Jennifer Shand v Secretary of the Department of Transport

Industrial Relations Commission (NSW)|2018-08-27

J Zeng, Department of Transport (Respondent) File Number(s): 2018/104683

Background

On 4 April 2018 Jennifer Shand ("the applicant") filed with the Commission an application for relief from victimisation ("Application") pursuant to s 213 of the Industrial Relations Act 1996 (NSW) ("the Act"), against her former employer, the Department of Transport ("the respondent").
The relevant facts of the matter may be summarised as follows: 1. The applicant was employed by the respondent as Principal Manager of Community Engagement for Transport for NSW. 2. In late December 2017 the applicant received a summons from the Office of the Sheriff requiring her to attend for jury duty on 16 February 2018, in respect of a trial with an estimated length of 37 weeks. She notified her manager of the summons. 3. On 16 February 2018 the applicant attended for jury duty as requested. She was directed to attend again for jury selection on 26 February 2018, for a trial estimated to run for 18 weeks. Once again, she notified her manager of these developments. 4. On 26 February 2018 the applicant attended for jury duty. She was selected as a juror and sworn in. The trial was to commence on 28 February 2018. The applicant again notified her manager of these events. 5. On 27 February 2018 the applicant was informed by the respondent that her role was to be made redundant and her employment terminated at some (unspecified) time in the future. The respondent contends that the decision to declare the applicant's role redundant was made in October or November 2017, and the meeting on 27 February 2018 was called to convey that decision to her. 6. The applicant's employment with the respondent was terminated on and with effect from 12 March 2018.

Preliminary legal issues

It is common ground that the Application was filed after the expiry of the time limit mandated by s 213(3) of the Act, although the extent of the delay is in dispute. In any event, the applicant has requested that the Commission exercise its discretion under s 213(4) to accept the Application out of time ("Out of Time Application"). The respondent opposes the Out of Time Application.
On 19 June 2018 the respondent filed a notice of motion ("Motion") seeking an order from the Commission dismissing the Application on the following grounds: 1. the Commission lacks jurisdiction to hear and determine the Application under s 210(1) of the Act; and 2. the Application discloses no reasonable cause of action or is otherwise an abuse of process of the Commission, within the meaning of rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).
The Motion contains the following grounds and reasons: 1. there is no action capable of constituting victimisation within s 210(1) of the Act because jury duty is not a relevant "public or political activity" within the meaning of s 210(1)(h); and 2. the applicant has suffered no relevant detriment caused by the respondent.

Evidence and submissions

In respect of the Out of Time Application I have received and considered: 1. a statement by the applicant dated 8 June 2018; 2. a statement by Petrine Costigan dated 7 June 2018; 3. submissions filed for the applicant dated 12 June 2018; 4. an outline of submissions filed for the respondent dated 29 June 2018; and 5. an outline of submissions in reply filed for the applicant dated 17 July 2018.
In respect of the Motion I have received and considered: 1. an affidavit sworn by Brett Kiernan on 19 June 2018; 2. an outline of submissions filed for the respondent and dated 19 June 2018; 3. an outline of submissions filed for the applicant and dated 10 July 2018; and 4. an outline of submissions in reply filed for the respondent and dated 23 July 2018.
There is an overlap in the submissions and evidence that need to be considered in respect of the Motion and the Out of Time Application. As a consequence, at the hearing on 27 August 2018 I proposed that in determining each of those matters I would take into consideration the totality of the evidence and submissions relied upon by the parties. There was no objection taken by the parties to this course of action.

Principles to apply on a strike out motion

The classic formulation of the approach to take to the summary dismissal of proceedings is contained in the following extract from the decision of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 124 at [8] and [9]: The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subject, to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to Order 26, r. 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance".
In Unuafe v Commissioner of Police [2015] NSWIRComm 1007 Newall C succinctly stated the principles as follows at [7] to [11]: Pursuant to Part 14 r 28 of the Uniform Civil Procedure Rules, the Commission may order that a proceeding be struck out if the pleadings disclose no reasonable cause of action. It was common ground that the approach enunciated in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 must be satisfied for the respondent's strike out application to be successful. That is, the Commission would have to form the view that no relevant order could be made in the circumstances of the case, that there is "no possibility that there can be a good cause of action", in order to grant the respondent's motion. I accept that, and add that I proceed on the basis that the applicant will only be deprived of the opportunity to conduct his case in the usual way 'in the clearest of cases': Agar v Hyde [2000] HCA 41; 201 CLR 552 at 575. If, of course, the Commission were to be satisfied that it had no jurisdiction to grant the application, that would be sufficient to meet the test for summary disposal of the matter. A lack of jurisdiction necessarily means that there is no basis in law to grant the application made, and summary disposition is appropriate in circumstances where there is no basis in law to grant the relief sought: Hopkins v Governor-General of Australia [2013] NSWSC 1068 at [73] - [75]; Hitchcock v Pratt [2010] NSWSC 1508; 79 NSWLR 687 at [48]. That is unsurprising, as if there is no basis in law to grant an application, necessarily there is no possibility that there can be a good cause of action. Whether or not the Commission has jurisdiction in a particular matter is a conclusion which is to be formed at the ordinary level of persuasion, not at any heightened level of certainty.

Submissions - Is jury duty a "public or political activity" for the purposes of s 210(1)(h) of the Act?

The respondent contends that there is no action capable of constituting victimisation within s 210(1) of the Act because jury duty is not a relevant "public or political activity" within the meaning of s 210(1)(h). Its submissions may be summarised as follows: 1. s 210(1)(h) is directed at "activities", not duties. The other grounds of protection under s 210(1) generally involve an employee or prospective employee engaging in conduct of their own volition. Jury duty is compulsory in nature and obligatory; 2. jury duty, by its nature, falls into the caveat contained in parenthesis in s 210(1)(h), namely "unless it interferes with the performance of the employee's duties"; 3. s 210(1)(h) has to be considered in light of the context in which it appears. It is contained in Chapter 5 of the Act which is titled "Industrial Organisations", under Part 1 which is entitled "Principles of Association". Jury duty has no relevant connection with the principles of freedom of association with which the Part is concerned; 4. the grounds set out in s 210(1)(i) to (ic) inclusive do not relate to industrial matters but rather to the making of reports of breaches of other laws. That jury duty is not included in these paragraphs further supports the conclusion that on a proper interpretation s 210(1)(h) is not intended to extend to jury duty; and 5. separate provision is made under the criminal law to address the specific circumstance of an employer engaging in detrimental actions towards employees summoned for jury duty, in s 69 of the Jury Act 1977 (NSW) ("Jury Act"). This is the appropriate avenue through which to pursue any victimising action by the respondent, not s 210(1)(h) of the Act. Further in this regard, it would be inappropriate to pay or award compensation in civil proceedings given the serious nature of the allegations and the associated criminal sanctions.
The applicant's submissions may be summarised as follows: 1. a "public activity" is to be contrasted with a private activity; 2. it is preferable to refer to refer to the obligation as "jury service" as opposed to "jury duty"; 3. jury service is both "public" and an "activity"; 4. s 210 of the Act is a beneficial provision. The rules governing the construction of the beneficial legislation are more liberal than the traditional canons of construction at common law. The true meaning of a term should not be strained or exceeded, but it should be construed so as to give the fullest relief which the fair reasoning of the language will allow. The approach to the interpretation of remedial or beneficial legislation should be "restrained within the confines of the actual language employed and what is fairly open on the words used". Such provisions should be construed by the Commission beneficially and in light of the purpose of these parts of the Act; 5. in relation to the respondent's submissions summarised at [12(2)] above, this would be a question of evidence. Further, such an assertion ignores patterns of work outside of 9 to 5, Monday to Friday. Further, such a narrow reading of the clause would mean that no protection at all would be provided to public or political activities that occurred in work time; 6. the respondent's submissions summarised at [12(3)] above ignore s 210(1)(d), (e), (f), (g), (ia), (ib), (ic), (j) and (k) of the Act which clearly have nothing to do with "industrial organisations"; and 7. in relation to the respondent's submissions summarised at [12(5)] above, the criminal provisions in the Jury Act are dependent on the finding of an offence and on proceedings being commenced by a third party, not the individual impacted by the employer's conduct.

Consideration

As the terms of s 210(1) of the Act will become relevant it is useful to reproduce the provision in its entirety, as follows: 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.
At the outset I acknowledge the distinction made by the parties between "jury duty" and "jury service". That distinction was at the heart of the submissions as to whether the obligatory nature of jury duty suggested that it should not fall within s 210(1)(h). I have considered the submissions but in the context of this case and in light of the conclusions I reach below I do not find the distinction helpful. In using the term "jury duty" I should not be taken as having accepted one party's submissions over another's in this regard.
The task before the Commission is to ascertain the proper construction to be given to s 210(1)(h) in the circumstances of this case.
I have been unable to locate any authority that assists with the meaning of the term "public or political activity" as it is used in s 210(1)(h) of the Act, let alone any which deals with the application of the provision to jury duty. The parties were similarly unaware of any authorities which might assist.
The principles of statutory construction which are generally to be applied were helpfully summarised in Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56. French CJ and Hayne J outlined the relevant principles at [23] to [26]. I need not reproduce those passages in their entirety, but I note in particular their Honours' statements at [24] and [25] as follows: The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, "[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute" (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision "by reference to the language of the instrument viewed as a whole", and "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure…."[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have" (emphasis added). And as the plurality went on to say in Project Blue Sky: "Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." (Footnotes omitted)
Crennan and Bell JJ stated at [70]: Whilst consideration of extrinsic materials should not displace the clear meaning of the text of a provision, the purpose of a provision may be elucidated by appropriate reference to them. It has often been said that the clear meaning of the text of a statute or a statutory provision is the surest guide to the meaning of "the intention of the legislature", an expression used metaphorically. Nevertheless, it is uncontroversial that in determining the meaning of the text of a statute or provision a court may take into account the general purpose and policy of a provision and, in particular, the mischief that it is intended to remedy… (Footnotes omitted)
Keifel J stated at [88] and [89]: The fundamental object of statutory construction is to ascertain legislative intention, understood as the intention that the courts will impute to the legislature by a process of construction, by reference to the language of the statute viewed as a whole. The starting point for this process of construction is the words of the provision in question read in the context of the statute. Context is also spoken of in a broader sense as including the general purpose and policy of the legislation, in particular the mischief to which the statute is directed and which the legislature intended to remedy. It is legitimate to resort to materials outside the statute, but it is necessary to bear in mind the purpose of doing so and the process of construction to which it is directed. That purpose is, generally speaking, to identify the policy of the statute in order to better understand the language and intended operation of the statute. An understanding of legislative policy by these means does not provide a warrant for departing from the process of statutory construction and attributing a wider operation to a statute than its language and evident operation permit. (Footnotes omitted)
In Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14 the majority of the High Court stated at [57]: The criticism is misplaced. As was earlier observed, "adversely affect" is a protean expression capable of a number of meanings according to the context in which it appears. The technique of statutory construction is to choose from among the range of possible meanings the meaning which Parliament should be taken to have intended. Contrary to counsel's submission, there was and is nothing impermissible about looking to the context in which s 8(2) appears or seeking guidance from the objects of the ICAC Act as stated in s 2A. Rather, as Mason J stated in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd, it was and is essential to do so: "[T]o read the section in isolation from the enactment of which it forms a part is to offend against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation; Attorney-General v Prince Ernest Augustus of Hanover. Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise." (Footnotes omitted)
The immediate difficulty with the applicant's position is that it largely requires the term "public activity" to be construed literally and grammatically, and in almost complete isolation to its context.
The immediate context is the language of section 210(1)(h) itself. There are two features of the provision to observe: first, the use of the term "public or political activity"; and, second, the words in parenthesis in the section, namely "unless it interferes with the performance of the employee's duties".
On the first feature, the applicant's submissions largely concentrate on whether jury duty is a "public activity". This does not give proper effect to the words "or political". Notwithstanding the use of the disjunctive, the context in which s 210(1)(h) of the Act appears suggests that the word "political" informs the word "public". To put it another way, the term "public or political activity" should not be construed as equivalent to "public activity or political activity".
If this were not the case, then the logical extension of the applicant's argument is that any activity in which an employee publicly engages invokes the protection of the Act, subject to it not interfering with the performance of the employee's duties. On any analysis this cannot be an acceptable construction of the provision.
As to the second feature of the provision, the applicant's preferred construction of s 210(1)(h) once again fails to properly give effect to the words in parenthesis in the provision. The applicant's submissions on this point are not persuasive for three reasons.
Firstly, the applicant's submissions ignore the effect the words in parenthesis should have in the circumstances of this case. In paragraphs 28 to 31 of the statutory declaration which is attached to the applicant's statement the applicant outlines the arrangements she made and the work she undertook to ameliorate the impact which her absence on jury leave would have on the workplace. There is at least some evidence that in the applicant's case the jury duty would have interfered with the performance of her duties, although it is insufficient to form a decided view. In any event, the applicant's submissions do not address this, and to that extent her submissions are tantamount to asking the Commission to either ignore the evidence referred to or ignore the words in parenthesis, or both. The Commission cannot do so.
Secondly, it would seem to follow as a matter of logic from the applicant's submissions that not all employees required to attend for jury duty would be protected by s 210(1) of the Act. Any protection would depend on their particular circumstances and work patterns. That is, protection would only extend to employees if serving on a jury did not interfere with the performance of their duties. That the protection under the provision might extend to some but not all employees would be a surprising outcome, particularly in light of the applicant's extensive submissions regarding the scheme created by the Jury Act and the assertion that "serving on a duty [plays] a vital role in our democracy".
In any event, the approach that would have to be taken to the application of s 210(1)(h), if the applicant's submissions were accepted, would result in a selective, variable and uncertain level of protection. I do not accept that this can have been intended by parliament.
Thirdly, s 69A of the Jury Act is relevantly in these terms: 69A Other offences relating to employment conditions of jurors (1) An employer must not require an employee to use any leave to which the employee is entitled for the purpose of complying with a summons to serve as a juror. … (3) An employer must not require an employee: (a) to carry out any work on any day on which the employee is serving as a juror, or (b) to undertake any additional hours of work to compensate for work time lost by the employee while serving as a juror. (4) Subsection (3) does not prevent an employer from requiring an employee who is empanelled as a juror to carry out work during normal working hours on any day if the jury of which the employee is a member is not required to attend at the relevant court or coronial inquest on that day. …
These injunctions would interfere to some degree with the performance of duties of a majority of employees. I can envisage work patterns where they may have little or no effect, but for most employees the terms of s 69 will enliven the caveat contained in parenthesis in s 210(1)(h).
Having considered the immediate context of s 210(1)(h) it is also appropriate to have regard to the broader context in which it appears. As a starting point I will briefly outline a history of the provision.
The precursor to s 210 of the Act was s 481 of the Industrial Relations Act 1991 (NSW) ("1991 Act"). That section was in these terms: 481. Victimisation: offence (1) An employer, or an organisation, must not victimise a person because: (a) the person does not belong to an organisation of employees; or (b) the person has refused to engage in industrial action; or (c) the person is a member of an organisation of employees or is an officer or delegate of an organisation of employees or is otherwise an elected representative of employees; or (d) the person is a member of a Conciliation Committee; or (e) the person claims a benefit of an award or agreement to which the person is entitled; or (f) the person has informed any person that a breach or a suspected breach of an award or agreement has been committed by the employer; or (g) the person has appeared as a witness, or has given evidence in proceedings, relating to an industrial matter; or (h) the person has engaged in, or contemplates engaging in, any public or political activity (not being an activity that interferes with the performance of duties as an employee); or (i) the person, after applying for (and being unreasonably refused) leave without pay for the purpose, is absent from work through being engaged in duties as a member of an organisation of employees in respect of a matter affecting the industry in which the employee is working or in other duties as a member of a Conciliation Committee.
It will be seen that s 481(1)(h) of the 1991 Act is a close parallel to s 210(1)(h) of the Act. There was no equivalent provision in the Industrial Arbitration Act 1944 (NSW). The Explanatory Memorandum to the Industrial Relations Bill 1991 sheds no light on the reasons for the inclusion of s 481(1)(h).
Section 481(1)(h) appeared in Part 3 of the 1991 Act which was titled "Regulation of Industrial and Non-Industrial Organisations of Employees and Employers", under Division 5 which was titled "Voluntary unionism". That context, and the content of the other provisions in s 418(1), provides guidance as to the nature of the "public and private activities" intended to be protected by paragraph (h). Compulsory service on a jury pursuant to the Jury Act does not comfortably fit within that context.
Section 210(1)(h) was enacted in the form in which it currently appears with the making of the Act. The Explanatory Memorandum to the Industrial Relations Bill 1996 makes no mention of the provision.
Since 1996, s 210(1) has been subjected to several amendments, as follows: 1. paragraph (i) was inserted by the Protection of the Environment Operations Act 1997 (NSW); 2. paragraph (j) was originally inserted by the Occupational Health and Safety Act 2000 (NSW). The words as they currently appear were inserted by the Work Health & Safety Legislation Amendment Act 2011 (NSW); 3. paragraph (k) was inserted by the Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Act 2002 (NSW); 4. paragraph (ia) was originally inserted by the Rail Safety Act 2002 (NSW). It has twice been amended, by the Rail Safety Act 2008 (NSW) and by the Rail Safety (Adoption of National Law) Act 2012 (NSW); 5. paragraph (ib) was inserted by the Transport Legislation Amendment (Safety and Reliability) Act 2003 (NSW). The provision was amended to its current form by the Statute Law (Miscellaneous Provisions) Act (No. 2) 2012 (NSW); and 6. paragraph (ic) was inserted by the Dangerous Goods (Road and Rail Transport) Act 2008 (NSW).
In the circumstances of this case it is also worth noting s 69 of the Jury Act, which is relevantly in these terms: 69 Unlawful dismissal of or prejudice to employees summoned for jury service (1) An employer shall not dismiss a person in his or her employment or injure the person in his or her employment or alter his or her position to his or her prejudice by reason of the fact that the person is summoned to serve as a juror. (2) In proceedings for an offence under subsection (1), if all the facts constituting the offence other than the reason for the defendant's action are proved, the onus of proving that the dismissal, injury or alteration was not actuated by the reason alleged in the charge shall lie on the defendant. (3) Where an employer is convicted by a court of an offence under subsection (1), the court may order: (a) the employer to pay the employee a specified sum by way of reimbursement for the salary or wages lost by the employee, and (b) that the employee be reinstated in his or her old or a similar position. (4) An order under subsection (3) (a) shall operate as an order against the employer for the payment of money under the Civil Procedure Act 2005 and shall be enforceable as such an order under that Act. (5) An employer shall give effect to an order of the court under subsection (3) (b). (6) The amount of salary or wages that would have been payable to an employee in respect of any period that his or her employer fails to give effect to an order under subsection (3) (b) shall be recoverable, as a debt due to the employee by the employer, in any court of competent jurisdiction. (7) An employer shall not threaten a person employed by the employer with: (a) dismissal, or (b) injury in his or her employment, or (c) alteration of his or her position to his or her prejudice, by reason of the fact that the person is summoned to serve as a juror. (8) In proceedings for an offence under subsection (7), if all the facts constituting the offence other than the reason for the defendant's action are proved, the onus of proving that the threat was not actuated by the reason alleged in the charge lies on the defendant. (9) A person can be prosecuted for and convicted of offences under both subsections (1) and (7) in relation to the same circumstances. (10) In this section: employee means: …
Sections 69(1) to (6) of the Jury Act have in all material respects remained unchanged since they were enacted in 1977. Sections 69(7) to (10) were first introduced through the Courts Legislation Amendment Act 1998 (NSW). It is to my mind relevant for present purposes that not only did parliament initially see fit to build employment protections into the Jury Act, it expanded on those protections at a similar time when for other purposes protections were being built into s 210(1) of the Act.
I recognise, as the applicant submits, that s 210(1) of the Act has moved beyond what might strictly be regarded "principles of association". However, the changes made since 1996 have been specific and contained. It would be inappropriate to extrapolate from those changes a parliamentary intention to expand the scope of paragraph (h) (which has remained unchanged) in the manner advanced by the applicant.

Conclusions

It follows from this analysis, and based on the authorities referred to above, that giving the expression "public activity" a literal or grammatical interpretation so as to include jury duty would afford s 210(1)(h) of the Act a wider operation than parliament intended.
I find that jury duty is not an activity encompassed by the expression "public or political activity" for the purposes of s 210(1)(h) of the Act.
It follows that the Commission lacks jurisdiction to hear and determine the Application under s 210(1) of the Act. Consistent with General Steel Industries and Unuafe the lack of jurisdiction meets the test for summary disposal of the matter.
Having made these findings it is not necessary that I consider the other grounds set forth in the Motion. It is also not necessary for me to determine the Out of Time Application.

Orders

I make the following order: 1. The application for relief from victimisation pursuant to s 213 of the Industrial Relations Act 1996 (NSW) is dismissed. Damian Sloan 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: 21 September 2018

Courts Legislation Amendment Act 1998(NSW)

Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Act 2002(NSW)

Industrial Arbitration Act 1944(NSW)

Industrial Relations Act 1991(NSW)

Occupational Health and Safety Act 2000(NSW)

Environment Operations Act 1997(NSW)

Rail Safety Act 2002(NSW)

Rail Safety Act 2008(NSW)

Transport Legislation Amendment (Safety and Reliability) Act 2003(NSW)

Safety Legislation Amendment Act 2011(NSW)

At a glance

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Decision date

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Judgment (10 paragraphs)

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Legislation Cited (15)

Cases Cited (9)