Given the number of hours worked and the number of junior doctors involved, the claim is set to be in the tens of millions of dollars.
The Australian Medical Association NSW’s 2020 Hospital Health Check survey of doctors-in-training found more than half of respondents worked at least 11 hours of overtime a fortnight. For more than one in 10, the figure was in excess of 25 hours.
More than half of the doctors surveyed are worried about making a clinical error due to fatigue caused by their hours of work and 44 per cent felt their personal safety was at risk for the same reason.
A forensic accountant tasked with reconciling rostering and pay slips for multiple junior doctors also found evidence of system errors that triggered under-payments.
The class action’s lead applicant is a female doctor who worked at Westmead Hospital between 2015 and 2018. She was made to work up to 15 hours on top of her rostered hours per week, to start early and stay back to care for patients and fulfil her training requirements.
“She is showing enormous courage under the circumstances and has been brought to this point out of frustration and necessity,” Mr Stephens said.
Like so many junior doctors, the lead applicant expressed genuine fear of committing a medical error due to fatigue caused by excessive hours, he said.
“Patient safety is the most important motivator for [her] and other doctors in taking this action,” he said.
Mr Stephens and his team had spoken to more than 50 junior doctors who reported similar exploitative conditions and they expected thousands more to join the no-win no-fee class action.
“Many doctors may be reluctant to put their hand up because they are very concerned about the impact on their careers,” he said.
A Sydney-based junior doctor, who spoke on condition of anonymity, said the class action was about more than a few hours of pay. It was fundamentally about safeguarding the wellbeing of junior doctors.
“Suicide is the ultimate price,” said the trainee physician, recalling the death of a fellow junior doctor.
“An hour or two of overtime pay is not going to help but better conditions are,” he said.
He described working when he was sick because he knew no one would be rostered on for him.
“This class action puts numbers on the balance sheet that will influence the changes that need to be made on a broader scale,” he said.
“If everybody is able to start claiming all their overtime, it will be cheaper for the system to put more people on and then everybody is happier.”
A recent report outlining the progress of NSW Health’s JMO Wellbeing and Support Plan included the implementation of two new safe working hours standards: 14-hour maximum consecutive rostered hours and a 10-hour minimum break between shifts, as well as improvements in systems and processes to reduce barriers to junior doctors claiming unrostered overtime.
The physician trainee welcomed changes implemented by NSW Health that made it easier for junior doctors to claim unrostered overtime, but there were still powerful cultural and administrative barriers.
“If you claim overtime you could be seen as inefficient or fussing when other people aren’t. That’s intimidating, particularly with [superiors] who have influence over recruitment and your career advancement,” he said.
A NSW Health spokesperson said the ministry was considering the class action and took seriously the wellbeing and remuneration of its junior doctors.
“As the proceedings are before the court it is not appropriate to make any comment,” the spokesperson said.
A directions hearing is scheduled for February 11.
Mr Stephens said, “While we are confident about the basis of this court action, NSW Health should work with us to bring resolution for these doctors.”
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Kate Aubusson is Health Editor of The Sydney Morning Herald.