Implied authorization of overtime

The Federal Court  has held that an employer’s authorization of overtime being worked by employees may be implied from its Australian Salaried Medical Officers’ Federation v Peninsula Health [2023] FCA 939.

“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:

  1. 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?
  2. 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”.

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