Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of Hookey v State of New South Wales

The legislation 15The Mental Health Act 1990 applied to each of Dr Hookey's appointments except the last appointment to which the Mental Health Act 2007 applied. There was no material difference between the relevant provisions that applied to Dr Hookey's appointments under the two statutes. 16Referring to the 2007 Act (which I do throughout this judgment unless otherwise indicated), s 140 provided for the constitution of the MHRT and it was there noted Schedule 5 had effect with respect to the Tribunal. Section 141 addressed the membership of the Tribunal which consists of the following members appointed by the Governor: (a) the President of the Tribunal who is to be appointed as a full-time or part-time member, (b) 1 or more Deputy Presidents of the Tribunal who may be appointed as full-time or part-time members, (c) other members (if any) who may be appointed as full-time or part-time members. 17Dr Hookey fell into the third class as a part-time member and he was appointed from the class of persons of "Australian lawyers": s 141(2). Section 151 provides that the meetings of the Tribunal are to be conducted with as little formality and technicality, and with as much expedition, as the requirements of the Act, and other statutory provisions and as the proper consideration of the matters before the Tribunal permit. Subject to s 151(4) the proceedings are open to the public: s 151(3). 18The MHRT has the functions conferred or imposed on it by or under the Mental Health Act or any other legislation. Those functions (not exhaustive) clearly affecting individual's rights, indeed, their freedom, include: (a) the review of voluntary patients (s 9); (b) holding mental health inquiries (s 34); (c) determining whether or not an assessable person is a mentally ill person (s 35); (c) adjourning mental health inquiries (s 36); (d) reviewing involuntary patients (s 37) and determining whether the patient is a mentally ill person for whom no other care (other than care in a mental health facility) is appropriate and reasonably available (s 38); (e) re-classification of involuntary patients as voluntary patients (s 40); (f) dealing with appeals against discharge refusals (s 44); (g) making community treatment orders (s 51); (h) determination of applications for community treatment orders (s 53); (i) review of detained affected persons (ss 63, 64); (j) varying or revoking a community treatment orders (s 65); (k) determining when electro convulsive therapy may be administered (s 89); (l) determining when electro convulsive therapy may be administered to involuntary patients (s 94); and (m) providing consent for special medical treatment (s 102). 19Section 145 of the Mental Health Act provides certain immunities: 145 Certain proceedings prohibited No proceedings lie against the Tribunal, a member of the Tribunal or a member of staff of the Tribunal for or on account of any act, matter or thing done or ordered to be done or omitted or suffered to be done by the Tribunal, member or member of staff, and purporting to be done, ordered, omitted or suffered for the purposes of carrying out the provisions of this or any other Act, if the Tribunal, member or member of staff has acted in good faith. 20Schedule 5 of the Mental Health Act sets out the provisions relating to members of the Tribunal. In respect of the term of office of members the Schedule provides in cl 2: (1) A member holds office for the period specified in the member's instrument of appointment. (2) The term of an appointment must not exceed 7 years. (3) A member is eligible for re-appointment. 21Clause 3 refers to the duties of full-time members: A full-time member must devote the whole of his or her time to the duties of the office of member, except as permitted by this Act or except with the consent of the Minister. 22Clause 5 refers to remuneration and allowances. Clause 5(2) was applicable to Dr Hookey: (1) The President and a Deputy President are entitled to be paid: (a) remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975, and (b) such travelling and subsistence allowances as the Minister may from time to time determine in respect of the President or a Deputy President. (2) A member, other than the President or a Deputy President, is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the member. 23Clause 8 deals with vacancies in the office of a member: (1) The office of a member becomes vacant if the member: (a) dies, or (b) completes a term of office and is not re-appointed, or (c) resigns the office by instrument in writing addressed to the Minister, or (d) is removed from office by the Minister under this clause or by the Governor under Chapter 5 of the Public Sector Employment and Management Act 2002, or (e) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or (f) becomes a mentally incapacitated person, or (g) is convicted in New South Wales of an offence which is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence which, if committed in New South Wales, would be an offence so punishable, or (h) being a full-time member, engages in any paid employment outside the duties of the office of member, except with the consent of the Minister. (2) The Minister may remove a member from office at any time. 24Clause 10 deals with the effect of certain other Acts. Sections 10(1) and 10(3) are relevant: (1) The Public Sector Employment and Management Act 2002 does not apply to the appointment of a member and a member is not, as a member, subject to that Act (except Chapter 5). (2) If by or under any Act provision is made: (a) requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office, and (b) prohibiting the person from engaging in employment outside the duties of that office, the provision does not operate to disqualify the person from holding that office and also the office of a part-time member or from accepting and retaining any remuneration payable to the person under this Act as such a part-time member. (3) The office of a member is not, for the purposes of any Act, an office or place of profit under the Crown. 25In cll 8 and 10 there is reference to the Public Sector Employment and Management Act 2002 ("PSEM Act"). Clause 10(1) provides that the PSEM Act does not apply to the appointment of a member and a member is not, as a member, subject to that Act (except Chapter 5). Chapter 5 defines a "term appointee" as meaning a: person appointed by the Governor or a Minister to a statutory office where the Act concerned provides that the holder of the office holds it for a term specified in the Act, in the instrument of appointment or in another instrument. That Dr Hookey was a term appointee was not in issue. 26Section 116, which is in Ch 5 of the PSEM Act, provides for the removal of a term appointee from office: (1) The Governor may remove a term appointee from office at any time for any or no reason and without notice. (2) This section does not prevent a term appointee from being removed from office apart from this Act. (3) This section applies whether the term appointee holds office on a full-time or part-time basis. (4) This section does not apply to a person in the person's capacity as: (a) the holder of an office under an Act that provides that the holder may or must be removed from office following an address, declaration, resolution or other involvement of either or both of the Houses of Parliament, or (b) the Crown Advocate, or (c) an Assistant Commissioner for the Independent Commission Against Corruption or any other officer of the Commission, or (d) the Public Service Commissioner. 27Section 120 of the PSEM Act, which is also in Ch 5, relevantly provides: (1) This Chapter prevails over any inconsistent provision of any other Act or law or of the terms of appointment of or contract with a person. (2) Part 6 (Unfair dismissals) and Part 9 (Unfair contracts) of Chapter 2 of the Industrial Relations Act 1996 do not apply to or in respect of the removal of a term appointee from office under this Chapter. (3) This Chapter applies to a person appointed to a statutory office even though the Act concerned excludes the application of this Act, unless it expressly excludes the application of this Chapter. (4) This Chapter applies to persons holding office at the commencement of this Chapter, as well as to persons appointed to an office afterwards. (5) Disentitlement under this Chapter to salary of an office does not apply as regards a subsequent re-appointment to the office. ... 28It is noted that s 120(1) provides that Ch 5 "prevails over any inconsistent provision of any other Act or law or of the terms of appointment of or contract with a person" and that s 120(2) provides that Part 9 of Ch 2 of the IR Act does not apply " to or in respect of the removal of a term appointee from office under..." Ch 5. 29Reference should also be made to s 160 of the PSEM Act, which is in Ch 8 - Miscellaneous and provides: (1) This Act does not affect the operation of the following Acts: (a) the Industrial Relations Act 1996, (b) the Superannuation Act 1916 or any other superannuation legislation that applies to employees to whom this Act applies. (2) Subsection (1) does not limit the operation of section 22, 35 or 72. 30It is relevant to observe that Schedule 3 of the PSEM Act provides for the extended leave entitlements for officers and temporary employees in the Public Service.

