Davie v Industrial Relations Secretary

Industrial Relations Commission (NSW)|2018-11-27

Solicitors: Ms A Grayson, Maurice Blackburn Lawyers (Applicant) Ms K Kless, Crown Solicitor's Office (Respondent) File Number(s): 2018/00218489

DECISION

On 16 July 2018, the applicant, Stuart Davie, filed in the Office of the Industrial Registrar an application for relief from victimisation ("victimisation application") pursuant to section 213 of the Industrial Relations Act 1996 ("the Act"). This followed the termination of the applicant's employment on 25 June 2018.
In the victimisation application the applicant has claimed an order for the Department to: 1. reinstate or re-employ the applicant with continuity of employment; 2. pay the applicant the whole of the remuneration or other financial benefits lost or forgone; 3. be restrained from further victimisation or threat of victimisation of the applicant; and 4. comply with any other order the Commission considers appropriate.
The particulars of victimisation were stated as follows: 5. In contravention of subsection 210(1)(j) of the Industrial Relations Act 1996 (NSW), the applicant has been subjected to detriment for reasons including that he made a complaint about a workplace matter that he considered was not safe and/or a risk to health.
Prior to his dismissal, the applicant had been employed in the Department of Justice (Corrective Services NSW) ("the Department") as Director Custodial Corrections (Metropolitan East). He was employed as a senior executive pursuant to Part 4, Division 4, Public Service senior executives, of the Government Sector Employment Act 2013 ("the GSE Act").

Background

In a written outline of submissions filed on behalf of the applicant, the background to the victimisation application was set out 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". A key feature of the reform agenda was a program of "benchmarking" involving 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 Assistance (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 and Cathy Hellams (Strategic HR). 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. (h) The letter of termination stated that the termination was considered a "no fault separation" and that Mr Davie was entitled to receive an amount of compensation equal to his current remuneration package.

Legislative scheme

The applicant's employment was terminated pursuant to section 41 of the GSE Act, which is in the following 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.
By way of contrast, section 47 of the GSE Act, which applies to the termination of employment of Public Service employees (other than senior executives), is in the following terms: 47 Termination of employment (1) The head of a Public Service agency may, by instrument in writing, terminate the employment of a Public Service non-executive employee of the agency on any of the following grounds if the employment is ongoing employment: (a) the employee has failed to meet a condition of engagement as an employee under section 54, (b) the employee lacks, or has lost, an essential qualification for performing the duties of the role assigned to the employee, (c) the performance of the employee is determined under section 68 to be unsatisfactory, (d) the employee is unable to perform the duties of the role assigned to the employee because of physical or mental incapacity, (e) the employee is retired on medical grounds under section 56, (f) the employee has refused to perform the duties of the role assigned to the employee, (g) the employee has abandoned his or her employment, (h) a finding of misconduct has been made against the employee under section 69, (i) (Repealed) (j) the employee is determined in accordance with the regulations and the government sector employment rules to be excess to the requirements of the relevant part of the agency in which he or she is employed, (k) on any other ground prescribed by the regulations. The instrument is to set out the ground or grounds on which the employment is terminated. (2) The head of a Public Service agency may, by instrument in writing, terminate the employment of a Public Service non-executive employee of the agency at any time if the employment is not ongoing employment.
Section 58 of the GSE Act is in the following 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.
Section 85 of the GSE Act is in the following 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.
In the applicant's victimisation application it was asserted that his employment had been terminated because of the stand he had taken with respect to the benchmarking process being undertaken by the Department in correctional centres. In short, the applicant alleged that he had raised a number of concerns with senior management of the Department about the risks to the health and safety of prison staff and inmates should the reduced staff numbers, which resulted from the benchmarking process, be introduced. It was further alleged that, prior to his dismissal, the applicant had been subjected to a number of bullying incidents.
Sections 210 and 213 of the Act are in the following terms: 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.
It is not disputed that a non-executive public servant, whose employment is terminated in circumstances which would constitute a contravention of section 210 of the Act, would be entitled to seek a reinstatement order and/or other relief under section 213.
The Department has raised a jurisdictional objection to the Commission hearing and determining the applicant's victimisation application. The Commission, as presently constituted, decided to hear and determine the Department's jurisdictional objection as a threshold matter.

