//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2024] FCA 1255
Federal Court of Australia
2024-10-31
Bromberg J
Original judgment source is linked above.
BROMBERG J: 1 On 11 August 2023, I published reasons for judgment - Australian Salaried Medical Officers' Federation v Peninsula Health [2023] FCA 939 (Liability Judgment). These reasons for judgment should be read with the Liability Judgment. The abbreviations there made are here continued. 2 By the Liability Judgment I found that Peninsula Health had breached the 2018 Agreement on multiple occasions in relation to various categories of unrostered overtime worked by Dr Bolton. Dr Bolton was a Doctor in Training or what is commonly referred to as a "junior doctor". 3 On 8 September 2023, I ordered that Dr Bolton be paid a total of $7,092.14 comprising compensation and interest. I also deferred consideration of whether declarations of contravention should be made to the penalty hearing. As a result of Peninsula Health appealing the Liability Judgment (an appeal subsequently abandoned), the penalty hearing has been much delayed. 4 Having now conducted the penalty hearing, by these reasons I deal with the appropriate penalties that should be imposed for Peninsula Health's contraventions of s 50 of the FW Act. I also deal with to whom those penalties should be paid and the making of declarations. It is convenient to commence by applying s 557(1) of the FW Act in order to determine the number of contraventions of s 50 of that Act in question.
Course of conduct 5 Section 557(1) of the FW Act relevantly provides that two or more contraventions of a civil remedy provision are taken to constitute a single contravention if the contraventions are committed by the same person and the contraventions arose out of a course of conduct by the person. 6 Based on my findings on liability in the Liability Judgment, the parties are agreed that Peninsula Health contravened clause 36.2 of the 2018 Agreement on 208 occasions. 7 By reference to Dr Bolton's rotations through the various units she worked in at Peninsula Health, as well as by reference to the category of overtime work performed in each particular rotation, the applicants' submissions grouped the 208 contraventions into seven groups as follows: First General Medicine Rotation: 14 January 2019-24 March 2019 1 Failure to pay overtime for authorised ward round preparation overtime - 27 breaches of cl 36.2 of the 2018 Agreement. 2 Failure to pay overtime for authorised medical records overtime - 30 breaches of cl 36.2 of the 2018 Agreement. Plastics Rotation: 3 June 2019-11 August 2019 3 Failure to pay overtime for authorised ward round preparation overtime - 44 breaches of cl 36.2 of the 2018 Agreement. Second General Medicine Rotation: 12 August 2019-20 October 2019 4 Failure to pay overtime for authorised medical records overtime - 27 breaches of cl 36.2 of the 2018 Agreement. Cardiology Rotation: 2 November 2020-31 January 2021 5 Failure to pay overtime for authorised ward round and medical procedures preparation overtime - 22 breaches of cl 36.2 of the 2018 Agreement. 6 Failure to pay overtime for authorised medical records overtime - 33 breaches of cl 36.2 of the 2018 Agreement. 7 Failure to pay overtime for authorised handover overtime - 25 breaches of cl 36.2 of the 2018 Agreement.
8 On that grouping of contraventions, the applicants were prepared to accept that Peninsula Health's 208 contraventions of the FW Act arose out of seven courses of conduct, reflecting each form of unrostered overtime worked by Dr Bolton in each of the four rotations. 9 In contrast, Peninsula Health contended that as all of the 208 contraventions are breaches of the one term of the 2018 Agreement and that s 557(1) operates to require that all the contraventions are taken to constitute a single contravention. In the alternative and on the assumption that its primary contention is rejected, Peninsula Health contended that the 208 contraventions are to be grouped into three courses of conduct by reference to the category of overtime work performed by Dr Bolton. Thus and by reference to the table set out at [7] above: (a) each of the "ward round overtime" breaches listed in categories 1, 3 and 5 above, should be characterised as a single course of conduct; (b) each of the "medical records overtime" breaches listed in categories 2, 4 and 6 above, should be characterised as a single course of conduct; and (c) the "handover overtime" breaches listed in category 7 above, should be characterised as a single course of conduct. 10 The submissions of both parties proceeded on the basis that the "ward round overtime and medical procedures preparation overtime" listed in category 5 in the table was essentially of the same character as the "ward round preparation overtime" listed in categories 1 and 3. 11 For the following reasons, I reject Peninsula Health's contention that the 208 contraventions should be treated as a single contravention or alternatively as three contraventions. In my view, it is preferable to conclude that the 208 contraventions arose out of seven courses of conduct and that, by operation of s 557 of the FW Act, there were seven contraventions of s 50 of that Act. 12 The principles relevant to the Court's task under s 557 are well understood and were not relevantly in contest. Those principles draw upon the common law. They are not rigid rules of law, but tools of analysis designed to guide the Court's discretion in imposing a penalty: Parker v Australian Building and Construction Commissioner (2019) 270 FCR 39 at [273] (Besanko and Bromwich JJ). It has been stated that the principles recognise "that where there is an interrelationship between the legal and factual elements of two or more [contraventions] … care must be taken to ensure that [a contravener] is not punished twice for what is", in substance, the same wrongdoing: Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39 at [39] (Middleton and Gordon JJ). Further, the object and purpose of the exercise is to ensure that the contravener is not penalised twice for the same wrongdoing: Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153 at [18] (North, Flick and Jagot JJ). Since the High Court's judgment in Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450, the object of the exercise may be better expressed as that of ensuring that the requirements of deterrence are appropriately achieved by the imposition of a penalty which properly reflects the extent of a single occasion of wrongdoing. What is called for is a factual inquiry which examines whether there is sufficient commonality between the various acts of the contravener to enable those acts to be characterised as, in substance, all part of the same wrongdoing. 