Australian Salaried Medical Officers' Federation v Peninsula Health

BACKGROUND 9 Before considering the principal legal arguments, it is convenient here to set out the primary background facts. 10 Dr Bolton is a Doctor in Training who has been employed by Peninsula Health since 8 January 2019, working primarily at Frankston Hospital. She is currently employed by Peninsula Health as an anaesthetic registrar. 11 In her intern year (her first year out of university), she worked five rotations at Frankston Hospital in General Medicine, Emergency, Plastic Surgery, General Medicine again, and Emergency again (on secondment to West Gippsland Hospital). Towards the end of her first year and in the first part of her second year, she was a resident and rotated through the Cardiology unit. 12 Dr Bolton's claims for unpaid overtime relate to four rotations that she undertook between January 2019 and January 2021, as follows: (a) the First General Medicine rotation, which took place between 14 January 2019 and 24 March 2019; (b) the Plastics rotation, which took place between 3 June 2019 and 11 August 2019; (c) the Second General Medicine rotation, which took place between 12 August 2019 and 20 October 2019; and (d) the Cardiology rotation, which took place between 2 November 2020 and 31 January 2021. 13 Peninsula Health is the major metropolitan health service for Frankston and the Mornington Peninsula, providing a broad range of health services to the community over a number of sites, including Frankston Hospital. It is a public health service within the meaning of the Health Services Act 1988 (Vic). 14 Peninsula Health has numerous departments but only two, the Department of Medicine and the Department of Surgery, are relevant to this proceeding. 15 The Department of Medicine has twelve medical subspecialties or units, including the General Medicine and the Cardiology units through which Dr Bolton rotated. 16 Since 2011, Dr Gary Braun has been the Clinical Director of the Department of Medicine. He reports to the Chief Medical Officer for clinical matters, and to the Chief Operating Officer for operational matters. The General Medicine unit is the largest inpatient unit in the Department of Medicine and is comprised of five teams. Since 2016, Dr Elisabeth Nye has been the Head of the General Medicine unit at Peninsula Health, reporting to Dr Braun. 17 The Cardiology unit provides a mix of inpatient and outpatient services. Dr Philip Carrillo de Albornoz, known as Dr Carrillo, was the Head of the Cardiology unit between 2016 to late October 2021 and reported to Dr Braun. 18 The Department of Surgery has a range of specialist surgical units, including the Plastics unit. The Plastics unit conducts a range of emergency and elective procedures. Dr Peter Evans is the Clinical Director of the Department of Surgery. Since 1996, Dr Patricia Terrill has been the Head of the Plastics unit. 19 Peninsula Health employs a range of clinical and non-clinical staff, including nurses, administrative and clerical staff, medical support employees, allied services and support staff, allied health professionals, Doctors in Training (comprised, relevantly, of interns, residents and registrars) and consultants. Doctors who were either heads of units or heads of departments in which Dr Bolton worked clearly had the authority to direct Dr Bolton in the performance of her work. The evidence, including that of Dr Nye and Dr Carrillo, demonstrated that consultants are the most senior member of the teams operating within departments and units of the hospital and provide directions to interns, residents and registrars. However, consultants are often not present on the wards outside of ward rounds which are generally just a short period in the morning. As the evidence given by Dr Braun, Dr Carrillo and Dr Nye demonstrated, in the absence of a consultant, the supervision of interns and residents falls to the registrars who provide daily directions, complete assessments for interns and set the expectations that interns are required to meet. The evidence, including that given by Dr Braun and Dr Nye, established that Peninsula Health delegates to registrars the power to supervise and issue directions to interns and residents. Accordingly, I take the view that if Dr Bolton was requested or required to carry out a task by a consultant or by a registrar, that ought to be regarded as a direction by Peninsula Health unless there are circumstances particular to the context in which the instruction was given which make it apparent that the supervising doctor did not have authority, including ostensible authority, to give that direction. For ease of reference, where hereafter I refer to a doctor more senior than Dr Bolton who had the capacity to direct her in the performance of her work as an employee of Peninsula Health, I have bolded that doctor's name.

Applicants' witnesses 20 Beyond Dr Bolton, whom I have already introduced, the applicants called nine witnesses at the initial trial.

Mr Peter Watts 21 Mr Peter Watts was previously employed by Peninsula Health in various roles from 2009 until 2020. Relevantly, those roles included Hospital Medical Officers Manager in the Medical Workforce Unit (MWU) and the Acting Director of the MWU between August 2018 and January 2019, reporting to the Executive Director of Medical Services. The MWU is a separate human resources unit in Peninsula Health that is responsible for new doctors who have just graduated from university, including for their contracts, rotations, leave, wellbeing and performance.

Dr Robert Phan 22 Dr Robert Phan was previously employed as a registrar by Peninsula Health in the Plastics unit at Frankston Hospital where he worked with, and supervised, Dr Bolton during her Plastics rotation in 2019. He is currently employed as an accredited Plastic Surgery registrar at the Austin Hospital.

Dr Amelia Brickle 23 Dr Amelia Brickle was employed by Peninsula Health as an intern in 2019 and completed a rotation in the General Medicine unit during the same period as Dr Bolton's First General Medicine rotation, but was in a different team, or sub-unit, to Dr Bolton. She is currently employed as a resident in the Gynaecology and Obstetrics Department at Warragul Hospital.

Dr Kate van Berkel 24 Dr Kate van Berkel was employed by Peninsula Health as an intern and completed two rotations through the General Medicine unit at Frankston Hospital in 2018. She did not work with Dr Bolton. She is currently employed as a locum geriatric evaluation and management resident medical officer at Werribee Mercy Hospital.

Dr Justin Curtin 25 Dr Justin Curtin was previously employed by Peninsula Health as a medical registrar in the General Medicine unit at Frankston Hospital from 2014 to 2021. He supervised Dr Bolton during her First General Medicine rotation in 2019. He is currently employed by Alfred Health as a rehabilitation registrar.

Dr Tavis Read 26 Dr Tavis Read was previously employed by Peninsula Health as an accredited registrar in the Plastics unit at Frankston Hospital between February and August 2019. He supervised Dr Bolton during her Plastics rotation in 2019. He is currently employed as an accredited registrar in Plastic and Reconstructive Surgery at Mater Hospital, Brisbane.

Dr Geoff Toogood 27 Dr Geoff Toogood has been employed by Peninsula Health since 1993 and is currently a consultant in the Cardiology unit at Frankston Hospital. He was previously Head of the Cardiology unit at Frankston Hospital and worked with Dr Bolton during her Cardiology rotation between November 2020 and January 2021, during which time Dr Toogood was a consultant and Dr Bolton was a resident.

Dr Stuart Marshall 28 Dr Stuart Marshall has been employed by Peninsula Health since 2009 and is currently engaged as a specialist anaesthetist at Frankston Hospital. He previously held the role of Director of Clinical and Intern Training at Peninsula Health between March 2019 and June 2020. This role entailed pastoral care of interns and residents and responsibility for developing the education and training for Doctors in Training.

Professor Julian Rait 29 Professor Julian Rait is a specialist ophthalmologist who is the current chair of the Federal Council of the National Australian Medical Association. From May 2018 to May 2021, he was the President of the Australia Medical Association (Victoria), a role in which he had discussions with health services and their employees about the issue of unpaid, unrostered overtime.

Peninsula Health's witnesses 30 Peninsula Health called five witnesses.

Dr Gary Braun 31 Dr Braun has been employed by Peninsula Health since 1998, working primarily as an intensive care, sleep and respiratory physician. Since 2011, Dr Braun has been the Clinical Director of the Department of Medicine.

Ms Lyndal Hynes 32 Ms Lyndal Hynes has been employed by Peninsula Health since 2008 and is currently the personal assistant to Dr Braun, a role she has held since 2015. Her current role includes assisting Ms Debra Hobbs, Dr Braun's other personal assistant, with preparing the weekly rosters for Doctors in Training in the Department of Medicine, and did so during each of Dr Bolton's rotations in the General Medicine unit and Cardiology unit in 2019, 2020 and 2021.

Dr Elisabeth Nye 33 Dr Nye is currently employed by Peninsula Health as the Head of the General Medicine unit in the Department of Medicine and has held that position since October 2016, including in 2019 during each of Dr Bolton's rotations in the General Medicine unit.

Dr Philip Carrillo 34 Dr Carrillo has been employed by Peninsula Health since 2000. He was the Head of the Cardiology unit from around 2014 until October 2021, including during the period of November 2020 to January 2021 when Dr Bolton rotated through that unit.

Dr Patricia Terrill 35 Dr Terrill is currently employed by Peninsula Health as the Head of the Plastics unit. She has held that position since 1996, including in 2019 when Dr Bolton rotated through that unit.

THE PROPER CONSTRUCTION OF THE AGREEMENT 36 There are three broad responses made by Peninsula Health to the applicants' case that implied authorisation was given by Peninsula Health for the numerous occasions on which Dr Bolton claims to have worked overtime and for which she claims payment. The first response, broadly stated, is that, on the proper construction of the 2018 Agreement and in circumstances where various policies of Peninsula Health dealing with the authorisation of overtime were in existence and applicable, there is "no scope" for Peninsula Health to have given its authority impliedly. The second response was put in the alternative to the first and, broadly stated, was that, contrary to the applicants' case, no finding should be made on the facts that Peninsula Health impliedly authorised any of the overtime claimed. The third response challenged whether all of the time Dr Bolton claimed to have performed as overtime was proven on the evidence. It is the first response which primarily raises the proper construction of the 2018 Agreement and, for the purpose of determining the common questions, the proper construction of the 2013 Agreement as well as the 2018 Agreement. 37 It is convenient therefore to commence with Peninsula Health's first response. The main issue in contention between the parties was the meaning and operation of the word "authorised" in each of cl 36.2(a)(ii) of the 2018 Agreement and cl 32.2.1(b) of the 2013 Agreement. More precisely, what is in issue is the meaning and operation of the composite expression "authorised hours" in the context that working authorised hours attracts an obligation upon the employer to pay for the work performed at overtime rates of pay. It was not in contest that the existence of an authorisation from the employer for the working of "authorised hours" is necessary to engage the employer's obligation under each of cl 36.2(a)(ii) and cl 32.2.1(b) to pay for the work performed. Central to the issue in contest is whether authorisation howsoever given suffices to engage the payment obligation or, alternatively, whether that obligation is only engaged by a particular kind of authorisation. 38 Both the 2013 and 2018 Agreements are enterprise agreements within the meaning of Pt 2-4 of the FW Act. The 2013 Agreement commenced operation on, and from, 17 December 2013 and continued to operate until 6 August 2018. The 2018 Agreement commenced operation on, and from, 7 August 2018 and continues to operate. 39 As there are no relevant distinctions between the 2013 Agreement and the 2018 Agreement, I will conduct the constructional exercise by reference to the 2018 Agreement alone. All of the observations made, and conclusions reached, about the 2018 Agreement are intended to apply equally to the 2013 Agreement, unless the contrary is stated. 40 The 2018 Agreement covers various named "Health Services" including Peninsula Health. It also covers ASMOF and registered medical practitioners (referred to as "Doctors"), including Doctors in Training. There is no issue that those persons are bound to observe the terms of the 2018 Agreement. 41 There are some contextual matters which I will refer to shortly. However, it is convenient at this point to set out the terms of cl 36.2(a)(ii), where the phrase "authorised hours" is used in the context of cl 36 of the 2018 Agreement as a whole: 36 Overtime 36.1 The provisions of this clause 36 are to be read in conjunction with clause 33 (Hours of Work). 36.2 Entitlement (a) Overtime is payable for working: (i) rostered hours in excess of ordinary hours, pursuant to subclause 33.1; or (ii) authorised hours in excess of rostered hours. (b) Notwithstanding the provisions of subclause 36.2(a) above, where a part-time Doctor is directed by the Health Service to work rostered hours in excess of their contract hours, overtime will be paid pursuant to this clause for all hours worked in excess of their contract hours. A Doctor who offers to work additional hours will be paid their ordinary rate of pay until their total weekly hours of work exceed the full time ordinary hours for their classification, as prescribed in clause 33 (Hours of Work). (c) The payment of overtime is one and one half (1½) times the Doctor's ordinary hourly rate of pay for the first two hours overtime in a week and then double the Doctor's ordinary hourly rate of pay for all additional overtime hours in that week. (d) Overtime may be converted into carer's leave in accordance with subclause 61.3(c). 36.3 Protocols - Authorised Un-rostered Overtime (a) A Protocol must exist in the Health Service whereby overtime that cannot be authorised in advance but has been worked will be paid if it meets appropriate, clearly defined criteria. (b) The protocols described in subclause 36.3(a) will be structured on the following basis: (i) the Doctor has performed the overtime due to a demonstrable clinical need and that need could not have been met by some other means; (ii) authorisation of the overtime could not reasonably have been made in advance of the Doctor performing the work; (iii) the Doctor has claimed for retrospective authorisation of overtime on the first occasion possible after the overtime was worked and on no occasion later than the completion of that pay fortnight; (iv) the Doctor has recorded the reason for working the overtime and the duties performed in a form capable of Health Service audit and review; and (v) the claim for overtime must be reviewed by a Senior Doctor authorised by the Health Service to do so within 14 days of the claim being submitted. (Emphasis added.) 42 There is no issue that where the clause uses the term "payable" it means payable by the "Health Service", being an employer like Peninsula Health bound by the Agreement. The 2018 Agreement may fairly be described as a comprehensive agreement which addresses a multitude of conditions of employment in a manner which may be described as prescriptive. The Agreement presumes the existence of an underlying contract of employment between each of the Doctors and their respective employer covered by the Agreement. The 2018 Agreement regulates that employment by imposing various obligations upon both employer and employee. When construing what is meant by the phrase "authorised hours" utilised in cl 36.2(a)(ii) of the 2018 Agreement, it is important to bear in mind that the arrangement being regulated is an employment relationship, the fundamental nature of which is the provision of work by the employee in exchange for remuneration provided by the employer. 43 It is also important to bear in mind that, under a contract or by way of the regulation provided by an industrial instrument such as the 2018 Agreement, the remuneration required to be paid by an employer for the performance of overtime work may be either global or specific to the actual amount of time worked as overtime. Thus, the remuneration of a salaried employee who is required to work reasonable overtime may encompass a notional sum in payment of all the overtime that may be worked by the employee, irrespective of the extent of the overtime actually worked by the employee. In contrast, the remuneration of a waged employee is usually strictly correlated to the time worked by the employee. Under such an arrangement, the employer is required to pay for work performed as overtime hours by reference to the amount of time actually worked. The 2018 Agreement imposes an arrangement of the latter kind, in which any time worked as overtime must be paid for. 44 The principles for construing enterprise agreements were not in dispute. The well-established principles were set out by the Full Court in WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [197] (Tracey, Bromberg and Rangiah JJ): The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 (Holmes) at 378 (French J). The interpretation "turns on the language of the particular agreement, understood in the light of its industrial context and purpose": Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 (Amcor) at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-379, citing George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a "practical bent of mind" and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); Shop, Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J). 45 In an early decision, Piddington J (the President of the Industrial Commission of New South Wales) described "overtime" as "a word of extremely common use in Australia" and applied the dictionary definition of "[t]ime beyond, or in excess of, a limit; especially extra working time": In re Confectioners (State) Conciliation Committee (1930) 29 AR 184 at 188. The concept of "overtime" as utilised by the 2018 Agreement is consistent with that meaning. The overtime referred to in cl 36 is extra or additional time worked beyond a certain limit. The limit being the "ordinary hours" of work prescribed by the Agreement. 46 The "ordinary hours" of employees are specified by cl 33.1 of the 2018 Agreement. Relevantly, for a full-time employee (excluding a Registrar), they are 38 hours per week or an average of 38 hours per week over a four-week period. In exchange for the performance of his or her ordinary hours, the 2018 Agreement provides for a weekly rate of pay for each full-time employee in respect of each classification of employee covered by the Agreement, and for a pro rata payment for part-time employees working less than a 38 hour week. 47 The "ordinary hourly rate of pay" of a Doctor is the weekly rate provided for the Doctor's classification divided by 38, being the number of the "ordinary hours" of work for the employee. For work performed as overtime, cl 36.2(c) requires that the Doctor be paid one and a half times the Doctor's ordinary hourly rate of pay for the first two hours of overtime in a week and then double the Doctor's ordinary hourly rate of pay for all additional overtime hours in that week. 48 Clause 35.1 of the 2018 Agreement requires that the ordinary hours of work of a Doctor be worked in accordance with a roster which "must include all working hours including theatre preparation, ward rounds [and] completing discharge summaries". A roster must be of at least 28 days duration and must state "each Doctor's daily working hours and start and finishing times [which] must be posted at least 14 days before the roster comes into operation": cl 35.2(a). The maximum hours of work of a Doctor are specified by cl 33.2 and must not exceed 75 hours in any seven consecutive shifts, or 140 hours in any 14 consecutive days, or 280 hours in any 28 consecutive days. Furthermore, Doctors must not be rostered for duty for more than 16 consecutive hours on any given shift: cl 33.3. 49 It is evident then that a Doctor's ordinary hours of work must be allocated pursuant to a roster. Whilst what is a "roster" is not defined, as a matter of common understanding, a roster specifies the number of hours to be worked by an employee on any given day and when, during that day, the employee shall work. An employee's roster will therefore allocate work to the employee and specify when it is to be done. A roster may properly be regarded as constituting a series of directions made by the employer to the employee as to when, and for how long, an employee is to work on each given day over the rostered period. 50 At its core, each of Dr Bolton's claims to be paid for overtime worked is based upon the existence of two facts which engaged the obligation imposed upon Peninsula Health by cl 36.2(a)(ii) to pay her at overtime rates. The first fact is the existence of an authorisation given by Peninsula Health in respect of the hours worked, and the second is the actual performance of that work. In relation to the first fact, the applicants rely upon the existence of implied authorisations alleged to have been given by Peninsula Health. In so doing, they contended that the word "authorised" in cl 36.2(a)(ii) is a term of wide import which encompasses both an express or an implied sanction of the activity that has been authorised. Where an authorisation is implied or inferred, the applicants contended that the performance of the activity may be sanctioned where countenanced by conduct, including by way of an omission or failure to act, particularly where that failure is coupled with knowledge of the performance of the work. 51 Many of the authorities relied upon by the applicants were concerned with construing the term "authorise" in the context of copyright law and the statutory prohibition in s 36(1) of the Copyright Act 1968 (Cth) which provides that copyright is infringed by a person who, among other things, "authorizes the doing in Australia … any act comprised in the copyright". The applicants relied on the following observations made by Gibbs J at 12-13 of University of New South Wales v Moorhouse (1975) 133 CLR 1: It can also mean "permit", and in Adelaide Corporation v Australasian Performing Right Association Ltd "authorize" and "permit" appear to have been treated as synonymous. A person cannot be said to authorize an infringement of copyright unless he has some power to prevent it. Express or formal permission or sanction, or active conduct indicating approval, is not essential to constitute an authorization; "Inactivity or 'indifference, exhibited by acts of commission or omission, may reach a degree from which an authorization or permission may be inferred'". However, the word "authorize" connotes a mental element and it could not be inferred that a person had, by mere inactivity, authorized something to be done if he neither knew nor had reason to suspect that the act might be done. (Emphasis added.) (Citations omitted.) 52 The applicants further relied on the observation of Jacobs J in Moorhouse at 21 to similar effect: It [authorised] is a wide meaning which in cases of permission or invitation is apt to apply both where an express permission or invitation is extended to the act comprised in the copyright and where such permission or invitation may be implied. (Emphasis added.) 53 In further support of the generality of the expression, or the concept of authorisation having regard to its ordinary meaning, the applicants relied on the following observations made by Gummow and Hayne JJ in Roadshow Films Pty Ltd v iiNet Ltd (2012) 248 CLR 42 at [125]: [G]iven the generality of that expression, there is force in the following statement by Herring CJ in Winstone v Wurlitzer Automatic Phonograph Co of Australia Pty Ltd: "As the acts that may be complained of as infringements of copyright are multifarious, so, too, the conduct that may justify an inference of authorisation may take on an infinite variety of differing forms. In these circumstances any attempt to prescribe beforehand ready-made tests for determining on which side of the line a particular case will fall, would seem doomed to failure." (Emphasis added.) (Citations omitted.) 54 The applicants also referred to Campaigntrack Pty Ltd v Real Estate Tool Box Pty Ltd (2022) 292 FCR 512, where the Full Court considered the requirement of knowledge when authorisation is sought to be inferred (also in the particular statutory context of the Copyright Act). Justice McElwaine concluded at [257] (Greenwood J agreeing at [1]) that in order for an inference of authorisation to be drawn: it is necessary to prove on the balance of probabilities that the person either had actual knowledge of the doing of the act or constructive knowledge of the act because the person had reasonable grounds to suspect the doing of the act or, the person exhibited wilful blindness to the doing of the act. (Emphasis in original.) 55 Those authorities tend to support that which is otherwise obvious, namely, that requesting an activity or providing permission for, or sanctioning of, an activity is ordinarily capable of being done either expressly or impliedly. However, as the applicants recognised, the meaning of "authorised", or indeed the meaning of any word, "may be controlled by its context": Ex parte Johnson; Re MacMillan (1946) 47 SR (NSW) 16 at 18 (Jordan CJ). 56 In its closing written submissions, and by way of summary, Peninsula Health described its first response as follows: (a) Any entitlement of Dr Bolton [or other Doctors in Training] to be paid overtime requires the hours worked in excess of rostered hours to be authorised; (b) That authorisation has to come from Peninsula Health; (c) Peninsula Health has detailed and prescriptive processes for the authorisation of overtime as set down in the Policy and Guideline (defined in section C.5 below), and as advised to the [Doctors in Training]; (d) There was no authorisation consistent with those processes of the overtime the subject of this proceeding; (e) In the context of Peninsula Health's detailed and prescriptive processes, there is no scope for the implication of any authorisation of Dr Bolton (or other [Doctors in Training]) to work hours in excess of rostered hours. 57 Peninsula Health's submissions then addressed what it contended was the proper construction of the Agreements, including by detailing those circumstances, namely the existence and communication to Doctors in Training of various policies dealing with the authorisation of overtime, which it relied upon for the proposition that there was no scope for an implied authorisation. Regrettably, those submissions which purported to deal only with the construction of the Agreement - a legal question - travel well beyond the matters that I consider were relevant to that question. That has caused some confusion and made it somewhat more difficult than it might have been to understand how Peninsula Health contends that cl 36.2(a)(ii) should be construed. 58 Peninsula Health contended that the word "authorised" in cl 36.2(a)(ii) should be given its plain grammatical meaning - that is, "to give authority or legal power to; empower (to do something); to give authority for; formally sanction (an act or proceeding)": Macquarie Dictionary (4th ed, 2005) "authorised" at 91. It submitted, however, that there is no warrant for reading the word broadly or narrowly. It further contended that, whilst the authorisation of overtime contemplated by cl 36.2(a)(ii) "may be implied or be created by certain conduct", the clause intends to give the employer control over the mode of authorisation of overtime such that cl 36.2(a)(ii) should be construed as providing that "[i]t is a matter for any particular employer to decide the circumstances in which its 'authority' may be given". In aid of that construction, Peninsula Health argued that the word "authorisation" had to be read in context and in the particular context of cl 36.3, although it did not really explain how cl 36.3 aided the proper construction of cl 36.2(a)(ii). Given that the mode of authorisation was for the employer to determine, Peninsula Health contended that "[t]his then requires attention to how and in what circumstances Peninsula Health has prescribed how authorisation to work excess hours by [Doctors in Training] will create an entitlement to overtime". 59 Peninsula Health essentially contended that the obligation imposed upon the employer by cl 36.2(a)(ii) is only engaged where the employer gives authorisation for the hours worked in the manner in which the employer has prescribed for authorisation to be given. Thus, because Peninsula Health had prescribed the mode of, and process for, authorisation at Peninsula Health to be express authorisation through a particular process made known to Doctors, there was "no scope for the operation of some implied authorisation" in the circumstances of Peninsula Health. 60 On that basis, Peninsula Health concluded its submission on the constructional issue as follows: Under cll 36.2 and 36.3 of the Agreement, for excess hours to be "authorised hours" that attract an overtime claim, they must be: (a) in respect of work performed in order to meet a demonstrable clinical need that could not have been met by other means; (b) recorded on a doctor's timesheet and/or on an overtime claim form, in either case no later than completion of the relevant pay fortnight; and (c) in the case of the Department of Medicine, approved by the Clinical Director (Dr Gary Braun) or his delegate as described at section C.6 and paragraph 60, and in the case of the Department of Surgery, authorised by a Registrar as described at paragraphs 55 and 61. (Emphasis in original.) 61 The content of paras (a), (b) and (c) above is taken from one of the policies of Peninsula Health dealing with the authorisation of overtime. 62 In reply, the applicants contended that the meaning of the word "authorised" in cl 36.2(a)(ii) of the 2018 Agreement is "not stable" on Peninsula Health's approach because that construction encompasses implied authorisation in some workplaces but not in other workplaces covered by the 2018 Agreement. 63 However, in my view, that response misconstrues what I understand to be Peninsula Health's position which, as I have said, could have been expressed more clearly. 64 As I understand it, Peninsula Health's construction of "authorised" is stable in that "authorised" always means authority given by the employer pursuant to the particular mode and process adopted by the employer for giving its authorisations for overtime to be worked. If that particular mode and process includes an implied authorisation, then an implied authorisation would suffice to engage the payment obligation in cl 36.2(a)(ii). 65 However, that understanding does not necessarily accord with the negative answer Peninsula Health gave to each of common questions 6 and 7 which were originally in the following terms: 6. Whether authorisation to work overtime in excess of rostered hours, within the meaning of clause 32.2.1(b) of the 2013 Agreement, is capable of being implied by the conduct of the Respondent? 7. Whether authorisation to work overtime in excess of rostered hours, within the meaning of clause 36.2(a)(ii) of the 2018 Agreement, is capable of being implied by the conduct of the Respondent? 66 As I understood each of those questions, their intent was to raise a constructional issue of general application. The reference to "the Respondent" was not an intended reference to Peninsula Health alone but to an "Employer covered by the Agreement". I have the same understanding in relation to common questions 8 and 9 in so far as those questions also refer to "the Respondent". During the trial, I raised my understanding of questions 6 and 7 with the parties in the course of a submission made by Peninsula Health that common questions 6 and 7 were not proper common questions. The applicants confirmed that the intent of the questions was consistent with my understanding. I made it clear that those questions would be answered in accordance with my understanding of them and I have adjusted the terms of the questions to clarify their intended purpose. However, Peninsula Health, despite the clarification, maintains its position that questions 6 and 7 should be answered "No". 67 I will therefore address the general question of whether an implied authorisation given by an employer will suffice to engage the payment obligation under cl 36.2(a)(ii) of the 2018 Agreement in order to determine the common questions, as well as the particular constructional question which I understand to be otherwise raised by Peninsula Health's submissions that only an authorisation given consistently with the mode and process formally adopted by the particular employer will suffice to engage that payment obligation. 68 The word "authorised" is part of a composite phrase "authorised hours" found in a clause which provides an employee with an entitlement to be paid for overtime where the employee has worked "authorised hours in excess of rostered hours". The relevant constructional question raised by common questions 6 and 7 is a question of law. It is whether the kind of authorisation contemplated by the clause includes authorisation which is impliedly, rather than expressly, given. Whether, on the application of the clause, authorisation was given in any particular case is a question of fact. 69 Read in its context, the word "authorised" in cl 36.2(a)(ii) is obviously an intended reference to a sanction given by the employer to the employee in respect of the employee working hours in excess of rostered hours. The subject of the sanction is the performance of work. In practical terms, the performance of work by an employee is sanctioned by his or her employer when the employer requests or requires the work to be done or, where the performance of the work is at the initiative of the employee, where the employer approves the performance of the work by the employee. Those means of an employer providing a sanction for the performance of work appear to me to be both comprehensive and obviously intended to fall within the notion of authorisation contemplated by cl 36.2(a)(ii). 70 I accept that the word "authorised" is more readily used to connote an approval rather than a request or a requirement. The use of that term is, however, common in relation to clauses of industrial instruments dealing with overtime. Its provenance may well be that, at or about their origin, provisions of that kind were commonly addressing circumstances in which employers tended to approve the working of overtime in choosing between employees in competition for additional work. 71 However, irrespective of that possible origin, it cannot have been intended by the framers of the 2018 Agreement that work performed by Doctors in excess of ordinary hours, which has not been rostered but which has nevertheless been worked as requested or as required by their employer, would not be payable as overtime under the Agreement. The only provision in the Agreement under which such work could be payable is cl 36.2(a)(ii) and, therefore, "authorised hours" must have been intended to encompass those hours which the employer requested or required the employee to work. 72 That point is reinforced by the observation that the only other means by which overtime work is payable under the Agreement is pursuant to the immediately preceding subpara cl 36.2(a)(i), in which overtime is payable for work performed pursuant to a requirement or direction made under the employee's roster. As such, clearly the 2018 Agreement intended that a requirement or direction from the employer was a permissible means of sanctioning the performance of overtime work. In so far as overtime work can be requested in circumstances where the employer may not be entitled to require it, such a request must also have been intended to be a means by which the employer sanctions or authorises the performance of the work requested. 73 As both parties accepted, cl 36.2 must be construed in a way that makes industrial sense. As I said in Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (MV Portland Case) (No 2) [2020] FCA 1138 at [22], quoting Kirby J in Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [96], "the construction to be given to a clause in an industrial instrument 'should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement'". 74 An industrially sensible construction of cl 36.2(a)(ii) would not conclude that an employer should be required to pay for work performed in excess of rostered hours where the employer had not requested, required or approved of that work. An industrially sensible construction of cl 36.2(a)(ii) would similarly not conclude that work in excess of rostered hours requested, required or approved of by the employer is not payable as overtime under that clause. So construed, cl 36.2(a)(ii) sensibly balances the employee's right to be paid for work the employer has requested with the employer's right to not be obliged to pay for work it has not asked for at all, or has not requested or required be performed as overtime. 75 It follows that an authorisation, in the form of a request or a requirement made by the employer to the Doctor that the Doctor work in excess of his or her rostered hours, would suffice to designate the time worked by the employee as "authorised hours" which the employer must pay for at the overtime rate pursuant to the obligation imposed by cl 36.2. 76 On that basis, and given the facts which support her claim, whether or not Dr Bolton worked "authorised hours" for which she is entitled to be paid at the overtime rate will, consistently with the intent of cl 36.2, be answered by an inquiry as to whether, in respect of the hours the subject of her claim, Dr Bolton was requested, required or otherwise given approval to work those hours in excess of her rostered hours as overtime. 77 I turn then to consider whether the means of sanctioning or authorising the performance of overtime work contemplated by cl 36.2(a)(ii) - ie by a request, a requirement or an approval - were only intended to engage the obligation to pay the employee when made or given: (i) expressly rather than impliedly; and (ii) in accordance with the process adopted by the employer for giving its authorisation. 78 It is well to commence that assessment by considering context. The context here is the practical field of the allocation of additional work by an employer to its employees in the midst of an ongoing employment relationship. In such a relationship, some of what the employer requires of the employee, in terms of how, when and where the employee should provide his or her services in the conduct of the employer's business, may be expressly set out in the employee's contract of employment, position description or verbally by the employer upon the employee commencing employment. However, the practicalities of a working relationship are not ordinarily conducive of formalism or prescriptive instructional processes as there are a myriad of circumstances and tasks that are part of an employee's job that cannot, and need not, be foreshadowed in advance. As such, much of what is required of an employee must necessarily be left to be implied and, when what is required by the employer is the subject of a specific request, instruction or direction, that will almost always be done informally. Employees will necessarily be required to infer, from generalised expectations set by an employer, the custom and practice of the workplace, ongoing general arrangements, the nature of the work and the nature of their duties and skills (amongst other surrounding circumstances), what it is that their employer specifically requires of them in any given circumstance and therefore what it is they are authorised to do in a given and specific situation. 79 In the practical field of one person requesting another to provide work, even where that occurs on a one-off basis rather than in the context of a subsisting relationship, the law of restitution recognises that such a request may be made expressly or impliedly from the "actions of the parties in the circumstances of the case" (Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635 at [89] (Gummow, Hayne, Crennan and Kiefel JJ)) or "from the communications and the circumstances in which [the request] occurred" (Edwards v Australian Securities and Investments Commission (2009) 264 ALR 723 at [138] (Macfarlan JA with whom Spigelman CJ at [1] and Campbell JA [2] agreed)). 80 There are several examples in the cases demonstrating that an employer's authorisation for overtime to be worked may be inferred from the circumstances of the case. In Polan v Goulburn Valley Health [2016] FCA 440, Mortimer J contrasted a provision of an industrial agreement dealing with the recall to work of an employee with an overtime provision. Her Honour relevantly said this at [75]: In contrast, overtime is concerned … with an employee working reasonable additional hours, which are authorised by the employer … However, the authorisation may be express or implied. It may be the result of an ongoing understanding or arrangement between the employer and the employee or it may be the result of a single event. Unlike the recall power, in my opinion the industrial instruments do not intend overtime to be confined to the issuing of a specific direction or instruction by an employer to an employee to perform duties on a specific occasion. (Emphasis added.) 81 In that case, the applicant, who was employed as a rostering clerk, claimed that she had been recalled to duty on occasions where she took telephone calls whilst not at her workplace from junior doctors at all times of the day and night requiring her to alter rostering arrangements. That claim failed, Mortimer J determining that the rostering clerk was not recalled to duty on such occasions but was instead performing overtime. That the overtime performed was authorised by the employer was inferred "because the making of these [rostering] arrangements was a core aspect of the duties of [the rostering clerk's] employment, and it was contemplated by both the respondent [employer] and the applicant that the need for these arrangements could arise at any time of the day or night": at [84]. 82 In Logan v Otis Elevator Company Pty Limited (2001) 107 IR 253, Moore J construed an award provision that provided that an employer "may require" an employee to work reasonable overtime as at least implicitly providing that the overtime work performed pursuant to such a requirement had to be expressly or impliedly authorised by the employer in order to attract payment: see at [40]. His Honour held at [43] that authorisation for the performance of overtime impliedly flowed from the expectation that the employee would work 40 hours per week to complete his duties, even though neither the employer nor the employee were aware that an award applied to the employee's employment which provided that work beyond the prescribed 38 hour week had to be paid for at overtime rates. 83 At [40]-[41], Moore J relevantly referred to a number of longstanding authorities which have recognised that overtime may be impliedly authorised: [40] As noted by Macken J in White v Mrs Murphy's Country Fried Chicken Pty Ltd (1984) AR (NSW) 794 at 801: ''No employee is entitled to the payment of overtime or penalty rates unless such overtime is authorised by an employer and self-authorisation of overtime by employees trusted to work alone or in responsible managerial positions has never been recognised by tribunals. Overtime under such circumstances is allowed only where it is expressly or impliedly authorised and it may be authorised by implication where the circumstances permit of no alternative.'' [41] These observations have been referred to with approval in at least three later authorities: Maciver v Hilton Nursing Home Pty Ltd, Wheatley v Armstrong [1995] NSWIRC 3 (Marks J) and Keft v Kameruka Estates Pty Ltd [1992] NSWIRC 16 (Bauer J). In Walkley v Dairyvale Co-operative Ltd (1972) 39 SAIR 327, Olsson J referred (at 359) to a similar principle deriving from a Western Australian decision, Caratti v Sullivan (1964) 44 WAIG 236. 84 A further judgment worthy of being mentioned is Scotto v Scala Bros Pty Ltd [2014] FCCA 2374, particularly because there are some factual parallels with at least some of the claims made by Dr Bolton. In that case, an employee of a combined delicatessen and café (shop) claimed that he had been underpaid, including in relation to hours of work performed beyond the ordinary hours prescribed by the relevant award and payable at the overtime rate. To substantiate his claim, the employee had to demonstrate that he was authorised to work the hours for which he claimed payment. Judge Cameron determined at [382]-[389] that the employer had "at least implicitly" authorised the employee to work the trading hours of the shop, as well as the time necessary to carry out the preparatory work required to set up the shop prior to the commencement of trading and the time required to pack and clean up after the cessation of trading. 85 Peninsula Health contended that the word "authorised" suggested that a formal sanction was required. However, it did not elaborate as to what formality would require and, sensibly, did not suggest that the sanction had to be in writing. 86 To my mind, the obligation imposed upon an employer by cl 36.2(a)(ii) to pay an employee in accordance with that clause is engaged by, first, the existence of, as a matter of fact, a request, requirement or approval made or given by the employer for the employee to perform work in excess of rostered hours and, second, the due performance of that work. Clause 36.2(a)(ii) is regulating a transaction. A transaction of that kind, where additional work is exchanged for payment, can be dealt with without formality. Whilst requests, requirements or other approvals made or given to an employee by his or her employer may be done expressly, they are often left to implication and the cases demonstrate that to be so in relation to the working of overtime. 87 As indicated, cl 36.2(a)(ii) is intended to be protective of the employee and the employer. The requirement that overtime hours of work be authorised is designed to protect employers from having to pay for hours not requested, required or approved. That requirement does not intend to protect the employer by regulating how an employer can request, require or approve overtime. That matter is simply left to the employer. There is no apparent basis for thinking that the clause intends to protect the employer against the consequences of its own conduct. That is further discussed at [104]-[108] below. 88 It may be accepted that authorisation given expressly is apt to be clearer than authorisation given impliedly. But greater clarity has a practical cost in the practical field which provides the relevant context for construing cl 36.2. If greater clarity was prioritised over practicality, it is likely that the framers of the clause would have explicitly stated that only express authorisation would suffice. 89 For those reasons, I have concluded that, in order to attract the payment obligation imposed by cl 36.2, what is required by cl 36.2(a)(ii) is the existence in fact of an authorisation howsoever given by the employer. Accordingly, an authorisation given impliedly to an employee for that employee to perform work in excess of rostered hours would, in conjunction with the performance of that work, engage the obligation in cl 36.2 for the employee to be paid in accordance with that clause. The answers to each of common questions 6 and 7 are therefore "Yes".

