Chin v Visual Thing Australia Pty Ltd
[2024] FedCFamC2G 896
•13 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chin v Visual Thing Australia Pty Ltd [2024] FedCFamC2G 896
File number(s): MLG 2288 of 2022 Judgment of: JUDGE J YOUNG Date of judgment: 13 September 2024 Catchwords: INDUSTRIAL LAW – general protections –adverse action – whether the applicant worked unreasonable additional hours within the meaning of s 62 of the Fair Work Act 2009 (Cth) – whether the applicant worked overtime within the meaning of the Graphic Arts, Printing and Publishing Award 2020 ––whether the first respondent failed to pay the applicant overtime rates – consideration of the principles of set-off and restitution based on common mistake – consideration of the applicant’s classification under the Award – consideration of the kind of work and duties which constituted the major and substantial part of the applicant’s employment – whether adverse action taken against applicant – reverse onus not discharged by employer in relation to two of six instances of adverse action - contravention of s 340(1) of the Fair Work Act 2009 (Cth) established - found accessorial liability of the second and third respondent for the two established instances of adverse action. Legislation: Fair Work Act 2009 (Cth) ss 44, 45, 62, 90, 117, 340, 341, 342, 360, 361, 387, 550
Graphic Arts, Printing and Publishing Award 2010
Graphic Arts, Printing and Publishing Award 2020 cll 2.2, 3.3, 9.1, 17, 23.2, 28.1(a), 28.2, 31.7
Part 3-1 of the FW Act
Cases cited: Aitken v Virgin Australia Airlines [2013] FCCA 981
Auimatagi v Australian Building and Construction Commissioner (2018) 363 ALR 246; [2018] FCAFC 191
Australasian Meat Industry Employees Union v Dick Stone [2022] FCA 512
Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 261 FCR 347
Australian Building and Construction Commissioner v Parker [2017] FCA 564
Barclays Bank v W.J Simms Ltd (1980) QB 677
Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222
City of Wanneroo v Holmes (1989) 30 IR 362
Community and Public Sector Union v Telstra Corp Ltd (2000) 99 IR 238; [2000] FCA 844
Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48
Devine Marine and EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134
Devonshire v Magellan Powertronics Pty Ltd [2013] FMCA 207
Employment Advocate v National Union of Workers (2000) 100 FCR 454
Enkel v We R Finance Pty Ltd [2020] FCA 1668
Equuscorp Pty Ltd v Haxton [2012] HCA 7, (2012) 246 CLR 498
Fair Work Ombudsman & Foot & Thai Massage [2021] FCA 1241
Fair Work Ombudsman v Al Hilfi [2012] FCA 1166
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365
Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 4) [2021] FCA 1242
Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034
Fair Work Ombudsman v Hu (No 2) [2018] FCA 1034
Fair Work Ombudsman v Hu [2019] FCAFC 133
Holt v Markham [1923] 1 KB 504
Hookway v Racing Victoria [2005] VSCA 310
Jones v Queensland Tertiary Admission Centre Ltd (No 2) [2010] FCA 399
Joshi v Panasonic Australia Pty Ltd [2010] FWA 2946
Linkhill Pty Ltd v Director, Office of the Fair Work Building Industry Inspectorate (2015) 240 FCR 578
Mann v Peterson [2019] HCA 32
Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677
Morton v Commonwealth Scientific and Industrial research Organisation (No 2) [2019] FCA 1754
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1; [1998] HCA 30
Peters v Commonwealth of Australia [2021] FCA 1624
Potter v Fair Work Ombudsman [2014] FCA 187
Sabapathy v Jetstar Airways Ltd [2021] FCAFC 25; 283 FCR 348
Sayed v CFMEU [2015] FCA 27
Shum v Southern Migrant and Refugee Centre [2020] FCCA 214
Textile Clothing and Footwear Union of Australia v Givoni [2002] FCA 1406
Wilkinson v Wilson Security Pty Ltd (No 3) [2024] FCA 705
WorkPac Pty Ltd v Rossato (2020) 278 FCR 179
Division: Division 2 General Federal Law Number of paragraphs: 306 Date of last submission/s: 30 October 2023 Date of hearing: 2-4 October 2024 Place: Melbourne Counsel for the Applicant: Mr Aleksov Solicitor for the Applicant: AJH Lawyers Counsel for the First, Second and Third Respondents: Mr Lettau Solicitor for the First, Second and Third Respondents: Tucker Partners ORDERS
MLG 228 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FANG CHIN
Applicant
AND: VISUAL THING AUSTRALIA PTY LTD (ACN 101 039 15)
First Respondent
PAUL GERMANO
Second Respondent
ASHLEY PEAT
Third Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
13 SEPTEMBER 2024
THE COURT DECLARES THAT:
1.Pursuant to admissions made by the First Respondent:
(a)the First Respondent contravened s 44 of the Fair Work Act 2009 (Cth) (FW Act) by failing to provide the Applicant with the requisite notice upon termination of employment or payment in lieu of notice in breach s 117 of the FW Act;
(b)the First Respondent contravened s 44 of the FW Act by failing to pay the Applicant accrued but unused annual leave entitlements upon termination of employment in breach of s 90 of the FW Act;
(c)the First Respondent contravened s 45 of the FW Act by failing to provide copies of the Graphic Arts, Printing and Publishing Award 2020 (Award) and the National Employment Standards prescribed by cl 3.3 of the Award;
(d)the First Respondent contravened s 45 of the FW Act by failing to pay the Applicant annual leave loading as prescribed by cl 31.7 of the Award and in breach of s 90 of the FW Act.
AND THE COURT FURTHER DECLARES THAT:
2.The First Respondent contravened ss 44 and 45 of the FW Act by requesting or requiring the Applicant to work unreasonable additional hours in breach of s 62 of the FW Act and cl 9.1 of the Award.
3.The First Respondent contravened s 45 of the Fair Work Act 2009 (Cth) (FW Act) by failing to pay the Applicant overtime rates for hours worked in excess of 38 hours in accordance with cl 28.2 of the Graphic Arts, Printing and Publishing Award 2020 (Award).
4.The Applicant is classified at Level 6 under the Award.
5.The First Respondent contravened s 340(1) of the FW Act by taking adverse action against the Applicant for a prohibited reason by cancelling the Applicant’s pre-approved leave for the period 16 – 18 June 2021.
6.The First Respondent contravened s 340(1) of the FW Act by taking adverse action against the Applicant for a prohibited reason by imposing a new leave rule.
7.The Second Respondent was involved, within the meaning of s 550 of the FW Act, in each of the contraventions referred to in declaration 5 and 6 herein.
8.The Third Respondent was involved, within the meaning of s 550 of the FW Act, in each of the contraventions referred to in declaration 5 and 6 herein.
THE COURT ORDERS THAT:
9.Other than in respect of the declarations above, the Applicant’s Amended Application filed on 24 August 2023 be dismissed.
10.The First Respondent’s cross-claim be dismissed.
AND THE COURT FURTHER ORDERS THAT:
11.The matter be listed for Directions Hearing in relation to penalties and compensation on a date to be fixed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
[1]
SUMMARY OF FINDINGS
[7]
BACKGROUND
[10]
CLAIMS
[15]
REQUIRING MS CHIN TO WORK EXCESS HOURS
[15]
Applicable legislative and award provisions
[15]
Consideration
[18]
Was there any risk to employee health and safety from working the additional hours?
[24]
Personal circumstances
[29]
Needs of the workplace
[31]
Entitlement to overtime payments
[32]
Notice given by the employer of any request or requirement to work the additional hours
[35]
Notice given by the employee of his or her intention to refuse to work the additional hours
[36]
The usual patterns of work in the industry
[39]
The nature of the employee’s role and the employee’s level of responsibility
[41]
Whether the additional hours are in accordance with an averaging term
[42]
Other matters
[43]
FAILURE TO PAY OVERTIME RATES
[47]
Applicable legislative and award provisions
[47]
Consideration
[51]
Set-off
[52]
Restitution
[60]
CLASSIFICATION UNDER THE AWARD
[72]
Applicable law and award provisions
[74]
Consideration
[78]
ADVERSE ACTION CLAIMS
[101]
Applicable legislation and law
[101]
Workplace right
[106]
Adverse action
[107]
Workplace rights
[114]
Adverse actions
[116]
FIRST ADVERSE ACTION CLAIM – DENIAL OF ALTERNATIVE WORK ARRANGEMENTS
[119]
Consideration
[123]
Wage Inquiry
[123]
Alternative Work Arrangement Inquiries
[129]
Does the Denial of Alternative Work Arrangements constitute adverse action?
[142]
Decision-maker
[146]
Reasons for the adverse action
[147]
Not motivated by the Wage Inquiry or the Alternative Work Arrangements Inquiries
[151]
SECOND ADVERSE ACTION CLAIM – CANCELLATION OF PRE-APPROVED
[154]
Does the Cancellation of Pre-Approved Leave constitute adverse action?
[157]
Decision-maker
[161]
Reasons for the adverse action
[162]
THIRD ADVERSE ACTION CLAIM – NEW LEAVE RULE
[174]
The New Leave Rule
[178]
Does the 10 June Email constitute adverse action?
[182]
Decision-maker
[189]
Reasons for the adverse action
[190]
FOURTH ADVERSE ACTION CLAIM – INAPPROPRIATE CONDUCT ALLEGATIONS
[208]
Decision-maker
[212]
Reasons for the adverse action
[213]
17 June Incident
[213]
FIFTH ADVERSE ACTION CLAIM– PURPORTED INVESTIGATION
[235]
Decision-maker
[244]
Reasons for the adverse action
[245]
SIXTH ADVERSE ACTION CLAIM – WARNING LETTER
[266]
Decision-maker
[270]
Reasons for the adverse action
[271]
ACCESSORIAL LIABILITY
[274]
Section 550 of the FW Act
[274]
Legal principles regarding accessorial liability
[276]
Accessorial Liability
[282]
Failure to provide notice or payment in lieu of notice
[283]
Failure to pay accrued but untaken leave entitlements
[286]
Failure to provide copies of the Award and the NES
[290]
Failure to pay annual leave loading
[294]
Accessorial Liability
[295]
Unreasonable additional hours
[295]
Failure to Pay Overtime Rates
[297]
Second Adverse Action – Cancellation of Pre-Approved Leave
[299]
Third adverse action – New Leave Rule
[302]
FUTURE CONDUCT
[305]
JUDGE J YOUNG
INTRODUCTION
Before the Court are claims by the Applicant, Ms Chin, against the Respondents for contraventions of the Fair Work Act 2009 (Cth) (FW Act) and the Graphic Arts, Printing and Publishing Award 2020 (Award).
It is uncontested that in her employment with the First Respondent, Visual Thing Australia Pty Ltd (Visual Thing), Ms Chin was covered by the Award.
