In Polan v Goulburn Valley Health (No 2)  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.
he 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.
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.