Clause 36.3 and common questions 8 and 9 90 Before turning to more directly considering Peninsula Health's contention that it is only an authorisation given in accordance with an authorisation process formally adopted by the employer that engages the payment obligation in cl 36.2, it is necessary to draw attention to cl 32.3 of the 2013 Agreement and cl 36.3 of the 2018 Agreement. Those clauses were respectively the subject of common questions 8 and 9: 8. Whether clause 32.3 of the 2013 Agreement limits the ways in which unrostered overtime can be authorised by the Respondent? 9. Whether clause 36.3 of the 2018 Agreement limits the ways in which unrostered overtime can be authorised by the Respondent? 91 I will hereafter address cl 36.3, although everything here said is intended to apply in respect of the corresponding clause in the 2013 Agreement and the corresponding question (ie common question 8). 92 I presume that common question 9 was raised by the applicants as an appropriate common question because, by its Defence, Peninsula Health referred to cl 36.3 of the 2018 Agreement and relied upon it in support of its denial that, as a matter of fact, it gave its authorisation for Dr Bolton to perform work in excess of her rostered hours. In the Defence, cl 36.3 was relied upon in the context of Peninsula Health pleading that only overtime which had been authorised under an overtime protocol implemented by Peninsula Health in July 2015 in accordance with cl 36.3 was payable in respect of Dr Bolton working in excess of her rostered hours. Peninsula Health proposes that question 9 be answered "Yes" (and to be clear, the same answer is proposed for question 8). That position seems consistent with Peninsula Health's Defence and its opening written submission. 93 By its opening written submissions, Peninsula Health contended that if a protocol of the kind required by cl 36.3 exists, that protocol will deal with all authorisation of overtime and that there is no scope for an alternative mechanism for the authorisation of overtime to that provided for by such a protocol. Peninsula Health essentially contended that cl 36.3 provided that overtime will only be payable if it meets the criteria required by a protocol that must exist under that clause and that overtime hours worked that do not meet the authorisation requirements of such a protocol do not attract payment under the 2018 Agreement. 94 However, by its closing submissions, Peninsula Health seems to have substantially adjusted its construction of cl 36 and the nature of its reliance upon cl 36.3. As I have stated, Peninsula Health's position in its closing submissions was that any policy or procedure adopted by the employer dealing with the authorisation of overtime (and not just a protocol adopted in compliance with the obligation imposed by cl 36.3), controlled whether the authorisation as required by cl 36.2(a)(ii) had been given by the employer. Although in its closing submissions Peninsula Health referred to cl 36.3, it did not explain how its construction relied upon that clause other than to say in passing in a footnote that "[t]he Policy, Guideline, and any associated verbal directions issued to Dr Bolton are underpinned by clause 36.3 of the 2018 Agreement". Rather, it expressly contended that none of the policies it had adopted and relied upon in the application of its construction depended for their force, effect or operation on cl 36.3. Despite that, Peninsula Health by its closing submissions proposed that question 9 be answered by affirming that cl 36.3 did limit the ways in which unrostered overtime can be authorised. 95 In the circumstances, I will proceed on the basis that the questions raised by common questions 8 and 9 remain at issue and should be answered. 96 The starting point for addressing those common questions is the recognition that cl 36.2(a)(ii) deals with when "[o]vertime is payable" and, for the reasons already given, relevantly provides in subcl (ii) that overtime is payable when the employee has worked hours in excess of rostered hours where an authorisation is given by the employer. Clause 36.2(a) is only concerned with the existence of an authorisation. In contrast, cl 36.3 is concerned with bringing a particular kind of authorisation into existence by requiring the adoption of a process intended to facilitate it. 97 Clause 36.3 is dealing with providing a process for an employee to obtain an authorisation for working in excess of rostered hours in circumstances where such an authorisation could not have been given by the employer in advance of the performance of the work for which the overtime is claimed. It seeks to facilitate the employer giving such an authorisation by requiring that an employer establish a protocol with rules that govern that process consistently with the structure laid out by para (b) of the subclause. Its purpose is facilitative and not restrictive. There is nothing in either the text or context of cl 36.3 to support the proposition that its purpose is to negate, fetter or otherwise limit an authorisation given by the employer. All that is necessary for the purposes of cl 36.2(a)(ii) is the employer's authorisation. That authorisation may or may not have been obtained because the cl 36.3 process facilitated it but, once obtained, the authorisation operates without any limitation imposed by cl 36.3. 98 Even if, contrary to the view just stated, cl 36.3 is capable of limiting the way in which unrostered overtime can be authorised, that capacity cannot rise higher than its source. The process required by cl 36.3 is specifically limited to a process for dealing with overtime work "that cannot be authorised in advance" of the performance of that work. As will be explained below, each and every claim made by Dr Bolton is based upon an implied authorisation given by Peninsula Health prior to the performance of the overtime work claimed and therefore cl 36.3 has no application and could not operate to limit the operation of cl 36.2(a)(ii) upon Peninsula Health's obligation to pay for the performance of that work. 99 My conclusions are supported by the historical context for cl 36.3, the veracity and relevance of which was not contested by Peninsula Health. The predecessor to cl 36.3 first appeared in the Australian Medical Association (Victoria) Limited, Australian Salaried Medical Officers Federation Victorian Branch, Victorian Public Hospital Sector (Hospital Medical Officers) Multi-Employer Certified Agreement 2002 (2002 Agreement). In the course of bargaining for the 2002 Agreement, the parties entered into the Medical Remuneration Review Agreement 2002 (2002 Heads of Agreement). That document relevantly records the reason for the inclusion of the predecessor to cl 36.3 which was to address the "concern that aspects of the [1999 Agreement] are not being observed … in respect to the non-payment of unauthorised but valid overtime". There is no indication in the 2002 Heads of Agreement that cl 36.3 was in any way intended to limit the obligation on the employer to pay for overtime that was authorised. Rather, the contrary intention is evident which was to protect, not restrict, the right of Doctors to be paid for overtime that could not have been authorised in advance through the introduction of a protocol that prescribed certain criteria for payment. 100 For all those reasons, the answer to each of common questions 8 and 9 is "No".

Is the payment obligation in cl 36.2(a)(ii) only engaged where authorisation is given in accordance with the employer's prescribed process? 101 My conclusions on common questions 8 and 9 do not, however, determine whether Peninsula Health is or is not correct to contend that only an authorisation given by the employer consistently with an authorisation process formally adopted by the employer can engage the payment obligation under cl 36.2(a)(ii). The basis for relying on cl 36.3 to support that construction was never explained and is not otherwise apparent. 102 No other surrounding text was said by Peninsula Health to support its construction and there is nothing in the text of cl 36.2(a)(ii) itself which provides any apparent support. As stated already, and for the reasons so stated, cl 36.2(a)(ii) is focussed upon the existence in fact of an authorisation and not with the means by which, or the process or procedure through which, authorisation is given by an employer. 103 Peninsula Health contended that its construction was supported by the fact that authorisation is a deliberate and conscious act of the employer and thus the circumstances under which it is given are a matter for the employer. 104 So much may be accepted, but that acceptance serves to undermine rather than support the construction contended for by Peninsula Health. Clause 36.2(a)(ii) need not provide the employer with control over when or how it authorises the working of overtime. An employer already has that capacity. An employer, just like any other person, can make a request or requirement or give an approval in every way, shape or form which the law recognises to be legally effective, including with or without formality, expressly or impliedly. 105 There is no discernible need for the 2018 Agreement to provide the employer something it already has. What Peninsula Health's construction would achieve is the curtailment of an employer's capacity to give an effective authorisation. Why would the framers of the 2018 Agreement have intended that? Did they really intend to protect the employer from itself, so that when an employer actually gives its authority that authority would be ineffective because it was not given in accordance with the employer's formally adopted means of giving authorisation? 106 It might well be the case that an employer's preferred means of providing authorisation for overtime has advantages for the employer. However, the point is that there is no discernible reason why the 2018 Agreement would intend to provide an employer the means of controlling that which it already controls. 107 There may well be reasons why an industrial instrument may want to regulate the authorisation of overtime which, absent some other regulation, is under the employer's complete control. It is more likely, however, that any such regulation will seek to address an employer's failure to provide authority when authority should have been given (as does cl 36.3), rather than to limit the effectiveness of authorisation actually given. Further, it is unlikely that where the industrial parties saw a need to intervene in order to regulate the control over authorisation already reposed in the employer, they would do so by delegating to the employer the unilateral capacity to set the rules. It is even more unlikely that such an unusual intent would have been given effect other than by clear and express language. Furthermore, the construction contended for by Peninsula Health would lead to absurd results and very significant unfairness. For instance, where a manager expressly, but verbally, directed an employee to perform overtime work and the work was done, the employee would not be entitled to any payment where the direction was not given in accordance with the policy adopted by the employer that overtime can only be expressly authorised in writing and only where signed and dated by the manager. 108 The recognition that authorisation is the act of the employer requires attention to be given to whether or not, as a matter of fact, the employer has given its authority. The giving by the employer of its authorisation (whether expressly or impliedly) will not be denied because the employer has failed to follow its own formal process or procedure for the giving of authority. The fact that the employer has prescribed a procedure for providing its authorisation may serve to deny the conclusion in any particular case that the conduct of the employer, which may be in conflict with its prescribed process, demonstrates that authorisation was impliedly given. However, that consideration goes to the factual question of whether implied authorisation was actually given by the employer. That an employer has adopted a procedure for providing its authorisation of overtime is not relevant to the legal question of what kind of authorisation engages the payment obligation imposed by cl 36.2(a)(ii). 109 For all those reasons, Peninsula Health is wrong to contend that there is no scope for the operation of some implied authorisation of overtime because cl 36.2(a)(ii) and cl 36.3 give Peninsula Health the capacity to adopt an authorisation process which will govern whether or not an authorisation actually given by Peninsula Health is effective for engaging the payment obligation in cl 36.2(a)(ii). It follows that it is not necessary to consider the terms of the policies adopted by Peninsula Health because, whatever be their terms, the policies cannot limit the operation of cl 36.2(a)(ii). It also follows, notwithstanding the submissions of Peninsula Health to the contrary, that it is immaterial whether or not the policies were communicated to Dr Bolton, incorporated into her contract of employment or are able to be characterised as lawful and reasonable instructions or directions. That conclusion stands even if the communication, incorporation and characterisation contended for had been accepted. 110 Furthermore, even if the policies relied upon by Peninsula Health were binding on Dr Bolton and required her to observe the policies in making a claim in relation to overtime work, that contractual obligation owed by Dr Bolton: (i) does not restrict Peninsula Health's capacity to authorise the working of overtime in a manner which accords with those policies; and (ii) is not capable of defeating Dr Bolton's entitlement to be paid for overtime worked and authorised in accordance with cl 36.2(a)(ii) of the Agreement. Neither Dr Bolton nor Peninsula Health can "contract out" of the obligations and entitlements imposed or conferred by cl 36.2. The principles which prohibit contracting out are addressed when I deal with estoppel.

WAS THE OVERTIME WORK CLAIMED BY DR BOLTON AUTHORISED BY PENINSULA HEALTH? 111 It is convenient to commence with a consideration of the correct approach for the Court to take in assessing whether, for the purposes of cl 36.2(a)(ii), an implied authorisation was given by Peninsula Health. The discussion should commence by recognising that an authorisation of the kind contemplated by cl 36.2(a)(ii), whether manifested in a request, a requirement or an approval, involves the making of a communication. As Edelman and Steward JJ recently stated in Realestate.com.au Pty Ltd v Hardingham (2022) 406 ALR 678 at [82] (REA), "[i]n communication between people, meaning can only be conveyed by expression in words or by implications from conduct and circumstances. There is no communication that is not expressed or implied". 112 Communication must always be understood in context, including by drawing inferences to identify its implied content, inference being a method of legal reasoning that identifies the context of an implication: REA at [83] and [85] (Edelman and Steward JJ). 113 As a communication is made by one person to another, its content may be differently understood by those persons. But where the purpose of the communication is not simply informational but includes enticing or moving the receiver of the communication to act or exercise its interests in a particular way, what is objectively conveyed by the communication to its intended receiver, rather than the subjective uncommunicated intent or understanding of the maker of the communication, will be of significance. The objective theory of contract operates on that assumption (REA at [83]) as does trade practices law where, in the context of whether a communication is misleading or deceptive, what is conveyed by the communication is objectively discerned: see Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45 at [103]-[107] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ); Global One Mobile Entertainment Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 134 at [108] (Greenwood, Logan and Yates JJ). 114 To my mind, cl 36.2(a)(ii) also operates upon such an assumption, so as to require the content of the communication constituting the authorisation to be objectively discerned by reference to what the communication reasonably conveys to its recipient. That construction is consistent with balancing the dual protective purposes of the subclause of providing that an employee be paid for work which he or she has performed at the request, requirement or approval of the employer and protecting the employer from being required to pay for work that it has not requested, required or approved. 115 The applicants did not expressly frame their submissions on the basis that the conduct and circumstances they rely upon for the implied authorisations contended for are to be objectively discerned. However, their submissions essentially proceeded on that basis. Although it is not entirely clear from the written submissions relied upon, senior counsel for Peninsula Health confirmed that any implication was to be objectively discerned. In discussing whether authorisation could be implied from the conduct and circumstances relied upon by the applicants, Peninsula Health submitted that such an implication "depends on the presumed intentions" of Peninsula Health arising from those circumstances which indicated its position on authorisation. Given what was said by senior counsel, the reference made in written submissions to the "presumed intentions" was, I presume, intended to refer to that intent objectively discerned. However, in other parts of its submission, and perhaps only intended to be confined to its case that there is no scope for an implied authorisation in the circumstances of Peninsula Health, Peninsula Health contended that, because an authorisation is an act of the employer, it is only the actual intention of the employer, as to how, and in what circumstances, it provides authorisation, that matters. If that submission was intended to say that the uncommunicated subjective intent of the employer is relevant to whether an implied authorisation was given by reason of conduct and circumstances, and/or relevant to discerning what is conveyed by that implication, I would reject it for the reasons canvassed above. 116 It is axiomatic that what is conveyed by a communication implied from conduct or circumstances has to be assessed by reference to all of the conduct and circumstances which speak to what the communication should be reasonably understood to convey. The relevant course of conduct is to be examined as a whole and the content of the communication is to be determined in light of the relevant surrounding facts and circumstances: see Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 at [39] (Gleeson CJ, Hayne and Heydon JJ), [109] (McHugh J); Global One at [108] (Greenwood, Logan and Yates JJ). Within the relevant course of conduct and relevant circumstances which must be considered, there may be different and contrary messages conveyed, including by express communications. Where that is the case, the mixed messages must be reconciled in order to ascertain what was truly conveyed. 117 A variety of tools of analysis may be employed to reconcile mixed messages. In trade practices law, the courts, in assessing whether a misleading or deceptive representation has been made, have reconciled mixed messaging by identifying the "dominant message": see, eg, Australian Competition and Consumer Commission v AGL South Australia Pty Ltd [2014] FCA 1369 at [148]-[172] (White J). In that field, and with respect to communications in the nature of disclaimers or qualifications, mixed messaging has been reconciled by reference to whether one message has been neutralised by the other, with consideration given to factors such as the clarity or prominence of the disclaimer or qualification: see Australian Competition and Consumer Commission v GlaxoSmithKline Consumer Healthcare Australia Pty Ltd (2019) 371 ALR 396 at [33] and the cases there cited by Bromwich J. Those are tools of analysis which serve the underlying inferential reasoning process being utilised to reconcile mixed messages. 118 Submissions were made by Peninsula Health under the heading "Implication of authority". They were contained in that part of Peninsula Health's written closing submissions addressing the construction issue raised by its first response and thus were put in support of Peninsula Health's contention that, in the circumstances of Peninsula Health, there is no scope for an implied authorisation. Those submissions were not expressly relied upon for the alternative and second response made by Peninsula Health that, accepting the applicants' argument that there was scope for an implied authorisation, no finding should be made that an implied authorisation was given by Peninsula Health to Dr Bolton. In case the intended reliance was broader than what I perceive it to have been, I should say that I reject that, in the process of the inferential reasoning required to objectively discern whether authorisation was impliedly given: (i) an express direction (or other express communication) from the employer will always defeat an implied authorisation; and (ii) the rules of contractual construction which dictate whether a contract includes an implied term are of relevance (in this respect, Peninsula Health relied on the well-known statement of the Privy Council in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283 (Lord Simon of Glaisdale, Viscount Dilhorne, Lord Keith of Kinkel) as discussed in Byrne v Australian Airlines Ltd (1995) 185 CLR 410). 119 Broadly stated, the conduct and circumstances relied upon by the applicants to demonstrate that Peninsula Health impliedly authorised the work performed by Dr Bolton in excess of rostered hours were one or more of the following: (i) the fact that the duties and responsibilities of Dr Bolton included each of the tasks performed outside of her rostered hours; (ii) communications made by or on behalf of Peninsula Health as to how and when particular tasks were to be performed; (iii) the fact that it was necessary for Dr Bolton to perform the work outside of her rostered hours due to the rostering and work structure in each of her rotations and, in the case of the completion of medical records, the fact that there was insufficient time during her rostered hours to complete the required work; (iv) Peninsula Health's knowledge (both constructive and actual) that there was insufficient time during Dr Bolton's rostered hours to complete the work, or that Dr Bolton was performing the work outside of her rostered hours; and (v) Peninsula Health's failure to direct Dr Bolton not to perform the work outside of her rostered hours. 120 I accept that each of the conduct or circumstances relied upon by the applicants is capable of being relevant to whether or not, in respect of any particular occasion, Peninsula Health gave its implied authorisation for Dr Bolton to perform work in excess of her rostered hours. Each of those factors is directed to facts which may be informative of the expectation set by Peninsula Health as to the work required of Dr Bolton. Although the applicants submitted that the implied authorisation they contended for arose directly from those facts, in my view, the assessment is better made by first considering whether the facts demonstrate an expectation set by Peninsula Health and then considering whether, from the objectively discerned existence of that expectation, an implied authorisation was given. 121 It is, I think, of particular importance in a case such as this to focus upon the work expectations set by the employer in considering whether or not a request or a direction that work be performed in a particular way or at a particular time was made by the employer. In most employment arrangements, it is simply not practicable for employees to be closely supervised and directed and, accordingly, what an employer will do is communicate the outcome it expects to employees rather than provide a series of specific directions as to how, when and in what order the tasks necessary to obtain that outcome are to be performed. In those circumstances, the requirements made of the employee will be mainly implicit rather than express and will often arise out of the expectations set by the employer. Further, expectations set by the employer will often not be set expressly but will themselves be implicit from the circumstances, including the nature of the employee's duties and the way in which, or the pattern in which, work is ordinarily performed to the apparent satisfaction of the employer. 122 As the evidence demonstrated, doctors working in a hospital are highly skilled employees who are not closely directed. What is required of them in relation to any particular task must generally be left to be ascertained by reference to generalised expectations set by those who supervise them in the context of the clinical demands imposed by the nature of their duties and the patients that they must care for in accordance with accepted standards of clinical practice. 123 The capacity for an expectation set by an employer to provide a basis for a finding that overtime work has been authorised is supported by the observation made by Mortimer J in Polan at [75] that authorisation may be implied from "an ongoing understanding". The reasoning in Scotto, as discussed at [84] above, is also supportive. There are factual parallels between this case and Scotto, where the tasks necessary to be performed before the shop could commence trading, which were performed outside of the employee's rostered hours, were found to have been impliedly authorised. 124 I also accept Peninsula Health's submission made in furtherance of its second response that what the circumstances show with respect to the likely position of the employer regarding authorisation is instructive as to whether, objectively discerned, the employer has impliedly given its authorisation on any particular occasion. 125 It is notable, however, that by its written submissions Peninsula Health only relied upon the following circumstances to demonstrate its position and presumed intent regarding authorisation: (a) It did not want junior doctors working extensive unrostered overtime; (b) It wanted junior doctors to maintain a work life balance; (c) It wanted to be able to regulate and monitor the overtime worked; (d) It only expected unrostered overtime when there was a clinical need; and (e) It expected interns to raise the issue of working excessive overtime with senior doctors. 126 I accept that each of those circumstances is capable of being relevant to objectively discerning whether or not, in any particular case, Peninsula Health impliedly authorised Dr Bolton to perform overtime and the extent of the authorisation given. 127 What was not relied upon (at least expressly and substantively) in the written submissions of Peninsula Health for the second response were the four overtime policies it relied upon in support of its first response that there was no scope for implied authorisation in the circumstances of Peninsula Health. Those policies, which I should now identify, were: (i) an Overtime and Time in Lieu policy dated 24 July 2015 (as amended from time to time) subsequently replaced by a policy dated 21 October 2020 (Policy); (ii) a Guideline for Managing Junior Medical Staff Overtime dated 21 August 2015 (as amended from time to time) (Guideline); (iii) relevant parts of a handbook headed "Department of Medicine - Essential Information" (the relevant parts of which are set out below) (Department of Medicine Overtime Policy); and (iv) a process applicable to the Department of Surgery, including the Plastics unit in that Department (Department of Surgery Overtime Policy). 128 In closing oral submissions on the final day of the trial, and in accepting that the existence of an implied authorisation is to be objectively discerned, senior counsel for Peninsula Health said this: Yes, it is objective. But we would say the court, in forming that view, would have to give a fair bit of consideration to what the express position of the employer is, what the purposes described for the various documents … that we've taken [the Court] to. 129 Although somewhat ambiguous, when read in context, I understand senior counsel to have been contending that the existence and content of those four policies described above are relevant circumstances which must be taken into account in objectively discerning whether, from conduct and circumstances, an implied authorisation was given by Peninsula Health. 130 It may be fairly said that the applicants had little opportunity to directly deal with this issue given the late juncture at which it was raised by Peninsula Health. Nevertheless, the Court clearly raised during the hearing that, in determining whether an implied authorisation had been given, the Court would likely need to reconcile potentially conflicting messages conveyed by all of the relevant facts, including the policies relied upon by Peninsula Health. In the end, I do not consider that either party was really disadvantaged by the fact that both sets of written submissions seem to have largely avoided grappling with an issue which I regard to be important. I will therefore have regard to the overtime policies of Peninsula Health and consider whether those policies either diminish or negate an inference that an implied authorisation was given by Peninsula Health to Dr Bolton in respect of each category of overtime work which Dr Bolton claims to have worked. 131 That matter is best considered by reference to the specific conduct and other circumstances relevant to each of the different categories of overtime work claimed to have been performed by Dr Bolton. That will be done below. It is convenient, however, to now set out the relevant parts of some of the policies relied upon by Peninsula Health, as well as address what can generally be said about the significance of those policies to the exercise I need to undertake. I intend to utilise the following observations as a guide in assessing the significance of any one or more of the policies to any specific consideration that may be required in relation to each category of overtime work that Dr Bolton claims to have performed. 132 Where an employer has clearly and unequivocally communicated to its employees that it will hereafter only authorise the working of overtime through a particular process, and uniformly only authorises overtime work through that process, there will likely be little room to imply from other conduct and relevant circumstances that the employer has requested, required or otherwise approved the working of overtime which has not been authorised under that process. However, the greater the ambiguity of the process itself or the communication regarding the significance and application of the process, the greater the room for such an implication. Likewise, the further from uniformity the actual practice or application of the communicated intent of the employer to only authorise overtime through the process, the greater the room for an implication that, from other conduct and circumstances, the employer has requested, required or otherwise approved the working of overtime which has not been authorised under the process. That is because a process that is unclear, uncommunicated or rarely applied is unlikely to have much force in conveying the employer's intent in any assessment made against countervailing conduct or circumstances which support an implied authorisation given by the employer otherwise than under the process. Such a policy is therefore unlikely to diminish or negate an authorisation implied from other conduct or circumstances. 133 It will be necessary in relation to each of the overtime policies relied upon by Peninsula Health to evaluate their impact, if any, upon the capacity to infer from other conduct and circumstances whether Peninsula Health has given its implied authorisation for overtime to be worked on the particular occasions that the applicants claim Dr Bolton worked overtime but was not paid. In this section, I will evaluate the possible impact of the Policy and the Guideline which, on their face, are applicable to all staff in the case of the Policy or all junior medical staff in the case of the Guideline. I will address the Department of Medicine Overtime Policy and the Department of Surgery Overtime Policy when I later deal directly with the claims made in relation to those departments.

