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 DECISION 1On 17 October 2011, Paul McGrath (the appellant) was dismissed from his employment by the Government of New South Wales - TAFE Commission Division of the Government Service (the respondent). On 4 November 2011, the appellant applied to the Commission for relief against unfair dismissal under the provisions of Pt 6 of Ch 2 of the Industrial Relations Act 1996 ("the IR Act"). 2The application went to conciliation on 29 November 2011 before Commissioner Bishop and was stood over, part-heard, until 7 December 2011. 3On 1 December 2011, the Technical and Further Education Commission Amendment (Staff Employment) Act 2011 commenced ("the amending Act"). The amending Act amended the Technical and Further Education Commission Act 1990 and the Public Sector Employment and Management Act 2002 (respectively, "the TAFE Commission Act" and "the PSEM Act"). The amendments effected a number of legislative changes to the employment of TAFE staff. Some of the amendments, summarised below, are of immediate relevance to the present proceedings: (i) under cl 2 of Sch 1 of the amending Act, a new definition of "member of staff (or staff member)" was inserted into s 3(1) of the TAFE Commission Act, to mean, "a member of staff of the TAFE Commission employed under section 15"; (ii) under cl 4 of Sch 1 of the amending Act, a new section 15 was inserted into the TAFE Commission Act as follows: 15 Employment of staff The TAFE Commission may employ such staff as it requires to exercise its functions; (iii) under cl 14 of Sch 1 of the amending Act, a new Pt 5 of Sch 4 was inserted into the TAFE Commission Act. 4The insertion of a new Pt 5 of Sch 4 introduced consequential and transitional provisions arising from the amendments to the TAFE Commission Act. The provisions, some of which are central to the disposition of the issues raised by the parties in these proceedings, are set out below: 13 Definitions In this Part: commencement date means the date on which section 15 was inserted by the Technical and Further Education Commission Amendment (Staff Employment) Act 2011. existing staff member means: (a) a person who, immediately before the commencement date, was employed under Chapter 1A of the Public Sector Employment and Management Act 2002 in the TAFE Commission Division of the Government Service, or ... transferred staff member means an existing staff member who is transferred to the employment of the TAFE Commission by operation of clause 14. ... 14 Transfer of existing staff members to employ of TAFE Commission On the commencement date, each existing staff member is transferred to the employment of the TAFE Commission. 15 Employment arrangements for transferred staff members (1) The TAFE Commission is to take such action as is available to it as an employer of a transferred staff member to ensure that the provisions of this clause are implemented. (2) During the transitional period, the employment of a transferred staff member with the TAFE Commission is to be on the same terms and conditions relating to the following matters as applied immediately before the commencement date to the person's employment as an existing staff member: (a) hours of work, (b) salary, (c) shift, overtime and penalty rates, (d) allowances, (e) leave (other than extended leave or long service leave). (3) A transferred staff member: (a) retains any rights to annual leave, extended or long service leave, sick leave, and other forms of leave, accrued or accruing in his or her employment as an existing staff member, and (b) is not entitled to receive any payment or other benefit merely because the member ceases to be in the employment from which the member was transferred, and (c) is not entitled to claim, both under this Act or any other Act, dual benefits of the same kind for the same period of service. (4) Without limiting subclause (3), a transferred staff member is not, despite any other provision of this or any other Act, entitled to elect, because of that transfer, to be paid the money value of any extended or annual leave that the member accrued in the employment from which the member was transferred. 16 Jurisdiction of Industrial Relations Commission (1) On and from the commencement date, the Industrial Relations Commission has no jurisdiction to determine an industrial matter (within the meaning of the Industrial Relations Act 1996) relating to a member of staff if: (a) the Fair Work Act 2009 of the Commonwealth has excluded the application of State industrial laws (within the meaning of section 26 of that Act) in relation to the matter, or (b) the matter is an appeal to which Part 7 of Chapter 2 of the Industrial Relations Act 1996 applies. (2) This clause does not affect the jurisdiction of the Industrial Relations Commission in relation to a matter that is the subject of an application under section 146B of the Industrial Relations Act 1996. 