Doctors lose court battle for overtime compensation

Public doctors are not entitled to any compensation, either in pay or time off in lieu, for their overtime, the Court of Final Appeal ruled yesterday in a landmark case that ended a labour dispute spanning almost a decade. But the top court ruled that doctors could get a day off or a full-day's pay for off-site duties, even though they might not need to work or answer calls. Doctors yesterday warned of poor quality of medical services and a brain drain if the Hospital Authority failed to improve working conditions, while the authority said it would launch a review of the off-site duties system. In the judgment, Mr Justice Roberto Ribeiro rejected the claims from 100 public doctors for overtime payments and ruled that they had no contractual entitlement outside their 44-hour week. The judge wrote: 'The letters of appointment provide no discernible basis for the doctors' overtime claim. They make it clear that the doctors are expected to work overtime and to perform on-call duties, sometimes working shifts to provide 24-hour coverage, nowhere suggesting that there is to be any extra recompense for such work.' Yet the court found it was a matter of 'practical justice' for the authority to grant a full day of compensation for their on-call shifts during rest days and holidays. It held that a doctor was deprived of a rest day when he was on non-resident on-call duty because he had to be close enough to the hospital to be able to get there within 30 minutes, could not drink alcohol and had to be ready to respond to calls. Doctors are entitled to one full day of compensation when on call regardless of whether they have provided 'actual' services in treating patients or given advice on the phone. A lead plaintiff and former president of the Public Doctors' Association, Dr Leung Ka-lau, said the ruling was disappointing and confusing. Leung, who is also lawmaker for the medical sector, questioned why the court was concerned only about non-resident on-call duties. 'The court seems to imply that on-site on-call duties have been compensated - this is wrong. There is some confusion in the [latest] judgment that needs to be clarified,' Leung said. Under a 2006 ruling, Leung would be entitled to 324 days in lieu, or about HK$2 million, for working rest days and holidays from March 1996 to June 2005. In March 2006 a lower court ruled that public doctors could only claim compensation for actual work on rest days, and public and statutory holidays on an hourly basis, but they could not get compensation for working overtime. After that ruling, the authority offered a HK$629 million settlement to 4,600 doctors. About HK$500 million has been paid out so far. More than 200 of the doctors refused to settle and 100 decided to fight the case. The authority has not yet calculated the total payout based on yesterday's ruling. Some estimate that compensation for off-site duties will amount to hundreds of millions dollars. Authority chairman Anthony Wu Ting-yuk said last night the off-site call system would be put under review. 'We will carefully work out a reform to fulfil the court ruling on the basis that patients' care will not be affected,' Wu said. Several medical professionals familiar with the situation said the ruling on off-site call duties on rest days and public holidays would have an impact on staff costs, manpower and patient care. The reform would affect senior doctors who had to do off-site call duties on their weekly rest days (52 days a year) and 17 public holidays, which amounted to 69 days a year. The authority will continue its reform plans to cap doctors' working hours at 65 a week, although yesterday's ruling made clear that there was no ceiling. By the end of this year it is expected that less than five per cent of public doctors will have to work more than 65 hours a week. A survey conducted by two public doctors' groups and Leung found that 40 per cent of 306 doctors worked more than 65 hours a week. A 7 1/2 -year legal battle April 2002: Dr Leung Ka-lau, president of the Public Doctors' Association, files a Labour Tribunal claim on behalf of 148 doctors for days off they are owed over six years. March 2006: Court of First Instance rules public doctors can claim compensation for working on rest days and public and statutory holidays, but not for working overtime. October 2006: Hospital Authority offers HK$629 million settlement to 4,600 doctors for holidays worked between 2000 and 2005. About 100 refuse to settle and file an appeal seeking compensation for hours spent on call at work from 1996 to 2005. January 2008: Court of Appeal rules doctors can claim compensation for hours worked while on call on rest days and holidays, but not overtime, for which their contracts award them a fixed honorarium of HK$3,500 a month. Both sides appeal to the Court of Final Appeal.