13 Peninsula Health contended that s 557(1) operated to require that where the same contraventions arise from the failure to meet the same obligation, only one penalty is to be imposed. It made that submission drawing upon the observation that s 557(1) does not deem the breaches of more than one term of an enterprise agreement to be a single contravention. However, it does not follow from what s 557(1) excludes from its deeming effect, that s 557(1) operates to require that all contraventions of the same term of an enterprise agreement are required to be treated as a single contravention. 14 In substance, Peninsula Health's primary contention looks only to the nature of its wrongdoing, being the failure to comply with a specific term of the 2018 Agreement. That focus is far too narrow. If it were correct to focus on the nature of the wrongdoing alone, separate and distinct wrongdoing would often be incorrectly characterised as the same. To take an obvious example, two armed bank robberies at different banks on different days are not in substance a single occasion of wrongdoing simply because the nature of the wrongdoing - an armed robbery - was common across both sets of offences. 15 Peninsula Health's alternative submission which contended for three distinct courses of conduct is also too narrow in its focus. That contention focussed only upon the nature of the overtime work performed and ignores the different and distinct occasions of its performance as well as the different and distinct requests for (and thus implied authorisations for) that performance. 16 Peninsula Health did correctly contend that it is its conduct and not that of Dr Bolton that needs to be assessed. That is because s 557(1)(b) identifies the course of conduct in question to be that of the contravener. Peninsula Health was, however, wrong to contend that the applicants' submission does not focus on the conduct of Peninsula Health. 17 The applicants accepted that there is some factual and legal overlap in the matters from which I inferred in the Liability Judgment that Peninsula Health impliedly authorised Dr Bolton to perform the overtime she worked (i) in each rotation and (ii) in respect of each form of overtime worked within each rotation. The applicants contended, however, that the mode of authorisation differed for each kind of unrostered overtime performed and between the units through which Dr Bolton rotated at Peninsula Health, over the two years that were the subject of the claim. The facts and matters which led to the findings of authorisation for each form of overtime in each rotation were said to be distinct, depending on rotation and duty-specific matters including the rostered hours, the structure of the working day, the way/s in which Peninsula Health's expectations as to the particular duty were conveyed, the particular time-sensitivity of the relevant duties, the communications about if and when overtime would be paid and/or should not be claimed, and the personnel involved. On that basis, the applicants contended that there is an insufficient factual, legal and temporal interrelationship with respect to different kinds of overtime in different rotations to constitute a single course of conduct. 18 I broadly agree with that submission, although I think the same conclusion can be arrived at by reason of the somewhat different analysis which I prefer. 19 There were essentially two aspects to Peninsula Health's contravening conduct. First, impliedly requesting or directing (and thus impliedly authorising) Dr Bolton to perform overtime work. Second, the failure to pay for the overtime work performed. 20 The failure to pay was common conduct across all contraventions, but for essentially the same reasons I have rejected Peninsula Health's primary contention, the failure to pay cannot of itself provide the commonality required to enable all the conduct to be characterised as a single course of conduct. 21 Turning then to the first aspect of Peninsula Health's conduct, it is possible to construe Peninsula Health's conduct as involving a separate and distinct request or direction for the performance of overtime work in respect of each occasion upon which the work was performed. In other words, there are 208 separate requests or directions. However, the better view of the relevant facts as detailed in the Liability Judgment is that there was, in essence, a standing request or direction made by Peninsula Health in each of Dr Bolton's rotations for Dr Bolton to perform each of the type or types of overtime she performed in that rotation. On that view, Peninsula Health's conduct involved seven distinct requests or directions and not 208. 22 The standing request for each particular kind of overtime performed provides the common thread. It enables each of the contravening acts of non-payment related to that standing request to be appropriately characterised as constituting part of the same wrongdoing. 23 On that basis and bearing in mind the object of the exercise as described at [12] above, I conclude that there were seven courses of conduct reflective of the seven groupings in the table and that, by operation of s 557(1), seven contraventions of s 50 of the FW Act. 24 It is necessary, however, to observe that the obligation on an employer to pay wages ordinarily falls periodically on a specified day in each pay period in which work is performed. Only one failure to pay occurs in each pay period, despite the fact that the failure to pay in full may relate to work performed on many different days in the pay period. If the many days for which the employee was directed to work and not paid for are to be grouped, the grouping may be confined to the particular pay period and a finding could be made of a single contravention for that pay period. Whether two or more failures to pay over two or more pay periods should be regarded as a course of conduct may depend, but the analysis would need to take into account that each periodic failure to pay may be separate and distinct from the next. 25 The submissions of the parties paid no attention to what may have been a single failure in each pay period to pay Dr Bolton for all of her overtime entitlements. I have not taken any such consideration into account. I have made the observations at [24] to ensure that my conclusion is not misunderstood as intending to suggest that a series of failures to pay a particular entitlement will necessarily constitute a single course of conduct because all the failures were referrable to a single standing direction for particular work to be performed. The strict application of that kind of approach would lose sight of the object of the exercise and, contrary to the primary purpose of deterrence, would work to reward contraveners for systematic contraventions: see, in the context of the common law course of conduct principles: Fair Work Ombudsman v 85 Degrees Coffee Australia Pty Ltd [2024] FCA 576 at [83] (Bromwich J).
