You can read also read our article that covers the 7 conditions commonly missed by employers in the Legal Services Award.
In addition, you can download a FREE copy of our Legal Services Award eBook that covers everything you need to know about the award, without the jargon which comes with a BONUS payroll processing checklist.
This summary provides will provide you a comprehensive understanding of everything you need to know about the Legal Services Award to ensure you have maximum compliance.
Disclaimer:
Please note that every effort has been made to ensure that the information provided in this guide is accurate. You should note, however, that the information is intended as a guide only, providing an overview of general information available. This guide is not intended to be an exhaustive source of information and should not be seen to constitute legal or tax advice. You should, where necessary, seek a second professional opinion for any legal or tax issues raised in your business affairs.
The following businesses are covered under the Legal Services Award:
The Legal Services Award also covers:
However, the Legal Services Award does NOT cover:
To be classified as a full-time employee under the Legal Services Award, they must work an average of 38 ordinary hours per week.
To be classified a part-time employee, they must:
Before starting work as a part-time employee, the employer and employee must agree (in writing) on:
The above agreement can be changed with consent from both the employer and the employee, but it must be done in writing.
Under the Legal Services Award, a casual employee is an employee that doesn’t fit into the full- or part-time categories and who works on an hourly basis.
A casual employee must be paid for at least 4 hours of work per day that they are scheduled to work.
Instead of receiving paid leave benefits, casual workers are paid an additional 25% loading on top of their minimum hourly rate.
A regular casual employee is someone who is employed casually on a regular basis for at least 12 months.
In some cases, a casual employee can apply to have their employment contract changed into a part-time or full-time contract depending on the number of hours they regularly work:
The employer has full discretion to accept, in writing, or refuse the request. However, if the employer chooses to deny the request, it needs to be based on reasonable grounds, such as:
All grounds of refusal should be known or reasonably foreseeable.
Ordinary hours must be worked between 7.00 am and 6.30 pm.
The span of hours can be changed up to one hour by agreement with the employer, but overtime rates must be paid.
For example, Zoe can amend her span of hours to work until 7.30 pm to start later in the mornings. Her employer agrees, but they are now liable to pay Zoe an overtime rate for the hours worked between 6.30 pm and 7.30 pm.
Where an employee and employer agree on rostered days off, the arrangement must outline:
A shiftworker is an employee who works shifts and gets an extra payment for working shift hours.
The table below outlines the difference between a continuous shiftworker and a non-continuous shiftworker:
|
Continuous shiftworker |
Non-continuous shiftworker |
|
Continuous shiftwork means work done by employees where the hours of work are regularly rotated in accordance with a shift roster covering 24 hours per day over a 6 day week *except for breakdowns or meal breaks or due to unavoidable causes beyond the control of an employer. |
Non-continuous shiftwork means work regularly rotated in accordance with a roster which prescribes 2 or more shifts (day, afternoon or night) per day, but does not cover a 24 hour per day operation over a 6 day week. *except for breakdowns or meal breaks or due to unavoidable causes beyond the control of an employer. |
The ordinary hours of work for continuous and non-continuous shiftworkers must be an average of 38 hours per week and must not be more than 152 hours in 28 consecutive days.
Except at the regular changeover of shifts, a continuous and non-continuous shiftworker must not be required to work more than one shift every 24 hours.
If your employee's work shift spreads across the start or finish of daylight savings, they will be paid according to adjusted time.
This means the time on the clock at the beginning of work and the time on the clock at the end of work.
Example,
Sarah is a shiftworker at a local legal practice firm and regularly works from 9.00 pm on Saturday until 5.00 am on Sunday.
When daylight savings started and the time was adjusted from 2.00 am to 3.00 am, Sarah only worked 7 hours but she was paid for 8.
However, when the daylight savings time was adjusted from 3.00 am 2.00 am, and Sarah worked from 9.00 pm to 5.00 am, she was paid for 8 hours, although she worked 9.