Matters relied upon by Dr Hookey 31The evidentiary matters that Dr Hookey relied upon in pressing his claim may be summarised in the following terms: (a) following his appointment as a part-time member of the MHRT commencing on 2 September 1996, the Department of Health provided Dr Hookey with an "employee number". This number remained constant throughout his engagement as a part-time Member with the MHRT. The employee number appeared over the relevant period on Dr Hookey's payslips and other documents from the Department . Dr Hookey was never informed that his employee number was a "mere administrative convenience" for the Department; (b) on or about 14 April 1998, Dr Hookey received a letter from the Registrar of the MHRT stating that the MHRT had recently been made aware by the NSW Premier's Department that part-time members of boards, commissions and tribunals were considered to be employees by the Australian Taxation Office ("ATO") and that such boards, commissions and tribunals have certain obligations to the ATO when paying remuneration to their part-time members. Attached to this letter were a number of employee forms that Dr Hookey was required to complete and return for forwarding to the Department's Salaries Branch. The forms included an "Employment Declaration form". Dr Hookey was advised that from the first pay period of the 1998/1999 financial year he was to be added to the Department's payroll and that his payments were to be treated as salary payments; (c) the MHRT Registry maintained a central diary of matters before the MHRT. Dr Hookey would be allocated hearing days (or half days) by the Registry which then allocated files for the members of the MHRT on the relevant days. The files only arrived on the sitting day in question and required immediate review before a matter was called. On any given day the MHRT would have from 6 to 12 matters to be determined. The frequency of being allocated hearings by the Registry varied over time. For example, in the financial years: (i) 2003/2004 Dr Hookey worked 5.5 days; (ii) 2004/2005 Dr Hookey worked 6 days; (iii) 2005/2006 Dr Hookey worked 7 days; and (iv) 2006/2007 Dr Hookey worked 8 days. (d) Dr Hookey's adjudicative function was directed and controlled in terms of how he was to perform his work. His functions, as a member, were the subject of extensive written instructions. Dr Hookey was told by the staff in the MHRT Registry what cases he would hear or what other work he was to perform, and given the locations where matters would be heard; (e) subject to nominating days when he was available, Dr Hookey never had any control over where he would be performing tribunal work or when the work would be performed. He had no control over which files he would be allocated (other than the capacity to disqualify himself), no ability to decline work and no capacity to engage others to perform the work given to him by the Registry; (f) as a part-time member of the MHRT Dr Hookey was from time to time provided with directions from the Registrar, President and Deputy Presidents. The directions would relate to matters such as how to fill out relevant forms, the allocation of part-time members to various regions, the unilateral change of terms and conditions of the appointment and where work was to be performed; (g) from time to time both the Department and the MHRT in documents and administrative arrangements had referred to Dr Hookey as an employee; (h) all work equipment and workplace services were provided to Dr Hookey by the respondent. He was provided with stationary and office supplies for the performance of his hearing work; (i) Dr Hookey was eligible for workers' compensation. He regarded his workers' compensation rights to be consistent with his understanding that he was an employee who enjoyed the benefits associated with employment; (j) Dr Hookey was entitled, as a part-time member, to superannuation contributions made by the respondent at the prescribed rate to his superannuation fund; (k) in the 2007/2008 MHRT Annual Report Dr Hookey received recognition from the MHRT that he had served for over a decade on the Tribunal; (l) an example of Dr Hookey's understanding of his status as an employee was his application to the Law Society of the Australian Capital Territory for a Restricted Practising Certificate in 2006. He applied for a restricted practising certificate on the basis that he was employed by the respondent and not as a lawyer intending to practice on his own account either in partnership or otherwise; (m) throughout the period of his appointments as a member of the MHRT Dr Hookey completed timesheets which were provided at the conclusion of each hearing day and the time sheets were then returned to the MHRT Registry for processing of payment of his remuneration. The submission of time sheets continued after the introduction of the computerised payroll system. Prior to the introduction of the computerised payroll system, Dr Hookey received a remittance advice from the respondent setting out details of payments made by cheque based on the timesheets that he had submitted. After the introduction of the computerised payroll system, he received payslips from the respondent showing his employee number and details of the payments made, including deductions for taxation and superannuation. Dr Hookey had no recollection of ever submitting invoices to the respondent or the MHRT for the payment of his remuneration. He did not submit any invoices after the introduction of the computerised payroll system and the provision of pay slips by the respondent; (n) Dr Hookey was never told that the Department's position was that members of statutory tribunal's such as the MHRT were not employees. He was also never told that his remuneration as a member of the MHRT was 'all-encompassing compensation' such that would not accrue leave entitlements. Dr Hookey knew that other members of the MHRT had accrued leave entitlements, even though the Department's position was that such entitlements did not accrue to members of the MHRT because they were not considered to be employees; (o) a Premier's Memorandum dated 26 October 2000 stated that a consistent approach had been adopted for statutory appointments made under different Acts with no specific provision for leave entitlements, such that "persons recommended for appointment shall be entitled to the leave conditions applying under the Public Sector Management Act 1988, and the Regulation made thereunder"; (p) the respondent's refusal to provide Dr Hookey with accrued leave entitlements was inconsistent with the benefits provided to part-time members of other statutory tribunals in New South Wales. In 1994 Dr Hookey was appointed as a part-time referee of the Consumer Claims Tribunal (as it was then known). He held this position, including as a member of the successors to the Consumer Claims Tribunal - namely, the Fair Trading Tribunal and the CTTT - continuously until March 2007. His final appointment as a part-time member of the CTTT was for a period of five years from 21 March 2002. On the expiry of his final appointment he was not paid any accrued entitlement to annual and long service/extended leave. On 14 March 2008, he commenced proceedings in the Industrial Court of New South Wales against the State of NSW/Department of Commerce (now known as the Department of Services, Technology and Administration) seeking orders under s 106 of the Industrial Relations Act and declaratory relief under s 154 of the Industrial Relations Act. By these proceedings he sought an order varying his contract with the Department of Commerce to include pro rata entitlements to four weeks' annual leave per year and to extended/long service leave; an order that the Department of Commerce pay to him a just amount of money in connection with the contract so varied; and declarations that he was an employee of the Department of Commerce and was entitled to accrue and be paid annual and long service/extended leave; (q) in or about July 2008, Dr Hookey settled his claims against the Department of Commerce prior to proceeding to hearing. He did so on the terms that he received a payment in the sum of $10,200.65 (less applicable tax) in respect of extended leave that he accrued as a member of the CTTT and its predecessors. The terms of this settlement were not subject to any confidentiality obligations; (r) during his appointments as a member of the MHRT Dr Hookey was aware that full-time appointees of the MHRT enjoyed accrued leave entitlements, and had done so well before 2001; (s) the remuneration Dr Hookey received from his work as a member of the MHRT was set by reference to the remuneration paid to full-time members of the MHRT (the President and Deputy Presidents), who were provided with annual leave and long service leave entitlements. Increases in the remuneration of full-time members of the MHRT flowed on to the remuneration of part-time members, and the respondent informed Dr Hookey of these flow-on increases to his remuneration at the time they were implemented. However, he was never informed that any part of his remuneration reflected compensation for the absence of accrued leave entitlements.

Unfair contract claim 32The applicant's principal claim was that there existed a contract or arrangement between Dr Hookey and the respondent that was unfair harsh, unconscionable or against the public interest in that it failed to provide Dr Hookey with: (a) any benefits in the nature of annual leave; or (b) any benefits in the nature of long service leave throughout the course of his engagement with the respondent. 33Further, it was claimed the contract was unfair, harsh, unconscionable or against the public interest in that, by failing to provide the benefits of annual leave and long service leave, it afforded Dr Hookey less favourable conditions compared to: (a) other members of the Mental Health Review Tribunal; and (b) members of other statutory tribunals administered by the State of New South Wales or emanations thereof in a manner that was arbitrary, capricious, discriminatory, anomalous and/or unreasonable. 34Further, or in the alternative, it was asserted Dr Hookey received pursuant to the contract a total remuneration that was less than a person performing the work would receive as an employee performing the work. 35Under s 106(1) of the IR Act the Court 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". 36A "contract" for the purposes of s 106 is defined in s 105(1) as meaning "any contract or arrangement, or any related condition or collateral arrangement, but does not include an industrial instrument." An "unfair contract" is defined as meaning a contract: (a) that is unfair, harsh or unconscionable, or (b) that is against the public interest, or (c) that provides a total remuneration that is less than a person performing the work would receive as an employee performing the work, or (d) that is designed to, or does, avoid the provisions of an industrial instrument. 37Section 106(5) provides that in making an order under s 106, the Court may "make such order as to the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case." 38As the applicant correctly submitted, the critical jurisdictional fact to be established under s 106 is the identification of a contract "whereby a person performs work in any industry": Stevenson v Barham [1977] HCA 4; (1977) 136 CLR 190 at 201 per Mason and Jacobs JJ; Fish v Solution 6 Holdings Ltd [2006] HCA 22; (2006) 225 CLR 180 at [18]-[19]; Mayne Nickless Ltd v Industrial Relations Commission of New South Wales [2004] NSWCA 359; (2004) 141 IR 1 at [45] per Mason P. The Court has jurisdiction to determine issues of fairness under s 106 upon proof of the existence of a contract answering the statutory description. 39However, in applying s 106 the Court is to first establish whether any work has been performed in an industry and then to identify the contract or arrangements whereby that work is performed: Fish at [18]; Wirraway (NSW) Pty Ltd v Ultra Tune Australia Pty Ltd [2006] NSWIRComm 300; (2006) 156 IR 367 at [42].