Section 557A(1) - serious contravention and the application for leave to amend 26 On the penalty hearing and for the first time, it was contended for the applicants that certain contraventions of Peninsula Health were "serious contraventions" within the meaning of s 557A(1) of the FW Act. The contraventions which were impugned as being "serious contraventions" were the contraventions identified in categories 1, 3, and 5 of the table set out above. 27 At the relevant time, s 557A(1) provided: (1) A contravention of a civil remedy provision by a person is a serious contravention if: (a) the person knowingly contravened the provision; and (b) the person's conduct constituting the contravention was part of a systematic pattern of conduct relating to one or more other persons. 28 Relevantly, s 557A(6) provided: (6) If a person is applying for an order in relation to a serious contravention of a civil remedy provision, the person's application under subsection 539(3) must specify the relevant serious contravention. 29 Where s 557A(1) is satisfied and the contravention alleged is found to be a "serious contravention" rather than a contravention which is not a "serious contravention" (ordinary contravention), s 539 of the FW Act operates to increase the maximum penalty to 600 penalty units rather than the 60 penalty units that applies to an ordinary contravention. 30 The alleged serious contraventions were not specified by the applicants' Originating Application or by their Statement of Claim. Peninsula Health was not otherwise put on notice, prior to the filing of the applicants' written submissions on penalty, that the applicants would contend that the alleged serious contraventions were other than ordinary contraventions. Peninsula Health was thus not told that the applicants' case was that the contraventions as alleged by the pleadings satisfied the additional elements required by s 557A(1) that the contravener "knowingly contravened" and that the contravening conduct was "part of a systematic pattern of conduct relating to one or more other persons". Plainly, Peninsula Health was also not given any prior notice that, in relation to many of the contraventions alleged in the pleadings, it may be exposed to pecuniary penalties ten times greater than the potential exposure revealed on the pleadings when read reasonably and in the context of how the FW Act provides for the imposition of civil penalties. 31 In conjunction with the filing of the applicants' written submissions on penalty, the applicants filed an interlocutory application for leave to amend their Originating Application. The purpose of that application was said to be to comply with s 557A(6) of the FW Act. The applicants contended for leave to amend pursuant to rule 8.21(1)(g) of the Federal Court Rules 2011 (Cth) on the basis that the claim for an order under s 557A(1) arises out of the same facts as those already pleaded. It was contended that the Court's discretion whether to grant leave to amend under rule 8.21(1) of the Rules is to be exercised in a way that accords with the Court's overarching purpose to facilitate the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible. The applicants contended that there can be no prejudice or injustice, let alone substantial prejudice (to Peninsula Health) arising by reason of the proposed amendment to the originating application, in circumstances where all material facts relied upon to support the findings of serious contraventions were expressly pleaded by the applicants. Furthermore, it was said that the just resolution of the dispute according to law weighed heavily in favour of leave to amend being granted, consistently with the remedial objective of the Court's power to grant leave to amend, which is to ensure that the real issues in the dispute are able to be properly agitated. 32 The amendments in the applicants' Proposed Amended Originating Application specify the terms of the declarations the applicants now ask the Court to make. That is done in substitution of the general claim for a declaration of contravention. 33 Furthermore and importantly for current purposes, by paragraph 5 of the Proposed Amended Originating Application, the applicants seek to amend by including "or serious contravention" to the plea there made for an order that Peninsula Health pay pecuniary penalties in respect of the contraventions alleged. Further, by paragraph 8H, the applicants seek to include a plea for a declaration declaring that those contraventions now alleged by the applicants to be "serious contraventions" be declared as such. 34 It is those proposed amendments which I understand the applicants to say are the amendments necessary to be made by them in order that they comply with s 557A(6). 35 For the reasons that follow, the just resolution of this dispute would not be facilitated by the Court granting leave for the applicants to amend its Originating Application to include the proposed amendments. 36 To my mind, the two elements specified by s 557A(1)(a) and (b) are each elements of the kind of contravention that s 557A(1) provides for. That kind of contravention is, therefore, different to the ordinary contravention otherwise provided for under the FW Act which does not require satisfaction of the additional elements required for a "serious contravention". It follows that s 557A is not simply dealing with the penalty that may be imposed for a contravention under the FW Act as the applicants contended. It provides for a particular kind of contravention. Whether that kind of contravention has been established on the evidence, is a question that goes to a respondent's liability in relation to that particular kind of contravention and not merely to the extent of the pecuniary penalty that a court may impose for that contravention. 37 A proceeding like this is often split so that liability issues are addressed first in an initial hearing and issues going to penalty are dealt with in a second hearing conducted after a judgment on liability has been published. That was the case here. 38 On no view could it be said that Peninsula Health's liability for a contravention of the kind provided for by s 557A(1) was raised as an issue at the liability hearing or was an issue dealt with by the Liability Judgment. I do not accept that the claim now made arises from the facts as pleaded by the applicants. 