Wednesday, 15 April 2020

Law Society President Nicholas van Hattem in Conversation with 
Libby Fulham, Executive Director, Legal Practice Board

Law Society President Nicholas van Hattem caught up with Libby Fulham, the Executive Director of the Legal Practice Board. The Society has been exploring a range of measures to help practitioners face the challenges of the pandemic with the Board, Law Mutual, the Law Council of Australia and the Courts. The Society welcomes the Board’s decision to enable practitioners to defer half the practising renewal fee until later this year. Click the video above to find out more.

Temporary Industrial Relations Changes
in Response to the COVID-19 Pandemic

Members should note the following recent industrial relations changes to provide employers in the WA legal profession with temporary flexibility to respond to the COVID-19 pandemic. This alert is for information only, and is not legal advice. Members who are unsure whether the following changes apply to their legal practice or employment, and the effect of the changes, should seek independent advice.

Legal Services Award 2020 (LSA)

On 8 April, the Fair Work Commission confirmed a provisional decision to vary the LSA (and 98 other modern awards) in response to the COVID-19 pandemic. Broadly speaking, the LSA covers incorporated legal practices in relation to their administrative staff, law clerks and graduate lawyers. Admitted practitioners, and managerial staff of incorporated legal practices are award-free (i.e. not covered by the LSA) and so the changes do not apply to them. Two changes to the LSA were made:

• Unpaid pandemic leave: An employee required to self-isolate by a government authority or a medical practitioner, is entitled to take up to two weeks’ unpaid pandemic leave, and such further period of unpaid leave as is agreed between the employer and employee in writing.
• Annual leave at half pay: An employer and employee may agree in writing that instead of an employee taking paid annual leave at full pay, the employee take twice as much leave at half pay.

The variation, that applies until 30 June, commenced on 8 April. The variation does not, however, take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after the day the variation came into operation.

»Click here for further details in the Commission’s summary of its decision

Industrial Relations Act 1979 (WA) (IR Act)

Most unincorporated WA legal practices (i.e. partnerships and sole practitioners) and their employees are not covered by the Fair Work Act 2009 (Cth) and do not qualify for the above flexibility measures under the LSA.

These practices and their employees are, however, subject to the WA state system established by the IR Act. On 14 April, the Western Australian Industrial Relations Commissions (WAIRC) made a general order under the IR Act to provide for flexibility in response to COVID-19.

The general order applies to all employers and employees under the WA IR system, including law firms and their employees. It provides for unpaid pandemic leave and annual leave at half pay in the same terms as the changes to the LSA introduced by the Fair Work Commission. In addition, the general order of the WAIRC provides that an employer and employee may agree in writing for an employee to take annual leave in advance of accrual, with provision for deduction from final pay if the employment terminates before the employee restores their accruals to zero.

The WAIRC’s general order came into immediate effect on 14 April, and will continue until 31 July, unless it is extended.

»Click here for further details at the WAIRC website

Fair Work Act 2009 (Cth) (FW Act)

On 8 April the Commonwealth Parliament passed the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 (Omnibus Act). The Omnibus Act is part of the legislative package to give effect to the JobKeeper payment system. The Omnibus Act received Royal Assent on 9 April, and so came into force the day after, on 10 April.

The Omnibus Act introduced various flexibility measures into the FW Act that are available to employers who qualify for the JobKeeper scheme. The provisions are complex and it is beyond the scope of this alert to provide details. In summary, however, where a WA law firm qualifies for the JobKeeper payment:

• the firm may make temporary and partial stand downs in certain circumstances;
• the firm may temporarily alter employees’ usual duties and locations of work in certain circumstances; and
• the firm and its employees may agree on altering an employee’s days and times of work and use of annual leave in certain circumstances.

These measures are applicable to all employees of WA law firms regardless of whether they are administrative staff, law clerks, graduate lawyers, admitted lawyers or managerial employees.

»Click here for further details at the Fair Work Ombudsman website

For further updates, visit the Law Society's COVID-19 Information and Resources Hub at our website, which is updated as new information becomes available.