Australian Salaried Medical Officers' Federation (New South Wales) (on behalf of Bruce Hall) v South Western Sydney Area Health Service [2006] NSWIRComm 101 (30 March 2006)

Last Updated: 30 March 2006

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Australian Salaried Medical Officers' Federation (New South Wales) (on behalf of Bruce Hall) v South Western Sydney Area Health Service [2006] NSWIRComm 101

FILE NUMBER(S): IRC 1427

HEARING DATE(S): 16/11/2005, 17/11/2005

Conciliation: 22/02/2006, 07/03/2006, 16/03/2006

DECISION DATE: 28/03/2006

PARTIES:

APPLICANT

Australian Salaried Medical Officers' Federation (on behalf of Bruce Hall)

RESPONDENT

South Western Sydney Area Health Service

JUDGMENT OF: Staff J

LEGAL REPRESENTATIVES

APPLICANT

Mr P Ginters of counsel

Solicitor: Mr S Mead

Australian Salaried Medical Officers' Federation

RESPONDENT

Mr H J Dixon SC with Mr A Moses of counsel

Instructing Officer: Mr G Driver

South Western Sydney Area Health Service

CASES CITED: Abdalla v Viewdaze Pty Ltd (2003) 53 ATR 30

Adam v Newbigging (1888) 13 App Cas 308

Amalgamated Colleries of W.A. Ltd -v- True (1938) 59 CLR 417

Australian Broadcasting Corporation v XIVth Commonwealth Games Limited (1988) 18 NSWLR 540

Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385; (1978) 52 ALJR 406

Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153

Building Workers' Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104

Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41

Connelly v Wells (1994) 55 IR 73

Damevski v Guidice, the President of the Australian Industrial Relations Commission & others (2003) 202 ALR 494

Ex parte Delhasse; In re Megevand (1878) 7 Ch D 511

Ex parte Robert John Pty Ltd; Re Fostars Shoes Pty Ltd [1963] SR (NSW) 260

Franks v Reuters Ltd and First Resort Employment Ltd (2003) EWCA Civ 417 (unreported, Supreme Court of Judicature Court of Appeal (Civil Division) President, Lord Justice Thorpe and Lord Justice Mummery, 10 April 2003)

Gapes v Commercial Bank of Australia Limited (1981) 37 ALR 20

Hollis v Vabu Pty Ltd (2001) 207 CLR 21; (2001) 106 IR 80

Knowles v Anglican Church Property Trust, Diocese of Bathurst (1999) 89 IR 47

Massey v Crown Life Insurance Co [1978] 2 All ER 576

Nagle v Tilburg (1993) 51 IR 8

Narich Pty Ltd v Commissioners of Pay-roll Tax (NSW) (1983) 2 NSWLR 597

R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138

Re Porter; Re Transport Workers Union of Australia (1989) 34 IR 179

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16

TNT Worldwide Express (NZ) Ltd v Cunningham [1993] 3 NZLR 681

LEGISLATION CITED: Fringe Benefits Tax Assessment Act 1986

Health Services Act 1997

Industrial Relations Act 1996

Taxation Administration Act 1953

Workplace Relations Act 1996

JUDGMENT:

- 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: Staff J

28 March 2006

Matter No IRC 1427 of 2005

AUSTRALIAN SALARIED MEDICAL OFFICERS' FEDERATION (NEW SOUTH WALES) (ON BEHALF OF BRUCE HALL) v SOUTH WESTERN SYDNEY AREA HEALTH SERVICE

Application by the Australian Salaried Medical Officers' Federation (New South Wales) (on behalf of its member Bruce Hall) pursuant to s 84 of the Industrial Relations Act 1996 for relief from unfair dismissal

DECISION

[2006] NSWIRComm 101

1 Professor Bruce Hall ("the applicant") is a professor of medicine and renal physician who was appointed on 24 June 1991 by the University of New South Wales ("UNSW") to the position of Professor of Medicine in the School of Medicine and Director of the Division of Medicine at Liverpool Hospital, South Western Sydney Area Health Service (now known as Sydney South West Area Health Service).

2 Professor Hall commenced his appointment effective from 15 July 1991.

3 On 26 May 2005, Professor Hall was directed by the General Manager of the Liverpool Health Service, a unit of the Sydney South West Area Health Service not to attend Liverpool Hospital Campus until certain matters relating to his appointment at the Liverpool Health Service had been resolved.

4 The Australian Salaried Medical Officers' Federation (New South Wales) ("ASMOF") on behalf of Professor Hall, seeks his reinstatement to the position that he held at Liverpool Hospital.

5 Professor Hall's employment with UNSW is continuing.

6 The respondent, Sydney South West Area Health Service ("the AHS") has raised, at the outset, a jurisdictional issue. It contends that the applicant is excluded from obtaining any relief pursuant to ch 2 of Pt 6 of the Industrial Relations Act 1996 (NSW) ("the Act") because he is not an employee of the AHS.

7 The question for decision in these proceedings is whether the applicant is employed by the AHS.

8 It is to be observed that after the Commission had reserved its decision in this matter, further conciliation occurred during February and March 2006, which failed to resolve the matter.

Factual Background

9 In 1989, prior to the engagement of the applicant, the UNSW and the AHS came to an agreement that the AHS would make available the facilities at Liverpool Hospital, Fairfield Hospital and the Community Health Service for undergraduate, graduate and post-graduate medical teaching and research. The AHS agreed to become a principal teaching campus of the UNSW. From 23 January 1989, the AHS agreed to make available facilities including the provision of a clinical science building or equivalent facilities for the use of all teaching, research and administrative staff in university/academic departments to be established in the AHS. Such buildings or facilities were to include provision for teaching and research facilities, including lecture and seminar rooms, demonstration rooms, office and student amenities and associated facilities.

10 The respondent and the AHS agreed it was in the joint interests of both parties that the AHS should, as a matter of urgency, implement its full plan and developments in order that it may fully and effectively fulfil its functions as a principal teaching campus of the UNSW.

11 The AHS agreed to the provision of funding in full or part, as agreed appropriate, to the UNSW for the appointment by the UNSW in association with the AHS of the following academic staff in the AHS which included, but was not restricted to the Professor of Medicine. It was further agreed that funding would also be provided by the AHS to the UNSW for a range of other appointments including, but not limited to academic, conjoint academic support and/or secretarial staff in each of the UNSW academic departments to be created in the AHS.

12 The AHS agreed that where university appointments are made, that the appointees would be accredited to the AHS as visiting medical officers with clinical responsibilities and duties to be defined according to the needs of the AHS and the interests of the academic. Such accreditation as a visiting medical officer terminates in the event that the appointee ceases to hold a university appointment.

13 The AHS agreed that in all cases where university professorial appointments were made in the AHS, the AHS would consider designating the appointee as head of the appropriate clinical department within the AHS and as such would provide them with appropriate support staff to undertake their relevant hospital administrative and medical duties.

14 It was further agreed that all new appointments to the visiting and/or fulltime medical staff of the AHS would be required to be available upon reasonable request by the UNSW to participate in the UNSW Undergraduate Teaching Program.

15 Staff specialists employed by the AHS, as distinct from medical academics were to be considered for conjoint appointment to the Faculty of Medicine with an appropriate academic title.

16 Members of the UNSW staff, other than those appointed to the staff of the AHS were eligible for appointment to the consultant medical staff of the AHS. Any appointment of a member of the UNSW staff, as a member of the AHS' consultant medical staff was to be effective only whilst such person remains a member of the UNSW staff.

17 The parties acknowledged that it was not practicable to settle all details at this time and agreed to co-operate in working out any additional details that arose within the above principles.

18 On 29 November 1990, shortly before the appointment of the applicant, the Department of Health ("the Department") wrote to the AHS advising that medical specialists employed by public hospitals had successfully arbitrated increases in rates of pay. The Department advised that the New South Wales Public Medical Officers' Association was anxious to maintain relativities achieved in 1988 between medical specialists and clinical academics. The Department advised a review had been undertaken and as an interim measure, the Department had approved an increase in the Clinical Duties (Public Hospitals) Allowance by 15 percent of the base rate paid by the Universities on and from 12 December 1989. The agreement reached was conditional upon the Universities with medical schools indicating that the arrangements were acceptable to them. The Vice-Chancellor of the UNSW subsequently advised his agreement, as did other universities.

19 In implementing the increased payments, a number of additional points were noted by the Department. These included:

1. A Clinical Academic for the purposes of this payment is defined as a Medical Practitioner member of the University Faculty of Medicine employed by the UNSW, who holds a Hospital or Area appointment and provides services for the hospitals' or area's patients.

...

3. The Clinical Duties (Public Hospitals) Allowance is payable in addition to all other amounts currently payable to Clinical Academics.

4. The Universities have indicated that the clinical Academic Loading will continue to be paid by the University to Clinical Academics.

...

6. The Clinical Duties (Public Hospitals) Allowance is not to be taken as "salary" for any purpose including superannuation. It is not payable on periods of absence from the Hospital exceeding two months or upon discontinuation of the Clinical Academics Visiting Practitioner appointment.

7. The Clinical Duties (Public Hospitals) Allowance is a payment for services provided. It should not be taxed as source and the Clinical Academic is to be responsible for taxation payments due on this payment.

