PN1

DEPUTY PRESIDENT GOSTENCNIK: Yes, good morning. Mr Rizzo, you are appearing for the ASU?

PN2

MR J COONEY: Sorry, Deputy President, it's Justin Cooney for the Australian Services Union. Mr Rizzo isn't available today. A change of appearance.

PN3

DEPUTY PRESIDENT GOSTENCNIK: Sorry, Mr Cooney, I didn't think you looked like Mr Rizzo, but I just didn't want to be rude.

PN4

MR COONEY: I think Mr Rizzo would probably be a much better looking dude than me.

PN5

DEPUTY PRESIDENT GOSTENCNIK: Ms Sweatman, you are appearing for the law firms?

PN6

MS K SWEATMAN: Yes, your Honour, and I seek permission to the extent that you require me to seek permission pursuant to section 596 of the Fair Work Act.

PN7

DEPUTY PRESIDENT GOSTENCNIK: Mr Cooney, is there any objection?

PN8

MR COONEY: No objection, your Honour.

PN9

DEPUTY PRESIDENT GOSTENCNIK: Yes, Ms Sweatman, we are satisfied, having regard to the complexity of the matter, the matter will be dealt with more efficiently if we were to grant the law firms permission to be represented.

PN10

MS SWEATMAN: Thank you.

PN11

DEPUTY PRESIDENT GOSTENCNIK: To the extent that it is necessary.

PN12

All right, we have got two matters to deal with this morning. How do you wish to proceed, Ms Sweatman?

PN13

MS SWEATMAN: There is one witness who has been required for cross-examination, so perhaps if we take Mr Grant's evidence and then we can move on to submissions?

PN14

DEPUTY PRESIDENT GOSTENCNIK: Yes. Is that convenient, Mr Cooney?

PN15

MR COONEY: Yes, your Honour.

PN16

DEPUTY PRESIDENT GOSTENCNIK: All right, call Mr Grant.

PN17

MS SWEATMAN: I call Mr Nick Grant.

PN18

THE ASSOCIATE: Can you please state your full name and address.

PN19

MR GRANT: Nick Grant from 1 O'Connell Street in Sydney.

<NICK GRANT, AFFIRMED [10.18 AM]

EXAMINATION-IN-CHIEF BY MS SWEATMAN [10.18 AM]

PN20

MS SWEATMAN: Can you please state for the transcript your name, position and work address, please?‑‑‑Nick Grant, Director of Human Resources for Australia at K&L Gates and the address is 1 O'Connell Street in Sydney.

PN21

Have you prepared a witness statement in these proceedings?‑‑‑Yes, I have.

PN22

Do you have a copy of your statement with you?‑‑‑Yes, I do.

PN23

Is it a statement dated 21 February 2018 and six pages long?‑‑‑Yes, it is.

PN24

Does it have one attachment, being the Legal Profession Uniform Admission Rules 2015?‑‑‑Yes, it does.

PN25

Is there anything in your statement that you wish to correct?‑‑‑No.

PN26

Do you adopt the statement, including its attachment, as your evidence?‑‑‑I do.

PN27

If I may tender Mr Grant's statement and have it marked, please?

PN28

DEPUTY PRESIDENT GOSTENCNIK: Any objection, Mr Cooney?

*** NICK GRANT XN MS SWEATMAN

PN29

MR COONEY: No, your Honour.

PN30

DEPUTY PRESIDENT GOSTENCNIK: Thank you. We will mark the witness statement of Mr Nick Grant, dated 21 February 2018, comprising of 31 paragraphs, together with the annexure marked NG-1, as exhibit 1.

EXHIBIT #1 STATEMENT OF NICK GRANT, DATED 21/02/2018, COMPRISING 31 PARAGRAPHS, TOGETHER WITH ANNEXURE NG-1

PN31

MS SWEATMAN: If there is no objection, I have an additional document, which I have discussed with Mr Cooney, that I would like to introduce into evidence through Mr Grant and ask him just a couple of quick questions.

PN32

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN33

MS SWEATMAN: Mr Grant, is it your understanding that the Legal Profession Uniform Admission Rules 2015 that are appended to your statement are derived from the Law Admissions Consultative Committee Practical Legal Training Competency Standards for Entry Level Lawyers which have just been handed up?‑‑‑Yes, that's my understanding.

PN34

If I may tender that document, please.

PN35

DEPUTY PRESIDENT GOSTENCNIK: Any objection, Mr Cooney?

PN36

MR COONEY: No, your Honour.

PN37

DEPUTY PRESIDENT GOSTENCNIK: I will mark the document which is titled "Practical Legal Training Competency Standards for Entry Level Lawyers", which appears to be a document prepared by the Law Admissions Consultative Committee, as exhibit 2.

EXHIBIT #2 DOCUMENT TITLED "PRACTICAL LEGAL TRAINING COMPETENCY STANDARDS FOR ENTRY LEVEL LAWYERS"

*** NICK GRANT XN MS SWEATMAN

PN38

MS SWEATMAN: Thank you, your Honour. Mr Grant, to your recollection, prior to the commencement of these Practical Legal Training Competency Standards, what were the practical legal training requirements for articled clerks?‑‑‑My recollection is that there weren't any practical legal training requirements. I think there might have been an exam around trusts, but, beyond that, there wasn't actually practical legal training as part of the articles process.