The Policy and the Guideline 134 The Policy and Guideline were both in place during the whole period relevant to Dr Bolton's claims and the claims of group members. The stated purpose of the Policy and Guideline is the same - "to ensure that ... [u]nrostered overtime, in appropriate circumstances, is duly authorised and remunerated". The Policy and the Guideline define overtime in the same way and set similarly detailed and prescriptive requirements for claiming overtime. Peninsula Health submitted that, taken together, the Policy and the Guideline "required that for overtime to be paid" it must be: (a) authorised either in advance or at the time of working, or retrospectively; (b) performed in order to meet a demonstrable clinical need that could not have been met by other means; and (c) recorded on a doctor's timesheet and/or on an overtime claim form, in either case no later than completion of the relevant pay fortnight. 135 The Guideline provides that only the "Clinical Director or another member of senior medical staff and preferably a Head of Unit" may authorise overtime whereas the Policy permitted a delegate of the Head of Unit or Clinical Director to authorise overtime. It is clear enough, however, that each of the Policy and the Guideline contemplates that Peninsula Health's authorisation will only be given under those policies when it is expressly given. 136 I consider that the Policy is somewhat ambiguous as to whether it only deals with the retrospective authorisation of overtime (the applicants' position) or whether it deals with both the prospective and retrospective authorisation of overtime (Peninsula Health's position). The better view is that it is intended to directly deal with both. 137 However, even if the terms of the Policy were crystal clear in providing that Peninsula Health intended that it would only authorise all overtime where it has given an express authorisation in accordance with the process provided for by the Policy, the existence of those terms do not demonstrate that Peninsula Health's intent was objectively so understood. That is because the evidence demonstrated that employees of Peninsula Health who engaged in clinical work in the departments of Medicine and Surgery were likely not aware of the Policy and therefore unaware of any intent of Peninsula Health that the terms of the Policy sought to convey. I come to the same conclusion in respect of the Guideline. 138 Dr Bolton, Dr Phan, Dr Brickle, Dr van Berkel, Dr Read and Dr Toogood all gave evidence that they had either never seen, or had no recollection of seeing, the Policy. All of the clinical witnesses called by Peninsula Health were either not aware of the Policy or, if they were aware, had never applied the Policy in the course of their work at Peninsula Health. For example, Dr Carrillo said in cross-examination that he had no recollection of seeing the Policy and "certainly couldn't tell you what's in it". Dr Terrill and Dr Nye had no recollection of ever seeing the Policy. Dr Braun's evidence was that he "would have" seen the Policy when it was created but "[t]hat was a long time ago" and he had not referred to it since that time until preparing for this proceeding in 2021. He also accepted that junior doctors were not provided with, or directed to, the Policy. The only witness who knew about the Policy was Mr Watts, a non-clinical staff member in the MWU. 139 With respect to the Guideline, Dr Bolton, Dr Phan, Dr van Berkel, Dr Read, Dr Toogood, Dr Marshall and Dr Terrill said they had never seen the Guideline before. Dr Braun told the Court he "may have" seen the Guideline but could not recall. 140 Peninsula Health contended that the Guideline was referred to Doctors in Training, including Dr Bolton, at their orientation and that the Guideline referred to the Policy. However, the evidence is not that clear. The only basis for that contention was the evidence of Mr Watts who said that he did not provide hard copies of either the Policy or the Guideline to Doctors in Training at their orientation. However, he did refer them to a database called "Prompt", which was Peninsula Health's electronic document management system, where all of the "thousands" of policies and guidelines were stored. Mr Watt accepted in cross-examination that junior medical staff had access to "Prompt". He said he told junior medical staff "about the overtime policies in the orientation" but he did not expressly say that he referred to the Guideline or the Policy or, directly or indirectly, to the content of those policies. 141 At best, all that the evidence demonstrates is that the Policy and Guideline were accessible to Doctors. But the evidence that everyone from junior doctors to every Head of Unit, and even the Clinical Director of the Department of Medicine himself, were not aware of the Policy or the Guideline, or had never applied them, demonstrates that it is unlikely that the medical workforce in the departments of Medicine and Surgery accessed the database to familiarise themselves with the Policy or the Guideline. 142 In circumstances where the Policy and the Guideline were largely unknown and never applied during the relevant period, and in circumstances where (as is later discussed) overtime was extensively worked by Doctors in the Department of Medicine and the Department of Surgery, the objectively discerned understanding within those Departments could not have been that the only way that Peninsula Health would request, require or approve the working of overtime was if processes under the Policy or the Guideline were followed. There is therefore a great deal of room, and no relevant impediment, for implying that, notwithstanding the existence of the Policy and the Guideline, Peninsula Health may have on particular occasions requested, required or otherwise approved the working of overtime in the departments of Medicine and Surgery which had not been authorised under those processes.

First General Medicine rotation in the Department of Medicine - January 2019 to March 2019 143 Dr Bolton undertook her first rotation in the General Medicine unit at Frankston Hospital from January 2019 to March 2019. The General Medicine unit sits within the Department of Medicine. Dr Braun gave uncontested evidence that the Department of Medicine provides a large range of general and speciality inpatient and outpatient medical services from the Frankston and Rosebud Hospital sites. Dr Nye deposed that, in 2019, there were approximately 60 junior medical staff and 13-15 senior medical staff working in the unit. Dr Bolton deposed that all interns at Peninsula Health rotate through the General Medicine unit at least once. 144 Dr Bolton's pleaded duties in the General Medicine unit, as admitted by Peninsula Health, included preparing for ward rounds, undertaking ward rounds and completing patient medical records, including discharge summaries, in a timely manner. Dr Bolton alleges that at various times she performed each of those duties in unrostered overtime hours and that the hours so worked were authorised by Peninsula Health. I will refer to each of the three duties in relation to which claims are made in this rotation as ward round preparation overtime, ward round overtime and medical records overtime. 145 I will deal first with ward round preparation overtime in this rotation. Before setting out the evidence, it is convenient to broadly explain what a ward round at Peninsula Health entails. Dr Bolton's unchallenged evidence was that in the General Medicine unit ward rounds involved her team, comprising two interns, two registrars and a consultant, visiting each patient at the patient's bedside, examining the patient, assessing their condition and determining the patient's care plan, including any further investigations or referrals that needed to be performed. Ward rounds would usually be "split" meaning that, after an initial team consultation, one intern and one registrar would see half of the patients and the other intern and registrar would see the rest, with the consultant moving between the two groups. Dr Bolton and Dr Curtin deposed that an intern's role during ward rounds was to carry the team phone, push the "work station on wheels" (a mobile computer station) around the ward and to take notes documenting each of the patient reviews undertaken during the ward round in the patient's electronic medical records. Whilst at the bedside, the registrar or the consultant would conduct an assessment with the patient, which would involve speaking to them, speaking to the bedside nurse and examining the patient. The registrar or consultant would also verbalise their findings as they went so that those findings could be recorded by the intern in the patient's notes.

Ward round preparation overtime 146 Dr Bolton's evidence, which is confirmed by her roster for this period, was that during her First General Medicine rotation she worked a "rotating roster" meaning that she alternated each week between commencing work at 8 am or 8.30 am. She commenced in week 1 of her rotation with 8 am starts. This evidence is not controversial between the parties. It is the applicants' case that during the First General Medicine rotation, Peninsula Health directed Dr Bolton to undertake ward round preparation prior to her rostered commencement time on weeks 1, 3, 5, 7 and 9 of the "rotating roster" when she was rostered to commence work at 8 am. 147 The applicants contended that ward round preparation involved the task of preparing a patient list which had to be performed by Dr Bolton prior to the commencement of her rostered hours and thus during hours in excess of her rostered hours. It is uncontentious that the patient list had to be available in order to conduct ward rounds and therefore the task of preparing it had to be completed by 8 am when a handover meeting, which preceded the conduct of ward rounds, commenced. 148 Dr Bolton's evidence was that she performed the task prior to 8 am because there was an "expectation" that she attend the 8 am handover meeting with an updated patient list. That task, she deposed, could not be done the day before because patients were admitted overnight and it was therefore "impossible" (by which I think she meant "impractical") to pre-prepare the patient list as the work would need to be redone in the morning anyway. 149 Dr Bolton deposed to the source of the "expectation" which, as I understand the applicants' case, is the source, or at least a source, of the implied direction given by Peninsula Health to Dr Bolton that she perform the task of preparing the patient list outside of her rostered hours. Dr Bolton deposed that she participated in a "shadowing day" conducted by outgoing interns at the end of her orientation week, prior to commencing her rotation in General Medicine on the following Monday. The shadowing day was a rostered day included in the orientation program in which, according to Dr Bolton, the outgoing interns in the General Medicine unit went through the tasks expected of the incoming interns, that is, the tasks formerly performed by the outgoing interns that the incoming interns were to undertake. 150 Dr Bolton's evidence as to the function of a shadowing day was consistent with evidence given by both Dr Nye and Dr Braun. Dr Nye's evidence was that Peninsula Health "in part" delegates to outgoing interns and residents the responsibility of communicating work requirements and expectations to incoming interns and residents. Dr Nye qualified that evidence having regard to the limited nature of a "single day of shadowing". Dr Braun and Dr Nye both agreed that the intern shadowing day was an important part of an intern's orientation and that Peninsula Health recognises that there is an important and valuable role for the incoming intern to shadow the outgoing intern including because, as Dr Braun stated, the "the day-to-day work that the intern does is perhaps best explained by another intern". 151 In further deposing to the source of "the expectation" concerning the preparation of a patient list, Dr Bolton stated that, as part of the handover conducted on the intern shadowing day, the outgoing interns informed her that it was the interns' role to have the patient list "up-to-date" and that the intern was expected to turn up on time to the handover meeting with an "up-to-date list". She indicated that, in relation to that task, she was also told where information was to be found and how to rectify the list if there were any errors, including that patients whose bed cards needed to be altered should not be included so as to ensure an up-to-date and accurate list of patients. Dr Bolton identified Dr Richard Pham and Dr Dana Chemali as two interns who had worked in the General Medicine unit for the previous 12 weeks and who were the main sources of the information conveyed to her on the shadowing day as to what was expected by Peninsula Health in relation to the preparation of a patient list. 152 The evidence given by Dr Bolton as to Peninsula Health's expectation was the subject of an objection but was admitted on the basis that it was evidence of what Dr Bolton was told and an exception to the hearsay rule under s 60 of the Evidence Act 1995 (Cth). It seems to me, however, that the applicants now seek to rely upon it for the wider purpose of establishing the existence of a fact - namely, Peninsula Health's expectation in relation to the preparation of the patient list. That matter is a fact in issue for reasons I will explain. I consider the evidence can be used for that wider purpose. It is evidence of a prior representation made by Peninsula Health adverse to Peninsula Health's interests in the outcome of the proceeding and thus an exception to the hearsay rule by reason of s 81 of the Evidence Act. I consider the prior representation made by the outgoing interns was made by Peninsula Health because, consistently with the evidence of both Dr Braun and Dr Nye, those interns were delegated the function of communicating Peninsula Health's expectation. In any event, no order under s 136 of the Evidence Act limiting the use of the evidence in question was made, and Peninsula Health has taken no objection to the use of the evidence for the purpose the applicants now seek to employ it. 153 Peninsula Health did, however, contend that I should infer by reason of the applicants' failure to call Dr Pham and Dr Chemali, and pursuant to the principles in Jones v Dunkel (1959) 101 CLR 298, that the evidence of Dr Pham and Dr Chemali would not have assisted the applicants. However, it was not necessary for the applicants to corroborate the evidence of Dr Bolton by calling Dr Pham and Dr Chemali and, in any event, there is no warrant for drawing a Jones v Dunkel inference because no basis was given as to why such an inference should be drawn. As Flick and Reeves JJ said in Fair Work Ombudsman v Hu (2019) 289 IR 240 at [54]: If recourse is had to Jones v Dunkel, it is accepted that the statements in that case "give no support to the proposition that the failure to call a witness may itself provide the basis of an adverse inference. An inference must be founded in evidence": Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100 at 124 per Wilcox J. Similarly, in Marku v Minister for Justice (2015) 237 FCR 580 at [68] Kenny J observed, in part, that "[w]hile the principle may operate to make evidence or inferences that may be drawn from admissible evidence more probable, the principle does not permit a failure to call a witness … to fill gaps in the evidence or transform conjecture into inference". A failure to call a witness, it is thus accepted, cannot "fill gaps in the evidence, or convert conjecture and suspicion into inference": Legal Practitioner v Council of the Law Society (ACT) [2015] ACTCA 20 at [56] per Murrell CJ, Burns and Perry JJ (Council of the Law Society (ACT)). 154 Peninsula Health relied on evidence given by Dr Nye to dispute Dr Bolton's evidence as to what was required of an intern in relation to the task of preparing the patient list. Dr Nye gave evidence that the only task that an intern, such as Dr Bolton, was required to do prior to the 8 am handover meeting was to physically print the patient list. Dr Nye also deposed that she would have told the incoming interns during the orientation session she conducted during orientation week that they needed to print the patient list for the handover meeting. However, she recalled saying no more about it than that, save that, in the context of speaking against the cutting and pasting of medical notes, she would have spoken against the pre-population of ward round notes in advance of ward rounds. Dr Bolton attended the session conducted by Dr Nye. She agreed that Dr Nye spoke about what an intern did to some degree, but did not recall Dr Nye referring to ward round preparation involving one task only. 155 Dr Nye's evidence confirmed that Peninsula Health had an expectation that the intern who was rostered to commence at 8 am was tasked with preparing a patient list for the handover meeting. Her evidence, however, disputed the evidence given by Dr Bolton and other doctors, including Dr Brickle, Dr van Berkel and Dr Curtin, as to what that task entailed and how much time was required to perform that task. This was a task that Dr Nye had never actually performed herself. She was nevertheless of the view that it would only take a few minutes, although she acknowledged that it could take longer if there was a technical problem with the printer. 156 Dr Bolton's evidence was that the preparation of the list generally involved a number of functions beyond the physical printing of the list, directed to producing an up-to-date and correct list of the patients under the charge of her team. If a patient was missed and not included on the list she produced, she was asked to explain why by her supervisors at the handover meeting. She deposed that, on arrival at the hospital, she would pick up her team's telephone and then attend the junior medical staff office. She would there log into the computer and check the patient list on the electronic medical record called "PowerChart" and would update the list if required. Usually, updating the patient list would require a phone call to the ward in order to arrange for the patient's bed card to be changed so the bed card was listed under the appropriate unit. Her evidence was to the effect that she would check the list to ensure it was accurate and update the list if required. She would then use a separate program, what she called the "online reporting programme" via the Peninsula Health intranet, to auto-generate a list of the patients on that ward. Five copies of the list would then be printed and taken to the handover office which was located about a minute's walk away. She further deposed that, although the tasks she performed were identical each day, the time required to perform them varied based on the number of patients on the ward. Dr Bolton gave evidence that, on average, her team was responsible for between 15 to 25 patients at any one time and the number of overnight admissions could vary from none to around 10. However, she would generally have a good idea the night before how many new admissions were expected the next day. If it was quieter and new admissions were expected, the tasks would usually take longer. Less time would be required if the ward was full and the patients were known to staff, including because Dr Bolton would not have to request bed cards to be changed. On occasions, and only when she had time, she would pre-populate the patient list before ward rounds. Dr Bolton estimated that the longest time it took her to prepare the patient list was half an hour and that the shortest time was around 20 minutes. In answer to a question seemingly directed to the physical printing task alone, she indicated that the time taken to perform the tasks required of her was very significantly affected by equipment failure and lack of ready access to computers which were shared with other interns. Dr Bolton deposed that all of that work was done prior to 8 am when the handover meeting commenced. 157 Dr Bolton also stated that in the five weeks during her rotation when she completed ward round preparation, she saw interns from the other four teams in the General Medicine unit completing the preparation of patient lists at the same time as herself and in the same office. She also saw residents from the speciality medical teams that shared those offices with the interns completing that work prior to 8 am. 158 Dr Brickle, who was an intern in the General Medicine unit at the same time as Dr Bolton, but on a different team, also gave evidence about ward round preparation. She deposed that at the start of her General Medicine rotation, as part of her orientation, she was given what she described as the "intern ROVER handbook". The document in question was tendered and is headed "Peninsula Health - ROVER Rolling Handover Booklet for Interns". 159 "Rovers" is the colloquial name given to rolling handover documents which identify the typical clinical practices and processes of the relevant unit, and how daily work is arranged. Rovers for interns are prepared by interns, given to interns at orientation and updated from time to time, including when an intern leaves a rotation so incoming interns know how the relevant unit operates. Dr van Berkel gave unchallenged evidence that, at the end of her rotation, she was asked by staff in the MWU to update the intern Rover. Rovers are also described in the MWU "Standard Operating Procedure Manual", which contained "the detailed information required by members of the MWU to systematically execute all required tasks and processes", as follows: 14.6 ROVER The ROVER is a rolling handover document that assists JMO [junior medical officers] orientation informally. It is used throughout rotations for JMO's to communicate useful information and advice. • At the end of each term the ROVER documents should be reviewed and updated by the interns that have recently completed the rotation. Rover documents can be found at [on the Hospital system, specifically, the M Drive]. 160 Under a heading "[a] usual day on Gen Med", the Rover provided to Dr Brickle relevantly said this: • Meet in Department of Medicine around 0730 - 0745 to organise your list and print copies for the team. Check the list of patients in your home ward as often patients will be put under the wrong bed card! • Handover meeting at 0800 in Emergency Control Room, learn about your new patients for the day 161 Dr Bolton gave evidence that she received the Rover "some time into my first [General Medicine] rotation" but could not recall exactly when it was first provided and "did not read [it] in its entirety". Nonetheless, Dr Bolton stated that the description in the two dot points above was an accurate description of the beginning of her day in the General Medicine unit. She went on to say that the description of other tasks in the Rover under the heading "[a] usual day on Gen Med" accurately reflected her experience. 162 Dr Brickle also confirmed that the description in the first dot point above accorded with her experience of working in the General Medicine unit. She said that she commenced work each morning between 7.30 am and 7.45 am to organise the list of patients that were assigned to her team. She deposed that, to prepare the patient list, she would come into the office and log onto the computer system and then load the specific program that generates the patient lists. She had to format the list into a particular layout for printing and then would print the list in a particular style. Once the list was printed, she would then need to go through the list making sure that all of the patients were under the correct bed card. If there were patients under an incorrect bed card, she would take action to get that changed by the ward clerk. She said that, more importantly, she would make sure that those patients (with an incorrect bed card) were handed over to the team that was looking after the patient so that they were aware that there was a patient missing from their list. She further stated that the program that generates the patient list is not very user friendly and that there were five General Medicine teams trying to print lists off potentially three computers at the same time and that, consequentially, sitting at the computer checking the list prior to it being printed was not efficient. She deposed that if a patient was on an incorrect bed card and not assigned to her team she would update the patient list by crossing through that patient's name. She would then find the team that was looking after that patient and repeat the patient's name, their identification number, what bed they were in on that ward and then handwrite that on the list. She deposed that generating the patient list and making sure it was correct could take anywhere between five and 20 minutes. This depended on how many corrections were needed, how many people were accessing the computers and the printers at the same time and whether the printers in the office were actually working. 163 Dr Brickle further deposed that when she was carrying out that work in the junior medical staff office, she saw Dr Bolton there. Dr Bolton was already in the office before she arrived and Dr Bolton was generating the patient list. Dr Brickle's team (General Medicine A) typically had between six and 10 patients whereas Dr Bolton's team (General Medicine B team), as noted above, could have anywhere between 15 and 25 patients. Dr Brickle stated that the more patients that a team is responsible for, the longer it would take to prepare the patient list. That is because with more patients there is a greater chance that there would be errors on the patient list that needed to be checked. The functional printing of the list could also become more difficult because it needed to be formatted in a way where the most number of patients as possible could be displayed on one piece of paper. 164 Dr van Berkel was an intern in the General Medicine unit in 2018. When shown the Rover shown to Dr Brickle, Dr van Berkel said that she had been provided with an earlier version of that document, stating that the Rover acted as a rolling handover document which was updated, including by her, in order to ensure that it was as up to date as possible for the incoming interns. She had originally been provided with a Rover by the outgoing interns. 165 Dr van Berkel also gave evidence about the task of preparing a patient list whilst an intern in the General Medicine unit. Her evidence corroborated the evidence given by Dr Bolton and Dr Brickle to the effect that an updated and accurate patient list was required to be prepared by interns for the handover meeting. Dr van Berkel had also been informed during her orientation by the outgoing interns about preparing for ward rounds. The outgoing interns showed her where she could find the patient list that was to be generated prior to ward rounds and prior to the morning handover, how to update the list and where to find the information to update it with. She then described what she did in relation to preparing the patient list, stating that she sat down at the computer available in the office and updated the list for the patients for that day. In doing so, she ensured that all of the patients that were under the care of her team were populated on the list and updated the list with any investigations that had been returned overnight. Her evidence was that she would typically arrive at the hospital between about 7.32 am and 7.45 am each morning. The earliest time she could recall coming in to work to prepare the list was 7.25 am. Her arrival time depended on how many patients were on her team's ward, which she knew the night before based on how many patients had been discharged and how many admissions were expected. These were good indicators of how much work was involved to ensure the patient list was up to date. Once the list was completed, she would share a copy of the patient list with each member of her team and then attend the 8 am handover meeting. All of that occurred on days when she was rostered to start at 8 am. 166 There were typically 15 patients assigned to her team. When she was in the General Medicine office each morning updating the patient list, there were other interns in the office at the same time doing precisely the same thing. In her second General Medicine rotation, it would take her slightly more time to prepare the patient list because she was in a busier unit which had more patients. 167 Dr Curtin was never employed as an intern in the General Medicine unit by Peninsula Health but was, for a short period, a registrar supervising Dr Bolton whilst Dr Bolton was employed as an intern in the unit. Peninsula Health sought to rely on one aspect of the evidence given by Dr Curtin given in the following exchange: Ms Tiplady: And that task of printing the patient list was the only task that an intern in general medicine had to prepare before the handover meeting at 8 o'clock? Dr Curtin: Technically, yes. 168 I do not accept, however, that Dr Curtin was here intending to say that all that was required of an intern in the preparation of a patient list was the physical printing of a list. Dr Curtin said that Dr Bolton's responsibilities included preparing the ward round notes for the day's ward round and/or preparing the list for the upcoming ward round. He stated that he wanted the ward round notes to be prepared prior to the ward round starting so that all of the communication between the consultant and the patient could be adequately documented. He confirmed that it was Dr Bolton's responsibility to prepare the patient list and stated that when he received the list from Dr Bolton in the morning it was always up to date. It was clear from the evidence Dr Curtin gave about the occasions where he himself prepared the patient list because an intern had not done so, that the process, as he understood it, consisted of updating the information on the previous day's list by transcribing information onto an updated list and then printing the list. He said that, in an "ideal world", the task was straightforward and could be done in approximately five minutes but that occurrence was very rare. 169 I prefer the evidence given by Dr Bolton, Dr Brickle, Dr van Berkel and Dr Curtin, and the corroboration of their evidence given by the Rover provided to Dr Brickle, over the evidence of Dr Nye in relation to the tasks that an intern needs to perform in order to prepare a patient list. Unlike these other doctors, Dr Nye had no personal involvement in the preparation of a patient list in the General Medicine unit and her evidence did not provide a basis for thinking that she had a close association with, and thus a capacity to properly understand, the detail of a function which was well removed from her primary role. As Dr Braun stated, the day-to-day work of an intern is best explained by an intern. 170 Accordingly, I am satisfied that the expectation of Peninsula Health, as communicated to interns in the General Medicine unit over the relevant period, was that the intern rostered to commence at 8 am would, immediately prior to 8 am and in whatever time it was reasonably necessary to perform the task, prepare an accurate and up-to-date list of the patients under the care of the intern's team and print copies thereof for distribution to other members of the intern's team at, or prior to, the handover meeting scheduled for 8 am that day. 171 Without taking into account the potentially countervailing circumstances I deal with below, I am satisfied that, by reason of the expectation set by Peninsula Health as found above, Peninsula Health conveyed to Dr Bolton its requirement that she perform work in accordance with that expectation on every occasion that she was rostered to commence at 8 am. My provisional satisfaction that such an implicit direction was given by Peninsula Health to Dr Bolton does not depend upon the outgoing interns having authority to give directions to Dr Bolton, and the contentions made by Peninsula Health on that issue need not be considered. The making of the direction is simply implied from the expectation which I have found to have existed. In so far as outgoing interns communicated that expectation, they did so with Peninsula Health's authority as the evidence of Dr Nye and Dr Braun referred to at [150] above demonstrates. 172 It is not in contest that preparing a patient list was part of Dr Bolton's duties and responsibilities. I also accept that it was necessary for Dr Bolton to have completed the tasks required to prepare an up-to-date patient list before 8 am. Whilst those two circumstances were independently relied upon by the applicants, they are each part and parcel of the expectation which was set by Peninsula Health. They do not, independently of that expectation, add very much to the significance which should be given to those circumstances that favour a finding that implied authorisation was given by Peninsula Health. 173 The applicants contended, and I accept, that the fact that Peninsula Health knew that Dr Bolton was performing the work and took no steps to prevent it constitutes a tacit acceptance and is thus confirmatory of the fact that authorisation was impliedly given. For that purpose, both constructive and actual knowledge was relied upon. 174 An instance of "constructive knowledge" as developed in equity is "knowledge of the circumstances which would indicate the facts to an honest and reasonable person": Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [174] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). I accept that both actual as well as constructive knowledge can support an inference of a tacit acceptance. I am satisfied that Peninsula Health had constructive knowledge that Dr Bolton was carrying out all the tasks necessary to produce an up-to-date patient list prior to 8 am on each occasion she did so. Peninsula Health must be taken to know that, by expecting Dr Bolton to produce to her supervisor an up-to-date patient list by 8 am, the work necessary to produce the patient list had to be done before 8 am. Therefore, where Dr Bolton's rostered start time was 8 am and she produced a list to her supervisor by that time, Peninsula Health must be taken to know that Dr Bolton performed the work necessary to produce the patient list outside of her rostered hours or, in other words, in unrostered overtime hours. To exemplify this point, Dr Curtin gave evidence that he knew Dr Bolton had completed ward round preparation because when he received the patient list in the morning at 8 am, "it was always up to date". That Dr Curtin would have only observed Dr Bolton for a three week period does not diminish the probative value of his evidence, notwithstanding Peninsula Health's submission to the contrary. The evidence suffices to establish that Peninsula Health had constructive knowledge that the pattern of work performed by Dr Bolton included the performance of ward round preparation tasks prior to the commencement of any 8 am shift. 175 Dr Bolton's evidence was that no one directed her not to carry out the ward round preparation tasks and, therefore, I am satisfied that Peninsula Health did not prevent Dr Bolton from performing that work. The constructive knowledge of Peninsula Health and its failure to disapprove is, in the absence of countervailing factors, supportive of approval and thus authorisation. 176 I should add that if actual knowledge is required to assist in establishing an implied authorisation, Dr Bolton gave evidence that she was observed by registrars approximately once per week completing ward round preparation prior to 8 am in the junior medical staff office in the General Medicine unit. 177 I turn then to consider any countervailing circumstances. As set out above at [125], Peninsula Health relied upon five matters about what it wanted or expected from junior doctors with respect to overtime, such as that Peninsula Health "wanted junior doctors to maintain a work life balance". Each of the factors seem to be relied upon as a matter of subjective intent, despite senior counsel for Peninsula Health agreeing that the "presumed intent" of Peninsula Health is to be objectively discerned. The proper question is not what Peninsula Health subjectively intended but what a reasonable person would objectively understand to be Peninsula Health's intent. That understanding would not only be based upon Peninsula Health's pronouncements of its intent but also upon Peninsula Health's conduct and the extent to which its conduct is consistent with its pronounced intent. The evidence relied upon tends only to establish either subjective intent or the communication of that intent. It does not fully address the facts and circumstances that would reveal how that intent would have been understood by a reasonable person in light of any conduct of Peninsula Health inconsistent with the pronounced intent. 178 In any event, the five expressions of Peninsula Health's intent were not relied upon to deny the possibility that an authorisation may be implied but, instead, it was contended that what flowed from them was that: (a) Peninsula Health, at best, has impliedly authorised Dr Bolton to perform her work tasks in the least period of time necessary for the performance of these tasks. (b) That implied authorisation is only to [that] extent and no further. That is, it does not authorise Dr Bolton to spend whatever time she considers appropriate [or] necessary to perform the task. (c) Further, it does not authorise Dr Bolton to spend time on tasks that go beyond the minimum required of that function. 179 I readily accept that a time-based limitation upon the extent of an implied authorisation is inherent in the circumstances that I am here addressing. As discussed above, any implied authorisation given in relation to the preparation of a patient list would be limited by the stipulation that the tasks required to be performed by Dr Bolton in overtime hours be performed within the time reasonably necessary to perform those tasks. I also presume that Peninsula Health's formulation of implied authorisation is qualified by reasonableness because, in its submission on quantum (made in the alternative), Peninsula Health says that Dr Bolton should only be paid for the reasonable time necessary for the performance of the tasks. If it is not so qualified, it should be. I otherwise have no difficulty accepting the limitation contended for by Peninsula Health couched in the terms that I have. As the time-based, reasonableness limitation is already encapsulated within the implied authorisation established by the conduct and other circumstances the applicants rely on, these five matters dealing with Peninsula Health's presumed intent do not negate or diminish the inference that I would otherwise draw. 180 I turn then to the overtime policies relied upon by Peninsula Health to defeat any inference that it had authorised Dr Bolton working overtime in the First General Medicine rotation, which had not been authorised in accordance with one or other of the policies. 181 I have already extensively dealt with the Policy and the Guideline and concluded that, in circumstances where the Policy and Guideline were largely unknown and never applied, including in the Department of Medicine, and where overtime was nevertheless worked, Peninsula Health's intent could not have been objectively understood in the Department of Medicine as being that it would only authorise the working of overtime where its authorisation was given in accordance with the Policy or the Guideline. The existence of those policies do not therefore negate or diminish an inference that may be available from other circumstances that Peninsula Health impliedly authorised the ward round preparation overtime that Dr Bolton claims she worked in the Department of Medicine during her First General Medicine rotation. 182 The non-application of the Policy and the Guideline is also confirmed by the fact that the Department of Medicine had its own, department-specific process for authorising unrostered overtime. This process ostensibly applied to Dr Bolton during her First and Second General Medicine rotations and Cardiology rotation. The policy is best encapsulated in a handbook headed "Department of Medicine - Essential Information": All unrostered overtime MUST be pre-approved by telephone, at the time or as soon as practical afterwards, by the Department of Medicine Clinical Director, contact via switchboard. Unapproved unrostered overtime will not be paid. If there is a claim for unrostered overtime, a separate form will need to be filled in detailing the reasons if your timesheet has already been submitted. 183 This handbook was provided to Dr Bolton (and other interns) at an orientation session where Dr Nye explained the policy. 184 There is no ambiguity as to what the policy conveyed. The policy relevantly required that all unrostered overtime had to be approved by the Department's Clinical Director (whom, at all relevant times, was Dr Braun). The policy clearly conveyed Peninsula Health's intent not to pay for unrostered overtime which had not been approved by Dr Braun. The policy does not expressly say that the only way that Peninsula Health would give its authority for the working of unrostered overtime in the Department of Medicine is when authority is given by the Department's Clinical Director, but that intent is sufficiently implicit from the express terms of the policy. 185 The evidence demonstrated that the Department of Medicine Overtime Policy was well known in that Department. Each of Drs Bolton, van Berkel, Toogood and Curtin were aware of the policy. Dr Nye's evidence confirmed that the policy was explained to Doctors in Training during their orientation. Hence, the policy was clear and known to clinical staff in the Department of Medicine. 186 However, there was a significant amount of evidence regarding the extent to which the policy was not applied, in the sense that unrostered overtime was worked and not approved according to the policy, but nonetheless known to Peninsula Health. 187 Dr Bolton gave evidence that she often worked unrostered overtime during her rotations in the Department of Medicine. The detail of the work performed by her in excess of her rostered hours is set out above in relation to ward round preparation overtime and is later discussed in relation to the other categories of overtime work performed in the Department. Dr Bolton explained that she did not seek authorisation for that overtime pursuant to the policy because she was "personally told during the handover from the outgoing interns that Dr Braun had a reputation for being obstructive during these phone calls and often hard to get hold of". She further deposed that she understood "that that phone call [to obtain approval from Dr Braun] was not a simple phone call to make, in that you would be questioned as to why you needed the overtime, why these tasks were necessary, why couldn't they be handed over, why couldn't they be done in your rostered hours, and why couldn't you just wait to do it the next day" which was both time consuming, sometimes taking even longer than the amount of overtime that was sought to be claimed, and undermined junior doctors' own clinical judgment. She also gave evidence that she felt that calling Dr Braun may have made her look like "a lazy and inefficient doctor". 188 Dr Bolton's evidence, which was based not on her own experience but on what she had been told by other employees, accorded with the experiences of a number of other witnesses. 189 Dr van Berkel and Dr Toogood both made claims, and were paid, for unrostered overtime in the Department of Medicine pursuant to the policy. However, both witness recounted the difficulty of this process and how it deterred them from claiming pursuant to the process again because, in part, Dr Braun and other senior doctors gave the impression that those who claimed overtime were not "efficient". 190 Dr Toogood gave evidence that he sometimes received "pushback" from Dr Braun for claiming overtime for an urgent procedure out of hours and "was a bit taken aback [during these calls] that … my clinical decision making to do an urgent procedure out of hours was being judged". This made him anxious to claim unrostered overtime in the future by calling Dr Braun. 191 Further, Dr Curtin gave evidence that, in or around 2015 or 2016, he had been consistently working until 7 pm when his rostered finish time was 4.30 pm or 5 pm. Although he had not been seeking approval for that overtime by calling Dr Braun, he had been recording his actual working hours on his timesheets. On one occasion, he was told by Ms Debra Hobbs, one of Dr Braun's personal assistants, that the overtime hours he recorded on his timesheet would not be paid and he was ordered to see Dr Braun in his office, which he did. Dr Braun then told Dr Curtin that he needed to seek prospective approval for any unrostered overtime by calling him personally and that the payment of unrostered overtime to junior staff "couldn't go on". Dr Curtin replied to Dr Braun that seeking authorisation by calling him is a process "that's not going to really work" and "[i]t's just going to stop people from putting in the claims because the work happens". Dr Curtin said he then left the meeting and never sought authorisation or payment for any unrostered overtime again. 192 In cross-examination, Dr Braun agreed that he had a conversation with Dr Curtin about overtime but could not recall any specifics and did not confirm or deny any of Dr Curtin's specific recollections of the conversation. However, Dr Braun conceded that, based off this conversation, he knew that Dr Curtin was working unrostered overtime but not claiming for it. Dr Braun acknowledged that he did not follow up with Dr Curtin after this meeting to see if he was still working unrostered overtime because "I wasn't aware that there was a widespread issue or an issue with Justin Curtin that … I needed to follow up with". 193 In short, Dr Toogood, Dr van Berkel and Dr Curtin all gave evidence that they frequently worked unrostered overtime but rarely, if ever, sought authorisation or payment for those hours, including because they were deterred from making a claim after their experiences using the policy. Dr Bolton and Dr van Berkel also gave evidence that they observed other junior doctors in the Department of Medicine performing tasks outside of their rostered hours, such as preparing patient lists and medical records. The applicants submitted, and I would accept, that this evidence demonstrates that Doctors in Training at all levels, including interns, experienced the difficulty of the overtime claims process in the Department of Medicine. 194 The evidence ultimately demonstrates that unrostered overtime was regularly and extensively worked by Doctors in the Department of Medicine without authorisation having been given under the Department of Medicine Overtime Policy. The extent of the working of such unrostered overtime, as well as much of the specific evidence of knowledge to which I have referred, also establishes that Peninsula Health, at least constructively, knew that junior doctors were working such overtime. Whether or not Peninsula Health had actual knowledge, the evidence permits an inference that it was generally understood by medical staff in the Department of Medicine that significant work was being performed by Doctors in excess of their rostered hours and without authority given under the Department's policy, in circumstances where I would infer that it was understood that Peninsula Health must have known that substantial overtime of that kind was regularly worked. 195 This conclusion is reinforced by the general evidence regarding the amount of unpaid, unrostered overtime being worked by junior doctors across Peninsula Health. The evidence establishes that senior management at Peninsula Health knew that it was likely that junior doctors were working high levels of unrostered overtime but were not claiming for these hours. Professor Rait gave evidence that he raised a concern with Ms Topp, the Chief Executive Officer of Peninsula Health, during a meeting in August 2019 that junior doctors were working high levels of unrostered overtime. Ms Topp and Dr Nye were subsequently sent a copy of the "Peninsula Health AMA Victoria Health Check 2019 Report", which recorded that 59% of junior doctor survey respondents reported that they were paid for their unrostered overtime 50% of the time or less. Dr Braun said he may have received the Report but could not recall. The Report also recorded that 44% of survey respondents said a "highly obstructive or difficult claiming process" was one of the reasons they did not claim, and were not paid, for the unrostered overtime they worked and 38% nominated "hospital/workplace cultural expectations". 196 Ms Topp was not called as a witness and no evidence was adduced regarding how Peninsula Health, as an organisation as a whole, responded to the receipt of this information from Professor Rait, including whether it took any steps to follow up with junior doctors about the working of unrostered overtime. Dr Nye's evidence was that she did not take any action in response to the Report because, in part, she said it was a voluntary survey with a small sample size and therefore was a "fairly skewed representation of junior medical staff views". 197 Dr Terrill also gave evidence that unrostered overtime of interns and residents in the Plastics unit had been an issue between 2016 and 2019. This issue was discussed in "Safe Efficient Rostering - Review of current practice for JMS: Plastics", a presentation given by Dr Evans to other senior medical staff in the Plastics unit, which primarily focussed on the problem of the financial cost of unrostered overtime performed by junior doctors (that was evidently claimed and paid). 198 As discussed below, the evidence in relation to the completion of discharge paperwork demonstrated that unrostered overtime performed for that purpose was "a fairly common practice" known to Dr Curtin and appreciated, at least as an occasional occurrence, by Dr Nye and Dr Braun. 199 Further, Mr Watts, Dr Toogood, Dr Curtin and Dr Marshall gave evidence establishing that Peninsula Health had knowledge of junior doctors' reluctance to claim payment for unrostered overtime. For example, there was evidence that Dr William (Bill) Slater, the Deputy Director of the Department of Medicine, and Ms Hobbs, Dr Braun's personal assistant who was responsible for rosters in the Department, had raised concerns about the Department of Medicine Overtime Policy with Dr Nye and Dr Braun (albeit after Dr Bolton's First General Medicine rotation). Dr Slater proposed in an email to Dr Braun and Dr Nye in September 2019 to "scrap" the policy but Dr Braun determined not to take any further action. Further, in an email chain dated 18 August 2020 between Dr Braun, Ms Hobbs and Ms Hynes regarding a particular registrar's request for her overtime to be approved, Ms Hobbs told Dr Braun that "I told [the registrar] she needed to call you for approval but she said she wouldn't bother. The [junior medical staff] are still very reluctant to call you for approval for overtime maybe you could add it into your meetings with them?". Dr Braun replied "[s]ure. There seems to be 2 camps - I frequently get calls from the interns but not from the [registrars]. What time did she speak with you? Lyndal - please add that time to her timesheet as O/T". Ms Hobbs responded to Dr Braun as follows: I just saw her as I was coming in. it was around 0910 and she told [me] she had been at a MET call and I said to put [it] on her timesheet. She said she could not be bothered calling you as too exhausted and did not want to get Lyndal in trouble for not having it approved. We need to stop doing this. You need to look at this requirement again as I feel it is totally unfair at this time. They are all working longer hours than claiming as they can't be bothered calling you. (Emphasis added.) 200 In cross-examination, Dr Braun said that, partly in response to Ms Hobbs' concerns, he would have raised the issue of overtime in his daily meetings with junior doctors in August and September 2020. However, he did not recall whether he specifically raised the issue of junior doctors' reluctance to claim overtime pursuant to the policy. Dr Braun maintained that, notwithstanding the concerns of Dr Slater and Ms Hobbs, the policy was the "best approach" to manage workloads in the Department. 201 I would infer from the evidence referred to above, as well as the evidence recounted below about unrostered overtime being worked in the Department of Medicine, that unrostered overtime in the Department of Medicine was regularly worked but it was extensively not authorised in accordance with the Department of Medicine Overtime Policy. That fact was generally understood by medical staff in the Department of Medicine who would also have reasonably understood that that fact was known to Peninsula Health. Whether there was an objective understanding in the Department of Medicine that Peninsula Health only gave its authorisation for unrostered overtime in accordance with the policy is to be assessed in that context. 202 I would readily accept that the intent of Peninsula Health conveyed by the policy, as assessed in that context, would have been reasonably understood as being that Peninsula Health would not pay for any unrostered overtime work performed which had not been authorised by Dr Braun. However, the relevant understanding of Peninsula Health's intent is not as to whether or not Peninsula Health intended to pay for the work - it is whether or not it would only request, require or approve the working of unrostered overtime if Dr Braun made or gave such a request, requirement or approval. The context in question is that the Department of Medicine Overtime Policy was understood, and known by Peninsula Health, to be only infrequently applied despite unrostered overtime being regularly worked. In that context, it would not have been understood that the bulk of the unrostered overtime worked without reference to Dr Braun was always worked in the absence of any request, requirement or approval given by Peninsula Health. As such, the context negates an understanding that Peninsula Health's intent was to only give its authorisation for the working of unrostered overtime through junior doctors calling Dr Braun to personally approve their overtime. There is therefore room for an inference to be drawn that, on a particular occasion or occasions, Peninsula Health gave its authorisation by some means other than through Dr Braun, including by an implication conveyed by conduct and other circumstances. 203 In the case of the ward round preparation work performed by Dr Bolton, that was work of a kind commonly being performed in excess of rostered hours and without reference to any authorisation by Dr Braun. There was, as discussed above, an expectation conveyed to Dr Bolton that Peninsula Health expected her to perform the work during hours in excess of her rostered hours. There was also a tacit acceptance of the work being performed outside of her rostered hours in circumstances where Peninsula Health either knew, or would have been understood to have known, that the work was performed. In those circumstances, and given the overall context discussed above in relation to how Peninsula Health's intent was objectively understood, I would conclude that the objectively discerned understanding held by medical staff in the Department of Medicine about Peninsula Health's intent was that Peninsula Health wanted the work performed but was generally reluctant to pay for it. In any event, by reason of the overall context and the particular circumstances just referred to, the existence of the Department of Medicine Overtime Policy does not negate the inference available from the conduct and circumstances relied upon by the applicants that, on each occasion ward round preparation work was performed by Dr Bolton, it was impliedly authorised by Peninsula Health. 204 For the reasons given above and subject to any further issues going to quantum, I consider that the ward round preparation overtime claimed to have been worked by Dr Bolton in her First General Medicine rotation was authorised by Peninsula Health and engaged the payment obligation in cl 36.2(a)(ii) of the 2018 Agreement.

