Hossack v State of New South Wales

[2025] NSWIC 1

Industrial Court

New South Wales

Medium Neutral Citation:

Hossack v State of New South Wales [2025] NSWIC 1

Hearing dates:

14 February 2025

Date of orders:

28 February 2025

Decision date:

28 February 2025

Before:

Paingakulam J, Deputy President

Decision:

The respondents’ Notice of Motion is dismissed

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — contract — terms — unfair contract — interlocutory application — jurisdiction — remuneration cap — whether certain monies formed part of employee’s “remuneration package” — definition of “payable or receivable” — monies paid in error not part of “remuneration package” — training, education and study leave reimbursement not part of “remuneration package”

Legislation Cited:

Industrial Relations Act 1996 (NSW)

Industrial Relations Commission Rules 2022 (NSW)

Interpretation Act 1987 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Austeck Pty Ltd v Atsalos (2003) 128 IR 141; [2003] NSWIRComm 290

Commander Australia Limited v Kerr (2004) 134 IR 160; [2004] NSWIRComm 74

Downe v Sydney West Area Health Service (2006) 161 IR 250; [2006] NSWSC 1416

Downe v Sydney West Area Health Service (No 2) (2008) 71 NSWLR 633; [2008] NSWSC 159

Hobson v Murrin Murrin Operations Pty Ltd [2025] FWC 157

Shead v Summit Western Pty Ltd (t/a Blacktown Mitsubishi) (1998) 81 IR 347; [1998] NSWIRComm 377

Zoran Lozevski v Goodman Fielder Consumer Foods Pty Ltd (2004) 144 IR 28; [2004] NSWIRComm 314

Category:

Procedural rulings

Parties:

Tania Anne Hossack (Applicant)
State of New South Wales (First Respondent)
Western Sydney Local Health District (Second Respondent)

Representation:

Counsel:
AB Gotting SC (Applicant)
D Fuller (Respondents)

Solicitors:
Toomey Pegg (Applicant)
MinterEllison (Respondents)

File Number(s):

2024/338566

Publication restriction:

Nil

JUDGMENT

1. Dr Hossack has commenced proceedings pursuant to s 106(1) of the Industrial Relations Act 1996 (NSW) (IR Act) seeking declarations that her contract with the first respondent and various related conditions or collateral arrangements with the first and/or second respondents were unfair. In addition, Dr Hossack seeks declarations that findings made by the second respondent in investigations into her work performance were invalid due to a lack of reasonable fairness or unreasonableness. Dr Hossack seeks orders varying her contract and related conditions or collateral arrangements, together with compensation in respect of each of them. She also seeks her costs incidental to the proceedings and such further orders as the Court considers just in the circumstances of the case.

2. In a Motion filed on 6 January 2025, the respondents seek orders dismissing the proceedings for want of jurisdiction pursuant to r 3.1(3)(b) of the Industrial Relations Commission Rules 2022 (NSW), r 13.4(1)(b) or (c) of the Uniform Civil Procedure Rules 2005 (NSW) or in the Court’s inherent jurisdiction, together with an order that Dr Hossack pay their costs of the proceedings. In addition, the respondents seek such further orders as the Court considers appropriate. The respondents contend that Dr Hossack is not entitled to make a claim under s 106 of the IR Act because her remuneration package exceeds the remuneration cap applicable to that provision.

Background

3. Dr Hossack is a surgeon specialising in urology. In about January 2013, she entered into a contract with the first respondent as a 0.6 full time equivalent staff specialist at Westmead and Blacktown Hospitals and was paid in accordance with the Staff Specialists (State) Award 2011 (Award) and Staff Specialists Determination 2010 (Determination). In addition, she works two days per week in the private health system as a surgeon.

4. Dr Hossack’s claim concerns robotic credentialling at Westmead Hospital and the use of robotic equipment installed by the second respondent at Westmead Hospital in or about March 2019. In addition, Dr Hossack’s claim concerns decisions made by the second respondent in May 2022 to investigate three of Dr Hossack’s surgical cases, the conduct and findings of those investigations and the related withdrawal of her clinical privileges at Westmead Hospital in April 2023.

