Cook v Secretary, Department of Planning, Housing and Infrastructure [2026] NSWIRComm 1015

"Does the Industrial Relations Commission have jurisdiction with respect to the proceedings, or power to make an order in the proceedings pursuant to s 213 of the Industrial Relations Act 1996 (NSW), having regards to ss 20 and 26 of the Members of Parliament Staff Act 2013 (NSW)?"

1. The matter was relisted on 8 April 2025 for the purpose of the Commission hearing from the parties, whether it was appropriate to stay the decision of the Motion pending the outcome of the matter before the Full Bench. The parties agreed that it was appropriate, and the matter was then listed for a number of directions listings.
2. The Full Bench handed down its decision in Ashton v State of New South Wales (2025) 339 IR 389; [2025] NSWIRComm 1028 ("Ashton No.1") on 29 May 2025 and answered in the affirmative.
3. On 12 June 2025 the State filed a summons seeking judicial review of the Full Bench's decision, arguing that the Commission had erred in so finding and the Court of Appeal handed down its decision on 1 September 2025 in State of New South Wales v Ashton [2025] NSWCA 199 ("Ashton No.2").
4. Following the decision of the Court of Appeal, directions were made for the filing and serving of further written submissions with respect to the effect of the Ashton No.2 on the current proceedings.
5. The final written submissions were filed on 7 November 2025 in accordance with the directions.

1. The respondent, in support of the Motion, alleged that the Commission lacks the jurisdiction to deal with the Application.
2. The respondent's contention is based upon on a combination of s 58(6) and (7) of the Government Sector Employment Act 2013 (NSW) (the "GSE Act"), which provides that:

(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.

1. The respondent claims that ss 210 and 213 of the Act fall within the definition of an "industrial matter", and as such s 58(6) of the GSE Act operates such that the failure to engage the applicant means that the Commission does not have jurisdiction to deal with this application.
2. In support of the above contention, the respondent made the following written submission concerning the jurisdiction of the Commission:

"Generally speaking, an industrial matter must exist to enliven the jurisdiction of the Industrial Commission to perform its functions: IR Act, s 146(1). The Industrial Commission's functions include setting remuneration and other conditions of employment (s 146(1)(a)), resolving industrial disputes (s 146(1)(b)) and "hearing and determining other industrial matters" (s 146(1)(c)) (emphasis added). The Industrial Commission also has a general jurisdiction which allows it, on its own initiative, to inquire into any industrial matter: IR Act, s 146(1)(d). The Industrial Commission also has the power to resolve "industrial disputes" by conciliation and arbitration such as making an award or dispute orders: IR Act, Ch 3. The Industrial Commission's dispute settlement powers are enlivened only where there is a "dispute (including a question or difficulty) about an industrial matter": see definition of "industrial dispute" in the Dictionary to the IR Act. In making an award, the Industrial Commission is limited to prescribing "conditions of employment for employees" concerning industrial matters: IR Act, s 10 and the Dictionary to the IR Act. The Industrial Commission also has a residual jurisdiction to exercise functions conferred by the IR Act or any other Act or law, such as contract carriers under Chapter 6 of the IR Act: IR Act, s 146(1)(e)."

1. In response to the applicant's contention that ss 210 and 213 of the Act constitute an exercise of the Commission's power under s 146(1)(e), the respondent refuted this by putting that this provision does not cover matters that pertain to an employment relationship or prospective employment relationship, but where the Commission otherwise has a function conferred upon it under the Act.
2. The respondent also relies on the decision of Commissioner McKenna in Crewdson v Department of Community Services and Department of Ageing, Disability and Homecare [2003] NSWIRComm 1055 ("Crewdson") in support of its construction of the s 58(6) and its interaction with the victimisation provisions of the Act.
3. In Crewdson, the Commissioner held that s 58(6) did operate in such a manner as to preclude a victimisation claim being made in relation to a failure to employ a person into a non-executive position within the NSW public service.
4. The respondent also submitted that as s 58(8) of the GSE has expressly permitted some forms victimisation that this evinces an intention of Parliament has sought to preserve the operation of s 213 of the Act, in limited terms which do not apply to the applicant's case.
5. As to Ashton No.2, the respondent's contention is contained in the following passage from its written submission filed on 17 October 2025:

"9. First, the Respondent accepts that in light of the construction of s 26(5) of the MOPS Act, its argument that the equivalent provision ins 58(7) of the GSE Act does not exclude the Commission's jurisdiction to grant relief must fail. Rather Kirk JA considered the effect of s 58(7) is to ensure the supervisory role of the Supreme Court is not removed in relation to industrial matters.1 The Respondent therefore no longer presses this ground, but maintains its position that 58(6) of the GSE Act on its own does exclude the Commission's jurisdiction by deeming the failure to engage a person as an industrial matter.

