Ardino v Count Financial Group Pty Ltd

LEGISLATION CITED: Industrial Relations Act 1996

Ardino v Count Financial Group Pty Ltd (1994) 126 ALR 49 Austek Pty Ltd v Atsalos (2003) 128 IR 141 Australian Salaried Medical Officers' Federation (New South Australian Salaried Medical Officers' Federation (New South Wales) (on behalf of Bruce Hall) v South Western Sydney Area Health Service [2006] NSWIRComm 101 Australian Salaried Medical Officers' Federation (New South Wales) (on behalf of Hall) v Sydney South West Area Health Service (No 2) (2007) 166 IR 320 Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 Kagan v Primus Telecommunications (Aust) Pty Ltd (No2) [2000] NSWIRComm 185 CASES CITED: Langston v Amalgamated Union of Engineering Workers (No. 2) [1974] ICR 510 Lozevski v Goodman Fielder Consumer Foods Pty Ltd (2004) 144 IR 28 McBlane v National Transport Insurance Ltd (1997) 77 IR 185 Ole Hostrup v Monroe Springs (Aust) Pty Ltd [1998] NSWIRComm 608 R v The Postmaster General (1875-76) LR 1 QBD 658[1876] QB 658 Shead v Summit Western Pty Ltd t/a Blacktown Mitsubishi (1998) 81 IR 347 United Services Union (on behalf of Geoffrey Taylor) and MM Kembla Products [2005] NSWIRComm 223 William Hill Organisation Ltd v Tucker [1999] ICR 291

APPLICANT Mr R Reitano of counsel with Mr P Ginters of counsel Mr S Mead Australian Salaried Medical Officers' Federation (New South Wales) LEGAL REPRESENTATIVES: RESPONDENT Mr A R Moses of counsel Solicitor: Ms A De Boos HWL Ebsworth

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

AUSTRALIAN SALARIED MEDICAL OFFICERS' FEDERATION (NEW SOUTH WALES) (ON BEHALF OF BRUCE HALL) AND SOUTH WESTERN SYDNEY AREA HEALTH SERVICE (NO 3)

Application by Australian Salaried Medical Officers' Federations (New South Wales) on behalf of its member Bruce Hall re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 This is an application pursuant to s 84 of the Industrial Relations Act 1996 ("the Act") by the Australian Salaried Medical Officers' Federation (New South Wales) ("the Federation") on behalf of its member, Professor Bruce Milne Hall ("the applicant") for relief from unfair dismissal. The applicant sought reinstatement with the Sydney South Western Area Health Service ("the respondent") pursuant to s 89 of the Act following the termination of his employment with the respondent on 17 March 2005. Background 2 On 15 July 1991 the applicant was appointed to the position of Professor of Medicine in the School of Medicine and Director of the Division of Medicine at Liverpool Hospital ("the Hospital"). It was common ground that the applicant was, at all material times, employed by the University of New South Wales ("the University"). The application was initially rejected by the Commission on the basis that the applicant was not an employee of the respondent: see Australian Salaried Medical Officers' Federation (New South Wales) (on behalf of Bruce Hall) v South Western Sydney Area Health Service [2006] NSWIRComm 101. On appeal the Full Bench, after admitting further evidence, found that the applicant had become an employee of the respondent in January 2000 whilst also being employed by the University. The application was remitted to me for hearing: see Australian Salaried Medical Officers' Federation (New South Wales) (on behalf of Hall) v Sydney South West Area Health Service (No 2) (2007) 166 IR 320. 3 On 21 July 2008 draft short minutes of order were filed by the respondent which resulted in orders being made that the applicant be reinstated on the terms and conditions that were applicable to the applicant had he not been dismissed. The applicant was to resume his duties with the respondent no later than 8 September 2008. The applicant sought an order for costs which was resolved between the parties in a conciliation conference chaired by Walton J, Vice-President, on 24 July 2008. The remaining outstanding issue is the assessment of the quantum of the applicant's remuneration from the date of termination to the date of reinstatement. 4 The relevant statutory provision is s 89(3) of the Act, which provides: (3) If the Commission orders reinstatement or re-employment, it may order the employer to pay to the applicant an amount stated in the order that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated or re-employed in accordance with the order. 5 Mr R Reitano of counsel, who appeared for the applicant with Mr P Ginters of counsel, identified four sources of remuneration beyond the applicant's salary and superannuation entitlements, which were agreed between the parties. The contested sources of remuneration were the value of the following: (i) the private use of a motor vehicle supplied by the respondent; (ii) a secretary and research assistant; (iii) a private laboratory; (iv) a right to private practice. 6 Mr A R Moses of counsel, who appeared for the respondent, submitted that the applicant could not be said to have "received" the benefit of the support staff, laboratory use and the right to private practice in the sense that s 89(3) of the Act intended. This is evidenced, it was submitted, by the fact that, at no stage, was the applicant able to elect whether or not to retain the value of these benefits by keeping their money value to himself. Counsel also opposed the claim for the private use of a motor vehicle. As will be seen, I reject the applicant's claim that the four sources of remuneration form part of the applicant's remuneration for the purposes of s 89(3) of the Act.