Legislative framework

5. Section 106(1) of the IR Act provides as follows:

106 Power of Commission to declare contracts void or varied

(1) The Commission may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the Commission finds that the contract is an unfair contract.

…

6. Section 108A(1)(a) of the IR Act restricts the circumstances in which a s 106(1) application can be made through the imposition of a “remuneration cap”:

108A Employment contracts in respect of which applications cannot be made

(1) An application cannot be made for an order under this Division if the application relates to a contract of employment under which—

(a) a remuneration package that exceeds the remuneration cap is paid or received (or is payable or receivable) during the period of 12 months immediately before the application is made (or, if the application concerned relates to a contract that has been terminated, immediately before the termination), or

…

7. The following definitions in s 108A(3) inform the operation of that provision:

contract of employment means any contract or arrangement under which work is done by a person in the capacity of an employee, and includes a related condition or collateral arrangement with respect to such a contract.

employment benefit means a benefit provided to an employee at the cost of his or her employer (being a benefit of a private nature) and, without limitation, includes—

(a) contributions payable to a superannuation scheme by an employer in respect of the employee, including any liability of that employer to make any such contributions or to pay costs associated with that scheme, or

(b) the provision by an employer of a motor vehicle for private use by the employee, or

(c) any other benefit prescribed by the regulations for the purposes of this definition.

monetary remuneration includes any performance-related bonus or incentive payment.

remuneration cap means—

(a) $200,000, except as provided by paragraph (b), or

(b) any greater amount prescribed by the regulations (being a regulation that increases the amount by reference to increases in the amount referred to in section 83(1)(b)).

remuneration package means the total value of monetary remuneration and employment benefits payable or receivable under a contract of employment.

8. There is no prescription in the regulations regarding the definition of “remuneration cap”, meaning it remains $200,000.

Respondents’ submissions

9. The respondents submitted that the application related to a contract of employment under which a remuneration package exceeding the remuneration cap of $200,000 was paid or received during the previous 12 months. Accordingly, s 108A(1)(a) of the IR Act served as a bar to the making of the application.

10. The respondents acknowledged the decision of Rothman J in Downe v Sydney West Area Health Service (No 2) (2008) 71 NSWLR 633; [2008] NSWSC 159 (Downe (No 2)), in which his Honour held that, ordinarily, a “contract of employment” within the meaning of s 108A(3) does not include a statute, award or other industrial instrument, and payments made pursuant to such instruments could not be described as being made “under” a contract of employment as they “do not depend upon any contract or arrangement or meeting of minds” of the parties: at [269].

11. However, the respondents also drew the Court’s attention to an interlocutory judgment in the same matter: Downe v Sydney West Area Health Service (2006) 161 IR 250; [2006] NSWSC 1416 (Downe (No 1)), in which Rothman J stated at [44] that the situation may be different if there are “express provisions of the contract of employment that require the benefits otherwise provided by statute or award to be paid”. The respondents noted that in Downe (No 2), Rothman J expressly continued to rely on his reasons in Downe (No 1): Downe (No 2) at [282].

12. The respondents argued that there was a “coherent justification” for applying
    s 108A differently where a term of a contract of employment mandates compliance with a statute, award or other document. In such cases, the concurrent but discrete legal obligation imposed by the contract is enforced differently to the statutory obligation, and its breach has different consequences. The respondents therefore contended that entitlements or the provision of employment benefits conferred by statute, an award or some other instrument form part of an employee’s remuneration package and should be considered in determining whether that remuneration package exceeds the remuneration cap imposed by s 108A of the IR Act.

13. The respondents relied on the following term of Dr Hossack’s contract (the Accordance Term) as incorporating an obligation that she be paid in accordance with the Award and the Determination, as varied or replaced from time to time:

“The conditions of appointment and acceptance of the position are listed below:

Conditions of Appointment as a Staff Specialist

The salary and conditions of this appointment are in accordance with the Staff Specialists (State) Award 2011 and the Staff Specialists Determination 2010.”