Alleged arrangements 40The applicant submitted that Dr Hookey performed the work earlier described in this judgment in the health industry as a member of the MHRT. In relation to the existence of a "contract" the applicant submitted there was a contract or set of arrangements "whereby" - or "according to which" ( Fish at [19]), "in consequence of which, or in fulfilment of which" ( Fish at [41]) - Dr Hookey performed that work. It was further submitted the contract or set of overall arrangements in this case comprised three main elements: (1) there was an agreement or understanding between Dr Hookey, the respondent, the MHRT and/or the NSW Department of Health that he would perform the work of a part-time member of the MHRT for reward as manifested by: (a) the MHRT initially advertising for expressions of interest for appointment as a part-time member, and Dr Hookey answering that advertisement and applying for an appointment; (b) Dr Hookey attending a telephone interview, and subsequently being recommended by a selection committee for an appointment; (c) (subsequent to the initial appointment) Dr Hookey writing to the MHRT requesting reappointment to the position on each occasion; (d) Dr Hookey participating in interviews and some testing conducted by a selection committee for his initial appointment and subsequent reappointments; (e) advice on the appointments and reappointments given by the Minister to the Governor; and (f) the various appointments and reappointments of Dr Hookey to the position by the Governor under the MHA [ Mental Health Act ]. (2) Dr Hookey performed the work according to the terms, conditions and policies as formulated and implemented or imposed by the MHRT itself (as distinct from the operation of the MHA), including by issuing the "MHRT Members Manual" to Dr Hookey in November 2007 and by occasional correspondence from the President and/or the Registrar of the MHRT (or the Department of Health) to Dr Hookey, including the 'Part-time Member Remuneration Guidelines' issued to Dr Hookey in November 2004, such as: (a) the requirement to arrive at the venue half an hour before the hearing to plan the hearing day and participate in a pre-hearing discussion with other members; (b) whether or not attendance at pre-hearing conferences referred to in (a) are included in the hearing time for which members are paid; (c) the requirement of a minimum of 4 hours to be worked before a full day rate is paid (as distinct from the 3.5 hours determined by the Minister) - this was 'at the request of the President'; (d) the method of scheduling of hearings whereby advance 6-monthly rosters are provided for members to indicate availability and sitting preferences; scheduled hearing days are then provided to members); (e) the requirement for members to be available to sit on the MHRT on a regular basis (a minimum of once per month); (f) the requirement for members to be available for the full day where scheduled to sit on a full day hearing; (g) the application of half-day sitting fee for preparation of written reasons, and provision to request greater payment for very complex matters requiring more than a half-day preparation; (h) the exceptions to the payment of an allowance for use of private vehicle for the return distance between their private residence and the MHRT's Gladesville premises; (i) the use of Tribunal vehicles and fuel cards (member-driver must record each trip on a Vehicle Running Sheet; and members should purchase petrol from preferred Government suppliers (Caltex and Mobil), and not with other suppliers except in an emergency); (j) the entitlement to workers compensation (all members are eligible); (k) the induction and professional development training provided to members (the MHRT provides a minimum of 4 professional development sessions per year and members are expected, wherever possible, to attend those sessions on an unpaid basis); (l) the development of a performance appraisal system (the MHRT was 'looking into developing' a performance appraisal system for members); (m) the procedures to address threats to safety of members from aggressive behaviour from patients (members should request assistance of security staff at hospitals where there are concerns about the potential for aggressive behaviour, and should alert the MHRT office if safety at a hearing has been compromised); (n) the prescribed method of altering working hours and hearing times (members to contact MHRT Senior Registry Officer and not staff at venue of hearing); (o) the minimum hours of work during full-day hearings (members must be prepared to stay until 5pm); (p) the differential remuneration for hearings away from the Sydney metropolitan area (full day sitting fee paid for hearings at Gosford, Newcastle and Wollongong where the time spent travelling and conducting a hearing is greater than 6 hours); (q) the requirement to perform tribunal functions 'after-hours' for free (part-time members are required to perform work in conducting urgent hearings 'after hours' of up to 1 hour 'in good faith' with no payment made); (r) payment of an additional half day sitting fee; (s) the provision for ' special payments ' to compensate for disadvantage in carrying out MHRT business (which was available on application in writing to the Registrar); (t) the deduction of PAYE taxation from payment of sitting fees; and (u) the entitlement to superannuation guarantee payments, including qualifying criteria (a member is entitled to receive superannuation contributions if he or she is under the age of 70 and is paid more than $450 per month by the MHRT). (3) Dr Hookey performed the work according to the terms and conditions as formulated and implemented or imposed from time to time by government policy as established, inter alia , by way of Premier's memorandum (as distinct from the operation of the MHA, and any policy of the MHRT), such as: (a) the absence of any entitlement to a daily subsistence allowance (for hearings involving overnight stays or longer stays away from home), and a policy that members will be paid only by reimbursement of actual expenses incurred for accommodation and meals; (b) the reimbursement for expenses (including for parking fees, tolls, taxi fares, public transport, fines, accommodation for overnight stays and meals); (c) the rates set by way of an allowance for the use of private vehicles; and (d) the provision of leave entitlements pursuant to the PSEMA by formulation in an instrument of appointment where no specific provision exists in an enabling Act for the granting of various types of leave. 41Counsel for the applicant submitted that the overall arrangement directly envisaged Dr Hookey performing the work such as by, inter alia : (a) requiring Dr Hookey to arrive at the venue half an hour before the hearing to plan the hearing day and participate in a pre-hearing discussion with other members; (b) requiring Dr Hookey to preside at a hearing of the MHRT for the full day (until at least 5pm) on which he was scheduled to sit; (c) expecting Dr Hookey to perform unpaid after-hours work (urgent hearings) of up to one hour per day, and (d) requiring Dr Hookey to attend regular professional development training sessions on an unpaid basis. 42It was further submitted the Court should look to the reality of the relationships existing between the parties and not merely to the legal form which, in this case it was asserted, comprised appointments for designated terms under the Mental Health Act : see Ross v GN Comtext (Australia) Pty Ltd [2000] NSWIRComm 133; (2000) 107 IR 1 at [29]-[30]; Payne v Foxboro L & N Pty Ltd (1998) 81 IR 404 at 407-408. 43Thus, it was submitted, the Court has recognised the continuity and entirety of a person's service under (strictly) distinct contractual arrangements between differing parties in considering relief under s 106: see Ross v GN Comtext at [29]-[30] and Great Scott International Pty Limited (No 2) v Cosmetic Suppliers Pty Limited [2006] NSWIRComm 358 at [102]-[109], affirmed on appeal in Cosmetic Suppliers Pty Ltd v Great Scott International Pty Ltd [2007] NSWIRComm 257; (2007) 168 IR 89. 44Counsel for the applicant submitted: The overall arrangement ... transcended the separate statutory appointments in that, for example: (a) the Part-Time Member Remuneration Guidelines issued to Dr Hookey in November 2004 (and the Members Manual first issued in 2006) continued to apply to Dr Hookey until superseded by subsequent MHRT guidelines, irrespective of whether Dr Hookey remained on the same appointment; and (b) the Premier's memorandum concerning the provision of leave entitlements pursuant to the PSEMA by formulation in an instrument of appointment where no specific provision exists in an enabling Act for the granting of various types of leave continued to apply throughout three successive appointments of Dr Hookey under the MHA. Further, in giving effect to Dr Hookey's fifth and final successive appointment to the MHRT from September 2007, it would not have been conscionable for the respondent to treat Dr Hookey as if he were a new member of the MHRT coming from an unrelated position. The point is emphasised by the fact that the respondent provides accrued leave benefits to full-time members of the MHRT on the basis of continuous service throughout successive statutory appointments, and also to part-time members of other tribunals on the same basis. Indeed, the respondent has even treated non-contiguous terms of appointment of a part-time member of a similar tribunal (which were separated by a period of 16 years) as continuous for the purpose of paying accrued extended leave entitlements. To regard each of Dr Hookey's appointments in isolation as urged by the respondent is to adopt form over substance in a manner that is totally repugnant to the unfair contracts jurisprudence of this Court.