Ms Chin’s claims against Visual Thing are as follows:
(a)failure to provide Ms Chin with requisite notice upon termination, or alternatively payment in lieu of notice, in contravention of the National Employment Standards (NES) prescribed by s 117 of the FW Act (contravention of s 44 of the FW Act, Failure to provide the requisite notice upon termination or payment in lieu of notice);
(b)failure to pay Ms Chin the accrued but unused leave entitlements upon termination, in contravention of the NES prescribed by s 90 of the FW Act (contravention of s 44 of the FW Act, Failure to pay accrued but untaken leave entitlements);
(c)requiring or requesting Ms Chin to work 40 hours a week as a standard that was contractually required under her employment contract throughout a continuous period of over six (6) years, in contravention of the NES prescribed by s 62(1) of the FW Act, or alternatively, requiring or requesting Ms Chin to work more than an average of 38 hours per week as prescribed by clause 9.1 of the Award (contravention of s 44 of the FW Act, alternatively of s 45 of the FW Act, Requiring Ms Chin to work excess hours);
(d)failure to pay overtime rates to Ms Chin for hours worked in excess of 38 hours as prescribed by clause 28.1(a) and 28.2 of the Award (contravention of s 45 of the FW Act, Failure to pay overtime rates);
(e)failure to provide copies of the Award and NES as prescribed by clause 3.3 of the Award (contravention of s 45 of the FW Act, Failure to provide copies of the NES and Award);
(f)failure to pay Ms Chin annual leave loading as prescribed by clause 31.7 of the Award and in contravention of the NES prescribed by s 90 of the FW Act (contravention of s 45 of the FW Act, Failure to pay annual leave loading); and
(g)taking adverse actions against Ms Chin for a proscribed reason (contraventions of s 340 of the FW Act, Adverse action against Ms Chin).
Visual Thing admits the following contraventions:
(a)Failure to provide the requisite notice upon termination or payment in lieu of notice;
(b)Failure to pay accrued but untaken leave entitlements;
(c)Failure to provide copies of the NES and Award; and
(d)Failure to pay annual leave loading (collectively, the Admitted Contraventions).
Accordingly, the claims for determination by the Court are:
(a)Requiring Ms Chin to work excess hours;
(b)Failure to pay overtime rates;
(c)Ms Chin’s classification under the Award;
(d)Adverse action against Ms Chin; and
(e)Visual Thing’s Cross-Claim (collectively, the Claims for Determination).
In addition, Ms Chin claims that the Second Respondent, Paul Germano, and the Third Respondent, Ashley Peat were accessories under s 550 of the FW Act to Visual Thing’s contraventions (Accessorial Liability Claims).
SUMMARY OF FINDINGS
In relation to the Claims for Determination, I find that:
(a)Visual Thing required Ms Chin to work unreasonable additional hours in breach of s 62 of the FW Act and clause 9.1 of the Award and thereby contravened s 44 and 45 of the FW Act respectively;
(b)Visual Thing failed to pay Ms Chin overtime rates in accordance with clause 28.2 of the Award and thereby contravened s 45 of the FW Act;
(c)Ms Chin was most appropriately classified at Level 6 of the Award;
(d)Visual Thing took adverse action against Ms Chin in breach of Part 3-1 of the FW Act by on 4 June 2021 cancelling her pre-approved annual leave for the period 16–18 June 2021; and
(e)Visual Thing took adverse action against Ms Chin in breach of Part 3-1 of the FW Act by imposing a new leave rule on 10 June 2021; and
(f)Visual Thing’s cross-claim has no merit.
In relation to the Accessorial Liability Claims, I find that:
(a)Mr Germano and Mr Peat are not liable as accessories to the contraventions pursuant to s 550 of the FW Act in relation to the Admitted Contraventions;
(b)Mr Germano and Mr Peat are liable as accessories to the breach of Part 3-1 of the FW Act arising from the cancellation on 4 June 2021 of Ms Chin’s pre-approved annual leave for the period 16–18 June 2021; and
(c)Mr Germano and Mr Peat are liable as accessories to the breach of Part 3-1 of the FW Act arising from the imposition of a new leave rule on 10 June 2021.
My reasons for these findings follows.
Not every piece of evidence or submission made in this matter is referred to in these reasons. However, I have given consideration to all the evidence presented and all the submissions made.
BACKGROUND
Visual Thing is a post-production company that specialises in photographic retouching and offers other services of finished art, video editing, and photography.
Mr Peat co-founded Visual Thing with Michael Dore-Smith in 2002. Mr Peat and Mr Dore-Smith are directors of Visual Thing. Mr Germano was the Studio Manager of Visual Thing and became a director of Visual Thing in 2018.
Mr Peat and Mr Germano hold the role of Account Managers, while Mr Dore-Smith holds the role of Head of Creative.
Ms Chin is a Malaysian national and first arrived in Australia in 2006 to undertake studies and training. She was initially engaged by Visual Thing as a contractor retoucher in 2012 and was subsequently employed as a full-time Creative Retouching Specialist in 2014. In 2016, Ms Chin was sponsored by Visual Thing for her permanent residency application.
Ms Chin’s employment with Visual Thing was terminated on 6 August 2022.
CLAIMS
REQUIRING MS CHIN TO WORK EXCESS HOURS
Applicable legislative and award provisions
Section 62 of the FW Act imposes a statutory limitation on the number of hours an employee may be required or requested to work and relevantly provides as follows:
Maximum weekly hours of work
(1)An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:
(a) for a full-time employee — 38 hours [,]
…
Employee may refuse to work unreasonable additional hours
(2)The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable.
Determining whether additional hours are reasonable
(3)In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:
(a)any risk to employee health and safety from working the additional hours;
(b)the employee's personal circumstances, including family responsibilities;
(c)the needs of the workplace or enterprise in which the employee is employed;
(d)whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;
(e)any notice given by the employer of any request or requirement to work the additional hours;
(f)any notice given by the employee of his or her intention to refuse to work the additional hours;
(g)the usual patterns of work in the industry, or the part of an industry, in which the employee works;
(h)the nature of the employee's role, and the employee's level of responsibility;
(i)whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;
(j)any other relevant matter.
Clause 9.1 of the Award provides the definition of a full-time employee under the Award as follows:
A full-time employee is a weekly employee whose ordinary hours of work must not exceed an average of 38 hours per week.
Section 62 of the FW Act is a NES provision. Contravention of s 62 of the FW Act constitutes a contravention of s 44 of the FW Act which is a civil remedy provision. Contravention of a term of the Award constitutes a contravention of s 45 of the FW Act which is a civil remedy provision.
Consideration
Ms Chin was employed under a written contract of employment dated 9 July 2014 (Contract).
Clause 1.6 of the Contract provides that the “standard hours of work are 40 hours per week, Monday to Friday, 9.00 am sharp to 6.00 pm, with 1 hour lunch break. Additional overtime may be required to meet tight deadlines”.
Clause 2.1 of the Contract further provides that “The Company will pay the Employee a salary package of $55,000 per annum before super. This package is based on a full time permanent position. Overtime will be accrued and calculated at an hourly rate”.
In light of the terms of the Contract, I am inclined to the view that Visual Thing required Ms Chin to work 40 hours per week, as contemplated by s 62(1) of the FW Act.
Notwithstanding Mr Peat and Mr Germano’s evidence regarding the use of “WorkflowMax” and that Ms Chin’s recorded time never exceeding 37 hour per week, and that the 40 hours therefore included some “down time”, I did not understand it to be contested that throughout her employment Ms Chin did, in fact, work 40 hours per week (with varying hours during the COVID-19 pandemic in 2020) and that this was required by Visual Thing. Further, the payslips in evidence before the Court which cover the period 2015 – 2022 confirm that Ms Chin worked and was paid for 40 ordinary hours per week. Accordingly, even if it be that the Contract did not “require” Ms Chin to work 40 hours per week for the purposes of s 62(1) of the FW Act, although I consider it did, it is enough that Visual Thing requested this.
At issue therefore, is whether it was “reasonable” for Visual Thing to require or request Ms Chin to work the two additional hours every week. The burden of proof lies with Visual Thing: Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 4) [2021] FCA 1242 at [474], where Katzmann J said:
The effect of s 62(1) is that requiring or requesting a full-time employee to work in excess of 38 hours is prima facie unreasonable but that there is an exception if it is reasonable for such a requirement or request to be made. In such a case, the burden rests on the respondent employer to prove that the excess hours were reasonable see, for example, Currie v Dempsey (1967) 69 SR (NSW) 116 at 125 (Walsh JA). What is “reasonable” is necessarily assessed on a case-by case basis, by reference to the employee’s circumstances and the employer’s business in accordance with the terms of s 62(3): BHP Coal [Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298] at [173].
What is reasonable in any given case depends on an evaluation of the particular circumstances of both the employee and the employer having regard to all relevant matters including those matters mandated for consideration in s 62(2). I address each of these matters in the order in which they appear in that subsection, in so far as they are presently relevant.
Was there any risk to employee health and safety from working the additional hours?
Ms Chin submits that there were risks to her health and safety in being required to work 40 hours per week for such a protracted period of time. She submits that to the Respondents’ knowledge she had a long history of mental health challenges. This appears uncontested. The Respondents in their own submissions acknowledge Ms Chin’s reported mental health challenges. Ms Chin’s evidence is that the additional hours were unreasonable, including because they contributed to her burnout, exacerbated her poor mental health and hindered her recovery.
The Respondents submit that Ms Chin has not provided any evidence correlating her mental health issues with working a 40 hour week. I accept that submission. Under cross-examination Ms Chin conceded this, saying that she was focussed on recovery and treatment and that “thinking about the law regarding work hours was not the priority”, and referred the Court to the following documents which are annexed to her affidavit:
(a)Worker’s Injury Claim Form;
(b)Report by Dr Timothy Entwistle; and
(c)Report by Work Able Consulting.
Firstly, I do not accept Ms Chin’s evidence that the reason she did not provide any evidence correlating her mental health issues with working 40 hours a week is because thinking about the law regarding work hours was not a priority. Whilst I accept that Ms Chin’s focus may have been on her recovery, Ms Chin presented as a most, perhaps overly, particular, scrupulous and assertive witness. I consider that if Ms Chin considered that working 40 hours per week rather than 38 hours per week gave rise to a risk to her health and safety she would, firstly, have clearly articulated this and secondly, would have documented it and there would be evidence of this. Secondly, I accept the Respondents’ submission that the documents are hearsay. Accordingly, the weight to be given to them, if any, needs to be carefully considered. Thirdly, whilst I accept that Ms Chin suffered from work related stress, the Worker’s Injury Claim Form was completed by Ms Chin and is not medical evidence of any kind. I also note that the Worker’s Injury Claim Form states that Ms Chin first noticed her work related injury in September 2020 but did not report it to Visual Thing until February 2021. Fourthly, under cross-examination Ms Chin said that:
(a)her mental health issues commenced in 2016 as a result of an abusive relationship with her domestic partner;
(b)she worked 40 hours per week between April 2016 and April 2020 during which period she had a substantial recovery from her mental health issues; and
(c)she stopped seeing her psychologist in around April 2020 and stopped her medication a few months after that.
Fifthly, Ms Chin’s affidavit evidence is that:
(a)she ceased medication in 2020 as she had “been feeling well for the past 6-12 months”;
(b)her PTSD was triggered again in September 2020 when she began fostering a large ex-racing greyhound during lockdown;
(c)in January 2021 her difficult relationship with her mother exacerbated her poor mental health; and
(d)in early February 2021 she had a relationship breakup which “had a big effect on [her] emotionally”.
