-time employment the employer and employee agree in writing: a regular pattern of work, including: the numbers of hours worked each day; the days of week the employee will work; starting and finishing times for the work; and the classification for the work. The employer must provide a copy of the agreement to the employee and a copy of any written variation of the terms agreed by both parties. 23 The minimum period of engagement for a part-time employee is three (3) hours. 24 A part-time employee who is required to work in excess of hours agreed must be paid overtime in accordance with clause 34 of the Award Overtime and penalty rates. 25 C. Casual Employment A casual employee must be paid per hour at the rate of 1/38th of the weekly rate prescribed for work, plus a 25% loading in lieu of entitlements to leave and other conditions. 26 A casual employee must be paid for a minimum of four (4) hours for each day that the casual employee is engaged Award Clause Award clause 10.3(b) 22 Award clauses 10.4(b) & (c) 23 Award clause 10.4(d) 24 Award clause 10.4(e) 25 Award clause 10.4(f) 26 Award clause 10.5(b) 27 Award clause 10.5(c) Legal Services Award 2010 An introductory guide version 2.0 page 10

15 f. Termination of Employment Notification requirements for termination by an employer is provided for in the NES. Under the Award an employee is obliged to give the same notice of termination to an employer as the employer must under the NES, except that there is no requirement on the employee to give additional notice based on the age of the employee concerned. 28 If an employee fails to give their employer the required period of notice, an employer may withhold from any monies due to the employee on termination under this award or the NES an amount equal to: The amount the employee would have been paid under this award in respect of the period of notice required; and LESS any period of notice actually given by the employee. 29 Where an employer has given an employee notice of termination the employer must give the employee up to one day s time off without loss of pay for the purpose of seeking other employment. 30 g. Redundancy Provisions relating to termination by redundancy are contained in the NES. If employee is transferred to lower duties by reason of redundancy, the employee is entitled to the same notice as if their employment was terminated. An employer may make a payment to the employee of the difference in ordinary pay for required period in lieu of notice. 31 An employee given notice of redundancy is entitled to terminate their employment during the notice period and still entitled to receive all the benefits and payments they would have otherwise received until the end of the notice period. 32 Where an employer has given an employee notice of redundancy the employer must give the employee up to one day s time off without loss of pay for the purpose of seeking other employment 33. However, if the employee has been provided with paid leave for seeking employment for more than one day the employer may request an employee provide proof of attendance at an interview (which may be by statutory declaration) or they will not be entitled for payment for the time absent from the workplace. 34 If an employee would have been entitled to redundancy pay under a notional agreement preserving a State Award immediately prior to 1 January 2010 which exceeds the requirements under the NES, the employee is to be paid redundancy pay equivalent to their greatest entitlement. 35 This requirement continues until 31 December If an employee was entitled to accident pay under a notional agreement preserving a State award immediately prior to 1 January 2010, or under a Division 2B State Award prior to 1 January 2011; the employee is entitled to receive accident pay equal to their former entitlement. 36 This benefit ceases to operate on 31 December Award clause Award clause Award clause See Award clause 12.2 and NES for redundancy requirements 32 Award clause Award clause 12.4(a) 34 Award clause 12.4(b) 35 Award transitional clause Award clause 21 Legal Services Award 2010 An introductory guide version 2.0 page 11

16 h. Classifications All employees covered by the Award must be classified according to their skill level or the skills required to carry out their positions principal functions under the structure set out in Schedule B to the Award and paid at least the minimum wages set out in the next section. Employers must inform their employees in writing of their classification and any changes to their classification. 37 Classifications are discussed also under individual job types in the previous Part of this Guide. i. Annualised Salaries The Award permits an employer to pay an employee an annual salary in satisfaction of any or all of the Award requirements for: Minimum Wages (Award clause 14); 2. Allowances (Award clause 19) 3. Overtime and penalty rates (Award clause 34); and 4. Annual leave loading (Award clause 35.3). Where an employer proposes to pay an annual salary in satisfaction of any of the above Award requirements, they must: Advise the employee in writing of the annual salary payable and which Award requirements it will be paid in satisfaction of; 39 Ensure that the annual salary is no less than the amount the employee would have received under the Award requirements for work during the year; 40 and Review the salary annually to ensure that the amount paid is appropriate to satisfy the Award requirements that would otherwise have applied. 41 For the purposes of obligations under the NES the base rate of pay for an employee receiving an annual salary is the proportion of the salary equivalent to the relevant rate of pay in the Award table of Minimum Wages excluding any loadings or penalties. 42 j. Minimum Wages The Award sets out the following table of minimum wages: 43 Classification Per Week $ from 1 July 2010 Per Week $ from 1 July 2011 Level 1 legal clerical and administrative employee Level 2 legal clerical and administrative employee Level 3 legal clerical and administrative employee Level 4 legal clerical and administrative employee Level 5 legal clerical and administrative employee Level 5 law graduate Level 6 law clerk Award clause Award clause 30.1(a) 39 Award clause 30.1(b) 40 Award clause 30.2(a) 41 Award clause 30.2(b) 42 Award clause Award clause 14 Legal Services Award 2010 An introductory guide version 2.0 page 12