Work in an industry 45In responding to the applicant's contentions, the respondent submitted that Dr Hookey did not perform work in an "industry". "Industry" is defined in s 7 of the IR Act to include: (a) any trade, manufacture, business, project or occupation in which persons work, or (b) a part of an industry or a number of industries. 46The respondent submitted that whilst the word "industry", including as it does "any ... occupation in which persons work", is broadly defined, it ought not to be construed so as to include a person holding an "office" as being a person performing work in an "occupation". Reliance was placed on Grant v State of New South Wales (No 2) (1991) 48 IR 314. 47Grant concerned an application under s 88F of the Industrial Arbitration Act 1940 (a predecessor provision of s 106 of the IR Act) by a person who was a Commissioner and Deputy Chairman of the New South Wales Corrective Services Commission under the Prisons Act 1952. The appointment as Commissioner was for a term of seven years, whilst the appointment as Deputy Chairman was for an unspecified period. The Prisons Act was amended in 1988 and the Commission was abolished. Consequently, the offices of Commissioner and Deputy Chairman of the Commission were also abolished. 48At first instance it was concluded that the valid removal of a statutory office holder from public office and abolition by statute of that office did not constitute a breach of contract if one existed and gave no right to compensation unless the statute so provided. It was held the loss of statutory office by the applicant could not be categorised under s 88F as unfair, harsh or unconscionable or against the public interest. That conclusion followed as a matter of jurisdiction. Where at law the Crown is not required to pay compensation to an office holder whose office is abolished by statute or provide him with alternative employment and does not do so such actions cannot be categorised as unfair, harsh or unconscionable or against the public interest within the meaning of s 88F. 49On appeal, Hill J (Maidment and Sweeney JJ concurring on this point) was inclined to the view that, at least as to some aspects, the relationship between the Crown and a Crown servant who was the holder of a public office was an arrangement within the definition of a "contract" in s 88F. His Honour referred to Gould v Stuart [1896] AC 575 at 577; Reilly v The King [1934] AC 176 at 179; Carey v The Commonwealth (1921) 30 CLR 132 at 137; Lucy v The Commonwealth (1923) 33 CLR 229 at 237, 249 and 253 and Magrath v Geddes [1933] HCA 57; (1933) 34 SR (NSW) 25 and Morgan v Geddes (1933) 50 CLR 520. However, his Honour went on to state at 321-322: [A] substantial question arises whether the arrangement was one whereby work was performed, that is, that the work performed by Mr Grant as Commissioner (and Deputy Chairman), was as a consequence of or in fulfilment of the arrangement. In terms of the substance of the matter the work performed by him was governed by and directly consequent upon the provisions of the statute and his appointment thereunder and not upon the arrangement itself. Furthermore, there is in my view some real doubt, even if there was an arrangement whereby work was performed, that the work was performed in any industry as required by the section. 50His Honour continued at 322: The words [i.e. the definition of "industry"] do not seem apposite to encompass the exercise or [sic] powers, duties and functions attached to the statutory office of Commissioner for Corrective Services established by the Prisons Act 1952. However, since these issues were not argued before Cahill V-P or on appeal, I do not express any concluded view on them. 51In his reasons for decision, Sweeney J held at 338-339 It may be that there was some arrangement between Mr Grant and the State of New South Wales separate and distinct from the appointment to the two statutory offices. Even if there was such an arrangement I cannot see how it could be an "arrangement ... whereby a person performs work in any industry". It seems to me that the work was performed by Mr Grant pursuant to his statutory appointments and not pursuant to any such arrangements. For these reasons and the reasons set out by Hill J, I am of the opinion that the Commission does not have jurisdiction to grant the relief sought. I would dismiss the appeal on the basis of lack of jurisdiction. 52The definition of "industry" considered in Grant was narrower than that now appearing in the IR Act. At the time Grant was decided "industry" was defined in s 5 of the 1940 Act to mean: ... craft, occupation or calling in which persons of either sex are employed for hire or reward, and unless otherwise indicated by the context or any provisions of this Act any division of an industry or combination, arrangement or grouping or industries. 53Nevertheless, counsel for the respondent submitted: [T]he conclusion of Hill and Sweeney JJ that Mr Grant did not perform work in an industry carries no less force when regard is had to the current definition of "industry" in the IR Act. Further, in addition to the above, in enacting s 106 the Legislature would not be found to have intended to empower the Court to not only to vary but to declare void ab initio or from some other time "contract[s]" relating to the holding of important statutory offices: Grant at 326; Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130. 54Counsel for the respondent further submitted that even assuming the Court has jurisdiction in the present matter, the Court would not make an order or declaration that was inconsistent with or derogated from particular matters provided for separately under the Mental Health Act pursuant to which Dr Hookey held office. Reference was again made to Grant where Hill J (Sweeney J concurring) held at 326-327: In the circumstances s 88F of the Industrial Arbitration Act 1940 cannot, in my opinion, be construed as extending to a case such as the present. Its general provisions must be construed having regard to the provisions and the intention of the special legislation which governs the subject matter of any contract or arrangement which exists in this case. In the result there is no jurisdiction under the section to deal with the present application. ... Indeed, the application in general of s 88F to a contract or arrangement relating to an important office of the Crown, appointment to and removal from which is governed directly by special legislation, as is the case here, is in my opinion doubtful. ... It is difficult to conceive for example that under general legislation such as s 88F the Parliament intended that the Commission... would have power to make orders avoiding or varying ab initio, in whole or in part , contracts or arrangements concerning the appointment to and the holding of important statutory offices under specific legislation prescribing, directly or indirectly, the major and substantial terms and conditions of service including those governing the appointment itself, the period of tenure, the remuneration and the loss or vacation of office. In the present case the Prisons Act 1952 would, in my opinion preclude any effective variation, let alone avoidance, going to any aspect of the relationship regulated directly or indirectly by the statute. ... Certainly the Commission could not make an order having any effective operation declaring any such contract or arrangement wholly void ab initio in so far as it related to the appointment itself, the holding of the office and the terms of service regulated by the Act. Any such order would be futile. Furthermore, I am of the view that if the terms of any such contract or arrangement purported to fetter, qualify or control the proper exercise of any of the rights and/or duties vested in the executive by the legislation they would be invalid as being at variance with the statute and contrary to public policy. 55Hill J dismissed the appeal principally on the basis that there was no jurisdiction under s 88F to deal with the application because the Prisons Act and the Statutory and Other Offices Remuneration Act 1975, with their special provisions that created and abolished the statutory office and which dealt with the question of compensation, prevailed over the general provisions of the Industrial Arbitration Act. Maidment J was of the opinion that the relationship between the appellant and the Crown was an arrangement and one whereby Mr Grant performed work in an industry, namely, "the work performed in the execution of the offices held by him." Maidment J was of the view that the making of an order under s 88F that provided the appellant with compensation for the loss suffered by him would not be inconsistent with, or repugnant to, the statutory provisions which governed the holding of and abolition of the offices the appellant held (at 337). It would appear his Honour came to this view on the basis that the Prisons Act did not contemplate the statutory abolition of the office of Commissioner and consequently the terms of that Act did not address themselves to the entitlements of the office holder upon abolition of the office (at 336). 56Maidment J held the arrangement was unfair and that he would uphold the appeal. Sweeney J essentially agreed with Hill J. 57There is no question that Dr Hookey performed work; he did so as a part-time member of the MHRT. The question is whether he performed work in any industry. The definition of "industry" in s 7(a) of the IR Act was characterised at [37] of Fish as "very wide". 