Federal Court of Australia

Australian Salaried Medical Officers’ Federation v Peninsula Health [2023] FCA 939

ORDERS

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

1    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”.

2    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.

3    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.

4    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.

5    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?

6    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.

7    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.

8    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

9    Before considering the principal legal arguments, it is convenient here to set out the primary background facts.

10    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.

11    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.

12    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.

13    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).

14    Peninsula Health has numerous departments but only two, the Department of Medicine and the Department of Surgery, are relevant to this proceeding.

15    The Department of Medicine has twelve medical subspecialties or units, including the General Medicine and the Cardiology units through which Dr Bolton rotated.

16    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.

17    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.

18    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.

19    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

20    Beyond Dr Bolton, whom I have already introduced, the applicants called nine witnesses at the initial trial.

Mr Peter Watts

21    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

22    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

23    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

24    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

25    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

26    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

27    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

28    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

29    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

30    Peninsula Health called five witnesses.

Dr Gary Braun

31    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

32    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

33    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

34    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

35    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

36    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.

37    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.

38    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.

39    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.

40    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.

41    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

36.1    The 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.)

42    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.

43    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.

44    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 v Holmes (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, Mining and 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 CSR Ltd (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).

45    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.

46    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.

47    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.

48    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.

49    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.

50    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.

51    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.)

52    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.)

53    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.)

54    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.)

55    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).

56    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.

57    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.

58    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”.

59    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.

60    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.)

61    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.

62    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.

63    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.

64    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).

65    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?

66    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”.

67    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.

68    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.

69    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).

70    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.

71    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.

72    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.

73    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’”.

74    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.

75    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.

76    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.

77    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.

78    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.

79    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)).

80    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.)

81    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].

82    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.

83    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.

84    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.

85    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.

86    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.

87    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.

88    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.

89    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

90    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?

91    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).

92    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.

93    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.

94    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.

95    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.

96    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.

97    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.

98    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.

99    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.

100    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?

101    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.

102    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.

103    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.

104    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.

105    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?

106    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.

107    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.

108    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).

109    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.

110    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?

111    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”.

112    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).

113    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).

114    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.

115    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.

116    It is axiomatic that what is conveyed by a communication implied from conduct or circumstances has to be assessed by reference to all of the conduct and circumstances which speak to what the communication should be reasonably understood to convey. The relevant course of conduct is to be examined as a whole and the content of the communication is to be determined in light of the relevant surrounding facts and circumstances: see Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 at [39] (Gleeson CJ, Hayne and Heydon JJ), [109] (McHugh J); Global One at [108] (Greenwood, Logan and Yates JJ). Within the relevant course of conduct and relevant circumstances which must be considered, there may be different and contrary messages conveyed, including by express communications. Where that is the case, the mixed messages must be reconciled in order to ascertain what was truly conveyed.

117    A variety of tools of analysis may be employed to reconcile mixed messages. In trade practices law, the courts, in assessing whether a misleading or deceptive representation has been made, have reconciled mixed messaging by identifying the “dominant message”: see, eg, Australian Competition and Consumer Commission v AGL South Australia Pty Ltd [2014] FCA 1369 at [148]-[172] (White J). In that field, and with respect to communications in the nature of disclaimers or qualifications, mixed messaging has been reconciled by reference to whether one message has been neutralised by the other, with consideration given to factors such as the clarity or prominence of the disclaimer or qualification: see Australian Competition and Consumer Commission v GlaxoSmithKline Consumer Healthcare Australia Pty Ltd (2019) 371 ALR 396 at [33] and the cases there cited by Bromwich J. Those are tools of analysis which serve the underlying inferential reasoning process being utilised to reconcile mixed messages.

118    Submissions were made by Peninsula Health under the heading “Implication of authority”. They were contained in that part of Peninsula Health’s written closing submissions addressing the construction issue raised by its first response and thus were put in support of Peninsula Health’s contention that, in the circumstances of Peninsula Health, there is no scope for an implied authorisation. Those submissions were not expressly relied upon for the alternative and second response made by Peninsula Health that, accepting the applicants’ argument that there was scope for an implied authorisation, no finding should be made that an implied authorisation was given by Peninsula Health to Dr Bolton. In case the intended reliance was broader than what I perceive it to have been, I should say that I reject that, in the process of the inferential reasoning required to objectively discern whether authorisation was impliedly given:

(i)    an express direction (or other express communication) from the employer will always defeat an implied authorisation; and

(ii)    the rules of contractual construction which dictate whether a contract includes an implied term are of relevance (in this respect, Peninsula Health relied on the well-known statement of the Privy Council in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283 (Lord Simon of Glaisdale, Viscount Dilhorne, Lord Keith of Kinkel) as discussed in Byrne v Australian Airlines Ltd (1995) 185 CLR 410).

119    Broadly stated, the conduct and circumstances relied upon by the applicants to demonstrate that Peninsula Health impliedly authorised the work performed by Dr Bolton in excess of rostered hours were one or more of the following:

(i)    the fact that the duties and responsibilities of Dr Bolton included each of the tasks performed outside of her rostered hours;

(ii)    communications made by or on behalf of Peninsula Health as to how and when particular tasks were to be performed;

(iii)    the fact that it was necessary for Dr Bolton to perform the work outside of her rostered hours due to the rostering and work structure in each of her rotations and, in the case of the completion of medical records, the fact that there was insufficient time during her rostered hours to complete the required work;

(iv)    Peninsula Health’s knowledge (both constructive and actual) that there was insufficient time during Dr Bolton’s rostered hours to complete the work, or that Dr Bolton was performing the work outside of her rostered hours; and

(v)    Peninsula Health’s failure to direct Dr Bolton not to perform the work outside of her rostered hours.

120    I accept that each of the conduct or circumstances relied upon by the applicants is capable of being relevant to whether or not, in respect of any particular occasion, Peninsula Health gave its implied authorisation for Dr Bolton to perform work in excess of her rostered hours. Each of those factors is directed to facts which may be informative of the expectation set by Peninsula Health as to the work required of Dr Bolton. Although the applicants submitted that the implied authorisation they contended for arose directly from those facts, in my view, the assessment is better made by first considering whether the facts demonstrate an expectation set by Peninsula Health and then considering whether, from the objectively discerned existence of that expectation, an implied authorisation was given.

121    It is, I think, of particular importance in a case such as this to focus upon the work expectations set by the employer in considering whether or not a request or a direction that work be performed in a particular way or at a particular time was made by the employer. In most employment arrangements, it is simply not practicable for employees to be closely supervised and directed and, accordingly, what an employer will do is communicate the outcome it expects to employees rather than provide a series of specific directions as to how, when and in what order the tasks necessary to obtain that outcome are to be performed. In those circumstances, the requirements made of the employee will be mainly implicit rather than express and will often arise out of the expectations set by the employer. Further, expectations set by the employer will often not be set expressly but will themselves be implicit from the circumstances, including the nature of the employee’s duties and the way in which, or the pattern in which, work is ordinarily performed to the apparent satisfaction of the employer.

122    As the evidence demonstrated, doctors working in a hospital are highly skilled employees who are not closely directed. What is required of them in relation to any particular task must generally be left to be ascertained by reference to generalised expectations set by those who supervise them in the context of the clinical demands imposed by the nature of their duties and the patients that they must care for in accordance with accepted standards of clinical practice.

123    The capacity for an expectation set by an employer to provide a basis for a finding that overtime work has been authorised is supported by the observation made by Mortimer J in Polan at [75] that authorisation may be implied from “an ongoing understanding”. The reasoning in Scotto, as discussed at [84] above, is also supportive. There are factual parallels between this case and Scotto, where the tasks necessary to be performed before the shop could commence trading, which were performed outside of the employee’s rostered hours, were found to have been impliedly authorised.

124    I also accept Peninsula Health’s submission made in furtherance of its second response that what the circumstances show with respect to the likely position of the employer regarding authorisation is instructive as to whether, objectively discerned, the employer has impliedly given its authorisation on any particular occasion.

125    It is notable, however, that by its written submissions Peninsula Health only relied upon the following circumstances to demonstrate its position and presumed intent regarding authorisation:

(a)    It did not want junior doctors working extensive unrostered overtime;

(b)    It wanted junior doctors to maintain a work life balance;

(c)    It wanted to be able to regulate and monitor the overtime worked;

(d)    It only expected unrostered overtime when there was a clinical need; and

(e)    It expected interns to raise the issue of working excessive overtime with senior doctors.

126    I accept that each of those circumstances is capable of being relevant to objectively discerning whether or not, in any particular case, Peninsula Health impliedly authorised Dr Bolton to perform overtime and the extent of the authorisation given.

127    What was not relied upon (at least expressly and substantively) in the written submissions of Peninsula Health for the second response were the four overtime policies it relied upon in support of its first response that there was no scope for implied authorisation in the circumstances of Peninsula Health. Those policies, which I should now identify, were:

(i)    an Overtime and Time in Lieu policy dated 24 July 2015 (as amended from time to time) subsequently replaced by a policy dated 21 October 2020 (Policy);

(ii)    a Guideline for Managing Junior Medical Staff Overtime dated 21 August 2015 (as amended from time to time) (Guideline);

(iii)    relevant parts of a handbook headed “Department of Medicine – Essential Information” (the relevant parts of which are set out below) (Department of Medicine Overtime Policy); and

(iv)    a process applicable to the Department of Surgery, including the Plastics unit in that Department (Department of Surgery Overtime Policy).

128    In closing oral submissions on the final day of the trial, and in accepting that the existence of an implied authorisation is to be objectively discerned, senior counsel for Peninsula Health said this:

Yes, it is objective. But we would say the court, in forming that view, would have to give a fair bit of consideration to what the express position of the employer is, what the purposes described for the various documents … that we’ve taken [the Court] to.

129    Although somewhat ambiguous, when read in context, I understand senior counsel to have been contending that the existence and content of those four policies described above are relevant circumstances which must be taken into account in objectively discerning whether, from conduct and circumstances, an implied authorisation was given by Peninsula Health.

130    It may be fairly said that the applicants had little opportunity to directly deal with this issue given the late juncture at which it was raised by Peninsula Health. Nevertheless, the Court clearly raised during the hearing that, in determining whether an implied authorisation had been given, the Court would likely need to reconcile potentially conflicting messages conveyed by all of the relevant facts, including the policies relied upon by Peninsula Health. In the end, I do not consider that either party was really disadvantaged by the fact that both sets of written submissions seem to have largely avoided grappling with an issue which I regard to be important. I will therefore have regard to the overtime policies of Peninsula Health and consider whether those policies either diminish or negate an inference that an implied authorisation was given by Peninsula Health to Dr Bolton in respect of each category of overtime work which Dr Bolton claims to have worked.

131    That matter is best considered by reference to the specific conduct and other circumstances relevant to each of the different categories of overtime work claimed to have been performed by Dr Bolton. That will be done below. It is convenient, however, to now set out the relevant parts of some of the policies relied upon by Peninsula Health, as well as address what can generally be said about the significance of those policies to the exercise I need to undertake. I intend to utilise the following observations as a guide in assessing the significance of any one or more of the policies to any specific consideration that may be required in relation to each category of overtime work that Dr Bolton claims to have performed.

132    Where an employer has clearly and unequivocally communicated to its employees that it will hereafter only authorise the working of overtime through a particular process, and uniformly only authorises overtime work through that process, there will likely be little room to imply from other conduct and relevant circumstances that the employer has requested, required or otherwise approved the working of overtime which has not been authorised under that process. However, the greater the ambiguity of the process itself or the communication regarding the significance and application of the process, the greater the room for such an implication. Likewise, the further from uniformity the actual practice or application of the communicated intent of the employer to only authorise overtime through the process, the greater the room for an implication that, from other conduct and circumstances, the employer has requested, required or otherwise approved the working of overtime which has not been authorised under the process. That is because a process that is unclear, uncommunicated or rarely applied is unlikely to have much force in conveying the employer’s intent in any assessment made against countervailing conduct or circumstances which support an implied authorisation given by the employer otherwise than under the process. Such a policy is therefore unlikely to diminish or negate an authorisation implied from other conduct or circumstances.

