Why do lawyers work such long hours? The National Employment Standards and how they fail to protect lawyers from working long hours

One of the common experiences of graduate lawyers working in commercial law firms is long hours. Adjusting to working 12 hour+ days and having to work part or all of the weekend is something many law graduates have to contend with. The legislated working week is a maximum of 38 hours. How is it then that a 60+ working week has become normal for most lawyers working at commercial firms (and other professionals such as those working in the finance industry)? Why do lawyers miss out when it comes to penalty rates and overtime? In this blog post I explain why the National Employment Standards do not protect lawyers from long working weeks and how it is difficult for an employee to bring a case against an employer for working excessively long hours. 

The National Employment Standards (NES)

The National Employment Standards contained in the Fair Work Act 2009 are basic minimum standards that apply to every national system employee (s.60). The maximum weekly hours of work is contained in s.62:

Section 62 - Maximum weekly hours of work

(1)  An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:

                     (a)  for a full-time employee--38 hours; or

                     (b)  for an employee who is not a full-time employee--the lesser of:

                              (i)  38 hours; and

                             (ii)  the employee's ordinary hours of work in a week.

The specification of a 38 hour working week only provides very limited protection, as an employee is also required to work all additional hours that are not unreasonable. Section 62 specifies the criteria that must be taken into account when determining if additional hours are reasonable:

(3)  In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:

(a)  any risk to employee health and safety from working the additional hours;

(b)  the employee's personal circumstances, including family responsibilities;

(c)  the needs of the workplace or enterprise in which the employee is employee;

(d)  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, working additional hours;

(e)  any notice given by the employer of any request or requirement to work the additional hours;

(f)  any notice given by the employee of his or her intention to refuse to work the additional hours;

(g)  the usual patterns of work in the industry, or the part of an industry, in which the employee works;

(h)  the nature of the employee's role, and the employee's level of responsibility;

(i)  whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;

(j)  any other relevant matter.

The criteria to consider in deciding whether additional hours are unreasonable gives the section relatively little “bite”, although the criteria are more employee friendly than the predecessor provision (s.226(4) Workplace Relations Act 1996). For lawyers, subsections 3(c) and 3(g) are of particular note in that employers will argue the needs of the workplace require lawyers to work long hours and that usual hours worked in commercial law are long. The more senior a lawyer is, the more likely it is that additional hours will be reasonable, as the nature of the employee’s role and level of responsibility must be taken into account (s.62(3)(h)). The Explanatory Memorandum to the Fair Work Bill 2009 suggests that the significant remuneration and other benefits paid to senior managers alone may be sufficient to ensure additional hours are reasonable.

What about employment contracts, awards and enterprise agreements?

Paid overtime provisions in awards and enterprise agreements protect some workers from long working hours, as the increased costs for the employer act as a deterrent. Section 147 of the Fair Work Act 2009 requires modern awards to specify what constitutes ordinary hours for each type of employment they cover. Time worked outside ordinary hours is generally required to be paid at overtime rates. 

In award heavy industries like hospitality, nursing and trades, awards generally provide for a standard working week and heavy overtime payments for any hours worked outside standard hours. While some lawyers working in-house or in the public sector may be covered by an award or enterprise agreement that provides for overtime payments, most lawyers working in commercial law firms will not be covered by an award or enterprise agreement.

Law graduates covered by the Legal Services Award 2010 will receive certain protections, such as overtime payments. For example, the current standard hourly rate for a law graduate under the Legal Services Award 2010 is $23.23, but increases to:

·         $34.85 for the first three hours of overtime worked on a week day (time worked before 7am or after 6:30pm);

·         $46.46 for overtime hours worked after 3 hours of overtime on a week day;

·         $34.85 for time worked on Saturday for the first three hours worked before 12 noon;

·         $46.46 for time worked on Saturday after the first three hours of overtime worked before 12 noon;

·         $46.46 for time worked on Saturday after 12 noon; and

·         $46.46 for time worked on Sunday.