5Following the further conciliation before Bishop C, which was unsuccessful, the matter came before Ritchie C for hearing of a Notice of Motion. The Motion alleged that the Commission was without jurisdiction to hear the appellant's application as a result of cl 16 of Sch 4 of the TAFE Commission Act which commenced on 1 December 2011 under the terms of the amending Act. Findings at first instance 6In the decision, Ritchie C made findings to the following effect: (i) at 1 December 2011, existing staff as referred to in Pt 4 of Sch 5 of the TAFE Commission Act were transferred to the TAFE Commission; (ii) the appellant's employment was terminated on 17 October 2011 and, therefore, he was not an existing staff member (as at 1 December 2011) and could not be transferred; (iii) the amending Act effected a change in the entity of the employer; (iv) at 1 December 2011, the Commission ceased to have jurisdiction to determine an "industrial matter ... relating to a member of staff" under cl 16(1)(a) because of s 26 of the Fair Work Act 2009 (Cth) ("the FW Act") (which applied to the exclusion of the IR Act so far as it would otherwise apply in relation to national system employees in respect of, "providing for rights and remedies connected with termination of employment" (see s 26(2)(b)(v) of the FW Act)); (v) the Commission had jurisdiction to hear and determine the appellant's application from the date it was filed until 1 December 2011; (vi) the amendments to the TAFE Commission Act did not "catch" the appellant because he was not an existing staff member as at 1 December 2011. 7Having made the findings, summarised above, Ritchie C directed his attention to the significance of the absence of transitional arrangements in the amending Act specifically to persons in circumstances similar to the appellant. After referring briefly to the respective contentions of the parties on the issue, he found (at [34] of the decision): I accept the submission of the respondent in that the lack of transitional arrangements makes it quite clear what the intention of the legislature was, that is, to remove the jurisdiction of this Commission from 1 December 2011 in regard to persons who were or are employed by the respondent. 8Commissioner Ritchie then examined, in the event his findings as to jurisdiction were wrong, whether there existed some residual power to determine the matter and, if so, what enforceable order, if any, could be made. He noted that the application for relief sought both reinstatement and compensation. He considered two authorities which dealt with the notion of reinstatement: Commissioner of Police for New South Wales v Lawrance & Anor [2011] NSWCA 377 and Retail Traders Assn v SDAEA (1989-1991) 36 IR 38. In the first-mentioned authority, Ritchie C extracted the following passage: [50] Section 89(1) of the IR Act empowers the IRC to order the employer (in this case the Commissioner) to "reinstate the applicant to his or her former position on terms not less favourable" than those that would have applied had the applicant been dismissed. To "reinstate" means to restore the applicant to the employment situation as it existed immediately before the applicant was removed from his or her position: Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; 221 CLR 539, at 544 [14], per McHugh J; at 549-550 [33]-[34], per Kirby J; at 552-553 [43]-[46], per Hayne J; at 565 [75], per Callinan and Heydon JJ. Section 89(1) does not confer power on the IRC to do anything other than reinstate the applicant to his or her former position and to do so on "terms not less favourable" than those the applicant previously enjoyed. 9Based on these observations and observations made to similar effect in Retail Traders Assn v SDAEA (at [46]), Ritchie C made the following additional findings (at [39] and [40]): [39] The applicant has accepted that there has been a change of entity of the employer. The entity that employed and subsequently terminated the applicant, Managing Director, TAFE NSW no longer exists. How does this Commission therefore reinstate the applicant to an entity that does no longer exist? That entity no longer employs TAFE teachers. Through the Amendment Act all members of staff have been transferred to another entity and have vacated the jurisdiction of the Industrial Relations Commission of New South Wales and been transferred to the federal Fair Work Australia industrial system. [40] It is my finding that this Commission does not have the jurisdiction to reinstate the applicant back to his position as a TAFE teacher, as the entity that once employed the applicant no longer exists and therefore the relationship can no longer be re-established. Leave to appeal 10We propose to grant leave to appeal from Ritchie C's decision. We have concluded that the decision was affected by error with regard to the Commissioner's findings on the interpretation of cl 16 of Sch 4 of the TAFE Commission Act such that appellate intervention is warranted. Grounds of appeal 11The appellant's primary contention on the appeal, and the area of dispute between the parties, was that on and from 1 December 2011 (the date on which the amendments came into operation) he was not a member of staff of the New South Wales Government and, accordingly, the Commission did not cease to have jurisdiction to determine his application for relief under s 84 of the IR Act, whether pursuant to cl 16 of Sch 4 of the TAFE Commission Act, or otherwise. 