Ward round overtime 205 The applicants contended, and Peninsula Health admits, that during the First General Medicine rotation, Dr Bolton's duties and responsibilities when providing medical services included undertaking ward rounds. The tasks involved in undertaking ward rounds are uncontroversial and are summarised above at [145]. It is also uncontroversial that the ward round overtime here claimed is concerned with the alternating weeks of Dr Bolton's rotating roster (discussed above at [146]). That was a five week period during the First General Medicine rotation in which it is alleged that, on each of the five days of work in week 2 of the alternating roster when Dr Bolton was rostered to commence at 8.30 am, she actually commenced work at about 8.10 am in order to be available for the commencement of ward rounds. 206 The applicants submitted that Peninsula Health implicitly directed Dr Bolton to be present at the commencement of ward rounds even where ward rounds commenced prior to her rostered 8.30 am shifts. To support the contention that Dr Bolton was directed to undertake ward rounds before the commencement of her rostered shift, the applicants rely principally on the following matters: (i) Dr Bolton and Dr Brickle's evidence regarding when interns were expected to be present at ward rounds; (ii) Dr Curtin's evidence that Dr Bolton never joined a ward round late; and (iii) Dr Braun and Dr Nye's agreement in cross-examination that it was important that an intern not regularly arrive late to ward rounds. 207 It is uncontroversial that Dr Bolton was never expressly directed to attend ward rounds commencing before 8.30 am in the weeks that she commenced at 8.30 am. The outgoing interns who spoke to Dr Bolton on the shadowing day during orientation week did not explain how they had dealt with the alternating roster because they had no experience of it. The alternating roster was introduced in January 2019 during Dr Bolton's First General Medicine rotation. The split commencement time for interns "was a new addition to the roster" which the outgoing interns had informed Dr Bolton they had not experienced. The alternating roster did not last very long and was abandoned by August 2019. However, the fact that an alternating roster had only just commenced during Dr Bolton's first rotation seems to me to be of importance, including in assessing whether or not the evidence demonstrates that there was an expectation from Peninsula Health that the intern rostered to commence at 8.30 am would actually commence at, or about, 8.10 am to ensure that that intern would be available when the ward round started. 208 The evidence relied upon by the applicants about the importance of interns not arriving late and being available at the commencement of ward rounds was general and not sufficiently directed to establishing what, objectively assessed, Peninsula Health expected of interns in the context of the new way of working which was necessitated by the alternating roster. I accept that, although it was not common, a ward round could, and on occasions did, commence prior to 8.30 am and possibly as early as 8.10 am. In that respect, I prefer the evidence of Dr Curtin, Dr van Berkel, Dr Bolton and Dr Brickle to that of Dr Nye. That possibility meant that, unlike the position prior to the introduction of the alternating roster, the new roster made it possible that a ward round would need to commence without both interns in attendance. 209 If that was an inherent feature of the new alternating roster, I would infer, in the absence of contrary indications, that the likely (objectively assessed) position of Peninsula Health on the introduction of the new alternating roster would have been that it recognised, and was prepared to live with the fact, that occasionally one of the interns would not be available at the commencement of a ward round and for some short time thereafter. 210 That Peninsula Health had the contrary expectation and expected, and therefore impliedly required, all interns to be in attendance at the commencement of every ward round, was not demonstrated by the evidence. 211 Such an expectation may have been established if, for instance, the applicants had demonstrated that an intern's presence at a ward round was indispensable or of such importance to the proper conduct of a ward round that it is unlikely that Peninsula Health would have been objectively perceived to truly intend that only one of the two interns on a team would be available at the commencement of ward rounds. Alternatively, evidence of a tacitly accepted practice of interns attending work prior to their rostered start time in order to be available at the commencement of ward rounds may have been sufficient to establish that expectation. 212 In support of its "necessity" contention, the applicants relied upon Dr Bolton's evidence that the outgoing interns had suggested to her that joining a ward round which had already commenced would not be "cohesive to the functionality of the team" because of the split structure of the ward rounds. Furthermore, her evidence was that if she had arrived part way through a split ward round that commenced prior to 8.30 am (which she said she never had) half of the notes for that ward round "would have either been not done, or [Dr Bolton] would have had to have … caught up after the [ward] round by a verbal update from the registrar or the consultant". She said that not having notes taken for a patient was "not optimal patient care" including because investigations and specialty consults may not have been ordered as a result. However, Dr Bolton acknowledged in cross-examination, as did Dr Brickle and Dr Curtin, that, in the absence of an intern, a registrar could take the notes. 213 The applicants also relied on Dr Bolton's evidence as to the clinical importance of interns on ward rounds more generally, such as their role administering patient care where consultants or registrars were unavailable, meaning that they had to be properly informed about the patients in their care. I accept that interns had an important clinical role in patient care in the General Medicine unit and that ward round attendance was important in helping interns to stay abreast of a patient's care plan. It also allowed interns to provide additional information to consultants and registrars during ward rounds if needed, given their day-to-day knowledge of the patients. 214 However, that acceptance is not sufficient to dislodge the inference that Peninsula Health did not expect interns rostered to commence at 8.30 am to commence early in order to be present for ward rounds on those uncommon occasions where rounds commenced earlier than 8.30 am. Rather, the circumstances would have more likely supported that Peninsula Health was prepared to live with some diminution in ward round efficiency caused by the short absence of an intern on ward rounds which may be experienced occasionally but not commonly. 215 I also reject that an implied authorisation can be established on the basis that Peninsula Health tacitly accepted the practice of interns commencing early in order to be present at ward rounds. During her First General Medicine rotation when Dr Bolton performed the work in question, the alternating roster was brand new and there was no history sufficiently capable of demonstrating either the practice of interns starting early in order to attend ward rounds or Peninsula Health's tacit acceptance of this practice. 216 The applicants' reliance on Dr Curtin's evidence, that he did not recall Dr Bolton joining a ward round late, as demonstrating Peninsula Health's actual knowledge that Dr Bolton was commencing work early in order to be in attendance at the start of ward rounds, is not sufficient to establish either the existence of a known practice or its tacit acceptance by Peninsula Health. 217 For those reasons, I am not persuaded that, from the facts and other relevant circumstances relied on by the applicants, an implied authorisation for Dr Bolton to perform ward round overtime was given by Peninsula Health. I have reached that view without it being necessary for me to take into account the policies and other circumstances relied upon by Peninsula Health as countervailing circumstances.

