In his first speech to Parliament, Ryde Liberal MP Jordan Lane said that the school system established in the 1950s should look a lot different nowadays.

“No longer can we get by with a system that was structured in an era when women did not work, and households were comfortably sustained on a single income,” he said.

“It is a relic of a sexist, bygone era, when society assumed women stayed at home and were responsible for the school pick-up.”

Following this, Lawyers Weekly asked its audience, via a LinkedIn poll, if school hours are inherently sexist, are nine-to-five working hours, too? And should they be scrapped? The results were an overwhelming yes.

At the time of filing, the poll results were as follows:

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The poll showed that out of 805 respondents, 85 per cent think that the nine-to-five should be abolished to promote flexibility and make accommodations for working parents, with only 15 per cent thinking otherwise.

Her Lawyer founder and director Courtney Bowie said that the “mismatch” between school hours and office hours leaves a childcare gap that working parents struggle to fill — and that, on the whole, it is the “outdated default that it’s the mothers that fill this gap”.

“Even if women who are mothers go in to bat for themselves and demand flexibility to meet that childcare gap (which is possible in some cases thanks to a tough talent market), if it’s only the mothers doing that, then there’s an ‘othering’ of those women and a visibility issue,” she explained.

“Those women then run the risk of being overlooked for promotion, not getting interesting work and so on — not progressing in their career. A lack of progression means that they are more likely to drop out altogether. Workplaces need to look at a whole-of-workplace shift to greater flexibility, not just on an ‘as-needed’ or ‘as-demanded’ basis.”

Working mothers disproportionately affected

This can mean that female legal professionals are more likely to face the “motherhood penalty” — with women’s salaries revealed to have significantly decreased after taking time off to have children. According to the October 2022 Treasury round-up paper, Children and the Gender Earnings Gap, women’s earnings are reduced by an average of 55 per cent in the first five years of parenthood.

This, employment partner and chair of diversity and inclusion at Hall & Wilcox Fay Calderone outlined, is also likely to persist throughout children’s school years, even after working mothers return to the workforce.

And as long as women maintain the “lion’s share of carer’s responsibilities” and the 3pm pick-up remains a necessity, she said, the persistence of the nine-to-five in most Australian firms will “continue to cause gender inequality and not remedy the pay gap that persists in our industry”.

“Although there was a temporary reprieve to the nine-to-five grind during the COVID pandemic, there has slowly but surely been a return to nine-to-five in our profession as courts have opened back up and client demands have increased. While many firms have introduced flexible work arrangements, I am hearing, at least anecdotally, that the take-up is greater by women than men,” Ms Calderone explained.

“Indeed, many women in our industry who have not had the opportunity to work flexibly before have embraced these changes and take on additional responsibilities for care of children that they may not necessarily have had the flexibility to take pre-pandemic. Whilst it is too early to call the outcome of this, there is certainly a growing concern that this may cause things to go from bad to worse.

“The motherhood penalty may persist in these circumstances not only in years shortly after the birth of children/ parental leave but throughout all schooling years to the extent that those who are present in the office get the better work or deals; bill more; get higher pay increases and therefore are more likely to be considered for promotions and leadership roles based on these ‘runs on the board’. Runs on the board that come from time in the office, including but not limited to nine-to-five.”

Caring responsibilities — and the additional emotional labour many women undertake during parenthood — have also been revealed to contribute to inflation disproportionately affecting female lawyers.

And despite female solicitors continuing to outnumber their male counterparts, the gender pay gap still exists across the profession, with many indications that women are leaving the profession earlier than men, who make up the majority of leaders within the profession.

This trend has continued into 2023, as Lawyers Weekly’s Legal Firm of Choice Survey recently showed that women and junior lawyers were among the most likely to leave their firms.

Cultural shift needed to move forward

The expectation that people operate from nine to five, Monday to Friday, is “redundant”, according to Coutts Legal managing partner Adriana Care.

“Whilst this may typically appear to contribute to gender inequality, it actually contributes to limiting people’s ability to contribute to their career progression and roles irrelevant of gender due to their personal commitments, which may be parenting, caring for elderly and other personal commitments in today’s society. However, as a business owner, there is pressure still to operate within that model,” she said.

“Whilst firms are trying to commit to flexibility, it is a challenging environment because there are external factors and expectations in society that aren’t changing to support this expectation. A clear example is our court system and hours they operate.”