Jurisdictional objection of the Department

In the Department's written outline of submissions the following questions for determination were set out: The questions for determination 9. Section 41 of the GSE Act and s.210 of the IR Act are prima facie inconsistent: a. s.41 allows the employer of Public Service senior executives to terminate employment for any or no reason; b. s.210 prohibits an employer from victimising (including dismissing) an employee for certain reasons and empowers the Commission to make orders negating the effect of the termination. 10. A question therefore arises as to the concurrent operation of the two statutes. 11. The respondent submits that the specific provisions of the GSE Act displace the general and inconsistent victimisation provisions of the IR Act for Public Service senior executives.
The submissions then continued as follows: Relevant Legislative Provisions Government Sector Employment Act 12. The employment of persons within the New South Wales Public Service is governed by the GSE Act, GSE Regulation and the Government Sector Employment (General) Rules 2014 (NSW) (GSE Rules). These instruments applied to the Applicant's employment. The Applicant was a Public Service senior executive. 13. Regulation 39(1) of the GSE Regulation requires a contract for the employment of a Public Service senior executive to provide for payment of an amount equal to the executive's remuneration package for a period of 38 weeks in the event of termination under s. 41. ………………………………... Victimisation provisions in the IR Act 15. Section 210(1) of the IR Act (under Part 1 of Chapter 5) prohibits victimisation for specified reasons. One specified reason is "making a complaint about a workplace matter that the person considers is not safe or a risk to health... " (s.210(1)(j)). 16. The Commission may make orders under s.213 to "enforce the provisions of this Part" upon the application of a person affected by a "contravention" (per s.213(1)). The victimisation provisions can be distinguished from other provisions of the IR Act that are only enforceable in the Local Court or the Supreme Court (see s.397) and only enforceable on application by certain persons. Proceedings are nonetheless civil rather than criminal and the legislation is "purely remedial in nature". 17. The victimisation regime is different to the unfair dismissal regime. There is no prohibition per se against dismissing an employee unfairly. Rather, s.84 confers a right upon a person to "apply to the Commission for the claim to be dealt with under this Part" (per s.84(1)). 18. These aspects of the victimisation provisions are important because we (submit) that in s.210 Parliament directed its attention to the causing of detriment, including detriment by way of dismissal, for particular reasons. 19. The rebuttable presumption in s.210 makes Parliament's focus very clear, being a prohibition on victimisation "because of" certain reasons. In this regard the subject matter of s.210 is squarely in the same field as s.41. Legislative history 20. The GSE Act is a more recent statutory enactment than the IR Act. The Commission can note the legislative history of the respective provisions: a. The majority of the IR Act's provisions, including Part 1 of Chapter 5, came into effect on 2 September 1996. Section 213 has not been subject to substantive legislative amendment to date; b. Section 210 of the IR Act has been subject to legislative amendment once since the enactment of the GSE Act. This amendment was effected by Sch. 3 to the Statute Law (Miscellaneous Provisions) Act (No 2) 2015 (NSW), which contains "consequential amendments relating to the enactment of the [GSE Act]". Schedule 3 commenced on 15 January 2016. Schedule 3.48 [4] amended IR Act, s. 210(1)(ib), which is not relevant to the Application; c. Section 210(1)(j) has not been amended since the enactment of the GSE Act; and d. The majority of the GSE Act's provisions, including s. 58, came into effect on 24 February 2014. Section 58 has not been subject to subsequent legislative amendment to date.
The Department's submissions then formulated the "primary question for determination" as being "whether s.41 of the GSE Act and s.210 of the IR Act can operate concurrently or whether the earlier provision (s.210) must yield to the latter provision".
Reference was then made to the Court of Appeal judgement in Kocic v Commissioner of Police, NSW Police Force ([2014] NSWCA 368) in which it was held that the determination of 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 ambiguity attending the meaning of each statute. Only then is it possible to discern whether there is some element of inconsistency which requires resolution.
Reference was also made to the High Court judgement in Commissioner of Police v Eaton ([2013] 252 CLR 1) in which it was held that the power of the Commissioner of Police under subsection 80(3) of the Police Act 1990 to dismiss a probationary police officer "at any time and without giving any reason" was inconsistent with the general right of a dismissed employee to seek a remedy pursuant to the unfair dismissal provisions of the Act. The Department also cited The South-Eastern Drainage Board (South Australia) Defendant , Appellant; and The Savings Bank of South Australia Plaintiff, Respondent ([1939] 62 CLR 603) and Rose v Hvric ([1963] 108 CLR 353) in support of the proposition that both "[e]xplicit and implicit contradiction" would be sufficient for the doctrine of implied repeal to operate.
The submissions then continued as follows: Stage 1 - Parliament's intention (GSE Act) 28. The first of the two stages of analysis (per Kocic), is to closely examine the provisions of the respective statutes. Applying the High Court's reasoning in Eaton, the Commission can note the following key features of the GSE Act: a. s.41 reveals Parliament's intention to confer an unfettered right to terminate (the) employment of senior executives; b. similarly s.41(1) and (2) together reveal Parliament's intention that there is not to be any examination of the reasons for dismissal; c. s.41 stands in contradistinction to the termination provisions for nonexecutives (s.47); d. s.41 stands in contradistinction to the terms of s.58 that preserve the operation of the IR Act for non-executives; e. s.58(7) is a comprehensive privative provision applicable to senior executives but not to non-senior executives f. S.41(2) expressly caps compensation in the event of termination of employment for senior executives.
By reference to the judgement in Eaton, the Department submitted that the terms of subsection 41(1) "are even more strongly indicative of Parliament's intention to confer an unfettered power to terminate the employment of senior executives" and "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 Department also noted in this regard that the unfair dismissal provisions of the Act are expressly excluded for senior executives (per subsection 58(4) of the GSE Act).
The Department's submissions highlighted the distinction between the tenure of senior executives and that of non-executive employees flowing from sections 41 and 47 of the GSE Act. The wording of subsection 41(1), in particular "for any or no stated reason" discloses "that the intended operation of s.41 is to permit the employer to terminate employment for absolutely any reason(s), even if the reason(s) include matters in s.210, and even no reason at all".
Further, it was submitted that the GSE Act and the Government Sector Employment Regulation 2014 contain a complete code in relation to compensation on termination of senior executives which provides for payment of a maximum of 38 weeks' pay to an employee whose employment has been terminated pursuant to section 41 of the GSE Act. It was also submitted that the privative effect of the words "any other relief" in subsection 58(7) sits harmoniously with the words in subsection 41(2) ". . . entitled to such compensation . .. (and to no other compensation or entitlement for the termination of employment other than superannuation entitlements)".
Reference was also made to the preservation of the ability of Public Service employees (including executive employees) to bring discrimination and victimisation proceedings. However, this is a limited right to bring proceedings "in relation to the employment of another employee of any Public Service agency". Subsection 58(8) specifically addresses the availability of victimisation proceedings under s. 210 and s.213 for Public Service employees. The Department submitted as follows: 45. Crucially, the "right" preserved in this subclause is not directed to termination of employment, let alone termination of an employee's own employment, and as such has no relevant application to the present analysis. 46. As the High Court said in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (at 382): [A] court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent. 47. The words "in relation to the employment of another employee of any Public Service agency" must therefore be given work to do. 48. As a person affected by the alleged contravention of s.210 the Applicant can only be understood to be seeking orders in relation to his own employment.
The Department then submitted that, by the reasoning of the High Court in Eaton, section 41 of the GSE Act must be understood to be inconsistent with section 210 of the Act and the latter statute must be understood to displace the operation of the earlier statute. The submissions continued: 51. The general presumption that Parliament intended both provisions to sit together is comfortably displaced by the above analysis/understanding of the respective provisions. 52. There is clearly an explicit or implicit contradiction between the two provisions. There is such contrariety in the two legislative schemes that, by necessary implication the IR Act provisions are excluded by the GSE Act provisions. 53. In this respect the Commission can note that in Eaton the Court of Appeal found that the IR Act added another layer of legislation to the Police Act and the High Court found this interpretation to be wrong. 54. From the above analysis the Commission can see a number of specific inconsistencies between the statutes: a. Both statutes affect employers' powers to terminate employment. One prohibits termination on certain grounds, the other enables termination on any or no ground; b. The GSE Act does not oblige the employer to give reasons. By contrast the rebuttable presumption in s.210(2) all but requires the employer to do so in order to displace the presumption that s.210 puts against it; and c. the Commission's power under s.213(2) to order reinstatement or redeployment (re-employment) is directly inconsistent with the power under s.41 to dismiss a senior executive without interference of any kind. 55. The victimisation provisions, although narrower than the unfair dismissal provisions, must be understood to be (a) general prohibition applying to a broad range of employees. Obviously s.41 applies to a specific class of senior executives.
The Department referred to some earlier decisions of the Commission and the Industrial Court including Clark and Doherty v The State of New South Wales ([2002] NSWIRComm 274) where Peterson J considered whether the following provision of the Teaching Service Act 1980 was a bar to an order for the payment of money pursuant to section l06 of the Act: 97 Crown's right to dismiss not abrogated (1) Subject to subsection (3), nothing in this Act shall be construed or held to abrogate or restrict the right or power of the Crown to dispense with the services of any person employed in a Teaching Service. (2) An officer or temporary employee of a Teaching Service shall not be entitled to any compensation by reason of any reduction in salary or of his or her services being dispensed with, whether under this section or otherwise.
It was submitted that Peterson J seems to have accepted the proposition that subsection 97(2) was a bar, but that Parliament's intention was that the exclusion was confined to only a unilateral termination by the employer (at [43]).
The Department also referred to Jozef Banas v State of New South Wales ([2003] NSWIRComm 317), State of New South Wales v Banas ([2004] NSWIRComm 255) and to the decision of Boland P Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Director of Public Employment ([2011] NSWIRComm 152). The Department concluded as follows: 61. Boland P's decision pre-dates the High Court's decision in Eaton and must now be understood to be flawed in light of the High Court's consideration of s.218 of the Police Act: [88] The Court of Appeal's interpretation of s 218(2) assumes that it operates so that unless expressly provided by the Police Act, the IR Act is to apply. The terms of s 218(2), and the omission of such words, do not readily lend themselves to this construction. Even if one were to proceed from that assumption, the general provision of s 218 would yield to what is implied by s 80(3) of the Police Act. … [90] The provisions of Pt 9 of the Police Act provide an example of inconsistency with provisions of the IR Act relating to unfair dismissal. The level of inconsistency is such that s 218(1) does not operate in its terms. Section 80(3) is impliedly inconsistent with s 218. It conveys more than that the Commissioner may dismiss without giving reasons. It implies an unfettered power and therefore that the decision is not to be subjected to a review on the merits. That implication is supported by other aspects of the construction of the Police Act, to which reference has been made. 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. 62. The application must be dismissed

