State of New South Wales v Ashton

[2025] NSWCA 199

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Ashton [2025] NSWCA 199

Hearing dates:

15 August 2025

Date of orders:

1 September 2025

Decision date:

01 September 2025

Before:

Leeming JA at [1]
Kirk JA at [11]
Ball JA at [96]

Decision:

The orders made by the Industrial Relations Commission on 29 May 2025 in proceedings 2024/00463981 are quashed and, in lieu thereof, those proceedings are dismissed.

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Public sector – Crown and ministerial employees — respondent employed as staffer pursuant to the Members of Parliament (Staff) Act 2013 (NSW) — respondent’s services “dispensed with” — whether s 26(5) excludes application to Industrial Relations Commission for relief from victimisation under ss 210 and 213 of the Industrial Relations Act 1996 (NSW) — whether member of Parliament acts on behalf of the State to terminate staffer’s employment — whether member of Parliament is staffer’s “employer” for the purposes of the Industrial Relations Act

Legislation Cited:

Government Sector Employment Act 2013 (NSW), s 58

Industrial Arbitration Act 1901 (NSW), s 2 (repealed)

Industrial Arbitration Act 1912 (NSW), s 5 (repealed)

Industrial Arbitration Act 1940 (NSW), s 5 (repealed)

Industrial Relations Act 1991 (NSW), s 5(2) (repealed)

Industrial Relations Act 1996 (NSW), ss 4(1), 5(1), 7, 31, 67, 89(3), 89(5), 126, 162(2)(j), 210, 213, 365, 368, 404, Dictionary

Local Government Act 1993 (NSW), s 340(5)

Members of Parliament (Staff) Act 1984 (Cth), ss 20(1), 23

Members of Parliament Staff Act 2013 (NSW), ss 14, 16-19, 20, 20A, 26

Supreme Court Act 1970 (NSW), s 69

Cases Cited:

Ashton v State of New South Wales (No 2) [2025] NSWIRComm 1057

Butler v Attorney-General (Vic) (1961) 106 CLR 268; [1961] HCA 32

Commissioner of Police (NSW) v Cottle (2022) 276 CLR 62; [2022] HCA 7

Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1; [2013] HCA 2

Davie v Industrial Relations Secretary (No 2) [2019] NSWIRComm 1056; (2019) 290 IR 180

Deputy Commissioner of Taxation (Cth) v Robinswood Pty Ltd [2005] WASC 67; (2005) 59 ATR 479

Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1; [2003] HCA 69

Halliday v Boss [1916] AR 203

Kaldas v Barbour (2017) 107 NSWLR 341; [2017] NSWCA 275

Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299

King v Jones (1972) 128 CLR 221; [1972] HCA 44

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1

NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277; [2003] HCA 35

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138; [1952] HCA 10

R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361; [1970] HCA 8

Sydney City Council v Reid (1994) 34 NSWLR 506

Tsolis v Health Care Complaints Commission [2024] NSWCA 284

Waterside Workers’ Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434; [1918] HCA 56

Wood v Secretary of the Department of Transport on behalf of the Government of New South Wales [2021] NSWSC 1248

Texts Cited:

I Neil, D Chin and C Parkin, The Modern Contract of Employment (3rd ed, 2023, Lawbook)

P Herzfeld and T Prince, Interpretation (3rd ed, 2024, Lawbook)

Category:

Principal judgment

Parties:

State of New South Wales (Applicant)
Gemma Ashton (First Respondent)
Industrial Relations Commission of New South Wales (Second Respondent)

Representation:

Counsel:
J Emmett SC and P Bristow (Applicant)
O Fagir and F Anwar (First Respondent)

Solicitors:
Crown Solicitor’s Office (Applicant)
Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales (First Respondent)
Crown Solicitor’s Office (Second Respondent)

File Number(s):

2025/00223991

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Industrial Relations Commission of New South Wales

Citation:

[2025] NSWIRComm 1028

Date of Decision:

29 May 2025

Before:

Taylor P, Paingakulam DP, Muir C

File Number(s):

2024/00463981

HEADNOTE

[This headnote is not to be read as part of the judgment]

Ms Ashton (the respondent) was employed as a Parliamentary staffer in the office of Ms Kylie Wilkinson MP, the member for East Hills in the New South Wales Legislative Assembly. She was employed under Pt 3 of the Members of Parliament Staff Act 2013 (NSW) (MOPS Act), pursuant to which her employer was the State of New South Wales. The respondent’s employment was terminated, whereupon she applied to the Industrial Relations Commission of New South Wales seeking relief from “victimisation” pursuant to ss 210 and 213 of the Industrial Relations Act 1996 (NSW) (IR Act) in relation to that termination.

The State disputed the Commission’s jurisdiction. The following question was referred to the Full Bench of the Commission:

Does the Industrial Relations Commission have jurisdiction with respect to the proceedings, or power to make an order in the proceedings pursuant to s 213 of the [IR Act], having regard to ss 20 and 26 of the [MOPS Act]?

The Full Bench answered that question “yes”. The State filed a summons in this Court seeking judicial review of the Full Bench’s decision. Three substantive issues arose:

1. whether the State can dismiss a staffer such as the respondent at will and for any or no reason, such that the decision to terminate was not subject to the anti-victimisation provision in s 210 of the IR Act;

2. even if s 210 does apply to such termination decisions, whether the Commission is deprived of its jurisdiction to deal with victimisation applications under s 213 of the IR Act by s 26(5) of the MOPS Act;

3. whether there was any action which could constitute victimisation of the respondent by her employer for the purposes of s 210.

The Court (per Kirk JA, Leeming and Ball JJA agreeing) allowed the application:

As to Issue 1

1. Per Leeming, Kirk and Ball JJA: In the circumstances it was not necessary to address Issue 1: at [1], [27] and [96].

As to Issue 2

2. Per Kirk JA, Ball JA agreeing, Leeming JA not deciding: The careful exclusion by Parliament of certain parts of the IR Act with respect to staffers in s 26(3) of the MOPS Act implies that, subject to these exclusions, the remainder of the IR Act is intended to apply to staff employed under the MOPS Act: at [41]. The relevant genus of relief specified by the phrase “any other relief” in the context of s 26(5) refers to proceedings involving relief being sought in a court directed to review of the legality of exercises of statutory or prerogative power: at [47]. The words “any other relief” in s 26(5) therefore are appropriately construed as not extending to relief granted in a non-judicial tribunal such as the Commission: at [55].

Commissioner of Police (NSW) v Cottle (2022) 276 CLR 62; [2022] HCA 7; Sydney City Council v Reid (1994) 34 NSWLR 506, considered.

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1; Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1; [2013] HCA 2; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28; Wood v Secretary of the Department of Transport on behalf of the Government of New South Wales [2021] NSWSC 1248; Davie v Industrial Relations Secretary (No 2) [2019] NSWIRComm 1056; (2019) 290 IR 180, referred to.

As to Issue 3

3. Per Leeming JA: s 20 contemplates the existence of a relationship of employment between a staffer and the State; and the provision of services by the staffer to a member of Parliament (MP). This distinction is demonstrated by ss 20(3) and 4 and the difference between the relationship created by the employment contract and the power to dispense with the person’s services: at [3]). As a staffer’s employment is terminated by dint of statute in circumstances where their services are dispensed with, it would be inconsistent with the MOPS Act for the Commission to have the power to order reinstatement in such circumstances: at [7].

4. Per Kirk JA, Ball JA agreeing: An MP acts on behalf of the State when they employ a staffer under s 14(1) of the MOPS Act. By contrast, when the MP wishes a staffer’s employment to end, they are empowered to “dispense with” the staffer’s services. Termination of the staffer’s employment is then automatically effected by s 20(1)(f). This difference in drafting indicates against the view that MPs act on behalf of the State when they “dispense with” a staffer’s services: at [68]-[73]. That construction is reinforced by the MOPS Act’s legislative history and comparison with the cognate Commonwealth statute: at [74]-[75]. There is thus no relevant conduct undertaken by the State to terminate the employment; termination occurs by operation of the MOPS Act. In circumstances where a staffer’s services are dispensed with, therefore, it is not open to the staffer to complain that they have been victimised by an action of the employer: at [78].