133    It will be necessary in relation to each of the overtime policies relied upon by Peninsula Health to evaluate their impact, if any, upon the capacity to infer from other conduct and circumstances whether Peninsula Health has given its implied authorisation for overtime to be worked on the particular occasions that the applicants claim Dr Bolton worked overtime but was not paid. In this section, I will evaluate the possible impact of the Policy and the Guideline which, on their face, are applicable to all staff in the case of the Policy or all junior medical staff in the case of the Guideline. I will address the Department of Medicine Overtime Policy and the Department of Surgery Overtime Policy when I later deal directly with the claims made in relation to those departments.

The Policy and the Guideline

134    The Policy and Guideline were both in place during the whole period relevant to Dr Bolton’s claims and the claims of group members. The stated purpose of the Policy and Guideline is the same — “to ensure that ... [u]nrostered overtime, in appropriate circumstances, is duly authorised and remunerated”. The Policy and the Guideline define overtime in the same way and set similarly detailed and prescriptive requirements for claiming overtime. Peninsula Health submitted that, taken together, the Policy and the Guideline “required that for overtime to be paid” it must be:

(a)    authorised either in advance or at the time of working, or retrospectively;

(b)    performed in order to meet a demonstrable clinical need that could not have been met by other means; and

(c)    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.

135    The Guideline provides that only the “Clinical Director or another member of senior medical staff and preferably a Head of Unit” may authorise overtime whereas the Policy permitted a delegate of the Head of Unit or Clinical Director to authorise overtime. It is clear enough, however, that each of the Policy and the Guideline contemplates that Peninsula Health’s authorisation will only be given under those policies when it is expressly given.

136    I consider that the Policy is somewhat ambiguous as to whether it only deals with the retrospective authorisation of overtime (the applicants’ position) or whether it deals with both the prospective and retrospective authorisation of overtime (Peninsula Health’s position). The better view is that it is intended to directly deal with both.

137    However, even if the terms of the Policy were crystal clear in providing that Peninsula Health intended that it would only authorise all overtime where it has given an express authorisation in accordance with the process provided for by the Policy, the existence of those terms do not demonstrate that Peninsula Health’s intent was objectively so understood. That is because the evidence demonstrated that employees of Peninsula Health who engaged in clinical work in the departments of Medicine and Surgery were likely not aware of the Policy and therefore unaware of any intent of Peninsula Health that the terms of the Policy sought to convey. I come to the same conclusion in respect of the Guideline.

138    Dr Bolton, Dr Phan, Dr Brickle, Dr van Berkel, Dr Read and Dr Toogood all gave evidence that they had either never seen, or had no recollection of seeing, the Policy. All of the clinical witnesses called by Peninsula Health were either not aware of the Policy or, if they were aware, had never applied the Policy in the course of their work at Peninsula Health. For example, Dr Carrillo said in cross-examination that he had no recollection of seeing the Policy and “certainly couldn’t tell you what’s in it”. Dr Terrill and Dr Nye had no recollection of ever seeing the Policy. Dr Braun’s evidence was that he “would have” seen the Policy when it was created but “[t]hat was a long time ago” and he had not referred to it since that time until preparing for this proceeding in 2021. He also accepted that junior doctors were not provided with, or directed to, the Policy. The only witness who knew about the Policy was Mr Watts, a non-clinical staff member in the MWU.

139    With respect to the Guideline, Dr Bolton, Dr Phan, Dr van Berkel, Dr Read, Dr Toogood, Dr Marshall and Dr Terrill said they had never seen the Guideline before. Dr Braun told the Court he “may have” seen the Guideline but could not recall.

140    Peninsula Health contended that the Guideline was referred to Doctors in Training, including Dr Bolton, at their orientation and that the Guideline referred to the Policy. However, the evidence is not that clear. The only basis for that contention was the evidence of Mr Watts who said that he did not provide hard copies of either the Policy or the Guideline to Doctors in Training at their orientation. However, he did refer them to a database called “Prompt”, which was Peninsula Health’s electronic document management system, where all of the “thousands” of policies and guidelines were stored. Mr Watt accepted in cross-examination that junior medical staff had access to “Prompt”. He said he told junior medical staff “about the overtime policies in the orientation” but he did not expressly say that he referred to the Guideline or the Policy or, directly or indirectly, to the content of those policies.

141    At best, all that the evidence demonstrates is that the Policy and Guideline were accessible to Doctors. But the evidence that everyone from junior doctors to every Head of Unit, and even the Clinical Director of the Department of Medicine himself, were not aware of the Policy or the Guideline, or had never applied them, demonstrates that it is unlikely that the medical workforce in the departments of Medicine and Surgery accessed the database to familiarise themselves with the Policy or the Guideline.

142    In circumstances where the Policy and the Guideline were largely unknown and never applied during the relevant period, and in circumstances where (as is later discussed) overtime was extensively worked by Doctors in the Department of Medicine and the Department of Surgery, the objectively discerned understanding within those Departments could not have been that the only way that Peninsula Health would request, require or approve the working of overtime was if processes under the Policy or the Guideline were followed. There is therefore a great deal of room, and no relevant impediment, for implying that, notwithstanding the existence of the Policy and the Guideline, Peninsula Health may have on particular occasions requested, required or otherwise approved the working of overtime in the departments of Medicine and Surgery which had not been authorised under those processes.

First General Medicine rotation in the Department of Medicine – January 2019 to March 2019

143    Dr Bolton undertook her first rotation in the General Medicine unit at Frankston Hospital from January 2019 to March 2019. The General Medicine unit sits within the Department of Medicine. Dr Braun gave uncontested evidence that the Department of Medicine provides a large range of general and speciality inpatient and outpatient medical services from the Frankston and Rosebud Hospital sites. Dr Nye deposed that, in 2019, there were approximately 60 junior medical staff and 13-15 senior medical staff working in the unit. Dr Bolton deposed that all interns at Peninsula Health rotate through the General Medicine unit at least once.

144    Dr Bolton’s pleaded duties in the General Medicine unit, as admitted by Peninsula Health, included preparing for ward rounds, undertaking ward rounds and completing patient medical records, including discharge summaries, in a timely manner. Dr Bolton alleges that at various times she performed each of those duties in unrostered overtime hours and that the hours so worked were authorised by Peninsula Health. I will refer to each of the three duties in relation to which claims are made in this rotation as ward round preparation overtime, ward round overtime and medical records overtime.

145    I will deal first with ward round preparation overtime in this rotation. Before setting out the evidence, it is convenient to broadly explain what a ward round at Peninsula Health entails. Dr Bolton’s unchallenged evidence was that in the General Medicine unit ward rounds involved her team, comprising two interns, two registrars and a consultant, visiting each patient at the patient’s bedside, examining the patient, assessing their condition and determining the patient’s care plan, including any further investigations or referrals that needed to be performed. Ward rounds would usually be “split” meaning that, after an initial team consultation, one intern and one registrar would see half of the patients and the other intern and registrar would see the rest, with the consultant moving between the two groups. Dr Bolton and Dr Curtin deposed that an intern’s role during ward rounds was to carry the team phone, push the “work station on wheels” (a mobile computer station) around the ward and to take notes documenting each of the patient reviews undertaken during the ward round in the patient’s electronic medical records. Whilst at the bedside, the registrar or the consultant would conduct an assessment with the patient, which would involve speaking to them, speaking to the bedside nurse and examining the patient. The registrar or consultant would also verbalise their findings as they went so that those findings could be recorded by the intern in the patient’s notes.

Ward round preparation overtime

146    Dr Bolton’s evidence, which is confirmed by her roster for this period, was that during her First General Medicine rotation she worked a “rotating roster” meaning that she alternated each week between commencing work at 8 am or 8.30 am. She commenced in week 1 of her rotation with 8 am starts. This evidence is not controversial between the parties. It is the applicants’ case that during the First General Medicine rotation, Peninsula Health directed Dr Bolton to undertake ward round preparation prior to her rostered commencement time on weeks 1, 3, 5, 7 and 9 of the “rotating roster” when she was rostered to commence work at 8 am.

147    The applicants contended that ward round preparation involved the task of preparing a patient list which had to be performed by Dr Bolton prior to the commencement of her rostered hours and thus during hours in excess of her rostered hours. It is uncontentious that the patient list had to be available in order to conduct ward rounds and therefore the task of preparing it had to be completed by 8 am when a handover meeting, which preceded the conduct of ward rounds, commenced.

148    Dr Bolton’s evidence was that she performed the task prior to 8 am because there was an “expectation” that she attend the 8 am handover meeting with an updated patient list. That task, she deposed, could not be done the day before because patients were admitted overnight and it was therefore “impossible” (by which I think she meant “impractical”) to pre-prepare the patient list as the work would need to be redone in the morning anyway.

149    Dr Bolton deposed to the source of the “expectation” which, as I understand the applicants’ case, is the source, or at least a source, of the implied direction given by Peninsula Health to Dr Bolton that she perform the task of preparing the patient list outside of her rostered hours. Dr Bolton deposed that she participated in a “shadowing day” conducted by outgoing interns at the end of her orientation week, prior to commencing her rotation in General Medicine on the following Monday. The shadowing day was a rostered day included in the orientation program in which, according to Dr Bolton, the outgoing interns in the General Medicine unit went through the tasks expected of the incoming interns, that is, the tasks formerly performed by the outgoing interns that the incoming interns were to undertake.

150    Dr Bolton’s evidence as to the function of a shadowing day was consistent with evidence given by both Dr Nye and Dr Braun. Dr Nye’s evidence was that Peninsula Health “in part” delegates to outgoing interns and residents the responsibility of communicating work requirements and expectations to incoming interns and residents. Dr Nye qualified that evidence having regard to the limited nature of a “single day of shadowing”. Dr Braun and Dr Nye both agreed that the intern shadowing day was an important part of an intern’s orientation and that Peninsula Health recognises that there is an important and valuable role for the incoming intern to shadow the outgoing intern including because, as Dr Braun stated, the “the day-to-day work that the intern does is perhaps best explained by another intern”.

151    In further deposing to the source of “the expectation” concerning the preparation of a patient list, Dr Bolton stated that, as part of the handover conducted on the intern shadowing day, the outgoing interns informed her that it was the interns’ role to have the patient list “up-to-date” and that the intern was expected to turn up on time to the handover meeting with an “up-to-date list”. She indicated that, in relation to that task, she was also told where information was to be found and how to rectify the list if there were any errors, including that patients whose bed cards needed to be altered should not be included so as to ensure an up-to-date and accurate list of patients. Dr Bolton identified Dr Richard Pham and Dr Dana Chemali as two interns who had worked in the General Medicine unit for the previous 12 weeks and who were the main sources of the information conveyed to her on the shadowing day as to what was expected by Peninsula Health in relation to the preparation of a patient list.

