Leung Ka Lau and Others v. The Hospital Authority
Read the full judgment text of CACV 57/2007 on BabelCite. This Court of Appeal judgment was delivered on 21 January 2008.
1. This appeal arises out of a long-standing dispute between public hospital doctors and their employer, the Hospital Authority. The action started life as two sets of proceedings in the Labour Tribunal. They were consolidated and altogether 165 claims were transferred to the High Court. By a consent order, directions were given for the trial involving three ‘lead’ plaintiffs namely, Dr Leung Ka Lau, Dr Choi Chi Yee and Dr So Yung Pak. The remaining plaintiffs and the Hospital Authority expr
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CACV 57/2007 in the high court of the hong kong special administrative region court of appeal civil appeal no. 57 of 2007 (on appeal from HCA NO. 1924 of 2002) ______________________ BETWEEN
______________________ Before : Hon Le Pichon, Yeung and Yuen JJJA in Court Dates of Hearing : 16-17 October 2007 Date of Handing Down Judgment : 21 January 2008 ______________________ J U D G M E N T ______________________ Hon Le Pichon JA: Introduction 1.This appeal arises out of a long-standing dispute between public hospital doctors and their employer, the Hospital Authority. The action started life as two sets of proceedings in the Labour Tribunal. They were consolidated and altogether 165 claims were transferred to the High Court. By a consent order, directions were given for the trial involving three ‘lead’ plaintiffs namely, Dr Leung Ka Lau, Dr Choi Chi Yee and Dr So Yung Pak. The remaining plaintiffs and the Hospital Authority expressly agreed to be bound by “any determinations of law or principle in the lead cases”. It is to be noted that the plaintiffs form but a small percentage of the total number of doctors actually employed by the Hospital Authority which numbered some 4600 at the date of the hearing. 2.In broad terms, the plaintiffs’ claims comprise (1) a claim under the Employment Ordinance, Cap. 57 (“the Ordinance”) in respect of rest days and holidays in respect of which they had been deprived since 15 March 1996, this date being six years before the commencement of the proceedings; and (2) a contractual claim for overtime worked for the same period. The lead plaintiffs sought declaratory relief and, further or alternatively, compensation consequent upon the declaratory relief sought or damages to be assessed. 3.By a judgment dated 1 March 2006, Stone J ordered the Hospital Authority to pay the lead plaintiffs damages to be assessed for the claims for lost rest days and statutory and public holidays for the full six-year period preceding the commencement of the action but dismissed their overtime claim. The judge also dismissed the lead plaintiffs’ claim for declaratory judgment and their claim for time-off in lieu. He further directed that the assessment of quantum should proceed on the basis of a reasonable evidential assessment of the hours actually worked by the lead plaintiffs on their past rest days and statutory and public holidays at the then prevailing monthly salary, credit to be given for any half day off or other administrative relief already given to the particular plaintiff. 4.As at the date of the appeal hearing, this court was informed that the Hospital Authority had reached a settlement with 65 of the 165 plaintiffs in respect of past claims and, further, that agreement had also been reached with approximately 90% of the doctors employed by the Hospital Authority not involved in these proceedings. At the conclusion of the appeal hearing judgment was reserved which we now give. Background 5.Prior to 1 December 1991, doctors employed in the public sector in Hong Kong were civil servants whose employment was governed by the Civil Service Regulations (“CSRs”) and to which employment the Ordinance had no application, the Government not being subject to the Ordinance. 6.Subsequent to the Report on the Delivery of Medical Services in Hospitals commissioned by the Government in 1985 to review the management of the public hospital system and the public consultation which followed, a new statutory body namely, the Hospital Authority, was established on 1 December 1990 pursuant to the Hospital Authority Ordinance, Cap. 113 (“the Ordinance”) for the purpose of managing and controlling public hospitals and for the provision therein of hospital services. The Hospital Authority is almost entirely funded by the Government with funds appropriated for that purpose by the Legislative Council. 7.Doctors serving in the public sector at the time of the establishment of the Hospital Authority could elect to transfer to the Hospital Authority if they so wished on new terms of service. The evidence before the judge was that previous non-salary benefits were translated into a cash amount which, thereafter, became part of the monthly remuneration. 8.The Hospital Authority employs, very roughly, half of the doctors in active practice in Hong Kong. The judge observed (at § 26 of the judgment) that since its establishment:
9.Dr Leung began his medical career as a Government doctor serving on civil service terms. Upon his election for transfer to the Hospital Authority after its establishment, he was offered new contractual terms effective 1 September 1992. Dr Choi and Dr So became interns on 1 July 1997 and 1 July 1999 respectively and after completion of their respective internship were offered employment as doctors by the Hospital Authority. 10.Dr Leung and Dr Choi are still employed by the Hospital Authority but Dr So resigned on 18 May 2004 and is now in private practice. 11.Broadly speaking, the plaintiffs’ claims can be categorised as (1) the rest day claim, (2) the holiday claim, and (3) the overtime claim. But as the judge explained in his judgment, there is a degree of overlap within these categories. As appreciation of the ‘on call’ system is required for a proper understanding this overlap, it would be convenient to digress at this point with a brief description of that system.
12.As Dr Ko, Director (Professional Services and Human Resources) of the Hospital Authority observed, the on call system “is found all over the world for the purpose of facilitating 24-hour patient care”. It was devised to ensure that there are doctors available after normal working hours to meet patients’ needs: thus public hospitals are manned 24 hours a day and seven days a week but as a result, exceptional demands are put on doctors who face an extremely heavy workload and who have to work unsociable hours. Nevertheless, as the judge remarked, it is an inherent part of the practice of medicine in a public hospital environment worldwide. 13.In Hong Kong the system operates by way of monthly rosters, known as ‘call lists’. Being on call is generally in addition to normal hours of work. The judge found that on any given day, there is more than one doctor in a department, usually of differing seniority, who would be ‘on call’. The most junior doctor in the unit usually is the ‘first tier’ of call (‘first call’), whilst more senior doctors are put on higher tiers of call (‘second call’, ‘third call’ etc). A doctor rostered on ‘first call’ is expected to stay within the hospital compound. That is sometimes referred to as ‘resident call’. A doctor rostered on ‘second call’ may or may not be expected to stay within the hospital compound, depending on the hospital department, whilst a doctor rostered on ‘third call’ must remain contactable via pager or mobile phone and be available at the hospital within 30 minutes of being called. 14.There is clearly a distinction between being on ‘resident call’ and being on ‘non-resident call’: in this judgment the description on ‘resident call’ is used exclusively to refer to a doctor who is expected to stay within the hospital compound whether on ‘first call’ or ‘second call’. And, like the judge, the description ‘on call’ is used to refer to the period after normal working hours until the beginning of work the next day. 15.Several scenarios could arise when a doctor is on non-resident call: he may not be contacted at all or he may have to give advice over the telephone without actually having to return to the hospital or he may have to return to the hospital. It can readily be appreciated that the meaning of ‘work’ in the overall context of the ‘on call’ system became a central issue in the proceedings. 16.In the context of the claims relating to rest days and holidays there is the further related issue of how ‘work’ performed on those days should be quantified for the purpose of reckoning compensation. 17.This would be a convenient point at which to outline the Honorarium Scheme, the principal administrative measure adopted to address the special demands put on public doctors having to work consistently unusually long hours to ensure adequate patient care. Another administrative measure was what was known as “the compensatory leave scheme” which will also be referred to below.