14. In support of this conclusion, the respondents pointed to other terms in Dr Hossack’s contract that “refer to and are facilitative of” rights and obligations found in the Award and Determination. Moreover, as the Determination was said not to be enforceable under statute, the respondents considered its inclusion in Dr Hossack’s contract as granting her rights to enforce it not otherwise available to her. In those circumstances, the respondent contended that remuneration and other benefits referred to in the Award and Determination must be counted towards Dr Hossack’s remuneration package under s 108A.

15. Consequently, the respondents submitted that Dr Hossack’s remuneration package, being $218,728.44, exceeded the remuneration cap enacted in s 108A(1)(a) of the IR Act, preventing her from making the subject application. In that regard, they relied on the affidavit of Swetha Chowdavarapu, Acting Director of Industrial and Employee Relations for the Western Sydney Local Health District (WSLHD), affirmed 23 December 2024, which set out the elements of Dr Hossack’s remuneration package as follows:

1. “Base salary” of $138,178.59;

2. “Special allowance” of $24,043.06;

3. “Rights of private practice” (ROPP) payment of $40,731.68; and

4. “Training, education and study leave” (TESL) payment of $15,775.10.

16. In the alternative, the respondents submitted that the Court should not follow Downe (No 2), but instead find that the Award and Determination formed part of Dr Hossack’s “contract of employment” within the expanded definition of that phrase in s 108A(3), and therefore that the amounts paid under them counted towards her remuneration package regardless of whether they were also conferred under her legal contract. The respondents submitted that both the Award and the Determination were arrangements of conditions in accordance with which staff specialists employed by WSLHD performed work. Alternatively, the conditions within the Award and Determination were related conditions to Dr Hossack’s employment contract because they were engaged by Dr Hossack being employed under that contract and regulated the performance of work pursuant to it.

17. The respondents submitted that the statutory enforceability of the Award as an industrial instrument does not preclude it from forming part of the contract of employment as defined in s 108A(3). Indeed, the respondents submitted that the express exclusion of industrial instruments from the definition of “contract” in s 105(1) but not from the definition of “contract of employment” in s 108A(3), was a strong indication that remuneration payable under industrial instruments could be included in an employee’s remuneration package for the purposes of s 108A.

Applicant’s submissions

Remuneration not payable under a contract of employment

18. Dr Hossack’s primary submission was that her “remuneration package” for the purpose of s 108A was nil, as her monetary remuneration and employment benefits were not payable or receivable under a “contract of employment”. Rather, they were payable and receivable under an award and a determination made by the Health Secretary. Dr Hossack submitted that, as a matter of ordinary language, remuneration is payable or a benefit is receivable “under a contract of employment” for the purposes of s 108A if the remuneration or benefit is in accordance with or derives from the contract of employment, or is conferred, altered or otherwise affected by the contract of employment.

19. Alongside text and purpose, Dr Hossack stressed the legislative context of
    s 108A(3) as sitting within Part 9 of Chapter 2 of the IR Act, which is titled “Unfair Contracts”. Dr Hossack noted that “contract” is defined in Division 1 of Part 9 as excluding an “industrial instrument” (which includes an award: s 8 IR Act). Moreover, Division 1 of Part 9 also defines an “unfair contract” as a contract that, among other things, is designed to “avoid the provisions of an industrial instrument”. Dr Hossack stated that the IR Act as a whole is premised on a distinction between a contract of employment and an industrial instrument. Dr Hossack contended that this context indicates that remuneration or benefits could be paid from various sources, but the exclusion operates only in respect of remuneration or a benefit payable or receivable in accordance with, derived from or conferred, altered or otherwise affected by, the contract of employment.