152    The evidence given by Dr Bolton as to Peninsula Health’s expectation was the subject of an objection but was admitted on the basis that it was evidence of what Dr Bolton was told and an exception to the hearsay rule under s 60 of the Evidence Act 1995 (Cth). It seems to me, however, that the applicants now seek to rely upon it for the wider purpose of establishing the existence of a fact — namely, Peninsula Health’s expectation in relation to the preparation of the patient list. That matter is a fact in issue for reasons I will explain. I consider the evidence can be used for that wider purpose. It is evidence of a prior representation made by Peninsula Health adverse to Peninsula Health’s interests in the outcome of the proceeding and thus an exception to the hearsay rule by reason of s 81 of the Evidence Act. I consider the prior representation made by the outgoing interns was made by Peninsula Health because, consistently with the evidence of both Dr Braun and Dr Nye, those interns were delegated the function of communicating Peninsula Health’s expectation. In any event, no order under s 136 of the Evidence Act limiting the use of the evidence in question was made, and Peninsula Health has taken no objection to the use of the evidence for the purpose the applicants now seek to employ it.

153    Peninsula Health did, however, contend that I should infer by reason of the applicants’ failure to call Dr Pham and Dr Chemali, and pursuant to the principles in Jones v Dunkel (1959) 101 CLR 298, that the evidence of Dr Pham and Dr Chemali would not have assisted the applicants. However, it was not necessary for the applicants to corroborate the evidence of Dr Bolton by calling Dr Pham and Dr Chemali and, in any event, there is no warrant for drawing a Jones v Dunkel inference because no basis was given as to why such an inference should be drawn. As Flick and Reeves JJ said in Fair Work Ombudsman v Hu (2019) 289 IR 240 at [54]:

If recourse is had to Jones v Dunkel, it is accepted that the statements in that case “give no support to the proposition that the failure to call a witness may itself provide the basis of an adverse inference. An inference must be founded in evidence”: Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100 at 124 per Wilcox J. Similarly, in Marku v Minister for Justice (2015) 237 FCR 580 at [68] Kenny J observed, in part, that “[w]hile the principle may operate to make evidence or inferences that may be drawn from admissible evidence more probable, the principle does not permit a failure to call a witness … to fill gaps in the evidence or transform conjecture into inference”. A failure to call a witness, it is thus accepted, cannot “fill gaps in the evidence, or convert conjecture and suspicion into inference”: Legal Practitioner v Council of the Law Society (ACT) [2015] ACTCA 20 at [56] per Murrell CJ, Burns and Perry JJ (Council of the Law Society (ACT)).

154    Peninsula Health relied on evidence given by Dr Nye to dispute Dr Bolton’s evidence as to what was required of an intern in relation to the task of preparing the patient list. Dr Nye gave evidence that the only task that an intern, such as Dr Bolton, was required to do prior to the 8 am handover meeting was to physically print the patient list. Dr Nye also deposed that she would have told the incoming interns during the orientation session she conducted during orientation week that they needed to print the patient list for the handover meeting. However, she recalled saying no more about it than that, save that, in the context of speaking against the cutting and pasting of medical notes, she would have spoken against the pre-population of ward round notes in advance of ward rounds. Dr Bolton attended the session conducted by Dr Nye. She agreed that Dr Nye spoke about what an intern did to some degree, but did not recall Dr Nye referring to ward round preparation involving one task only.

155    Dr Nye’s evidence confirmed that Peninsula Health had an expectation that the intern who was rostered to commence at 8 am was tasked with preparing a patient list for the handover meeting. Her evidence, however, disputed the evidence given by Dr Bolton and other doctors, including Dr Brickle, Dr van Berkel and Dr Curtin, as to what that task entailed and how much time was required to perform that task. This was a task that Dr Nye had never actually performed herself. She was nevertheless of the view that it would only take a few minutes, although she acknowledged that it could take longer if there was a technical problem with the printer.

156    Dr Bolton’s evidence was that the preparation of the list generally involved a number of functions beyond the physical printing of the list, directed to producing an up-to-date and correct list of the patients under the charge of her team. If a patient was missed and not included on the list she produced, she was asked to explain why by her supervisors at the handover meeting. She deposed that, on arrival at the hospital, she would pick up her team’s telephone and then attend the junior medical staff office. She would there log into the computer and check the patient list on the electronic medical record called “PowerChart” and would update the list if required. Usually, updating the patient list would require a phone call to the ward in order to arrange for the patient’s bed card to be changed so the bed card was listed under the appropriate unit. Her evidence was to the effect that she would check the list to ensure it was accurate and update the list if required. She would then use a separate program, what she called the “online reporting programme” via the Peninsula Health intranet, to auto-generate a list of the patients on that ward. Five copies of the list would then be printed and taken to the handover office which was located about a minute’s walk away. She further deposed that, although the tasks she performed were identical each day, the time required to perform them varied based on the number of patients on the ward. Dr Bolton gave evidence that, on average, her team was responsible for between 15 to 25 patients at any one time and the number of overnight admissions could vary from none to around 10. However, she would generally have a good idea the night before how many new admissions were expected the next day. If it was quieter and new admissions were expected, the tasks would usually take longer. Less time would be required if the ward was full and the patients were known to staff, including because Dr Bolton would not have to request bed cards to be changed. On occasions, and only when she had time, she would pre-populate the patient list before ward rounds. Dr Bolton estimated that the longest time it took her to prepare the patient list was half an hour and that the shortest time was around 20 minutes. In answer to a question seemingly directed to the physical printing task alone, she indicated that the time taken to perform the tasks required of her was very significantly affected by equipment failure and lack of ready access to computers which were shared with other interns. Dr Bolton deposed that all of that work was done prior to 8 am when the handover meeting commenced.

157    Dr Bolton also stated that in the five weeks during her rotation when she completed ward round preparation, she saw interns from the other four teams in the General Medicine unit completing the preparation of patient lists at the same time as herself and in the same office. She also saw residents from the speciality medical teams that shared those offices with the interns completing that work prior to 8 am.

158    Dr Brickle, who was an intern in the General Medicine unit at the same time as Dr Bolton, but on a different team, also gave evidence about ward round preparation. She deposed that at the start of her General Medicine rotation, as part of her orientation, she was given what she described as the “intern ROVER handbook”. The document in question was tendered and is headed “Peninsula Health – ROVER Rolling Handover Booklet for Interns”.

159    “Rovers” is the colloquial name given to rolling handover documents which identify the typical clinical practices and processes of the relevant unit, and how daily work is arranged. Rovers for interns are prepared by interns, given to interns at orientation and updated from time to time, including when an intern leaves a rotation so incoming interns know how the relevant unit operates. Dr van Berkel gave unchallenged evidence that, at the end of her rotation, she was asked by staff in the MWU to update the intern Rover. Rovers are also described in the MWU “Standard Operating Procedure Manual”, which contained “the detailed information required by members of the MWU to systematically execute all required tasks and processes”, as follows:

14.6 ROVER

The ROVER is a rolling handover document that assists JMO [junior medical officers] orientation informally. It is used throughout rotations for JMO’s to communicate useful information and advice.

•    At the end of each term the ROVER documents should be reviewed and updated by the interns that have recently completed the rotation. Rover documents can be found at [on the Hospital system, specifically, the M Drive].

160    Under a heading “[a] usual day on Gen Med”, the Rover provided to Dr Brickle relevantly said this:

•    Meet in Department of Medicine around 0730 - 0745 to organise your list and print copies for the team. Check the list of patients in your home ward as often patients will be put under the wrong bed card!

•    Handover meeting at 0800 in Emergency Control Room, learn about your new patients for the day

161    Dr Bolton gave evidence that she received the Rover “some time into my first [General Medicine] rotation” but could not recall exactly when it was first provided and “did not read [it] in its entirety”. Nonetheless, Dr Bolton stated that the description in the two dot points above was an accurate description of the beginning of her day in the General Medicine unit. She went on to say that the description of other tasks in the Rover under the heading “[a] usual day on Gen Med” accurately reflected her experience.

162    Dr Brickle also confirmed that the description in the first dot point above accorded with her experience of working in the General Medicine unit. She said that she commenced work each morning between 7.30 am and 7.45 am to organise the list of patients that were assigned to her team. She deposed that, to prepare the patient list, she would come into the office and log onto the computer system and then load the specific program that generates the patient lists. She had to format the list into a particular layout for printing and then would print the list in a particular style. Once the list was printed, she would then need to go through the list making sure that all of the patients were under the correct bed card. If there were patients under an incorrect bed card, she would take action to get that changed by the ward clerk. She said that, more importantly, she would make sure that those patients (with an incorrect bed card) were handed over to the team that was looking after the patient so that they were aware that there was a patient missing from their list. She further stated that the program that generates the patient list is not very user friendly and that there were five General Medicine teams trying to print lists off potentially three computers at the same time and that, consequentially, sitting at the computer checking the list prior to it being printed was not efficient. She deposed that if a patient was on an incorrect bed card and not assigned to her team she would update the patient list by crossing through that patient’s name. She would then find the team that was looking after that patient and repeat the patient’s name, their identification number, what bed they were in on that ward and then handwrite that on the list. She deposed that generating the patient list and making sure it was correct could take anywhere between five and 20 minutes. This depended on how many corrections were needed, how many people were accessing the computers and the printers at the same time and whether the printers in the office were actually working.

163    Dr Brickle further deposed that when she was carrying out that work in the junior medical staff office, she saw Dr Bolton there. Dr Bolton was already in the office before she arrived and Dr Bolton was generating the patient list. Dr Brickle’s team (General Medicine A) typically had between six and 10 patients whereas Dr Bolton’s team (General Medicine B team), as noted above, could have anywhere between 15 and 25 patients. Dr Brickle stated that the more patients that a team is responsible for, the longer it would take to prepare the patient list. That is because with more patients there is a greater chance that there would be errors on the patient list that needed to be checked. The functional printing of the list could also become more difficult because it needed to be formatted in a way where the most number of patients as possible could be displayed on one piece of paper.

164    Dr van Berkel was an intern in the General Medicine unit in 2018. When shown the Rover shown to Dr Brickle, Dr van Berkel said that she had been provided with an earlier version of that document, stating that the Rover acted as a rolling handover document which was updated, including by her, in order to ensure that it was as up to date as possible for the incoming interns. She had originally been provided with a Rover by the outgoing interns.

165    Dr van Berkel also gave evidence about the task of preparing a patient list whilst an intern in the General Medicine unit. Her evidence corroborated the evidence given by Dr Bolton and Dr Brickle to the effect that an updated and accurate patient list was required to be prepared by interns for the handover meeting. Dr van Berkel had also been informed during her orientation by the outgoing interns about preparing for ward rounds. The outgoing interns showed her where she could find the patient list that was to be generated prior to ward rounds and prior to the morning handover, how to update the list and where to find the information to update it with. She then described what she did in relation to preparing the patient list, stating that she sat down at the computer available in the office and updated the list for the patients for that day. In doing so, she ensured that all of the patients that were under the care of her team were populated on the list and updated the list with any investigations that had been returned overnight. Her evidence was that she would typically arrive at the hospital between about 7.32 am and 7.45 am each morning. The earliest time she could recall coming in to work to prepare the list was 7.25 am. Her arrival time depended on how many patients were on her team’s ward, which she knew the night before based on how many patients had been discharged and how many admissions were expected. These were good indicators of how much work was involved to ensure the patient list was up to date. Once the list was completed, she would share a copy of the patient list with each member of her team and then attend the 8 am handover meeting. All of that occurred on days when she was rostered to start at 8 am.

166    There were typically 15 patients assigned to her team. When she was in the General Medicine office each morning updating the patient list, there were other interns in the office at the same time doing precisely the same thing. In her second General Medicine rotation, it would take her slightly more time to prepare the patient list because she was in a busier unit which had more patients.

167    Dr Curtin was never employed as an intern in the General Medicine unit by Peninsula Health but was, for a short period, a registrar supervising Dr Bolton whilst Dr Bolton was employed as an intern in the unit. Peninsula Health sought to rely on one aspect of the evidence given by Dr Curtin given in the following exchange:

Ms Tiplady: And that task of printing the patient list was the only task that an intern in general medicine had to prepare before the handover meeting at 8 o’clock?

