[34] The Respondent included the table which sets out the Determinations regarding employment and the range benefits for staff under Part III of the MOPS Act. The table included the range of Determinations issued under s.12 of the MOPS Act. It included the Determinations for a range of politicians which empowered them to employ staff under Part III of the Act.

[35] The Respondent in its submissions relied on a series of authorities in support of the jurisdictional objection. These are referred to later.

Summary of the Applicant's Evidence and Submissions

[36] The Applicant conceded that his employment was automatically terminated, on the Revocation of the Determination he was employed under, however he submitted that the current circumstances can be distinguished from those as dealt in with the case authorities relied on by the Respondent. He stated that in his case, the Employer "is the cause of the conditions necessary to trigger a statutory termination." He submitted that the new Commonwealth Determination "was the principal contributing factor that led to the termination of [his] employment." He submitted to this point, that Senator Roberts still wished to employ him, and filed a reference from Senator Roberts to this effect.

[37] The Applicant in his written submissions stated that his employment was terminated at the initiative of the Employer on the basis that:

"a. The principle of termination by statute not being considered a dismissal, applies to cases where the necessary conditions triggering the operation of statute were caused by a party external to the employment relationship, not where those conditions were directly caused by the employer,

b. The respondent, purely of its own decision and initiative, created the conditions or 'factum' that it knew would trigger the statutory termination,

c. The respondents conduct taken as a whole, was the principal contributing factor which lead to the termination of the employment relationship."

[38] The Applicant stated that he had worked for Senator Roberts for over 6 years pursuant to the MOPS Act where the Commonwealth Department of Finance is included on his payslips with Senator Roberts as his employing parliamentarian.

[39] The Applicant in his witness statement stated:

"On 16 July 2019 I was employed on an ongoing basis as an Electorate Officer of Senator Malcom Roberts of Pauline Hanson's One Nation Party. This employment was not pursuant to a section 4 determination of the Members of Parliament (Staff) Act 1984 (Cth) and the 2019 letter from the Prime Minister in relation to personal staff, a different classification to electorate officers.

On 19 July 2022 the Prime Minister issued a letter to Senator Roberts authorising him to employ an additional personal staffer at the Assistant Adviser level.

On 5 September 2022 I was promoted to the role of Adviser 2 (non-Ministerial) (formerly known as Assistant Adviser (non-Government)), on an ongoing basis as an employee for Senator Roberts.

On 23 June 2025, the Prime Minister issued a letter to Senator Pauline Hanson advising that Pauline Hanson's One Nation was allocated 4 personal staff.

On 25 June 2025 I sought clarification regarding the effect of the 23 June letter including asking whether it meant I would be terminated or not. The Parliamentary Workplace Support Service responded on 26 June that "The PWSS is currently preparing communications for personal staff affected by the staffing allocations which will be coming out in the near future".

At 3:21pm 7 July 2025 I contacted the Parliamentary Workplace Support Service by phone (redacted) and was advised there was no further information on my previous inquiry.

On 21 July 2025 I was notified of the termination. This was 4 weeks and 1 day before the date my termination would take effect, 1 day more than the minimum notice period required under my Enterprise Agreement. ..."

• [40] At the Hearing, the Applicant emphasised paragraphs [218]-[226] of the case of Quirk v Construction, Forestry, Maritime, Mining and Energy Union[1] in particular paragraph [223] of that case which stated that:

"223 The question at hand is the meaning of the word 'terminated' in s 386(1). What that provision requires is two things: (a) an initiative of the employer; that (b) results in the termination of the employment relationship. The provision does not require the employer to pull the trigger but only to load the gun. In my view, the provision is expressed in such a way that it is agnostic as to the precise means by which the employment relationship comes to an end. Its focus is upon, however it might have ended, at whose initiative this occurred."

[41] The Applicant in relation to the above paragraph, submitted that in relying on this 'gun analogy' as referred to in Quirk, that it is the Commonwealth of Australia under direction from the Prime Minister's office that metaphorically 'loaded the gun', and then it is the issuing of the Determination under the MOPS Act that metaphorically pulled the 'trigger'. He submitted that his dismissal would not have occurred but for the actions of the Commonwealth in making the Determination, in the knowledge that the termination of his employment would accordingly automatically occur. The Applicant submitted that it was the Commonwealth's decision to take the particularised actions in reducing the staff of the One Nation political party, that 'triggered' the automatic termination of his employment.