17 k. Junior Employees Junior employees are to be paid the following percentage of the appropriate minimum wage: Age % Under 16 years years years years years years 90 l. Higher Duties Employees asked to perform the duties of a higher classification (but only between levels 2 and 5) for a period longer than one day are entitled to be paid at the rate of pay which would be applicable if such duties were performed on a permanent basis. 44 m. Supported Wage System The Award sets out the conditions which will apply to employees who because of the effects of a disability are eligible for a supported wage. 45 n. National Training Wage The Award includes the National Training Wage Schedule which applies to employees covered by the Award undertaking a traineeship. 46 o. Allowances The Award sets out the terms of: Meal allowances Uniform Allowance Vehicle Allowance Transport after doing overtime Living away from home allowance Protective clothing reimbursements. Meal allowance: an employee must be supplied with an adequate meal where an employer has their own cooking and dining facilities or be paid meal money in addition to any overtime worked. Clause 19.1 of the Award sets out the requirements. From 1 July 2010 to 30 June 2011, the initial allowance is $12.90 and the further allowance is $ From 1 July 2011 the initial allowance is $13.27 and the further allowance is $ Uniform Allowance: where a specified uniform is to be worn, the employer must pay an allowance of $3.65 per week, unless it is supplied and laundered by the employer Award clause See Award Schedule C and Award clause See Award Schedule D and Award clause Award clause 19.2 Legal Services Award 2010 An introductory guide version 2.0 page 13

18 Vehicle Allowance: where an employee is required to use their own vehicle in performance of their duties, an allowance of $0.25 per kilometre for a motorcycle and $0.74 per kilometre for a motor car is to be provided. 48 Where it is a condition of employment that an employee must provide a motor vehicle for work purposes the employer must pay for registration, running and maintenance of such motor vehicle. 49 Transport Overtime: where an employee is required to work overtime and when a reasonable means of transport is not reasonably available to the employee s home at the conclusion of the overtime, the employer must provide or reimburse the employee for the cost of transport to their home. 50 Living Away from Home: when an employee is living away from home for work purposes an employer must pay for or reimburse an employee for: all fares to and from the place at which the employer requires the employee to work; or reasonable expenses incurred for board and lodging expenses incurred. 51 Protective clothing reimbursements: unless an employer provides uniforms or protective clothing they will be required to reimburse employees engaging in work damaging to clothing the cost of uniforms or protective clothing 52. p. Accident Pay If an employee was entitled to accident pay under a notional agreement preserving a State award immediately prior to 1 January 2010, or under a Division 2B State Award prior to 1 January 2011; the employee is entitled to receive accident pay equal to their former entitlement. 53 This benefit ceases to operate on 31 December q. Payment of Wages Wages must be paid fortnightly, unless otherwise agreed, by cash, cheque, or electronic funds transfer into the employee s nominated account. r. Superannuation The Award includes clauses which supplement existing superannuation legislation. Unless an employee has chosen a superannuation fund for the employer to make contributions to, an employer must make contributions to: 54 a. Legalsuper; b. AustralianSuper c. Tasplan; d. CareSuper; e. Statewide Superannuation Trust; f. Asset Super; or g. any superannuation fund to which the employer was making superannuation contributions for the benefit of its employees before 12 September 2008, provided the superannuation fund or its successor is an eligible choice fund. An employer must make payments to a superannuation fund for an employee sufficient for the employer to avoid paying the superannuation guarantee charge under existing superannuation legislation Award clause 19.3(a) 49 Award clause 19.3(b) 50 Award clause Award clause 19.5(a) and (b) 52 Award clause Award clause Award clauses 23.1(a) and Award clause 23.2 Legal Services Award 2010 An introductory guide version 2.0 page 14

19 An employee may, in writing, authorise their employer to pay on their behalf an amount of their post-taxation wages into their superannuation fund. 56 An employee may adjust the amount they have authorised the employer to pay into superannuation on their behalf from the first of the month following the giving of three months written notice to their employer. 57 An employer must pay to the superannuation fund no later than 28 days after the end of the month in which the deduction was authorised the monies to be paid on behalf of the employee from their wages. 58 s. Ordinary hours of work and rostering This Introductory Guide will only address working arrangements for day workers. Members should consult the Award itself to determine requirements for shift workers. Weekly hours of work: 59 an average of 38 hours per week; not to exceed 153 hours in 28 days; worked between Monday and Friday; to be worked continuously between 7am to 6:30pm; spread of hours may be altered by up to one hour at either end of the spread by agreement between parties; and Any work performed outside the spread of hours is to be paid for at overtime. 60 Rostered days off: arrangements for rostered days off may be reached between an employee and an employer. Arrangements will include how time is to be accrued toward a rostered day off, how rostered days off will be accumulated and taken. 61 Subject to the fixing of hours within the spread of hours above, the arrangement of ordinary working hours is to be by agreement between the employer and employees. 62 The Award also deals with daylight savings time. 63 With the consent of an employer an employee make elect to take time off during ordinary hours and work make up time at some later stage during the spread of ordinary hours provided above. 64 Rosters may be set for a fortnightly period and may alter the times in which an employee works their ordinary hours. An employer must give employees 14 days notice of each fortnightly roster, however to meet specific operational requirements an employer may change a roster after. 65 Consulting with employees concerned; and Giving the employees affected as much notice as possible. 56 Award clause 23.3(a) 57 Award clause 23.3(b) 58 Award clause 23.3(c) 59 Award Clause 24.1(a) to (d) 60 Award Clause 24.1(d) except where any work performed by an employee prior to the spread of hours which is continuous with ordinary hours for the purpose, for example, of getting the workplace in a state of readiness for other employees to start work is to be regarded as part of the 38 ordinary hours of work 61 Award clause 24.1(e) 62 Award clause Award clause Award clause Award clause 32 Legal Services Award 2010 An introductory guide version 2.0 page 15