Dr Curtin: Technically, yes.

168    I do not accept, however, that Dr Curtin was here intending to say that all that was required of an intern in the preparation of a patient list was the physical printing of a list. Dr Curtin said that Dr Bolton’s responsibilities included preparing the ward round notes for the day’s ward round and/or preparing the list for the upcoming ward round. He stated that he wanted the ward round notes to be prepared prior to the ward round starting so that all of the communication between the consultant and the patient could be adequately documented. He confirmed that it was Dr Bolton’s responsibility to prepare the patient list and stated that when he received the list from Dr Bolton in the morning it was always up to date. It was clear from the evidence Dr Curtin gave about the occasions where he himself prepared the patient list because an intern had not done so, that the process, as he understood it, consisted of updating the information on the previous day’s list by transcribing information onto an updated list and then printing the list. He said that, in an “ideal world”, the task was straightforward and could be done in approximately five minutes but that occurrence was very rare.

169    I prefer the evidence given by Dr Bolton, Dr Brickle, Dr van Berkel and Dr Curtin, and the corroboration of their evidence given by the Rover provided to Dr Brickle, over the evidence of Dr Nye in relation to the tasks that an intern needs to perform in order to prepare a patient list. Unlike these other doctors, Dr Nye had no personal involvement in the preparation of a patient list in the General Medicine unit and her evidence did not provide a basis for thinking that she had a close association with, and thus a capacity to properly understand, the detail of a function which was well removed from her primary role. As Dr Braun stated, the day-to-day work of an intern is best explained by an intern.

170    Accordingly, I am satisfied that the expectation of Peninsula Health, as communicated to interns in the General Medicine unit over the relevant period, was that the intern rostered to commence at 8 am would, immediately prior to 8 am and in whatever time it was reasonably necessary to perform the task, prepare an accurate and up-to-date list of the patients under the care of the intern’s team and print copies thereof for distribution to other members of the intern’s team at, or prior to, the handover meeting scheduled for 8 am that day.

171    Without taking into account the potentially countervailing circumstances I deal with below, I am satisfied that, by reason of the expectation set by Peninsula Health as found above, Peninsula Health conveyed to Dr Bolton its requirement that she perform work in accordance with that expectation on every occasion that she was rostered to commence at 8 am. My provisional satisfaction that such an implicit direction was given by Peninsula Health to Dr Bolton does not depend upon the outgoing interns having authority to give directions to Dr Bolton, and the contentions made by Peninsula Health on that issue need not be considered. The making of the direction is simply implied from the expectation which I have found to have existed. In so far as outgoing interns communicated that expectation, they did so with Peninsula Health’s authority as the evidence of Dr Nye and Dr Braun referred to at [150] above demonstrates.

172    It is not in contest that preparing a patient list was part of Dr Bolton’s duties and responsibilities. I also accept that it was necessary for Dr Bolton to have completed the tasks required to prepare an up-to-date patient list before 8 am. Whilst those two circumstances were independently relied upon by the applicants, they are each part and parcel of the expectation which was set by Peninsula Health. They do not, independently of that expectation, add very much to the significance which should be given to those circumstances that favour a finding that implied authorisation was given by Peninsula Health.

173    The applicants contended, and I accept, that the fact that Peninsula Health knew that Dr Bolton was performing the work and took no steps to prevent it constitutes a tacit acceptance and is thus confirmatory of the fact that authorisation was impliedly given. For that purpose, both constructive and actual knowledge was relied upon.

174    An instance of “constructive knowledge” as developed in equity is “knowledge of the circumstances which would indicate the facts to an honest and reasonable person”: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [174] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). I accept that both actual as well as constructive knowledge can support an inference of a tacit acceptance. I am satisfied that Peninsula Health had constructive knowledge that Dr Bolton was carrying out all the tasks necessary to produce an up-to-date patient list prior to 8 am on each occasion she did so. Peninsula Health must be taken to know that, by expecting Dr Bolton to produce to her supervisor an up-to-date patient list by 8 am, the work necessary to produce the patient list had to be done before 8 am. Therefore, where Dr Bolton’s rostered start time was 8 am and she produced a list to her supervisor by that time, Peninsula Health must be taken to know that Dr Bolton performed the work necessary to produce the patient list outside of her rostered hours or, in other words, in unrostered overtime hours. To exemplify this point, Dr Curtin gave evidence that he knew Dr Bolton had completed ward round preparation because when he received the patient list in the morning at 8 am, “it was always up to date”. That Dr Curtin would have only observed Dr Bolton for a three week period does not diminish the probative value of his evidence, notwithstanding Peninsula Health’s submission to the contrary. The evidence suffices to establish that Peninsula Health had constructive knowledge that the pattern of work performed by Dr Bolton included the performance of ward round preparation tasks prior to the commencement of any 8 am shift.

175    Dr Bolton’s evidence was that no one directed her not to carry out the ward round preparation tasks and, therefore, I am satisfied that Peninsula Health did not prevent Dr Bolton from performing that work. The constructive knowledge of Peninsula Health and its failure to disapprove is, in the absence of countervailing factors, supportive of approval and thus authorisation.

176    I should add that if actual knowledge is required to assist in establishing an implied authorisation, Dr Bolton gave evidence that she was observed by registrars approximately once per week completing ward round preparation prior to 8 am in the junior medical staff office in the General Medicine unit.

177    I turn then to consider any countervailing circumstances. As set out above at [125], Peninsula Health relied upon five matters about what it wanted or expected from junior doctors with respect to overtime, such as that Peninsula Health “wanted junior doctors to maintain a work life balance”. Each of the factors seem to be relied upon as a matter of subjective intent, despite senior counsel for Peninsula Health agreeing that the “presumed intent” of Peninsula Health is to be objectively discerned. The proper question is not what Peninsula Health subjectively intended but what a reasonable person would objectively understand to be Peninsula Health’s intent. That understanding would not only be based upon Peninsula Health’s pronouncements of its intent but also upon Peninsula Health’s conduct and the extent to which its conduct is consistent with its pronounced intent. The evidence relied upon tends only to establish either subjective intent or the communication of that intent. It does not fully address the facts and circumstances that would reveal how that intent would have been understood by a reasonable person in light of any conduct of Peninsula Health inconsistent with the pronounced intent.

178    In any event, the five expressions of Peninsula Health’s intent were not relied upon to deny the possibility that an authorisation may be implied but, instead, it was contended that what flowed from them was that:

(a)    Peninsula Health, at best, has impliedly authorised Dr Bolton to perform her work tasks in the least period of time necessary for the performance of these tasks.

(b)    That implied authorisation is only to [that] extent and no further. That is, it does not authorise Dr Bolton to spend whatever time she considers appropriate [or] necessary to perform the task.

(c)    Further, it does not authorise Dr Bolton to spend time on tasks that go beyond the minimum required of that function.

179    I readily accept that a time-based limitation upon the extent of an implied authorisation is inherent in the circumstances that I am here addressing. As discussed above, any implied authorisation given in relation to the preparation of a patient list would be limited by the stipulation that the tasks required to be performed by Dr Bolton in overtime hours be performed within the time reasonably necessary to perform those tasks. I also presume that Peninsula Health’s formulation of implied authorisation is qualified by reasonableness because, in its submission on quantum (made in the alternative), Peninsula Health says that Dr Bolton should only be paid for the reasonable time necessary for the performance of the tasks. If it is not so qualified, it should be. I otherwise have no difficulty accepting the limitation contended for by Peninsula Health couched in the terms that I have. As the time-based, reasonableness limitation is already encapsulated within the implied authorisation established by the conduct and other circumstances the applicants rely on, these five matters dealing with Peninsula Health’s presumed intent do not negate or diminish the inference that I would otherwise draw.

180    I turn then to the overtime policies relied upon by Peninsula Health to defeat any inference that it had authorised Dr Bolton working overtime in the First General Medicine rotation, which had not been authorised in accordance with one or other of the policies.

181    I have already extensively dealt with the Policy and the Guideline and concluded that, in circumstances where the Policy and Guideline were largely unknown and never applied, including in the Department of Medicine, and where overtime was nevertheless worked, Peninsula Health’s intent could not have been objectively understood in the Department of Medicine as being that it would only authorise the working of overtime where its authorisation was given in accordance with the Policy or the Guideline. The existence of those policies do not therefore negate or diminish an inference that may be available from other circumstances that Peninsula Health impliedly authorised the ward round preparation overtime that Dr Bolton claims she worked in the Department of Medicine during her First General Medicine rotation.

182    The non-application of the Policy and the Guideline is also confirmed by the fact that the Department of Medicine had its own, department-specific process for authorising unrostered overtime. This process ostensibly applied to Dr Bolton during her First and Second General Medicine rotations and Cardiology rotation. The policy is best encapsulated in a handbook headed “Department of Medicine – Essential Information”:

All unrostered overtime MUST be pre-approved by telephone, at the time or as soon as practical afterwards, by the Department of Medicine Clinical Director, contact via switchboard. Unapproved unrostered overtime will not be paid. If there is a claim for unrostered overtime, a separate form will need to be filled in detailing the reasons if your timesheet has already been submitted.

183    This handbook was provided to Dr Bolton (and other interns) at an orientation session where Dr Nye explained the policy.

184    There is no ambiguity as to what the policy conveyed. The policy relevantly required that all unrostered overtime had to be approved by the Department’s Clinical Director (whom, at all relevant times, was Dr Braun). The policy clearly conveyed Peninsula Health’s intent not to pay for unrostered overtime which had not been approved by Dr Braun. The policy does not expressly say that the only way that Peninsula Health would give its authority for the working of unrostered overtime in the Department of Medicine is when authority is given by the Department’s Clinical Director, but that intent is sufficiently implicit from the express terms of the policy.

185    The evidence demonstrated that the Department of Medicine Overtime Policy was well known in that Department. Each of Drs Bolton, van Berkel, Toogood and Curtin were aware of the policy. Dr Nye’s evidence confirmed that the policy was explained to Doctors in Training during their orientation. Hence, the policy was clear and known to clinical staff in the Department of Medicine.

186    However, there was a significant amount of evidence regarding the extent to which the policy was not applied, in the sense that unrostered overtime was worked and not approved according to the policy, but nonetheless known to Peninsula Health.

187    Dr Bolton gave evidence that she often worked unrostered overtime during her rotations in the Department of Medicine. The detail of the work performed by her in excess of her rostered hours is set out above in relation to ward round preparation overtime and is later discussed in relation to the other categories of overtime work performed in the Department. Dr Bolton explained that she did not seek authorisation for that overtime pursuant to the policy because she was “personally told during the handover from the outgoing interns that Dr Braun had a reputation for being obstructive during these phone calls and often hard to get hold of”. She further deposed that she understood “that that phone call [to obtain approval from Dr Braun] was not a simple phone call to make, in that you would be questioned as to why you needed the overtime, why these tasks were necessary, why couldn’t they be handed over, why couldn’t they be done in your rostered hours, and why couldn’t you just wait to do it the next day” which was both time consuming, sometimes taking even longer than the amount of overtime that was sought to be claimed, and undermined junior doctors’ own clinical judgment. She also gave evidence that she felt that calling Dr Braun may have made her look like “a lazy and inefficient doctor”.

188    Dr Bolton’s evidence, which was based not on her own experience but on what she had been told by other employees, accorded with the experiences of a number of other witnesses.

189     Dr van Berkel and Dr Toogood both made claims, and were paid, for unrostered overtime in the Department of Medicine pursuant to the policy. However, both witness recounted the difficulty of this process and how it deterred them from claiming pursuant to the process again because, in part, Dr Braun and other senior doctors gave the impression that those who claimed overtime were not “efficient”.

