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.