Medical records overtime 218 The third and final overtime claim made in respect of Dr Bolton's First General Medicine rotation is a claim for what was called "medical records overtime". Dr Bolton deposed that, on approximately three days per week during each of the 10 weeks of her First General Medicine rotation, she spent between 30 and 60 minutes completing medical records outside of her rostered hours. 219 It is useful to describe at the outset where the parties were in contest in relation to this claim. It was not in contest that completing medical records, including discharge summaries, in a timely manner was work required of Dr Bolton and actually performed by her. The nature and clinical importance of that work is not in contest. The key contest between the parties concerns whether or not, from conduct and other circumstances, Peninsula Health impliedly authorised Dr Bolton to perform her medical records duties and responsibilities during hours in excess of her rostered hours of work. 220 To my mind, that contest is best resolved by considering the objectively discerned understanding in the General Medicine unit as to Peninsula Health's expectation of interns in relation to the timely performance of their medical records duties. Out of that expectation, an implication may arise that Peninsula Health required Dr Bolton to complete, at a time in excess of her rostered hours, so much of her medical records duties that she could not complete during her rostered hours. In doing so, I will take into account the circumstances going to necessity and knowledge which the applicants relied on, as well as those circumstances relied upon by Peninsula Health in support of its contention that implied authorisation was not given. 221 It is convenient to first set out, by way of background, some of the uncontested circumstances. The medical records duties required of Dr Bolton substantially, if not wholly, comprised the preparation of patient discharge summaries. A discharge summary acts as a record of a patient's stay in hospital. It is described in the Peninsula Health Clinical Practice Guideline, discussed further below, as "[a] report that provides a summary of what occurred during a defined period of treatment/care/intervention. For hospital inpatients, this period is defined as an episode of care …. The summary must include a Principal Diagnosis, and where applicable, other diagnoses, investigations, treatment, discharge medications, ongoing care plan actions and therapy goals". Dr Bolton's unchallenged evidence was that the function of a discharge summary was to provide general practitioners and other specialists an understanding of the patient's medical history and care in hospital. Discharge summaries at Peninsula Health were created using a patient's electronic medical record within a system called Cerner Millennium which Doctors access by entering a username. 222 Peninsula Health accepted that Dr Bolton was directed to comply with the Clinical Practice Guideline on the completion of discharge summaries. In respect of discharge summaries, the Clinical Practice Guideline relevantly said this: The purpose of this guideline is to provide guidance on the completion of an inpatient and emergency department discharge summary to ensure appropriate clinical handover to subsequent care providers … a discharge summary is a mandatory clinical requirement of Peninsula Health … • The objective is to have one single cohesive electronic discharge summary comprising all critical events during the patient's admission, inclusive of relevant radiology and pathology results, medication changes, ongoing care requirements and therapy goals (if applicable). (refer to diagram below) √ The intern/resident rostered on for the unit on the day the patient is discharged must complete the electronic discharge summary, regardless of whether that doctor personally attended the patient. Before sending, the intern/resident must ensure: o the clinical synopsis accurately describes the episode of care o the principal diagnosis is correct o the list of discharge medications is correct and complete. √ The intern/resident is responsible for completing any outstanding electronic discharge summaries relating to their previous rotation. In the event that the intern/resident is no longer employed at Peninsula Health, the treating unit must make alternative arrangements for the outstanding electronic discharge summaries to be completed. • A copy of the discharge summary must be provided to the patient (or their representative) prior to their discharge. • A copy of the completed discharge summary must be sent to the nominated general practitioner, specialists involved in the patient's care and/or relevant referring agent on discharge. • When the discharge summary is not available at time of discharge, it is the responsibility of the clinician to ensure the patient and nominated general practitioner or other referring agent is sent a copy within 48 hours or as per Department of Health and Human Services (DHHS) guidelines. (Emphasis in original.) 223 The Clinical Practice Guideline required the Department Head/Manager/Clinical Heads of Units to ensure that "[s]taff are fully aware of and compliant with the requirements of this guideline including meeting KPIs". In a section headed "[e]valuation", the guideline noted that a range of tools would be used to evaluate policy compliance and then set out the "two key performance indicators (KPIs) that measure compliance rates for [the] completion" of discharge summaries. Those KPIs were stated as: • 90% (overall median of all clinical departments) of electronic (Clover) inpatient discharge summaries must be completed within 48 hours of discharge • 80% (overall median of all clinical departments) of electronic (Clover) inpatient discharge summaries must be completed prior to discharge 224 Dr Bolton deposed that she was told about the 90% KPI during IT training in her first week of the First General Medicine rotation and said that the KPI was reinforced to her by staff in the MWU during her rotation via various email communications, examples of which were tendered. These emails documented how her team's discharge summary completion rates were tracking against the 90% KPI in a table alongside other teams across Peninsula Health. 225 The clinical importance of discharge summaries, including the importance of those summaries being completed in a timely manner, was also the subject of evidence from a number of doctors. Each of Drs Bolton, Brickle, van Berkel, Curtin, Toogood, Braun, Nye and Carrillo agreed that the completion of accurate and timely medical records is a vital aspect of patient care. They also broadly agreed that the responsibility for completing medical records fell to interns and residents, although Dr Braun stated that there may be untypical scenarios where a registrar would complete discharge summaries. 226 Specifically, Dr van Berkel gave evidence that discharge summaries were clinically important for handover between the hospital and the community. Dr Curtin's evidence was that the importance of a "timely and a concise discharge summary" was to ensure that the GP seeing the patient, potentially "within the week of leaving hospital", understands why the patient was in hospital, "what tests were done, what the results of those tests were and what medications were changed". Dr Braun's evidence was that "discharge summaries are very important for patient care. Full stop". Dr Nye agreed that a discharge summary is important, at least to ensure appropriate clinical handover to subsequent care providers. 227 As to her responsibility to complete discharge summaries, Dr Bolton's evidence included that a nurse unit manager, Kim Heriot verbally communicated to myself and my co-intern, Dr Leek, in my presence, if there were discharge summaries outstanding or patients were imminently being discharged that did not have one, that she wanted them completed, and she would either do that at the commencement of the ward round, before we had started, when we had arrived on the ward, or she would - on occasion, if it was later, she would interrupt the round to request one of us attend to those duties and leave the ward round and undertake those duties, and would remind us verbally of the percentages aimed for with the KPIs and that they were very important, and if we were falling behind she would remind us of that, as well, verbally. 228 All of that evidence, in conjunction with Peninsula Health's acceptance that Dr Bolton was directed to comply with the Clinical Practice Guideline on the completion of discharge summaries, amply supports a finding that Peninsula Health both required and expected Dr Bolton to complete discharge summaries in a timely way so as to meet the requirement for her unit to have completed 80% of discharge summaries prior to patient discharge and 90% of discharge summaries within 48 hours of patient discharge. Additionally, and in accordance with the guideline, Dr Bolton was required to complete all discharge summaries for which she was responsible that were outstanding at the end of her rotation. 229 Peninsula Health contended that Dr Bolton had the option of not completing a discharge summary for a patient discharged during her rostered shift and instead could hand over incomplete discharge summaries to the incoming doctor on the night shift that followed her own. However, that contention cannot be sustained. First, the handing over of incomplete discharge summaries to doctors on a subsequent shift is inconsistent with the direction which Peninsula Health accepts was made of Dr Bolton by the Clinical Practice Guideline on the completion of discharge summaries. Furthermore, the evidence demonstrated that this was never a practical or appropriate option available to Dr Bolton. 230 Dr Bolton, Dr Brickle and Dr van Berkel all confirmed that they were not able to hand over incomplete discharge summaries to the incoming night cover doctors who were responsible for up to 60 patients overnight. Dr Bolton's evidence was that it was "theoretically" possible to hand over incomplete discharge summaries to the incoming doctor on the next shift, however, there would be some "bottlenecking" because the incoming night cover doctor was responsible for "usually between six and eight teams' worth of patients". She described "initially" trying to hand over discharge summaries to the incoming doctors but that "in [her] experience" she would just receive the incomplete discharge summary back to complete the next morning, as the night doctor did not have time to complete it. Dr van Berkel's evidence described a similar issue with trying to hand over incomplete discharge summaries. She gave evidence that "early on in the first rotation, in the first week" she attempted to hand over an incomplete discharge summary "to the evening covering resident by phone" who did not attend to the task and it was returned to Dr van Berkel the next morning "unfinished". 231 Dr Bolton also deposed that it was not a clinically appropriate solution to hand over discharge summaries. In her view, it was not appropriate for a "clinician that's not providing the primary care for [a] patient to complete the discharge summaries, for the reason of they do not know the patient as well. They have not been there for the entirety of their stay, and the potential for gaps in that discharge summary are greater". Dr Bolton explained that this is because the doctors giving primary care do not "document absolutely everything that [they] should, all of the time" in the patient's medical record and instead "some of it is held in [their] heads or on [their] own physical pieces of paper that [they] carry around". Dr Curtin's evidence supports this view. Dr Braun said in cross-examination that he "believe[s] that it is the people that are looking after the patient who are best able to manage the discharge summary rather than hand it over to someone who doesn't know the patient". Dr Curtin also gave evidence that it is preferable that discharge summaries be completed by the doctor who is familiar with the patient file, explaining that handing over discharge summaries to the night cover doctor: [is] always something that, like many things, could be done, but it would never be - it would never be done unless the patient was, say, discharging within that after-hours timeframe, because in order to achieve what needed to be achieved for a thorough discharge summary, you needed to know the patient and if you didn't know the patient, you needed to go back through the medical records to list these critical events, to list the medication changes and if a patient had been in hospital for more than a month, there's - there's upwards of 60 clinical notes in there that you would want to have an understanding of and it's a pretty unfair expectation of someone who doesn't know the patient to actually come up with a good discharge summary in a timely fashion and they would do it but it might take them an hour and a half. 232 Dr Nye, who, according to Dr Bolton, floated the option of handing over discharge summaries to incoming doctors, herself ultimately conceded that it would not be ideal or a "good choice" to hand over incomplete discharge summaries to the night cover doctors, including because of the large number of patients they are looking after across three wards. 233 I therefore do not accept that the requirement and expectation of Peninsula Health that Dr Bolton complete discharge summaries in a timely way consistent with the KPIs set for that task was, to any significant extent, ameliorated by the possibility of delegating that task to others. 234 My finding that the timely completion of discharge summaries in accordance with the KPIs set by Peninsula Health was required of Dr Bolton is, however, insufficient of itself to substantiate that Peninsula Health requested or required discharge summaries to be completed by Dr Bolton outside of her rostered hours. When an employer sets a task for an employee without expressly requesting that the task be performed outside of the employee's rostered hours, unless the context suggests otherwise, the natural inference to be drawn would be that the employer required the task to be performed within the employee's rostered hours. However, an inference that the employer is requesting or requiring the task to be completed at a time beyond the employee's rostered hours may be available from the context provided by the relevant surrounding circumstances. That inference would more likely be available where the task is time sensitive and the time available during the employee's rostered hours for completing the task is insufficient. To illustrate with a simple example: a manager who, at 4 pm, provides to an employee working a 9 am to 5 pm roster a task which is understood to require three hours of work to complete, in circumstances where the manager requires the finished product on their desk by 9 am the next morning, is clearly requesting or requiring the employee to work beyond the employee's rostered hours in order to complete the task. That the employer is directing the employee to work outside of their rostered hours is clearly implied from their request, notwithstanding that the employee was not expressly directed to work beyond their rostered hours. It follows that, in order to sustain the implication that the applicants seek, the applicants need to demonstrate more than the time sensitive nature of the task required by Peninsula Health. To establish the expectation of Peninsula Health from which an authorisation may be implied, the applicants also need to demonstrate that Peninsula Health was aware, at least constructively, and was objectively understood to be aware, that there would likely be days when the rostered hours of interns and residents would not provide sufficient time for that work to be completed and therefore, given the time sensitive nature of the task, interns and residents would be required, on occasions, to perform that work beyond their rostered hours. 235 The evidence, which is outlined below, clearly established that Doctors in Training were, and were known by Peninsula Health to be, faced with attending to a wide range of clinical and administrative tasks as part of their ordinary duties. Many of those tasks, including those directly related to patient care, had to be performed urgently and in priority to the task of preparing discharge summaries and some discharge summaries were more urgent than others. 236 Dr Bolton deposed that there was insufficient time for her to complete all of the discharge summaries for which she was responsible within her rostered hours. In each of the 10 weeks of her First General Medicine rotation, Dr Bolton deposed that she performed somewhere between one and a half and three hours of work per week beyond her rostered hours completing discharge summaries. That work was performed at times when Dr Leek, the other intern in Dr Bolton's unit, was also completing discharge summaries after her rostered hours. Dr Bolton deposed that they would share the outstanding discharge summaries between them by splitting the work as evenly as possible to ensure that they could both leave work and get home as soon as they could. She also deposed that she saw registrars completing medical records after the end of their rostered hours, although not necessarily discharge summaries. As outlined below at [282], she also completed discharge summaries outside of her rostered hours in her Second General Medicine rotation. 237 Dr van Berkel also gave evidence of completing discharge summaries while she was an intern during both her first and second General Medicine rotations. She deposed that, depending on the complexity of the patient, it could take anywhere from 30 minutes to two hours to complete a discharge summary. She was not always able to complete all of her discharge paperwork during her rostered hours in her first rotation. She said that, despite the clinical importance of discharge summaries for handover between the hospital and the community, discharge summaries were less time sensitive than some other tasks that would come up during the day and therefore discharge summaries often got pushed to the end of the day's work. That meant that if her day was filled with more time critical tasks, then the only time that remained for the completion of discharge paperwork was outside of her rostered hours. The discharge paperwork that she had not been able to complete during her rostered hours was either completed after her rostered hours or it was left until the following day. She deposed that the time she spent completing discharge paperwork after her rostered hours varied from week to week but estimated that she worked beyond her rostered hours at least three times a week and that, on each such occasion, she spent at least 30 minutes on the task. While she was completing discharge paperwork outside of her rostered hours, she observed that her co-intern, Dr Tavassoli, was also completing discharge paperwork and they would discuss "the work that we were doing so we didn't double up". Additionally, she observed registrars doing that work outside of rostered hours and they observed her doing the same thing. In relation to a particular registrar, Dr Thinza Moe, Dr van Berkel said that Dr Moe was also staying back after hours to complete work and that they had discussed the discharge summaries they were completing so that they didn't double up on the same work. 238 She gave similar evidence in relation to her second rotation in General Medicine, again deposing to completing discharge paperwork after hours and also observing that being done by her co-intern. 239 Dr Brickle also gave evidence that she completed discharge paperwork outside of her rostered hours during her time as an intern in the General Medicine unit. She said that it would typically take half an hour to complete discharge paperwork in relation to a single patient but that she was unable to complete all of the discharge paperwork that she was responsible for each day within her rostered hours. By way of example, she said that "if I had four patients being discharged in any day, that's two hours of work that needs to be completed, but then there's also the patients that are still unwell on the ward, and often their clinical needs mean that there's lots of other jobs that need to be done, and that often is prioritised over completing the discharge paperwork". She said that in relation to the discharge paperwork that she could not complete on a particular day, that would either be completed after her rostered hours or would be rolled over to the next day because discharge paperwork that was not completed prior to the patient being discharged still needed to be completed at some stage. If it was left to the next day, that would just lead to a "constant overflow or rolling on of discharge paperwork left to be done" because new patients needed to be discharged each day and, consequently, more discharge paperwork had to be completed. As such, although she sometimes would leave the outstanding discharge paperwork for the next day, "most often" she would do it outside of her rostered hours. She deposed that she completed discharge paperwork outside of her rostered hours two times a week and would stay on average for 30 minutes on each occasion. 240 Dr Brickle deposed that she saw Dr Bolton completing discharge summaries after rostered hours. When asked whether she received any instructions from anyone about not completing discharge paperwork after rostered hours, she said that "[w]e were encouraged by the registrars not to stay back for too long" but no direction was given to not do the work after hours. In those circumstances, the registrars would question her as to what she was doing and when she told them she was completing discharge summaries they would say something like "okay, yes, you need to finish those, but don't spend too much time on it". She identified a particular registrar who she said saw her performing the work, but added that a rotating set of registrars would have seen her performing the work in circumstances where she had explained that she was finishing discharge summaries. 241 Dr Curtin confirmed that it was part of Dr Bolton's responsibilities to complete discharge paperwork as it was the responsibility of all the interns, with registrars having the responsibility of overseeing it. In response to whether, to his knowledge, Dr Bolton ever completed discharge paperwork outside of her rostered hours, Dr Curtin said that he was not aware "but it wouldn't surprise me because it's a fairly common practice". In response to why he said it was a common practice, Dr Curtin said this: Well, just with the time pressures that the interns have, it's - and the expectation that these discharge summaries are completed at the time that the patient is leaving or, at best, within 24 hours of the patient leaving hospital, the - the interns would either be completing the discharge summaries on the day of discharge or be preparing the discharge summaries prior to the patient leaving, and it - it's just - it's an ongoing administrative action that needs to be tended to by the interns. 242 Dr Curtin did not ever tell Dr Bolton not to complete discharge paperwork outside of her rostered hours. When asked again whether he ever saw Dr Bolton completing discharge paperwork outside of her rostered hours, he said that he couldn't answer that specifically in relation to Dr Bolton, but "I definitely - like all interns, I saw them there after hours because I was there after hours". 243 Dr Nye accepted that there will be times when doctors may be required to complete discharge summaries outside of their rostered hours. She said that she knew that it happens. When asked whether it happened in the General Medicine unit, she said "it must do. I guess so". She also accepted that the work that Dr Bolton said she had completed was, in fact, completed by her. 244 Dr Braun was also examined in relation to his understanding of the completion of discharge summaries. He said that interns and members of teams should aim to complete 100% of discharge summaries at discharge. He accepted that there will be days where hands-on clinical care of patients consumes the day such that paperwork might drop to the end of the list and that it might not be possible for discharge summaries to be completed during the day. He further accepted that it would not be ideal to defer discharge summaries to the next day because then they will pile up by the end of the week and that would be undesirable. He suggested that there was time set aside for the completion of discharge summaries by interns or residents in the mid-afternoon. He agreed, however, that that time was not "protected time" and that the doctor can be interrupted and called upon to carry out clinical tasks. Dr Braun accepted that he knew that there are days when all members of the team are unable to complete the discharge summaries that have been allocated to them and that one of the consequences of that was that, from time to time, members of the team completed discharge summaries after rostered hours. 245 By its submissions, Peninsula Health did not seek to directly challenge the reliability of the evidence to which I have just referred in relation to interns not having sufficient time during rostered hours to complete discharge paperwork and the commonality of interns, including Dr Bolton, working unrostered overtime for the purpose of completing that work. It also did not challenge the general pattern of the work of interns as described by that evidence, including that, several times a week, interns had insufficient time to complete discharge paperwork during their rostered hours and performed that work beyond those hours. Dr Braun and Dr Nye accepted it occurred from time to time and must be taken to have been aware of it. 246 Instead, Peninsula Health contended that where an intern, such as Dr Bolton, had failed to complete discharge summaries at the end of their shift, the intern had a number of "choices" available, as follows: (i) To leave work and continue working on the discharge summaries during another shift; (ii) To leave work and hand over the discharge summaries to the incoming doctor; (iii) To continue working on the discharge summaries outside of her rostered hours and to seek authorisation for that time as unrostered overtime (as Dr Van Berkel did on three occasions in 2018, each of which was paid); (iv) To continue working on the discharge summaries outside of her rostered hours and not seek authorisation for that time as unrostered overtime (including because the amount of time spent "was not worth claiming" in Dr Bolton's view or because she did not want to "waste time" seeking approval); and (v) In the event of a backlog of incomplete discharge summaries, to speak to Dr Nye, or her registrar/consultant about her workload, in accordance with the direction issued to Dr Bolton [and other interns by Dr Nye during orientation sessions to speak to her, or their consultants/registrar if they were falling behind on work, which included completion of discharge summaries]. 247 On that basis, Peninsula Health contended that it was not the case, and that there was no evidence to support the proposition, that Dr Bolton was required to stay beyond her rostered hours to complete discharge paperwork. 248 Paragraphs (i), (ii) and (v) of that submission seek to demonstrate that there were mechanisms available to interns like Dr Bolton to avoid discharge paperwork being performed beyond the intern's rostered hours, presumably in support of a contention that it was not necessary for interns to perform that work at that time. However, the mechanism at (i) would not avoid the work but simply delay it to another day; the mechanism at (ii) was not a practical option as I have determined in the discussion above at [229]-[233]; and, as to (v), it does not follow that the capacity to speak to a superior about an intern's workload would necessarily lead to the intern avoiding having to complete discharge paperwork during unrostered hours. There was also no evidence of that occurring or evidence supporting any reasonable expectation that it would occur. In any event, the relevant question is not what an intern could have done to avoid the work, but whether the circumstances convey a request or requirement for the work to be performed. The circumstances here relied upon by Peninsula Health do not convey anything of significance on the relevant question. 249 Paragraphs (iii) and (iv) of the submission are not directed to saying that Dr Bolton had options available to her for avoiding the performance of discharge paperwork outside of her rostered hours. What point is here sought to be made is somewhat unclear. It may be accepted that Dr Bolton performed the work in excess of her rostered hours expecting that Peninsula Health would not pay her for the work. However, that expectation says very little of any significance about whether or not Peninsula Health expected the work to be performed and thereby impliedly authorised it. It may be that Peninsula Health was here relying upon the existence of the Policy, the Guideline and the Department of Medicine Overtime Policy. However, for essentially the same reasons I have given in relation to ward round preparation overtime, the existence of those policies do not diminish or negate the implied authorisation substantiated by the conduct and other circumstances relied upon by the applicants. 250 There are two other matters relied upon by Peninsula Health, each of which is to be rejected. 251 The first is a passing comment made by Dr Bolton that "I knew that I was staying longer than I needed to". In so far as that comment is relied upon to say that Dr Bolton knew that she was not expected to stay beyond her rostered hours to complete discharge summaries, the submission misunderstands the evidence. Dr Bolton's evidence, read as a whole, could not be construed as suggesting that she understood that Peninsula Health did not expect her to complete discharge paperwork beyond her rostered hours. Rather, Dr Bolton made that comment while giving an explanation as to why she did not obtain authorisation under the Department of Medicine Overtime Policy. She explained that she just wanted to go home as quickly as possible and therefore did not want to waste time by calling Dr Braun or another consultant to obtain authorisation for the overtime, a call which may take five to 10 minutes, in circumstances where she was already staying back later than she needed to, that is, past her rostered finish time. 252 Second, Peninsula Health contended that Dr Bolton had imposed her own personal KPI of completing 100% of discharge summaries on patient discharge and that she then structured her work hours by reference to her own personal KPI, rather than the KPI the subject of Peninsula Health's direction. The contention here seems to be that Dr Bolton performed the overtime claimed, not because it was required and thus authorised by Peninsula Health, but because Dr Bolton went above and beyond and provided work in excess of what was required of her. 253 That contention is based on Dr Bolton stating that it was clinically desirable for all discharge paperwork to be completed within 48 hours of discharge thus meeting a "goal" which equated to "100% KPI". Dr Bolton accepted that to do so was a "goal" of hers. However, she gave that evidence acknowledging her understanding that "the hospital was not mandating 100% completion". 254 There are two answers to this contention. First, in so far as "goals" or desirable objectives are concerned, Dr Bolton's position is not at all inconsistent with that of Peninsula Health. Dr Braun agreed that "your aim" (being an apparent reference to the aim within the Department of Medicine) was that, where possible, interns and members of teams should aim to complete 100% of discharge summaries at discharge. 255 If Dr Bolton was working to Peninsula Health's requirement of completing 90% of discharge summaries within 48 hours of discharge whilst aiming to achieve a 100% rate of completion, what she was doing was not inconsistent with Peninsula Health's expectation. Second, even if that was not so, there is no evidence to support the proposition, which is at the heart of Peninsula Health's contention, that the cause of the overtime performed by Dr Bolton was her goal of 100% completion rather than Peninsula Health's requirement of 90% completion. That her own goal was the cause of her overtime work was never put to Dr Bolton. Nor is Dr Bolton's supposedly idiosyncratic approach consistent with the evidence that it was common for interns to be working overtime to complete discharge summaries. 256 I am satisfied on the evidence set out above that the pattern of work required of interns and residents meant that, from time to time and in order for discharge paperwork to be completed in the timely way required by Peninsula Health, interns and residents performed discharge paperwork outside of their rostered hours. I am also satisfied that, on every occasion on which Dr Bolton performed discharge paperwork, she did so because there was insufficient time available to her during her rostered hours to complete that work in the timely way expected by Peninsula Health. That pattern of working overtime was understood in the General Medicine unit as likely to be necessary from time to time. When Peninsula Health's ongoing direction to interns to complete discharge paperwork in a timely way was made in that context, what was conveyed was Peninsula Health's expectation, and thus its request or requirement, that, if it were necessary to meet the KPI requirements, the work be performed in excess of the junior doctor's rostered hours. 257 For those reasons and subject to any further issues going to quantum, I find that the medical records overtime claimed to have been worked by Dr Bolton was authorised by Peninsula Health and engaged the payment obligation in cl 36.2(a)(ii) of the 2018 Agreement. 258 In arriving at that conclusion, I have taken into account the five circumstances relied upon by Peninsula Health and listed at [125], the Policy and the Guideline, as well as the existence of the Department of Medicine Overtime Policy. For essentially the same reasons I have given in respect of ward round preparation overtime at [181]-[202] above, none of those matters serve to negate or relevantly diminish the implied authorisation given by Peninsula Health which is apparent from the facts and circumstances that support the conclusion I have reached.

Plastics rotation in the Department of Surgery - June 2019 to August 2019

Ward round preparation overtime 259 The Plastics unit is in the Department of Surgery at Frankston Hospital. During Dr Bolton's rotation between 3 June 2019 and 11 August 2019, it was staffed by 11-12 specialist consultants including Dr Terrill, four registrars, being Dr Lisa Ellis, Dr Phan, Dr Kimberley Hughes and Dr Read, two residents for most of the rotation, being Dr Jonathan Khoo and Dr Isaac Lee and for the last week of the rotation being Dr Ryo Ueno and Dr Zander Edwards, and one intern which was Dr Bolton. 260 It is uncontroversial that Dr Bolton's roster for her entire Plastics rotation commenced at 7 am. Dr Phan and Dr Read's evidence was that ward rounds in the unit were scheduled to start at 7 am and most commonly did start at 7 am but often they started earlier and occasionally they started later. It is not in issue that Dr Bolton's duties and responsibilities in the Plastics rotation included preparing for ward rounds. 261 The following contention made by the applicants, which described the tasks involved in preparing for ward rounds in the Plastics unit, was supported by the evidence of Dr Bolton, Dr Phan and Dr Read and is accepted: updating the patient list, which was a Google or Word document accessible only to medical staff in the unit, by entering the details of newly admitted patients which included the reasons for admission and any management plans; updating information for existing patients' test results that had come in overnight; being familiar with any significant changes in the patient's clinical condition overnight; arranging for dressings to be 'taken down' (temporarily removed), either by nursing staff or doctors including Dr Bolton, so that a patient's wound could be inspected on the rounds; reviewing the patient's paper files and recording on the list relevant information including drain outputs; printing the list; printing the theatre list for that day; and ensuring the wound bag (which contained special dressings used only in plastic surgery) was stocked and ready for use on the round. 262 Peninsula Health did not lead any evidence contesting the nature or extent of the tasks involved in ward round preparation. In its submission, it suggested that the extent of the tasks relied upon by the applicants is somewhat broader than that which was pleaded but made no submission that the applicants were disentitled to rely upon the full extent of the tasks relied upon at trial. In any event, I am not persuaded that the tasks relied upon are not encompassed by the pleaded case. 263 Dr Bolton gave evidence that each day during her Plastics rotation, she arrived approximately 30 minutes before her rostered start time of 7 am and undertook ward round preparation between 6.30 am and 7 am because "arrival prior to 7 am to do those tasks was expected". Although I do not accept that ward rounds always commenced at, or prior to, Dr Bolton's rostered 7 am start, I am satisfied that there was an expectation, and thus a requirement, made by Peninsula Health of Dr Bolton to perform ward round preparation prior to the commencement of ward rounds. 264 The expectation in question was most clearly expressed by reference to the scheduled 7 am start for ward rounds in a document titled "Plastics Intern Handover - Rotation 2 2019" which I will refer to as the Plastics Intern Handover Document. It is convenient to extract the relevant contents of that document as relied on by the applicants: Daily structure: • Arrive 6.30: • Update Plastics Ward List (excel document) - check Clover and WhatsApp for new admits, patient locations • Update any bloods/imaging etc. that has been done overnight • Check all patient obs • Call wards and check ensure dressings are down for patients that need to have a wound reviewed … • Print theatre list and photocopy/attach to ward list … • 7am Ward Round 265 This document is consistent with a document titled "Peninsula Health - ROVER Rolling Handover Booklet for Interns Plastic Surgery" which I will refer to as the Plastics Rover. The Peninsula Health Plastics Rover stated that "[w]ard Rounds start at 7.00AM … [r]esidents/interns generally start 30 minutes prior to update list, get dressings down". Dr Bolton said that she did not receive the Plastics Rover. However, from the evidence about the use of Rovers generally, I would infer that the Plastics Rover contributed to the understanding in the Plastics unit as to Peninsula Health's expectation that interns and residents would generally start 30 minutes prior to the commencement of ward rounds to perform ward round preparation tasks. 266 In any event, the expectation expressed in those documents was confirmed to Dr Bolton by outgoing interns as well as other doctors. Dr Bolton's evidence was that the outgoing intern Dr Prayaga, and the residents Dr Lee and Dr Khoo who had joined the Plastics unit some weeks before her, told her that she was expected to undertake ward round preparation before her rostered commencement time. That Peninsula Health delegated authority to interns and residents to communicate its expectations and requirements regarding an intern's duties was confirmed by Dr Terrill who agreed in cross-examination that, in her role as Head of Unit, she "trust[s] interns to communicate the way the department operates and the aspects of the day-to-day role". 267 The existence of that expectation, and the requirement which arises from it, was further confirmed by communications received by Dr Bolton, from time to time, to prepare for ward rounds outside of her rostered hours. Dr Bolton gave evidence that the requirement to arrive at work prior to 7 am to prepare for ward rounds was "also communicated … [to me] a number of times throughout that rotation by one of my registrars, Dr Tavis Read". Dr Read's evidence was that the requirement to complete ward round preparation would be explained to interns by the pre-existing team, as well as by registrars who "would clearly explain if it wasn't clear already that [junior doctors] needed to prepare for the ward rounds in order to start on time at 7 am". Dr Read's evidence was that, although he did not "explicitly" direct Dr Bolton to complete ward round preparation outside of her rostered hours, preparing for ward rounds prior to 7 am was "part of her responsibility to ensure that they had that information and that meant they needed to be there". 268 Dr Terrill accepted that the description by Dr Bolton and Dr Read of what was required of interns in preparing for ward rounds was "the normal expectation" in the Plastics unit. Dr Terrill agreed that she would expect that ward round preparation would need to be done before 7 am if the ward round was to commence at 7 am. 269 Further, on some, but not all, of the days of the rotation, Dr Bolton received WhatsApp messages sent to the Plastics team from registrars Dr Hughes, Dr Read and Dr Ellis asking for wound dressings to be taken down which were sent between 6.15 am and 6.38 am. For example, one such message from Dr Read on 1 July 2019 at 6.18 am reads "[d]ressings down on the traumas for the round this morning thanks team". I regard these WhatsApp messages as reminders to perform certain work, communicated on the understanding that the relevant junior doctor, including Dr Bolton, will be at work around that time to perform the work in question. Thus, the messages are confirmatory of the underlying requirement that ward round preparation, which includes taking dressings down, must be completed before ward rounds commence at 7 am and therefore outside of rostered hours. 270 That evidence further establishes that Peninsula Health either knew, or must be reasonably understood to have known, that Dr Bolton was performing ward round preparation prior to the commencement of ward rounds. The expectation as evidenced in the Plastics Intern Handover Document and Plastics Rover establishes that Peninsula Health had constructive knowledge that Dr Bolton would likely be performing work in accordance with that expectation. With respect to actual knowledge, Dr Read gave evidence that he knew Dr Bolton did ward round preparation outside of her rostered hours because he saw her do it "regularly" and because, throughout the ward round, Dr Bolton had the required information available (that is, the information she could only have obtained by completing ward round preparation prior to her rostered start time). Dr Phan also told the Court that he saw Dr Bolton (and other interns) working before her rostered hours and that he assumed she had completed ward round preparation overtime because "[w]hen the ward round started, the handover sheet was completed; the dressings were down; and we could proceed smoothly". Dr Bolton also gave evidence about conversations she had with these registrars where they acknowledged she was working unrostered overtime. 271 Dr Terrill also knew, from at least February 2016, that interns and residents worked prior to their rostered start time to prepare the patient list because she was told that "[i]t is not possible to avoid early starts" in the Plastics unit. In September 2019, Dr Terrill was made aware that interns and residents in the Department of Surgery were required to perform unrostered overtime "to complete everyday activities" including by attending "0600 to 0700, preparation for ward round". Dr Terrill agreed in cross-examination that the issue of junior doctors performing ward round preparation in unrostered overtime "was an issue across the previous three years" (that is, between February 2016 and September 2019 which covered the relevant period of Dr Bolton's rotation). 272 In substance, Peninsula Health did not seek to deny the fact that Dr Bolton was expected to carry out ward round preparation before ward rounds commenced. Its primary response was that ward round preparation did not take as long as Dr Bolton claims and therefore Dr Bolton was not authorised to spend 30 minutes doing that work as that amount of time was neither reasonable nor necessary to complete the work. That contention confuses the question of what Dr Bolton was authorised to do with what Dr Bolton actually did, a matter which I will later consider when assessing Dr Bolton's loss. 273 The Plastics Intern Handover Document and Plastics Rover specified the time interns like Dr Bolton were expected to commence work, on the basis that those setting the expectation on Peninsula Health's behalf must have regarded 30 minutes as the time ordinarily required to perform the tasks required. That ward round preparation may have, on occasions, taken less than 30 minutes does not mean that interns and residents were not authorised to perform 30 minutes of ward round preparation overtime even if that amount of time was not reasonably necessary on any given day. In the absence of a contrary indication, an authorisation to spend a certain amount of time on a task, which requires arriving at work at a designated time, extends to cover a situation where the employee commences work at the designated commencement time even though it turns out that, on a particular day, the tasks required to be performed take less time than the time which, ordinarily, is reasonably necessary to perform the tasks required. I accept that Dr Bolton was authorised by Peninsula Health to carry out ward round preparation for at least 30 minutes each day and to do so immediately prior to the commencement of ward rounds, including when to do so meant performing the work in excess of her rostered hours. 274 I reject the existence of any contrary circumstances which negate or diminish the implied authorisation given by Peninsula Health. I do not consider that any of the policies relied upon by Peninsula Health negate the implied authorisation that I have found to have existed. Nor do the five matters relied upon by Peninsula Health and set out above at [125]. 275 I would infer that the Policy and the Guideline were not generally known or applied in the Department of Surgery. For example, those witnesses who worked in the Plastics unit - Dr Terrill, Dr Phan and Dr Read - all gave evidence that they had either never seen, or had no recollection of seeing, the Policy or the Guideline. As such, for the same reasons given with respect to the Department of Medicine, the Policy and the Guideline have no application here. 276 The non-application of the Policy and the Guideline is also confirmed by the fact that the Department of Surgery had its own, department-specific policy. On its face, the overtime approval process in the Department of Surgery is set out in a form titled "Surgical Intern/HMO/Registrar Unrostered Overtime Documentation & Authorisation Form". The Form provides that registrars have delegated authority to authorise overtime in the Department of Surgery. Junior doctors who work overtime must seek authorisation from a registrar on the Form and then also document their overtime hours on their timesheet which would then be processed by administrative staff in the Department of Surgery. This process was well-known to staff in the Plastics unit, including Dr Bolton. 277 However, there was evidence that an understanding or practice existed in the Plastics unit that pre-shift commencement overtime was not claimable. Dr Bolton gave evidence that Dr Read told her that "any ward round preparation, so that half an hour prior to the commencement of ward rounds, was not claimable [as overtime]" but that he was "happy to sign off any overtime worked post our shift commencement, and any occasions when the consultants requested an earlier ward round start". Dr Read did not recall saying this to Dr Bolton but gave evidence that such a view "was consistent with [his] expectations" and that it was possible he communicated this position to Dr Bolton. On the basis of Dr Read's explanation of what was and was not claimable, Dr Bolton claimed overtime on 51 occasions during her Plastics rotation pursuant to the policy and was paid for each of those occasions. Five of those claims were for pre-shift overtime when a consultant requested ward rounds to commence earlier than 7 am and 46 claims were for post-shift overtime. Dr Bolton never made a claim for pre-shift commencement overtime for ward round preparation because she did not think it was claimable. 278 Dr Terrill is a consultant who was in the unit half to one day per week. She was, nonetheless, the Head of the Unit. She disagreed that pre-shift commencement overtime for ward round preparation was not claimable and said that she would have corrected Dr Read had she known he had said this. Peninsula Health did not otherwise point to any evidence that established that the Department of Surgery Overtime Policy, as explained by Dr Terrill as permitting overtime to be claimed for both pre-shift commencement and post-shift commencement hours, was communicated to Dr Bolton or any other junior doctor. Dr Read worked directly with interns and residents in the Plastics unit. Dr Read's evidence of his understanding that pre-shift commencement overtime was not claimable is likely to reflect the objective understanding of junior doctors and their direct supervisors in the Plastics unit. Those employees, including Dr Bolton, would not have understood that the policy had any application to pre-shift commencement overtime and the existence of the policy would not support an understanding that the only way in which Peninsula Health authorises pre-shift commencement overtime is when it does so in accordance with the policy. As such, the existence of the Department of Surgery Overtime Policy does not diminish or negate the inference that I have found to have existed that Peninsula Health expected, and therefore impliedly authorised, interns in the Plastics unit to prepare for ward rounds prior to the commencement of their rostered hours. 279 Accordingly, as stated already and subject to the determination of any issues going to quantum, I find that the ward round preparation overtime claimed to have been worked by Dr Bolton in her Plastics rotation was authorised by Peninsula Health and engaged the payment obligation in cl 36.2(a)(ii) of the 2018 Agreement.

Second General Medicine rotation in the Department of Medicine - August 2019 to October 2019

Medical records overtime 280 Dr Bolton completed a second rotation within the General Medicine unit from 12 August 2019 to 20 October 2019. The applicants claim and Peninsula Health admits that Dr Bolton's duties in her Second General Medicine rotation included completing medical records for patients (primarily discharge paperwork). Medical records overtime is the only kind of overtime work relevant to this rotation, noting that the applicants do not press the claim for ward round preparation overtime as originally pleaded. 281 The parties agree that the tasks involved in completing medical records for this rotation were the same as in the First General Medicine rotation. I will therefore not set out again the explanation of what the completion of medical records, and particularly discharge summaries, involved as I have done so above at [221]-[236]. 282 Dr Bolton claims that she spent 20 to 40 minutes three days per week in the Second General Medicine rotation completing medical records (less than in the First General Medicine rotation where she claims 30 to 60 minutes per occasion). Dr Bolton explained that she spent less time completing discharge summaries in her Second General Medicine rotation because "I became more efficient at my job so things that did take longer, 30 weeks later I could do more efficiently". 283 The applicants rely on the same factors to establish implied authorisation of medical records overtime in Dr Bolton's Second General Medicine rotation as those relied upon in relation to the First General Medicine rotation. Peninsula Health's submissions that medical records overtime was not authorised are identical for the Second General Medicine rotation as for the First General Medicine rotation. Those submissions can therefore be rejected for the same reasons given above with respect to the First General Medicine rotation. 284 The evidence regarding the pattern of interns completing discharge summaries outside of their rostered hours was also relevantly the same for both General Medicine rotations. Dr Bolton's evidence was that registrars, including Dr Dana Forcey and Dr Rachel Chen, neither of whom were called as witnesses, observed her completing medical records outside of her rostered hours during this rotation. She said that these registrars also completed discharge summaries outside of their rostered hours. She also gave evidence that she directly observed her co-intern, Dr Tuzana Nawar, completing discharge summaries outside of her rostered hours as they usually split the tasks and did them at the same time. Dr van Berkel similarly gave evidence that she completed medical records overtime in both of her General Medicine rotations. Finally, Dr Bolton gave evidence that she was not instructed not to complete this work outside of her rostered hours during this rotation. 285 The Clinical Practice Guideline and the KPIs contained in that guideline with respect to completing discharge summaries also applied to Dr Bolton in her Second General Medicine rotation. I am therefore satisfied on the basis of the evidence that the relevant conduct and circumstances relied upon by the applicants for the First General Medicine rotation are materially the same for the Second General Medicine rotation. As such, the same conclusions stated above at [256] apply to Dr Bolton's claim for medical records overtime in the Second General Medicine rotation. In summary, Peninsula Health was aware that interns, including Dr Bolton, did not have sufficient time during their rostered hours to complete discharge summaries in accordance with the KPIs set by Peninsula Health. When Peninsula Health's ongoing direction to interns to complete discharge paperwork in a timely way was made in that context, what was conveyed was Peninsula Health's expectation, and thus its request or requirement, that, if it were necessary to meet the KPI requirements, the work be performed in excess of the intern's rostered hours. 286 For those reasons and subject to any further issues going to quantum, I find that the medical records overtime claimed to have been worked by Dr Bolton in the Second General Medicine rotation was authorised by Peninsula Health and engaged the payment obligation in cl 36.2(a)(ii) of the 2018 Agreement.

