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instance dismissed application on jurisdictional grounds – whether Government Sector Employment Act 2013 impliedly repealed Ch 5 Pt 1 of the Industrial Relations Act 1996 in respect of Public Service senior executive employees – whether privative provision in Government Sector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) Industrial Relations Secretary on behalf of the Department of Justice, Corrective Services NSW (Respondent) Representation: Counsel: M Gibian SC (Appellant) M Easton (Respondent) Solicitors: Maurice Blackburn Lawyers (Appellant) Crown Solicitor, NSW (Respondent) File Number(s): 2019/00081899 Publication restriction: None Decision under appeal Court or tribunal: Industrial Relations Commission of New South Wales Citation: [2019] NSWIRComm 1012 Date of Decision: 20 February 2019 Before: Commissioner Murphy File Number(s): 2018/00218489 Judgment 1. This is an appeal pursuant to s 187 of the Industrial Relations Act 1996 (NSW) ("IR Act") against the decision of Murphy C in Davie v Industrial Relations Secretary (Department of Justice, Corrective Services NSW) [2019] NSWIRComm 1012 ("the Decision"). Background 1. There is little factual dispute between the parties. It is sufficient for present purposes to reproduce the following extract from the Appellant's outline of submissions: "3. The factual background to the proceedings was set out in the submissions on behalf of Mr Davie below and were not in dispute. The background to the dispute may be summarised as follows: (a) Mr Davie is a specialised and experienced employee with more than 37 years' experience working in the area of custodial services having previously worked in correctional services in New Zealand, including as Director of Invercargill Prison. (b) On 22 August 2016, Mr Davie commenced employment in the Department of Justice (Corrective Services NSW) as Director Custodial Corrections (Metropolitan East) employed under a contract of employment dated 28 May 2016. The contract indicated that Mr Davie's employment was 'ongoing employment' and would continue until he resigned or his employment was terminated. (c) In his position, Mr Davie was responsible for the Long Bay Correctional Complex, the Long Bay Hospital and the Metropolitan Regional Remand Centre. During his employment, Mr Davie acted in the position of Assistant Commissioner on three occasions. (d) In around March 2016, Corrective Services NSW introduced a reform agenda known as 'Better Prisons' involving a process of 'benchmarking' by [the] setting of performance metrics and staffing changes to create resource parity between prisons in different jurisdictions and public and private prisons. (e) Mr Davie was involved in consultations with union and staff representatives in relation to the benchmarking process. In the course of the consultation process, Mr Davie made a series of complaints to senior officials of Corrective Services NSW, including [Assistant] Commissioner Corcoran and Commissioner Severin, to the effect that (without limitation) the proposed staffing levels were unsafe. (f) On or around 19 April 2018, Assistant Commissioner Corcoran removed Mr Davie from his responsibilities with respect to overseeing the benchmarking project and the Assistant Commissioner directed that those duties be undertaken by the Director of Custodial Corrections, Metro North, Mr Scholes. (g) On 25 June 2018, Mr Davie was asked to attend a meeting with Assistant Commissioner Corcoran. At the meeting, Mr Davie was handed a letter signed by the Secretary of the Department stating that he had decided to terminate Mr Davie's employment pursuant to s 41 of the GSE Act with immediate effect." (Footnote omitted) 1. In his employment with the respondent, the appellant was employed as a "Public Service senior executive" ("Senior Executive") within the meaning of Pt 4 Div 4 of the Government Sector Employment Act 2013 (NSW) ("GSE Act"). His employment was terminated in accordance with s 41 of the GSE Act, which is in these terms: 41 Termination of employment of senior executives (1) The employer of a Public Service senior executive may terminate the employment of the executive at any time, for any or no stated reason and without notice. Note. The employment of a senior executive may also be terminated for unsatisfactory performance under section 68 or for misconduct under section 69. (2) A Public Service senior executive whose employment is terminated under this section is entitled to such compensation (if any) as may be provided in the contract of employment of the executive (and to no other compensation or entitlement for the termination of employment other than superannuation entitlements). (3) A Public Service senior executive whose employment is so terminated is not to be employed in the public sector during the period specified in the contract of employment to which any such compensation relates unless arrangements have been made for a refund of the proportionate amount of the compensation. (4) The employment of the head of a Public Service agency that is related to a Department may not be terminated under this section by the Secretary of the Department unless the Secretary has consulted the Commissioner. (5) In this section: employment of a former executive in the public sector includes: (a) engagement of the former executive as a consultant or contractor to the employer, and (b) engagement of the former executive through a labour hire arrangement with the employer, and (c) engagement of a company or partnership that provides the services of the former executive to the employer. public sector means the government sector, the service of a State owned corporation (or a subsidiary), any service in which persons excluded from this Act by section 5 are employed or a statutory office. 1. On 16 July 2018 the appellant filed with the Office of the Industrial Registrar an application for relief from victimisation pursuant to s 213 of the IR Act ("Victimisation Application"). 2. It is convenient at this point to reproduce the relevant provisions of the IR Act, as follows: Chapter 5 Industrial organisations Part 1 Principles of association 209 Freedom of association (1) A person is entitled to be a member of an industrial organisation, but can be prevented from becoming or remaining a member by the organisation acting under its rules and in accordance with section 260. (2) A person cannot be compelled to become, or remain, a member of an industrial organisation. 210 Freedom from victimisation (1) An employer or industrial organisation must not victimise an employee or prospective employee because the person: (a) is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees, or (b) does not belong to an industrial organisation of employees, or holds a certificate of conscientious objection to becoming a member of such an industrial organisation, or (c) refuses to engage in industrial action, or (d) exercises functions conferred under this Act, or (e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or (f) informs any person of an alleged breach by an employer of the industrial relations legislation or of an industrial instrument, or (g) participates, or proposes to participate, in proceedings relating to an industrial matter, or (h) engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee's duties), or (i) informs any person of an alleged breach of the Protection of the Environment Operations Act 1997 by an employer, or (ia) informs any person or body of, or gives evidence in relation to, a notifiable occurrence within the meaning of the Rail Safety National Law (NSW), or (ib) reports a matter relating to the safety or reliability of railway, bus or ferry operations to the Chief Investigator (within the meaning of the Transport Administration Act 1988) or a person employed in the Transport Service, or (ic) informs any person or body of, or gives evidence in relation to, a breach or alleged breach of the Dangerous Goods (Road and Rail Transport) Act 2008 or the regulations under that Act (or a provision of a law of another State or Territory that corresponds to that Act or those regulations), or (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions under Part 5 (Consultation, representation and participation) of the Work Health and Safety Act 2011, or (k) assists the Independent Pricing and Regulatory Tribunal or Scheme Administrator in the exercise of its functions under the Electricity Supply Act 1995. (2) In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action. … 213 Enforcement (1) The Commission may, by order, enforce the provisions of this Part on the application of an industrial organisation or by any person affected by a contravention of this Part. (2) The Commission may, in particular, for that purpose do any one or more of the following: (a) order the reinstatement or re-employment of an employee, (b) order the employer to promote or otherwise advance an employee in his or her employment, (c) order the employer to pay an employee or prospective employee the whole or any part of the amount of remuneration or other financial benefits lost or foregone, (d) order the employer to employ a prospective employee, (e) order the employer not to carry out a threat to victimise an employee or not to make any further such threat, (f) order an industrial organisation (or its officials or employees) to take any particular action or to cease any particular activity, (g) make consequential orders (including orders concerning continuity of service). (3) An application for an order under this section must be made within 21 days after the contravention concerned. (4) The Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to: (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or other party if the application is or is not rejected, and (c) the conduct in relation to which the order is sought. 1. The Victimisation Application alleged a contravention of s 210(1)(j) of the IR Act in that the appellant alleged that he had been "subjected to detriment for reasons including that he had made a complaint about a workplace matter that he considered was not safe and/or a risk to health". The appellant sought an order that the respondent: 1. reinstate or re-employ the appellant with continuity of employment; 2. pay the appellant the whole of the remuneration or other financial benefits he had lost or forgone; 3. be restrained from further victimisation or threat of victimisation of the appellant; and 4. comply with any other order the Commission considers appropriate. 1. The respondent raised a jurisdictional objection to the Commission hearing and determining the Victimisation Application. The objection rested on two primary grounds, namely that: 1. the provisions of the GSE Act dealing with Senior Executives, and in particular s 41, impliedly repealed the victimisation provisions in Ch 5 Pt 1 of the IR Act to the extent that those provisions might otherwise apply to the termination of employment of a Senior Executive; and 2. s 58 of the GSE Act, and s 58(7) in particular, excluded the power of the Commission to grant any relief in proceedings under s 213 to enforce s 210 of the IR Act with respect to Senior Executives. 1. Section 58 of the GSE Act is in these terms: 58 Industrial or legal proceedings excluded (1) In this section, executive employee means the Secretary of a Department or other Public Service senior executive, and non-executive employee means a Public Service employee other than an executive employee. (2) In this section, a reference to the employment of an executive employee is a reference to: (a) the engagement of, or failure to engage, a person as an executive employee, or (b) the assignment or re-assignment of the executive employee to a role in a band, or (c) the removal, retirement, termination of employment or other cessation of employment of an executive employee, or (d) any disciplinary proceedings or action taken against an executive employee, or (e) the remuneration or other conditions of employment of an executive employee. (3) The employment of an executive employee, or any matter, question or dispute relating to any such employment, is not an industrial matter for the purposes of the Industrial Relations Act 1996. (4) Parts 6, 7 and 9 of Chapter 2 of the Industrial Relations Act 1996 do not apply to or in respect of the employment of an executive employee. (5) Any State industrial instrument (whether made before or after the commencement of this section) does not have effect in so far as it relates to the employment of executive employees. This subsection does not prevent the regulations or other statutory instruments or any contract of employment from applying the provisions of any such industrial instrument to the employment of an executive employee. (6) The engagement of, or the failure to engage, a person as a non-executive employee, or any matter, question or dispute relating to any such engagement (or failure to engage), is not an industrial matter for the purposes of the Industrial Relations Act 1996. (7) No proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of a matter that is declared by this section not to be an industrial matter for the purposes of the Industrial Relations Act 1996. (8) Nothing in this section prevents any of the following proceedings from being brought by an employee of a Public Service agency in relation to the employment of another employee of any