Junior lawyers paying for partners' disorganisation

Comrades!

Have you ever had a partner stride into your office, as twilight fades outside, and found yourself taking instructions for work that is to be completed by the "close of business tomorrow"? The partner then retreats into his or her office and forwards you the initial email from the client - for the sake of background or further clarification - with a curtly added "FYI".

After cancelling your plans with your increasingly frustrated girlfriend/boyfriend and making yourself comfortable for a long night at the coal face, you read over the client email a second time. Your eyes, skimming across the lines of text, hover momentarily on a small piece of information: the date on which the email was originally sent by the client. It was sent last week.

Comrades!

I put it to you that such behaviour by partners is commonplace. While we, the workers, are expected to perform our tasks to the standard demanded of us and the deadlines imposed upon us, partners sit on instructions for days and even weeks at a time, before briefing us and declaring the matter "urgent". And then, comrades, we are expected, nay, required to put our lives, our relationships and our priorities aside to perform this "urgent work" for just such disorganised partners.

It is time for partners to be made to see that junior lawyers have lives and families outside work. One of the criteria for determining whether additional hours are "reasonable" under the revised Workplace Relations Act is the amount of notice given to an employee of the need to work the additional hours. No longer should junior lawyers be expected to work long into the night at the whim of partners who fail to properly manage their time.

It is time to take a stand!

Interim response received from OWS

The JLU today received a response to its letter to the Office of Workplace Services (OWS).

In a telephone call, a representative from the OWS advised the JLU that the matter had been forwarded to the OWS' legal department in Canberra and that a formal response should be expected in approximately a week.

Unofficially, the OWS representative admitted that the OWS was unlikely to provide any guidance as to the meaning of "reasonable additional hours", as the 38 hour week provision remains untested in the courts. The JLU countered that, if the OWS intends to enforce the provision, it must have some idea as to how many additional hours it considers "unreasonable". However, the OWS staff member responded that any such view would be formed on a case by case basis, following specific complaints raised with the OWS. All such complaints, she added, would be taken seriously and raised with the relevant parties.

This presents a catch-22 situation. Junior lawyers find themselves required to work unreasonably long hours - with each month's payslip containing the fiction that they have worked 37 hour weeks. The law firm culture of silence and acquiescence prevents junior lawyers resisting or objecting to their work/life imbalance. However, in order to break this culture of overwork, junior lawyers would need to lodge formal objections with the OWS. Is anyone willing to lodge such an objection? Not so long as the unspoken pressure to just "bend over and take it" persists.

The JLU looks forward to receiving the OWS' formal response but does not expect it to contain any salvation for junior lawyers who have never seen the inside of their residences in daylight.

Letter to Office of Workplace Services

Office of Workplace Services
GPO Box 9887
Melbourne VIC 3000

May 2006


Dear Sir/Madam,


Hours of work – "reasonable additional hours"


I understand from your website that one of your core activities is to provide "advice and assistance to employers, workers and organisations about compliance and enforcement under the Workplace Relations Act 1996".

Consequently, I am after some guidance as to what you would consider "reasonable additional hours" for the purposes of the 38 hour week provision (section 226) of the Workplace Relations Act 1996 (Cth), given the following hypothetical circumstances:

• Employee is a junior lawyer in Victoria at a large and highly profitable commercial law firm.
• Employee is earning just under $XX,XXX [actual amount included in letter - SS] per year.
• Employee is generally and implicitly expected to work in excess of 38 hours every week, with no specific notice given by the employer of the occasions on which the employee is required to work additional hours.
• Employee has no spouse or dependants.

I understand that a more comprehensive examination of the circumstances may be required before you could provide me with a precise figure. However, if the Act is to have any coherence whatsoever, and if you will be enforcing breaches of this provision, I expect you must have some idea of the hours – ie. a range (such as 5-10 additional hours) – that you would consider "reasonable" in the circumstances.

I look forward to receiving your response and the resultant clarity.

Thanking you in advance,


Shop Steward,
JLU

The 38 hour week: making WorkChoices work for you!

As would any good union, the JLU completely and utterly objects to the Howard government's WorkChoices legislation and wishes the states (and the intervening unions) well with their constitutional challenge.

Regrettably, the case is being heard by what is currently an ultra-conservative High Court and most analyses we have heard are pessimistic about the chances of the states succeeding in convincing more than two (Kirby and Callinan JJ) of the seven justices that the Commonwealth has exceeded its constitutional powers.

Nevertheless, every cloud has a silver lining. And so it may be with WorkChoices.

Subsection 226(1) of the severely amended Workplace Relations Act 1996 (Cth) (the Act) now states:

An employee must not be required or requested by an employer to work more than:

(a) either:

(i) 38 hours per week; or
(ii) an average of 38 hours per week [over a period agreed in writing between employer and employee]; and

(b) reasonable additional hours.

In other words, comrades, under the new legislative regime, employers are forbidden from so much as asking employees to work more than 38 hours a week plus any additional time that may be considered "reasonable". But, in the context of the law firm environment and "culture", what number of additional hours can be considered reasonable?

This is a question the JLU, on behalf of its stakeholders, put to the newly-formed Office of Workplace Services, the body charged with the administration and enforcement of the minimum standards contained in the Act. The wording of this letter will shortly be posted on this site.

"But wait a minute," we hear you say. "I'm a lawyer. I work for a law firm. And law firms, as we all know, are partnerships, not corporations. And, as it is the corporations power of our Constitution that has been so misshapenly stretched to provide a constitutional basis for the WorkChoices legislation, WorkChoices does not apply to me."