18.A comprehensive account of the origin and development of the Honorarium Scheme is to be found in §§ 76-101 of the judgment to which reference should be made. For present purposes, it is sufficient to highlight the following matters. 19.The genesis of the honorarium can be seen from an exchange of letters in 1988 between the chairman of the Government Doctors’ Association and the Chief Secretary. In September 1988, with the reorganisation of the Medical & Health Department, the impending establishment of the future Hospital Authority, the escalating problem of staff shortages and loss of experienced staff, Dr Dickson Chang, the then chairman of the Government Doctors’ Association made a submission to the then Chief Secretary for better working conditions. In stating the Association’s case for, inter alia, an independent pay scale in the Civil Service for Government doctors, Dr Chang made the following points:
Under the heading “Overtime pay/Professional allowance”, it was stated that:
The Government responded favourably on 5 December 1988 to the proposal for the payment of remuneration in the form of an honorarium. Although the first option was based on the NHS model, the Government preferred the second option. It sought approval from LegCo for its proposal in that regard in March 1989. 20.The proposal was explained to Legco in a Government paper in the following terms :
The paper went on to explain that whilst overtime work is normally remunerated at a specific rate of each hour of overtime worked, the Government did not recommend such an approach because of the difficulty in establishing equitable rates of allowances for active and non active duties and, more importantly, the considerable administrative problems that would arise from having to log actual hours worked: monitoring would be difficult and administrative procedures devised might be open to abuse. It is also clear from the paper that the fixed ratio proposed represented about 16% and 11% of the average salary of medical officers and senior medical officers respectively who would be eligible for the higher rate of $3,500 and the lower rate represented about 8%, 5.5% and 3.5% of the average salary of medical officers, senior medical officers and consultants respectively. 21.An important matter to note is that no distinction was made in that paper between being on call overnight on weekdays and being on call over weekends and holidays. The concepts of ‘rest days’ and ‘statutory holidays’ to be found in the Ordinance did not appear to have been considered in the Legco paper, no doubt because the Ordinance did not apply to Government employees. 22.Government doctors were advised of the honoraria arrangements (which came to be called the “Honorarium Scheme”) by Standing Circular No. 7/89, dated 24 April 1989. The Honorarium Scheme came into effect on 1 April 1989. As explained in that circular, it was
23.The judge noted that it was common ground that when the Hospital Authority took over the management of public hospitals on 1 December 1991, it inherited and has continued to operate the Honorarium Scheme. For example, Circular 40/96, dated 4 September 1996, set out the criteria for eligibility:
24.Circular No.13/95 issued on 23 October 1995 notified doctors that “compensatory leave” would be granted to an employee who has worked on a statutory holiday. One full day of leave would be granted for work on a statutory holiday that exceeded half a day and one half day would be granted for work that was less than half a day. Although directed at statutory holidays, it would appear from the circular that some hospitals allowed compensatory leave to doctors after a stretch of on call duties and would not appear to have been directed at statutory holidays only. 25.On 24 November 2000, the Hospital Authority issued a memo which altered the compensatory leave scheme for statutory holidays then in place by granting a whole day in every case and removing the grant of half days. Overview of the plaintiffs’ claims 26.Expressed in monetary terms (up to 30 June 2005), the claims of the lead plaintiffs can be seen from the table (and the accompanying notes) in § 50 of the judgment reproduced below:
27.In simple terms, so far as the rest day claim is concerned, the plaintiffs put their case on the basis that they have a statutory entitlement under the Ordinance to one rest day per week and if required to “work” on a rest day, they are entitled to be compensated by being given time-off in lieu. As for the holiday claim, it was said that if required to “work” on a holiday, the employer had a statutory obligation to provide an alternative holiday within the time prescribed by the Ordinance and failure to do so should also result in time-off in lieu. In either case, if it were to prove impracticable for the Hospital Authority to grant time-off in lieu because of unacceptable disruption to the health care system, the plaintiffs seek cash compensation. The ‘Rest Day Basic Claim’ and the ‘Holiday Basic Claim’ in the table set out above reflect, in monetary terms, what each of the lead plaintiffs claim they have lost by having had to work on rest days and holidays. 28.The overtime claim is more involved. The plaintiffs’ case has been formulated on the basis that their normal working week consists of 44 hours only, those being their “conditioned hours” and hours “worked” beyond those hours qualify as overtime which should be recompensed by time-off in lieu. As is apparent from the table, there are three separate claims for overtime. The ‘General Overtime Claim’ is in respect of overtime worked beyond normal hours on a regular working day that is neither a rest day nor a holiday. The ‘Rest Day Overtime Claim’ and the ‘Holiday Overtime Claim’ are best illustrated by an example. If rostered to be ‘on call’ for more than 8 hours on a rest day or holiday, the excess hours would fall under the overtime claim for the rest day or holiday as the case may be. So if a plaintiff had been rostered to be on 24-hour call on a rest day, in addition to the claim in respect of the lost day, there would also be a claim for 16 hours of overtime for that rest day. The plaintiffs’ case throughout is that simply being rostered to be ‘on call’ is equivalent to being ‘at work’. 29.The judge disagreed: he held that a doctor who was not actually required to return to the hospital even if he was required to give advice over the telephone without returning to the hospital was not ‘at work’ or ‘working’, whether for the purposes of calculating ‘overtime’ or for determining whether there had been any deprivation of rest days or holidays. Again, the primary relief sought is time-off in lieu with cash compensation as a last resort. For employees who have left the Hospital Authority, cash compensation was said to be the only practicable remedy. This appeal 30.I propose to deal first with the overtime claim. The overtime claim 31.The issue that arises is whether the judge was correct in holding that the plaintiffs have no contractual entitlement to be recompensed for overtime worked, whether the compensation takes the form of time-off in lieu or overtime allowance. 32.The various letters of appointment of the lead plaintiffs uniformly refer to the appointment being upon the terms and conditions of the relevant appointment letter, the Hospital Authority’s Human Resources Policies Manual (“HRPM”) and the Hospital Authority’s rules and regulations, subject nevertheless to the relevant appointment letter being the prevailing document and the Hospital Authority’s right to revise the HRPM and the rules and regulations from time to time. Thus, in determining the plaintiffs’ contractual entitlement (if any) for overtime work, it will be necessary to consider not only the letters of appointment but also the relevant provisions of the HRPM and the rules and regulations.
33.There are a number of letters of appointment so far as the lead plaintiffs are concerned in relation to their respective appointments as senior medical officers and medical officers. In the case of Dr Leung, for the purposes of these proceedings, the only relevant appointment letter is dated 26 June 1995. For Dr Choi and Dr So, there are a number of appointment letters as each contract was for a term of three years only. Three different formulations of the relevant provisions may be discerned from the various appointment letters depending on the date they were written:
34.To these may be added a fourth formulation applicable to internship appointments made in 1997 and 1999:
35.The judge held (at § 109) that there was nothing in those letters which placed the objective reader on notice that a claim for overtime is maintainable. Although Mr Chang SC who appeared for the plaintiffs criticised the judge for considering those letters in isolation, I do not consider the criticism justified. As is clear from § 110, the judge plainly appreciated that the employment offered was subject to the HRPM and the rules and regulations which he went on to consider. The judge was stating no more than that on the face of the letters, there was nothing to suggest that overtime would be compensated for and remarked that the reference in the second and third formulations to “a fixed rate honorarium …in recognition of the additional work done” pointed to the contrary. 36.As to the judge’s finding that the conditioned hours of the plaintiffs are 44 hours per week, there can be doubt as to its correctness for contracts containing the first or second formulations set out in § 33 above. For contracts containing the third formulation set out in § 33 which made no mention of the number of working hours per week, the finding is nonetheless sustainable given the reference to overtime which necessarily has to be premised on the existence of conditioned hours. The interns’ contracts which reflect the fourth formulation set out in § 34 for my part, are significantly different: no hours are mentioned nor is there any reference to overtime.
37.As Chapter E4 is of central importance, it would be convenient to set out the relevant provisions using the version that was in place for the period from November 1994 to 21 November 2002:
38.The plaintiffs base their overtime claim on the provisions of Chapter E4, specifically, the first sentence in section E4.2.3. The plaintiffs acknowledge (and this is not controversial) that they do not qualify for overtime allowance provided for in that chapter because eligibility is restricted to employees in ranks whose scale maximum is on or below Point 25 of HGPS. The scale minimum for the most junior doctor is above that. 39.In summary, the plaintiffs’ submissions are as follows. Since, as the judge found, their “conditioned hours” are 44 hours per week, work undertaken over and above conditioned hours of work must rank as “overtime”. Applying the general principles stated in section E4.2, specifically section E4.2.3, the plaintiffs should be recompensed by time-off in lieu. Therefore, the plaintiffs argue that they are entitled to time-off in lieu for overtime worked and if it does not suit the Hospital Authority to grant them time-off because of operational difficulties, then the plaintiffs must be compensated in some other way for having been deprived of what they say is their contractual entitlement. I pause here to observe that section E4.2.2 would appear to preclude any person in the position of Head of Department to ‘overtime claim’. Whether any of the plaintiffs held that position at any time is not known but their submissions took no account of this provision. 40.As to the form of compensation, it was said that it could take the form of damages i.e. cash compensation or, alternatively, by analogy with the provisions in the HRPM, it should be treated in the same way as accruement of any untaken annual leave due to operational needs by allowing the employee to put it in a sinking fund or alternatively allowing it to be encashed based on the wages prevailing at the time of encashment. 41.Digressing for the moment, I should deal briefly with the suggested alternative by analogy with accruement of annual leave which, despite its superficial appeal, is not a real alternative. The accruement and encashment of annual leave provisions in the HRPM operate within fairly stringent parameters. Suffice it to say that the maximum leave accumulation is capped at 32 days for an employee with less than 10 years’ service or 46 days for those with more, not to mention that “exceptional approval” by the HCE or CE is required for carrying over unused annual leave beyond one year even if due to operational needs. Looking simply at the general overtime claim of the lead plaintiffs, what is involved in Dr Leung’s case, for example, is 22,200 hours. That translates into 2775 days or roughly 7½ years. In my view, the proposed alternative remedy is self-evidently impracticable, leaving no real alternative to what, fundamentally, is a claim for monetary compensation.
