POTENTIAL CLASS ACTION
SASMOA EXPLORING CLASS ACTION FOR UNPAID TMO PENALTIES
- YOUR RESPONSES SOUGHT
DHW renege on penalty for TMOs working more than 8 consecutive days
DHW claim recall, overtime and telephone calls should not be recognised as ‘work’ when determining consecutive days payments
TMOs missing out on penalty payments if the relevant box on the timesheet isn’t completed
SASMOA considering class action
THE ISSUE EXPLAINED
Members will be aware that fatigue is a significant concern across the SA health system – to the extent that it required a parliamentary inquiry reporting 27 recommendations for action in February this year.
Given this, SASMOA was astounded by a recent decision by the Department of Health and Wellbeing (DHW) to refuse to recognise approved recall, overtime and telephone calls as ‘work’ when determining whether a TMO has worked more than 8 consecutive days.
Not only does this decision fly in the face of common sense, but it also reneges on a formal agreement made with SASMOA before the SA Employment Tribunal in November 2018. See (here) for the correspondence.
DHW now claim that the Agreement is clear and only applies to rostered hours of work. See Clause 56.1 (here).
If their interpretation applies, a TMO could work 26 days without a day free of work and do so without penalty payments - so long as rostered shifts do not exceed 8 consecutive days.
We all know that TMOs already work longer hours than suggested by their rostered shifts.
We also know that TMOs also generally work a substantial number of hours outside of those rostered shifts via oncall and recall.
Everyone knows fatigue does not differentiate between rostered and non-rostered hours.
WE’RE INVESTIGATING RUNNING A CASE
SASMOA wants to gauge the level of member support for a “class action” type claim in the South Australian Employment Tribunal seeking the payment of the agreed 50% penalty for all hours worked (including recall, overtime and telephone calls) after 8 consecutive days since November 2018.
It is our strong view DHW cannot renege on their previous commitment to pay the penalty on all hours worked (including recall, overtime and telephone calls) after 8 consecutive days.
SASMOA has identified that TMOs may have been missing out on the penalty payment over the last two years, if they forgot to tick a box on the front of their timesheet or because the hours worked were not rostered.
To participate in the class action, you would need to have:
1. worked > 8 consecutive days (including oncall / recall / telephone calls and overtime) at some time since November 2018;
2. been an Intern, RMO, Registrar or SMP at the relevant time; and
3. not been paid a 50% penalty for the relevant hours.
The penalty payment is very easily identifiable on your timesheet as 'Penalty ContDays > 8 50%', but may not have been paid if the box on the bottom of the timesheet hasn't been ticked.
To provide your feedback and to express interest in participating in any “class action”, please complete the short survey we have created here by COB Monday 7 December.
All details will remain confidential. Consultants can also participate if they have met the above criteria at any time since November 2018.
If DHW have their way, the only guaranteed time a TMO will have completely free from duty (including remote call) is one weekend a month.
This makes a mockery of the employers’ commitment to fatigue management.
Some of the findings from our recent Fatigue Scan Survey indicate that of the members who responded:
60% report they sometimes/usually/always experience dangerous levels of fatigue while driving to or from work
33% say they have had to sleep in a car, under their desk or some other unsuitable location either during or after work, and
42% say they have been required to work what they consider an unsafe shift configuration.
These results are alarming.
We want to hear from you …
The SASMOA Class Action Survey can now be taken here: SASMOA Class Action Survey
If you have any questions please contact SASMOA at 8267 5151 or via email to
Please note: SASMOA cannot make any guarantees on the success of this claim, and it may take some months to collate the information relevant to all the applicants. Applicants who are involved will be kept updated and informed as matters progress.
SASMOA, Chief Industrial Officer