HCA 1924 2002 Leung et al v Hospital Authority

HCA 1924/2002 Leung et al v. Hospital Authority Hong Kong Public Doctors’ Association

3 heads of claim n n n Statutory & Public Holidays Rest Days Overtime Statutory & Public Holidays n Rest Days n Ordinary weekdays n Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

3 lead Plaintiffs 5 types of Contract n n n 1995 Intern 1998 2000 / 2001 2003 “Bridge-over” Contract & Civil Service Contract not represented in this proceeding Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Relevant document n n Employment Ordinance Employment Contract Letter of Appointment n Human Resources Policies Manual (HRPM) n Rules and Regulations of the Authority ? n Human Resources Administrative Manual ? n Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Relevant document n Historical document Hong Kong Salaries Commission Report 1971 n Report No. 2 (1979) of the Standing Commission on Civil Service Salaries and Conditions of Service (SCCS) n Report No. 10 (1982) of SCCS n Report of the Finance Committee of the Legislative Council – 8 th March 1989 n Report No. 25 (1989) of SCCS n Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Statutory Holiday Employment Ordinance n n s. 39(1) Subject to subsections (1 A), (2) and (3), an employee shall be granted a statutory holiday by his employer on each of the following days … s. 40 A(1) Subject to subsection (2), no payment of holiday payable under section 40, or other sum, shall be made in lieu of the grant of a holiday Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Public Holiday Employment Contract – HRPM Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Statutory & Public Holiday Disputes n n n Whether EO is incorporated into the Contracts Whether EO confers private right of action for damages for breach (i. e. whether employee is entitled to sue for breach of EO) D denies both, but considers these issues academic because F 1. 1. 1(b) and B 2. 6. 1 provide distinct Contractual entitlement to leave of absence with pay on “public holidays” which include Sundays and Statutory Holidays (§ 155) Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Statutory & Public Holiday Disputes n What constitute “Work” n Relief n n D does not dispute the entitlement, but denies that P were deprived of the entitlement unless and to the extent that they also prove that they actually worked on such days (§§ 227, 229) D asks the Court to determine total amount of hours spent by each P in active duties and divided by 8 to arrive at the number of days to be compensated (§ 230) Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Statutory & Public Holiday Disputes n n P maintain that the duty of the Hospital Authority is simply to grant the requisite holidays. Rostering doctors to be on call on such holidays is inconsistent with such primary duty (§ 6. 2) Each breach should be compensated by a full day Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Rest Day Employment Ordinance n n s. 17(1) Subject to the provisions of this Part, every employee. . . shall be granted not less than 1 rest day in every period of 7 days s. 2 “Rest day” shall mean “a continuous period of not less than 24 hours during which an employee is entitled under Part IV to abstain from working for the employer Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Rest Day Employment Ordinance n n s. 19(1) Subject to subsection (2), no employer shall require (要求) an employee to work on any of his rest days s. 20(2) An employee may, at the request (請求 ) of his employer, work for his employer on a rest day Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Rest Day Disputes n n Application of EO, as in Statutory Holiday Whether doctors while “on call” / performing ward round have so worked voluntarily pursuant to HA’s request within the meaning of s. 20(2) EO No dispute that Sunday is the appointed Rest Day Holiday round is not pursuant to any requirement imposed by the HA but is rather the result of custom, practice or convention and is done in the interests of continuous patients’ care (§ 185) Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Rest Day Disputes n n n They were not contractually required to do so. No doctor has been disciplined or discriminated against for not doing Sunday ward rounds (§ 187) If the ward rounds had indeed taken place in Sunday afternoons instead of Sunday mornings, then no rest day claim could arise (§ 189) Even in cases when the HA had rostered the Plaintiffs to work on rest days (principally Sundays) from time to time, they were free to choose whether to do so or not (§ 191) Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Rest Day Disputes n n By participating in the Honorarium Scheme the doctors have indicated implicitly their agreement to work on rest days (§ 222) All “Duty list”, “Call list” and “Holiday round roster” are “work schedules” issued by the chief of services of the clinical units concerned (§ 3. 1). By virtue of Clause B 2. 7. 1 of the HRPM, Doctors are obliged to comply with the work schedule. Such compliance is reinforced by the threat of sanction under Clause 2. 7. 3 of the HRPM (§ 5. 5). Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Rest Day Disputes n n There is no evidence that any prior request was made to any of the Lead Plaintiff (§ 5. 6 a) The Hospital Authority first advanced its plea that the honorarium was in compensation of rest days deprived on 17 th September, 2004. This was 2½ years after the Lead Plaintiffs first advanced their rest days claim on 12 th March, 2002 and 1 year after the Hospital Authority first filed its Defence in the High Court action on 30 th September, 2003 (§ 5. 7 b) Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Rest Day Disputes n The honorarium was approved by Leg. Co at its meeting held on 8 th March, 1989. This was well prior to the incorporation of the Hospital Authority on 1 st December, 1990. At that juncture, the Government was the provider of public medical care and the Employment Ordinance had no application to the Government with the result that Government doctors had no rest day entitlement (§ 5. 7 c) n What constitutes “Work”; and n Relief, as disputed in Statutory & Public Holiday Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Overtime Employment Contract n n Hours of Work Time-off in lieu of Overtime Work Honorarium What constitutes “Work” Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Employment Contract n n n Appointment letter Human Resources Policies Manual (HRPM) Rules and Regulations ? Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Hours of Work 1995 Letter of Appointment (1992 – 1997) n n “Permanent” contract Your normal hours of work will be 44 hours per week but you may be required to work overtime depending on the exigencies of your work. Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Hours of Work 1998 Letter of Appointment (1997 – 1998) n n 1 st version of “fixed term” contract Your normal hours of work will be 44 hours per week but you may be required to work overtime depending on the exigencies of your work. Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Hours of Work Intern Letter of Appointment n The working hours for the Employee may vary depending upon the operational needs of the Branch/Division/Unit to which he is posted Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Hours of Work 2000/2001 Letter of Appointment (1999 – 2001) n n 2 nd version of “fixed term” contract Your normal hours of work will be 44 hours per week … Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Hours of Work 2003 Letter of Appointment (2002 – now) n n 3 rd version of “fixed term” contract Your Head of Department will advise you in advance of your work schedule … Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Hours of Work HRPM B 2 Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Hours of Work HRAM B 2 Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Hours of Work HRAM B 2(Appendix 1) n Medical & Health Officer / House Officer are not in the list Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Hours of Work Disputes n n n Whether the Conditioned hours of doctors are 44 hours per week By the nature of professional medical services in the public hospitals doctors cannot work according to fixed working hours. Even where the contracts mention “normal” working hours, the numbers stated cannot be taken literally to be the limit of the hours of work (§ 30) Doctors’ pay scales have taken into account the inherent duties of work (§ 34) Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Hours of Work Disputes n n 2003 and Intern Letter of Appointment contained no mention of any “conditioned hours” (§ 36) HRAM B 2 only specified as a matter of fact that the conditioned hours “for most ranks and grades were 44 hours gross per week”. Appendix 1(B 2) set out the ranks and grades with conditioned hours of work other than 44 hours. Neither of them deals with contracts which contained no conditioned hours (§ 37) Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Hours of Work Disputes n n Conditioned Hours are to be distinguished from other terms in the Contracts, e. g. “Normal Working Hours”, “Standard Working Week”, and “Working Hours”. Conditioned Hours are specifically defined as “…the official hours of duty applicable to individual employees. It forms the basis for the calculation of basic salary, cash allowance and other benefits as appropriate. ” (Opening Submission) An employee’s working hours may vary, but his/her “conditioned hours” do not Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Hours of Work Disputes n n “Long working hours” was never a factor that the Government / Hospital Authority took into account in assessing the appropriate level of pay of the doctors under its employment (§§ 9. 2 – 9. 4) As summarised in the following table (Report No. 25 of SCCS), pay scale of public doctors was same as other professional grades Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Hours of Work Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Time-off in lieu n Overtime is defined as work undertaken over and above an employee’s conditioned hours of work … Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Time-off in lieu n Overtime work should normally be recompensed by time-off in lieu Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Time-off in lieu n Doctors are not eligible for Overtime Allowance (OTA) Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Time-off in lieu n No time-off in lieu will be recompensed if the overtime does not qualified for OTA Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Time-off in lieu HK Salaries Commission Report 1971 n … there is no reason why this should not apply to officers of any seniority Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Time-off in lieu Disputes n n Whether Doctors are entitled to Time-off in lieu of Overtime work According to E 4. 4. 3, “ … No time-off in lieu will be recompensed if the overtime does not qualified for OTA. ” The eligibility for overtime allowance and for time -off in lieu is co-extensive (§ 71) Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Time-off in lieu Disputes n n E 4. 4 is applicable only to OTA. E 4. 4. 3 is a provision for “residual hours” (i. e. Overtime less than 1 hour at the start or at the finish of a shift, or less than half hour thereafter) D relied for the first time on E 4. 4. 3 on 26 th Sep 2005. Had such understanding (i. e. OTA and Time-off were coextensive) been the tradition, one would expect the contention to be advanced when the Defence first served (§ 10. 3 c) Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Honorarium Report of Leg. Co FC 8 th March 89 n … to recognize the exceptional circumstances of certain medical officers who are required consistently to undertake unusually long hours of work … Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Honorarium HAHO HRC 40/96 Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Honorarium post-1999 Letter of Appointment n At the absolute discretion of hospital management, a fixed rate honorarium may be payable to you in recognition of the additional work done. Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Honorarium Letter from PDA Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Honorarium Disputes n n n Whether the Honorarium is an additional, ex-gratia payment, or the only compensation for overtime work HAHO HRC 40/96 formed part of the HA’s “rules and regulations”, and therefore part of the Contracts (§ 23) Starting in April 1989, in recognition of the services provided doctors working in public hospital under the oncall system and to compensate them for long hours of work performed in order to maintain adequate medical care for patients, the Government began to grant the fixed-rate honorarium (§ 38(3)) Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Honorarium Disputes n Both the employer and the employees have proceeded on the basis of an underlying assumption that their contracts of employment did not provide any entitlement to separate recompense for overtime work in addition to the fixed rate honorarium, the lead Plaintiffs are estopped from contending for a construction that required overtime allowance or time-off in lieu to be granted to them for overtime worked (§§ 87, 89) Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Honorarium Disputes n In 1989, the words were carefully chosen in the context of the unprecedented industrial action taken by the Government doctors. The honorarium was not for long hours of work per se. The honorarium was merely an “interim” measure to cater for “consistently” and “unusually” long hours. There is no indication that such payment was in discharge of any other entitlement of the Government doctors (§ 11. 1). Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