12In written submissions, the parties identified a number of propositions about which there was no dispute. These have been extracted from the appellant's written submissions: a) prior to 17 October 2011, the appellant was employed by the NSW Government in its TAFE Commission division; b) on 17 October 2011, the NSW Government terminated the appellant's employment and the appellant ceased to be a member of staff of the NSW Government; c) on 4 November 2011, the appellant filed his application for relief, including reinstatement, against the NSW Government and the Industrial Relations Commission had jurisdiction to determine that application; d) on 1 December 2011, the Technical and Further Education Commission Amendment (Staff Employment) Act, 2011 ("the amending Act") commenced and made amendments to the TAFE Commission Act; e) the amending Act had the effect of introducing clause 16 of Schedule 4 into the TAFE Commission Act; f) clause 16 of the amending Act provided that on and from 1 December 2011, the Industrial Relations Commission had no jurisdiction to determine an industrial matter (which would include the relief claimed in the appellant's application) in respect of a member of staff of the TAFE Commission; g) clause 16 is the only basis upon which the NSW Government contends that the Industrial Relations Commission no longer has jurisdiction to determine the appellant's application. 13The appellant acknowledged that the amending Act did not contain any transitional provisions with regard to persons in his position, that is, persons dismissed from the respondent's employment prior to 1 December 2011 and who lodged a claim for relief against unfair dismissal under s 84 of the IR Act. The absence of any such transitional provisions was said to be explicable on the basis that the amending Act operated prospectively, that is, it applied only to persons who were existing staff members on 1 December 2011 and whose employment was transferred under cl 13(a) to the newly constituted TAFE Commission. In this regard, it was said that only by giving the amending Act retrospective effect could it "catch" former, or prior, employees. Such a construction, however, was said to be contrary to judicial authority which has steadily adopted the approach that retrospective operation will not be given to legislation if it has the effect of stripping away accrued rights unless the words are clear and unambiguous. 14In support of his contentions on the constructional issue, the appellant relied on the recent High Court decision of Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19; (2012) 86 ALJR 595 ("Australian Education Union"), in particular, the following passages extracted from the reasons of French CJ, Crennan and Kiefel JJ at [30]: [30] ... In a representative democracy governed by the rule of law, it can be assumed that clear language will be used by the Parliament in enacting a statute which falsifies, retroactively, existing legal rules upon which people have ordered their affairs, exercised their rights and incurred liabilities and obligations. That assumption can be viewed as an aspect of the principle of legality, which also applies the constructional assumption that Parliament will use clear language if it intends to overthrow fundamental principles, infringe rights, or depart from the general system of law. The existence of those assumptions is, in the words of Gleeson CJ in Electrolux Home Products Pty Ltd v Australian Workers' Union [41]: "a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law." 15In reliance on the passage, the appellant sought to emphasise that he had rights as at the date of his dismissal and as at the date his application was lodged. It is only as a result of Ritchie C's finding in giving the amending Act retrospective effect that he is said to have no rights. Such a finding was available only if the words of the legislation upon which the finding purports to be based are clear and unambiguous. 16The appellant contended that he had an accrued right to have his application heard and determined at the date he applied for relief to the Commission. Ritchie C, therefore, fell into error in finding that the absence of transitional provisions evinced an intention on the part of the legislature to remove the jurisdiction of the Commission from 1 December 2011 with regard to persons, "who were or are" employed by the respondent. The true position, according to the appellant, is that the Commission's jurisdiction was removed on that date only with regard to employees who were transferred to the newly constituted TAFE Commission. 