The Evidence (i) Entitlement to the private use of a motor vehicle 7 The applicant stated that he was provided with the private use of a Holden Commodore by the respondent in 2004 as part of his contract of employment. However, the applicant did not produce any logbooks or other records to demonstrate the actual private use of the vehicle. The applicant's evidence was that he drove to his holiday house in the Blue Mountains on most weekends, as well as collecting his children from school and going shopping. 8 Mr Gregory Driver, Deputy Manager, Human Resources of the respondent, gave evidence regarding the policy of the New South Wales Department of Health ("the Department") of providing employees with the private use of Departmental motor vehicles and an employee's obligation to pay a contribution for the private use of the vehicle. From in or about July 2004 to in or about April 2008 an employee's contribution to the Department's motor vehicle scheme was calculated to be $20,297. This calculation is based on the Department Circular 2004/81 and Information Bulletins issued since July 2004. In cross-examination, Mr Driver conceded that an annual payment of $4,993 was a relatively insignificant amount for an employee to pay for the private use of a motor vehicle, as it represented a significant saving to the employee in relation to the outlay, running costs and petrol. 9 Mr Hugh Arjonilla, an industrial officer employed by the Federation, calculated the running costs for such a vehicle from 17 March 2005 to 8 September 2008 to be $25,118, after the employee contribution was deducted. 10 Assuming the applicant had continued to participate in the Department's motor vehicle scheme, he would have been required to make a payment of $4,993 per annum for the costs associated with the private use of the motor vehicle. (ii) The secretary and research assistant 11 The applicant gave evidence of a number of conversations with Dr Trevor King, Chief Executive Officer of the respondent from 1987 to 1990, and Mr Ken Brown, Acting Chief Executive Officer of the respondent from July 1990, leading up to his appointment at the Hospital in July 1991. The applicant's evidence was that between 1989 and late 1990 both Dr Trevor King and Mr Ken Brown, in their respective capacities as Chief Executive Officers of the respondent, stated that a research assistant and secretary would be made available to the applicant in his position as Professor of Medicine. Dr King's evidence was that he understood such a conversation had taken place at that time and that he had told the applicant that funds for a research assistant and secretarial support would be provided by the respondent in connection with the applicant taking up the position. A letter from Mr Brown to the applicant dated 8 August 1990 relevantly stated: As regards research and support staff, each Professorial position is funded to provide a research position as well as secretarial and administrative staff. Further support and research staff would be subject to negotiation following your arrival. 12 Professor W E Glover, who was Dean of Medicine at the University from 1985 to 1998, gave evidence that he did not recall a specific conversation between himself, Dr King and the applicant during which the applicant was offered two support staff. Professor Glover said it was unlikely he would have given assurances of the kind alleged by the applicant. 13 The applicant further stated that, without the offer of a research assistant and secretary, he would not have applied for the position at the Hospital. The applicant's evidence was: I always understood that these benefits were provided to me and they were integral and essential to my appointment. I regarded them to be a valuable part of my terms and conditions and would not have accepted the original appointment without such essential staff. 14 There is evidence that the applicant wrote to Dr King on 11 July 1990 seeking information and reassurances in relation to his appointment. By letter dated 8 August 1990, Mr Brown outlined the steps being taken to prepare for the applicant's arrival at the Hospital, giving re-assurances about research infrastructure, the provision of an animal house and support staff. Mr Brown also addressed a number of the applicant's concerns regarding policy within the respondent. In a letter from the applicant to Mr Brown dated 7 September 1990, the applicant confirmed his view that if he had known the available resources were so limited, he would not have applied for the position. 