Australian Salaried Medical Officers' Federation v Peninsula Health

In the matter of Australian Salaried Medical Officers' Federation v Peninsula Health, the Australian Federal Court was asked to determine whether Peninsula Health had breached enterprise agreements by not paying unrostered overtime to Dr Bolton. The legal issues before the court were whether the term “authorised hours” in the enterprise agreements could be constituted by an employer's request, requirement, or other approval, and whether authorisation impliedly given by the employer would engage the payment obligation imposed by the relevant enterprise agreements. The court also considered whether estoppel could be available as a defence to a claim of unpaid entitlements under an enterprise agreement and the principles for proving loss in an underpayment claim in the absence of precise evidence of hours worked.

The court found that the term “authorised hours” in the enterprise agreements could be constituted by an employer's request, requirement, or other approval. However, the court held that authorisation impliedly given by the employer would not engage the payment obligation imposed by the relevant enterprise agreements unless it was given consistently with a mode or process adopted by the employer. The court also held that estoppel was not available as a defence to a claim of unpaid entitlements under an enterprise agreement. Finally, the court held that in the absence of precise evidence of hours worked, the onus was on the employee to prove the number of hours worked and the employer had to pay for all hours worked.

The court allowed the application in part and determined common questions 6 and 7 in the affirmative and common questions 8 and 9 in the negative. The court held that Dr Bolton was authorised in respect of each category of overtime claimed, other than for “ward round overtime”. The court found that Peninsula Health had contravened the 2018 Agreement and therefore s 50 of the FW Act by not paying Dr Bolton for the overtime work which she was authorised to perform. The court ordered the parties to propose the orders and declarations that the Court should make to reflect these reasons for judgment. If the parties could not agree on the orders and declarations, the court ordered the parties to file and serve a minute of the orders and declarations that each party proposed, and any outline of submissions in support of the proposed orders and declarations (limited to three pages).