[42] The Applicant submitted that the automatic termination of his employment by the means of the Revocation of the Determination was initiated by the Employer (in the action of 'loading the gun'). He submitted this cannot be separated from the employment relationship and the termination:

"I submit that the Commonwealth's decision to make a new determination in relation to personal staffing arrangements was the principal contributing factor that led to the termination of my employment. That termination was in the end effected by statute, but as the Commonwealth was my employer, that conduct in creating the necessary conditions to trigger that statute cannot be separated out from the employment relationship and the following termination."

[43] Under s.386(1) of the Act, there are two ways that a dismissal can occur. The limb relevant to the current facts is whether there was a dismissal pursuant to s.386(1)(a), that is whether the Mr Nagle's employment was terminated on the Employer's (the Commonwealth's) initiative.

• [44] The Respondent emphasised the distinction between the termination of an employee's employment undertaken at the Employer's initiative. That is a dismissal, as distinct from a termination of employment which occurred by the operation of law; that not being a dismissal.[2] The following case of Mylan v Health Services Union NSW[3] referred to by the Respondent, reflected this distinction:

"In Mylan, the Court was dealing with the situation where a union officer's employment was terminated following an order of the Federal Court which vacated all elected offices of the Union, including that of Mr Mylan. The Court in Mylan stated

... the position in my view is reasonably straightforward. I have no doubt that any employment which Mr Mylan may have held with the union was co-extensive with holding office in the union and depended upon that circumstance. When he ceased to hold office in the union by operation of the union rules, the position was no different than if he had been displaced at an election. The circumstances upon which any employment depended no longer existed. Any employment was at an end without any necessity for action by the union. In any event, Mr Mylan's office (and any employment) was lost by operation of law as a result of the Orders."[4]

[45] However, the current circumstances of the Applicant are distinct from those considered in Mylan, as the action of issuing the Determination by the Commonwealth caused the termination of the Applicant's employment.

• [46] In addition, the Respondent referred to a recent case of the New South Wales Court of Appeal in the State of New South Wales v Ashton[5] which examined the automatic termination provisions of the Members of Parliament Staff Act 2013 (NSW) (MOPS NSW Act). In that case, the court considered the effect of a legislative provision, as a result of which employment is terminated, and the employee's services are dispensed with by the Member of Parliament.[6]

[47] In that case the action of a Member of Parliament in terminating the services of an employee, was found to be an automatic termination by operation of the MOPS NSW Act. In accordance with this ruling, the New South Wales Industrial Relations Commission did not have jurisdiction to determine an unfair dismissal claim, due to the automatic nature of the termination of employment.

[48] However, the current Applicant distinguished s.20 of the MOPS NSW Act from the relevant section of the Commonwealth MOPS Act, in emphasising that the relevant issue is how the termination was implemented. Section 20 of the MOPS NSW Act is as follows:

(1) The employment of a person under this Part by a member of Parliament terminates -

(a) in the case of a person employed by a member of Parliament under section 14 - if the member ceases to be a member of Parliament, or

(b) in the case of a person employed by a member of the Legislative Council under section 14 - if the member becomes a political office holder, or

(c) in the case of a person employed by a member of Parliament in his or her capacity as a special office holder under section 15 - if the member of Parliament ceases to be a special office holder or a member of Parliament, or

(d) on the day appointed for the taking of the poll for the next general election, or

(e) if the person resigns by letter addressed to the member of Parliament, or

(f) if the person's services are dispensed with by the member of Parliament.

(1A) The employment of a person under this Part by a member of Parliament may also be terminated by the relevant Presiding Officer under section 20A.

(2) The relevant Presiding Officer may direct in a particular case that the employment of a person that would otherwise terminate because of the operation of subsection (1) (a) - (d) does not terminate. In that case, the person's employment continues for such period as the relevant Presiding Officer directs and the person is taken to be employed by the relevant Presiding Officer during that period.

(3) A member of Parliament may at any time dispense with the services of a person employed by the member of Parliament under this Part.

(4) This section has effect despite anything in the written agreement of employment of the person concerned."

• [49] Relevant to Mr Nagle's case was whether the termination was as a result of an act of the Employer or caused by the application of legislation in line with the decision of Ashton. The Respondent submitted that a statutory termination can occur even in circumstances "where that was triggered by a precursor decision of the employer".[7]

[50] The Respondent submitted that in examining the current termination of employment, the significant issue is whether the dismissal required any action by the Employer to cause the termination. The Respondent affirmed that s.14 of the MOPS Act is a self-executing provision as per the Table of prescriptive Events (already included). The Respondent argued that the circumstances of the Applicant as a 'personal' employee who was no longer covered by a s.4 Determination reflected the circumstance in Item 5 in the Table in s.14 of the MOPS Act. They stated it was an automatic termination brought about by the Revocation of the s.4 Determination. However the Applicant argued that what must be considered are the alleged steps taken at the initiative of the Commonwealth in the knowledge that making this Revocation of the Determination, the outcome would mean the particular reduction in the staffing levels.