15 The applicant's evidence was that in or about 1992 he approached the General Manager of the Hospital, Dr Colin McArthur to request that the funds set aside for a research assistant be applied to purchase equipment for the laboratory. His evidence was that Dr McArthur agreed to this request. This arrangement continued until the appointment in 1996 of Dr Xiao Yan He as a Senior Scientific Officer in the applicant's laboratory. The applicant said that Dr He was employed to run the applicant's laboratory and conduct research under his direction. 16 Mr Driver disputed this arrangement. Mr Driver stated that, as a Senior Scientific Officer for the Department of Medicine, Dr He would also have managed laboratories other than those under the responsibility of the applicant. However the applicant said Dr He's research work was done solely for his benefit and not for the respondent or the Hospital. During cross-examination the applicant conceded that persons working in the laboratory performed work both for himself and his wife, Dr Hodgkinson, a neurologist employed at the Hospital. Mr Driver's evidence was that in accordance with the arrangement between the respondent and the University, the respondent provided Directors of Divisions at the Hospital with secretarial support to assist the functioning of the Division. Mr Driver's evidence is consistent with a memorandum of agreement between the respondent and the University dated 23 January 1989. Clause 5.1 of the memorandum provided: The Service agrees that in all cases where University Professorial appointments are made in the Service that the Service will consider designating the appointee as Head of the appropriate Clinical Department within the Service and as such will provide them with appropriate support staff to undertake their relevant hospital administrative and medical duties. 17 During cross-examination, the applicant conceded that the laboratory assistant and secretary were employed by the respondent and that his laboratory assistant did some research of her own. Professor Glover, during cross-examination, also gave evidence of the arrangement as follows: Q. Your understanding was that was someone [a secretary] who answered to Professor Hall? A. Yes. Q. And was, as it were - I don't want to labour the point - at his beck and call, and his direction as to what research was to be done and the like? A. Well within the terms of the employment. 18 The final aspect of the applicant's evidence about the provision of staff relates to a payment of $129,179.12 made by the applicant to the University . The applicant's evidence was that following his termination he sought to maintain the services of a research assistant. His evidence was: As a result of discussions I had with the UNSW, it agreed to my employing one of my research staff on the basis that the debt it incurred from the agreement would be repaid by me. I incurred a debt to the UNSW of $129,000 which I have had to repay with my own money. This represents part, but not all, of the costs of employing this researcher. Annexed and marked with the letter 'B' is a copy of a receipt from UNSW in relation to this payment. 19 On 6 December 2006 Professor Hall and Dr Hodgkinson wrote to Professor Peter Smith, Dean of the Faculty of Medicine, offering to reimburse the University for the cost of the research assistant. In a further letter to Professor Smith dated 12 June 2008, the applicant referred to a guarantee given to cover the research assistant's salary and enclosed a cheque in the sum of $129,179.12 to meet the cost of the research assistant. On 16 June 2008, Professor Smith returned the cheque to the applicant and directed the applicant approach the UNSW Foundation to establish an account to assist the funding of a research program. Subsequently the applicant and his wife forwarded a cheque in the above sum to the University's fund-raising body. In a letter dated 30 June 2008 the Chief Executive of the UNSW Foundation acknowledged the effect of the donation in supporting transplantation and immunological research. During cross-examination on this issue, the applicant gave the following evidence: Q. Where is the agreement between you and Professor Smith? A. The agreement is he allows us to engage a staff member when we didn't have the money in the bank to pay that person and we wouldn't incur a debt. That was the agreement. Q. Who was on the university payroll for that period? A. Yes. ... Q. ...Does this refer to an agreement? A. As a consequence of that letter, Professor Smith agreed to us to continue to employ the South west member in question and accrue a debt. 20 The applicant's evidence was that he intended to treat the payment as a tax deduction in the form of a professional expense. (iii) Use of a laboratory and equipment 21 The applicant's evidence was that in April 