Submissions of the applicant

The following written submissions were made on behalf of the applicant: 11. The IR Act is expressed to bind the Crown by s 404. As the Commission is aware, the objects of the IR Act include to "to promote participation in industrial relations by employees and employers at an enterprise or workplace level" and "to encourage participation in industrial relations by representative bodies of employees and employers". One mechanism through which those objects are pursued is by provision being made to protect freedom of association and to protect employees and prospective employees from victimisation for engaging in industrial activities. 12. In particular, s 210 provides that an employer or industrial organisation must not victimise an employee or prospective employee for various reasons, including because the person is a member or official of an industrial organisation, exercises a function under the IR Act, claims a benefit or reports a breach of industrial relations legislation or an industrial instrument, participates in industrial proceedings or in public or political activity or reports or makes a complaint for the purposes of various statutory regimes. 13. The Commission is able to enforce those provisions under s 213 on application by an industrial organisation or a person affected by a contravention. The Commission may, for that purpose, make various orders including reinstatement or re-employment, that the employer promote or advance an employee in their employment, that the employer pay an employee or prospective employee remuneration or financial benefits lost, that the employer employ a prospective employee and/or an order not to carry out a threat to victimise. 14. These provisions are clearly critical to achieving the objects of the IR Act. That is, the provisions are critical to ensuring the integrity of the industrial relations system and the operation of the Commission itself, the free participation by industrial organisations in industrial affairs and the achievement of the objects of various other pieces of legislation, including with respect to issues affecting the safety of the public and workers in the State, by protecting persons who make complaints or reports from victimisation. The significance of the provisions is readily apparent. Respondent's Contentions 15. The respondent contends, primarily based upon s 41 of the GSE Act, that the GSE Act impliedly displaces the victimisation provisions of the IR Act such that they have no application with respect (at least) to executive employees and the Commission lacks jurisdiction to deal with an application by an application by a senior executive under s 213. It is suggested that s 41 of the GSE Act impliedly overrides any legislation which might permit examination of the "reasons" for the termination of employment of a senior executive. 16. It is appropriate to reflect briefly upon the ramifications of the respondent's position. If the respondent is correct, a public sector employer could, with impunity, terminate the employment of an executive employee because the person joined or became an official of a union, because the person participated or gave evidence in proceedings before this Commission, because the person reported breaches of industrial legislation, because the person reported a critical risk to health and safety to a relevant authority or because the person participated in public or political activity. 17. Furthermore, if the respondent's submissions were correct, the "displacement" would not be limited to victimisation under the IR Act. If s 41 of the GSE Act displaces any legislative provision which permits any examination of the "reasons" for the termination of a senior executive, there is no reason that it would not displace discrimination legislation. On that view, a senior executive could be terminated because of his or her racial background, sex, disability, sexual orientation or age without having any recourse. 18. It is a surprising submission for the respondent to make and it would be surprising if that were Parliament's intention in enacting the legislation. Extremely clear words would be required to support such a result. Fortunately, the respondent's submissions are not correct. 19. The respondent's submissions raise two issues it is appropriate to address in turn: (a) Firstly, whether s 41 of the GSE Act implied repealed or displaced the victimisation provisions of the IR Act so far as they would otherwise apply to executive employees; and (b) Secondly, whether s 58(7) of the GSE Act operates as a privative provision to prevent proceedings under s 213 of the IR Act with respect to the employment of a senior executive. 20. For the reasons that follow, both questions should be answered in the negative. Implied Displacement 21. 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. In Saraswati v R (1991) 172 CLR 1, Gaudron J said (at 17): 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 ... 22. There is a very strong presumption that Parliament does not intend to contradict itself, but rather intends that both Acts operate within their given sphere. Implied repeal will be "a comparatively rare phenomenon" and will not be held to have been effected "unless actual contrariety is clearly apparent". The presumption that Parliament intended the GSE Act and the IR Act to operate together has not been displaced. 23. Firstly, the respondent 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. Section 210 provides, relevantly, that an employer must not "victimise" an employee for particular specified reasons. Section 210(2) contemplates that victimisation will occur if a detriment is caused to an employee. The term "victimise" has been interpreted to mean to "cause an employee to suffer some injury, hardship or loss or otherwise treat the employee harshly, unfairly or to his disadvantage in or in relation to his/her employment". 24. Dismissal may be an example of victimisation, but does not represent the field occupied by s 210. It is broader. On the respondent's submissions, s 41 of the GSE Act implied repealed s 210 so far as senior executives are concerned in relation to termination of employment but not otherwise. That is, public service employers would be prohibited from victimising an executive by removing duties, denying benefits or imposing other disadvantages on the employee, but would be authorised to terminate the executive for reporting a safety risk. That would be a nonsensical result. Properly understood, s 210 is a broader provision which operates in the field of protection of employees from retribution for exercising fundamental industrial rights which can operate harmoniously with the powers given to terminate senior executives. 25. Secondly, 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 employer of a Public Service senior executive is entirely unfettered. Section 41(1) indicates that the employment of an executive may be terminated "at any time" and "without notice" and for any or no "stated reason". Whilst it may be correct that the section contemplates an executive may be terminated for no reason, s 210 does not prohibit an employer from terminating the employment of an executive for no reason. 26. The reference to termination "at any time" or "without notice" are not inconsistent with some constraints on the exercise of the power to dismiss. Then, the only indication is that there may be termination for any or no "stated reason". That is intended, no doubt, to confer a broad power. However, the section does not suggest a legislative intention that the actual reason as opposed to the "stated reason" could be anything at all and could not be read as authorising the termination of an executive for unlawful reasons. 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 extreme outcome. 27. Thirdly, the respondent's reliance on Commissioner of Police v Eaton (2013) 252 CLR 1 is not sufficient to support the conclusion for which it contends. The reasoning of the majority (Crennan, Kiefel and Bell JJ) in Eaton was that s 80(3) of the Police Act 1990, which permitted dismissal of a probationary police officer "at any time and without giving any reason", was inconsistent with "merits review" by way of an assessment of whether the dismissal was harsh, unreasonable or unjust. If the employer was not required to have a reason, or a good reason, then there could not be an assessment of whether the reason was valid or reasonable. 28. The same reasoning does not follow in relation s 210 of the IR Act. The victimisation provisions do not permit the Commission to examine whether the reasons of the employer for termination are well-founded, reasonable or correct or second-guess the employer's judgement in relation to the suitability of an executive employee to continue in their role. Section 210 (in so far as it relates to the detriment of termination) is focused only on whether the employer has terminated an employee for a reason rendered unlawful by the IR Act and does not permit the Commission to engage in merits review. 29. 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. The majority in Eaton placed particular reliance upon the nature of work in the Police Service and the probationary nature of the engagement at issue. In Custovic v New South Wales (Department of Family and Community Services - Housing NSW) (2014) 247 IR 414, for example, the Full Bench found no inconsistency between provisions permitting an employer to dispense with the services of a temporary employee at any time and the unfair dismissal provisions of the IR Act and distinguished Eaton. The Full Bench said (at [122]-[123]): The respondent's second indicator was that the phrase "at any time" in s 30 of the PSEM Act created an unfettered power of dismissal: Eaton at [12]. We do not think that Heydon J in Eaton was determining that the phrase "at any time" meant that whenever that phrase was employed in the context of an employer's right to dismiss, the phrase provided a right to dismiss unfettered by any other consideration to be drawn from the statute. It is important to bear in mind that Heydon J was considering the phrase "at any time" in the context of probationary employment, which involves "the idea of something in the nature of trial and experiment with a view to determining whether an applicant is to be appointed". Temporary employment under the PSEM Act did not involve a period of trial and testing to determine whether the employee was fit for appointment as an officer. The PSEM Act provided separately for probationary appointments: see s 23. 30. Fourthly, the comparison between the provisions of the GSE Act dealing with the termination of employment of executive and non-executive employees does not assist the respondent. It may be accepted that the GSE differentiates between the grounds and process applicable in the case of the termination of an executive and non-executive employee and provides less protection for executive employees. However, the difficulty identified in Eaton was that, if probationary police officers had access to unfair dismissal provisions, probationers would (incongruously) have superior protection from dismissal than confirmed police officers. 31. No such anomaly is created if the victimisation provisions of the IR have potential application to senior executives. The employment of a non-executive employee can only be terminated on specified grounds and a dismissed non-executive employee would have access to either the unfair dismissal or public sector disciplinary provisions of the IR Act both of which are denied to executives. Non-executive employees are also protected from victimisation. On no view would the interpretation Mr Davie advances result in executive employees attaining greater protections than non-executive employees. 32. Fifthly, the capping-provision with respect to "compensation" found in s 41(2) of the GSE Act also does not assist the respondent. Section 41(2) provides for an entitlement to "compensation" in accordance with an executive's contract. Section 213 of the IR Act does not permit the Commission to make a general order for compensation. The orders available are focused on other remedies such as reinstatement or re-employment or a prohibition on future victimisation. The capacity, in s 213(2)(c), to order a payment with respect to "remuneration or other financial benefits lost or foregone" is not a general compensatory power and not inconsistent with s 41(2). 