King v Jones (1972) 128 CLR 221; [1972] HCA 44; Waterside Workers’ Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434; [1918] HCA 56; R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361; [1970] HCA 8; NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277; [2003] HCA 35, referred to.

5. Per Kirk JA, Leeming and Ball JJA agreeing: The Dictionary of the IR Act (as given effect by s 4(1)) includes in its definition of “employer” a person “who employs an employee ... on behalf of some other person”. This definition does not extend to an MP who engages a staff member pursuant to s 14(1) of the MOPS Act: at [93]. Construing the IR Act definition in this way would lead to surprising consequences which are unlikely to have been intended by Parliament: at [7], [88]-[92].

Halliday v Boss [1916] AR 203, applied.

JUDGMENT

1. LEEMING JA: As Kirk JA has explained, the State of NSW has moved to set aside the determination of a Full Bench of the Industrial Relations Commission answering a question that the Commission had jurisdiction with respect to proceedings commenced by Ms Gemma Ashton pursuant to ss 210 and 213 of the Industrial Relations Act 1996 (NSW). The Commission rejected both submissions advanced by the State, which had been based on implications derived from the power to “dispense” with a person’s services under s 20(1)(f) and the privative clause in s 26(5) of the Members of Parliament Staff Act 2013 (NSW) or “MOPS Act”. The submissions on both those issues are quite finely balanced, in large measure because it may be doubted that a claim under ss 210 and 213 of the Industrial Relations Act by a person employed within the staff of a Member of Parliament was ever contemplated. It is unnecessary for me to express a concluded view about either of those questions, in light of a more fundamental question, which Kirk JA has labelled “Issue 3”, raised by members of the Court at the outset of the hearing, and which was the subject of oral and supplementary written submissions. The reasons of Kirk JA, with which what follows should be read, enable me to express my reasons concisely.

2. Section 14(1) of the MOPS Act provides that a Member of Parliament “may, on behalf of the State, employ a person under a written agreement to assist the member in exercising his or her functions as a member of Parliament”. Section 20 is as follows:

20 Termination of employment

(1) The employment of a person under this Part by a member of Parliament terminates—

(a) in the case of a person employed by a member of Parliament under section 14—if the member ceases to be a member of Parliament, or

(b) in the case of a person employed by a member of the Legislative Council under section 14—if the member becomes a political office holder, or

(c) in the case of a person employed by a member of Parliament in his or her capacity as a special office holder under section 15—if the member of Parliament ceases to be a special office holder or a member of Parliament, or

(d) on the day appointed for the taking of the poll for the next general election, or

(e) if the person resigns by letter addressed to the member of Parliament, or

(f) if the person’s services are dispensed with by the member of Parliament.

(1A) The employment of a person under this Part by a member of Parliament may also be terminated by the relevant Presiding Officer under section 20A.

(2) The relevant Presiding Officer may direct in a particular case that the employment of a person that would otherwise terminate because of the operation of subsection (1) (a)–(d) does not terminate. In that case, the person’s employment continues for such period as the relevant Presiding Officer directs and the person is taken to be employed by the relevant Presiding Officer during that period.

(3) A member of Parliament may at any time dispense with the services of a person employed by the member of Parliament under this Part.

(4) This section has effect despite anything in the written agreement of employment of the person concerned.

3. It will be seen that s 20 distinguishes between the relationship of employment (which is between the member of staff and the State of NSW) and the services provided by the employed person to the Member of Parliament so as to assist the Member exercising his or her functions. The latter are supplied personally. The effect of s 20(1) is that if the Member ceases being entitled to staff (paras (a), (b) or (c)), or there is an election (para (d)), or the person resigns (para (e)), or the Member dispenses with the person’s services (para (f)), then the relationship of employment terminates by operation of statute. In the case of paras (a)-(d), a power is conferred under subs (2) upon the Presiding Officer to extend the person’s employment, but in that case the person is taken to be employed by the relevant Presiding Officer during the period of the extension. Subsections (3) and (4) emphasise the independence of the power conferred upon the Member of Parliament to dispense with a person’s services: it may occur at any time, and notwithstanding anything in writing that will have been signed by the Member of Parliament when, on behalf of the State, the person is employed pursuant to s 14. That is a relatively powerful indication of the difference between the employment contract and the power to dispense with the person’s services.

4. Separately from s 20, s 20A constitutes another means by which the employment relationship may terminate:

(1) The employment of a person under this Part by a member of Parliament may be terminated by the relevant Presiding Officer after consulting the member of Parliament if the relevant Presiding Officer is satisfied that the staff member has engaged in misconduct.

5. Section 20A proceeds to specify the circumstances in which the power may be exercised and its consequences. Subsection (8) provides, “This section does not limit the power of a member of Parliament to dispense with the services of a staff member under section 20.”

6. That basic structure, whereby employees of the State may supply services to a Member of Parliament, who if he or she chooses to dispense with the services will by dint of statute cause the termination of the relationship of employment, does not fit easily into s 210 of the Industrial Relations Act. That section, which Kirk JA has reproduced, turns upon conduct of (relevantly) an employer, in which case, the employee (relevantly) may apply for certain remedies including (as here) reinstatement. The difficulties include the following. The termination, which is the only detriment of which Ms Ashton complains, occurs by dint of statute, rather than by act of the employer. Of course, it is the decision of the Member of Parliament to dispense with services which engages the statutory consequence that the employment is terminated. But that difference matters. I fail to see how the Member of Parliament could be understood as acting as the agent of the State when he or she decides to dispense with the personal services supplied by the employed person. As Kirk JA observes, there is an important distinction between the deemed agency when the employment relationship comes into existence pursuant to s 14, and the language of s 20 which eschews comparable language of agency when services are dispensed with.

7. Moreover, suppose contrary to the above that ss 210 and 213 of the Industrial Relations Act applied, and Ms Ashton obtained an order for reinstatement. It is difficult to see how the order sought from the Commission could be consistent with statute. This is not merely a consequence of the failure to join the Member of Parliament to the proceedings. It is a consequence of the fact that the MOPS Act of its own force terminates the employment relationship between the State and employee whenever a Member of Parliament dispenses with the employee’s services. This is not undercut by Ms Ashton’s reliance on the expanded definition of “employer” in the Industrial Relations Act, for the reasons given by Kirk JA.

8. For those reasons, which diverge from those advanced in the Commission, the claim advanced by Ms Ashton is bad in law. I would add that that outcome coheres with the express exclusion of other “industrial proceedings” by s 26.

9. There is one final way of viewing the position. In substance, Ms Ashton complains that her employment was wrongly terminated. But unfair dismissal claims pursuant to Part 6 of Chapter 2 of the Industrial Relations Act are plainly excluded by s 26(3) of the MOPS Act, as are all State industrial instruments which relate to the employment of staff members, by s 26(4). It is not entirely clear to me that the failure to include s 210 in s 26 was not an oversight, brought about by the fact that the provision is located in Chapter 5 “Industrial organisations”. No submissions to that effect were made, as a result of which I prefer not to express a concluded view on questions of construction which do not affect the outcome of this application.

10. The parties agreed that whatever the outcome, there be no order of costs. I agree with the orders proposed by Kirk JA.

11. KIRK JA: Ms Gemma Ashton was employed by the State of New South Wales as an electorate officer in the office of Ms Kylie Wilkinson MP, the member for East Hills in the New South Wales Legislative Assembly. She was employed pursuant to Pt 3 of the Members of Parliament Staff Act 2013 (NSW) (MOPS Act). Such employees of members of Parliament (MPs) were referred to during the hearing as “staffers”, and it is convenient to adopt that term. I shall refer to Ms Ashton as the respondent.

