COVID-19 update

Members will be aware that the Chief Health Officer has given new directions which came into force from 11:59 pm on 10 June 2021.  The directions which primarily affect members’ ability to return to chambers are the Workplace Directions (No 32) and the Stay Safe Directions (Metropolitan Melbourne).

These directions include restrictions on work in an office-based environment.  They also include restrictions on travel over 25km from a person’s primary place of residence except in certain circumstances. 

As the restrictions are of broad application, their wording is not particularly well targeted to the work of barristers in chambers. However, the Victorian Bar provides the following information to assist you to navigate the directions and plan your own attendance in chambers.

As neither the Victorian Bar nor BCL employs barristers, and each barrister operates their own business and has control of their own leased chambers, the Victorian Bar and BCL do not dictate each barrister’s attendance in chambers. Each barrister must make their own decisions about their attendance in chambers in compliance with the directions.

Travel to chambers

The Stay Safe Directions (Metropolitan Melbourne) do not restrict work in chambers for those who reside within 25km of chambers.

However, cl 5(3) of the Stay Safe Directions (Metropolitan Melbourne) restricts the ability of a person residing in Metropolitan Melbourne to travel further than 25km from a person’s primary place of residence except in certain circumstances set out in the directions.

For those who reside more than 25km from chambers, but within Metropolitan Melbourne, cl 8(2) of the Stay Safe Directions (Metropolitan Melbourne) provides:

1. A person who ordinarily resides in Metropolitan Melbourne may travel further than 25km from the premises at which they ordinarily reside under subclause (1)(a) only if attending work in:
   1. Victoria if:
      1. it is not reasonably practicable for the person to work from the premises where they ordinarily reside or another suitable premises; and
      2. in relation to office-based work premises, if the person who has employed or engaged the person to work has advised that it is permissible for them to do so in accordance with the Directions currently in force.’

The Workplace Directions (No 32) set out the circumstances in which an employer may permit employees to attend work at office-based work premises.  In those Directions:

1. An ‘employer’ means ‘a person who owns, operates or controls Work Premises (or a Work Premises) and includes a person who is self-employed’;
2. An ‘employee’ includes ‘a person who is self-employed’; and
3. Work Premises relevantly means ‘the premises of an employer in which work is undertaken’

It therefore appears that each barrister, being a self-employed person who operates or controls their own chambers, is both an ‘employer’ and an ‘employee’ and that their individually leased chambers is Work Premises. 

Clause 5(1)(a) of the Workplace Directions (No 32) provides that in relation to office-based Work Premises, an employer may permit workers to attend work from the employer’s Work Premises if it is not reasonably practicable for the worker to work at the premises where the worker ordinarily resides. 

It therefore appears that barristers who reside further than 25km from chambers may permit themselves to attend chambers if it is not reasonably practicable for them to work from their ordinary residence.

Working from chambers in accordance with your COVIDSafe Plan

Clause 6(2) of the Workplace Directions (No 32) provides that for each Work Premises, an employer must have in place a COVIDSafe Plan and comply with it.  Each barrister who returns to work in chambers should therefore complete and retain a COVIDSafe Plan for their own chambers.  A template can be found here: https://www.coronavirus.vic.gov.au/covidsafe-plan.

Members have enquired about the application of the restrictions limiting the number of employees allowed in offices.  Pursuant to clause 6(1)(c) of the Workplace Directions (No 32), for office-based Work Premises where fewer than 40 workers ordinarily work, employers must use their best endeavours to ensure that no more than 10 workers work at there any one time.  The limit of 10 workers is in addition to those for whom it is not reasonably practicable to work from their residence.  It therefore appears that the restriction on the number of workers at work premises will not affect barristers as they are unlikely to have more than 10 people working in individual chambers.

BCL has a COVIDSafe Plan for the shared areas and is responsible for managing the return to chambers of its employees who work in the shared areas.  You can view it here: https://www.bcl.net.au/covid-19-safetyinchambers/

Visitors to chambers and record keeping

There is no restriction on visitors, instructors or clients entering chambers.

However, clause 6(6) of the Workplace Directions (No 32) requires an employer to keep a record of all workers and all visitors who attend the Work Premises.  The details must include the visitor’s first name, surname, contact telephone number, the date and time they attended and the areas of the Work Premises which they visited.

In order to comply with this requirement, BCL’s COVIDSafe Plan requires all visitors to scan the QR code at the entrance of each chambers.  When you receive visitors, you should ask them to do this. 

If you invite visitors into your own chambers rather than a shared meeting room, you should keep your own record of the above details.  A template record keeping log is available here: Signs, posters and templates for your workplace | Coronavirus Victoria

It appears pursuant to cl 6(7) that use of the Services Victoria QR code facility is now mandatory unless it is not reasonably practicable.  However, the note to that clause indicates that a business for whom use of the app was not mandatory before 10 June 2021 will not be penalised for failing to use it.  Use of the Services Victoria QR code facility was not mandatory for barristers before 10 June 2021.

Density quotients

Clause 6(17) of the Workplace Directions (No 32) imposes a density quotient in any shared spaces  of no more than 1 person per 4 square metres of space.  Please be mindful of this when using shared spaces such as tearooms, print rooms or meeting rooms.

You should take care to observe this when inviting visitors into shared meeting rooms or into their own chambers.

If your chambers are shared and the size of your chambers does not permit all occupants to be present at the same time in line with the density quotient, you will need to manage attendance with those you share with.

Face masks

Clause 6(1) of the Workplace Directions (No 32) requires workers to wear a face covering at all times.  There are several exceptions which are listed in clause 5(13) of the Stay Safe Directions (Metropolitan Melbourne).  These include:

1. the nature of a person’s work or education means that clear enunciation or visibility of the mouth is essential; or
2. the person is working by themselves in an enclosed indoor space (unless and until another person enters that indoor space).

You are therefore not required to wear a mask whilst working alone in your chambers, but must wear a mask in the shared areas.  If you receive visitors, you should ensure that they also wear masks when in the same space as others.

Familiarising yourself with the directions

This information is provided for your assistance, but of course the application of the relevant directions to each particular circumstance is a matter of legal interpretation.  Each barrister is responsible for reading them and forming their own conclusions about their obligations as a self-employed person.

The information given above is designed to assist you to navigate the directions but is not a comprehensive list of all your obligations.

You can find the full text of the directions here: https://www.dhhs.vic.gov.au/victorias-restriction-levels-covid-19

Each member is encouraged to read the full text of the directions and ensure that they comply with them.