Williams v Secretary, Department of Education [2022] NSWIRComm 1007

Industrial Relations Commission New South Wales Medium Neutral Citation: Williams v Secretary, Department of Education [2022] NSWIRComm 1007 Hearing dates: 3 February 2022 Date of orders: 24 February 2022 Decision date: 24 February 2022 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Constant, Commissioner Sloan, Commissioner Webster Decision: Where the appellant: (i) is required to have a Working with Children Check to be employed under s 9 of the Child Protection (Working with Children) Act 2012 (CPWWC Act); (ii) does not have a Working with Children Check; and (iii) was dismissed or directed to resign by the respondent, subs 47(2) of the CPWWC Act does not preclude the Commission from: (a) allowing the appeal of the decision to dismiss or direction to resign; and/or (b) quashing the decision to terminate and remitting the matter back to the respondent with such directions (if any) as to which stage of the disciplinary process in relation to the matter may be recommenced by the respondent. Catchwords: EMPLOYMENT LAW – Public Sector Disciplinary Appeal – Referral of question of law to Full Bench – operation of subs 47(2) of the Child Protection (Working with Children) Act 2012 – implied repeal of rights pursuant to Pt 7 of the Industrial Relations Act 1996 – prohibition is to "make use of or utilise" worker in child-related work – order quashing a decision to dismiss is not an order for reinstatement or re-employment contrary to a prohibition on employment Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW) ss 8, 9, 15, 17, 18, 23, 42, 47 Industrial Relations Act 1996 (NSW) ss 98,100, 100C, 100D Interpretation Act 1987 (NSW) ss 33, 35 Teacher Accreditation Act 2004 (NSW) ss 24, 24A, 28 Teaching Service Act 1980 (NSW) ss 5A, 47, 47A, 51A, 77, 93B, 93L, 93S Workplace Relations Act 1996 (Cth) s 170CH Cases Cited: Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 Douglas v Secretary, Department of Education [2021] NSWIRComm 1044 Knight v FP Special Assets Ltd (1992) 174 CLR 178 Mansfield v Director of Public Prosecutions (WA) (2006) 226 CLR 486 O'Connell v Catholic Education Office, Archdiocese of Sydney T/A Catholic Education Office, Sydney [2016] FWCFB 1752 Saraswati v R (1991) 172 CLR 2 Shergold v Tanner [2002] HCA 19; (2002) 209 CLR 126 Spiers v Industrial Relations Commission (2011) 81 NSWLR 348 State Rail Authority of New South Wales v The Honourable Justice Bauer (1994) 55 IR 263 Texts Cited: Shorter Oxford Dictionary Category: Procedural rulings Parties: Vita Bernadetta Williams (appellant)