12. On 22 November 2024 the respondent’s employment was terminated without notice and without reasons being provided. On 12 December 2024 she applied to the Industrial Relations Commission of New South Wales seeking relief from “victimisation” pursuant to ss 210 and 213 of the Industrial Relations Act 1996 (NSW) (IR Act). The State disputed the Commission’s jurisdiction with respect to the application. The following question was referred to the Full Bench of the Commission:

Does the Industrial Relations Commission have jurisdiction with respect to the proceedings, or power to make an order in the proceedings pursuant to s 213 of the [IR Act], having regard to ss 20 and 26 of the [MOPS Act]?

13. The Full Bench (Taylor P, Paingakulam DP and Muir C) answered that question “yes”: Ashton v State of New South Wales [2025] NSWIRComm 1028; (2025) 339 IR 389 (IRC).

14. The State filed a summons in this Court on 12 June 2025 seeking judicial review of the Full Bench’s decision, arguing that the Commission had erred in so finding. The Commission, as second respondent, filed a submitting appearance. Three issues arose:

1. Is the State able to dismiss a staffer such as the respondent at will and for any or no reason, such that the decision to terminate was not subject to the anti-victimisation provision in s 210 of the IR Act? This issue turns in particular on construction of ss 20 and 26(3) of the MOPS Act.

1. Even if s 210 does apply to such termination decisions, is the Commission deprived of its jurisdiction to deal with victimisation applications under s 213 of the IR Act by s 26(5) of the MOPS Act?

2. Was there any action which could constitute victimisation of the respondent by her employer for the purposes of s 210, when the relevant MP makes a decision to “dispense with” the services of the staffer but the termination itself is effected by s 20(1)(f) of the MOPS Act?

15. Issue 3 had not been addressed by the parties or the Full Bench but arose from questions raised in the course of the hearing in this Court. The State then adopted the point. The parties were given leave to provide supplementary written submissions addressing the issue. Each did so.

16. The effect of a negative answer in relation to Issue 3 is the same as for a positive answer to Issue 1: both would mean that the Commission does not have jurisdiction to determine victimisation applications in relation to termination of employment of staffers employed under Pt 3 of the MOPS Act, but without necessarily precluding it doing so with respect to other claimed detrimental action short of termination. In contrast, a positive answer to Issue 2 would mean that the Commission had no jurisdiction to determine any victimisation application made by a staffer, whether relating to termination or something short of that.

17. In that context it is convenient first to address Issue 2, in relation to which I conclude that the Commission does have jurisdiction to determine victimisation applications under ss 210 and 213 of the IR Act. However, the correct resolution of Issue 3 means that this jurisdiction does not extend to termination of employment by operation of s 20(1)(f) of the MOPS Act. The Full Bench therefore erred in law in concluding that the Commission had jurisdiction in relation to the respondent’s application. It is not necessary to address Issue 1. Before addressing Issues 2 and 3 I will outline the context in which they arise.

Background

Facts

18. The respondent had been employed as an electorate officer at Ms Wilkinson’s East Hills electorate office since 29 May 2023. She was advised on 22 November 2024, by an email sent to her at 5:10pm by an employee of the Department of Parliamentary Services, that “your employment has been terminated by your employer – Member of East Hills, with effect close of business today”. No reasons were given in the email and, given the time it was sent, the termination was effective immediately. The respondent filed an “Application for relief from victimisation” in the Commission on 12 December 2024. The State is the only respondent named in the application. The application stated that at the time of drafting Ms Ashton still had “not received any reasons for Ms Wilkinson’s decision”, despite multiple requests.

19. The only “detrimental action” identified in the respondent’s application was “a detriment by being terminated”. All that she challenged was the termination, which was expressed to have been Ms Wilkinson’s decision, although the State was acknowledged to have been the employer (despite the terms of the email of 22 November 2024). The relief sought was reinstatement, continuity of service and backpay. She did not seek relief in relation to, for example, bullying, harassment or other treatment in the workplace. In this Court counsel for the respondent said that “the conduct which is impugned by this application is the termination of the employment; that’s what’s in issue”.

20. In her application for relief the respondent alleged that she was dismissed for four prohibited reasons: her union membership (citing s 210(1)(a)); her upcoming entitlement to long service leave (citing s 210(1)(e), but perhaps meaning to refer to par (i)); engaging in a public or political activity (citing s 210(1)(g), but seemingly meaning to refer to par (h)); and the fact that she had made complaints about the safety of her workplace, including one made on 8 October 2024 in relation to bullying conduct of another staff member, where that staff member was said to be a close personal friend of Ms Wilkinson (citing s 210(1)(j), but perhaps meaning to refer to par (m)).

The legislative context

21. Sections 210 and 213 are both within Ch 5 Pt 1 of the IR Act. The chapter is titled “Industrial Organisations”. Section 210(1) provides:

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 an industrial organisation of employees, or

(c)  engages or proposes to engage in industrial organising activities, or

(d)  refuses to engage in industrial action or another industrial organising activity, or

(e)  participates or proposes to participate in proceedings relating to an industrial matter, or

(f)  exercises or proposes to exercise functions conferred under this Act, or

(g)  has a role or responsibility under industrial relations legislation or an industrial instrument, or

(h)  engages in or proposes to engage in a public or political activity, unless it interferes with the performance of the employee’s duties, or

(i)  is entitled to a benefit or claims a benefit to which the person is entitled under industrial relations legislation or an industrial instrument, or

(j)  is entitled to a benefit or claims a benefit—

(i)  under either or both of the following—

(A)  the Workers Compensation Act 1987,

(B)  the Workplace Injury Management and Workers Compensation Act 1998, or

(ii)  in relation to other entitlements for a workplace injury, or

(k)  has a characteristic protected from discrimination under the Anti-Discrimination Act 1977, or

(l)  makes a complaint or inquiry—

(i)  about the person’s employment, or

(ii)  to a public authority about the person’s employer, including about matters other than about the person’s employment, or

(m)  makes a complaint about a workplace matter that the person considers is not safe or a risk to health or exercises functions under the Work Health and Safety Act 2011, Part 5, or

(n)  informs a person of an alleged breach by an employer of industrial relations legislation or of an industrial instrument, or

(o)  informs a person of an alleged breach of the Protection of the Environment Operations Act 1997 by an employer, or

(p)  informs a person of or gives evidence in relation to a notifiable occurrence within the meaning of the Rail Safety National Law (NSW), or

(q)  informs a person 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

(r)  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

(s)  assists the Independent Pricing and Regulatory Tribunal or Scheme Administrator in the exercise of its functions under the Electricity Supply Act 1995.

22. Paragraphs (a)-(g) of the section are freedom of association provisions of a kind familiar in Australian industrial law. So, too, is the provision in s 211 restricting industrial instruments from preferencing employees who are members of an industrial organisation, and that in s 212 relating to conscientious objection to membership of an industrial organisation. The other paragraphs of s 210(1) are of a somewhat different kind, encompassing protection from victimisation for engaging in public or political activities (par (h)), asserting employment or statutory benefits or claims (pars (i)-(j)), having a characteristic protected from discrimination under the Anti-Discrimination Act 1977 (NSW) (par (k)), or making various types of complaints or inquiries including to a range of regulators (pars (l)-(s)). The heading of Pt 5 of Ch 5 – “Principles of association” – thus does not capture the full effect of the provisions in the Part.

23. Section 210 prohibits victimisation by an “employer or industrial organisation”. The term “employer” is defined in the Dictionary of the IR Act. I discuss that definition below when addressing Issue 3. There was no dispute here that the State was an employer, and the respondent an employee, within the meaning of those terms in the IR Act. As the Full Bench noted, it was “the joint position of the parties that while a Member of Parliament makes the decision to employ someone as a staffer, the State is the employer of the staffer” (IRC [13], see also [50]). That reflects s 14(1) of the MOPS Act (quoted below at [57]).

24. Section 213 is headed “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.

…

(5) In proceedings under this section to enforce the provisions of section 210—

(a) it is presumed that an employee or prospective employee who suffers a detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in section 210 alleged by the applicant to be the cause of the detrimental action, and

(b)  the presumption is rebutted if the employer or industrial organisation satisfies the Commission that, objectively, the alleged matter was not a substantial and operative cause of the detrimental action, and

(c)  for paragraph (b), the Commission may have regard to conscious and unconscious factors for the alleged matter when determining if the alleged matter was not a substantial and operative cause of the detrimental action.