However, Elit Lawyers managing director and co-founder Danielle Snell said that looking forward, flexibility will be increasingly needed in the workplace as men and women begin to equally juggle school pick-ups and work commitments.

“The school system in the 2050s involves both men and women alike sharing parenting responsibilities whilst striving for success and fulfilment in their careers. Flexibility in the workplace is wanted and needed by men and women alike, and recognition of this is the starting point to equality. As with many things in life, professional success and fulfilment requires balance,” she said.

“Some days, we may need to work between the traditional hours of 9am-5pm to meet client and operational requirements, whilst other days, this may not be required. Is it largely about give and take, isn’t it? Working in litigation, I often say to clients that people’s problems do not just happen between 9am-5pm. But this reflects the flip side. Often, we may need to work outside of the traditional work hours to respond to client’s needs and problems.”

This is particularly relevant within legal practice, which has a high-performance culture — and where it’s quite unusual for eight-hour days to be the norm.

While some lawyers can thrive in this environment short-term, Australian Women Lawyers president Astrid Haban-Beer said “it is rarely, if ever, sustainable”.

“Increasingly, law firms and government employers are recognising that flexible work arrangements foster retention of people. If the focus is on producing the best work, it shouldn’t matter when the work is completed as long as it is timely and communicated well. Ideally, flexible work practices should foster greater numbers of women in leadership positions, than they might otherwise have.

“Expectations around work hours are changing for the better, and this is a positive move for all lawyers regardless of gender, but especially for those with parenting responsibilities who have less flexibility with childcare or other care arrangements. Sadly though, the overall work demands and expectations around legal practice are not lessening, and in fact, we are hearing of a lot of burnout due to workload in the post-COVID era. Further, those who work in structured environments such as courts, have little access to flexible work hours as these just don’t apply in a court setting with many stakeholders involved,” she told Lawyers Weekly.

“We need to be cautious that flexible working doesn’t translate to ‘no down time,’ or an infringement of work onto personal lives. The constant connectivity frustrates the ability of many lawyers to switch off, and this has an impact on lawyer wellbeing. AWL supports scrutiny of what sustainable work looks like — which must include a serious look not just at flexibility, but at overall workload and the stressors of legal practice.”

Other solutions to these issues, Ms Bowie opined, include equitable sharing of responsibility between men and women, which requires a “larger cultural shift” and changes in attitudes on all fronts, as well as facilitating children staying on school grounds until 6pm without extra cost.

“If you’re in a workplace that values gender equity, then this should be a problem worth solving. Women represent incredible talent in the legal industry, and if a workplace wants to make the most of that, the female staff need to be nurtured in an environment conducive to advancement. It needs to be a gender-neutral policy, though — we need to see dads taking advantage of flexible arrangements and stepping up to meet the childcare gap and other family responsibilities, too, without fear of negative impacts on their career,” she added.

“To some degree, I think everyone wants autonomy. We should trust our team members enough to afford them the flexibility to design their own day and do their work. If you don’t trust your staff enough to leave the structure of their day/week/month in their hands, then you’re not putting enough effort into attracting, selecting and leading value-aligned team players.”

Flexibility continually important

Many law firm leaders have emphasised the importance of flexibility, particularly for working parents, as well as why mastering hybrid working will be key moving forward, especially in a candidate-driven market.

This is especially true as COVID-19 case numbers fluctuate; the Governance Institute of Australia Ethics Index, released in November last year, revealed that employers who fail to make flexible working part of their culture are considered more unethical in the face of COVID-19.

For law firms, there are a number of important questions to be asking in regards to this moving forward, including if they offer flexible working arrangements to all staff indiscriminately, how many of their partners or leaders currently work flexibly and if they are ensuring the fair allocation of work and opportunities to people who work flexibly.

“As firm leaders and an industry, we need to pause to examine trends and consider the impact these trends may have on our people, the gender pay gap, leadership and composition of our firms in the long term,” Ms Calderone added.

“It’s one thing to say we’re going to ‘scrap the nine-to-five’, but lawyers and people generally are creatures of habit, and there remain aspects of our work, such as court timetables, that remain inflexible. Policies can be changed quickly and easily. Cultural change takes time and a concerted effort by all leaders if it is to be achieved at all.”