17As we have outlined above, the respondent did not challenge Ritchie C's findings that the appellant was not an existing staff member on 1 December 2011 and that his employment was not, and could not, be transferred under the transitional arrangements. 18The principal area of divergence between the parties emerges from the competing constructions of cl 16. According to the respondent, the Commission ceased to have jurisdiction from 1 December 2011 to determine an "industrial matter ... relating to a member of staff". Because the Commission was deprived of jurisdiction by the legislative amendments, it had no jurisdiction to further entertain the appellant's application. The transitional arrangements, according to the respondent, lend support to this construction. Although they operated to effect a transfer of the employment of existing employees, they also deprived the Commission of jurisdiction, except where jurisdiction was specifically preserved by cl 16(2), that is, in relation to matters the subject of an application under s 146B of the IR Act. The retention of the Commission's jurisdiction to deal with matters falling within s 146B was said to be a "powerful indicator" that the legislature was both aware of and took into account the relevant provisions of the Interpretation Act 1987 (relevantly, the preservation of rights following an amendment or a repeal of legislation) which the appellant relies upon to posit the existence of an accrued right. In contrast, the respondent contended, there is no express reference in cl 16 to rights accrued under s 84 of the IR Act. 19The respondent also disputed the contention that Ritchie C had wrongly construed the legislation as having retrospective operation. Instead, it was contended that the Commissioner had found the legislation had prospective operation. This contention was said to be supported by a simple illustration: if the appellant had had his claim dealt with before 1 December 2011 it could have been litigated under the existing regime. The effect of the legislative changes was to make that litigation impossible from 1 December 2011. In further support of the contention, the respondent pointed to amendments made to s 106 of the IR Act (the unfair contract provisions) which operated to limit, from a certain date, claims to persons with an income below a specific amount. If the claim had been made before that date the remunerative cap did not operate, but, it operated for claims after that date. Importantly, and in marked contrast to the present matter, the transitional provisions pertaining to the amendments to s 106 specifically permitted claims to continue to finality. It follows from this, it was said, that the complaint that the amendment adding cl 16 had retrospective operation, is wrong. 20The parties also addressed that aspect of Ritchie C's decision which proceeded upon the assumption of some residual power to determine the application if his findings as to jurisdiction were wrong. In that regard, Ritchie C examined what enforceable order, or orders, could be made in the event the Commission had residual power. Ultimately, he found that there was no power. His reasons appear at [39] of the decision extracted below: [39] The applicant has accepted that there has been a change of entity of the employer. The entity that employed and subsequently terminated the applicant, Managing Director, TAFE NSW no longer exists. How does this Commission therefore reinstate the applicant to an entity that does no longer exist ? That entity no longer employs TAFE teachers. Through the Amendment Act all members of staff have been transferred to another entity and have vacated the jurisdiction of the Industrial Relations Commission of New South Wales and been transferred to the federal Fair Work Australia industrial system. 21The appellant's application under s 84 seeks reinstatement or financial compensation. It was the appellant's contention that effective relief can be granted because his employer at the time of his dismissal was the State of New South Wales, and in the event reinstatement is impracticable, relief against the State by way of financial compensation is available. According to the respondent, regardless of the jurisdictional question, there is no utility in having the appellant's application granted because it cannot be complied with. This is because the TAFE Commission of New South Wales no longer exists. TAFE teachers are now employed by a constitutional corporation and subject to the supervision of Fair Work Australia. New South Wales no longer employs TAFE teachers and there is, therefore, no place to which the appellant can return. 