PN39

Thank you, Mr Grant. In your preparation - - -

PN40

DEPUTY PRESIDENT GOSTENCNIK: The principals who supervised the articled clerkships of the prospective members of this Commission would probably disagree, but nevertheless.

PN41

MS SWEATMAN: Okay, I understand, and I do appreciate that the members of the Bench do have some prior experience in the matters that we are going to be talking about.

PN42

DEPUTY PRESIDENT GOSTENCNIK: Some actual experience rather than somebody else's recollection, not having done any articles themselves, so I am not sure how helpful this witness is in respect of that matter.

PN43

MS SWEATMAN: I don't intend to ask any further questions around that.

PN44

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN45

MS SWEATMAN: And the questions are really to inform the history of this clause over time.

PN46

DEPUTY PRESIDENT GOSTENCNIK: No, I understand.

PN47

MS SWEATMAN: In your preparation for today's hearing, have you inspected the study leave records for law graduates at your firm, Mr Grant?‑‑‑Yes, I did.

PN48

What did your inspection of those records reveal to you?‑‑‑The graduates at our firm over the past three years typically took about 10 days of study leave during their graduate year. There were some that took less than that, but I didn't see any that took more than 11 days of study.

PN49

Thank you, I have no further questions.

*** NICK GRANT XN MS SWEATMAN

PN50

DEPUTY PRESIDENT GOSTENCNIK: Yes, thank you. Mr Cooney, cross-examination?

PN51

MR COONEY: Thank you.

CROSS-EXAMINATION BY MR COONEY [10.23 AM]

PN52

MR COONEY: Mr Grant, in your evidence, there are three methods by which a law graduate can satisfy the requirements to the various State Admissions Boards, they being practical legal training, supervised legal training and a graduate diploma; would that be correct?‑‑‑I believe so, yes.

PN53

In your experience, would there be many law firms who would have a trainee performing or undertaking a graduate diploma?‑‑‑Not that I'm aware of, no.

PN54

Really your evidence today goes to practical legal training?‑‑‑That's right, yes.

PN55

If I can call them "trainees", and again noting what the Deputy President said, but typical of a trainee would be you do your three or four rotations and that you would be on a one-year contract with a law firm with, at the end of that 12-month period, the law firm to assess how well they believe you performed; would that be correct?‑‑‑Sorry, are you - - -

PN56

Sorry, I am asking you, in effect, is a legal trainee on a 12-month contract in pretty much every circumstance?‑‑‑I can't speak for every firm. That would be true of our firm, that that reflects how things work for our graduates or trainees, as you have called them.

PN57

Effectively, as far as a particular law firm would be concerned - well, your particular law firm would be concerned, that 12 months is a cap on an employee completing their practical legal training and it would then be at the discretion of the 12 months whether the firm continues that employment or allows the trainee, if they haven't completed their training, to continue with their courses?‑‑‑I don't think it's viewed as quite that way, but I guess, in effect, it could result in that sort of decision being made after 12 months.

PN58

You say at clause 24 of your statement that a trainee must also acquire appropriate understanding of elements of ethics and professional responsibility, lawyer skills and the risk management element of work management and business skills. If I can take you to clause 24 of your statement?‑‑‑Yes.

*** NICK GRANT XXN MR COONEY

PN59

It says there "supervised legal training", but that applies for practical legal training to a trainee. Sorry, that was a question as well?‑‑‑Sorry, you are saying "Does it?"

PN60

Yes, that applies to a trainee, that they have to appropriately meet the requirements of those three subjects to be admitted?‑‑‑I think under the practical legal training, it talks about competency in those sorts of areas as well. I would have to look it up again to see the exact wording.

PN61

I accept that. In your firm, how would the trainee receive teaching in those areas? Is it done internally or externally?‑‑‑It's a combination of things, I would say. There is a lot of on the job exposure and experience, there are training sessions provided as well that might touch on some of these topics, so it's a combination of various aspects.

PN62

That includes for ethics and professional responsibility, lawyer skills and risk management would be done internally?‑‑‑To some extent, yes. If it helps to clarify, I don't think we have a subject or a training course called "Lawyer Skills", but skills essential for lawyers are covered in various elements of training.

PN63

Your Honour, can I hand up this document?

PN64

DEPUTY PRESIDENT GOSTENCNIK: Does the witness have a copy of it? Are you going to ask the witness questions?

PN65

MR COONEY: Sorry, it's a copy of Supervised Legal Training Requirements from the Victorian Legal Admissions Board and what it goes to is - - -

PN66

DEPUTY PRESIDENT GOSTENCNIK: You don't have to tell me what it is, I just want to know whether the witness will have a copy of it.

PN67

MR COONEY: No, sorry, the witness won't have a copy.

PN68

DEPUTY PRESIDENT GOSTENCNIK: What we might do is we might stand the matter down for five minutes. If you give that document to my associate, we will arrange for it to be scanned and sent to Sydney so that the witness has a copy of the document in front of him when you ask him some questions.

