Last updated: October 17, 2024
Visual Thing Australia Pty Ltd (Visual Thing) is a post-production company specialising in photographic retouching.
Visual Thing was found to have engaged in various contraventions of the FW Act, including by requiring an employee, Ms Chin, to work unreasonable additional hours and by taking unlawful adverse action against her.
Ms Chin was employed as a full-time Creative Retouching Specialist in 2014, covered by the Graphic Arts, Printing and Publishing Award 2020 (Graphic Arts Award) before she was dismissed on 6 August 2022.
Ms Chin claimed that Visual Thing contravened the FW Act by requiring her to work 40 hours per week for a continuous period over six years and failing to pay overtime rates for hours worked in excess of 38 ordinary hours per week.
Ms Chin’s employment contract stated that her standard hours of work are 40 hours per week and additional overtime may be required. These 40 standard hours were paid as “ordinary hours”, and her payslips demonstrated that she was not paid any overtime penalty rates for working more than 38 hours.
Visual Thing claimed that they had offset any overtime penalty rates in Ms Chin’s annual salary. However, the Court determined that Visual Thing could not offset their obligation to pay overtime under the Graphic Arts Award. This was due to the absence of any communication, understanding, or agreement between Visual Thing and Ms Chin that part of her salary would cover overtime rates for work exceeding 38 hours per week. Additionally, the Court found that the extra two hours of work each week were not reasonable.
What are reasonable additional hours?
This case examined whether Ms Chin worked unreasonable additional hours within the meaning in the FW Act.
The FW Act provides that an employer must not request or require a full-time employee to work more than 38 hours in a week unless the additional hours are reasonable.
There are several factors listed in the FW Act that determine whether additional hours are reasonable, including whether the employee is entitled to receive overtime payments, penalty rates or is paid an amount that reflects an expectation of working additional hours.
Ms Chin’s full-time employment was covered by the Graphic Arts Award. The award outlines that full-time employees may work up to 38 ordinary hours per week, with overtime penalties applying for hours worked more than 38 hours per week.
Ms Chin’s 40-hours of work each week were paid as “ordinary hours” which was in contravention of the Graphic Arts Award. Visual Thing could not “offset” their obligations to pay overtime under the Award because they did not communicate that this was their intention when Ms Chin was first employed.
Lessons for employers
Modern awards supplement the National Employment Standards by setting out the minimum conditions of employment for particular industries and occupations.
Full-time employees work up to 38 ordinary hours in a week but may be required to work additional hours if they are reasonable. As highlighted in this case, the 2 additional hours worked by Ms Chin were held to be unreasonable, because Visual Thing incorrectly categorised them as ordinary hours when they should have been overtime and paid at penalty rates.
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