Cardiology rotation in the Department of Medicine - November 2020 to January 2021 287 Dr Bolton undertook a rotation in the Cardiology unit at Frankston Hospital from 2 November 2020 to 31 January 2021 and took a period of carer's leave from 24 November 2020 to 16 December 2020. The Cardiology unit is a specialist unit within the Department of Medicine. It provides inpatient and outpatient services. An inpatient is a patient who has been admitted for an overnight stay in hospital whereas an outpatient is not admitted to stay overnight and is instead scheduled to undergo a day procedure. 288 During Dr Bolton's rotation, the Cardiology unit consisted of a 24-bed ward, and patient numbers varied from as low as four to as high as 26-28 patients, although there is no limit on how many patients the Cardiology unit will accept. At that time, the Cardiology unit was staffed by 12-13 cardiology specialist consultants, including Dr Carrillo and Dr Toogood, two advanced trainees in cardiology, Dr Jason Bloom and Dr Luke Dawson, one advanced trainee in general medicine, Dr Dan Epa, one basic physician trainee registrar, Dr Joel Smale, and two to three second year residents. Dr Bolton rotated through the Cardiology unit as a critical care resident, along with two other residents, and was classified as an "HMO 2" under her second contract of employment. The other residents were Dr Roshenee Gunusagaran and Dr Lucy Tuck for the first week of her rotation and then Dr Hein Aung and Dr Thanawan Chirakjja. The Head of Unit was Dr Carrillo who reported to Dr Braun. 289 In this rotation, Dr Bolton worked a "three-week rotating roster" meaning that she was rostered to work as follows: (a) Week 1: Monday, Tuesday and Thursday from 8 am to 4 pm; Wednesday from 7.30 am to 4 pm; and Sunday from 8 am to 3 pm; (b) Week 2: Monday to Friday from 3.45 pm to 9.45 pm; and (c) Week 3: Monday, Tuesday and Friday from 8 am to 4 pm; Wednesday from 7.30 am to 4 pm; Thursday from 8 am to 1 pm; and Saturday from 8 am to 3 pm. 290 In this rotation, Dr Bolton claims for the following four categories of overtime which are further described below: medical procedures preparation overtime, ward round preparation overtime, medical records overtime and handover overtime.

Medical procedures preparation overtime and ward round preparation overtime 291 Medical procedures preparation and ward round preparation are two distinct categories of work and the parties accept that both tasks were part of Dr Bolton's duties and responsibilities. However, Dr Bolton's claims in relation to these tasks in this rotation are linked as both of these forms of overtime are alleged to have been worked before the commencement of her rostered shift. Dr Bolton's evidence was that on weekday mornings, except on Wednesdays, when she was rostered to start at 8 am, that is, in weeks 1 and 3 of her three-week rotating roster, she attended work approximately 20 minutes before 8 am to prepare patients for medical procedures and to prepare for ward rounds. 292 Therefore, although these two types of overtime were dealt with separately by the parties, I will largely consider them together. 293 Dr Bolton's evidence was that I usually arrived at around 20 minutes to 8, and the first task of the day was to ensure that any patients having procedures done at 8 am onwards in the day, being pacemaker insertions or cardiac angiography, primarily, had consent forms completed and in their folders, and if they were missing or were incomplete, it was my job to go and consent the patients for those procedures. 294 Obtaining consents involved explaining the procedure to the patient, why it was being done, the alternatives to undergoing the procedure, the risks associated with the procedure, and the risks of not undergoing the procedure. Dr Bolton then answered any questions that the patient or their representative had, and, once satisfied "that [the patient] understood" the procedure, she obtained their written consent for the procedure by completing a paper consent form that she and the patient would sign. 295 Dr Toogood gave a similar overview of a resident's duties in the patient consenting process, saying it was "to check [a patient's] blood tests, go through the procedure and perhaps get them to sign the consent form in front of them" which Dr Toogood would also recheck. Dr Toogood also gave evidence that it was his expectation that residents in the Cardiology unit would prepare patients before medical procedures, including obtaining consents (notwithstanding that the ultimate responsibility for ensuring consent had been obtained lay with the consultant performing the procedure) and that consenting patients for medical procedures was one of Dr Bolton's responsibilities. This evidence of what was involved in consenting patients was not contradicted by any witness and I accept it. 296 It is uncontroversial that it was necessary to consent patients prior to their medical procedures in the Cardiology unit. However, it is disputed whether it was necessary for residents to come in prior to 8 am, and therefore outside of their rostered hours, to check that all consents were completed. 297 Dr Bolton did not directly explain the source of the expectation that she arrive 20 minutes early to complete patient consents and prepare for ward rounds. Unlike for the First General Medicine rotation, for example, there was no express evidence that this expectation was communicated through a handover by other interns or a Rover type document. Dr Bolton gave evidence that she received an informal handover at the start of her Cardiology rotation from two residents, Dr Lucy Tuck and Dr Roshenee Gunusagaran, but the details of the handover were not particularised. In cross-examination, Dr Bolton said that she thought that she was expected or required to arrive before 8 am to prepare patient consents because she was "reprimanded by a consultant for not having [a consent] done prior to [her] rostered start time on one occasion". She later identified that consultant as Dr Arun. She could not recall the date of that interaction. Peninsula Health did not put forward any evidence to challenge Dr Bolton's account that this occurred but submitted that "this alleged reprimand does not amount to a direction". I disagree. 298 The reprimand from Dr Arun is clearly a direction for Dr Bolton to do in the future what she had failed to do on that occasion - that is, have the relevant patient consents completed by 8 am. The direction therefore imposed a requirement that, at least from the date of the reprimand, Dr Bolton arrive at work prior to 8 am to ensure that all consents were completed. Although the date of the reprimand is unknown, the reprimand is likely to reflect a requirement that existed in the Cardiology unit, including at a time prior to the date of the reprimand, that residents ensure all inpatient consents are completed by 8 am. That such a requirement existed in the Cardiology unit is established by other evidence. 299 Dr Toogood gave evidence that there was "an understanding or a requirement in the cardiology department" that residents obtain consents prior to 8 am, outside of their rostered hours. The relevant exchange was as follows: Mr Dowling: what was the role of the resident in respect of - what work did you expect them to do in respect of the consenting process you've described? Dr Toogood: We would get them to check their blood tests, go through the procedure and perhaps get them to sign the consent form in front of them, but then again I would recheck, yes. … Mr Dowling: Now, to your knowledge, was that work that you've described that you expected from the residents done by Dr Bolton during her rotation? Dr Toogood: Yes. Mr Dowling: And was that preparation one of Dr Bolton's duties and responsibilities? Dr Toogood: Yes. Mr Dowling: And to the best of your knowledge, when was that work done by Dr Bolton on any day? Dr Toogood: It was done before 8. Mr Dowling: Thank you. Was it necessary for Dr Bolton to do that work outside of her rostered hours? Dr Toogood: It was kind of a - an understanding or a requirement in the cardiology department, but if it's not done, the procedure starts at 8 and is delayed and I would do the - the paperwork. 300 Peninsula Health did not directly contest this evidence, although it did contest Dr Toogood's capacity to know whether Dr Bolton had performed medical procedures preparation overtime as claimed given his part-time role in the Cardiology unit. 301 There was further evidence of the expectation referred to by Dr Toogood and seemingly confirmed by the reprimand given to Dr Bolton by Dr Arun. In an email addressed to Dr Braun and Dr Carrillo dated 27 November 2019 from a Cardiology resident, Dr Anthony Wishart, it was stated that "it was the expectation that the cardiology residents arrive half an hour before the round to consent the elective procedures in the cath lab and prepare the ward list". 302 Peninsula Health contended that this correspondence was not directed to the work of Cardiology residents because, according to Dr Carrillo, the reference in the email to obtaining patient consents must have been an intended reference to outpatient consents for which, as explained below, residents are not responsible. However, that contention (as well as Dr Carrillo's evidence upon which it relied) is misconceived. The correspondence was explicitly addressing an expectation made upon "cardiology residents". 303 Dr Carrillo gave evidence for Peninsula Health. At the relevant time, he was a consultant and Head of Unit but only spent about five weeks a year in the Cardiology unit. His capacity to know about the work of residents was, on his own admission, limited. Nevertheless, Dr Carrillo's evidence did cast some doubt on the need for residents to consent patients prior to 8 am. Dr Carrillo deposed, and it was not in issue, that residents only consented inpatients, not outpatients, and that the daily list of procedures generally commenced with outpatients, in circumstances where inpatients were not usually seen until about 10 am or 11 am. The suggestion here was that residents who needed to consent inpatients could do so between 8 am and 10 am or 11 am and need not have done so before 8 am. 304 Whilst Dr Carrillo acknowledged that there may be circumstances in which inpatients who are unwell will be moved to the head of the list and therefore operated on at 8 am or shortly thereafter, Dr Carrillo was of the view that those patients would likely have been admitted overnight and that the overnight doctors would have obtained their consent. 305 Dr Bolton was in a better position than Dr Carrillo to explain why it was necessary for residents to perform consents prior to 8 am. Her evidence was that the "run order" of the procedures list was often changed to accommodate inpatients who had "come in overnight". Dr Bolton deposed that the overnight doctors admitting the inpatients had no experience of Cardiology and were generally not accredited to consent the overnight inpatients for the particular procedures they required. 306 The need for residents to consent inpatients before 8 am was, on Dr Bolton's evidence, common. She deposed that there was usually at least one or two inpatients who needed to have consents done in the morning. Only on a handful of occasions was there no consents for the residents to do and the most number of consents she shared with her fellow resident was eight. The time required to perform each of the consents ranged from five to 15 minutes. She and the other resident could usually get all of the consents done in the 20 minute period prior to 8 am. Sometimes, an additional reason for doing a consent was that a consent previously done by another doctor could not be located or was incomplete. 307 I am satisfied that the expectation of Peninsula Health, as communicated to residents in Cardiology over the relevant period, was that residents rostered to commence at 8 am would commence work prior to 8 am and, in whatever time it was reasonably necessary to perform the task, ensure that all inpatients likely to be scheduled for medical procedures at or about 8 am that day had a completed patient consent form. 308 Turning now to ward round preparation, it was agreed that the tasks necessary to complete ward round preparation in the Cardiology rotation were largely similar to those in the First General Medicine rotation, discussed above at [145]. Dr Bolton's evidence was that, like in the General Medicine unit, ward round preparation in the Cardiology unit primarily involved the preparation and printing of a patient list but it also involved the additional task of preparing and printing procedural lists. 309 Dr Toogood's evidence was that residents were expected to complete ward round preparation by updating and ensuring the accuracy of the patient list before the commencement of ward rounds at 8 am. This is consistent with the statement in Dr Wishart's email to Dr Braun and Dr Carrillo that "it was the expectation that the cardiology residents arrive half an hour before the round to … prepare the ward list". Although Dr Carrillo used an electronic, rather than a printed, patient list, he agreed that residents had to ensure that patient information was accessible, accurate and up to date before ward rounds commenced and if a junior doctor felt it was necessary to come in before 8 am to prepare for ward rounds, "then that's necessary, I suppose". 310 There was some dispute regarding exactly when ward rounds typically commenced. However, even if ward rounds occasionally commenced at 8.10 am or 8.15 am as contended by Peninsula Health, an employee must be taken to understand that they are expected to be prepared by the time the task in question typically commences, notwithstanding that it may, on occasions, commence late. In the context of the eight week period concerned (being those weeks on which Dr Bolton commenced at 8 am on weekdays other than Wednesday), I am satisfied that it was more likely than not that ward rounds commonly began at 8 am and that Dr Bolton would have had to prepare the patient and procedural list before 8 am in order to be prepared for ward rounds. 311 Peninsula Health contended that Dr Bolton's evidence did not distinguish between how much time she spent completing ward round preparation compared to medical procedures preparation. She just said that she spent 20 minutes on both which, according to Peninsula Health, demonstrates that ward round preparation was not necessary given that it was work that may not have even been done had consents needed to be performed. This contention is of little relevance with respect to authorisation (although it may be relevant to quantum, which is considered below). Dr Bolton's evidence is clear that preparation for medical procedures and ward rounds occurred at the same time. It generally took her 20 minutes to ensure that both tasks were completed before 8 am. That, on some days, it took her less than 20 minutes to complete both tasks does dispel the inference that she was authorised to perform those tasks prior to 8 am in whatever time it was reasonably necessary to do so. 312 I am therefore satisfied that the expectation of Peninsula Health, as communicated to residents in the Cardiology unit over the relevant period, was that the resident rostered to commence at 8 am would commence work prior to 8 am and, in whatever time it was reasonably necessary to perform the task, prepare an accurate and up-to-date patient list prior to ward rounds commencing at, or about, 8 am. 313 Peninsula Health also must be taken to have had constructive knowledge that Dr Bolton was obtaining patient consents and preparing for ward rounds prior to 8 am on each occasion she did so. Dr Toogood explicitly acknowledged that he knew that Dr Bolton prepared the patient consents and the patient list prior to 8 am because "when I arrived [at 8 am] to do the procedures, the consent had been done" and "she was prepared" for ward rounds. His evidence was also that he knew (or believed) that residents generally completed ward round preparation before 8 am. His evidence is sufficient to establish that Peninsula Health had a general understanding that Dr Bolton was performing medical procedures preparation and ward round preparation in unrostered overtime hours, notwithstanding that Dr Toogood likely only supervised Dr Bolton for 10 ward rounds in total. 314 Further, when Dr Carrillo and Dr Braun were asked what they did in response to receiving Dr Wishart's email regarding the "expectation that the cardiology residents arrive half an hour before the round" they said that they did not take any steps to stop this practice. In circumstances where Peninsula Health was aware that residents in the Cardiology unit were expected to arrive before their rostered start time to perform work, its failure to take any steps to prevent residents from performing that work outside of their rostered hours constitutes tacit acknowledgment or approval of that practice, and therefore supports the inference that Peninsula Health impliedly authorised that work. 315 The Department of Medicine Overtime Policy, which I have considered extensively above, applied to the Cardiology unit. The conclusions expressed at [202]-[203] with respect to the Department of Medicine Overtime Policy apply equally to Dr Bolton's overtime claims for medical procedures preparation and ward round preparation overtime in the Cardiology unit. Namely, given that the policy was not extensively known or applied in the Department of Medicine, including in the Cardiology unit, I would infer that it was not understood by medical staff in that Department that Peninsula Health only intended to give its authorisation for the working of unrostered overtime pursuant to the policy. As such, there is considerable room for an inference that, on a particular occasion or occasions, Peninsula Health gave its authorisation by some means other than through Dr Braun, including by an implication conveyed by conduct and other circumstances, such as those described above. For the reasons given above, the Policy and the Guideline, as well as the five factors relied upon by Peninsula Health and discussed at [125] above, also have no substantial bearing on this question. 316 Accordingly and subject to any further issues going to quantum, I am satisfied that the medical procedures preparation overtime and ward round preparation overtime claimed to have been worked by Dr Bolton during her Cardiology rotation were authorised by Peninsula Health and engaged the payment obligation in cl 36.2(a)(ii) of the 2018 Agreement.

Medical records overtime 317 The third overtime claim for this rotation is medical records overtime. Dr Bolton's evidence with respect to medical records overtime in this rotation was that she spent between five and 10 minutes completing medical records five days per week in weeks 1 and 2 of her three-week rotating roster. 318 There was no dispute that Dr Bolton's duties and responsibilities during the Cardiology rotation included the completion of patient medical records, including discharge summaries, and the nature of this task was the same as in the First and Second General Medicine rotations. Peninsula Health accepted that Dr Bolton was directed to complete medical records in a timely manner in accordance with the Clinical Practice Guideline. It was therefore not in contest that a time-based expectation for the completion of discharge summaries was set by Peninsula Health and known to residents, including Dr Bolton. Furthermore, Dr Toogood's evidence was that junior doctors in the Cardiology unit have primary responsibility for completing discharge paperwork and junior doctors were told that "[y]ou're expected to do the discharge summaries … in a timely fashion" which is within 48 hours. Dr Carrillo confirmed that a time-based expectation had been set but added that he expected 100% of discharge summaries to be completed on patient discharge, higher than the 80% or 90% completion rate required by the KPIs prescribed by the Clinical Practice Guideline. 319 My finding that Dr Bolton was required to complete discharge summaries in accordance with the time-based expectation set by Peninsula Health is, however, insufficient of itself to substantiate that Peninsula Health requested or required discharge summaries to be completed by Dr Bolton outside of her rostered hours. The applicants also need to demonstrate that there was insufficient time during residents' rostered hours to complete the discharge summaries in accordance with the time-based expectation set by Peninsula Health and that Peninsula Health was generally aware that, from time to time, the expectation it had set may have required a resident to work beyond their rostered hours in order to complete discharge summaries. 320 Dr Bolton's description of what was required to complete discharge summaries in the Cardiology unit is not relevantly different from the description set out above at [221]-[226] with respect to General Medicine. Dr Bolton deposed that, on those days when she was rostered to finish at 4 pm, there was a rostered period from 3.45 pm to 4 pm for her and her co-resident to complete handover and discharge summaries. Dr Bolton's evidence was that the unavailability of "protected time" to complete discharge summaries meant that this task had to be completed outside of rostered hours. She explained that "non-protected time" meant that the time allocated to handover and discharge summaries "could be interrupted by medical emergencies, by nursing staff with queries, pharmacy/allied health staff with queries". Dr Bolton said that they could not "lock the door" to complete handover and discharge summaries and that she was "commonly … almost every day - interrupted by a query of some description" during that time. Dr Bolton's evidence that she would be interrupted when trying to complete discharge summaries, and that the lack of "protected time" meant that there was insufficient time within her rostered hours to complete this work, was not challenged by any other witness or disputed by Peninsula Health. 321 Peninsula Health submitted that "given the fact that the time [Dr Bolton] spent [on discharge summaries] was only 5-10 minutes, it is not clear why this work could not be … completed during the day". It is not clear to me what point Peninsula Health is trying to make here. Peninsula Health did not challenge Dr Bolton's evidence, extracted above, regarding why it was not possible to complete discharge summaries during her rostered hours. Nor, as I have said (at [245]), did it challenge the evidence from a number of witnesses with respect to interns in the General Medicine unit not having sufficient time during rostered hours to complete discharge paperwork, including because other, more urgent, tasks related to patient care took priority during the day. Peninsula Health's suggestion therefore seems to be that, because the overtime claimed in the Cardiology rotation is only five to 10 minutes per each occasion, rather than the 20 to 60 minutes claimed in the General Medicine unit, had Dr Bolton just worked slightly quicker or more efficiently then she could have completed the discharge summaries within her rostered hours. No evidence was adduced to support that proposition and it is rejected. 322 Peninsula Health also repeated for the Cardiology rotation its submissions described above at [246] about the "choices" available to junior doctors, including Dr Bolton, if they failed to complete discharge summaries by the end of their shift. However, Dr Toogood and Dr Bolton gave evidence that discharge summaries were not appropriate to be handed over to other Doctors at the conclusion of their rostered shift. No other witness gave evidence that it would have been clinically appropriate to hand over incomplete discharge summaries to the incoming resident. For that reason and the reasons given above at [248]-[249], those arguments should also be rejected for the Cardiology rotation, including those that appeared to rely upon the five matters raised by Peninsula Health set out at [125] and the existence of the Policy, the Guideline and the Department of Medicine Overtime Policy. 323 Dr Braun gave evidence (referred to above at [244]) that he knew that there were days when Doctors in the Department of Medicine were unable to complete the discharge summaries that had been allocated to them during their rostered hours and, consequently, they completed discharge summaries outside of their rostered hours from time to time. This evidence is sufficient of itself to demonstrate that Peninsula Health knew that, in order to meet the time-based expectation it had set, Doctors in the Department would, from time to time, complete discharge summaries beyond their rostered hours. That finding is generally supported by the evidence. I am therefore satisfied that the pattern of residents working overtime to complete discharge summaries in the timely way required by Peninsula Health in the Department of Medicine, and specifically in the Cardiology unit, was understood by Peninsula Health as likely to be necessary from time to time. I am also satisfied that, on every occasion on which Dr Bolton performed discharge summaries outside of her rostered hours, she did so because there was insufficient time available to her during her rostered hours to complete that work in the timely way expected by Peninsula Health. When Peninsula Health's ongoing direction to residents to complete discharge summaries in a timely way was made in that context, what was conveyed was Peninsula Health's expectation, and thus its request or requirement, that, if it were necessary to meet the time-based expectation it had set for the completion of discharge summaries, the work be performed in excess of the resident's rostered hours. 324 Accordingly and subject to any further issues going to quantum, I find that the medical records overtime claimed to have been worked by Dr Bolton in the Cardiology unit was authorised by Peninsula Health and engaged the payment obligation in cl 36.2(a)(ii) of the 2018 Agreement.

Handover overtime 325 The fourth and final claim for this rotation is concerned with time worked by Dr Bolton conducting handovers of patient information between medical staff at the end of each shift (handover). It is the applicants' case that in weeks 1 and 3 of her three-week rotating roster, Dr Bolton performed handover overtime after the conclusion of her rostered shifts three days per week, for between 10 and 15 minutes on each occasion. 326 The parties agreed that Dr Bolton's duties and responsibilities during the Cardiology rotation included the timely handover of patients which was clinically necessary. Dr Bolton deposed that a handover involves the outgoing shift explaining to the incoming shift each patient's condition, updated information, treatment plans and the tasks to be carried out that evening. In the case of Dr Bolton, these handovers generally occurred at 3.45 pm, 15 minutes before her rostered finish time but sometimes started as late as 3.55 pm. Handovers took anywhere from 10 to 30 minutes but typically took 10 to 15 minutes. Dr Bolton's evidence was that there was insufficient time to complete the handover in the 15 minutes allocated to complete this task from 3.45 pm to 4 pm "because of the nature of the unit, being very busy, and we commonly had anywhere from 20 to 30 patients under our bed card, 15 minutes alone for handover was not sufficient time to handover all of those patients". 327 Dr Carrillo deposed that it was necessary for residents to attend handover from start to finish. He said that if a handover was still ongoing at the end of the resident's rostered shift, it is his expectation that the resident would remain at work until the handover was finished, even if that meant the resident staying after their rostered hours. Dr Carrillo's evidence, as the Head of the Cardiology unit, clearly establishes that Peninsula Health expected junior doctors in the Cardiology unit to complete handovers at the end of a shift even if that meant working beyond their rostered hours. There is no dispute that Dr Carrillo's expectation was known to residents, including Dr Bolton. Peninsula Health said there was no express direction to complete handover outside of rostered hours. That is correct, but that contention does not deny what the evidence clearly established - an implied direction derived from the expectation set by Peninsula Health. As such, I am satisfied that Peninsula Health impliedly authorised Dr Bolton to perform handovers in overtime if there was insufficient time during her rostered hours to conduct or to complete a handover. 328 A number of other arguments were raised by Peninsula Health with respect to handover overtime but those submissions primarily go to quantum and not authorisation. Whether there was sufficient proof that Dr Bolton actually performed all of the handover overtime she claims will be addressed below. For the reasons given above, the Policy, the Guideline and the Department of Medicine Overtime Policy, as well as the five matters relied upon by Peninsula Health and discussed at [125] above, also have no bearing on whether Peninsula Health impliedly authorised handover overtime. 329 Therefore, subject to any further issues going to quantum, I am satisfied that the handover overtime claimed to have been worked by Dr Bolton during her Cardiology rotation was authorised by Peninsula Health and engaged the payment obligation in cl 36.2(a)(ii) of the 2018 Agreement.

ESTOPPEL DEFENCE 330 Peninsula Health contended that even if the Court found that each occasion of overtime worked by Dr Bolton was impliedly authorised by Peninsula Health, Dr Bolton is estopped from claiming payment for those hours. 331 This defence cannot succeed, both as a matter of law, and because it is not made out on the facts.

Can a claim to an entitlement under an enterprise agreement be the subject of estoppel? 332 It is a well-entrenched principle that a claim to an entitlement under the FW Act or its predecessors, or an industrial instrument or award made under the FW Act, cannot be the subject of an estoppel: Metropolitan Health Service Board v Australian Nursing Federation (2000) 99 FCR 95 at [20]-[21] (French J); Kidd v Savage River Mines (1984) 6 FCR 398 at 409-410 (Gray J); ACE Insurance Ltd v Trifunovski (2011) 200 FCR 532 at [135]-[136], [140]-[141] (Perram J); Walsh v Commercial Travellers' Association of Victoria [1940] VLR 259 at 263; Textile Clothing and Footwear Union of Australia v Givoni Pty Ltd (2002) 121 IR 250 at [24]-[32] (Goldberg J); Irving M, Contract of Employment (2nd ed, LexisNexis Butterworths, 2019) at p 432 [7.58]. 333 As French J said in Metropolitan Health v ANF at [20]: The inability to contract out of an award by virtue of its statutory operation militates against the proposition that parties may be estopped from enforcing its provisions or may waive its benefits in a way that is legally enforceable. The effect of the statutory provisions which give awards their binding force are at least as powerful against the common law and equitable principles of estoppel and waiver as they are against the common law of contract. There is nothing novel in the general proposition that statutes which preclude contracting out of the rights and obligations they confer will defeat the application of estoppel and waiver to like effect: Beckford Nominees Pty Ltd v Shell Co of Australia Ltd (1986) 73 ALR 373 at 378 (Pincus J). 334 Most of the decisions cited above in support of the principle, including that of French J in Metropolitan Health v ANF, were dealing with an award whereas the present case concerns whether estoppel can defeat a claim for an entitlement under an enterprise agreement. That difference is not material. The basis of the principle is that statutory rights or entitlements conferred pursuant to a public policy, not merely a private right, cannot be contracted out of and therefore cannot be defeated by an estoppel: Metropolitan Health v ANF at [21] (French J). Enterprise agreements, like awards, have a "legislative character": Toyota Motor Corporation Australia Ltd v Marmara (2014) 222 FCR 152 at [88]-[90] (Jessup, Tracey and Perram JJ); Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2021) 289 FCR 308 at [94]-[95] (White J). 335 The application of that principle means that Peninsula Health cannot raise an estoppel as a defence to defeat a claim that it contravened the 2018 Agreement and s 50 of the FW Act. The obligation on Peninsula Health imposed by cl 36.2(a)(ii) of the 2018 Agreement is absolute - it must pay overtime where it authorises an employee to work hours in excess of his or her rostered hours and that work is performed. It cannot contract out of or avoid that obligation by obtaining the agreement of the employee nor can an employee release Peninsula Health from its statutory obligation by making a representation. Even a fraudulent representation has been held to be ineffective. So much was held in Walsh where the adult plaintiff, who had fraudulently misrepresented that he was 19 to get the job, was entitled to succeed in his claim to recover the difference between the junior wages he was paid and the adult wages to which he was entitled because otherwise, as Mann CJ concluded at 263, the operation of the statutory provision prescribing minimum rates would be "destroy[ed]". 336 Nothing in the above discussion bears on the question of whether a party who has consented to a dispute resolution process can be estopped from later raising an objection to the competency of that process: Metropolitan Health v ANF at [25] (French J); Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2017] FCA 1245. As I said in Yallourn at [141], that is a "distinct … species of estoppel" from the estoppel "contemplated by French J [in Metropolitan Health v ANF], by which a party to a contract may be estopped from enforcing those provisions which give rise to rights and obligations in law" and "may be considered to be more in the nature of a rule or principle governing evidence or pleadings". Therefore, contrary to the point raised by senior counsel for Peninsula Health in oral submissions, my decision in Yallourn does not assist Peninsula Health. 337 Accordingly, I am of the view that because, as a matter of law, Peninsula Health cannot raise estoppel as a defence to the claims made that it contravened the 2018 Agreement and s 50 of the FW Act, Peninsula Heath's estoppel defence must be rejected.