190    Dr Toogood gave evidence that he sometimes received “pushback” from Dr Braun for claiming overtime for an urgent procedure out of hours and “was a bit taken aback [during these calls] that … my clinical decision making to do an urgent procedure out of hours was being judged”. This made him anxious to claim unrostered overtime in the future by calling Dr Braun.

191    Further, Dr Curtin gave evidence that, in or around 2015 or 2016, he had been consistently working until 7 pm when his rostered finish time was 4.30 pm or 5 pm. Although he had not been seeking approval for that overtime by calling Dr Braun, he had been recording his actual working hours on his timesheets. On one occasion, he was told by Ms Debra Hobbs, one of Dr Braun’s personal assistants, that the overtime hours he recorded on his timesheet would not be paid and he was ordered to see Dr Braun in his office, which he did. Dr Braun then told Dr Curtin that he needed to seek prospective approval for any unrostered overtime by calling him personally and that the payment of unrostered overtime to junior staff “couldn’t go on”. Dr Curtin replied to Dr Braun that seeking authorisation by calling him is a process “that’s not going to really work” and “[i]t’s just going to stop people from putting in the claims because the work happens”. Dr Curtin said he then left the meeting and never sought authorisation or payment for any unrostered overtime again.

192    In cross-examination, Dr Braun agreed that he had a conversation with Dr Curtin about overtime but could not recall any specifics and did not confirm or deny any of Dr Curtin’s specific recollections of the conversation. However, Dr Braun conceded that, based off this conversation, he knew that Dr Curtin was working unrostered overtime but not claiming for it. Dr Braun acknowledged that he did not follow up with Dr Curtin after this meeting to see if he was still working unrostered overtime because “I wasn’t aware that there was a widespread issue or an issue with Justin Curtin that … I needed to follow up with”.

193    In short, Dr Toogood, Dr van Berkel and Dr Curtin all gave evidence that they frequently worked unrostered overtime but rarely, if ever, sought authorisation or payment for those hours, including because they were deterred from making a claim after their experiences using the policy. Dr Bolton and Dr van Berkel also gave evidence that they observed other junior doctors in the Department of Medicine performing tasks outside of their rostered hours, such as preparing patient lists and medical records. The applicants submitted, and I would accept, that this evidence demonstrates that Doctors in Training at all levels, including interns, experienced the difficulty of the overtime claims process in the Department of Medicine.

194    The evidence ultimately demonstrates that unrostered overtime was regularly and extensively worked by Doctors in the Department of Medicine without authorisation having been given under the Department of Medicine Overtime Policy. The extent of the working of such unrostered overtime, as well as much of the specific evidence of knowledge to which I have referred, also establishes that Peninsula Health, at least constructively, knew that junior doctors were working such overtime. Whether or not Peninsula Health had actual knowledge, the evidence permits an inference that it was generally understood by medical staff in the Department of Medicine that significant work was being performed by Doctors in excess of their rostered hours and without authority given under the Department’s policy, in circumstances where I would infer that it was understood that Peninsula Health must have known that substantial overtime of that kind was regularly worked.

195    This conclusion is reinforced by the general evidence regarding the amount of unpaid, unrostered overtime being worked by junior doctors across Peninsula Health. The evidence establishes that senior management at Peninsula Health knew that it was likely that junior doctors were working high levels of unrostered overtime but were not claiming for these hours. Professor Rait gave evidence that he raised a concern with Ms Topp, the Chief Executive Officer of Peninsula Health, during a meeting in August 2019 that junior doctors were working high levels of unrostered overtime. Ms Topp and Dr Nye were subsequently sent a copy of the “Peninsula Health AMA Victoria Health Check 2019 Report”, which recorded that 59% of junior doctor survey respondents reported that they were paid for their unrostered overtime 50% of the time or less. Dr Braun said he may have received the Report but could not recall. The Report also recorded that 44% of survey respondents said a “highly obstructive or difficult claiming process” was one of the reasons they did not claim, and were not paid, for the unrostered overtime they worked and 38% nominated “hospital/workplace cultural expectations”.

196    Ms Topp was not called as a witness and no evidence was adduced regarding how Peninsula Health, as an organisation as a whole, responded to the receipt of this information from Professor Rait, including whether it took any steps to follow up with junior doctors about the working of unrostered overtime. Dr Nye’s evidence was that she did not take any action in response to the Report because, in part, she said it was a voluntary survey with a small sample size and therefore was a “fairly skewed representation of junior medical staff views”.

197    Dr Terrill also gave evidence that unrostered overtime of interns and residents in the Plastics unit had been an issue between 2016 and 2019. This issue was discussed in “Safe Efficient Rostering – Review of current practice for JMS: Plastics”, a presentation given by Dr Evans to other senior medical staff in the Plastics unit, which primarily focussed on the problem of the financial cost of unrostered overtime performed by junior doctors (that was evidently claimed and paid).

198    As discussed below, the evidence in relation to the completion of discharge paperwork demonstrated that unrostered overtime performed for that purpose was “a fairly common practice” known to Dr Curtin and appreciated, at least as an occasional occurrence, by Dr Nye and Dr Braun.

199    Further, Mr Watts, Dr Toogood, Dr Curtin and Dr Marshall gave evidence establishing that Peninsula Health had knowledge of junior doctors’ reluctance to claim payment for unrostered overtime. For example, there was evidence that Dr William (Bill) Slater, the Deputy Director of the Department of Medicine, and Ms Hobbs, Dr Braun’s personal assistant who was responsible for rosters in the Department, had raised concerns about the Department of Medicine Overtime Policy with Dr Nye and Dr Braun (albeit after Dr Bolton’s First General Medicine rotation). Dr Slater proposed in an email to Dr Braun and Dr Nye in September 2019 to “scrap” the policy but Dr Braun determined not to take any further action. Further, in an email chain dated 18 August 2020 between Dr Braun, Ms Hobbs and Ms Hynes regarding a particular registrar’s request for her overtime to be approved, Ms Hobbs told Dr Braun that “I told [the registrar] she needed to call you for approval but she said she wouldn’t bother. The [junior medical staff] are still very reluctant to call you for approval for overtime maybe you could add it into your meetings with them?”. Dr Braun replied “[s]ure. There seems to be 2 camps – I frequently get calls from the interns but not from the [registrars]. What time did she speak with you? Lyndal – please add that time to her timesheet as O/T”. Ms Hobbs responded to Dr Braun as follows:

I just saw her as I was coming in. it was around 0910 and she told [me] she had been at a MET call and I said to put [it] on her timesheet. She said she could not be bothered calling you as too exhausted and did not want to get Lyndal in trouble for not having it approved. We need to stop doing this. You need to look at this requirement again as I feel it is totally unfair at this time. They are all working longer hours than claiming as they can’t be bothered calling you. (Emphasis added.)

200    In cross-examination, Dr Braun said that, partly in response to Ms Hobbs’ concerns, he would have raised the issue of overtime in his daily meetings with junior doctors in August and September 2020. However, he did not recall whether he specifically raised the issue of junior doctors’ reluctance to claim overtime pursuant to the policy. Dr Braun maintained that, notwithstanding the concerns of Dr Slater and Ms Hobbs, the policy was the “best approach” to manage workloads in the Department.

201    I would infer from the evidence referred to above, as well as the evidence recounted below about unrostered overtime being worked in the Department of Medicine, that unrostered overtime in the Department of Medicine was regularly worked but it was extensively not authorised in accordance with the Department of Medicine Overtime Policy. That fact was generally understood by medical staff in the Department of Medicine who would also have reasonably understood that that fact was known to Peninsula Health. Whether there was an objective understanding in the Department of Medicine that Peninsula Health only gave its authorisation for unrostered overtime in accordance with the policy is to be assessed in that context.

202    I would readily accept that the intent of Peninsula Health conveyed by the policy, as assessed in that context, would have been reasonably understood as being that Peninsula Health would not pay for any unrostered overtime work performed which had not been authorised by Dr Braun. However, the relevant understanding of Peninsula Health’s intent is not as to whether or not Peninsula Health intended to pay for the work — it is whether or not it would only request, require or approve the working of unrostered overtime if Dr Braun made or gave such a request, requirement or approval. The context in question is that the Department of Medicine Overtime Policy was understood, and known by Peninsula Health, to be only infrequently applied despite unrostered overtime being regularly worked. In that context, it would not have been understood that the bulk of the unrostered overtime worked without reference to Dr Braun was always worked in the absence of any request, requirement or approval given by Peninsula Health. As such, the context negates an understanding that Peninsula Health’s intent was to only give its authorisation for the working of unrostered overtime through junior doctors calling Dr Braun to personally approve their overtime. There is therefore room for an inference to be drawn that, on a particular occasion or occasions, Peninsula Health gave its authorisation by some means other than through Dr Braun, including by an implication conveyed by conduct and other circumstances.

203    In the case of the ward round preparation work performed by Dr Bolton, that was work of a kind commonly being performed in excess of rostered hours and without reference to any authorisation by Dr Braun. There was, as discussed above, an expectation conveyed to Dr Bolton that Peninsula Health expected her to perform the work during hours in excess of her rostered hours. There was also a tacit acceptance of the work being performed outside of her rostered hours in circumstances where Peninsula Health either knew, or would have been understood to have known, that the work was performed. In those circumstances, and given the overall context discussed above in relation to how Peninsula Health’s intent was objectively understood, I would conclude that the objectively discerned understanding held by medical staff in the Department of Medicine about Peninsula Health’s intent was that Peninsula Health wanted the work performed but was generally reluctant to pay for it. In any event, by reason of the overall context and the particular circumstances just referred to, the existence of the Department of Medicine Overtime Policy does not negate the inference available from the conduct and circumstances relied upon by the applicants that, on each occasion ward round preparation work was performed by Dr Bolton, it was impliedly authorised by Peninsula Health.

204    For the reasons given above and subject to any further issues going to quantum, I consider that the ward round preparation overtime claimed to have been worked by Dr Bolton in her First General Medicine rotation was authorised by Peninsula Health and engaged the payment obligation in cl 36.2(a)(ii) of the 2018 Agreement.

Ward round overtime

205    The applicants contended, and Peninsula Health admits, that during the First General Medicine rotation, Dr Bolton’s duties and responsibilities when providing medical services included undertaking ward rounds. The tasks involved in undertaking ward rounds are uncontroversial and are summarised above at [145]. It is also uncontroversial that the ward round overtime here claimed is concerned with the alternating weeks of Dr Bolton’s rotating roster (discussed above at [146]). That was a five week period during the First General Medicine rotation in which it is alleged that, on each of the five days of work in week 2 of the alternating roster when Dr Bolton was rostered to commence at 8.30 am, she actually commenced work at about 8.10 am in order to be available for the commencement of ward rounds.

206    The applicants submitted that Peninsula Health implicitly directed Dr Bolton to be present at the commencement of ward rounds even where ward rounds commenced prior to her rostered 8.30 am shifts. To support the contention that Dr Bolton was directed to undertake ward rounds before the commencement of her rostered shift, the applicants rely principally on the following matters: (i) Dr Bolton and Dr Brickle’s evidence regarding when interns were expected to be present at ward rounds; (ii) Dr Curtin’s evidence that Dr Bolton never joined a ward round late; and (iii) Dr Braun and Dr Nye’s agreement in cross-examination that it was important that an intern not regularly arrive late to ward rounds.