[51] In examining the actions of whether the Commonwealth 'loaded the gun' leading to the specific termination at the initiative of the Employer outcome, the following case authorities examining similar circumstances are referred to:

• [52] Deputy President Easton in Walker v Australian Capital Territory as represented by Chief Minister Treasury and Economic Development Directorate[8] referred to the case authorities which are "clear in distinguishing between the cessation of employment by operation of law and the cessation of employment as a result of conduct by the employer":

"[50] The authorities relied upon by the Directorate are clear in distinguishing between the cessation of employment by operation of law and the cessation of employment as a result of conduct by the employer. In Mylan v Health Services Union NSW [2013] FCA 190 (Mylan) the applicant's appointment to an office of a registered organisation was brought to an end by an order of the Federal Court. Justice Buchanan observed at [26] that "... any employment was at an end without any necessity for action by the [employer] union. In any Event, Mr Mylan's office (and any employment) was lost by operation of law as a result of the Orders."

[51] In Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1587, (2021) 312 IR 359 Perram J endorsed the reasoning in Mylan's case but came to a different conclusion on the facts. The applicants in Quirk were removed from office purportedly by operation of the union's rules after they faced internal disciplinary charges. The employment of the applicants was said to have been terminated by operation of law. Justice Perram's reasoning included the following:

"[225] I therefore do not accept the Respondents' submission that there can be no termination of an employment relationship purely because the contract of employment came to an end by operation of law. Nor do I accept that Mylan stands in the way of that conclusion ... I would accept that Mylan is authority for the proposition that where a contract of employment ends by operation of law without any act by the employer then there will be no termination within the meaning of s 386. But I do not accept that his Honour intended to say, or did say, anything about the situation where a contract of employment ends by operation of law as a result of the actions of the employer. Facts of that kind were not before the Court in Mylan.

[226] I therefore accept that Mr Quirk and Mr Miller's employment by the Federal Union was terminated on the initiative of the Federal Union within the meaning of s 386. The Divisional Executive invalidly removed them from office which then led Ms Mallia to repudiate their contracts of employment on 27 April 2015. They were therefore dismissed by the Federal Union from its employment within the meaning of Item 1, cl (a) of the Table of adverse actions in s 342."

[52] In Australian Liquor Hospitality and Miscellaneous Workers' Union (1994) 55 IR 18 the applicant reached the maximum retirement age under the Public Service Act. Justice Moore found that "the termination of the employment of Mr Simmons was not termination at the initiative of the employer but rather, as is submitted by the respondent, termination resulting from the operation of the Act of parliament." Mr Simmons relied on the employer's discretion to extend the employment. Justice Moore found that the statute applied without qualification and that the existence of the discretion, and the employer's decision not to exercise that discretion, did not alter the ordinary operation of statutory provision."

[53] The MOPS Act provides the basis on which Members of Parliament (in the current case Senator Roberts) can conduct employment on behalf of the Commonwealth. That statute also sets out how the employment can be terminated. The statute includes certain circumstances in which the employment can be concluded by automatic termination.

[54] Section 14 of the MOPS Act provides that an Event that terminates employment is when "[t]he employing individual ceases to be covered by a determination made under section 4". The Respondent submitted that when the circumstances in s.14 of the MOPS Act arise, the employment of the employee automatically terminates by operation of the section.

[55] The Respondent also referred to s.16 of the MOPS Act which in contrast to s.14, sets out the required steps to be taken by the Employer in the situation of a termination by notice (for example, where an employee's employment is terminated because of performance or conduct issues). The Applicant's contention was that in terms of s.14, the Employer can also take steps in initiating the Determination, the detail of which leads to the automatic termination of the particular employment.

[56] The Respondent in their reply submissions stated:

"It appears that the gist of Mr Nagle's submissions is that even though the termination of his employment happened by operation of law, it is still a termination of his employment at the initiative of the Commonwealth as it was the Commonwealth which created the conditions which triggered the operation of the statute in question. Mr Nagle says that accordingly, he was 'dismissed' within the meaning of s.386 of the Fair Work Act 2009 (Cth) (FW Act)."