1990, Dr King and Professor Glover assured him that an animal house would be built and laboratory equipment purchased for the applicant. The applicant had a second conversation with Dr King in or around June or July 1990. His understanding of this discussion was that a trust fund was identified as the source for financing the laboratory, the animal house and the purchase of specialized equipment. According to the applicant's evidence, the new Acting Chief Executive Officer of the respondent, Mr Brown, restated that a research assistant, secretary and laboratories would be provided to the applicant. The applicant deposed that this conversation occurred between the applicant and Mr Brown in the second half of 1990. Dr King's evidence confirmed the applicant's understanding of the conversations relating to the establishment of laboratories and an animal house at the Hospital. (iv) A right to private practice 22 As a clinical academic, the applicant was entitled to conduct a private clinic in the rooms provided by the respondent. The applicant's right of private practice is outlined in cl 23 and cl 24 of the Department's Circular 2000/3 dated 18 January 2000. The applicant stated that from late 2004, his access to a private clinic at the Hospital ceased. Thereafter, the applicant rented rooms at the South West Sydney Private Hospital at his own expense. Applicant's Submissions 23 Mr Reitano argued for an expansive definition of the term "remuneration" as found in s 89(3) of the Act. In the absence of any judicial interpretation of the meaning of "remuneration" in this section, counsel relied on Shead v Summit Western Pty Ltd t/a Blacktown Mitsubishi (1998) 81 IR 347. In this case a Full Bench considered the meaning of the term "annual remuneration". Counsel submitted that "remuneration" should not be understood in a narrow monetary sense and referred to the Full Bench's observation at 362 where it stated: remuneration...is used in its ordinary broad sense as comprehending an employee's total package as a reward for the work performed. 24 Mr Reitano submitted that the Full Bench in Shead considered the concepts of quid pro quo and consideration and referred to the discussion by their Honours in R v The Postmaster General (1875-76) LR 1 QBD 658[1876] QB 658 at 663 - 664, submitting that the statutory definition of "remuneration" extends beyond money to any payment given as remuneration for service. The thrust of counsel's argument was that there is no meaningful difference between treating rum, motor vehicles or research assistants as remuneration. Mr Reitano put the submission this way: Lots of different things can be considered remuneration; payment of school fees, child care, telephone accounts, the use of laptop computers. We haven't included the provision of research assistants and secretary and laboratory space, but obviously there is conceptually no difference why it can't be. 25 Counsel further submitted that a wide definition of "remuneration" is permissible, given that in Austek Pty Ltd v Atsalos (2003) 128 IR 141 the Full Bench held that a motor vehicle provided for private use could constitute remuneration in certain circumstances. Counsel also argued, by analogy, that the payment of fees for schooling, child care and telephone accounts supported the view that valuable benefits provided in connection with the pursuit of research should be treated as remuneration for the purposes of the Act. 26 Mr Reitano submitted that the evidence was clear that the benefits were provided to the applicant exclusively for his own research work and, secondly, that the employer made payments for research-related activities. Counsel contended that the capacity to ascribe monetary cost to the provision of a secretary, research assistant and equipment supported their inclusion when assessing the applicant's remuneration. Respondent's Submissions 27 Mr Moses accepted Shead as being authority for the proposition that a wide meaning should be given to the term "remuneration" as "an employee's total package for the work performed". However counsel contended this broad meaning is limited by the notion of what is regarded as consideration for the employee providing his or her services to the employer. In support of this contention, counsel relied upon the Full Bench decision in Kagan v Primus Telecommunications (Aust) Pty Ltd (No2) [2000] NSWIRComm 185 where their Honours stated, at [11]: remuneration may include gratuitous payments which may not be strictly contractual entitlements, nevertheless they must be payments which are referable to or arise from the performance of work, the provision of services or the carrying out of the duties of employment.

