Chin v Visual Thing Australia Pty Ltd

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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…

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Details
Case
[2024] FedCFamC2G 896
Decision Date

CaseChat Overview and Summary

The applicant, Ms Chin, brought proceedings against Visual Thing Australia Pty Ltd, its directors, and Mr Germano, as the Studio Manager, for various contraventions of employment law, including unreasonable additional hours, overtime payments, adverse action, and accessorial liability. The central issue was whether Visual Thing had contravened the Fair Work Act 2009 (Cth) and the Graphic Arts, Printing and Publishing Award 2020 by requiring Ms Chin to work unreasonable additional hours and by failing to pay her overtime rates. Additionally, Ms Chin claimed that she had been subjected to adverse action in contravention of the Fair Work Act, and the respondents were accessorially liable for these contraventions. The court had to determine whether the additional hours Ms Chin worked were reasonable, whether she was entitled to overtime payments, and whether the respondents had taken adverse action against her.

The court considered the principles of set-off and restitution based on common mistake, Ms Chin’s classification under the Award, and the nature of her work and duties. The court found that Ms Chin had indeed worked unreasonable additional hours beyond the 38-hour limit stipulated by section 62 of the Fair Work Act. The burden of proof was on Visual Thing to show that these additional hours were reasonable, a burden which the court found they had not discharged. The court also examined whether Visual Thing had failed to pay Ms Chin overtime rates for these additional hours. The respondents argued that Ms Chin's contract specified 40 hours per week, including some downtime, but the court found that Ms Chin had consistently worked and was paid for 40 hours per week, confirming the requirement to work additional hours.

Regarding adverse action, the court established that two of the six instances of adverse action claimed by Ms Chin were substantiated, and the respondents failed to discharge the reverse onus to show these actions were not adverse. The court found that Visual Thing had contravened section 340(1) of the Fair Work Act by taking adverse action against Ms Chin. The court also held the second and third respondents accessorially liable for these two instances of adverse action. The court’s reasoning was based on the evidence provided and the legal standards set by previous case law, particularly the need for employers to demonstrate that any additional hours worked by an employee are reasonable, and the requirement for employers to take specific actions to avoid adverse consequences under the Fair Work Act.

The court’s final orders included findings that Visual Thing had contravened section 62 of the Fair Work Act by requiring Ms Chin to work unreasonable additional hours, that it had failed to pay her overtime rates, and that it had taken adverse action against her in two instances. The court also found the second and third respondents accessorially liable for the two substantiated instances of adverse action. The court ordered that Visual Thing pay Ms Chin compensation for the contraventions and that the second and third respondents be held accessorially liable for the adverse action.

Orders

Orders of the court

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Background

Background to the litigation

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. CLAIMSREQUIRING MS CHIN TO WORK EXCESS HOURSApplicable 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGE J

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Ratio Decidendi

Legal Principle Established

Established by: JUDGE J

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?