[57] The Respondent also stated that there may be circumstances in which the termination of a contract employment by the operation of law can be a dismissal. However, they stated that in the current circumstances, the Applicant's ongoing employment was terminated automatically pursuant to s.14 of the MOPS Act. The Applicant's post-termination employment then initially occurred by way of a non-ongoing contract (with Senator Roberts) and then on a different ongoing contract (with Senator Hanson). This further employment, is separate to the termination of the employment contract, currently under consideration. The nature of this further employment is therefore not required to be considered in relation to this jurisdictional decision.

[58] The Applicant submitted that there is a clear, unambiguous and direct line of causation between the termination of his employment and the Commonwealth's conduct in issuing the specific terms of the Determination. The Applicant submitted that "but for the Commonwealth's revocation leading to the statutory termination, [that he] would have continued in employment."

[59] The Respondent stated during the Hearing that the Determination was not personal to Mr Nagle's circumstances. They stated that it was purely a mechanism of the Commonwealth, by which the operation of such permitted the Commonwealth to reset staffing levels after an election, with the automatic result of terminating the Applicant's employment. The Respondent's representative in examining the Determination and the associated termination of employment, raised that it is important to distinguish between the different arms of the Commonwealth. For example, when the Commonwealth is functioning in its legislative arm or acting in its employer capacity and when separately acting to discharge its Governmental duty.

• [60] Neither party referenced the rationale for setting the employee/staffing levels, arising from the Determinations. In terms of the basis for issuing the Determinations, in the Second Reading of the MOPS Act, it was stated that "The numbers and levels of these staff will continue to be decided by the Government on the recommendation of the Remuneration Tribunal."[9] This indicates that the making or revoking of a s.4 Determination requires steps to be taken by the Commonwealth in relation to the consideration of these staffing levels for parliamentarians. No specific information about the deliberations or guidance for those steps and the resultant staffing numbers were provided.

[61] The Respondent submitted that their analysis of the Applicant's circumstances demonstrated that there was no action of the Commonwealth in the capacity as an Employer that was evident, other than the operation of the law in question. That is s.14(1) of the MOPS Act states:

"A person's employment under this Act terminates if an Event specified in the Table occurs and the person is the kind of employee specified for the Event."

[62] Section 14 of the MOPS Act provides for 5 different Events in which termination is automatically triggered. Item 5 is the relevant circumstance to the termination of Mr Nagle's employment. Mr Nagle in relation to the first two Items (in the Table) stated that they "are clearly precursor conditions or step factum outside of the Commonwealth's control, so Parliament would not want to have a dismissal generated from that." The Respondent during the Hearing submitted that there is no basis on the words of the section (s.14) that would give different characteristics to Items 3 to 5 as is done in Items 1 to 2. Items 1 and 2 being when the employing individual dies or the employing individual ceases to be a parliamentarian. Items 1 and 2 are outside of the control of the Government, but there is nothing from the wording of Item 5 which prevents it from being a termination of employment at the Employer's; the Commonwealth's initiative.

[63] Mr Nagle's employment as a personal employee was terminated when Senator Roberts direct allocation of personal employees ceased to be allotted to him (due to the Revocation of the s.4 Determination made post the 2025 election). The Applicant argued that it was known by the Commonwealth that this would have the inevitable and direct result of reducing staffing; and terminating his employment.

[64] The particular formulation for the reduction of staffing by the 2025 Determination was not explained. It is recognised that the Respondent's case did not address these matters as they advocated this termination occurred automatically in accordance with s.14(1) of the MOPS Act. However on this point, the Applicant argued that no reduction in staff should have occurred given One Nation's improved election result; in terms of Senator Roberts and the One Nation party as a whole.

[65] The Applicant's argument was double pronged in that on the basis of the legislation he acknowledged his circumstances reflected a s.14, Item 5, automatic termination. However, he stated that there was a requirement to look to the circumstances of the termination. That is the circumstances behind the Commonwealth issuing the self-executing Determination. These were the primary matters that he addressed in the jurisdictional objection. His written material did not fully expand on his arguments or evidence as to how this may be classed as an unfair dismissal. He stated that he had no obligation to present his full merits case in these jurisdictional proceedings and that he had evidence that he would put before the Commission in the unfair dismissal proceedings. He stated that the evidence would demonstrate that the effect of the Determination on One Nation's staffing levels did not correlate with the election results and that One Nation had immediately disagreed with the allocation and its reduction in staffing numbers. It was stated that One Nation had instantly objected and referenced their intentions to commence other actions to object to the basis of the Determination.[10] Again no reference was made to the actual basis or any formulaic guidance (for staff numbers) to be complied with by the Commonwealth, in setting Determinations.