33. Sixthly, in Eaton, the majority discerned good and rational reasons why the proper management of the Police Force necessitated a power to terminate probationary police officers without recourse to merits review. It may also be said that there may be good reasons why the proper management of the Public Service might support broad powers to terminate senior executives. However, no rational reason could be suggested to justify authorising an employer to terminate an executive for discriminatory reasons or because he or she had participated in proceedings in this Commission, reported a serious risk to public or workplace safety or become involved in an industrial organisation. Such a power is so antithetical to good governance in the public sector it is unthinkable Parliament intended that result. 34. Seventhly, s 58 of the GSE Act expressly excludes certain parts of the IR Act from applying to executive employees, including Part 6 (unfair dismissal) and Part 7 (disciplinary appeals) of Chapter 2. If s 41 impliedly excludes the operation of any provision of the IR Act which might touch upon the termination of an executive employee, s 58(4) is entirely unnecessary and is otiose. The fact that Parliament felt it was necessary to exclude, by express provision, executive employees from bringing unfair dismissal proceedings or disciplinary appeals demonstrates that the legislation cannot otherwise be read as impliedly excluding all provisions relating to the termination of an executive employee. 35. Finally, s 85(1) of the GSE Act expressly deals with the interaction between that Act and the IR Act which 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. In Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Director of Public Employment [2011] NSWIRComm 152, Boland J concluded, with respect to s 160 of the Public Sector Employment and Management Act 2002, that (at [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. 36. The respondent submits that this approach is "flawed" in light of Eaton and the approach of the majority to s 218 of the Police Act 1990 which contains similar wording. The approach in Eaton does not necessarily apply in relation to s 85(1) of the GSE Act. In Eaton, the majority concluded that s 218 of the Police Act 1990 did not mean what it said and was "patently erroneous" as a result of other provisions of that Act which undeniably affected the operation of the IR Act. That is not the case with the GSE Act. In addition, s 85 of the GSE Act constitutes a re-enactment of s 95 of the Public Sector Management Act 1988 and s 160 of the Public Sector Employment and Management Act 2002. Parliament can be taken to have intended s 85 of the GSE Act to have the established meaning attributed to its predecessor provisions. 37. In any event, on any view, s 85(1) of the GSE is not to be ignored. After Eaton, the Full Bench in Custovic v New South Wales (Department of Family and Community Services - Housing NSW) (2014) 247 IR 414 said (at [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. 38. Section 85(1) is at the very least a further indication that the GSE Act was not intended to impliedly repeal or alter the operation of the IR Act. 39. For these reasons, the contention of the respondent that s 41 of the GSE Act impliedly repealed, in part, the victimisation provisions of the IR Act must be rejected. The two sets of provisions are capable of operating together. Express Displacement 40. The second issue which arises is whether s 58 of the GSE Act, and s 58(7) in particular, operates as an express privative provision so as to oust the Commission's jurisdiction to deal with a victimisation application with respect to an executive employee. Section 58 of the GSE Act is, on any view, a troublesome and poorly drafted provision and there is considerable difficulty involved in giving it sensible operation. 41. A proper understanding of s 58 requires an appreciation of the statutory history of the provision. The Public Sector Management Act 1988 provided for the employment of executive officers under a contract of employment pursuant to Part 2A of that Act. Section 42Q(1) permitted the Governor to remove an executive officer from an executive position "at any time". Section 42J provided that the employment of an executive officer was not an "industrial matter" for the purposes of the IR Act and s 42J(7) prevented proceedings in relation to appointment or failure to appoint an executive officer as follows: (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 the appointment of 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. 42. The Public Sector Employment and Management Act 2002 similarly provided for the employment of public sector executives in Part 3.1. Section 77(1) provided that "the employer of an executive officer may remove the executive officer from an executive position at any time for any or no reason and without notice." Section 72 provided that the employment of a public sector executive was not an "industrial matter" for the purposes of the IR Act and specifically excluded executives from Part 6 (Unfair dismissals), Part 7 (Public sector promotions and disciplinary appeals) and Part 9 (Unfair contracts) of Chapter 2 of the IR Act. The section did not exclude executives from the victimisation provisions of the IR Act. 43. The only broader privative provision was directed at "appointment or failure to appoint". Relevantly, s 72(8) provided: (8) 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 an executive position, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment. 44. Section 22 of the 2002 Act also provided that the "appointment or failure to appoint" a non-executive officer was not an industrial matter and that no proceedings would lie with respect to the appointment or failure to appoint a non-executive officer. In that context, s 22(5) provided as follows: (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. 45. The situation up to the 2002 Act was, then, that the employment of an executive was not an industrial matter and executives were specifically excluded from unfair dismissal, promotion and disciplinary appeals and unfair contract provisions of the IR Act but not victimisation proceedings. The question is whether there is any indication that the GSE Act intended to change that situation and permit public sector employers to victimise executives. With respect, there is none. 46. Section 58(7) of the GSE Act cannot be read so as to exclude the victimisation provisions of the IR Act from applying to executives. Section 58(7) provides: (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. 47. The respondent relies upon the words "or for any other relief" in s 58(7) as removing the jurisdiction of the Commission under s 213. No other part of s 58 even arguably precludes the Commission exercising its powers under s 213. The exercise of powers under s 213 of the IR Act does not involve "an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction." Properly construed, the remedies available under s 213 of the IR Act are not "any other relief" for the purposes of s 58(7) either. 48. When construing the phrase "or for any other relief" in s 58(7), the Commission would apply the approach generally adopted to privative provisions. A conferral of jurisdiction upon a court or tribunal will not be taken to have been withdrawn, unless the withdrawal of jurisdiction is clear and unmistakeable. In Spiers v Industrial Relations Commission (2011) 81 NSWLR 348, for example, the Court of Appeal applied that principle to the question of whether the powers of the Commission, in that case with respect to an order for the reinstatement of an injured worker. 49. The phrase "or for any other relief" must take its meaning from the context provided by the remainder of s 58. The immediate context is the other words of s 58(7) itself which all refer to relief available in judicial proceedings. As the respondent has noted, in Sydney City Council v Reid (1994) 34 NSWLR 506, Kirby J construed identical wording in s 340(5) of the Local Government Act 1993 as limited to judicial proceedings and not preventing proceedings in a Tribunal. His Honour concluded (at 512): 6. It would be erroneous to give the words "or for any other relief" a completely openended 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 50. The grounds for reaching the same conclusion with respect to s 58(7) of the GSE Act are substantially stronger. Where the GSE Act intends to exclude jurisdiction conferred by the IR Act it says so expressly. Section 58(3) provides that the employment of an executive employee, or any matter, question or dispute relating to such employment is not an industrial matter, s 58(4) provides that Part 6, 7 and 9 of Chapter 2 of the IR Act to not apply to an executive employee and s 58(5) provides that a State industrial instrument does not have effect in so far as it relates to executive employees. The GSE Act has turned its mind to which parts of the IR Act it wishes to exclude from operating in relation to executive employees and has not excluded the victimisation provisions. 51. In those circumstances, the general words in s 58(7) could not be construed as intending to displace a significant aspect of the Commission's jurisdiction without express provision. If the legislation intended to override the Commission's victimisation jurisdiction it would say so expressly. The more natural meaning of the words "or for any other relief" is that they refer to other relief available in judicial proceedings similar in kind to "prohibition, certiorari or mandamus or for a declaration or injunction" and not to proceedings under the IR Act not expressly dealt with elsewhere in s 58. That is a complete answer to the submission that s 58(7) excludes the Commission's jurisdiction under s 213 of the IR Act. 52. In the alternative, if s 58(7) were (for some reason) construed to exclude the Commission's victimisation jurisdiction, s 58(8) nonetheless preserves the operation of s 213 of the IR Act. The wording of s 58(8) is admittedly problematic. It indicates that the section does not prevent proceedings from being brought by an employee "in relation to the employment of another employee of any Public Service agency". Section 58(8)(b) then includes "proceedings under section 213 of the Industrial Relations Act 1996 to enforce the provisions of section 210 (Freedom from victimisation) of that Act". 53. The difficulty with the provision is that s 213 does not readily permit proceedings to be brought "in relation to the employment of another employee". It made sense for s 22(5) of the 2002 Act to operate to "in relation to the appointment of another member of staff" because the privative provision at that time applied only to preclude proceedings in relation to the appointment or failure to appoint an employee. So far as an executive employee is concerned, the "employment an executive employee" is now defined in s 58(2) to include removal, retirement, termination or other cessation of employment, disciplinary proceedings or action or remuneration or other conditions of employment. 54. An employee cannot make application under s 213 of the IR Act with respect to the removal or termination or disciplinary action taken with respect to another employee and s 58(8)(b) becomes incoherent if read literally. Section 58(8) is clearly a significant provision intended to preserve the operation of the victimisation jurisdiction of the Commission notwithstanding other parts of s 58. It must be given sensible and effective operation. If the respondent's submissions were correct then it would allow a senior executive to make an application regarding the employment of another employee (for example, regarding the employment of another employee to a position that the executive had applied for), but not in relation to the executive's termination or demotion or any other detriment visited upon them. 55. If it is necessary to do so, this is an instance in which the Commission would be justified in reading the provision other than entirely literally. The reference to proceedings being brought "in relation to the employment of another employee" is clearly an error adopted from s 22(5) of the 2002 Act without reflection on other changes made. The subsection must be read so as to permit an employee to bring proceedings under the Anti-Discrimination Act 1977 or the victimisation provisions of the IR Act in relation to his or her own employment as it is defined in s 58(2). To do otherwise would deprive the provision of useful operation. Conclusion 56. For these reasons, the respondent's jurisdictional objection must be rejected. The proceedings should be programmed for hearing of the merits of the application.

Department's submissions in reply

The Department relied upon the following submissions is reply: A surprising outcome(?) 1. The Applicant submits that it would be a surprising outcome if senior executives could be dismissed because of racial background, sex, disability etc or similarly because of the grounds in s.210 (at [16]-[18]) and if such an outcome were intended "extremely clear words are required to support such a result" (at [18]). The Applicant also submits that the High Court in Eaton discerned good and rational reasons for their construction of the relevant Acts whereas there is "no rational reason" that supports the Respondent's statutory construction and in fact such an outcome is antithetical to good governance (at [33]). 2. In this regard: a. Such an outcome is not at all surprising when one considers the terms of the GSE Act and the IR Act; b. Mr Davie's annual salary was in excess of $200,000. He was not covered by any industrial award. If he were not a public sector employee: i. he would be excluded from the unfair dismissal provisions of the IR Act by application of s.84(1)(b) (s.83(1)(b)) because of his high income; ii. he would be close to, or actually excluded from the unfair contract provisions of the IR Act because of his high income by application of s.108(2) (s.108A(1)) of the IR Act; c. As a senior executive Mr Davie was of course a public sector employee, but Parliament nonetheless excluded senior executives from the unfair dismissal regime directly (GSE Act s.58(4)) and indirectly (GSE Act s.58(3) to the extent that s.130 might have otherwise been available in relation to the dismissal of a senior executive); d. Parliament has excluded senior executives from the unfair contract regime of the IR Act altogether (GSE Act s.58(4)) which is in contradistinction to s.74 of the GSE Act that only excludes unfair contract claims for non-senior executives who are excess employees; e. Parliament excludes senior executives from the benefits of industrial awards (GSE Act s.58(5)); f. any matter, question or dispute relating to the employment of a senior executive is not an industrial matter (GSE Act s.58(3)) and therefore even if such a senior executive was eligible to join a trade union, no union could access s.130 on behalf of the senior executive; g. the termination benefits payable to a dismissed senior executive under s.41 (ie 38 weeks) is comparable to the maximum severance benefits of the Managing Excess Employee policy recognised by Parliament via s.146C and the Regulations. These benefits under the Managing Excess Employee policy, are not susceptible to challenge in the Commission; h. When one looks at the terms of the IR Act one sees that very little of it could conceivably apply to the employment of senior executives: i. Chapter 2 - Part 1 Awards (ss l0-28), Part 2 Enterprise Agreements (ss.28A-47), Part 3 National and State Agreements (ss.48-52) are all expressly excluded by s.58(5) of the GSE Act; ii. Chapter 2 Part 4 Parental Leave (ss.53-66) applies; iii. Chapter 2 Part 4B Leave for Victims of Crime (s.72AAS-72AG) applies; iv. Chapter 2 Part 5 Part-time Work (ss.73-82) is excluded by s.58(5) of the GSE Act (see s.73 of the IR Act); v. Chapter 2 Part 6 Unfair Dismissal and Part 7 Appeals are expressly excluded by s.58(4) of the GSE Act; vi. Chapter 2 Part 8 Protection of Entitlements on Transfer of Business (ss.101-104) applies but only in relation to protection of entitlements arising industrial relations legislation; vii. Chapter 2 Part 9 Unfair Contracts is expressly excluded by s.58(4) of the GSE Act; viii. Chapter 2 Part 10 Payment of Remuneration (ss.117-129) applies but does not confer any entitlements or benefits per se; ix. Chapter 2 Part 11 - Outworkers in Clothing Trades is irrelevant; x. Chapter 3 Industrial Disputes (ss.130-144) is expressly excluded by s.58(3) of the GSE Act; xi. Chapter 4 (ss. 162-208C) is irrelevant; xii. Chapter 5 Part 1 is the Part of the Act in contest in these proceedings; xiii. Chapter 5 Parts 2 to 8 Industrial Organisations (ss.215-305) are irrelevant; xiv. Chapter 6 Public Vehicles and Carriers (ss.306-355E) is irrelevant; xv. Chapter 7 Enforcement (ss.356-403) is presently irrelevant; and xvi. Chapter 8 Miscellaneous is presently irrelevant. i. to the extent that the victimisation provisions are intended to advance the objects of the IR Act, protect the award system or protect participation in dispute resolution proceedings, senior executives cannot avail themselves of such benefits and so it is not surprising that Parliament didn't give them the protection of the victimisation provisions. Presumption against implied repeal 3. The Applicant submits that where two pieces of legislation are enacted, Parliament is presumed to have intended both to operate together (at [21]) and there is a very strong presumption against implied repealed (22). 4. In this regard: a. the authorities are clear about the presumption against implied repeal; b. the applicant's submissions don't follow the process recognised by the courts for applying/displacing the presumption; c. the High Court and Court of Appeal have adopted a two-stage process - the first stage of which is to attend to the meaning of each statute. As the Court of Appeal observed "only then is it possible to discern whether there is some element of inconsistency which requires resolution". The Commission should follow the same process; d. the Respondent's submissions extensively analysed the GSE Act provisions to proffer an understanding of Parliament's intention in relation to senior executives schematically and Parliament's intention as revealed in particular sections of the GSE Act; e. the Applicant's submissions do not clearly state what is said to be intended effect of the key provisions of the GSE Act nor the scheme of the Act within which the key provisions appear; and f. once Parliament's intention in relation to senior executives is comprehensively understood, the inconsistency with s.210 is inescapable, and the presumption against inconsistency is comfortably displaced. Operate in the same field 5. The Applicant submits that s.210 of the IR Act and s.41 of the GSE Act do not operate in the same field (at [23]) because s.210 applies more broadly than to just dismissal (at (24]). 6. In this regard: a. this submission perhaps is a product of the Applicant not applying the above two-stage process. Whilst it is literally correct that s.41 applies to termination and s.210 applies to termination as well as other things, both provisions apply in the 'field' of termination of employment. So much is clear by close consideration of each provision in its context; b. in any event the majority in Eaton considered the question of implied repeal to arise "where the field of application of two related statutes is different, but where the later statute does not expressly repeal or override the earlier"; c. the Applicant's argument seems to also rely on the possibility that some parts of the field in which s.210 operates might be left intact even though s.210 is displaced in relation to dismissal (at 24]); d. however the authorities are clear that the overlap between the fields of application does not need to be exactly the same and the intended displacement does not therefore need to be a complete displacement: i. In Eaton, for example, the general unfair dismissal provisions were only partially displaced by the latter statute: Conclusion and orders 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. Such an effect, which would be reached if a decision under s 80(3) of the Police Act were subject to review under Pt 6 of the IR Act, cannot be taken as intended. The conclusion reached concerning the non-application of Pt 6 of the IR Act to a decision made under s 80(3) may further be tested by reference to s 218 of the Police Act and the rule of construction mentioned at the outset of these reasons. In each case, 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. [Footnote omitted. Emphasis added]. ii. Similarly the Full Court in State of New South Wales v Banas accepted that the PSEM did not completely displace the unfair contract jurisdiction: …. the PSM Act does not cover the field to the exclusion of the Industrial Relations Act. Provided in this case any orders made under s 106 are not inconsistent with or contradictory of the specific provisions of ss 50, 51, 52, 53 and 55 of the PSM Act, such orders are within jurisdiction. [Emphasis added] Stated reasons v actual reasons 7. The Applicant submits that: a. s.41 does not confer an entirely unfettered power to dismiss senior executives (at [25]). The Applicant submits that s. 41 does allow the decision maker to dismiss for any or no "stated reason" but does not allow the decision maker to dismiss a senior executive for any or no "actual reason" (at [26]); and b. Eaton can be distinguished (at [27]). The applicant says s.210 does not permit the Commission to inquire whether the employer's reasons are well founded or permit the Commission to second-guess the employer. Section 210, it is said, is only concerned with whether the employee was terminated for an unlawful reason (at [28]). 8. In this regard: a. the Applicant's submissions do not engage with the meaning of the words "for any or no" reason in s.41; b. as previously submitted the phrase "at any time, for any or no stated reason and without notice" is more indicative of Parliament's intention to confer an unfettered power than the words "at any time and without giving any reason" considered in Eaton; c. in any event the phrases "at any time" and "without notice", when considered in isolation but in light of Eaton, are indicative of conferral of an unfettered power; d. the Applicant's submissions draw a distinction between "stated reasons" and "actual reasons", apparently to support the proposition that s.41 regulates what reasons can be stated, as opposed to what reasons can be actioned upon; e. it would be quite the absurd outcome if Parliament only intended to only regulate the reasons a decision maker can give/state/tell a senior executive; f. in Eaton the High Court found that the phrase "at any time and without giving reason": i. was indicative that a decision made under s 80(3) is not to be subject to merits review by the Commission (at [72]); ii. was suggestive that considerations associated with unfairness are not to be in question (at [75]); and iii. was strongly suggestive of an unfettered power to dismiss (at [74]), viz: [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. g. at the heart of the High Court's reasoning is the proposition that the conferral of a power to dismiss that is exercisable without having to state reasons, reveals an intention that the reasons for exercising the power, be them good bad or no reasons, are not subject to scrutiny. Senior executives v probationary police officers 9. The Applicant also distinguishes Eaton by submitting: a. that the similar statutory words/phrases considered in Eaton don't have the same effect in this matter because of the context (being provisions about senior executives instead of provisions about probationary employees) (at [29]); and b. that the incongruity in Eaton between rights of probationary employees over rights of non-probationary employees arose because the purported rights of probationary employees were greater than other employees (at [30]) and no such anomaly arises under the GSE Act (at [30]). 10. In this regard the Respondent says: a. the High Court was of course considering a different type of employee (ie probationary constables) than senior executives; and b. in the industrial relations context, where employees are generally and unsurprisingly afforded less and less protection as they become more senior and earn more remuneration, it would be anomalous to conclude that Parliament's intention to exclude probationary employees from challenging their dismissal under the IR Act is distinguishable from Parliament's intention to apparently preserve the capacity for senior executives to challenge their dismissal by way of the victimisation provisions of the IR Act. Availability of Compensation 11. The Applicant says: a. the cap on compensation in s.41(2) does not apply to the compensation that can be awarded under s.213 because the power in s.213 is not a general compensatory power (at [32]); and b. the phrase "or any other relief' in s.58(7) does not include a claim for orders under s.213 (at [48]) and should be read down to exclude only judicial proceedings seeking relief (at [50]). 12. In this regard: a. It is somewhat difficult to understand the distinction between general compensation and other compensation; b. Section 41(2) confers a statutory right to compensation and caps or excludes any other "compensation or entitlement for the termination of the employment other than superannuation entitlements"; c. That is, the first part of s.41(2) gives senior executives a right in statute to recover compensation "(if any) as may be provided in the contract of employment of the executive"; d. the words in parenthesis in s.41(2) operate to correspondingly remove by statute any rights to "other compensation or entitlement for the termination of employment ... "; e. the Applicant seeks an order under s.213 that the Respondent pay to the Applicant the whole or any part of remuneration or other financial benefits lost or forgone; f. assuming the Commission does not order reinstatement (which the Respondent says it can't) an order of the kind sought could only be "compensation or entitlement for the termination of employment"; g. the words "remuneration or other financial benefits lost or forgone" in s.231(2)(c) (s.213(2)(c)) operate to limit the amount of compensation/entitlement available, but they do not change the remedial nature of the payment available; and h. s.41(2) and s.58(7), when read together and read harmoniously, clearly exclude any kind of proceeding, judicial or otherwise, that seeks relief in relation to the dismissal of a senior executive. Express exclusion otiose(?) 13. The Applicant says s.58 of the GSE expressly excludes some parts of the IR Act, which would be unnecessary or otiose if the Respondent's construction is correct (at [34]). 14. In this regard: a. this submission seems to be that the express displacement of certain provisions is otiose if Parliament's intention was to impliedly repeal them anyway; b. this reasoning is at odds with the outcome in Eaton. As the plurality noted in Eaton at [55]: Section 51(1) applies to an executive officer, who may be removed from office "at any time for any or no reason and without notice", by the Governor on the recommendation of the Commissioner, in the case of the removal of a Deputy Commissioner or Assistant Commissioner, and in any other case, by the Commissioner alone. Executive officers are not subject to the application of Pt 6 of the IR Act. By s 44(2) of the Police Act, their employment is not an industrial matter for the purposes of the IR Act and by s 44(2A), Pt 6 of the IR Act does not apply. The IR Act itself confirms that Pt 6 does not apply to an executive officer of the NSW Police Force. c. If the applicant's reasoning is correct then the High Court would have found no implied repeal in Eaton because such a finding would have rendered s44(2) and 44(2A) of the Police Act otiose. Express exclusion but not implied repeal 15. The Applicant says s.85 of the GSE Act is an indication that no part of the GSE Act is intended to impliedly repeal the IR Act, as opposed to explicitly displace it (at [38]). 16. In this regard: a. This submission is consistent with the Court of Appeal's decision in Eaton, but this was directly rejected by the High Court at [88]-[91]: The Court of Appeal's interpretation of s 218(2) assumes that it operates so that unless expressly provided by the Police Act, the IR Act is to apply. The terms of s 218(2), and the omission of such words, do not readily lend themselves to this construction. Even if one were to proceed from that assumption, the general provision of s 218 would yield to what is implied by s 80(3) of the Police Act. It was pointed out in Rose v Hvric that the word "expressly" only emphasises the generality of such a provision. It makes clear that no case is outside the provision unless that is the necessary result of the operation of another enactment according to the intention that it manifests. It follows that an implication of inconsistency with the general provision will suffice to oust its application. Such an implication arises where the other provision concerned can be seen to mean more than it actually says; it may be contrasted with an inference. The provisions of Pt 9 of the Police Act provide an example of inconsistency with provisions of the IR Act relating to unfair dismissal. The level of inconsistency is such that s 218(1) does not operate in its terms. Section 80(3) is impliedly inconsistent with s 218. It conveys more than that the Commissioner may dismiss without giving reasons. It implies an unfettered power and therefore that the decision is not to be subjected to a review on the merits. That implication is supported by other aspects of the construction of the Police Act, to which reference has been made. 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. 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. [Footnotes omitted, emphasis added]. Preservation under s.58(8) 17. The Applicant says: a. the Commission's earlier construction of terms similar to s.58 are correct despite Eaton (at [35]-[37]); and b. s.58 is troublesome and poorly drafted (at [40]); and c. s.58(7) does not expressly displace the victimisation provisions of the IR Act (at [46]); and d. where the GSE Act intends to displace jurisdiction conferred under the IR Act it does so directly (at [50]). 18. In this regard: a. It is literally correct to note that s.58 does not refer to victimisation provisions of the IR Act and therefore does not expressly displace them; b. for the reasons already canvassed above and in the Respondent's first submissions (at [60]-[61]), the reasoning in Eaton is clear that provisions such as s.218 of the Police Act and s.85 of the GSE Act do not have the effect of excluding any impliedly repeal of the older Act. That is, the High Court was clear in saying that it is wrong to assume that s.218 operates "so that unless expressly provided by the Police Act, the IR Act is to apply"; and c. Boland J's decision in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Director of Public Employment [2011] NSWIRComm 152, including the conclusion quoted in the Applicant's submissions at [35] that "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" must also be wrong. Error in 58(8) 19. The Applicant says: a. s.58(8) is problematic (at [52]); and b. s.58(8)(b) is incoherent if read literally (at [54]); c. s.58(8) must be given sensible and effective operation (at [54]); but also d. s.58(8) operates to preserve the operation of s.213 for senior executives (at [52]); and e. the reference to "another employee in s.58(8) is "clearly an error" (at [55]), thus it should read to permit a senior executive to bring proceedings under the victimisation provisions because "to do otherwise would deprive the provision of useful operation" (at [55]). 20. In this regard: a. The Applicant's submissions are perhaps heartened by the High Court's finding in Eaton that parts of s.218 were erroneous; b. s.58(8) has, however, useful operation without having its language twisted; c. s.58 has application to both senior executives and non-senior executives; d. s.58(6) refers to engagement as well as "the failure to engage" a person as a non-executive, which encompasses and excludes promotion appeals; e. s.58(8) has useful work to do next to s.58(6) in preserving discrimination and victimisation claims "in relation to the employment of another employee"; and f. the remedy available at s.213(2)(b) that "the employer ... promote or otherwise advance an employee in his or her employment" makes this abundantly clear. 21. The application must be dismissed.

