‘No time to pee’: Junior doctors build unpaid overtime case against SA Health

Junior doctors in South Australia are working up to 30 hours’ unpaid overtime every week and labelled “black sheep” if they try to get compensated for it, investigations into a potential landmark “wage theft” legal claim have found.

Sep 06, 2022, updated Sep 06, 2022
Image: Tom Aldahn/InDaily

Image: Tom Aldahn/InDaily

A national law firm specialising in group actions is mounting a case against SA Health for the recovery of unpaid overtime, which if successful could see the State Government forced to pay out millions of dollars to short-changed medicos and set a significant precedent.

One SA junior doctor, who spoke to InDaily on the condition of anonymity for fear of repercussions, said working unpaid overtime “has become normalised” and many clinicians are so overworked they miss out on meal breaks and even toilet breaks.

“Some shifts I’m so busy that I don’t drink because I know I don’t have time to stop and pee,” he said.

“You just don’t have that time to waste. You just limit your (fluid) intake so you are limiting how much you need to pee because it can be that busy.”

He’s been working in SA hospitals for 10 years so is now less shy about claiming overtime than some of his more junior colleagues, but even so he works extra time “most days” without being paid for it.

“I don’t think I have ever, ever finished a shift on time and I wouldn’t claim (overtime) unless it was more than 30 minutes (extra),” he said.

“Fifteen minutes, 20 minutes, here and there, I wouldn’t claim for… and it’s most days.

“I now see that as normal. If I’m rostered till 5pm, I know I can’t plan anything until 6pm because I’m not leaving before 5.30pm.

“There would be people who are there for an hour after their shift and they won’t put it down. Our doctors are on a year-to-year contract and there is this fear that if they’re claiming overtime, they’re made to look less efficient.”

The doctor said he accepts that medicos are paid “pretty well” – with interns in SA earning $79,414 a year or about $40 an hour – for a standard 38-hour-week.

“For me the main issue is overtime creep, where you’re expected to start prior to your shift to get all the paperwork and everything ready and then you’re expected to stay at the end of your shift to tidy things up after a paper round and none of that’s acknowledged or paid,” he said.

“I think for the most part junior staff don’t feel empowered to claim that.

“It’s the 15, 20, 30 minutes that happens every day that doesn’t get paid.

“When I was an intern I didn’t claim any overtime.”

He said the problem was compounded by staffing shortages, putting enormous pressure on medicos.

“We’ve got such profound staff shortages at the moment that we are all putting patient safety first and we are trying to do the workload of multiple clinicians but that’s not necessarily reflected in our hours,” he said.

“So for example if you’ve got a team that normally has two junior doctors, one of them is sick then that person left is like, ‘Yeah stay late, put an extra hour or two’ – they’re putting an extra hour or two hours of overtime but they’re doing double the amount of work, they’re not doing an extra hour or two hours they’re doing an extra three or four hours.”

Hayden Stephens and Associates, which is overseeing multiple class actions interstate for underpayment of junior doctors, told InDaily the problems were as bad, if not worse, in SA.

“Junior doctors across SA are working excessive hours placing patients and themselves at risk,” principal lawyer Hayden Stephens said.

“What I’ve learnt from speaking to junior doctors in SA is entirely consistent with my experience acting for junior doctors in Victoria, ACT and New South Wales.

“It’s as though junior doctors ‘free labour’ is embedded in the business operations of health services.”

It would be a significant claim if it was successful at court

Stephens said he had spoken with numerous SA doctors from hospitals across the state and his investigations were well advanced.

“There is a clear power imbalance in play, which makes it harder for junior doctors to force change – many are on annual contracts only,” he said.

“There is a widespread attitude that junior doctors should ‘toughen up’ and are sometimes discouraged from making claims for overtime in fear of being marked the ‘black sheep.’

“This might be worse in places like SA where, as one doctor puts it, ‘word easily gets around’. That doctor adds, ‘Sometimes the person who signs off on your overtime is the same person who decides whether you go into a trainee program’.”

Stephens is investigating a potential claim on behalf of the SA Salaried Medical Officers Association to claw back unpaid overtime, with the union expected to make a decision on that action “over the coming weeks”.

“What form that action takes, whether it be a representative action, or a series of individual claims, is still being investigated,” he said.

Stephens said it was too early to put a dollar figure on how much a successful claim in SA would be worth other than to say it would be “significant”.

The doctors’ union says there are currently 2513 junior doctors including interns in the state.

Any claim in SA would stretch back six years and could take in many more medicos who were junior at the time and have since moved up the ranks.

