Australian Salaried Medical Officers' Federation v Peninsula Health
[2023] FCA 939
•11 August 2023
FEDERAL COURT OF AUSTRALIA
Australian Salaried Medical Officers’ Federation v Peninsula Health [2023] FCA 939
File number: VID 115 of 2021 Judgment of: BROMBERG J Date of judgment: 11 August 2023 Catchwords: INDUSTRIAL LAW – representative proceeding pursuant to Pt IVA of the Federal Court of Australia Act 1976 (Cth) – junior doctors class action – application for relief under the Fair Work Act 2009 (Cth) – alleged breaches of enterprise agreements – claim for unpaid entitlement to unrostered overtime – meaning of the phrase “authorised hours” in applicable enterprise agreements – whether authorisation may be constituted by a request, requirement or other approval given by the employer – whether authorisation impliedly given may engage the payment obligation imposed by the relevant enterprise agreements – whether only an authorisation given by the employer consistently with a mode or process (policy) adopted by the employer will suffice to engage the payment obligation – whether, as a matter of fact, unrostered overtime was impliedly “authorised” by the employer – employer policies dealing with overtime relevant to whether, as a matter of fact, authorisation may be implied – policies that are unknown or not applied unlikely to have a bearing on authorisation – whether estoppel is available as a defence to a claim of unpaid entitlements under an enterprise agreement – principles for proving loss in an underpayment claim in the absence of precise evidence of hours worked – application allowed in part – common questions determined Legislation: Copyright Act 1968 (Cth) s 36(1)
Evidence Act 1995 (Cth) ss 60, 81 and 136
Fair Work Act 2009 (Cth) Pt 2-4, ss 50, 545, 546(3), 547
Fair Work (Registered Organisations) Act 2009 (Cth)
Fair Work Regulations 2009 (Cth) reg 3.33(2) and reg 3.34
Federal Court of Australia Act 1976 (Cth) Pt IVA, s 21
Health Services Act 1988 (Vic)
Workplace Relations Act 1996 (Cth)
Cases cited: ACE Insurance Ltd v Trifunovski (2011) 200 FCR 532
Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241
Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd (2007) 157 FCR 564
Australian Competition and Consumer Commission v AGL South Australia Pty Ltd [2014] FCA 1369
Australian Competition and Consumer Commission v GlaxoSmithKline Consumer Healthcare Australia Pty Ltd (2019) 371 ALR 396
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Campaigntrack Pty Ltd v Real Estate Tool Box Pty Ltd (2022) 292 FCR 512
Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Degenhardt v Ambulance Victoria [2019] FCA 1841
Edwards v Australian Securities and Investments Commission (2009) 264 ALR 723
Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2017] FCA 1245
Ex parte Johnson; Re MacMillan (1946) 47 SR (NSW) 16
Facton Ltd v Rifai Fashions Pty Ltd (2012) 199 FCR 569
Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (MV Portland Case) (No 2) [2020] FCA 1138
Fair Work Ombudsman v Hu (2019) 289 IR 240
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
Global One Mobile Entertainment Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 134
Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641
In re Confectioners (State) Conciliation Committee (1930) 29 AR 184
Jones v Dunkel (1959) 101 CLR 298
Kidd v Savage River Mines (1984) 6 FCR 398
Logan v Otis Elevator Company Pty Limited (2001) 107 IR 253
Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635
Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2021) 289 FCR 308
Metropolitan Health Service Board v Australian Nursing Federation (2000) 99 FCR 95
Polan v Goulburn Valley Health [2016] FCA 440
Polan v Goulburn Valley Health (No 2) [2017] FCA 30
Roadshow Films Pty Ltd v iiNet Ltd (2012) 248 CLR 42
Scotto v Scala Bros Pty Ltd [2014] FCCA 2374 Realestate.com.au Pty Ltd v Hardingham (2022) 406 ALR 678
Sidhu v Van Dyke (2014) 251 CLR 505
Textile Clothing and Footwear Union of Australia v Givoni Pty Ltd (2002) 121 IR 250
Toyota Motor Corporation Australia Ltd v Marmara (2014) 222 FCR 152
University of New South Wales v Moorhouse (1975) 133 CLR 1
Walsh v Commercial Travellers’ Association of Victoria [1940] VLR 259
WorkPac Pty Ltd v Skene (2018) 264 FCR 536
Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 468 Date of hearing: 14 June 2022 – 29 June 2022, 28 – 29 July 2022 Counsel for the Applicants: Mr CW Dowling SC, Ms K Burke and Ms E Brumby Solicitor for the Applicants: Gordon Legal Counsel for the Respondent: Mr F Parry QC, Ms HA Tiplady and Ms NJ Campbell Solicitor for the Respondent: Clayton Utz ORDERS
VID 115 of 2021 BETWEEN: AUSTRALIAN SALARIED MEDICAL OFFICERS’ FEDERATION
First Applicant
GABY BOLTON
Second Applicant
AND: PENINSULA HEALTH
Respondent
ORDER MADE BY:
BROMBERG J
DATE OF ORDER:
11 AUGUST 2023
THE COURT ORDERS THAT:
1.If the parties agree on the appropriate orders and declarations to be made by the Court reflecting these reasons for judgment, the parties on or before 25 August 2023 file a minute of proposed orders and declarations.
2.If the parties do not agree on the orders and declarations which should be made, each of the parties file and serve on or before 25 August 2023:
(a)A minute of the orders and declarations that the party proposes; and
(b)Any outline of submissions in support of the proposed orders and declarations (limited to three pages).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMBERG J:
INTRODUCTION
This is a representative proceeding commenced under Pt IVA of the Federal Court of Australia Act 1976 (Cth) (FCA Act) against the respondent Peninsula Health. The proceeding is brought by the Australian Salaried Medical Officers’ Federation (ASMOF) and Dr Gaby Bolton on behalf of group members, as defined in para 1 of the statement of claim, and by Dr Bolton on her own behalf. ASMOF is an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth) and is entitled to represent persons eligible to be members of that organisation, including persons classified as “Doctors in Training”.
The proceeding concerns claims made for, or on behalf of, Doctors in Training employed by Peninsula Health for unpaid overtime worked between 12 March 2015 and 12 March 2021. The phrase “Doctors in Training” describes employees classified as Hospital Medical Officers, Medical Officers (but not Medical Officers classified as Solely Administrative) 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) (the Agreements). Each of these agreements were made under the Fair Work Act 2009 (Cth) (FW Act). Broadly stated, the group members are Doctors in Training (sometimes called “junior doctors”) employed by Peninsula Health in nominated facilities operated by Peninsula Health. Like the case for Dr Bolton, it is alleged that group members were not paid their entitlements under the 2013 Agreement and/or the 2018 Agreement for overtime work performed by them. Specifically in relation to Dr Bolton, her case is that, at various times between January 2019 and January 2021 (the relevant period), she worked hours in excess of her rostered hours (elsewhere referred to as overtime hours) in order to: prepare for ward rounds; undertake ward rounds; prepare patients for medical procedures; undertake handover; and complete medical records. Dr Bolton contended that the overtime work performed by her was, on each occasion, performed with the authority of Peninsula Health and this engaged the obligation imposed upon Peninsula Health by cl 36.2 of the 2018 Agreement to pay for the overtime work performed at overtime rates of pay.
In summary, the applicants seek by way of relief:
(i)declarations pursuant to s 21 of the FCA Act that Peninsula Health contravened s 50 of the FW Act by failing to pay group members overtime as required by the 2013 Agreement and 2018 Agreement and a separate declaration to this effect with respect to Dr Bolton (referring only to the 2018 Agreement);
(ii)orders pursuant to s 545 of the FW Act that Peninsula Health pay compensation to group members and Dr Bolton for the loss suffered by each of them because of the contraventions of s 50 of the FW Act;
(iii)orders pursuant to s 547 of the FW Act for interest on any amount of compensation ordered under s 545 of the FW Act;
(iv)orders pursuant to s 546(1) of the FW Act that Peninsula Health pay pecuniary penalties for each contravention of the FW Act described above;
(v)orders pursuant to s 546(3) of the FW Act that any penalty ordered by the Court pursuant to s 546(1) be paid to ASMOF; and
(vi)any other orders as the Court considers appropriate.
These reasons for judgment deal with those issues in the representative proceeding that were ordered to be dealt with separately by way of an initial trial. That is:
(a)The underpayment of overtime entitlements claimed by Dr Bolton; and
(b)The determination of those “common questions” which, when answered, will be binding on those group members who have not opted out of the proceeding.
Only common questions 6 to 9 were pressed. The other questions were abandoned by the applicants in the face of contentions made by Peninsula Health that they were not proper common questions. The intent of each of questions 6 and 7 was clarified, as I set out below at [66]. On the basis of that clarification, questions 6 and 7 were accepted by Peninsula Health to be properly common questions. There was no issue raised as to whether questions 8 and 9 were properly common questions. It is those common questions which are herein determined. In their clarified form, they are:
6. 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 Agreement?
7. 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 Agreement?
8. Whether clause 32.3 of the 2013 Agreement limits the ways in which unrostered overtime can be authorised?
9. Whether clause 36.3 of the 2018 Agreement limits the ways in which unrostered overtime can be authorised?
The central issue raised by those common questions, and a central issue in Dr Bolton’s claim, is whether overtime work performed by Doctors in Training is capable of being authorised when authorisation is given by Peninsula Health impliedly and not expressly. The determination of that matter raises constructional issues as to the meaning of the phrase “authorised hours” in cl 32.2 of the 2013 Agreement and cl 36.2 of the 2018 Agreement and, in particular, whether an authorisation given impliedly suffices to engage the employer’s obligation to pay for the overtime work performed by the employee. For Dr Bolton’s claim, there are also factual issues raised on the initial trial as to whether, in relation to each of the claims made by Dr Bolton, Peninsula Health did, in fact, impliedly authorise her to work the overtime hours Dr Bolton claims she worked.
For the reasons that follow, I have determined that each of common questions 6 and 7 should be answered “Yes” and each of common questions 8 and 9 should be answered “No”. Broadly speaking, that means that, in Dr Bolton’s case and in the case of the claims made on behalf of each group member, the Court has determined that an authorisation for an employee to work overtime can be given by Peninsula Health impliedly and, when so given, Peninsula Health is obliged by the 2013 Agreement or 2018 Agreement to pay for the overtime work it has authorised.