Whilst her evidence is also that around September 2020 work became very busy and the work environment became “increasingly toxic”, overall I consider Ms Chin’s evidence is difficult to reconcile with her submission that there were risks to her health and safety in being required to work 40 hours per week from 2014 until 2020. It is also inconsistent with her evidence that absent working the additional hours she could have used this time for other things, including taking on freelance work to advance external career development.
Personal circumstances
Ms Chin is an immigrant to Australia and her employment with Visual Thing was her first full-time employment in Australia. Ms Chin’s evidence is that she had no knowledge of Australian employment law and Visual Thing did not provide her with the NES or the Award during her employment, nor was she provided with the Fair Work Information Statement upon commencement of employment. I accept that evidence.
Ms Chin submits that there is a notional power imbalance between a visa-sponsoring employer and a sponsored employee which acts as a barrier to the employee making complaints and inquiries. Her affidavit evidence is to this effect also. I reject that evidence and those submissions. While it may be the case that such a power imbalance could be said to exist as a general proposition, I do not accept that this was the case for Ms Chin. As already set out above, Ms Chin presented as a most particular and assertive witness. I do not consider that Ms Chin perceived there to be any barrier to her raising complaints and inquiries. Further, the evidence before the Court establishes, in my view, that Ms Chin felt not only able to raise complaints and inquiries with Visual Thing, she did so. Whilst I accept that this occurred after her visa status had been confirmed, I consider it representative of an absence on Ms Chin’s behalf of any perceived power imbalance or barrier. Additionally, Ms Chin’s evidence is that she raised complaints not only on her own behalf but on behalf of other employees. This is inconsistent with there being a barrier to Ms Chin making complaints and inquiries.
Needs of the workplace
Ms Chin submits that there is little to no evidence of Visual Thing’s need for her to work the additional hours. Mr Peat’s evidence is that most of Visual Thing’s work is fast paced and that deadlines are not flexible as Visual Thing is at the end of the postproduction line for an advertising campaign and those deadlines are “pre-set deadlines”. Visual Thing therefore needs to be available for clients at least between 9.00am and 6.00pm and has a 40 hour week to be “in sync” with its client base. Mr Peat’s evidence was also that during Ms Chin’s employment Visual Thing had a major client based in the United Kingdom and clients in both Singapore and Japan, with the associated time difference. Whilst I accept that Visual Thing is subject to external deadlines and operates in a fast paced industry, Mr Peat’s evidence that employees need to be available for clients from at least 9.00am to 6.00pm is inconsistent with Mr Dore-Smith and Mr Germano’s evidence that employees were provided with flexible start and finish times in 2019 to better suit their personal circumstances. Whilst I consider that Mr Peat’s evidence establishes that there may be times when additional hours are required to meet client demands, I do not consider it demonstrates that the additional hours were consistently and permanently required for the entirety of Ms Chin’s employment.
Entitlement to overtime payments
It is uncontested that Ms Chin was entitled to an overtime rate of 150% for the hours worked in excess of 38 hours a week pursuant to clause 28.2 of the Award.
On the evidence before the Court, specifically the Contract and the pay slips, Ms Chin was not paid an overtime rate for work in excess of 38 hours in a week.
The Respondents submit that Ms Chin received a salary which resulted in her receiving remuneration which exceeds that which she would have received if overtime payments had been paid in accordance with the Award. For the reasons set out later in this decision, this submission is rejected and I find that Ms Chin was not paid overtime rates in accordance with the Award.
Notice given by the employer of any request or requirement to work the additional hours
It is uncontested that notice of the need to work the additional hours was contained in clause 1.6 of the Contract. Ms Chin submits, however, that this is not the notice contemplated by s 62(3)(e) of the FW Act. Ms Chin did not direct the Court’s attention to any authority in support of this proposition and I reject it. Firstly, under s 62(3)(e) the notice required to be given is of a request or a requirement to work additional hours. I can see no basis upon which a contractual obligation to work the additional hours does not constitute notice of a requirement to work additional hours for the purposes of s 62(3)(e). Secondly, in Australasian Meat Industry Employees Union v Dick Stone [2022] FCA 512 (Dick Stone) Katzmann J found that additional hours identified in a letter of offer and subsequently included as a contractual term constituted notice for the purpose of s 62(3)(e) of the FW Act. I consider that analysis is equally applicable here.
Notice given by the employee of his or her intention to refuse to work the additional hours
Ms Chin submits that she gave specific notice of her intention not to work the additional hours on multiple occasions. She says that she did so at a meeting on or around mid or late 2019, at the wage and performance review meeting on 12 May 2021 and again on 14 July 2021. The Respondents submit that Ms Chin never formally communicated a complaint or concern about working the additional hours.
On the evidence before the Court I do not consider that Ms Chin ever gave notice of her intention to refuse to work the additional hours. I accept that Ms Chin took issue with being required to work 40 hours per week and expressed that dissatisfaction to the Respondents, most particularly on 14 July 2021 in the email Ms Chin sent to Mr Peat. In that email Ms Chin refers to the fact that she and others employed by Visual Thing work 40 hours per week, she includes an extract regarding maximum weekly hours and the NES, which she says is from a fact sheet produced by the Fair Work Ombudsman, and says:
I do not believe that our additional hours are reasonable. Rather than being required for only when we are busy (which we have been for the past 12 months), it is something that we have to consistently commit to for the duration of our employment. This amounts to 2.7 weeks (104 hours) more than maximum or 3.4 weeks (130 hours) more than the standard work hours in a year. Additionally, there are no averaging provisions.
Whilst it is clear in this email that Ms Chin takes issue with the additional hours and does not consider them reasonable, she does not at any stage say she will not work the additional hours or give notice of her intention to refuse to work the additional hours. Further, on the evidence before the Court she also did not do so at the meeting on or around mid or late 2019 or at the wage and performance review meeting on 12 May 2021; rather, taken at its highest, her evidence, which is disputed, is that she raised a complaint about working hours. Accordingly, I do not consider that Ms Chin at any time gave notice of her intention to refuse to work the additional hours.
The usual patterns of work in the industry
The Respondents contend that 40 hours per week is not an unusual practice in the advertising industry. Ms Alison Cummings is employed as a Studio Manager at Visual Thing. Ms Cummings’ evidence was that she had worked in the advertising industry for 24 years and in her experience working 40 hours per week is very reasonable and common. Ms Cummings’ further evidence is that in previous roles work in excess of ordinary hours up to 5 hours “on many nights” has been required. As set out above, Mr Peat’s evidence was that the advertising industry is a fast-paced deadline driven industry and extended working hours are necessary to be responsive to clients both locally and internationally. For the reasons set out earlier, I have rejected this latter evidence. Mr Dore-Smith’s evidence is that 40 hours is standard in the advertising industry. His evidence is that he has worked in positions where one kept working until the job was done and that it is common knowledge that this happens in advertising or creative industry positions. Ms Chin contends that it is not the usual pattern in the industry to require employees to work 40 hours per week as a standard. Mr Andy Nahn was employed as a creative retouching specialist at Visual Thing. Mr Nahn’s evidence is that he has worked in the advertising industry since 2012. His evidence is that since leaving Visual Thing in around April 2019 his standard hours of work have been 37.5 per week. Ms Bridget Allen was employed as a creative retoucher at Visual Thing. Ms Allen’s evidence is that she has been working in the advertising industry for more than 10 years. Her evidence is that other than when working for Visual Thing her standard hours of work were 37.5 per week.
I prefer the evidence of Ms Cummings and Mr Peat on this matter, on the basis of their significantly greater industry experience over that of Ms Chin, Mr Nahn or Ms Allen.
The nature of the employee’s role and the employee’s level of responsibility
As noted at paragraph 7(c) above, I have found that Ms Chin is most appropriately classified at Level 6 of the Award. The Respondents concede that Ms Chin was not in a senior or managerial role and expressly deny that she had supervisory responsibilities. There is therefore nothing in the nature of Ms Chin’s role that required her to work more than 38 hours per week on a continuous and permanent basis.
Whether the additional hours are in accordance with an averaging term
Pursuant to s 63 of the FW Act a modern award may include terms providing for the averaging of hours over a specified period so long as they do not exceed 38 hours for full-time employees. It is uncontested that the additional hours that the Respondents required Ms Chin to work over the period 2014 to 2021 were not in accordance with any averaging terms in the Award.
Other matters
Ms Chin points to the following additional matters:
·Ms Chin was required to work 40 hours per week on a permanent on-going basis for the period 2014 – 2021 (other than during the COVID-19 pandemic); and
·it appears that the requirement to work 40 hours per week applies to all employees of Visual Thing.
I accept that the regularity and frequency of the additional hours is a relevant matter. So too are the number of additional hours required to be worked. Whilst I do not consider an additional two hours per week in isolation to be unreasonable, I consider the frequency, regularity and length of time over which these additional hours were worked to be so.
I reject the Respondents’ submissions that the granting of time off to Ms Chin in February 2021, agreeing to allowing her to work four days per week for a period to undertake further study, allowing her to take sick leave for mental health issues and that there was “down time” during the working day, as set out in the WorkflowMax records, alter this conclusion. With the exception of the latter matter, none of those matters effect the fact the Ms Chin’s ordinary full-time working hours were 40 hours per week. As to the latter matter, the evidence before the Court is that WorkflowMax is a time management program whereby time worked on projects is allocated to clients. I consider it unexceptional that there are times in Ms Chin’s work week that are not allocated to a client task but in respect of which she is still at work and undertaking relevant duties.
In light of all of the above, whilst finely balanced, I am not satisfied that the Respondents have proved that the additional hours over 38 per week were reasonable. Accordingly, I find that Visual Thing contravened s 62 of the FW Act.
FAILURE TO PAY OVERTIME RATES
Applicable legislative and award provisions
Clause 28.1(a) of the Award provides that subject to s 62 of the FW Act and cl 28.1 of the Award, an employer may require an employee to work reasonable overtime at overtime rates.
Clause 28.2 of the Award relevantly provides that:
(a) All work performed by an employee:
(i)in excess of or outside the hours mentioned in clause 13—Ordinary hours of work and rostering, and clause 14—Special provisions for shiftwork employees; or
(ii)in excess of the employee’s ordinary hours, will be overtime and will be paid for at the rates in clause 28.2(b).
(b) Overtime will be paid at the following rates:
Full-time or part-time employee
% of the overtime hourly rateCasual employee
% of the overtime hourly rateFirst 3 hours 150% 150% After 3 hours 200% 200%
It is uncontested that Ms Chin was entitled to an overtime rate of 150% for the hours worked in excess of 38 hours a week by reason of clause 28.2 of the Award.
On the evidence before the Court, specifically, the Contract and the pay slips, Ms Chin was not paid an overtime rate for work in excess of 38 hours in a week.
Consideration
The Respondents contend that Ms Chin was paid an over Award annual salary exceeding and in satisfaction of her entitlements under the Award for 40 hours per week (comprising payment for both ordinary hours and overtime hours). In the alternative, Visual Thing contends that it is entitled to set-off and restitution based on common mistake.
Set-off
The principles regarding set-off are settled, and set out at length in Dick Stone by Katzmann J at [196]-[207], Linkhill Pty Ltd v Director, Office of the Fair Work Building Industry Inspectorate (2015) 240 FCR 578 (Linkhill) at [39]–[67] and in WorkPac Pty Ltd v Rossato (2020) 278 FCR 179 (Rossato) by White J at [824]–[869] and by Wheelahan J at [987]–[1003].
