When the work keeps stretching
Putting in extra hours is the norm for many staff in advertising and media industries
‘Additional hours may be required to meet the needs of the business” — it’s a common phrase that’s often tucked away in an employment contract. While it looks like an innocuous reference to an hour here or there, these words have the capacity to stretch when placed in the wrong hands.
An advertising industry staffer recently ran the Herald through a standard workday over the past few weeks.
It was a tale of 6am starts, 6.30pm finishes and a decent dollop of weekend work added in for good measure.
“On your way home from work, you think it’s over, but it’s not,” the staffer tells the Herald. “Your email is connected to your phone and it’s flashing like a strobe light at a club. You are always on. Even when you’re not in the office.”
The employee, who is on a standard 40-hour-a-week contract, essentially worked 30 hours without remuneration. Hypothetically, if they were on a junior’s annual salary of about $50,000, that would equate to $721 in unpaid wages for that week.
The staffer wasn’t complaining. The extra hours were just part of an otherwise enjoyable job. And besides, as staffers in media and advertising are often told, “if you can’t handle the heat then you shouldn’t be in this business”.
This story isn’t an exception. Last year the Herald received an anonymous email about working conditions at one of the biggest names on the local advertising scene.
“They have had meetings on multiple occasions where they tell the staff they are expected to stay late and not be paid for this — the staff are told this is just a part of working for an advertising agency,” the email said.
“The higher-ups make sure to drill into the staff that they are easily replaced — they make it a toxic work environment.” This insecurity among workers is only becoming more pronounced as margins become thinner and advertising revenue increasingly shifts abroad.
All of this contributes to greater competition and the ever-present reality that someone else might be biting at your heels to take your place. If you don’t work late, somebody else will — and this contributes to a culture where extra work becomes the norm rather than the exception.
As the anonymous emailer reveals: “The rostered hours are 8.30am to 5.30pm with the expectation of staying as late as 9pm or even later in some cases — working free from 5.30pm onwards.”
In some cases, this thinking is such a standard part of the culture that it’s woven into the way default contracts are written.
Take this example from a local media company: “You will be expected to work the company’s normal office hours, being 9.00 to 5.30pm Monday to Friday and such additional hours as are reasonably necessary in order to meet the responsibilities of your position.
“Flexibility is paramount with respect to working hours. In busy times you will be expected to work in excess of the hours stated above.
“Your remuneration package has been designed to encompass this arrangement and as such overtime is not payable.”
So how far can this legally stretch? And what protections do employees have when they’ve ultimately agreed to unfavourable conditions in an industry notorious for overwork?
Employment law specialist Catherine Stewart tells the Herald there have been a number of recent developments in employment law designed specifically to protect employees from working excessive hours and not being paid fairly for them.
The first big change came in a 2016 update to the Employment Relations Act, requiring employers to provide guaranteed hours and “reasonable compensation” for any overtime.
“In other words, the employee needs to be paid, and paid a reasonable amount, for those additional hours,” says Stewart.
“Furthermore, staff can only be required to work the additional hours if the employer has ‘genuine reasons based on reasonable grounds’ for requiring them to be available over and above their usual hours.”
Stewart says it’s possible for employees to agree that their pay also covers some availability outside normal hours, but this doesn’t mean employers can get off the hook with a catch-all phrase.
“The amount of the salary needs to fairly reflect payment for the extra hours,” she says.
“An employee is entitled to refuse to work or be available for the extra hours if the compensation is not reasonable.”
The legislation doesn’t expressly state what constitutes “reasonable” pay, but there are a number of guidelines to provide an indication. An important one among them is comparing the number of hours the employee is required to work with the number of hours originally agreed in the contract.
The law also goes further than you’d think: Stewart says a landmark case last year — Postal Workers Union of Aotearoa Inc v NZ Post Ltd — found the legislation applies even if a worker was put on call but ultimately not called into work.
“The new rules recognise an employee’s time is a ‘commodity which has a value’ and if employees are restricted in their personal life because they may be required to work some additional hours, they should still be compensated even if they were not actually called upon to work,” Stewart says.
Although the legislation was updated to protect employees across all sectors, both the anecdotes told here occurred after 2016. This points to an ongoing reluctance among staffers working in advertising, media and marketing to speak out when they are treated unfairly.
Whether it’s a case of low union numbers, the younger skew of the staff demographics or fear of burning bridges in a small industry, it’s difficult to see this issue going away any time soon.
Perhaps, developments across the ditch provide a glimpse at what change might look like in New Zealand.
In response to the tradition of long hours in the Australian law industry, new regulations require firms to now record all hours worked by graduate lawyers and paralegals, no matter how high the salary, in a step to ensure staff aren’t working so much overtime that they end up earning below the minimum wage.
Should the same regulations hit the advertising and media industry in New Zealand, the conversation would quickly shift from how much overtime is fair, to which businesses are inflating their bottom lines on the backs of exploited workers.
The employee needs to be paid, and paid a reasonable amount, for those additional hours.
Lawyer Catherine Stewart