Honorarium Disputes n There is no fixed understanding on the part of the Hospital Authority as to the purpose behind the payment of the Honorarium, there could not be any “common understanding” between the Hospital Authority and the lead Plaintiffs (§ 12. 1) Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

What constitutes “Work” Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

What constitutes “Work” n While a doctor is “On call”, he may be n n n actually working in the ward, carrying out active duties, attending to patients, either in his work place, or in another place. within the wards but standing by. on resident call in a dormitory or a call room - at the end of a pager or mobile telephone, ready and available to come at short notice. on off-site call, again contactable by pager or mobile, ready and available to come at short notice. giving specific advice over the phone. Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

What constitutes “Work” Disputes n n Although on the HA’s primary case E 4. 4. 4 has no direct application to doctors because the whole regime of overtime recompense in E 4 of HRPM does not apply to them, for the purpose of other staff the HRPM clearly draws a distinction between different situations. HA submits that this distinction should also govern the characterization of work for the purpose of lead Plaintiffs’ claims. (§ 121) Accordingly, “on-call” at home, in another fixed location (i. e. call room), or through a pager is not regarded as work. Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

What constitutes “Work” Disputes n In the context of conditioned hours, a doctor must be providing work when he is rostered for duty within those conditioned hours. He is on duty and at the disposal of his employer. There is no justification to analyse each of the conditioned hours to see how the doctor utilised his time within those conditioned hours. It cannot be argued that because he was standing by he was not working and therefore failed to discharge his obligation within the conditioned hours. The Hospital Authority drew no factual distinction. It did not maintain any record to reflect such distinction. A doctor’s work does not fit into such pattern. Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission

What constitutes “Work” Disputes n n The same applies to time beyond the conditioned hours. By rostering a doctor to be on call beyond the conditioned hours, the doctor is at the disposal of his employer and is performing work for the benefit of his employer (§ 10. 4) In simpler terms, “on-call” is an integral concept. It is regarded as “work” within conditioned hours, the same should apply beyond conditioned hours Red for Dispute, Yellow for Defendant’s Submission, Green for Plaintiff’s Submission