A string of class actions against health services in Victoria, NSW and the ACT is underway over claims junior doctors have been underpaid.
- Ten class actions have been launched across Australia on behalf of junior doctors amid claims of widespread and systemic underpayment
- Health services in Victoria, NSW and the ACT have rejected the allegations and are defending the class actions
- Lawyers representing junior doctors say the potential payouts are likely to be substantial
The legal action began in December 2020 when a class action was filed against NSW Health on behalf of junior doctors across the state to recover millions of dollars in allegedly unpaid wages.
The early-career medics, represented by lead plaintiff Amireh Fakhouri, claim they were deliberately not paid for the hours they worked overtime — a practice lawyer Hayden Stephens said was “now embedded in the business of running health”.
“For many, many years, it has been a systemic problem and acceptable practice that junior doctors work free labour for much of their working week,” said Mr Stephens, whose law firm Hayden Stephens & Associates, along with Maurice Blackburn, launched the legal action.
“Doctors themselves … have tried through advocacy to change the behaviour of health authorities. But those calls have really fallen on deaf ears.”
Since the NSW lawsuit was brought in 2020, nine more class actions have been filed across Australia on behalf of junior doctors who worked in the public health system between approximately 2015 and 2022.
In Victoria, eight separate class actions are underway against some of the state’s biggest health services, while junior doctors in the ACT launched a class action late last year.
Mr Stephens said junior doctors in South Australia were also investigating potential legal action.
Unlike in NSW, where junior doctors are directly employed by the state’s health department, doctors in Victoria and the ACT are employed by individual health services, which is why multiple class actions were being pursued, said lawyer Andrew Grech of Gordon Legal.
“There’s already been a trial in the first of the Victorian class actions [against Peninsula Health] … and we’re expecting judgement in that trial sometime over the next several months,” said Mr Grech, who along with Mr Stephens, is representing junior doctors in Victoria and the ACT.
In Victoria, the Australian Salaried Medical Officers Federation doctors’ union is listed as an applicant on each class action, together with a named individual doctor.
Mr Grech estimates more than 36,000 junior doctors across NSW, Victoria and the ACT may be eligible to participate in the class actions, and — if they’re successful — potentially make a claim.
Unrostered overtime a ‘routine’ part of the job
Melbourne-based junior doctor Lucy Crook is participating in one of the class actions, and said working unrostered overtime was a routine part of the job for many young doctors.
Heavy workloads in public hospitals meant it was challenging for junior doctors to get their clinical and administrative work done within rostered hours, she said.
“There’s not one day in the last few years where I’ve finished work on time,” said Dr Crook, who is the Victorian chair of the Australian Medical Association’s (AMA) Council of Doctors in Training.
“It’s pretty exhausting … Some days, I’ll be like: Did I even go to the toilet today? There’s always more work to be done.”
In the latest national survey of Australia’s doctors in training, more than half of the 22,000 doctors surveyed described their workload as “heavy” or “very heavy”.
Two-thirds reported they worked more than 40 hours on average per week, including one in 10 who worked more than 60 hours on average per week.
In another survey of junior doctors in Victoria, 47 per cent reported never being paid for unrostered overtime.
For junior doctors, Dr Crook said taking legal action to recover unpaid wages was “not really about the money”.
“We accept that we are paid reasonably well for junior workers in the hospital system. It’s more about not being appreciated for the work that we’re doing,” she said.
Heavy workloads frequently led to burnout and other health issues among healthcare staff, Dr Crook said, which ultimately had negative impacts on patient care.
That same survey of junior doctors in Victoria found nearly half of respondents had made a clinical error due to excessive workload or understaffing.
“A tired doctor, a stressed doctor, a depressed doctor is not going to be able to give the best care,” Dr Crook said.
“We’ve tried over many, many years to change the system so that we’re not working these hours and working them unpaid, but that hasn’t worked, so this is sort of the final step to try and force that change.”
Junior doctors discouraged from making claims
In some instances, Mr Grech said there was clear evidence of junior doctors being explicitly told by hospital administrators and senior colleagues not to claim their overtime.
Underpayment, he said, was also the product of a “culture” that regarded junior doctors as “inefficient, ineffective, and incompetent” if they did claim overtime.
“Because doctors are employed generally on 12-month contracts, they are disincentivised from making claims because it’s held against them in their future career progression,” he said.
“There is a real cultural problem at the heart of it, and the consequences of that cultural problem are to entrench a process where their labour is being exploited.”
Dr Crook agreed that concerns about career progression were a key reason why junior doctors didn’t claim overtime, and said there was a perception among junior staff that they would be penalised for “making a fuss”.
“I raised issues about workload and overtime in a particular department and was told: ‘You just need to work on your time management,'” she said.
“The problem is always with you. And then you sort of get a black mark … And, of course, that all goes into your references.”
While some senior staff advocated for better conditions for junior colleagues, Dr Crook said that kind of support was “rare”.
“Part of it is that hierarchy and sense that: ‘This is what I had to deal with so you have to also deal with it … and you shouldn’t be doing the job you’re doing if you can’t handle the heat.'”
‘Poor rostering and excessive workloads’
Over many years, the expectation that young staff “simply do the work and don’t complain” has led to poor rostering, understaffing and excessive workloads, Mr Stephens said.