20 At that time, the clinical academic loading was worth $10,433 per annum. A further agreement reached between the Department and the AHS providing that clinical academics are required, as part of their academic appointment, to perform clinical services for patients of public hospitals and it is agreed that such services would normally be provided for eight hours per week and in recompense for same, clinical academics would receive the loading referred to above. It was acknowledged that clinical academics in fact provide clinical services for patients in public hospitals, on average, to an extent in excess of eight hours per week. In recognition that some clinical academics provided services in excess of eight hours, it was recognised that clinical academics could be remunerated for "additional duties" (i.e. duties beyond that required for the University appointment) by reference to the annual rate/hour per week paid for the University duties. In a final settlement of all issues and in consideration of the services provided by clinical academics, the agreement set out allowances to be paid for work done on public patients.

21 The position that was advertised and that the applicant applied for was the position of Professor of Medicine and Director, Division of Medicine, Liverpool Hospital, South Western Sydney Area Health Service.

22 The actual advertisement that the applicant responded to, was not produced in evidence. However, Professor Hall produced an advertisement for the above position which had a closing date of 29 October 1990, a date after which Professor Hall had taken up his appointment. This advertisement under the heading "University of New South Wales Faculty of Medicine, School of Medicine" provided:

...

The successful applicant will be responsible for developing, supervising and participating in the undergraduate and postgraduate teaching programs and will engage in and promote research in the field of his or her expertise. At the Liverpool Hospital, the Professor will have clinical responsibilities and will participate in the organisation, development and management of clinical services as Director of the Division of Medicine.

...

The salary is $63,919 per annum with a clinical loading of $11,176 per annum. An additional "on-call" allowance of $13,003 per annum and a "clinical service" payment in the range of $9,390 to $17,736 per annum (depending on the level of clinical service responsibility in the hospital and in the area) are payable by the Health Service. The appointee may undertake a limited amount of private practice or higher consultative work.

...

23 Inquiries were invited to be directed to Professor J M Dwyer, Head, School of Medicine, University of New South Wales.

24 A document accompanying the advertisement under the heading "University of New South Wales" stated "Information (in) relation to the position of Professor of Medicine Tenable at the Liverpool Hospital South Western Sydney Area Health Service". This document named six hospitals, including Liverpool Hospital, as being the principal teaching hospitals of the University. There were a further seven associated teaching hospitals also named under the heading "The South Western Sydney Area Health Service". The following appeared in the document:

The South Western Sydney Area Health Service became a Principal Teaching Campus of The University of New South Wales in early 1989 and The University is currently advertising Foundation Chairs in Medicine, Surgery, Obstetrics & Gynaecology, Paediatrics, Anaesthetics and Intensive Care, Traumatic Surgery, Neonatology, General Practice/Primary Care and Drug and Alcohol Services. The appointee will have a clinical role with one of the hospitals of the Health Service and will head the appropriate clinical division. She/he will be expected to develop both the clinical services of the Health Service as well as the academic activities of the University Department based within the hospital.

...

It is envisaged that a Clinical Sub-Dean of Faculty will be appointed to supervise the Faculty's interests in the South Western Sydney Area Health Service and the appointees to the Foundation Chairs will be considered in making this appointment.

25 At a meeting of the Personnel Subcommittee of the Executive Subcommittee of Council of the UNSW held on 1 May 1990, the Subcommittee approved the issuing of an offer of appointment to the applicant.

26 The applicant acknowledged in his affidavit evidence that part of his academic appointment with the UNSW was a clinical appointment in his speciality where he could perform clinical services.

27 Mr Gregory Driver, the Deputy Manager, Human Resources of the AHS, gave evidence that the applicant commenced his appointment as a professor of the University with the AHS effective from 15 July 1991. On 5 August 1991, Mr Driver took steps to ensure that the applicant was paid the necessary allowances and sought approval from the then Chief Executive Officer, which was granted, to achieve that result. Mr Driver's memorandum to the Chief Executive Officer was in these terms:

Professor Bruce Hall commenced with the Area Health Service on the 15th July, 1991 and now the payment of the clinical loading and on-call/re-call allowance needs to be determined.

I would consider that Professor Hall should be paid the clinical duties (Public Hospital) allowance at the rate of $27,908 p.a. being the highest of the three rates. In addition the on-call/re-call allowance of $15,974 p.a. might also be paid to Professor Hall.

I now seek your approval to pay Professor Hall the clinical duty allowance of $27,908 p.a. and the on-call/re-call allowance of $15,974 p.a. effective from the 15th July, 1991.

28 Approval was given by the Chief Executive Officer on 5 August 1991. Mr Driver deposed that steps had to be taken to ensure that the applicant was paid the allowance to which he was then entitled. To achieve that result, the applicant was required to complete the necessary documentation which would be recorded in the Human Resources Information System in order to generate payment of those allowances. Professor Hall was asked to complete a document which had a heading "Application for Employment South Western Sydney Area Health Service". In answer to the question for the position applied for, the applicant wrote:

Professor of Medicine/Director of Medicine.

29 This, of course, was the position that the applicant had been appointed to by the UNSW Subcommittee on 1 May 1990. The document was dated 16 September 1991, being approximately two months after the applicant had taken up his appointment.

30 Mr Driver's evidence was that the completion of this documentation was a convenient means of collecting the necessary information to initiate the human resources processes to achieve payment. His evidence was that the applicant did not by this means apply for employment with the AHS and no offer of employment was made.

31 The respondent contends that the employment of the applicant was, and is, governed by the University of New South Wales (Academic Staff) Enterprise Agreement 2003, an agreement certified by the Australian Industrial Relations Commission in accordance with s 170LT of the Workplace Relations Act 1996. It is not necessary to refer in detail to the provisions of the Enterprise Agreement, however, it contains clauses dealing with termination of employment and disciplinary action, salary which includes clinical loading rates, salary sacrificing scheme, academic workloads, superannuation and leave entitlements. In respect of recreation leave, no report is required where such leave is taken in full which is due for the current year and taken during university vacation.

32 The respondent contends that it is not possible to separate out, other than when Professor Hall is undertaking private practice, that he is performing some role which was not pursuant to his overall obligations under the certified agreement as an employee of the University.

33 The Enterprise Agreement is to be contrasted with the Staff Specialists (State) Award. This Award applies, as its name suggests, to all staff specialists (medical practitioners) who are defined as a specialist, senior specialist and post-graduate fellow. "Specialist" means a person appointed to a position of specialist by an employer. To be eligible for appointment, a specialist must be a person who holds a medical qualification, registrable in New South Wales, and has spent not less than five years in practice.

34 There is no evidence before me that suggests, at any stage, that the applicant was appointed to a position of specialist under this Award.

35 The respondent contends that:

(i) there is no contractual documentation between the AHS and the applicant;

(ii) there is no evidence of any oral agreement of any sort between the applicant and the AHS in respect of employment;

(iii) the applicant applied for employment with the UNSW and was successful. That employment requires him to perform clinical services as part of his employment and UNSW, throughout his employment, regarded the performance of those clinical duties as within the course of his employment with the UNSW.

36 The evidence is that when the applicant took up the employment, it was a term of that employment that he would have to provide these clinical services and the UNSW set out the terms of employment of performing clinical services at the Hospital as a clinician.

37 The evidence discloses that, from time to time, the level of payments for clinicians and the services they provided within the AHS were negotiated by ASMOF. The respondent contends that, on the evidence, this did not affect the status of Professor Hall in the sense that it could not make him an employee of the AHS when he was not.

38 Attached to Mr Driver's affidavit was what was described as a discussion document - Clinical Academic Appointments/Payments, which Mr Driver prepared in 1993. Mr Driver sets out that the UNSW pays the clinical academic a salary and the respondent's clinical loading. The Hospital or AHS is required to pay the Clinical Duties (Public Hospitals) Allowance, 15 percent of the academic base rate depending upon the University classification and an on-call allowance. Any private practice earnings are in addition to these payments. Mr Driver then went on to explain the basis for each of these payments.

39 The University Clinical loading is a payment made to the clinical academic, as part of the Academic appointment for the performance of clinical services to public patients of public hospitals. This payment had its origins in an agreement reached in 1988 between the Department, Vice-Chancellors of various universities and ASMOF. The loading was introduced to remunerate clinical academics for the provision of up to eight hours of patient services per week. The provision of this level of service to public patients is a condition of the academic's university appointment. UNSW was a party to this agreement.

40 The Clinical Duties (Public Hospitals) Allowance which is paid by the Hospital/AHS to clinical academics is for providing clinical services to public hospital patients in excess of eight hours per week. There are three categories of payment calculated on the basis of the number of hours worked in excess of eight.

41 The 15 percent of academic base rate was introduced in November 1990 following discussions between the Department and ASMOF that the Clinical Duties (Public Hospitals) Allowance was to be supplemented by a further allowance of 15 percent of the clinical academic's base salary.

42 Mr Driver's evidence was that this was done on an interim basis in an attempt to give clinical academics the benefit of the increases granted to staff specialists.

43 An agreement was reached between ASMOF and the Department in December 1985 to pay clinical academics an on-call allowance if they were required to take part in an on-call roster. The basis of the payment was that the clinical academics would voluntarily agree to participate in an out-of- hours roster with staff specialists/visiting medical officers, if required.

44 UNSW also allows fulltime clinical academics to engage in private practice for up to one day per week. Mr Driver noted in his discussion paper that the applicant held a visiting medical practitioner's appointment to the AHS and received the Clinical Duties (Public Hospitals) Allowance and an on-call/re-call allowance.

45 Mr Driver went on to observe in his discussion document that in addition to the clinical academics that he identified, including the applicant, there were several employees of the AHS holding academic status with UNSW. It was observed that these employees of the Area were not clinical academics.