Public Service agency: (a) proceedings under Part 9 of the Anti-Discrimination Act 1977 in relation to a complaint under that Part, (b) proceedings under section 213 of the Industrial Relations Act 1996 to enforce the provisions of section 210 (Freedom from victimisation) of that Act. 1. The Commissioner decided to hear and determine the respondent's jurisdictional objection as a threshold matter. The Decision 1. The Decision was handed down on 20 February 2019. In the Decision the Commissioner outlined briefly the background to the matter. He reproduced the relevant provisions of the GSE Act and the IR Act. He traversed in detail, and reproduced at length, the submissions that had been made by the parties. He set out the legislative history of the GSE Act. 2. Having done so, the Commissioner stated as follows: "53. The Department has drawn heavily upon Eaton to support the following submissions: Eaton's case 23. In Commissioner of Police v Eaton [2013] HCA 2; (2013) 252 CLR 1, (2013) 230 IR 78 ('Eaton') the High Court considered legislative provisions not unlike s.41 and s.210. The High Court examined the concurrent operation of s.80(3) of the Police Act 1990 (NSW) and the unfair dismissal provisions of the IR Act. ……………………………… 25. In Eaton Justice Heydon found that the unfair dismissal provisions did not apply to probationary constables (at [10]) reasoning that: a. the words 'dismiss…at any time and without giving any reason' point against any examination of whether the selection of a time for dismissal was harsh, unreasonable or unjust (at [12]); b. the words 'at any time' give an unfettered power to dismiss (at [12] applying O'Rourke v Miller [1985] HCA 24; (1985) 156 CLR 342 at 349); c. The capacity of the Commissioner to dismiss probationary constables 'without giving any reason' suggests that there is to be no examination of whatever the Commissioner's reasons were (at [13]); d. The remedies available in the unfair dismissal regime are clearly inconsistent with the power to dismiss under s.80(3) (at [19]); e. Section 80(3) deals with the narrow subject of dismissing probationary constables, s.84 of the IR Act deals with the general subject of the remedies open to a broad range of employees dismissed harshly, unreasonably or unjustly. The general provision must give way to the particular provision (at [21]); and f. If probationary employees could seek relief in the unfair dismissal regime they would have 'effectively [have] greater rights' than non-probationary officers in the above respects (at [29]). 26. The majority in Eaton came to the same conclusion and similarly reasoned: a. The primary question was whether there was any inconsistency between the two statutes (at [45]): …The question of the relationship between the two statutes is one of legislative intention. In Associated Minerals Consolidated Ltd v Wyong Shire Council, Lord Wilberforce pointed to several possible interpretations where the field of application of two related statutes is different, but where the later statute does not expressly repeal or override the earlier: 'The problem is one of ascertaining the legislative intention: is it to leave the earlier statute intact, with autonomous application to its own subject matter; is it to override the earlier statute in case of any inconsistency between the two; is it to add an additional layer of legislation on top of the pre-existing legislation, so that each may operate within its respective field?' b. Inconsistency is at the root of the principle of implied repeal and the law presumes that statutes do not contradict one another. The question is not whether one law prevails, but whether that presumption is displaced. Deciding whether the two statutes could not 'stand or live together' in the relevant respect requires the construction of, and close attention to, the particular provisions in question (at [48] applying Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130; [2006] HCA 5); c. if a probationary constable were able to pursue a claim under the unfair dismissal regime they would have greater procedural rights than a confirmed officer would have (at [67]); d. The terms and structure of the Police Act point towards a legislative intention that a decision made under s 80(3) to dismiss a probationary constable is not to be subject to merits review by the Commission (at [72]); e. The position of probationary constables under the Police Act can be contrasted with other officers ie their position is less secure (at [73]); f. The terms of s.80(3) are strongly suggestive of an unfettered power to dismiss and stand in contrast with the requirements for dismissal of non-probationary officers (at [74]); g. The terms of s.80(3) suggest that considerations associated with unfairness are not to be in question (at [75]); h. The Police Act should be construed in a way which best achieves a harmonious result (at [78] applying Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [70], (1998) 194 CLR 355 at 381-382); and i. The IR Act may apply generally to the Police Act, but not where the operation of the former produces an internal inconsistency in the latter - the general provisions of the IR Act do not apply in the face of the special, and inconsistent, terms of s 80(3) of the Police Act (at [92]). ……………………………………… Unfettered power to dismiss 29. In Eaton the Court found that s.80(3) of the Police Act was strongly suggestive of an unfettered power to dismiss (at [74] and [12]). 30. To the extent there is a slight difference in wording between s.80(3) of the Police Act and s.41(1) of the GSE Act, the terms of s.41(1) are even more strongly indicative of Parliament's intention to confer an unfettered power to terminate the employment of senior executives. 31. In Eaton the Court of Appeal accepted the proposition that the words of s.80(3) merely reflected the common law. However Heydon J strongly disagreed: The first respondent submitted that the absence of an obligation to give reasons in s 80(3) was not significant. This was because there was no duty at common law to give reasons. But this case does not concern the common law. It concerns statutory construction. The lack of any duty to give reasons affects how the statutory scheme is to be construed. The relevant comparison is not between s 80(3) and the common law. It is between s 80(3) and the duty to give reasons under s 181D(4) of the Police Act. As the Full Bench pointed out, determining whether or not a dismissal from employment is harsh, unreasonable or unjust must involve an examination of the circumstances in which the dismissal occurred, including the reasons for and the timing of the dismissal. And as the Full Bench also pointed out, when an application under s 84(1) of the IR Act is heard, the Commission may, by reason of s 88(a) and (b) of the IR Act, take into account whether a reason was given for the dismissal, and, if so, whether that reason had a basis in fact. This task is difficult to carry out where the Commissioner has dismissed a probationary police officer under s 80(3) of the Police Act, for that provision permits dismissal without any reason. The difficulty of carrying out that task suggests that it does not arise in relation to s 80(3) dismissals. No examination of reasons 32. Similarly, the terms of s.41(1) are more strongly indicative of Parliament's intention that there not be any examination or review of the reasons for termination. Not only is there no requirement for the employer to give a reason under s.41, there is not even any express requirement to have a reason. The Commission can also note in this regard that the unfair dismissal provisions of the IR Act are expressly excluded (per s.58(4) of the GSE Act) as are the injured worker and unfair contract provisions. 55. I accept these submissions and conclusions as correct for the reasons stated therein. 55. The applicant alleges that the termination of his employment constituted victimisation which is prohibited by section 210 of the Act. The orders that he seeks are set out at [2] above. Any consideration of those orders will necessarily require an examination of the reason or reasons for the termination of the applicant's employment in order to determine whether the allegation of victimisation has been made out. Such an exercise would be repugnant to the power vested in the employer of a Public Service senior executive by subsection 41(1) of the GSE Act to 'terminate the employment of the executive at any time, for any or no stated reason and without notice'. … 58. In my opinion, the addition to the words 'at any time' of the phrase 'for any or no stated reason and without notice' in subsection 41(1) of the GSE Act provides a sufficient 'indication of repugnancy' such as to render the making of order 1, as sought by the applicant, beyond the power of this Commission. Similarly, the wording of subsection 41(2), in particular the phrase 'and to no other compensation or entitlement for the termination of employment other than superannuation entitlements', provides a sufficient 'indication of repugnancy' such as to render the making of order 2, as sought by the applicant, also beyond the power of this Commission. If this be correct, orders 3 and 4 fall away. … 61. In my opinion, section 41 of the GSE Act has impliedly repealed the victimisation provisions of the Act to the extent that those provisions might otherwise apply to the termination of employment of a Public Service senior executive. … 73. The privative provision, subsection 58(7) of the GSE Act, represents, not just the re-enactment of previous privative provisions (subsection 42J(7) of the PSM Act 1988 and subsection 72(8) of the PSEM Act 2002), but, importantly, the expansion of the scope of the excluded matters from 'the appointment or failure to appoint a person to an executive position, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment' to 'a matter that is declared by this section not to be an industrial matter for the purposes of the Industrial Relations Act 1996', which includes the termination of employment of an executive employee. 74. It would have been 'decidedly odd' if, at the time of the significant expansion of the scope of this privative provision with the enactment of the GSE Act in 2013, the legislature felt it necessary to repeal or amend other parts of section 58, such as subsection 58(4), on the basis that, to the extent those provisions also dealt with a matter declared by subsections 58(2) and (3) not to be 'an industrial matter', such as the termination of employment of an executive employee, those provisions were no longer necessary due to the expanded scope of subsection 58(7). Further, so the argument goes, the failure of the legislature to make such amendments has rendered the meaning of the term 'any other relief' in subsection 58(7) less than what those words mean on their face, because other parts of section 58 expressly exclude the operation of all, or specified parts, of the Act. The better view is that the wording of subsections 58(3) and 58(4) of the Act was left unchanged from their predecessor provisions in the PSM Act 1988 and the PSEM Act 2002 more for abundant caution than anything else. 75. Further, the presence of subsection 58(8) in the Act is strongly suggestive of the proposition that proceedings may be instituted under section 213 of the Act to enforce the provisions of section 210 in relation to the employment of another employee of any Public Service agency and for no other purpose, such as in relation to a termination of employment. The transplantation of this provision from section 22 of the PSEM Act 2002, where it was clearly confined to appointments of staff, into section 58 of the GSE Act, did not, and could not, have the effect of expanding the scope of the provision to capture terminations of employment. The applicant's submissions at paragraphs 52-55 cannot be accepted (see [28] above). 76. The words of section 58 are intractable and mean what they say. No proceedings for relief lie in respect of the 'removal, retirement, termination of employment or other cessation of employment of an executive employee'. 77. It is not the function of this Commission to frustrate the clear intendment of such a statutory provision despite its potential to operate unfairly in a case such as the present one, where the applicant is claiming, in effect, that he was dismissed unlawfully. 78. The applicant has described an outcome that would deprive him of the right to challenge his dismissal in this Commission on the grounds of victimisation as 'surprising', 'extreme', 'antithetical to good governance in the public sector' and against the objects of the Act. These descriptions may be apt in the circumstances of his dismissal as described in his application for relief. The same may be said about a statutory provision which deprives a senior executive of any redress in this Commission in circumstances where, for example, the employee has been dismissed for alleged gross misconduct which can be irrefutably disproven. However, that is indisputably the situation which, rightly or wrongly, prevails under the GSE Act." 1. The Commissioner upheld the respondent's jurisdictional objection and dismissed the Victimisation Application. Grounds of appeal 1. In his Application for Leave to Appeal and Appeal the appellant stated the grounds of appeal to be as follows: "1. The Commissioner erred in finding that section 41 of the Government Sector Employment Act 2013 impliedly repealed section 210 to section 213 of the Industrial Relations Act 1996 so far as these provisions would otherwise apply to the termination of Public Service Senior Executive employees; 2. The Commissioner erred in concluding that section 58 of the Government Sector Employment Act 2013 operates as an express privative provision so as to prevent a Public Service Senior Executive Employee from obtaining relief pursuant to section 213 of the Industrial Relations Act 1996? 