58In Caterpillar of Australia Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 83; (2009) 181 CLR 286, Spigelman CJ (with whom Allsop P and Tobias JA agreed) held that s 106 must be interpreted in its industrial context (at [100] and [113]). At [105] his Honour stated: [105] ... The reasoning in Fish, Batterham and Old UGC requires the Court to read the critical phrase - "whereby a person performs work in any industry' - as not extending beyond a context which can reasonably be characterised as "industrial". 59His Honour also observed: [99] The IR Act, including the whole of Ch 2, is not concerned to regulate multi-million dollar investments or relationships which cannot be seen to involve anything analogous to the employer/employee relationship that lies at the heart of the concept of an "industrial" matter. [100] It is in this industrial context that the particular phrase in s 106 must be interpreted. The High Court proceeded to do so in an extended analysis which, subject to consideration of s 106(2A) subsequently inserted, must form the basis for determining the jurisdictional issue before this Court. ... [140] Messrs Gough and Gilmour conducted an enterprise in which they were the only investors and occupied the senior managerial positions. They were entrepreneurs who conducted a business of significant scale, involving tens of millions of dollars of capital investment, with 700 employees, over a score of business locations. No doubt they worked. They did not, however, 'perform work in an industry' "according to" the Dealership Agreements or the Overall Arrangement, within the meaning of s 106 of the Act. ... [142] In the context of a business of this scale, the range of activities to be undertaken by Messrs Gough and Gilmour, as envisaged by or required by the Dealership Agreements or the Overall Arrangement, was devoid of any "industrial" content. Insofar as their activities could be said to constitute "work" within s 106(1), neither those Agreements nor that Arrangement can be said to be, or to be included in, the contract or arrangement "whereby" that work was done. 60Dr Hookey, of course, was not involved in a senior managerial position in a large commercial enterprise. Nevertheless, the question is whether his work may be characterised as "industrial" or analogous to an employer/employee relationship that, as Spigelman CJ observed in Caterpillar , lies at the heart of the concept of an "industrial" matter. 61There does exist indicia that would suggest that the relationship between Dr Hookey and the respondent was analogous to an employer/employee relationship and, therefore, the work he performed could be regarded as "industrial" for the purpose of ss 105 and 106 of the IR Act. For example, Dr Hookey: (a) was selected for the position on the Tribunal following an interview process; (b) worked for reward in the capacity of part-time member of the MHRT; (c) complied with the terms, conditions and policies as formulated and implemented or imposed by the MHRT itself, including the MHRT Members' Manual; and (d) complied with the terms and conditions as formulated and implemented or imposed from time to time by government policy (as distinct from the operation of the Mental Health Act , and any policy of the MHRT) In addition, there were a number of indicia one normally associates with the task of identifying whether an individual was an employee or independent contractor that pointed in the direction of an employment relationship between Dr Hookey and the respondent. These are addressed later in this judgment. 62In Caterpillar, the Court of Appeal considered whether Dealership Agreements were contracts whereby work was performed. At first instance and on appeal in the Industrial Court the facts as found (findings not overturned in the Court of Appeal) included that: under those Agreements the Dealer Principals were required to use their qualifications and abilities to achieve the purpose of the Dealership Agreements - to develop and promote the sale of products, to provide high standards of service and to continue in the active management of the business; the Dealer Principals were required to actively participate in the management of the business of their company, Gough & Gilmour Holdings Pty Limited; Messrs Gough and Gilmour as managers and as Dealer Principals did work in accordance with the terms of the Sales and Service Agreement and parallel terms; Messrs Gough and Gilmour were not only Dealer Principals and managers but pivotal workers in the business on a day to day basis; they performed work in a managerial capacity and at a practical level (see Caterpillar at [49]). 63Notwithstanding these findings, it was held that the Dealership Agreements were not contracts whereby the Dealer Principals performed work. It was further held the Dealership Agreements were "devoid" of any "industrial" content and that "[i]nsofar as their [the Dealer Principals] activities could be said to constitute 'work' within s 106(1), neither those Agreements nor that Arrangement [the Overall Arrangement] can be said to be, or to be included in, the contract or arrangement 'whereby' that work was done" (at [142]). 64Spigelman CJ stated at [124]: [124] When determining which contract or arrangement satisfied the "hinge" word of "whereby", the industrial context of the legislative scheme remains significant. The identification of which of more than one possible contract or arrangement is or includes the contract or arrangement "according to" or "in accordance with" or "in fulfilment of" or "in consequence of" which work was performed, must have regard to the scope and purpose of the legislative scheme. Issues of fact and degree will arise. However, by reason of the industrial context, the further away the relevant contract is from something resembling an employer/employee relationship, the less likely it is that it satisfies the statutory "hinge". 65The other case of Fish involved the question of whether a share purchase agreement constituted a contract whereby work was performed in any industry. At [42]-[43] the joint judgment said: [42] The share purchase agreement made by Nisha and Mr Fish stipulated that Mr Fish's entering an employment contract with Solution 6 Holdings was a condition precedent to completion of the share purchase. ... The employment agreement that was made and the share purchase agreement were therefore related and one may well be described as collateral to the other. [43] After the two agreements were made and the share purchase agreement was completed, Mr Fish performed work in an industry. But when one asks what was the 'contract' whereby he performed that work, the answer does not include the share purchase agreement. ...

Three possible "contracts" 66In the present case, there are three possible "contracts" whereby Dr Hookey performed work in the health industry: (i) his statutory appointments; (ii) the terms, conditions and policies as formulated and implemented or imposed by the MHRT itself; and (iii) the terms and conditions as formulated and implemented or imposed from time to time by government policy. Counsel for the applicant described these three parts as constituting an "overall arrangement". 67The source of the obligation on Dr Hookey to perform work was his appointments by the Governor as a part-time member of the MHRT under the Mental Health Acts. Upon his appointments, Dr Hookey was obligated, when called upon, to perform those duties prescribed by the Mental Health Acts that I earlier described. 68Dr Hookey's compliance with the terms, conditions and policies applied by the MHRT and with terms and conditions of government policy applying from time to time, did not, in my opinion, constitute arrangements "according to" or "in accordance with" or "in fulfilment of" or "in consequence of" which Dr Hookey performed work. 69Those policies or conditions were merely ancillary to the statutory appointment of Dr Hookey under the Mental Health Acts in that they prescribed allowances, expenses and assorted other entitlements, and laid down various rules and procedures about how Dr Hookey was to conduct himself in carrying out his statutory duties. They might be regarded as "related conditions" or "collateral arrangements", but they were not "contracts" whereby work was done. If the Dealership Agreements in Caterpillar could not be regarded as contracts where work was performed, notwithstanding the fact that those Agreements provided for the Dealer Principals to perform certain work in their capacity as managers and directors, it is difficult to see how MHRT conditions and policies; and government policies that merely provided for certain benefits and other matters that were ancillary arrangements and essentially administrative in nature for the purpose of enabling the MHRT to operate efficiently, could be regarded as contracts whereby work was performed in any industry. 70These ancillary arrangements or conditions would attract the jurisdiction of the Court under s 106(2A) of the IR Act, even though they do not relate to the performance by a person of work in an industry, so long as (i) the contract to which they are related or collateral is a contract whereby the person performs work in an industry, and (ii) the performance of work is a significant purpose of the contractual arrangements made by the person.

