1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Paul O'Connell
v
Catholic Education Office, Archdiocese of Sydney T/A Catholic Education
Office, Sydney
(U2015/3674)
JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT HAMILTON
COMMISSIONER ROBERTS
COMMISSIONER JOHNS
MELBOURNE, 24 MARCH 2016
Application for relief from unfair dismissal – jurisdictional objection – meaning of dismissed
– section 386 Fair Work Act 2009 – proper construction of the Child Protection (Working
with Children) Act 2012 (NSW).
1. Introduction
[1] This decision deals with an important point concerning the proper construction of the
Child Protection (Working with Children) Act 2012 (NSW) (the Child Protection Act).
[2] Mr Paul O’Connell (the Applicant) was a teacher employed by the Executive Director
of Catholic Schools in the Roman Catholic Archdiocese of Sydney (the Respondent) and his
job involved ‘child-related work’ within the meaning of s.6 of the Child Protection Act. In
December 2014 the Applicant was charged with one count of indecent assault on a person
under the age of 16 years (the offence). It is common ground that after the Applicant was
charged with the offence he became a ‘disqualified person’ for the purpose of s.18 of the
Child Protection Act. The Respondent submits that it was prohibited from continuing to
employ the Applicant in ‘child-related work’ from the time the Applicant became a
disqualified person, by virtue of s.9 of the Child Protection Act, and on that basis the
Respondent terminated the Applicant’s employment on 20 February 2015.
[3] The Applicant has applied for an unfair dismissal remedy pursuant to s.394 of the Fair
Work 2009 (Cth) (the FW Act). The Respondent has taken a jurisdictional objection to that
application contending that the Applicant’s employment was not terminated on the
Respondent’s initiative.
[2016] FWCFB 1752
DECISION
E AUSTRALIA FairWork Commission
[2016] FWCFB 1752
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[4] In determining the Respondent’s jurisdictional objection the question is whether the
Applicant was ‘dismissed’ from his employment by the Respondent for the purposes of
s.386(1) of the FW Act. That question turns on the proper construction of s.9 of the Child
Protection Act. The relevant background facts are uncontentious.
2. Background Facts
[5] The Applicant commenced employment as a secondary school teacher at Marist
Brothers Penshurst on or around 21 May 1979 and was employed by the Respondent until
20 February 2015.
[6] Throughout his employment with the Respondent, the Applicant performed work as a
classroom teacher in secondary schools operated by the Respondent. During the period
from 1993 to 2003 the Applicant worked as a Professional Officer in the Respondent's
Information Technology Unit and performed non-teaching work in schools. From August
2003, the Applicant resumed in his role as a classroom teacher at schools operated by the
Respondent. Most recently, the Applicant had been teaching at Mount St Joseph Milperra,
a secondary school for girls.
[7] On 15 June 2013, the Child Protection Act commenced operation. As we have
mentioned, the Applicant's role involved undertaking ‘child-related work’ for the purposes
of s.6 of that Act.
[8] The Applicant was not required to obtain a ‘Working with Children Check
Clearance’ (a Clearance) upon the commencement of the Child Protection Act because of
the staged application of that Act to existing child-related workers, as provided in
Schedule 1 to the Child Protection (Working with Children) Regulation 2013 (NSW) (the
Regulations).
[9] On 11 December 2014, the Respondent placed the Applicant on ‘Director Approved
Leave’ pending an investigation into alleged ‘inappropriate conduct with a person under
the age of 18 years of age’. On 15 December 2014, the Respondent wrote to the Applicant
confirming the basis of that leave.
[10] On 17 February 2015, the Applicant was charged with one count of indecent
assault on a person under the age of 16 years, pursuant to s.61M(2) of the Crimes Act
1900 (NSW). The Court Attendance Notice required the Applicant's attendance in court
on 10 March 2015.
[11] On 18 February 2015, the Respondent wrote to the Applicant requesting his
attendance at a meeting on 20 February 2015, in which the Respondent foreshadowed that
the Applicant would be asked to ‘show cause’ why ‘his employment should not be
terminated forthwith’.