42.The judge found (and it is not challenged) that what is known as the Honorarium Scheme (considered in §§ 18 - 23 above) formed part of the rules and regulations to which the plaintiffs’ employment was subject. Mr Chang SC sought to challenge the judge’s finding (at § 137) that the lead plaintiffs were entitled to payment of the honorarium on the basis that the second and third formulations set out in § 33 above referred to the payment being discretionary. While those formulations may have been infelicitously worded, I agree with the judge that it is abundantly clear from the Circulars issued by the Hospital Authority that a doctor working in an eligible unit (and the judge found the lead plaintiffs to have been such which finding has not been challenged) is entitled to be paid the honorarium at the applicable scale. The Hospital Authority has no discretion in that regard. See, for example, Circular 40/96 at § 7 (set out in § 23 above). That provision is repeated in the Hospital Authority’s Human Resources Administration Manual (“HRAM”) compiled to be read in conjunction with the HRPM and designed to implement the HRPM. See HRAM, Chapter E2 §§ 48, 49 and 52. In so far as it is suggested that regard should not be had to the HRAM, not having been specifically mentioned by the judge as part of the relevant contractual materials, I disagree. The HRAM clearly forms part of the Hospital Authority’s rules and regulations.
43.As the judge observed, the correct approach is that set out by Lord Hoffmann NPJ in Jumbo King Ltd v Faithful Properties Ltd [1999] 4 HKC 707 at 726D which I gratefully adopt. Looking at the broader canvas of all the relevant contractual materials, the salient parts of which have been set out and considered at some length above together with the relevant legal and factual background, I have no difficulty in coming to the conclusion that the judge was correct in dismissing the overtime claim. 44.The judge had rejected the plaintiffs’ construction of the HRPM on the basis that the final sentence in section E4.4.3 means that doctors who do not qualify for overtime allowance also do not qualify for time-off in lieu. In my view, what needs to be considered first is the effect of section E4.2.3. Although Chapter E4 of the HRPM is headed “Overtime Allowance” and, prima facie, would not appear to apply to an employee who is not eligible to overtime allowance, there is nothing in the first sentence of section E4.2.3 to restrict its application to a specific category of employees. Rather, it is written in such a way as to be of general application regardless of rank. I am inclined to the view that it must be so read. I propose, first of all, to consider how section E4.2.3 operates as regards an eligible employee i.e. an employee who qualifies for overtime allowance which, by definition, cannot include the plaintiffs before considering how it operates vis-a vis the plaintiffs. 45.Section E4.2.3 is not free-standing in the sense that it has to be read in conjunction with, inter alia, the express provisions for time-off in lieu contained in Chapter E4 of the HRAM:
46.Section E4.2.3 of the HRPM has within it two unspecified time references: the first is the reference to a ‘reasonable period’ within which time-off in lieu should be given where operationally practicable and the second is to a ‘later date’ mutually convenient to the employee and the management for taking time-off in lieu. However, § 5 of Chapter E4 of the HRAM prescribes a timeframe for the taking of time-off in lieu, namely, within six months of the date of the overtime worked. The question which arises is whether, as a matter of construction, that timeframe is meant to apply to the second time reference to be found in section E4.2.3 of the HRPM (i.e. the ‘later date’) or whether that date is at large and not constrained by the prescribed timeframe of six months. I would observe, at this stage, that the drafting of some of the provisions of the HRPM and the HRAM could be said to be less than satisfactory. Nevertheless, notwithstanding the imperfections, one has to endeavour to discern a construction that would give best effect to every part of the provisions and consistent with common sense. 47.Prima facie, it strikes one as highly unlikely that the ‘later date’ was intended to be at large. For one thing, for a statutory body like the Hospital Authority with so many employees, it would result in administrative chaos, particularly as overtime work for some of its employees is almost bound to be a daily occurrence. It is also relevant to note the administrative provisions for the keeping of overtime records in Chapter E4.5 of the HRAM, including the requirement that overtime be reflected in the employee’s timesheet which has to be initialled by the Department Head on a fortnightly basis before routing to the Finance Department for payroll processing. It is reasonable to assume and, it would appear to be logical, that the ‘option’ conferred on the eligible employee by section E4.2.3 must be exercised before the overtime allowance would, in the normal course, be paid to him. Once payment has been effected, the option would lapse. Therefore it stands to reason that what would be ‘mutually convenient’ (if at all) must be ascertained at the time the ‘option’ is exercised. Further, it is also pertinent to have in mind the purpose of time-off in lieu considered in § 56 below. 48.Having regard to all these matters, I am of the view that any time-off in lieu for an eligible employee must be taken (if at all) within the six-month timeframe. In other words, the ‘later date’ is not large but is to fall within the six-month period. On that analysis, it would follow that the first time reference (i.e. the ‘reasonable period’) mentioned in section E4.2.3 must be shorter than the six-month period and before the overtime allowance would normally be paid. So, if notwithstanding good faith on the part of the Hospital Authority, there were not to be a mutually convenient date within the timeframe of six months, there would not appear to be any alternative but for the eligible employee to settle for the overtime allowance. Whilst it might be said that to some extent that would impinge on the seemingly unrestricted scope of the option conferred on the eligible employee, it is a result that would avoid administrative chaos and, at the same time, give meaning and effect to every part of the provisions. 49.Insofar as an eligible employee is to be given compensation in the form of cash (i.e. overtime allowance), there are elaborate provisions regulating the bases on which and the rates at which overtime is recompensed. For example, section E4.4.4 provides for payment at a reduced rate for standing by at the eligible employee’s place of work and expressly excludes compensation for standing by at home. As illustrated by the examples in Appendix 1E4(1) to Chapter E4 of the HRAM, the effect of the first two sentences of section E4.4.3 Chapter E4 of the HRAM is that number of hours that qualify for overtime allowance would invariably be fewer than the number of hours that qualify for time-off in lieu. The upshot of all this is that not all the hours that qualify for time-off in lieu would qualify for cash compensation. In other words, if time-off in lieu could not be granted for operational reasons, the so-called ‘right’ does not mature into a right to be paid for the total number of hours that qualify for time-off in lieu, not to mention that overtime rates are not necessarily greater than the equivalent hourly rate calculated by reference to conditioned hours and basic monthly salary. 50.The significance of the foregoing analysis is that in the case of an eligible employee, the so-called ‘right’ to time-off in lieu flowing from the first sentence of section E4.2.3 is not open-ended but would, after the reasonable period, mature into an entitlement or ‘right’ to be paid an overtime allowance. Insofar as an eligible employee may opt to take time-off in lieu after the reasonable period, he may do so before the overtime allowance is paid if there is a mutually convenient date within the time frame of six months. I can conceive of no cause of action arising from his so-called ‘right’ to time-off in lieu if there is no mutually convenient date during that period absent bad faith on the part of the Hospital Authority. 51.The difficulty with section E4.2.3 as regards non-eligible employees is that it is wholly silent as what is to happen if it were operationally impracticable to grant such employees time-off in lieu within a reasonable period. Mr Chang SC’s position is that if it were to be impracticable for the employee to be granted time-off within the ‘reasonable period’, it remains a right to time-off at any time in the future period until time-off is actually granted or compensated for in cash. But such a construction would have the effect of conferring on such an employee rights that are greater or more extensive than those accorded to an eligible employee. As explained below, that appears to be diametrically opposed to the position under the CSRs on which Mr Chang SC relies and the underlying rationale of overtime allowances under the CSRs. 52.In support of his contention that doctors have always had that right even under the CSRs, Mr Chang referred to CSR 664 on which section E4.2.3 was modelled. That provision reads:
(The version of CSR 664 that is to be found in the hearing bundles set out above comes from the 2001 edition. For present purposes, it will be assumed that the version in place at the time of the establishment of the Hospital Authority was substantially the same.) I do not consider that the CSRs can assist the plaintiffs. In my view, they have the opposite effect. In their 1971 Report, the Hong Kong Salaries Commission considered that the principle that overtime worked should be offset by time-off, when possible, to be “a basic principle to regulate overtime arrangements”. See § 319 of the 1971 Report. The Commission saw nothing wrong with the principle but noted that:
Nothing in CSR 664 suggests that if time-off in lieu cannot be given within the stipulated period, the overtime worked would continue to remain a right to time-off even after the expiration of the stipulated period. 53.In this connection, the rationale for overtime allowances is also relevant. Historically, under the CSRs, the principle on which eligibility for overtime allowance was regulated was either related to the character of the appointment, mainly affecting apprentices, trainees and the like, or limited by a particular salary level. It was considered that:
See the Hong Kong Salaries Commission Report 1971, §§ 321 and 325. Some 10 years later, § 3.6 of the 1982 Standing Commission’s Report on Civil Service Salaries recorded that:
That accords with the position at the time the Honorarium Scheme was introduced. The account given in §§ 19 - 20 above underscores the fact the public doctors (being of the middle and higher ranks) were not entitled to any cash compensation for overtime under the CSRs. 54.The conundrum of what is to happen when time-off cannot be granted to an employee who does not qualify for overtime allowance is resolved when section E4.2.3 is read together with the Honorarium Scheme which was already in place. The Honorarium Scheme as well as the HRPM formed part of the plaintiffs’ contractual entitlement. As noted above, whilst under CSR 664 a Government doctor was in theory entitled to time-off in lieu for overtime, in practice, it was recognized as long ago as 1971 that happened rarely because of operational difficulties. It would be idle to suggest that the overtime burden on public doctors had eased by the time the doctors made their case for the payment of honoraria in 1988/1989 referred to in § 19 above. Dr Chang’s letter shows the contrary. It is clear that the Honorarium Scheme came into being in recognition of the long hours required of public doctors and “to recompense the officers involved who are not entitled to earn overtime allowances under the normal rules”. (emphasis added) It differed from the regimen of the overtime allowance inasmuch as the honoraria were fixed rates for various categories of medical officers. At the time the Scheme was introduced, it represented a meaningful percentage of the basic salary of a doctor entitled to such payment. See § 20 above. The fact is that the amounts have not kept pace with inflation and salary adjustments over the years and have since become ‘derisory’. But that is another issue and cannot alter the fundamentals upon which the Honorarium Scheme was introduced and implemented and which Scheme forms an integral part of the plaintiffs’ contracts. 55.In my view, the fixed rate honoraria did not have the effect of removing or replacing the basic principle regulating overtime work encapsulated in the first sentence of CSR 664, now section E4.2.3. However, the two are neither incompatible nor mutually exclusive: they operate in tandem. The Honorarium Scheme effectively altered the normal rules relating to overtime allowance and introduced an entirely different regime applicable to staff entitled to be paid a fixed rate honoraria, separate from that for staff who qualify for overtime allowance. 56.It is also important not to lose sight of the purpose time-off in lieu is meant to serve: to provide respite for an employee who had lost his break and an opportunity to recuperate from the stress and strain that work normally entails. Where time-off cannot be offered within a reasonable time of the overtime worked, the point of granting time-off in lieu would be lost. This explains the ‘reasonable period’ requirement. So, if in any particular case time-off in lieu within a reasonable period could not be granted, that would be the end of the matter. In my view, it is not, and does not ripen into, a right as would ‘entitle’ the employee to insist on time-off in lieu in the future without time constraints or to compensation in lieu because the element of compensation had already been taken care of by the fixed rate honoraria payment. The fact that a parallel provision is missing from the 1991 version of the HRMP does not detract from the analysis given the rationale for the Honorarium Scheme and the wording of the first sentence in E4.2.3 which effectively replicates the first sentence of CSR 664. 57.I now turn to consider section E4.4.3 of the HRPM. For ease of reference, I set it out again:
58.A great deal of time was spent on the meaning of the final sentence of that section. As the judge explained, that sentence first appeared in the November 1991 version of the HRPM under the heading “Eligibility” as a freestanding section. In the 1994 amendments to the HRPM, this section was moved and added to what had been E4.4.2. The amalgamated section was redesignated E4.4.3. In the court below, leading counsel then appearing for the plaintiffs contended that the change constituted a “fundamental change” in approach. As I understand it, the contention then was that the amendments effectively removed any obstacle to the doctors claiming a right to time-off in lieu. In that connection, the judge found that no one regarded the 1994 amendments as effecting any change in the regime as it was applicable to doctors. 59.In this court, Mr Chang SC (who did not appear below) adopted a different approach from his predecessor. As noted above, his position was that the doctors have always had a right to time-off in lieu even under the CSRs and it remains the position today, the nature of that right being that set out in § 51 above. But as explained above, CSR 664 had no such effect. In short, the last sentence of section E4.4.3 is of little assistance to the plaintiffs if (as is my view) they fail to get home on section E4.2.3. 60.In conclusion I would dismiss the plaintiffs’ overtime claim but I would reiterate that, in my view, the first sentence of section E4.2.3 does impose a positive obligation on the Hospital Authority to grant time-off in lieu within a ‘reasonable period’ if ‘operationally practicable’ in respect of overtime performed by those who do not qualify for overtime allowance. The rest day claim 61.As employer, the Hospital Authority is required by section 17(1) of the Ordinance to grant every employee not less than 1 rest day in every period of 7 days. Section 19(1) prohibits him from requiring an employee to work on any of his rest days but, under section 19(2), he may require the employee to work if it is necessary to do so because of a breakdown of machinery or plant or other unforeseen emergency. In that event, the employee has to be given a rest day in substitution within 30 days thereafter. “Rest day” is defined in section 2 as follows:
It was common ground that every Sunday was to be the relevant rest day for the plaintiffs. 62.By mutual agreement, an employee may work on his rest day. See section 20. In such a case, unlike statutory holidays provided for under section 39, there is no prohibition of payment in lieu of the grant of a rest day. 63.The judge held that the Hospital Authority was in breach of its statutory obligations as regards such of the plaintiffs who had to be on resident call on a rest day or, if on non-resident call, had to return to work. The appeal under this head relates to the judge’s ruling (1) that doctors on non-resident call on rest days were not ‘at work’ and had not been deprived of their rest day unless they had to return to the hospital to work, and (2) that a doctor who was required to attend the hospital to perform his duties during a rest day should only be compensated by reference to the number of hours spent in the hospital. 64.As the judge explained, doctors who were rostered on non-resident call would be subject to the following constraints: (a) he must remain within a distance of 30 minutes from the hospital; (b) he must not drink alcohol; and (c) he must remain mentally ready. Apart from those constraints, he was essentially free to carry on with his social and family life. Doctors on non-resident call therefore fall into the following categories: (1) those rostered to be on call but is not actually called or contacted at all; (2) those contacted by telephone to render advice who may then have to decide whether or not to return to the hospital; (3) those who return to the hospital to attend to duties after being contacted. 65.Mr Chang SC argued that underlying the definition of “rest day” is the concept of a continuous period of 24 hours where the employee has a choice to refuse to work for his employer. It was submitted that the simple fact of being rostered on non-resident call, thereby becoming subject to the constraints mentioned above, constitutes sufficient disturbance of the rest day particularly as the doctor so rostered has no choice in the matter. It was said that in those circumstances he could not be said to have been ‘entitled’ to abstain from working on his rest day. 66.The judge considered the concept of ‘work’ and concluded that simply by being contactable, a person could not be said to be ‘at work’ or ‘working’ for the purposes of the Ordinance. Support for this approach can be found in the decision of the European Court of Justice in Sindicato de Medicos de Assistencia Publica (SIMAP) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana [2001] ICR 1116 where that court had to consider the concept of ‘working time’ for the purposes of Article 2(I) of Directive 93/104/EC. It was held at § 52 of that judgment that time spent on call by doctors in primary health care teams must be regarded in its entirety as working time if they are required to be present at the health centre but if they must merely be contactable at all times when on call, only time linked to the actual provision of primary care services must be regarded as working time. 67.In my view, on the question as to what constitutes ‘work’, subject to the qualification below, I agree with the general approach of the judge and his conclusion at § 172 of the judgment that:
However, whether the giving of brief telephonic advice without returning to the hospital constitutes ‘work’ is, in my view, a fact-sensitive matter. I would not necessarily preclude it from constituting work. It would depend on the particular circumstances of each case. Borrowing the phraseology of the European Court in SIMAP, if the advice rendered amounts to ‘actual provision of primary care services’, it would constitute ‘work’. 68.The further question that arises is whether in the context of the Ordinance, the concepts of ‘work’ and ‘rest day’ are mutually exclusive as was the case with Directive 93/104/EC considered in the SIMAP case where, rest period was defined to mean “any period which is not working time”. Put differently, had the Hospital Authority discharged its statutory obligation to provide a ‘rest day’ simply because, as matters turned out, the doctor did not have to ‘work’? To be entitled to abstain from working for a continuous period of 24 hours is undeniably a crucial feature of the concept of a rest day. In view of the statutory definition of ‘rest day’, I am driven to the conclusion that an employer would not have discharged his statutory obligation where the employee did not have a choice in the matter and it is only with hindsight that it could be said that he did not have to work. It follows that the statutory obligation under section 17 of the Ordinance is breached in respect of those rostered on non-resident call on their rest day and not only in respect of those who, in the event, had ‘to work’ on a rest day. 69.In my view, in the case of doctors on non-resident call who were not actually contacted, there would have been a breach of section 17 although not of section 19. Subject to the exception contained in section 19(2), there would have been a breach of both sections if the doctor had to work on the rest day whether by rendering telephone advice that objectively could be said to constitute work or by actually returning to the hospital and where section 19(2) applied, a substituted rest day had not been given within 30 days thereafter. The statutory/public holiday claim 70.As appears from the schedule to the General Holidays Ordinance, Cap. 149, in addition to Sundays, there are currently 17 days that are general holidays. 12 of those days correspond to statutory holidays under section 39(1) of the Ordinance. There is thus a claim relating to statutory holidays under section 39 of the Ordinance as well as a claim relating to 5 holidays, being general holidays under the General Holidays Ordinance that are not statutory holidays or Sundays (hereinafter called “public holidays”). The distinction is made to highlight the fact that section 40A of the Ordinance which prohibits payment of holiday pay or other sum in lieu of the grant of a holiday applies to statutory holidays but not to public holidays. Nor, as noted above, does it apply to rest days. 71.In my view, in determining whether there has been a breach of the plaintiffs’ statutory entitlement to statutory/public holidays, the principles applicable to the ‘rest day’ entitlement equally apply. Appropriate relief
72.The judge declined to exercise his discretion and refused declaratory relief because he saw no useful purpose in doing so on the basis that the plaintiffs’ legal entitlements and the Hospital Authority’s obligations were clear from his judgment. See § 244 of the judgment. The plaintiffs have failed to show that this approach was unwarranted or wrong as a matter of principle. As no basis for interfering with the exercise of the judge’s discretion has been shown, this part of the appeal must fail.
