Flexible workplaces in the legal profession
The Law Council is committed to assisting members of the legal profession to reach their full potential through flexible workplace practices. Where ‘presenteeism’ was once an integral part of typical law firm culture, advances in technology and changed attitudes have assisted workplaces and their employees to adopt flexible working policies and programs, including flexible hours and working outside of the office, including from home. Flexible workplace arrangements can maximise employees’ productivity and wellbeing, assisting them to deliver the best results for their employer. Flexible workplace practices can greatly assist lawyers to balance their work responsibilities with their other pursuits and priorities, including for example, family and carer responsibilities, community responsibilities, and other endeavours.
Below are some resources that may assist firms in developing flexible workplace policies and translating these policies into practice.
What are flexible workplace arrangements?
According to the Fair Work Ombudsman flexible workplace arrangements can include the following:
- hours of work (e.g. changes to start and finish times);
- patterns of work (e.g. split shifts, job sharing, part-time work, staggered return to work, nine-day fortnights); and
- locations of work (e.g. working from home).
Under Part 2-2, Divisions 4 and 5 of the Fair Work Act 2009 (Cth) an employee may request a change in working arrangements if certain circumstances apply to them, including where the employee:
- is a parent or has responsibility for the care of a child who is school aged or younger;
- is a carer;
- has a disability;
- is 55 years old or older;
- is experiencing family or domestic violence or a member of their family or household is experiencing family or domestic violence.
Employer responsibilities regarding flexible workplace arrangements
Employers who receive a request must give a written response within 21 days saying whether the request is granted or refused. They can only refuse a request on reasonable business grounds. If a request is refused, the written response must include the reasons for the refusal. Further information about this is available on the Fair Work Ombudsman’s website.
As more people work outside the office, there is a potential for additional risks to arise, including employee or client injury and cyber risks associated with using phones and computers outside of the office. Law firms should address these risks by providing appropriate training and policies and ensuring their insurance policies cover flexible workplace arrangements.
Issues raised by flexible workplace arrangements can intersect with issues of discrimination. It is important for employers to be aware of their responsibilities under relevant anti-discrimination legislation. For instance, note that under the Fair Work Act, Sex Discrimination Act 1984 (Cth) and Disability Discrimination Act 1992 (Cth) it is unlawful to discriminate against an employee on the grounds of pregnancy, sex, disability, family and/or carers’ responsibility. An employer may be personally liable under relevant laws if it is found their workplace has engaged in unlawful discrimination.
Examples of flexible working arrangements in the legal profession
Workplaces might offer their own policies and procedures regarding flexible workplace arrangements. Such policies might include provision for both formal and informal flexibility, and there is an increase in the number of organisations offering flexible working of some sort for all employees and principals. The most successful flexible work policies are implemented with clear support from leadership, input from employees, clear guidelines and communication, and open discussion of barriers and challenges as well as solutions to those challenges (within workgroups and more broadly).
Below are some examples from Law Council Constituent Bodies and other legal organisations who have created helpful guidelines and resources on flexible workplace arrangements:
- The Queensland Law Society has developed a Flexible Working Group to assist employees and supervisors to explore flexible work arrangements, to provide tools and support to people considering negotiating a flexible work arrangement, and to empower employees to have an open dialogue with a supervisor or manager about flexible workplace arrangements.
- The Law Society of New South Wales has published online resources on flexible work further to its 2011 report on the Advancement of Women in the Profession. Resources include tips for practitioners, types of flexible working arrangements and tips for employees when making a persuasive case for flexible working arrangements.
- Victorian Women Lawyers have published Flexible Work Protocols – a best practice guide for productive and engaged legal workplaces. It provides tips on issues like parental leave, part time work, job sharing, flexible working hours, working remotely, and the importance of mentoring to support women’s careers.
- The Law Society of Western Australia has adopted the Victorian Women Lawyers Flexible Work Protocols as part of their commitment to encourage successful flexible workplace protocols amongst law practices.
- The New South Wales Bar Association has a number of resources on its website which it encourages its members and their chambers/floors to consider and potentially adopt, including:
- a Model Parental and Other Extended Leave Best Practice Guideline that provides a framework to facilitate parental and other extended leave, as related to the Barristers Conduct Rules and the NSW Bar Association’s Diversity and Equality Policy;
- a Fee Waiver Policy to grant fee waivers to barristers taking parental or carer’s leave; and
- the Bar Association is also continuing to work with the Supreme Court of New South Wales to develop practices to ensure predictable sitting hours for members with carers’ responsibilities.