In determining the factual issues raised as to whether Dr Bolton was, in fact, impliedly authorised to perform the overtime work claimed, I have determined that Dr Bolton was authorised in respect of each category of overtime claimed, other than for what is later referred to as “ward round overtime”. As Dr Bolton was not paid for the overtime work which I have determined Peninsula Health authorised her to perform, Peninsula Health has contravened the 2018 Agreement and therefore s 50 of the FW Act. In considering the compensation that Dr Bolton should be awarded, I have been satisfied that the overtime hours claimed to have been worked are substantially, but not entirely, proven. I will not make orders reflecting those conclusions until I have received from the parties the orders they propose that should be made to reflect my findings and any further consequential submissions.
BACKGROUND
Before considering the principal legal arguments, it is convenient here to set out the primary background facts.
Dr Bolton is a Doctor in Training who has been employed by Peninsula Health since 8 January 2019, working primarily at Frankston Hospital. She is currently employed by Peninsula Health as an anaesthetic registrar.
In her intern year (her first year out of university), she worked five rotations at Frankston Hospital in General Medicine, Emergency, Plastic Surgery, General Medicine again, and Emergency again (on secondment to West Gippsland Hospital). Towards the end of her first year and in the first part of her second year, she was a resident and rotated through the Cardiology unit.
Dr Bolton’s claims for unpaid overtime relate to four rotations that she undertook between January 2019 and January 2021, as follows:
(a)the First General Medicine rotation, which took place between 14 January 2019 and 24 March 2019;
(b)the Plastics rotation, which took place between 3 June 2019 and 11 August 2019;
(c)the Second General Medicine rotation, which took place between 12 August 2019 and 20 October 2019; and
(d)the Cardiology rotation, which took place between 2 November 2020 and 31 January 2021.
Peninsula Health is the major metropolitan health service for Frankston and the Mornington Peninsula, providing a broad range of health services to the community over a number of sites, including Frankston Hospital. It is a public health service within the meaning of the Health Services Act 1988 (Vic).
Peninsula Health has numerous departments but only two, the Department of Medicine and the Department of Surgery, are relevant to this proceeding.
The Department of Medicine has twelve medical subspecialties or units, including the General Medicine and the Cardiology units through which Dr Bolton rotated.
Since 2011, Dr Gary Braun has been the Clinical Director of the Department of Medicine. He reports to the Chief Medical Officer for clinical matters, and to the Chief Operating Officer for operational matters. The General Medicine unit is the largest inpatient unit in the Department of Medicine and is comprised of five teams. Since 2016, Dr Elisabeth Nye has been the Head of the General Medicine unit at Peninsula Health, reporting to Dr Braun.
The Cardiology unit provides a mix of inpatient and outpatient services. Dr Philip Carrillo de Albornoz, known as Dr Carrillo, was the Head of the Cardiology unit between 2016 to late October 2021 and reported to Dr Braun.
The Department of Surgery has a range of specialist surgical units, including the Plastics unit. The Plastics unit conducts a range of emergency and elective procedures. Dr Peter Evans is the Clinical Director of the Department of Surgery. Since 1996, Dr Patricia Terrill has been the Head of the Plastics unit.
Peninsula Health employs a range of clinical and non-clinical staff, including nurses, administrative and clerical staff, medical support employees, allied services and support staff, allied health professionals, Doctors in Training (comprised, relevantly, of interns, residents and registrars) and consultants. Doctors who were either heads of units or heads of departments in which Dr Bolton worked clearly had the authority to direct Dr Bolton in the performance of her work. The evidence, including that of Dr Nye and Dr Carrillo, demonstrated that consultants are the most senior member of the teams operating within departments and units of the hospital and provide directions to interns, residents and registrars. However, consultants are often not present on the wards outside of ward rounds which are generally just a short period in the morning. As the evidence given by Dr Braun, Dr Carrillo and Dr Nye demonstrated, in the absence of a consultant, the supervision of interns and residents falls to the registrars who provide daily directions, complete assessments for interns and set the expectations that interns are required to meet. The evidence, including that given by Dr Braun and Dr Nye, established that Peninsula Health delegates to registrars the power to supervise and issue directions to interns and residents. Accordingly, I take the view that if Dr Bolton was requested or required to carry out a task by a consultant or by a registrar, that ought to be regarded as a direction by Peninsula Health unless there are circumstances particular to the context in which the instruction was given which make it apparent that the supervising doctor did not have authority, including ostensible authority, to give that direction. For ease of reference, where hereafter I refer to a doctor more senior than Dr Bolton who had the capacity to direct her in the performance of her work as an employee of Peninsula Health, I have bolded that doctor’s name.
Applicants’ witnesses
Beyond Dr Bolton, whom I have already introduced, the applicants called nine witnesses at the initial trial.
Mr Peter Watts
Mr Peter Watts was previously employed by Peninsula Health in various roles from 2009 until 2020. Relevantly, those roles included Hospital Medical Officers Manager in the Medical Workforce Unit (MWU) and the Acting Director of the MWU between August 2018 and January 2019, reporting to the Executive Director of Medical Services. The MWU is a separate human resources unit in Peninsula Health that is responsible for new doctors who have just graduated from university, including for their contracts, rotations, leave, wellbeing and performance.
Dr Robert Phan
Dr Robert Phan was previously employed as a registrar by Peninsula Health in the Plastics unit at Frankston Hospital where he worked with, and supervised, Dr Bolton during her Plastics rotation in 2019. He is currently employed as an accredited Plastic Surgery registrar at the Austin Hospital.
Dr Amelia Brickle
Dr Amelia Brickle was employed by Peninsula Health as an intern in 2019 and completed a rotation in the General Medicine unit during the same period as Dr Bolton’s First General Medicine rotation, but was in a different team, or sub-unit, to Dr Bolton. She is currently employed as a resident in the Gynaecology and Obstetrics Department at Warragul Hospital.
Dr Kate van Berkel
Dr Kate van Berkel was employed by Peninsula Health as an intern and completed two rotations through the General Medicine unit at Frankston Hospital in 2018. She did not work with Dr Bolton. She is currently employed as a locum geriatric evaluation and management resident medical officer at Werribee Mercy Hospital.
Dr Justin Curtin
Dr Justin Curtin was previously employed by Peninsula Health as a medical registrar in the General Medicine unit at Frankston Hospital from 2014 to 2021. He supervised Dr Bolton during her First General Medicine rotation in 2019. He is currently employed by Alfred Health as a rehabilitation registrar.
Dr Tavis Read
Dr Tavis Read was previously employed by Peninsula Health as an accredited registrar in the Plastics unit at Frankston Hospital between February and August 2019. He supervised Dr Bolton during her Plastics rotation in 2019. He is currently employed as an accredited registrar in Plastic and Reconstructive Surgery at Mater Hospital, Brisbane.
Dr Geoff Toogood
Dr Geoff Toogood has been employed by Peninsula Health since 1993 and is currently a consultant in the Cardiology unit at Frankston Hospital. He was previously Head of the Cardiology unit at Frankston Hospital and worked with Dr Bolton during her Cardiology rotation between November 2020 and January 2021, during which time Dr Toogood was a consultant and Dr Bolton was a resident.
Dr Stuart Marshall
Dr Stuart Marshall has been employed by Peninsula Health since 2009 and is currently engaged as a specialist anaesthetist at Frankston Hospital. He previously held the role of Director of Clinical and Intern Training at Peninsula Health between March 2019 and June 2020. This role entailed pastoral care of interns and residents and responsibility for developing the education and training for Doctors in Training.
Professor Julian Rait
Professor Julian Rait is a specialist ophthalmologist who is the current chair of the Federal Council of the National Australian Medical Association. From May 2018 to May 2021, he was the President of the Australia Medical Association (Victoria), a role in which he had discussions with health services and their employees about the issue of unpaid, unrostered overtime.
Peninsula Health’s witnesses
Peninsula Health called five witnesses.
Dr Gary Braun
Dr Braun has been employed by Peninsula Health since 1998, working primarily as an intensive care, sleep and respiratory physician. Since 2011, Dr Braun has been the Clinical Director of the Department of Medicine.
Ms Lyndal Hynes
Ms Lyndal Hynes has been employed by Peninsula Health since 2008 and is currently the personal assistant to Dr Braun, a role she has held since 2015. Her current role includes assisting Ms Debra Hobbs, Dr Braun’s other personal assistant, with preparing the weekly rosters for Doctors in Training in the Department of Medicine, and did so during each of Dr Bolton’s rotations in the General Medicine unit and Cardiology unit in 2019, 2020 and 2021.
Dr Elisabeth Nye
Dr Nye is currently employed by Peninsula Health as the Head of the General Medicine unit in the Department of Medicine and has held that position since October 2016, including in 2019 during each of Dr Bolton’s rotations in the General Medicine unit.
Dr Philip Carrillo
Dr Carrillo has been employed by Peninsula Health since 2000. He was the Head of the Cardiology unit from around 2014 until October 2021, including during the period of November 2020 to January 2021 when Dr Bolton rotated through that unit.
Dr Patricia Terrill
Dr Terrill is currently employed by Peninsula Health as the Head of the Plastics unit. She has held that position since 1996, including in 2019 when Dr Bolton rotated through that unit.
THE PROPER CONSTRUCTION OF THE AGREEMENT
There are three broad responses made by Peninsula Health to the applicants’ case that implied authorisation was given by Peninsula Health for the numerous occasions on which Dr Bolton claims to have worked overtime and for which she claims payment. The first response, broadly stated, is 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 is “no scope” for Peninsula Health to have given its authority impliedly. The second response was put in the alternative to the first and, broadly stated, was that, contrary to the applicants’ case, no finding should be made on the facts that Peninsula Health impliedly authorised any of the overtime claimed. The third response challenged whether all of the time Dr Bolton claimed to have performed as overtime was proven on the evidence. It is the first response which primarily raises the proper construction of the 2018 Agreement and, for the purpose of determining the common questions, the proper construction of the 2013 Agreement as well as the 2018 Agreement.
It is convenient therefore to commence with Peninsula Health’s first response. The main issue in contention between the parties was the meaning and operation of the word “authorised” in each of cl 36.2(a)(ii) of the 2018 Agreement and cl 32.2.1(b) of the 2013 Agreement. More precisely, what is in issue is the meaning and operation of the composite expression “authorised hours” in the context that working authorised hours attracts an obligation upon the employer to pay for the work performed at overtime rates of pay. It was not in contest that the existence of an authorisation from the employer for the working of “authorised hours” is necessary to engage the employer’s obligation under each of cl 36.2(a)(ii) and cl 32.2.1(b) to pay for the work performed. Central to the issue in contest is whether authorisation howsoever given suffices to engage the payment obligation or, alternatively, whether that obligation is only engaged by a particular kind of authorisation.