10. Second, the Respondent contends that the NSW Court of Appeal's construction of s 26(3) of the MOPS Act has no bearing on the construction of s 58(6) of the GSE Act. S 58(6) GSE Act still operates independently of s 58(7) to deem the failure to engage a person as not an industrial matter for the purposes of the IR Act and as a consequence, excludes it from the Commission's jurisdiction."

1. It was conceded by the applicant, that in certain circumstances the failure to employ is captured within the definition of an "industrial matter" in s 6 of the Act. However, the applicant submitted that the jurisdiction of the Commission under s 210 of the Act, which provides protection from victimisation and applies to circumstances, including the failure to employ, derives is jurisdiction from s 146(1)(e) of the Act.
2. In reliance of the Full Bench decision in Davie v Industrial Relations Secretary (Department of Justice, Corrective Services NSW) (No. 2) (2019) 290 IR 180; [2019] NSWIRComm 1056 ("Davie") at [35], the applicant submitted that section 210 extends beyond relationships between employers and employees to include prospective employers and industrial organisations.
3. In further reliance of Davie, the applicant argued that the Commission should not interpret ss 58(6) of the GSE Act as implicitly removing its jurisdiction over victimisation claims by prospective employees.
4. As to Ashton No.2, the applicant submitted that it has limited application, but there are several aspects that are of relevance. In particular, the Court of Appeal did not disturb the reasoning in Davie nor did they in any way criticise or reverse Full Bench's endorsement of Davie in Ashton No.1.

1. In Ashton No.1, the Full Bench in considering the question put before it, determined the manner in which ss 41 and (relevantly) 58 of the GSE Act impacted on the capacity of senior executives to bring a claim under Ch 5 of the IR Act. They reached their conclusion at [71]-[74], finding that:

"[71] For our part, it is difficult to see how, consistent with the respondent's case, a staffer could challenge a termination under the Anti-Discrimination Act due to their race,[51] sex,[52] marital or domestic status,[53] disability,[54] homosexuality,[55] age,[56] transgender status,[57] and carer's responsibilities,[58] or, for that matter, under the Work Health and Safety Act 2011 (NSW) because they had made a WHS complaint.[59] Certainly we do not accept that, absent clear words, the expression "dispense with the services" would convey an intention to override such fundamental rights. This serves to confirm our conclusion that the words "dispense with" were similarly not intended to abrogate the right to not be dismissed for reasons proscribed by ss 210 and 213 as unlawful.

[72] Our conclusions in this regard are consistent with the reasoning of the Full Bench of this Commission in Davie v Industrial Relations Secretary (No 2) ("Davie").[60] The Full Bench considered whether s 41 of the GSE Act by implication ousted the capacity of a senior executive in the Public Service to be able to rely on ss 210 and 213 of the IR Act. Subsections 41(1) and (2) of the GSE Act provide:

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).

[73] The effect of s 41 was considered by the Full Bench in Davie in the context of s 58 of the GSE Act, which provided in respect of such senior executives:

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.

[74] The Full Bench accepted that the scheme of the GSE Act, as evinced by ss 41 and 58, intended to exclude the capacity of senior executives to bring a merits review of any dismissal, including by way of claims for unfair dismissal, unfair contract and public sector disciplinary claims. However, in terms that we consider equally applicable to the question before us, the Full Bench did not accept that ss 41 and 58 intended to exclude ss 210 and 213 of the IR Act, stating:

"[60] 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.

[61] 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.

[62] 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. Similarly, the agency could victimise the Senior Executive, through terminating his or her employment, with impunity, notwithstanding s 50 of that Act." (Endnotes Omitted)."