207    It is uncontroversial that Dr Bolton was never expressly directed to attend ward rounds commencing before 8.30 am in the weeks that she commenced at 8.30 am. The outgoing interns who spoke to Dr Bolton on the shadowing day during orientation week did not explain how they had dealt with the alternating roster because they had no experience of it. The alternating roster was introduced in January 2019 during Dr Bolton’s First General Medicine rotation. The split commencement time for interns “was a new addition to the roster” which the outgoing interns had informed Dr Bolton they had not experienced. The alternating roster did not last very long and was abandoned by August 2019. However, the fact that an alternating roster had only just commenced during Dr Bolton’s first rotation seems to me to be of importance, including in assessing whether or not the evidence demonstrates that there was an expectation from Peninsula Health that the intern rostered to commence at 8.30 am would actually commence at, or about, 8.10 am to ensure that that intern would be available when the ward round started.

208    The evidence relied upon by the applicants about the importance of interns not arriving late and being available at the commencement of ward rounds was general and not sufficiently directed to establishing what, objectively assessed, Peninsula Health expected of interns in the context of the new way of working which was necessitated by the alternating roster. I accept that, although it was not common, a ward round could, and on occasions did, commence prior to 8.30 am and possibly as early as 8.10 am. In that respect, I prefer the evidence of Dr Curtin, Dr van Berkel, Dr Bolton and Dr Brickle to that of Dr Nye. That possibility meant that, unlike the position prior to the introduction of the alternating roster, the new roster made it possible that a ward round would need to commence without both interns in attendance.

209    If that was an inherent feature of the new alternating roster, I would infer, in the absence of contrary indications, that the likely (objectively assessed) position of Peninsula Health on the introduction of the new alternating roster would have been that it recognised, and was prepared to live with the fact, that occasionally one of the interns would not be available at the commencement of a ward round and for some short time thereafter.

210    That Peninsula Health had the contrary expectation and expected, and therefore impliedly required, all interns to be in attendance at the commencement of every ward round, was not demonstrated by the evidence.

211    Such an expectation may have been established if, for instance, the applicants had demonstrated that an intern’s presence at a ward round was indispensable or of such importance to the proper conduct of a ward round that it is unlikely that Peninsula Health would have been objectively perceived to truly intend that only one of the two interns on a team would be available at the commencement of ward rounds. Alternatively, evidence of a tacitly accepted practice of interns attending work prior to their rostered start time in order to be available at the commencement of ward rounds may have been sufficient to establish that expectation.

212    In support of its “necessity” contention, the applicants relied upon Dr Bolton’s evidence that the outgoing interns had suggested to her that joining a ward round which had already commenced would not be “cohesive to the functionality of the team” because of the split structure of the ward rounds. Furthermore, her evidence was that if she had arrived part way through a split ward round that commenced prior to 8.30 am (which she said she never had) half of the notes for that ward round “would have either been not done, or [Dr Bolton] would have had to have … caught up after the [ward] round by a verbal update from the registrar or the consultant”. She said that not having notes taken for a patient was “not optimal patient care” including because investigations and specialty consults may not have been ordered as a result. However, Dr Bolton acknowledged in cross-examination, as did Dr Brickle and Dr Curtin, that, in the absence of an intern, a registrar could take the notes.

213    The applicants also relied on Dr Bolton’s evidence as to the clinical importance of interns on ward rounds more generally, such as their role administering patient care where consultants or registrars were unavailable, meaning that they had to be properly informed about the patients in their care. I accept that interns had an important clinical role in patient care in the General Medicine unit and that ward round attendance was important in helping interns to stay abreast of a patient’s care plan. It also allowed interns to provide additional information to consultants and registrars during ward rounds if needed, given their day-to-day knowledge of the patients.

214    However, that acceptance is not sufficient to dislodge the inference that Peninsula Health did not expect interns rostered to commence at 8.30 am to commence early in order to be present for ward rounds on those uncommon occasions where rounds commenced earlier than 8.30 am. Rather, the circumstances would have more likely supported that Peninsula Health was prepared to live with some diminution in ward round efficiency caused by the short absence of an intern on ward rounds which may be experienced occasionally but not commonly.

215    I also reject that an implied authorisation can be established on the basis that Peninsula Health tacitly accepted the practice of interns commencing early in order to be present at ward rounds. During her First General Medicine rotation when Dr Bolton performed the work in question, the alternating roster was brand new and there was no history sufficiently capable of demonstrating either the practice of interns starting early in order to attend ward rounds or Peninsula Health’s tacit acceptance of this practice.

216    The applicants’ reliance on Dr Curtin’s evidence, that he did not recall Dr Bolton joining a ward round late, as demonstrating Peninsula Health’s actual knowledge that Dr Bolton was commencing work early in order to be in attendance at the start of ward rounds, is not sufficient to establish either the existence of a known practice or its tacit acceptance by Peninsula Health.

217    For those reasons, I am not persuaded that, from the facts and other relevant circumstances relied on by the applicants, an implied authorisation for Dr Bolton to perform ward round overtime was given by Peninsula Health. I have reached that view without it being necessary for me to take into account the policies and other circumstances relied upon by Peninsula Health as countervailing circumstances.

Medical records overtime

218    The third and final overtime claim made in respect of Dr Bolton’s First General Medicine rotation is a claim for what was called “medical records overtime”. Dr Bolton deposed that, on approximately three days per week during each of the 10 weeks of her First General Medicine rotation, she spent between 30 and 60 minutes completing medical records outside of her rostered hours.

219    It is useful to describe at the outset where the parties were in contest in relation to this claim. It was not in contest that completing medical records, including discharge summaries, in a timely manner was work required of Dr Bolton and actually performed by her. The nature and clinical importance of that work is not in contest. The key contest between the parties concerns whether or not, from conduct and other circumstances, Peninsula Health impliedly authorised Dr Bolton to perform her medical records duties and responsibilities during hours in excess of her rostered hours of work.

220    To my mind, that contest is best resolved by considering the objectively discerned understanding in the General Medicine unit as to Peninsula Health’s expectation of interns in relation to the timely performance of their medical records duties. Out of that expectation, an implication may arise that Peninsula Health required Dr Bolton to complete, at a time in excess of her rostered hours, so much of her medical records duties that she could not complete during her rostered hours. In doing so, I will take into account the circumstances going to necessity and knowledge which the applicants relied on, as well as those circumstances relied upon by Peninsula Health in support of its contention that implied authorisation was not given.

221    It is convenient to first set out, by way of background, some of the uncontested circumstances. The medical records duties required of Dr Bolton substantially, if not wholly, comprised the preparation of patient discharge summaries. A discharge summary acts as a record of a patient’s stay in hospital. It is described in the Peninsula Health Clinical Practice Guideline, discussed further below, as “[a] report that provides a summary of what occurred during a defined period of treatment/care/intervention. For hospital inpatients, this period is defined as an episode of care …. The summary must include a Principal Diagnosis, and where applicable, other diagnoses, investigations, treatment, discharge medications, ongoing care plan actions and therapy goals”. Dr Bolton’s unchallenged evidence was that the function of a discharge summary was to provide general practitioners and other specialists an understanding of the patient’s medical history and care in hospital. Discharge summaries at Peninsula Health were created using a patient’s electronic medical record within a system called Cerner Millennium which Doctors access by entering a username.

222    Peninsula Health accepted that Dr Bolton was directed to comply with the Clinical Practice Guideline on the completion of discharge summaries. In respect of discharge summaries, the Clinical Practice Guideline relevantly said this:

The purpose of this guideline is to provide guidance on the completion of an inpatient and emergency department discharge summary to ensure appropriate clinical handover to subsequent care providers … a discharge summary is a mandatory clinical requirement of Peninsula Health …

•    The objective is to have one single cohesive electronic discharge summary comprising all critical events during the patient’s admission, inclusive of relevant radiology and pathology results, medication changes, ongoing care requirements and therapy goals (if applicable). (refer to diagram below)

√    The intern/resident rostered on for the unit on the day the patient is discharged must complete the electronic discharge summary, regardless of whether that doctor personally attended the patient. Before sending, the intern/resident must ensure:

o    the clinical synopsis accurately describes the episode of care

o    the principal diagnosis is correct

o    the list of discharge medications is correct and complete.

√    The intern/resident is responsible for completing any outstanding electronic discharge summaries relating to their previous rotation. In the event that the intern/resident is no longer employed at Peninsula Health, the treating unit must make alternative arrangements for the outstanding electronic discharge summaries to be completed.

•    A copy of the discharge summary must be provided to the patient (or their representative) prior to their discharge.

•    A copy of the completed discharge summary must be sent to the nominated general practitioner, specialists involved in the patient’s care and/or relevant referring agent on discharge.

•    When the discharge summary is not available at time of discharge, it is the responsibility of the clinician to ensure the patient and nominated general practitioner or other referring agent is sent a copy within 48 hours or as per Department of Health and Human Services (DHHS) guidelines. (Emphasis in original.)

223    The Clinical Practice Guideline required the Department Head/Manager/Clinical Heads of Units to ensure that “[s]taff are fully aware of and compliant with the requirements of this guideline including meeting KPIs”. In a section headed “[e]valuation”, the guideline noted that a range of tools would be used to evaluate policy compliance and then set out the “two key performance indicators (KPIs) that measure compliance rates for [the] completion” of discharge summaries. Those KPIs were stated as:

•    90% (overall median of all clinical departments) of electronic (Clover) inpatient discharge summaries must be completed within 48 hours of discharge

•    80% (overall median of all clinical departments) of electronic (Clover) inpatient discharge summaries must be completed prior to discharge

224    Dr Bolton deposed that she was told about the 90% KPI during IT training in her first week of the First General Medicine rotation and said that the KPI was reinforced to her by staff in the MWU during her rotation via various email communications, examples of which were tendered. These emails documented how her team’s discharge summary completion rates were tracking against the 90% KPI in a table alongside other teams across Peninsula Health.

225    The clinical importance of discharge summaries, including the importance of those summaries being completed in a timely manner, was also the subject of evidence from a number of doctors. Each of Drs Bolton, Brickle, van Berkel, Curtin, Toogood, Braun, Nye and Carrillo agreed that the completion of accurate and timely medical records is a vital aspect of patient care. They also broadly agreed that the responsibility for completing medical records fell to interns and residents, although Dr Braun stated that there may be untypical scenarios where a registrar would complete discharge summaries.

226    Specifically, Dr van Berkel gave evidence that discharge summaries were clinically important for handover between the hospital and the community. Dr Curtin’s evidence was that the importance of a “timely and a concise discharge summary” was to ensure that the GP seeing the patient, potentially “within the week of leaving hospital”, understands why the patient was in hospital, “what tests were done, what the results of those tests were and what medications were changed”. Dr Braun’s evidence was that “discharge summaries are very important for patient care. Full stop”. Dr Nye agreed that a discharge summary is important, at least to ensure appropriate clinical handover to subsequent care providers.

227    As to her responsibility to complete discharge summaries, Dr Bolton’s evidence included that a nurse unit manager, Kim Heriot

verbally communicated to myself and my co-intern, Dr Leek, in my presence, if there were discharge summaries outstanding or patients were imminently being discharged that did not have one, that she wanted them completed, and she would either do that at the commencement of the ward round, before we had started, when we had arrived on the ward, or she would – on occasion, if it was later, she would interrupt the round to request one of us attend to those duties and leave the ward round and undertake those duties, and would remind us verbally of the percentages aimed for with the KPIs and that they were very important, and if we were falling behind she would remind us of that, as well, verbally.

228    All of that evidence, in conjunction with Peninsula Health’s acceptance that Dr Bolton was directed to comply with the Clinical Practice Guideline on the completion of discharge summaries, amply supports a finding that Peninsula Health both required and expected Dr Bolton to complete discharge summaries in a timely way so as to meet the requirement for her unit to have completed 80% of discharge summaries prior to patient discharge and 90% of discharge summaries within 48 hours of patient discharge. Additionally, and in accordance with the guideline, Dr Bolton was required to complete all discharge summaries for which she was responsible that were outstanding at the end of her rotation.