Both the 2013 and 2018 Agreements are enterprise agreements within the meaning of Pt 2‑4 of the FW Act. The 2013 Agreement commenced operation on, and from, 17 December 2013 and continued to operate until 6 August 2018. The 2018 Agreement commenced operation on, and from, 7 August 2018 and continues to operate.
As there are no relevant distinctions between the 2013 Agreement and the 2018 Agreement, I will conduct the constructional exercise by reference to the 2018 Agreement alone. All of the observations made, and conclusions reached, about the 2018 Agreement are intended to apply equally to the 2013 Agreement, unless the contrary is stated.
The 2018 Agreement covers various named “Health Services” including Peninsula Health. It also covers ASMOF and registered medical practitioners (referred to as “Doctors”), including Doctors in Training. There is no issue that those persons are bound to observe the terms of the 2018 Agreement.
There are some contextual matters which I will refer to shortly. However, it is convenient at this point to set out the terms of cl 36.2(a)(ii), where the phrase “authorised hours” is used in the context of cl 36 of the 2018 Agreement as a whole:
36 Overtime
36.1The provisions of this clause 36 are to be read in conjunction with clause 33 (Hours of Work).
36.2 Entitlement
(a) Overtime is payable for working:
(i)rostered hours in excess of ordinary hours, pursuant to subclause 33.1; or
(ii) authorised hours in excess of rostered hours.
(b)Notwithstanding the provisions of subclause 36.2(a) above, where a part-time Doctor is directed by the Health Service to work rostered hours in excess of their contract hours, overtime will be paid pursuant to this clause for all hours worked in excess of their contract hours. A Doctor who offers to work additional hours will be paid their ordinary rate of pay until their total weekly hours of work exceed the full time ordinary hours for their classification, as prescribed in clause 33 (Hours of Work).
(c)The payment of overtime is one and one half (1½) times the Doctor’s ordinary hourly rate of pay for the first two hours overtime in a week and then double the Doctor’s ordinary hourly rate of pay for all additional overtime hours in that week.
(d)Overtime may be converted into carer’s leave in accordance with subclause 61.3(c).
36.3 Protocols – Authorised Un-rostered Overtime
(a)A Protocol must exist in the Health Service whereby overtime that cannot be authorised in advance but has been worked will be paid if it meets appropriate, clearly defined criteria.
(b)The protocols described in subclause 36.3(a) will be structured on the following basis:
(i)the Doctor has performed the overtime due to a demonstrable clinical need and that need could not have been met by some other means;
(ii)authorisation of the overtime could not reasonably have been made in advance of the Doctor performing the work;
(iii)the Doctor has claimed for retrospective authorisation of overtime on the first occasion possible after the overtime was worked and on no occasion later than the completion of that pay fortnight;
(iv)the Doctor has recorded the reason for working the overtime and the duties performed in a form capable of Health Service audit and review; and
(v)the claim for overtime must be reviewed by a Senior Doctor authorised by the Health Service to do so within 14 days of the claim being submitted. (Emphasis added.)
There is no issue that where the clause uses the term “payable” it means payable by the “Health Service”, being an employer like Peninsula Health bound by the Agreement. The 2018 Agreement may fairly be described as a comprehensive agreement which addresses a multitude of conditions of employment in a manner which may be described as prescriptive. The Agreement presumes the existence of an underlying contract of employment between each of the Doctors and their respective employer covered by the Agreement. The 2018 Agreement regulates that employment by imposing various obligations upon both employer and employee. When construing what is meant by the phrase “authorised hours” utilised in cl 36.2(a)(ii) of the 2018 Agreement, it is important to bear in mind that the arrangement being regulated is an employment relationship, the fundamental nature of which is the provision of work by the employee in exchange for remuneration provided by the employer.
It is also important to bear in mind that, under a contract or by way of the regulation provided by an industrial instrument such as the 2018 Agreement, the remuneration required to be paid by an employer for the performance of overtime work may be either global or specific to the actual amount of time worked as overtime. Thus, the remuneration of a salaried employee who is required to work reasonable overtime may encompass a notional sum in payment of all the overtime that may be worked by the employee, irrespective of the extent of the overtime actually worked by the employee. In contrast, the remuneration of a waged employee is usually strictly correlated to the time worked by the employee. Under such an arrangement, the employer is required to pay for work performed as overtime hours by reference to the amount of time actually worked. The 2018 Agreement imposes an arrangement of the latter kind, in which any time worked as overtime must be paid for.
The principles for construing enterprise agreements were not in dispute. The well-established principles were set out by the Full Court in WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [197] (Tracey, Bromberg and Rangiah JJ):
The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo vHolmes (1989) 30 IR 362 (Holmes) at 378 (French J). The interpretation “turns on the language of the particular agreement, understood in the light of its industrial context and purpose”: Amcor Ltd v Construction, Forestry, Miningand Energy Union (2005) 222 CLR 241 (Amcor) at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-379, citing George A Bond & Company Ltd(in liq) v McKenzie [1929] AR (NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSRLtd (1996) 66 IR 182 at 184 (Madgwick J); Shop, Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).
In an early decision, Piddington J (the President of the Industrial Commission of New South Wales) described “overtime” as “a word of extremely common use in Australia” and applied the dictionary definition of “[t]ime beyond, or in excess of, a limit; especially extra working time”: In re Confectioners (State) Conciliation Committee (1930) 29 AR 184 at 188. The concept of “overtime” as utilised by the 2018 Agreement is consistent with that meaning. The overtime referred to in cl 36 is extra or additional time worked beyond a certain limit. The limit being the “ordinary hours” of work prescribed by the Agreement.
The “ordinary hours” of employees are specified by cl 33.1 of the 2018 Agreement. Relevantly, for a full-time employee (excluding a Registrar), they are 38 hours per week or an average of 38 hours per week over a four-week period. In exchange for the performance of his or her ordinary hours, the 2018 Agreement provides for a weekly rate of pay for each full-time employee in respect of each classification of employee covered by the Agreement, and for a pro rata payment for part-time employees working less than a 38 hour week.
The “ordinary hourly rate of pay” of a Doctor is the weekly rate provided for the Doctor’s classification divided by 38, being the number of the “ordinary hours” of work for the employee. For work performed as overtime, cl 36.2(c) requires that the Doctor be paid one and a half times the Doctor’s ordinary hourly rate of pay for the first two hours of overtime in a week and then double the Doctor’s ordinary hourly rate of pay for all additional overtime hours in that week.
Clause 35.1 of the 2018 Agreement requires that the ordinary hours of work of a Doctor be worked in accordance with a roster which “must include all working hours including theatre preparation, ward rounds [and] completing discharge summaries”. A roster must be of at least 28 days duration and must state “each Doctor’s daily working hours and start and finishing times [which] must be posted at least 14 days before the roster comes into operation”: cl 35.2(a). The maximum hours of work of a Doctor are specified by cl 33.2 and must not exceed 75 hours in any seven consecutive shifts, or 140 hours in any 14 consecutive days, or 280 hours in any 28 consecutive days. Furthermore, Doctors must not be rostered for duty for more than 16 consecutive hours on any given shift: cl 33.3.
It is evident then that a Doctor’s ordinary hours of work must be allocated pursuant to a roster. Whilst what is a “roster” is not defined, as a matter of common understanding, a roster specifies the number of hours to be worked by an employee on any given day and when, during that day, the employee shall work. An employee’s roster will therefore allocate work to the employee and specify when it is to be done. A roster may properly be regarded as constituting a series of directions made by the employer to the employee as to when, and for how long, an employee is to work on each given day over the rostered period.
At its core, each of Dr Bolton’s claims to be paid for overtime worked is based upon the existence of two facts which engaged the obligation imposed upon Peninsula Health by cl 36.2(a)(ii) to pay her at overtime rates. The first fact is the existence of an authorisation given by Peninsula Health in respect of the hours worked, and the second is the actual performance of that work. In relation to the first fact, the applicants rely upon the existence of implied authorisations alleged to have been given by Peninsula Health. In so doing, they contended that the word “authorised” in cl 36.2(a)(ii) is a term of wide import which encompasses both an express or an implied sanction of the activity that has been authorised. Where an authorisation is implied or inferred, the applicants contended that the performance of the activity may be sanctioned where countenanced by conduct, including by way of an omission or failure to act, particularly where that failure is coupled with knowledge of the performance of the work.
Many of the authorities relied upon by the applicants were concerned with construing the term “authorise” in the context of copyright law and the statutory prohibition in s 36(1) of the Copyright Act 1968 (Cth) which provides that copyright is infringed by a person who, among other things, “authorizes the doing in Australia … any act comprised in the copyright”. The applicants relied on the following observations made by Gibbs J at 12-13 of University of New South Wales v Moorhouse (1975) 133 CLR 1:
It can also mean “permit”, and in Adelaide Corporation v Australasian Performing Right Association Ltd “authorize” and “permit” appear to have been treated as synonymous. A person cannot be said to authorize an infringement of copyright unless he has some power to prevent it. Express or formal permission or sanction, or active conduct indicating approval, is not essential to constitute an authorization; “Inactivity or ‘indifference, exhibited by acts of commission or omission, may reach a degree from which an authorization or permission may be inferred’”. However, the word “authorize” connotes a mental element and it could not be inferred that a person had, by mere inactivity, authorized something to be done if he neither knew nor had reason to suspect that the act might be done. (Emphasis added.) (Citations omitted.)
The applicants further relied on the observation of Jacobs J in Moorhouse at 21 to similar effect:
It [authorised] is a wide meaning which in cases of permission or invitation is apt to apply both where an express permission or invitation is extended to the act comprised in the copyright and where such permission or invitation may be implied. (Emphasis added.)
In further support of the generality of the expression, or the concept of authorisation having regard to its ordinary meaning, the applicants relied on the following observations made by Gummow and Hayne JJ in Roadshow Films Pty Ltd v iiNet Ltd (2012) 248 CLR 42 at [125]:
[G]iven the generality of that expression, there is force in the following statement by Herring CJ in Winstone v Wurlitzer Automatic Phonograph Co of Australia Pty Ltd:
“As the acts that may be complained of as infringements of copyright are multifarious, so, too, the conduct that may justify an inference of authorisation may take on an infinite variety of differing forms. In these circumstances any attempt to prescribe beforehand ready-made tests for determining on which side of the line a particular case will fall, would seem doomed to failure.” (Emphasis added.) (Citations omitted.)