1. The finding of the Full Bench decision in Ashton No.1 regarding Davie was not disturbed by the Court of Appeal in Ashton No.2. Furthermore, the Court of Appeal at [41] determined that the exclusion by Parliament of certain parts of the IR Act respect of staffers in s 26(3) of the Members of Parliament OPS Act implies that subject to those exclusions, the remainder of the IR Act is intended to apply to staff employed under the MOPS Act.
2. The respondent submitted that Davie applies to executive employees and not non-executive employees (such as the Applicant) and as such nothing in Davie addressed the correct construction and operation of s 58(6) of the GSE Act which applies to non-executive employees.
3. The respondent submission seeks that the Commission determine s 58(6) in isolation from the balance of the Act, which is contrary to the principles of statutory construction.
4. The principles of statutory constructions are well settled and are succinctly summarised in the following passage of the High Court decision in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]:

"The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos [(1955) [1955] HCA 27; 92 CLR 390 at 397], Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed."

1. Similarly, Allsop CJ in Construction, Forestry, Maritime, Mining, and Energy Union v Australian Building and Construction Commissioner (2020) 282 FCR 1; [2020] FCAFC 192 at [4]- [5] provides guidance in terms of the proper approach of statutory construction:

"The principle is clear: Meaning is to be ascribed to the text of the statute, read in its context. The context, general purpose and policy of the provision and its consistency and fairness are surer guides to meaning than the logic of the construction of the provision. The purpose and policy of the provisions are to be deduced and understood from the text and structure of the Act and legitimate and relevant considerations of context, including secondary material. ...

There can be no doubt that the search for principle in the High Court reveals a settled approach of some clarity: R v A2 [2019] HCA 35; (2019) 277 A Crim R 539; 373 ALR 214 at [31]- [37]. The notion that context and legitimate secondary material such as a second reading speech or an Explanatory Memorandum cannot be looked at until some ambiguity is drawn out of the text itself cannot withstand the weight and clarity of High Court authority since 1985 ..."

1. There is nothing on the face of the s 58 of the GSE Act, nor the balance of the Act which leads to an interpretation that Parliament had intended to implicitly remove the right for a prospective employee to bring a claim under s 210 of the IR Act. Furthermore, it would lead to the absurd outcome of the State refusing employment of potential non-executive employees for reasons rendered unlawful by s 210 of the IR Act.
2. Finally, I turn to the decision in Crewsdon relied upon by the respondent. Whilst the principle of comity requires that I give earnest consideration to it and I would only adopt a different course if convinced that it is wrong: see Mitchforce Pty Ltd v Starkey (No.2) [2003] NSWIRComm 458 at [17]- [18] and Health Employees' Conditions of Employment (State) Award 2018 (Infectious Cleaning Allowance) [2021] NSWIRComm 1049 at [30]- [33].
3. In Crewsdon, Commissioner McKenna determined that the Commission did not have jurisdiction to hear a s 213 victimisation application, because of s 27 of the Public Sector Management Act 1988 (NSW) which was in the following terms:

27 Legal proceedings not to be brought in respect of appointments etc

(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.

(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 the Government and Related Employees Appeal Tribunal Act 1980.

1. The Commissioner in reaching her decision, relied upon decisions including that of Schmidt J in Notification under section 130 by the New South Wales Teachers Federation of a dispute with the Department of Education and Training re casual teacher [2003] NSWIRComm 145 and that of the Full Bench in New South Wales TAFE Commission (Teachers and Other Educational Staff) Salaries and Conditions Award 1996 (IRC98/4111 - unreported, 20 May 1999. Wright J, President and Schmidt J; McKenna C dissenting).
2. In both of the above decisions applied by the Commissioner in Crewsdon, it was determined that the Commission did not have the jurisdiction to deal with an industrial dispute concerning the making of an award with respect to the failure to appoint a person to a position as a result of a statutory exclusion in words identical to s 27(3) of the 88 Act.
3. Whilst the Dictionary to the IR Act makes it clear that an industrial dispute is limited to an "industrial matter" and thus limiting the Commissions jurisdiction under s 130 of the IR Act to an industrial matter, no such restriction is placed upon the Commissions jurisdiction in relation to applications under s 213 of the IR Act. Unfortunately, neither party in Crewsdon addressed the Commission on this issue which resulted in an incorrect outcome and accordingly I should not follow it.
4. For the reasons set out above, the Commission does have the jurisdiction to deal with the Application and accordingly I make the following order:

(1) The notice of motion filed by the respondent on 14 November 2024 is dismissed.