McGrath v Government of New South Wales - TAFE Commission Division of the Government Service [2012] NSWIRComm 129

Industrial Relations Commission New South Wales Medium Neutral Citation: McGrath v Government of New South Wales - TAFE Commission Division of the Government Service [2012] NSWIRComm 129 Hearing dates: 04/07/2012 Decision date: 20 November 2012 Before: Walton J, Vice-President, Backman J, Tabbaa C Decision: (1) Leave to appeal is granted; (2) The appeal is allowed; (3) The order made on 16 April 2012 in IRC 1713 of 2011 is set aside; (4) The matter is remitted to a Member of the Commission (allocated by the President) to be determined in accordance with the law; (5) Costs of the appeal and costs of the hearing below are reserved. Catchwords: APPLICATION FOR LEAVE TO APPEAL AND APPEAL - appellant dismissed from employment by respondent and applies to Commission for relief against unfair dismissal under Pt 6 of Ch 2 of the Industrial Relations Act 1996 (IR Act) - Technical and Further Education Commission Act 1990 (TAFE Commission Act) amended after the application filed - whether Commission ceased to have jurisdiction to determine appellant's application after commencement date of amendments - constructional issues considered - significance of absence of transitional provisions dealing with unfair dismissal applications filed in the Commission prior to commencement date of amendments - significance of transitional provisions preserving the jurisdiction of the Commission with respect to matters the subject of an application under s 146B of the IR Act - whether, assuming jurisdiction to determine appellant's application, orders as to relief are capable of compliance - appeal allowed - orders made Legislation Cited: Acts Interpretation Act 1901 (Cth) Fair Work Act 2009 Industrial Relations Act 1996 Industrial Relations (Commonwealth Powers) Act 2009 Interpretation Act 1987 Public Sector Employment and Management Act 2002 Technical and Further Education Commission Act 1990 Technical and Further Education Commission Amendment (Staff Employment) Act 2011 Cases Cited: Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 285 ALR 27 Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19; (2012) ALJR 595 Board of Bendigo Regional Institute and Further Education v Barclay [2012] HCA 32; (2012) 86 ALJR 1044 Chang Jeeng v Nuffield (Australia) Pty Ltd (1959) 101 CLR 629 Commissioner of Police for New South Wales v Lawrance & Anor [2011] NSWCA 377 Esber v The Commonwealth of Australia (1991-1992) 174 CLR 430 Maxwell v Murphy (1957) 96 CLR 261 Retail Traders Assn v SDAEA (1989-1991) 36 IR 38 Speirs v Industrial Relations Commission of New South Wales [2011] NSWCA 206; (2011) 210 IR 337 Category: Principal judgment Parties: Paul McGrath (Appellant) Government of New South Wales - TAFE Commission Division of the Government Service (Respondent) Representation: I D Temby, QC with C T Magee of counsel (Appellant) P Menzies, QC with E S Brus of counsel (Respondent) James Moustacas & Co (Appellant) Department of Education and Communities Legal Services Unit (Respondent) File Number(s): IRC 557 of 2012 Decision under appeal Citation: McGrath v Managing Director, TAFE [2012] NSWIRComm 1006 Date of Decision: 2012-04-16 00:00:00 Before: Commissioner Ritchie File Number(s): IRC 1713 of 2011