229    Peninsula Health contended that Dr Bolton had the option of not completing a discharge summary for a patient discharged during her rostered shift and instead could hand over incomplete discharge summaries to the incoming doctor on the night shift that followed her own. However, that contention cannot be sustained. First, the handing over of incomplete discharge summaries to doctors on a subsequent shift is inconsistent with the direction which Peninsula Health accepts was made of Dr Bolton by the Clinical Practice Guideline on the completion of discharge summaries. Furthermore, the evidence demonstrated that this was never a practical or appropriate option available to Dr Bolton.

230    Dr Bolton, Dr Brickle and Dr van Berkel all confirmed that they were not able to hand over incomplete discharge summaries to the incoming night cover doctors who were responsible for up to 60 patients overnight. Dr Bolton’s evidence was that it was “theoretically” possible to hand over incomplete discharge summaries to the incoming doctor on the next shift, however, there would be some “bottlenecking” because the incoming night cover doctor was responsible for “usually between six and eight teams’ worth of patients”. She described “initially” trying to hand over discharge summaries to the incoming doctors but that “in [her] experience” she would just receive the incomplete discharge summary back to complete the next morning, as the night doctor did not have time to complete it. Dr van Berkel’s evidence described a similar issue with trying to hand over incomplete discharge summaries. She gave evidence that “early on in the first rotation, in the first week” she attempted to hand over an incomplete discharge summary “to the evening covering resident by phone” who did not attend to the task and it was returned to Dr van Berkel the next morning “unfinished”.

231    Dr Bolton also deposed that it was not a clinically appropriate solution to hand over discharge summaries. In her view, it was not appropriate for a “clinician that’s not providing the primary care for [a] patient to complete the discharge summaries, for the reason of they do not know the patient as well. They have not been there for the entirety of their stay, and the potential for gaps in that discharge summary are greater”. Dr Bolton explained that this is because the doctors giving primary care do not “document absolutely everything that [they] should, all of the time” in the patient’s medical record and instead “some of it is held in [their] heads or on [their] own physical pieces of paper that [they] carry around”. Dr Curtin’s evidence supports this view. Dr Braun said in cross-examination that he “believe[s] that it is the people that are looking after the patient who are best able to manage the discharge summary rather than hand it over to someone who doesn’t know the patient”. Dr Curtin also gave evidence that it is preferable that discharge summaries be completed by the doctor who is familiar with the patient file, explaining that handing over discharge summaries to the night cover doctor:

[is] always something that, like many things, could be done, but it would never be – it would never be done unless the patient was, say, discharging within that after-hours timeframe, because in order to achieve what needed to be achieved for a thorough discharge summary, you needed to know the patient and if you didn’t know the patient, you needed to go back through the medical records to list these critical events, to list the medication changes and if a patient had been in hospital for more than a month, there’s – there’s upwards of 60 clinical notes in there that you would want to have an understanding of and it’s a pretty unfair expectation of someone who doesn’t know the patient to actually come up with a good discharge summary in a timely fashion and they would do it but it might take them an hour and a half.

232    Dr Nye, who, according to Dr Bolton, floated the option of handing over discharge summaries to incoming doctors, herself ultimately conceded that it would not be ideal or a “good choice” to hand over incomplete discharge summaries to the night cover doctors, including because of the large number of patients they are looking after across three wards.

233    I therefore do not accept that the requirement and expectation of Peninsula Health that Dr Bolton complete discharge summaries in a timely way consistent with the KPIs set for that task was, to any significant extent, ameliorated by the possibility of delegating that task to others.

234    My finding that the timely completion of discharge summaries in accordance with the KPIs set by Peninsula Health was required of Dr Bolton is, however, insufficient of itself to substantiate that Peninsula Health requested or required discharge summaries to be completed by Dr Bolton outside of her rostered hours. When an employer sets a task for an employee without expressly requesting that the task be performed outside of the employee’s rostered hours, unless the context suggests otherwise, the natural inference to be drawn would be that the employer required the task to be performed within the employee’s rostered hours. However, an inference that the employer is requesting or requiring the task to be completed at a time beyond the employee’s rostered hours may be available from the context provided by the relevant surrounding circumstances. That inference would more likely be available where the task is time sensitive and the time available during the employee’s rostered hours for completing the task is insufficient. To illustrate with a simple example: a manager who, at 4 pm, provides to an employee working a 9 am to 5 pm roster a task which is understood to require three hours of work to complete, in circumstances where the manager requires the finished product on their desk by 9 am the next morning, is clearly requesting or requiring the employee to work beyond the employee’s rostered hours in order to complete the task. That the employer is directing the employee to work outside of their rostered hours is clearly implied from their request, notwithstanding that the employee was not expressly directed to work beyond their rostered hours. It follows that, in order to sustain the implication that the applicants seek, the applicants need to demonstrate more than the time sensitive nature of the task required by Peninsula Health. To establish the expectation of Peninsula Health from which an authorisation may be implied, the applicants also need to demonstrate that Peninsula Health was aware, at least constructively, and was objectively understood to be aware, that there would likely be days when the rostered hours of interns and residents would not provide sufficient time for that work to be completed and therefore, given the time sensitive nature of the task, interns and residents would be required, on occasions, to perform that work beyond their rostered hours.

235    The evidence, which is outlined below, clearly established that Doctors in Training were, and were known by Peninsula Health to be, faced with attending to a wide range of clinical and administrative tasks as part of their ordinary duties. Many of those tasks, including those directly related to patient care, had to be performed urgently and in priority to the task of preparing discharge summaries and some discharge summaries were more urgent than others.

236    Dr Bolton deposed that there was insufficient time for her to complete all of the discharge summaries for which she was responsible within her rostered hours. In each of the 10 weeks of her First General Medicine rotation, Dr Bolton deposed that she performed somewhere between one and a half and three hours of work per week beyond her rostered hours completing discharge summaries. That work was performed at times when Dr Leek, the other intern in Dr Bolton’s unit, was also completing discharge summaries after her rostered hours. Dr Bolton deposed that they would share the outstanding discharge summaries between them by splitting the work as evenly as possible to ensure that they could both leave work and get home as soon as they could. She also deposed that she saw registrars completing medical records after the end of their rostered hours, although not necessarily discharge summaries. As outlined below at [282], she also completed discharge summaries outside of her rostered hours in her Second General Medicine rotation.

237    Dr van Berkel also gave evidence of completing discharge summaries while she was an intern during both her first and second General Medicine rotations. She deposed that, depending on the complexity of the patient, it could take anywhere from 30 minutes to two hours to complete a discharge summary. She was not always able to complete all of her discharge paperwork during her rostered hours in her first rotation. She said that, despite the clinical importance of discharge summaries for handover between the hospital and the community, discharge summaries were less time sensitive than some other tasks that would come up during the day and therefore discharge summaries often got pushed to the end of the day’s work. That meant that if her day was filled with more time critical tasks, then the only time that remained for the completion of discharge paperwork was outside of her rostered hours. The discharge paperwork that she had not been able to complete during her rostered hours was either completed after her rostered hours or it was left until the following day. She deposed that the time she spent completing discharge paperwork after her rostered hours varied from week to week but estimated that she worked beyond her rostered hours at least three times a week and that, on each such occasion, she spent at least 30 minutes on the task. While she was completing discharge paperwork outside of her rostered hours, she observed that her co-intern, Dr Tavassoli, was also completing discharge paperwork and they would discuss “the work that we were doing so we didn’t double up”. Additionally, she observed registrars doing that work outside of rostered hours and they observed her doing the same thing. In relation to a particular registrar, Dr Thinza Moe, Dr van Berkel said that Dr Moe was also staying back after hours to complete work and that they had discussed the discharge summaries they were completing so that they didn’t double up on the same work.

238    She gave similar evidence in relation to her second rotation in General Medicine, again deposing to completing discharge paperwork after hours and also observing that being done by her co-intern.

239    Dr Brickle also gave evidence that she completed discharge paperwork outside of her rostered hours during her time as an intern in the General Medicine unit. She said that it would typically take half an hour to complete discharge paperwork in relation to a single patient but that she was unable to complete all of the discharge paperwork that she was responsible for each day within her rostered hours. By way of example, she said that “if I had four patients being discharged in any day, that’s two hours of work that needs to be completed, but then there’s also the patients that are still unwell on the ward, and often their clinical needs mean that there’s lots of other jobs that need to be done, and that often is prioritised over completing the discharge paperwork”. She said that in relation to the discharge paperwork that she could not complete on a particular day, that would either be completed after her rostered hours or would be rolled over to the next day because discharge paperwork that was not completed prior to the patient being discharged still needed to be completed at some stage. If it was left to the next day, that would just lead to a “constant overflow or rolling on of discharge paperwork left to be done” because new patients needed to be discharged each day and, consequently, more discharge paperwork had to be completed. As such, although she sometimes would leave the outstanding discharge paperwork for the next day, “most often” she would do it outside of her rostered hours. She deposed that she completed discharge paperwork outside of her rostered hours two times a week and would stay on average for 30 minutes on each occasion.

240    Dr Brickle deposed that she saw Dr Bolton completing discharge summaries after rostered hours. When asked whether she received any instructions from anyone about not completing discharge paperwork after rostered hours, she said that “[w]e were encouraged by the registrars not to stay back for too long” but no direction was given to not do the work after hours. In those circumstances, the registrars would question her as to what she was doing and when she told them she was completing discharge summaries they would say something like “okay, yes, you need to finish those, but don’t spend too much time on it”. She identified a particular registrar who she said saw her performing the work, but added that a rotating set of registrars would have seen her performing the work in circumstances where she had explained that she was finishing discharge summaries.

241    Dr Curtin confirmed that it was part of Dr Bolton’s responsibilities to complete discharge paperwork as it was the responsibility of all the interns, with registrars having the responsibility of overseeing it. In response to whether, to his knowledge, Dr Bolton ever completed discharge paperwork outside of her rostered hours, Dr Curtin said that he was not aware “but it wouldn’t surprise me because it’s a fairly common practice”. In response to why he said it was a common practice, Dr Curtin said this:

Well, just with the time pressures that the interns have, it’s – and the expectation that these discharge summaries are completed at the time that the patient is leaving or, at best, within 24 hours of the patient leaving hospital, the – the interns would either be completing the discharge summaries on the day of discharge or be preparing the discharge summaries prior to the patient leaving, and it – it’s just – it’s an ongoing administrative action that needs to be tended to by the interns.

242    Dr Curtin did not ever tell Dr Bolton not to complete discharge paperwork outside of her rostered hours. When asked again whether he ever saw Dr Bolton completing discharge paperwork outside of her rostered hours, he said that he couldn’t answer that specifically in relation to Dr Bolton, but “I definitely – like all interns, I saw them there after hours because I was there after hours”.

243    Dr Nye accepted that there will be times when doctors may be required to complete discharge summaries outside of their rostered hours. She said that she knew that it happens. When asked whether it happened in the General Medicine unit, she said “it must do. I guess so”. She also accepted that the work that Dr Bolton said she had completed was, in fact, completed by her.

244    Dr Braun was also examined in relation to his understanding of the completion of discharge summaries. He said that interns and members of teams should aim to complete 100% of discharge summaries at discharge. He accepted that there will be days where hands-on clinical care of patients consumes the day such that paperwork might drop to the end of the list and that it might not be possible for discharge summaries to be completed during the day. He further accepted that it would not be ideal to defer discharge summaries to the next day because then they will pile up by the end of the week and that would be undesirable. He suggested that there was time set aside for the completion of discharge summaries by interns or residents in the mid-afternoon. He agreed, however, that that time was not “protected time” and that the doctor can be interrupted and called upon to carry out clinical tasks. Dr Braun accepted that he knew that there are days when all members of the team are unable to complete the discharge summaries that have been allocated to them and that one of the consequences of that was that, from time to time, members of the team completed discharge summaries after rostered hours.