Estoppel does not arise on the facts 338 In any event, even if I am wrong about whether estoppel is available to Peninsula Health as a matter of law, I do not consider that estoppel arises on the facts. 339 The parties agreed that the frequently cited statement of Dixon J in Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 674 identified the relevant principle to be applied here: The principle upon which estoppel in pais is founded is that the Law should not permit an unjust departure by a party from an assumption of fact which he has caused another party to adopt or accept for the purpose of their legal relations. This is, of course, a very general statement. But it is the basis of the rules governing estoppel. Those rules work out the more precise grounds upon which the law holds a party disentitled to depart from an assumption in the assertion of rights against another. One condition appears always to be indispensable. That other must have so acted or abstained from acting upon the footing of the state of affairs assumed that he would suffer a detriment if the opposite party were afterwards allowed to set up rights against him inconsistent with the assumption. In stating this essential condition, particularly where the estoppel flows from representation, it is often said simply that the party asserting the estoppel must have been induced to act to his detriment. 340 The representation said to have been made by Dr Bolton by Peninsula Health's final submissions differed from that pleaded, but no objection was taken by the applicants. A simple representation was asserted as follows: "Dr Bolton represented to Peninsula Health, and Peninsula Health assumed, that Dr Bolton had not performed any unclaimed unrostered overtime and/or did not wish to claim payment in respect of any excess hours she had worked." 341 Peninsula Health contended that the following course of conduct by Dr Bolton constituted a clear representation that Dr Bolton had not performed any unrostered overtime and/or did not wish to claim payment in respect of any overtime performed: (a) Not seeking authorisation in accordance with the Policy and the Guideline for the overtime the subject of this proceeding; (b) Not recording the unrostered overtime hours the subject of this proceeding on her timesheets (or a variation form, as applicable); (c) Certifying on each of her timesheets that the hours she had recorded (which excluded any claim for the unrostered overtime the subject of this proceeding) were true and correct; and (d) Not making a claim for payment for the unrostered overtime hours the subject of this proceeding until she issued this proceeding against Peninsula Health. 342 I will assume, without deciding, that the conduct referred to sustains the representation asserted. However, although put as a single representation, Peninsula Health has actually asserted two representations which are alternatives. The first, that Dr Bolton had not performed unrostered overtime, proceeds on an assumption that what was represented was that no overtime work was performed. The second, that Dr Bolton did not wish to claim payment, proceeds on the assumption that what was represented was that overtime work was performed. Furthermore, understood in the context of the conduct of Dr Bolton that was relied upon by Peninsula Health, Peninsula Health must be understood to be asserting that one or other of those representations was made by Dr Bolton each time she submitted a timesheet 343 The "indispensable" condition referred to by Dixon J in Grundt at 674 was that the party asserting an estoppel "must have so acted or abstained from acting upon the footing of the state of affairs assumed". 344 In asserting that condition, often referred to as "reliance", Peninsula Health said (and only relevantly said) this: Peninsula Health acted in reliance on that representation and assumption by paying Dr Bolton in accordance with her timesheet, and by not conducting a contemporaneous investigation into either her practices or the practices of the relevant unit to understand the circumstances which led to her working excess hours. 345 The estoppel being asserted is, as I understand it, based on the proposition that because Dr Bolton represented that she had not worked overtime (when, in fact, she had) and because Peninsula Health relied upon that representation by not conducting a contemporaneous investigation, Peninsula Health suffered detriment. Broadly stated, the detriment asserted by Peninsula Health was twofold. First, by losing the opportunity to investigate Dr Bolton's propensity to perform unrostered work, it is now less able to meet by specific evidence the case put against it in this proceeding. Second, it did not avoid Dr Bolton working unrostered overtime in circumstances where the conduct of an investigation may have led to that result. 346 It is not clear to me what reliance is placed on the asserted representation that Dr Bolton did not wish to claim payment for the excess hours she had worked. That representation, if made, would run counter to Peninsula Health's case based on it having been misled into not conducting an investigation because it relied on the representation that no unrostered overtime was being performed by Dr Bolton. 347 Be that as it may, Peninsula Health has failed to demonstrate that estoppel arises on the facts. There is no evidence that Peninsula Health acted in reliance upon the representation or representations asserted in not conducting a contemporaneous investigation. However, Peninsula Health must establish that it actually relied on the assumption as a matter of fact because reliance "is not to be imputed on the basis of evidence which falls short of proof of the fact": Sidhu v Van Dyke (2014) 251 CLR 505 at [58] (French CJ, Kiefel, Bell and Keane JJ). 348 Peninsula Health did not call any evidence from any representative of Peninsula Health who deposed that Peninsula Health acted in reliance upon the representation or representations of Dr Bolton relied upon. As Gageler J said in Sidhu at [92]-[93], a party cannot raise an estoppel if they "would have been in the same position" and not "adopted a different course (of either action or refraining from action)" had the assumption not been induced. 349 If reliance was intended by Peninsula Health to be inferred from evidence of Peninsula Health's conduct, Peninsula Health made no such submission. If such a submission had been made, all of the circumstances relevant to drawing an inference of that kind would need to be considered. A relevant circumstance that would need to be taken into account, and which would likely dispel any inference of the kind that Peninsula Health might have contended ought to be drawn, are the facts, as earlier found, that on numerous occasions Peninsula Health authorised Dr Bolton to perform unrostered overtime. Furthermore, other findings, including that Peninsula Health had knowledge of Dr Bolton working unrostered overtime, would need to be taken into account. It would also need to be taken into account that Peninsula Health had a general understanding that junior doctors in general were working unrostered overtime and yet did not adduce any evidence of conducting any investigation of the kind it asserted it lost the opportunity to conduct in respect of Dr Bolton. 350 The applicants in their submission point to Peninsula Health's failure to address the evidence just outlined in contending that the defence of estoppel cannot succeed. In the absence of Peninsula Health establishing that it relied upon the representation or representations it contends for, the estoppel defence must also fail on the facts. 351 Accordingly, for those reasons, Peninsula Health's estoppel defence fails.

DR BOLTON'S LOSS 352 Dr Bolton alleges that, as a result of Peninsula Health's contraventions of the FW Act, she suffered loss made up as follows: (a) For the First General Medicine rotation - $3,603.17; (b) For the Plastics rotation - $1,844.85; (c) For the Second General Medicine rotation - $1,261.30; and (d) For the Cardiology rotation - $1,636.19. In total, Dr Bolton claims $8,345.51, not including interest up to and from judgment. 353 On its alternative case, that is, if the Court considered that Dr Bolton was entitled to payment for unrostered overtime, Peninsula Health calculated Dr Bolton's entitlements in two different ways, submitting that the maximum possible amount to which Dr Bolton is entitled is $4,341.30 (not including interest up to and from judgment), made up as follows: (a) For the First General Medicine rotation - $1,965.90; (b) For the Plastics rotation - $472.50; (c) For the Second General Medicine rotation - $579.04; and (d) For the Cardiology rotation - $1,323.86. 354 Each of those calculations includes Dr Bolton's claim for ward round overtime in her First General Medicine rotation which I have found was not worked with the authority of Peninsula Health. I need not deal further with that claim. As might be observed, the monetary difference between the parties is small. Despite that, the parties have provided long, complex, competing submissions backed by detailed analysis, the cost of which would no doubt have rendered the monetary difference between the parties completely inconsequential. I appreciate, however, that the determination of some of the issues which separate the parties may assist the resolution of the claims of group members. That may explain why a commercially sensible compromise about the extent of Dr Bolton's loss was not reached. 355 Before dealing with the detail of each category of overtime claimed, there are some matters of general application which can be usefully addressed now. 356 Peninsula Health took issue with the applicants' approach to proving that Dr Bolton had actually worked the extent of the time she claimed to have worked in relation to each category of overtime. In circumstances where Dr Bolton was, unsurprisingly, unable to give precise evidence as to how long she worked on each occasion she claims to have performed overtime, the applicants, in large part, relied on Dr Bolton's evidence of her pattern of work, including how long she usually took to complete the overtime work she deposed she had performed. As the evidence recorded above demonstrates in relation to the overtime claimed to have been worked, Dr Bolton either deposed as to the range of time it ordinarily took her to complete the task in question or deposed to the extent of the overtime that she performed prior to the commencement of her rostered shift by giving evidence as to the usual time at which she commenced work on the days in question. 357 A number of objections were made by Peninsula Health that Dr Bolton's evidence was general and imprecise. Those objections were overruled. Nevertheless, Peninsula Health maintained in its closing submissions, as it was entitled to do, that the applicants' approach to proving the time spent by Dr Bolton performing overtime was inappropriate because it was based on estimates given by reference to "usual practice", which I presume was an intended reference to Dr Bolton's evidence of her usual pattern of overtime work in respect of the particular categories of overtime claimed. 358 Peninsula Health contended that, in the circumstances of this case, it is inappropriate to determine the duration of any overtime worked by Dr Bolton by reference to evidence as to her usual practice or estimations. At one point, its submission contended that the generalised nature of such evidence went to the weight that should be accorded to it. However, Peninsula Health also later said that, at an evidentiary level and as a matter of principle, the evidence should not be permitted. In so far as that submission seeks to cavil with the evidentiary rulings I made, I reject it. In so far as Peninsula Health submitted that, as a matter of principle, it is not open to the applicants to rely on the evidence, I reject the submission for the reasons that follow. 359 Peninsula Health's submissions suggested that "direct evidence" was necessary to support Dr Bolton's claims. It contended that, in the absence of either Dr Bolton or any other witness being able to give "direct evidence" of the overtime hours worked by Dr Bolton on any particular day, there was no "direct" evidence available to prove the time worked by Dr Bolton. I also reject that contention for the reasons that follow. 360 First, it may be noted that the import of those submissions, taken at their highest, is that the Court should conclude that Dr Bolton has failed to prove that she worked any overtime at all and therefore failed to prove any loss at all. However, Peninsula Health did not ultimately contend that Dr Bolton had failed to prove any loss. It accepted that, if Dr Bolton was authorised to perform the overtime she claimed she worked, Dr Bolton had suffered some loss but contended that her loss was at a lower level than that which she has claimed. In arriving at its conclusion about the quantum of Dr Bolton's loss, Peninsula Health adopted a not dissimilar approach to that which it criticises the applicants for taking. That is, it relied on estimates given by Dr Nye as to the time it should take to complete ward round preparation, the evidence of Dr Bolton herself (despite its earlier contention that the evidence was not "direct") and other evidence such as car park records, from which Peninsula Health essentially contended that inferences could be drawn as to when Dr Bolton worked in excess of her rostered hours. 361 On this part of the case, I am considering the orders that the Court should make under s 545 of the FW Act. The Court, being satisfied that Peninsula Health has contravened civil remedy provisions, is empowered by s 545(1) to make "any order the court considers appropriate" including "an order awarding compensation for loss that a person has suffered because of the contravention": s 545(2)(b). 362 The considerations that attend an award of compensation for a contravention of the FW Act are not specified by the Act and will likely turn, to some extent at least, on the nature of the contravention in question and its consequences. In relation to a contravention based on an underpayment of a monetary entitlement required by an enterprise agreement or other industrial instrument, the extent of the underpayment will likely be a central consideration in assessing loss. 363 An underpayment based upon an employer's failure to pay for overtime worked by the employee ought not be difficult to prove. The FW Act's record keeping requirements are designed to facilitate proof of underpayment claims, including in relation to overtime work performed by an employee. 364 Section 535 of the FW Act imposes an obligation on an employer to make, and keep for seven years, employee records of the kind prescribed by the Fair Work Regulations 2009 (Cth). Relevantly, reg 3.34 provides: 3.34 Records - overtime For subsection 535(1) of the Act, if a penalty rate or loading (however described) must be paid for overtime hours actually worked by an employee, a kind of employee record that the employer must make and keep is a record that specifies: (a) the number of overtime hours worked by the employee during each day; or (b) when the employee started and ceased working overtime hours. Note: Subsection 535(1) of the Act is a civil remedy provision. Section 558 of the Act and Division 4 of Part 4‑1 deal with infringement notices relating to alleged contraventions of civil remedy provisions. 365 This provision seeks, inter alia, to facilitate the proof of the working of overtime by an employee. In coming to that view, it is informative to observe that the Regulations only require time records (as distinct from payment records) to be made and kept in relation to the working of non-standard or irregular hours. That is, overtime hours as dealt with by reg 3.34 or the hours worked by a casual or irregular part-time employee as dealt with by reg 3.33(2). 366 Dr Bolton has the onus of proving her loss. She does not, however, have the benefit of the precise evidence that the records required by the Regulations could have provided her. There is no application before me asserting that Peninsula Health has contravened s 535 of the FW Act by not keeping records of the overtime I have found that Dr Bolton worked. My purpose here is not to attribute blame or find fault, but to make the point that, like the position faced by many applicants in various kinds of court proceedings, Dr Bolton is required to prove her loss without access to precise evidence. 367 In the assessment of loss, however, the common law recognises that the unavailability of precise evidence may require a court to "do the best it can" in the circumstances to assess the loss in question. In Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 83, Mason CJ and Dawson J relevantly said this: The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can. Indeed, in Jones v. Schiffmann Menzies J. went so far as to say that the "assessment of damages … does sometimes, of necessity involve what is guess work rather than estimation". Where precise evidence is not available the court must do the best it can. And uncertainty as to the profits to be derived from a business by reason of contingencies is not a reason for a court refusing to assess damages. (Emphasis added.) (Citations omitted.) 368 The approach taken by the common law as to the assessment of loss in circumstances where precise evidence is unavailable has also been applied to the assessment of both past and future loss where compensation for loss is available as a statutory remedy. In relation to an award of damages for an infringement of the Copyright Act, the court is required to do the best it can: see Facton Ltd v Rifai Fashions Pty Ltd (2012) 199 FCR 569 at [28] (Lander and Gordon JJ) and [117] (Gilmour J). As Black CJ and Jacobson J said in Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd (2007) 157 FCR 564 at [34]-[35], the manner in which damages may be assessed under the Copyright Act includes the following two relevant principles: Where it is found that the respondent is a wrongdoer, "damages should be liberally assessed, in the sense that inferences will be more readily drawn against" the wrongdoer; and If a court is satisfied that damage has occurred, "it must do its best to quantify the loss, even if some degree of speculation and guess work is involved". 369 There is no apparent reason why the FW Act should be construed as intending to require, for the purpose of the Court making an order for compensation pursuant to s 545(2)(b) in respect of the underpayment of overtime worked by an employee, some stricter basis for the assessment of loss where precise evidence of loss is unavailable. The broadness of the power conferred by s 545 upon the Court, as well as the beneficial nature of that provision, tell against such a requirement. As does the idea that it could have been intended by the FW Act that an employer who failed to comply with its record keeping obligations under s 535 should be placed in a better position to resist an award of compensation than the position of a compliant employer. 370 The approach suggested by that analysis is consistent with authority. In Polan v Goulburn Valley Health (No 2) [2017] FCA 30, one of the questions before Mortimer J was the extent of the monetary relief the applicant was entitled to under the FW Act and its predecessor the Workplace Relations Act 1996 (Cth), in relation to the underpayment of overtime in contravention of an enterprise agreement. In circumstances where her Honour was satisfied that the applicant had proved some loss, but where there was no precise evidence of the extent of the overtime hours worked and thus the extent of the loss, Mortimer J observed at [101] by reference to a number of authorities (including some to which I have already referred): In these circumstances, the Court is required to do its best on the evidence before it to quantify her loss: see, in the context of damages, Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 4 FCR 450; 57 ALR 167 at 183; The Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; 174 CLR 64 at 83; Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd [2007] FCAFC 40; 157 FCR 564 at [35], [99]; Tabet v Gett [2010] HCA 12; 240 CLR 537 at [136]; TCL Air Conditioner (Zhongshan) Company Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83; 232 FCR 361 at [39], [164]. 371 In that case, her Honour assessed the extent of the overtime performed by reference to the evidence which was considered to provide "the best estimate of what, on the balance of probabilities, were the hours worked by the applicant by way of overtime during the relevant period": at [104]. Her Honour accepted at [75] that: in the absence of records of the duration of [the applicant's] overtime work, some estimation is inevitable and necessary and that - given the numerous occasions on which the applicant performed overtime work during the claim period - the most efficient and cost-effective way for the applicant to make these estimations is to do so by reference to a generalised equation or method. 372 Her Honour was not prepared to accept the estimates given by the applicant as to the extent of time she worked overtime because of several aspects of the applicant's evidence that were problematic. These included that there was an element of exaggeration about the evidence of a rounding-up process utilised by the applicant, there was a lack of proportionality between the time estimated for some tasks as compared to others and there was some double-counting: see [90]-[99]. That ultimately led her Honour to conclude that the evidence given by the applicant did not "sufficiently estimate the time she actually spent" working overtime: at [100]. Instead of placing reliance on the applicant's evidence, her Honour relied on contemporaneous telephone records, which detailed the time taken to perform some tasks, and extrapolated from those records the time which would likely have been taken to perform all the tasks usually performed, by applying a 50% uplift: see at [78] and [105]. 373 The approach taken in Polan (No 2) was cited with approval and followed by Anastassiou J in Degenhardt v Ambulance Victoria [2019] FCA 1841 in relation to a contravention of an enterprise agreement and consequent assessment of loss for underpayments of an "on call" allowance: see at [47] and [50]-[51]. 374 Further, in Logan, Moore J considered whether, among other issues, the applicant "worked overtime [over a six year period] for which he is entitled to payment under the Award, and if so, the number of hours involved": at [7]. In that case, there was no precise evidence about the overtime worked. His Honour observed at [34]-[35]: It is not uncommon in proceedings such as these for an applicant to have to prove hours worked (often over many months or even years) in circumstances where no records are kept of time worked. Courts are alive to these difficulties. The difficulty an applicant confronts in circumstances of this type was discussed by Schmidt J in Maciver v Hilton Nursing Home Pty Ltd [1999] NSWIRComm 152. In the context of a claim for overtime (which bears similarities to the present case) the problem was adverted to by Cantor J in Lamont v Stein (1936) 35 AR (NSW) 143 in reviewing the decision of a magistrate who made a finding that overtime had been worked but was unable to quantify the amount of overtime. The problem also arose in Girard v Lundie (1940) 59 NSWIG 202 where, on appeal, De Baun J found that ''at least 20 hours' overtime had been worked'' in circumstances where, by reference to the same evidence, a magistrate had dismissed a claim for overtime (though his Worship had indicated he had no doubt that some overtime had been worked). Consistent with these authorities, it is not appropriate that the evidence be reviewed with an unduly critical eye. (Emphasis added.) 375 His Honour was essentially called upon to determine the appropriate manner in which the extent of the overtime was to be assessed. It was conceded by the respondent that the correct approach "must be to ascertain in some general and global way, as best the court can do so on the evidence, the extent of the overtime expressed as some average amount of time worked": at [11]. That approach was taken with respect to the applicant's evidence. The applicant's ordinary hours prescribed by the award were 38 hours per week. The applicant said he worked 55 hours per week on average but "accepted that on occasions he worked as many as 80 hours per week and on other occasions as few as 20 or 25 hours per week": at [22]. The applicant did not provide evidence as to the actual hours he worked on each occasion he claimed overtime. His Honour did not take issue, as a matter of principle, with this averaging approach based on the time it generally took to perform his duties: see at [17]. 376 I accept the applicants' submission that the following conclusions can be drawn from Logan: (a) In an underpayment claim for overtime worked systemically over a period of time, there is nothing 'inappropriate' about proving that overtime was worked, and/or the amount of overtime, by the applicant giving evidence about the time taken to do a particular task that was done in overtime, and the regularity of that task (ie, daily, weekly, etc). (b) The is no rule of evidence, nor is there a common practice, requiring proof of an underpayment claim by reference to a 'particular day' or date. Obviously, if that evidence exists, it may be given; but it is not the case that evidence specific to a particular day is necessary or will always be more probative than general evidence. In each case the evidence adduced at trial must be assessed on its own merits. 377 The applicants relied upon Polan (No 2) and Degenhardt to contend that wherever Dr Bolton gave an estimate of the time usually taken by her to regularly perform a particular category of overtime work, such as completing medical records, the upper range of the estimate should be adopted as reflecting the time actually worked by Dr Bolton on each occasion the work was performed. It was said that to do so would provide a justifiable "uplift", as was done in Polan (No 2) and Degenhardt. That submission seems to be based on Polan (No 2) and Degenhardt standing for the proposition that the absence of contemporaneous records, which provide reliable evidence of the time worked by an employee, justifies an "uplift" in the assessment of the hours found to have been worked. 378 In my view, neither Polan (No 2) nor Degenhardt stand for that proposition. Each case is an instance of a court extrapolating from the number of hours reliably proven to have been worked by the employee, an estimate of the likely total hours worked on a particular occasion or occasions. In other words, a known part of a trend or pattern was used to estimate the entire extent of that trend or pattern. Although the estimate resulting in the "uplift" was necessitated by the absence of complete contemporaneous records, the "uplift" was not justified by that absence. I therefore reject the applicants' approach to assessing the hours worked by Dr Bolton insofar as that approach relies on an "uplift" being justified. 379 The evidence relied upon by the parties to establish Dr Bolton's loss consisted of Dr Bolton's evidence, evidence from other witnesses, car park records tendered by Peninsula Health and extracts from Peninsula Health's electronic medical records system which indicated the date and time when Dr Bolton accessed a particular medical record (medical records data). 380 The car park records are an extract of data held by Peninsula Health, documenting the date and time Dr Bolton entered and exited one of the car parks at Frankston Hospital using her swipe card during the relevant rotations. Dr Bolton gave evidence that she drove to work every day and parked in one of the seven hospital car parks. 381 The medical records data is held on Peninsula Health's electronic medical records system called the Cerner Millennium system. Medical staff access the Cerner system by entering their username after which they can access certain types of medical records, including patient lists used in ward rounds and ward round preparation, ward round notes, theatre lists, discharge summaries and various other medical records. A log, in the form of an excel spreadsheet, was tendered which recorded the date and time of when Dr Bolton (or a person using Dr Bolton's username to access the system) opened or recommenced working on a particular record. The log, however, does not record when a medical record was closed. The log also includes identifying information about Dr Bolton, redacted information about the patient and the type of medical record accessed. 382 I will deal with the reliability and relevance of each type of evidence below with respect to the particular claims for overtime. 383 However, it is convenient that I now deal with contentions variously made by Peninsula Health in respect of the reliability of the evidence given by Dr Bolton. Those contentions were mainly directed at the reliability of Dr Bolton's evidence as to the extent of overtime she worked in relation to each of the categories of overtime claimed to have been performed by her. Although Dr Bolton was subjected to some rigorous cross-examination, there was no attempt made by Peninsula Health's closing submissions to impugn Dr Bolton's honesty and, in my view, appropriately so. Dr Bolton struck me as a dedicated and competent doctor who was respected by her peers and supervisors, including for her integrity. Each of the senior doctors called by Peninsula Health agreed that they were not in a position to dispute Dr Bolton's evidence of the overtime work she claimed to have performed and all stated unequivocally that they did not believe that Dr Bolton was lying or otherwise "making things up" (as was put to her in cross-examination). 384 However, whether the honest evidence given by Dr Bolton is otherwise reliable is a different question and Peninsula Health was entitled to contest the reliability of Dr Bolton's evidence for reasons other than her honesty. To some extent, Dr Bolton's evidence given by way of estimates as to how long a bundle of particular tasks had usually taken her to perform, or her evidence as to when she usually arrived at work, was shown to be unreliable. By reference to contemporaneous records, and in relation to some occasions only, Dr Bolton's estimate was shown to be an over-estimate of the time she spent working overtime. At other times, the contemporaneous records suggested some under-estimation. I have not formed the view that Dr Bolton's evidence of the extent of work performed by her was exaggerated. It would be more likely, and completely unsurprising given the matters Dr Bolton was being called upon to recall in providing her estimates, that her inability to precisely recall events was responsible for any discrepancy revealed by the more reliable evidence available through contemporaneous records. 385 Insofar as I have treated Dr Bolton's evidence with some caution, I have only found it necessary to do so in relation to the evidence given by her which would have, in my view, substantially challenged her capacity to recall events with precision. For that reason, I have generally accepted Dr Bolton's evidence other than where particular contemporaneous records, which I am satisfied are reliable, provided better evidence of the facts in issue. 386 A common submission made by Peninsula Health in respect of each category of overtime work claimed is that, if performed, some or all of the work performed by Dr Bolton should be regarded as Dr Bolton providing a "luxury service". In other words, it was asserted that the work provided by Dr Bolton was not responsive to what was requested or required of her by Peninsula Health but was, instead, motivated by her desire to impress and advance her career. This proposition seems directed at authorisation as well as the question of whether Dr Bolton actually performed the work she was authorised to do. 387 In substance, this contention is really no different to Peninsula Health's contention that the work performed by Dr Bolton took more time than was reasonable for the performance of the tasks required. I have rejected that argument, as I do the "luxury service" contention. There is no basis for a finding that Dr Bolton trespassed beyond the authority given to her to perform overtime work in the time reasonably necessary for her to have carried out the tasks required. 388 Furthermore, in respect of each kind of overtime worked and claimed by Dr Bolton, Peninsula Health asserted by its Defence that Dr Bolton's rosters had "factored in and allowed time for" the performance of each duty. Peninsula Health's closing submissions did not elaborate on this defence and it is not clear to me whether at all or, alternatively, in what way, this point was sought to be pressed. The assertion made may have been intended to support Peninsula Health's position that the extent of the overtime claimed to have been worked by Dr Bolton was not worked. In any event, this defence was simply left as an assertion. It is not supported by evidence called by Peninsula Health and is contrary to the evidence given by Dr Bolton and other Doctors that the rostered time allocated to junior doctors was insufficient to complete the tasks required of them. 389 For each category of overtime, Peninsula Health contended that Dr Bolton's timesheets do not support that she worked the overtime alleged because her timesheets do not record the overtime hours now claimed and she certified on those timesheets that her hours were true and correct. This contention is misguided. It seeks to assert that Dr Bolton's timesheets should be regarded as a reliable record of the time she performed work when the evidence made it crystal clear that the timesheets are not. Dr Bolton explained that the unrostered overtime the subject of her claims was not recorded on her timesheets. She also explained why that was so in explaining why she had made no prior claim for the overtime now claimed. Her reluctance, and that of many interns, to claim unrostered overtime was either the result of an instruction given that payment for the overtime in question was not to be claimed, as occurred in her Plastics rotation, or was the product of an environment in the Department of Medicine which was hostile to the making of claims for unrostered overtime. Dr Curtin's evidence described above at [191]-[192] that he was reprimanded by Dr Braun and Dr Braun's personal assistant for simply recording (not even claiming) the overtime hours he worked on his timesheet speaks to the environment that existed with respect to unrostered overtime in the Department of Medicine. 390 I accept Dr Bolton's evidence as to why her timesheets do not reflect the unrostered overtime she now claims she worked. Dr Bolton's timesheets are not informative of whether or not the unrostered overtime now claimed was actually performed by Dr Bolton.

First General Medicine rotation in the Department of Medicine - January 2019 to March 2019

Ward round preparation overtime 391 Dr Bolton's claim particularises the days of ward round preparation overtime she claims to have worked in each of every second week in the period 14 January 2019 to 22 March 2019. I accept Dr Bolton's evidence that overtime work was performed by her on each of the days particularised in the Applicants' Particulars of Loss and Damage. For the reasons given above, I am satisfied that Dr Bolton was authorised to perform ward round preparation before 8 am in whatever time it was reasonably necessary for her to perform the tasks required to complete that work. 392 Dr Bolton claims an underpayment of 30 minutes for each day when ward round preparation was worked. She claims 13 hours in total for ward round preparation overtime in this rotation. That claim is primarily based on Dr Bolton's evidence that she estimated that "half an hour was the longest time that I took to complete this work" and that "around 20 minutes" was the shortest period of time it took her to complete the work. That evidence was given in the context of Dr Bolton saying that the time taken varied depending upon "the patient load". By reference to the "uplift" submission which I have already rejected, the applicants claimed that the top of Dr Bolton's estimated range of time should be accepted as the time worked. 393 There is then a contention made by Peninsula Health which I also find to be unpersuasive and reject. Peninsula Health submitted that Dr Bolton is entitled to five minutes of overtime for each occasion worked. That submission is based on Peninsula Health's contention that, irrespective of the time it actually took to do the work, five minutes represented a reasonable period of time for the performance of the tasks in question. There are two reasons why I reject that conclusion. First, this is a contention based upon the nature of the authorisation given by Peninsula Health which is at odds with the findings I have made on that issue. My finding is that Dr Bolton was authorised to perform ward round preparation in overtime hours in whatever time it was reasonably necessary for her to perform the tasks required. If the reasonableness of the time actually taken by Dr Bolton is to be assessed, the starting point must be the time actually taken, and the range of contextual considerations peculiar to the work actually performed would then need to be taken into account. For instance, because the extent of the work is, in part, a function of the particular patient load of the unit in which Dr Bolton worked, a reasonableness assessment would need to take into account the patient load. As to that load, see [156] above. Further, because, as Dr Bolton deposed, the time taken by her to carry out the tasks became shorter as she became more familiar with those tasks, Dr Bolton's inexperience in this rotation would also need to be taken into account in assessing reasonableness. Peninsula Health's approach ignored all of those considerations. It is an approach substantially based on Dr Nye's evidence that the tasks would take five minutes, being evidence which was relied upon by Peninsula Health as though that evidence was reflective of the reasonable time required in each and every context in which the task of preparing the patient list was performed in the General Medicine unit. 394 Second, as discussed above at [155]-[169], the time estimate given by Dr Nye was based on a narrower conception of the tasks required of Dr Bolton than that which I have accepted. Further, Peninsula Health's reliance on Dr Brickle's evidence of the time it took her to perform the tasks, ignores the smaller patient load her unit had compared to Dr Bolton (see [163] above). Lastly, Dr Curtin's evidence that the tasks could be done in five minutes was qualified to the time taken "in the ideal world" and is substantially divorced from the world faced by Dr Bolton as demonstrated by her evidence. 395 The approach I take to the assessment of this claim, and indeed the approach I will take to the assessment of each of the categories of overtime claimed, is largely informed by the nature of the probative evidence available in relation to the particular claim and my view as to the reliability of the various categories of evidence relied upon by one or other of the parties. 396 In relation to this category of overtime, the car park records are accepted as reliable. They are also comprehensive, in that there is a record of Dr Bolton's arrival prior to 8 am at the car park on each and every morning for which work performed prior to 8 am is claimed. Therefore, there is probative evidence as to when Dr Bolton started work on each relevant day, in circumstances where it is accepted that she was rostered to commence at 8 am. The evidence enables me to make a specific finding as to the time worked by Dr Bolton before 8 am, and thus in overtime hours, in relation to each day in question. An assessment of the actual time taken on each day will therefore be reflective of the time worked on that day and the loss suffered by Dr Bolton. 397 That approach, in my view, is a better approach to take than the averaging approach taken by Peninsula Health and the approach taken by the applicants, which was essentially based on Dr Bolton's evidence as to the shortest and longest period of time taken by her to complete the work. 398 The car park records in question provide the time that Dr Bolton swiped in at the entrance to the particular car park she used when working in the General Medicine unit. That time cannot be regarded as the time she commenced work. However, there is evidence available from which I can infer when Dr Bolton commenced work on each day. 399 Peninsula Health contended that I should infer that Dr Bolton commenced nine minutes later than her arrival at the car park. The applicants did not criticise that contention directly but, insofar as they placed reliance on the car park records, their submissions made no deduction for any time and thus treated the arrival time at the car park as the time Dr Bolton commenced work. 400 The applicants' approach is clearly wrong and, in my view, Peninsula Health's approach slightly inflates the time that should be deducted. 401 Dr Bolton's evidence rejected suggestions made to her that she did not travel directly from the car park to the office on the ward from which she performed the work. Her evidence was that it took her four to five minutes to arrive at the entrance of the hospital from the car park and a couple of more minutes to get to the ward. She said "[s]o about eight … minutes from swiping in [at the carpark] to arrival on the ward". In cross-examination, she confirmed her estimate of eight minutes but, to the suggestion made to her that "it might be 10 minutes on occasions", she said "it could be". 402 It may well be that the time Dr Bolton arrived at the entrance to the hospital should be regarded as the time she commenced work. However, the applicants made no such submission. I will therefore regard the time of arrival at the ward as her commencement time, as contended for by Peninsula Health. I find, however, that eight minutes was the average time taken by Dr Bolton to reach the ward. Her concession that it might, on occasions, have taken 10 minutes does not justify lowering Dr Bolton's estimated usual travel time from eight to nine minutes as Peninsula Health sought to do. 403 The time of Dr Bolton's arrival at the ward, which can be inferred from the car park records and the evidence of her travel time to the ward, enables a finding as to the time Dr Bolton commenced work on each relevant day prior to her rostered commencement time at 8 am. It was not in contest that the only thing that Dr Bolton did once on the ward before 8 am was ward round preparation. In calculating the total number of hours worked for this category of overtime, I have done here, as I have done throughout, rounded the calculation of the total hours up or down to the nearest quarter hour. On that basis, I find that Dr Bolton performed a total of seven hours of ward round preparation overtime during her First General Medicine rotation and, on each of the days in question, performed the amount of overtime listed in the table that follows: Ward round preparation overtime Date Amount of overtime worked M 14/01/2019 36 minutes T 15/01/2019 22 minutes W 16/01/2019 18 minutes Th 17/01/2019 13 minutes F 18/01/2019 15 minutes S 19/01/2019 18 minutes M 28/01/2019 10 minutes T 29/01/2019 8 minutes W 30/01/2019 16 minutes Th 31/01/2019 8 minutes F 01/02/2019 11 minutes S 02/02/2019 13 minutes M 11/02/2019 14 minutes T 12/02/2019 13 minutes W 13/02/2019 9 minutes Th 14/02/2019 10 minutes F 15/02/2019 7 minutes M 25/02/2019 10 minutes T 26/02/2019 12 minutes W 27/02/2019 17 minutes Th 28/02/2019 16 minutes F 01/03/2019 20 minutes Sun 03/03/2019 16 minutes Sun 03/03/2019 19 minutes W 13/03/2019 14 minutes Th 14/03/2019 21 minutes F 15/03/2019 15 minutes Sun 17/03/2019 19 minutes

404 I appreciate that 36 minutes for 14 January 2019 is beyond Dr Bolton's estimation of 30 minutes as the longest time she worked. However, I regard the contemporaneous car park records as likely to be more reliable than Dr Bolton's estimation based on her recollection.