The principles were articulated by Goldberg J in Textile Clothing and Footwear Union of Australia v Givoni [2002] FCA 1406 at [60]-[61] (Givoni) as follows:
…Where a payment is made to an employee in discharge of an award obligation, which payment is in fact in excess of the amount of the obligation, the amount of the excess cannot be set-off against a claim in respect of a different award obligation unless at the time of the payment of the excess the employer designates that the excess is payable in respect of a purpose of an obligation different from the purpose for which the initial payment is made.
Put shortly, where there is a payment made for, or in respect of, ordinary hours of work which is in excess of the award obligation, the excess cannot be set-off against a claim for underpayment of overtime unless at the time of the payment of the excess, the employer designates that that excess over the amount of the award obligation is paid for the purpose of satisfying any entitlement to overtime payments.
It is uncontested that there are two relevant principles concerning set off, namely the “contractual principle” and the “designation principle”.
As to the “contractual principle”, White J observed at [865] in Rossato that:
[I]f [the parties] agree that a sum of money is paid and received for a specific purpose which is over and above or extraneous to an award entitlement, the contract precludes the employer from later seeking to rely on the payment as satisfying an award obligation which is outside the agreed purpose of the payment. If the payment was made for the purpose of satisfying the kind of award obligation sought to be satisfied, it may be brought into account as satisfaction or part satisfaction of that obligation. If it was paid for some other purpose, then the employer cannot bring the payment into account … Stated more generally, an employer cannot later reallocate an amount agreed to be paid to an employee in respect of subject A (for example, ordinary hours of work) to meet a claim in respect of subject B (for example, overtime) …The focus is on the purpose of the payment. If it arises out of the same purpose as the award obligation, it can be set off …
(Emphasis added.)
As to the “designation principle”, White J observed at [865] in Rossato that:
When there are outstanding award or enterprise agreement entitlements, a payment designated by the employer as being for a purpose other than satisfaction of the award entitlement cannot be regarded as having satisfied the award or enterprise agreement.
As to the contractual principle, the Respondents submit that the express terms of the Contract demonstrate a mutual intention to compensate Ms Chin for a 40 hour week. As to the designation principle, the Respondents submit that as Visual Thing paid Ms Chin 40 hours per week as salary it should be taken to have designated those payments for the purpose of remunerating that work, consistently with the contractual purpose. I reject those submissions.
The contractual principle has no application in this case. Ms Chin and Visual Thing did not agree that the difference between monies due under the Award and the monies actually paid “[would] be paid and received for a specific purpose which is over and above or extraneous to an award entitlement”: Dick Stone at [208] per Katzmann J. The designation principle also has no application. There was no designation, communication, understanding nor agreement that part of the salary paid to Ms Chin for working a 40 hour week would be applied to satisfy Visual Thing’s liability under the Award to pay overtime rates for work in excess of 38 hours per week.
The Contract provides that Ms Chin’s “standard” hours were 40 hours per week and that “additional overtime” may be required, with such overtime being accrued and calculated at an hourly rate. The payments made to Ms Chin for working 40 hours per week were designated in her pay slips as payment for “ordinary hours”. Accordingly, the evidence before the Court is consistent with Ms Chin only being paid overtime for additional hours in excess of 40 per week. In the absence of communicating its intention to satisfy its obligation to pay overtime in accordance with the Award by absorbing them in over-Award payments, it is not open to Visual Thing to appropriate part of those payment to discharge its Award obligations.
Restitution
The overarching principles with respect to restitution on the basis of mistake were summarised in Equuscorp Pty Ltd v Haxton [2012] HCA 7, (2012) 246 CLR 498 per French CJ, Crennan and Kiefel JJ at [30] (Equuscorp):
In summary:
•recovery depends upon enrichment of the defendant by reason of one or more recognised classes of "qualifying or vitiating" factors;
•the category of case must involve a qualifying or vitiating factor such as mistake, duress, illegality or failure of consideration, by reason of which the enrichment of the defendant is treated by the law as unjust;
•unjust enrichment so identified gives rise to a prima facie obligation to make restitution;
•the prima facie liability can be displaced by circumstances which the law recognises would make an order for restitution unjust.
It is the party asserting the mistake who has the onus of proving both that a mistake exists and that payment was made pursuant to the mistake: Rossato at [782] per Wheelan J, citing Holt v Markham [1923] 1 KB 504 at 511.
Further, although a reasonably broad view of the type of mistake necessary to found a claim for restitution is suggested by the authorities, not every payment made under a mistake will support such a claim. It is critical that the payment made under the mistake was not voluntary: Rossato at [729]. The term “voluntary” in this context refers to a payment “made in satisfaction of an honest claim” as opposed to a broader interpretation of a payment “not made under any form of compulsion or undue influence”: David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48 at [36] (David Securities).
In Hookway v Racing Victoria [2005] VSCA 310 (Hookway), Ormiston JA considered the decision in David Securities and the distinction between a voluntary payment and a payment made by mistake. At [41] of the decision in Hookway, Ormiston JA identified five categories of voluntary payment as follows:
(a)payments where the payer believes a particular law or contractual obligation is invalid but chooses to pay;
(b)payments where the payer believes that the law or obligation may be invalid but chooses to pay;
(c)payments where the payer pays but is not concerned to query whether the payment is required at law;
(d)payments where the payer is prepared to assume the validity of the obligation and therefore pays; and
(e)payments where the payer in making payment is prepared to do so “irrespective of the validity or invalidity of the obligation” and chooses not to contest the claim for payment.
The classification of a payment as “voluntary” is focussed on “the mind and intention of the person making the payment”: Hookway at [41].
The Respondents’ submissions as to restitutionary relief rely upon clauses 1.6 (Hours), 2.1 (Amount) and 1.7 (Inconsistency with Industrial Law) of the Contract. Clauses 1.6 and 2.1 are set out earlier. Clause 1.7 provides as follows:
If the Company is subject to obligations in respect of the Employment arising under any applicable industrial award, enterprise agreement or industrial legislation (industrial laws) and any such obligation is inconsistent with a provision in the Contract, the provision in the Contract will not operate to the extent of that inconsistency.
The Respondents contend as follows:
(a)clauses 1.6 and 2.1 are inconsistent with the Award;
(b)as a consequence of clause 1.7, clause 2.1 and clause 1.6 should be deemed inoperative to the extent of that inconsistency;
(c)neither clause 1.6 nor clause 2.1 can be struck out as they are essential terms of the Contract;
(d)in order to render clause 1.6 and 2.1 inoperative only to the extent of the inconsistency, clause 2.1 should be read as providing for a 38-hour work week with clause 1.6 read as providing for a proportional salary for those 38 hours;
(e)accordingly, the First Respondent was not under a contractual obligation to pay for the additional two hours salary per week and payment for them was therefore the result of a mistake.
I accept Ms Chin’s submission that the Respondents’ contentions in this regard are fundamentally misconceived and must be rejected.
Firstly, the Respondents have failed to demonstrate that there was a mutual mistake by both Visual Thing and Ms Chin as to the same facts. There was no mistake by Ms Chin as to the terms of the Contract. There was no mistake by Visual Thing in relation to the contractual obligation to remunerate Ms Chin in exchange for the performance of work. As submitted by Ms Chin, if there was a mistake it was by Visual Thing assuming that its performance of the obligations under the Contract had discharged its obligations under the FW Act and the Award.
Secondly, any such mistake by Visual Thing did not affect its contractual obligations and could not warrant recovery of remuneration paid to Ms Chin as money had and received, unless the contractual obligation to pay the remuneration could be avoided. As was said by Goff J in Barclays Bank v W.J Simms Ltd (1980) QB 677 at [376], cited with approval in David Securities at [40] and Rossato at [778] per White J and at [960] per Wheelan J, “if the money was due under a contract between the payer and payee, there can be no recovery on this ground unless the contract itself is held void for mistake … or is rescinded by the plaintiff”. The Respondents do not contend that the Contract is void or rescinded: indeed, they expressly contend otherwise.
Thirdly, as the High Court of Australia said in Mann v Peterson [2019] HCA 32 at [14] “Restitutionary claims must respect contractual regimes and the allocations of risk under those regimes”. In making the payment of the salary package under the Contract, Visual Thing assumed the risk that its contractual obligation to pay an annualised salary satisfied its obligations under the FW Act and the Award. Therefore the payments made for the additional two hours each week were voluntary and not payments by mistake.
Accordingly, Visual Thing’s cross-claim has no merit and must be dismissed. I therefore find that Visual Thing failed to pay overtime to Ms Chin in accordance with clause 28.2 of the Award.
CLASSIFICATION UNDER THE AWARD
Ms Chin’s classification is relevant to determining the rates to be applied for calculating the underpayment arising from Visual Thing’s failure to pay overtime rates.
Ms Chin contends that she should have been classified at Level 8 under the Award. Visual Thing contends that Ms Chin is properly classified at Level 5.
Applicable law and award provisions
It is undisputed that the Award applied to Ms Chin’s employment with Visual Thing. At the commencement of her employment Ms Chin’s employment with Visual Thing was governed by the Graphic Arts, Printing and Publishing Award 2010 (2010 Award). From 9 December 2020, the Award was the applicable instrument. The classification structure is set out in Schedule B of the 2010 Award and in Schedule A of the Award, respectively.
Ms Chin submits that there are no significant differences between the classification structures contained in 2010 Award and the Award and the appropriate classification is to be determined by reference to Schedule A of the Award. At hearing Ms Chin proceeded on this basis and Visual Thing did not take issue with this approach.
The principles for determining an employee’s classification under an award are well settled. That question is determined by application of the principle of “major and substantial employment”. This question is answered by deciding which kind of work or which duties constituted the major and substantial part of the employee’s employment. Both the quantity and the quality of the duties are relevant: Dick Stone at [163] per Katzmann J. The question is one of fact to be determined by reference to the duties attached to the position, rather than the title: City of Wanneroo v Holmes (1989) 30 IR 362 at [379].
The approach to be taken towards each level in the classification structure of an award was articulated by Katzmann J in Dick Stone at [156] as follows:
Each level must be read in the context of higher or lower levels, having regard to the descriptions at higher and lower levels of similar tasks or roles with ascending and descending degrees of complexity. Regard must be given to all of the specified skills, knowledge, and indicative tasks and roles. But as the adjective “indicative” connotes, an employee does not have to perform each of the tasks specified at the level. Rather, the tasks reflect the type and complexity of the duties. Plainly enough the higher the level, the greater the skill or complexity of the role and vice versa.
Consideration
Clause 23.2 of the Award provides for the classification of an employee with a formal Australian Qualification Framework (AQF) qualification as follows:
(a)Where employees have completed a qualification recognised in the Printing and Graphic Arts Training Package and in Table A of clause 17—Minimum rates and classification structure, and are using the skills and knowledge gained from that qualification in accordance with the needs of the enterprise, then they must, as a minimum be classified at the level specified in Table A of clause 17—Minimum rates and classification structure.
(b)Clause 23.2(a) also applies to a qualification which has been recognised by an Industry Skills Council or a Federal or State Training Authority which is equivalent to a qualification recognised in the Printing and Graphic Arts Training Package and in Table A of clause 17—Minimum rates and classification structure.
