Facts. In Gorval & Ors v Employsure [2016] FCCA 231, Mr Sergey Gorval, Matthew Lynch and Christopher Mahoney (the "individuals") were employed full-time as employment lawyers for Employsure (the "Employer"). In their contract of employment, they were all required to work hours which were "reasonably necessary to fulfil the requirements of [their] role" and their core business hours of work were 8:30 a.m. to 5:30 p.m. Monday to Friday. During the week, they were allowed up to one hour of lunch a day and worked a total of 45 hours a week.

Each individual made a small claim under the FWA, alleging that

they were entitled to compensation for unpaid overtime. They relied on s 62 of the FWA which provides that An employer must not request or require a [full-time] employee to work more than [38] hours in a week unless the additional hours are reasonable.

Mr Gorval made additional claims of $2,700 for a bonus payment for introducing a client to the Employer under s 323 of the FWA and $5,000 for back payment of wages upon discovering that he was being paid $5,000 less per annum than the two other individuals.

Reasoning. Judge Altobelli rejected the individuals' first argument that they were paid on their lunch break and therefore they worked 45 hours. No evidence was adduced by the individuals that they had worked during their lunch breaks, and up to the point of the hearing in court, no claim had been made that they were entitled to payments during lunch breaks. Nor was it made expressly clear in their employment contracts. Therefore, on the basis that a one-hour lunch break was taken from Monday to Friday, the individuals would have worked only up to 40 hours.

Regarding the maximum number of hours under s 62 of the FWA, Judge Altobelli did not consider working two additional hours per week to be unreasonable, taking into account the legal nature of the work the individuals were doing and the culture of working longer hours in the legal profession.

As to Mr Gorval's bonus payment claim, Judge Altobelli reasoned that a difficulty for Mr Gorval relying upon s 323 of the FWA was that Mr Gorval could not show that the bonus payment was "payable to [him] in the performance of work". However, Judge Altobelli relied upon the accrued jurisdiction of the court and considered Mr Gorval's claim as being restitutionary. This meant that the Employer gained a benefit, from Mr Gorval introducing a client to them and it would have been unjust if they did not compensate him for that benefit. Accordingly, Mr Gorval was entitled to receive a payment of $2,700.

Regarding Mr Gorval's back payment of wages claim, Mr Gorval relied upon evidence that he was told by the Managing Director of the Employer that his salary situation would be rectified "quickly". The situation was not rectified until nearly three months later. Judge Altobelli was unable to see how the dispute could be dealt with under the FWA. Despite this, Judge Altobelli relied upon the accrued jurisdiction of the court and regarded the term "quickly" as being a period of two weeks, and therefore Mr Gorval was entitled to be paid the difference in pay, subject to taxation.

Consequences. This decision demonstrates that the number of additional hours required for work in a particular role will often vary with size of the Employer and the Employer's industry.

We thank associates Michael Whitbread, Clare Langford, Jay Tseng and Joshua Kang for their assistance in the preparation of this Update.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.