22The appeal raises a constructional issue as to the proper interpretation and application of cl 16. In order to place the issue in its legislative context, it is helpful to set out, briefly, some consequences of the legislative changes made to the employment of TAFE staff. 23One consequence of the amendments to s 3(1) (definition of "staff member") and s 15 of the TAFE Commission Act was that the TAFE Commission was empowered to employ staff directly, whereas formerly, TAFE staff were public sector employees of the New South Wales Government Service under the PSEM Act. As a result of the amendments, TAFE staff became subject to the Fair Work regime as contained in the FW Act and the Commission ceased to have jurisdiction with respect to an "industrial matter" relating to those staff. This consequence arises from the referral by the State of New South Wales of "industrial matters" to the Commonwealth on 1 January 2010 under s 5 of the Industrial Relations (Commonwealth Powers) Act 2009. The reference at that time excluded "state public sector employees", under s 6 of the latter Act. Prior to 1 December 2011, TAFE staff, being "state public sector employees", were covered by the exclusion in s 6. After that date, they were no longer "state public sector employees" and, accordingly, s 6 no longer applied. On and from 1 December 2011, TAFE Commission staff became "national system employees", as defined in s 13 of the FW Act and subject to s 26 of that Act, which provides, relevantly, that the FW Act is intended to apply to the exclusion of the IR Act. Consequently, the Commission ceased to have jurisdiction over those staff. 24Returning to the constructional issue, we propose to consider whether the legislation, in its plain terms (see Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 285 ALR 27 at [26] ("AEU"), supports the appellant's construction that cl 16 only applies to those persons whose employment was transferred to the newly constituted TAFE Commission on 1 December 2011. In doing so, we also propose to consider whether there is anything contra-indicative of this construction by reference to the text, context and purpose of the amendments: AEU at [26] and [27]; Board of Bendigo Regional Institute and Further Education v Barclay [2012] HCA 32; (2012) 86 ALJR 1044 at [41]. In this regard, the respondent points to three matters. They are the absence of any transitional provisions with regard to persons in the circumstances of the appellant; the transitional provisions concerning the application of s 146B of the IR Act in cl 16(2) and the non-availability of relief. 25Clause 16(1) is expressed to apply on and from 1 December 2011 to an, "industrial matter ... relating to a member of staff". There was no contest between the parties that an application for relief against unfair dismissal made under Pt 6 of Ch 4 of the IR Act constitutes an "industrial matter" (see s 6(1) and (2)(e) of the IR Act). There was also no contest between the parties that, at the commencement date of the amendments, the appellant was not a "member of staff". This conclusion, in any event, finds strong support in other provisions of the amending Act, to which we will refer. 26Under cl 13(a), an "existing staff member" is defined as a person who, "immediately before the commencement date", was employed by the respondent. As the appellant ceased to be employed by the respondent on 17 October 2011 he did not fall within the definition and, accordingly, cl 13(a) could not apply to him. Consequently, the appellant did not fall within the definition of "transferred staff member" in cl 13 because he was not an "existing staff member" who was transferred to the employment of the newly constituted TAFE Commission by operation of cl 14, that is, "transferred on the commencement date". 27The language of these clauses, including cl 16(1), is explicit and clear. It compels one conclusion which is that the circumstances of the appellant do not fall within the ambit of cl 16(1) which is expressed to apply to "a member of staff". Accordingly, on a plain reading of the text, cl 16(1) does not operate to deprive the Commission of jurisdiction to hear and determine the appellant's application. 28In reaching this conclusion, we also place reliance on the presumptive rule of construction which is against reading a piece of legislation in such a way as to change vested rights, or rights already obtained. There was no real challenge to the appellant's characterisation of the right to have his application heard and determined as one which had accrued prior to 1 December 2011. In this regard, we agree with the appellant, subject to further matters considered below, that it is only by giving the amending Act retrospective operation that it can "catch" the appellant as a prior employee. This is precisely what Ritchie C did when he found that the jurisdiction of the Commission was removed from 1 December 2011 with regard to persons who "were ... employed" by the respondent. In the absence of clear words in the legislative text, however, the presumption against retrospectivity will normally apply. 