PN69

MR COONEY: All right.

*** NICK GRANT XXN MR COONEY

PN70

DEPUTY PRESIDENT GOSTENCNIK: We will adjourn.

<THE WITNESS WITHDREW [10.31 AM]

SHORT ADJOURNMENT [10.31 AM]

RESUMED [10.50 AM]

<NICK GRANT, RECALLED [10.50 AM]

CROSS-EXAMINATION BY MR COONEY, CONTINUING [10.50 AM]

PN71

DEPUTY PRESIDENT GOSTENCNIK: Yes, Mr Cooney?

PN72

MR COONEY: Thank you, Deputy President. Your Honour, the Bench has copies of the document headed "Supervised Legal Training"?

PN73

DEPUTY PRESIDENT GOSTENCNIK: Thank you, yes.

PN74

MR COONEY: If I could take the witness to page 3 of that document, two-thirds of the way down the page, heading in bold "Practical Legal Training Prerequisite", it talks about appropriate understanding and competent in each elements of the skills, values and practice areas. Then the next heading is "Training Provider Approval" and it says there:

PN75

Ethics and professional responsibility, lawyer's skills and the risk management element of work management and business skills must be taught by an approved practical leading training provider or by another provider approved by the Board for that purpose.

PN76

This is the Victorian Legal Admissions Board. Mr Grant, can I ask if, to your knowledge K&L Gates, at least in Victoria, are a provider approved by the Board for the purpose of teaching responsibility, lawyer's skills, risk management and work management and business skills?‑‑‑We don't follow the supervised legal training model, so we don't need to be approved in that sense. We use the College of Law as our trainer because we follow the PLT method.

*** NICK GRANT XXN MR COONEY

PN77

You use the College of Law to provide training in those particular areas?‑‑‑Well, I think training in those areas relate to supervised legal training. I don't know whether they do translate directly across to the practical legal training requirements. I think the wording is a little different and it's - I haven't got all the specifics there, but those particular ones, I think the question you asked earlier before we adjourned about in my statement, clause 24, section 6(3) of schedule 3, schedule 3 relates to supervised legal training specifically and that's not the model we use at K&L Gates and I don't believe most of the firms that we're representing today use that model either.

PN78

But the model you do use, you would have training performed by the College of Law?‑‑‑Yes, we do.

PN79

But you wouldn't relate it to those three particular areas, or not to your knowledge?‑‑‑There are different - I think the headings are different in terms of the skills, practice areas and competence. I mean, there's a lot of overlap but I think it's a little different if you look at the details of what's required in the PLT program.

PN80

Earlier you gave evidence that K&L Gates, over the last three years, the maximum amount of training leave that was required was 11 days, I think in one instance, most was around 10 days?‑‑‑Yes, based on the records I saw, 11 days was the most that I saw anyone had taken.

PN81

Would you know what that leave, which particular components that leave was in relation to or how many components that leave was in relation to?‑‑‑I'm not sure I quite understand what you mean by that.

PN82

There are compulsory subjects that you are required to do for your practical legal training; would you agree with that?‑‑‑I don't know if they're worded as "subjects".

PN83

DEPUTY PRESIDENT GOSTENCNIK: There are areas of practice and there are three that are compulsory and a further two optional ones, so there are five areas of practice that need to be covered?‑‑‑Yes.

PN84

MR COONEY: Thank you, your Honour.

PN85

THE WITNESS: That are covered, yes. I think, to answer your question, the leave taken would cover the entirety of the PLT and the way it is run now, and it's changed a little bit, but the way it is run now is our graduates would spend five days at the commencement of their graduate year, five days straight in an intensive with College of Law and then, beyond that, they will have some short one-hour sessions on a particular topic, they will take time off to do some preparation before having oral assessments, which are part of the College of Law program, so that study leave that's taken covers all of the elements that are being covered in the PLT.

*** NICK GRANT XXN MR COONEY

PN86

DEPUTY PRESIDENT GOSTENCNIK: The initial period at the beginning of the PLT period, the initial block, for example, is not part of the leave that you are accounting for, is it?‑‑‑It is, yes.

PN87

You say that those first five days plus, according to your records, employees took a further five or six; is that the gist of your - - -?‑‑‑That's correct, yes.

PN88

MR COONEY: Mr Grant, you say that's the method which operates at the moment, so that the current award clause which allows an amount not exceeding four days for each subject for study and attendance hasn't proved a barrier to employees as it stands undertaking that training?‑‑‑Sorry, hasn't proved a barrier to employees? Was that the question?

PN89

Yes, in particular K&L Gates providing leave to employees to undertake that training in those three compulsory subjects and the two core subjects?‑‑‑Not that I'm aware of. I think it's more a case that they've just been able to take less, so it hasn't sort of hit that four days for any particular area they were looking at.

PN90

If I could move on to the working hours of employees and the application from the law firms to average 38 hours over a six-month period. If I could take you to clause 25 of the current award.

PN91

DEPUTY PRESIDENT GOSTENCNIK: Are you wanting to tender this document?