73.The judge rejected time-off in lieu as an appropriate remedy for the reasons set out in §§ 245 - 250 of his judgment. He considered, inter alia, that an order granting time-off in lieu would be a form of injunctive relief and it had not been shown that damages would not be an adequate remedy. In my view, that approach cannot be faulted. Moreover, the reasons for or purpose of granting an employee time-off in lieu which I have considered in § 56 above in the context of overtime equally applies to the concept of rest days and statutory/public holidays. In this connection, it is pertinent to note that time constraints are to be found in the Ordinance for substituted rest days and alternative and substituted statutory holidays. Having regard to the time that has elapsed, it is evident that time-off in lieu now in respect of breaches from as long ago as 1998 cannot serve its intended function and falls to be rejected as a remedy in respect of rest days and statutory/public holidays.
74.The judge made the following order:
Mr Chang’s central point was the compensation should be calculated by reference to the lost day (being a whole day) and not simply by reference to the number of hours worked. 75.The general object of an award of damages is to compensate the claimant for the losses, pecuniary and non-pecuniary, sustained as a result of the tort, in the present case, a breach of statutory duty. As stated in § 19-003 of McGregor on Damages, 17th edition, the claimant is entitled to be put into the same position, as far as money can do it, as he would have been in had the wrong not been committed. In a case such as the present where damages are claimed for breach of statutory duty which is not capable of reasonably precise calculation in money terms, the concept of restoration would not appear to be particularly helpful or appropriate. Rather, the question of compensation is to be approached on the basis of what would be fair reasonable and just for both parties and not just the plaintiffs, having regard to the breach involved. In other words, the compensation awarded should, so far as possible, be commensurate with the nature and degree of breach. 76.Pausing here, it is to be noted that contravention by an employer of either the rest day or statutory holiday obligation is an offence. The Ordinance does not differentiate between the two categories of offences in terms of penalty notwithstanding the prohibition of payment in lieu for statutory holidays. Upon conviction each is punishable by a level 5 fine. See section 63(2)(5) and (7) of the Ordinance. Currently, a level 5 fine attracts a penalty of $50,000. See Criminal Procedure Ordinance, Cap. 221, s. 113B, Sch. 8. 77.As regards doctors in category (1) referred to in § 64 above, i.e. those who have been rostered on non-resident call but were not actually contacted, in my view, that breach should attract no more than nominal damages. For those in categories (2) and (3), as explained earlier in this judgment, whether or not any work was carried out on the particular rest day or holiday is fact-sensitive. It has to be proved by the claimant concerned, but in so doing any whole day off granted under the compensatory leave scheme must be taken into account. Subject to discharging this burden, damages would be recoverable. 78.The next question which is one of considerable difficult is that of quantum. The two extremes were summarized by the judge at § 254-255. I have been much exercised by the question. The conclusion the judge reached certainly has its attractions. Whilst it would appear to be a fair way of calculating compensation for work done, it would not appear to give sufficient recognition to the nature of the statutory duty imposed on an employer by the Ordinance in relation to rest days which is to provide a continuous period of 24 hours during which the employee is entitled to abstain from working and the purpose that statutory duty is meant to achieve. So, after considerable hesitation, I have to agree with Mr Chang that damages have to be assessed by reference to the ‘lost’ day. However, the assessment is to be based on the rates of pay prevailing at the time of each breach and not the rates prevailing at the date of the assessment. Conclusion 79.For the reasons stated above, I would allow this appeal in part. The judge’s order is to be varied accordingly. Costs 80.I propose that there be a costs order nisi that the plaintiffs be awarded 50% of the costs here and below. Hon Yeung JA: 81.Long working hours of the medical professions are a time-honoured tradition. Patients in hospitals require medical care at all times of the day and night, and providing such care requires that medical professionals be available round the clock. 82.On-call duty after usual working hours and during holidays is also common among the medical professions, including interns, in every hospital all over the world. The need to balance patient service, education and personal life of the medical professions, however, has created significant problem. 83.Traditionally, the problem was tackled by voluntary arrangements between hospitals and doctors. However, in the era of resource restraints, the clinical relationship has become more complex. It now involves many more stakeholders who control funds, make policy, and effectively ration services. Lawyers are also involved in important ways. 84.The number of working hours for the medical professions has become a controversial issue. More so is the question of whether general on-call duty should be counted as working hours and therefore should be paid or should attract “time-off in lieu” and other form of compensation. 85.The judge concluded that only resident on-call duty should be so counted. The judge also concluded that the contractual arrangement between doctors and the Hospital Authority, complicated and perhaps the result of knee–jerk reaction, nevertheless precluded doctors from claiming “time-off in lieu”, payment in lieu or other form of compensation for their general on-call duty. 86.The judge took the view that the plaintiffs, under the Employment Ordinance, were entitled to their rest days and statutory holidays and in so far as doctors were required to be on call or to work on their rests days and statutory holidays, they had been deprived of their statutory entitlement and were entitled to be compensated. 87.The judge ruled that doctors on resident call, i.e. within the hospital compound, were on call at their place of work, and were working, for the entire period when they were on such call. 88.However, when doctors were on call outside the hospital (non-resident call), and were only required to be contactable, they were not at work even though they might be giving brief advice by telephone. In such case, a doctor would only be returning to work if he was in fact called back to the hospital. 89.The judge therefore limited the doctors’ claim for the interference of their rest days and statutory holidays to damages to be assessed on the basis of the hours they had actually been asked to return to work in hospitals by reference to their prevailing salaries at the time of the breach. 90.The plaintiffs argue that the judge was wrong. Putting a different construction to the contractual arrangement, they suggest that although they are not entitled to “overtime pay”, they are entitled to “time-off in lieu” as compensation for their general on-call duty. 91.They also suggest that after being “on call”, irrespective of where such “on call” duty was performed (resident call or non-resident call), they should be regarded as having worked “overtime” for the entire period when they were on call even if they had not actually been called upon to perform any duty, and should be so compensated. 92.They further suggest that having been “on call” during rest days and holidays, they should be compensated as if they had been working throughout the entire period of the “on call” time and therefore damages should be assessed by reference to the “lost’ day. 93.I find the primary submissions of Mr Chang SC, leading counsel for the plaintiffs, that after being “on call” for one day, the doctors should be entitled to “overtime” for 16 hours, irrespective of where they were on call and whether they had been called upon to perform any work, startling. 94.If Mr Chang’s submission is correct, to adopt the words of Mr Huggins SC, “after being ‘on call’ for one day, a doctor would be entitled to 2 days’ ‘time-off in lieu’ and if a doctor had been on call on two days in a week, he would be entitled to take the rest of the week off”. 95.“Overtime” constitutes an extension of the normal working hours, with the same workloads, whereas “duty on call” is carried out under conditions different from those under which work within the normal working hours is performed. 96.When a doctor is “on non-resident call” and is only required to be contactable, he may be subject to restrictions such as “not to consume alcohol” and “to remain with certain distance of the hospital”, he is nevertheless free to rest or to pursue other leisure activities as he wishes. 97.In Cheng Ho Kee & Others v Secretary for Justice (2006) 9 HKCFAR 705, the Court of Final Appeal was only required to construe the meaning of “overnight on call” under the Civil Service Regulations, nevertheless, its reasoning is applicable to the plaintiffs’ claims. 98.I wish just to repeat the following excerpt from the judgment of the Chief Justice at p 718 G-H:
99.On 3 October 2000, the European Court of Justice, in Sindicato de Medicos de Asistencia Publica (SIMAP) v Conselleria de Sanidad y Consumo de al Generalidad Valenciana [2001] ICR 1116, gave judgment concerning the status of “on call” time of doctors employed in primary health care teams. 100.It indicated that “on call” time would only be working time when a worker is required to be at his place of work. When a worker is permitted to be away from workplace when “on call” and accordingly free to pursue leisure activities, “on-call time” is not “working time”. 101.The decisions of the Court of Final Appeal and the European Court of Justice certainly accord with common sense and the noble tradition of the medical professions. 102.There is no doubt that doctors make a most valuable contribution to the society; however the plaintiff’s claim for “general over-time’ on the basis that by simply being “on call”, they should be regarded as having worked for the entire “on call” period and be entitled to “time-off in lieu” or “over-time pay” is, in my view, unfounded and cannot be sustained. 103.The primary submission of Mr Chang SC fails. 104.In any event, I agree with the submissions of Mr Huggins SC that contractually, the plaintiffs were not entitled to be recompensed for any general “over-time”. 105.I have the advantage of reading the draft judgment of Le Pichon JA and the very detailed analysis of the contractual arrangement between doctors and the Hospital Authority. I agree entirely with her analysis and her conclusion. In my view, doctors employed by the Hospital Authority did not have the right to insist on time-off in lieu for their general on-call duty without time constraints and that contractually the fixed rate honoraria payment was adequate compensation for such duty. I, too, would dismiss the plaintiffs’ general overtime claim. 106.As we have rejected the plaintiffs’ claim for “general over-time”, it is not necessary to deal with the respondent’s notice filed by the Hospital Authority. 107.The schedule to the General Holiday Ordinance Cap 149 stipulates that every Sunday and every major festival is a general holiday. Under s 2, all banks, educational establishments, public offices and Government departments should keep Sundays and festivals as holidays. 108.Section 39 of the Employment Ordinance Cap 57 also designates most of those major festivals as statutory holidays for which an employee is entitled to rest. 109.Section 17(1) of the Employment Ordinance further provides that “…every employee …shall be granted not less than 1 rest day in very period of 7 days.” Section 2 defines a “rest day” to mean “A continuous period of not less than 24 hours during which an employee is entitled…to abstain from working…” 110.If a doctor is required to be on call, be it “resident call” or “non-resident call”, he is not entitled to abstain from working and he cannot use his own time completely freely even without actually carrying out any work. 111.Therefore, the days when a doctor is required to be on call duty cannot be his rest days. In so far as the Hospital Authority requires doctors to be on call duty on holidays, the Hospital Authority is in breach of it statutory obligation. 112.Mr Huggin SC, on behalf of the Hospital Authority, does not challenge such findings. 113.The only issue is therefore the appropriate remedies for the doctors when the Hospital Authority requires them to be on call on rest days and holidays. 114.Mr Chang SC emphasizes that when a doctor is rostered on a call duty; (1) he has no choice but has to respond to a call; (2) he would be subject to restrictions such as to remain within a 30-minute distance and to be mentally ready; (3) he may be required to advise another doctor or a nurse over the telephone, etc. 115.Mr Chang SC argues that a doctor has lost his rest day or holiday by being required to be on call, he should be compensated by reference to the lost day and any assessment of damages should proceed on the basis of a day’s work and not the hours actually worked. 116.Whether doctors should treat on call duty as long-held values of their profession in exchange for the privilege of treating and admitting patients is not an issue that we have to be concerned with. 117.Perhaps the traditional system of unpaid or inadequate paid on-call duty is “antiquated” and unfair, and that the Hospital Authority should consider paying doctors for such duty properly if it has not already done so. The Hospital Authority should of course fulfil its statutory obligation by allowing doctors their rest days. 118.What we are concerned with is the assessment of reasonable damages to be awarded to doctors who were required to be on call on rest days and holidays. 119.The judge has held that a doctor on resident call on a rest day or a statutory holiday must be considered to be at work for the entire day, regardless of how many times he is called, and of how much he actually spends in the wards. 120.In my view, the judge was obviously right in drawing a distinction between resident call and non-resident call in that the former is “working time” whereas the latter is not. 121.As pointed by the judge, the call room is not a dormitory, and its facilities are limited and fairly Spartan. It is just a place within the hospital compound for doctors to gather to enable them to respond to duty calls more readily. 122.The judge’s decision certainly accords that of the European Court of Justice in Sindicato de Medicos de Asistencia Publica (SIMAP) (supra). 123.However, once it is decided that “non-resident on-call time” is not “working time”, there is no logical basis to award damage for non-resident on call duty when a doctor does not have to respond to any call. There is no work done to justify any compensation by way of damages. 124.A doctor on non resident call who has been called upon to work in the hospital for eight or more hours on a rest day or a holiday should be recompensed in the same way as one who does not have to respond to any call and is free to rest or pursue other leisure activities, as suggested by Mr Chang, simply is illogical and unreasonable. 125.The judge took the view that a fair assessment of quantum was to proceed on the basis of a reasonable evidential assessment of the hours actually worked by doctors on their rest days and holidays, with reference to their then prevailing monthly salary. The judge declined to grant the declaratory relief as it served no useful purpose. It was, in my view, a fair exercise of discretion. 126.The judge’s approach, though not particularly generous or favourable to the doctors, is logically sounded. I agree with his view that it is difficult, if not impossible, to divine another fairer method of any such quantum assessment. 127.However, I share the concern expressed by Le Pichon JA with regard to doctors on non-resident call, and contacted by telephone to render advice, before deciding whether or not to return to the hospital. 128.Whether the plaintiffs consider it worthwhile to pursue damages for the telephone advice is a matter for them to decide. Nevertheless, they should be given the chance to prove their claims for damages under this head. 129.I agree with the conclusion that Le Pichon JA has reached that doctors contacted by telephone to render advice should be entitled to claim reasonable damages for their “works”. However, I am of the view that damages have to be assessed not by reference to the “lost” day, but only by reference to the “lost” time of the day in connection with the telephone contacts. Although the legislation allows doctors a continuous period of 24 hours rest on their rest days and holiday, a breach of the duty by the Hospital Authority only entitled them to reasonable damages. Again, in my view, it is not reasonable to award the same damages to doctors who only gave brief advise over the telephone for perhaps a few minutes as those who worked eight or more hours in the hospital. 130.The assessment should be based on the rates of pay prevailing at the time of the breach. I would only vary the judge’s order to the extent indicated. 131.I also agree with costs order nisi proposed by Le Pichon JA. Hon Yuen JA: 132.This appeal is concerned with the vexed question of recompense for the inordinately long hours worked by doctors in the public service. The Hospital Authority (‘HA’), the doctors’ employer, does not dispute that the public health service in Hong Kong has been chronically undermanned. The evidence shows very long hours of work over sustained periods, demanding a high degree of physical stamina and prolonged mental alertness, which would inevitably cause fatigue and frustration in even the most dedicated professional. Fundamental premises 133.Mr Adrian Huggins SC leading counsel for the HA has paid tribute to the doctors’ dedication and professionalism over this extended period of time. He has however argued that recompense for overtime is fundamentally inconsistent with the culture, ethos and tradition of the medical profession which puts patient care first, whatever the time of day or night, and before the doctors’ own well-being. 134.With respect, it seems to me that that argument confuses the issue. The doctors are not refusing to work overtime or to be rostered on call. They are simply asking for recompense for the additional time worked – primarily by asking that their employer provide for time-off. The fact that doctors are prepared by virtue of their culture and ethos to attend to patients whenever required does not justify an employer denying them proper recompense for the work they do. To suggest otherwise, it seems to me, is to take unfair advantage of that culture and ethos. 135.As for tradition, although the ‘traditional’ image of a tired doctor struggling to stay on his feet for hours on end to cope with the relentless demands of patient care is one which naturally arouses feelings of admiration for his dedication and professionalism, in my view it is also an unappealing antiquated image which should have no place in an efficient modern community. Progressive communities such as the European Union provide doctors with maximum working hours and minimum rest times. In fact the HA’s own Mission Statement also asserts that its mission is “to provide rewarding, fair and challenging employment to all its staff, in an environment conducive to attracting, motivating and retaining well qualified staff” (clause A2.4.1(c), H.R.P.M.). (Emphasis added). 136.Accordingly, I reject the premise suggested on behalf of the HA that the doctors’ culture, ethos and tradition should somehow entitle their employer to treat them differently to - and less fairly than - other sectors of its workforce. 