See also United Services Union (on behalf of Geoffrey Taylor) and MM Kembla Products [2005] NSWIRComm 223 at [30]. 28 Mr Moses submitted that to determine what is "remuneration" in a particular matter invariably requires the court to look into the terms of the employment contract. Counsel submitted that the definition of remuneration is further limited when compared with the wider concept of "employment benefit" used outside Ch 2 Pt 6: see for example s 108A(3) of the Act. 29 Mr Moses submitted that not everything that flows to the employee from his or her employment is to be, or should be treated as remuneration. Job satisfaction and the practice and development of skills all comprise part of employment but are not properly regarded as remuneration: see Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 at [80]; Langston v Amalgamated Union of Engineering Workers (No. 2) [1974] ICR 510 at 521; William Hill Organisation Ltd v Tucker [1999] ICR 291 per Morritt LJ at [24]. Similarly, counsel observed an employee must be able to establish a contractual entitlement to a payment before it can be regarded as "salary", "pay" or "wages". Mr Moses referred to Ardino v Count Financial Group Pty Ltd (1994) 126 ALR 49 where Wilcox CJ in the Industrial Court of Australia stated at 55: ... A payment made by the employer, that the employee was never contractually entitled to receive, cannot be regarded as 'wages'. It is not sufficient that the payment arose out of the contract of employment. 30 Although this statement concerns the narrower concept of wages, counsel pointed to the common element of a contractual entitlement. 31 Mr Moses conceded that the use of an employer funded motor vehicle for private use can form part of an employee's remuneration. Counsel argued that the absence of evidence of the applicant's business or private use of the motor vehicle raised an inference that the employee's contribution was an appropriate assessment of the level of private use for the purpose of determining the applicant's remuneration. 32 Counsel disputed that it was a condition of the applicant's contract that he be provided with a research assistant, private secretary and research equipment. Mr Moses submitted that the applicant was not entitled to these benefits by way of any contractual entitlement. In response to the applicant's submission that benefits of a private nature should be regarded as part of an employee's remuneration, Mr Moses pointed to the decision of Haylen J in Lozevski v Goodman Fielder Consumer Foods Pty Ltd (2004) 144 IR 28 where his Honour, in determining an unfair contract claim, stated at [66]: There are a variety of benefits provided in workplaces to employees at a cost to the employer which may be said to be of a personal or private benefit to the employee but which would never be regarded as part of an 'arrangement' including a 'related condition' or a 'collateral arrangement' to the contract of employment. Principles 33 There are numerous decisions of this Commission discussing the meaning of the word "remuneration" as it is found in various sections of the Act. In Shead, the Full Bench considered the meaning of the word "remuneration" and stated at 357 - 358: In interpreting the words of a statute regard is to be had to the consequences of a particular interpretation, particularly if one interpretation would render a provision ineffectual whereas another would give it some operation or where one interpretation would result in inconvenience, injustice or absurdity and another would avoid such a result. In Bistricic v Rokov (1976) 11 ALR 129 at 136, Jacobs J said: "The judicial process of discovering the intention of the legislature where there is a doubt involves an inference of intention depending on the language of the legislation in the light of the circumstances of its enactment, and, if no particular intention is disclosed by that process, on the convenience which would result on the one hand and the complexities which would result on the other hand if it were held that the legislature intended the amendment either to apply or not to apply." The word "remuneration" is not defined in the 1996 Act or in its Dictionary. As earlier mentioned it is used in numerous sections thereof, the Schedules thereto and the Regulations thereunder. It is usually the case that in construing words in a statute which are not defined for them to be given their ordinary and natural meaning: see Cody v J H Nelson Pty Ltd (1947) 74 CLR 720 at 647 per Dixon J.