PN92

MR COONEY: Sorry, your Honour, yes, if I could.

PN93

DEPUTY PRESIDENT GOSTENCNIK: Is there any objection to the tender, Ms Sweatman?

PN94

MS SWEATMAN: No, save that I thought it was clause number 24 on page 19, so page 19 has been handed to Mr Grant. I just want to check that we are talking about the same.

PN95

MR COONEY: Yes, that's right.

PN96

DEPUTY PRESIDENT GOSTENCNIK: Sorry, no, no, I'm talking about the earlier document.

*** NICK GRANT XXN MR COONEY

PN97

MS SWEATMAN: Yes, no objection to the tender of that document, sorry, your Honour, thank you.

PN98

DEPUTY PRESIDENT GOSTENCNIK: That's all right. I will mark the document which appears to be prepared by the Victorian Legal Admissions Board titled "Supervised Legal Training", which appears to be Version 3, dated 31 August 2017, as exhibit 3.

EXHIBIT #3 DOCUMENT PREPARED BY THE VICTORIAN LEGAL ADMISSIONS BOARD TITLED "SUPERVISED LEGAL TRAINING", VERSION 3, DATED 31/08/2017

PN99

DEPUTY PRESIDENT GOSTENCNIK: Yes, Mr Cooney?

PN100

MR COONEY: Thank you, your Honour. I would now seek to tender - it's a document of the Commission - Legal Services Award, hours of work clause 24.

PN101

DEPUTY PRESIDENT GOSTENCNIK: Is this the current award?

PN102

MR COONEY: The current award clause.

PN103

COMMISSIONER CIRKOVIC: What clause was it, sorry?

PN104

MR COONEY: Clause 24.1.

PN105

COMMISSIONER CIRKOVIC: Thank you.

PN106

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN107

MR COONEY: Mr Grant, you have got a copy of that extract from the award?‑‑‑Yes, I do.

*** NICK GRANT XXN MR COONEY

PN108

Thank you. If we look at clause 24.1, an employee is able to be worked without the payment of penalties or overtime, an employee covered by the award, Monday to Friday from 7 am to 6.30 pm, can be altered by up to one hour at either end of the spread, and I understand that the meaning of one hour at either end of the spread has been referred to another Full Bench to exactly what that constitutes, but, for present purposes, I'd say at least an additional hour a day, and that's by agreement, before overtime would be considered. Would you agree with that?‑‑‑Sorry, can you state the question again?

PN109

DEPUTY PRESIDENT GOSTENCNIK: Mr Cooney, before you do, I am not sure what assistance this witness's opinion about the meaning of a particular provision in the award is.

PN110

MR COONEY: Your Honour, the application to vary the award to - - -

PN111

DEPUTY PRESIDENT GOSTENCNIK: I understand what the variation is, but you are asking him about what his opinion is as to that which is permissible under clause 24 and my question is what does it matter what his opinion is?

PN112

MR COONEY: Could I rephrase the question?

PN113

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN114

MR COONEY: Thank you, your Honour.

PN115

Mr Grant, under the award as it stands, is it possible over a one-month period for an employee to be worked 62.5 hours in one week and no hours in the following week?‑‑‑Is it possible they work those hours? Yes, they could work 62.5, whatever the number was, yes.

PN116

Indeed, over a month period, it could be 125 hours over two weeks and zero hours over the other two weeks?‑‑‑I guess theoretically it's possible. I don't know whether I've seen it.

PN117

The request to vary the award would suggest that that amount of flexibility is not adequate as it stands?‑‑‑I'm not sure if that's the driving force. I mean, in the scenario you describe, I would imagine the person would be being paid overtime if they were working those considerable hours in a particular week.

*** NICK GRANT XXN MR COONEY

PN118

I would suggest that they don't get overtime because they'd be working 12.5 hours a day for five days a week between 7 in the morning till 6.30 at night. Typically in awards, you might see a maximum of eight hours a day or 10 hours a day, but for the ordinary hours of work, that's not contained within this award, so what I am suggesting is that it's possible to work those hours without the payment of overtime as it already stands?‑‑‑I think the National Employment Standards kick in when they start working excessive hours anyway and you're going to get overtime if you're working 60 or 70 hours a week.

PN119

This is what the award currently allows, so the award is made in accordance with the National Employment Standards, the NES. My question is the proposed variation to average hours over a six-month period, how would K&L Gates intend to use that particular provision in the sense of what is it trying to remedy, what is it trying to do that it can't do now?‑‑‑It's about matching the work patterns of our award-free staff and our award-covered staff. The majority of our professional roles, lawyers and the like, are award free and they are subject to the requirements of the National Employment Standards. Their hours are going to be averaged over the six-month period. We are trying to just match those sort of approaches, and also I think for a firm like ours and, I believe, most of the other firms that we are representing, a four-week period probably doesn't truly reflect what often are the peaks and troughs in a law firm practice. Often it's a longer period than four weeks and it's more about just reflecting the reality, I think.

PN120

Does K&L Gates use time billing in practice areas?‑‑‑Yes.

PN121

Apart from time billing, is the hours of professional staff, including partners, monitored in any other way, recorded?‑‑‑Sorry, when you say "time billing", there's time entry systems to record it, yes.