20 t. Breaks Meal Breaks Each employee must be provided with a meal break of not less then 30 minutes and not more than 60 minutes within the first five hours of commencing work on any day and within five hours of resuming work after a previous meal break 66 during their ordinary working hours. If an employee is directed to work more than five hours without a meal break then: 67 their meal break must be paid at the rate of time and a half; and a meal break must be taken as soon as is possible after the required time for the meal break. Rest Breaks All employees are to be allowed two rest breaks, counted as worked time, in a day for: 68 ten minutes between commencing work and the meal break; and ten minutes between the meal break and ceasing work. An employee working more than four hours on a Saturday before 12 noon must be allowed a ten minute break between commencing and ceasing work. u. Overtime and Penalty Rates Payment for working overtime For all hours worked outside the ordinary hours on any day in excess of an average of 38 hours per week overtime will be paid at the rate of: 69 time and a half for the first three hours; and double time after three hours. The relevant hourly rate is to be calculated by dividing the appropriate weekly rate by 38 (even if the employee works more than 38 hours in a week). 70 Overtime hours worked must be rounded up to the nearest half hour. 71 Payment for working Saturdays and Sundays An employee required to work overtime on a Saturday after 12 noon and on Sunday must be paid: 72 double time; and a minimum payment of three hours. Payment for working public holidays An employee required to work overtime on a public holiday must be paid: 73 double time and a half; and a minimum payment of three hours. 66 Award clause 33.1(a) 67 Award clause 33.1(b) 68 Award clause 33.2(a) and (c) 69 Award clause 34.1(a) 70 Award clause 34.1(c) 71 Award clause 34.1(c) 72 Award clause Award clause 34.3 Legal Services Award 2010 An introductory guide version 2.0 page 16

21 Rest Break during overtime An employee working overtime must be allowed a rest break of 20 minutes without deduction of pay after each fours of overtime worked 74. But if the overtime is worked on a Saturday, Sunday, public holiday or rostered day off the first rest break is only paid at the employee s ordinary rate of pay. 75 The employee is entitled to a 20 minute rest break before starting overtime, to be paid at their ordinary rate of pay, if the overtime is: 76 to commence straight after an ordinary work day; and is to be more than one and a half hours. An employer and employee may agree to vary any of the requirements for overtime rest breaks but this will not affect payments required to be made to an employee. 77 Time off instead of payment for overtime An employee may elect, with consent of employer, to take time off at instead of payment for overtime, within 12 months. The time off is to be agreed with the employer and is to be taken during ordinary working hours at a rate of one hour leave for each overtime hour worked. 78. If time off is not taken for any reason within 12 months, or is outstanding at termination, then it is to be paid as time accrued at overtime rates. 79 An employer must keep accurate records of time accrued as time off instead of payment for overtime. 80 Rest period after overtime Where overtime work is necessary, wherever reasonably practicable, it must be arranged so that an employee has at least 10 consecutive hours off duty between successive work days. 81 If an employee works so much overtime that there is less than 10 hours between finishing their overtime and the commencement of their next ordinary working day, an employer must release the employee from work without loss of pay until they have had 10 consecutive hours off duty. 82 If, on instruction of employer, an employee resumes work without 10 consecutive hours off duty they are to be paid double time until they are released from duty for 10 consecutive hours. 83 If an employee s 10 consecutive hours off duty falls within ordinary working hours it must be without loss of pay. An employer and employee may agree to reduce the 10 hour rest period to not less than 8 hours. 84 Rest breaks do not apply to overtime worked as a call-back if the actual time worked is less than three hours on the call-back or on each call-back Award clause 34.4(a) 75 Award clause 34.4(b) 76 Award clause 34.4(c) 77 Award clause 34.4(d) 78 Award clause 34.5 (a) and (b) 79 Award clause 34.5(c) 80 Award clause 34.5(d) 81 Award clause 34.6(a) 82 Award clause 34.6(b) 83 Award clause 34.6(c) 84 Award clause 34.6(d) 85 Award clause 34.7(f) Legal Services Award 2010 An introductory guide version 2.0 page 17

22 Call-back An employee recalled to work overtime after leaving their place of work is to be paid for a minimum four hours work at: 86 time and a half for the first three hours; and double time thereafter. Where an employee is required to regularly be ready for a call-back they are to be paid a minimum of three hours work at the appropriate overtime rate, subject to the provisions about standing by below. 87 If an employee is recalled for overtime more than once between their ordinary working days they are entitled to the relevant minimum overtime payment for each call-back. However, the rate of overtime to be paid for each call-back is determined by the amount of time actually worked in all preceding call-backs. 88 If the job an employee was called-back to perform is completed in less time than the minimum number of call-back hours an employee will not be expected to continue work, unless exceptional circumstances intervene. 89 The call-back obligations do not apply where: 90 in cases where it is customary for an employee to return to the employer s enterprise to perform a specific job outside the employee s ordinary working hours; or where the overtime is continuous with the with the commencement or completion of ordinary working time. Standing By Unless it is customary at the place of work, where an employee is required regularly to be ready to work after ordinary hours, the employee is to be paid standing by time at the employee s ordinary rate of pay for the time they are standing by. 91 v. Annual Leave Entitlements to annual leave are provided for in the NES. Annual leave loading An employee taking annual leave is entitled to receive an annual leave loading calculated at 17.5% of the relevant minimum wage for their classification. 92 Paid leave in advance of accrued entitlement An employer may grant an employee leave in advance of the employee accruing their leave entitlement. 93 If an employee who has taken leave in advance of accruing their entitlement resigns or is discharged from their employment, an employer is entitled to deduct the amount of leave in advance still owing from any remuneration payable to the employee upon termination of employment Award clause 34.7(a) 87 Award clause 34.7(b) 88 Award clause 34.7(c) 89 Award clause 34.7(d) 90 Award clause 34.7(e) 91 Award clause Award clause Award clause 35.4(a) 94 Award clause 35.4(b) Legal Services Award 2010 An introductory guide version 2.0 page 18