25. There was no dispute that dismissal from employment constitutes a detriment for the purposes of s 213. The IR Act binds the Crown (IR Act, s 404). As the State was the respondent’s employer within the meaning of the IR Act, the Commission will have jurisdiction to hear and determine the respondent’s application against the State unless something in the MOPS Act operates to oust that jurisdiction.

26. The State contended before the Commission and this Court that two provisions of the MOPS Act do have that effect. The first of these provisions is s 20, appearing in Pt 3 of that Act (the Part is entitled “Staff of members of Parliament”):

20 Termination of employment

(1)  The employment of a person under this Part by a member of Parliament terminates—

(a) in the case of a person employed by a member of Parliament under section 14—if the member ceases to be a member of Parliament, or

(b) in the case of a person employed by a member of the Legislative Council under section 14—if the member becomes a political office holder, or

(c)  in the case of a person employed by a member of Parliament in his or her capacity as a special office holder under section 15—if the member of Parliament ceases to be a special office holder or a member of Parliament, or

(d)  on the day appointed for the taking of the poll for the next general election, or

(e)  if the person resigns by letter addressed to the member of Parliament, or

(f)  if the person’s services are dispensed with by the member of Parliament.

…

(1A) The employment of a person under this Part by a member of Parliament may also be terminated by the relevant Presiding Officer under section 20A.

…

(3)  A member of Parliament may at any time dispense with the services of a person employed by the member of Parliament under this Part.

(4) This section has effect despite anything in the written agreement of employment of the person concerned.

27. The State submitted that in the context of public sector employment, the phrase “dispense with” in subs (1)(f) and (3) conveys a meaning akin to the Crown’s prerogative to dismiss its employees at pleasure, that is, at any time and for any or no reason. It argued that, as a result, the operation of s 210 was excluded in relation to the dismissal of staffers such as the respondent (that being the point raised by Issue 1). It is not necessary to determine whether that is so, nor whether the point would suffice to make out the State’s case on Issue 1 in any event in light of s 26(3) of the MOPS Act.

28. The second provision of the MOPS Act relied upon by the State was s 26:

26 Industrial proceedings excluded

(1) In this section, a reference to the employment of a staff member is a reference to—

(a) the engagement of, or failure to engage, a person under this Act, or

(b) dispensing with the services of, or other termination of the employment of, a person employed under this Act, or

(c) any disciplinary proceedings or action taken against a person employed under this Act, or

(d) the remuneration or other conditions of employment of a person employed under this Act.

(2) The employment of a staff member, 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) 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 a staff member.

(4) 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 staff members.

(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 a matter that is declared by this section not to be an industrial matter for the purposes of the Industrial Relations Act 1996.

29. The State’s position was that “any other relief” in s 26(5) encompasses orders made by the Commission under s 213 of the IR Act so as to preclude the Commission playing any role in relation to victimisation claims under s 210, whether or not involving termination (that being the point raised by Issue 2).

The Commission’s decision

30. The Full Bench found the Commission did have jurisdiction with respect to the respondent’s application. As regards the first issue, it held that the phrase “dispense with the services of” in s 20 of the MOPS Act did not import a meaning akin to the Crown’s prerogative to dismiss at pleasure (IRC [47]-[77]). As regards the second, it considered the phrase “any other relief” in s 26(5) was to be read “as falling within the genus of preceding words, which are restricted to relief in judicial proceedings” (IRC [84]). The Full Bench adopted a construction articulated by Kirby P in this Court with respect to a provision expressed in the same terms in Sydney City Council v Reid (1994) 34 NSWLR 506 at 511. As such, s 26(5) could not be taken to “shield decision-makers from proceedings that challenge detrimental action taken for a reason rendered unlawful by s 210 of the IR Act” (IRC [115], and generally at [78]-[115]). The third issue was not raised in the proceedings before the Full Bench.

31. The issues raised in this matter involve questions of statutory construction going to the Commission’s jurisdiction, requiring consideration of the text, context and purpose of the provisions in question. In that context it is not necessary to recite the Commission’s reasoning at any length.

32. After this judicial review application was filed the State applied for a stay of the proceedings. The Commission rejected the application: Ashton v State of New South Wales (No 2) [2025] NSWIRComm 1057.

Issue 2: does s 26(5) preclude the Commission exercising jurisdiction?

33. Issue 2 concerns whether the phrase “any other relief” in s 26(5) of the MOPS Act should be construed as excluding relief of the kind which may be ordered by the Commission pursuant to s 213 of the IR Act. The State submitted that s 26(5) of the MOPS Act has the effect of preventing the Commission from granting any relief for victimisation under s 213 of the IR Act, whether in relation to termination or some lesser detriment.

34. The State’s starting point was that the respondent’s claim in the Commission fell within the ordinary meaning of the words in s 26(5) of “proceedings … for any other relief”. That is correct. Yet the argument does not go far, given that the State itself effectively accepted that the words “any other relief” should be read as part of a genus identified in the provision (its senior counsel saying that the State “would accept that there is real force in identifying a genus; that it probably does not mean any relief at all”). The real area of dispute was as to the scope of the genus.

35. The State submitted that “the relevant genus is (or at least includes) relief granted upon the review of a decision made in the exercise of a statutory or other public power”, where this would include relief under s 213. The State accepted that the provision could not exclude judicial review for jurisdictional error to the extent addressed in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [96]-[100]. The respondent initially supported the Full Bench’s conclusion that, consistently with what Kirby P had held in Reid, the genus should be understood as directed to relief in judicial proceedings, thus not capturing what the Commission might do under s 213. That position developed in the course of argument.

36. The correct approach to construing two related statutes sharing a field of operation is that recently stated in Commissioner of Police (NSW) v Cottle (2022) 276 CLR 62; [2022] HCA 7, developing what had earlier been said in Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1; [2013] HCA 2:

[22] In Eaton, the plurality expressed the applicable principle of statutory construction as follows:

“Argument on the appeal proceeded upon the basis that the two statutes should be read together, in order to determine whether there is any relevant inconsistency in their respective operation. 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?’”

[23] After consideration of this Court's decision in Ferdinands v Commissioner for Public Employment, the plurality in Eaton referred to the presumption that statutes do not contradict one another. In that respect, the principle that an Act of Parliament should be construed in a way that best achieves a harmonious result also informs the construction of two statutes which may share a field of operation. Nonetheless, if, properly construed, it is concluded that the two statutes or provisions cannot “stand or live together”, the presumption is displaced. That “requires the construction of, and close attention to, the particular provisions in question”. Ultimately:

“the question as to the operation of the statutes remains a matter to be gleaned by reference to legislative intention. That intention is to be extracted ‘from all available indications’.” [citations omitted]

37. Thus where two statutes share a field of operation the search is for a construction of the relevant provisions which yields a coherent and harmonious operation, just as it is when construing provisions within the one Act: note Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[70].

38. The Full Bench did not refer to either Eaton or Cottle. That may have reflected an omission by the parties, given that neither side drew attention to these principles in their submissions in this Court. The Full Bench effectively treated the issue as one of implied repeal, addressing the point under the inapt heading “Presumption of validity”: IRC [27]-[28]. Implied repeal is not readily found and is “a comparatively rare phenomenon”: Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 275; [1961] HCA 32; Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1; [2003] HCA 69 at [43]. It is not in substance what is at issue here. The Parliament has established protections and remedies in ss 210 and 213 of the IR Act. There is no suggestion that s 26(5) has repealed those provisions. And s 26 of the MOPS Act itself refers to the IR Act, indicating that the latter Act was in contemplation when s 26 was drafted. The issue is simply whether the application of the provisions in the IR Act is qualified in some way with respect to staffers employed under the MOPS Act by virtue of s 26(5) of that Act. It is commonplace for Parliaments to limit the reach of a statutory scheme in various ways. Whether the Parliament limited the operation of s 213 of the IR Act in that Act or in another Act which expressly contemplated that Act is of limited if any significance. Either way, it is necessary to read the provisions together, seeking to give them a coherent and harmonious operation consistent with their text, context and purpose.

39. Moreover, importantly, the State was challenging the application only of s 213 of the IR Act. It did not argue that the operation of s 210 was excluded by s 26(5) of the MOPS Act. On the contrary, it positively accepted that s 210 did apply to staffers employed under the MOPS Act, saying:

Section 210 of the IR Act creates a statutory norm which is not excluded by s 26(3). … It may be inferred that Parliament’s intention in enacting ss 26(3) and 26(5) was that the statutory norms in Pts 6, 7 and 9 of Ch 2 should be altogether excluded, whereas the statutory norm in s 210 would not be excluded.

40. An argument might otherwise have been available that s 210 was inapposite to apply to staffers given that s 210(1)(h) protects them from victimisation based on engaging in political activities, where external political activities might be argued to be deleterious to the role of a staffer and of legitimate concern to an MP. The State conceded that as it accepted that s 210 did apply to such staffers, reliance on s 210(1)(h) did not advance its position.

41. The State submitted that s 210 applies because of the Parliament’s delineation of the extent to which the MOPS Act limits the application of the IR Act to staff employed under the MOPS Act. Section 26(2) carves out “any matter, question or dispute” relating to the employment of a staff member from being an “industrial matter” for the purposes of the IR Act. That has the effect, for example, that the Commission’s power to “on its own initiative, inquire into any industrial matter” (IR Act, s 162(2)(j)) is excluded in respect of staffers. Section 26(3) similarly reflects a careful exclusion by Parliament of certain parts of the IR Act with respect to staffers, being, within Ch 2 of that Act, Pt 6 (relating to unfair dismissal), Pt 7 (relating to public sector disciplinary appeals) and Pt 9 (relating to unfair contracts). The clear implication is that otherwise, subject to the other provisions of s 26, the remainder of the IR Act does apply to staff employed under the MOPS Act. Thus, for example, the State accepted that the stand-down power granted to the Commission by s 126 of the IR Act could apply to staffers. Sections 210 and 213 are within Ch 5 of the IR Act, thus falling outside the exclusions identified in s 26(3). Parliament therefore can be taken to have intended that those provisions do apply to and with respect to such staff, unless other provisions indicate to the contrary.

42. That intention is itself relevant to interpreting s 26(5) in a harmonious and coherent way. It is reinforced by a further point. The State’s position was somewhat disjunctive: it asserted that Parliament did intend staffers to have the protection from victimisation set out in s 210 of the IR Act (except as regards termination), but did not intend that staffers should have the only means enacted to give effect to that protection, namely by bringing proceedings in the Commission under s 213. The State said that judicial review for jurisdictional error would be available but did not explain how that could give any meaningful effect to the statutory protections. It is difficult to see what role judicial review would have to play in that regard when it is understood that s 210 sets out bases for complaining about victimising conduct after the event. It is not expressed as a procedure for decision-makers to follow, or as mandatory matters required to be considered prior to a decision being made, or such like.

43. As for the identification of the genus in s 26(5), the language of that provision mirrors the privative clause considered by this Court in Reid in 1994, being s 340(5) of the Local Government Act 1993 (NSW). President Kirby reasoned as follows (at 512, with Meagher JA agreeing at 521):

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. …

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.

44. The reasons given in a judgment must always be understood in context, including what was argued and what needed to be decided: see eg Tsolis v Health Care Complaints Commission [2024] NSWCA 284 at [33]. In Reid, Kirby P went as far as was required to resolve the case before the Court. The relevant question was whether s 340(5) of the Local Government Act precluded local government employees from seeking review of contested appointments in the Government and Related Employees Appeal Tribunal. A sufficient answer to that question was that the privative clause was directed to judicial, not non-judicial, proceedings. His Honour’s reasons in Reid should not be understood as a complete and exhaustive statement of how the phrase “any other relief” is to be interpreted in that, or any other, statutory context.

45. In the course of argument both parties accepted that s 26(5) should in some respects have a narrower construction than articulated in Reid. They accepted, for example, that it should not be understood as precluding relief being sought in a court for rectification of a contract of employment. Similarly, relief in a court could also be sought as regards the construction of the contract. Such a case might seek declaratory relief, even though s 26(5) expressly refers to proceedings for a declaration. Further, it is most unlikely that the Parliament would have intended to prevent a person employed under the MOPS Act from exercising their usual rights to sue for unpaid wages: note, similarly, Wood v Secretary of the Department of Transport on behalf of the Government of New South Wales [2021] NSWSC 1248 at [346]. Thus although Kirby P suggested that the provision considered in Reid should be construed as limited to judicial proceedings, s 26(5) should be construed as not applying to some types of judicial proceedings. All of the examples just given are private law claims relating to rights arising from the employment relationship.

46. Section 26(5) identifies five specific types of relief: an order in the nature of prohibition, certiorari or mandamus, or a declaration or an injunction. The first three are public law remedies granted by courts with respect to the legality of exercises of statutory or prerogative power, as addressed in s 69(1) of the Supreme Court Act 1970 (NSW). They are not forms of relief granted in administrative tribunals, as Kirby P indicated in Reid. Declarations or injunctions are commonly also granted in such public law cases. They, too, are classically judicial remedies, even if in some instances statutes grant equivalent powers to tribunals. These characteristics suggest that Kirby P was correct to conclude one aspect of the genus was relief available in courts. The State’s argument that the genus extended more broadly to relief granted anywhere with respect to the exercise of statutory or other public power fails to take account of the curial nature of the remedies identified in the provision.

47. As explained, the parties accepted that the kinds of private law proceedings just identified – including potentially cases seeking a declaration – would not fall within s 26(5). The appropriate characterisation of the genus, sufficient for current purposes, is that s 26(5) is addressed to proceedings involving relief being sought in a court directed to review of the legality of exercises of statutory or prerogative power (in the sense of whether such exercises were affected by legal error, as opposed to whether they occurred in breach of another’s contractual rights or such like).

48. Of course, the provision is not effective to exclude the “supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus” or relief in the nature of those writs: quoting Kirk at [98]. That does not mean the provision has no work to do. It can be taken to exclude judicial review for error of law on the face of the record: note Kirk at [100]. It is possible that it might also exclude the grant of declaratory or injunctive relief, although it is not necessary to resolve that question here: note Kaldas v Barbour (2017) 107 NSWLR 341; [2017] NSWCA 275 at [195]-[196], [347]-[361] and [380].

49. Whatever its exact scope, s 26(5) should not be construed so as to apply to relief sought under s 213 of the IR Act with respect to enforcement of s 210 of that Act. That does not fall within the genus identified. Moreover, as already discussed, it would be an odd result for the Parliament to have on the one hand intended to apply the legal protections in s 210 to parliamentary staffers but on the other hand provide no practical means for their enforcement. The argument that the Parliament should be understood to have intended such a result is unpersuasive.

50. Much attention was directed by the parties to whether the Parliament should be taken to have adopted Kirby P’s construction in Reid by re-enacting the terms of the provision in the MOPS Act (as the Full Bench had concluded and as the respondent argued), and on whether the fact that Kirk had been handed down in the meantime somehow made such an adoption less likely (as the State argued). It is not necessary to address those issues, given that in the end the respondent did not assert that the construction adopted in Reid was entirely apposite with respect to s 26(5).

51. The State also placed some reliance on s 58 of the Government Sector Employment Act 2013 (NSW). That Act was enacted simultaneously with the MOPS Act. Subsections (2)-(6) are in similar terms to s 26 of the MOPS Act. Subsection (8) provides:

(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.