PN122

So you could go into your computer systems and you would be able to see when lawyers are working on a file at particular times, but they are not always working on the files, are they, where they are recording time, or maybe they are, but what I'm asking is, has there been any recording or monitoring of how legal professional staff, their particular working hours, so that you can then relate to how award-covered employees might be expected to work their hours?‑‑‑I'm sorry, can you ask the question again? I wasn't quite sure what you were getting at.

PN123

DEPUTY PRESIDENT GOSTENCNIK: I think, in simple terms, what is being asked is whether you also record non-billable hours.

PN124

MR COONEY: Thank you, your Honour.

PN125

DEPUTY PRESIDENT GOSTENCNIK: I assume the answer to that question is "Yes"?‑‑‑Yes, they do record non-billable hours as well, yes.

*** NICK GRANT XXN MR COONEY

PN126

I think the follow-up question was whether you have undertaken any analysis of the combination of the billable and non-billable hours to disclose a pattern of work. Is that what you were getting at, Mr Cooney?

PN127

MR COONEY: Yes, thank you, your Honour.

PN128

DEPUTY PRESIDENT GOSTENCNIK: Did you understand that question, Mr Grant?‑‑‑I do, thank you. Not specifically for this purpose, no.

PN129

MR COONEY: Thank you, your Honour, thank you, Mr Grant.

PN130

DEPUTY PRESIDENT GOSTENCNIK: Any re-examination, Ms Sweatman?

PN131

MS SWEATMAN: No, no questions, thank you.

PN132

DEPUTY PRESIDENT GOSTENCNIK: Mr Grant, thank you for your evidence, you are excused?‑‑‑Thank you.

<THE WITNESS WITHDREW [11.09 AM]

PN133

DEPUTY PRESIDENT GOSTENCNIK: Ms Sweatman?

PN134

MS SWEATMAN: Thank you, your Honour. To go back to the discussion around the special conditions for law graduates, I did want to talk through the history of the award provision which I think informs why it is that we say that the current award provision doesn't work and, for that, I would like to refer to the predecessor - - -

PN135

DEPUTY PRESIDENT GOSTENCNIK: Doesn't work in respect of PLT or doesn't work in respect of each of the three forms of training?

*** NICK GRANT XXN MR COONEY

PN136

MS SWEATMAN: Well, it's inconsistent with how the training works and how the provision was historically intended to apply. So, I guess to put forward my submission very briefly, the predecessor provisions to this clause 39 came from the 2004 Victorian Legal Services Award and, in turn, that came from the 1993 award. There were no equivalent provisions in any of the other pre-reform awards covering lawyers or law graduates or legal professional staff. The historical provision - and I have got copies of the pre-reform awards if that would be of assistance to you - talked about four days of leave for staff to attend to any legal education requirements, and when you look at how legal education requirements was defined, that referred back to legal education requirements at the undergraduate level.

PN137

DEPUTY PRESIDENT GOSTENCNIK: Yes, there were certain subjects that had to be completed which were not necessary for the purposes of obtaining a law degree but were necessary for the purposes of being admitted to practise.

PN138

MS SWEATMAN: Absolutely. In addition to that, there was a separate entitlement of up to three weeks for law graduates or for law trainees or for anyone who had completed their degree who were seeking admission and they were undertaking full-time practical legal training could have up to three weeks' paid leave. Now that three-week paid leave period for employees who were undertaking practical legal training was not carried through to the modern award for reasons that I have not been able to distil from the transcript or the decisions made by the AIRC at the time.

PN139

When the original exposure draft for the Legal Services Award was published by the Commission in September 2009, it referred to leave entitlements for law students, for articled clerks and for law graduates. There was a different group of law firms that put in a submission saying that the four days should be clearly limited to law students. For reasons I have not been able to distil, that was not carried through to the final version of the award and, at the time, the Commission had its attention squarely focused on whether lawyers should be covered by the scope of that award, and ultimately that was determined not to be that lawyers should be covered and the clause that we have ended up with is a clause that is titled as applying to law graduates but which contains the leave provision which had historically applied to law students.

PN140

What we say is that in order for that provision to operate sensibly and taking into account that law graduates are required to meet a number of competencies, they tend to meet those competencies through block training at College of Law, topped up with some other training that they undertake throughout the year, that a bucket of time is the most appropriate way of achieving that, and the bucket of time that has been proposed is, in fact, a week more than what a law graduate would have received for full-time practical legal training in the past and that bucket of time is sufficient, it is double what is actually required in practice for K&L Gates, and certainly my instructions from other law firms who we are representing in these proceedings indicate that a similar time is suitable and that this bucket of time is a more appropriate way of dealing with it.

PN141

This clause has been through a funny history where, in 2004, it was still referring back to the Legal Profession Act of 1958 in terms of the PLT requirements that it was seeking to fulfil. I think this clause has not been given dedicated attention when the award was simplified in 2004 and it was not given specific attention when the award was made in 2009, and it has only really been now, where our clients have been looking at the provisions and have seen that the four days per subject just doesn't correspond with the current regime, which is a series of competencies which are undertaken and assessed through a number of different training programs. You don't turn up to one lecture which is lawyer skills, lawyer skills is demonstrated throughout a number of different training exercises and they are assessed in different ways.

