Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Industrial Relations Secretary on behalf of the Department of Justice [2015] NSWCA 386

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary on behalf of the Department of Justice [2015] NSWCA 386 Hearing dates: 13 November 2015 Decision date: 04 December 2015 Before: Basten JA at [1]; Ward JA at [19]; Emmett AJA at [22] Decision: 1 Set aside the orders made by the Full Bench of the Industrial Relations Commission on 19 March 2015.

2 Dismiss the appeal to the Full Bench from the decision of the Commissioner.

3 Remit the matter to the Commissioner for determination of the application for reinstatement of Darren Rudd as a correctional officer, without prejudice to any application that may be made to the Full Bench with respect to the costs of the appeal to it.

4 Order the Industrial Relations Secretary to pay the costs of the applicant in this Court. Catchwords: INDUSTRIAL RELATIONS – workplace injury – receipt of both compensation under the Workers Compensation Act 1987 (NSW) and work injury damages – application for reinstatement – whether a person who has obtained work injury damages is thereafter precluded from seeking reinstatement – Workers Compensation Act, Pt 8

STATUTORY INTERPRETATION – use of present tense – meaning of "injured worker" – Workers Compensation Act, s 240(2) – whether the present tense ("is entitled to receive compensation under this Act") connotes a temporal element Legislation Cited: Industrial Relations Act 1996 (NSW), ss 91, 92, 179, 187, 188 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5 Supreme Court Act 1970 (NSW), s 69 Trade Practices Act 1965 (Cth), s 66B Workers Compensation Act 1987 (NSW), ss 33, 66A, 149, 151A, 151G, 151Z, 240, 241, 242, 243, 247, 248; Pt 8 Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 280A, 281, 315 Cases Cited: Australian Salaried Medical Officers Federal v Central Sydney Area Health Service [2005] NSWIRComm 339; 147 IR 56 Brambles Constructions Pty Ltd v Helmers [1966] HCA 3; 114 CLR 213 Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127 Haynes v Bendall [1991] HCA 15; 172 CLR 60 Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 Lapcevic v Collier [2002] NSWCA 300 Mikasa (NSW) Pty Ltd v Festival Stores [1972] HCA 69; 127 CLR 617 NRMA Insurance Ltd v Motor Accidents Authority (NSW) [2004] NSWSC 567; 61 NSWLR 264 OV and OW v Members of the Board of the Wesley Mission Council [2010] NSWCA 155; 79 NSWLR 606 Public Service Association and Professional Officers' Association Amalgamated Union of NSW (on behalf of Darren Rudd) v Corrective Services NSW [2014] NSWIRComm 1021 Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34; 181 CLR 96 Speirs v Industrial Relations Commission of New South Wales [2011] NSWCA 206; 81 NSWLR 348 Texts Cited: D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed, LexisNexis, 2014) Category: Principal judgment Parties: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Applicant) Industrial Relations Secretary (First Respondent) Industrial Relations Commission of New South Wales (Second Respondent) Representation: Counsel: Mr M Gibian (Applicant) Mr M Robinson SC with Mr M Cahill (First Respondent) Submitting appearance (Second Respondent)