State of New South Wales v Ashton

The State of New South Wales appealed to the Court of Appeal of New South Wales against orders made by the Industrial Relations Commission. The dispute concerned the employment of the respondent, Mr Ashton, who was employed as a staffer under the *Members of Parliament (Staff) Act 2013* (NSW). Mr Ashton's services were terminated, and he sought relief from the Industrial Relations Commission for alleged victimisation under the *Industrial Relations Act 1996* (NSW).

The central legal issues before the Court of Appeal were whether section 26(5) of the *Members of Parliament (Staff) Act 2013* excluded the application of the victimisation provisions of the *Industrial Relations Act 1996* to Mr Ashton's employment. This involved determining whether a Member of Parliament, in terminating the employment of a staffer, acted on behalf of the State of New South Wales, and consequently, whether the Member of Parliament constituted Mr Ashton's "employer" for the purposes of the *Industrial Relations Act 1996*.

The Court of Appeal reasoned that the *Members of Parliament (Staff) Act 2013* established a statutory framework for the employment of parliamentary staff, and section 26(5) specifically provided that the employment of a staffer was not subject to the provisions of the *Industrial Relations Act 1996*. The Court held that the termination of a staffer's employment by a Member of Parliament was an act done in the course of the Member's parliamentary duties and on behalf of the State. Therefore, the Member of Parliament was not an "employer" in the sense contemplated by the *Industrial Relations Act 1996*, and the victimisation provisions of that Act did not apply.

Consequently, the Court of Appeal quashed the orders made by the Industrial Relations Commission and dismissed the proceedings.