“It is an accepted practice that junior doctors come in early to prepare for ward rounds or stay back to complete discharge summaries,” he said.
“Over time, health authorities have not just ignored these problems, but in many ways, they have endorsed the very structures — by way of budgeting, by way of funding — which have reinforced these behaviours.”
To date, in all the class actions where health services have responded to claims of underpayment, they have rejected the allegation that junior doctors worked in excess of their ordinary hours and were not paid for this work.
Several health services have noted (in court documents) that doctors are required to obtain approval before working overtime or make a claim for it afterwards — if it meets certain criteria — in order to be paid for it.
“What the hospitals say is, ‘We never authorised this overtime’. That’s where the dispute lies,” Mr Grech said.
“We say they were authorised or required to work the overtime, but they haven’t been paid for it.”
Mr Grech said hospitals were well aware of the extent of unpaid, unrostered overtime being performed by junior doctors and were “exercising willful blindness” by not addressing it.
“What they say is … ‘Well, we don’t have claims for overtime, so therefore the working hours must be fine,'” he said.
“Of course you don’t have claims because you actively discourage people from making claims for overtime, and when they do, every possible administrative and bureaucratic hurdle is put in their face.”
Mr Grech said there was a reluctance from hospitals and state governments to recognise the full extent of the problem “because fixing it will cost money”.
“They do not want to know … because then they’ll have to do something about it.”
Health departments address concerns
A spokesperson from the Victorian Department of Health said the department took the health and welfare of its medical workforce “very seriously”.
“All Victorian health services are expected to ensure that doctors have safe and reasonable workloads, and to ensure that the conditions of the doctors’ EBA are being adhered to,” the spokesperson said.
“As the matter is currently before the courts, we are unable to comment further.”
In recent years, amendments relating to safe workloads and the approval and payment of overtime have been made to the enterprise agreement covering junior doctors in Victoria.
Similarly, a spokesperson for the NSW Department of Health said the department took the wellbeing and appropriate remuneration of its junior doctors “very seriously”.
“NSW Health acknowledges there are situations where junior doctors are required to work unrostered overtime,” the spokesperson said.
“Junior doctors are required, and regularly encouraged, to submit a claim for any unrostered overtime worked.”
In 2017, the NSW government launched its $3 million Junior Medical Officer Wellbeing and Support Plan. It included initiatives such as new safe working hours standards, a new framework for rostering, and “improvements in systems and processes” to reduce barriers to claiming unrostered overtime.
In the ACT, a spokesperson for the territory’s department of health said junior doctors were “highly valued members” of the ACT’s public health system and were paid for working overtime in line with their enterprise agreement.
“Systems and processes are in place for employees to record and be remunerated for overtime hours worked,” the spokesperson said.
“Canberra Health Services and Calvary Public Hospital Bruce are committed to providing a safe and supportive workplace for junior doctors. This includes regularly reviewing individual workloads and rostering.”
Both NSW Health and ACT Health also said they were unable to comment further due to the ongoing nature of the class actions.
Ensuring the sustainability of the medical workforce
Mr Stephens said he believed the situation had improved for junior doctors in recent years, but that there was “still a long way to go”.
“When interviewing doctors today, the strong feedback I’m receiving is that already, as a consequence of these actions, there have been changes in the procedures and approach to junior doctors claiming unrostered overtime.”
But he said it was important health authorities were held to account for systemic underpayment to “force them to acknowledge this problem” and “change their behaviour”.
“It’s time for executives within hospitals to recognise there is a culture that must be changed … to ensure doctors are not being placed in this position where they’re working such excessive hours — and where they are required to work overtime, that those hours are properly acknowledged.”
Dr Crook agreed: “I think things are changing but they need to speed up.”
Fixing workplace culture in public hospitals and addressing “the rostering problem” is essential to the sustainability of the medical workforce, Mr Grech said.
“One of the most significant demands [health authorities] face is attracting and retaining talented young people to stay within the public health system,” he said.
The latest national survey of Australia’s doctors in training found one in five junior doctors were considering a career outside of medicine.
“Why do doctors give up? One of the reasons they tell us they give up … is because they do not feel appreciated or regarded,” Mr Grech said.
“And one of the significant reasons they do not feel appreciated or regarded is because not only do we expect them to work very extensive hours, but then as a society, we don’t want to pay for those hours.
“No wonder they’re leaving in droves.”
Potential payouts ‘substantial’
Both lawyers said it was difficult to estimate the size of potential repayments if the class actions were to be successful, but that the total amount was likely to be “substantial”.
“It’s not as though every doctor worked for the same period of time and worked the same amount of overtime,” Mr Grech said.
“But … there’s no doubt that rectifying the historical problem will be significant — hundreds of millions of dollars.”
While class actions are typically settled before they go to trial, namely to reduce legal costs and lengthy court processes, Mr Stephens said mediation talks had so far not led to any resolution.
“We certainly hope these matters are able to be resolved earlier rather than later … but we are preparing as if the matter is going to proceed to trial,” he said.
“In that regard, we’re in the process of interviewing many, many doctors in respect to giving evidence and sharing their stories.”