You make a valid point. WorkChoices only applies to corporations and law firms are not corporations. But you miss a key point. Victoria, in the Kennett years, referred its industrial relations powers to the Commonwealth and, as a result, WorkChoices also applies to Victorian employees of entities other than corporations.

Therefore, dear Victorian comrades, the 38 hour week still applies to you - and, you can bet, if Victorian lawyers are benefitting from a cap on working hours, lawyers in other states would kick up a hell of a stink if their working hours far exceed those of their Victorian brothers and sisters.

In the 38 hour week guarantee, even the Howard government has recognised the need to enshrine the principle of work/life balance in legislation. While law firms often pay lip service to "work/life balance" in their glossy recruitment brochures, the reality is that a 38 hour week is a pipe dream for junior lawyers who are forbidden by the likes of Tom Poulton from playing cricket on the weekend when there is work to be done.

With the commencement of WorkChoices, the JLU asks: how long can law firms continue to operate outside the law?

Why do we need a union?

The pressure placed on junior lawyers is usually unspoken and only ever implied.

For the most part, it consists of:

• unrealistic deadlines;
• "requests" at 5.30 on a Friday afternoon to have something completed by "first thing Monday" (when, then, is the task supposed to be done but over the weekend?);
• references to having to work additional hours as the business requires it - when the truth is that the business almost always "requires" it and, even when it doesn't (and where a junior lawyer has spent the day reading the newspaper online or playing solitaire), the fear of raised eyebrows mean few junior lawyers dare leave their desks anytime before 6pm;
• demands that lawyers bill 6 or 7 hours a day - while also finding time to do pro bono work, write articles, present papers and contribute to the precedent collection of the firm; and so on.

That the pressure is unspoken is a golden rule at large law firms in particular. It is for this reason that what Tom Poulton, Managing Partner of Allens Arthur Robinson, came out and said last year on the record to BRW was so unexpected. So imbued with the oppressive law firm "culture" and so out of touch with community values and expectations in post-industrial revolution Western society (let alone the twenty-first century), Mr Poulton openly gloated about the exploitation of his employees in the following terms:

"We don't run this place as a holiday camp.... We expect our people to treat the client as if they were God and to put themselves out for clients. You don't say 'Sorry I can't do it, I'm playing cricket on the weekend.'... You don't have a right to any free time."

(http://brw.com.au/freearticle.aspx?relId=12286)

Well, Mr Poulton, we at the JLU say that lawyers - even your lawyers - do have a right to free time. In fact, we have a very specific view of our members' obligations:

During standard working hours, the default position is that work matters are to take priority. Personal matters or appointments should intrude as little as possible into working hours. Outside standard working hours, however, work matters should likewise - and in practice, not merely in a rhetorical sense - intrude as little as possible into lawyers' personal time.

In short, Mr Poulton, you do not have a right to insist junior legal staff put aside their existing personal lives and commitments in order to put more money in your pocket.

Never forget, comrades, that partners at top-tier law firms each and every working day earn what you receive once a month in your desperately-anticipated pay packets. Imagine every day being pay day. Well, comrades, for the partners who so often treat you with contempt and expect you to work as hard as them (for a fraction of the reward), it is!

That said, Mr Poulton should be congratulated for openly saying what his partners only say by implication (even if the resultant uproar left poor Tom confused and saying, "What? [pause] What?? [pause] What did I say??").

In the meantime, we understand the fear that inhabits the hearts of junior lawyers - at the thought of walking out of the office, head held high, jacket on and bag in hand at 5.15pm, or telling a partner that you cannot meet an unrealistic deadline, or that you cannot and will not spend your weekend performing a dull due diligence.

We understand that junior lawyers leave jackets on chairs, bags by desks and computers on overnight just to maintain an appearance of still being in the office even when they have gathered up the courage to walk out of the office. We find this stupid and unnecessary. It takes two to tango and we advise our members not to dance this dance.

Our aim at the JLU is to harness the collective power of junior lawyers - a power many don't even realise they possess (can you imagine the panic among partners of top-tier firms if junior lawyers all failed to show up to work even for one day?) - to create an environment where junior lawyers work reasonable hours and partners ask, rather than expect, lawyers to work beyond these hours.

If the above sounds familiar and you wish to be a member of the JLU, it is free. Just send an email to juniorlawyersunion@gmail.com and request to be added to the distribution list. At this stage that just means you will receive JLU updates as and when they start flowing more regularly.

We don't have a privacy policy - so don't ask. But, rest assured, we understand the culture of fear that pervades law firms so membership is effectively anonymous. We will never advise anyone of your identity, release your details or use your email address for any purpose other than JLU communication.

Finally, the only way for people to know about our movement is word of mouth. Please help us out by forwarding the link to our website/blog to your friends and colleagues. (One day we hope to graduate to a real website.)

Thanks.

JLU founded!

Whereas the individuals who occupy positions as junior lawyers, law graduates, articled clerks, vacation clerks or paralegals (collectively, junior lawyers) find themselves oppressed by a culture of unspoken pressure and fear, determine it necessary to unite to have their interests represented by a union hereby established:

Be it therefore proclaimed that they have formed a union that shall be known as the Junior Lawyers' Union.*

Hear hear, comrades!

*Borrowing slightly from the Australian Constitution.

The JLU has no official standing or legal personality, particularly in light of the current industrial climate, where we might find our heads pressed against the road by a large boot.