3. The Commissioner erred in finding that he had no jurisdiction to determine an application for relief under s [213] of the Industrial Relations Act 1996 in respect of Public Service Senior Executive Employees. 4. Such other or further grounds as this Honourable Commission considers appropriate." Submissions 1. Each of the parties relied on quite comprehensive written submissions. To a large degree the submissions made on behalf of the appellant reflected those made in the proceedings below. The respondent in its written submissions on appeal expressly adopted the written submissions which it had filed in the proceedings below. As already noted, the submissions made by the parties were traversed in some detail in the Decision and we do not intend similarly to reproduce them in this judgement. Implied repeal 1. The appellant's submissions in relation to the Commissioner's findings on implied repeal may be summarised as follows: 1. the Commissioner failed to apply the proper approach to the question of implied repeal. Where Parliament has enacted two pieces of legislation, it is to be presumed that it intended both to operate together and the courts are reluctant to conclude that, without expressly doing so, Parliament has impliedly repealed an earlier provision. The presumption that Parliament intended the GSE Act and the IR Act to operate together has not been displaced; 2. the approach of the Commissioner assumes that s 41 of the GSE Act, in dealing with termination, and the victimisation provisions of the IR Act occupy the same field. They do not. Dismissal may be an example of victimisation, but does not represent the field occupied by s 210. That section protects employees from retribution for exercising fundamental industrial rights which can operate harmoniously with the powers given to terminate Senior Executives; 3. whilst the power conferred by s 41 of the GSE Act is broad, it is not so absolute as to indicate an intention that the right of the employer to terminate the employment of a Senior Executive is entirely unfettered. The section cannot be read as suggesting that the employer is at liberty to terminate for discriminatory reasons or for reasons that would constitute victimisation under the IR Act. More would be required to result in that outcome; 4. the Commissioner assessed whether the GSE Act had impliedly repealed the victimisation provisions of the IR Act, at least in so far as they apply to the termination of employment of a Senior Executive, only by reference to s 41. That is not the only provision permitting the termination of a Senior Executive's employment. The reasoning relying on s 41 would not assist if a Senior Executive was terminated under another provision of the Act; 5. the Commissioner's reliance on Commissioner of Police v Eaton (2013) 252 CLR 1; (2013) 230 IR 78; [2013] HCA 2 ("Eaton") was not sufficient to support the conclusion he reached. In particular, the decision in Eaton does not mean that the same or a similar formulation of words used in a different context to describe a power to dismiss is intended to confer a power that is entirely unfettered; 6. in Eaton the majority discerned good and rational reasons why the proper management of the police force necessitated a power to terminate the employment of probationary police officers without recourse to merits review. However, no rational reason could be suggested to justify authorising an employer to terminate the employment of a Senior Executive for discriminatory reasons or because he or she had participated in proceedings in the Commission, reported a serious risk to public or workplace safety or become involved in an industrial organisation; 7. the capacity, in s 213(2)(c) of the IR Act, to order a payment with respect to "remuneration or other financial benefits lost or forgone" is not a general compensatory power and not inconsistent with s 41(2) of the GSE Act. The Commission was wrong to conclude that s 41(2) presented inconsistency with s 213 of the IR Act; 8. if s 41 impliedly excludes the operation of any provision of the IR Act which might touch upon the termination of employment of a Senior Executive, s 58(4) of the GSE Act is entirely unnecessary and is otiose; and 9. s 85(1) of the GSE Act expressly deals with the interaction between that Act and the IR Act, and provides that the GSE Act "does not affect the operation of the Industrial Relations Act 1996". The Commission has consistently interpreted equivalent predecessor provisions as making clear that the public sector employment legislation was not intended to impliedly repeal parts of the IR Act. Section 85(1) is at the very least a further indication that the GSE Act was not intended by Parliament to repeal or alter the operation of the IR Act except to the extent that it expressly does so. 1. In large part, the submissions made by the respondent on the question of implied repeal are summarised in the extract from the Decision contained in [11] above. The respondent relied heavily on Eaton to submit that the language of s 41 of the GSE Act reveals a Parliamentary intention to confer an unfettered right to terminate the employment of Senior Executives. Not only is there no requirement for the employer to give a reason under s 41, there is not even any express requirement to have a reason. This is even more strongly indicative of Parliament's intention that there not be any examination or review of the reasons for termination. 2. In its written outline of submissions the respondent stated as follows: "14. If the Full Bench applies the reasoning in Eaton and accepts, as the Commissioner did, that the intended effect of s.41 is that there not be any examination or review of the reasons for termination, then it matters nought whether the dismissal itself was for unsatisfactory service, misconduct, any reason or no reason." 1. The respondent further submitted: 1. s 41 stands in contradistinction to s 47 of the GSE Act, which limits the employer's capacity to terminate the employment of non-senior executive employees to particular grounds. By so differentiating between Senior Executives and other employees, and in allowing for the former to be dismissed for "any or no stated reason", Parliament has expressed the intention that s 41 is to operate so as to permit the employer to terminate employment for absolutely any reason, even if the reason includes matters in s 210 of the IR Act, and indeed for no reason at all; 2. the GSE Act contains a complete code in relation to the compensation on termination of Senior Executives. This is the result of the following factors: 1. s 39 of the GSE Act requires the contracts for Senior Executives to contain certain contractual terms, including the compensation for any termination of employment of the Senior Executive; 2. cl 39 of the Government Sector Employment Regulation 2014 (NSW) ("GSE Regulation") requires that a Senior Executive receive 38 weeks' notice if they are dismissed pursuant to s 41(1); 3. s 41(2) of the GSE Act applies a cap on compensation; and 4. s 58(7) of the GSE Act prevents any proceedings or claims for further compensation. Privative Provision 1. On the application and operation of the privative provision in s 58 of the GSE Act, the appellant submitted that the Commissioner was wrong to construe the words "any other relief" in s 58(7) so as to encompass remedies available under s 213 of the IR Act. This was said to be for several reasons, namely: 1. the Commissioner failed to apply the approach generally adopted to privative provisions, which is that a privative provision is to be construed narrowly; 2. the phrase "or for any other relief" must take its meaning from the context provided by the remainder of s 58, and in particular the immediate context of the words of s 58(7). The Commissioner erred in refusing to follow the reasoning of Kirby P (as his Honour then was) in Sydney City Council v Reid (1994) 34 NSWLR 506 ("Reid"), in which his Honour interpreted the words "any other relief" in a provision in closely similar terms to s 58(7) as referring to relief available in judicial proceedings and (with rare statutory exceptions) before superior courts of record. This does not encompass proceedings in the Commission pursuant to s 213 of the IR Act; 3. where the GSE Act intends to exclude jurisdiction conferred by the IR Act it says so expressly, as in ss 58(3), 58(4) and 58(5). The legislature has turned its mind to which parts of the IR Act it wishes to exclude from operating in relation to Senior Executives and has not excluded the victimisation provisions. If the phrase "or for any other relief" in s 58(7) applies to relief available in the Commission under the IR Act, ss 58(3) and 58(4) are otiose. The reasoning of the Commissioner that those provisions were left in the Act for "abundant caution" could not be accepted; 4. the Commissioner misunderstood the effect of the legislative history of the GSE Act, which supports the conclusion that there is no intent on the part of the legislature to permit Senior Executives to be the subject of victimisation without recourse. Immediately prior to the commencement of the GSE Act the legislation did not preclude a Senior Executive from bringing victimisation proceedings. There is no indication that the GSE Act intended to change that situation and permit public sector employers to victimise Senior Executives; and 5. for the reasons already stated, the Commissioner was wrong to say that the words of s 58(7) are "intractable". 1. To the extent that the appellant's submissions restated arguments raised below, the respondent relied on its submissions in those proceedings. The respondent submitted that when read together and harmoniously, ss 41(2) and 58(7) of the GSE Act clearly exclude any kind of proceeding, judicial or otherwise, that seeks relief in relation to the dismissal of a Senior Executive. 2. The respondent contended that the comments by Kirby P in Sydney City Council v Reid were obiter. Further, or in any event, the respondent observed that the Commissioner considered the authority at length in the Decision and found that the words "any other relief" in s 58(7) were not to be read down to exclude s 210 of the IR Act. The respondent submitted that the appellant's submissions did not identify any error in the Commissioner's reasoning but rather did no more than to express disagreement with the conclusion he reached. 3. On the appellant's argument that the Commissioner's construction of s 58(7) would render ss 58(3) and 58(4) otiose, the respondent submitted that: 1. the appellant's submission ignores s 58(6) of the GSE Act, which declares that certain things relating to a different class of employee (that is, employees other than Senior Executives) are not an industrial matter for the purposes of the IR Act. Section 58(7) then ties the "matters that are not industrial matters" (as defined in ss 58(3) and 58(6)) together and prohibits proceedings for relief in respect of both classes. The Commissioner's description of ss 58(3) and s 58(4) being retained in the GSE Act for abundant caution is correct. Section 58(7) could not and should not be read down merely because it is said to be repetitive; and 2. the appellant's reasoning seemed to be that express displacement of certain provisions is otiose if Parliament's intention was to impliedly repeal them in any case. This was at odds with the reasoning in Eaton. Leave to appeal 1. An appeal to the Full Bench under Ch 2 Pt 7 of the IR Act may be made only with the leave of the Full Bench: s 188(1). The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted: s 188(2). 2. The respondent did not oppose the granting of leave to appeal. It accepted that "this matter is of such importance that as a matter of public interest leave should be granted". [1] 3. Prior to the hearing, the Full Bench determined, on the papers, that leave to appeal would be granted. This decision was made in accordance with the principles enunciated by the Full Bench in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 at [10] and [11] and in Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007 at [12] and [13]. 