Overtime - what are your rights and why aren't you being paid?

24 Jul 2017

Once upon a time in workplace not so far away, an administrator told a group of doctors that some of their colleagues were deliberately staying back late in order to “make money”.

Did an administrator actually say this? Well, we hope it’s not true or somehow the statement was taken out of context.

However, let’s imagine for a minute that you are currently working in a department that is chronically understaffed, has poor rostering practices and the number of patients presenting with complex cases is increasing. Do you think you’ll be leaving on time?

So what are your rights?

The ACT Enterprise Agreement

As many of you would know, overtime rates apply to:

  • hours worked outside of the rostered hours in a day (i.e. if you are rostered on till 4pm any hours worked after this time will be eligible for overtime); or
  • worked more than 10 hours in any one shift; or
  • any hours in excess of 40 hours in a week; or
  • any hours in excess 80 hours in a fortnight.

Under Clause 36.4 of enterprise agreement, overtime is payable at ‘time and a half’ (150%) of ordinary pay for the first 2 hours of work and ‘double time’ (200%) thereafter.

There is also an option for DiTs to apply for time off in lieu (TOIL) instead of overtime payment as prescribed under Clause 37 of the agreement. Importantly, overtime will only be payable when a DiT is required or requested to work. Indeed, this is the crucial point to understand when applying for overtime as we are of the view that, in some circumstances, DiTs are implicitly required to perform work in excess of their ordinary hours. A request to perform overtime is more akin to an invitation which may be rejected.

Despite what the Agreement says, we regularly hear of Junior Doctors not being paid overtime. So what are some of the reasons why they aren’t be paid and are these reasons valid?

Why you aren’t being paid - Employer policies

For example, Calvary hospital has a recently revised overtime policy that prescribes how to apply for overtime and circumstances in which it will be approved. It is important to note that overtime policies such as Calvary’s (‘Junior Medical Officer kronos clock punch and unrostered overtime approval process’) are on the face of it, acceptable. 

But does this policy fully comprehend the complexities of the working environment? What is the employer’s legal position?

In general terms, we’d argue that this type of policy does not adequately take into the complexities and demands of the work environment. The reality is the work environment for a hospital doctor is different to that of say other health practitioners and non-hospital employees. The functions, skills and responsibilities associated with being a Doctor are wholly different to those mentioned above and requires a set of policies that are designed with this in mind.

Should such an overtime policy take into account when there are levels of understaffing, patient needs, patient numbers, equipment breakdown, late ward rounds and on occasions or when a DiT is instructed to complete discharge summaries late in the day?

This is one of the points we will continue to stress to all hospital administrators and ACT Health as we go through enterprise bargaining.

Let’s be clear, in strictly legal terms, employers are permitted to have such policies, but there are conditions and some constraints.

  • An employer must demonstrate that such policies form part of the employment contract.
  • The introduction or variation of any policy requires consultation BEFORE a policy is introduced.
  • In the absence of the express consent or agreement of affected employees, the employer must show that such a policy is not in breach of the Fair Work Act 2009 or an enterprise agreement.
  • An employee’s agreement can be implied by conduct. This can mean that compliance with policy changes can be implied by an employee’s conduct, where a new arrangement is tacitly accepted by ‘silent’ acceptance.

With respect to recently introduced overtime policy at Calvary, it would be interesting to know whether this process has occurred. Moreover, there is also a view that unless an employer can provide good reason, the introduction or removal of a policy which has the effect of reducing or restricting employee entitlements may not be contractually binding. Has Calvary satisfied these requirements? Well, we met with them on July 5th and it is fair to say they are fully aware of their obligations.

Other reasons why you aren’t being paid

There are of course other reasons why some Junior Doctors aren’t being paid for overtime.  Professional culture (cue the: “We didn’t get paid for overtime when we were Junior Doctors”) and professional standing (“Applying for overtime will reflect poorly on you”) continue to act as a constraint  

Neither of these reasons are easily overcome, and indeed if there is to be any change it must be led by Senior Doctors and organisations like the AMA and colleges.

Moreover, accurately recording the working hours of medical practitioners will likely make it easier to identify those who are working unsafe hours and ensure we have an accurate understanding of the workload. This in turn should lead to rostering practices that ensure there is an equitable balance between patient needs, training requirements and rest.

Also note that Australian employees have recently become very ‘giving’; it’s estimated employees ‘donate’ about $116 billion dollars of free labour to employers each year.

Our advice

Record and submit any overtime you’ve worked. If your application for overtime is refused, make sure you ask why and record the reason provided. Having this all recorded in an email is probably the best approach. The collecting evidence is important as this is what is often sought by management, HR and Shared Services when we talk to them about unpaid overtime.

In the event your claim is knocked back and you feel it shouldn’t have been, get in touch with either myself (organsier@ama-act.com.au) or Tony Chase (industrial@ama-act.com.au). We've also just completed an online unpaid overtime form for AMA (ACT) Members to help Members claim back their unpaid overtime

*Anish Prasad is the Hospital Organiser for the AMA (ACT). If you are an AMA (ACT) Member and have an employment related concerns or questions, please contact him via email.