39 It follows that what the applicants' application for leave to amend is in substance seeking is that, contrary to the order made splitting the liability and penalty stages of the proceeding, the applicants be permitted to agitate on the penalty hearing issues going to liability which were not agitated at the liability hearing. Further, that some of the findings of contravention made in the Liability Judgment, be substituted on the penalty hearing for a finding that a "serious contravention" was committed by Peninsula Health. 40 That is the proper context in which, as I see it, the discretion conferred by rule 8.21 of the Rules is to be considered. It is the context in which the exercise of that discretion in the manner proposed by the applicants would, in my view, plainly occasion substantial injustice upon Peninsula Health. If I am wrong to regard s 557A(1) as providing for a particular kind of contravention and thus relevant to liability rather than merely to penalty, I would nevertheless conclude that the nature and extent of the substantial injustice that would be suffered by Peninsula Health would suffice to reject the exercise of my discretion in the manner proposed by the applicants. 41 I turn then to explain why, on either construction of s 557A(1), prejudice and thus substantial injustice would be suffered by Peninsula Health should the proposed amendments be made. 42 As a matter of procedural fairness, but also by reason of s 557A(6), Peninsula Health was entitled to know from the outset of the proceeding not only the case it had to meet at trial but also the extent of its exposure to penalties should the case made against it succeed. "In this class of case, it is especially important that those accused of a contravention know with some precision the case to be made against them. Procedural fairness demands no less": Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 (Logan, Bromberg and Katzmann JJ) at [63]-[64]. 43 In relation to the case it was required to meet, it was necessary for the applicants to have notified Peninsula Health that, for the purposes of s 557A(1), it "knowingly contravened" the relevant provisions and that its conduct constituting those contraventions was "part of a systematic pattern of conduct relating to one or more other persons". Contrary to the applicants' submission, I do not accept that Peninsula Health should be taken to have had knowledge of the matters it was entitled to be informed of. I accept that Peninsula Health's knowledge of whether Dr Bolton was performing overtime work was properly an issue on the question of whether or not that work was impliedly authorised by Peninsula Health. I also accept that to some degree the manner in which Peninsula Health arranged the working day of its junior medical workforce was variously raised in submissions or in the examination of some of the witnesses and that to some extent the systematic nature of Peninsula Health's conduct was alluded to. However, for the purposes of considering the extent of any prejudice that may be suffered by Peninsula Health, I do not regard Peninsula Health's knowledge about those matters as sufficient to deny the prejudice I find Peninsula Health would suffer should the proposed amendment be granted. 44 I accept Peninsula Health's contention, made in reliance upon the reasoning in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The North Queensland Stadium Case) (No 2) [2021] FCA 105 (Rangiah J) at [68]-[69], that the depravation of the opportunity for Peninsula Health to have conducted its case differently, is sufficient to manifest prejudice of the kind that may warrant the rejection of the proposed amendment. Peninsula Health contended that if the Originating Application had stated from the outset that "serious contraventions" were being sought to be established, that may have influenced the course that it took in relation to the conduct of the proceedings. By way of example, Peninsula Health contended that it may have called different witnesses, led different evidence from those that it did call, or have conducted its cross examination differently. Furthermore, Peninsula Health contended that it may have made admissions as to certain factual circumstances, so as to limit the quantum of any pecuniary penalty imposed upon it. 45 In my view, the possibility that Peninsula Health may have altered its conduct of the proceedings is real and not merely theoretical. The ten-fold increase to Peninsula Health's potential exposure to many of the penalties claimed by the applicants may well have influenced the course of Peninsula Health's conduct of the proceeding. The extent of a respondent's potential financial exposure can rationally be accepted as likely to have some influence upon the manner in which that respondent's case is conducted, including its preparedness to make appropriate compromises. 46 Furthermore, if Peninsula Health had understood that it was alleged that, for the purpose of s 557A(1), it had "knowingly contravened" and that its conduct was "part of a systematic pattern of conduct" (even if those issues were relevant to penalty alone), the possibility that Peninsula Health would have conducted its case differently at the liability hearing is, in my view, real and not merely theoretical. That possibility is not denied by the fact that Peninsula Health knew that its knowledge that Dr Bolton had been performing overtime work was in issue or that the manner in which Peninsula Health arranged the working day of its junior medical workforce was raised as an issue. The purpose for which each of those issues was raised is important. Those issues were not directed to the elements of s 557A(1) and do not, in my view, sufficiently coincide with those elements as to deny the real possibility that, if Peninsula Health knew that the issues were relied upon for a s 557A(1) purpose, Peninsula Health may have conducted its case differently. 47 It is, in this respect, significant that s 557A(1) raises as an issue the state of mind of Peninsula Health - namely, whether it knowingly contravened s 50 of the FW Act. That issue raises far more than merely Peninsula Health's state of knowledge as to whether Dr Bolton was performing overtime work. As a matter of procedural fairness, it was incumbent upon the applicants to have raised the specific state of mind it now wants to allege Peninsula Health had. That failure and the consequent denial of an opportunity for Peninsula Health to respond, is prejudicial. 48 For those reasons, I reject the applicants' application for leave to amend its Originating Application.