These increased rates act as a disincentive for graduates covered by the Legal Services Award 2010 from being required to work on the weekend and outside of ordinary hours during the week. However, law graduates are only covered by the Legal Services Award 2010 for a short time, as law graduates cease to be covered by the award upon being admitted to practice.  

It is possible for hours of work to be agreed to in the employment contract. However, this is rare in the legal sector, and when lawyers sign contracts with their firm, typically there is just an “understanding” over the working hours that will be required (see Walsh v Wayne Motors (1996) 65 IR 76).

Is it possible to win a long working hours case in Australia?

1.       Breach of NES

As discussed above, section 62 of the Fair Work Act 2009 provides a working week of 38 hours plus additional reasonable hours. In Premier Pet Pty Ltd v Brown (No 2) [2013] FCA 167 an employee Mr Brown was successful in bringing an adverse action claim against his employer when Mr Brown was terminated after he exercised his right under s.62 to refuse to work additional hours. Mr Brown was employed on a permanent full time basis by Premier Pet as a fish keeper. Premier Pet introduced mandatory rostering for all staff in the Brisbane fish room for routine maintenance on the weekend and public holidays. This work had previously been done by a few staff members and the intention was to spread the load across all staff. Mr Brown had previously stated he only wanted to work 38 hours a week with occasional overtime. In considering the criteria in s.62(3) to determine whether extra hours are reasonable, the Federal Magistrate at first instance could not make a conclusion about the needs of the employer Premier Pet, as they had not led any evidence on this issue. The Federal Magistrate also focused on the fact Mr Brown had repeatedly made it clear he only wished to work 38 hours with only occasional overtime and that no negotiations had occurred before the overtime was imposed. Further, the employer had not shown that the additional hours “are not unreasonable”. The Federal Court agreed with the analysis at first instance that the additional hours were unreasonable.

Premier Pet shows it is possible for an employee to bring a claim under s.62. However, Mr Brown had been terminated when he made the application and relied on the adverse action provisions of the Fair Work Act 2009. It may be more difficult for employees who remain employed who exercise their right to refuse unreasonable hours under s.62 to bring a claim. The employer had also failed to bring evidence to show the additional hours were not unreasonable. This was a significant oversight on the employer’s part. The case may have gone the other way if the employer had tendered such evidence.  

2.       Breach of contractual or tortious duty of care – by expecting employee to work unreasonably long hours

In Koehler v Cerebos (Aus) Ltd (2005) 222 CLR 44 the High Ccourt rejected a claim for damages for an illness brought on by the stress of an excessive workload. The employee initially worked full time as a sales representative. She then took a part-time position as a sales representative, but was essentially required to do the same amount of work she had in her full time position. The employee became physically and psychologically ill as a result. Given the case was framed in negligence, the High Court had to consider the content of an employer’s duty of care and whether the test for foreseeability in Wyong Shirt Council v Shirt was satisfied. The High Court found the employer had not been negligent, as the employee “agreed to perform the duties which were a cause of her injury” and “the employer had no reason to suspect that the appellant was at risk of psychiatric injury”. Several employment law experts have indicated dissatisfaction with the reasoning of the High Court in Koehler, asserting the reasoning was twisted to prevent a floodgate of negligence claims based on injuries caused from working unreasonably long hours.

3.       Breach occupational health and safety obligations  

Where excessive working hours create a risk to the employee’s work health and safety, it may be possible for an employee to take action under the relevant work health and safety regime in their state. However, breaches of work health and safety obligations do not protect lawyers who are working long hours and not experiencing any work health and safety issues, so is overall a poor protection for employees working long hours.  

Cases concerning long working hours are relatively rare and when they have come before superior courts, the judiciary have been reluctant to create any precedent that could “open the floodgates”. If reform is going to occur in Australia, it will likely be statutory in the form of a strengthened NES. In the meantime, lawyers working at commercial law firms, without the protection of awards or enterprise agreements, are likely to continue to be required to work long hours.