46 Professor W E Glover, who, at that time was the Dean of the Faculty of Medicine, responded by letter dated 15 March 1994, to Mr Driver's discussion paper. Professor Glover observed that the purpose of the clinical duties and other allowances provided to clinical academics, is to bring the total salary more in line with that of staff specialists and that they were still well behind the visiting medical officers.

47 The evidence discloses that there were further negotiations between the Department and ASMOF regarding remuneration arrangements for clinical academics in 1998. These negotiations culminated in the Department issuing a circular dated 18 January 2000 setting out remuneration arrangements for senior medical practitioners (academics). The new remuneration arrangements were to be effective from 1 July 1998. The parties agreed that new arrangements for senior medical practitioners (academics) were not to be used as a precedent in any negotiations or industrial tribunal proceedings including conciliation and/or arbitration.

48 Arising out of negotiations concerning remuneration arrangements for clinical academics in 1998, on 2 October 1998, the Deputy Director General, Operations of the Department wrote to ASMOF setting out in a without prejudice letter the agreement reached between the parties. Paragraph 1 of that agreement was as follows:

1. Employee status - for clinical and administrative services provided to public patients in public hospitals, the Department proposes that clinical academics who are currently remunerated by Health Services under agreed arrangements with the Department and others in future who would be because they provide more than eight hours per week service to the respective Health Service, would in future be part-time employees of Health Services with fractional staff specialist appointments.

49 The remainder of the agreement was set out in this letter.

50 By letter dated 17 November 1998, ASMOF wrote to the Department advising that they agreed to the new arrangements. It is the new remuneration arrangements that are reflected in the Department's Circular dated 18 January 2000. This Circular provides that clinical academics who provide clinical and administrative services for periods greater than eight hours per week "will be classified as part-time employees with fractional staff specialist appointments. Such academics will be engaged and known as senior medical practitioners (academic)." The terms of the Department's Circular are important and I set them out in full:

File No 98/1010

Circular No 2000/3

Issued 18 January 2000

Contact Bob Hitchen [phone]

Employee Relations

REMUNERATION ARRANGEMENTS FOR SENIOR MEDICAL PRACTITIONERS (ACADEMICS)

GENERAL

1. This circular replaces all previous correspondence from the Department about clinical academics, including the letters and memoranda dated 22 December 1985, 31 August 1988, 22 November 1990, 23 June 1992, 14 February 1997 and 15 August 1997.

2. The Department and the Australian Salaried Medical Officers' Federation (NSW) have reached agreement on the remuneration arrangements that will apply to senior medical practitioners (academics). The new arrangements will be effective from the first full pay period that commenced on or after 1 July 1998.

3. The Department and the Australian Salaried Medical Officers' Federation (NSW) agree that the new arrangements for senior medical practitioners (academics) as set out in this Circular shall not be used as a precedent in any negotiations or industrial tribunal proceedings including conciliation and/or arbitration.

4. For work undertaken by senior medical practitioners (academics) in respect of public patients, the agreement with the Australian Salaried Medical Officers' Federation (NSW) provides that the Universities of New South Wales, Newcastle and Sydney will continue to provide workers compensation and public/professional liability cover. All three universities engaging senior medical practitioners (academics) have confirmed this arrangement.

5. For work undertaken in respect of private patients, health services need to sight evidence that senior medical practitioners (academics) carry adequate public liability and professional indemnity insurance.

6. Pro forma deeds of agreement between employing health services and the relevant university formalising the above arrangements in respect of workers compensation and public/professional liability cover have been developed. Once the relevant parties have signed the deed of agreement the employing health service should proceed to implement the new remuneration arrangements without delay. Health services will need to ensure that the appropriate retrospective adjustments are made.

7. Tax on retrospective adjustments should be at the senior medical practitioners (academics) current marginal tax rate. Each senior medical practitioner (academic) should be provided with a letter identifying that portion of the back-pay accrued during the last financial year, and advising the senior medical practitioner (academic) to seek professional taxation advice or to read the "Tax Pack" provisions in relation to "Income Arrears Rebate".

TRANSLATION ARRANGEMENTS

8. Those senior medical practitioners (academic) who, by the implementation of this package, would have their current level of payments from health services reduced, will enjoy a "grandparenting" of the current actual dollar payments, until increases under the above arrangements and/or the availability of salary packaging make the transition to the new arrangements beneficial. However, once an election is made by a senior medical practitioner (academic) to enter into a salary packaging arrangement there will be no return to the "grandparenting" arrangements.

9. Details of the translation arrangements are set out in the attached table. Lecturers and senior lecturers on steps 1 to 4 will be paid in the steps 1 to 5 range of the Senior Medical Practitioner pay scale. Senior lecturers on steps 5 and 6, associate professors and professors will be paid at the senior staff specialist rate.

DEFINITIONS

10. Clinical academic - a clinical academic for the purposes of this Circular is defined as a medical practitioner member of a university faculty of medicine employed by the university who holds a public hospital appointment as a Visiting Medical Practitioner and provides services for the public hospital's patients.

11. Clinical academics are required, as part of their academic appointment, to perform clinical services for public patients of public hospitals for up to 8 hours per week and in recompense for same, clinical academics receive a clinical loading from the university.

12. Senior medical practitioners (academic) - it has been agreed that clinical academics who provide clinical and administrative services to public patients in public hospitals for longer periods will be classified as part-time employees with fractional staff specialist appointments. Such academics will be engaged and known as senior medical practitioners (academic).

13. Senior medical practitioners (academic) engaged as part-time senior medical practitioners pursuant to this Circular will be engaged for 40% appointments under the Salaried Senior Medical Practitioners (State) Award. Clinical academics who provide up to 8 hours public patient work per week to health services will not be engaged as senior medical practitioners (academic). It is recognized that these academics have this work covered by their university employment.

14. For the purposes of this circular, "public hospital" shall have the same meaning as provided for in the Health Services Act 1997.

AWARD PROVISIONS

15. Except where otherwise specified, the provisions of the Salaried Senior Medical Practitioners (State) Award ("the Award"), as amended from time to time, will apply to senior medical practitioners (academic).

16. The salary for all senior medical practitioners (academic) will be set at 40% of the relevant Senior Medical Practitioner salary, including the 17.4% special allowance. This level of salary has been set by negotiation between the parties.

17. Each senior medical practitioner (academic) will have a written annual performance agreement, in accordance with the relevant provisions of the Award. It is expected that the normal duties undertaken by the senior medical practitioner (academic) would reflect the 40% appointment. The actual activities and normal duties required will be a matter for specification in the senior medical practitioner (academic) performance agreement. Any changes to existing working arrangements should be addressed in the performance agreement negotiating process.

18 Managerial allowances will be paid in accordance with the relevant provisions of the Salaried Senior Medical Practitioners (State) Award and Circular 98/5. Attention is invited to clause 8 of Circular 98/5 which provides that while senior medical practitioners are entitled to payment on a pro rata basis the employer may pay the full-time rate of the allowance where the senior medical practitioner is required to undertake the full responsibilities of the position.

19. Entitlements to annual leave, long service leave, sick leave, personal/carers leave and parental leave under the Award will be provided on a pro rata basis based on the 40% fractional appointment. Only public hospital service from 1 July 1998 shall count for leave accrual purposes. Health services will need to obtain details of leave taken by senior medical practitioners (academic) since 1 July 1998 from the relevant University and/or from each senior medical practitioner (academic).

SALARY PACKAGING

20. Salary packaging will be available to senior medical practitioners (academic) on the same basis and with the same undertakings as for staff specialists.

SUPERANNUATION

21. Superannuation at the levels set by the Commonwealth Superannuation Guarantee (Administration) Act will be payable on the remuneration provided under these arrangements. The fractional salary (including the special allowance) and the managerial allowances are to be regarded as salary for all paid leave and superannuation purposes.

22. Health services are to include in returns to the State Superannuation Authority for First State Super the employer superannuation component for senior medical practitioners (academic) on a retrospective basis to 1 July 1998 and on an ongoing basis for as long as a senior medical practitioner (academic) remains an employee of the health service.

PRIVATE PRACTICE ARRANGEMENTS

23. Appointment as a senior medical practitioner (academic) to a public hospital includes the automatic appointment of the senior medical practitioner (academic) as a Visiting Medical Practitioner. Rights of private practice arrangements for Senior Medical Practitioners as set out in Department of Health Circular 98/5 do not apply.

24. Private practice will be conducted on the same basis as at present. Senior medical practitioners (academic) will continue to retain their private billings - they will not be paid into Senior Medical Practitioner trust funds or the public hospital General Fund. No facility fees are payable by senior medical practitioners (academic).

TRAINING, EDUCATION AND STUDY LEAVE

25. Training, Education and Study Leave in accordance with the leave provided under Department of Health Circular 98/5 does not apply to senior medical practitioners (academic).

SABBATICAL LEAVE

26. Subject to appropriate arrangements being made to provide for ongoing service needs and operational requirements health services, at their discretion, may approve payment for periods of leave not exceeding two months to coincide with approved University sabbatical leave. Approval will not be unreasonably withheld. Thus, if a period of leave approved by both the University and health service exceeds two months, payment will be made by the health service for the first two months, but not for the remainder of the period of approved leave.

MISCELLANEOUS

27. Budget supplementation will be provided by Finance Branch based on standard information that will be sought from affected health services. Budget supplementation is only relevant for urban health services (excluding the Illawarra and Central Coast Area Health Services).

28. Pay codes and rates are as for the Salaried Senior Medical Practitioners (State) Award salary and special allowance codes.