4. The parties were advised at the outset of the hearing that leave to appeal had been granted. Principles to apply on appeal 1. The Decision did not involve the exercise of a discretion. Once leave to appeal is granted the question for the Full Bench is whether the Commissioner reached the correct decision, not whether the decision was reasonably open to him: 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 at [26], citing Branir Pty Limited v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 and Australian, Municipal, Administrative, Clerical and Services Union v Commonwealth of Australia (acting through and represented by the Australian Taxation Office) [2018] FWCFB 1170. Consideration Implied repeal 1. There was no disagreement between the parties as to the approach to be taken to the question of implied repeal. In Butler v Attorney-General for the State of Victoria (1961) 106 CLR 268 Fullagar J set out the principles to be applied as follows (at pp 275-276): "The books contain, of course, plenty of examples of an implied repeal - total or partial - of an earlier statute by a later statute of the same legislature. But it is a comparatively rare phenomenon, and it has been said again and again that such a repeal will not be held to have been effected unless actual contrariety is clearly apparent. I would say that it is a very rare thing for one statute in affirmative terms to be found to be impliedly repealed by another which is also in affirmative terms. The classical statement on the subject is, I think, to be found in the opinion of Lord Blackburn in Garnett v Bradley. After calling attention to the generally unsatisfactory nature of the authorities, his Lordship said: 'I shall not attempt to recite all the contrarieties which make one statute inconsistent with another; the contraria which make the second statute repeal the first. But there is one rule, a rule of common sense, which is found constantly laid down in these authorities to which I have referred, namely, that when the new enactment is couched in general affirmative language and the previous law, whether a law of custom or not, can well stand with it, for the language used is all in the affirmative, there is nothing to say that the previous law shall be repealed, and therefore the old and the new laws may stand together. There the general affirmative words used in the new law would not of themselves repeal the old. But when the new affirmative words are, as was said in Stradling v Morgan, such as by their necessity to import a contradiction, that is to say, where one can see that it must have been intended that the two should be in conflict, the two could not stand together; the second repeals the first'. It should be pointed out in this connexion that the position where contrariety is suggested between an earlier and a later State statute is not quite the same as the position where inconsistency, within the meaning of s. 109, is suggested between a Commonwealth Act and a State Act. The Commonwealth Parliament is, within its sphere of power, a paramount legislature, and there can be no presumption either that it did, or that it did not, intend by its own Act to supersede or preclude from operation a State Act. But, where the comparison to be made is between two State Acts, there is a very strong presumption that the State legislature did not intend to contradict itself, but intended that both Acts should operate. It will often be found that the two may reasonably and properly be reconciled by reading the one as subject to the other. In other words it will commonly be found that the appropriate maxim is not leges posteriores priores contrarias abrogant but generalia specialibus non derogant." (Footnotes omitted) 1. Windeyer J held as follows (at pp 290-291): "In Maxwell on The Interpretation of Statutes 8th ed. (1937) p. 147 it is said that: 'A sufficient Act ought not to be held to be repealed by implication without some strong reason. It is a reasonable presumption that the Legislature did not intend to keep really contradictory enactments on the Statute-book, or, on the other hand, to effect so important a measure as the repeal of a law without expressing an intention to do so. Such an interpretation, therefore, is not to be adopted, unless it be inevitable. Any reasonable construction which offers an escape from it is more likely to be in consonance with the real intention'. I need not refer to all the authorities on which this passage is based. They amply support it. It is enough to quote the two statements that Bankes L.J. in Flannagan v Shaw spoke of as laying down a well-settled rule in clear terms. First, in Hill v Hall where Cleasby B. cited Dwarris on Statutes, 2nd ed. (1848) pp. 530, 531, for the following passage: 'Every affirmative statute is a repeal of a precedent affirmative statute, where its matter necessarily implies a negative; but only so far as it is clearly and indisputably contradictory and contrary to the former Act in the very matter, and the repugnancy such that the two Acts cannot be reconciled'. Secondly, Lord Selborne L.C. in Seward v 'Vera Cruz' said: 'Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so'." (Footnotes omitted) 1. Citing the judgments of Fullagar and Windeyer JJ, in Saraswati v The Queen (1991) 172 CLR 1 Gaudron J said: "It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other." 1. In Kocic v Commissioner of Police, NSW Police Force (2014) NSWLR 159; [2014] NSWCA 368 Basten JA stated as follows: "13. Determining the concurrent operation of two statutes of the same legislature may be seen as involving a two stage process, the first stage requiring the resolution of any uncertainty or ambiguity attending the meaning of each statute: M Leeming, Resolving Conflicts of Law (2011, Federation Press), pp 7-11. Only then is it possible to discern whether there is some element of inconsistency which requires resolution. 14. A conflict or inconsistency must be established according to particular principles applicable to provisions of a single legislature. As Gaudron J noted in Saraswati v The Queen [1991] HCA 21; 172 CLR 1 at 17, in a passage quoted in part with approval by Gummow and Hayne JJ in Ferdinands v Commissioner for Public Employment [2006] HCA 5; 225 CLR 130 at [18]: 'It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other.' 15. In Ferdinands, the joint reasons continued at [47]: 'No conclusion can be reached about whether a later statutory provision contradicts an earlier without first construing both provisions. If, upon their true construction, there is an '[e]xplicit or implicit contradiction' between the two, the later Act impliedly repeals the earlier.' 16. The language quoted in that passage was from Rose v Hvric [1963] HCA 13; 108 CLR 353 at 358. After referring further to the reasoning in Rose, the joint reasons in Ferdinands continued at [49]: 'Reference to 'implicit contradiction' may suggest that it is both permissible and useful to resort to 'covering the field' tests developed in the application of s 109 of the Constitution in deciding whether a later Act impliedly repeals an earlier. It is, however, necessary to recognise that s 109 concerns the paramountcy of a law of the Commonwealth over a law of a State. The question in the present case is not whether one law enacted by one legislature prevails over a law enacted by another legislature; it is whether the presumption that two laws made by the one legislature are intended to work together is displaced.' 17. Gleeson CJ writing separately in Ferdinands, noted that it was not suggested in that case that there was 'repugnancy between the two State statutes, in the sense that they create conflicting commands, which cannot be both obeyed, or produce legal rights or obligations which cannot be reconciled': at [4]. The Chief Justice identified the problem as one arising out of 'such contrariety in the two legislative schemes that, by necessary implication' one excluded the operation of the other. In his conclusion, the Chief Justice used the language of 'incompatibility': at [11]." The legislative schemes 1. The GSE Act, amongst other things, regulates the employment of people in the Public Service of New South Wales, including Senior Executives. Within the scheme established by the GSE Act, s 41 deals with the termination of employment of Senior Executives. 2. Chapter 5 Pt 1 of the IR Act is directed to protecting individuals from unlawful behaviour. It appears in a Chapter of the IR Act titled "Industrial Organisations" and the Part itself is titled "Principles of Association". Section 210 prohibits an employer or industrial organisation victimising an employee or prospective employee on account of specified grounds. To the extent it protects a person from dismissal on one of those grounds it does so because termination of employment is just one example of victimisation that might be taken against an individual. 3. Relevantly, s 210 does not require a direct employment relationship between the individual and the perpetrator of the unlawful conduct. This is made clear in the reference to "employer or industrial organisation". While there needs to be an employment relationship in existence, an industrial organisation could engage in unlawful behaviour under the section against a person who is not its own employee. 4. In Twentieth Superpace Nominees v TWU (2006) 156 IR 323; [2006] NSWIRComm 218 the Full Bench made the following comments as to the nature of the jurisdiction under Ch 5 Pt 1 of the IR Act: "27. Section 210(1) is a protective provision and to adopt an overly technical approach to the meaning of 'complaint' as contended by the appellant would, in our view, serve to defeat the intended benefit of the section, that is, to allow people to make complaints about safety without fear of victimisation or retribution. In any event, the approach we take is to adopt a common sense approach to the ordinary meaning of the word. … 35. Finally, we observe that from a policy viewpoint, every reasonable avenue should be available to an employee to raise occupational health and safety concerns without fear of victimisation or retribution and, accordingly, it is appropriate that s210(1)(j) should be construed broadly." (Emphasis added) 1. There may be an overlap between s 41 of the GSE Act and Ch 5 Pt 1 of the IR Act, to the extent that the latter would preclude a Senior Executive being unlawfully victimised through being dismissed. However, the fundamental difference in the purpose and effect of the legislative schemes, having regard to the authorities referred to above, argues against a finding that s 41 of the GSE Act impliedly repeals Ch 5 Pt 1 of the IR Act. Unfettered power to dismiss 1. As the Commissioner observed at [53] in the Decision, the respondent's case "drew heavily" on Eaton. Indeed, it was the High Court's reference in that case to s 80(3) of the Police Act 1900 (NSW) conferring on the Commissioner or Police an "unfettered right" to dismiss a probationary constable which formed the lynchpin of the respondent's case. 2. Relying on Eaton the respondent contended that s 41(1) of the GSE Act confers on the employer an unfettered discretion to terminate the employment of a Senior Executive, in terms that are "strongly indicative of Parliament's intention that there not be any examination or review of the reasons for termination". An employer was said to have an unfettered discretion to dismiss a Senior Executive "without interference of any kind". 3. In further reliance on Eaton, the respondent argued that proceedings under s 213 of the IR Act are inconsistent with an unfettered power to dismiss. This is because such proceedings require an examination of the reasons for dismissal, and the IR Act allows for orders reinstating the Senior Executive to his or her employment. 4. In Eaton the High Court had to determine whether the terms of s 80(3) of the Police Act impliedly repealed the Commission's unfair dismissals jurisdiction in respect of probationary police constables. The High Court's analysis was directed to ascertaining whether there was such contrariety in the two legislative schemes that, by necessary implication, s 80(3) of the Police Act excluded the operation of Ch 2 Pt 6 of the IR Act. 5. In his decision Heydon J stated as follows: "11. First, the language of s 80(3) points against the conferral of any jurisdiction on the Commission to deal with claims that a s 80(3) dismissal is harsh, unreasonable or unjust within the meaning of s 84(1) of the IR Act. Three key aspects of the language have this effect – 'at any time', 'without giving any reason' and 'probationary'. 12. 'At any time'. The words 'at any time' point against any examination of whether the selection of a time for dismissal was harsh, unreasonable or unjust. That is because dismissal can take place at any time. If the Police Act gives the Commissioner power to dismiss a probationary constable at any time there is no room for complaint that dismissal should not have taken place at a harsh, unreasonable or unjust time. The words 'at any time' did not appear in the precursor to s 80(3), namely r 11(b) of the Police Rules 1977. The words are the same as those in s 9(1) of the Police Regulation Act 1958 (Vic), which Gibbs CJ described in 1985 as giving 'an unfettered power to dismiss'. The adoption by the New South Wales legislature of those words in 1990 suggests that they bear the meaning given to them by Gibbs CJ. 13. 'Without giving any reason'. The next key expression is 'without giving any reason'. It is often impossible to assess whether a dismissal was harsh, unreasonable or unjust without examining the reasons for it. And in many instances it is impossible to assess what the reasons for a dismissal were unless the person who made the decision to dismiss states the reasons. The capacity of the Commissioner to dismiss probationary constables 'without giving any reason' suggests that there is to be no examination of whatever the Commissioner's reasons were. Hence the light cast by them on the harshness, unreasonableness or injustice of the decision is unavailable. In turn, the harshness, unreasonableness or injustice must be immaterial to the lawfulness of the decision. Review of the dismissal is not available on one of those grounds. … 15. 