Legislative history

It is beyond dispute that the New South Wales legislature has the power and authority to exclude dismissed Public Service senior executives from access remedies under section 213 of the Act, as it has expressly done so with respect to unfair dismissal remedies. Prior to amendments made in 1991 to the Industrial Arbitration Act 1940 ("the 1940 Act"), all individual dismissed employees were effectively excluded from seeking an unfair dismissal remedy. Such applications were only able to be made by unions and, not unexpectedly, unions tended to make such applications exclusively on behalf of union members.
There were no protections against victimisation of non-union members who, with the exception of conscientious objectors, were positively discriminated against in other ways (see sections 20A, 91ZA-91ZN (unfair dismissals); 20(1)(g), 129B (preference to union members) of the 1940 Act). Times have changed, but it remains within the power of government to determine which classes of employee will be afforded the various protections contained within its industrial relations legislation and which classes will not.
In order to determine whether the current legislative scheme excludes dismissed senior executives, such as the applicant in this matter, from seeking orders for reinstatement or re-employment and/or compensation, it is useful to track the recent history of the relevant legislative provisions.
The following provisions were contained in the Public Sector Management Act 1988 ("the PSM Act 1988"): 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 Arbitration Act 1940. (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. 42J Industrial arbitration or legal proceedings excluded (1) In this section, a reference to the employment of an executive officer is a reference to: (a) the appointment of, or failure to appoint, a person to a vacant executive position, or (b) the removal, retirement, termination of employment or other cessation of office of an executive officer, or (c) any disciplinary proceedings or disciplinary action taken against an executive officer, or (d) the remuneration or conditions of employment of an executive officer. (2) The employment of an executive officer, 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. (3) Subsection (2) applies whether or not any person has been appointed to a vacant executive position. ……………………………. (6) An appeal does not lie to the Government and Related Employees Appeal Tribunal in relation to the employment of an executive officer. (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 the appointment of 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. ………………………………. 42Q Removal of executive officers from office (1) The Governor may remove an executive officer from an executive position at any time. ………………………………. 95 Certain other Acts not to be affected (1) The Superannuation Act 1916, the Industrial Relations Act 1996, the State Public Service Superannuation Act 1985, the State Authorities Superannuation Act 1987 and the First State Superannuation Act 1992 are not affected by anything in this Act. (2) Subsection (1) does not limit section 27 or 42J.
Thus, it may be seen that, under the PSM Act 1988, an executive officer could be removed from office "at any time" and such removal, or termination of employment, was not an "industrial matter" for the purposes of the Act. The privative provision in subsection 42J(7) was restricted to "the appointment of 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". A similarly worded privative provision in subsection 27(3) was subject to the operation of the Government and Related Employees Appeal Tribunal Act 1980 ("the GREAT Act") which had no application to the appointment of executive officers, given that the salary limit on positions which could be the subject of a promotion appeal under that statute was the maximum clerk grade 12 rate (subsection 21(1)(d)).
The PSM Act 1988 was superseded by the Public Sector Employment and Management 2002 ("the PSEM Act 2002") which was assented to on 3 July 2002.
The PSEM Act 2002 contained the following provisions: 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 the Government and Related Employees Tribunal Act 1980. 72 Industrial arbitration or legal proceedings excluded (1988 Act, s 42J) (1) In this section, a reference to the employment of an executive officer is a reference to: (a) the appointment of, or failure to appoint, a person to a vacant executive position, or (b) the removal, retirement, termination of employment or other cessation of office of an executive officer, or (c) any disciplinary proceedings or disciplinary action taken against an executive officer, or (d) the remuneration or conditions of employment of an executive officer. (2) The employment of an executive officer, 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. (3) Subsection (2) applies whether or not any person has been appointed to a vacant executive position. (4) Part 6 (Unfair dismissals) and Part 9 (Unfair contracts) of Chapter 2 of the Industrial Relations Act 1996 do not apply to or in respect of the employment of an executive officer. (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 officers. ……………………………. (8) 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 an executive position, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment. 77 Removal of executive officers from office (1988 Act, ss 42Q, 100D) (1) The employer of an executive officer may remove the executive officer from an executive position at any time for any or no reason and without notice. ……………………………….. 160 Certain other Acts not to be affected (1988 Act, s 95) (1) This Act does not affect the operation of the following Acts: (a) the Industrial Relations Act 1996, (b) the Superannuation Act 1916 or any other superannuation legislation that applies to employees to whom this Act applies. (2) Subsection (1) does not limit the operation of section 22, 35, 72 or 103A.
Relevant changes from the terms of the PSM Act 1988 to those of the PSEM Act 2002 included that the words "for any or no reason and without notice" were added to the removal of executive officers power in subsection 77(1). In addition, subsection 72(4) was added which expressly excluded executive officers from seeking a remedy under the unfair dismissal provisions or the unfair contract provisions of the Act in relation to their "employment" which was defined to include termination of employment. This subsection was amended in 2010 to expressly exclude executive officers from the then newly enacted public sector promotions and disciplinary appeals provisions of Part 7, Chapter 2 of the Act. The privative provision in subsection 72(8) remained restricted to "the appointment of 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".
In 2010 the GREAT Act was repealed and the jurisdiction of the Tribunal transferred to this Commission by the insertion of Chapter 2, Part 7 - Public sector promotion and disciplinary appeals, into the Act. However, as stated above, these appeal provisions were not available to executive officers. Subsection 22(4) of the PSEM Act 2002 was amended and subsection 22(5) was added to read as follows: (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.
Subsection 22(5) is a curious provision which, on its face, preserved the right of a member of staff of a Department, including, presumably, an executive officer, to institute proceedings in relation to the appointment of another member of staff of any Department to a position in the Public Service, under Part 9 of the Anti-Discrimination Act 1977 in relation to a complaint under that Part, or under section 213 of the Act to enforce the provisions of section 210 (Freedom from victimisation) of that Act.
The Explanatory Note which accompanied the introduction into Parliament of the Public Sector Employment and Management Amendment Bill 2010 contained the following: Overview of Bill The object of this Bill is to amend the Public Sector Employment and Management Act 2002: ……………………………. (b) to provide that the existing prohibition on bringing proceedings in relation to Public Service appointments does not prevent proceedings from being brought in relation to an appointment based on discrimination or victimisation grounds. …………………………….. Section 22 of the Act currently prevents any legal proceedings (other than promotion and disciplinary appeals under the Industrial Relations Act 1996) from being brought in relation to appointments to positions in the Public Service. Schedule 1 [4] provides that this prohibition on bringing proceedings does not prevent a public servant from bringing proceedings under Part 9 of the Anti-Discrimination Act 1977 (which relates to discrimination complaints), or under the provisions of the Industrial Relations Act 1996 relating to freedom from victimisation, in relation to the appointment of another public servant to a position in the Public Service. Schedule 1 [6] makes it clear that the proposed amendment only applies in relation to future appointments.
It appears that, following the enactment of subsection 22(5) of the PSEM Act 2002, a public servant who was overlooked for a promotion in favour of another public servant for one or more of the reasons referred to in section 210 of the Act, would not be prohibited from applying for an order or orders under section 213. However, given its wording and location in the statute, it would not appear that subsection 22(5) of the PSEM Act 2002 had any work to do in relation to the removal from office or termination of employment of a member of staff of a Department as a consequence of being victimised for any of the reasons referred to in section 210 of the Act.
Paragraph 45 of the applicant's submissions is set out at [28] above and is repeated in part below: 45. The situation up to the 2002 Act was, then, that the employment of an executive was not an industrial matter and executives were specifically excluded from unfair dismissal, promotion and disciplinary appeals and unfair contract provisions of the IR Act but not victimisation proceedings.
However, to the extent that executive officers had a statutory right to bring "victimisation proceedings", it appears from the wording of subsection 22(5) of the PSEM Act 2002 that the right to bring such proceedings was limited to proceedings in relation to the appointment of another member of staff of any Department to a position in the Public Service and not proceedings in relation to dismissal or removal from office.