Employees can choose to work make up time for time off during ordinary hours by working those hours at a later time.
Shiftwork employees can also do the same and be paid at the rate that they had taken time off, not the make up time.
For example, a shiftwork employee who makes up time on an overnight shift on Friday for their day shift on Tuesday should be paid ordinary rates rather than the 150% penalty rate.
|
Paid rest break |
Unpaid meal break |
|
All employees will be allowed 2 x paid rest breaks on each day. |
1 x 30-60 minute meal break must be taken before 5 hours of work. |
|
If suitable to the employer, paid rest breaks can be taken as follows:
|
If an employee doesn’t take an unpaid meal break before 5 hours of work, they must be:
|
|
All employees who work more than 4 hours on a Saturday before 12 noon must be allowed a paid rest break of 10 minutes between starting work and finishing work. |
For more information on the industry pay conditions, please refer to the latest Pay Guide for the Legal Services Award.
Please also refer to the minimum rates for different classifications.
If you aren't sure about the classification structure, we break it down in our Legal Services Award eBook.
Employers must ensure that a salary staff's annual wage can't be less than what they would've been paid over the year if they were paid all the award entitlements for their job.
If you have salary staff covered by the Legal Services Award, check out our Ultimate Guide on Annualised Salary Changes.
Search our database for all relevant allowances to your modern award.
As of 1 July 2022, however, employers are required to pay a super guarantee on behalf of eligible employees, regardless of how much they are paid.
Currently, a rate of 11.5% of an employee’s ordinary earnings must be contributed.
The table below outlines the overtime rates that need to be paid to day-workers and non-continuous shiftworkers:
|
For overtime worked on |
Full-time and part-time employees % of the minimum hourly rate |
Casual employees % of the minimum hourly rate |
Minimum payment |
|
Monday to Saturday until 12.00 pm- first 3 hours |
150% |
175% |
|
|
Monday to Saturday until 12.00 pm- after 3 hours |
200% |
225% |
|
|
Saturday after 12.00 pm and Sunday |
200% |
225% |
3 hours |
|
Public Holiday |
250% |
275% |
3 hours |
For full-time and part-time continuous shiftworkers, the rate for working overtime is 200% of the minimum hourly rate.
For casual continuous shiftworkers, the rate for working overtime is 225% of the minimum hourly rate.
An employee working overtime must be allowed a paid rest break of 20 minutes without deduction of pay after every 4 hours of overtime worked (if they have to continue work after the rest break).
Where an employee has to work overtime immediately after their ordinary hours of work, and the overtime is more than 1.5 hours, they must be allowed to take a 20-minute rest break (paid at their ordinary rate of pay).
It is possible for an employer and employee to agree (in writing) to taking time off for their overtime, instead of getting paid the overtime rates.
Employees are entitled to take time off based on what their overtime payment would have been. For example, if a casual employee worked 2 hours overtime, they are entitled to 3 hours time off (2 x 150%).
If the employee requests it, the employer must pay the employee for overtime covered by the agreement but not taken as time off; and any payment must be made in the next pay period following the request.
Employers may not put pressure on employees to take time off instead of payment for overtime.
Time off must be taken:
Should the employee not take the time-off within the 6 months, the employer must pay the employee as per the overtime rates.
If the employee’s employment is terminated, the employer must pay the employee for the overtime work at the applicable overtime rate.
Example:
Lara, an employee at a local legal practice, worked 4 hours overtime on a Wednesday night.
She had agreed with her employer to receive time off as opposed to getting paid for her overtime hours.
According to the overtime rates, Lara is entitled to receive 200% of her ordinary hourly rate. So, her time off calculation will be as follows:
4 hours x 200% overtime rate = 8 hours time off
However, this time off needs to be taken within six months of the worked overtime and at a time that is agreed on by both the employer and employee.
