In Polan v Goulburn Valley Health (No 2)  FCA 30, the Federal Court dealt with the calculation of wages payable to an employee it had previously found was entitled to “overtime” rates and not “recall to duty” payments for work carried out from home while she was “on call”.
As was established in the original case, Polan v Goulburn Valley Health  FCA 440, the Applicant was a nurse who worked for the Goulburn Valley Health Hospital between 1997 and 2014. She was responsible for, inter alia, managing the roster of staff at the hospital, which involved her making and receiving calls regarding changes to roster arrangements.
The terms of the enterprise agreement governing the Applicant’s employment provided for various penalty rates, including an “on call” allowance, a “recall to duty” allowance and overtime. The Applicant was paid an “on call” allowance for those occasions where she was expected to be available to make and receive calls outside her ordinary work hours and while she was at home.
The Applicant contended that she ought to be a paid “recall to duty” in addition to the on call allowance, for each occasion where she actually made and received calls while she was at home.
The court observed that the purpose of the “on call” allowance was to recompense employees for the inconvenience of making themselves available to perform work at short notice. It was not designed to remunerate the employee for the actual performance of their duties.
Contrary to the submission made by the Applicant’s employer, the fact that the Applicant carried out her duties from home did not necessarily preclude her from being paid a “recall to duty” allowance. The Court emphasised that in modern employment situations there can be no assumption that work is inevitably or necessarily performed in the workplace. However, the Court held that the notion of an employee being “recalled” to duty involved an active decision or instruction by an employer to require an employee to work, and did not cover the Applicant’s circumstances where there was an “ongoing arrangement” under which work was triggered by calls made to the Applicant from any number of doctors and others engaged at the hospital.
The better view, according to the court, was that the Applicant was entitled to be paid overtime payments, which are designed to compensate employees for reasonable additional hours.
In determining the quantum of the overtime that was owed the Applicant, the court held that the absence of any accurate record of the Applicant’s hours of work did not prevent the Court from doing its best, on the evidence before it, to try and quantify her loss.
The court used a sample of phone bills to estimate the average time spent making and receiving phone calls and then added 50% to that figure to account for the performance of the duties. The court then used this figure to estimate the quantum of overtime owing to her throughout her entire period of employment.