Law graduates and paralegal working conditions – a summary of your rights under the Legal Services Award 2010

Introduction

Despite receiving a legal education, many law graduates and paralegals do not know what their entitlements at work are. Paralegals and graduates are among the most vulnerable workers in the legal industry. In recent years, with the increased competition for paralegal and graduate positions, employers have had even more opportunity to exploit junior staff. While most law firms ensure they follow award conditions, there are some firms who either choose to ignore their legal obligations or are never brought before the Fair Work Commission because their paralegals or graduates don’t even realise they are being exploited. Labour Law is not currently a compulsory subject at law school. Hopefully this blog post will help fill the gap, so that graduates and paralegals can understand their rights at work.

Am I covered by the Legal Services Award 2010?

If you are a paralegal or a graduate lawyer anywhere in Australia, it is highly likely you are covered by the Legal Services Award 2010 (“Award”) unless you are employed at a community legal centre, aboriginal legal service or are working for an employer where the provision of legal services is not the primary activity (ie working in-house as a paralegal for a bank). You will only be covered by the Legal Services Award 2010 if you fit the strict definitions:

1.       Paralegal

The type of work you do as a paralegal will affect your classification in the award. Whether you are classified as a “legal clerical and administrative employee” or a “law clerk” will affect the minimum amount you are paid under the award. If you predominantly undertake administrative work like filing, typing and photocopying, you are more likely to be classified as a “legal clerical and administrative employee”. If most of your time as a paralegal is spent preparing documents, interviewing clients and generally assisting a barrister or solicitor, you are more likely to be classified as a “law clerk” which is a higher level paid position under the Legal Services Award 2010.

Law Clerk is defined as “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”.

Most paralegal positions law students work in involve both administrative tasks and quasi-legal tasks like preparing court documents. The minimum level of pay you will receive depends on the nature of your position and relevant classification under the award:

Level 1—Legal clerical and administrative employee	$733.00
Level 2—Legal clerical and administrative employee	$764.90
Level 3—Legal clerical and administrative employee	$807.90
Level 4—Legal clerical and administrative employee	$848.30
Level 5—Legal clerical and administrative employee	$882.80
Level 5—Law graduate	$882.80
Level 6—Law clerk	$935.80

This is the weekly minimum amount for an employee engaged on a full time basis. If you are a casual employee you must receive at least at 25% loading. This loading attempts to compensate for leave and other rights you would be entitled to if you were a permanent employee. To calculate your hourly rate as a casual, divide the relevant weekly rate by 38 (the ordinary weekly working hours) and then add 25%. If you are a casual employee you must be engaged by your employer or paid for four hours minimum that day. So if you only work 2 hours, you should still receive four hours of pay.

2.       Graduate lawyer

Graduate lawyer is defined in the Legal Services Award 2010 as “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”. It is therefore possible for some graduates to be covered and other graduates to miss out being covered by the Award. To be classified as a “law graduate” and come under the Legal Services Award 2010 you must:

1.       Not yet be admitted; and

2.       Be undertaking a period of training within a firm with the view to being admitted.

This definition does not cover admitted graduates. Admitted graduates should read the paragraph below. If you fit the definition of “law graduate” in the Legal Services Award 2010, your minimum weekly wage is $882.50.

What if I am admitted or a more experienced lawyer?

Admitted lawyers and more experienced lawyers who are employed in the legal industry are not covered by the Legal Services Award 2010 or any award. While these lawyers are entitled to the National Employment Standards, a set of minimum standards for annual leave, sick leave, and other entitlements, lawyers must otherwise negotiate their own working conditions. The Legal Services Award 2010 does not currently cover lawyers who have progressed past graduate level. The Australian Municipal, Administrative, Clerical and Services Union has made an application to vary the Legal Services Award 2010 to cover employed lawyers and address the issue of unreasonable work hours. Don’t hold your breath for this change to go through. If you happen to be covered by the Legal Services Award 2010, enjoy the benefits while they last.