PN142

The document I handed up earlier on the Law Admissions Consultative Committee sets out competencies which have been adopted in one way or another by each of the different States. Today we have been very focused on Victoria and the requirements in Victoria are the same as in New South Wales, we are both operating on the uniform law, but the same PLT competencies have been picked up, whether in the delivery of training or in the assessment of those competencies in one form or another in each jurisdiction of Australia and really reflect the way that law graduates qualify for practice, and the most sensible way for law graduates to be able to fulfil those requirements is to be able to dip into a bucket of leave to meet the different types of training that they undertake at College of Law and others. With respect to - - -

PN143

DEPUTY PRESIDENT GOSTENCNIK: Sorry, Ms Sweatman, do you accept the proposition that is advanced by Mr Cooney that there are three methods by which admission to practise may be obtained?

PN144

MS SWEATMAN: Yes, I do accept that.

PN145

DEPUTY PRESIDENT GOSTENCNIK: Your principal interest and those of the firms that you represent is the first method?

PN146

MS SWEATMAN: That's correct.

PN147

DEPUTY PRESIDENT GOSTENCNIK: But the provision needs to serve the needs of employers and graduates who undertake training or facilitate training under each of the methods.

PN148

MS SWEATMAN: That's right, and my submission would be that what is being proposed by the firms actually gives those employees a more beneficial entitlement than they had historically under the 2004 and 1993 awards. That mode of qualification came with an entitlement to three weeks' paid leave and additional leave only at the discretion of the employer.

PN149

DEPUTY PRESIDENT GOSTENCNIK: Yes, but you haven't been able to persuade Mr Cooney that it is a more beneficial entitlement.

PN150

MS SWEATMAN: Well - - -

PN151

DEPUTY PRESIDENT GOSTENCNIK: Otherwise you would be agreeing, surely.

PN152

MR COONEY: Your Honour, I think you have identified the problem here, which is that there are three modes: the supervised legal training, which I understand is rarely used; practical legal training, which we would accept is the status quo when it comes to a law graduate working within a law firm satisfying the requirements of the various State Legal Admissions Boards, and I accept what Ms Sweatman says when she talks about the bucket of leave, and I think what has happened here is that because there's been a change in how graduates are admitted, what has been lost is the graduate diploma.

PN153

I would accept that while it wouldn't be common for a law firm to have their post-grad not-yet-admitted lawyer doing a graduate diploma, the change sought by the law firms would be a diminution in entitlement for that particular mode of being admitted.

PN154

DEPUTY PRESIDENT GOSTENCNIK: One solution to that would be to simply break up the clause to make provision for leave so far as it concerns persons undertaking PLT or supervised legal training on the one hand and persons undertaking the graduate diploma on the other.

PN155

MR COONEY: Yes, I would accept that, your Honour.

PN156

DEPUTY PRESIDENT GOSTENCNIK: If that were the case, would you accept the proposal advanced by Ms Sweatman in respect of PLT?

PN157

MR COONEY: Your Honour, I would have to get instructions on that. State Secretaries tend not to be all that rapt when the industrial officer comes back and says, "I've just reached agreement."

PN158

DEPUTY PRESIDENT GOSTENCNIK: That would be your problem, Mr Cooney, not mine.

PN159

MR COONEY: But I - - -

PN160

DEPUTY PRESIDENT GOSTENCNIK: Ms Sweatman, would that be something that the firms could live with?

PN161

MS SWEATMAN: I would similarly need to obtain instructions, but the proposal that you are putting would be, I concede, sort of going back to what was provided for under the 2004 award.

PN162

DEPUTY PRESIDENT GOSTENCNIK: The difficulty - - -

PN163

MS SWEATMAN: I would like to make the important note, though, that that was an entitlement that operated only in Victoria, so we would be applying the highest common denominator nationally, which we would have an issue with. In New South Wales, where there's a significant number of employees covered by this award, they would never have had that entitlement. That is bestowing on those employees quite a generous entitlement, and so I don't know that I would be in a position to accept that that would be an appropriate course. In Victoria is one thing, but nationally, where that entitlement did not operate in any way, shape or form, I think we would have some difficulty with accepting that.

PN164

DEPUTY PRESIDENT GOSTENCNIK: But aren't you proposing - sorry, which entitlement is that, the four?

PN165

MS SWEATMAN: The four days for law students, so the way that the award - - -

PN166

DEPUTY PRESIDENT GOSTENCNIK: But that's what their entitlement is now in New South Wales.

PN167

MS SWEATMAN: The way the entitlement is currently set up is that it applies to law graduates not to law students, so law students, as the award is currently framed, do not have that entitlement.

PN168

DEPUTY PRESIDENT GOSTENCNIK: Yes, but all I am proposing - I am not floating that we would change the current entitlement, so that would remain, that is the four hours, which is the entitlement you seek to change, that that would be confined to persons undertaking the graduate diploma and the other two forms would be caught by the provision that you advance.