The applicants also referred to Campaigntrack Pty Ltd v Real Estate Tool Box Pty Ltd (2022) 292 FCR 512, where the Full Court considered the requirement of knowledge when authorisation is sought to be inferred (also in the particular statutory context of the Copyright Act). Justice McElwaine concluded at [257] (Greenwood J agreeing at [1]) that in order for an inference of authorisation to be drawn:
it is necessary to prove on the balance of probabilities that the person either had actual knowledge of the doing of the act or constructive knowledge of the act because the person had reasonable grounds to suspect the doing of the act or, the person exhibited wilful blindness to the doing of the act. (Emphasis in original.)
Those authorities tend to support that which is otherwise obvious, namely, that requesting an activity or providing permission for, or sanctioning of, an activity is ordinarily capable of being done either expressly or impliedly. However, as the applicants recognised, the meaning of “authorised”, or indeed the meaning of any word, “may be controlled by its context”: Ex parte Johnson; Re MacMillan (1946) 47 SR (NSW) 16 at 18 (Jordan CJ).
In its closing written submissions, and by way of summary, Peninsula Health described its first response as follows:
(a)Any entitlement of Dr Bolton [or other Doctors in Training] to be paid overtime requires the hours worked in excess of rostered hours to be authorised;
(b)That authorisation has to come from Peninsula Health;
(c)Peninsula Health has detailed and prescriptive processes for the authorisation of overtime as set down in the Policy and Guideline (defined in section C.5 below), and as advised to the [Doctors in Training];
(d)There was no authorisation consistent with those processes of the overtime the subject of this proceeding;
(e)In the context of Peninsula Health’s detailed and prescriptive processes, there is no scope for the implication of any authorisation of Dr Bolton (or other [Doctors in Training]) to work hours in excess of rostered hours.
Peninsula Health’s submissions then addressed what it contended was the proper construction of the Agreements, including by detailing those circumstances, namely the existence and communication to Doctors in Training of various policies dealing with the authorisation of overtime, which it relied upon for the proposition that there was no scope for an implied authorisation. Regrettably, those submissions which purported to deal only with the construction of the Agreement — a legal question — travel well beyond the matters that I consider were relevant to that question. That has caused some confusion and made it somewhat more difficult than it might have been to understand how Peninsula Health contends that cl 36.2(a)(ii) should be construed.
Peninsula Health contended that the word “authorised” in cl 36.2(a)(ii) should be given its plain grammatical meaning — that is, “to give authority or legal power to; empower (to do something); to give authority for; formally sanction (an act or proceeding)”: Macquarie Dictionary (4th ed, 2005) “authorised” at 91. It submitted, however, that there is no warrant for reading the word broadly or narrowly. It further contended that, whilst the authorisation of overtime contemplated by cl 36.2(a)(ii) “may be implied or be created by certain conduct”, the clause intends to give the employer control over the mode of authorisation of overtime such that cl 36.2(a)(ii) should be construed as providing that “[i]t is a matter for any particular employer to decide the circumstances in which its ‘authority’ may be given”. In aid of that construction, Peninsula Health argued that the word “authorisation” had to be read in context and in the particular context of cl 36.3, although it did not really explain how cl 36.3 aided the proper construction of cl 36.2(a)(ii). Given that the mode of authorisation was for the employer to determine, Peninsula Health contended that “[t]his then requires attention to how and in what circumstances Peninsula Health has prescribed how authorisation to work excess hours by [Doctors in Training] will create an entitlement to overtime”.
Peninsula Health essentially contended that the obligation imposed upon the employer by cl 36.2(a)(ii) is only engaged where the employer gives authorisation for the hours worked in the manner in which the employer has prescribed for authorisation to be given. Thus, because Peninsula Health had prescribed the mode of, and process for, authorisation at Peninsula Health to be express authorisation through a particular process made known to Doctors, there was “no scope for the operation of some implied authorisation” in the circumstances of Peninsula Health.
On that basis, Peninsula Health concluded its submission on the constructional issue as follows:
Under cll 36.2 and 36.3 of the Agreement, for excess hours to be “authorised hours” that attract an overtime claim, they must be:
(a)in respect of work performed in order to meet a demonstrable clinical need that could not have been met by other means;
(b)recorded on a doctor’s timesheet and/or on an overtime claim form, in either case no later than completion of the relevant pay fortnight; and
(c)in the case of the Department of Medicine, approved by the Clinical Director (Dr Gary Braun) or his delegate as described at section C.6 and paragraph 60, and in the case of the Department of Surgery, authorised by a Registrar as described at paragraphs 55 and 61. (Emphasis in original.)
The content of paras (a), (b) and (c) above is taken from one of the policies of Peninsula Health dealing with the authorisation of overtime.
In reply, the applicants contended that the meaning of the word “authorised” in cl 36.2(a)(ii) of the 2018 Agreement is “not stable” on Peninsula Health’s approach because that construction encompasses implied authorisation in some workplaces but not in other workplaces covered by the 2018 Agreement.
However, in my view, that response misconstrues what I understand to be Peninsula Health’s position which, as I have said, could have been expressed more clearly.
As I understand it, Peninsula Health’s construction of “authorised” is stable in that “authorised” always means authority given by the employer pursuant to the particular mode and process adopted by the employer for giving its authorisations for overtime to be worked. If that particular mode and process includes an implied authorisation, then an implied authorisation would suffice to engage the payment obligation in cl 36.2(a)(ii).
However, that understanding does not necessarily accord with the negative answer Peninsula Health gave to each of common questions 6 and 7 which were originally in the following terms:
6.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 implied by the conduct of the Respondent?
7.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 implied by the conduct of the Respondent?
As I understood each of those questions, their intent was to raise a constructional issue of general application. The reference to “the Respondent” was not an intended reference to Peninsula Health alone but to an “Employer covered by the Agreement”. I have the same understanding in relation to common questions 8 and 9 in so far as those questions also refer to “the Respondent”. During the trial, I raised my understanding of questions 6 and 7 with the parties in the course of a submission made by Peninsula Health that common questions 6 and 7 were not proper common questions. The applicants confirmed that the intent of the questions was consistent with my understanding. I made it clear that those questions would be answered in accordance with my understanding of them and I have adjusted the terms of the questions to clarify their intended purpose. However, Peninsula Health, despite the clarification, maintains its position that questions 6 and 7 should be answered “No”.
I will therefore address the general question of whether an implied authorisation given by an employer will suffice to engage the payment obligation under cl 36.2(a)(ii) of the 2018 Agreement in order to determine the common questions, as well as the particular constructional question which I understand to be otherwise raised by Peninsula Health’s submissions that only an authorisation given consistently with the mode and process formally adopted by the particular employer will suffice to engage that payment obligation.
The word “authorised” is part of a composite phrase “authorised hours” found in a clause which provides an employee with an entitlement to be paid for overtime where the employee has worked “authorised hours in excess of rostered hours”. The relevant constructional question raised by common questions 6 and 7 is a question of law. It is whether the kind of authorisation contemplated by the clause includes authorisation which is impliedly, rather than expressly, given. Whether, on the application of the clause, authorisation was given in any particular case is a question of fact.
Read in its context, the word “authorised” in cl 36.2(a)(ii) is obviously an intended reference to a sanction given by the employer to the employee in respect of the employee working hours in excess of rostered hours. The subject of the sanction is the performance of work. In practical terms, the performance of work by an employee is sanctioned by his or her employer when the employer requests or requires the work to be done or, where the performance of the work is at the initiative of the employee, where the employer approves the performance of the work by the employee. Those means of an employer providing a sanction for the performance of work appear to me to be both comprehensive and obviously intended to fall within the notion of authorisation contemplated by cl 36.2(a)(ii).
I accept that the word “authorised” is more readily used to connote an approval rather than a request or a requirement. The use of that term is, however, common in relation to clauses of industrial instruments dealing with overtime. Its provenance may well be that, at or about their origin, provisions of that kind were commonly addressing circumstances in which employers tended to approve the working of overtime in choosing between employees in competition for additional work.
However, irrespective of that possible origin, it cannot have been intended by the framers of the 2018 Agreement that work performed by Doctors in excess of ordinary hours, which has not been rostered but which has nevertheless been worked as requested or as required by their employer, would not be payable as overtime under the Agreement. The only provision in the Agreement under which such work could be payable is cl 36.2(a)(ii) and, therefore, “authorised hours” must have been intended to encompass those hours which the employer requested or required the employee to work.
That point is reinforced by the observation that the only other means by which overtime work is payable under the Agreement is pursuant to the immediately preceding subpara cl 36.2(a)(i), in which overtime is payable for work performed pursuant to a requirement or direction made under the employee’s roster. As such, clearly the 2018 Agreement intended that a requirement or direction from the employer was a permissible means of sanctioning the performance of overtime work. In so far as overtime work can be requested in circumstances where the employer may not be entitled to require it, such a request must also have been intended to be a means by which the employer sanctions or authorises the performance of the work requested.
As both parties accepted, cl 36.2 must be construed in a way that makes industrial sense. As I said in Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (MV Portland Case) (No 2) [2020] FCA 1138 at [22], quoting Kirby J in Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [96], “the construction to be given to a clause in an industrial instrument ‘should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement’”.
An industrially sensible construction of cl 36.2(a)(ii) would not conclude that an employer should be required to pay for work performed in excess of rostered hours where the employer had not requested, required or approved of that work. An industrially sensible construction of cl 36.2(a)(ii) would similarly not conclude that work in excess of rostered hours requested, required or approved of by the employer is not payable as overtime under that clause. So construed, cl 36.2(a)(ii) sensibly balances the employee’s right to be paid for work the employer has requested with the employer’s right to not be obliged to pay for work it has not asked for at all, or has not requested or required be performed as overtime.
It follows that an authorisation, in the form of a request or a requirement made by the employer to the Doctor that the Doctor work in excess of his or her rostered hours, would suffice to designate the time worked by the employee as “authorised hours” which the employer must pay for at the overtime rate pursuant to the obligation imposed by cl 36.2.
