Victorian Junior Doctors Class Action

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  1. What are these claims about?
  2. What is a class action or group proceeding?
  3. What class actions have commenced?
  4. Is there a trial date in the actions that have been commenced?
  5. Do I qualify as a group member?
  6. If a case has been commenced against my employer and I am possibly a group member, what is expected of me?
  7. Are individual circumstances considered in a class action?
  8. What if I am not a group member in the actions that have already been commenced?
  9. What if the case is unsuccessful? Am I subject to legal costs?
  10. What if I am successful? Will have to pay legal costs?
  11. When will Gordon Legal contact me to formulate my individual claim?
What are these claims about?

On behalf of doctors in training we are commencing class actions seeking compensation for un-rostered unpaid overtime performed by doctors in training in the course of their employment over the last 6 years.

The basis of the claims which will be made in the class actions are as follows:    

  1. That health services failed to pay un-rostered overtime in compliance with the relevant enterprise agreement.
  2. That in doing so, heath services contravened the Fair Work Act 2009 (Cth); and
  3. If these contraventions are proved, compensation should be paid to doctors in training for their unpaid overtime.

The Australian Salaried Medical Officers Federation (ASMOF) Victoria has agreed to be a party to the proceedings and is supporting the claims, including by seeking orders from the Court that the health services pay penalties for their contraventions, in addition to paying compensation for un-rostered unpaid overtime.

ASMOF Victoria and the Victorian branch of the Australian Medical Association (AMA) have been advocating for health services to address their long-standing concerns about the underpayment of overtime for doctors in training and the serious risks this issue has created for both doctor and patient well-being.

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What is a class action or group proceeding?

A group proceeding, also known as a class action, is a court procedure brought by one or more individuals known as representative applicants on their own behalf and on behalf of other people who have similar claims against the same party (the respondent). The individuals in the wider group are known as group members.

Group proceedings are brought to resolve common issues of fact or law for the wider group. It is not necessary that group members have identical claims. In fact, it is to be expected that there will differences between the loss and damage suffered by each individual group member.

In Victoria, there are 38 health services that are each responsible for hospitals which provide medical services within the public hospital system. Each health service is an employer and signatory to enterprise agreements that set out the employment terms and conditions for doctors in training.

Given this structure of employment, it is necessary to commence proceedings against individual health services. As such, there will likely be several class actions against several health services.

In each class action, the representative applicants will be ASMOF Victoria, together with a named individual doctor. The respondent in each class action will be an individual health service.

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What class actions have commenced?

We have commenced a class action against Peninsula Health and expect to receive instructions to commence actions against other health services over the coming weeks.

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Is there a trial date in the actions that have been commenced?

Not yet. The Court will likely direct the parties to complete a number of steps before listing the matter for trial. Based on our prior experience, we would expect that it is likely that a mediation will occur some time in late 2021 or early 2022. Mediation can take place earlier in the process if both parties agree. If the mediation process fails to resolve the issues in dispute we would expect that a trial will occur in mid 2022, subject to the availability of the Court.

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Do I qualify as a group member?

You may be a potential group member if

  1. you were or are a doctor in training employed by a health service against which a class action has been commenced; and
  2. you worked unpaid un-rostered overtime from January 2015.

Even if you are not sure if you are a potential group member, we strongly recommend that you register your interest if you were or are a doctor in training and believe you have worked unpaid un-rostered overtime during the relevant period.

Once you register with us, we will ask you to complete a more detailed confidential questionnaire. We will then assess your individual circumstances, provide you with further information about your possible claim and keep you updated on the progress of the litigation.

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If a case has been commenced against my employer and I am possibly a group member, what is expected of me?

If you are a group member in a class action that has been commenced, there is nothing that you need to do to remain a group member.

It is unlikely that the assessment of group member’s individual claims will take place before either settlement has been agreed or the trial of the proceedings, which is not likely until mid 2022.  

Historically the majority of civil proceedings, including class actions, settle before a full trial of the issues.

You may decide to engage us to act for you so that we can assist you in preparing for the assessment of your individual claim and provide you with legal advice about your personal circumstances. While we consider that there may be some advantages to you engaging us, you are not obliged to engage us to act on your behalf.

Importantly, as a group member you do not have any liability for the respondent’s legal costs in the event that the claim is unsuccessful, which we think is unlikely.

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Are individual circumstances considered in a class action?

Yes. Ultimately the goal of these class actions will be to establish that the health services must compensate doctors in training who have suffered loss as a result of working un-rostered unpaid overtime. Each doctor’s loss will need to be established and assessed on an individual basis.

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What if I am not a group member in the actions that have already been commenced?

You will not be entitled to participate in any outcome specific to that class action.

However, class actions against other health services may soon commence and it is important that you still register your interest, if you wish to be kept informed. By doing so, we will be able to provide you with information about your potential  claim and do what is necessary to protect your interests.

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What if the case is unsuccessful? Am I subject to legal costs?

Generally speaking, an unsuccessful party in a legal case is liable to pay some of the successful party’s legal costs. However, this does not apply to group members in class actions. This means that you will not have to pay legal costs even in the unlikely event that the class action(s) are unsuccessful.  

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What if I am successful? Will have to pay legal costs?

Yes. If a successful outcome is achieved, the Court may make orders requiring group members to contribute to the legal costs incurred on behalf of the representative applicants who brought the class action.

Once you have registered with us and we better understand your individual circumstances, we can provide you with more information about

  1. whether you are a potential group member;
  2. whether you may have a viable claim, now or in the future;
  3. the basis upon which we will act for you, if you wish us to do so; and
  4. if there is a successful outcome, the circumstances in which the Court may make an order requiring you to contribute to legal costs.

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When will Gordon Legal contact me to formulate my individual claim?

If you choose to register you will be asked to complete a detailed confidential questionnaire about your circumstances. The information you provide will be reviewed by one of our lawyers,  

If you need assistance completing the questionnaire or would prefer to discuss any aspect of the matter, a member of our team will be happy to assist you.

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