PN169

MS SWEATMAN: Yes, that would be one way forward.

PN170

DEPUTY PRESIDENT GOSTENCNIK: All right. We might make some provision for both of you to take some instructions on whether or not that is an appropriate outcome and advise us in due course. I interrupted you, Ms Sweatman, keep going.

PN171

MS SWEATMAN: It is certainly a proposition that I would be happy to explore and maybe there could be directions for the filing of submissions around that as a provisional way forward.

PN172

DEPUTY PRESIDENT GOSTENCNIK: Yes. It just seems to me that that gives you and the firms that you represent what they seek in respect of their programs and those who are participating in or provide those sorts of programs and Mr Cooney's organisation probably won't object to that.

PN173

That leaves this other group, who are not represented and about whom we don't have any particular evidence, so I don't want there to be an alteration to the entitlement of persons without understanding precisely what the consequences of the change would be, so, in those circumstances, it would be best not to change it at all, which doesn't close the door to any change in the future but simply recognises the fact that we don't have any evidence about any of those things.

PN174

MS SWEATMAN: Yes, I accept that.

PN175

DEPUTY PRESIDENT GOSTENCNIK: All right, we can make some separate directions to facilitate that, but continue, Ms Sweatman.

PN176

MS SWEATMAN: I only otherwise wanted to make very brief submissions in respect to the proposed variation to provide for the scope to average hours over a period greater than four weeks but not exceeding 26 weeks.

PN177

DEPUTY PRESIDENT GOSTENCNIK: This is a clause that you seek be inserted essentially pursuant to section 63, or the permissive provision in section 63 of the Act?

PN178

MS SWEATMAN: That's right, so there would be a new subclause (b), so new 24.1(b):

PN179

By agreement between an employer and employee, the employee's ordinary hours of work may be arranged on the basis of the weekly average of 38 ordinary hours as averaged over a period which exceeds 28 consecutive days but does not exceed 26 weeks.

PN180

DEPUTY PRESIDENT GOSTENCNIK: What is the specified period?

PN181

MS SWEATMAN: Presently it is 152 hours over a four-week period.

PN182

DEPUTY PRESIDENT GOSTENCNIK: The specified period presently is 28 days.

PN183

MS SWEATMAN: Twenty-eight days, yes.

PN184

DEPUTY PRESIDENT GOSTENCNIK: So what is the specified period in your proposal?‑‑‑Twenty-six weeks.

PN185

No, it's not. The fact is we don't know what the period is because it could be anything greater than 28 days and up to 26 weeks.

PN186

MS SWEATMAN: Yes, so there is no specified period.

PN187

DEPUTY PRESIDENT GOSTENCNIK: Yes, but don't you need one for the purposes of 63?

PN188

MS SWEATMAN: It is proposed to be a period by agreement.

PN189

DEPUTY PRESIDENT GOSTENCNIK: Yes, I know, but my reading of 63 is that a modern award, relevantly, may include terms providing for averaging of hours over a specified period, so that the term itself must specify the period.

PN190

MS SWEATMAN: Yes, I accept that to be the case and we have not specified a period. The proposal that has been put is that that is a period agreed.

PN191

DEPUTY PRESIDENT GOSTENCNIK: The averaging must be agreed as well.

PN192

MS SWEATMAN: Yes.

PN193

DEPUTY PRESIDENT GOSTENCNIK: Yes, because the way in which the non-award and agreement-free provision works is that there must be something in writing which must set out the averaging arrangement and that instrument must specify the period.

PN194

MS SWEATMAN: Yes.

PN195

DEPUTY PRESIDENT GOSTENCNIK: But the period must be no greater than 26 weeks.

PN196

MS SWEATMAN: Yes.

PN197

DEPUTY PRESIDENT GOSTENCNIK: And here, because that regulates the position of individual employees whereas a modern award would regulate the collective position of individual employees, which therefore requires there to be a specified period in the actual instrument, just as the current provision does.

PN198

MS SWEATMAN: Yes.

PN199

DEPUTY PRESIDENT GOSTENCNIK: That is 28 days.

PN200

MS SWEATMAN: Yes.

PN201

DEPUTY PRESIDENT GOSTENCNIK: So that if the law firms are proposing that hours be averaged over 26 weeks or a period of 26 weeks, then it needs to say so.

PN202

MS SWEATMAN: Yes, so that would be the intention that the specified period would be a period of 26 weeks.

PN203

DEPUTY PRESIDENT GOSTENCNIK: Why is that necessary?

PN204

MS SWEATMAN: It is a matter of providing for consistency in the working arrangements between staff in law firms who are covered by the modern award and those who are not. As Mr Grant alluded to, there are certainly peaks and troughs in practice which are not always able to be ironed out over a four-week period. It would assist in alleviating administrative burden for the firms, but otherwise - - -

PN205

DEPUTY PRESIDENT GOSTENCNIK: The reality is, is it not, that in order to meet the averaging, law firms aren't going to allow their graduates or their administrative staff, because they have worked 12 hours on one day, to only work six on another in order to meet the averaging? That is the reality, isn't it?