On that basis, and given the facts which support her claim, whether or not Dr Bolton worked “authorised hours” for which she is entitled to be paid at the overtime rate will, consistently with the intent of cl 36.2, be answered by an inquiry as to whether, in respect of the hours the subject of her claim, Dr Bolton was requested, required or otherwise given approval to work those hours in excess of her rostered hours as overtime.
I turn then to consider whether the means of sanctioning or authorising the performance of overtime work contemplated by cl 36.2(a)(ii) — ie by a request, a requirement or an approval — were only intended to engage the obligation to pay the employee when made or given: (i) expressly rather than impliedly; and (ii) in accordance with the process adopted by the employer for giving its authorisation.
It is well to commence that assessment by considering context. The context here is the practical field of the allocation of additional work by an employer to its employees in the midst of an ongoing employment relationship. In such a relationship, some of what the employer requires of the employee, in terms of how, when and where the employee should provide his or her services in the conduct of the employer’s business, may be expressly set out in the employee’s contract of employment, position description or verbally by the employer upon the employee commencing employment. However, the practicalities of a working relationship are not ordinarily conducive of formalism or prescriptive instructional processes as there are a myriad of circumstances and tasks that are part of an employee’s job that cannot, and need not, be foreshadowed in advance. As such, much of what is required of an employee must necessarily be left to be implied and, when what is required by the employer is the subject of a specific request, instruction or direction, that will almost always be done informally. Employees will necessarily be required to infer, from generalised expectations set by an employer, the custom and practice of the workplace, ongoing general arrangements, the nature of the work and the nature of their duties and skills (amongst other surrounding circumstances), what it is that their employer specifically requires of them in any given circumstance and therefore what it is they are authorised to do in a given and specific situation.
In the practical field of one person requesting another to provide work, even where that occurs on a one-off basis rather than in the context of a subsisting relationship, the law of restitution recognises that such a request may be made expressly or impliedly from the “actions of the parties in the circumstances of the case” (Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635 at [89] (Gummow, Hayne, Crennan and Kiefel JJ)) or “from the communications and the circumstances in which [the request] occurred” (Edwards v Australian Securities and Investments Commission (2009) 264 ALR 723 at [138] (Macfarlan JA with whom Spigelman CJ at [1] and Campbell JA [2] agreed)).
There are several examples in the cases demonstrating that an employer’s authorisation for overtime to be worked may be inferred from the circumstances of the case. In Polan v Goulburn Valley Health [2016] FCA 440, Mortimer J contrasted a provision of an industrial agreement dealing with the recall to work of an employee with an overtime provision. Her Honour relevantly said this at [75]:
In contrast, overtime is concerned … with an employee working reasonable additional hours, which are authorised by the employer … However, the authorisation may be express or implied. It may be the result of an ongoing understanding or arrangement between the employer and the employee or it may be the result of a single event. Unlike the recall power, in my opinion the industrial instruments do not intend overtime to be confined to the issuing of a specific direction or instruction by an employer to an employee to perform duties on a specific occasion. (Emphasis added.)
In that case, the applicant, who was employed as a rostering clerk, claimed that she had been recalled to duty on occasions where she took telephone calls whilst not at her workplace from junior doctors at all times of the day and night requiring her to alter rostering arrangements. That claim failed, Mortimer J determining that the rostering clerk was not recalled to duty on such occasions but was instead performing overtime. That the overtime performed was authorised by the employer was inferred “because the making of these [rostering] arrangements was a core aspect of the duties of [the rostering clerk’s] employment, and it was contemplated by both the respondent [employer] and the applicant that the need for these arrangements could arise at any time of the day or night”: at [84].
In Logan v Otis Elevator Company Pty Limited (2001) 107 IR 253, Moore J construed an award provision that provided that an employer “may require” an employee to work reasonable overtime as at least implicitly providing that the overtime work performed pursuant to such a requirement had to be expressly or impliedly authorised by the employer in order to attract payment: see at [40]. His Honour held at [43] that authorisation for the performance of overtime impliedly flowed from the expectation that the employee would work 40 hours per week to complete his duties, even though neither the employer nor the employee were aware that an award applied to the employee’s employment which provided that work beyond the prescribed 38 hour week had to be paid for at overtime rates.
At [40]-[41], Moore J relevantly referred to a number of longstanding authorities which have recognised that overtime may be impliedly authorised:
[40]As noted by Macken J in White v Mrs Murphy’s Country Fried Chicken Pty Ltd (1984) AR (NSW) 794 at 801:
‘‘No employee is entitled to the payment of overtime or penalty rates unless such overtime is authorised by an employer and self-authorisation of overtime by employees trusted to work alone or in responsible managerial positions has never been recognised by tribunals. Overtime under such circumstances is allowed only where it is expressly or impliedly authorised and it may be authorised by implication where the circumstances permit of no alternative.’’
[41]These observations have been referred to with approval in at least three later authorities: Maciver v Hilton Nursing Home Pty Ltd, Wheatley v Armstrong [1995] NSWIRC 3 (Marks J) and Keft v Kameruka Estates Pty Ltd [1992] NSWIRC 16 (Bauer J). In Walkley v Dairyvale Co-operative Ltd (1972) 39 SAIR 327, Olsson J referred (at 359) to a similar principle deriving from a Western Australian decision, Caratti v Sullivan (1964) 44 WAIG 236.
A further judgment worthy of being mentioned is Scotto v Scala Bros Pty Ltd [2014] FCCA 2374, particularly because there are some factual parallels with at least some of the claims made by Dr Bolton. In that case, an employee of a combined delicatessen and café (shop) claimed that he had been underpaid, including in relation to hours of work performed beyond the ordinary hours prescribed by the relevant award and payable at the overtime rate. To substantiate his claim, the employee had to demonstrate that he was authorised to work the hours for which he claimed payment. Judge Cameron determined at [382]-[389] that the employer had “at least implicitly” authorised the employee to work the trading hours of the shop, as well as the time necessary to carry out the preparatory work required to set up the shop prior to the commencement of trading and the time required to pack and clean up after the cessation of trading.
Peninsula Health contended that the word “authorised” suggested that a formal sanction was required. However, it did not elaborate as to what formality would require and, sensibly, did not suggest that the sanction had to be in writing.
To my mind, the obligation imposed upon an employer by cl 36.2(a)(ii) to pay an employee in accordance with that clause is engaged by, first, the existence of, as a matter of fact, a request, requirement or approval made or given by the employer for the employee to perform work in excess of rostered hours and, second, the due performance of that work. Clause 36.2(a)(ii) is regulating a transaction. A transaction of that kind, where additional work is exchanged for payment, can be dealt with without formality. Whilst requests, requirements or other approvals made or given to an employee by his or her employer may be done expressly, they are often left to implication and the cases demonstrate that to be so in relation to the working of overtime.
As indicated, cl 36.2(a)(ii) is intended to be protective of the employee and the employer. The requirement that overtime hours of work be authorised is designed to protect employers from having to pay for hours not requested, required or approved. That requirement does not intend to protect the employer by regulating how an employer can request, require or approve overtime. That matter is simply left to the employer. There is no apparent basis for thinking that the clause intends to protect the employer against the consequences of its own conduct. That is further discussed at [104]-[108] below.
It may be accepted that authorisation given expressly is apt to be clearer than authorisation given impliedly. But greater clarity has a practical cost in the practical field which provides the relevant context for construing cl 36.2. If greater clarity was prioritised over practicality, it is likely that the framers of the clause would have explicitly stated that only express authorisation would suffice.
For those reasons, I have concluded that, in order to attract the payment obligation imposed by cl 36.2, what is required by cl 36.2(a)(ii) is the existence in fact of an authorisation howsoever given by the employer. Accordingly, an authorisation given impliedly to an employee for that employee to perform work in excess of rostered hours would, in conjunction with the performance of that work, engage the obligation in cl 36.2 for the employee to be paid in accordance with that clause. The answers to each of common questions 6 and 7 are therefore “Yes”.
Clause 36.3 and common questions 8 and 9
Before turning to more directly considering Peninsula Health’s contention that it is only an authorisation given in accordance with an authorisation process formally adopted by the employer that engages the payment obligation in cl 36.2, it is necessary to draw attention to cl 32.3 of the 2013 Agreement and cl 36.3 of the 2018 Agreement. Those clauses were respectively the subject of common questions 8 and 9:
8.Whether clause 32.3 of the 2013 Agreement limits the ways in which unrostered overtime can be authorised by the Respondent?
9.Whether clause 36.3 of the 2018 Agreement limits the ways in which unrostered overtime can be authorised by the Respondent?
I will hereafter address cl 36.3, although everything here said is intended to apply in respect of the corresponding clause in the 2013 Agreement and the corresponding question (ie common question 8).
I presume that common question 9 was raised by the applicants as an appropriate common question because, by its Defence, Peninsula Health referred to cl 36.3 of the 2018 Agreement and relied upon it in support of its denial that, as a matter of fact, it gave its authorisation for Dr Bolton to perform work in excess of her rostered hours. In the Defence, cl 36.3 was relied upon in the context of Peninsula Health pleading that only overtime which had been authorised under an overtime protocol implemented by Peninsula Health in July 2015 in accordance with cl 36.3 was payable in respect of Dr Bolton working in excess of her rostered hours. Peninsula Health proposes that question 9 be answered “Yes” (and to be clear, the same answer is proposed for question 8). That position seems consistent with Peninsula Health’s Defence and its opening written submission.
By its opening written submissions, Peninsula Health contended that if a protocol of the kind required by cl 36.3 exists, that protocol will deal with all authorisation of overtime and that there is no scope for an alternative mechanism for the authorisation of overtime to that provided for by such a protocol. Peninsula Health essentially contended that cl 36.3 provided that overtime will only be payable if it meets the criteria required by a protocol that must exist under that clause and that overtime hours worked that do not meet the authorisation requirements of such a protocol do not attract payment under the 2018 Agreement.
However, by its closing submissions, Peninsula Health seems to have substantially adjusted its construction of cl 36 and the nature of its reliance upon cl 36.3. As I have stated, Peninsula Health’s position in its closing submissions was that any policy or procedure adopted by the employer dealing with the authorisation of overtime (and not just a protocol adopted in compliance with the obligation imposed by cl 36.3), controlled whether the authorisation as required by cl 36.2(a)(ii) had been given by the employer. Although in its closing submissions Peninsula Health referred to cl 36.3, it did not explain how its construction relied upon that clause other than to say in passing in a footnote that “[t]he Policy, Guideline, and any associated verbal directions issued to Dr Bolton are underpinned by clause 36.3 of the 2018 Agreement”. Rather, it expressly contended that none of the policies it had adopted and relied upon in the application of its construction depended for their force, effect or operation on cl 36.3. Despite that, Peninsula Health by its closing submissions proposed that question 9 be answered by affirming that cl 36.3 did limit the ways in which unrostered overtime can be authorised.