The statutory appointments 71That brings the focus of attention back to the statutory appointments of Dr Hookey, which were the source of the obligation to perform work, namely, the duties under the Mental Health Acts. In Grant , as noted earlier, Hill J (with whom Sweeney J agreed) and Maidment J were inclined to the view that, at least as to some aspects, the relationship between the Crown and a Crown servant who was the holder of a public office was an arrangement within the definition of a "contract" in s 88F of the Industrial Arbitration Act . With respect, that is conceivably so. As it was observed by the Full Bench in Legal & General Assurance Society Ltd v Stock (1993) 49 IR 464 at 480-481, an "arrangement" may envisage a transaction in the nature of a bargain which may not be legally binding or enforceable, something in the nature of an understanding between two or more persons. Dr Hookey applied for the position of part-time member of the MHRT, underwent interviews and, on the advice of the Minister, the Governor appointed or re-appointed Dr Hookey to the position on the basis that Dr Hookey would receive remuneration for the work he undertook according to what the Minister determined from time to time (see Sch 5 of the 2007 Act). 72The question is whether that arrangement could be regarded as one whereby work was performed in any industry; whether it could be regarded as "industrial" as Spigelman CJ explained that term in Caterpillar . 73In Grant, Hill J - and Sweeney J more emphatically so - doubted whether the work of Mr Grant was subject to an arrangement "whereby work was performed in any industry". Hill J said the definition of "industry" did not seem apposite to encompass the exercise of powers, duties and functions attached to the statutory office of Commissioner for Corrective Services established by the Prisons Act. As earlier noted, the definition is now different but it is not apparent Hill J would have taken a different view in light of the current definition. His Honour considered it difficult to conceive that under general legislation such as s 88F the parliament intended that the Commission would have power to make orders avoiding or varying ab initio , in whole or in part, contracts or arrangements concerning the appointment to and the holding of important statutory offices under specific legislation. With respect, in general terms, I agree. 74In any event, in determining whether the arrangement between Dr Hookey and the respondent was "industrial" it is useful to apply the test posed by Spigelman CJ in Caterpillar , namely, whether the relationship was analogous to that of employer/employee. If Dr Hookey held an office in which he exercised "an independent responsibility cast on him by the law" not exercisable by the respondent (see Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd [1986] HCA 34; (1986) 160 CLR 626 at 662-664 per Brennan J) it is unlikely that one would be able to conclude the arrangement between Dr Hookey and the respondent was one analogous to an employer/employee relationship and, therefore, contained the necessary "industrial" content. 75Dr Hookey was an Australian legal practitioner exercising functions as a statutory office holder. He was to hold office for such period (not exceeding seven years) as may be specified in the member's instrument of appointment, but was eligible (if otherwise qualified) for re-appointment (cl 2 of Sch 5). The office of a member becomes vacant if the member completed a term of office and is not re-appointed (cl 8 of Sch 5). The Minister may remove a member "from office" at any time (cl 8(2) of Sch 5). The only other basis upon which a member of the MHRT could be removed from "office" (as distinct from the "office" of a member becoming vacant) is by the Governor exercising powers under Pt 4.3, Ch 5 of the PSEM Act . 76For the purpose of determining when the "office" of a member becomes vacant cl 8(1)(d) of Sch 5 of the Mental Health Act refers to Ch 5 of the PSEM Act. Under the latter statute Dr Hookey was a "term appointee", which is defined in s 114 as meaning "a person appointed by the Governor or a Minister to a statutory office where the Act concerned provides that the holder of the office holds it for a term specified in the Act, in the instrument of appointment or in another instrument." (emphasis added) 77Section 116 of the PSEM Act relevantly provides: 116 Removal of term appointee from office (1) The Governor may remove a term appointee from office at any time for any or no reason and without notice. (2) This section does not prevent a term appointee from being removed from office apart from this Act. (3) This section applies whether the term appointee holds office on a full-time or part-time basis. (emphasis added) ... 78Section 118 of the PSEM Act provides for compensation to an "office holder" upon removal, except in the case of a person who held the "office" concerned on a part-time basis. 79Section 120 of the PSEM Act relevantly provides: 120 Operation of this Chapter (1) This Chapter prevails over any inconsistent provision of any other Act or law or of the terms of appointment of or contract with a person. (2) Part 6 (Unfair dismissals) and Part 9 (Unfair contracts) of Chapter 2 of the Industrial Relations Act 1996 do not apply to or in respect of the removal of a term appointee from office under this Chapter. (3) This Chapter applies to a person appointed to a statutory office even though the Act concerned excludes the application of this Act, unless it expressly excludes the application of this Chapter. ... 80Notwithstanding the repeated references in the legislation to the holding of an "office", the applicant submitted that by virtue of the combined operation of ss 114, 120 and 160 of the PSEM Act, Dr Hookey's appointment to a statutory office was one of a kind that could be regulated by a contract amenable to variation by this Court under s 106 of the IR Act. It was submitted that s 160 gave primacy to the IR Act and whilst it expressly ousted the jurisdiction in s 120(1) of the PSEM Act it only did so "in very limited circumstances", those being in respect of the removal of a term appointee from office under Ch 5. 81That submission will only hold good if the arrangement between Dr Hookey and the respondent is one whereby work is performed in any industry and that is what I am currently exploring. 82The applicant referred to and relied on Holly v Director of Public Works (1988) 14 NSWLR 140 at 147-148 per Mahoney JA. The case concerned whether two persons were employees for the purpose of s 4(1) of the Government and Related Employees Appeal Tribunal Act 1980. It was an agreed fact that the two persons were electrical fitter/mechanics and "ministerial employees". There was some discussion by Mahoney JA at 146-148 regarding the classes of persons who act in the service of the Crown and where his Honour distinguished between a person who has been appointed to an office (for example, the office of constable) and a person employed under a contract of employment. Mahoney JA held the two individuals were employees under a contract of employment.

