FEDERAL COURT OF AUSTRALIA

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

SUMMARY

In accordance with the practice of the Federal Court in cases of public interest, importance or complexity, the following summary has been prepared to accompany the reasons for judgment published today. The summary is intended to assist the public’s understanding of the outcome of this proceeding. It is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is the published reasons for judgment, which will be available on the internet at the Court’s website. This summary is also available there.

This is a representative proceeding, often referred to as a “class action”, commenced under Pt IVA of the Federal Court of Australia Act 1976 (Cth) against the respondent Peninsula Health. Peninsula Health is the major metropolitan health service for Frankston and the Mornington Peninsula and provides a range of health services across a number of sites, including Frankston Hospital. The proceeding is brought by the Australian Salaried Medical Officers’ Federation (ASMOF) and Dr Gaby Bolton on behalf of group members, who are junior doctors described as “Doctors in Training”. ASMOF is an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth) and is entitled to represent persons eligible to be members of that organisation, including persons classified as “Doctors in Training”.

The proceeding concerns claims made for, or on behalf of, Doctors in Training employed by Peninsula Health for unpaid overtime worked between 12 March 2015 and 12 March 2021. The phrase “Doctors in Training” describes employees classified as Hospital Medical Officers, Medical Officers (but not Medical Officers classified as Solely Administrative) and Registrars under the Victorian Public Health Sector (AMA Victoria) - Doctors in Training (Single Interest Employers) Enterprise Agreement 2013 (2013 Agreement) and the AMA Victoria - Victorian Public Health Sector - Doctors in Training Enterprise Agreement 2018-2021 (2018 Agreement). Each of these agreements were made under the Fair Work Act 2009 (Cth) (Fair Work Act). Broadly stated, the group members are junior doctors employed by Peninsula Health in 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, she worked overtime in order to: prepare for ward rounds; undertake ward rounds; prepare patients for medical procedures; undertake handover; and complete medical records. Dr Bolton contended that the overtime work performed by her was, on each occasion, performed with the authority of Peninsula Health and this engaged the obligation imposed upon Peninsula Health by cl 36.2 of the 2018 Agreement to pay for the overtime work performed at overtime rates of pay.

In summary, the applicants allege that Peninsula Health contravened s 50 of the Fair Work Act by failing to pay Dr Bolton and group members their overtime entitlements as required by the 2013 Agreement or the 2018 Agreement.

The Court’s reasons for judgment deal with those issues in the class action that were ordered to be dealt with separately by way of an initial trial. That is:

(a)    The underpayment of overtime entitlements claimed by Dr Bolton; and

(b)    The determination of those “common questions” which, when answered, will be binding on those group members who have not opted out of the proceeding.

Only common questions 6 to 9 were pressed. The other questions were abandoned by the applicants in the face of contentions made by Peninsula Health that they were not proper common questions. The intent of each of questions 6 and 7 was clarified during the initial trial. 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 that the Court has determined. In their clarified form, they are:

6. Whether authorisation to work overtime in excess of rostered hours, within the meaning of clause 32.2.1(b) of the 2013 Agreement, is capable of being impliedly given by an employer covered by the Agreement?

7. Whether authorisation to work overtime in excess of rostered hours, within the meaning of clause 36.2(a)(ii) of the 2018 Agreement, is capable of being impliedly given by an employer covered by the Agreement?

8. Whether clause 32.3 of the 2013 Agreement limits the ways in which unrostered overtime can be authorised?

9. Whether clause 36.3 of the 2018 Agreement limits the ways in which unrostered overtime can be authorised?

The central issue raised by those common questions, and a central issue in Dr Bolton’s claim, is whether overtime work performed by Doctors in Training is capable of being authorised when authorisation is given impliedly by Peninsula Health and not expressly. The determination of that matter raises constructional issues as to the meaning of the phrase “authorised hours” in cl 32.2 of the 2013 Agreement and cl 36.2 of the 2018 Agreement and, in particular, whether an authorisation given impliedly suffices to engage the employer’s obligation to pay for the overtime work performed by the employee. For Dr Bolton’s claim, there are also factual issues raised on the initial trial as to whether, in relation to each of the claims made by Dr Bolton, Peninsula Health did, in fact, impliedly authorise her to work the overtime hours Dr Bolton claims she worked.

For the reasons given in the Court’s reasons for judgment, 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 the 2018 Agreement to pay for the overtime work it has authorised.

In determining the factual issues raised as to whether Dr Bolton was, in fact, impliedly authorised to perform the overtime work claimed, I have determined that Dr Bolton was authorised in respect of each category of overtime claimed, other than for what is referred to in my reasons for judgment as “ward round overtime”. As Dr Bolton was not paid for 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 Fair Work Act. In considering the compensation that Dr Bolton should be awarded, I have been satisfied that the overtime hours claimed to have been worked by her are substantially, but not entirely, proven.

BROMBERG J

11 AUGUST 2023, MELBOURNE