29. Specific enquiries concerning the salary rates and allowances applicable should be directed to the relevant human resources personnel in the health service. Finance queries on budget supplementation and cash flows are to be directed to the health service's finance contact officer. Only human resources/finance personnel from health services are to contact the Department.

Michael Reid

Director-General

51 The deed of agreement referred to in paragraph 6 of the Circular, was entered into between the AHS and UNSW on 12 April 2000. The recitals to the deed are as follows:

A. The University employs Senior Medical Practitioners (Academic) within its Faculty of Medicine whose terms and conditions of employment with the University may include providing Services set out in this Deed in Public Hospitals under the control of the Health Service.

B. The Health Service administers Public Hospitals, and benefits from Services provided by Senior Medical Practitioners (Academic).

C. The arrangements regarding the remuneration paid by the Health Service to Senior Medical Practitioners (Academic) have been determined by the Health Administration Corporation pursuant to the Health Services Act 1997.

D. In consideration of the mutual benefits obtained by the University and the Health Service as a result of the Health Service allowing Senior Medical Practitioners (Academic) to provide Services in Public Hospitals, the University makes the following covenants contained herein.

52 The definition of senior medical practitioner contained in the deed is:

"Senior Medical Practitioner (Academic)" means a medical practitioner employed by the University in an academic position who, in addition to their on-campus duties, provides Services in one or more Public Hospitals within the course of their University employment for more than 8 hours per week".

53 The deed pursuant to cl 2.2 was said to apply to:

· each Senior Medical Practitioner (Academic) providing Services in a Public Hospital under the control of the Health Service as at the date of this Deed, notwithstanding that the Senior Medical Practitioner (Academic) was appointed in any capacity to provide such Services prior to the date of this Deed; and

· each Senior Medical Practitioner (Academic) who is appointed to provide Services in a Public Hospital under the control of the Health Service during the term of this Deed.

54 The deed then described the services provided by senior medical practitioners (academic) in public hospitals as:

(a) Clinical management and treatment of:

(i) Public Patients;

(ii) Private Patients which is associated with teaching or research;

(b) teaching and research; and

(c) other services including administrative services directly associated with the activities listed in (a) and (b) above.

55 Importantly, under the heading "Employment Status", the deed provides:

4.1 The University and the Health Service agreed that, despite any remuneration and employment arrangements made, imposed, agreed or determined by the Health Service or the Health Administration Corporation in respect of Senior Medical Practitioners (Academic), the University continues to be the employer of Senior Medical Practitioners (Academic) to whom this Deed applies whilst the Senior Medical Practitioner (Academic) is providing Services in a Public Hospital under the control of the Health Service. The University acknowledges that, in providing such Services, a Senior Medical Practitioner (Academic) is acting within the course of his or her employment with the University.

56 The effect of the new remuneration arrangements were that the various allowances that were paid to the clinical academics were replaced by a salary set at 40 percent of the relevant senior medical practitioner's salary which included a 17.4 percent special allowance.

57 The applicant's case is that at least from July 1998 the employment status of Professor Hall some how must have changed retrospectively. It is contended that an announcement was made following the agreement between ASMOF and the Department that effected a retrospective change in the contractual status between Professor Hall and the AHS and created an employment relationship. There is no evidence of anything that Professor Hall did or of what was said to him that in any way could have altered his previous position. What did change for him was that additional payments were to be made.

58 Mr Driver's evidence was that, as part of a clinical role performed by the applicant (and other clinical academics), public and private patients would be admitted to the Hospital under his care. It was necessary for the clinical academics (and staff specialists and visiting medical officers) to advise the AHS when they were to be absent from the Hospital so that arrangements could be made for clinical services to be provided for those patients who would normally be seen by the clinical academic, or patients who would come to the Hospital and require services normally provided by the clinical academic. If these arrangements were not in place, it would mean that there would be a gap in the provision of clinical services which would not be acceptable to the AHS. Normally, clinical academics or other specialist medical officers made arrangements with other practitioners with similar qualifications to provide necessary clinical services during their periods of absence. In order to ensure that there are adequate clinical services being provided to public patients at the Hospital, it is at all times necessary to have a roster system in operation to give coverage.

59 Clinical academics, staff specialists and visiting medical officers are on an on-call roster to provide the clinical services to patients who attend AHS.

60 The Evidence of Professor John Dwyer, who held the position of Clinical Program Director for Medicine and Oncology at the Prince of Wales Hospital at Randwick and the position of Professor of Medicine and Head of the School of Medicine at the University of New South Wales before his retirement, was that the statement contained in cl 23 of the January 2000 Circular reflects the wording of arrangements for "grandparented" part-time staff specialists employed under Scheme D. This was an arrangement that existed prior to the introduction of part-time staff specialist arrangements that enable specialists to be appointed as .5 full-time equivalent (FTE) employee and treat private patients within the public hospital. Professor Dwyer annexed an extract from the Department's Circular 1990/39 that describes the Scheme D arrangements in these terms:

3.4 Half-time Employment (Scheme "D")

Subject to the service requirements of the employing hospital, half-time employment is to be permitted subject to the following conditions:-

(i) employment to be 50 per cent of the full time commitment in that specialty with entitlements to pro-rata leave entitlement;

(ii) no private practice is to be undertaken during the time for which a salary is payable;

(iii) approval to operate under this scheme includes the automatic appointment of the Specialist as a Visiting Medical Practitioner. Except in the case where the initial appointment was to Scheme D, if the hospital declines to renew an appointment as a Visiting Medical Practitioner, the Specialist has the option to automatically revert to one of the full time schemes. Private practice must be conducted on the same basis as applies to Visiting Medical Practitioners;

(iv) half-time Specialists working under this scheme cannot remain at the hospital on a geographic full time basis. There must be an "outside" private practice;

(v) half-time Specialists who hold visiting practitioner appointments at hospitals other than their employing hospital, may accept sessional payments in respect of services provided to public patients at those other hospital;

(vi) where a Specialist gains approval to operate under Scheme "D" and transfers from a full time scheme, sick leave shall be subject to the following conditions:

(a) sick leave accrued at the date of transfer shall remain available

(b) while operating under Scheme D sick leave shall accrue at the normal rate of 14 calendar days per year

(c) sick leave taken while under Scheme D shall be paid for at half the full time rate of pay

(d) sick leave taken while under Scheme D shall be debited firstly against sick leave credits accrued whilst under Schedule D an then against sick leave credits accrued whilst a full time staff specialist.

(vii) If a staff specialist referred to in (vi) above subsequently transfers from Scheme D to Scheme A, Scheme B or Scheme C, sick leave accruals shall be treated as follows:

(a) Sick leave to credit at the date of transfer, which has not been utilised shall be credited to the full time staff specialist on the basis of one half day's credit for each day accrued.

(b) Sick leave to credit at the date of transfer, which accrued whilst under a previous period as a full time staff specialist, which has not been utilised, shall be credited on the basis of one day's credit for each day accrued.

(viii) For a staff specialist who transfers from Scheme D to Scheme A, Scheme B or Scheme C, sick leave accrued but not utilised, whilst under Scheme D shall be credited to the full time staff specialist on the basis of one half day's credit for each day accrued.

(ix) Specialists employed under Scheme "D" shall be entitled to the paid leave at half time rates set out in Clause 6 Conference Leave and Clause 7 Study Lease of this Circular, but, subject to Clause 8.4 Subsistence Allowance, ...

Submissions

61 There was a significant difference of principle between the parties. Mr H J Dixon SC, who appeared with Mr A Moses of counsel, for the AHS and intervening for the Health Administration Corporation ("HAC"), submitted that the applicant was excluded from obtaining any relief because he is not an employee of the AHS. Mr Dixon submitted that the applicant has been employed by UNSW and that it was a condition of his employment that he provide various services at Liverpool Hospital. The services provided by the applicant to hospital patients resulted in clinical academics being rewarded over and above their normal university salary and conditions. Mr Dixon said it was necessary to do this within the pay structures and policies of the UNSW and also the AHS, including certified agreements certified by the Australian Industrial Relations Commission binding on UNSW and its employees.

62 Mr Dixon submitted that the methods by which payments were arrived at and the amounts altered over time, culminating in the remuneration arrangements that applied to senior medical practitioners with effect from 1 July 1998. It was submitted that the process that resulted in the remuneration arrangement did not create an employer-employee relationship between the AHS and the academics including the applicant and that the agreement so reached did not alter the employment status of the applicant with the UNSW. Mr Dixon further submitted there was no mutual intention between the AHS and the applicant, by means of this arrangement, to enter into an employment relationship and the applicant was not a party to any contract of employment with the AHS. At all times, the applicant, as an employee of UNSW, was subject to the control and ultimate control of UNSW, and his position and role within the AHS was entirely dependent upon his employment with the UNSW. Counsel submitted that there was no "joint employment" established by the respondent.

63 Mr P Ginters of counsel, who appeared for the applicant, conceded that UNSW is an employer of the applicant, but submitted that, at least since 1 July 1998, the respondent had been an employer of the applicant for the purposes of the Act.

64 Mr Ginters relied on the without prejudice letter from the Department dated 2 October 1998 which stated under the heading "Employee Status" that clinical academics who are currently remunerated by the health services and provide more than eight hours per week service to their respective health service would in future be part-time employees of health services with fractional staff specialist appointments.