20. Dr Hossack submitted that case law supports this conclusion. She highlighted that in Downe (No 2), Rothman J held that the payment of a salary under an award and the making of superannuation contributions pursuant to statute are not payments “under a contract of employment” for the purposes of s 108A. She submitted that the reasoning of Rothman J in Downe (No 2) is plainly correct and should be followed. Dr Hossack further noted that no amendment has been made to s 108A since Rothman J’s decision, and that this indicates acceptance of his Honour’s reasoning in a context in which Parliament has made many recent amendments to the IR Act.

21. Dr Hossack accepted that her salary, allowances, and ROPP payments are all “monetary remuneration” for the purposes of a “remuneration package” under
    s 108A. However, she submitted that her salary was paid under the Award and Determination, her allowances and ROPP payments were paid under the Determination, and that each of these payments were enforceable pursuant to statute.

22. Further, Dr Hossack submitted that the Accordance Term did not have the effect of conferring a contractual entitlement to the payments or benefits specified in the Award or Determination because:

1. The text neither purported to confer, nor had the effect of conferring, a right to payment of the salary and conditions stipulated by the Award and Determination. Rather, the object of the Accordance Term was to provide information on the independent source of entitlement to salary conditions.

2. There was no term in the employment contract incorporating the Award or Determination by reference into the contract. There was no express incorporation of them nor any acknowledgement of or undertaking by Dr Hossack to comply with the Award, and no suggestion of disciplinary action being taken against her if there was non-compliance.

3. The object of the contract was not to specify remuneration; the Award and Determination specified remuneration.

23. Dr Hossack noted the exclusion of “industrial instrument” from the definition of “contract” in s 105 and the inherent unlikelihood that it would then be included in the definition of “contract of employment” in s 108A. Further, given the distinction made between a contract of employment and an industrial instrument in the IR Act more generally, it would have expressly included “industrial instrument” together with an “arrangement”, a “related condition” and a “collateral arrangement” had there been an intention to include the terms of an award as part of the definition of a “contract of employment.”

Monetary remuneration is below remuneration cap

24. Alternatively, Dr Hossack submitted that her total monetary remuneration was, at most, $198,816.53 (comprising salary and allowances of $158,084.85 and ROPP payments of $40,731.68), which fell below the remuneration cap set out in s 108A(1)(a). In so doing, she relied on the evidence in her affidavit, affirmed on 30 January 2025, to make the following submissions:

1. First, Dr Hossack stated that she was incorrectly paid for four days in 2024, which she was in the process of rectifying. Dr Hossack stated that she had worked in Broken Hill on the four days in question and gave evidence of having applied for leave without pay (LWOP) in respect of them. The remuneration attributable to those four days was $4,136.80. At hearing, Dr Hossack provided evidence of having repaid the $4,136.80 to her employer on the previous day.

2. Second, Dr Hossack submitted that her TESL payments of $15,775.10 were for the reimbursement of work-related expenses (costs associated with attending an overseas conference and the purchase of a work-related mobile phone), and thus did not constitute “monetary remuneration” or “employment benefits” for the purposes of s 108A.

Premature determination

25. Finally, Dr Hossack asked the Court to independently dismiss the Notice of Motion on the basis that its determination at this point is premature because:

1. There are factual disputes relating to the “monetary remuneration”;

2. There is insufficient material relating to some of the contracts and arrangements that form part of the contract of employment;

3. There are a series of disputed questions of characterisation (including in relation to TESL payments); and

4. The respondent has not clearly and finally demonstrated that there is a lack of jurisdiction.

The parties’ submissions at hearing regarding the applicant’s alternative argument

26. At hearing, Dr Hossack indicated that her submission that it was premature to determine what was in issue related only to the primary argument that payments made to her pursuant to the Award and the Determination were not made under a contract of employment. Dr Hossack joined with the respondents in submitting that I should first determine whether the salary payment which she had repaid to her employer and the TESL payments that she received formed part of her remuneration package for the purposes of s 108A. It was common ground that if I determined that they were not, then the respondents’ Motion could not succeed.

