Fakhouri v The Secretary for the NSW Ministry of Health (No.2) [2024] NSWSC 1171

Supreme Court New South Wales

Medium Neutral Citation: Fakhouri v The Secretary for the NSW Ministry of Health (No.2) [2024] NSWSC 1171 Hearing dates: 12 August 2024 Date of orders: 12 August 2024 Decision date: 20 September 2024 Jurisdiction: Common Law Before: Garling J Decision: Approval granted. Catchwords: CIVIL PROCEDURE – Representative proceedings – Settlement or discontinuance – Court approval – Representative proceedings claiming that junior medical officers had been underpaid – Whether the settlement, is fair and reasonable – Settlement approved. Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Cases Cited: Fakhouri v Ministry of Health [2023] NSWSC 808 Texts Cited: Not Applicable Category: Principal judgment Parties: Amireh Fakhouri (P) The Secretary for the NSW Ministry of Health (D1) State of New South Wales (D2) Representation: Counsel: J Sheahan KC / C Winnett (P) R Lancaster SC / D Fuller (D1, D2)

Solicitors: Maurice Blackburn (P) Minter Ellison (D1, D2) File Number(s): 2020/356588 Publication restriction: Not Applicable

JUDGMENT 1. On 16 December 2020, Dr Amireh Fakhouri commenced representative proceedings pursuant to Part 10 of the Civil Procedure Act 2005 ("the Act") on behalf of a large number of junior medical doctors ("JMOs"). 2. The JMOs included in the group were those were employed to work in the public hospital system in the State of New South Wales in the relevant period. 3. By the time these proceedings came to be resolved, the relevant period, which determined membership of the group, was between 16 December 2014 and 21 March 2024. 4. The proceedings claimed that the State of New South Wales, and the Secretary of the NSW Ministry for Health (to whom I will refer as "the defendants") failed to comply with their obligations under the Public Hospital Medical Officers (State) Award which was applicable during the relevant period. In addition to their entitlements under this award, the JMOs (a description which it will be convenient to use to refer to the entire group), were entitled to be paid salaries set out in the Health Professional and Medical Salaries (State) Award, which were in place during the relevant periods. 5. The proceedings claimed that in a number of respects, the JMOs had not been paid their entitlements for working overtime which had not been formally rostered, had not been paid for meal breaks which were not taken in accordance with various awards, and that the rostered overtime which they had worked, whilst being paid, had resulted in the junior doctors being underpaid because of an incorrect calculation of the rates of pay to which they were entitled. As well, it as alleged that the JMOs were entitled to superannuation payments arising from the various underpayments. 6. The defendants filed a comprehensive Defence to these allegations. 7. In short, the defendants contested the correct interpretation of each of the Industrial Awards, arguing that on their interpretation, the plaintiffs had been properly remunerated in accordance with the Awards. 8. The defendants put the plaintiff and each group member to proof, strictly, as to the hours which they contended they had been required to work by way of un‑rostered overtime, and to each of the other heads of claim. 9. Additionally, the defendants relied upon a policy directive issued by the Ministry of Health, entitled "PH2017_042: Employment Arrangements for Medical Officers in the NSW Public Health Service". The policy directive described an approval process required of all employed medical officers, including JMOs, for obtaining payment of un‑rostered overtime. The policy stated that un‑rostered overtime required prior approval before being undertaken, and the claims were required to be submitted no later than four weeks after the overtime was worked. The policy was relied upon by the defendant for a number of purposes including that, if the plaintiff or a group member did not act in accordance with it, the defendants had acted on the basis that no such claims were going to be made and, accordingly, the plaintiff and group members were estopped from now bringing any such claim. 10. The hearing of the plaintiff's case and identified common questions for other group members in the proceedings, was fixed to commence on 6 May 2024. 11. At the same as these proceedings were being case managed, the industrial association responsible for JMOs, namely the Australian Salaried Medical Officers Federation (NSW Branch), commenced proceedings seeking civil penalties and unpaid salaries on behalf of a number of identified and named JMOs. A number of individual proceedings were commenced, each containing a different number of JMOs. Ultimately, these multiple proceedings were consolidated by the Court ("the ASMOF proceedings") which resulted in the proceedings being brought on behalf of 62 named JMOs. 12. Although the proceedings were not entirely identical, the Court determined that there was a sufficient commonality of questions and issues for the proceedings to be heard at the same time. 13. In the course of case management, the Court specified the common questions arising in Dr Fakhouri's proceedings and also, pursuant to the provisions of r 28.2 of the Uniform Civil Procedure Rules 2005 (the "UCPR"), determined separate questions arising in the ASMOF proceedings which were to be heard together with the hearing involving the common questions in the representative proceedings. 14. The proceedings were fixed for a period of many weeks.