23 Payment for period of leave Prior to commencing a period of annual leave an employee must be paid a sum equal to the wages the employee would ordinarily have been paid had the employee not been on leave. 95 w. Personal/carer s leave and compassionate leave Entitlements to personal/carer s leave and compassionate leave are provided for in the NES. x. Community Service Leave Entitlements to community service leave are provided for in the NES. y. Public holidays Entitlements to public holidays are provided for in the NES. z. Special conditions of employment for law graduates The Award provides for a special condition of employment for law students but uses the defined term law graduates in the clause heading. It is unclear exactly what class of employees are referred to in this clause, but out of an abundance of caution members may care to treat law students and law graduates as the same class of employees who are entitled to leave of absence with pay: A. for study and attendance at examinations, not exceeding four days in respect of each subject for which they present themselves for examination which is necessary to enable the employee to qualify for admission; and B. to attend lectures and organised classes at a university or other course of instruction which is required to enable the employee to qualify for admission Award clause Award clause 39 Legal Services Award 2010 An introductory guide version 2.0 page 19

24 5. When do I have to comply The Legal Services Award commences on 1 January 2010, as do obligations under the National Employment Standards. However, some employees of employers who were not constitutional corporations continued to be covered by a Division 2B State Award until the first full pay period commencing on or after 1 February 2011 when they transitioned directly onto the Legal Services Award. The Award clearly states that the monetary obligations under the Award may be met by overaward payments and that there is no obligation on an employer to maintain or increase any overaward payment. It is not the intention of the Award, or any of the transitional arrangements, to reduce an employees level of take-home pay. 97 The Award sets out a number of transitional provisions for minimum obligations where an employee who is covered by a transitional minimum wage instrument or by an award-based transitional instrument is moving to coverage by the Award, of if there is no equivalent provision in either the old award or instrument and the Award. These particular transitional provisions relate to: minimum wages; and loading and penalty rates. a. Minimum Wages From the first full pay period commencing on or after 1 February 2011 employees covered by a Division 2B State Award transitioned to the minimum wage obligations contained in the Award. 98 From that first full pay period in February employees on Division 2B State Award must be paid at least the minimum wage that currently applies for employees that were covered by the Award from 1 January Award clause 2.2 and Award Schedule A, clause A8, inserted 1 January Award Schedule A, clause A8.3, inserted 1 January 2011 Legal Services Award 2010 An introductory guide version 2.0 page 20

25 If an employer was obliged to pay a minimum wage to an employee of a particular classification prior to the Award covering them that was lower than the minimum set by the Award for that classification then the employer must increase wages according to the following table: 100 Existing Minimum Wage is Lower moving to Higher Minimum Wage From 1 January 2010 From first full pay period on or after 1 July 2010 From first full pay period on or after 1 July 2011 From first full pay period on or after 1 July 2012 From first full pay period on or after 1 July 2013 From first full pay period on or after 1 July 2014 Must pay prior minimum wage Must pay prior minimum wage and 20% of the difference between prior minimum and Award minimum Division 2B State Award employees commence at this level from the first full pay period in February 2011 Must pay prior minimum wage and 40% of the difference between prior minimum and Award minimum Former Division 2B State Award employees go to this level with all other employees in July 2011 Must pay prior minimum wage and 60% of the difference between prior minimum and Award minimum Must pay prior minimum wage and 80% of the difference between prior minimum and Award minimum Must pay minimum wage set in Award Regardless of the above an employer is obliged to apply any increases in Award minimum wages. 101 The Award provides that if an employer was obliged to pay a minimum wage to an employee of a particular classification prior to the Award commencing that was higher than the minimum set by the Award for that classification then a reduction can be made. 102 However the Fair Work Australia website notes very clearly that: What happens if the new pay rate is lower? If the adult wage rate under the modern award is lower than the pre-modern award wage rate the reduction will be progressively phased in over 5 annual instalments. The decreases will be phased in annually from the first full pay period on or after 1 July 2010 in 20 per cent instalments. Any increases from future annual wage decisions will also need to be applied from the first full pay period on or after 1 July each year. Won t this mean take-home pay will be reduced? Modern awards and related transitional provisions are in no way intended to result in less take-home pay. If the modern award contains lower wages and/or penalty rates, employers should be careful that their employee s overall take-home pay is not reduced. However, should this occur, Fair Work Australia may make any order (a take-home pay order) requiring, or relating to, the payment of an amount or amounts to the employee or employees it considers appropriate to remedy the situation upon application by an employee or their representative Award Schedule A, clauses A2.3 to A2.5 and A2.7 and clause A8.3 and A8.4 with regard to Division 2B State Award employees 101 Award Schedule A, clause A Award Schedule A, clauses A3.3 to A3.5 and A See Modern-awards-transitional-arrangements.aspx?role=employers#what happens if the new pay rate is lower? Legal Services Award 2010 An introductory guide version 2.0 page 21