Salary overpayment

27. The respondents noted that the income attributed to the four-day period when Dr Hossack stated that she was working at Broken Hill (and therefore was not entitled to be paid by WSLHD) was just sufficient to bring her salary below the level of the remuneration cap. The respondents accepted that, for the purposes of the Motion, that evidence should be taken at face value. They submitted that the payment was not a miscalculation or incorrect payment by the District. This was because Dr Hossack was paid an annual salary for her work rather than being paid at an hourly rate, on the basis that she was working the hours that she was obliged to work under her contract. The respondents contended that Dr Hossack’s failure to meet that obligation could not mean that the payments made to her in respect of the days where she was absent ceased to be amounts paid to her under her contract of employment for the purposes of s 108A. The fact of the LWOP was submitted to be of no relevance, particularly as it was not sought and granted until after the relevant 12-month period.

28. In the alternative, the respondents submitted that s 108A goes to monies paid or received or payable or receivable in the previous 12 months. It was submitted that the inclusion of the words “payable or receivable” was directed at an employee’s entitlements over the preceding 12 months if a contract had run its ordinary course in order to capture the circumstance that an employee does not work or is not paid in the ordinary way contemplated by their contract in the relevant year. The respondent submitted that if the words “payable or receivable” depended on monies actually being received, they would add nothing to the definition of “remuneration package”.

27. This approach was said to be consistent with the approach taken in the federal unfair dismissal jurisdiction in the context of the high income threshold where the relevant question is an employee’s entitlement at the date of dismissal: Hobson v Murrin Murrin Operations Pty Ltd [2025] FWC 157 per Deputy President Roberts at [17]–[24].

28. Dr Hossack asserted that the definition of “remuneration package” is remuneration or benefits “payable or receivable under a contract of employment” and that monies paid in error, or where there is no entitlement to them, are not payable or receivable for the purposes of s 108A. Dr Hossack submitted that the relevant question is whether there is an entitlement for the amount to be paid under the relevant instrument. She further submitted that there may be occasions where an amount, such as a bonus, is payable but not in fact paid.

TESL payments

31. For the purposes of the Motion, the respondents did not press the reimbursement paid to Dr Hossack for her iPhone as part of her remuneration package. Accordingly, only the reimbursement which Dr Hossack received for costs associated with attending the overseas conference was in issue. The respondents noted that the TESL payments received by Dr Hossack also consisted of leave, which was not challenged.

32. The respondents submitted that as the leave formed part of Dr Hossack’s remuneration package, the funding for expenses associated with that paid leave should also be included. The respondents likened the payments to an allowance or loading that an employee can use to pay expenses while on annual leave. It was submitted that there was no question that a benefit of that kind would be an employment benefit within the meaning of s 108A. Further, it was said that excluding the payment because it was a reimbursement rather than an allowance would amount to acting on form over substance.

33. The respondents accepted that the TESL payments provided a benefit to the employer but submitted that this did not prevent them also providing a benefit of a private nature that Dr Hossack was able to enjoy outside of work. The reimbursement of the expenses was said to be a benefit of a private nature because Dr Hossack would otherwise have had to pay those expenses herself. Further, the training, education and study, including professional development, were said to provide a benefit that Dr Hossack was able to enjoy outside of work, in that she could use it to build up her knowledge and skills or further her professional goals.

34. Dr Hossack pointed to the process in place to make a reimbursement claim for the iPhone, which was expressly stated to be the property of the second respondent, and the process to make a reimbursement claim for expenses associated with attending an overseas conference. In each case, Dr Hossack was required to obtain a quote and make an application for approval of the funding. If the claim was approved, the funds were reimbursed to her once expended.

35. Dr Hossack also submitted that little could be gained from authorities concerning legislative provisions in a different context concerning the meaning of a remuneration package. She submitted that the term “benefit” usually signals advantage or gain, and that a reimbursement was a neutral outcome, so that no benefit attached.