29There is a wealth of judicial authority dealing with the presumptive rule of construction. The appellant directed our attention to one recent High Court authority, Australian Education Union. The majority judgment of French CJ, Crennan and Kiefel JJ (at [26]), emphasises that statutory interference with existing rights does not make a statute retrospective. In support of this proposition, the majority quoted Fullagar J in Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 285 where his Honour said: I think that the word 'retrospective' has acquired an extended meaning in this connexion. It is not synonymous with 'ex post facto', but is used to describe the operation of any statute which affects the legal character, or the legal consequences, of events which happened before it became law. 30The respondent's submissions were to similar effect, that is, the amending Act does not have retrospective operation merely because it interferes with existing rights, which is a relatively commonplace effect of legislative change. One formulation of the general rule of construction by Dixon CJ in Maxwell v Murphy was repeated by the Chief Justice in a passage from Chang Jeeng v Nuffield (Australia) Pty Ltd (1959) 101 CLR 629 and adopted by the majority in Australian Education Union at [26]. In the passage extracted from Chang Jeeng, Dixon CJ said (at 639): The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. 31A consideration of the common law principles of statutory construction should also involve a consideration of whether statutory rules of interpretation have any application: Australian Education Union at [23]. 32In this jurisdiction, s 30(1) of the Interpretation Act 1987 is applicable. It provides, relevantly: [30] Effect of amendment or repeal of Acts and statutory rules (1) The amendment or repeal of an Act or statutory rule does not: (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or ... (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty, and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed. 33As we adverted to earlier, we do not understand the respondent to challenge the appellant's contention that he had an accrued right on and from 1 December 2011 to have his application heard and determined by the Commission. In support of the contention, the appellant relied on the High Court decision of Esber v The Commonwealth of Australia [1991-1992] 174 CLR 430. 34In Esber, proceedings had been instituted but not determined before the commencement of a new Act which repealed the Act under which the proceedings were instituted. The High Court held that the proceedings were to be continued as if the new Act had not come into force: Mason CJ, Deane, Toohey and Gaudron JJ at 438. 35The respondent sought to distinguish Esber as having no application to the facts the subject of this appeal on the basis that the legislation under consideration in Esber contained savings and transitional provisions which expressly preserved the subject right. 36Esber, we note, was decided on a secondary basis which involved the application of s 8 of the Acts Interpretation Act 1901 (Cth), an Act which deals with the general rule about preservation of rights etc in a way similar to s 30(1) of the Interpretation Act 1987: see discussion by the majority commencing at 438. Two rights were under consideration in Esber, although the focus of the argument was on the second right characterised as the right of the appellant to have the Tribunal determine his application to review a decision of the delegate (the primary decision-maker). In allowing the appeal (at 440-441) the majority said: Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely "a power to take advantage of an enactment" (18). Nor was it a mere matter of procedure (19); it was a substantive right (20). Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, "although that right might fairly be called inchoate or contingent" (21). This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s. 8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act. 37We have concluded at this stage of our analysis that the text of cl 16(1), on a plain reading, does not evince an intention on the part of the legislature to deprive the Commission of jurisdiction to hear and determine the appellant's application. Ritchie C came to a different conclusion, holding that the amendment had retrospective operation and accordingly the jurisdiction of the Commission to hear and determine the application was removed from 1 December 2011. We have also concluded that the appellant had an accrued right to have his application heard and determined by the Commission. In this matter, the 'right' is one which accrued, or which subsisted in law, once the appellant had been dismissed from his employment, by virtue of s 84 of the IR Act (see, by analogy, the right discussed in Speirs v Industrial Relations Commission of New South Wales [2011] NSWCA 206; (2011) 210 IR 337 at [80] and [85]). 