Federal Court of Australia

Australian Salaried Medical Officers’ Federation v Peninsula Health (No 2) [2023] FCA 1070

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 545 of the Fair Work Act 2009 (Cth), within 14 days from the date of these Orders, the Respondent pay the Second Applicant the sum of $5,779.95 in compensation for the loss suffered by her.

2.    Pursuant to s 547 of the Fair Work Act 2009 (Cth), the Respondent pay pre-judgment interest on the compensation awarded under Order 1 in the sum of $1,312.19.

3.    The questions of law common to the claims of the group members (common questions) are answered in the terms set out in Schedule 1 to these Orders.

4.    Pursuant to s 33ZB of the Federal Court of Australia Act 1976 (Cth), the group members (other than any person who opted out of the proceeding under s 33J of the Federal Court of Australia Act 1976 (Cth) within the time provided) are bound by the Court’s determination of the common questions.

5.    The proceeding be listed for hearing as to whether any penalty should be imposed and as to whether any declaration or declarations should be made, on a date to be fixed on or after 4 December 2023 and on an estimate of one day.

6.    On or before six weeks prior to the hearing, the Applicants file and serve:

(a)    Any affidavits on which they intend to rely; and

(b)    Written submissions limited to 15 pages.

7.    On or before 21 days prior to the hearing, the Respondent file and serve:

(a)    Any affidavits on which it intends to rely; and

(b)    Written submissions limited to 15 pages.

8.    On or before seven days prior to the hearing, the Applicants file and serve any affidavits in reply and written submissions in reply limited to five pages.

9.    On or before three days prior to the hearing, the parties file and serve a joint list of authorities and legislation.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

SCHEDULE 1

ANSWERS TO COMMON QUESTIONS

Question 6: Whether authorisation to work overtime in excess of rostered hours, within the meaning of clause 32.2(1)(b) of the Victorian Public Health Sector (AMA Victoria) - Doctors in Training (Single Interest Employers) Enterprise Agreement 2013 Agreement, is capable of being impliedly given by an employer covered by the Agreement? Answer: Yes.

Question 7: Whether authorisation to work overtime in excess of rostered hours, within the meaning of clause 36.2(a)(ii) of the AMA Victoria – Victorian Public Health Sector – Doctors in Training Enterprise Agreement 2018-2021, is capable of being impliedly given by an employer covered by the Agreement? Answer: Yes.

Question 8: Whether clause 32.3 of the Victorian Public Health Sector (AMA Victoria) - Doctors in Training (Single Interest Employers) Enterprise Agreement 2013 limits the ways in which unrostered overtime can be authorised? Answer: No.

Question 9: Whether clause 36.3 of the AMA Victoria – Victorian Public Health Sector – Doctors in Training Enterprise Agreement 2018–2021 limits the ways in which unrostered overtime can be authorised? Answer: No.

REASONS FOR JUDGMENT

BROMBERG J:

1    These reasons should be read with my reasons for judgment in Australian Salaried Medical Officers’ Federation v Peninsula Health [2023] FCA 939 (earlier reasons). The abbreviations used in my earlier reasons are here continued.

2    My earlier reasons were accompanied by orders made on 11 August 2023 requiring the parties to file a minute of proposed orders reflecting those reasons for judgment. The proposed orders that the parties were required to address concerned the following four issues:

(i)    the appropriate orders for compensation and interest to be paid to Dr Bolton;

(ii)    an order recording the Court’s determination of the common questions;

(iii)    programming orders for a penalty hearing; and

(iv)    what, if any, declaratory relief should be granted.

3    As to the issue of compensation, the submissions filed by the parties confirm their agreement that Peninsula Health should be ordered to pay the amount of $5,779.95 to Dr Bolton. I accept that the agreed amount is “appropriate” compensation and am satisfied that an order pursuant to s 545(1) of the FW Act should be made to that effect.

4    The parties have also agreed that pre-judgment interest on the compensation awarded in the sum of $1,312.19 should be ordered . I am further satisfied that, pursuant to s 547 of the FW Act, the agreed amount for pre-judgment interest should be the subject of an order.

5    As to the appropriate orders to be made in relation to the determination of the common questions, the parties are agreed that an order should be made pursuant to s 33ZB of the FCA Act that all group members other than those who opted out are bound by the answers given to the common questions. There was an issue between the parties as to whether the answers to the common questions should be recorded in a declaration or alternatively in a schedule to the orders I make. The determination of that issue is of little consequence. It is convenient that the answers be set out in a schedule. I will make an order to that effect.

6    The parties are also agreed as to the orders that should be made to program a penalty hearing. I will make the orders agreed to with one change which, at least to some extent, may address the disagreement between the parties as to whether any declaration or declarations should now be made and in what terms.

7    The parties disagree as to the number of contraventions of s 50 of the FW Act that should be recorded in any declaration or declarations to be made. Peninsula Health contended that there is no utility in any declaration of contravention being made by the Court at all. Alternatively, it submitted that, by reason of the way the case was pleaded and the limited way in which relief was claimed by the applicants and/or by reason of s 557 of the FW Act, if a declaration is made only a single declaration for a single contravention of s 50 of the FW Act by Peninsula Health should be made.

8    The applicants disputed that the number of contraventions by Peninsula Health which may be recorded in any declarations made should be limited by the terms in which their claim for relief was pleaded. They contended for seven declarations recording Peninsula Health’s failure to pay Dr Bolton on each occasion Dr Bolton performed overtime in each of the categories of overtime work which my earlier reasons describe. The applicants contended that declarations in the terms they propose would reflect the findings made in my earlier reasons at [466].

9    Although not expressly stated, Peninsula Health essentially seeks that I revisit the findings I made at [466]. I do not propose to do so. If there is any error in the findings there made, they can be addressed on any appeal. However, Peninsula Health is entitled to raise the operation of s 557 of the FW Act to contend that the contraventions of s 50 of the FW Act which I have found should be “taken to constitute a single contravention”. Peninsula Health contends that, if any declaration is made, that declaration should reflect the outcome of any operation that s 557 is held to have.

10    It follows that the Court should determine that contention prior to determining whether any declaration should be made and, if so, what the terms of any such declaration (or declarations) should be. The submissions of the parties as to the operation of s 557 will necessarily involve submissions as to whether or not all of the contraventions found arose out of a single course of conduct and, like is often the case, the operation of s 557 is best addressed in conjunction with a penalty hearing.

11    I should therefore reserve the determination of whether a declaration or declarations should be made and, if so, the terms of such declarations. As such, I will make orders which will accommodate the hearing and determination of those questions in conjunction with the hearing and determination of the question of what, if any, penalties should now be imposed upon Peninsula Health.

12    Accordingly, I will make orders consistent with these further reasons for judgment.

Associate:

Dated: 8 September 2023