65 Mr Ginters submitted that the terms of the proposal were accepted by ASMOF with the agreement reached resulting in the Department's Circular dated 18 January 2000. Counsel pointed to the indicia of an employment relationship which included the reference to part-time employees of the AHS in the letter dated 2 October 1998; the applicant worked to rosters that emanated from the Office of the Director of Medicine of the AHS; that the applicant reported to and took direction from the General Manager of the AHS; the applicant saw and treated patients for and on behalf of the AHS; the applicant had access to and made use of equipment provided by the AHS; the applicant received fortnightly remuneration from the AHS from which income tax was deducted; the AHS provided the applicant with group certificates; from 1 July 1998, the AHS began making superannuation contributions on behalf of the applicant; salary packaging was made available to clinical academics such as the applicant; the applicant accrued entitlements to annual leave, long service leave, sick leave, personnel/carers leave and parental leave arising from his performing work for the AHS and in the period since 1 July 1998, if the applicant wished to take annual leave from the AHS, he was required to fill in an application for leave.

66 Mr Ginters further submitted that employment relationships in contemporary Australia are undergoing and continues to undergo evolution. Counsel submitted that the weight of evidence establishes an employment relationship between the applicant and the AHS since at least 1 July 1998 and that the Commission would be satisfied that the doctrine of joint employment is an appropriate way of characterising the relationship that existed between the UNSW, the AHS and the applicant.

Principles

67 The question, whether someone is an employee of another, has been examined in a great number of cases and the principles to be applied are not in doubt. The elements of a contract of employment are stated in Macken, O'Grady, Sappideen and Warburton’s 'The Law of Employment' (5th edition, 2002 by the Hon James Macken, Paul O’Grady, Carolyn Sappideen and Jeff Warburton) as follows:

...the law holds that before any simple contract is enforceable it must be formed so as to contain various elements. These are:

1. There must be an "intention" between the parties to create a legal relationship, the terms of which are enforceable.

2. There must be an offer by one party and its acceptance by the other.

3. The contract must be supported by valuable consideration.

4. The parties must be legally capable of making a contract.

5. The parties must genuinely consent to the terms of the contract.

6. The contract must not be rendered ineffective by reason of conduct which is illegal or contrary to public policy.

68 In relation to the first of these elements, the learned authors say (p 67):

The first element essential to the existence of any contract is the requirement that the parties have a mutual intention to create a legally enforceable bargain.

69 Both counsel referred to the following cases as being of assistance in determining whether the applicant was employed by the AHS. To my mind, these cases do not greatly assist as they focus on whether the relationship between two persons involves that of principal and independent contractor or that of employer and employee. Nevertheless, I set out the relevant passages to which the Commission's attention was directed.

70 In Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, Mason J, with whom Brennan J agreed, said at 23, 24 (omitting some citations):

The first question to determine is whether the relationship between Brodribb and Gray was one of employer and employee or one of principal and independent contractor. ...A prominent factor in determining the nature of the relationship between a person who engages another to perform work and the person so engaged is the degree of control which the former can exercise over the latter. It has been held, however, that the importance of control lies not so much in its actual exercise, although clearly that is relevant, as in the right of the employer to exercise it: Zuijs v. Wirth Bros. Pty. Ltd. (1955) 93 CLR 561, at p 571; Federal Commissioner of Taxation v. Barrett (1973) 129 CLR 395, at p 402; Humberstone v. Northern Timber Mills (1949) 79 CLR 389 at p 404. In the last-mentioned case Dixon J. said:

'The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter's order and directions.'

71 However, his Honour went to say at 24 that:

...the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this Court has been to regard it merely as one of a number of indicia which must be considered in the determination of that question. ... Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee.

72 Similarly, in that case, Wilson and Dawson JJ said at 35:

... The classic test for determining whether the relationship of master and servant exists has been one of control, the answer depending upon whether the engagement subjects the person engaged to the command of the person engaging him, not only as to what he shall do in the course of his employment but as to how he shall do it. ...The modern approach is, however, to have regard to a variety of criteria. This approach is not without its difficulties because not all of the accepted criteria provide a relevant test in all circumstances and none is conclusive. Moreover, the relationship itself remains largely undefined as a legal concept except in terms of the various criteria, the relevance of which may vary according to the circumstances.

73 In Hollis v Vabu Pty Ltd (2001) 207 CLR 21; (2001) 106 IR 80, the majority (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ) pointed to the increasing difficulty in applying the control test in more modern times. In the course of referring to the history of that test, they quoted at [43], The Liability of Employers in Damages for Personal Injury, 2nd ed (1979), pp 72 - 73:

"The control test was the product of a predominantly agricultural society. It was first devised in an age untroubled by the complexities of a modern industrial society placing its accent on the division of functions and extreme specialisation. At the time when the courts first formulated the distinction between employees and independent contractors by reference to the test of control, an employer could be expected to know as much about the job as his employee. Moreover, the employer would usually work with the employee and the test of control and supervision was then a real one to distinguish between the employee and the independent contractor. With the invention and growth of the limited liability company and the great advances of science and technology, the conditions which gave rise to the control test largely disappeared. Moreover, with the advent into industry of professional men and other occupations performing services which by their nature could not be subject to supervision, the distinction between employees and independent contractors often seemed a vague one."

74 Further, McHugh J pointed out, in that case at [71], that "The right to supervise or direct the performance of a task cannot transform into a contract of service what is in substance an independent contract ... ".

75 Hollis was a case which involved an issue of vicarious liability. There, the Court placed some emphasis on the question whether the workers in that case (bicycle couriers) were carrying on a trade or business of their own or were serving the employer in its business. Distinctions of this kind go back some time in this context. In Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at 48 (in a passage since quoted in Hollis at 39) Dixon J said, of an independent contractor, that:

"[t]he work, although done at [the principal's] request and for his benefit, is considered as the independent function of the person who undertakes it, and not as something which the person obtaining the benefit does by his representative standing in his place and, therefore, identified with him for the purpose of liability arising in the course of its performance. The independent contractor carries out his work, not as a representative but as a principal.

76 Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ, in Hollis, after considering what had been said by Dixon J, went on to say at 39:

This statement merits close attention. It indicates that employees and independent contractors perform work for the benefit of their employers and principals respectively. Thus, by itself, the circumstance that the business enterprise of a party said to be an employer is benefited by the activities of the person in question cannot be a sufficient indication that this person is an employee. However, Dixon J fixed upon the absence of representation and of identification with the alleged employer as indicative of a relationship of principal and independent contractor. These notions later were expressed positively by Windeyer J in Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210 at 217. His Honour said that the distinction between an employee and an independent contractor is "rooted fundamentally in the difference between a person who serves his employer in his, the employer's, business, and a person who carries on a trade or business of his own". In Northern Sandblasting at 366, McHugh J said:

"The rationale for excluding liability for independent contractors is that the work which the contractor has agreed to do is not done as the representative of the employer."

77 Where the parties have defined their relationship by a clause in a contract made between them, that clause will be given weight (if it is not a sham), although it will not be determinative. In Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385; (1978) 52 ALJR 406, the Privy Council said (at 389) that a term of this kind cannot be given effect if it contradicts the effect of the agreement as a whole. Their Lordships applied the following statement by Lord Denning MR in Massey v Crown Life Insurance Co [1978] 2 All ER 576 at 579 - 580:

The law, as I see it, is this: if the true relationship of the parties is that of master and servant under a contract of service, the parties cannot alter the truth of that relationship by putting a different label upon it ... On the other hand, if their relationship is ambiguous and is capable of being one or the other [that is, either service or agency], then the parties can remove that ambiguity, by the very agreement itself which they make with one another. The agreement itself then becomes the best material from which to gather the true legal relationship between them.

78 This passage was cited with approval by the Privy Council in Narich Pty Ltd v Commissioners of Pay-roll Tax (NSW) (1983) 2 NSWLR 597 at 607 (see also Building Workers' Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104 at 126).

79 In Stevens, at 37, Wilson and Dawson JJ said that "the actual terms and terminology of the contract will always be of considerable importance". More recently, in Hollis, at 45, Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ reiterated (citing R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138 at 150 - 151; Adam v Newbigging (1888) 13 App Cas 308 at 315; Ex parte Delhasse; In re Megevand (1878) 7 Ch D 511 at 526, 528, 532 and TNT Worldwide Express (NZ) Ltd v Cunningham [1993] 3 NZLR 681 at 699) that such terms are not of themselves determinative as parties cannot deem the relationship between themselves to be something it is not.

Consideration

80 In my view, the characterisation of the relationship between the applicant, UNSW and the AHS must proceed by reference to the totality of that relationship, including the position to which the applicant was appointed, the work practices imposed by the UNSW and AHS and, of course, an analysis of the terms of the contract entered into by the applicant and UNSW. A further important question is whether Professor Hall entered into a contract of employment with the AHS.

81 It is clear that the applicant has been employed by UNSW in the position of Professor of Medicine and Director, Division of Medicine, tenable at the Liverpool Hospital, within the AHS. It was this position that the applicant applied for and commenced employment in July 1991. In this position and role, the applicant was required to head the applicable clinical division within a major teaching Hospital and perform a clinical role. He was also required to provide various services in the Hospital, in particular, clinical management and treatment of public and private patients, teaching and research and other administrative services directly associated with those activities. Clearly, in performing those services, the applicant was acting within the course of his employment with UNSW.

82 At the time that the applicant was employed by UNSW, the position attracted a salary and allowances, the allowances being payable by the AHS where the services performed by the applicant in the Hospital exceeded eight hours per week. In my view, and I find, these allowances were only payable as a condition of the applicant's employment with UNSW upon the basis that he provide the various services in the Hospital.

