b'CASE LAWHOURS OF WORKChin v Visual Thing Australia Pty Ltd [2024] FedCFamC2G 896What happened: Ms Chin was employed full-time as a creative retouching specialist by Visual Thing Australia from 2014 until hertermination in 2022. Her contract required her to work 40 hours per week, Monday to Friday, 9am to 6pm. Despite being entitled to overtime payments under the Award, Ms Chin received only her annual salary with noovertime compensation. Ms Chin claimed her employer breached s62 of the Fair Work Act by requiring her to work unreasonable additionalhours without pay. Outcome: The Court acknowledged that Ms Chins employer worked in a fast-paced industry with typical 40-hour work weeksand that Ms Chin could have raised concerns about overtime during her employment. However, the Court foundnothing in her role that justified regularly working more than 38 hours per week. While two hours of overtime in asingle week might be reasonable, the Court ruled that the consistent and prolonged nature of the overtime made itunreasonable. Ultimately, the Court held that the employerfailed to prove the overtime was reasonable and thereforePracpteircfaolr mImanpclee mmaennatgaemtioennt/ Lpeolaicryn ings:breached section 62 of the Fair Work Act by requiring MsChin to work unreasonable additional hours.1.38 hours is the legal defaultUnder theFair Work Act, full-time employees mayonly be required to work up to 38 hours The Legislation: per week. Any hours beyond this must be Section 62 of the Fair Work Act 2009 (Cth), regulates the hours ofdemonstrably reasonablethe burden of work for full-time employees and prescribes that:proof falls on the employer. Employers must not require full-time employees to work more2.Legislation trumps contract termsEven than 38 hours per week unless the additional hours areif a contract states that an employee is to reasonable.work a 40 hour week, section 62 of the Employees have the right to refuse to work unreasonableFair Work Act sets the statutory maximum additional hours.at 38 hours and breaches of that may giverise to penalties under the FWA. In When assessing reasonableness, courtsaddition to this, a modern award or generally start with the assumption that hoursagreement may require extra payments for beyond 38 per week are unreasonable.hours exceeding the weekly maximum andemployers will also need to be mindful of The burden of proof is on the this. 3.Reasonableness depends on role and employer to demonstrate that any contextFactors such as position additional hours worked are seniority and industry practices, will reasonable under the influence whether additional hours are circumstances.considered reasonable. Routine overtime,even if minimal, can be deemedunreasonable over time.4.Customary practice doesnt make it legal An industry norm of working 40 hours perweek doesnt automatically justifyexceeding the 38-hour threshold withoutadequate justification or remuneration.Page | 25IR Update July 2025'