52. The State argued that “the implication is that s 58 would otherwise (that is, but for s 58(8)), prevent such proceedings from being brought in respect of the specific employment matters that are set out in ss 58(2)-(3)”, and that this implication extended to s 26 of the MOPS Act given the identical drafting of the privative clause and the fact of simultaneous enactment. The difficulty with the argument is that it does not pay close attention to what s 58(8) provides. What it addresses is that one employee (employee A) may bring proceedings in relation to the employment of another employee (employee B), including in relation to victimisation. Those proceedings might be critical of or adverse to employee B (eg complaining that employee B was benefitted in some way to the detriment of employee A). That possibility is consistent with the legislative background of the provision, which was traced in Davie v Industrial Relations Secretary (No 2) [2019] NSWIRComm 1056; (2019) 290 IR 180 at [79]-[86]. But given the text of s 58(8), the proceedings might also be in the interests of employee B (eg if employee A was a union representative complaining that employee B had been victimised). The subsection does not address the topic of employee B bringing proceedings in relation to their own employment, which is the topic at issue in this case. Moreover, it seems unlikely that the Parliament would have intended that another employee could bring proceedings to the benefit of employee B but employee B could not do so themselves.

53. If anything, thus, this provision tends to undercut the State’s argument insofar as it arguably assumes that employee B could bring the identified type of proceedings on their own behalf, and is dispelling any implication that might have been drawn as regards employee A doing so. It is not necessary to rely on that conclusion; it is sufficient to note that the State’s argument is unpersuasive.

54. In support of her position the respondent invoked the Full Bench’s reasons on the clear statement principle or “principle of legality” (IRC [68]-[71] and [113]). The Full Bench identified that principle as a presumption that “a statute will not be construed so as to abrogate fundamental rights or freedoms unless such an intention is clearly manifested by unambiguous language” (IRC [68]). The fundamental rights it identified were statutory in nature, in particular certain anti-discrimination provisions (IRC [71]). It is not necessary to address this issue. However, it should be noted that application of the principle to statutory rights or provisions is not without complexity or controversy: note P Herzfeld and T Prince, Interpretation (3rd ed, 2024, Lawbook) at [9.120]; and compare, as regards the common law, Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 at [90]-[91], [100]-[106] and [162]-[167]. The Full Bench’s assumption that the principle applied to the statutory provisions it identified did not grapple with that complexity.

55. In sum, the words “any other relief” in s 26(5) are appropriately construed as not extending to relief granted in a non-judicial tribunal such as the Commission. The Full Bench was thus correct to conclude – if for somewhat different reasons – that the provision did not deprive the Commission of jurisdiction to determine the respondent’s application. The State’s challenge on Issue 2 fails.

Issue 3: was there some action by an employer for the purposes of s 210?

56. Section 210(1) of the IR Act states that “an employer or industrial organisation must not victimise an employee” because of any of the reasons listed in pars (a)-(s). The notion of victimising involves some conduct by the employer or industrial organisation. Thus s 213(5), which creates a presumption, refers to “an employee or prospective employee who suffers a detriment as a result of action by the employer or industrial organisation” (emphasis added). As noted above, the parties here agreed that the respondent was employed by the State, and the State was the only party listed as respondent to the application made in the Commission. In her supplementary written submissions, the respondent raised an argument that Ms Wilkinson was also an employer for the purposes of the provision. That argument is addressed below. Leaving that point aside, any actionable conduct proscribed by s 210(1) must have been undertaken by the State as the employer. The State is an artificial legal entity which acts through people. A necessary step in a claim such as that brought by the respondent is identifying particular conduct which can be attributed to the State in its capacity as employer of the person.

57. Section 14(1) of the MOPS Act provides:

14 Members of Parliament may employ staff

(1) A member of Parliament may, on behalf of the State, employ a person under a written agreement to assist the member in exercising his or her functions as a member of Parliament.

58. This provision speaks of an MP acting to “employ a person”. However, it makes clear that in so doing the MP is acting on behalf of – that is, as an agent of – the State. By implication, it is the State which is then the employer of a staffer so employed, in the sense that the State is the other party to the employment contract.

59. The provision illustrates that the notion of employing someone relevantly has two (connected) meanings: first, that the person is undertaking an action to employ someone, in the sense of engaging them, but without that person themselves entering an employment relationship with the new employee (such as when a human resources director employs someone by offering them a job with the employing entity); second, actually entering a contractual employment relationship with the new employee. The first meaning is also manifest in the long title to the MOPS Act, which states that it is an Act “relating to the employment of staff by members of Parliament and by Ministers and certain other political office holders”. So it is, too, in the reference in s 18 to the number of persons “that a member of Parliament is entitled to employ under section 14” being determined by the Parliamentary Remuneration Tribunal.

60. The first meaning is also manifest in s 16(1) of the Act, which provides that the “power of [an MP] to employ staff under this Part may be exercised only in accordance with arrangements approved by the relevant Presiding Officer and the exercise of that power is subject to such conditions as are determined by the relevant Presiding Officer”. That provision reflects the fact that it is the State which is the employer, such that it – through the Presiding Officer – can control the conditions of employment. That point is also reflected in s 17, which provides for the relevant Presiding Officer to approve a model agreement for the employment of staff under Pt 3. Similarly, s 19 empowers the relevant Presiding Officer to determine the conditions of employment of persons employed under Pt 3.

58. Section 25(1) states that “[a]ny liability incurred under any Act or law by a member of Parliament in his or her capacity as the employer of persons under this Part is taken to be the liability of the office of the relevant Presiding Officer”. Presumably the section is intended to capture any liability that might arise insofar as an MP exercised the functions of employer on behalf of the State, such as by the choice to employ the staffer pursuant to s 14(1).

59. Section 20 is headed “Termination of employment”. Subsection (3) states that an MP “may at any time dispense with the services of a person employed by the member of Parliament under this Part”. That provision empowers the MP to take a certain action. The reference to the staffer being employed by the MP must here be understood to invoke the first meaning of employ. Subsection (1) gives the action of the MP particular legal significance: “[t]he employment of a person under this Part by a member of Parliament terminates … (f) if the person’s services are dispensed with by the member of Parliament” (the provision is quoted in full above at [26]).

60. Section 20 thus draws a distinction between the MP dispensing with the staffer’s services and the termination of the staffer’s employment. The former is a decision taken by the MP (which, no doubt, must be communicated in some way to the staffer, whether by the MP or someone else on their behalf). The latter occurs automatically by virtue of the legislative provision. Thus, although the MP’s decision to dispense with the staffer’s services has the necessary consequence of termination, the termination itself is not effected by the MP’s decision but rather by operation of the statute. The State itself engages in no conduct which terminates the staffer’s employment.

61. That being so, on the face of it there is no conduct of the State which can amount to victimisation for the purposes of s 210. The position might be different insofar as the claimed victimisation involved detrimental conduct short of termination, such as not promoting the employee or not allowing them to work overtime or to act in a higher position or such like. A question then would arise as to whether the conduct of the person who caused that detriment was conduct that could be attributed to the employer. Those issues do not arise for consideration here and it is unnecessary to address them.

62. There are two ways in which it was suggested that the conclusion that ss 210 and 213 do not apply to termination of a staffer’s employment could be avoided. The first seeks to attribute the actions of the MP to the State; the second claims that the MP is an employer within the meaning of the IR Act.

The argument that the MP acts on behalf of the State to terminate

66. The State itself made the following argument for the purpose of Issue 1:

The employer functions are allocated by the MOPS Act; by necessity, the State acts through its officers and servants when exercising employer functions, those functions do not reside in some abstract conception of “the State”. The function of dispensing with a staff member’s services is conferred on the member of Parliament alongside a separate, more regulated termination power conferred on the relevant Presiding Member under s 20A.

67. At least on one view, the State thereby seemed to suggest that when an MP dispenses with the services of the staffer they are acting on behalf of the State. Regardless of what the State meant to imply by its argument, if that understanding was correct then it could then be argued that there was a positive action by the State – taken on its behalf by the MP – which could be attacked as victimisation. However, that argument cannot be sustained in the context of Pt 3 of the MOPS Act.