'Probationary'. The third key expression is 'probationary'. Section 80(2) of the Police Act provides that a person when first appointed as a constable is to be appointed on probation in accordance with the regulations. … 16. …Probation involves a process of putting to proof. It is a process of investigation and examination. A probationary period is a 'period of testing or trial for the purpose of ascertaining whether [a person] has the necessary qualifications for a permanent appointment, and the word 'probation' itself involves the idea of something in the nature of trial and experiment with a view to determining whether an applicant is to be appointed.' A probationary constable is one whose qualifications for non-probationary status are put to proof, investigated, examined, tested or tried. Those qualifications include aptitude, competence, integrity, performance and conduct. The probationary status of probationary constables is another factor pointing to the conclusion that s 84(1) of the IR Act does not extend to conferring on probationary constables a right to claim that a dismissal is harsh, unreasonable or unjust. 17. The first respondent submitted that these arguments based on the language of s 80(3) of the Police Act were beside the point. He submitted that the Commission's power to review a dismissal should not be restricted by the nature of the power to dismiss. That is not so. The freedom with which an employer may dismiss can affect the capacity of an employee to challenge the dismissal. If, as Gibbs CJ said, a power to dismiss like s 80(3) of the Police Act is unfettered, then its exercise is necessarily immune from challenge on the ground of harshness, unreasonableness or unfairness." (Footnotes omitted) 1. The plurality (Crennan, Kiefel and Bell JJ) stated as follows: "72. The indications in the Police Act point towards a legislative intention that a decision made under s 80(3) to dismiss a probationary constable is not to be subject to merits review by the IR Commission under Pt 6 of the IR Act. … 74. The terms of s 80(3), as the Commissioner argues, are strongly suggestive of an unfettered power to dismiss. The fact that the Commissioner is not obliged to give any reasons, whilst not conclusive of an intention that there be no merits review of a decision to dismiss, implies an unfettered power. It stands in contrast with the requirement for reasons, imposed by Pt 9 of the Police Act, where a confirmed police officer is dismissed. 75. The lack of a requirement for reasons also points to some incoherence with the provisions of Pt 6 of the IR Act concerning the matters to be taken into account by the IR Commission in determining whether a dismissal is harsh, unreasonable or unjust. The terms of s 80(3) suggest that such considerations are not to be in question. The intended legal effect of the Commissioner not being required to give reasons is that the Commissioner's decision cannot be impugned on account of any particular reason." 1. The observations made by the High Court, and the conclusions it drew, must be viewed in light of the legislation under consideration. It is also apparent that the High Court paid particular regard to the probationary status of the probationary constables, as highlighted at [16] of the decision of Heydon J. 2. The High Court's reference to "unfettered power to dismiss" must be viewed in the same context. The power to dismiss under s 80(3) of the Police Act was seen to be "unfettered" in the context of whether the decision to dismiss could be subject to a merits review under Ch 2 Pt 6 of the IR Act, which would involve determining whether the dismissal was harsh, unreasonable or unjust. To construe "unfettered power to dismiss" literally and strictly ignores that context. 3. In our view, Eaton is not properly to be read as authority for the proposition that language such as that which appears in s 41(1) of the GSE Act necessarily exempts the employer from any and all legal obligations which might arise in connection with the dismissal of a Senior Executive. 4. We observe that the authority on which Heydon J relied (at [12] and [17]) to support his finding that the power to dismiss was unfettered was the decision of Gibbs CJ in O'Rourke v Miller (1985) 156 CLR 342 at 349. That case concerned the dismissal of a probationary constable under the Police Regulation Act 1958 (Vic). The question for the High Court was whether a police probationary constable was, prior to dismissal, entitled to be treated in accordance with the rules of natural justice and, further, whether he was entitled to confront and cross-examine those individuals who had brought complaints against him. The High Court held in favour of the constable on the first question but not the second. 5. In the course of his judgement, Gibbs CJ made reference to ss 9(1) and 112 of the Police Regulation Act. Like s 80(3) of the Police Act, s 9(1) conferred on the Chief Commissioner the power to "dismiss or discharge any police cadet at any time". This was said by his Honour at p 349, in obiter comments, to confer "an unfettered power to dismiss a police cadet". 6. This view did not, however, preclude a finding that a police probationary constable was entitled to be treated in accordance with the rules of natural justice. To that extent, the power to dismiss was not entirely unfettered. It is noteworthy that the ground on which employee in O'Rourke v Miller was unsuccessful – having no right to "confront his accusers", as it were – goes to the merits of the decision to dismissal. 7. There is nothing in O'Rourke v Miller which itself supports the proposition, or which supports the decision of Heydon J being construed as authority for the proposition, that the use of language such as that which appears in s 41(1) of the GSE Act exonerates an employer from the responsibility to comply with laws which place constraints on the motivations for which an employer may dismiss an employee. 8. The Commission's jurisdiction under Ch 2 Pt 6 of the IR Act is fundamentally different to that under Ch 5 Pt 1. We have outlined at [33] and [34] above the nature of the Commission's jurisdiction under Ch 5 Pt 1. 9. Section 213 of the IR Act is titled "Enforcement" and the orders that the Commission is empowered by that section to make, including reinstatement of an employee, are expressly stated to be for the purposes of enforcing the provisions of the Ch 5 Pt 1 of the IR Act. If the alleged unlawful conduct was the dismissal of the employee, proceedings under s 213 may require the identification of the employer's reason or reasons for dismissal. They will not, however, involve a merits review of the decision to dismiss. The focus is more on the motivation than the outcome. 10. Applications under Ch 2 Pt 6 of the IR Act are of a different nature. Under s 84 an employee may apply to the Commission for a remedy if the employee "claims that the dismissal is harsh, unreasonable or unjust". Section 88 sets out the matters which the Commission may, if appropriate, take into account in determining the claim, which include an examination of the reasons for dismissal. The Commission is given power under s 89 to make orders for reinstatement, re-employment, remuneration or compensation. 11. To exercise its jurisdiction under Ch 2 Pt 6 of the IR Act the Commission must necessarily undertake a merits review of the decision to dismiss. However, in contrast with the condition precedent to the Commission exercising its jurisdiction under s 213, a finding that a dismissal was "unfair" for the purposes of s 84(1) does not necessarily involve, much less require, a finding that it was unlawful. 12. It is clear that in using the language it has adopted in s 41(1) of the GSE Act, Parliament intended to confer on the employer a wide discretion to dismiss Senior Executives with few repercussions. However, that discretion needs to be read in the context of the GSE Act as a whole. 13. The objects of the GSE Act are set out in s 4, as follows: 4 Objects of Act The objects of this Act are as follows: (a) to develop a modern high performing government sector: (i) that is efficient and effective in serving the Government in the delivery of services to the people of New South Wales, and (ii) that has effective and fair employment arrangements, management and leadership, (b) to establish the Public Service as the general service within the government sector, (c) to provide transparent governance and employment arrangements for the Public Service, including providing for the employer functions and responsibilities of heads of Public Service agencies, (d) to establish an ethical framework for the government sector comprising core values and principles that guide their implementation, (e) to make provision for the objectives, functions and responsibilities of the Public Service Commissioner. 1. Part 2 of the Act is in these terms: Part 2 Ethical framework for the government sector 6 Objective of Part This Part: (a) recognises the role of the government sector in preserving the public interest, defending public value and adding professional quality and value to the commitments of the Government of the day, and (b) establishes an ethical framework for a merit-based, apolitical and professional government sector that implements the decisions of the Government of the day. 7 Government sector core values The core values for the government sector and the principles that guide their implementation are as follows: Integrity (a) Consider people equally without prejudice or favour. (b) Act professionally with honesty, consistency and impartiality. (c) Take responsibility for situations, showing leadership and courage. (d) Place the public interest over personal interest. Trust (a) Appreciate difference and welcome learning from others. (b) Build relationships based on mutual respect. (c) Uphold the law, institutions of government and democratic principles. (d) Communicate intentions clearly and invite teamwork and collaboration. (e) Provide apolitical and non-partisan advice. Service (a) Provide services fairly with a focus on customer needs. (b) Be flexible, innovative and reliable in service delivery. (c) Engage with the not-for-profit and business sectors to develop and implement service solutions. (d) Focus on quality while maximising service delivery. Accountability (a) Recruit and promote employees on merit. (b) Take responsibility for decisions and actions. (c) Provide transparency to enable public scrutiny. (d) Observe standards for safety. (e) Be fiscally responsible and focus on efficient, effective and prudent use of resources. 8 General provisions (1) The Public Service Commissioner has the function of promoting and maintaining the government sector core values. (2) There is no hierarchy among the core values and each is of equal importance. (3) Nothing in this Part gives rise to, or can be taken into account in, any civil cause of action. 1. The respondent's case requires the Commission to accept that s 41(1) confers a completely unfettered discretion on the employer that allows for Senior Executives to be dismissed with impunity, including on grounds that are otherwise unlawful, free from any scrutiny. We have difficulty reconciling such a position with objects including the provision of "effective and fair employment arrangements" and "transparent governance and employment arrangements", and with the establishment of "an ethical framework for the government sector". Such a construction of s 41(1) would also allow an employer to disregard the "core values" of "integrity", "trust" and "accountability" when dismissing Senior Executives. 2. We accept the respondent's submissions that the scheme created by the GSE Act and GSE Regulation is intended to limit the extent to which a Senior Executive can challenge the termination of their employment. As Mr Easton for the respondent said during his submissions, this is why they are entitled to be paid the "danger money" [2] provided for in cl 39 of the GSE Regulation. In the context of the legislative scheme there is cogency to the argument, and it is consistent with Eaton, that there be no merits review of any decision to dismiss a Senior Executive. 3. Such a construction is also consistent with s 58(4) of the GSE Act. The effect of that section is to preclude claims by Senior Executives under the Commission's unfair dismissal, unfair contracts and public sector disciplinary jurisdictions. Each of those jurisdictions requires an examination of the fairness of the terms on which an employee is engaged or the way in which they have been treated. Once again, there is internal harmony that the GSE Act would expressly exclude Senior Executives from those jurisdictions. 4. Our difficulty with the respondent's position, however, is the licence that it would require be given to the employer (as that term is defined in s 33(3) of the GSE Act) of a Senior Executive. The Commission is being asked to accept that by implication Parliament intended to allow the employer to avoid the positive obligations imposed on it by s 210 of the IR Act and engage in conduct that would otherwise be unlawful. This goes beyond asking whether the decision to dismiss was fair or otherwise the correct one. 5. Significantly, the reasoning pressed by the respondent is not confined to the IR Act. The respondent's arguments would extend to any enactment which would purport to place constraints on the termination of employment of Senior Executives. 