The appropriate penalties 49 Section 546 of the FW Act empowers this Court to order a person to pay a pecuniary penalty that the Court considers "appropriate" if the Court is satisfied that the person has contravened a civil remedy provision. Despite some disparity in the submissions of the parties in relation to the applicable principles for determining an "appropriate penalty", following the High Court's judgment in Pattinson the central principles are clear and may be summarised as follows: the primary, if not sole, purpose of a civil penalty is promoting the public interest in compliance through deterring future contraventions (Pattinson at [9]); the task of the court is to identify the "appropriate" penalty necessary to deter future contraventions of a like kind by the contravener and others, to achieve specific and general deterrence (Pattinson [9]-[10]); regard needs to be given to the conduct giving rise to the contraventions, the circumstances of the contravener and the factors indicating the risk of future contraventions of a "like kind" (Pattinson [58]-[60]); the power to impose a civil penalty is not constrained by the notion of proportionality in the sense of a relationship between the seriousness of the conduct and the penalty imposed. Rather, what is required is that there be some reasonable relationship between the theoretical maximum and the final penalty imposed - a relationship that will be established where the maximum penalty does not exceed what is reasonably necessary to achieve deterrence (Pattinson [10], [38]-[53]). 50 At the relevant time, the maximum penalty specified for an ordinary contravention for a corporation was 300 penalty units. The dollar amounts for a penalty unit were, relevantly, $210 (until 30 June 2020) and $222 (1 July 2020 - 31 December 2022). It was not in contest that in relation to the seven contraventions in question the maximum penalty for each is as follows: First General Medicine Rotation: 14 January 2019-24 March 2019 Maximum penalty (s 546(2)) 1 Failure to pay overtime for authorised ward round preparation overtime - 27 breaches of cl 36.2 of the 2018 Agreement. $63,000 2 Failure to pay overtime for authorised medical records overtime - 30 breaches of cl 36.2 of the 2018 Agreement. $63,000 Plastics Rotation: 3 June 2019-11 August 2019 3 Failure to pay overtime for authorised ward round preparation overtime - 44 breaches of cl 36.2 of the 2018 Agreement. $63,000 Second General Medicine Rotation: 12 August 2019-20 October 2019 4 Failure to pay overtime for authorised medical records overtime - 27 breaches of cl 36.2 of the 2018 Agreement. $63,000 Cardiology Rotation: 2 November 2020-31 January 2021 5 Failure to pay overtime for authorised ward round and medical procedures preparation overtime - 22 breaches of cl 36.2 of the 2018 Agreement. $66,600 6 Failure to pay overtime for authorised medical records overtime - 33 breaches of cl 36.2 of the 2018 Agreement. $66,600 7 Failure to pay overtime for authorised handover overtime - 25 breaches of cl 36.2 of the 2018 Agreement. $66,600
51 On that basis, the aggregate maximum total penalty is $451,800. 52 The applicants sought penalties in the range of $1,444,500 to $1,637,100. That, however, was based on establishing that some of the contraventions were "serious contraventions", a submission which is now not open for the applicants to pursue. In the alternative, the applicants contended for a penalty in the range of 65 to 85 per cent of the maximum for the contraventions listed in the table at 1, 3 and 5 (which are the contraventions asserted to be "serious contraventions") and 50 per cent of the maximum for the contraventions listed at 2, 4, 6 and 7. Peninsula Health contended that the appropriate penalty for a contravention is somewhere between 15-25 per cent of the maximum. 53 My fundamental task is to impose monetary penalties set at a level sufficient to deter future contraventions of a "like kind" (Pattinson at [9]-[10]) to those which I have found Peninsula Health to have wrongfully engaged in. By its very nature, this is a difficult task because it involves assessing the extent of the risk that particular conduct will occur in the future. Like the assessment of future economic loss and even the assessment of past loss in circumstances where precise evidence is unavailable (see [370]-[371] of the Liability Judgment), a court can only be required to do its best on the evidence before it, including by making inevitable and necessary estimations. 54 The reasons for, or causes of, Peninsula Health's contraventions and the circumstances in which they occurred are likely to be helpful indicators of the risks of reoccurrence. By understanding why the contraventions occurred, the Court will be able to better identify what it is that may cause future like contraventions and thus the extent of the deterrence necessary to avoid those future contraventions. 55 It is best to commence the exercise by identifying the nature of the contravener and the nature of the contravening conduct. 56 Peninsula Health is a major provider of public health services to the community across a number of sites including Frankston Hospital. It is funded by government and has substantial assets. It has no prior record of contravening the FW Act. 57 The 2018 Agreement required Peninsula Health to pay for any authorised overtime work performed by doctors in excess of rostered hours. That requirement did not depend upon any claim for payment made by the doctor. Peninsula Health contravened the 2018 Agreement by failing to pay Dr Bolton for authorised work performed by her in excess of her rostered hours, or, in other words, for her performance of unrostered overtime. 