(c)Employees will transfer into the classification structure on the basis of the alignment of classifications to qualifications as outlined in Table A of clause 17—Minimum rates and classification structure.
Table A of clause 17 of the Award provides that a Level 8 employee is aligned with a Certificate IV from the Printing and Graphic Arts Training Package.
It is uncontested that Ms Chin holds a Certificate III in Design Fundamentals, a Certificate IV in Photoimaging and a Bachelor of Arts in Photography (with Distinction).
Ms Chin submits that the national accrediting body, the Tertiary Education Quality Standards Agency (TEQSA), recognised that a bachelor’s degree is of Level 7 AQF. Additionally, Ms Chin was assessed as eligible for a master’s degree as evidenced by her acceptance into the Master of Curatorship course at the University of Melbourne and that TEQSA recognised that a master’s degree (coursework) is of Level 9 AQF. Accordingly, Ms Chin submits that her formal qualification is of Level 7 AQF, and she has been assessed as eligible for a Level 9 AQF qualification.
Ms Chin further submits that it appears her formal qualification (Certificate IV in Photoimaging) is not recognised in the Printing and Graphic Arts Training Package; however, it is recognised in the Creative Arts and Culture Training Package, which is recognised by TEQSA. As such, Ms Chin submits her formal qualification is equivalent to a qualification recognised in the Printing and Graphic Arts Training Package, as defined under clause 23(2)(b) of the Award and that clause 23.2(a) the Award is therefore applicable to Ms Chin for her classification under the Award.
However, Ms Chin led no evidence of any of these matters. Accordingly, on the basis of the evidence currently before the Court these submissions must be rejected.
In the alternative, Ms Chin submits that based on her skills and tasks she is properly classified at Level 8.
The full classification structure contained in Schedule A of the Award is set out at Annexure A. It is apparent that there is a commonality between levels in the skills and tasks required, with the complexity of the skills and tasks increasing in complexity as the level of classification increases.
Ms Chin’s evidence is that while employed by Visual Thing she undertook the following duties:
(a)retouching photographs;
(b)photographing product, including product styling and modelling and photographing for “strip ons”. Strip-on photography is a highly specialised and niche service offered to clients for garment or product replacement in images. She would match the angle, lighting, pose etc. in the studio to those of the image and she or another retoucher would composite the new product/garment into the original image;
(c)liaising with clients before and after the photoshoot;
(d)managing creative teams;
(e)sourcing props/materials and models;
(f)managing conflicting creative input;
(g)organising processing and delivery of final products (including quality control by retouchers);
(h)managing studio calendar conflicts;
(i)conducting photography training for other retouchers; and
(j)after the conclusion of the photography training, providing ongoing mentorship and supervision for photography trainees.
Ms Chin’s evidence is that she exercised a high level of retouching skills and she was particularly skilled in strip-on photography. Her evidence is that she advised regarding retouching and that creative problem solving was integral to her achieving goals set by clients. In addition, her evidence was that she was also proficient in other tasks, including but not limited to:
(a)setting up and operating work computers, large-scale printers, and photographic equipment and the maintenance of such equipment;
(b)providing pre-production advice to account managers and clients for and during shoots;
(c)providing lists of materials required for shoots and problem-solving around time, budget and equipment limitations;
(d)processing files to be retouched and plates to facilitate retouching;
(e)marking up files with clients and providing instructions to the retouching team;
(f)adjusting files in team jobs to standardise the grade and level of retouching;
(g)fixing mistakes by other retouchers;
(h)undertaking maintenance for photography and retouching, performing print head cleaning maintenance for large-scale printers; and
(i)inventory control of photographic materials and equipment; changing printer ink and printing stock and reporting low stock; and
(j)undertaking advanced art and design.
Mr Nhan’s evidence is that he believes that he and Ms Chin are at the same level as retouchers and that Ms Chin should be classed as a Senior Retoucher/Photographer. I give little weight to Mr Nhan’s evidence. Firstly, the evidence of Mr Peat is that Mr Nhan had a superior work ethic and superior problem solving and client communication skills than Ms Chin. In addition, Mr Nhan provided higher level guidance and assistance as part of the Visual Thing team and held a range of skills that Ms Chin did not. Secondly, under cross-examination Mr Nhan conceded that in giving his evidence he had not had regard to the classifications in the Award. Further, there is no evidence before the Court as to what classification under the Award Mr Nhan holds. In these circumstances I do not consider Mr Nhan’s subjective opinion as to Ms Chin’s skills, relative to his, is of assistance to the Court. Thirdly, as a director of Visual Thing for in excess of 20 years, I consider Mr Peat is better placed than Mr Nhan to determine the skills of Ms Chin, both on a stand alone basis and by way of comparison with other employees.
Mr Dore-Smith’s evidence, which is supported by Mr Peat, is that Ms Chin was most appropriately classified as a Level 5 under the Award. He deposed to her having the capabilities set out in Level 5 of the Award, other than the following in relation to retouching:
(a)he only agreed “somewhat” that Ms Chin could solve straightforward problems based on set procedures or factual information, saying that she had an “average ability” to problem solve; and
(b)he disagreed that Ms Chin was responsible for the work of others, saying that he was responsible for the quality of work and creative feedback.
As to the indicative tasks of Level 5 contained in Schedule A of the Award Mr Dore-Smith’s evidence was that Ms Chin did not undertake the following tasks:
(a)setting, adjusting and operating a range of equipment in one of pre-press, press or post-press areas, saying that Visual Thing did not have equipment in pre-press, press or post-press areas;
(b)undertook maintenance to the level of her training and accredited skill including lubrication, elementary diagnosis of faults, routine adjustments and reporting on worn or damaged parts, saying that any faults or repairs were it;
(c)high level stores and inventory responsibility, saying there were no such requirements on Ms Chin;
(d)formatting complex documents including technical data, technical language, tables, graphics and design variable type face, although agreed that Ms Chin was able to use Photoshop to a very good standard;
(e)produced documents requiring specific form or to comply with regulations or standards although agreed that Ms Chin was able to use Photoshop to a very good standard; and
(f)undertaking basic art and design, saying Ms Chin was not required to perform any art and design for Visual Thing.
As set out in Annexure A, pursuant to Schedule A of the Award an employee at Level 6 performs work above the skills of an employee at Level 5. Mr Dore-Smith’s further evidence, which is also supported by Mr Peat, is that he has reviewed Level 6, 7 and 8 under the Award and says that Ms Chin did not perform at Level 6 because she did not:
(a)provide on-the-job training beyond an informal level;
(b)undertake maintenance procedures but rather referred these to management;
(c)participate in or develop work health and safety and environmental protection practice; and
(d)was not responsible for the work of others (collectively, Contested Capabilities)
Further, his evidence is that Ms Chin did not undertake the following indicative tasks:
(a)set up and operate machines of a complex nature in one of either the pre-press, press or post-press area — Visual Thing had none;
(b)provide trade guidance and assistance as part of a work team;
(c)undertake maintenance procedures (beyond everyday care for equipment, such as proper storage and handling, that would be expected of anyone);
(d)maintain registers or perform reconciliation of regular reports and stock movement; and
(e)undertake art and design, and certainly not at the intermediate level.
Ms Chin placed considerable emphasis in her evidence and in her submissions on her photography skills and tasks which she says were associated with photographic shoots. It is uncontested that Ms Chin undertook both retouching and photographic work. Although there is a dispute as to the proportion of time Ms Chin spent on each type of work, it is uncontested that retouching comprised the major and substantial component of Ms Chin’s work. Further, Mr Dore-Smith’s evidence is that retouching comprises 95–98% of the business of Visual Thing. Accordingly, while considerable emphasis is placed by Ms Chin on her photographic skills (including strip-on photography), which is conceded by the Respondents to be “very good”, for the purposes of determining her classification under the Award the focus must be on the work she undertook as a retoucher as this comprised the major and substantial component of her work for Visual Thing.
For the following reasons I consider that the classification that best fits the work undertaken by Ms Chin during her employment with Visual Thing is that of Level 6 under the Award, notwithstanding that Ms Chin did not demonstrate all of the Level 6 capabilities:
(a)it is clear that the formal qualifications held by Ms Chin exceed the indicative qualifications included in Level 6;
(b)while Ms Chin’s evidence is that she held high level retouching skills, the evidence of Mr Dore-Smith and Mr Germano is that Ms Chin was a solid worker who had a sound understanding of retouching and photography and that other employees, such as Mr Nhan, were high level senior retouchers. There is no dispute that Ms Chin’s photography skills were very good. For the following reasons, I prefer the evidence of Mr Dore-Smith and Mr Germano as to Ms Chin’s retouching skills, noting that Mr Peat supported Mr Dore-Smith’s assessment of Ms Chin’s skill set relative to the classifications under the Award. Firstly, Mr Dore-Smith and Mr Germano have considerably greater industry experience than Ms Chin. Secondly, as directors of Visual Thing they have comparative knowledge of employees’ skills and, in my view, are better placed than Ms Chin to objectively assess her level of skill. Thirdly, Ms Chin accepted that Mr Dore-Smith and Mr Peat had direct knowledge of her skills and responsibilities. Finally, I consider Ms Chin has a tendency to exaggerate her skills and position and the tasks she undertook. For example, she refers to her “promotion” to the position of Photographer and Retoucher in 2018, however, whilst it is uncontentious that Ms Chin took on photographic work, there is no objective evidence to support that she was at any time promoted; she also gives evidence that she unilaterally augmented her position to that of Head Photographer and Senior Retoucher when she applied for her Master’s in Curatorship in 2020; further, she gave evidence that she “managed studio calendar conflicts” which under cross-examination she explained as referring to double booking of photographic shoots by the directors and “check[ing] back with them on whether or not they were confirmed shoots”. I consider Mr Dore-Smith and Mr Peat’s evidence of a “sound understanding of retouching and photography” to demonstrate that Ms Chin had more than an “understanding [of] the enterprise’s production processes and products and administrative and organisational procedures as they relate to the work area” as is provided for in Level 5 and to be consistent with Ms Chin having a “general knowledge of enterprise processes and procedures impacting on their own area” as provided for under Level 6. However, in my view, a sound understanding of retouching and photography does not meet the requirements of a “thorough knowledge” of such matters as provided for in Level 7;
(c)it is uncontested that Ms Chin trained Ms Allen, Mr Pham and Alyssia Tedeschi in photography. The Respondents also agreed that Ms Chin was able to show other employees how to use Photoshop. The Respondents submit that the training provided by Ms Chin was “informal on-the-job training” as provided for in Level 5 and did not rise to “on-the-job training” as contemplated by Level 6 (Court’s emphasis). I reject that submission. I accept that showing other employees how to use Photoshop is “informal on-the-job training”. However, Ms Chin’s evidence, which was not seriously challenged under cross-examination, was that the photography training she delivered to other employees was not informal or ad-hoc. Her evidence was that she developed a 5-step training photography course which she delivered over about a week, which included the development of folders of material and course documentation;
(d)the evidence of Mr Dore-Smith, which is supported by Mr Peat, is that Ms Chin could solve straightforward photography problems but could only “somewhat” solve retouching problems. His evidence was that Ms Chin had an average ability to solve retouching problems. In this context Mr Peat’s oral evidence was that Ms Chin could not “think outside the box”, nor come up with solutions that could not be taught. Level 6 of the Award provides that an employee at this level is capable of having knowledge of problem-solving techniques and procedures in their own area. Ms Chin gave evidence, which was uncontested, of assisting Ms Tedeschi with a retouching problem in relation to the “cocktail photoshoot” by identifying that the lighting on the glass chosen by Ms Tedeschi did not match the lighting of the background. I consider this demonstrates that Ms Chin had knowledge of problem-solving techniques and procedures consistent with those required under Level 6 of the Award;
(e)the Respondents do not contend that Ms Chin did not meet the remaining capabilities of Level 6 under the Award, other than the Contested Capabilities, and I am satisfied on the evidence before the Court that she did meet those capabilities; and
(f)As to the Contested Capabilities:
(i)Ms Chin’s evidence is that she was responsible for the maintenance of the photographic studio. I accept that evidence. Additionally, I am inclined to the view that this capability is not strictly applicable to Visual Thing’s work environment, noting the breadth of the industries that the Award covers;
(ii)there is no evidence that Ms Chin participated in, or developed, work health and safety and environmental protection practice;
(iii)Level 6 of the Award provides that an employee at Level 6 “will be capable of being responsible for the work of others under their supervision”. The Respondents contend that Ms Chin does not meet this capability because she was not responsible for the retouching work of others. I accept that contention. There is no evidence before the Court that Ms Chin was responsible for the work of others in so far as retouching is concerned. On the evidence before the Court this was undertaken by Mr Dore-Smith and, on occasion, Ms Cummings. It is not contested that in so far as photographic work is concerned Ms Chin was responsible for the work of others, however, as already set out above, photographic work did not comprise the major and substantial duties undertaken by Ms Chin.