36. In reply, the respondents noted four matters concerning TESL payments. First, all staff specialists have an allocation of funds upon which they can draw for purposes within scope and which is part of a funding entitlement. Second, employees need to apply in advance and get leave approved for TESL as they do for annual leave. Third, the distinction between a reimbursement and a benefit is a false dichotomy. There is a benefit to the employee because they would otherwise have to pay the expense themselves. Fourth, TESL was said to be quite different from a continuing professional development (CPD) conference which an employer might provide or outsource because:

1. There is no funding allocation for employees to attend CPD seminars;

2. Going to a conference in Europe and having airfares and accommodation paid is quite a different thing to attending a CPD seminar;

3. Having an employer pay for an employee to attend a CPD seminar is an employment benefit;

4. Dr Hossack accepted that the leave component was an employment benefit, so the reimbursement of associated expenses was also an employment benefit; and

5. The obligation for Dr Hossack to attend training to maintain professional registration was a private benefit because under her employment contract she was required to maintain her professional registration.

Consideration

Does the salary payment made to Dr Hossack which was attributable to a period when she was on leave without pay form part of her remuneration package?

37. In Commander Australia Limited v Kerr (2004) 134 IR 160; [2004] NSWIRComm 74 (Commander), Wright P, Walton VP and Staff J were required to consider whether certain entitlements formed part of an employee’s remuneration package for the purposes of s 108A. Relevantly, at [47]–[48], their Honours held that the ordinary meaning of “paid” and “received” refers to an amount having been paid and accepted, and that the ordinary meaning of “payable” and “receivable” refers to an amount being owed or already able to be given and received. They held that each of the four words provides a separate and distinct test.

38. At [49], their Honours contrasted s 108A of the IR Act with the term “annual remuneration” in s 83(1)(b) of the IR Act, citing Austeck Pty Ltd v Atsalos (2003) 128 IR 141; [2003] NSWIRComm 290 at [45], in which the latter term was held to refer to “the rate of remuneration fixed by the contract at the point of termination”. At [52], their Honours held that the intention of the legislature was “to include all amounts paid or received during the period of 12 months immediately before the termination”.

39. In Zoran Lozevski v Goodman Fielder Consumer Foods Pty Ltd (2004) 144 IR 28; [2004] NSWIRComm 314 (Lozevski), Haylen J applied the reasoning in Commander. He found, at [59], that four cents which had been paid to the applicant in that matter as part of a rounding up exercise was money to which that person was not entitled. While also finding that the four cents was a trifling matter with which the law was not concerned, his Honour noted that the door should not be left open for respondents seeking to avoid the jurisdiction of the Court to make an ex gratia payment to an employee whose employment they have decided to terminate. Accordingly, his Honour excluded those monies from the applicant’s remuneration package as defined in s 108A of the IR Act.

40. Having regard to the above authorities, I find that the $4136.80 paid to
    Dr Hossack during the relevant 12 months on days when she should have been on LWOP is not money that forms part of her remuneration package for the purposes of s 108A(3) of the IR Act.

41. The remuneration cap operates to prevent a person with a remuneration package in excess of $200,000 from making an application to this Court. It is expressly directed to money that a person has been paid and other benefits which a person has received or to which an entitlement has arisen during the relevant 12-month period. It is not to the point that, at the time of her termination, Dr Hossack was working pursuant to an employment contract under which her entitlements exceeded the statutory remuneration cap.

42. Dr Hossack received the monies in issue because she neglected to apply for LWOP at the appropriate time. While the monies were paid to her during the relevant 12-month period, she later repaid those monies because she was not entitled to them. Dr Hossack had no entitlement to those monies as she did not undertake the work for which those funds represented payment. If Dr Hossack had been more diligent, she would have applied for LWOP prior to working in Broken Hill on days that she was rostered to be working for the second respondent. In that event, she would not have received the monies that she has since repaid. It would be surprising if this oversight on her part led to her exclusion from the unfair contracts jurisdiction.