58 There is a wealth of evidence demonstrating that unrostered overtime work by junior doctors was not confined to Dr Bolton but commonly occurred where implied authorisation was given to junior doctors in the same or similar circumstances to those experienced by Dr Bolton. The evidence also demonstrates that many registrars and consultants supervising the work of Dr Bolton knew that Dr Bolton was commonly performing unrostered overtime work. Further, the evidence demonstrates that senior management including the head of the Department of Medicine knew that it had been and was common for junior doctors to work unrostered overtime which was not claimed or paid for. 59 Further still, there were policies and practices adopted by Peninsula Health which demonstrate the reluctance of Peninsula Health to pay for unrostered overtime performed by junior doctors. In the Department of Medicine, the policy in place for claiming unrostered overtime was, on an objective assessment, obstructive and likely intimidating for junior doctors to use. As the evidence demonstrated, many junior doctors were in fact discouraged by the policy from claiming payment. Evidence of actual discouragement was given by a number of junior doctors and there was evidence that the discouraging nature of that policy was known to Peninsula Health but ignored. 60 Based on that and other evidence, I concluded at [203] of the Liability Judgment that the objectively discerned understanding held by medical staff in the Department of Medicine about Peninsula Health's intent was that Peninsula Health wanted unrostered overtime work performed but was generally reluctant to pay for it. 61 Further still in the Plastics Unit of the Department of Surgery and on the basis of Dr Bolton's and Dr Read's evidence which I prefer to that of Dr Terrill on this issue, there was an understanding or practice in place that particular unrostered overtime work (pre-shift commencement overtime) was "not claimable" as overtime. This practice is particularly concerning because it demonstrates that Peninsula Health was prepared to expressly and brazenly instruct junior doctors to perform unpaid work. 62 In my view, insofar as Peninsula Health had actual or constructive knowledge of the unrostered overtime work performed by Dr Bolton and other junior doctors, its conduct must be regarded as deliberate. I reject the contention made by Peninsula Health in relation to its conduct in respect of Dr Bolton, that it is not open to find that the "setting of the expectation" and thus the giving of the authorisation to perform unrostered overtime work was not intentional. That contention misunderstands the approach I took in the Liability Judgment to discerning whether an expectation for the work to be done had been communicated to employees and why, in that context, the subjective intent of Peninsula Health did not matter. I did not in that analysis deal with the subjective intent of Peninsula Health, let alone reject its existence. 63 In my view, the expectations for unrostered overtime work to be performed (which were general in their nature rather than specific to Dr Bolton), were, as I found, not only known to Peninsula Health through various supervisory or managerial employees but were appreciated by Peninsula Health as expectations that junior doctors would fulfill. The setting of those expectations was on no view inadvertent. 64 It is necessary to bear in mind that as a category of employee, junior doctors and in particular interns are vulnerable employees or, at the least, the most vulnerable category of employees in the medical workforce at Peninsula Health. That is mainly so because of their lack of seniority, the fact that they do not have ongoing employment and that their career progression into ongoing employment is dependent upon the views of them held by senior clinicians and senior managers who are often involved in setting expectations for the performance of work and or the processing of claims for the payment of overtime. They are, as a workgroup, likely to be vulnerable to exploitation and because of the manner in which authorisation for the performance of unrostered overtime has been commonly given at Peninsula Health, they are most vulnerable to exploitation in respect of the performance of unrostered overtime. 65 Mainly for the purpose of demonstrating that it had taken corrective measures, Peninsula Health relied upon the affidavit evidence of its Chief Legal Officer, Ms Ararat. Sub-paragraphs (c) and (e) of paragraph 18 of that affidavit were the subject of a hearsay objection. Consistently with the agreed approach of the parties, that evidence was admitted on the basis that without formally ruling on the objection, I will assess the probative value of the evidence taking into account its hearsay character if I consider it to be hearsay (which I do). 66 By reference to that evidence and other matters, Peninsula Health also made submissions about the nature, extent and circumstances of the contravening conduct and the need for deterrence. 67 Peninsula Health contended that "critical" to the consideration of deterrence is the fact that the 2018 Agreement is no longer in force and that a fundamentally different scheme for overtime has been put in place by clause 36 of the Doctors in Training (Victorian Public Health Sector) (AMA Victoria/ASMOF) (Single Interest Employers) Enterprise Agreement 2022-2026 (2022 Agreement). The submission does not explain why the 2018 Agreement was a cause of the contraventions. 68 It does, however, go on to say that by reason of the 2018 Agreement being replaced by the 2022 Agreement and due to the measures taken, Peninsula Health is now incapable of committing a contravention of a like kind to that done in respect of Dr Bolton. That is said to be so because "[t]he notion of "authorisation" no longer applies to overtime at Peninsula Health - let alone whether it is still being objectively implied through expectation". 69 There are multiple difficulties with those contentions. First, if it is being suggested that the only reason Peninsula Health failed to pay for unrostered overtime was because of its view that only overtime work which had been expressly authorised was payable, no such evidence has been given. Nor has that fact been expressly contended for in the submissions of Peninsula Health. 