Where an employee works overtime and their next rostered working day is less than 10 hours after they finish working the overtime, then the employer must either:
If an employee is called back to their place of work after leaving, they must be paid for a minimum of 4 hours’ work as follows:
|
Day-workers and non-continuous shiftworkers % of the minimum hourly rate |
Continuous shiftworkers % of the minimum hourly rate |
|
150% for the first 3 hours |
200% |
|
200% after 3 hours |
Where an employee regularly has to prepare to be called back, they will be paid for a minimum of 3 hours’ work at the correct rate above.
If the job they were recalled to perform is completed before the 3 or 4 hours, they won’t be required to work the full time.
Where an employee is on stand-by and must be prepared to go back to work after their ordinary hours of work are completed, they must be paid, at their ordinary rate, for the time that they are required to stand by.
Example
Travis has left the office of his legal practice firm at his ordinary finishing time (6.00 pm). However, part of his team was staying late to work on a big upcoming case.
Although he was allowed to leave whilst his team stayed and worked on the case, he was required to be on stand-by in case they had hit a roadblock and needed help.
Travis was on stand by until 11.00 pm after which the team went home.
Therefore, his employer was required to pay Travis, at his ordinary rate, for 5 hours of standing by.
The table below outlines the penalty rates for shiftworkers:
|
Shift |
Penalty rate |
Casual penalty rate (inclusive of 25% loading) |
|
Afternoon 6.00 pm-midnight |
115% |
140% |
|
Night midnight- 8.00 am |
115% |
140% |
|
Early morning 5.00 am - 6.00am |
110% |
135% |
|
Non-continuous afternoon or night shift first 3 hours |
150% |
175% |
|
Non-continuous afternoon or night shift after 3 hours |
200% |
225% |
|
Permanent night (works only night shift) |
130% |
155% |
|
Saturday |
150% |
175% |
|
Sunday |
200% |
225% |
|
Public Holiday - continuous shiftworkers |
200% |
225% |
|
Public Holiday - non-continuous shiftworkers |
250% |
275% |
Under the Restaurant Industry Award, a rate of 17.5% leave loading on top of their annual leave is applied when an employee takes paid time off.
Employees must be paid the higher of:
Example:
If a full-time employee applies for leave between Thursday this week and Wednesday next week, they would typically work 8 hours of shiftwork on a Saturday.
The employer must calculate 38 hours, including a 17.5% leave loading and compare with how much the employee will typically receive if they had been paid working across that period with the Saturday penalty rates.
Whichever of the two calculations is higher is how much the employee should be paid across that period of time, not for individual days.
The idea is so that the employee is protected from being paid less for going on paid annual leave.
According to the NES, all employees are entitled to a paid day off on a public holiday (or unpaid for casual employees), except where reasonably expected to work.
However, an employer and employee may agree to substitute another day for a day that would otherwise be a public holiday under the NES.
Paid study leave may be taken for a period or periods agreed between the employer and employee.
The employer can’t unreasonably refuse to agree to a request by the employee to take paid study leave.
An employee classified under the Legal Services Award must give their employer notice of termination as below:
|
Employee’s period of continuous service with the employer |
Period of notice |
|
Not more than 1 year |
1 week |
|
More than 1 year but not more than 3 years |
2 weeks |
|
More than 3 years but not more than 5 years |
3 weeks |
|
More than 5 years |
4 weeks |
The notice that an employee is required to give is the same required of an employer, except the employee does not have to provide additional notice based on their age.
If an employee who is at least 18 years old does not give the period of notice required, then the employer can deduct from wages due to the employee. However, no more than one week’s wages should be deducted.
If the employer has agreed to a shorter period of notice, then no deduction can be made.
When an employer has given notice of termination to an employee in terms of the Legal Services Award, the employee must be allocated paid time up to one day, so that they can search for new employment elsewhere.
The allocated time should be taken when convenient to the employee and after consultation with the employer.
You can also download a FREE copy of our Legal Services Award eBook with a BONUS payroll processing checklist to ensure you maximise your payroll compliance.
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