By now you have probably heard the good news- ASMOF Victoria has won one of their class actions.
This is a landmark decision that will pave the way for thousands of junior doctors to claim their unpaid overtime, and is a promising development for our legal action in NSW.
• The win in Victoria
• What does this mean for junior doctors in NSW?
• A win for ASMOF NSW legal action
The win in Victoria
In 2021 ASMOF Victoria filed a series of class actions against the state’s health services for systemic and widespread underpayment of wages. ASMOF members are claiming repayment for unrostered overtime as well as penalties for breaches of the Fair Work Act.
In a landmark decision, a Federal Court judge has now found that the first of these health services, Peninsula Health, breached the Fair Work Act in underpaying Dr Bolton, the lead applicant in the representative proceedings.
The court determined that Dr Bolton will be paid $8,345 for overtime worked in 2019 and 2020 at Frankston Hospital where she was a trainee doctor. On RN Breakfast Dr Bolton described herself as ‘one of the lucky ones’ in terms of how much overtime she worked. Some of the claimants in ASMOF NSW’s contravention claim have six-figure unpaid overtime claims and similar cases undoubtedly exist in the Victorian group too.
The decision paves the way for thousands of ASMOF members in Victoria to be compensated for their unpaid overtime.
What does this mean for junior doctors in NSW?
ASMOF Victoria’s legal strategy is different to ours due to the structure of their health services and the applicable industrial legislation.
As junior doctors in Victoria are covered by multiple employers they have pursued class actions against each of these employers for contraventions of the Fair Work Act, which applies to the employment of doctors in the public sector in Victoria.
Doctors working in the NSW Health Service are covered by the Industrial Relations Act and are employed by a single employer – NSW Health. This is unfortunately a less efficient process than in Victoria.
Whilst it is a different jurisdiction and Court, the decision in Victoria has implications for our case in NSW for a number of reasons.
First, the decision recognises that overtime can be impliedly 'authorised' by an employer. The employer argued that overtime must be expressly authorised, approved, or undertaken in accordance with the employer's direction or a restrictive overtime policy – similar to arguments made by NSW Health.
It is rare that doctors in training work additional hours because they receive an explicit direction from their employer. It is invariably the case you work it because you have more work than you can complete in your rostered hours, like discharge summaries, or because ward practices require you to do work before or after your shift, such as round preparation.
The court held that authorisation to work overtime can be impliedly given by an employer in these types of circumstances. This is precisely the situation in our NSW contravention claim.
Second, the court largely accepted Dr Bolton’s estimations of the overtime she performed rather than requiring specific evidence such as timesheets or specific records. The evidence given by doctors in training in Victoria is essentially the same as in our NSW contravention claim in relation to the circumstances in which they worked unrostered overtime.
Third, the decision calls into question the effectiveness of overtime policies and guidelines that try to limit the circumstances in which overtime can be claimed or will be ''authorised''. The employer had various overtime policies and procedures, in some ways similar to those in NSW, which limited the ways in which unrostered overtime could be authorised.
While the evidence indicated that the overtime policies were not as well communicated to doctors as they are in NSW, the employer was well aware that doctors were working extensive unrostered hours. This is no different to the way NSW Health has long turned a blind eye to doctors’ overtime in NSW. The court held these policies did not limit the circumstances in which unrostered overtime could be authorised.
Finally, the employer sought to rely on a defence of estoppel, but this was rejected by the court. Estoppel is a legal concept that, in essence, prevents another person from arguing or claiming something that contradicts what they previously said or agreed to.
The estoppel defence in this case was that Dr Bolton had indicated to Peninsular that she had not worked any overtime because she had not claimed overtime – again similar to arguments made by NSW Health. Peninsular claimed that they had relied on this to their own detriment and therefore Dr Bolton should not be permitted to proceed with her claim.
Defences of this sort have been rejected by courts for decades and it is positive, if unsurprising, to see it again rejected by the Federal Court once again. This is especially relevant as the NSW Ministry of Health is requiring JMOs to sign declaration that they have claimed all overtime worked. Aside from simply denying that the doctors ever worked unrostered overtime or missed their meal breaks, the estoppel defence is the only defence NSW Health has raised in our contravention claim. We can only hope that NSW Health reconsiders its position on this matter.
The success of ASMOF Victoria’s action is a boost for all doctors in training across Australia and sends a clear message to hospitals: wage theft will not be tolerated.
A win for ASMOF NSW legal action
We have had a small win in our legal action, with the Supreme Court rejecting the NSW Government’s application to delay our case.
You may recall from our last update that the NSW Government made an application to ‘stay’ our applications, which is effectively a suspension of our case, which would delay the case until after the class action has been determined by the Court.
On the 19 July we were back in Court to oppose the NSW Government’s application to delay our proceedings. Thankfully the Court agreed with our argument that our members have a right to have their claims heard in a timely manner.
The case grinds on with NSW Health spending what must be millions of dollars to date defending our claim to pay doctors their rightful entitlements. We are back in court on 30 August 2023 and will keep you updated on our progress.