70 Second, Peninsula Health's submission that no contravention of a like kind could now occur, takes a far too narrow conception of the kind of contravention the need for deterrence must here address. To my mind and at its narrowest, a contravention of a "like kind" would be any failure to pay for overtime work performed by junior doctors irrespective of the reason or reasons for that failure. In the circumstances at hand, the risk that needs to be addressed is the risk that a category of particularly vulnerable employees will be denied their entitlement to be paid for the unrostered overtime worked by them, irrespective of how that denial is achieved. 71 Thirdly, I am not persuaded by the bold contention that the authorisation of overtime is no longer necessary under the 2022 Agreement. In any event, if what is really being contended for is that because the 2022 Agreement now applies, there can no longer be ambiguity or dispute as to the entitlement of a junior doctor to be paid for working unrostered overtime, I disagree. Clause 36.6 itself expressly contemplates such disputes and the meaning and operation of clause 36 is open to disputation in many respects, including those exemplified by the competing submissions made by the parties as to its meaning and operation. 72 Turning then to some of the measures relied upon by Peninsula Health to contend that the risk of further contraventions is low, I accept that some action has been taken by Peninsula Health to lower the risk of unpaid overtime being worked in some circumstances. The problem is that, alarmingly, those circumstances appear to be very limited. No specific measure addresses the working of unrostered overtime in the Department of Surgery and, in the Department of Medicine (which includes Cardiology), the only measures taken in relation to the kind of unrostered overtime worked by Dr Bolton is that a 30 minute overlap in the rostered hours of incoming and outgoing doctors was put in place in or around January 2023. That, I presume, will have removed the need for unrostered overtime work of the kind which is the subject of the handover overtime contravention listed in the table above at number seven. 73 There are a number of measures listed in Ms Ararat's affidavit which are said to be changes to staffing models and recruitment strategies based on the data in overtime reports. Those measures do not appear to be addressing unrostered overtime of the kind worked by Dr Bolton. Insofar as they are addressing other unpaid unrostered overtime work of junior doctors, the extent to which the need for that work has been reduced or removed is unclear on the material before me. 74 There is other evidence of efforts to improve Peninsula Health's oversight of hours worked by clinical staff. Further, there is evidence of communications to employees and a changed process for obtaining express authorisation to work unrostered overtime. It is possible that those matters will diminish the hostile environment for junior doctors making claims to be paid for unrostered overtime which was demonstrated by the evidence before me. However, most of those measures were put in place about a year prior to the liability hearing and, if they were bearing fruit, I would expect that Peninsula Health would have been in a position to inform me of that at the penalty hearing. No such information was forthcoming. 75 Finally, the only other matter sufficiently probative to warrant being mentioned, is a four-week trial set to commence in August of this year, which I presume has now commenced. That trial will test a proposal to roster "protected time" for the completion of discharge summaries. Why it took over a year to test, let alone, take corrective action was not explained. Even assuming that the trial is successful and the proposal made permanent, the extent that the proposal will reduce the need for medical records overtime is uncertain on the evidence before me. 76 Although the extent of the need for junior doctors to perform unrostered overtime may now be a little diminished and, even if the environment for claiming payment is somewhat improved, I am not persuaded that the high risk of at least some (and possibly most) junior doctors performing authorised but unpaid unrostered overtime, which the evidence on the liability hearing demonstrated, has been significantly abated or is likely to be significantly abated by the measures taken by Peninsula Health. 77 The circumstances in which the contraventions suffered by Dr Bolton occurred are of themselves sufficient to demonstrate a highly irresponsible attitude by Peninsula Health to its obligations to pay for unrostered overtime that it authorised be worked. That Peninsula Health did nothing much at all over many years prior to the liability hearing to address the fact that it was common and well known for junior doctors to work unrostered overtime for which they were not paid, confirms the level of irresponsibility that I would ascribe to Peninsula Health's behaviour. 78 Nearly a year passed between the publication of the Liability Judgment and the penalty hearing. There is a dearth of evidence that Peninsula Health has taken action of significance to ensure that the circumstances in which six of the seven categories of breaches suffered by Dr Bolton do not reoccur. Not even the blatantly egregious practice of interns being expressly instructed to work without pay in the Plastics Unit has been dealt with on the evidence presented. Those six categories in relation to which little or nothing has been done are made up of over 180 breaches of the 2018 Agreement. I have no confidence that those interns who have followed in Dr Bolton's footsteps will not have been denied their entitlements in the same or similar manner as Dr Bolton was. 79 These are conclusions I find disturbing. They confirm in my mind that Peninsula Health's conduct in relation to Dr Bolton was based on a highly irresponsible attitude to its legal obligation to pay for unrostered overtime under the 2018 Agreement. 