“Based on the high number of junior doctors employed in South Australia over the last six years and what I’m told is a consistent pattern of unpaid hours that doctors are working each week, I’d have to say that, if applied to all juniors over the period, it would be a significant claim if it was successful at court,” Stephens said.

This is not about getting more money for junior doctors, it’s about junior doctors just getting paid for the work they actually perform in accordance with their workplace agreements.

“Talking to junior doctors you quickly learn of their shared experiences. Time after time, junior doctors speak of having to work hours after their finishing time to complete clinical paperwork and discharge summaries, then being told they’re required to come in early to prepare for morning ward rounds.

“Add to that time attending handover or performing relief work, and you quickly see the unpaid hours pile up.

“On top of that, you hear stories from junior doctors working in some surgical departments where they can sometimes be working up to 30 extra unpaid hours per week.”

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Some shifts I’m so busy that I don’t drink because I know I don’t have time to stop and pee

In Victoria, several “wage theft” class actions have been launched on behalf of junior doctors against various health services seeking recovery of unpaid overtime.

The first of those class actions – resulting in a four-week trial against Peninsula Health – was recently heard in the Federal Court in Melbourne, with a decision expected in the next few months.

A similar class action against NSW Health is also underway with mediation set for next month.

Stephens said the outcomes of the interstate claims would have implications for SA, and if successful would help any claim against SA Health.

I would expect the legal principles considered by courts interstate would be persuasive for an SA court or tribunal,” he said.

“And of those principles, I think the most important would be the court giving careful consideration of the circumstances in which a doctor performs unrostered overtime and whether the nature of that work gives rise to an entitlement to fair payment under their workplace agreement.”

Stephens said trainee medical officers across the country “feel insulted that the hours that they work are not recognised”.

“Junior doctors don’t usually stay back of their own volition,” he said.

“The duties they perform in overtime are both necessary and required and therefore should be paid in accordance with the terms agreed between them and their employers in workplace agreements.

“These systemic problems are not new. Health authorities around the country, SA included, have known for some time that junior doctors are working excessive hours and that many of those hours go unpaid.”

SA Salaried Medical Officers Association chief industrial officer Bernadette Mulholland said “fatigue and burnout of doctors appears to be part of SA Health’s ongoing business model”.

SA Salaried Medical Officers Association chief industrial officer Bernadette Mulholland flanked by frustrated Royal Adelaide Hospital ED doctors in July launching a T-shirt protest about overcrowding. Photo: Tony Lewis/InDaily

“Our doctors who are in training are working long and even excessive hours, and SA Health cannot even do these doctors the courtesy of paying them accurately and on time each fortnight and then wonder why our public sector doctors are disillusioned with their employer and look interstate for improvement in these basic working conditions,” she told InDaily.

“Our trainee doctors only recently developed a ‘well workplace charter’ identifying for the employer basic minimum standards for a well workplace for these doctors in our hospitals.

“These are basic standards any employer should be able to meet, like a lunch break, annual leave and their pay each fortnight. SA Health so far has refused to endorse the charter.

“I can’t imagine the health bureaucrats not getting paid accurately and on time and taking their holidays when they are planned but they don’t seem to have the same level of care for our doctors.”

Health Minister Chris Picton said: “Hardworking hospital staff have been put under immense pressure over the past few years, forced to deal with a lack of investment and workforce planning under the former Liberal Government.”

“More support is needed to help address worker fatigue and give them the resources they need to do their job properly,” he said.

“That’s why we have committed to hiring 101 extra doctors, including an additional 50 junior doctors to ease pressure across our hospitals.

“This staffing boost is part of an overall record health investment to ensure those who care for South Australians are also looked after.”

Opposition health spokesperson Ashton Hurn said “our health system has experienced the most difficult winter on record and our frontline workers have not only risen to the challenge but have gone above and beyond to keep South Australians safe”.

“At the very least, our doctors should be paid what they are owed and the Malinauskas Labor Government must step up and ensure this happens,” she said.

A spokesperson for SA Health said: “We are committed to supporting our staff and ensuring high quality health care services continue to be delivered across South Australia.”

“Medical officers, along with all of our staff members, are highly-valued members of our workforce and their wellbeing is our utmost priority,” the spokesperson said in a statement.

“The Department for Health and Wellbeing and representatives from Local Health Networks are currently working collaboratively with unions through a newly established Well Workplaces working group.

“A subsidiary group of the SA Health Unions Consultative Committee, Well Workplaces, is meeting regularly and being utilised to better identify ways of managing workplace wellbeing – including fatigue – for health care workers across the state’s health system.

“We thank all of our medical officers for always working to deliver the best possible care for our patients and the community.”

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