The inquiry into whether the legal profession should be covered nationally by a modern award has been met with fiery submissions and opposing views.
The New South Wales Law Society (NSWLS), who made a submission in its capacity as an employer and not on behalf of the profession, argued an award was not necessary because solicitors are tertiary educated, possess negotiation skills and are equipped to identify and enforce their rights.
"They are not a vulnerable group. Solicitors are accordingly able to negotiate with their employers in respect of minimum terms and conditions of employment," the submission said.
"Graduates-at-law and articled clerks, as new entrants to the industry, are arguably more vulnerable, and may be considered to be an exception to this proposition and accordingly it is appropriate that they be covered by a Modern Award."
However, in an Australian Industrial Relations Commission (ALRC) pre-drafting conference held at the start of August, national industrial officer for the Australian Services Union (ASU) Keith Harvey disagreed with the NSWLR, asserting that employed solicitors were a vulnerable group as "they attempt to gain a foothold in a pretty tough industry".
"Just to turn to one example of that, tales of extraordinary long hours of work for junior employed solicitors are both legendary but real. The ASU can see no reason why employed solicitors should not be entitled to the protection of a modern award with appropriate levels of minimum rates of pay and conditions of employment," he told the conference.
Commissioner presiding over the conference GR Smith also commented in jest about the employment circumstances of junior lawyers, "Everybody knows a partner in a law firm is a pushover."
Harvey said that industrial awards applied to most other professions, and that organisations were being hypocritical in arguing they shouldn't apply to the profession of law itself.
"We suggest that it sounds a tad hypocritical to say the least, and we say that industrial law should apply equally to all employers and employees and not just those in all other industries and professions except the legal industry," he said.
The NSW Young Lawyers Employment and Industrial Relations Committee (NSWYL) supported solicitors being covered by an award. Submission coordinator Michael Nguyen told the conference that just because an employee possessed a tertiary education and negotiation skills didn't mean they shouldn't have a safety net.
"We submit that the work of entry level solicitors is extremely similar to the work of surveyors, engineers, scientists and medical practitioners which have awards created for them by the Commission in previous stages," he said.
"A safety net is required to ensure that graduates and newly admitted solicitors receive a minimum wage comparable to other professionals."
NSWYL also supported the introduction of travel and meal allowances for overtime work, overtime pay, an agreement of hours of work between employer and employee and annualised salaries by agreement.
Meanwhile, the NSWLS argued further that the award modernisation process was not an "appropriate vehicle" to cover solicitors in private practice, and drew particular attention to the potential impact on incorporated practices.
"While ever NSW retains its industrial relations powers, all employees employed by a sole practitioner or partnership will not come within the federal system and will therefore not be covered by any legal services modern award that applies to solicitors whether on an industry or occupational basis," the submission stated.
"This will result in an anomalous and undesirable difference between the terms and conditions required to be afforded to solicitors performing the same work in different entities [for example] incorporated legal practices versus sole practitioner practices and partnerships. "This is unfair and potentially commercially disadvantageous to incorporated legal practices in New South Wales."
The AIRC has received submissions from 26 organisations and will conduct further consultations, making a final decision in December.
- Sarah Sharples