• [66] The conduct of the Parties has been examined in line with the case law relevant to whether a dismissal occurred. In assessing s.386(1), the full context and the statements provided by both Parties have been considered also against the approach in O'Meara v Stanley Works Pty Ltd[11]:

"[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:

'[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.' [12] (emphasis added).

[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether 'the act of the employer [resulted] directly or consequentially in the termination of the employment.' Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer's conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign." [13] (footnotes omitted) (emphasis added).

• [67] The extract from the case authority Quirk v Construction, Forestry, Maritime, Mining and Energy Union[14] (repeated for convenience) supports that an 'Event' of a Determination, triggering the automatic termination of employment can result in a dismissal undertaken in accordance with s.386 of the FW Act:

"I therefore do not accept the Respondents' submission that there can be no termination of an employment relationship purely because the contract of employment came to an end by operation of law. Nor do I accept that Mylan stands in the way of that conclusion. As I have already indicated, the critical part of his Honour's reasoning is the statement that 'any employment was at an end without any necessity for action by the union'. I do not read his Honour's statement 'In any Event, Mr Mylan's office (and any employment) was lost by operation of law as a result of the Orders' as a holding that in every case where a contract of employment ends by operation of law there can be no termination within the meaning of s 386. I would accept that Mylan is authority for the proposition that where a contract of employment ends by operation of law without any act by the employer then there will be no termination within the meaning of s 386. But I do not accept that his Honour intended to say, or did say, anything about the situation where a contract of employment ends by operation of law as a result of the actions of the employer. Facts of that kind were not before the Court in Mylan."

[68] The current 'Event' that brought about the termination of the Applicant's employment was the Determination at the discretion of the Prime Minister acting in the executive function of the Commonwealth that revoked the s.4 Determination. There was an established link at a jurisdictional level between the Revocation of the Determination and the termination of the Applicant's employment. To use the gun analogy in Quirk, the Determination revoking the personal employee's employment with Senator Roberts was the 'loading of the gun', and s.14 of the MOPS Act was the 'trigger'. Although the 'trigger' was automatic in nature, the 'loading of the gun' was as a result of actions taken by the Prime Minister's office. As per Quirk, the focus in relation to s.386(1) is about if the Employer was the entity that 'loaded the gun'. In this case, the Employer 'loaded the gun' by taking specific steps to revoke the s.4 Determination that Mr Nagle was employed pursuant to, and it follows then that the Employer took the initiative to terminate the employment of Mr Nagle.

[69] With regard to the merits of a s.394 application, the Commission must act with caution with regard to the determination of a jurisdictional objection, the result of which may prevent an Applicant from being able to conduct their s.394 case.

[70] This finding that there was a termination at the initiative of the Employer in accordance with s.386(1)(a), should not be taken as a predetermination of any further s.394 proceeding, this would need to be considered on the basis of the evidence put in the hearing of that matter. None of that material has been presented with any significant detail at this stage. The merits arguments of a s.394 case are not required to be fully made before the Commission at this stage. However, in terms of the efficacy of conducting the s.394 for arbitration on the available remedies (of reinstatement, redeployment or compensation) it is reasonable to consider in terms of the current status of the information before the Commission: If the primary remedy of reinstatement is being considered, the Applicant's position (due to the Revocation of the Determination) on termination does not exist. If redeployment was sought, it is a fact that the Applicant is employed by Senator Hanson on an ongoing contract. Alternatively, in terms of compensation, it is a factor referred to by the Parties during the jurisdictional objection, that the Applicant was only without employment and remuneration for one day having been offered a three month non-ongoing contract and the consecutive current ongoing contract.

[71] For all of the reasons as set out, the jurisdictional objection is dismissed. The Applicant was dismissed; his employment was terminated at the initiative of the employer, in accordance with section 386(1)(a) of the FW Act.

G Fredericks of Counsel, instructed by L Rumble of Gadens Lawyers, for the Respondent

[1] [2021] FCA 1587.

[2] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200.

[3] [2013] FCA 190.

[4] Mylan v Health Services Union NSW [2013] FCA 190 at [26].

[5] [2025] NSWCA 199.

[6] Section 20(1)(f) of the MOPS NSW Act.

[7] The Respondent cited the High Court authorities cited by Kirk JA at [76] in State of New South Wales v Ashton [2025] NSWCA 199.

[8] [2024] FWC 2010.

[9] Commonwealth, Parliamentary Debates, Senate, 5 June 1984, 2512 (Gareth Evans, Attorney-General).

[10] Section 590 of the FW Act allows a Member of the Commission to inform themselves in any way they consider appropriate in relation to the circumstances of a matter before them.

[11] [2006] AIRC 496 (PR973462).

[14] [2021] FCA 1587.

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