83 Mr Ginters submitted that, as a result of the appointment by UNSW, the applicant was required to complete an application for employment with the AHS. The completion of this document needs to be seen in its proper context. There is no evidence, whatsoever, that the applicant applied for a position with the AHS. In this regard, in 2002, the applicant asserted to the Board of the AHS that he was employed by the UNSW and "all investigations into my workplace activities must be conducted by or approved by the UNSW, through the Vice-Chancellor". I will return to this evidence later in these reasons.

84 For present purposes, I accept the evidence of Mr Driver that after the applicant commenced performing clinical duties, he became entitled, in accordance with the then existing arrangements to be paid various allowances. To achieve this result, the applicant was required to complete the necessary documentation which is recorded in the human resources information system of the AHS in order to generate the payment of the allowances.

85 The applicant completed a form which was titled "Application for Employment [with] South Western Sydney Area Health Service". It is not suggested, and nor could it be, that the applicant ever applied for a position with the AHS. The documentation was completed approximately two months after the applicant had commenced performing the services. Furthermore, the evidence does not disclose that there was any offer of employment made to the applicant by the AHS.

86 The evidence discloses that the AHS had previously agreed with the UNSW that where university professorial appointments were made, that it would consider designating the appointee as head of the appropriate clinical department within the AHS, and as such would provide the appointee with appropriate support staff to undertake the relevant hospital administrative and medical duties.

87 The AHS also previously had agreed that where university appointments are made, the appointees will be accredited to the AHS as visiting medical officers (practitioners) with clinical responsibilities and duties to be defined according to the needs of the AHS and the interests of the particular academic. Such accreditation would terminate in the event that the appointee ceased to hold a university appointment.

88 Following the applicant's employment by the UNSW, he was granted the status of visiting practitioner with clinical responsibilities and duties in respect of patients treated in the Hospital.

89 Chapter 8, Pt 1 of the Health Services Act 1997 deals with visiting practitioners. Section 76 of that Act is in these terms:

76 Who is a visiting practitioner?

A visiting practitioner is a medical practitioner or dentist who is appointed by a public health organisation (otherwise than as an employee) to practise as a medical practitioner or dentist in accordance with the conditions of appointment at any of its public hospitals or health institutions, or in relation to any health service it provides, specified in the appointment.

90 It is contended by the AHS that the applicant is therefore not entitled to perform any clinical services to patients and practice as a medical practitioner unless he has been accorded visiting practitioner status in accordance with the above Act.

91 Historically, clinical academics did not receive any payments from hospitals when they provided services to hospital patients. However, it was regarded as desirable by the Department of Health that clinical academics employed by UNSW (and other academic institutions who perform services of the kind referred to above), should be rewarded over and above normal university salaries and conditions which they would receive from the University for performing clinical duties associated with the academic position held.

92 This was done within the pay structures and policies of the UNSW and also of the AHS. The applicant's employment was and continues to be regulated by the University of New South Wales (Academic Staff) Enterprise Agreement 2003, an agreement certified by the Australian Industrial Relations Commission.

93 Mr Driver's evidence is that in December 1985, the Department reached an agreement with the Public Medical Officers' Association (the predecessor to ASMOF) for the payment of an administrative allowance in respect of medical services provided in public hospitals. The agreement set out the arrangements to be applied to clinical academics who voluntarily agree to participate in the on-call roster with staff specialists.

94 On 1 November 1988, the Department wrote to the Deputy Commissioner of Taxation stating that senior clinical academics were not employees of public hospitals but of universities.

95 The payments made to clinical academics were renegotiated from time to time so as to ensure that the senior medical practitioners (academic) did not fall behind persons actually employed in the AHS and also to ensure that their benefits were continually improved.

96 It is the negotiations that occurred between the Department of Health and ASMOF in 1998 that resulted in new remuneration arrangements for senior medical practitioners (academic). It was submitted by Mr Ginters that these negotiations resulted in the applicant becoming a part-time employee of the AHS. Mr Ginters relies on a without prejudice letter dated 2 October 1998 from the Department to ASMOF which purports to set out the agreement reached between the parties in respect of the new remuneration arrangements.

97 It will be recalled that in the paragraph headed "Employee Status" in the letter it was stated "clinical academics... would in future be part-time employees of health services with fractional staff specialist appointments."

98 This purported part of the agreement however, did not find its way into the Department's Circular that reflected the remuneration agreement reached between the parties.

99 The Department's Circular of January 2000, contains under the heading "Definitions", the following:

Clinical academic - a clinical academic for the purposes of this Circular is defined as a medical practitioner member of a university faculty of medicine employed by the university who holds a public hospital appointment as a Visiting Medical Practitioner and provides services for the public hospital's patients.

100 However, the Circular goes on to state that senior medical practitioners (academic) will be classified as part-time employees and it then provides that such academics will be "engaged".

101 Reference is made in the Circular to the senior medical practitioners pay scale. This is a reference to the Salaried Senior Medical Practitioners (State) Award. It was the pay scale for senior medical practitioners (lecturer, senior lecturer, associate professor and professor) which was used to calculate the 40 percent appointments salary for clinical academics.

102 Clinical academics who provide clinical and administrative services to public patients for periods greater than eight hours per week were described as senior medical practitioners (academic) and classified as part-time employees. It is these clinical academics which were engaged as part-time senior medical practitioners who were to receive 40 percent appointments calculated on rates found in the Award. Clinical academics who provided up to eight hours public patient work were not engaged as senior medical practitioners (academic) and did not attract the 40 percent appointment. It will be recalled that these clinical academics received a university clinical loading which was paid by the UNSW.

103 The Circular provided that, except as otherwise specified, the provisions of the Salaried Senior Medical Practitioners (State) Award applied to senior medical practitioners (academic). Entitlements such as annual leave, long service leave, sick leave, personal carers leave and parental leave under the Award were to be provided on a pro-rata basis, based on the 40 percent fractional appointment. Salary packaging was also made available on the same basis as that for staff specialists. Superannuation was also payable on the remuneration provided to senior medical practitioners (academic). These entitlements were retrospective to 1 July 1998. Persons appointed as senior medical practitioners (academic) were entitled to automatic appointment as a visiting medical practitioner in accordance with s 76 of the Health Services Act. Such practitioners, it will be recalled, are appointed otherwise than as an employee.

104 In Gapes v Commercial Bank of Australia Limited (1981) 37 ALR 20, the Full Federal Court (Smithers, Evatt and Deane JJ) considered the relationship between the terms of an award and the terms of a contract of employment. In the joint judgment of Smithers and Evatt JJ at 22 - 23, their Honours referred to the observations of the then Chief Justice, Sir John Latham in Amalgamated Colleries of W.A. Ltd -v- True (1938) 59 CLR 417 at 423 - 424 where the Chief Justice stated:

When any person is employed to do work to which an award applies, the parties are bound by a contract. Their legal relations are in part determined by the contract between them and in part by the award. The award governs their relations as to all matters with which it deals

...

But an award never deals with all the matters which affect the relations of any particular employer and any particular employee. The creation of the relation of employer and employee depends upon an agreement between them and not upon any award. Thus the existence of the obligations under an award in relation to a particular employer and employee always depends on the existence of a contract between them. So, also, there are terms of their relationship which do not depend upon any award. For example, the employee must always obey the lawful orders of his employer, but awards do not commonly include a term to that effect. In my opinion, however, it is unnecessary in this case to work out in detail the basis of the relations created by employment under an award. For the purposes of this case it is sufficient to refer to what was said in a unanimous judgment of this court in Mallinson -v- Scottish Australian Investment Co. Ltd (1920) 28 CLR 66 at p.73: "Apart from the Act" (The Commonwealth Conciliation and Arbitration Act) "the right to receive wages sprang from the existence of the relationship of master and servant and the performance of services therein, and notwithstanding the Act it is still the existence of this relationship and the performance of services therein which confers on the employee the right to remuneration - all that the Act has done in this respect is to substitute another method of determining the amount of remuneration."

105 After referring to the above passage, their Honours observed at 23:

Every obligation in the award is conditional on the existence of at least, a contract of employment. But once that condition is fulfilled the award operates and governs the obligations of the parties to the extent that it deals therewith.

106 It is clear, in my view, in applying the above principles in Gapes, that the entitlement of senior medical practitioner (academic) to certain conditions set out in the Salaried Senior Medical Practitioners (State) Award does not result in the creation of a contract of employment between Professor Hall and the AHS.

107 The respondent contends that the status of the applicant has never changed and that the applicant never became an employee subject to the directions and control of the AHS as an employer.

108 It seems to me that the first element essential to the existence of any contract, that being, the requirement that the parties have a mutual intention to create a legally enforceable bargain has not been established.

109 There was no evidence that prior to the 1998 negotiations that the applicant's employment with the AHS was an issue. In my view, it is necessary to establish that an agreement was reached between the applicant and the AHS from a particular point in time, and, on known terms, and conditions which were understood by both sides, identifiable, and to which the applicant consented with mutuality of obligation, in order for the applicant to become an employee of the AHS as well as being an employee of the UNSW.

110 Neither the Department of Health, nor ASMOF are capable of entering into an employment contract on behalf of the applicant without the applicant's knowledge or consent. That the applicant was unaware that he had become an employee of the AHS from 1 July 1998, becomes clear from the terms of a letter dated 7 April 2002 from the applicant to the Chairman of the AHS' Board. The applicant had declined to participate in an enquiry initiated by the AHS into behavioural issues because, as he stated:

I am employed by UNSW to work in the South Western Clinical School. My research activities are clearly a UNSW activity. The Department of Health and ASMOF have agreed that University staff are University not Area Health Service employees.

Even the "Len Payne report" acknowledges that SWSAHS cannot get clear legal advice on my employment status at SWSAHS.