245    By its submissions, Peninsula Health did not seek to directly challenge the reliability of the evidence to which I have just referred in relation to interns not having sufficient time during rostered hours to complete discharge paperwork and the commonality of interns, including Dr Bolton, working unrostered overtime for the purpose of completing that work. It also did not challenge the general pattern of the work of interns as described by that evidence, including that, several times a week, interns had insufficient time to complete discharge paperwork during their rostered hours and performed that work beyond those hours. Dr Braun and Dr Nye accepted it occurred from time to time and must be taken to have been aware of it.

246    Instead, Peninsula Health contended that where an intern, such as Dr Bolton, had failed to complete discharge summaries at the end of their shift, the intern had a number of “choices” available, as follows:

(i)    To leave work and continue working on the discharge summaries during another shift;

(ii)    To leave work and hand over the discharge summaries to the incoming doctor;

(iii)    To continue working on the discharge summaries outside of her rostered hours and to seek authorisation for that time as unrostered overtime (as Dr Van Berkel did on three occasions in 2018, each of which was paid);

(iv)    To continue working on the discharge summaries outside of her rostered hours and not seek authorisation for that time as unrostered overtime (including because the amount of time spent “was not worth claiming” in Dr Bolton’s view or because she did not want to “waste time” seeking approval); and

(v)    In the event of a backlog of incomplete discharge summaries, to speak to Dr Nye, or her registrar/consultant about her workload, in accordance with the direction issued to Dr Bolton [and other interns by Dr Nye during orientation sessions to speak to her, or their consultants/registrar if they were falling behind on work, which included completion of discharge summaries].

247    On that basis, Peninsula Health contended that it was not the case, and that there was no evidence to support the proposition, that Dr Bolton was required to stay beyond her rostered hours to complete discharge paperwork.

248    Paragraphs (i), (ii) and (v) of that submission seek to demonstrate that there were mechanisms available to interns like Dr Bolton to avoid discharge paperwork being performed beyond the intern’s rostered hours, presumably in support of a contention that it was not necessary for interns to perform that work at that time. However, the mechanism at (i) would not avoid the work but simply delay it to another day; the mechanism at (ii) was not a practical option as I have determined in the discussion above at [229]-[233]; and, as to (v), it does not follow that the capacity to speak to a superior about an intern’s workload would necessarily lead to the intern avoiding having to complete discharge paperwork during unrostered hours. There was also no evidence of that occurring or evidence supporting any reasonable expectation that it would occur. In any event, the relevant question is not what an intern could have done to avoid the work, but whether the circumstances convey a request or requirement for the work to be performed. The circumstances here relied upon by Peninsula Health do not convey anything of significance on the relevant question.

249    Paragraphs (iii) and (iv) of the submission are not directed to saying that Dr Bolton had options available to her for avoiding the performance of discharge paperwork outside of her rostered hours. What point is here sought to be made is somewhat unclear. It may be accepted that Dr Bolton performed the work in excess of her rostered hours expecting that Peninsula Health would not pay her for the work. However, that expectation says very little of any significance about whether or not Peninsula Health expected the work to be performed and thereby impliedly authorised it. It may be that Peninsula Health was here relying upon the existence of the Policy, the Guideline and the Department of Medicine Overtime Policy. However, for essentially the same reasons I have given in relation to ward round preparation overtime, the existence of those policies do not diminish or negate the implied authorisation substantiated by the conduct and other circumstances relied upon by the applicants.

250    There are two other matters relied upon by Peninsula Health, each of which is to be rejected.

251    The first is a passing comment made by Dr Bolton that “I knew that I was staying longer than I needed to”. In so far as that comment is relied upon to say that Dr Bolton knew that she was not expected to stay beyond her rostered hours to complete discharge summaries, the submission misunderstands the evidence. Dr Bolton’s evidence, read as a whole, could not be construed as suggesting that she understood that Peninsula Health did not expect her to complete discharge paperwork beyond her rostered hours. Rather, Dr Bolton made that comment while giving an explanation as to why she did not obtain authorisation under the Department of Medicine Overtime Policy. She explained that she just wanted to go home as quickly as possible and therefore did not want to waste time by calling Dr Braun or another consultant to obtain authorisation for the overtime, a call which may take five to 10 minutes, in circumstances where she was already staying back later than she needed to, that is, past her rostered finish time.

252    Second, Peninsula Health contended that Dr Bolton had imposed her own personal KPI of completing 100% of discharge summaries on patient discharge and that she then structured her work hours by reference to her own personal KPI, rather than the KPI the subject of Peninsula Health’s direction. The contention here seems to be that Dr Bolton performed the overtime claimed, not because it was required and thus authorised by Peninsula Health, but because Dr Bolton went above and beyond and provided work in excess of what was required of her.

253    That contention is based on Dr Bolton stating that it was clinically desirable for all discharge paperwork to be completed within 48 hours of discharge thus meeting a “goal” which equated to “100% KPI”. Dr Bolton accepted that to do so was a “goal” of hers. However, she gave that evidence acknowledging her understanding that “the hospital was not mandating 100% completion”.

254    There are two answers to this contention. First, in so far as “goals” or desirable objectives are concerned, Dr Bolton’s position is not at all inconsistent with that of Peninsula Health. Dr Braun agreed that “your aim” (being an apparent reference to the aim within the Department of Medicine) was that, where possible, interns and members of teams should aim to complete 100% of discharge summaries at discharge.

255    If Dr Bolton was working to Peninsula Health’s requirement of completing 90% of discharge summaries within 48 hours of discharge whilst aiming to achieve a 100% rate of completion, what she was doing was not inconsistent with Peninsula Health’s expectation. Second, even if that was not so, there is no evidence to support the proposition, which is at the heart of Peninsula Health’s contention, that the cause of the overtime performed by Dr Bolton was her goal of 100% completion rather than Peninsula Health’s requirement of 90% completion. That her own goal was the cause of her overtime work was never put to Dr Bolton. Nor is Dr Bolton’s supposedly idiosyncratic approach consistent with the evidence that it was common for interns to be working overtime to complete discharge summaries.

256    I am satisfied on the evidence set out above that the pattern of work required of interns and residents meant that, from time to time and in order for discharge paperwork to be completed in the timely way required by Peninsula Health, interns and residents performed discharge paperwork outside of their rostered hours. I am also satisfied that, on every occasion on which Dr Bolton performed discharge paperwork, she did so because there was insufficient time available to her during her rostered hours to complete that work in the timely way expected by Peninsula Health. That pattern of working overtime was understood in the General Medicine unit as likely to be necessary from time to time. When Peninsula Health’s ongoing direction to interns to complete discharge paperwork in a timely way was made in that context, what was conveyed was Peninsula Health’s expectation, and thus its request or requirement, that, if it were necessary to meet the KPI requirements, the work be performed in excess of the junior doctor’s rostered hours.

257    For those reasons and subject to any further issues going to quantum, I find that the medical records overtime claimed to have been worked by Dr Bolton was authorised by Peninsula Health and engaged the payment obligation in cl 36.2(a)(ii) of the 2018 Agreement.

258    In arriving at that conclusion, I have taken into account the five circumstances relied upon by Peninsula Health and listed at [125], the Policy and the Guideline, as well as the existence of the Department of Medicine Overtime Policy. For essentially the same reasons I have given in respect of ward round preparation overtime at [181]-[202] above, none of those matters serve to negate or relevantly diminish the implied authorisation given by Peninsula Health which is apparent from the facts and circumstances that support the conclusion I have reached.

Plastics rotation in the Department of Surgery – June 2019 to August 2019

Ward round preparation overtime

259    The Plastics unit is in the Department of Surgery at Frankston Hospital. During Dr Bolton’s rotation between 3 June 2019 and 11 August 2019, it was staffed by 11-12 specialist consultants including Dr Terrill, four registrars, being Dr Lisa Ellis, Dr Phan, Dr Kimberley Hughes and Dr Read, two residents for most of the rotation, being Dr Jonathan Khoo and Dr Isaac Lee and for the last week of the rotation being Dr Ryo Ueno and Dr Zander Edwards, and one intern which was Dr Bolton.

260    It is uncontroversial that Dr Bolton’s roster for her entire Plastics rotation commenced at 7 am. Dr Phan and Dr Read’s evidence was that ward rounds in the unit were scheduled to start at 7 am and most commonly did start at 7 am but often they started earlier and occasionally they started later. It is not in issue that Dr Bolton’s duties and responsibilities in the Plastics rotation included preparing for ward rounds.

261    The following contention made by the applicants, which described the tasks involved in preparing for ward rounds in the Plastics unit, was supported by the evidence of Dr Bolton, Dr Phan and Dr Read and is accepted:

updating the patient list, which was a Google or Word document accessible only to medical staff in the unit, by entering the details of newly admitted patients which included the reasons for admission and any management plans; updating information for existing patients’ test results that had come in overnight; being familiar with any significant changes in the patient’s clinical condition overnight; arranging for dressings to be ‘taken down’ (temporarily removed), either by nursing staff or doctors including Dr Bolton, so that a patient’s wound could be inspected on the rounds; reviewing the patient’s paper files and recording on the list relevant information including drain outputs; printing the list; printing the theatre list for that day; and ensuring the wound bag (which contained special dressings used only in plastic surgery) was stocked and ready for use on the round.

262    Peninsula Health did not lead any evidence contesting the nature or extent of the tasks involved in ward round preparation. In its submission, it suggested that the extent of the tasks relied upon by the applicants is somewhat broader than that which was pleaded but made no submission that the applicants were disentitled to rely upon the full extent of the tasks relied upon at trial. In any event, I am not persuaded that the tasks relied upon are not encompassed by the pleaded case.

263    Dr Bolton gave evidence that each day during her Plastics rotation, she arrived approximately 30 minutes before her rostered start time of 7 am and undertook ward round preparation between 6.30 am and 7 am because “arrival prior to 7 am to do those tasks was expected”. Although I do not accept that ward rounds always commenced at, or prior to, Dr Bolton’s rostered 7 am start, I am satisfied that there was an expectation, and thus a requirement, made by Peninsula Health of Dr Bolton to perform ward round preparation prior to the commencement of ward rounds.

264    The expectation in question was most clearly expressed by reference to the scheduled 7 am start for ward rounds in a document titled “Plastics Intern Handover – Rotation 2 2019” which I will refer to as the Plastics Intern Handover Document. It is convenient to extract the relevant contents of that document as relied on by the applicants:

Daily structure:

•    Arrive 6.30:

•    Update Plastics Ward List (excel document) – check Clover and WhatsApp for new admits, patient locations

•    Update any bloods/imaging etc. that has been done overnight

•    Check all patient obs

•    Call wards and check ensure dressings are down for patients that need to have a wound reviewed …

•    Print theatre list and photocopy/attach to ward list …

•    7am Ward Round

265    This document is consistent with a document titled “Peninsula Health – ROVER Rolling Handover Booklet for Interns Plastic Surgery” which I will refer to as the Plastics Rover. The Peninsula Health Plastics Rover stated that “[w]ard Rounds start at 7.00AM … [r]esidents/interns generally start 30 minutes prior to update list, get dressings down”. Dr Bolton said that she did not receive the Plastics Rover. However, from the evidence about the use of Rovers generally, I would infer that the Plastics Rover contributed to the understanding in the Plastics unit as to Peninsula Health’s expectation that interns and residents would generally start 30 minutes prior to the commencement of ward rounds to perform ward round preparation tasks.