Do the TESL payments form part of Dr Hossack’s remuneration package?

43. It is not necessary in these proceedings to refer in detail to authorities on the approach to statutory construction. The principles are clear and include a legislative requirement to prefer a construction that would promote the purpose of a statute over one that would not. Further, consideration of extrinsic materials is permitted by s 34 of the Interpretation Act 1987 (NSW) to assist in the interpretation of a statutory provision in two circumstances. The first is where those materials confirm the ordinary meaning of the text of a provision, taking into account its context and purpose. The second is to assist in determining the meaning of an ambiguous or obscure provision.

44. In Lozevski at [51], Haylen J considered the progress of the Industrial Relations Amendment (Unfair Contracts) Bill which introduced s 108A. In particular, his Honour noted the decision of the Legislative Council during committee stage to reject a proposal to delete the word “package” and instead refer simply to “remuneration”. This was intended to make clear that the provision was directed at an employee’s total package as a reward for work performed, giving effect to the definition of remuneration in Shead v Summit Western Pty Ltd (t/a Blacktown Mitsubishi) (1998) 81 IR 347 at 362; [1998] NSWIRComm 377. On that subject, his Honour noted the following content from the Minister’s speech (emphasis added):

“This means that salary packaging arrangements will not be able to purposely include or exclude employees from the jurisdiction. In effect, they will be irrelevant in determining eligibility. What will be relevant is personal benefit received by the employee for the work that he or she performed for his or her employer. The remuneration package is therefore the amount of the employee’s salary plus the monetary value of any employment benefits payable. This may include commission, bonuses, the personal non-business use of a car or any other fringe benefit the employee receives.”

45. Viewed in this context, I am of the view that the TESL payments received by
    Dr Hossack do not form part of her remuneration package for the purpose of
    s 108 of the IR Act. The term “employment benefit” is directed at an employee’s compensation for work performed. The expansive definition of remuneration package to include an employment benefit as defined is directed at employees seeking to avoid the remuneration cap through the establishment of non-monetary entitlements in place of salary.

46. The reimbursement of Dr Hossack’s expenses associated with her attendance at an overseas medical conference are not a private benefit received by Dr Hossack for work that she performed. While Dr Hossack presumably derived benefit from attendance at the conference, the benefit was shared with her employer. Indeed, the Policy Directive governing TESL for staff specialists provides, under the heading “Mandatory Requirements”, for TESL which is relevant both to the staff specialist and the public health organisation.

47. I am fortified in my view that TESL payments do not form part of Dr Hossack’s remuneration package because:

1. The TESL procedures state that entitlement to a TESL payment for a Level 4 staff specialist such as Dr Hossack is dependent on and limited to the pool of funds generated from private practice and collected by the public health organisation (in this case, WSLHD); and

2. While the reimbursement of Dr Hossack for the purchase of a mobile phone was not pressed for the purposes of this application, it is nonetheless instructive that the phone reimbursed from TESL funds remained the property of the second respondent.

48. In reaching this conclusion, I have not placed any weight on the fact that the payment is a reimbursement to Dr Hossack for relevant expenditure that she had incurred. I accept the submission of the respondents that a benefit to Dr Hossack lies in not otherwise having to meet the cost of the conference, travel and accommodation.

Conclusion

49. I have determined that neither the salary refunded by Dr Hossack to her employer, nor the TESL payments which she received to reimburse her for conference related expenses, form part of Dr Hossack’s remuneration package. Accordingly, on the evidence before the Court, taking Dr Hossack’s case at its highest, her remuneration package, for the purposes of the remuneration cap, does not exceed $200,000. I therefore do not need to determine whether the salary and allowances received by Dr Hossack pursuant to the Award and the Determination form part of Dr Hossack’s remuneration package for the purposes of the remuneration cap.

50. The respondents’ Motion must therefore be dismissed.

Orders

51. The orders in this matter are as follows:

1. The respondents’ Notice of Motion is dismissed.

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Decision last updated: 28 February 2025