My employment at UNSW is under a legally binding enterprise agreement that, states that all investigations into my work place activities must be conducted by or approved by the UNSW, through the Vice-Chancellor. The Council of the UNSW, the equivalent of the SWSAHS board, is under this agreement unable to order an investigation of me. Only the Vice Chancellor, not the Council can discipline me.

111 So much is also acknowledged by the applicant in his affidavit evidence where he deposes:

Part of my academic appointment with UNSW was a clinical appointment in my specialty where I could perform Clinical Services.

112 In his affidavit evidence in reply, the applicant deposes that it had always been his view that he had two employers, one in relation to his teaching and research work at the University and one in relation to the clinical and administrative work that he performed for the AHS. The basis for the applicant's view appears to be what he was told by Mr Mead, an industrial officer with ASMOF.

113 Sometimes, when a dispute has arisen as to the legal nature of a relationship, the parties to the relationship will assert, in or out of court, their individual intentions or understandings on that question. For reasons that are explained in Australian Broadcasting Corporation v XIVth Commonwealth Games Limited (1988) 18 NSWLR 540 at 550, and which I shall not repeat, such assertions are usually unhelpful and legally irrelevant.

114 As part of the applicant's engagement with the UNSW, he was required to perform clinical duties as required to develop Liverpool Hospital as a teaching hospital and to promote the Department. The number of hours a clinical academic can devote to clinical work is by arrangement between the University and the AHS. The reason for this is that the University has the primary call and entitlement to determine how many hours a fulltime academic staff member will devote to university matters, for example, teaching, research and to clinical work in a hospital.

115 It was an integral part of the applicant's employment that he would provide clinical services and that he would be paid an allowance by the AHS over and above what the University paid him.

116 During the course of Mr Ginters' submissions, I raised with counsel what would occur if Professor Hall's employment was terminated by the University. In answer to this question, Mr Ginters stated that if Professor Hall lost his University employment, he would also lose his senior medical practitioner position and the academic characterisation. In my view, this was a telling concession made by Mr Ginters as it acknowledged that the ultimate right of control in respect of whether Professor Hall performs any services within the AHS depends on the University. It follows, in my view, that in such circumstances, there would be no entitlement on the part of the AHS to demand the performance of work by the applicant as an employee. That entitlement to provide the service was within the ultimate control of the University, made by an agreement between Professor Hall and the UNSW. The AHS exercised those rights.

117 Mr Ginters contended that the deed entered between the UNSW and the AHS had to be seen in its proper context. Counsel submitted that senior medical practitioners (academic) were not parties to this deed, nor was ASMOF. It was submitted that the deed does not reflect the reality of the situation. The deed is dated April 2000 with the Circular being issued on 18 January 2000.

118 In circumstances where the dispute between Professor Hall and the AHS regarding his employment status is said to have changed from the 1998 remuneration discussions, it is necessary to consider the terms of the agreement then reached. In my view, any ambiguity regarding the applicant's employment status is removed by referring to cl 6 of the Circular which provides as follows:

Pro forma deeds of agreement between employing health services and the relevant university formalising the above arrangements in respect of workers compensation and public/professional liability cover have been developed. Once the relevant parties have signed the deed of agreement the employing health service should proceed to implement the new remuneration arrangements without delay. Health services will need to ensure that the appropriate retrospective adjustments are made.

119 This clause needs to be considered together with the terms of the definition of senior medical practitioner (academic) set out in the deed which provides:

· "Senior Medical Practitioner (Academic)" means a medical practitioner employed by the University in an academic position who, in addition to their on-campus duties, provides Services in one or more Public Hospitals within the course of their University employment for more than 8 hours per week"

120 And cl 2.2 and cl 4.1 of the deed which provide:

2.2 This Deed applies to:

· each Senior Medical Practitioner (Academic) providing Services in a Public Hospital under the control of the Health Service as at the date of this Deed, notwithstanding that the Senior Medical Practitioner (Academic) was appointed in any capacity to provide such Services prior to the date of this Deed; and

· each Senior Medical Practitioner (Academic) who is appointed to provide Services in a Public Hospital under the control of the Health Service during the term of this Deed.

4.1 The University and the Health Service agreed that, despite any remuneration and employment arrangements made, imposed, agreed or determined by the Health Service or the Health Administration Corporation in respect of Senior Medical Practitioners (Academic), the University continues to be the employer of Senior Medical Practitioners (Academic) to whom this Deed applies whilst the Senior Medical Practitioner (Academic) is providing Services in a Public Hospital under the control of the Health Service. The University acknowledges that, in providing such Services, a Senior Medical Practitioner (Academic) is acting within the course of his or her employment with the University.

121 In Ex parte Robert John Pty Ltd; Re Fostars Shoes Pty Ltd [1963] SR (NSW) 260, Sugarman J determined whether a deed of licence between the parties presented their relationship being that or as landlord and tenant. At 269 His Honour said:

...it is not necessary to go so far as to find the document a sham. It is simply of finding the true relationship of the parties.

122 And later at 272 his Honour stated:

In determining whether the Fair Rents Board had jurisdiction... it is necessary to have regard to the real character of the relationship of the parties if this be found, as their relations worked out in fact, to have differed from the relationship which might be taken as intended to be constituted by the deed of licence if considered alone.

123 In Damevski v Guidice, the President of the Australian Industrial Relations Commission & others (2003) 202 ALR 494, Marshall J cited the comments of Lord Mummery in Franks v Reuters Ltd and First Resort Employment Ltd (2003) EWCA Civ 417 (unreported, Supreme Court of Judicature Court of Appeal (Civil Division), President, Lord Justice Thorpe and Lord Justice Mummery, 10 April 2003) where Lord Mummery said:

Drawing a line between those who are employees (and so have statutory employment rights) and those who are not entitled to statutory employment protection has become more, rather than less, difficult as work relations in and away from the workplace have become more complex and diverse. This development makes it all the more important that the employment tribunal, as the tribunal of fact, should consider all the relevant evidence about the dynamics of the work relationship between the person claiming to be an employee and the putative employer.

124 The Circular noted that, for work undertaken by senior medical practitioners (academic) in respect of public patients, the agreement with ASMOF provided that the Universities of New South Wales, Newcastle and Sydney would continue to provide workers' compensation and public/professional liability cover. Pro forma deeds of agreement formalising this arrangement were developed. Once the deed of agreement had been signed, the employing health services were directed to implement the new remuneration arrangements. This appears to be the context in which the UNSW was agreeing to how its employees were to be treated in the future.

125 In my view, the terms of the deed which is dated later in time to the circular, and which I have set out earlier in these reasons, runs counter to all the indicia which point to an employment relationship being created as between the AHS and the applicant on and from 1 July 1998.

126 In addressing this issue, Mr Ginters referred to Re Porter; Re Transport Workers Union of Australia (1989) 34 IR 179 at 184 where Gray J considered in the context of an election inquiry whether certain persons who owned trucks were employees or independent contractors. His Honour observed at 184:

...the parties cannot create something which has every feature of a rooster, but call it a duck and insist that everybody else recognise it as a duck.

127 Mr Ginters submitted that effective from July 1998, the AHS and the Department gave the applicant white feathers and webbed feet and called him a duck. When the applicant agrees that he is a duck, the AHS says they have created a rooster.

128 To my mind, cases dealing with the determination of whether persons are employees or independent contractors are of limited assistance in this matter as the issue for determination is whether there exists a contract of employment between Professor Hall and the AHS. Similarly, Mr Ginters' reliance on R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd, does not take the matter further.

129 In my view, the terms of the deed bind Professor Hall and any other senior medical practitioner (academic) employed by UNSW.

130 It follows, in my view, that there was no intention on behalf of Professor Hall and the AHS to enter into an employment relationship, but rather not to disturb the existing employment relationship between Professor Hall and UNSW.

131 The applicant also relied upon a circular distributed by the Department in March 2005 entitled "Appointment of Visiting Practitioners: Policy for Implementation". This document refers to conjoint appointments. It provides as follows:

A conjoint appointment arises in two circumstances. First, a staff specialist or visiting practitioner at a public health organisation may be granted an academic appointment at a tertiary education institution. In this circumstance, the academic appointment arises from the appointment at a public health organisation. Where the initial appointment to the organisation is as a visiting practitioner, (which I understand to be the case here) the appointment is made in accordance with the standard visiting practitioner appointment process.

Second, a person may be granted an appointment at a public health organisation that is to be held as part of his or her teaching duties as a tertiary education institution. In this instance, the appointment is as either a clinical academic or a Senior Medical Practitioner (Academic).

132 The applicant would fall within the second category of conjoint appointments.

133 Under the heading "Senior Medical Practitioner (Academic)" within the March 2005 circular, the following appears:

The category of Senior Medical Practitioner (SMP (Academic)) refers to those medical practitioners who are employees of a university faculty of medicine who provide services to public patients in public hospitals for longer periods than eight hours per week. SMPs (Academic) are classified as fractional staff specialist appointments of the public health organisation. Department Circular 00/3 (the 1998 agreement) sets out the arrangements for SMPs (Academic).

These appointment policies and guidelines do not apply to SMPs (Academic) for the purpose of their public patient services. However, where the public health organisation decides to grant SMPs (Academic) admitting rights (with clinical privileges) to treat private patients, they will be required to hold appointments as visiting practitioners. To this extent, SMPs (Academic) who have rights of private practice will have dual appointments: as employees on fractional arrangements and as visiting practitioners for private patients.