Medical records overtime 405 Dr Bolton claims a total of 30 hours of overtime for work performed completing discharge summaries during the 10 week period commencing 14 January 2019 and ending on 22 March 2019. Dr Bolton's evidence that she performed that work is accepted and sustains a finding that, in each week in question, she performed work completing discharge summaries after her rostered shift. I have found that the performance of that work was authorised by Peninsula Health. 406 The extent of the overtime work performed by Dr Bolton is contested. The applicants rely upon Dr Bolton's evidence that she worked approximately three days a week for between 30 and 60 minutes. The applicants claim 60 minutes of overtime per day for three days a week - the top of the range of time estimated to have been worked by Dr Bolton. That is sought to be justified by the applicant's "uplift" submission which I have rejected. 407 Putting her estimate another way, Dr Bolton said that the maximum total hours in a week was "around three hours" and the minimum total hours in a week was "around one and a half hours". She did not, however, give an estimate of the usual or average time worked on any day or in any week. 408 Peninsula Health relies on the car park records to contend that the maximum amount of overtime work which that evidence can sustain is 37 minutes three times per week, totalling 18.5 hours for the period. 409 Each of the assessments relied upon by the parties is problematic for different reasons. Dr Bolton's estimates of the range of time worked requires me to estimate the usual or average time worked. Further, the "uplift" sought is not justified. In my view, the car park records, accepted by all parties to be accurate and comprehensive in relation to this period, are probative of the likely total overtime hours worked by Dr Bolton. When taken together with Dr Bolton's evidence of the outer limits of the time spent, a sufficiently reflective picture of the total time actually worked by Dr Bolton emerges. 410 Peninsula Health relied upon the car park records as the best available evidence. 411 The car park records cannot be used to assess the time worked by Dr Bolton on the days she actually performed medical records overtime because, unlike with respect to ward round preparation, Dr Bolton has not been able to specify the particular days she worked medical records overtime beyond saying that she only did so on weekdays. The car park records are therefore best utilised to assess the total hours worked as overtime in the period. 412 The car park records provide the time that Dr Bolton left the car park on each day in the First General Medicine rotation. Although Dr Bolton gave evidence suggesting that it took her less time to travel between the car park and the ward on leaving work than on arriving, I do not accept that evidence. I consider it to be mistaken because, at the time it was given, Dr Bolton mistakenly assumed that her estimate of eight minutes, given earlier in relation to her arrival, included the time it took her to log on to her computer. My analysis of the time which the car park records demonstrate Dr Bolton worked as overtime, proceeds on the basis that there should be an eight minute deduction for travel time between the car park and the ward. Peninsula Health's analysis deducts nine minutes and differs from my assessment in that respect. 413 The evidence demonstrates that other deductions or exclusions are also necessary. First, Dr Bolton's evidence was that she only completed discharge summaries beyond her rostered hours on weekdays and not weekends. On that basis, I will exclude from the analysis those days on which Dr Bolton was rostered to work on a weekend. In that respect, my assessment also differs from that made by Peninsula Health, which has wrongly included weekend days on which Dr Bolton worked. Second, it is likely that on the days in the period when Dr Bolton worked a half day roster, some, if not all, of the time between the end of that rostered half-day shift and Dr Bolton's departure from the car park was time spent in the ward by Dr Bolton for purposes other than completing discharge paperwork. Dr Bolton's evidence was that, on occasions during this rotation, she undertook data input work for a research project after the end of her half-day shifts, which meant that she would leave some hours after her rostered shift on those days. Additionally, there are days where Dr Bolton is shown by the car park records to have left several hours before the end of her rostered shift and other days where she left several hours after the end of her rostered shift. Dr Bolton explained that she sometimes swapped her rostered half-day shift for a different day with another intern and, although this was generally formally approved prior to the shift swap, it was not reflected in the roster. 414 Dr Bolton's evidence that she did not work beyond 60 minutes on any particular day, as well as her evidence that she worked three days in each week, needs to be brought into account. I regard the estimates given of the outer daily limit of 60 minutes and the number of occasions worked in any week (ie three) to be sufficiently reliable. The nature of what was here being recalled by Dr Bolton suggests that her recollection is likely to be more reliable. I have therefore only counted the first 60 minutes on days where the records support more than 60 minutes was spent at the hospital after Dr Bolton's shift ended. Further, I have included only three-fifths of the total hours beyond her end of shift in any one week, in order to account for the fact that Dr Bolton performed this overtime on only three of the five weekdays she was rostered to work. 415 The evidence does not suggest that any further exclusions or deductions of time need to be made to the time spent between the end of Dr Bolton's shift and her exit from the car park, in order for the car park records to be reliably probative of the time spent by Dr Bolton completing discharge paperwork. 416 On the basis of those deductions and exclusions, when compared to the finishing time recorded in Dr Bolton' timesheet or roster (where timesheets are not available), the car park records show that, in total over the whole period in question, Dr Bolton was on the ward for 20 hours after the end of her rostered shift and, I would infer, was completing discharge paperwork during that time. That inference is assisted by the medical records data which shows that on 17 days (excluding weekends) in the period, Dr Bolton accessed those records after her rostered shift ended or, on two occasions, a few minutes prior to the end of her shift. 417 For those reasons, I find that Dr Bolton is entitled to 20 hours of overtime pay for medical records overtime performed in her First General Medicine rotation.

Plastics rotation in the Department of Surgery - June 2019 to August 2019

Ward round preparation overtime 418 Dr Bolton's only claim for overtime in relation to the Plastics rotation relates to ward round preparation overtime performed prior to the rostered commencement of her shift. Dr Bolton was rostered to work Monday to Friday in the 10 week period commencing Monday 3 June 2019. She claims 30 minutes of overtime on each Monday to Friday of those weeks, save for Monday 10 June 2019 being a public holiday when she did not work. 419 It needs to be noted that her standard rostered shift commencement time of 7 am aligned with when ward rounds generally commenced at 7 am. However, ward rounds occasionally commenced earlier than 7 am when requested by a consultant. The uncontested evidence was that Dr Bolton claimed, and was paid, for overtime performed prior to her rostered shift on five occasions because a consultant had requested that ward rounds commence earlier than 7 am on those days. 420 To substantiate the claim made, the applicants primarily relied upon Dr Bolton's evidence that she worked for around 30 minutes completing ward round preparation tasks. Dr Bolton deposed that the most time it would take was "say, half an hour" and that that was also the least amount of time. 421 There are a number of ways in which that evidence was put in contest. However, in setting out its conclusion on the "appropriate outcome", Peninsula Health ultimately said that there was no objective evidence (such as car park records) to substantiate the time that Dr Bolton was present at the ward prior to the start of her rostered shift. As such, the Court must have regard to what a reasonable amount of time would be to perform the tasks in question, which, Peninsula contended, was 7.5 minutes. 422 Peninsula Health's contention here purports to say that no reliance can be placed on Dr Bolton's evidence about the extent of the time she performed ward round preparation. I presume that Peninsula Health's submission was based on its general contention that Dr Bolton's evidence was not "direct" evidence and ought not be relied upon unless corroborated by objective evidence. Although not entirely clear, understood in its context, I think what Peninsula Health meant by the evidence not being "direct" was that the evidence was based on a general recollection of an event, such as how much time some task would usually take to do, rather than a specific recollection of the event or the time actually taken on the particular day to perform the task. I reject this contention as relied upon here or indeed as relied upon elsewhere by Peninsula Health. 423 Dr Bolton's evidence of the time she worked was primarily based on her recollection of approximately how long it took to carry out the particular bundle of tasks regularly required of her. That evidence is clearly probative of how much time the particular bundle of tasks actually took Dr Bolton to perform on any given occasion. I accept that, ordinarily, a specific recollection may be more reliable than a general recollection but the unsurprising inability of a witness to recall the specific occasion does not mean that the general recollection of that witness is incapable of being either probative or reliable evidence. 424 If Dr Bolton's evidence is probative, as I think it is, it would be entirely wrong to ignore it. Nor is there any warrant for supplanting that evidence with an evaluation of what would be a "reasonable amount of time" for the tasks in question to be carried out. In any event, Peninsula Health's contention that 7.5 minutes is a reasonable amount of time is both contrary to the evidence and not sufficiently directed to Dr Bolton's specific circumstances. 425 Another challenge made by Peninsula Health to Dr Bolton's evidence about the time it took her to complete ward round preparation was directed to the reliability of that evidence. That challenge was made by reference to car park records and raises the question of the reliability of the car park records. 426 There are only 10 days of car park records for the entire Plastics rotation, each of which is confined to the use of Dr Bolton's swipe card at the hospital car park closest to the Plastics unit. The records are somewhat curious for a number of reasons. First, they are not comprehensive. Second, they purport to show Dr Bolton swiping into the car park intermittently (rather than on a block of days) on only four of the 49 days on which she was rostered to work and which the evidence establishes she parked in the car park. Third, six of the 10 occasions where Dr Bolton is shown to have entered the car park were days on which Dr Bolton was not rostered to work and there is no evidence before me that she used the car park. Fourth, those curiosities were no doubt capable of being explained by Peninsula Health who was in the best position to provide an explanation. However, they were not explained despite the fact that the reliability of the car park records was a matter that Peninsula Health sought to rely upon. That was also despite the fact that Dr Bolton proffered an observation about the boom gates to the car park being broken during part of her rotation in the Plastics unit. 427 The natural advantage that a contemporaneous record, like the car park records, would ordinarily have over Dr Bolton's recollection as to her arrival at the hospital on a particular day is somewhat lost by the circumstances outlined above. Given that the reliability of the car park records was called into question for this rotation, it is difficult to determine which of the car park records or Dr Bolton's evidence should be regarded as more reliable where that evidence was in conflict, as it was on two relevant occasions. 428 For Dr Bolton's very first day of her rotation in the Plastics unit on 3 June 2019, the car park records show that she arrived some 25 minutes after her rostered commencement time of 7 am. Whereas, Dr Bolton's evidence was that, because she had been informed during the handover with the outgoing intern of her responsibility to do ward round preparation, she "arrived early on my first day" which, read in context, must have meant at about 6.30 am. 429 It would be surprising if (what the evidence very clearly displayed to be) a conscientious, highly competent young doctor, fully cognisant of her clinical responsibilities, turned up about an hour later than she was expected to without prior notification on any day, let alone the very first day of a new rotation. In response to the suggestion that she was late on her first day, Dr Bolton responded that she did not recall ever arriving after her commencement time at the hospital on any occasion. She stated that she would have been reprimanded if she had arrived late on her first day and that did not occur, later stating that late arrival without prior notification is not tolerated in the unit. Her supervising doctors, Dr Phan and Dr Read, had no recollection of Dr Bolton ever arriving late. Dr Bolton was firm but fair in her denials. Her evidence gave me no reason to think that she was other than honest and that the evidence she gave was other than reliable. 430 In relation to this occasion on 3 June 2019, I regard Dr Bolton's evidence as likely to be more reliable than the car park records for that day. 431 The only other day where the car park records suggest that Dr Bolton arrived at the Plastics unit later than 6.30 am is 4 July 2019, when the records suggest that Dr Bolton would have arrived at the Plastics unit at about 6.48 am. 432 In cross-examination, Dr Bolton was more prepared to accept that she may have arrived at the time suggested by the records. Her evidence was to the effect that, if on that day ward rounds commenced at 7 am, she would have arrived earlier than 6.48 am but agreed to the suggestion that it was possible that ward rounds started at 7.15 am on that day. She said, however, that she did not recall a ward round "starting later", by which she meant later than 7 am, but suggested that, if this was an occasion when the ward round started at 7.15 am, her arrival would have given her "25 minutes to prepare" and that "this would indicate I still allocated half an hour for the preparation before the commencement of the ward round". 433 This exchange in cross-examination calls into question either Dr Bolton's evidence that she always spent about 30 minutes on ward round preparation or her evidence that ward rounds did not commence later than 7 am. I appreciate that it could be that Dr Bolton's evidence is unreliable on both counts but, by reference to other evidence, it is clear that the best explanation for Dr Bolton's arrival at 6.48 am on 4 July 2019 is that the ward round commenced at 7.15 am on that day. 434 Dr Phan was an impressive witness and was one of the registrars who supervised Dr Bolton. He deposed that, whilst not common, occasionally a ward round could commence after 7 am and occasionally, but more commonly, before 7 am in circumstances where the aim was to commence at 7 am. He also stated that generally junior doctors would be advised of a non-standard (ie not 7 am) start by either WhatsApp or during the handover held on the day before. He said that it was a "generally accepted expectation" that junior doctors would prepare for ward rounds prior to the ward round start time, whatever that start time may be. Dr Phan was shown a WhatsApp message dated 3 July 2019 from Dr Read that was sent to various Doctors working in the Plastics unit, including Dr Bolton, stating "WR at 0715". Dr Phan explained that the message here being communicated was that the ward round on the next day (ie 4 July 2019) would commence at 7.15 am. Asked about his expectation as to what time the residents and interns would arrive in order to prepare for ward rounds, Dr Phan said that it would not be unreasonable for them to arrive 20 to 30 minutes earlier than the 7.15 am start. 435 That evidence makes it abundantly clear that it is likely that on 4 July 2019 Dr Bolton commenced ward round preparation overtime work at about 6.48 am and performed about 27 minutes of that work if the ward round actually commenced at 7.15 am. I am satisfied that the evidence of events on 4 July 2019 supports, rather than detracts from, Dr Bolton's evidence that she always spent about 30 minutes performing ward round overtime before the commencement of a ward round. The evidence also, however, establishes that on 4 July 2019 Dr Bolton only performed about 15 minutes of ward preparation overtime and not the 30 minutes claimed by her application. Dr Bolton's claim should not be allowed to that extent. There is no other evidence of any other day where a WhatsApp instruction was given for a ward round to start later than 7 am. 436 In the absence of car park records for any of Dr Bolton's other rostered days in the Plastics rotation, I consider that her evidence, in addition to corroborating evidence from other witnesses and medical records data, is the best available evidence to establish the amount of overtime worked by Dr Bolton. 437 Dr Bolton repeatedly gave evidence that she arrived at work at 6.30 am each day because ward round preparation took 30 minutes - not more, not less. This evidence is consistent with the Plastics Intern Handover Document which says interns must "arrive [at] 6.30" and the Plastics Rover which says "interns generally start 30 minutes prior [to 7 am]". However, I held some concern as to whether Dr Bolton and the Plastics Intern Handover Document's reference to a 6.30 am arrival meant arrival at the hospital or arrival at the ward. On balance, especially given that Dr Bolton specified that the ward round preparation tasks took 30 minutes, not just that she would arrive at the hospital (or the ward) 30 minutes before 7 am, it seems likely that her standard arrival time at the ward was 6.30 am and her arrival at the carpark must have been before 6.30 am. This conclusion is supported by the theatre lists. Printing and stapling the theatre lists to the patient list was one of Dr Bolton's various tasks in preparing for ward rounds. The theatre lists show that on 13 occasions (not including those days where ward rounds started before 7 am and Dr Bolton claimed overtime for the earlier start) she accessed the theatre list before 6.37 am and, given the travel time of seven minutes from the car park to the ward, it is likely that she entered the car park before 6.30 am on these occasions. 438 The theatre lists also generally corroborate Dr Bolton's evidence. Dr Bolton accessed theatre lists on 44 out of the 49 days she worked in the Plastics unit and, on each and every occasion, she accessed the list before 7 am. The theatre lists do not indicate when Dr Bolton arrived at work and therefore cannot clearly establish the duration of her overtime. However, the theatre lists show, at the very least, that Dr Bolton was at work at the time the theatre list was accessed and therefore are compelling evidence that she worked overtime, to some extent, on each of the days claimed. 439 With respect to duration, the evidence (again, excluding those days where ward rounds started before 7 am and Dr Bolton claimed overtime for the earlier start) shows that Dr Bolton opened the theatre lists anywhere as early as 6.15 am and as late as 6.54 am, with the average time being between 6.35 am and 6.45 am. The theatre lists are inconclusive but appear to be generally consistent with Dr Bolton's evidence that she spent 30 minutes each day preparing for ward rounds before 7 am. 440 Dr Bolton's evidence that she spent 30 minutes each day preparing for ward rounds is also supported by the evidence of her supervisors', Dr Phan and Dr Read, who both agreed that interns generally commenced work at 6.30 am. Dr Read said that ward round preparation would take 15 to 30 minutes and Dr Phan said that ward round preparation would take 20 to 30 minutes. However, there was evidence that Dr Bolton was shouldering more of the ward round preparation work than the two residents, which may explain why the time she spent preparing for ward rounds was at the upper end of the ranges described by Dr Phan and Dr Read. 441 On this issue of the sharing of the work, Peninsula Health contended that the two residents, Dr Khoo and Dr Lee, arrived much closer to 7 am than Dr Bolton. It also relied on Dr Phan's evidence that ward round preparation would only take "a bit more" than "10 minutes of work per person". However, Dr Phan clarified that his estimate of "10 minutes of work per person" was only in relation to preparing the handover sheet and said that "preparation for the ward round is more than just the handover sheet". Peninsula Health's contention that Dr Bolton did not spend 30 minutes preparing for ward rounds because Dr Khoo and Dr Lee did not spend that amount of time preparing for ward rounds is misconceived. Whilst those tasks might have been more equitably shared between interns and residents, the fact that they were not and that Dr Bolton was therefore, in practical terms, required to carry out more tasks than she should have been, does not suggest that she either did not actually spend 30 minutes preparing for ward rounds or that doing so was unnecessary or unreasonable. That is particularly so in circumstances where Dr Bolton's complaints to her supervisors that she was being forced to do an inequitable share of the tasks fell on deaf ears. 442 Accordingly, I am satisfied that on each rostered shift in the Plastics unit where ward rounds commenced at 7 am, Dr Bolton arrived at work at about 6.30 am to prepare for ward rounds and performed about 30 minutes of unrostered overtime. There is only evidence that ward rounds started after 7 am for one day, 4 July 2019, and, for that occasion, I am satisfied that Dr Bolton worked 12 minutes of unrostered overtime. For those reasons, I find that Dr Bolton worked 22.25 hours of ward round preparation overtime in her Plastics rotation.

Second General Medicine rotation in the Department of Medicine - August 2019 to October 2019

Medical records overtime 443 Dr Bolton claims a total of 18 hours of overtime for work performed completing discharge summaries during a nine week period commencing 12 August 2019 and ending on 13 October 2019. I accept Dr Bolton's evidence that in each of the weeks in question she performed some work completing discharge summaries after her rostered shift. I have earlier found that the performance of that work was authorised by Peninsula Health. 444 What remains in contest is the extent of the overtime work performed by Dr Bolton and the nature of the contest is similar to that in relation to medical records overtime in Dr Bolton's First General Medicine rotation. 445 The applicants' claim is based on the top of the range estimate given by Dr Bolton. In her evidence, Dr Bolton was asked the shortest period that it took her to perform medical records overtime, to which she said "around 20 minutes". She was then asked the longest period that it took her to carry out that work, to which she replied "around 40 minutes". In response to a question as to how many times she performed that work during this rotation, Dr Bolton replied that it "would have been about three times a week, so a minimum of 60 minutes a week and a maximum of around 120 minutes a week". Although I accept that evidence as reliable, it requires me to estimate the usual or average time worked on any day or in any week. I reject that an "uplift" justifies the adoption of the top of the range of Dr Bolton's estimate. 446 Peninsula Health contended that no reliance should be placed on Dr Bolton's oral evidence and, similarly to its approach taken in relation to medical records overtime for the First General Medicine rotation, Peninsula Health contended that, as a maximum, the car park records would support an average of 22 minutes of overtime on each of three days of the weeks worked during the rotation, or a total of 10.3 hours. 447 Although the car park records are comprehensive, there are questions about the reliability of the car park records. A comparison of the entry times recorded in the car park records with the patient list data, which shows when Dr Bolton accessed the hospital's computer system to access the patient list, shows that on a number of occasions the car park records indicate that Dr Bolton arrived either after or just seconds before she accessed the patient list records. In circumstances where Dr Bolton deposed that it was not possible for her to log on to the hospital's computer before she had entered the hospital and never accessed the hospital computer remotely, those records throw up an obvious discrepancy. 448 An analysis of those two sets of records suggests that either the car park clock was about 10 minutes fast or that the clock providing the time of access to the patient list was about 10 minutes slow. However, the evidence given by Dr Bolton of her usual arrival time at the car park during this rotation, which I regard to be reliable, is consistent with the car park clock arrival times for Dr Bolton. It seems likely that the discrepancy pointed to by the applicants is not due to a problem with the car park clock. I therefore regard the car park records as reliable. 449 I have therefore assessed the time worked by Dr Bolton by reference to the car park records using the same methodology as that used for the assessment made in relation to medical records overtime performed by Dr Bolton in her First General Medicine rotation. Accordingly, I find that Dr Bolton worked 11 hours of medical records overtime in the Second General Medicine rotation.

Cardiology rotation in the Department of Medicine - November 2020 to January 2021

Medical procedures preparation and ward round preparation overtime 450 In relation to her Cardiology rotation, Dr Bolton claims that she worked overtime on specified days in the period 2 November 2020 to 31 January 2021. Those claims relate to ward round preparation overtime and medical procedures preparation, each of which was worked prior to the commencement of Dr Bolton's rostered shift. I accept that those types of overtime work were performed by Dr Bolton and that she was authorised by Peninsula Health to perform the work. What is left in contest is the extent to which this work was performed by Dr Bolton. 451 Dr Bolton's evidence was that, on each of the occasions she performed this work, she arrived 20 minutes prior to her rostered start of 8 am and then spent 20 minutes performing either medical procedures preparation tasks, ward round preparation tasks or both, unless interrupted by a patient emergency. She also said in cross-examination that the ward round preparation tasks commonly continued after her rostered hours commenced and clarified that she did not work prior to the commencement of her roster on the first day of this rotation on Monday 2 November 2020. 452 Peninsula Health contested the amount of time said to have been required for the performance of these tasks. It contended, without substantiation, that the time spent was unreasonable or that the tasks performed went beyond what was required of Dr Bolton. I reject those contentions. I am satisfied on the evidence given by Dr Bolton that the tasks required would usually take about 20 minutes and that, in planning her arrival, Dr Bolton would ordinarily allow for about 20 minutes of time and thus arrive at about 7.40 am. 453 There are only 10 car park records of relevance in relation to Dr Bolton's arrival for this period. Whilst very substantially incomplete, those records show that Dr Bolton did not always arrive on the ward at 7.40 am or earlier. That observation is made in circumstances where Dr Bolton accepted that it took about eight minutes for her to transit from the car park to the ward. Some of those records suggest that she would have arrived at the ward a few minutes later than 7.40 am and some suggest she would have got there a few minutes earlier. One record suggests arrival at 7.36 am and another as late as 7.53 am. 454 Those records make it clear that Dr Bolton did not uniformly arrive on the ward at 7.40 am but are not sufficiently comprehensive to deny the possibility that she usually arrived at 7.40 am. Although I consider that there is some ambiguity as to Dr Bolton's arrival time on the ward, I am nevertheless persuaded by her evidence of how long it usually took to perform the work, which is the best evidence available, that on average she performed 20 minutes of work prior to her rostered commencement. 455 Accordingly, other than for 2 November 2020, I find that Dr Bolton worked 20 minutes of overtime on each day claimed, which is a total of 7.25 hours.

Medical records and handover overtime 456 I am satisfied that Dr Bolton worked both medical records overtime and handover overtime in this period and that the work performed was authorised. The extent of the work performed by Dr Bolton in relation to both forms of overtime is contested. 457 Dr Bolton deposed to having performed "about five to 10 minutes" of medical records overtime on each relevant occasion. Her evidence was that she performed this overtime "five days a week" in weeks 1 and 3 of her rotating roster. 458 On the weekday afternoons that Dr Bolton was rostered to finish at 4 pm, she attended handover meetings with the incoming staff which were scheduled to commence at 3.45 pm. She deposed that on each day of each of week 1 and week 3 of her rotating roster she would perform "usually somewhere between 15 and 20 minutes" of handover work at a time beyond her rostered finishing time. 459 The applicants' claim is again pitched at the top of the range of the time estimated by Dr Bolton. They claim 10 minutes a day for each of the 33 days Dr Bolton performed medical records overtime and 20 minutes a day for handover overtime on the 25 days specified by their particulars of loss and damage. 460 To substantiate the extent of the overtime worked, the applicants primarily rely on the evidence given by Dr Bolton and contended that an "uplift" should be applied. Peninsula Health contended that Dr Bolton's evidence should not be relied upon and, without substantiation, says that the amount claimed does not represent a reasonable amount of time for performing the work and/or that the tasks performed by Dr Bolton went beyond what was required of her. From the limited car park records available (13 in total), Peninsula Health extrapolate a suggested maximum average time that could have been worked for both medical records and handover overtime of 23 minutes a day. 461 In my view, the car park records are not sufficiently comprehensive to enable any reliable evaluation of the average time Dr Bolton likely spent performing overtime after the end of her rostered finish. They do, however, provide some confirmation of the extent of time said by Dr Bolton to have been worked. They show that Dr Bolton likely worked about 25 to 30 minutes of overtime on eight of the 13 days for which there are records of Dr Bolton's departure time from the car park. 462 In my view, the best available evidence of the extent of time worked by Dr Bolton is the estimate given by Dr Bolton of the usual time that she spent performing the work. Her estimate of five to 10 minutes for medical records overtime is apt to suggest that she was indicating an average time of 7.5 minutes on each occasion the work was done. Similarly, her evidence that handover ran anywhere between 15 and 20 minutes over her finishing time suggests that she was indicating an average time of 17.5 minutes on each occasion the work was done. I accept Dr Bolton's evidence as to the usual number of times in a week that each category of work was performed. That is, for the weeks one and three of the roster, four days per week for handover overtime and five days per week for medical records overtime. 463 For those reasons, I am satisfied that Dr Bolton worked a total of 4.25 hours of medical records overtime and 7.25 hours of handover overtime.

Conclusion 464 As stated above, I have determined common questions 6 and 7 in the affirmative and common questions 8 and 9 in the negative. Those findings should be reflected in the declarations the Court will make, the terms of which the parties should propose. 465 In relation to Dr Bolton's claims for unpaid overtime entitlements, I have assessed the number of hours worked that should be paid for and my findings will provide the parties with the capacity to calculate the extent of the underpayments involved, in circumstances where I do not apprehend that there is any dispute as to the applicable rates of pay under the 2018 Agreement. The parties should consider my reasons and attempt to agree upon a sum to which Dr Bolton is entitled and propose orders addressing both compensation and interest. 466 My reasons should also permit the parties to discern the number of contraventions I have found of the 2018 Agreement and thus s 50 of the FW Act for each category of overtime work addressed. The exercise should be undertaken on the basis that, on each occasion I have found that Dr Bolton performed unrostered overtime as claimed by her, and on the basis that it is not in contest that Peninsula Health failed to pay Dr Bolton for the work performed, I have found a contravention by Peninsula Health of cl 36.2 of the 2018 Agreement and therefore a contravention of s 50 of the FW Act. The parties should attempt to agree upon the terms of the declarations to be made by the Court that will reflect the contraventions so found. 467 The initial trial has been confined to liability and, if the applicants continue to press for penalties, the parties should consult and propose appropriate orders which address the timetabling of a penalty hearing. 468 If there is no agreement between the parties about the orders and declarations which the Court should make to reflect these reasons, the parties will be required to file the proposed orders and declarations each contends for together with any short supporting submissions the parties seek to make. Unless persuaded otherwise, I propose to deal with the terms of the orders and declarations that the Court should make on the papers. I certify that the preceding four hundred and sixty-eight (468) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromberg.