Williams v Secretary, Department of Education

Industrial Relations Commission (NSW)|2022-02-03|Before: Bauer J

An order, pursuant to s 164A(1)(a) of the Industrial Relations Act 1996 prohibiting-

(i) The disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of or the doing of any other thing that identifies, or may lead to the identification of: a. [Student A] b. [Student B] c. [Student C] d. [Student D]

(ii) The disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of any other student or the doing of any other thing that identifies or may lead to the identification or any other student. (iii) The disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of the school, namely [School]. 2. An order pursuant to s 164A(1)(c) of the Industrial Relations Act 1996, that publication of evidence given before the Commission or matters contained in the documents lodged with the Commission or received in evidence by the Commission is restricted to the extent that it may lead to the identification of: a. [Student A] b. [Student B] c. [Student C] d. [Student D] e. Any other student

An order pursuant to subs 164A(1)(c) of the Industrial Relations Act 1996, that publication of evidence given before the Commission or matters contained in the documents lodged with the Commission or received in evidence by the Commission is restricted to the extent that it may lead to the identification of the school, namely [School]. 4. An order pursuant to subs 164A(1)(c) of the Industrial Relations Act 1996, that access to the Commission file in the matter of Vita Williams v Secretary, Department of Education (File no 2020/28137) is restricted such that the parties will be consulted by the Industrial Relations Registrar to determine whether there is any objection before any person (other than the parties) may be granted access.

decision

This matter involves the referral of a question of law to the Full Bench of the Commission pursuant to subs 193(1) of the Industrial Relations Act 1996 (NSW) (the IR Act). The substantive proceedings are an appeal by Ms Vita Bernadetta Williams (appellant) under s 98 of the IR Act against her dismissal by the Secretary, Department of Education (respondent). The question referred concerns the interaction between the provisions of the IR Act dealing with public sector disciplinary appeals and subs 47(2) the Child Protection (Working with Children) Act 2012 (NSW) (CPWWC Act). Specifically, the Full Bench is to consider the following question (referred question): Does s 47 of the Child Protection (Working with Children) Act 2012 (NSW) Act (the CPWWC Act) where the appellant; (i) is required to have a Working with Children Check to be employed under s 9 of the CPWWC Act; (ii) does not have a Working with Children Check; and (iii) was dismissed or directed to resign by the respondent, preclude the Commission from a. allowing the appeal of the decision to dismiss or direction to resign; and/or b. quashing the decision to terminate and remitting the matter back to the respondent with such directions (if any) as to which stage of the disciplinary process in relation to the matter may be recommenced by the respondent.
Prior to her dismissal on 2 September 2020, the appellant was a teacher, specialising in teaching students with disabilities. The appellant had been a teacher in the New South Wales (NSW) public education system for more than 35 years up until that time. The appellant held the position of Relieving Assistant Principal at a special education school (School) from 2009 and was appointed as Assistant Principal from 2013.
On 29 September 2020, the appellant filed an application appealing the decision to terminate her employment to the Commission pursuant to s 98 of the IR Act (application). The referred question arises out of her application.

Background

For the purposes of determining the referred question, the parties relied upon an Amended Agreed Statement of Facts filed on 28 January 2022 (Exhibit 1) (ASOF) which conveniently set out the background and relevant factual context of the matter: "Agreed Facts Disciplinary decision 3. Ms Vita Bernadetta Williams, the [applicant], was employed, at the [School] as a Relieving Assistant Principal from 2009 and as Assistant Principal at the [ School] from 2013. 4. Pursuant to s. 44 of the Teaching Service Act 1980 (NSW) (TS Act), the Applicant is a member of the 'teaching service' and as such is an employee of the Government of the State of New South Wales in Service of the Crown. 5. On 10 January 2019, a report was made to the Respondent's Employee Performance and Conduct Division (EPAC) (as it was then known) raising various allegations of misconduct at [School] by the Applicant. 6. On 24 January 2019, the Applicant was provided with a letter from the Respondent, dated 22 January 2019. The Respondent notified the Applicant that EPAC had commenced an investigation into the allegations against the Applicant and directed the Applicant to undertake non-teaching alternative duties at the Macquarie Park Education Office, Level 2, 75 Talavera Road, Macquarie Park, commencing 29 January 2019. The Respondent advised the Applicant that she would remain on alternative duties observing school hours and teaching conditions, pending the outcome of the Directorate's investigation or until further notice. The Appellant did not undertake non-teaching alternative duties as she commenced a period of leave and remained on leave during the investigation process. 7. On 2 September 2020, the Applicant was dismissed from employment as Assistant Principal at the [School], (Decision) based on the decision maker's assessment of the allegations having been substantiated and found to be misconduct. 8. The Decision was a disciplinary decision pursuant to s. 93B of the TS Act. 9. The Applicant's case is that she was denied procedural fairness, that the allegations of misconduct are without merit and that the Decision ought be quashed. Working with Children Check 10. At the conclusion of the investigation, Ms Jane Thorpe, Executive Director, EPAC and the decision maker, wrote to the Applicant confirming that she had determined that the nature of allegations 1 and 2 was such that she was required to notify the New South Wales Office of the Children's Guardian (OCG). 11. On 12 November 2020, the OCG wrote to the Respondent to request documents under s. 31 of the CPWWC Act. Those documents were provided on 12 February 2021. 12. On 22 March 2021, the OCG wrote to the Applicant indicating that as they had not received a response from the Applicant, the clearance application had been closed. Ms Williams has not applied for a Working with Children Check (WCC) clearance after this time. 13. The Applicant is not subject to an interim bar by the OCG. 14. On 27 April 2021, the New South Wales Education Standards Authority (NESA) wrote to the Applicant indicating they intended to suspend the Applicant's teaching accreditation on the basis that she no longer had a WCC. 15. By letter dated 11 May 2021, the Applicant's legal representatives wrote to NESA and provided a submission asking NESA to postpone its decision to suspend the Applicant's teaching accreditation and await the outcome of the proceedings in the IRC. 16. NESA subsequently made the decision to suspend the applicant's accreditation. 17. The Applicant does not have a WCC. 18. There are a number of categories of public sector employees where it is a requirement of employment that they have a WCC. These include (as specified by s. 6 of the CPWWC Act) employees who work in: a. child development; b. child protection; c. children's health services; d. clubs or other bodies providing services for children; e. disability services; f. early education and child care; g. education; h. entertainment for children; i. justice services; j. religious services; k. residential services; l. transport services for children; and m. other. 19. Without a WCC, the Applicant is currently unable to work in child-related work pursuant to ss. 8 and 9 of the CPWWC Act. 20. Without a WCC, the Applicant is unable to work in child related work pursuant to ss. 8 and 9 of the CPWWC Act. The Applicant's appeal and relief sought 21. The Applicant's case in the IRC is an appeal of the Decision pursuant to s. 98 of the IR Act. 22. On 29 September 2020, the Applicant filed a Notice of Appeal - Public Sector Discipline with the Industrial Relations Commission of New South Wales (Appeal Notice). 23. In the Appeal Notice, the Applicant sought the following relief: a. Pursuant to s.100D(b) of the IR Act, the Respondent pay the Applicant's remuneration that would have been received by the Applicant but for the decision from 1 September 2020. b. Pursuant to s. 100D(c) of the IR Act, the employment of the Applicant with the Respondent is deemed not to have been broken by the Decision of the Respondent. c. The Respondent withdraw its notification to the OCG on the basis that there was no credible reason to warrant notification at all. d. The Respondent remove the Applicant from the list of persons not to be employed by the Respondent. e. The Respondent apologise for its egregious treatment of Applicant. The Respondent pay the Applicant's costs of the appeal on an indemnity basis. 24. On 16 October 2020, the Respondent filed and served an Employer's Response to Notice of Appeal Public Sector Discipline (Appeal Response) refuting the Applicant's claim. 25. The Applicant disputed the Appeal Response and the parties continued to prepare for and advance their respective cases. Hearing before Commissioner Webster on 21 June 2021 26. The matter commenced for a two week hearing before Commissioner Webster on 21 June 2021. 27. During the Applicant's opening, Commissioner Webster brought the Applicant's attention to Commissioner Murphy's Decision in Douglas v Secretary, Department of Education [2021] NSWIRComm 1044 (Douglas). 28. The Applicant was not aware of Douglas, it having been handed down on the morning of Friday 18 June 2021, very shortly before the commencement of the two week hearing. 29. On 21 June 2021, the parties adjourned the matter by consent so that the Applicant could consider its position in light of Douglas. Prior to adjourning the matter Commissioner Webster observed: i. "…Well I'd be minded to grant it, given the decision was only just recently handed down and I have had actually, matters where I know the Department of Education has been wanting to pursue a matter where there has been an outstanding interim order in place by the OGC. I guess just one thing I just flag with the parties at this point is even if the parties do consent to the matter going ahead in terms of me dealing with the merits, I have a few reservations about hearing the matter, in terms of the resource intensity of having or hearing the matter in circumstances where it might be a futility in terms of what I'm able to do with it at the end…""
At the hearing of the matter, the parties agreed that rather than stating that the disciplinary decision was made pursuant to s 93B of the Teaching Service Act 1980 (NSW), par 8 of the ASOF should have reflected that the applicant was terminated pursuant to subs 93F(2).
There was no other evidence or facts relied upon for the purposes of determining the referred question.

Legislative provisions

The referred question requires consideration of the terms of the CPWWC Act, the public sector disciplinary appeals provisions contained in Pt 7 of the IR Act, the Teaching Service Act and the Teacher Accreditation Act 2004 (NSW).
Part 7 of the IR Act confers a statutory right upon NSW public servants, including the appellant, to appeal from certain disciplinary decisions, including the decision to terminate their employment, by way of application to the Commission.
With respect to this right, subs 98(1) provides: (1) Despite anything contained in any other Act, a public sector employee may, subject to and in accordance with this Part, appeal to the Commission against an appealable decision of his or her employer.
Section 100 of the IR Act states: 100 Appealable decisions may be carried into effect despite right of appeal (1) An appealable decision may be carried into effect whether or not an appeal may be (or has been) made against the decision under this Division. (2) However, if the decision appealed against is a decision of a kind referred to in section 97 (1) (d), (f) or (g), a permanent appointment is not to be made to the position held by the employee when the decision was made until - (a) the time for making an appeal against the decision has expired without an appeal having been made, or (b) if an appeal is made within that time - the appeal is determined or has lapsed.
Section 100C of the IR Act provides: 100C Decisions with respect to appeals (1) (Repealed) (2) The Commission, in relation to a disciplinary appeal, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. (3) Without limiting the generality of subsection (2), if in relation to a disciplinary appeal it appears to the Commission that the employer failed to comply with the rules of procedural fairness in making the decision appealed against, the Commission - (a) is not required to allow the appeal solely on that basis and may proceed to decide the appeal on its merits, or (b) may quash the decision and remit the matter back to the employer with such directions (if any) as to which stage of the disciplinary process in relation to the matter may be recommenced by the employer. (4) The decision of the Commission in respect of an appeal is, except as provided by section 197B, final and is to be given effect to by the employer against whose decision the appeal was brought.
Further, s 100D of the IR Act provides: 100D Orders by Commission with respect to payment of salary and continuity of employment (1) Without limiting section 100C, if the Commission decides to allow a disciplinary appeal, the Commission may - (a) if the employee has paid a fine imposed by the employer or his or her pay has been forfeited - order the employer to repay the amount of any such fine or forfeited pay, and (b) order the employer to pay the employee an amount stated in the order that does not exceed the remuneration the employee would, but for the decision of the employer, have received from the employer, and (c) order that any period of employment of the employee with the employer is taken not to have been broken by the decision of the employer. (2) Any such order by the Commission must be given effect to by the employer. (3) Nothing in subsection (1) enables the Commission to make an order for compensation in the case where a person is not reinstated or does not continue in employment.
The parties agree that the decision to dismiss the applicant is appealable and she has standing to pursue the appeal before the Commission. The current controversy is whether the applicant is denied her right to the relief in the context of her employment pursuant to Pt 7 of the IR Act, due to the operation of subs 47(2) of the CPWWC Act: see ss 91, 97(1)(f) and 98 of the IR Act.
Subsection 42(2) of the CPWWC Act provides that: "Nothing in this Act affects any statutory right that an employee may have in relation to employment or termination of employment." However, s 47 of the CPWWC Act provides: 47 Relationship with other Acts and laws (1) A prohibition on employment under this Act prevails to the extent of any inconsistency between it and any other Act or law. (2) The Industrial Relations Commission or any other court or tribunal does not have jurisdiction under any Act or law to order the re-instatement or re-employment of a person or worker contrary to a prohibition on employment imposed by this Act, or to order the payment of damages or compensation for any removal from employment of a person from employment prohibited under this Act.
Section 3 of the CPWWC Act sets out the objective of the legislation: 3 Object of Act The object of this Act is to protect children - (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances.
Section 4 of the CPWWC Act states: 4 Safety, welfare and well-being of children to be paramount consideration The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.
Subsection 6(1) of the CPWWC Act provides that a person is engaged in "child-related work" if the work performed is of the kind set out in subs 6(2) or declared by the regulations to be child-related work and "involves direct contact by the worker with a child or children and that contact is a usual part of and more than incidental to the work", or the person is engaged in a "child-related" role as listed in subs 6(3). Work in schools or other educational institutions (other than universities) is child-related work: subs 6(2)(g).
Section 8 of the CPWWC Act requires that a worker must not engage in child-related work unless the worker holds a "working with children check clearance" of a class applicable to the work or there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. A worker who breaches s 8 may be subject to a maximum penalty of 100 penalty units, or imprisonment for 2 years, or both.
Section 9 provides that an employer must not commence employing or continue to employ a worker in child-related work if the employer knows or has reasonable cause to believe that worker is not the holder of a "working with children check clearance" that authorises that work and there is no current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. A breach of s 9 is subject to a maximum penalty of 100 penalty units if a corporation or 50 penalty units in any other case.
Provision is made in Pt 3 of the CPWWC Act for applications for a working with children check clearance to be made to the Children's Guardian. Where an application for a working with children check clearance has been made, the Children's Guardian may issue an "interim bar" under subs 17(1) pending the determination of the application, being a bar on the person engaging in child-related work.
The Children's Guardian may conduct a risk assessment of an applicant for a clearance: s 15. Unless the applicant is a "disqualified person", the Children's Guardian must grant a clearance if the person is not subject to a risk assessment or, if subject to a risk assessment, unless satisfied that the person poses a risk to the safety of children: subss 18(2) and (3). The Children's Guardian is required to cancel a working with children check clearance if it becomes aware that the person is a "disqualified person" or it is satisfied that the person poses a risk to the safety of children: subs 23(1). Part 4 makes provision for reviews and appeals. A person who has been refused a working with children check clearance or whose clearance has been cancelled is able to apply to the New South Wales Civil and Administrative Tribunal for administrative review: subss 27(1) and (2).
The appellant was engaged by the respondent pursuant to the Teaching Service Act. Section 5A of the Teaching Service Act provides that the protection of children is to be the paramount consideration in taking any action with respect to an officer under that Act, and dealing with any appeal against, or determining any claim arising from or in relation to, that action.
Section 47 of the Teaching Service Act empowers the Secretary, Department of Education to appoint to the Teaching Service persons who are accredited under the Teacher Accreditation Act, or who have, in the opinion of the Secretary, the appropriate qualifications to be appointed to the Teaching Service. This power is subject to s 47A which provides, in general terms, for appointments to be made on merit. Section 51A regulates the transfer of officers to different positions within the Teaching Service.
Section 77 of the Teaching Service Act allows the Secretary to dismiss a teacher if a teacher's accreditation is revoked under the Teacher Accreditation Act or to suspend a teacher (with or without pay) where a teacher's accreditation is suspended under the Teacher Accreditation Act. The NSW Educational Standards Authority suspended the appellant's accreditation in 2021: ASOF at [16].
Section 93S of the Teaching Service Act provides that Pt 4B of that Act (ss 93R - 93ZB) has effect despite any other provision of that Act or the provisions of any other Act or law (including the IR Act).
Section 93T of the Teaching Service Act provides that a teacher who is or becomes an unauthorised person1 is, by operation of that section, dismissed from the Teaching Service.
Section 93L of the Teaching Service Act allows the Secretary to suspend a teacher without pay where the teacher is not the holder of a clearance and is eligible to apply but has not applied for a clearance.
Section 28 of the Teacher Accreditation Act provides that a person must not teach in a school unless the person is accredited. The maximum penalty for a breach of this section is 100 penalty units.

Parties' submissions

The parties filed submission in respect of the referred question concurrently. The respondent's initial submissions were dated 21 December 2021 and applicant's initial submissions dated 22 December 2021. In addition, the parties relied upon written submissions in reply, both dated 21 January 2022. The parties also appeared and addressed the Full Bench with respect to the referred question on 3 February 2022. At the conclusion of the hearing, the Full Bench reserved its decision.
On 10 February 2022, the respondent wrote to the Registrar seeking leave to rely upon a brief supplementary submission, which it attached to its letter. The applicant opposed the respondent's application for leave for the following reasons: "1 at no time did the respondent prior to, or during the hearing on 3 February 2022 (Hearing) advise the Full Bench (or give notice to the appellant) of an intention to file and serve supplementary submissions after the Hearing. Mr Britt of Counsel (who appeared for the respondent) submitted that the Hearing only necessitated half a day when a full day had been allocated. The Hearing commenced at 9.30 am and ended at approximately 12.35 pm; 2 at no time did the respondent notify the appellant about the supplementary submissions and the appellant was only made aware when it was sent to the Commission. The respondent had been in correspondence with the appellant and the Commission the day prior; 3 the appellant is entitled to expect that her appeal is now awaiting the Full Bench decision (as was indicated by the Full Bench). The supplementary submissions will cause a re-agitation of issues and result in further cost and delay to the appellant (who is an individual); 4 there was no order, nor had it been sought (by consent or otherwise), before the respondent sent the supplementary submissions to the Commission (electronically); 5 the respondent is a model litigant; and 6 should leave be granted, the appellant will be prejudiced for costs, delay and the application of the practice and procedure of the Commission."
The Full Bench reluctantly granted the respondent leave to rely upon the supplementary submissions, indicating that the Full Bench did not need to receive further submissions from the applicant on the issues raised in the respondent's supplementary submissions. The reasons for this will be made clear below.
The Commission was assisted by counsel's submissions in this matter. We have carefully considered the parties' submissions and referred to them as necessary below in answering the referred question.

Consideration

The referred question calls for an analysis of subs 47(2) of the CPWWC Act. The principles that apply to interpreting legislation have been well traversed. The process begins with a textual analysis of the words of the relevant provision being interpreted - that is, a consideration of the ordinary and grammatical meaning of the words of the text. However, that initial step may involve the construction of the words of a provision in question when read in the context of the statute as a whole: Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378 at [26] and [88].
The determination of the purpose of a statute or a particular statutory provision may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, if appropriate, reference to extrinsic materials. Section 35 of the Interpretation Act 1987 (NSW) authorises the use of extrinsic material, such as explanatory memoranda and second reading speeches, in circumstances where it is necessary to confirm that the meaning of the provision is the ordinary meaning conveyed by its text.
Ordinarily, the legal meaning of a particular provision in a statute will correspond with the grammatical meaning, but this is not always so: Certain Lloyd's Underwriters v Cross at [25]. The interpretation best open on the text which achieves the purpose or object of the statute is to be preferred to each other interpretation (even if the purpose or object is not expressly stated in the text). This well settled approach to statutory construction, that it is the purpose of the legislation which must be identified and promoted when interpreting the operation of a statute, is reflected in s 33 of the Interpretation Act.
The goal in interpreting a statute is to give effect to the intention of the Parliament. In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 the High Court observed (at 408) that the modern approach to statutory interpretation: 1. insists that the "context" be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise; and 2. uses "context" in its widest sense to include such things as the existing state of the law and the mischief which one may discern the statute was intended to remedy.
An analysis of the legislation starts with a consideration of the words of the legislation itself, read in context. The words of subs 47(2) are plain in that they prohibit, expressly, the Commission from making orders of a particular type, namely, an order to reinstate or re-employ a person or worker contrary to a prohibition on employment imposed by the CPWWC Act, or for the payment of damages or compensation for any removal from employment of a person from employment prohibited under the CPWWC Act. The provision does not preclude an appellant from making an application to the Commission pursuant to Pt 7 of the IR Act.
Subsection 47(2) must be read with s 42 of the CPWWC Act which provides that, "Nothing in this Act affects any statutory right that an employee may have in relation to employment or termination of employment" and subs 98(1) of the IR Act which provides, "Despite anything contained in any other Act, a public sector employee may, subject to and in accordance with this Part, appeal to the Commission against an appealable decision of his or her employer." Subsection 47(2) purports to impliedly repeal a right or rights the appellant might otherwise have in respect of orders that would otherwise have been available for the Commission to make.
The principal issue that arises in addressing the referred question is whether, in the circumstances of the appellant, the appeal is allowed and the decision to dismiss is quashed, the Commission is making an order for her reinstatement or re-employment contrary to a prohibition of employment imposed by the CPWWC Act. It is therefore necessary to explore what is prohibited by operation of ss 8 and 9 of the CPWWC Act.
The nature of the prohibition of employment created by s 9 of the CPWWC Act was considered by a Full Bench of the Fair Work Commission in O'Connell v Catholic Education Office, Archdiocese of Sydney T/A Catholic Education Office, Sydney [2016] FWCFB 1752. In that matter, the Full Bench was presented with an argument by the Catholic Education Office, Sydney that the applicant, who was a teacher, was not dismissed at the initiative of the employer in circumstances where the applicant was prohibited from engaging in child-related work pursuant to s 9 of the CPWWC Act, after the applicant became a disqualified person pursuant to s 18 of the CPWWC Act. After stating that the word "employ" has more than one meaning and considering the Shorter Oxford Dictionary definitions of the term, the Full Bench stated: "[56] Section 9(1) provides that an employer must not commence employing, or continue to employ, a worker 'in' child-related work. The ordinary meaning of the words used does not suggest an absolute bar on the continuation of employment. The section does not provide that an employer must not continue to employ a worker at all. If an employer continues to employ a worker other than 'in' child-related work, no contravention of the section would arise. [57] In the context of s.9(1) we think the word 'employ' means to make use of or to utilise. It follows that the prohibition in s.9(1) operates to prohibit an employer from utilising a worker in 'child-related work' - it does not require the employer to terminate the employment of such a worker."
Although the context in which the meaning of s 9 was considered in O'Connell was different to the circumstances of the referred question, and noting that the Full Bench decision is not binding on this Commission, we consider the approach and consideration of the Full Bench to be relevant and persuasive, and consistent with the text, context and purpose of the CPWWC Act.
In our view, ss 8 and 9 only prohibit an employee without a working with children check (and who has not applied for one) from being "made use of or utilised" in child-related work as defined by the CPWWC Act. We have formed this view for the following reasons.
First, this interpretation of the prohibition is consistent with the plain and ordinary meaning of text of the legislation. Indeed, as the Full Bench in O'Connell observed, there is more than one meaning of "employ". Used in the ordinary course, this can mean the actual deployment of an employee to undertake specific work. We also note and agree with the Full Bench's observations in O'Connell at [61], that the scope of the prohibitions extends beyond employees to other workers, including contractors and volunteers. While the use of the word "employ" is appropriate in the context of an employee being engaged or hired, that is not the case in respect of those other categories of workers.
Second, this characterisation of the prohibition on employment is consistent with the object and purpose of the CPWWC Act. These can be elicited from the text of ss 3 and 4. It is unnecessary to revert to extrinsic material to understand the object and purpose of the legislation. The object of the CPWWC Act is to protect children by not permitting certain persons to engage in child-related work and by requiring persons engaged in child-related work to have working with children check clearances. The CPWWC Act does not have as its objective that a person who does not have a working with children check be precluded from being employed at all, if they are employed to perform work which is not child-related work.
The object of the CPWWC Act is met if an employee is not "made use of or utilised" in child-related work. Moreover, this interpretation is consistent with the paramount purpose of the CPWWC Act, namely "The safety, welfare and well-being of children and, in particular, protecting them from child abuse…". Interpreting the prohibition as going beyond this does nothing more to advance the purpose and objects of the legislation and the intended purpose of the prohibitions contained in ss 8 and 9 of the CPWWC Act.
Having considered the proper interpretation of ss 8 and 9 of the CPWWC Act, it is necessary to examine whether, by allowing an appeal and quashing a decision to dismiss (or a direction to resign) pursuant to s 100C of the IR Act, the Commission is making an order prohibited by subs 47(2) of the CPWWC Act. This requires a closer analysis of the powers and nature of the jurisdiction of the Commission pursuant to Pt 7 of the IR Act.
The leading authority with respect to the Commission's powers and nature of Pt 7 of the IR Act is the Court of Appeal decision in Marroun v State Transit Authority [2017] NSWCA 273; 96 NSWLR 295 (Marroun). The parties agreed as to the core propositions espoused in Marroun, including: 1. an appeal pursuant to Pt 7 of the IR Act is by way of fresh hearing, requiring the Commission to "stand in the shoes of" the original decision-maker. That is to say, the correct approach to a public sector disciplinary appeal is for the Commission to consider the specific charge or complaint made against the employee, and if it be upheld, determine what disciplinary action should be imposed: see [35]; [45]-[47] and [62] of Marroun; and 2. if the allegations of misconduct on which the original decision-maker relied are not proven to the satisfaction of the Commission, the Commission is obliged to allow the appeal: see [62] of Marroun.
The respondent's contention is that by allowing the appeal, the Commission is, in effect, reinstating or re-employing the appellant into their role to conduct child-related work, contrary to the prohibitions created by ss 8 and 9 of the CPWWC Act. We disagree that this is the effect of any order that can be made in respect of the appeal. The respondent submitted at [29]-[34] of its initial submissions: "29. The issue is whether the granting of the Appellant's appeal is an order for the 're instatement or re-employment of a person'. The Appellant is currently dismissed and is no longer employed by the Respondent. As such an order granting her appeal will overturn the Respondent's decision to dismiss her and restore her employment with the Respondent. The effect of such an appeal puts the Appellant back into her former position or state or establishes again that position or that state. The effect of the Commission's order accords with the ordinary meaning of re-instatement. 30. Additionally, what was meant by the term 're-instatement' was considered by the High Court in Blackadder v Ramsey Butchering Services Pty Ltd [(2005) 221 CLR 539)]. The power to 're-instate' means to put back in place; it means that the employment situation, as it existed immediately before the termination must be restored. It requires restoration of the terms and conditions of the employment in the broadest sense of those terms. When an employee is re-instated, they are given back their 'job' at the same place and with the same duties, remuneration and working conditions as existed before the termination. If the Commission were to grant the appeal in the Proceedings it would be making an order restoring the Appellant's relationship with the Respondent and as such reinstating the Appellant contrary to a prohibition on her employment in s47 of the CPWWC Act. 31. Reinstatement envisages the recreation of the circumstances of employment that preceded the termination. The contractual nexus between the parties must be re established. The terms and conditions of that contract must be the same. The employer must provide work to be done by the employee of the same kind and volume as was being done before termination. This is the effect of the Commission granting the Appellant's appeal and in so doing the Commission would be making an order re instating the Appellant contrary to a prohibition on her employment in both ss 8 and 9 of the CPWWC Act. 32. The notion of reinstatement completely set asides the process which resulted in the termination. Reinstatement is concerned with re-establishing an employment relationship and re-employment, which rather looks to the future. This again is the effect of the Appellant's appeal in the Proceedings. This is the effect of granting the Appellant's appeal and in so doing the Commission would making an order re-instating the Appellant contrary to a prohibition on her employment in both ss 8 and 9 of the CPWWC Act. 33. If the decision of the Respondent to terminate the Appellant's employment is set aside, then the Appellant will be restored to employment. The Commission has described such orders setting aside decisions to dismiss as reinstatement or the restoration of employment. The Court of Appeal has also described such orders as re-instatement. 34. In Douglas v Secretary, Department of Education [2021] NSWIRComm 1044 at [51] [56], Commissioner Murphy determined that the appellant in that case like the Appellant in these proceedings was 'clearly seeking an order that would have the effect of reinstating her to her former role' and 'with back pay'. This is an order of re instatement or re-employment. Setting aside the decision to dismiss the Appellant would mean that she is not dismissed but reinstated to her former role. If the Commission lacks the power to order the Appellant's reinstatement, the Commission also lacks the power to make an order that would have the same effect. The Commission went on to find that wording of this subsection is intractable and there was no utility in the Commission hearing and determining an appeal which it is statute barred from allowing. The Commission should adopt a similar approach here to the effect of s47 of the CPWWC Act on these proceedings." (Footnotes omitted)
Also in support of their argument that by upholding an appeal, the Commission is in effect making an order reinstating the appellant contrary to a prohibition on employment pursuant to the CPWWC Act, the respondent referenced the use of the term "reinstatement" in subs 100D(3) where it states that "Nothing in subsection (1) enables the Commission to make an order for compensation in the case where a person is not reinstated or does not continue in employment." Thus, the respondent contended that by upholding the appeal, the Commission is reinstating the appellant.
The respondent's supplementary submissions contended that the notion of "position" in the context of the Teaching Service Act and the IR Act encompasses the work duties of the appellant. The arguments advanced in support of this contention may be summarised as follows: 1. by virtue of s 47 of the Teaching Service Act the appellant is appointed to a "position". Sections 47, 47A and 51A of that Act place limitations on the ability of the Secretary to appoint the appellant to another position; 2. if a teacher is not the holder of a clearance and is eligible to apply, but has not applied, for a clearance, s 93L of the Teaching Service Act only permits the Secretary to suspend the teacher without pay. It does not allow the Secretary to appoint the teacher to another position; 3. the appellant's position requires the performance of child-related work. Were the Commission to uphold the appeal, the appellant would be prevented from engaging in child-related work, with the consequence that her duties would be so fundamentally different from the former position as to amount to a new position: State Rail Authority of New South Wales v The Honourable Justice Bauer (1994) 55 IR 263 at 269-270. Sections 100C and 100D of the IR Act do not empower the Commission to appoint the appellant to a position other than the one to which she was appointed by the respondent; and 4. further, the terms of subs 100(2) of the IR Act which preclude the respondent from making a permanent appointment to the "position" held by the appellant until the appeal has been determined supports its interpretation that "position" encompasses the "duties" of the appellant.
Although the effect of upholding the appeal will have the practical consequence that the employment relationship between the appellant and the respondent will be restored, we disagree that this is an order for reinstatement or re-employment contrary to a prohibition on employment under the CPWWC Act. We also do not accept that the effect of upholding the appeal is to appoint the appellant to a different position.
The respondent's reliance upon the concept of reinstatement as described in Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 (Blackadder) does not assist in explaining the effect of a decision to uphold an appeal against a public sector disciplinary decision. Specifically, the High Court found in Blackadder that the effect of an order for reinstatement in the context of an unfair dismissal matter and orders to reinstate made pursuant to s 170CH(3) of the Workplace Relations Act 1996 (Cth) must have contemplated that the employee would be provided with work : see [76]-[77]. That context does not equate to that of a public sector disciplinary appeal.