[12] The Applicant attended a meeting on 20 February 2015 at the Sydney premises of
the Catholic Education Office, in Leichhardt. At that meeting the Applicant told the
Respondent that he denied the allegation forming the basis of the charge, intended to enter
[2016] FWCFB 1752
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a plea of not guilty and would make application to have his bail conditions varied. The
Applicant also proposed various alternative courses of action to the foreshadowed
termination of his employment, including that, pending determination of the criminal
charge, the Applicant be assigned alternative duties; or be suspended (with or without
pay) or be placed on leave (with or without pay); and requested that he be permitted to
apply for external work while on leave. During the course of the meeting the Applicant was
informed by Mr Stephen Corbishley, an officer of the Respondent, that his employment
was terminated effective from that date.
[13] By letter dated 24 February 2015, the Respondent wrote to the Applicant
confirming the termination of his employment effective from 20 February 2015.
[14] At the time of the termination of his employment with the Respondent, the
Applicant had an amount of 945.83 hours (24.89 weeks) of accrued but untaken long
service leave and 42.18 hours (1.11 weeks) of accrued but untaken annual and pupil free
leave.
[15] On 5 August 2015, the charge against the Applicant was formally withdrawn before
Burwood Local Court and on or around 10 August 2015 the Applicant applied for a
‘Clearance’.
[16] In the Amended Employer's Response to Mr O’Connell’s unfair dismissal application,
the Respondent indicated, among other things, that it was seeking permission to appeal the
decision in Gerald Mahony v Dr Daniel J White (Executive Director of Schools of the
Catholic Education Office, Sydney) T/A Catholic Education Office, Sydney1 (Mahony). In
Mahony the respondent contended that the applicant’s employment came to an end by
operation of the doctrine of frustration. Mr Mahony had been charged with certain offences
and as a consequence could not engage in ‘child-related work’ because of the operation of the
Child Protection Act. At first instance the Commission rejected the respondent’s jurisdictional
objection. The appeal was heard on 21 July 2015.
[17] The Appeal Bench in Mahony dealt with questions of a similar nature to those raised
in this matter, as the Appeal Bench observed - :
‘…notwithstanding the case below was run on the basis of frustration, the Full Bench notes that
the case before it has been run on the basis that the continuation of employment is not
permissible and is inconsistent with the Child Protection (Working with Children) Act 2012.’2
[18] In an ex tempore decision the Appeal Bench determined that:
(i) it was not permissible and inconsistent with the Child Protection Act to continue the
employment of Mr Mahony; and
(ii) it could not be fairly said that Mr Mahony's employment was terminated on the
employer's initiative pursuant to s.386(1)(a) of the FW Act.3
[19] On 21 August 2015 the Applicant sought to refer two questions of law to the Federal
Court, pursuant to s.608 of the FW Act. The questions sought to be referred were as follows:
[2016] FWCFB 1752
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(i) Whether the Respondent was required to immediately terminate the employment of Mr
Paul O’Connell by reason of proceedings being commenced against him for an offence
that resulted in him becoming a ‘disqualified person’ for the purposes of the Child
Protection Act 2012?
(ii) Whether Mr O’Connell was ‘dismissed’ from his employment by the Respondent for the
purposes of s.386 of the FW Act in that his employment was terminated on the employer’s
initiative?
[20] In the alternative the Applicant sought a direction under s.615 of the FW Act that a
Full Bench determine the Respondent’s jurisdictional objection. In support of the proposed
direction the Applicant submitted that in the course of the jurisdictional objection proceedings
he intended to submit that the decision of the Appeal Bench in Mahony was wrong.4
Specifically, the Applicant intended to submit that the Mahony decision is inconsistent with
the approach in Mohazab v Dick Smith Electronics Pty Ltd (No2) 5 and with the earlier Full
Bench decision in Fraser v Sydney Harbour Casino Pty Ltd 6 and the decision of Hamilton
DP in Phillips v State of Victoria (Department of Education and Training).7
[21] Ultimately the s.608 referral application was not pressed and the parties consented to
the jurisdictional objection being referred to a Full Bench. We now turn to the issue before us.