Officer versus employee 83It does not seem to me that Holly is of any particular assistance to the applicant. It merely identifies, by way of obiter observations, that a distinction is to be made between an employee and an officer. In Holly reference is made to Attorney General (NSW) v Perpetual Trustee Company Limited (1955) 92 CLR 113 at 118. In that case the Privy Council considered the distinction between a constable and a servant under a master and servant relationship. At 129 it was stated: Their Lordships can now express their final opinion upon the case. They repeat that in their view there is a fundamental difference between the domestic relation of servant and master and that of the holder of a public office and the State which he is said to serve. The constable falls within the latter category. His authority is original not delegated and is exercised at his own discretion by virtue of his office: he is a ministerial officer exercising statutory rights independently of contract. The essential difference is recognized in the fact that his relationship to the Government is not in ordinary parlance described as that of servant and master. 84Thus, as Professor G J McCarry observed in his book "Aspects of Public Sector Employment Law", Law Book Co Limited, 1988 at p 16, referring to Perpetual Trustee : If a position has attached to it some independent duties derived from some source other than the orders of the employer (such as a statute, for example ...), it is more likely to be an office. 85The applicant submitted, however, that the legislation made it clear that Dr Hookey did not occupy an office. Reference was made to cl 10(3) of Sch 5 of the Mental Health Act , which provides: (3) The office of a member is not, for the purposes of any Act, an office or place of profit under the Crown. 86This provision was the subject of some disagreement in the proceedings. The applicant submitted the effect of the provision was to indicate that the office held by Dr Hookey was "not an office as such under the Crown"; that "Dr Hookey was in a position where he was a step removed from being an officer of the Crown as such, and is more likely, more amenable, to be found to be operating under, and working, providing services under a separate contract or arrangement." 87The respondent submitted the purpose of cl 10(3) was to provide an exception to the prohibition found in s 13 of the Constitution Act 1902 against a person who holds an " office or place of profit under the Crown" from being elected, sitting or voting as a member of the Legislative Council or Legislative Assembly. 88Under s 13 of the Constitution Act a Member of either House of Parliament may be disqualified from membership of, and from sitting in the House, on the ground that the Member holds a contract or agreement for or on account of the public service of New South Wales (s 13(1)). Sections 13(4A) and 13(4B) were inserted in 1980 ( Constitution (Amendment) Act 1980) to remove doubt that a contract or agreement with the Crown under ss 13(1) and (2) does not apply to disqualify a person from sitting and voting or holding office as a member of either House by reason of holding or accepting an office of profit, thereby leaving it to s 13B as to the circumstances in which a disqualification for any such reason takes place. 89Sections 13(4A) and 13(4B) are in the following terms: (4A) Nothing in: (a) subsection (1) applies so as to prevent a person who holds an office of profit under the Crown or has a pension from the Crown during pleasure or for a term of years from being elected or of sitting or voting as a Member of either House of Parliament, or (b) subsection (2) requires or permits the seat of a Member of either House of Parliament who accepts such an office or such a pension to be declared to be, or to become or be, vacant, by reason only of his holding or accepting that office of profit or his having or accepting that pension. (4B) In subsection (4A), office of profit under the Crown includes any office or place of profit under the Crown which, by any Act, is declared or deemed not to be an office or place of profit under the Crown for the purposes of any Act or of this Act, whether in those terms or in terms to the like effect. 90There are many New South Wales statutes that contain the same or similar provision to that in cl 10(3) of Sch 5 of the Mental Health Act. The evident purpose of such a provision is to meet the requirement of s 13(4B) so that where the provision states: "The office of a member is not, for the purposes of any Act, an office or place of profit under the Crown", it becomes apparent by virtue of s 13(4B) that the office is an office of profit for the purposes of s 13(4A) of the Constitution Act . 91Thus, the purpose of a provision such as cl 10(3) of Sch 5 is not, in my opinion, to exclude a position from being regarded as an "office" under the relevant statute and, therefore, to invite the classification of the position as one of employee. Its purpose is connected with s 13 of the Constitution Act. 92Accepting that Dr Hookey held an office under the Mental Health Acts, consideration needs to be given to the nature of that office. First, the Tribunal in which Dr Hookey was a member was constituted by the Mental Health Acts. The MHRT had a seal "of which judicial notice is to be taken". 93Secondly, the MHRT has the functions conferred or imposed on it by or under the Mental Health Act or any other legislation. As mentioned previously, these functions include: (a)the determination of whether a temporary patient is a mentally ill person; (b)appeals against applications by patients to be discharged; (c)the review of cases of persons found unfit to be tried for an offence; (d)the review of cases of persons found not guilty by reason of mental illness; (e)the review of persons transferred from prisons; (f)the investigation of evidence on which an order for a person's apprehension was made; (g)dealing with requests from forensic patients detained in a hospital for a recommendation for an order that they to be transferred to a prison; (h)the making of community treatment orders; (i)the determination of whether a person is a mentally ill person; (j)the determination of whether a person is capable of giving informed consent to the administration of treatment; and (k)the determination of applications to administer treatment to involuntary patients. 94Thirdly, no proceedings lie against a member of the MHRT for acts, matters and things done or ordered to be done or omitted or suffered to be done by a member of the MHRT acting in good faith. 95Fourthly, the MHRT, in the exercise of its functions (other than those relating to forensic patients) is constituted by the President, a Deputy President or a member with legal qualifications (Dr Hookey), a psychiatrist member and a member who has other suitable qualifications. 96Fifthly, members of the MHRT have voting rights in relation to questions arising at its meetings, save as to questions of law or procedure; legal practitioners have rights of appearance before the MHRT; the Tribunal may administer an oath to any person giving evidence and may issue summonses; proceedings before the MHRT are recorded; a record of every determination or recommendation of the MHRT is to be made; a person must not refuse, neglect or for any reason fail to obey or comply with an order, direction, decision or determination, under the Mental Health Act or any other Act, of the Tribunal; and an appeal lies to the Supreme Court. 97Sixthly, in relation to the duties performed by Dr Hookey, they included: (a) the making of orders authorising the continued involuntary detention of a person made an involuntary patient by an order of a Magistrate; (b) reviewing voluntary patients in mental health facilities; (c) hearing appeals against an authorised officer's refusal to discharge an involuntary patient; (d) making, varying and revoking community treatment orders; (e) hearing appeals against a Magistrate's decision to make a community treatment order; (f) approving the use of electro convulsive therapy ("ECT") for involuntary patients; (g) determining if voluntary patients have consented to ECT; (h) approving surgery on a patient detained in a mental health facility. 98There can be no doubt that the Tribunal is an independent body with the power to adjudicate and determine important matters relating to mental health, including the making of decisions affecting the liberty of individuals. Whilst part-time members of the Tribunal do not have judicial independence, as they may be removed from office at any time, the Tribunal and its members are not subject to the control and direction of the respondent in the performance of the duties and functions under the Mental Health Act . Part-time members are appointed to the Tribunal because of their specialist knowledge, be it legal or medical and they apply that specialist knowledge in the performance of their duties. Part-time members are not answerable to the respondent for the decisions they make or the discretion they exercise in performing their functions under the Mental Health Act . 99In Oceanic Crest Shipping, Brennan J stated at 662: When the Crown or a public authority is the employer of a public officer who is charged by statute with the exercise of an "independent responsibility cast on him by law" (the phrase used by Dixon J. in Musgrave v. The Commonwealth [1936] HCA 80; (1937) 57 CLR 514 at 548), what is done in discharge of that responsibility is not done on behalf of the employer. The Crown or public authority, having no authority either to discharge that responsibility or to control its discharge, is not acting through the officer and what is done by the officer in discharge of the independent responsibility by the employee is not regarded as done in the course of his employment as a servant of the Crown or public authority. The statute which charges the officer-employee with the exercise of the independent responsibility denies that what he does in discharge of that responsibility is done on behalf of or for the benefit of the Crown or public authority. But an employer which is a private trading corporation having a commercial interest in its employee's exercise of a statutory responsibility stands in a different position. It may be within the objects and powers of a trading corporation - "within the scope of their incorporation" to adopt the phrase of Fry J. in Edwards v. Midland Rail.Co. (1880) 50 L J (QB) 281 at 284 - to employ servants who will discharge an independent statutory responsibility. True it is that such a servant needs no authority from and is not amenable to control by his employer in acting in discharge of his independent statutory responsibility, but in so acting he is doing what he is employed to do and he is doing it on behalf of his employer. 100I agree with the respondent that the statutory office held by Dr Hookey under the Mental Health Acts had attached to it independent duties which were derived from statute and not from the orders of an employer.