As to the indicative tasks in Level 6, in my view the most presently relevant is “undertaking intermediate art and design to their level of training and accredited skill”. Mr Dore-Smith’s evidence is that Ms Chin does not undertake any art and design in her employment. For the reasons that follow, I reject that evidence and note that notwithstanding Mr Dore-Smith’s evidence, in their closing submissions the Respondents, somewhat confusingly, address the level of Ms Chin’s art and design skills.
“Art and design” is defined under clause 2.2 of the Award as follows:
art and/or designing (including commercial art) however described means the work of an employee employed in or in connection with designing, sketching, drawing, tracing, aerographing, keying, colouring photographs, retouching of bromides, reproducing, writing (including ticket writing) lettering, illustrating, commercial art, or in copying artwork or layouts, or in any way preparing art work or layouts manually or electronically for the use or prospective use within the industry as defined in this award.
As submitted by Ms Chin, I consider it is plain that retouching, being the electronic/digital touching up of images, is “art and design” as it involves colouring photographs and/or commercial art and/or preparation of artwork or layouts for use within the industry as defined under the Award. I accept Ms Chin’s submission that during her employment with Visual Thing her role was essentially “art and design”. Accordingly, when considering the indicative tasks included in the Award classification structure, in the present context “art and design” is of particular significance.
In relation to indictive tasks and “art and design”:
(a)Level 5 provides that an employee may undertake “basic art and design to their level of training and accredited skill”;
(b)Level 6 provides that an employee may undertake “intermediate art and design to their level of training and accredited skill”; and
(c)Level 7 provides that an employee may undertake “complex art and design to their level of training and accredited skill.”
Ms Chin submits that the complexity of her level of “art and design” should be inferred from her formal qualification and years of experience. I reject that submission and prefer the direct evidence of Mr Dore-Smith on this matter. Mr Dore-Smith’s evidence is that he “somewhat” agreed that Ms Chin had a high level of retouching skills, saying that Ms Chin completed to a “very good level...general retouching requirements on fashion images” but that she was not proficient or skilled at high-level digital illustration, finished art, video editing, videography or 3D modelling or animation. As has already been set out, Mr Dore-Smith has extensive industry experience and expertise which, in my view, lends considerable weight to his evidence on this matter. Further, his evidence was supported by examples and samples of more general work and more complex work. Accordingly, I consider that Ms Chin’s art and design skills, on the evidence currently before the Court, are most closely aligned to those of Level 6 of the Award.
For completeness, in determining Ms Chin’s classification under the Award, I have given little weight to:
(a)the Respondents’ evidence regarding the tiers by which Visual Thing is said to have classified an employee and the evidence of the Respondents that Ms Chin was a Tier 2 employee (and therefore not a highly skilled employee). Firstly, there is no objective evidence that this classification system was implemented by Visual Thing or disseminated to employees. Secondly, and most significantly, the tiers are not in any way aligned to the Award capabilities and accordingly, any such classification is of no assistance to the Court in determining Ms Chin’s classification under the Award; and
(b)Ms Chin’s evidence as to the advertisement placed by the First Respondent for a Senior Retoucher in March 2023 requiring a minimum of two years’ experience or the skills summary contained in Ms Chin’s Certificate IV. Firstly, there is nothing in the advertisement that aligns the position of Senior Retoucher to the Award capabilities or classifications. Secondly, Ms Chin’s qualifications are not at issue. The question to be determined is the appropriate classification for the work performed by Ms Chin by relevance to the kind of work duties which constituted the major and substantial part of Ms Chin’s employment.
ADVERSE ACTION CLAIMS
Applicable legislation and law
Section 340(1) of the FW Act provides that:
(1) A person must not take adverse action against another person:
(a)Because the other person:
(i) Has a workplace right; or
(ii) Has, or has not, exercised a workplace right; or
(iii)Proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)To prevent the exercise of a workplace right by the other person.
Workplace right is defined in s 341 of the FW Act, which provides that, inter alia:
(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
…
(c) is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee—in relation to his or her employment.”
Section 342 of the FW Act provides that adverse action is taken by an employer against an employee if the employer:
(a) dismisses the employee;
(b) injures the employee in his or her employment;
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
Section 360 of the FW Act provides that for the purposes of Part 3-1, “a person takes action for a particular reason if the reasons for the action include that reason”.
Section 361 of FW Act provides that:
(1) If
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proved otherwise
…
Workplace right
As set out above, s 341(1)(c) of the FW Act provides that a person has a workplace right if the person “is able to make a complaint or inquiry”. In Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677 Snaden J said at [150]:
…in order that a complaint or inquiry made in relation to employment might qualify as the exercise of a workplace right, an employee must first demonstrate that it was made in the exercise of, or otherwise to protect or vindicate, some right or entitlement conferred upon them, whether instrumentally or otherwise. It is not sufficient that a complaint or inquiry is made simply because the employee feels (with good justification or otherwise) that he or she has something about which to complain or inquire.
Adverse action
As also set out above, sub-ss 342(1)(b)-(d) of the FW Act provide, respectively, that adverse action is taken by an employer against an employee if the employer injures the employee in his or her employment, alters the position of the employee to the employee’s prejudice, or discriminates between the employee and other employees of the employer.
“Injury in his or her employment” has been recognised to cover injury of any compensable kind: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1; [1998] HCA 30 at [4] (Patrick Stevedores). As Finkelstein J observed in Community and Public Sector Union v Telstra Corp Ltd (2000) 99 IR 238; [2000] FCA 844 at [20] (CPSU), “injury is concerned with an actual adverse effect, usually by the loss or alteration of a legal right, in the position of an employee, in his capacity as an employee …”, noting that these comments were not disturbed on appeal. Burnett J in Aitken v Virgin Australia Airlines [2013] FCCA 981 at [69] (Aitken) further observed that: “An injury may include a reduction in an employee’s take home pay, a change in an employee’s shifts and/or hours or a diminution of the opportunity to obtain work”.
“Prejudicial alteration” covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question: Aitken at [75] (Burnett J), see also Jones v Queensland Tertiary Admission Centre Ltd (No 2) [2010] FCA 399 by Collier J at [64]–[65] (Jones), Employment Advocate v National Union of Workers (2000) 100 FCR 454 by Einfeld J at [43] (Employment Advocate). The term is to be “afforded a very liberal and broad interpretation”: Aitken at [74] per Burnett J. In Auimatagi v Australian Building and Construction Commissioner (2018) 363 ALR 246; [2018] FCAFC 191 (Auimatagi), the Full Court held at [109] that prejudice is a matter of fact, and is therefore necessary to be proved.
There have been divergent views as to the meaning to be given to the phrase “discriminates between” as used in s 342(1)(d). In Sayed v CFMEU [2015] FCA 27 (Sayed) Mortimer J (as her Honour then was) said at [160]:
In my opinion, the language of Item 1(d), and its use of the word “between” suggests the conduct which is to be examined is the way in which the employer targets the particular employee. Is that employee treated differently from other employees?
In Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 (Pilbara) Katzmann J said at [40]-[43]:
Item 1(d) of the table in s 342(1) does not speak of discriminating against someone (which is the formulation in some anti-discrimination legislation and also in item 2(b) of the table) but discriminating between people. “Discriminates” is not defined so it must have its ordinary meaning which, relevantly, is simply to make a distinction (the first meaning in both the Oxford and the Macquarie Dictionaries). Still, the section is dealing with adverse action. I think it is unlikely — despite the difference in the prepositions used in items 1(d) and 2(a) — that the Parliament had in mind anything other than conduct which discriminated against one employee when compared with other employees. The applicants accepted this in their opening submissions, although they retreated from this position in their closing submissions. I rather think that the different expressions were used for syntactical reasons.
Both parties nevertheless accepted that discriminate in this context means “treat less favourably”. That necessarily imports the concept of discriminating against the employee who has been treated in this way.
The real difficulty is in deciding how the comparison should be made. The difficulty is not as acute in the anti-discrimination legislation where the various statutes provide that a person discriminates against another on a particular ground in defined circumstances. Here, the circumstances are not defined. Section 5 of the Disability Discrimination Act 1992 (Cth), for example, relevantly provides that a person (the discriminator) discriminates against an aggrieved person on the ground of a disability if, because of the aggrieved person's disability, the discriminator treats the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different. In that context, the High Court held in Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 (a case of a disabled child whose disability caused him to behave violently at a school from which he was then excluded) that the relevant comparison was between the child concerned and another child without the disability who had behaved in a similar way. That is, the treatment of the alleged victim is to be compared with the treatment of another person with or without the relevant attribute or ground on which discrimination is prohibited. Here, however, item 1(d) of s 342 does not define the relevant attribute or ground. The prohibited reasons can be found in ss 340 and 346, but these provisions only apply once adverse action has been established.
The applicants submitted that the mere failure to offer continuing employment to Mr Lamberth when other trainee car examiners were is sufficient to establish that the relevant discrimination occurred. Yet, this does not seem to be the approach suggested in Barclay. In Barclay (at [35]–[36]) Gray and Bromberg JJ (albeit obiter) appear to have assumed (by their reference to the comparative test in Purvis) that what is required under item 1(d) is indeed a comparison between the employer’s treatment of the employee in question and of other employees who acted in the same way as the employee in question. With respect, to import the reasoning in Purvis, which was concerned with the interpretation of different words in a different statute in a different context, is to invite error. Still, I doubt the correctness of the applicants’ position that offering further employment to some and not others is sufficient. That approach was rejected in Hodkinson v The Commonwealth (2011) 207 IR 129. In my view item 1(d) requires that one employee is treated differently from others in the same or comparable circumstances. Here, however, no comparisons were offered. The evidence was entirely silent. If this is the correct approach, then the applicants would have failed to make out their claim.