137.I would also comment that the fact that the employer is largely publicly funded should not have any bearing on the court’s consideration of the issues in the litigation or its result. If that fact is to be of any relevance at all, then in my view it is that in an employment dispute (which this is), one should assume that a publicly funded employer would not have intended to discriminate against or exploit any sector of its workforce, and indeed this has been specifically articulated in the Mission Statement which I have mentioned. It is not within the court’s province to try to resolve problems such as the HA not having employed enough doctors to cover those who should have been given time-off but who were not. If the doctors have certain rights, the court cannot trammel its judgment because of financial implications for their employer. History of pertinent features 138.Before dealing with the issues, it is pertinent to point out the following features which have led and which are relevant to this piece of litigation. 139.First, doctors in the public service were originally employed under the Civil Service Regulations. The effect of that, and their ranking within the service, meant that they were not entitled to any overtime pay. 140.Now generally it is not unusual in employment situations for personnel in senior positions not to be given overtime pay. I suppose that is because in those positions, they are regarded as being able to regulate their own time for the tasks in hand, and if they have to stay behind usual office hours or bring work home, then that is because they have failed more or less in their own time-task management. 141.However those considerations do not apply to public doctors. To take a simple example, the doctor who is required to be on resident call at a hospital - however efficient he is - simply cannot leave before the end of his call list day. And obviously patients cannot be brought home like papers to work on after some downtime with the family. 142.It was therefore not surprising that when public doctors became increasingly overworked at the end of the 1980's, many ‘voted with their feet’ and left the service. 143.Secondly, it would appear that the Honorarium Scheme was originally intended as a short-term measure. At the end of 1988 the Government Doctors Association raised calls for a pay scale independent of the Civil Service or the provision of a professional allowance to take into account the difficulties particular to their work. 144.It is apparent from the letter dated 5 December 1988 from the Secretary for Health and Welfare to the Chairman of the Government Doctors Association that the government recognized that public doctors’ terms of service required improvement. However the administration’s response was that the doctors’ proposals
The administration considered that proposals that could be “implemented quickly” included the Honorarium Scheme. The letter ended as follows:
145.Since then, however, the ‘short-term’ measure of the Honorarium Scheme - which were at realistic rates at the time of its inception - has continued for nearly 20 years. This is even though the Administration’s argument of “ far-reaching implications for the civil service as a whole” no longer had any relevance after the public health service was hived off from the Civil Service with the creation of the HA in 1990-1. 146.Thirdly, with transfer to the HA, the doctors became employees rather than civil servants. At the same time, in 1990, the Employment Ordinance was amended to apply to all employees irrespective of their type of work or level of wages. This is particularly pertinent to the statutory requirements of ‘rest days’ and ‘statutory holidays’ to which I will refer later in this judgment. 147.Fourthly, although the Honorarium Scheme has remained for a long period of time now, and even though the HA has produced various versions and reviews of the manuals for the central administration of the public health service, there has been some inconsistency in its application. Letters of appointment have referred to the honorarium being paid “at the absolute discretion of hospital management”, but Mr Huggins says that it is actually an entitlement and not a discretionary payment. He acknowledges however that there is still a discretionary element in that the HA chooses to which units the Honorarium Scheme is to apply, so that when a doctor signs a contract of employment, he would not know if he would be entitled to receive payment under the Honorarium Scheme for working more than his ‘conditioned hours’ (a concept which I will discuss later). 148.Further, there is some inconsistency in practice as to whether a doctor would be entitled to time-off for working more than his ‘conditioned hours’. In a memorandum (ref (23) in HA 1021/1) to ‘Distribution’ dated 14 May 1992 on the subject of ‘Guidelines on Handling of Time-Off Periods’ (‘the Time-Off Guidelines Memorandum’), the Deputy Director (Administration) “clarified the policies in this respect” as follows:
149.At the hearing before us, Mr Huggins was only able to say that he did not know the context of that memorandum, nor its distribution, nor what was meant by “compensation-off”. This disavowal was quite surprising, as it was the HA’s own document and as the title of the memorandum showed, it was intended to be the statement of guidelines for general application. 150.In any event, the Time-Off Guidelines Memorandum was referred to in a reply from the Deputy Director (Human Resources) dated 18 June 1996 to a doctor inquiring about compensatory leave for medical officers for attending on-call duties. The reply was as follows:
Issues 151.With that history of pertinent features, I now turn to the issues which may be summarised as follows:
(A)(1) What are the doctors’ hours of work under their terms of employment? 152.The judge found that the doctors’ ‘conditioned hours’ i.e. their hours of work under their terms of employment was 44 hours a week (para. 113 Judgment). There is no Respondent’s Notice. In any event the doctors’ contention in this respect is correct, given the language of (at least some of) the letters of appointment. (As this is a representative action, there is little purpose discussing individual circumstances, save that I would note that interns are not included in my discussions below). 153.The fact that the doctors have ‘conditioned hours’ is significant as the concept of overtime then kicks in under clause E4.1.1 of the HRPM, which states:
(A)(2) When additional time is worked, is there contractual recompense? 154.Given that work undertaken by doctors over and above 44 hours a week is ‘overtime’, the next issue is the contractual recompense for the additional time worked. (As I have said earlier, the doctors are not refusing to work overtime, they are only seeking recompense under the terms of their employment). 155.That there must be some contractual entitlement to recompense is clear. Once the concept of ‘conditioned hours’ is accepted to apply to doctors, it cannot be said that they can be made to work extra hours without consideration, or that they would only be given recompense in the HA’s absolute discretion, as then the agreement of a 44-hour week would be rendered completely meaningless. (A)(3) Does clause E4.2.3 (which provides ‘overtime work should normally be recompensed by time-off’) apply to doctors? 156.In accordance with general contractual principles, one would expect to find the contractual recompense provided in the HRPM the terms of which are incorporated by reference in the letters of appointment. 157.On the aspect of overtime, the section on ‘General Principles’ contains clause E.4.2.3 which provides:
158.There is nothing which disapplies this passage - in a section on General Principles - to doctors. In an organization where doctors comprise a very important sector of the workforce (if not the most important sector), one would expect that if the employer did not intend this passage to apply to them, then it would have clearly said so. This was a document drafted unilaterally by the employer and as such, in construing it, the principle of contra proferentum applies. 159.Of course as doctors are not eligible for ‘overtime allowance’, the latter part of that passage is not pertinent, but that is not to say that their ‘normal recompense’ should not be time-off for the overtime worked; or that if they do not get that time-off, they would get nothing. 160.Pausing there I note that the words “Revised 21 November 2002" appear on the version of the HRPM with which we were provided (p.1480 of the Core Bundle) and these proceedings were first commenced in the Labour Tribunal in May 2002. A comparison with the version of the HRPM dated 26 November 1991 (p.1687 of the Core Bundle) shows that the above passage did not appear in the 1991 version but it is not very clear when the passage I have quoted in para. 156 above first appeared. It appears however to be accepted that it was in existence by 1994 at the latest. In any event there must have been some basis for the guidelines in the ‘Time-Off Guidelines Memorandum’ issued in 1992 by the Deputy Director (Administration) and referred to in the 1996 reply from the Deputy Director (Human Resources). (A)(4) If clause E.4.2.3 .applies, how does it work consistently with the Honorarium Scheme? 161.There is no reason why that clause cannot be read consistently with the Honorarium Scheme. In my view, the consistent way of reading this term of the HRPM and the letters of appointment together, and giving effect to both, is that the primary or normal recompense would be time-off for overtime worked, and failing that, (since doctors are not eligible for ‘overtime allowance’) overtime payment in the form of the flat rate Honorarium Scheme for doctors in the eligible units, and payment of other monetary compensation for doctors not in those units. 162.In my view, it is an important element of the doctors’ claim that the primary recompense is time-off for the overtime worked. The busier a professional person is, the more he needs and prizes time - whether it is to be spent with family, or in the pursuit of non work-related interests, or simply to have a breather in the interests of his own well-being. The exchange of time-off for additional time worked is an important contractual entitlement and the HA is in my view contractually bound to honour it. That it can be done administratively can be seen from the fact that the evidence shows that some hospitals have applied the compensatory leave scheme not only for statutory holidays but also for on-call days. This has also been referred to in the 1992 ‘Time-Off Guidelines Memorandum’. 163.On this aspect, I would pause to discuss the view that by reason of the final sentence of clause E.4.2.3 when read in conjunction with Chapter E4 of HRAM, an eligible employee cannot compel the HA to give him time-off for overtime worked instead of being paid overtime allowance, once he has become entitled to the latter. I see nothing that leads to that conclusion. The final sentence says:
That sentence refers to the employee’s option. It does not require the management’s agreement. Of course it provides that the time to be taken off should be convenient to both, but those circumstances can be objectively ascertained in good faith. It does not give a contractual right to the management to refuse to give time-off if the employee opts for it and the objective circumstances so permit. 164.Of course once payment for overtime worked has been received, the option for time-off would lapse. Therefore doctors who have received payments under the Honorarium Scheme in my view have no extant claim to be given time-off for overtime worked. (A)(5) What is the position of those doctors who are not in units covered by the Honorarium Scheme? 165.It logically follows that those doctors who were not in units to which the Honorarium Scheme applied and who had worked over and above 44 hours a week would be entitled to claim recompense for the additional time worked. The numbers should not be large, and subject to proof, I see no reason why they should not claim time-off now for the overtime worked. If time-off can no longer be provided, e.g. because they have left the HA, I would have thought that subject to the usual limitation periods, compensation should be assessed at the rate when they should have been given time-off for the overtime worked. (A)(6) Under the ‘on call’ system, what should be regarded as ‘work’? 166.Le Pichon JA has set out in her judgment the different ways in which a doctor may be on-call. In which of those situations has a doctor done “overtime” (which is defined as “work undertaken over and above an employee’s conditioned hours of work”)? 167.I think we can derive the test of what is a doctor’s ‘work’ from the basic question: what is a doctor employed to do? The answer it seems to me is that a doctor is employed to treat patients. Of course, there are other incidental and ancillary activities but essentially he is at the employer’s disposal for providing patient treatment. 168.Once that test is applied, I think the problem regarding the different on-call situations resolves itself. A doctor on resident call is clearly required to treat such patients at the hospital as need treatment. At the other end of the scale, a doctor who was carrying a pager but who had not been paged at all cannot be said to have treated patients during that period. A doctor who had been paged and who attended hospital as a result would also have provided patient treatment. A doctor who had been paged and who gave crucial advice on treatment on the telephone would in my view also have done so. Perhaps that would not be the case for a doctor who is paged just to be kept informed of a patient’s progress, as he would have provided the treatment earlier. As Le Pichon JA noted, this is a fact-sensitive issue. 169.In my view, the test of “has the doctor provided patient treatment” is consistent with the decision of the Court of Final Appeal in Cheng Ho Kee as well as the decision of the European Court of Justice in the SIMAP case. I would only add in respect of the former case that correctional service officers are employed to be physically present to perform their duties at CSD facilities, whereas for doctors, intellectual activity without physical presence can be adequate when advising on patient treatment from a distance. As for the SIMAP case, I would only add that references to ‘working time’ and ‘overtime’ should be read with caution as the question of what was ‘working time’ was relevant in the context of legislation governing maximum working time, and the question of what was ‘overtime’ was relevant in the context of payment. (B)(1) Has s.17 Employment Ordinance been contravened? 170.I shall now deal with rest days. This is a discrete issue (irrespective of the claim to overtime recompense) as it arises from the extension of the Employment Ordinance in 1990 to virtually all employees irrespective of type of work or level of wages. 171.The provisions of s.17 and s.19 have already been referred to in Le Pichon JA’s judgment. For my part, I do not consider that there has been a contravention of s.17. This section requires an employer in a continuous contract to ‘grant’ 1 rest day in every period of 7 days. Put another way, there must be a term in such a contract that there should be a rest day every 7 days. The employer here (the HA) has granted rest days as a “standard working week” is a 5½ day week (clause B.2.3.2 of the HRPM). So there is no contravention. The complaint is that the doctors have nevertheless had to work on the rest days so granted. (B)(2) Has s.19 EO been contravened? 172.I take the view that when the HA required a doctor to work (in the sense previously discussed) during the rest day, then the continuous period of 24 hours which constitutes a ‘rest day’ in accordance with the statute is broken, and a contravention would arise unless the nature of the work comes within the meaning of “unforseen emergency of any nature” within s.19(2). That again has to be fact-sensitive. If it occurs, then under s.19(3), the employer must substitute for that interrupted rest day another rest day within the period prescribed by the legislature. 173.If the HA (or indeed any employer) has been in breach, then in my view given that the purpose of the statute is to ensure that employees are given rest days, the statute should be enforced by ordering the employer to grant substitute rest days for the employees, in this case those doctors still remaining within the service. For those who have left, the only remedy is the award of damages. Given that there is one statutory requirement, which is to provide one continuous period of 24 hours for a rest day, the management who calls a doctor to hospital to work for say 3 hours during that day would nevertheless have contravened that one statutory requirement – it does not contravene only part of that statutory requirement. If that contravention had not taken place, the doctor would have had a continuous period of 24 hours rest. Therefore, the remedy would have to be assessed on the basis that he has not had a continuous period of 24 hours rest. (C) Holidays 174.The same analysis would apply to holidays insofar as it is applicable. (D) What is the appropriate relief? 175.As far as the overtime claim is concerned, with respect to the judge, I take the view that in light of the representative nature of the proceedings, it would be appropriate to grant declaratory relief so that the parties have a set of parameters within which to determine their respective rights. Put briefly, there should be declarations that doctors whose contracts are governed by clause E.4.2.3 would be entitled to time-off for overtime worked as the primary recompense, but where this is operationally impracticable within a reasonable period from the date on which the overtime is worked (which period would have to be determined objectively), then the doctors in units under the Honorarium Scheme should be entitled to the flat rate payment under that Scheme. If however a doctor opts not to accept the honorarium, then he may opt to take time-off at a later date mutually convenient to him and the management. For doctors in units not subject to the Honorarium Scheme, they would be entitled to compensation for overtime quantified pro rata to their salaries. 176.As far as the 1st lead plaintiff is concerned, I would grant a declaration in terms of paragraphs (5) and (6) of his claim insofar as he has not received the honoraria under the Honorarium Scheme. Of course since payment under the Honorarium Scheme is paid at a flat rate, once the honorarium has been received for a particular month, the entitlement to time-off for overtime worked for that month would have been extinguished. 177.I do not see the need to deal with the circumstances of each individual lead plaintiff as to do so will only serve to lengthen this judgment. I do not know whether any of the plaintiffs belonged to units outside the Honorarium Scheme. 178.As for the rest days claim and the holidays claim, in my view the claims would have to be assessed on the basis discussed in this judgment. I appreciate that this may result in a time-consuming and expensive exercise in quantification but that is the inevitable result of the magnitude of the breach in terms of the numbers of doctors involved and the length of time during which these breaches have occurred. Hon Le Pichon JA: 179.Accordingly, the order below is affirmed save as regards the two paragraphs further ordering and directing the assessment of quantum of damages which are set aside. An agreed draft order varying the order below should be submitted for approval. There is also to be an order nisi of costs in terms of § 80 above.
Mr Denis Chang SC, Mr Tim Kwok & Ms Jane Curzon Lo, instructed by Messrs Leung Chan & Pang, for the 1st, 77th and 91st Plaintiffs (“lead Plaintiffs”)/Appellants Mr Adrian Huggins SC & Mr Godfrey Lam, instructed by Messrs Johnson Stokes & Master, for the Defendant/Respondent | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under CACV 57/2007