134 Professor Dwyer's evidence was that the wording used in the January 2000 Circular to describe senior medical practitioners (academic) was the same as that reflected in the Department's Circular 1990/39 which outlined in Scheme D arrangements for "grand parented" part-time staff specialists, because he contended they are also part time employees who are entitled to treat private patients within public hospitals.

135 It seems to me that the concept of dual appointment, where the applicant is appointed as a visiting practitioner pursuant to s 76 of the Health Services Act and therefore not as an employee, cannot sit with the contention by the applicant that the effect of the 1998 remuneration agreement was to make him an employee of the AHS without the existence of any evidence that Professor Hall was aware that he was entering into an employment contract with the Department or AHS. An analysis of the conduct of the parties reveals no intention on the part of Professor Hall or the AHS to enter into a contract.

136 Furthermore, the terms of the deed of agreement entered into between the AHS and the UNSW on 12 April 2000 clearly refers to Senior Medical Practitioner (Academic) being employed by the University "in an academic position who, in addition to their on-campus duties, provides Services in one or more Public Hospitals within the course of their University employment for more than eight hours per week."

137 The effect of appointing such academics as visiting practitioners, triggers s 76 of the Health Services Act which deprives the academic of employee status with a public health organisation.

138 The January 2000 Circular also provided that Area Health Services are to include in returns to the State Superannuation Authority for First State Super the employer superannuation component for senior medical practitioners (academic) on a retrospective basis to 1 July 1998 and on an ongoing basis for as long as a senior medical practitioner (academic) remains an "employee" of the health service.

139 Counsel for the applicant also relied upon the ability of the applicant to engage in a salary packaging arrangement with the AHS. Such arrangements arise pursuant to the Fringe Benefits Tax Assessment Act 1986 (Cth) ("the FBTA Act"). Section 57A contains numerous references to the fact that benefits provided by public benevolent institutions (for example a public hospital) to their employees in respect of their employment are exempt benefits. Section 136 of the FBTA Act includes a definition of employee and employer. In respect of employee, it is stated to mean a current employee; a future employee or a former employee. Similarly, employer means a current employer; a future employer; a former employer. Salary or wage is defined to mean a payment from which an amount must be withheld (even if the amount is not withheld) under a provision in Sch 1 to the Taxation Administration Act 1953 listed in the table, to the extent that the payment is assessable income. It seems to me that little assistance can be gained from the definitions I have extracted from the FBTA Act. However, when read in the context of the Department's Circular that provides for salaried packaging arrangements, it seems to me to point more in the direction of an employment indicia but does not overcome the fundamental hurdle of there being a lack of an agreement between Professor Hall and the AHS.

140 It was submitted on behalf of the AHS that it is not open to third parties to create an employment relationship between two persons who stand in a different relationship. I am persuaded that that is the position that exists here. Negotiations were conducted by the applicant's industrial union of employees with the Department where they sought an improvement in clinical academics' salaries and conditions of engagement at a time when such persons were employed by the UNSW. It is not possible, in my view, to transform a relationship which is not one of employer/employee into one by the application of labels, or by describing the relationship as one of employment, or by saying what would in future apply without satisfying the various elements essential to the existence of a contract.

141 The agreement that was reached between ASMOF and the Department of Health in 1998 was in respect of the remuneration arrangements that would apply to senior medical practitioners (academic) and others with effect from 1 July 1998. These remuneration arrangements, used as a reference point the payment structure for staff (employees) classified as part time employees with fractional staff specialist appointments. This was a means of setting higher rates and other benefits by reference to terms and conditions applicable to staff specialists' appointments whose terms and conditions were covered by the Salaried Senior Medical Practitioners (State) Award.

142 The arrangements so reached did not alter the employment status of the applicant with UNSW. Indeed, the arrangements required the agreement of the universities and in a separate deed entered into between the Health Service and the UNSW, the University acknowledged that it continued to be the relevant employer whilst its academics were providing services in a public hospital under the control of the health services and that in providing such services, the senior medical practitioner was acting within the course of his or her employment with the University.

143 The remuneration arrangements so introduced, in my view, did not convert the relationship between the applicant and the AHS into an employment relationship.

144 There is no evidence of any intention between the AHS and the applicant, by means of this arrangement, to enter into an employment relationship. The applicant was not a party to any contract of employment with the AHS. It was common ground that no written contract of employment exists between the applicant and the AHS. This leads to the necessity of examining the conduct of the parties for the purpose of ascertaining their common intention as to the terms on which they were contracting with one another. In the absence of an assertion that a contract was varied after it was originally made, its meaning and effect must be determined as at the time it was entered: Connelly v Wells (1994) 55 IR 73 at [73] - [74] per Gleeson CJ and Knowles v Anglican Church Property Trust, Diocese of Bathurst (1999) 89 IR 47 at [78] - [79].

145 I have already found that the contract initially entered into by the applicant was with UNSW. I have rejected the contention that this contract was varied in 1998 to make Professor Hall an employee of the AHS.

146 Although there is no evidence of an express contract between the applicant and the AHS, Mr Ginters submitted there is a contract which could be implied to exist based on the conduct of the parties. Mr Ginters referred the Commission to Damevski v Guidice where Marshall J (with whom Wilcox and Merkel JJ agreed in separate judgments) at [82] stated:

Although contracts are not to be implied lightly, the court may find exceptions to the general rule concerning express intentions. The court may imply a contract by concluding that the parties intended to create contractual relations after examining extrinsic evidence, including what the parties said and did: see Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309; Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council [1990] 3 All ER 25 at 31 per Bingham LJ and Orion Insurance Co Plc v Sphere Drake Insurance Plc [1990] 1 Lloyd's Rep 465 at 492 - 4 per Hirst J.

147 The applicant contends in this case that the rights and entitlements were created by the January 2000 Circular.

148 Marshall J went on to refer to the exposition of the case law relating to the formation of contract by Heydon JA in Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 at 178 where Heydon JA said:

One further observation of McHugh JA in Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (at 11,117) is relevant:

"... it is an error ‘to suppose that merely because something has been done then there is therefore some contract in existence which has thereby been executed’ ... Nevertheless, a contract may be inferred from the acts and conduct of parties as well as or in the absence of their words ... The question in this class of case is whether the conduct of the parties, viewed in the light of the surrounding circumstances shows a tacit understanding or agreement. The conduct of the parties, however, must be capable of proving all the essential elements of an express contract ..."

See also, to the same effect, Pagnan SpA v Feed Products Ltd [1987] 2 Lloyd’s Rep 601 at 611 (affirmed on appeal (at 615)).

149 The difficulty I have with implying a contract of employment with the AHS is that I am not persuaded, for the reasons already given, that the conduct of the parties establishes that all the essential elements of a contract can be made out. Furthermore, as I had already observed, in 2002, Professor Hall specifically eschewed the existence of a contract with the AHS emphasising he was employed by the UNSW.

150 In Abdalla v Viewdaze Pty Ltd (2003) 53 ATR 30, a decision of the Full Bench of the Australian Industrial Relations Commission, it was observed the terms and terminology of the contract are always important and must be considered. However, in doing so, it should be borne in mind that parties cannot alter the true nature of their relationship by putting a different label on it. In particular, an express term that the worker is an independent contractor cannot take effect according to its terms if it contradicts the effect of the terms of the contract as a whole: that is, the parties cannot deem the relationship between themselves to be something it is not. Similarly, subsequent conduct of the parties may demonstrate that the relationship has a character contrary to the terms of the contract. If, after considering all other matters, the relationship is ambiguous and is capable of being one or the other, then the parties can remove that ambiguity by the very agreement itself which they are making with one another.

151 In my view, and I find, although the applicant was required to work to rosters; report to and ultimately take some directions from the General Manager of the AHS; that taxation was deducted and that there were arrangements in place for dealing with absences from hospitals and that various types of leave were made available, no reliable conclusion as to an employment relationship between the applicant and the AHS can be drawn from the existence of such matters. There may have been many elements of this matter which may have been relevant for consideration under s 106 of the Act, however, no application has been brought under this section.

152 In my view, at all times, the applicant was, and continues to be, an employee of the UNSW. The applicant is subject to the control and ultimate control of UNSW in his position and role within the AHS. The applicant was entirely dependent upon his employment with the UNSW to maintain his role with the Hospital/AHS. In the event that the UNSW terminated the applicant's employment, in my view, the applicant would be unable to maintain carrying out his duties at Liverpool Hospital. The requirement to carry out such duties at Liverpool Hospital was a component of the duties that the applicant was required, by the UNSW, his employer, to carry out. The AHS did not have the ability to bring the employment of the applicant with UNSW to a conclusion. This power resides solely with the applicant's employer, the UNSW. It is also debatable whether the AHS had the power to preclude the applicant from providing services to it, however, in light of the decision that I have reached, it is not necessary to decide this issue.

153 The AHS submitted that the question to be determined here is a jurisdictional fact which is required to be objectively established. It was submitted that there is, in the light of the evidence, a serious question as to whether the Commission will be in a position to determine the issue at a preliminary stage without the evidence being tested and relevant findings being made. In my view, consistent with the principles in Nagle v Tilburg (1993) 51 IR 8, and noting there was no significant demur from the parties, the proceedings are at an appropriate stage to determine this issue.

Conclusion

154 Accordingly, for the reasons set out, I determine that Professor Hall is excluded from obtaining relief pursuant to ch 2 of Pt 6 of the Industrial Relations Act 1996 because he is not an employee of the Sydney South West Area Health Service.

Order

155 The application for relief from unfair dismissal by Professor Hall is dismissed.

LAST UPDATED: 28/03/2006