Subsequently, the relevant principles were discussed by the Full Court in Fair Work Ombudsman v Hu [2019] FCAFC 133 (Hu), including the decisions regarding the requirement that the accessory have actual knowledge of the essential elements of the contravention as discussed in Devine Marine and EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134.
It is settled law (as per the Full Court in Hu, applying Devine Marine) that accessorial liability:
(1)requires actual knowledge of the essential elements of the contravention and not imputed knowledge; and
(2)does not require knowledge that the essential elements constitute a contravention.
For liability to be found the accessory must be shown to have engaged in conduct which implicates him in the contraventions so as to demonstrate that there is some practical connection between him and the contravention: Fair Work Ombudsman & Foot & Thai Massage [2021] FCA 1241 at [781].
As was observed by Colvin J in Wilkinson v Wilson Security Pty Ltd (No 3) [2024] FCA 705 at [299] “there appears to be a divergence of views as to whether, in a case where the alleged contravention to which a party is said to be an accessory is a failure to comply with an award, the accessory must know of the terms of the award”: see, for example, Fair Work Ombudsman v Al Hilfi [2012] FCA 1166 at [35], [44] (Besanko J); Potter v Fair Work Ombudsman [2014] FCA 187 at [79]-[89] (Cowdroy J); Devine Marine at [186]-[188], [191] (White J); Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034 at [1018]‑[1019] (Katzmann J); Australian Building and Construction Commissioner v Parker [2017] FCA 564 at [127]‑[128] (Flick J); Fair Work Ombudsman v Hu (No 2) [2018] FCA 1034 at [162]-[171] (Rangiah J); and Enkel v We R Finance Pty Ltd [2020] FCA 1668 at [43] (Jackson J).
Accessorial liability for admitted contraventions
Ms Chin submits that Mr Germano and/or Mr Peat are liable as accessories for each of the Admitted Contraventions.
Failure to provide notice or payment in lieu of notice
Ms Chin submits that Mr Peat is accessorily liable as knowingly concerned in, or a party to, the contravention, as wilfully blind to Visual Thing’s statutory obligations. She submits this is evidenced by his failure to make inquiries. Ms Chin submits that it is improbable that the Respondents received advice from Visual Thing’s WorkCover Insurer about terminating her employment due to her incapacity to return to work and did not receive advice about notice of termination. She submits that the obligation to provide notice of termination is common knowledge.
Visual Thing contends that the failure was a genuine and inadvertent error by Visual Thing’s accountant. Mr Peat’s affidavit evidence is to that effect. This evidence was not challenged in cross-examination and I accept it.
Accordingly, Ms Chin has failed to prove on the balance of probabilities that Mr Peat was knowingly concerned in Visual Thing’s contravention, as that term is defined in s 550 of the FW Act.
Failure to pay accrued but untaken leave entitlements
Ms Chin submits that Mr Peat is accessorily liable for Visual Thing’s failure to pay accrued but untaken leave entitlements to Ms Chin upon termination of her employment.
Visual Thing contends that the failure was a genuine and inadvertent error by Visual Thing’s accountant arising from the adjusted salary Ms Chin was receiving by way of WorkCover payments.
Ms Chin submits that the Respondents’ assertion in respect of Mr Peat’s accessorial liability is unsupported by evidence. Ms Chin submits that as a result of the initiation of proceedings, the errors in purported corrective payments and the need for Ms Chin to further amend her claim to seek a further payment, Mr Peat had ample opportunity to make inquiries into Visual Thing’s compliance with its obligations under the FW Act. She submits that the Court can infer that Mr Peat chose not to make inquiries about the correct amounts to be paid to Ms Chin because the knowledge gained would be inconvenient to him. She submits that Mr Peat’s “ignorance” bespeaks knowledge of Visual Thing’s contravention.
I decline to draw the inference sought by Ms Chin. Firstly, it is for Ms Chin to prove Mr Peat’s involvement in the alleged contravention; not for the Respondents to disprove Ms Chin’s contention. Secondly, the contravention asserted arose upon termination of employment. I am unable to see how conduct which occurs after termination and the contravention arising could establish Mr Peat’s involvement in the contravention for the purposes of s 550 of the FW Act. Thirdly, Mr Peat’s affidavit evidence is that the failure to pay accrued entitlements in full was due to an error by Visual Thing’s accountant. That evidence was not challenged in cross-examination and I accept it. Accordingly, Ms Chin has failed to prove on the balance of probabilities that Mr Peat was knowingly concerned in Visual Thing’s contravention, as that term is defined under s 550 of the FW Act.
Failure to provide copies of the Award and the NES
Ms Chin submits that Mr Germano and Mr Peat were wilfully blind as to Visual Thing’s statutory and Award obligations.
Firstly, Ms Chin submits that the Court should find it improbable that Visual Thing, under the management of sophisticated business people such as Mr Dore-Smith and Ms Cummings, would be unaware of the existence of industrial awards and that they regulate employment relationships. I reject that submission. I am unable to see how this in any way establishes that either Mr Germano or Mr Peat were knowingly involved in the relevant contravention.
Secondly, Ms Chin submits that the evidence of Mr Peat and Mr Germano demonstrates that they had knowledge of (at least) the existence of the Award and that this, coupled with their responsibilities in Visual Thing and knowledge from their own work history, should result in the Court finding that any alleged ignorance by them of the details of the Award was a result of their wilful blindness. Ms Chin relies upon evidence given by Mr Dore-Smith in cross-examination at page 89 of the transcript and that of Mr Germano at page 145 of the transcript. I also reject that submission. I do not consider that either Mr Dore-Smith or Mr Germano’s evidence is to the effect asserted by Ms Chin. The subject of cross-examination of both Mr Dore-Smith and Mr Germano relied upon was in relation to the setting of salaries by Visual Thing and when read in context is far less equivocal than asserted by Ms Chin. It was never put to either Mr Dore-Smith or Mr Germano that they were aware of the requirement under the Award to provide a copy of it and the NES to Ms Chin. Further, even if their evidence is as asserted by Ms Chin, as set out above, there is a divergence of authority as to whether knowledge of the Award terms is required.
In light of all of the above, I am not satisfied that Ms Chin has proved on the balance of probabilities that Mr Peat and/or Mr Germano was involved in the contravention arising from Visual Thing’s failure to provide copies of the Award and the NES, for the purposes of s 550 of the FW Act.
Failure to pay annual leave loading
Ms Chin relies upon the above submissions in support of her contention that Mr Germano and Mr Peat were knowingly concerned in Visual Thing’s contravention arising from the failure to pay annual leave loading. For the reasons set out above, I am not satisfied that Ms Chin has proved on the balance of probabilities that Mr Peat and/or Mr Germano was involved in the contravention arising from Visual Thing’s failure to pay annual leave loading.
Accessorial liability for determined contraventions
Unreasonable additional hours
Ms Chin submits that upon Visual Thing being found to have contravened s 62 of the FW Act, the Court ought also find that Mr Germano and Mr Peat were accessorily liable. Ms Chin submits that it cannot sensibly be contended that either Mr Germano or Mr Peat did not have knowledge of the 40 hour week. This is, correctly in my view, conceded by the Respondents. Ms Chin further contends that Mr Germano and Mr Peat knew that excess hours were unlawful due to Ms Chin’s complaints in 2019 and 2021. I reject that submission. As to the 2019 complaint, even on Ms Chin’s own evidence no complaint that working hours of 40 per week were unlawful was made at that time such that knowledge of this by either Mr Germano and Mr Peat is established or can be inferred; rather, even if Ms Chin’s evidence is accepted, it is that working hours were “unusually long” and a 6.00pm finish extended the commuting time for employees living in the north. As to the complaints in 2021, I refer to and repeat my comments in relation to the 12 May 2021 meeting set out in paragraph [126] above. I reject that this evidences that either Mr Germano or Mr Peat knew that a 40 hour week was unlawful. Indeed, the evidence before the Court is that the Respondents considered a 40 hour week to be industry standard. There is no evidence that either Mr Germano or Mr Peat were aware of clause 9.1 of the Award or the provisions of s 62 of the FW Act. In her response to the Inappropriate Conduct Allegations of 14 July 2021 Ms Chin specifically raised the contractual requirement to work 40 hour per week and that it exceeded the maximum hours for a full-time employee (being 38 hours per week). Accordingly, I accept that from this time on Mr Germano and Mr Peat knew that 40 hours per week was in excess of the weekly maximum hours for a full-time employee. However, hours in addition to 38 per week are only in breach of s 62 if they are unreasonable. As already set out, the evidence before the Court is that the Respondents considered a 40 hour week to be industry standard, needed to meet client deadlines and reasonable. Further, Ms Chin did not return to work after 17 June 2021, which predates by almost one month the 14 July 2021 response.
Accordingly, I do not consider that Ms Chin has proved on the balance of probabilities that Mr Peat or Mr Germano was involved in the contravention arising from Visual Thing requiring Ms Chin to work unreasonable additional hours, as that term is defined in s 550 of the FW Act.
Failure to pay overtime rates
Ms Chin submits that Mr Germano and Mr Peat are accessorial liable for Visual Thing’s failure to overtime rates to Ms Chin. Ms Chin relies upon the maters set out in paragraph [296] above.
For the reasons set out above, I reject those submissions. Accordingly, I do not consider that Ms Chin has proved on the balance of probabilities that Mr Peat or Mr Germano was involved in the contravention arising from Visual Thing requiring Ms Chin to work unreasonable additional hours, as that term is defined in s 550 of the FW Act.
Second Adverse Action – Cancellation of Pre-Approved Leave
I have found the Cancellation of the Pre-Approved Leave was for a prohibited reason and contravened s 340(1) of the FW Act. I have found that the decision makers were Mr Germano, Mr Peat and Mr Dore-Smith.
The Respondents concede in their closing written submissions that if the adverse action alleged by Ms Chin is established, accessorial liability is also established for that Respondent.
Accordingly, I find that Mr Germano and Mr Peat were involved in Visual Thing’s contravention arising from Visual Thing cancelling Ms Chin’s pre-approved leave on 17 June 2021, as that term is defined in s 550 of the FW Act and therefore are liable as accessories for that contravention.
Third adverse action – New Leave Rule
I have found the imposition of the New Leave Rule was for a prohibited reason and contravened s 340(1) of the FW Act. I have found that the decision makers were Mr Germano, Mr Peat and Mr Dore-Smith.
The Respondents concede in their closing written submissions that if the adverse action alleged by Ms Chin is established, accessorial liability is also established for that Respondent.
Accordingly, I find that Mr Germano and Mr Peat were involved in Visual Thing’s contravention arising from the Visual Thing imposing the New Leave Rule, as that term is defined in s 550 of the FW Act and therefore are liable as accessories for that contravention.
FUTURE CONDUCT
The hearing was concerned with liability only. In these circumstances, the matter will be listed for directions to fix a timetable for a hearing on the question of remedy, including any penalties.
