NSW junior doctors class action

The process of confirming all registered Stafflink numbers and determining Eligibility (who is a Participating Group Member) is now complete. Using the confirmed Stafflink numbers, the Scheme Administrator requested, and NSW Health has identified and provided, all available payroll and roster data within their systems.

The Claim Data that was provided by NSW Health to the Scheme Administrator falls into two broad categories:

1. Summary Claim Data
2. Detailed Claim Data

The Summary Claim Data contains:

• Start and end dates of each period of employment (for example 2 February 2015 to 2 February 2016)
• Position, classification and applicable Award
• Legal employer
• Full Time Equivalent (FTE)

The Summary Claim Data was used by the Scheme Administrator to determine if a registrant was eligible in accordance with the Settlement Scheme (a Participating Group Member).

The Claim Data and Eligibility Phase is now complete and there is no further opportunity to seek an Eligibility Review or amendments to Summary Claim Data.

Following the completion of the Claim Data and Eligibility Phase, the Scheme Administrator requested NSW Health provide the Detailed Claim Data for each eligible Stafflink Number.

The Detailed Claim Data includes the Payroll and Health Roster data for each eligible period of employment. For example:

• Shift type, date, start and end times
• Pay Scale
• Total amount paid per shift and whether the hours were treated as ordinary hours or overtime hours
• The number of minutes deducted from a shift for meal breaks

This Detailed Claim Data was used by the Scheme Administrator to calculate the estimated Distribution Payments in accordance with the Loss Assessment Formula contained in the Settlement Scheme (Schedule A).

The Claim Data is large and complex, in total over 30 million rows of data were received by the Scheme Administrator. The Settlement Scheme was not designed to calculate each Participating Group Member’s loss to the exact dollar but rather it was drafted to prioritise practical fairness and efficiency over impossible precision.

Read more about the nature and limitations of the Claim Data here.

Loss calculations have now been completed for all Participating Group Members in accordance with the Loss Assessment Formula (Annexure A to the Settlement Scheme).  

Participating Group Members may be entitled to compensation for:

1. Unrostered Unpaid Overtime
2. Unpaid Meal breaks
3. Rostered Unpaid Overtime

The Notice of Assessment sets out:  

Total Estimated Loss – which is calculated in accordance with the Settlement Scheme prior to the apportionment of the total compensation pool (i.e. before the pro-rata calculation)

Estimated Distribution Amount – which includes your “In Hand Amount” as well as the amount of tax withheld and any superannuation contribution to be paid on your behalf. The Estimated Distribution Amount is your share of the total compensation available to Participating Group Members (i.e. after the pro-rata calculation). The compensation pool must be equally apportioned across all group members because the total of Estimated Loss for all group members is greater than the available compensation funds. All group members receive the same % proportion of their Estimated Loss. In other words, all group members receive a share of the available compensation that is directly proportionate to their share of the total Estimated Loss.

Read more about your Notice of Assessment including the difference between the Total Estimated Loss and the Estimated Distribution Amount here.

Clause 7 of the Settlement Scheme provides that a Participating Group Member has a right to seek a Review of their Assessment (an Assessment Review).

In deciding whether to proceed with an Assessment Review it is important to understand the intention of the Settlement Scheme in relation to the assessment of claims and the application of the Loss Assessment Formula to the available Claim Data.

All Claim Data relied on by the Scheme Administrator has been provided by NSW Health. We have no alternative source of Claim Data.

It was explicitly acknowledged before the Court at the time of the class action settlement approval that given the complexities and limitations of the Claim Data, the Settlement Scheme should not be designed to calculate each Participating Group Member’s loss to the exact dollar. Such calculation is not possible based on the available Claim Data and would cause unreasonable delay and cost. 

The Settlement Scheme and Loss Assessment Formula prioritise practical fairness and efficiency over impossible precision. Where limitations in the Claim Data are identified the Scheme Administrator is to apply reasonable assumptions, estimates and averages.

Therefore, to proceed with an Assessment Review, you must have an alternate source of records or information to satisfy the Scheme Administrator that the assessment of your claim based on the Claim Data provided by NSW Health is incorrect.

Find more information on Assessment Reviews, including the process and examples of what can and cannot be the subject of an Assessment Review here.

In Australia, the Superannuation Guarantee laws require superannuation to be paid on ordinary hours. Superannuation is not payable on overtime.

In the context of the Settlement Scheme, superannuation is payable on the Unpaid Meal Break component of a Participating Group Member’s claim and not on Unrostered or Rostered Overtime. The calculation of superannuation is provided for in the Loss Assessment Formula and will be set out in your Notice of Assessment.

If you are receiving a superannuation payment you will be asked to provide the Scheme Administrator with the details of your superannuation fund. The Scheme Administrator is required to make this payment directly to your superannuation fund, it cannot be made to you directly.  

Read more about how superannuation is calculated and the details you will be required to provide here.

Distribution Payments made under the Settlement Scheme are considered wages and therefore taxable as ordinary income.

The Scheme Administrator is required to withhold PAYG from your distribution payments and remit that tax directly to ATO. A PAYG withholding rate of 39% will be applied to all Participating Group Member’s Distribution Payments. A standard withholding rate was sought by the Scheme Administrator to make the PAYG assessment and withholding process more efficient and cost effective.

If a PAYG rate of 39% has resulted in too much tax withheld in your circumstances, you will receive a refund for the difference at the time you complete your next tax return, likewise if we have not withheld enough, you will have a tax liability at the time you complete your tax returns.

At the time you receive your Notice of Assessment you will be asked to provide your Tax File Number. If you do not provide your TFN, the Scheme Administrator will be required to withhold tax at the highest marginal tax rate (47%). 

Read more about how tax is calculated and how it will be assessed for previous years to account for varying personal tax rates here.