Previous articles in this series have addressed the role of the Legal Services Award 2020 (the award) in the private legal workplace, the types of jobs covered by the award, the types of employment allowed under the award, the hours of work and wages and allowances provisions of the award.
The award also regulates certain leave requirements, requests for flexible working arrangements and individual flexibility arrangements and expands on National Employment Standards (NES) requirements in a number of respects.
In addition to NES requirements, the award provides that:
- During a period of annual leave, payment must be made for ordinary time wages plus a 17.5% loading (clauses 22.3 and 22.5).
- Whilst annual leave is to be taken at an agreed time, an employer may reasonably require an employee to take annual leave as part of a closedown (for instance over the Christmas period) by giving at least four weeks’ notice (clause 22.7).
- A written agreement may be entered into for the taking of annual leave in advance of the actual accrual of the leave. The employer is entitled to deduct an amount for annual leave which is taken but not accrued on termination of employment (clause 22.6).
- If an employee has accrued more than eight weeks’ annual leave, an employer and employee can seek to reach agreement on reducing the annual leave balance. If there is no agreement, either the employer or employee can require the taking of at least one week of annual leave as long as at least eight weeks’ notice is given (clauses 22.8, 22.9, 22.10).
- Annual leave of no more than two weeks in 12 months can be cashed out by written agreement as long as the employee’s annual leave balance does not go below four weeks (clause 22.11).
Graduate study leave
Law graduates are entitled to a maximum of 20 days a year paid study leave to attend courses and prepare for and attend examinations relating to practical legal training required for their admission to practise.
Requests for flexible working arrangements
The NES provide that certain types of employees can request a change in their working arrangements because of their circumstances (for example, if the employee is the parent, or has responsibility for the care, of a child of school age or younger).
Examples of such arrangements include changed starting and finishing times for employees, part-time work and the working of more hours over fewer days. Employers are required to give a written response to a request within 21 days. The employer can only refuse the request on reasonable business grounds.
The award expands on these requirements (clause 6.2). Before responding to the request, the employer must discuss the request with the employee and genuinely try to reach agreement.
If there is no agreement then, as part of any written response, the employer must set out any changes it can offer to better accommodate the employee’s circumstances (clause 6.3). Whilst a decision to refuse a request is not directly challengeable, a dispute can be raised under the award dispute provision (clause 31) about whether the employer has discussed the request and responded to it as required by these provisions.
Care should be exercised in responding to any employee request because legal action may also be available through other means such as discrimination laws.
Individual flexibility arrangements
There is separate provision in the award to allow agreement between an employer and any employee to vary certain award terms in order to meet both of their genuine needs (clause 5). The terms that can be varied relate to arrangements for when work is performed, overtime and penalty rates, allowances and annual leave loading.
An individual flexibility arrangement (IFA) can only be made with an existing employee by agreement and must result in the employee being better off overall under the IFA. The award requires a written agreement detailing the award terms to be varied, how they are to be varied, how the agreement results in the employee being better off overall and a start date. The agreement must be genuinely made without coercion or duress, and can be terminated by either party on giving 13 weeks’ notice.
An example often given is of an employee starting work one day a week before 7am so they can leave early to take their son to football training. The employer benefits by not having to pay a penalty rate for the early start and the employee benefits by being able to attend their child’s training.
Any existing employee can request an individual flexibility arrangement whereas only certain types of employees have a legal right to make a request for flexible working arrangements.
Rob Stevenson is the Principal of Australian Workplace Lawyers and a QLS Senior Counsellor. email@example.com.