In the circumstances, I will proceed on the basis that the questions raised by common questions 8 and 9 remain at issue and should be answered.
The starting point for addressing those common questions is the recognition that cl 36.2(a)(ii) deals with when “[o]vertime is payable” and, for the reasons already given, relevantly provides in subcl (ii) that overtime is payable when the employee has worked hours in excess of rostered hours where an authorisation is given by the employer. Clause 36.2(a) is only concerned with the existence of an authorisation. In contrast, cl 36.3 is concerned with bringing a particular kind of authorisation into existence by requiring the adoption of a process intended to facilitate it.
Clause 36.3 is dealing with providing a process for an employee to obtain an authorisation for working in excess of rostered hours in circumstances where such an authorisation could not have been given by the employer in advance of the performance of the work for which the overtime is claimed. It seeks to facilitate the employer giving such an authorisation by requiring that an employer establish a protocol with rules that govern that process consistently with the structure laid out by para (b) of the subclause. Its purpose is facilitative and not restrictive. There is nothing in either the text or context of cl 36.3 to support the proposition that its purpose is to negate, fetter or otherwise limit an authorisation given by the employer. All that is necessary for the purposes of cl 36.2(a)(ii) is the employer’s authorisation. That authorisation may or may not have been obtained because the cl 36.3 process facilitated it but, once obtained, the authorisation operates without any limitation imposed by cl 36.3.
Even if, contrary to the view just stated, cl 36.3 is capable of limiting the way in which unrostered overtime can be authorised, that capacity cannot rise higher than its source. The process required by cl 36.3 is specifically limited to a process for dealing with overtime work “that cannot be authorised in advance” of the performance of that work. As will be explained below, each and every claim made by Dr Bolton is based upon an implied authorisation given by Peninsula Health prior to the performance of the overtime work claimed and therefore cl 36.3 has no application and could not operate to limit the operation of cl 36.2(a)(ii) upon Peninsula Health’s obligation to pay for the performance of that work.
My conclusions are supported by the historical context for cl 36.3, the veracity and relevance of which was not contested by Peninsula Health. The predecessor to cl 36.3 first appeared in the Australian Medical Association (Victoria) Limited, Australian Salaried Medical Officers Federation Victorian Branch, Victorian Public Hospital Sector (Hospital Medical Officers) Multi-Employer Certified Agreement 2002 (2002 Agreement). In the course of bargaining for the 2002 Agreement, the parties entered into the Medical Remuneration Review Agreement 2002 (2002 Heads of Agreement). That document relevantly records the reason for the inclusion of the predecessor to cl 36.3 which was to address the “concern that aspects of the [1999 Agreement] are not being observed … in respect to the non-payment of unauthorised but valid overtime”. There is no indication in the 2002 Heads of Agreement that cl 36.3 was in any way intended to limit the obligation on the employer to pay for overtime that was authorised. Rather, the contrary intention is evident which was to protect, not restrict, the right of Doctors to be paid for overtime that could not have been authorised in advance through the introduction of a protocol that prescribed certain criteria for payment.
For all those reasons, the answer to each of common questions 8 and 9 is “No”.
Is the payment obligation in cl 36.2(a)(ii) only engaged where authorisation is given in accordance with the employer’s prescribed process?
My conclusions on common questions 8 and 9 do not, however, determine whether Peninsula Health is or is not correct to contend that only an authorisation given by the employer consistently with an authorisation process formally adopted by the employer can engage the payment obligation under cl 36.2(a)(ii). The basis for relying on cl 36.3 to support that construction was never explained and is not otherwise apparent.
No other surrounding text was said by Peninsula Health to support its construction and there is nothing in the text of cl 36.2(a)(ii) itself which provides any apparent support. As stated already, and for the reasons so stated, cl 36.2(a)(ii) is focussed upon the existence in fact of an authorisation and not with the means by which, or the process or procedure through which, authorisation is given by an employer.
Peninsula Health contended that its construction was supported by the fact that authorisation is a deliberate and conscious act of the employer and thus the circumstances under which it is given are a matter for the employer.
So much may be accepted, but that acceptance serves to undermine rather than support the construction contended for by Peninsula Health. Clause 36.2(a)(ii) need not provide the employer with control over when or how it authorises the working of overtime. An employer already has that capacity. An employer, just like any other person, can make a request or requirement or give an approval in every way, shape or form which the law recognises to be legally effective, including with or without formality, expressly or impliedly.
There is no discernible need for the 2018 Agreement to provide the employer something it already has. What Peninsula Health’s construction would achieve is the curtailment of an employer’s capacity to give an effective authorisation. Why would the framers of the 2018 Agreement have intended that? Did they really intend to protect the employer from itself, so that when an employer actually gives its authority that authority would be ineffective because it was not given in accordance with the employer’s formally adopted means of giving authorisation?
It might well be the case that an employer’s preferred means of providing authorisation for overtime has advantages for the employer. However, the point is that there is no discernible reason why the 2018 Agreement would intend to provide an employer the means of controlling that which it already controls.
There may well be reasons why an industrial instrument may want to regulate the authorisation of overtime which, absent some other regulation, is under the employer’s complete control. It is more likely, however, that any such regulation will seek to address an employer’s failure to provide authority when authority should have been given (as does cl 36.3), rather than to limit the effectiveness of authorisation actually given. Further, it is unlikely that where the industrial parties saw a need to intervene in order to regulate the control over authorisation already reposed in the employer, they would do so by delegating to the employer the unilateral capacity to set the rules. It is even more unlikely that such an unusual intent would have been given effect other than by clear and express language. Furthermore, the construction contended for by Peninsula Health would lead to absurd results and very significant unfairness. For instance, where a manager expressly, but verbally, directed an employee to perform overtime work and the work was done, the employee would not be entitled to any payment where the direction was not given in accordance with the policy adopted by the employer that overtime can only be expressly authorised in writing and only where signed and dated by the manager.
The recognition that authorisation is the act of the employer requires attention to be given to whether or not, as a matter of fact, the employer has given its authority. The giving by the employer of its authorisation (whether expressly or impliedly) will not be denied because the employer has failed to follow its own formal process or procedure for the giving of authority. The fact that the employer has prescribed a procedure for providing its authorisation may serve to deny the conclusion in any particular case that the conduct of the employer, which may be in conflict with its prescribed process, demonstrates that authorisation was impliedly given. However, that consideration goes to the factual question of whether implied authorisation was actually given by the employer. That an employer has adopted a procedure for providing its authorisation of overtime is not relevant to the legal question of what kind of authorisation engages the payment obligation imposed by cl 36.2(a)(ii).
For all those reasons, Peninsula Health is wrong to contend that there is no scope for the operation of some implied authorisation of overtime because cl 36.2(a)(ii) and cl 36.3 give Peninsula Health the capacity to adopt an authorisation process which will govern whether or not an authorisation actually given by Peninsula Health is effective for engaging the payment obligation in cl 36.2(a)(ii). It follows that it is not necessary to consider the terms of the policies adopted by Peninsula Health because, whatever be their terms, the policies cannot limit the operation of cl 36.2(a)(ii). It also follows, notwithstanding the submissions of Peninsula Health to the contrary, that it is immaterial whether or not the policies were communicated to Dr Bolton, incorporated into her contract of employment or are able to be characterised as lawful and reasonable instructions or directions. That conclusion stands even if the communication, incorporation and characterisation contended for had been accepted.
Furthermore, even if the policies relied upon by Peninsula Health were binding on Dr Bolton and required her to observe the policies in making a claim in relation to overtime work, that contractual obligation owed by Dr Bolton: (i) does not restrict Peninsula Health’s capacity to authorise the working of overtime in a manner which accords with those policies; and (ii) is not capable of defeating Dr Bolton’s entitlement to be paid for overtime worked and authorised in accordance with cl 36.2(a)(ii) of the Agreement. Neither Dr Bolton nor Peninsula Health can “contract out” of the obligations and entitlements imposed or conferred by cl 36.2. The principles which prohibit contracting out are addressed when I deal with estoppel.
WAS THE OVERTIME WORK CLAIMED BY DR BOLTON AUTHORISED BY PENINSULA HEALTH?
It is convenient to commence with a consideration of the correct approach for the Court to take in assessing whether, for the purposes of cl 36.2(a)(ii), an implied authorisation was given by Peninsula Health. The discussion should commence by recognising that an authorisation of the kind contemplated by cl 36.2(a)(ii), whether manifested in a request, a requirement or an approval, involves the making of a communication. As Edelman and Steward JJ recently stated in Realestate.com.au Pty Ltd v Hardingham (2022) 406 ALR 678 at [82] (REA), “[i]n communication between people, meaning can only be conveyed by expression in words or by implications from conduct and circumstances. There is no communication that is not expressed or implied”.
Communication must always be understood in context, including by drawing inferences to identify its implied content, inference being a method of legal reasoning that identifies the context of an implication: REA at [83] and [85] (Edelman and Steward JJ).
As a communication is made by one person to another, its content may be differently understood by those persons. But where the purpose of the communication is not simply informational but includes enticing or moving the receiver of the communication to act or exercise its interests in a particular way, what is objectively conveyed by the communication to its intended receiver, rather than the subjective uncommunicated intent or understanding of the maker of the communication, will be of significance. The objective theory of contract operates on that assumption (REA at [83]) as does trade practices law where, in the context of whether a communication is misleading or deceptive, what is conveyed by the communication is objectively discerned: see Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45 at [103]-[107] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ); Global One Mobile Entertainment Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 134 at [108] (Greenwood, Logan and Yates JJ).
To my mind, cl 36.2(a)(ii) also operates upon such an assumption, so as to require the content of the communication constituting the authorisation to be objectively discerned by reference to what the communication reasonably conveys to its recipient. That construction is consistent with balancing the dual protective purposes of the subclause of providing that an employee be paid for work which he or she has performed at the request, requirement or approval of the employer and protecting the employer from being required to pay for work that it has not requested, required or approved.