We begin then with the ordinary meaning of "remuneration". It is defined in The Macquarie Dictionary (2nd ed, 1991) at p 1488 as: "remuneration 1. the act of remunerating. 2. that which remunerates; reward; pay: little remuneration for his services ." "Remunerate" is defined at p 1488 as: "remunerate 1. to pay, recompense, or reward for work, trouble, etc 2. to yield a recompense for (work, services, etc)." In the Compact Oxford English Dictionary (2nd ed, 1991) at p 1556 "remuneration" is defined as: "remuneration Reward, recompense, repayment; payment, pay." "Remunerate" is defined at p 1556 as: "remunerate 1. To repay, requite, make some return for (services, etc). 2. To reward (a person); to pay (one) for services rendered or work done. 3. (obsolete) To give as compensation." In R v The Postmaster-General [1876] 1 QBD 658 at 663-664 Blackburn J, with whom Quain J agreed, observed as to the word "remuneration" appearing in a statute dealing with compensation for loss of office: "But I think the word 'remuneration' is a wider term [than 'salary'] and means a quid pro quo. If a man gives his services, whatever consideration he gets for giving his services seems to me a remuneration for them. Consequently, I think if a person was in the receipt of a payment, or in the receipt of a percentage, or any kind of payment which would not be an actual money payment, the amount he would receive annually in respect of this would be `remuneration', and consequently I think that this statute, in the early part of it, must be construed to extend not only to money payments but to any payment given as a remuneration for his services in the office." To a similar effect, Blain J, with whom Lord Parker CJ and Melford Stevenson J agreed, in S & U Stores Ltd v Lee [1969] 1 WLR 626 said at 629 that: "'Remuneration' is not mere payment for work done, but is what the doer expects to get as the result of the work he does in so far as what he expects to get is quantified in terms of money." Herring CJ and Gavan Duffy J in Connally v The Victorian Railways Commissioners [1957] VR 466 at 467 commented that the ordinary meaning of the word "remuneration" appearing in workers' compensation legislation was "pay for services rendered or work done"; their Honours adopted at 468 the meaning given to the word by Lord Davey in The Midland Railway Co v Sharpe [1904] AC 349 at 351, that is: "Now what does a man earn? He earns the sum which is the fruit of his labour; whatever he receives by way of remuneration for the services he gives, or, as Lord Macnaghten said in Abram Coal Co v Southern [1903] AC 306, a man's 'earnings' are 'the full sum for which the man is engaged to work'." 34 The Full Bench concluded at 362: We are satisfied that in Pt 6 of Ch 2 the word [remuneration] is used in its ordinary broad sense as comprehending an employee's total package as a reward for the work performed. 35 The first limb of the test to be applied covers the extent of the consideration given by the employer. The second, and related limb refers to the performance of the employee's contract of service for which he or she is receiving recompense. To support its wide reading of what constitutes the requisite quid pro quo as that term was used in R v The Postmaster General (referred to by the Full Bench in Shead), the applicant argued that remuneration need not be restricted to money payments. In Kagan v Primus Telecommunications, the Full Bench acknowledged this proposition as good law, but also stipulated that remuneration must be given in exchange for work undertaken. The Full Bench observed at [11]: Although the ordinary meaning of the word 'remuneration' is not confined to cash benefits, nevertheless it must involve the notion or concept of payment for services rendered or work done...remuneration may include gratuitous payments which may not be strictly contractual entitlements, nevertheless they must be payments which are referable to or arise from the performance of work, the provision of services or the carrying out of the duties of employment. 36 The contract of employment usually provides the starting point for determining remuneration: see Austek v Atsalos at [51]. However there are some contractual entitlements, such as allowances for mileage or meal breaks, that cannot amount to remuneration as they do not arise from the performance of work: see Kagan v Primus Telecommunications at [11]. It is important, in my opinion, not to overlook this second limb of the test because it operates as a significant restriction upon the defining of remuneration in Pt 6, Ch 2 of the Act. 37 Remuneration is primarily made out by establishing an obligation on the employer to reward its employee for the work done. The nature of that reward is secondary and potentially may be a false line of inquiry in determining whether a benefit enjoyed by an employee constitutes remuneration in terms of s 89 (3) of the Act. 38 The applicant strongly submitted that if remuneration could be made via non-money payments (relying upon R v The Postmaster General at 663 - 664), then non-monetary benefits should in turn be treated as remuneration for the purposes of s 89(3) of the Act. However the second proposition is not a corollary of the first, because it overlooks the requirement that remuneration be a payment for services - the second limb of the test in Shead. The Full Bench, in United Services Union, recently emphasised the importance of establishing the employer's contractual obligation to confer the benefit as part of the work bargain. In that decision, the Commission stated at [30], Clearly, remuneration must involve the notion or concept of payment for services rendered or work done. In both Kagan and Austeck the Full Bench has focussed on the importance of an employee's entitlements under their contract of employment (although we note the reference in Kagan to gratuitous payments which may not be strictly contractual entitlements). 