Background
A class action was commenced by the Australian Salaried Medical Officer’s Federation (ASMOF) on behalf of its group members, and Dr Gaby Bolton on her own behalf, against Peninsula Health, the major metropolitan health service for Frankston and the Mornington Peninsula in Victoria. Peninsula Health provides a range of health services across several sites, including Frankston Hospital.
ASMOF is an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth). The group members were junior doctors described as ‘Doctors in Training’. Doctors in Training included employees classified as Hospital Medical Officers, Medical Officers and Registrars under the Victorian Public Health Sector (AMA Victoria) – Doctors in Training (Single Interest Employers) Enterprise Agreement 2013 (2013 Agreement) and the AMA Victoria – Victorian Public Health Sector – Doctors in Training Enterprise Agreement 2018 – 2021 (2018 Agreement).
Claim
The class action concerned claims made for, and on behalf of, Doctors in Training employed by Peninsula Health for unpaid overtime worked between 12 March 2015 and 12 March 2021. Dr Bolton and the group members alleged that they were not paid their entitlements under the 2013 Agreement and 2018 Agreement for overtime work performed, contrary to section 50 of the Fair Work Act 2009 (Cth) (FW Act).
In relation to Dr Bolton, she claimed that between January 2019 and January 2021 she worked overtime in order to prepare for and subsequently undertake ward rounds, prepare patients for medical procedures, undertake handover and complete medical records. This overtime work was performed with the authority of Peninsula Health, which Dr Bolton contended engaged the obligation imposed upon Peninsula Health under the 2018 Agreement to pay for the overtime work performed at overtime rates of pay.
Issues for consideration
The Court ordered that the following issues were to be dealt with by way of an initial trial:
- the underpayment of overtime entitlements claimed by Dr Bolton; and
- the determination of ‘common questions’ which, when answered, will be binding on those group members who have not opted out of the proceeding.
In the initial trial, ASMOF and Dr Bolton only pressed common questions 6 – 9, being:
- Whether authorisation to work overtime in excess of rostered hours, within the meaning of clause 32.2.1(b) of the 2013 Agreement, is capable of being impliedly given by an employer covered by the 2013 Agreement?
- Whether authorisation to work overtime in excess of rostered hours, within the meaning of clause 36.2(a)(ii) of the 2018 Agreement, is capable of being impliedly given by an employer covered by the 2018 Agreement?
- Whether clause 32.3 of the 2013 Agreement limits the ways in which unrostered overtime can be authorised?
- Whether clause 36.3 of the 2018 Agreement limits the ways in which unrostered overtime can be authorised?
The other questions were abandoned by the group members in the face of contentions made by Peninsula Health that they were not proper common questions.
The central issue raised by common questions 6 – 9, and the central issue in Dr Bolton’s claim, was whether overtime work performed by Doctors in Training was capable of being authorised when authorisation was given impliedly by Peninsula Health and not expressly.
Decision
Peninsula Health argued that on the proper construction of the 2018 Agreement and in circumstances where various policies of Peninsula Health dealing with the authorisation of overtime were in existence and applicable, there was no scope for Peninsula Health to have given its authority impliedly. Peninsula Health contended that the word ‘authorised’ in the 2018 Agreement be given its plain grammatical meaning, being “to give authority or legal power to” and that there was no warrant for reading the word broadly or narrowly. Essentially, Peninsula Health contended that the obligation imposed upon by the employer under cl 36.2(a)(ii) of the 2018 Agreement is only engaged where the employer gives authorisation for the hours worked in the manner in which the employer has prescribed the authorisation to be given. Peninsula Health’s prescribed mode of authorisation was express authorisation through a particular process made known to its medical practitioners.
However, the Court noted that it could not have been intended by the framers of the 2018 Agreement that work performed by medical practitioners in excess of ordinary hours, which had not been rostered but nevertheless been worked as requested or required by their employer, would not be payable as overtime. The meaning of ‘authorised hours’ in clause 36.2(a)(ii) must have been intended to encompass those hours which the employer requested or required the employee to work.
The Court stated that it follows that an authorisation, in the form of a request or requirement made by the employer to the medical practitioner that they work in excess of their rostered hours would suffice to designate the time worked by the employees as ‘authorised hours’ which the employer must pay for at the overtime rate pursuant to the obligation imposed by clause 36.2.
The Court ultimately determined that an authorisation for an employee to work overtime can be given by Peninsula Health impliedly, and when given so, Peninsula Health is obliged by the 2013 Agreement or the 2018 Agreement to pay for the overtime work it has authorised. As such, the Court determined that the answer to common questions 6 and 7 was ‘yes’ and the answer to common questions 8 and 9 was ‘no’.
In relation to Dr Bolton, the Court determined that she was authorised in respect of each category of overtime claimed, other than for what the Court referred to as ‘ward round overtime’. As Dr Bolton was not paid overtime for the work which the Court determined Peninsula Health authorised her to perform, Peninsula Health was found to have contravened the 2018 Agreement and therefore section 50 of the FW Act.
In considering the compensation that Dr Bolton should be awarded, the Court was satisfied that the overtime hours claimed to have been worked by Dr Bolton were substantially, but not entirely, proven. The Court requested that the parties consider its reasons and attempt to agree on a sum to which Dr Bolton is entitled to and propose orders to the Court addressing compensation as well as interest.
The Court also ordered the parties to attempt to agree on the terms of the declarations to be made to the Court that will reflect the contraventions of the FW Act found by the Court.
As the initial hearing was confined to liability, the Court noted that if ASMOF and Dr Bolton continue to press for penalties, the parties should consult and propose appropriate orders to the Court in relation to the timetabling of a penalty hearing.
Conclusion
Doctors often work long hours which may go beyond their rostered shifts to complete tasks such as patient notes, ward rounds and handovers. Such tasks may be required to be undertaken in order to fulfil their duties. However, if this work is impliedly authorised this may amount to overtime and should be paid as such.
This decision serves as a timely reminder to employers to ensure they have up to date contracts to deal with overtime, they keep appropriate records of any overtime worked by its employees and that senior managers have an understanding of what may amount to impliedly authorising overtime.