Employee indicia 101Counsel for the applicant, nevertheless, submitted that Dr Hookey's adjudicative function was directed and controlled in terms of how he was to perform his work by reference to the fact that he received "extensive written instructions" and was provided with "directions from the Registrar, President and Deputy Presidents" of the MHRT. The instructions and directions relied upon by the applicant, which purport to show that Dr Hookey was subject to direction in the performance of his statutory functions were, in my opinion, matters that went to administrative issues and they did not reflect control over how Dr Hookey was to perform his statutory duties. In this regard Mr Brabin, the MHRT Registrar, deposed: The provision of the [MHRT Members] Manual, and the issuing of directions to Tribunal members from time to time, is designed to produce consistency and best practice in the conduct of Tribunal proceedings and to provide assistance and clarification. The Manual and the directions issued do not and are not intended to fetter the Tribunal members' exercise of discretion in accordance with relevant legislation in Tribunal hearings nor are they designed nor intended to interfere with the decision making functions of Tribunal members. 102Moreover, as counsel for the respondent submitted: [S]uch direction and control as is asserted by Dr Hookey is to be viewed in light of the limited capacity that existed to "remove" Dr Hookey from office. That is, the ultimate sanction that is inherent to an employment relationship - the capacity of the employer to not only give directions, but to dispense with the services of an employee, does not reside with the person(s) who Dr Hookey asserts directed and controlled him in the performance of his statutory duties. 103A further indicator relied upon by Dr Hookey of his status as an employee was that the remuneration he received as a member of the MHRT had tax deducted from it and that he was provided with Group Certificates. Further, that superannuation contributions were made on behalf of Dr Hookey. 104Income tax is payable by persons holding statutory office irrespective of such a person being an employee. Prior to 1 July 2000 the obligation to deduct "pay as you earn" taxation amounts from "eligible persons" arose pursuant to provisions of the Income Tax Assessment Act 1936. An "eligible person" was relevantly defined in s 221 of that Act as: [A] person who holds or performs the duties of an appointment, office or position under the Constitution or under a law of the Commonwealth, a State or a Territory.... 105From 1 July 2000 "pay as you go" withholding provisions commenced. Relevantly, s 12-45 in Sch 1 to the Taxation Administration Act 1953 imposes an obligation on the paying entity to withhold an amount from the salary, wages, commission, bonuses or allowances it pays to an individual as: [A] person who holds or performs the duties of, an appointment, office or position under the Constitution or an Australian law. 106In relation to superannuation, under the Superannuation Guarantee (Administration) Act 1992 employers are required to make superannuation contributions into a compliant superannuation fund or Retirement Savings Account for the benefit of their eligible employees in accordance with minimum prescribed levels. 107Section 12(3) of the Superannuation Guarantee (Administration) Act provides that if a person works under a contract that is wholly or principally for the labour of that person, the person is an employee of the other party to the contract. 108Additionally, s 12(9)(a) provides for an extended definition of "employee" and includes a person who holds, or performs the duties of, an appointment, office or position under the Constitution or under a law of the Commonwealth, of a State or of a Territory. That the Superannuation Guarantee (Administration) Act provides for such an extended definition does not translate into a conclusion that the arrangement whereby Dr Hookey performed work was an arrangement within the meaning of ss 105 and 106 of the IR Act. 109The applicant referred to the evidence that Dr Hookey was provided with an employee number and that he was referred to as an employee. For example, in a memorandum from the Registrar of the MHRT to all part-time members (dated 14 April 1998) the part-time members of the Tribunal were asked to complete, inter alia , an "Employment Declaration" so as "to enable a person to be placed in the Health Department's payroll and for payments due to an employee to be processed." 110The description of Dr Hookey in the respondent's internal administrative processes as an employee is not determinative of Dr Hookey's status. Dr Hookey was treated as an employee for payroll purposes, which no doubt assisted the respondent to administer its payroll in an efficient manner and avoided the need to set up a separate payroll system for holders of office in circumstances where "the remuneration of a modern office-holder is likely to be construed as an ordinary salary for performing the duties of the office, not as the archaic form of an honorarium for filling an office..." ( Halsbury's Laws of England (4 th ed.), Vol 16(1A), [8]). 111Dr Hookey relied on the fact that he was eligible for workers' compensation, "if the need arose." That there were workers' compensation arrangements in place for persons such as Dr Hookey is not a basis to conclude Dr Hookey was, therefore, an employee. The New South Wales Government is a self-insurer. Persons such as Dr Hookey are covered for death and bodily injury arising out of or in the course of their performance of functions as a member of the MHRT. 112Dr Hookey referred to the diary and rostering arrangements in place at the MHRT. In relation to these matters Dr Hookey asserted: I never had any control over where I would be performing tribunal work or when the work would be performed. ... I had ... no ability to decline work and no capacity to engage others to perform the work given to me by the Registry. 113I agree with the respondent that given the nature of the work performed by the MHRT it was "hardly surprising" that part-time members such as Dr Hookey could not control where "the work would be performed" (the work was undertaken at various regional centres as well as Sydney). And further: [G]iven that Dr Hookey performed duties pursuant to a statutory appointment that invested him with statutory powers to affect people's rights it is entirely unremarkable that he had "no capacity to engage others to perform the work given to ... [him] by the Registry". 114In relation to the complaint by Dr Hookey that he never had any control over where he would be performing Tribunal work or when the work would be performed and that he had no ability to decline work, I note that the MHRT Members' Manual contemplated Tribunal members providing their availability to sit on the MHRT (and their sitting preference details) in advance of a roster being prepared. If a member was unable to work for the MHRT on a particular day "for which he or she has been scheduled" the Members' Manual provided they were to contact the MHRT's Registrar "so that alternative arrangements can be made". As the respondent submitted, this flexibility was reflected in Mr Brabin's affidavit: [P]art time Tribunal members sit on the MHRT according to their availability and in accordance with nominations of the President under section 150(3) of the Act. For administrative purposes every 6 months the President approves an indicative roster of members to assist in providing sufficient advanced notice to members and to enable the proper constitution of the Tribunal.... 115These arrangements do no more than assist in ensuring the efficient operation of the Tribunal; they do not amount to controlling or directing part-time members in how they are to perform their statutory functions.

Arrangement unfair 116When one considers that the benefits of annual leave and long service leave sought by Dr Hookey were provided by the respondent to: (a) public sector employees and officers under the Public Sector Employment and Management Act; (b) Dr Hookey's colleagues who were (full-time) members of the MHRT, or who immediately prior to their appointment had been an officer or employee employed in the Government Service; and (c) part-time members of other statutory tribunals in the State of New South Wales, such as the CTTT , the Transport Appeal and the former Government and Related Employees Appeal Tribunal, the refusal of the respondent to provide the benefits to Dr Hookey was, on ordinary notions of fairness, patently unfair. No satisfactory reason was given for Dr Hookey's discriminatory treatment, such treatment highlighted by the fact that in 2008 the respondent settled a claim for unpaid leave for a period that Dr Hookey filled in the position of part-time member of the CTTT. There was no material difference between Dr Hookey's part-time membership of the CTTT and his part-time membership of the MHRT.

No jurisdiction 117However, I have been unable to conclude that the arrangement between Dr Hookey and the respondent was an arrangement amenable to the Court's jurisdiction under s 106 of the IR Act. 118As it was found in Perpetual Trustee , "there is a fundamental difference between the domestic relation of servant and master and that of the holder of a public office and the State which he is said to serve." Further, in Oceanic Crest Shipping, Brennan J held that when the Crown or a public authority is the employer of a public officer who is charged by statute with the exercise of an "independent responsibility cast on him by law" the Crown or public authority, having no authority either to discharge that responsibility or to control its discharge, is not acting through the officer and what is done by the officer in discharge of the independent responsibility by the officer is not regarded as done in the course of his employment as a servant of the Crown or public authority. 119That is the case here. Dr Hookey was exercising an "independent responsibility cast on him by law", the discharge of which is not to be regarded as done in the course of an employment relationship. 120Of course, it is not necessary for a person seeking relief under s 106 of the IR Act to be in an employment relationship, but in successive decisions of the High Court and Court of Appeal since 2003 that have limited the scope of s 106 so that it does not encroach on the jurisdiction of the Supreme Court. It is apparent that, as Spigelman CJ held in Caterpillar , the Court is required to read the phrase - "whereby a person performs work in any industry" - as not extending beyond a context which can reasonably be characterised as "industrial". If the relationship between the claimant and the respondent is analogous to an employer/employee relationship that will assist in determining in favour of jurisdiction, but if it is not, it seems to me it becomes difficult to characterise the arrangement as "industrial". 121In the present case there was no employment relationship for the reasons I have explained. An office holder that exercises independent responsibility and where the State has no authority over how that responsibility is discharged cannot, in my opinion, be held to be in an "industrial" relationship with a putative employer. 122The Court finds there was no contract whereby a person performs work in any industry. Accordingly, the Court finds it has no jurisdiction in respect of the unfair contract claim by the applicant.

Declaratory relief claim 123In the alternative to his unfair contract claim Dr Hookey sought orders in the nature of declaratory relief that he was, at all material times, an employee and that he had accrued and was entitled to payment for annual leave and long service leave in relation to the period he was employed, in accordance with the Annual Holidays Act and the Long Service Leave Act respectively. 124In the course of addressing the unfair contract claim I found that Dr Hookey was not an employee. His claim for declaratory relief must, therefore, fail.

Orders 125The Court makes the following orders: (1) The application in Matter No IRC 1632 of 2009 is dismissed. (2) The application in Matter No IRC 1633 of 2009 is dismissed. (3) Costs are reserved. 126The parties shall file any submissions regarding costs within 14 days of this judgment. Unless a party wishes to be heard on costs the question of costs will be determined on the papers.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 March 2012