39 Historically, fungible commodities such as grain and rum have formed mediums of exchange by which employees were compensated for their service. More recently the Full Bench in Kagan v Primus Telecommunications held that the provision of a motor vehicle for private use can be treated as remuneration: see also Austek v Atsalos. Nevertheless, the overarching inquiry remains whether, on the facts, an employee can show a contractual entitlement to the benefit in return for the services given: see Austek v Atsalos at 155. 40 In Ardino v Count Financial, Wilcox CJ (at 55) applied similar logic in deciding that an employee must be entitled to receive a payment from the employer, or to elect to have money paid on to a third party rather than the employee, before the payment can be taken into account as "wages" that the employee was entitled to receive (for the purpose of applying s 170CD of the Industrial Relations Act 1988 (Cth)). I turn to apply these principles to each of the claims for remuneration. Consideration 41 The issue for determination in this matter is the meaning of the word "remuneration" as it appears in s 89(3) of the Act and whether the provision of a motor vehicle, secretary, research assistant, a laboratory and equipment and the right to maintain a private medical practice qualify as part of the remuneration of the applicant. (i) The entitlement to private use of a motor vehicle 42 It is well settled that the private use of a motor vehicle can form part of the employee's remuneration: see Austeck v Atsalos. This includes the personal benefit of using the vehicle to travel to and from work: see Ole Hostrup v Monroe Springs (Aust) Pty Ltd [1998] NSWIRComm 608. The applicant was provided with a Holden Commodore during his employment. Mr Arjonilla estimated the running costs for such a vehicle, less the employee contribution, to be $25,118 from 17 March 2005 to 8 September 2008. The Department Circular 2004/81 and Information Bulletins issued from July 2004 to April 2008 demonstrate the employee contribution over that period to be $20,297. 43 At paragraph 6.2 the Department Circular provided that: "Employees permitted private use of a NSW Health vehicle are required to contribute at a rate determined by the Director-General from time to time." 44 In order to assess the correct contribution rate, each employee granted approval to have private use of a Departmental motor vehicle must nominate an estimated proportion of private travel. An employee may nominate an estimate of private travel either less than 15,000 kms or greater than 15,000 kms per annum. A different employee contribution rate applies depending upon the election of kilometres. The applicant did not adduce any evidence in this respect. An employee who participates in the scheme is required to pay a yearly contribution in advance at the beginning of each financial year. The circular further provides: "Reconciliation is required on an annual basis to establish that the appropriate contribution rate has been paid, ie less than, or greater than 15,000km, and if necessary, the employee must pay the additional contribution or receive a refund as appropriate. Where it is evident during the year that an employee has nominated an inappropriate annual total kilometre level, the employee is to be contacted with a view to amending the contribution rate during the annual period so that the employee does not have to pay or receive a large adjustment at years end." 45 In this case the applicant did not lead any evidence of the actual private use of the motor vehicle prior to his termination on 17 March 2005, whether by way of logbooks or any other records. In cross-examination, the applicant gave evidence that he used the Departmental motor vehicle to travel to his house in the Blue Mountains on most weekends, as well as to go shopping and collect his children from school. In the absence of any specific evidence of the actual proportion of private use of the motor vehicle by the applicant, that is whether less than or greater than 15,000 kms per annum, I am not in a position to determine the applicant's entitlements. The respondent's case proceeded on the basis of a calculation for 15,000 kms or above. This is what led the respondent to submit that the applicant would have been required to make a contribution to the respondent in the sum of $20,297 for the period that he had not been employed. Mr Arjonilla's evidence was that the running costs of the applicant's vehicle during the period of unemployment would have been $25,118 once the employee contribution had been deducted. 