26 Note: there is no obligation in the Award to decrease wages paid to staff and it may be best to do so only with advice from Fair Work Australia or an industrial relations expert. Regardless of the above an employer is obliged to apply any increases in Award minimum wages. 104 b. Loadings and Penalty Rates For the purposes of the following tables, penalties and loadings includes: 105 casual or part-time loadings; Saturday, Sunday, public holiday, evening or other penalties; and shift allowances/penalties. From the first full pay period commencing on or after 1 February 2011 employees covered by a Division 2B State Award transitioned to the loading and penalty rate obligations contained in the Award. 106 From that first full pay period in February employees on Division 2B State Award must be paid at least the loadings and penalty rates that currently apply for employees that were covered by the Award from 1 January If an employer was obliged to pay loadings and penalties to an employee prior to the Award covering them that were lower than the equivalent minimum set by the Award then the employer must increase the loadings and penalties they pay according to the following table: 108 Existing Loadings and Penalty Rates are Lower From 1 January 2010 From first full pay period on or after 1 July 2010 From first full pay period on or after 1 July 2011 From first full pay period on or after 1 July 2012 From first full pay period on or after 1 July 2013 From first full pay period on or after 1 July 2014 Must pay prior minimum loadings and penalties Must pay prior minimum loadings and penalties and 20% of the difference between prior minimums and Award minimums Division 2B State Award employees commence at this level from the first full pay period in February 2011 Must pay prior minimum loadings and penalties and 40% of the difference between prior minimums and Award minimums Former Division 2B State Award employees go to this level with all other employees in July 2011 Must pay prior minimum loadings and penalties and 60% of the difference between prior minimums and Award minimums Must pay prior minimum loadings and penalties and 80% of the difference between prior minimums and Award minimums Must pay minimum loadings and penalties set in Award 104 Award Schedule A, clause A Award Schedule A, clause A4 106 Award Schedule A, clause A8, inserted 1 January Award Schedule A, clause A8.3, inserted 1 January Award Schedule A, clauses A5.2 to A5.5 Legal Services Award 2010 An introductory guide version 2.0 page 22

27 If an employer was obliged to pay loadings and penalties to an employee prior to the Award covering them that were higher than the equivalent minimum set by the Award, or if there is no equivalent loading or penalty in the Award, then the employer may decrease loadings and penalties paid according to the following table: 109 NB: Fair Work Australia has clearly advised employers on their website not to decrease employees take home pay as a consequence of the implementation of the new industrial relations system. Existing Loadings and Penalty Rates are Higher From 1 January 2010 From first full pay period on or after 1 July 2010 From first full pay period on or after 1 July 2011 From first full pay period on or after 1 July 2012 From first full pay period on or after 1 July 2013 From first full pay period on or after 1 July 2014 Must pay prior minimum loadings and penalties May pay prior minimum loadings and penalties decreased by 20% of the difference between prior minimums and Award minimums May pay prior minimum loadings and penalties decreased by 40% of the difference between prior minimums and Award minimums May pay prior minimum loadings and penalties decreased by 60% of the difference between prior minimums and Award minimums May pay prior minimum loadings and penalties decreased by 80% of the difference between prior minimums and Award minimums May pay minimum loadings and penalties set in Award On reducing penalties and loadings to staff Fair Work Australia have stated on their website: Won t this mean take-home pay will be reduced? Modern awards and related transitional provisions are in no way intended to result in less take-home pay. If the modern award contains lower wages and/or penalty rates, employers should be careful that their employee s overall take-home pay is not reduced. However, should this occur, Fair Work Australia may make any order (a take-home pay order) requiring, or relating to, the payment of an amount or amounts to the employee or employees it considers appropriate to remedy the situation upon application by an employee or their representative. Note: there is no obligation in the Award to decrease loadings and penalty rates paid to staff and it may be best to do so only with advice from Fair Work Australia or an industrial relations expert. If an employer was not obliged to pay loadings and penalties to an employee prior to the Award covering them then an employer may pay loadings and penalties according to the following table Award Schedule A, clauses A6.2 to A Award Schedule A, clauses A7.1 to A7.4 Legal Services Award 2010 An introductory guide version 2.0 page 23

28 No Existing Loadings and Penalty Rates From 1 January 2010 From first full pay period on or after 1 July 2010 From first full pay period on or after 1 July 2011 From first full pay period on or after 1 July 2012 From first full pay period on or after 1 July 2013 From first full pay period on or after 1 July 2014 No obligation to pay loadings and penalties Must pay loadings and penalties of 20% of Award minimum rates Must pay loadings and penalties of 40% of Award minimum rates Must pay loadings and penalties of 60% of Award minimum rates Must pay loadings and penalties of 80% of Award minimum rates Award minimum loading and penalty rates must be paid c. Redundancy Pay If an employee would have been entitled to redundancy pay under a notional agreement preserving a State Award immediately prior to 1 January 2010 which exceeds the requirements under the NES, the employee is to be paid redundancy pay equivalent to their greatest entitlement. 111 This requirement continues until 31 December If an employee would have been entitled to redundancy pay under a Division 2B State Award immediately prior to 1 January 2011 which exceeds the requirements under the NES, the employee is to be paid redundancy pay equivalent to their greatest entitlement. 112 This requirement continues until 31 December Award transitional clause Award transitional clause 12.6 inserted on 1 January 2011 Legal Services Award 2010 An introductory guide version 2.0 page 24