6. For example, if the respondent's submissions are accepted, there would be nothing to prevent the employer dismissing a Senior Executive on the grounds of race, sex, transgender status, marital or domestic status, disability, responsibilities as a carer, homosexuality or age, despite those provisions of the Anti-Discrimination Act 1977 (NSW) which would otherwise make such conduct unlawful. [3] Similarly, the agency could victimise the Senior Executive, through terminating his or her employment, with impunity, notwithstanding section 50 of that Act. 7. Another example is Pt 6 of the Work Health and Safety Act 2011 (NSW). Section 104 of that Act makes it an offence for a person to engage in discriminatory conduct for a prohibited reason. Under s 105, "discriminatory conduct" is defined as including the dismissal of the worker. Section 106 provides that a "prohibited reason" will include the employee raising, having raised or proposing to raise an issue or concern about work health and safety. In the event of a breach of s 104, the court is given power to, inter alia, order reinstatement of the dismissed worker. This is the case regardless of whether criminal proceedings are brought under Pt 6 Div 2 or civil proceedings are brought under Pt 6 Div 3. Once again, the respondent's submissions, if accepted, would allow the employer to dismiss a Senior Executive in breach of s 104 of the Work Health and Safety Act without any risk of criminal or civil sanctions. 8. In the Outline of the Respondent's Submissions in Reply filed in the proceedings below, the respondent traversed the IR Act to identify which provisions would apply to the appellant as a Senior Executive, taking into account the fact that his annual salary "was in excess of $200,000". It was contended, in those proceedings and on appeal, that the limited application of the IR Act to Senior Executives was consistent with an intention on the part of Parliament not to give them the protection of the victimisation provisions in Ch 5 Pt 1 of the IR Act. 9. If it were to be accepted that Parliament intended that Senior Executives not have access to applications under s 213 of the IR Act, that would, as a matter of logic, be consistent with the otherwise limited application of the IR Act to Senior Executives. However, that does not take the discussion very far. One must first identify the necessary intention; it is not to be inferred from the fact that other provisions of the IR Act may not apply. GSE Act and GSE Regulation as a code 1. As stated at [18(2)] above, the respondent contended that the scheme established by the GSE Act and the GSE Regulation establishes a code for the termination of Senior Executives. That scheme allows a Senior Executive to be dismissed under s 41(1) of the GSE Act for no reason or for any reason, including a bad one. Their entitlement is 38 weeks' pay and nothing more. It was said to be inconsistent with that scheme that Senior Executives might commence proceedings under s 213 of the IR Act to seek reinstatement, additional compensation or both. 2. The obligation to make a termination payment to a Senior Executive under cl 39(1) of the GSE Regulation is tied to the basis on which he or she is dismissed. The extent to which cl 39(1)(b) extinguishes a Senior Executive's entitlements on termination is necessarily constrained by any limits on s 41(1) of the GSE Act. 3. Further, to adopt the respondent's "danger money" analogy, it would be necessary to accept that Parliament intended that payment of 38 weeks' pay under cl 39 of the GSE Regulation was to effectively "buy out" any entitlements that the Senior Executive would have on the termination of their employment, regardless of the lawfulness or otherwise of that termination. If that payment was indeed intended to preclude an employee challenging the lawfulness of the termination, as opposed to the merits of it, we would expect a far clearer, and, indeed, express statement of legislative intent. 4. It is necessary also to consider the effect of s 41(2) of the GSE Act, which provides that a Senior Executive dismissed under s 41 is entitled to such compensation (if any) as may be provided in his or her contract of employment "and to no other compensation or entitlement for the termination of employment". There are two observations we wish to make. 5. Firstly, we do not regard the ability of a Senior Executive to make an application to the Commission under s 213 of the IR Act is properly to be regarded as an "entitlement for the termination of employment". The ability to make the claim does not arise automatically on termination of employment, but is dependent on there being grounds under s 210 on which to argue that the employer has victimised the employee on one of the proscribed grounds. In that context the potential availability of a claim is not an entitlement arising out of the termination of employment, but an avenue in which an employee can seek redress for any unlawful conduct resulting in the termination. 6. In this regard, the orders available to the Commission under s 213(2) are directed to correcting or ameliorating the victimising conduct. Their aim is expressed to be the enforcement of the provisions of Ch 5 Pt 1 of the IR Act. The orders that are available are not expressed in the language of an entitlement flowing to the employee. 7. Secondly, we are disinclined to the view that a monetary order under s 213(2)(c) is properly to be regarded as "compensation…for the termination of employment". The jurisdiction of the Commission to make a payment of money to a successful applicant under s 213(2)(c) is limited to the "amount of remuneration or other financial benefits lost or forgone". It is a remedial order which assists in the enforcement of the IR Act through ensuring to the extent possible that an employee is placed, from a financial perspective, in the position that they would have been in had the unlawful conduct not have occurred. Such an order also seeks to ensure that the employer does not benefit from prohibited detrimental action. 8. The Commission's power under s 213(2)(c) finds a close parallel in s 89(4) of the IR Act. That section provides that if the Commission finds that a dismissal was harsh, unreasonable or unjust and it orders reinstatement or re-employment, it may also order the employer to pay to the applicant an amount that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated or re-employed. Like an order under s 213(2)(c), the effect is in the nature of an order for restitution. 9. This is to be contrasted with an order under s 89(5) of the IR Act, which empowers the Commission, if reinstatement or re-employment is impracticable, to "order the employer to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed". It is perhaps significant that s 89(5) expressly refers to "compensation" and s 89(4) does not. 10. It is also relevant that in making an order under s 89(5) the Commission is not necessarily confined to placing an employee in the position they would have been in but for the unfair termination of their employment. In assessing compensation the Commission must take into account the extent to which the applicant mitigated or sought to mitigate his or her loss: s 89(6). Subject to doing so and the limitation on the quantum of the compensation, the power of the Commission to make a money order is within the Commission's discretion: D & R Commercial Pty Limited v Flood (2002) 113 IR 344; [2002] NSWIRComm 88 at [64]. There is a level of speculation in determining the appropriate level of compensation: see Bartlett and Cini v Mario's Fresh and Frozen Foods [2006] NSWIRComm 1084 at [27] and [28]. 11. We move now to s 58(4) of the GSE Act, which provides that Parts 6, 7 and 9 of Chapter 2 of the IR Act do not apply to or in respect of the employment of a Senior Executive. It is necessary to do so to consider the scheme established by the GSE Act, and how s 41(1) is to be construed within that scheme. Section 58(4) is a clear instance of the legislature having turned its mind to particular provisions of the IR Act which were not to apply to Senior Executives. It is relevant, but we acknowledge not determinative, that this section does not refer to Ch 5 Pt 1 of the IR Act. 12. The Commissioner's conclusion at [74] of the Decision that s 58(4) "was left unchanged from [its] predecessor [provision] in the PSM Act 2002 and the PSEM Act 2002 more for abundant caution than anything else" was premised on his finding that s 58(7) operated to preclude all claims. Absent that finding, a matter to which we will turn shortly, there is no reason why s 58(4) should not be construed as identifying the particular provisions of the IR Act which Parliament intended not to apply to Senior Executives. 13. Applying the same reasoning it would be possible to construe s 58(8) of the GSE Act as evidencing a Parliamentary intention that proceedings under s 213 of the IR Act are, for Senior Executives, confined to a claim in relation to the employment of another employee of any public service agency. That is, it is not open to the Senior Executive to rely on s 213 to impugn the reason for their own dismissal. If s 213 applies on the basis of not being expressly excluded by s 58(4) of the GSE Act, why would there be a need for s 58(8)(b)? 14. The predecessor to s 58(8) was s 22(5) of the Public Sector Employment and Management Act 2002 (NSW) ("PSEM Act"). That section was inserted into the PSEM Act by the Public Sector Employment and Management Amendment Act 2010 (NSW), and commenced on 1 July 2010. 15. On the same day, the Industrial Relations Amendment (Public Sector Appeals) Act 2010 (NSW) commenced. That Act repealed the Government and Related Employees Appeal Tribunal Act 1980 (NSW) ("GREAT Act") and inserted into the IR Act Ch 2 Pt 7, which was then titled "Public sector promotion and disciplinary appeals". The effect was to confer on the Commission a jurisdiction which had previously resided in the Tribunal. As had been the case under the GREAT Act, those appeal provisions were not available to Senior Executives: s 72(4) of the PSEM Act. 16. Under the PSEM Act, the provisions regulating the employment of Senior Executives were contained in Ch 3 Pt 3.1 which was titled "Public sector executives". Section 22 was contained in Ch 2 Part 2.3 which was titled "Officers (other than Department Heads)". On its terms and given its location in the PSEM Act, the section applied to both Senior Executives and non-executive officers. 17. As it is important to read s 22(5) of the PSEM Act in the context in which it appeared, we reproduce the entire section as follows: 22 Legal proceedings not to be brought in respect of appointments etc (1988 Act, s 27) (1) The appointment or failure to appoint a person to a vacant position in the Public Service, or any matter, question or dispute relating to such an appointment or failure, is not an industrial matter for the purposes of the Industrial Relations Act 1996 (other than Part 7 of Chapter 2 of that Act). (2) Subsection (1) applies whether or not any person has been appointed to the vacant position. (3) No proceedings, whether for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of the appointment or failure to appoint a person to a position in the Public Service, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment. (4) Subsection (3) does not affect the operation of Part 7 of Chapter 2 of the Industrial Relations Act 1996. (5) Nothing in this section prevents any of the following proceedings being brought by a member of staff of a Department in relation to the appointment of another member of staff of any Department to a position in the Public Service: (a) proceedings under Part 9 of the Anti-Discrimination Act 1977 in relation to a complaint under that Part, (b) proceedings under section 213 of the Industrial Relations Act 1996 to enforce the provisions of section 210 (Freedom from victimisation) of that Act. 1. The effect of s 22 of the PSEM Act was largely to mandate that legal proceedings in respect of appointments in the public service were to be confined to those allowed for in Ch 2 Pt 7 of the IR Act. Section 22(5) provided for specific exceptions, allowing for claims on "discrimination or victimisation grounds" (to adopt the language of the Explanatory Memorandum, referred to at [40] of the Decision). 2. At that time, Ch 2 Pt 7 allowed for two types of appeals: promotion appeals under Div 2 (since repealed) and disciplinary appeals under Div 3. For the purposes of s 22 of the PSEM Act, it was really only promotion appeals under the IR Act that were of relevance. Section 94 of the IR Act allowed an unsuccessful applicant for appointment in the public service to appeal to the Commission the decision of the employer to appoint or recommend the appointment of another person. This could only be done on the "promotions appeal ground", which was defined in s 94(2) as being "that the appellant [was], having regard to any relevant document in relation to the vacant office, more entitled to be appointed to the vacant office than the employee in whose favour the decision was made". 3. Appeals under Ch 7 Pt 2 Div 2 of the IR Act necessarily involved "proceedings…in relation to the appointment of another member of staff". Seen in context, the insertion of s 22(5) into the PSEM Act is properly to be regarded as confirming that proceedings under s 213 of the IR Act provided an alternative avenue through which to challenge such an appointment. As the Commissioner noted at [41] of the Decision, a public servant who was overlooked for appointment in favour of another public servant for one or more of the reasons referred to in s 210 of the IR Act would not be prohibited from applying for an order or orders under s 213. 4. As s 22 was concerned solely with the appointment of or failure to appoint a person to a vacant position in the public service, we do not consider that s 22(5) is properly to be construed as limiting the circumstances in which a public servant, including a Senior Executive, could otherwise invoke s 213. To the extent that the Commissioner considered that the wording of s 22(5) precluded proceedings in relation to dismissal or removal from office, [4] or that "proceedings may be instituted under section 213 of the Act to enforce the provisions of section 210 in relation to the employment of another employee of any Public Service agency and for no other purpose", [5] we respectfully disagree. 5. Section 58(8) of the GSEM Act is in broadly similar terms to s 22(5) of the PSEM Act, save that it refers to "the employment of another employee" as opposed to "the appointment of another member of staff". Having regard to the history of the provision, and taking into account that Parliament has made express in s 58(4) those parts of the IR Act which are not to apply to Senior Executives, we do not construe s 58(8) as inferring a legislative intention that s 213 not be available to Senior Executives other than in relation to the employment of another employee. Section 58(8) is more to be regarded as having been retained "for abundant caution" than ss 58(3) and 58(4). [6] Dismissal for no reason 1. We turn next to the respondent's submission that the scheme established by the GSE Act permits a Senior Executive to be dismissed for no reason. 2. Section 77(1) of the PSEM Act allowed for a Senior Executive to be removed from an executive position "at any time for any or no reason and without notice". When the PSEM Act was repealed by the GSE Act, the language of the equivalent provision – namely, s 41(1) – was amended so as to allow for the termination of employment of a Senior Executive "at any time, for any or no stated reason and without notice" (emphasis added). 3. The Explanatory Memorandum to the Government Sector Employment Bill 2013 provides no insight into why the word "stated" was added to the termination provision. However, it must be presumed that Parliament intended the word to have work to do. 4. The insertion of the word "stated" in the legislation is inconsistent with the respondent's submission that s 41(1) allows for the dismissal of a Senior Executive for no reason. Leaving aside our difficulty in envisaging a situation where an employee would be dismissed for no reason at all, the section does not to our minds even conceive of the theoretical possibility. Rather, the employer is under no obligation to tell the employee the reason or reasons for which they are being dismissed. This does not mean that the employer need not have a reason. 5. In this regard, we note r 42 of the Government Sector Employment (General) Rules 2014 (NSW), which is in these terms: 42 Report on termination of employment of Public Service senior executives (1) If the employment of a Public Service senior executive is terminated by the executive's employer under section 41 of the Act, the employer is, as soon as practicable after terminating the executive's employment, to provide a written report to the Commissioner on the termination. (2) The report is to be signed by the agency head and include the following: (a) a summary of the process taken by the employer in terminating the employment, (b) the reasons for terminating the employment. (3) For the purposes of this rule, the employer of a Public Service senior executive does not include a Minister. 1. Rule 42(2)(b) supports the conclusion that there must be a reason or reasons for the dismissal of a Senior Executive, whether or not pursuant to s 41(1) it is necessary for that reason, or those reasons, to be provided to the Senior Executive. 2. The appellant submitted that if it were accepted that the employer must have a reason for dismissal, the fact that the reason need not be stated to the employee is "not incompatible with some constraint on the actual reason by reference to other statutes". [7] We accept those submissions. Section 85 of the GSE Act 1. On the question of implied repeal it is necessary finally to address the effect of s 85 of the GSE Act, which is in these terms: 85 Operation of industrial relations and superannuation legislation (1) This Act does not affect the operation of the Industrial Relations Act 1996. This subsection does not limit section 58 (Industrial or legal proceedings excluded) and section 74 (Excess employees—jurisdiction of Industrial Relations Commission). (2) This Act does not affect the operation of provisions of the Superannuation Act 1916 or any other superannuation legislation relating to retirement and other cessation of employment (and to entitlement to pensions and other benefits) of employees to whom this Act applies. 1. As previously stated, the appellant submitted that the Commission has consistently interpreted equivalent predecessor provisions as making clear that the public sector employment legislation was not intended to impliedly repealed parts of the IR Act. Section 85(1) was said to be at the very least a further indication that the GSE Act was not intended by Parliament to repeal or alter the operation of the IR Act except to the extent that it expressly does so. 2. The appellant relied on Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Director of Public Employment [2011] NSWIRComm 152 in which Boland J stated as follows: "183. The IR Act binds the Crown: s 404. Section 160 of the PSEM Act provides that nothing in that Act affects the operation of the IR Act except ss 22, 35 and 72, which are not presently relevant. The PSA is correct, in my opinion, in submitting the express provisions of the PSEM Act make clear that there is no intention to impliedly repeal any part of the IR Act and that, in the event of inconsistency, the provisions of the IR Act and the powers conferred thereunder are to prevail." 1. In Custovic and State of New South Wales (Department of Family and Community Services - Housing NSW) (2014) 247 IR 414; [2014] NSWIRComm 48 the Full Bench stated: "132. … Moreover, we think that, in the absence of any indication of repugnancy, some force has to be accorded to s 160 of the PSEM Act, which provides that that Act does not affect the operation of the IR Act." 1. We accept that, consistent with Custovic, "some force has to be accorded to" s 85(1) of the GSE Act. However, we do not agree with the appellant that the section should be construed as preserving the IR Act except to the extent that it is expressly altered or amended by the GSE Act. 2. In Eaton, which was decided after the decision of Boland J in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Director of Public Employment, the plurality considered the effect of s 218 of the Police Act, which was in these terms: 218 Industrial Relations Act 1996 not affected (1) The Industrial Relations Act 1996 is not affected by anything in this Act. (2) Subsection (1) does not limit section 42 or 88 or any provision of the Industrial Relations Act 1996. 1. The plurality made the following comments as to the operation of s 218: "90. …Thus if the general jurisdiction of the IR Act is recognised by s 218, it is withdrawn by s 80(3) insofar as decisions under that provision are concerned. 91. The conclusion reached by the Full Bench is, with respect, correct. The Full Bench construed s 218 as leaving intact the power of the IR Commission to deal with industrial matters concerning police officers, unless especially restricted by a provision of the Police Act." 1. On the reasoning of the plurality, the effect of a provision such as s 85 of the GSE Act is not to preserve the terms of the IR Act in the absence of an express alteration or amendment. A provision of the IR Act may be "especially restricted" by the terms of the GSE Act despite the absence of an express provision. This is precisely the outcome that was obtained in Eaton: s 218 did not preclude a finding that s 80(3) of the Police Act impliedly repealed Ch 2 Pt 6 of the IR Act in relation to probationary constables. Privative provision 1. We turn next to consider the terms and effect of s 58(7) of the GSE Act. During oral submissions, Mr Gibian for the appellant opined that s 58 "is not a happily drafted provision" and that on either party's case some parts of it are rendered with little or no work to do. [8] We agree with those observations. 2. Once again, there did not appear to be any particular disagreement between the parties as to the approach that should be taken to a privative provision such as s 58(7). The appellant drew our attention to Speirs v Industrial Relations Commission of New South Wales (2011) 81 NSWLR 348; [2011] NSWCA 206, in which Giles JA (with whom Allsop P and Hodgson JA agreed) stated: "89. There should be recalled the well established principle that a power vested in a court should not be construed as subject to limitations not clearly to be seen: see for example Patton v Buchanan Borehole Collieries Pty Ltd (1993) 178 CLR 1 at 23 per Gaudron J; Knight v F P Special Assets Ltd (1992) 174 CLR 78 at 205 per Gaudron J; Mansfield v Director of Public Prosecutions for Western Australia [2006] HCA 38; (2006) 226 CLR 486 at [10] per Gleeson CJ and Gummow, Kirby, Hayne and Crennan JJ; Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 at [102] per Kirby J. The power vested in the Commission to order reinstatement should not lightly be construed as subject to the limitation that a necessary element must be determined elsewhere, rather than by the Commission as part of the exercise of the power." 1. The starting point is the language of s 58(7) itself. In the proceedings below and on appeal the appellant relied on comments made by Kirby P (as His Honour then was) in Reid. In that case the Court of Appeal had to consider whether s 340(5) of the Local Government Act 1993 (NSW) prevented the appellant from commencing proceedings in the Government and Related Employees Appeal Tribunal under the GREAT Act. That section was in these terms: (5) No proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of the appointment of or failure to appoint a person to the position of general manager or to another senior staff position, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment. 1. It will immediately be apparent, as the Commissioner observed at [64] of the Decision, that the opening words of the provision being considered by the Court of Appeal are the same as those in s 58(7) of the GSE Act. 2. In his judgement in Reid, Kirby P stated as follows (at 510-512): "These provisions of the Local Government Act seem, clearly enough, designed to take 'senior staff members' out of the purview of the industrial relations system. This represents a change in the past legal position of such employees. The Local Government (State) Award, cl 5(xii) ('Executive Band'), previously provided for the regulation of employment conditions of persons who were henceforth to be severed and treated as 'senior staff members'. It may be inferred that the general object of the exclusion of such persons from the industrial relations system was to further the assimilation of senior staff of local government authorities to positions akin to the private sector, with added incentives for productivity but diminished entitlements to the tenure and award protections previously enjoyed. None of the foregoing exclusions from the industrial arbitration system explicitly touches the purported appeal to the Tribunal here in question. But it was urged by the Council that the exclusion in s 340(5) was to be read as simply another instance of the clear legislative intention to limit external interference in the appointment, removal and remuneration (or other employment conditions) of, relevantly, senior staff members. In that context, the Council urged that the phrase 'or for any other relief' in s 340(5) of the Local Government Act was to be given a suitably wide meaning so as to embrace the 'relief' sought by Mr Reid before the Tribunal. Only by doing this, was it argued, could the legislative purpose of excluding external interference in such decisions be secured. The meaning of the words 'proceedings' and 'relief' was sufficiently wide to include proceedings before the Tribunal for relief of the kind claimed by Mr Reid. The Council pointed to the analogy to be found in the Public Service Act 1979, s 65A(6), and the Public Sector Management Act 1988, s 27(3). From these provisions and the general strategy of isolating and excluding senior staff with managerial responsibility, the Court would infer a legislative intention to give the words 'any other relief' the widest possible ambit. It was argued that the 'relief' referred to should not be confined to relief in the courts. This could be inferred because s 340(5) appeared in the section which clearly excluded relief in the Industrial Relations Commission, which is not a court: see Industrial Arbitration Act 1940, s 14 and Industrial