McGrath v Managing Director, TAFE. [2012] NSWIRComm 1006

Industrial Relations Commission New South Wales Medium Neutral Citation: McGrath v Managing Director, TAFE. [2012] NSWIRComm 1006 Hearing dates: 13/03/12 Decision date: 16 April 2012 Before: Ritchie C Decision: Catchwords: Application for unfair dismissal by TAFE teacher. Applicant terminated in October 2011.-new legislation came into effect on 1 December 2011-transfer all existing staff to new entity and now a national employer -work under federal legislation- Respondent raised jurisdictional issue IRC NSW no longer can deal with it. Respondent submitted that applicant caught by new legislation-no transitional provisions-respondent no longer exists. Applicant argued that applicant not caught by legislation as was not a staff member at the time of transfer-transitional provisions not required in this issue and an Order can still be made. Found that applicant not caught by new legislation- found that transitional provisions did not exist but relevant and that if Commission wrong an Order to re instate made would have no effect as respondent no longer exists and relationship can therefore no longer be re-established. Application dismissed lack of jurisdiction. Legislation Cited: Industrial Relations Act, 1996; TAFE Commission Act; Fair Work Act 2009; Work Health & Safety Act, 2011; Public Sector Employment & Management Act; Industrial relations Act 1991. Cases Cited: Commissioner of Police v Hollingsworth (No 2 ) 84 IR 192; Secretary of Department of Health v Harvey (1990) 34 IR @58; Commissioner of Police v Lawrence & Anor (2011) NSWCA 377; Blackadder v Ramsey Butchery Butchery Services Pty Ltd (2005) HCA 22; Retail Traders Assoc. v SDAEA 36 IR 38. Category: Principal judgment Parties: Mr Paul McGrath (applicant):Managing Director, TAFE NSW, as Division Head of the TAFE Commission Division of the Government Service(respondent) Representation: Mr C McGee (applicant): Ms E Brus (respondent). Mr J Moustacs Of James A Moustacas & Co (applicant): Mr C Miles (respondent) File Number(s): IRC 1713 of 2011