The applicants did not expressly frame their submissions on the basis that the conduct and circumstances they rely upon for the implied authorisations contended for are to be objectively discerned. However, their submissions essentially proceeded on that basis. Although it is not entirely clear from the written submissions relied upon, senior counsel for Peninsula Health confirmed that any implication was to be objectively discerned. In discussing whether authorisation could be implied from the conduct and circumstances relied upon by the applicants, Peninsula Health submitted that such an implication “depends on the presumed intentions” of Peninsula Health arising from those circumstances which indicated its position on authorisation. Given what was said by senior counsel, the reference made in written submissions to the “presumed intentions” was, I presume, intended to refer to that intent objectively discerned. However, in other parts of its submission, and perhaps only intended to be confined to its case that there is no scope for an implied authorisation in the circumstances of Peninsula Health, Peninsula Health contended that, because an authorisation is an act of the employer, it is only the actual intention of the employer, as to how, and in what circumstances, it provides authorisation, that matters. If that submission was intended to say that the uncommunicated subjective intent of the employer is relevant to whether an implied authorisation was given by reason of conduct and circumstances, and/or relevant to discerning what is conveyed by that implication, I would reject it for the reasons canvassed above.
Another challenge made by Peninsula Health to Dr Bolton’s evidence about the time it took her to complete ward round preparation was directed to the reliability of that evidence. That challenge was made by reference to car park records and raises the question of the reliability of the car park records.
There are only 10 days of car park records for the entire Plastics rotation, each of which is confined to the use of Dr Bolton’s swipe card at the hospital car park closest to the Plastics unit. The records are somewhat curious for a number of reasons. First, they are not comprehensive. Second, they purport to show Dr Bolton swiping into the car park intermittently (rather than on a block of days) on only four of the 49 days on which she was rostered to work and which the evidence establishes she parked in the car park. Third, six of the 10 occasions where Dr Bolton is shown to have entered the car park were days on which Dr Bolton was not rostered to work and there is no evidence before me that she used the car park. Fourth, those curiosities were no doubt capable of being explained by Peninsula Health who was in the best position to provide an explanation. However, they were not explained despite the fact that the reliability of the car park records was a matter that Peninsula Health sought to rely upon. That was also despite the fact that Dr Bolton proffered an observation about the boom gates to the car park being broken during part of her rotation in the Plastics unit.
The natural advantage that a contemporaneous record, like the car park records, would ordinarily have over Dr Bolton’s recollection as to her arrival at the hospital on a particular day is somewhat lost by the circumstances outlined above. Given that the reliability of the car park records was called into question for this rotation, it is difficult to determine which of the car park records or Dr Bolton’s evidence should be regarded as more reliable where that evidence was in conflict, as it was on two relevant occasions.
For Dr Bolton’s very first day of her rotation in the Plastics unit on 3 June 2019, the car park records show that she arrived some 25 minutes after her rostered commencement time of 7 am. Whereas, Dr Bolton’s evidence was that, because she had been informed during the handover with the outgoing intern of her responsibility to do ward round preparation, she “arrived early on my first day” which, read in context, must have meant at about 6.30 am.
It would be surprising if (what the evidence very clearly displayed to be) a conscientious, highly competent young doctor, fully cognisant of her clinical responsibilities, turned up about an hour later than she was expected to without prior notification on any day, let alone the very first day of a new rotation. In response to the suggestion that she was late on her first day, Dr Bolton responded that she did not recall ever arriving after her commencement time at the hospital on any occasion. She stated that she would have been reprimanded if she had arrived late on her first day and that did not occur, later stating that late arrival without prior notification is not tolerated in the unit. Her supervising doctors, Dr Phan and Dr Read, had no recollection of Dr Bolton ever arriving late. Dr Bolton was firm but fair in her denials. Her evidence gave me no reason to think that she was other than honest and that the evidence she gave was other than reliable.
In relation to this occasion on 3 June 2019, I regard Dr Bolton’s evidence as likely to be more reliable than the car park records for that day.
The only other day where the car park records suggest that Dr Bolton arrived at the Plastics unit later than 6.30 am is 4 July 2019, when the records suggest that Dr Bolton would have arrived at the Plastics unit at about 6.48 am.
In cross-examination, Dr Bolton was more prepared to accept that she may have arrived at the time suggested by the records. Her evidence was to the effect that, if on that day ward rounds commenced at 7 am, she would have arrived earlier than 6.48 am but agreed to the suggestion that it was possible that ward rounds started at 7.15 am on that day. She said, however, that she did not recall a ward round “starting later”, by which she meant later than 7 am, but suggested that, if this was an occasion when the ward round started at 7.15 am, her arrival would have given her “25 minutes to prepare” and that “this would indicate I still allocated half an hour for the preparation before the commencement of the ward round”.
This exchange in cross-examination calls into question either Dr Bolton’s evidence that she always spent about 30 minutes on ward round preparation or her evidence that ward rounds did not commence later than 7 am. I appreciate that it could be that Dr Bolton’s evidence is unreliable on both counts but, by reference to other evidence, it is clear that the best explanation for Dr Bolton’s arrival at 6.48 am on 4 July 2019 is that the ward round commenced at 7.15 am on that day.
Dr Phan was an impressive witness and was one of the registrars who supervised Dr Bolton. He deposed that, whilst not common, occasionally a ward round could commence after 7 am and occasionally, but more commonly, before 7 am in circumstances where the aim was to commence at 7 am. He also stated that generally junior doctors would be advised of a non-standard (ie not 7 am) start by either WhatsApp or during the handover held on the day before. He said that it was a “generally accepted expectation” that junior doctors would prepare for ward rounds prior to the ward round start time, whatever that start time may be. Dr Phan was shown a WhatsApp message dated 3 July 2019 from Dr Read that was sent to various Doctors working in the Plastics unit, including Dr Bolton, stating “WR at 0715”. Dr Phan explained that the message here being communicated was that the ward round on the next day (ie 4 July 2019) would commence at 7.15 am. Asked about his expectation as to what time the residents and interns would arrive in order to prepare for ward rounds, Dr Phan said that it would not be unreasonable for them to arrive 20 to 30 minutes earlier than the 7.15 am start.
That evidence makes it abundantly clear that it is likely that on 4 July 2019 Dr Bolton commenced ward round preparation overtime work at about 6.48 am and performed about 27 minutes of that work if the ward round actually commenced at 7.15 am. I am satisfied that the evidence of events on 4 July 2019 supports, rather than detracts from, Dr Bolton’s evidence that she always spent about 30 minutes performing ward round overtime before the commencement of a ward round. The evidence also, however, establishes that on 4 July 2019 Dr Bolton only performed about 15 minutes of ward preparation overtime and not the 30 minutes claimed by her application. Dr Bolton’s claim should not be allowed to that extent. There is no other evidence of any other day where a WhatsApp instruction was given for a ward round to start later than 7 am.
In the absence of car park records for any of Dr Bolton’s other rostered days in the Plastics rotation, I consider that her evidence, in addition to corroborating evidence from other witnesses and medical records data, is the best available evidence to establish the amount of overtime worked by Dr Bolton.
Dr Bolton repeatedly gave evidence that she arrived at work at 6.30 am each day because ward round preparation took 30 minutes — not more, not less. This evidence is consistent with the Plastics Intern Handover Document which says interns must “arrive [at] 6.30” and the Plastics Rover which says “interns generally start 30 minutes prior [to 7 am]”. However, I held some concern as to whether Dr Bolton and the Plastics Intern Handover Document’s reference to a 6.30 am arrival meant arrival at the hospital or arrival at the ward. On balance, especially given that Dr Bolton specified that the ward round preparation tasks took 30 minutes, not just that she would arrive at the hospital (or the ward) 30 minutes before 7 am, it seems likely that her standard arrival time at the ward was 6.30 am and her arrival at the carpark must have been before 6.30 am. This conclusion is supported by the theatre lists. Printing and stapling the theatre lists to the patient list was one of Dr Bolton’s various tasks in preparing for ward rounds. The theatre lists show that on 13 occasions (not including those days where ward rounds started before 7 am and Dr Bolton claimed overtime for the earlier start) she accessed the theatre list before 6.37 am and, given the travel time of seven minutes from the car park to the ward, it is likely that she entered the car park before 6.30 am on these occasions.
The theatre lists also generally corroborate Dr Bolton’s evidence. Dr Bolton accessed theatre lists on 44 out of the 49 days she worked in the Plastics unit and, on each and every occasion, she accessed the list before 7 am. The theatre lists do not indicate when Dr Bolton arrived at work and therefore cannot clearly establish the duration of her overtime. However, the theatre lists show, at the very least, that Dr Bolton was at work at the time the theatre list was accessed and therefore are compelling evidence that she worked overtime, to some extent, on each of the days claimed.
With respect to duration, the evidence (again, excluding those days where ward rounds started before 7 am and Dr Bolton claimed overtime for the earlier start) shows that Dr Bolton opened the theatre lists anywhere as early as 6.15 am and as late as 6.54 am, with the average time being between 6.35 am and 6.45 am. The theatre lists are inconclusive but appear to be generally consistent with Dr Bolton’s evidence that she spent 30 minutes each day preparing for ward rounds before 7 am.
Dr Bolton’s evidence that she spent 30 minutes each day preparing for ward rounds is also supported by the evidence of her supervisors’, Dr Phan and Dr Read, who both agreed that interns generally commenced work at 6.30 am. Dr Read said that ward round preparation would take 15 to 30 minutes and Dr Phan said that ward round preparation would take 20 to 30 minutes. However, there was evidence that Dr Bolton was shouldering more of the ward round preparation work than the two residents, which may explain why the time she spent preparing for ward rounds was at the upper end of the ranges described by Dr Phan and Dr Read.
On this issue of the sharing of the work, Peninsula Health contended that the two residents, Dr Khoo and Dr Lee, arrived much closer to 7 am than Dr Bolton. It also relied on Dr Phan’s evidence that ward round preparation would only take “a bit more” than “10 minutes of work per person”. However, Dr Phan clarified that his estimate of “10 minutes of work per person” was only in relation to preparing the handover sheet and said that “preparation for the ward round is more than just the handover sheet”. Peninsula Health’s contention that Dr Bolton did not spend 30 minutes preparing for ward rounds because Dr Khoo and Dr Lee did not spend that amount of time preparing for ward rounds is misconceived. Whilst those tasks might have been more equitably shared between interns and residents, the fact that they were not and that Dr Bolton was therefore, in practical terms, required to carry out more tasks than she should have been, does not suggest that she either did not actually spend 30 minutes preparing for ward rounds or that doing so was unnecessary or unreasonable. That is particularly so in circumstances where Dr Bolton’s complaints to her supervisors that she was being forced to do an inequitable share of the tasks fell on deaf ears.