Relations Act 1991, s 315. For a number of reasons, I would not accede to these arguments: 1. It has been repeatedly said that the GREAT Act affords beneficial entitlements of employment. The Act should not be narrowly construed. Nor should its beneficial provisions be diminished or excluded except by clear enactment indicating a plain legislative purpose to do so: see Cole v Director- General of the Department of Youth and Community Services (1986) 7 NSWLR 541 at 543; Director-General of the Department of Corrective Services v Mitchelson (at 654, 656f); Wijesuriya v Director-General of the Department of Conservation and Land Management (Court of Appeal, 27 June 1994, unreported); 2. One of the apparent objectives of the Local Government Act, stated in s 7(a) is to: '… provide the legal framework for an effective, efficient, environmentally responsible and open system of local government in New South Wales.' See also s 8(1). Except by express provision, clear in its purpose, it should not be assumed that the privative terms of s 340(5) were intended to expel appeals, if otherwise provided for, to the Tribunal. Such appeals provide a means for ensuring external, open and public scrutiny of decisions of local government authorities. They therefore contribute to the more 'open system of government' envisaged by the Local Government Act as one of its purposes; 3. The Local Government Act was, as I have stated, drafted in a somewhat unorthodox way. It was designed to be understood more readily by people unversed in the sophisticated techniques of statutory construction. In such circumstances, it is open to argument that, had parliament intended to exclude appeals to the Tribunal, it would have expressly so provided, as it did in the provisions excluding access to the bodies established to provide industrial relations relief. I accept that it has not, until now, been considered that the GREAT Act extended to local government employees. To that extent, arguments of their 'exclusion' and of 'legislative intention' cannot be taken too far. The members of the legislature probably, subjectively at least, shared the general assumption held by others (including local government authorities themselves) that such employees were outside the purview of the GREAT Tribunal. Nevertheless, in approaching the new Act and trying to ascertain the purpose and scope of the privative provision in s 340(5), it must be acknowledged that there are few indications in the subsection that it was intended to extend to such a unique body as the GREAT Tribunal; 4. A general principle adopted by courts in approaching the construction of privative provisions has been that the exclusion of beneficial relief, otherwise provided for by law, must be clearly stated. It is true that this principle has been applied most clearly in relation to the attempted exclusion of relief in the superior courts of record. An approach involving strict construction of privative provisions of this kind can be justified as defensive of the rule of law which the superior courts of record uphold: see Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 55f; Public Service Association (SA) v Federated Clerks' Union, South Australian Branch (1991) 173 CLR 132 at 160; 5. The courts assume that parliament, unless it makes its purpose clear, did not intend to deprive citizens of access to the courts – particularly to grant relief against excess of jurisdiction or to require the lawful exercise of jurisdiction. Whilst this attitude to privative clauses does not have the same force to support an argument that relief, otherwise permitted by law, in a subordinate tribunal, should not be excluded without clear language, it is still a consideration which may be taken into account in attempting to give meaning to language such as that found in s 340(5) of the Local Government Act; and 6. It would be erroneous to give the words 'or for any other relief' a completely open-ended meaning. The 'other relief' is relief of the kind elsewhere provided for in s 340(5) of the Local Government Act. That takes the mind to a search for the common factor which exists between the relief specified. The words 'any other relief' must then be given a meaning consonant with at least the general character of the relief specified. What is the general character of relief granted in 'proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction'? The answer is that such relief is given only in judicial proceedings and then (with the rarest of statutory exceptions) before superior courts of record. An appeal right to the GREAT Tribunal is not 'any other relief' of that character. It is a specific statutory right, admittedly in 'proceedings' and for 'orders' but not of the historical and declaratory nature of the 'relief' particularised in the opening words of s 340(5) of the Local Government Act. In Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, Wilson J (at 673f) considered the meaning of s 65A(6) of the Public Service Act 1979. That subsection contains a formula similar to that in s 340(5) of the Local Government Act. Wilson J described it (at 674) as 'a most unusual privative clause' which excluded 'judicial review even for jurisdictional error'. His Honour appears to have considered (at 675) that it was confined to 'proceedings by way of judicial review', although his remarks were not expressly addressed to the issue now before us. They are not part of the holding in Public Service Board of New South Wales v Osmond. For the foregoing reasons, and conformably with the general approach of the courts to the construction of privative provisions, I would hold that the words 'any other relief' mean relief of the same character as that in proceedings of the kind expressly listed in the opening words of the subsection. The common feature of such proceedings is that they are judicial in character and, probably, brought in superior courts of record. For such purposes, the Tribunal is not judicial in character. Clearly, it is not a superior court of record. An appeal to the Tribunal is thus not proceedings 'for any other relief' within the privative clause." 1. Meagher JA in Reid did not separately consider the construction of section 340 (5) of the Local Government Act. His Honour did state, however, that he agreed both with Kirby P's reasons and the orders he proposed (at p 521). 2. In a passage quoted by the Commissioner in the Decision, and adopted by him, [9] Powell JA in Reid stated as follows: "As that conclusion is sufficient for the disposition of this appeal, I would wish to reserve, for another day, the question of the construction proper to be given to a privative clause, such as s 340(5) of the Local Government Act 1993 when appearing in a context such as is provided by Pt 2 of Chapter 11 of the Local Government Act. I must, however, say that I consider decidedly odd the suggestion that although proposed appointments to senior staff positions are to be advertised, State-wide, so that persons appointed to such positions may well not come from within a council's service; although those appointed to such positions are to hold those positions pursuant to fixed term contracts; although such questions as the appointment to, removal from office, the termination of employment, and the terms and conditions of employment, of a member of the senior staff are not to constitute "an industrial matter" for the purposes of the Industrial Relations Act 1991, and although a council's decision to appoint a person to a senior staff position is not to be subject to judicial review, nonetheless, if an employee of a council were to be regarded as being "in the service of the Crown", a decision to appoint a person to a senior staff position would be subject to challenge, and liable to be over-ruled, upon a form of administrative review." 1. The respondent correctly submitted that the comments of Kirby P in Reid are in the nature of obiter. (The same must be said for those of Powell JA.) However, this does not of itself undermine the persuasiveness of the reasoning adopted. 2. The observations of Kirby P as to the interaction between the Local Government Act and the GREAT Act in the paragraphs numbered 1, 2 and 3 in the extract reproduced above are in many respects apposite to the interaction between the GSE Act and the IR Act. In this regard we note in particular the objects of the GSE Act reproduced at [55] above. We otherwise find his Honour's reasoning to be cogent and persuasive. 3. If this reasoning is applied, s 58(7) cannot be applied in the purely literal way for which the respondent contends and which was adopted by the Commissioner below. 4. In the context of the scheme created by the GSE Act, which we have described above, and its interaction with the IR Act, we see no "oddness" would arise if the words "or for any other relief" were construed consistent with the reasoning of Kirby P. Any alleged incongruity seems to stem from an underlying premise that the GSE Act "covers the field" of the dismissal of Senior Executives. Once this premise is removed, and in our view it must be for the reasons set out at [32]-[36] above, s 58(7) can operate harmoniously within the GSE Act if the words "or for any other relief" are given a meaning consonant with the general character of the relief otherwise specified in the section, being relief available in judicial proceedings. 5. We acknowledge, as did the Commissioner, that the language of s 58(7) is in different terms to its predecessor privative provisions (s 42J(7) of the Public Sector Management Act 1988 (NSW) and s 72(8) of the PSEM Act). The earlier provisions excluded claims arising from "the appointment or failure to appoint a person to an executive position, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment". The scope of the excluded matters was extended by s 58(7) to any "matter that is declared by this section not to be an industrial matter for the purposes of the Industrial Relations Act 1996", as that phrase is to be understood in light of ss 58(2) and 58(3). 6. We are not satisfied that when read with the GSE Act as a whole, consistent with our observations above, the expansion of matters to which the privative provision may extend necessarily leads to the conclusion that the words "or any other relief" should be read other than ejusdem generis with the other terms with which it appears. 7. We further observe that if s 58(7) is afforded the literal construction adopted by the Commissioner, its effects when coupled with s 58(3) would be that there could be no proceedings of any kind commenced by a Senior Executive in any court or tribunal in respect of the employment of that Senior Executive, or in respect of any matter, question or dispute relating to any such employment. It is not a construction confined to the employee's rights on termination. It would extend to claims under the Anti-Discrimination Act and the Work Health and Safety Act, about which we have previously commented at [62] and [63] above. 8. A literal construction would, significantly, operate to preclude claims by the Senior Executive to enforce the terms and conditions of his or her employment, including under the GSE Act. Such a construction would not only allow the employer to dismiss a Senior Executive with impunity but, with equal impunity, discriminate against them, victimise them or otherwise treat them unlawfully or inappropriately during the course of their employment. Such cannot have been Parliament's intention. 9. It is clear to us that some bounds must be placed on the scope of the privative provision. The section operates fairly and harmoniously with the balance of the GSE Act if it is construed in keeping with the approach taken by Kirby P in Reid. Conclusions 1. We do not consider that s 41 of the GSE Act confers an entirely unfettered discretion on the employer to terminate the employment of a Senior Executive. While the section does not allow for a review of the merits of any decision to dismiss, we do not construe it as allowing for the termination of employment of Senior Executives on grounds that would make the termination unlawful. The better construction is that, assuming that the dismissal is lawful, it cannot otherwise be the subject of review. 2. We do not consider that there is such contrariety in the two legislative schemes that, by necessary implication, s 41 of the GSE Act excludes the operation of s 213 of the IR Act in respect of the dismissal of Senior Executives. We respectfully disagree with the Commissioner's finding that s 41 of the GSE Act impliedly repealed Ch 5 Pt 1 of the IR Act to the extent that those provisions might otherwise apply to the termination of employment of a Senior Executive. 3. We also respectfully disagree with the Commissioner in relation to his finding that s 58(7) of the GSE Act renders the relief being sought by the appellant in relation to the termination of his employment beyond the power of this Commission to grant. Orders 1. We make the following orders: 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. ********** Endnotes 1. Outline of the Respondent's Submissions on Leave to Appeal at [2] 2. Transcript p 46 (25) 3. See 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) 4. Decision at [43] 5. Decision at [75] 6. Cf Decision at [74] 7. Transcript p 8 (25-26) 8. Transcript p 11 (7-9) 9. Decision at [69] 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: 19 August 2019