The effect of subsection 41(1) of the GSE Act

Subsection 41(1) of the GSE Act is set out at [6] above. The relevant wording has changed from that in subsection 77(1) of the PSEM Act 2002, which was "may remove the executive officer from an executive position at any time for any or no reason and without notice", to "may terminate the employment of the executive at any time, for any or no stated reason and without notice". Both of these provisions represent a significant strengthening of the power to remove an executive officer from that previously contained in subsection 42Q(1) of the PSM Act 1998 where the wording used was "may remove an executive officer from an executive position at any time".
In Jarratt v Commissioner of Police ([2005] 224 CLR 44) the High Court considered the removal of a Deputy Commissioner pursuant to subsection 51(1) of the Police Service Act 1990 which was in the following terms: 51 Removal of executive officers from office (1) An executive officer may be removed from office at any time: (a) by the Governor on the recommendation of the Commissioner, in the case of a Deputy Commissioner or Assistant Commissioner, or (b) by the Commissioner, in any other case.
The High Court found that the power to remove a police executive officer "at any time" did not displace the presumption of procedural fairness or confer an unfettered right to terminate. Gleeson CJ stated (at [24]-[26]): 24. Section 51 of the Act confers upon public officials (the Governor, acting on the recommendation of the Commissioner submitted with the consent of the Minister) a power to remove the applicant from public office, and thereby prejudice the applicant's rights and interests. In Annetts v McCann it was said that it can now be "taken as settled" that the rules of natural justice regulate the exercise of such a power "unless they are excluded by plain words of necessary intendment". 25. There are no plain words of necessary intendment, in s 51 of the Act or elsewhere, that indicate that the power of removal conferred by s 51 may be exercised without giving a Deputy Commissioner a fair opportunity to be heard. What is involved is not removal in the exercise of monarchical prerogative. What is involved is a statutory power which requires certain procedures to be followed. It is conceivable that there may be cases of a valid exercise of the power for reasons, or on the basis of considerations, that are of such a nature that there would be nothing on which a Deputy Commissioner could realistically have anything to say. It is clear, however, that the power may also be exercised for reasons about which a Deputy Commissioner could have a good deal to say. The very breadth of the statutory power seems to me to be an argument for, rather than against, a conclusion that it was intended to be exercised fairly. So also is the consideration that, in practice, the power would normally be exercised for cause, even though such cause is not legally necessary. 26. Far from relying on plain words of necessary intendment to exclude the requirements of fairness in the exercise of the power conferred by s 51 of the Act, the respondents are driven to rely on an implication, founded upon the words "may be removed from office at any time", read in the context of the common law principle as to service of the Crown at pleasure. We are not here concerned with the monarch's "prerogative" power to dispense with the services of a subject at pleasure. We are concerned with a statutory scheme for the management of the Police Service and for the employment of its members, likely to have been intended to embody modern conceptions of public accountability. Where Parliament confers a statutory power to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, Parliament is taken to intend that the power be exercised fairly and in accordance with natural justice unless it makes the contrary intention plain. This principle of interpretation is an acknowledgment by the courts of Parliament's assumed respect for justice.
In the litigation which preceded the High Court judgement in Jarratt, Simpson J of the Supreme Court of New South Wales had, on 5 July 2002, made declarations to the effect that the removal from office of Mr Jarratt was invalid (Jarratt v Commissioner of Police for NSW & Anor (2002) 56 NSWLR 72). Her Honour stated: 27 Counsel for both sides trained their sights essentially on single provisions of the Act. Counsel for the defendants "unashamedly" (the word chosen by senior counsel) focused upon the words "at any time" in s 51(1). It is worth repeating the relevant parts of that sub-section. Relevantly, it reads: "(1) An executive officer may be removed from office at any time: (a) by the Governor on the recommendation of the Commissioner, in the case of a Deputy Commissioner ..." (emphasis added). 28 The words "at any time", counsel for the defendants argued, effectively reproduced the notion of employment of Crown employees "at the pleasure of the Crown", with all that that historically entailed, including the right to terminate in denial of natural justice. They accepted that they were casting a heavy burden upon three words which have only a temporal meaning and which, in ordinary language, do not convey any notion such as "without explanation", "without reason (good, bad or indifferent)", "capriciously", or "mala fides". 29 I am unable to accept that these three words, with their limited meaning, can be so read as to exclude what would (absent clear words to the contrary) otherwise be implied: that is, that, before employment (or an appointment) is to be terminated, procedural fairness should be afforded.
Her Honour's judgement was overturned by the Court of Appeal in Commissioner of Police (NSW) v Jarratt ((2003) 59 NSWLR 87). That judgement was subsequently overturned by the High Court. However, it is worth noting that, shortly after the judgement of Simpson J was delivered, subsection 51(1) of the Police Act was amended by the addition, after the words "at any time", of the phrase "for any or no reason and without notice", which closely reflects the wording of subsection 41(1) of the GSE Act pursuant to which the employment of the applicant in this matter was terminated. It was also at the time of the Jarratt litigation that the PSEM Act 2002 was enacted with subsection 77(1) adding the phrase "for any or no reason and without notice" to the words "at any time", which had appeared on their own in the previous provision, subsection 42Q(1) of the repealed PSM Act 1988. It is difficult to discern any other purpose for these changes in the legislation other than to give effect to the legislature's intention to quarantine the removal of executive officers from the Police Force, or from the Public Service, from review in this Commission or elsewhere.
In Eaton the High Court considered subsection 80(3) of the Police Act which stated: (3) The Commissioner may dismiss any such probationary police officer from the NSW Police Force at any time and without giving any reason.
In that case, a dismissed probationary police officer had lodged an unfair dismissal application pursuant to section 84 of the Act. Heydon J stated: 7. Sections 83 and 84(1) of the IR Act are in Ch 2 Pt 6. Section 83 provides that Pt 6 applies to the dismissal of any public sector employee. The Dictionary of the IR Act provides that "public sector employee" includes a member of the NSW Police Force. A probationary constable is a member of the NSW Police Force. Hence, if ss 83 and 84(1) of the IR Act are read in isolation, dismissed probationary constables would have a right to apply to the Commission for a claim that the dismissal was harsh, unreasonable or unjust to be dealt with under Ch 2 Pt 6 of the IR Act. But does the broad power which s 80(3) of the Police Act affords the Commissioner to dismiss probationary police officers like the first respondent mandate a different conclusion? The procedural background 8. The first respondent's claim was upheld by the Commission. On appeal by the Commissioner, a Full Bench of the Commission (Walton VP, Marks and Kavanagh JJ) found that the Commission lacked jurisdiction. The first respondent sought judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW). The Court of Appeal quashed the decision and orders of the Full Bench and remitted the matter. The Full Bench then dismissed the Commissioner's appeal. The Commissioner appeals by special leave to this Court. The outcome 9. The appeal turns on two main issues. One is the interaction between s 80(3) of the Police Act and Ch 2 Pt 6 of the IR Act. The other is the effect of s 218 of the Police Act. 10. The Commissioner's appeal should be allowed. There is no jurisdiction in the Commission under s 84(1) of the IR Act to hear applications by persons dismissed under s 80(3) of the Police Act. That is so for the following four reasons. The terms of s 80(3) 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. 14. 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.
His Honour then went on to consider the nature of probationary employment and continued as follows: 18. 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. 18. The first respondent also submitted that the power conferred by s 80(3) of the Police Act was similar to the power of dismissal held by employers at common law. That is not so either. At common law, depending on the terms of the contract of employment, there is a duty to give notice or pay damages in lieu. Remedies under s 89 of the IR Act 19. A second reason for concluding that a dismissal under s 80(3) of the Police Act does not permit the dismissed probationary constable to make an application under s 84(1) of the IR Act stems from the remedies available if a s 84(1) claim is made out. Those remedies include an order for reinstatement under s 89(1) of the IR Act, for re-employment under s 89(2), for payment for lost remuneration under s 89(3), and for continuity of employment under s 89(4). As the Full Bench said, these remedies are "clearly inconsistent" with the Commissioner's powers under s 80(3). Section 80(3) "is clearly indicative of an authority that reposes in the Commissioner to dismiss a probationary police officer without interference of any kind". 20. For the two reasons given so far, it is necessary to reject the first respondent's submission that there is no inconsistency between s 80(3) of the Police Act and Ch 2 Pt 6 of the IR Act.
Heydon J also considered, as did the plurality (Crennan, Kiefel and Bell JJ), the anomalous situation that would prevail if dismissed probationary police officers had access to the unfair dismissal processes established under the Act, whereas confirmed officers were restricted to the less beneficial processes established under the Police Act. However, ultimately, the decision in Eaton turned upon the language used in subsection 80(3) of the Police Act. The plurality stated: 73. The starting point is the terms of s 80(3) in the context of the status of a probationary constable and the responsibilities vested in the Commissioner. A probationary constable is seeking to achieve confirmation. During this period, the probationary constable's conduct is monitored and subject to report, so that the Commissioner may determine whether the person is suitable for the role of a police officer within the NSW Police Force. The position of a probationary constable may be contrasted with that of a police officer who has achieved confirmation and whose history in the Police Force may need to be taken into account by way of review of a dismissal. 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.
I note that the GSE Act, with the term "no stated reason" in subclause 41(1) was enacted not long after the High Court handed down its judgement in Eaton in which consideration was given to the effect of the phrase "without giving any reason" in subclause 80(3) of the Police Act. As noted above, Heydon J formed the opinion that "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".
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.
I accept these submissions and conclusions as correct for the reasons stated therein. It follows that I reject the submissions of the applicant at paragraphs 27-30 and 33 (at [28] above).
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".
The Full Bench in Custovic v New South Wales (Department of Family and Community Services - Housing NSW) ([2014] 247 IR 414) said (at [132]): The respondent's fourth indicator was the generality of s 84 of the IR Act and the specific nature of s 30 of the PSEM Act. However, we fail to see where any inconsistency arises between s 30 and s 84. A departmental head may dispense with the services of a temporary employee at any time, but to dispense with services is a dismissal within the meaning of Pt 6 of Ch 2 of the IR Act and the phrase "at any time", for the reasons we have explained, is not exclusionary of the Commission's powers under Pt 6 of Ch 2. 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.
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.
If section 41 of the GSE Act had been specifically mentioned in the second sentence of subsection 85(1) of that Act (see [9] above), there could be no dispute that the orders sought by the applicant are beyond the Commission's power to make. However, it does not follow that the converse proposition, being that the absence of any reference to section 41 in subsection 85(1) of the GSE Act, renders the orders sought within the Commission's power, is correct.
It follows that I disagree with the statement of Boland J in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Director of Public Employment ([2011] NSWIRComm 152 at [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.
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
As is expanded upon below, the reference to section 58 of the GSE Act in subsection 85(1) of that Act renders any separate reference to section 41 entirely unnecessary.