What rights do I have under the Legal Services Award 2010?

1.       Minimum wage

The Award specifies a minimum weekly wage for full time employees and a casual loading of 25% for casual employees (see above).

2.       Employer must provide you with access to the Award

Clause 5 of the Award states that employers must ensure copies of the Award and National Employment Standards are available to relevant employees either via a conveniently located noticeboard or through electronic means. In my experience, it is rare for an employer in the legal industry to be aware of this obligation to provide their staff with access to the Award. When I began my job as a graduate, though my contract references the relevant award, I was never provided with a copy or shown how to access to award electronically. You have to pick your battles though, and I would forego bringing this up with your employer if you have bigger issues like not getting overtime rates.

3.       Maximum number of hours worked

Worker can work a maximum of 152 ordinary hours in 28 days. A worker can be required to work more than this, but the pay must be at overtime rates.

4.       Overtime rates

If you work outside of the 7am to 6:30pm timeframe, you are to be paid the overtime rates of one and a half times for the first three hours and double time thereafter. When working overtime, employers must “wherever reasonably practicable” give you 10 hours between when you finish and start for the next day. In practice, this rarely happens. If your overtime work concludes when “reasonable means of transport is not reasonably available”, the employer must pay or reimburse the costs of the transportation to get you home. In practice, if you are a law graduate covered by the Award, and you work until 1am, your employer should provide you with a cab charge voucher to get home or reimburse you for the cost of a taxi. Note that overtime conditions can be varied by agreement between you and your employer.

5.       Consultation for roster changes

If the employer proposes to change the regular roster, there is a consultation process required under the Award. This is especially important as a paralegal where you are likely to work to a roster. See clause 8.2 of the Award for further details.

6.       Meal break

You must be provided with a meal break within 5 hours of starting work, lasting 30 minutes to 60 minutes. I don’t think many law firms are aware of the right of paralegals and covered graduate lawyers to a meal break. The Award further states that if you are required to work more than 5 hours without a meal break, you must be paid at time and a half until you do have your meal break. Note there are different meal break provisions for overtime work.

7.       Rest break

If you are covered by the Award you are entitled to two 10 minute breaks during the day.

8.       Leave for study

If you are a law graduate covered by the Award you are entitled to leave with pay for four hours per subject for study and attend exams for your admission to practice course. You are also entitled to leave with pay to attend lectures and classes for your admission to practice course. 

In addition to these rights, you also have the National Employment Standards that specify termination notice, redundancy pay, annual leave, personal leave, and carer s leave.

A note on award flexibility

Some of the conditions in the Award can be altered by agreement between the employer and the employee by written agreement. These conditions include:

1.       Arrangements for when work is performed;

2.       Overtime rates;

3.       Penalty rates;

4.       Allowances; and

5.       Leave loading.

Individual flexibility agreements will only be valid if they pass the “better off overall test”. That is, you as the law graduate or paralegal must be “better off overall” than if you did not enter into the agreement (the test is more nuanced but I am not going to go into it in detail right now). As noted above, only some conditions in the award can be altered. This does not include the minimum weekly pay. While you can negotiate to be paid more than the minimum, you cannot agree to be paid less.

Summary

The first step is to work out of if you are, as a paralegal or law graduate, covered by the Legal Services Award 2010. If you are covered, you are very fortunate, as you have several rights and protections that more experienced lawyers do not have. Your entitlements include meal breaks, overtime rates, and paid leave for study. If you are covered by the Award and are not receiving the working conditions you are permitted to enjoy under the Award, a good first step may be to have a talk with the appropriate Human Resources contact at your law firm. When I was studying my GDLP I was taking unpaid leave for study and to attend class. When I realised I was entitled to paid leave, all it involved was a quick email to HR, and I was reimbursed for that time and received paid leave from that point on. By sharing your knowledge with HR, you are not just benefitting yourself, but other paralegals and law graduates to follow.