29 6. A Practice Management Perspective Below is a simple ten step guide to assist your practice in responding to the introduction of the new Legal Services Award (LSA). Step 1: Step 2: Step 3: Are you, as an employer, covered by the LSA? Confirm which of your employees are covered by the LSA, and from when. Compare activities of staff to the classifications in the LSA to confirm how any affected employees are categorized Legal clerical and administrative employee Law graduate Law clerk. Step 4: Step 5: Step 6: Step 7: Advise all affected employees (in writing) which category they fall in Ensure all relevant managers and supervisors are aware of the requirements of the Award and rights and obligations of employees. Develop, review, amend and re-negotiate as required, all job descriptions to ensure consistency with the LSA. Review and amend any existing practice policies to ensure compliance and consistency with the LSA. Termination of Employment Redundancy Wages and pay policies Allowances Accident Pay Superannuation Ordinary hours of work Breaks Overtime & penalty rates Annual leave Personal/carer s leave and compassionate leave Community service leave Pubic holidays Special conditions Practices should also consider whether they need to develop or retain such policies or whether it is preferable to refer to and apply the terms in the Fair Work Act Step 8: Review or develop additional policies or arrangements to assist the practice in better meeting employee demands or requests under the new LSA Flexible working arrangements Pro-bono/community arrangements. Step 9: Step 10: Review, amend and re-negotiate as required, all employment contracts and agreements to ensure compliance with the LSA (see above table). Review, amend and re-negotiate as required pay scales or individual pay arrangements. Ensure that a copy of the LSA and the National Employment Standards are available on notice boards or electronically. Legal Services Award 2010 An introductory guide version 2.0 page 25

30 Appendix A National Employment Standards The National Employment Standards (NES) set out in this Schedule act as a set of minimum requirements for all employment relationships under the new Federal system. The obligations under the NES commence on 1 January This Schedule is intended to provide a brief outline of the scope of the NES and is not intended to be definitive nor exhaustive. Members are advised to consult relevant legislation themselves, or contact the FairWork Ombudsman ( or call ) to assess how the NES will affect their individual circumstances. The NES contains ten basic matters, the effect of which can not be displaced by agreement or by operation of a Modern Award. a. Maximum Hours of Work The number of ordinary hours a full-time employee can work per week is 38 hours. This is subject to the proviso that an employer can require an employee to work reasonable additional hours. The employee can refuse to work additional hours if they are unreasonable, having regard to a number of factors, including: Any risk to the employee s health and safety; The employee s personal circumstances, including family responsibilities; The workplace s operational needs; The amount of notice given to the employee that the additional hours are required or requested; Any notice given by the employee that they intend to refuse to work the additional hours; Whether the additional hours are on a public holiday; The employee s hours of work over the previous 4 weeks, ending immediately before the employee is required or asked to work the additional hours. Part-time or casual employees will have a cap on their ordinary hours worked per week based on their agreed hours or usual hours. Employees covered by a modern award or enterprise agreement will have terms included that allow for the averaging of hours over a specified period. Employees not covered by an award or an agreement may agree in writing with their employers to average their weekly hours over a period of 6 months or less. Any hours worked in a week above 38 (for full-time employees) or above the ordinary hours of work (for non full-time employees) will be treated as additional hours. For the treatment of additional hours see the sections of the Legal Services Award Guide which deal with Overtime and Penalty Rates. b. Annual Leave Employees (other than casual employees) are entitled to 4 weeks paid annual leave per year. This period is relative to the normal hours the employee has worked. Annual leave is cumulative and accrues from year to year. Annual leave must be paid at the basic periodic rate of pay, at the time the employee takes leave. Legal Services Award 2010 An introductory guide version 2.0 page 26

31 An employee can take annual leave: When the employer and employee have agreed when the employee wants to take the leave and how much they want to take (the employer may not unreasonably refuse a request to take annual leave); and The employee has accumulated the amount of leave time they want to take, or the employer agrees to the amount of leave time before its accumulated (taking leave in advance). A Modern Award may set out reasonable circumstances when an employee may be required to take annual leave, however the Legal Services Award does not presently include any such provisions. In deciding whether to authorise annual leave, an employer may take into account the operational requirements of the workplace, however an employer must not unreasonably refuse to authorise annual leave being taken or retract an authorisation. Employees not covered by an Award or enterprise agreement may request to cash out a portion of their annual leave accrued in excess of four weeks. Employees covered by an Award can only cash out their leave in accordance with the mechanisms provided in the Award, however the Legal Services Award does not include any such provisions. Accordingly cashing out leave is not available to Legal Services Award employees. c. Personal/Carer s Leave and Compassionate Leave An employee, other than a casual employee, is entitled to accrue paid personal/carer s leave at a rate of 10 days per year for full-time employees and on a pro rata basis for part-time employees. Paid personal/carer s leave may be taken: Because an employee is not fit for work because of illness or injury; or To provide care or support to a member of the employee s immediate family or household because of illness, injury or unexpected emergency. Paid personal/carer s leave must be paid at the employee s base rate of pay for ordinary hours of work and may only be cashed out if provided for in an Award or enterprise agreement. The Legal Services Award does not provide for the cashing out of personal/carer s leave. All employees, including casual employees, are entitled to 2 days unpaid carer s leave for each occasion a member of the employee s immediate family or household needs care or support because of illness, injury or unexpected emergency. An employee must use any paid carer s leave entitlements before applying for unpaid carer s leave. All employees, including casual employees, are entitled to 2 days compassionate leave when a member of the employee s immediate family or household contracts an illness or sustains an injury that poses a serious threat to their life or dies. Compassionate leave is to be paid at an employee s base rate of pay for ordinary hours of work, except for casual employees who are provided with unpaid leave. An employee must give notice of any of the leave types mentioned above to their employer as soon as is practicable (which may be after the leave has been taken). An employer may request the employee provide evidence that would satisfy a reasonable person that the leave is taken in one of the circumstances giving rise to that type of leave. A modern award may set out the types of evidence required for the taking of these types of leave, however this is not included in the Legal Services Award. Legal Services Award 2010 An introductory guide version 2.0 page 27