Section 58 of the GSE Act - express displacement

On the face of the wording of subsection 58(7) of the GSE Act, set out at [8] above, and in particular the words "or for any other relief", renders the relief being sought by the applicant in relation to the termination of his employment, beyond the power of this Commission to grant. The applicant's submissions attempted to read down these words to mean "relief" given only in judicial proceedings. Reliance was placed on an obiter statement of Kirby P in Sydney City Council v Reid ([1994] 34 NSWLR 506). In that matter the Court of Appeal was considering the effect of subsection 340(5) of the Local Government Act 1993 which was in the following 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.
The introductory words of this provision are identical to the introductory words of subsection 58(7) of the GSE Act.
Kirby P stated as follows (at 511-512): 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.
Meagher JA expressed no opinion on this issue and, ultimately, it was not necessary for it to be determined as it was held that Mr Reid had no right of appeal to the Tribunal on other grounds. However, Powell JA had this to say (at 521): I have read, in draft, the judgment which has been prepared by Kirby P. I agree with his Honour's conclusion that an employee of a local council is not to be regarded as being a person in the service of the Crown, and with his reasons for so concluding. 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.
Section 27 of the PSM Act 1988, which dealt with appointments to the Public Service, is set out at [33] above. Subsection 27(3) was a privative provision couched in similar language as that used in subsection 58(7) of the GSE Act (see [8] above) and subsection 340(5) of the Local Government Act. Subsection 27(4) of the PSM Act 1988 provided that subsection 27(3) did not affect the operation of the GREAT Act. A similar privative provision, with an exclusion in favour of Part 7 of Chapter 2 of the Act, was contained in subsections 22(3) and 22(4) of the PSEM Act 2002 (see [36] above). Such exclusionary provisions would have been entirely unnecessary if the "any other relief" referred to in the privative provisions of the respective statutes was, as Kirby P opined, confined to relief given in judicial proceedings.
With the enactment of the GSE Act in 2013, promotion appeals in the Public Service were abolished and Chapter 2, Part 7, Division 2, sections 93-96 of the Act, which dealt with promotion appeals, were repealed. As a consequence, there was no need to replicate subsection 27(4) of the PSM Act 1988 or subsection 22(4) of the PSEM Act 2002 in the GSE Act.
I adopt the comment of Powell JA and say that it would be "decidedly odd" if a dismissed Public Service senior executive was prevented from seeking any form of relief in a court, regardless of the reason, or lack thereof, for the dismissal, but was able to bring proceedings in this Commission on the basis that the dismissal was in breach of section 210 of the Act.
In support of its submission that the words "any other relief" in subsection 58(7) of the GSE Act should be construed as relating only to relief given in judicial proceedings, at paragraphs 50-51 of the applicant's submissions it is stated that, where the GSE Act intends to exclude jurisdiction conferred by the Act, it says so expressly [see 28 above]. Reference is made to subsections (3), (4) and (5) of section 58. This submission ignores the legislative history.
Subsection 58(3) of the GSE Act declares that the employment of an executive employee, or any matter, question or dispute relating to such employment, is not an industrial matter for the purposes of the Act. The predecessor provisions couched in virtually identical language were subsection 42J(2) of the PSM Act 1988 and subsection 72(2) of the PSEM Act 2002.
The predecessor provision to subsection 58(4) was subsection 72(4) of the PSEM Act 2002. These provisions deny an executive employee access to the unfair dismissal, public sector disciplinary appeal and unfair contract provisions of the Act. There was no predecessor provision to subsection 58(5) of the GSE Act.
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.
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.
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).
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".
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.
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.

Orders

I make the following orders: (1) The application by Stuart Davie for orders under section 213 of the Industrial Relations Act 1996 is dismissed on the basis that the Commission does not have jurisdiction to make such orders. (2) These proceedings are terminated. John Murphy Commissioner

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: 20 February 2019

Police Regulation Act 1958(Vic)

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Judgment (12 paragraphs)

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