Accordingly, I am satisfied that on each rostered shift in the Plastics unit where ward rounds commenced at 7 am, Dr Bolton arrived at work at about 6.30 am to prepare for ward rounds and performed about 30 minutes of unrostered overtime. There is only evidence that ward rounds started after 7 am for one day, 4 July 2019, and, for that occasion, I am satisfied that Dr Bolton worked 12 minutes of unrostered overtime. For those reasons, I find that Dr Bolton worked 22.25 hours of ward round preparation overtime in her Plastics rotation.
Second General Medicine rotation in the Department of Medicine – August 2019 to October 2019
Medical records overtime
Dr Bolton claims a total of 18 hours of overtime for work performed completing discharge summaries during a nine week period commencing 12 August 2019 and ending on 13 October 2019. I accept Dr Bolton’s evidence that in each of the weeks in question she performed some work completing discharge summaries after her rostered shift. I have earlier found that the performance of that work was authorised by Peninsula Health.
What remains in contest is the extent of the overtime work performed by Dr Bolton and the nature of the contest is similar to that in relation to medical records overtime in Dr Bolton’s First General Medicine rotation.
The applicants’ claim is based on the top of the range estimate given by Dr Bolton. In her evidence, Dr Bolton was asked the shortest period that it took her to perform medical records overtime, to which she said “around 20 minutes”. She was then asked the longest period that it took her to carry out that work, to which she replied “around 40 minutes”. In response to a question as to how many times she performed that work during this rotation, Dr Bolton replied that it “would have been about three times a week, so a minimum of 60 minutes a week and a maximum of around 120 minutes a week”. Although I accept that evidence as reliable, it requires me to estimate the usual or average time worked on any day or in any week. I reject that an “uplift” justifies the adoption of the top of the range of Dr Bolton’s estimate.
Peninsula Health contended that no reliance should be placed on Dr Bolton’s oral evidence and, similarly to its approach taken in relation to medical records overtime for the First General Medicine rotation, Peninsula Health contended that, as a maximum, the car park records would support an average of 22 minutes of overtime on each of three days of the weeks worked during the rotation, or a total of 10.3 hours.
Although the car park records are comprehensive, there are questions about the reliability of the car park records. A comparison of the entry times recorded in the car park records with the patient list data, which shows when Dr Bolton accessed the hospital’s computer system to access the patient list, shows that on a number of occasions the car park records indicate that Dr Bolton arrived either after or just seconds before she accessed the patient list records. In circumstances where Dr Bolton deposed that it was not possible for her to log on to the hospital’s computer before she had entered the hospital and never accessed the hospital computer remotely, those records throw up an obvious discrepancy.
An analysis of those two sets of records suggests that either the car park clock was about 10 minutes fast or that the clock providing the time of access to the patient list was about 10 minutes slow. However, the evidence given by Dr Bolton of her usual arrival time at the car park during this rotation, which I regard to be reliable, is consistent with the car park clock arrival times for Dr Bolton. It seems likely that the discrepancy pointed to by the applicants is not due to a problem with the car park clock. I therefore regard the car park records as reliable.
I have therefore assessed the time worked by Dr Bolton by reference to the car park records using the same methodology as that used for the assessment made in relation to medical records overtime performed by Dr Bolton in her First General Medicine rotation. Accordingly, I find that Dr Bolton worked 11 hours of medical records overtime in the Second General Medicine rotation.
Cardiology rotation in the Department of Medicine – November 2020 to January 2021
Medical procedures preparation and ward round preparation overtime
In relation to her Cardiology rotation, Dr Bolton claims that she worked overtime on specified days in the period 2 November 2020 to 31 January 2021. Those claims relate to ward round preparation overtime and medical procedures preparation, each of which was worked prior to the commencement of Dr Bolton’s rostered shift. I accept that those types of overtime work were performed by Dr Bolton and that she was authorised by Peninsula Health to perform the work. What is left in contest is the extent to which this work was performed by Dr Bolton.
Dr Bolton’s evidence was that, on each of the occasions she performed this work, she arrived 20 minutes prior to her rostered start of 8 am and then spent 20 minutes performing either medical procedures preparation tasks, ward round preparation tasks or both, unless interrupted by a patient emergency. She also said in cross-examination that the ward round preparation tasks commonly continued after her rostered hours commenced and clarified that she did not work prior to the commencement of her roster on the first day of this rotation on Monday 2 November 2020.
Peninsula Health contested the amount of time said to have been required for the performance of these tasks. It contended, without substantiation, that the time spent was unreasonable or that the tasks performed went beyond what was required of Dr Bolton. I reject those contentions. I am satisfied on the evidence given by Dr Bolton that the tasks required would usually take about 20 minutes and that, in planning her arrival, Dr Bolton would ordinarily allow for about 20 minutes of time and thus arrive at about 7.40 am.
There are only 10 car park records of relevance in relation to Dr Bolton’s arrival for this period. Whilst very substantially incomplete, those records show that Dr Bolton did not always arrive on the ward at 7.40 am or earlier. That observation is made in circumstances where Dr Bolton accepted that it took about eight minutes for her to transit from the car park to the ward. Some of those records suggest that she would have arrived at the ward a few minutes later than 7.40 am and some suggest she would have got there a few minutes earlier. One record suggests arrival at 7.36 am and another as late as 7.53 am.
Those records make it clear that Dr Bolton did not uniformly arrive on the ward at 7.40 am but are not sufficiently comprehensive to deny the possibility that she usually arrived at 7.40 am. Although I consider that there is some ambiguity as to Dr Bolton’s arrival time on the ward, I am nevertheless persuaded by her evidence of how long it usually took to perform the work, which is the best evidence available, that on average she performed 20 minutes of work prior to her rostered commencement.
Accordingly, other than for 2 November 2020, I find that Dr Bolton worked 20 minutes of overtime on each day claimed, which is a total of 7.25 hours.
Medical records and handover overtime
I am satisfied that Dr Bolton worked both medical records overtime and handover overtime in this period and that the work performed was authorised. The extent of the work performed by Dr Bolton in relation to both forms of overtime is contested.
Dr Bolton deposed to having performed “about five to 10 minutes” of medical records overtime on each relevant occasion. Her evidence was that she performed this overtime “five days a week” in weeks 1 and 3 of her rotating roster.
On the weekday afternoons that Dr Bolton was rostered to finish at 4 pm, she attended handover meetings with the incoming staff which were scheduled to commence at 3.45 pm. She deposed that on each day of each of week 1 and week 3 of her rotating roster she would perform “usually somewhere between 15 and 20 minutes” of handover work at a time beyond her rostered finishing time.
The applicants’ claim is again pitched at the top of the range of the time estimated by Dr Bolton. They claim 10 minutes a day for each of the 33 days Dr Bolton performed medical records overtime and 20 minutes a day for handover overtime on the 25 days specified by their particulars of loss and damage.
To substantiate the extent of the overtime worked, the applicants primarily rely on the evidence given by Dr Bolton and contended that an “uplift” should be applied. Peninsula Health contended that Dr Bolton’s evidence should not be relied upon and, without substantiation, says that the amount claimed does not represent a reasonable amount of time for performing the work and/or that the tasks performed by Dr Bolton went beyond what was required of her. From the limited car park records available (13 in total), Peninsula Health extrapolate a suggested maximum average time that could have been worked for both medical records and handover overtime of 23 minutes a day.
In my view, the car park records are not sufficiently comprehensive to enable any reliable evaluation of the average time Dr Bolton likely spent performing overtime after the end of her rostered finish. They do, however, provide some confirmation of the extent of time said by Dr Bolton to have been worked. They show that Dr Bolton likely worked about 25 to 30 minutes of overtime on eight of the 13 days for which there are records of Dr Bolton’s departure time from the car park.
In my view, the best available evidence of the extent of time worked by Dr Bolton is the estimate given by Dr Bolton of the usual time that she spent performing the work. Her estimate of five to 10 minutes for medical records overtime is apt to suggest that she was indicating an average time of 7.5 minutes on each occasion the work was done. Similarly, her evidence that handover ran anywhere between 15 and 20 minutes over her finishing time suggests that she was indicating an average time of 17.5 minutes on each occasion the work was done. I accept Dr Bolton’s evidence as to the usual number of times in a week that each category of work was performed. That is, for the weeks one and three of the roster, four days per week for handover overtime and five days per week for medical records overtime.
For those reasons, I am satisfied that Dr Bolton worked a total of 4.25 hours of medical records overtime and 7.25 hours of handover overtime.
CONCLUSION
As stated above, I have determined common questions 6 and 7 in the affirmative and common questions 8 and 9 in the negative. Those findings should be reflected in the declarations the Court will make, the terms of which the parties should propose.
In relation to Dr Bolton’s claims for unpaid overtime entitlements, I have assessed the number of hours worked that should be paid for and my findings will provide the parties with the capacity to calculate the extent of the underpayments involved, in circumstances where I do not apprehend that there is any dispute as to the applicable rates of pay under the 2018 Agreement. The parties should consider my reasons and attempt to agree upon a sum to which Dr Bolton is entitled and propose orders addressing both compensation and interest.
My reasons should also permit the parties to discern the number of contraventions I have found of the 2018 Agreement and thus s 50 of the FW Act for each category of overtime work addressed. The exercise should be undertaken on the basis that, on each occasion I have found that Dr Bolton performed unrostered overtime as claimed by her, and on the basis that it is not in contest that Peninsula Health failed to pay Dr Bolton for the work performed, I have found a contravention by Peninsula Health of cl 36.2 of the 2018 Agreement and therefore a contravention of s 50 of the FW Act. The parties should attempt to agree upon the terms of the declarations to be made by the Court that will reflect the contraventions so found.
The initial trial has been confined to liability and, if the applicants continue to press for penalties, the parties should consult and propose appropriate orders which address the timetabling of a penalty hearing.
If there is no agreement between the parties about the orders and declarations which the Court should make to reflect these reasons, the parties will be required to file the proposed orders and declarations each contends for together with any short supporting submissions the parties seek to make. Unless persuaded otherwise, I propose to deal with the terms of the orders and declarations that the Court should make on the papers.
I certify that the preceding four hundred and sixty-eight (468) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromberg. Associate:
Dated: 11 August 2023
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