JLU: Junior Lawyers' Union

Asserting the rights of junior lawyers, who have much more power than they realise.

Thursday, May 25, 2006

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?

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