32 d. The Right to Request Flexible Working Arrangements An employee who is a parent, or has responsibility for the care, of a child may request the employer for a change in working arrangements to assist the employee to care for the child if the child is under school age or is under 18 and has a disability. For such a request to be made, the employee must have completed at least 12 months of continuous service with the employer, or for casual employees, they must have been a long-term employee and can be reasonably expected to continue employment with the employer on a regular and systematic basis. The request for flexible working arrangements must be made in writing and set out the details of the change sought and the reasons for the change, to which the employer must respond within 21 days. An employer may only refuse the request on reasonable business grounds and must provide the employee with written reasons for doing so. e. Parental Leave and Related Entitlements The NES provides for birth and adoption related parental leave entitlements for all non-casual employees who ve worked at least 12 continuous months with their current employer, or long term casual employees with an expectation of continuing employment. However all employees are entitled to the specific unpaid pre-adoption leave. Types of parental leave include: 12 months of unpaid parental leave associated with the birth of a child to the employee or their spouse, or the placement of an adopted child with the employee, but only if the employee has responsibility for the care of the child; Unpaid special maternity leave for a female employee who is unfit for work due to a pregnancy-related illness for any necessary duration (which is deduced from any period of unpaid parental leave); Unpaid pre-adoption leave of up to 2 days to attend interviews or examinations required as a part of the adoption process, unless an employee has some other form of leave which could be taken. Employees are able to utilise other paid leave to extend their period of parental leave (eg. annual leave, long service leave, but not personal/carer s leave or community service leave). However, this leave does not extend the employee s total period of leave beyond the original 12 months There are special provisions for members of couples who wish to take concurrent unpaid parental leave. All applications for parental leave must be made in writing a minimum of 10 weeks prior to starting the leave, unless that is not practicable and then an employee must give notice as soon as is practicable. An employee must confirm their start date for parental leave or advise of any alterations, if practicable, four weeks before the intended commencement date. Notice of taking unpaid special maternity leave or unpaid pre-adoption leave and the expected duration of the leave must be given as soon as is practicable to an employer by an employee. If required to do so by an employer an employee taking parental leave, unpaid special maternity leave or unpaid pre-adoption leave must provide supporting evidence of the need to take such leave that would satisfy a reasonable person, such as medical certificates of expected dates of birth, statements from the adoption agency statutory declarations, etc. Legal Services Award 2010 An introductory guide version 2.0 page 28

33 An employee may request a further 12 month extension to unpaid parental leave by written notice up to 4 weeks before the end of the initial parental leave period. An employer must respond to the request in writing within 21 days and may only refuse on reasonable business grounds, stating reasons. If during the course of parental leave an employee ceases to have responsibility for the care of the child, an employer may give the employee a notice requiring them to return to work on day which is: At least four weeks from the date of the notice; or If the employee has given birth to a child and the parental leave relates to that child at least six weeks from the date of the notice. On ending unpaid parental leave, an employee is entitled to return to: The employee s pre-parental leave position; or If that position no longer exists an available position for which the employee is qualified and suited nearest in status and pay to the pre-parental leave position. If a pregnant employee, who has already complied with the notice requirements for unpaid parental leave, gives their employer evidence which would satisfy a reasonable person that while she is fit for work there is a risk period due to illness or hazard which makes it inadvisable for her to continue in her current position, then the employer must: Transfer the employee to a safe job on the same terms and conditions of employment for the risk period; or Place the employee on paid no safe job leave for the risk period. f. Community Service Leave An employee engaged certain types of community service activity may be absent from their employment for: The duration of the activity; Any reasonable travel time associated with the activity; and Reasonable rest time immediately following the activity. Eligible community service activities include: Jury service (including attendance for jury selection) that is required by or under a law of the Commonwealth, a State or a Territory; or A voluntary emergency management activity that the employee is requested or is likely to requested to participate in eg. activities associated with an emergency or natural disaster, on voluntary basis or as part of a recognised member or member-like emergency management association. Employees that wish to be absent from their work to perform permitted community service activities must give notice to their employer as soon as practicable (which may be a time after the absence has started) that advises of the period, or expected period of absence. Employees may have to provide evidence to the employer of their engagement in such community service activities. The payment for leave for jury service is made at the employee s base rate of pay for ordinary hours of work in the period, minus any Commonwealth or State jury service payments received, capped at 10 days for each jury service summons. An employer may require an employee to provide evidence that demonstrates the employee has taken all necessary steps to obtain any amount of jury service pay to which they would be entitled and the amount that has been paid or payable to the employee. Legal Services Award 2010 An introductory guide version 2.0 page 29

