Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary on behalf of the Department of Justice

The Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (the Union) appealed to the Court of Appeal of New South Wales against orders of the Industrial Relations Commission (IRC) concerning the reinstatement of a correctional officer, Darren Rudd. The dispute centred on whether Mr. Rudd, having received both workers' compensation and work injury damages under the *Workers Compensation Act 1987* (NSW), was precluded from seeking reinstatement to his former employment.

The primary legal issue before the Court of Appeal was the interpretation of section 240(2) of the *Workers Compensation Act 1987* (NSW). Specifically, the Court had to determine whether the use of the present tense in the phrase "is entitled to receive compensation under this Act" indicated a temporal limitation, meaning that a person who had already received work injury damages was no longer considered "entitled" to receive compensation for the purposes of that section, and thus could not seek reinstatement.

The Court of Appeal reasoned that the present tense in section 240(2) did not connote a temporal element that would preclude an individual who had received work injury damages from being considered an "injured worker" for the purposes of seeking reinstatement. The Court held that the entitlement to compensation, and by extension the status of an injured worker, was not extinguished by the receipt of work injury damages. Consequently, the Court set aside the orders of the Full Bench of the IRC, dismissed the appeal to the Full Bench, and remitted the matter to the Commissioner for determination of Mr. Rudd's reinstatement application. The Industrial Relations Secretary was ordered to pay the Union's costs in the Court of Appeal.