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The Legal Services Award 2020 (the award) covers employers engaged in the business of providing legal and legal support services, and accordingly covers most private legal practices.
That does not mean that all employees are subject to the award’s requirements. It is necessary to consider the employee classifications falling under the award, which are set out in Schedule A, and it is important that employers are familiar with the detail of these classifications.
There are five levels of ‘Legal clerical and administrative employee’ as well as classifications for ‘Law graduate’ and ‘Law clerk’.
Admitted solicitors are not covered by the award. Employees performing duties which fall outside the scope of the listed classification descriptions are not covered by the award, for example, information technology employees, accountants (as opposed to bookkeepers) and senior managerial staff.
Each classification level for legal clerical and administrative employees sets out the characteristics, generic skills and core skills of jobs at that level, starting from an introductory level and progressing through levels requiring increasing skills and experience.
The characteristics section of each level covers things such as the required level of supervision, competency and indicative training. A statement of generic duties and skills is provided for each level covering problem-solving, literacy and numeracy skills.
The statement of core skills starts with skills in information handling, communication, enterprise/industry, technology, organisation, team and business/financial and progresses to more complex skills at each level. Skills in the legal area are included in the upper levels including, for example, a working knowledge of relevant legal systems and skills in routine legal procedures and documentation
There are also classifications for the jobs of ‘Law graduate’ and ‘Law clerk’. The definitions clause (clause 2) of the award defines a law graduate as an employee who has completed a legal qualification and is undertaking a period of training in a law firm in satisfaction of the requirements prescribed for admission to practice. This does not include lawyers admitted to practice in a foreign jurisdiction. The law graduate classification requires completion of a relevant degree, a formal offer by the employer and registration and approval of documentation required by relevant governing bodies.
The definitions clause (clause 2) of the award defines a law clerk as a clerk who spends most of their time interviewing clients, preparing documents and general work assisting a barrister or solicitor in their office. The term does not include account clerks, law graduates, titles office clerks, receptionists and employees principally engaged in clerical or routine dutie
The law clerk classification requires an indicative education level of associate diploma at TAFE or tertiary level (or equivalent) with the ability to display a practical understanding and application of the structures, methods and procedures of the relevant legal system. Work occurs under limited guidance involving the use of significant judgment related to products, services, operations or processes of the firm.
The definitions clause (clause 2) of the award also contains a definition of ‘work experience clerk’ as a person who is employed for no more than two months in a consecutive 12-month period for the purpose of gaining experience. The term does not include law students or persons performing a formal work experience program. It is not reflected in any award classification, nor is the term used anywhere else in the award. The implication is that someone who is employed for more than two months in a consecutive 12-month period may be subject to award classifications.
It is necessary to compare the requirements of a job position description with the award classification levels to determine which level best suits the actual job being performed. A Level 1 legal clerical and administrative employee role is, for example, an entry-level role usually working under a degree of direct supervision and comprising basic clerical and administrative tasks, including some financial tasks.
Each succeeding level includes the skills of previous levels but with escalating expertise and independence. So, legal, clerical and administrative employees at the highest level (Level 5) work under broad guidance with self directed application of knowledge and skills used independently. The law clerk classification does not require specific clerical and administrative competencies and sits above the highest legal, clerical and administrative classification.
Assessment of the appropriate award classification does not involve application of a precise formula but rather a practical judgment of the level that best fits the particular skills required for the job in question.
It is always wise to err on the side of caution in this assessment because each classification level is associated with a minimum pay rate under the award. Ongoing assessment is also necessary as an employee moves through each applicable level as their skills and responsibilities increase.
Rob Stevenson is the Principal of Australian Workplace Lawyers and a QLS Senior Counsellor. Email rob.stevenson@workplace-lawyers.com.au.
This story was originally published in Proctor May 2020.
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