I certify that the preceding three hundred and six (306) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 13 September 2024
ANNEXURE A
Schedule A – Classification Definitions
The definitions for the classification levels are as follows:
A.1 Level 1An employee at this level is undertaking up to 38 hours of induction training. This does not restrict or limit the employment of new employees at a higher level should they be accepted as possessing experience or skills appropriate to a higher level.
An employee at this level:
·performs elementary routine duties of a repetitive nature;
·works under direct supervision;
·is aware of the tasks required at level 2;
·observes safe work practices;
·undertakes literacy and numeracy training (if required) to perform tasks functionally; and
·undertakes training so as to enable them to work at level 2.
On the completion of the required training, the employee will be reclassified to level 2.
A.2 Level 2
Employees at this level perform work above the skills of an employee at level 1 to the level of their competence, skill and training.
An employee at this level will be capable of:
·having an orientation to machinery and equipment;
·assisting with preparation of basic machines;
·operating materials handling equipment;
·undertaking housekeeping and routine maintenance cleaning;
·having a basic knowledge of computer-controlled systems as it relates to their work;
·understanding and applying work health and safety practices and existing procedures applying in their work area at their level of training;
·understanding and applying existing work procedures applying in their work area to their level of training;
·following instructions;
·understanding quality standards of the enterprise applying in their work area;
·working under direct supervision to the level of training or skills held;
·being a member of and understanding operating guidelines of their workgroup/team; and
·potentially assisting in on-the-job training of others in their area by way of explanation and demonstration.
Indicative tasks at this level may include:
·assisting with make ready of basic machines;
·repetition work on automatic, semi-automatic or single purpose machines or equipment;
·repetitive work of a basic nature such as maintaining simple records and single purpose functions as in manual folding, perforating, stacking, inserting and paging;
·housekeeping and routine maintenance cleaning.
A.3 Level 3
Employees at this level perform work above the skills of an employee at level 2 to the level of their competence, skill and training.
An employee at this level will be capable of:
·following written or verbal instructions;
·having knowledge of computer controlled systems as it relates to their work area;
·understanding and applying existing work procedures applying in their area;
·performing housekeeping functions within immediate area; this may include lubricating equipment under direction;
·assisting in forward planning materials and equipment for next job;
·identifying quality variations;
·recognising when problems arise and referring appropriately in own work area;
·being a member of and understanding the operating guidelines of their work group/team;
·undertaking work prescribed on a task basis through written and verbal instructions and with continuous presence of a skilled operative;
·working under direct supervision; and
·assisting in the on-the-job training of others up to this level by way of explanation and demonstration in conjunction with skilled operators and supervisor.
Indicative tasks at this level may include:
·routine setting, adjustment and operation of basic similar pieces of equipment such as plastic laminating machine;
·assisting with basic duties on a printing machine under direct supervision by cleaning, washing up of ink ducts, blankets and impression cylinders, stacking and removing delivery, stack on sheet fed press;
·applying work health and safety practices and environmental protection procedures;
·operating computer-controlled systems using basic keyboard skills as it relates to their work area;
·operating of non-licensed materials handling equipment;
·matching of product against quality standards within own work area;
·operating an envelope cutter and/or die cutter, marking and laying out;
·storing and packing of goods and materials in accordance with appropriate procedures and/or regulations, preparation and receipt of appropriate documentation, allocating and retrieving goods from specific warehouse areas, basic visual display unit operation, periodic housekeeping and stock checks; and
·assisting in the on-the-job training of others up to this level in conjunction with skilled operators and a supervisor.
A.4 Level 4
Employees at this level perform work above the skills of an employee at level 3 to the level of their competence, skill and training. An employee at this level may have completed an AQF Certificate Level II or equivalent training qualification.
An employee at this level will be capable of:
·working to written instructions and issuing verbal instructions;
·forward planning materials and equipment required for next job;
·identifying quality variation by matching product against quality standard within own work area;
·understanding of routine and preventive maintenance procedures and applying them in their work;
·participating in and contributing to work group or team decision making, problem solving and team operating; and
·understanding the enterprise’s production processes and products and the administrative and organisational procedures as they relate to the immediate work area.
Indicative tasks at this level may include:
·machine setting, adjustment and operation on a variety of equipment;
·applying work health and safety practices, environmental protection procedures;
·assisting in on-the-job training of others up to this level in conjunction with skilled adults and supervisors;
·lubricating of production machinery equipment;
·inventory and store/warehouse control including licensed operation of all appropriate materials handling equipment; use of tools and equipment within the warehouse; basic non-trades maintenance; visual display unit operation;
·operating computer controlled systems using intermediate keyboard skills as it relates to their work area; and
·maintaining established paper-based filing and records system in accordance with set procedures including creating and indexing new files, distributing files within the organisation as requested and monitoring file locations.
A.5 Level 5
Employees at this level perform work above the skills of an employee at level 4 to the level of their competence, skill and training. An employee at this level may have completed a trade certificate, AQF Certificate Level III or equivalent training qualification.
An employee at this level will be capable of:
·understanding the enterprise’s production process and products, and administrative and organisational procedures as they relate to the work area;
·providing informal on-the-job training to the level of their training and skill;
·identifying quality variations of products and/or materials in the production process for conformity with established production standards, making adjustments to maintain quality standards;
·having a working knowledge of routine and preventative maintenance procedures;
·solving straightforward problems based on set procedures or factual information;
·operating a computer-controlled system as an integral aspect of work to their level of training and accredited skill;
·working under minimal supervision;
·exercising discretion, work guided by general work processes and procedures;
·being responsible for the work of others under their supervision;
·being a member of and understanding operating guidelines of a work group or team;
·working to written instructions and working to and issuing verbal instructions; and
·understanding and applying work health and safety and safe working practices and environmental protection in their own work area.
Indicative tasks at this level may include:
·setting, adjusting and operating a range of equipment in one of either pre-press, press or post-press areas;
·having a sound knowledge of the employer’s operations as they relate to the production process;
·understanding and applying computer techniques as they relate to production process operations;
·making adjustments to maintain quality standards;
·forward planning material and equipment for next job;
·undertaking maintenance to the level of their training and accredited skill including lubrication, elementary diagnosis of faults, routine adjustments and reporting on worn or damaged parts;
·high level stores and inventory responsibility beyond the requirements of an employee at level 4;
·formatting complex documents including technical data, technical language, tables, graphics, design variable type face;
·producing documents requiring specific form or to comply with regulations or standards; and
·undertaking basic art and design to their level of training and accredited skill.
A.6 Level 6
Employees at this level perform work above the skills of an employee at level 5 to the level of their competence, skill and training. An employee at this level may have completed a trade certificate, AQF Certificate Level III or equivalent training.
An employee at this level will be capable of:
·having a general knowledge of enterprise processes and procedures impacting on their own area;
·providing on-the-job training to the level of their training and accredited skill;
·having knowledge of problem-solving techniques and procedures in their own area;
·identifying quality variations of products and/or materials in the production process for conformity with established production standards;
·making adjustments to maintain quality standards;
·exercising limited discretion, work guided by general work processes and procedures;
·having a working knowledge of routine and preventive maintenance procedures;
·undertaking maintenance procedures;
·participating in, developing and implementing appropriate work health and safety and environmental protection practices in their area of work;
·participating in and contributing to work, group or team decision making, problem solving and team operation;
·being responsible for the work of others under their supervision; and
·working under minimal supervision.
Indicative tasks at this level may include:
·set up and operation of machines of a complex nature in one of either the pre-press, press or post-press area;
·forward planning materials and equipment for next job;
·making adjustments to maintain quality standards;
·providing trade guidance and assistance as part of a work team;
·operating a computer controlled system as an integral aspect of work to their level of training and accredited skill;
·undertaking maintenance procedures to the level of their training and skill including lubrication, elementary diagnosis of faults, routine adjustments and assisting with the replacement of parts and equipment;
·applying knowledge of desk-top publishing to integrate complex documents;
·maintaining control registers including inventory control and being responsible for the preparation and reconciliation of regular reports and stock movement; and
·undertaking intermediate art and design to their level of training and accredited skill.
A.7 Level 7
Employees at this level perform work above the skills of an employee at level 6 to the level of their competence, skill and training. An employee at this level may have completed a trade certificate, AQF Certificate Level III or equivalent training.
An employee at this level will be capable of:
·having the skills and knowledge to set up and operate machines of a complex nature in one of either pre-press, press or post-press areas; may have general knowledge of other functional areas impacting on their own;
·having a thorough knowledge of enterprise’s processes and procedures impacting on own area;
·working under minimal supervision either individually or in a team;
·operating a computer-controlled system as an integral aspect of work to their level of training and accredited skill;
·undertaking routine and preventive maintenance to the level of their training and accredited skill;
·participating in, developing and implementing appropriate work health and safety and environmental protection practices in their area of work;
·co-ordinating work in a team environment; and
·identifying quality variations of products and/or materials in the production process for conformity with established production standards contributing to diagnosis of quality variations and making adjustments to maintain quality standards.
Indicative tasks at this level may include:
·set up, adjustment and operating of machines of a complex nature in one of either pre-press, press or post-press areas;
·providing trade guidance and assisting as part of a work team;
·assisting in the provision of training in conjunction with supervisors and trainers;
·removing and replacing specific assemblies in immediate work area;
·allocating tasks to team members in order to meet planned production requirements and being responsible for the work of others under their supervision;
·evaluating usefulness or applicability of software programs (using existing software programs) and recommending solutions to meet new or different application requirements; and
·undertaking complex art and design to their level of training and accredited skill.
A.8 Level 8
Employees at this level perform work above the skills of an employee at level 7 to the level of their competence, skill and training. An employee at this level may have completed a trade certificate, AQF Certificate Level IV or equivalent training.
An employee at this level will be capable of:
·having a thorough knowledge of production processes and procedures in own area and general knowledge of downline processes;
·working under minimal supervision and demonstrating a high level of proficiency;
·undertaking routine production scheduling and materials handling within the scope of their area of work to maintain planned production requirements;
·monitoring, evaluating and reporting quality variations within a broad work area;
·having a knowledge of process, problem solving techniques and procedures and exercising initiative and judgment in solving day-to-day operational problems;
·exercising considerable discretion; work is guided by company precedents and policies; work procedures may be adopted to meet production requirements;
·operating a computer-controlled system as an integral aspect of routine work to their level of training and accredited skill;
·undertaking routine and preventative maintenance to the level of their training and accredited skill;
·removing and replacing assemblies/subassemblies to carry out cleaning and inspection of parts;
·participating in, developing and implementing appropriate work health and safety practices in the area of work; encouraging staff under their supervision to accept and enforce safety requirements;
·providing technical guidance and assistance to work, groups and teams;
·providing on-the-job training in conjunction with supervisors and/or trainers; and
·being responsible for the work of others under their supervision and has undertaken supervisory training.
Indicative tasks at this level may include:
·exercising high precision trade skills;
·exercising intermediate Computer-aided Design and Computer-aided manufacturing (CAD/CAM) skills in the performance of routine modifications to programs;
·creating or producing original design roughs or finished artwork from employer or clients’instructions, either manually or by computer;
·liaising and advising internal customers and employees outside the work team;
·operating and/or co-ordinating a group of computers such as a small multi-user system or a large group of personal computers which may include operating a help desk; and
·participating in problem solving techniques and procedures and exercising initiative and judgment in solving day-to-day operational problems.
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