80 Why Peninsula Health failed to take a responsible attitude to its legal obligations is somewhat beside the point because there really is no excuse available on the evidence that would warrant lower penalties than those that I have in mind. It may be the case that Peninsula Health's conduct is the consequence of Peninsula Health being insufficiently funded. It may be that its conduct is based on an incapacity to pay for all of the labour Peninsula Health needs in order to provide the services it is contracted to provide to the standard that those services must be provided. 81 It would be of no surprise to me, if the Departments of Medicine and of Surgery at Peninsula Health were simply not funded to pay for the unrostered overtime junior doctors were expected to work. Such a lack of capacity to pay would explain much of the approach senior managers took to discouraging claims for payment as well as their inaction in the face of their knowledge that unrostered overtime was being commonly worked by junior doctors. That possibility is also supported by some evidence to the effect that the cost of paying junior doctors for unrostered overtime was considered to be a problem. 82 If a lack of funding is the underlying problem, the irresponsibility that I have attributed to Peninsula Health also extends to those with responsibility for funding Peninsula Health. If that is so, the message that this judgment will send to those who are funding Peninsula Health will hopefully be clear. 83 I would conclude that there remains a high risk of the kind of contravention experienced by Dr Bolton reoccurring. To address the need for specific deterrence, a penalty at the high end of the range is appropriate. 84 I turn then to the issue of general deterrence and observe at the outset that it is not necessary for me to address the need for general deterrence in other than a summary way. I can do that without placing any substantial reliance upon much of the evidence tendered by the applicants in support of their contention that the need for general deterrence warrants a substantial penalty. 85 I have not taken into account the evidence which is objected to by Peninsula Health, which seeks to assert that over many years there has been a high prevalence across the public health sector of high volumes of unpaid unrostered overtime worked by junior doctors and that this trend continues. 86 I have taken into account, having weighed the probative value of the evidence by reference to the substance of any objection raised in respect of it, evidence which supports the following facts: (a) there are numerous providers of public health services across Australia's public health sector; (b) those health services employ approximately 43,000 junior doctors; (c) many of those junior doctors perform substantially the same or similar work as junior doctors at Peninsula Health and work in workplaces which are organised and structured in substantially the same or similar way, resulting in a need for junior doctors to perform unrostered overtime from time to time; and (d) because of their lack of seniority, insecure employment and desire for career progression, like junior doctors at Peninsula Health, many of those junior doctors are likely to be vulnerable to being denied their entitlements including to be paid for unrostered overtime work performed by them. 87 Those facts suffice to identify that junior doctors employed by some or all providers of public health services (beyond Peninsula Health) face the risk that their employer will contravene either the 2022 Agreement or another like industrial instrument requiring payment of authorised overtime. 88 There is clearly a need for that risk to be addressed by way of general deterrence. I reject Peninsula Health's contention made in respect of health service providers beyond Peninsula Health covered by the 2022 Agreement, that there can be no contravention of a like kind to the contraventions in respect of Dr Bolton. Peninsula Health made the same submission about the effect of the 2022 Agreement as that recounted at [67]-[68] above. I reject that submission essentially for the same reasons as expressed at [69]-[71] above. 89 However, on the available evidence, the need for general deterrence rises no higher than the need for specific deterrence. That need will be accommodated by the penalty appropriate to be imposed and which I intend to impose by reference to the need for specific deterrence alone.
Conclusion as to the appropriate penalty 90 For the reasons given, a pecuniary penalty at the high end of the range is appropriate for each contravention. Having applied s 557(1) of the FW Act and the course of conduct principles, the need for deterrence does not suggest to me that, as a proportion of the maximum penalty, the pecuniary penalty that I impose should vary as between each contravention or that any discount is necessary in the application of the totality principle. I will impose a penalty equivalent to 70% of the applicable maximum penalty for each of the seven contraventions. That will result in a total penalty of $316,260. 91 The applicants seek that any penalties imposed be paid to the first applicant, ASMOF. In accordance with the principle that, in the ordinary case, a penalty be paid to a registered organisation where it is the initiating party (Sayed v Construction, Forestry, Mining and Energy Union (2016) 239 FCR 336 at [96]-[101], Tracey, Barker and Katzmann JJ), I will order that the penalties imposed be paid to ASMOF.
Declarations and costs 92 There is usually utility in a court making declarations which describe the unlawfulness which the Court has determined a party has engaged in. In this case, the making of declarations will assist in addressing the need for general deterrence by clearly and succinctly communicating to potential contraveners the Court's opprobrium of the contravening conduct. 93 I presume that by reason of the operation of s 570 of the FW Act, no party has sought an order for costs. No such order will be made. I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromberg.
Australian Salaried Medical Officers' Federation
Peninsula Health
(2022) 274 CLR 450
(2015) 230 FCR 298
(2019) 270 FCR 39
(2014) 221 FCR 153
(2016) 239 FCR 336