68. The Parliament has chosen to employ distinct notions: termination and dispensing with services. It is understandable that it has done so. Under the MOPS Act, staffers employed under Pt 3 are hired by and work for particular MPs but their employer is the State. If the MP no longer wishes to retain the services of the staffer then they can decide to dispense with the staffer’s services. The Act then gives that decision particular legal significance as regards the staffer’s employment by the State, namely terminating it. It would have been open to draft the Act in such a way that the MP acts on behalf of the State to terminate the staffer’s employment, just as the MP is expressed in s 14 to act on behalf of the State when employing the staffer. The Parliament chose to express itself differently. As the State submitted, there is a (weak) presumption that a drafter “will use the same or similar language throughout when meaning the same thing, and that where different words are used a change of meaning is intended”: King v Jones (1972) 128 CLR 221 at 266; [1972] HCA 44.

69. That point is reinforced by the drafting of s 20A, within Pt 3 of the MOPS Act. Section 20A(1) states:

(1)  The employment of a person under this Part by a member of Parliament may be terminated by the relevant Presiding Officer after consulting the member of Parliament if the relevant Presiding Officer is satisfied that the staff member has engaged in misconduct.

70. Thus the power of one officeholder is expressed in terms of termination and the power of another is not. The distinction in the language is reiterated in s 20A(8), which provides that the section “does not limit the power of a member of Parliament to dispense with the services of a staff member under section 20”.

71. It may be that the distinctive language was chosen in order to indicate that the MP is not the representative of the State for the purposes of all employment matters, whereas to a significant extent the relevant Presiding Officer does occupy that role (aside from the initial decision to employ the staffer), consistently with the power of the relevant Presiding Officer to control employment terms and conditions (ss 16-19). The relevant Presiding Officer is also empowered by s 20(2) to direct that a staffer’s employment is not terminated by operation of s 20(1)(a)-(d) – for example if the MP ceases to be a member of Parliament – in which case the staffer is then taken to be employed by the relevant Presiding Officer (where “employed by” here seems to mean being answerable to). In any event, whatever the reason, the fact that one person is given a power to terminate and another person is given a power to dispense with services suggests the difference was intended and meant to have some significance.

72. The Full Bench was not persuaded of the materiality of this distinction:

[50] We agree with the applicant that the use of the different expressions in ss 20(3) and 20A can be explained by the nature of the employment relationship. It was the common position of the parties that while the member of Parliament makes the decision to employ a staffer, the staffer is not the employee of the member of Parliament but the State. Subsection 20(1) provides the various means by which the employment of a staffer by the State can be terminated, including where the member ceases to be a member of Parliament. Understood in that context it seems that the drafter has created a mechanism by which the employment can be terminated by the decision of a person who is not the employer and has accordingly adopted a different expression to distinguish between the decision of the member and the effect of that decision.

73. The respondent made a similar submission to this Court, saying that s 20(3) is “a bespoke mechanism whereby employment may be terminated by the decision of a person who is not the employer”. This analysis fails to recognise that even though an MP is not the employer, it would have been simple – indeed, simpler – for the provisions to have been drafted in such a way that the MP could act on behalf of the State to terminate the employment, just as s 20A effectively provides as much with respect to the relevant Presiding Officer, and just as s 14(1) equivalently provides with respect to creation of the employment relationship. In any case, the point made by the Full Bench in the final sentence just quoted is what is material here: the effect of the statutory drafting is that there is a difference between the decision of the MP and the effect of that decision. Termination is effected by the statute, not per se by the decision of the MP.

74. That the drafter’s choice to distinguish between dispensing with and terminating was meant to be significant is reinforced by the legislative history. The progenitor of the MOPS Act was the Members of Parliament (Staff) Act 1984 (Cth) (Commonwealth MOPS Act). In his second reading speech for the bill which became the MOPS Act, Premier O’Farrell referred to the federal scheme (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 23 May 2013 at 20860):

In the Commonwealth, ministerial staff members are employed directly by the relevant Minister, on behalf of the Commonwealth, subject to such general arrangements, conditions and terms as are set by the Prime Minister. Current arrangements in New South Wales can obviously give rise to difficulties and confusion. … Part 3 of the bill provides for new arrangements under which staff that assist members of parliament in their electorate and parliamentary duties are employed.

Part 3 of the bill provides that each member, on behalf of the State, is to be the employer of his or her staff. … These new arrangements are broadly modelled on the arrangements that have applied in the Commonwealth … for almost three decades.

75. In 2013 s 20(1) of the Commonwealth MOPS Act – consistently with s 14(1) of the MOPS Act – provided that a member of Parliament may “on behalf of the Commonwealth” employ a person as a member of their staff. However, s 23(2) stated that a member of Parliament “may at any time, by notice in writing given to a person employed by the Senator or Member under this Part, terminate the person’s employment”. Section 23(3) was in similar terms, giving a further power of termination to person employed by the member of Parliament (so, eg, a chief of staff could terminate the employment of another member of staff). There was no equivalent in the federal Act to s 20(1)(f) of the MOPS Act. Thus under the federal scheme the member of Parliament was empowered directly to terminate the employment of the staffer. The State Parliament’s adoption of a different approach suggests that the choice was deliberate and meant to have some significance.

76. It is a familiar drafting technique for a statute to authorise a decision-maker to express some conclusion or reach some decision and then give that conclusion or decision some automatic legal consequence: see eg Waterside Workers’ Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434 at 463-464; [1918] HCA 56. In such instances, “[t]he determination itself has no operative effect: it constitutes the factum by reference to which the Act operates to alter the law in relation to the particular case”: R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 378; [1970] HCA 8. In one case, the decision of a private entity about whether wheat should be capable of being exported was provided to have a particular binding effect on the government regulator (relevantly precluding it from approving wheat exports), yet the entity’s decision was held not to be subject to judicial review: NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277; [2003] HCA 35. That case illustrates that statutes may provide for particular legal consequences of a person’s decision without necessarily meaning that the person’s decision should be characterised as an exercise of statutory power to achieve that consequence.

77. Thus, properly understood, when an MP exercises their power to dispense with the services of a staffer under s 20(3) they are not themselves taking an action to terminate the employment of the staffer; they are taking an action to dispense with the services of the staffer, such that the staffer is no longer able to work for the MP. That is a distinct exercise of statutory power, which no doubt could be subject to judicial review for jurisdictional error. The Act then itself gives that decision further legal significance by terminating the staffer’s employment. It is the Act which itself effects that result; it is not the MP who does so. This understanding is reinforced by the fact that a remedy available under s 213(2)(a) of the IR Act is for the Commission to order the reinstatement of the employee, that being one of the orders sought by the respondent. Yet for such an order to be made would be to contradict what Parliament has provided in s 20(1)(f), terminating the staffer’s employment, at least in circumstances where it had not been established that the MP’s decision to dispense with the staffer’s services was invalid.

78. In this context it is not open to the staffer to complain that they have been victimised by an action of the employer. There is no relevant conduct undertaken by the State to terminate the employment, just as the staffer could not complain of being victimised because their employment had ended automatically because the MP had ceased to be a member of Parliament (pursuant to s 20(1)(a)) or had become a political office holder (s 20(1)(b)).

The argument that the MP is an employer

79. The respondent seemed to suggest in her supplementary written submissions that her employment may not have been terminated by operation of s 20(1)(f) and that this might raise mixed questions of fact and law which should be left to the Commission to resolve. Even leaving aside how that argument could be reconciled with the MOPS Act, it cannot be reconciled with her application to the Commission. The application states that she was terminated by Ms Wilkinson and then says that “[s]ection 20(1) of the [MOPS] Act empowers Ms Wilkinson to terminate employees employed under pt 3”. The operation of s 20(1)(f), unsurprisingly, is intrinsic to her complaint.

80. In a more substantive argument, the respondent invoked the definition of “employer” in the IR Act and effectively argued that, in light of that definition, “the [MP] (that directly employs the employee) and the State (on whose behalf the [MP] employed the employee) both fall within the definition of ‘employer’ under the IR Act”. She accepted that she had not joined Ms Wilkinson as a respondent but implicitly indicated an intention to do so. Given that indication, and given the State did not seek to rely on the point, it would be inutile to reject the argument on that basis.

