A recent Federal Court case dealt with the circumstances of when an employer impliedly authorises overtime work.

In Australian Salaried Medical Officers’ Federation v Peninsula Health (2023), doctors-in-training made claims for overtime payments that they said were not paid for overtime worked at a public hospital. The claimants alleged they regularly worked in excess of their rostered hours to prepare for and undertake ward rounds, prepare patients for medical procedures, undertake handover and complete medical records.

Examining when implied authorisation of overtime may arise

The Court noted that in most employment arrangements, it is simply not practicable for employees to be closely supervised and directed. An employer will 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.

In this respect, the Court observed that doctors working in a hospital are highly skilled employees who are not closely directed. What is required of them in relation to a 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 who they must care for in accordance with accepted standards of clinical practice.

In this case, the hospital employer relied on an overtime policy that set out when overtime would be payable if not approved in advance. The Court accepted that 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, this will most likely be conclusive. However, the greater the ambiguity of the process 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 that has not been authorised under the process.

The Court ruled the employer was capable of giving implied authorisation to work overtime in excess of rostered hours, and neither the enterprise agreement nor the policy limited the ways in which unrostered overtime could be authorised.

In determining whether overtime was impliedly authorised, the focus is upon the work expectations set by the employer in considering whether a request or direction that work be performed in a particular way or at a particular time was made by the employer.

How was authorisation implied in this case?

In this case, the implied authorisation arose from:

• the fact that duties and responsibilities of the doctor included each of the tasks performed outside of her rostered hours;
• communications made by or on behalf of the employer about how and when particular tasks were to be performed;
• the fact that it was necessary for the doctor 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;
• the employer’s knowledge that there was insufficient time during the doctor’s rostered hours to complete the work, or that the doctor was performing the work outside of her rostered hours; and
• the employer’s failure to direct the employer not to perform the work outside of her rostered hours.