PN206

MS SWEATMAN: There's law practices and there's law practices. There's a bit more swings and roundabouts in some than others, but, in circumstances where there has been a peak in hours, it - - -

PN207

DEPUTY PRESIDENT GOSTENCNIK: My question is why do you need a period of 26 weeks? If you properly utilise the provision in the current award, why isn't that sufficient? You get an 11 and a-half hour window during the day and you can already average over a 28-day period.

PN208

MS SWEATMAN: Yes, and really the proposition that is being put is that that 28 period is not enough for the types of matters that may be taken on and that there's a greater period of time that would be required to average those hours out and it may be - - -

PN209

DEPUTY PRESIDENT GOSTENCNIK: Where is the evidence for that, Ms Sweatman?

PN210

MS SWEATMAN: We don't have any evidence to put around that.

PN211

DEPUTY PRESIDENT GOSTENCNIK: It just seems to me that if you are going to make out a case that the work flow is such that you are going to require a greater window, certainly one of 26 weeks' duration, then you would really want to bring some evidence about workload fluctuations, otherwise perhaps the law firms shouldn't be as ambitious as 26 weeks and look for something that perhaps Mr Cooney might be able to accommodate.

PN212

MS SWEATMAN: Yes. I understand what you are saying, your Honour, and I don't have any further submissions to make around that.

PN213

DEPUTY PRESIDENT GOSTENCNIK: Mr Cooney?

PN214

MR COONEY: Your Honour, all we would add to that in opposing the sought variation is that it is possible, as things stand, for award-covered employees to work longer than those hours, albeit with the payment of penalties and overtime. It would be a cost to those employees if the award variation was to be made. As Mr Grant put, there hasn't been any fulsome analysis of how the proposed variation would operate in practice in the sense of looking at what hours people would be required to work. We rely on what is already filed and don't have anything further to put on that, your Honour.

PN215

DEPUTY PRESIDENT GOSTENCNIK: I suppose the issue for the averaging hours, at least for some firms, would be this, perhaps not so much in respect of the period over which averaging can occur, the 28 days, but more so the hours' window of 7 am to 6.30 pm is probably more problematic, certainly for firms that have international practices where they are dealing with clients who are on the other side of the globe or who are involved in a major acquisition where due diligences are occurring and documents are being reviewed and so forth. I am not unsympathetic to the position that some law firms find themselves in in terms of the averaging hours, but, from my perspective, the problem is not so much on the period but it's the span that is difficult to accommodate.

PN216

MR COONEY: Your Honour, there are shift work provisions in the award. I accept we are probably talking about discrete occasions when you might need to contact New York or whatever it might be - I don't know, I've never been a commercial lawyer - but I imagine that that would be quite well remunerated practices and that again it doesn't prevent an employee from working those hours, it just comes at a cost.

PN217

DEPUTY PRESIDENT GOSTENCNIK: I think the issue of the averaging hours is to allow for those ordinary hours to be worked in a more flexible span, but I understand the point, and ultimately the position is that those who are proposing the change bear the evidentiary onus of establishing the case for change.

PN218

MR COONEY: Yes, your Honour.

PN219

DEPUTY PRESIDENT GOSTENCNIK: Is there anything else, Mr Cooney?

PN220

MR COONEY: No, your Honour.

PN221

DEPUTY PRESIDENT GOSTENCNIK: Anything in reply, Ms Sweatman?

PN222

MS SWEATMAN: No, nothing in reply, so perhaps if we could discuss a suitable time frame for the directions we discussed earlier?

PN223

DEPUTY PRESIDENT GOSTENCNIK: Yes, can I leave it on this basis, Ms Sweatman: if you and Mr Cooney could have a discussion about some consent directions and send it to my Chambers and I will consult with my colleagues and then we can issue some directions which suit at least the principal parties to the proceedings today. That is in respect of the law graduates and splitting up of the leave arrangements.

PN224

All right, thank you for your submissions and your input. We will adjourn.

ADJOURNED INDEFINITELY [11.33 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

NICK GRANT, AFFIRMED................................................................................. PN19

EXAMINATION-IN-CHIEF BY MS SWEATMAN.......................................... PN19

EXHIBIT #1 STATEMENT OF NICK GRANT, DATED 21/02/2018, COMPRISING 31 PARAGRAPHS, TOGETHER WITH ANNEXURE NG-1.............................. PN30

EXHIBIT #2 DOCUMENT TITLED "PRACTICAL LEGAL TRAINING COMPETENCY STANDARDS FOR ENTRY LEVEL LAWYERS".......................................... PN37

CROSS-EXAMINATION BY MR COONEY..................................................... PN51

THE WITNESS WITHDREW.............................................................................. PN70

NICK GRANT, RECALLED................................................................................ PN70

CROSS-EXAMINATION BY MR COONEY, CONTINUING........................ PN70

EXHIBIT #3 DOCUMENT PREPARED BY THE VICTORIAN LEGAL ADMISSIONS BOARD TITLED "SUPERVISED LEGAL TRAINING", VERSION 3, DATED 31/08/2017................................................................................................................................... PN98

THE WITNESS WITHDREW............................................................................ PN132