34 g. Long Service Leave Under the NES long service leave entitlements continue to come from State law such as the Queensland Industrial Relations Act 1999, Part 3, or any previous applicable award or agreement terms providing for long service leave. h. Public Holidays An employee is entitled to be absent from their employment and be paid their base rate of pay on the following recognised public holidays: 1 January (New Year s Day); 26 January (Australia Day); Good Friday Easter Monday 25 April (Anzac Day); The Queen s birthday holiday (on the day on which it is celebrated in a State or Territory or a region of a State or Territory); 25 December (Christmas Day); 26 December (Boxing Day); Other public holidays may also be declared under the laws of a State or Territory for the purpose of the current National Employment Standards. An employer may request an employee to work on a public holiday if such a request is reasonable. Conversely, an employee may refuse to work on a public holiday if such refusal is reasonable. Factors that are relevant in determining whether a request, or a refusal of a request, to work on a public holiday is reasonable, are: The nature of the employer s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee; The employee s personal circumstances, including family responsibilities; Whether the employee could reasonably expect that the employer might request work on the public holiday; Whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday; The type of employment of the employee (for example, whether full-time, part-time, casual or shift work); The amount of notice in advance of the public holiday given by the employer when making the request; In relation to the refusal of a request the amount of notice in advance of the public holiday given by the employee when refusing the request; Any other relevant matter. Legal Services Award 2010 An introductory guide version 2.0 page 30

35 i. Notice of Termination and Redundancy Pay For an employee s employment to be terminated, an employer is required to give the employee written notice of the day of their termination (which cannot be before the day the notice is given). The amount of notice required (or payment in lieu of termination) varies in accordance with the years of service the employee has had with the employer. The minimum period between giving the notice and the day of the termination is as follows: Employee s period of continuous service with the employer at the end of the day the notice is given Not more than 1 year More than 1 year but not more than 3 years More than 3 years but not more than 5 years More than 5 years Period 1 week 2 weeks 3 weeks 4 weeks An employee who is more than 45 years old and who has completed 2 years continuous service is entitled to an additional week s notice. The Legal Services Award includes additional notice requirements for employees terminating their employment. The employer is required to pay the employee the amount that would have been paid to the employee had the employee completed their ordinary hours of work until the end of the minimum period of notice. An employee is entitled to be paid redundancy pay by the employer if the employee s employment is terminated because: The employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or Of the insolvency or bankruptcy of the employer. The amount of redundancy pay is calculated relative to the employee s period of continuous service with the employer upon termination at the employee s base rate of pay for his or her ordinary hours of work. The minimums are as follows: Employee s period of continuous service with the employer on termination At least 1 year but less than 2 years At least 2 years but less than 3 years At least 3 years but less than 4 years At least 4 years but less than 5 years At least 5 years but less than 6 years At least 6 years but less than 7 years At least 7 years but less than 8 years At least 8 years but less than 9 years At least 9 years but less than 10 years At least 10 years Redundancy Pay Period 4 week 6 weeks 7 weeks 8 weeks 10 weeks 11 weeks 13 weeks 14 weeks 16 weeks 12 weeks Legal Services Award 2010 An introductory guide version 2.0 page 31

36 Fair Work Australia may vary the amount of redundancy pay to be paid in certain circumstances. The employee is not entitled to redundancy pay if the employee s period of continuous service with the employer is less than 12 months, or the employee s employer is a small business employer (less than 15 employees). An important issue when determining redundancy obligations and calculating redundancy pay is whether the service of the employee prior to 1 January 2010 should be counted as a period of continuous service. See Section 5(4) of Schedule 4 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cwth) for provisions about when service is to be counted) NB: both the previous State and Federal Clerical Awards included redundancy pay provisions. NB: Certain employee types are excluded from the operation of the termination notice and redundancy pay provisions. Members considering terminating the employment of any of their employees are advised to exercise skill and care and to seek independent advice about their procedural obligations. j. Provision of Fair Work Information Statement An employer must give each employee the Fair Work Information Statement before or as soon as practicable after, the employee starts employment. Employers are not required to provide the Fair Work Information Statement to current employees. The Statement is prepared by Fair Work Australia and will be published in the Gazette. The Statement includes: The National Employment Standards; Modern awards; Agreement-making under this Act; The right to freedom of association; The role of Fair Work Australia and the Fair Work Ombudsman; Termination of employment; Individual flexibility arrangements; Right of entry (including the protection of personal information by privacy laws). Legal Services Award 2010 An introductory guide version 2.0 page 32

37 Further Reading and Assistance Legal Services Award Fair Work Act 2009 (Cwth) IP ?OpenDocument (National Employment Standards: sections 59 to 125) Fair Work Statement: fair-work-information-statement/pages/default.aspx Fair Work (Commonwealth Powers) and Other Provisions Act 2009 (Qld) Fair Work Online Fair Work Ombudsman Phone: Monday Friday 8am 6pm local time Legal Services Award 2010 An introductory guide version 2.0 page 33

38 qls.com.au