38It remains to consider whether the amending Act evinces a contrary intention to that proposed by the appellant. This brings us to a consideration of the significance of the absence of transitional provisions in the amending Act dealing with persons in circumstances similar to those of the appellant. 39The parties presented two competing arguments directed to the significance of the absence of transitional provisions in the amending Act. According to the appellant, there was no necessity for transitional provisions with respect to former or prior staff because the amending Act only dealt with existing staff who were transferred on the commencement date. According to the respondent, the absence of transitional provisions dealing with prior employees stands in stark contrast to the specific preservation of the jurisdiction of the Commission under cl 16(2) of Sch 4 of the TAFE Commission Act with regard to matters the subject of an application under s 146B. 40It is our view that the mere absence of transitional provisions is an insufficient basis upon which to conclude that the legislature intended to remove from the Commission the jurisdiction to hear and determine applications filed under s 84 of the IR Act before the commencement date. Clear words are necessary in order to be comfortably satisfied that the legislative intention was consistent with the removal of jurisdiction to hear and determine such applications. The text of the amendments, for reasons we have already expressed, evinces a clear intention on the part of the legislature to remove the jurisdiction of the Commission only with regard to persons who were "members of staff" on the commencement date and whose employment was transferred to the newly constituted TAFE Commission. 41Moreover, the reference in cl 16(2) to the preservation of jurisdiction with regard to matters the subject of an application under s 146B does not alter our conclusion. We agree with the appellant on this particular issue that cl 16(2) deals with a prospective matter, that is, it creates rights prospectively to facilitate transferred employees to make applications to the Commission in relation to matters under s 146B of the IR Act. 42Nor do we agree with the respondent that regardless of jurisdictional questions there is no utility in an order being made for relief against unfair dismissal because it cannot be complied with. The appellant's application to the Commission sought two alternative forms of relief: reinstatement or compensation. We see no difficulty with relief being ordered in the form of compensation to the appellant should his application ultimately be successful. The appellant's employer prior to his dismissal was the State of New South Wales, although in a particular division. There can be no impediment to the State paying any amount that may be awarded to the appellant by way of compensation. 43These conclusions are sufficient to dispose of the appeal in favour of the appellant. However, one further matter should be mentioned. Reliance was also sought to be placed by the appellant upon certain savings and transitional provisions in the FW Act in support of the contention that Ritchie C erred in his conclusion that the absence of transitional provisions in the amending Act must mean that the jurisdiction of the Commission was excluded in respect of persons "who were" employed by the respondent before 1 December 2011. Because of the conclusions we have reached, it is unnecessary to resort to the FW Act provisions as an aid to construction. In oral submissions, the appellant informed the Full Bench that it relied on the Commonwealth legislation only in the event his primary contention as to the construction of the amending Act provisions was not accepted. The respondent relied on the FW Act provisions only to show that the power to hear and determine dismissal applications no longer exists within the Commission's jurisdiction, but resides in the Federal jurisdiction. However, as our conclusions have demonstrated, we do not agree with the respondent's contention with regard to the construction of cl 16 of Sch 4 of the TAFE Commission Act. Other matters 44In the event the appellant was successful on the appeal, an order was sought by the appellant that the issue of costs be reserved. We propose to adopt this course. Any application for costs shall be filed and served within 28 days of this decision accompanied by a submission in support (which submission shall indicate whether the issue of costs may be determined upon the papers). Any submission in reply shall be filed and served within a further 28 days (again, indicating whether any issue as to costs may be determined upon the papers) Orders 45We make the following orders: (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. ********** 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: 21 November 2012