81. The Dictionary of the IR Act (as given effect by s 4(1)) defines “employer” in these terms for the purposes of that Act:

employer means a person who employs an employee within the meaning of this Act—

(a) whether the person is an individual, a corporation, an unincorporated body or the State, and

(b) whether the person does so on the person’s own behalf or on behalf of some other person.

82. Being an employer involves employing an employee within the meaning of the IR Act. Section 5(1) defines “employee” relevantly as meaning “a person employed in any industry, whether on salary or wages or piece-work rates”. Thus being an employee involves being employed in an industry, which itself is a notion defined in broad terms in s 7. No definition is provided of “employed”. It can be inferred that the IR Act, alike with many statutes, invokes the general law understanding of that term: note I Neil, D Chin and C Parkin, The Modern Contract of Employment (3rd ed, 2023, Lawbook) at [1.010]; eg R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138 at 152-153; [1952] HCA 10.

83. The respondent’s argument hinges on that part of the definition of “employer” in the IR Act which encompasses “a person who employs an employee … on behalf of some other person”. She argued that even though the State had been her employer, in the sense that the State was the other party to the employment relationship, this definition meant that Ms Wilkinson was also her employer. The argument seemed to focus on the fact that Ms Wilkinson had employed the respondent on behalf of the State in the sense of first engaging her, acting pursuant to s 14(1) of the MOPS Act. That action was suggested to make Ms Wilkinson thereafter an employer of the respondent, alongside the State. The argument did not seem to be that Ms Wilkinson was her employer because it was her action on behalf of the State which led to the termination of the respondent’s employment. If that had been the argument it would fail for the reasons outlined above: Ms Wilkinson exercised her own power to dispense with the respondent’s services; she did not act on behalf of the State; and the respondent’s employment was terminated by operation of s 20(1)(f).

84. The notion of joint employment – where an employee has two employers with respect to a particular position – has not been recognised in Australia at common law: The Modern Contract of Employment, [2.001]. A statute could nevertheless have that effect: see eg Deputy Commissioner of Taxation (Cth) v Robinswood Pty Ltd [2005] WASC 67; (2005) 59 ATR 479 at [139]-[143].

85. It seems that the “on behalf of” aspect of the definition of “employer” first appeared in State industrial legislation in s 5 of the Industrial Arbitration Act 1912 (NSW) (1912 Act), which provided:

“Employer” means person, firm, company, or corporation employing persons working in any industry, whether on behalf of himself or itself or any other person or on behalf of the Government of the State, and includes the Chief Commissioner for Railways and Tramways, the Sydney Harbour Trust Commissioners, the Metropolitan Board of Water Supply and Sewerage, the Hunter District Water Supply and Sewerage Board, and any council of a municipality or shire, and includes for the purpose of constituting a board, a director, manager, or superintendent of an employer as defined as aforesaid.

86. The definition in s 2 of the predecessor statute, the Industrial Arbitration Act 1901 (NSW), did not include that aspect. That aspect of the definition in the 1912 Act was then repeated in s 5 of the Industrial Arbitration Act 1940 (NSW). So, too, in the successor Industrial Relations Act 1991 (NSW), s 5(2) of which defined employer as follows:

In this Act, “employer” means a person (whether an individual, a corporate or unincorporated body or the Crown or an agency of the Crown) who employs an employee within the meaning of this Act. It does not matter that the person does so on behalf of some other person.

87. Neither party addressed the legislative history of the definition. I have not identified anything in the ministerial speeches for the Acts identified which illuminate why Parliament considered it expedient to include the “on behalf of” aspect in the definition. Mr George Beeby, the Minister for Labour and Industry when the bill that became the 1912 Act was first introduced, said that there had been “a number of minor alterations of the machinery clauses, such as alterations of the definitions, in order to meet legal difficulties that have arisen from time to time” (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 14 June 1911 at 806). Presumably there was some reason for the change to the definition but what it was is not apparent.

88. When an artificial entity such as the State engages an employee it acts (at least currently) through a human agent, such as a team leader or human resources director. The respondent’s argument that such a person is also an employer for the purposes of the IR Act would have rather surprising consequences. For example it would seem to mean that that person:

1. could enter an enterprise agreement with the employee in question (IR Act, s 31);

2. is obliged to notify an employee about their entitlements to parental leave when becoming aware of circumstances that would lead to an entitlement, and must also keep a record of parental leave and all notices and documents for at least 6 years, at risk of criminal penalty (IR Act, s 67);

1. could be the subject of an order to pay outstanding amounts or compensation (IR Act, ss 89(3), 89(5), 213(2)(c), 365 and 368).

89. Such consequences could flow even though that person might no longer hold the position they held when the employee was engaged.

90. Neither party identified any judgment or decision which has addressed this long-existing aspect of the definition of employer. With the assistance of the Courts Library I have identified one such case, being a decision of the New South Wales Court of Industrial Arbitration considering the then newly enacted definition in the 1912 Act: Halliday v Boss [1916] AR 203 (Heydon J). The aptly named Mr Boss was the manager of the State Bakery. He was an employee of the Crown and was authorised to hire and dismiss bakers, subject to the approval of each appointment and dismissal by the Public Service Board. All of the proceeds of the business went to the Crown. Mr Boss had engaged a baker who subsequently complained of not being paid an overtime entitlement. Mr Boss was prosecuted personally for having contravened the employer’s obligation to pay this entitlement. It seems proceedings were brought against him because the Crown itself could not be prosecuted for the breach. The Chief Industrial Magistrate dismissed the prosecution. The Court of Industrial Arbitration dismissed the prosecutor’s appeal.

91. The Court held that despite the extended definition of employer in the 1912 Act, that notion did not extend to a person who had merely engaged the employee to enter the employ of the Crown. Justice Heydon said (at 206):

If the argument for the appellant is to be upheld, this consequence would apparently follow: that a person who engages an employee for someone else, not only by that very fact becomes his employer, but remains so. Even if he is himself dismissed, he can never shake off the damning fact that he “employed” the employee on behalf of another person, and as long as the service continues he must remain liable for any breach of the award. It seems to me improbable that the Legislature intended this.

92. That reasoning remains persuasive. And that is so even though, as outlined above, the MOPS Act does in some instances invoke the notion of “employ” to refer to engaging a person. That characteristic of the MOPS Act does not assist in construing the general definition of “employer” in, and for the purposes of, the IR Act. The argument that the person who happened to take the step of engaging an employee should thereafter be treated as an employer is a most unlikely construction, as illustrated by the possible consequences outlined above. It is neither necessary nor appropriate to seek to resolve here what the precise effect is of the “on behalf of” aspect of the definition of “employer”. It may have work to do in some instances where a person is exercising employer functions on behalf of the employer. Regardless, the construction put by the respondent should not be accepted.

93. Ms Wilkinson was not the employer of the respondent for the purposes of s 210 of the IR Act.

Conclusion on Issue 3

94. The State did not take any step to terminate the respondent’s employment. Her services were dispensed with by Ms Wilkinson, and that step was a factum which meant that s 20(1)(f) automatically terminated the employment relationship. Ms Wilkinson was not the respondent’s employer in the relevant sense when she took the step of dispensing with the respondent’s services. There was thus no action taken against the respondent by her employer which could be impugned as victimisation under s 210 of the IR Act. The Commission’s jurisdiction under s 213 was therefore not enlivened.

Orders

95. The Full Bench erred in concluding that the Commission had jurisdiction to determine the respondent’s application, albeit the error is for a reason that was not raised before it. The order it made answering the jurisdictional question “yes” should be quashed. The State sought an order that the proceedings in the Commission be dismissed. The respondent accepted that such an order should be made if this Court concluded that the Commission did not have jurisdiction. The parties agreed that there should be no order as to costs in this Court. The order of the Court should therefore be as follows: “The orders made by the Industrial Relations Commission on 29 May 2025 in proceedings 2024/00463981 are quashed and, in lieu thereof, those proceedings are dismissed”.

96. BALL JA: I agree with Kirk JA.

**********

Decision last updated: 01 September 2025