The function of the Commission in a public sector disciplinary appeal is administrative in nature, requiring the Commission to stand in the shoes of the decision-maker and decide if the allegations are made out, and if they are, if the punishment was appropriate. By upholding an appeal, the Commission may quash the respondent's decision, but it is not ordering the appellant be "made use of or utilised" in child-related work. Indeed, should the appeal be upheld and the appellant's circumstances do not change, the respondent will continue to be prohibited from requiring the appellant to undertake child-related work. The relevant provisions of the CPWWC Act, the Teachers Service Act and the Teachers Accreditation Act which expressly envisage the circumstances of a teacher being employed in the Teaching Service without a working with children check and accreditation to teach, will apply.
These considerations address in part the respondent's supplementary submissions. Further in respect of those submissions we make two observations.
First, the premise of the respondent's position appears to be that s 93L of the Teaching Service Act is exhaustive as to the respondent's powers in the circumstances described in the section. That is, that the respondent may suspend an officer without pay but may not take other action. We do not accept that construction.
Section 93L is relevantly in these terms: 93L Suspension of officers from duty pending certain decisions or on lapsing of working with children check clearance (1) If an allegation that an officer has engaged in misconduct is being dealt with as a disciplinary matter in accordance with the procedural guidelines, the Secretary may suspend the officer from duty until the allegation of misconduct has been dealt with. (2) If an officer: (a) is charged with an offence referred to in section 93K, or (a1) is a charged person within the meaning of Part 4B, or (b) is the subject of an interim bar, or (c) is refused a working with children check clearance and the period for an application under Part 4 of the Child Protection (Working with Children) Act 2012 has not elapsed or an application has been made under that Part and has not been determined, or (d) is not the holder of a clearance and is eligible to apply, but has not applied, for a clearance, the Secretary may suspend the officer from duty until the officer is notified by the Secretary that the suspension has been lifted. (3) Any salary payable to a person as an officer while the person is suspended from duty under this section is (if the Secretary so directs) to be withheld. …
The phrase "the Secretary may suspend the officer from duty" (our emphasis) makes it apparent that the decision to suspend is within the discretion of the Secretary. If in the circumstances described in subs 93L(2)(c) - being most relevant to the present case - the Secretary elects not to exercise that discretion, and the officer remains in employment, the legislative scheme must anticipate the Secretary exercising other powers to assign the officer to duties that would not contravene the CPWWC Act.
Second, we do not see how the language of subs 100(2) supports the respondent's proposition that "position" is to be construed as encompassing the appellant's duties. That section precludes the permanent appointment of a person to an appellant's position until the time for making an appeal has expired or, if an appeal is made, the appeal is determined or has lapsed. The clear intention of the provision is to prevent a respondent from attempting to frustrate or undermine the appeal process. There is nothing in the section that we perceive offers assistance to the position advanced by the respondent.
Given the beneficial nature of the Pt 7 of the IR Act, the interpretation we have given to subs 47(2) of the CPWWC Act, read in conjunction with ss 8 and 9 of that Act, is consistent with the context and intention conveyed by subs 98(1) of the IR Act and s 42 of the CPWWC Act. To the extent that the respondent contends that s 47 impliedly repeals an appellant's rights under Pt 7 of the IR Act, we observe that the authorities make clear that a narrow construction should be adopted in interpreting legislation which purports to take away the rights individuals would otherwise have pursuant to statute: see for example, Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 (Per Kirby P at p 654), Knight v FP Special Assets Ltd (1992) 174 CLR 178 at p 205; Mansfield v Director of Public Prosecutions (WA) (2006) 226 CLR 486 at [10]; Shergold v Tanner [2002] HCA 19; (2002) 209 CLR 126 at [34]; Spiers v Industrial Relations Commission (2011) 81 NSWLR 348. As stated in Saraswati v R (1991) 172 CLR 2 (Gaudron J 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. …"
Finally, we observe that had the legislature intended to remove the appellant's rights pursuant to Pt 7 of the IR Act more broadly by subs 47(2) of the CPWWC Act, this could have been articulated in clear and simple terms. The legislature has chosen not to do this.
It follows that the answer to the referred question is: Where the appellant: (i) is required to have a Working with Children Check to be employed under s 9 of the CPWWC Act; (ii) does not have a Working with Children Check; and (iii) was dismissed or directed to resign by the respondent, subs 47(2) of the CPWWC Act does not preclude the Commission from: (a) allowing the appeal of the decision to dismiss or direction to resign; and/or (b) quashing the decision to terminate and remitting the matter back to the respondent with such directions (if any) as to which stage of the disciplinary process in relation to the matter may be recommenced by the respondent.

Direction

The Full Bench directs: 1. The matter be listed for directions before Commissioner Webster at 9:30 am on 1 March 2022.

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: 01 March 2022

Workplace Relations Act 1996(Cth)s 170CH

Child Protection (Working with Children) Act 2012(NSW)ss 8, 9, 15, 17, 18, 23, 42, 47

Industrial Relations Act 1996(NSW)ss 98,100, 100C, 100D

Teaching Service Act 1980(NSW)ss 5A, 47, 47A, 51A, 77, 93B, 93L, 93S

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