46 The difficulty that I have, in view of the unsatisfactory nature of the evidence, is what allowance should be made for the business use of the vehicle. In other words, how much, if any, should be deducted from the figure of $25,118. Mr Moses submitted that there was no evidence as to the extent of private use of the vehicle. In the absence of evidence there is nothing to contradict the clear inference in the policy that the contribution for private use was an appropriate assessment of the level of private use of the motor vehicle for the purpose of determining the applicant's remuneration. The applicant has failed to rebut this inference. I therefore reject the claim that it be included as part of the applicant's remuneration for the purposes of s 89(3) of the Act. (ii) The provision of a research assistant, secretary, laboratory and equipment 47 The test to be applied to determine this claim is whether the applicant has a contractual entitlement to receive the monetary cost of a research assistant, secretary and laboratory equipment. The provision of support staff and a laboratory was the subject of pre-contractual discussions between the applicant, Dr King and Mr Brown. In a letter to the applicant dated 8 August 1990, Mr Brown stated that each professorial position is funded to provide research and secretarial support. Clause 5.1 of the agreement between the University and the respondent dated 23 January 1989 is to the same effect. At no time did the applicant demonstrate, by way of tax returns or otherwise, the receipt of payments by which he was to fund the two staff. They remained employees engaged by the respondent under the applicant's direction. Unlike cases where the court has entertained the possibility of an employer agreeing to make payments to third parties as a way of offsetting the employee's salary, such as superannuation contributions or the payment of school fees: see McBlane v National Transport Insurance Ltd (1997) 77 IR 185 at 189-90 and Ardino v Count Financial at 55, the applicant did not retain the capacity to ultimately realise the expenditure outlaid by the respondent in employing each of the two support staff, or the purchase of laboratory equipment. 48 The applicant submitted that the provision of a research assistant, secretary and laboratory equipment conferred a personal benefit on him and, as such, should be treated as remuneration. Whilst the provision of staff and equipment, no doubt, facilitated the applicant's research work, the evidence did not support the submission that either party intended the researcher, secretary or equipment to constitute a payment in kind for the applicant's work at the Hospital. 49 In cross-examination the applicant conceded that the researcher, Dr He, was employed directly by the respondent and from time to time undertook tasks in conjunction with other laboratories. Dr Glover also gave evidence that the research undertaken at the Hospital was designed for the broader community's benefit. The applicant gave evidence of a conversation that took place with Dr King in or around June or July 1990 in which he said that he understood a trust fund had been established to support the laboratories and animal house. This evidence militates against the conclusion that these were purely personal benefits. 50 It would, therefore, in my opinion be an error of principle to characterise the benefit as a private one for the applicant alone. 51 The applicant further submitted that since the benefit of providing a research assistant and secretary are capable of being valued in monetary terms they should be treated as remuneration for the purposes of s 89(3) of the Act. The primary hurdle for the applicant is the absence of evidence, as discussed earlier in these reasons, that it was ever intended that the benefit of the support staff, laboratory equipment and animal house were to be conferred in exchange for the employee's service. Secondly, the nature of the putative benefit, being the research and secretarial services provided to the applicant, undermines the applicant's ability to quantify the value of the claim. Mr Reitano submitted that it was the cost to the employer of providing the staff that was the best measure of the benefit to the applicant. However, an alternate view would be the amount of salary the employee has forgone in securing the benefit: see Ardino v Count Financial at 55; or, in the unique case of research, value may be found in the end product which could by far exceed the cost of employing the relevant employees. The difficulties posed in valuing such benefits illustrates a further impediment to the applicant's claim. 52 In my view, this second difficulty need not be addressed in this case, since the applicant has failed to make out that the benefit of the support staff was a quid pro quo for the applicant's work as a clinical academic. In my opinion, the applicant has failed to demonstrate that the staff possessed a commercial value and were offered as a tradeable commodity to reward the applicant for his work with the respondent. I therefore conclude that the monetary cost of providing a research assistant, secretary, laboratory and equipment and the animal house did not form part of the applicant's remuneration for the purposes of s 89(3) of the Act. (iv) The right to a private practice 53 Similarly, for the reason already given, the applicant has not established, to my mind, that his right to private practice was offered as a reward for his services to the respondent, as required by the test for remuneration laid down in Shead and United Services Union. This claim must also fail. 54 It follows that the provision of a motor vehicle for private use, secretary, research assistant, a laboratory and equipment and the right to maintain a private medical practice do not form part of the applicant's remuneration for the purposes of s 89(3) of the Industrial Relations Act 1996.

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