Davie v Industrial Relations Secretary (Department of Justice, Corrective Services NSW) (No. 2) [2019] NSWIRComm 1056

Industrial Relations Commission New South Wales Medium Neutral Citation: Davie v Industrial Relations Secretary (Department of Justice, Corrective Services NSW) (No. 2) [2019] NSWIRComm 1056 Hearing dates: 7 June 2019 Date of orders: 19 August 2019 Decision date: 19 August 2019 Jurisdiction: Industrial Relations Commission Before: Commissioner Stanton, Commissioner Sloan and Commissioner Webster Decision: 1. Leave to appeal is granted.

2. The appeal is upheld.

3. The decision of the Commissioner in Davie v Industrial Relations Secretary (Department of Justice, Corrective Services NSW) [2019] NSWIRComm 1012 is quashed.

4. The respondent's jurisdictional objection to the Commission hearing and determining these proceedings is dismissed.

5. The matter is to be remitted to Commissioner Murphy for determination of the substantive proceedings. Catchwords: APPEAL – decision at first instance dismissed application on jurisdictional grounds – whether Government Sector Employment Act 2013 impliedly repealed Ch 5 Pt 1 of the Industrial Relations Act 1996 in respect of Public Service senior executive employees – whether privative provision in Government Sector Employment Act 2013 precluded claims under Ch 5 Pt 1 of the Industrial Relations Act 1996 by Public Service senior executive employees – principles to apply on implied repeal and on construction of privative provisions – consideration of meaning and effect of Commissioner of Police v Eaton (2013) 252 CLR 1 Legislation Cited: Anti-Discrimination Act 1977 (NSW) ss 8(2)(c), 25(20(c), 38C(2)(c), 40(2)(c), 49D(2)(c), 49V(2)(c), 49ZH(2)(c), 49ZYB(2)(c), 50 Government and Related Employees Appeal Tribunal Act 1980 (NSW) Government Sector Employment Act 2013 (NSW) ss 4, 7, Pt 4 Div 4 33, 39, 41, 44, 51, 58, 85 Government Sector Employment (General) Rules 2014 (NSW) r 42 Government Sector Employment Regulation 2014 (NSW) cl 39 Industrial Relations Act 1996 (NSW) Ch 2 Pt 6, ss 84, 88, 89, Ch 2 Pt 7, ss 94 (rep.), 187, 188, Ch 5 Pt 1, 210, 213 Industrial Relations Amendment (Public Sector Appeals) Act 2010 (NSW) Local Government Act 1993 (NSW) s 340 Police Act 1990 (NSW) s 80(3) Police Regulation Act 1958 (Vic) ss 9, 112 Public Sector Employment and Management Act 2002 (NSW) Ch 2 Pt 2.3, s 22(5), Ch 3 Pt 3.1, ss 72(4), 77 Public Sector Employment and Management Amendment Act 2010 (NSW) Public Sector Management Act 1988 (NSW) s 42J(7) Work Health and Safety Act 2011 (NSW) ss 104, 105, 106, Pt 6 Div 2, Pt 6 Div 3 Cases Cited: Australian, Municipal, Administrative, Clerical and Services Union v Commonwealth of Australia (acting through and represented by the Australian Taxation Office) [2018] FWCFB 1170 Bartlett and Cini v Mario's Fresh and Frozen Foods [2006] NSWIRComm 1084 Branir Pty Limited v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 Butler v Attorney-General for the State of Victoria (1961) 106 CLR 268 Commissioner of Police v Eaton (2013) 252 CLR 1; (2013) 230 IR 78; [2013] HCA 2 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Anor v Sunset Power International Pty Ltd trading as Delta Electricity [2018] NSWIRComm 1072 Custovic and State of New South Wales (Department of Family and Community Services - Housing NSW) (2014) 247 IR 414; [2014] NSWIRComm 48 D & R Commercial Pty Limited v Flood (2002) 113 IR 344; [2002] NSWIRComm 88 Davie v Industrial Relations Secretary (Department of Justice, Corrective Services NSW) [2019] NSWIRComm 1012 Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007 Kocic v Commissioner of Police, NSW Police Force (2014) NSWLR 159; [2014] NSWCA 368 O'Rourke v Miller (1985) 156 CLR 342 Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Director of Public Employment [2011] NSWIRComm 152 Saraswati v The Queen (1991) 172 CLR 1 Speirs v Industrial Relations Commission of New South Wales (2011) 81 NSWLR 348; [2011] NSWCA 206 Sydney City Council v Reid (1994) 34 NSWLR 506 Twentieth Superpace Nominees v TWU [2006] NSWIRComm 218 Category: Principal judgment Parties: Stuart Davie (Appellant)