In Polan v Goulburn Valley Health
(No 2) [2017] FCA 30, the Federal Court awarded a hospital worker $27,869.28
in unpaid overtime, plus interest. The hospital worker hadclaimed breaches of enterprise
agreements against her employer, Goulburn Valley Health, a large regional
hospital. She had worked for the hospital for approximately 17 years before
resigning, managing rosters of junior doctors, receiving
calls from junior doctors and completing other administrative tasks.
The Employee Worked
On-Call
As part of her role, the hospital worker was required to make and
receive calls to and from junior doctors whilst she was on-call at home. This
was an ongoing expectation on the hospital worker, rather than a specific
request by Goulburn Valley Health on each occasion.
The Employee’s Entitlement
to Additional Remuneration
One of the arguments before the Court was whether the hospital worker’s
duty to make and receive calls whilst at home could be considered “recalls to
duty” under her enterprise agreements. If so, she would be entitled to
additional remuneration.
It was held that, as the verb “recall” indicates a conscious decision by
an employer to require an employee to perform particular duties outside
ordinary hours, this was not a situation with “recalls to duty”. However, the
hospital worker was still entitled to additional remuneration in the form of
overtime.
Entitlement toOvertime
Unlike entitlements for “recalls to duty”, additional remuneration for
overtime is not confined to the situation of an employer specifically making a
direction to an employee to perform duties on a specific occasion. Further, the
enterprise agreements in the present case allowed for the hospital worker to
claim overtime payments. Therefore, as the hospital worker was impliedly
authorised by Goulburn Valley Health under an ongoing understanding that she
would undertake additional work outside of ordinary hours, she was entitled to
additional remuneration for that overtime.
Calculation of
Overtime
The hospital worker’s entitlement to overtime payments spanned several
of her 17 years of service. In such a situation, the Court was faced with the
problem of quantifying her entitlement when evidence of actual hours worked and
tasks completed were scarce.
The hospital worker was able to provide her Telstra phone bills, but she
did not have a lot of evidence to prove the dates and times of the other work
she completed. The hospital worker’s role was also to take time to consider
which doctors to call, to organise doctors with their most suitable departments
and to complete other administrative tasks. The hospital worker also spent a
considerable amount of her time waiting between phone calls, waiting for
doctors to get back to her, and this work was not reflected in the phone bills.
In the end, despite the lack of detailed evidence, the Court allowed the
hospital worker’s total entitlement based on the phone bills to be grossed up
by 50% to cover the other overtime work.However, this was just a guestimate.
Lessons to be Learnt
Employers need to comply with the applicable enterprise agreements. This
is especially the case for overtime. It may be considered normal for a hospital
worker to be on-call, and everyone at the hospital may work additional hours,
but that employee can still be entitled to overtime payments.
Meanwhile, employees need to be careful too. In case an employee wishes
to make a claim in the future, it helps if the employee has kept records of
their service, especially dates and times worked.
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