The Issue
[22] As mentioned earlier, the question before us is whether the Applicant was ‘dismissed’
from his employment by the Respondent, within the meaning of the FW Act.
[23] Section 394(4) of the FW Act provides that a ‘person who has been dismissed’ may
apply to the Commission for an order granting a remedy. Section 386 deals with the meaning
of ‘dismissed’, as follows:
‘386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the
employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so
because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period
of time, for a specified task, or for the duration of a specified season, and the
employment has terminated at the end of the period, on completion of the task, or at
the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any
reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement;
or
[2016] FWCFB 1752
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(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her
remuneration or duties; and
(ii) he or she remains employed with the employer that effected the
demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred
to in paragraph (2)(a) if a substantial purpose of the employment of the person under a
contract of that kind is, or was at the time of the person’s employment, to avoid the
employer’s obligations under this Part.’
[24] The Respondent contends that upon the Applicant becoming a ‘disqualified person’,
the Applicant could not be granted a ‘Clearance’ and the Respondent was prohibited from
‘continuing to employ’ the Applicant in ‘child-related work’ because of s.9 of the Child
Protection Act.
[25] The essence of the Respondent’s submission is that the Applicant was employed as a
teacher and so was required to perform ‘child-related work’ and that once he was charged with the
offence the Respondent could no longer ‘continue to employ’ him as a teacher. The Respondent’s
contention turns on the proper construction of s.9 of the Child Protection Act.
3. The Child Protection (Working with Children) Act 2012 (NSW) (Child
Protection Act)
[26] The Child Protection Act commenced operation on 15 June 2013. The object of the
Act is set out in s.3:
‘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.’
[27] The concept of ‘child-related work’ is central to the operation of the Child Protection
Act and is defined in s.6 as follows:
6 Child-related work
(1) A worker is engaged in child-related work for the purposes of this Act if:
(a) the worker is engaged in work referred to in subsection (2) that involves direct
contact by the worker with children, or
(b) the worker is engaged in work in a child-related role referred to in subsection (3).
(2) The work referred to is work for, or in connection with, any of the following that is
declared by the regulations to be child-related work: …
(g) education
schools or other educational institution (other than universities) and private coaching
or tuition of children,
(4) In this section:
[2016] FWCFB 1752
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direct contact with children means:
(a) physical contact, or
(b) face to face contact.
[28] For the purposes of s 6(1)(a), ‘child-related work’ involves two components:
(i) the work must be of a type identified in subsection (2) and which is declared by
the regulations to be ‘child-related work’; and
(ii) the work must involve ‘direct contact by the worker with children’. The types of
work referred to in s.6(2)(g) includes ‘schools or other educational institutions
(other than universities)’. The Child Protection (Working with Children)
Regulation 2013 (NSW) (the Regulations) declares that work in schools is child-
related work for the purposes of s.6(2).8
[29] A ‘worker’ in the context of the Child Protection Act is broadly defined in s.5(1) and
means:
‘… any person who is engaged in work in any of the following capacities:
(a) as an employee,
(b) as a self employed person or as a contractor or subcontractor,
(c) as a volunteer,
(d) as a person undertaking practical training as part of an educational or vocational
course (other than as a school student undertaking work experience),
(e) as a minister, priest, rabbi, mufti or other like religious leader or spiritual officer
of a religion or other member of a religious organisation.’9
[30] The definition of ‘employer’ in s.5(1) reflects the broad range of working relationships
encompassed in the above definition.
[31] Section 8(1) provides that a worker must not engage in child-related work unless the
worker holds a ‘Clearance’ of a class applicable to the work or there is a current application
by the worker for a ‘Clearance’. Section 8(2) further provides that a worker must not engage
in child-related work at any time that the worker is the subject of an ‘interim bar’. The
relevant part of s.8 provides:
‘(1) A worker must not engage in child-related work unless:
(a) the worker holds a working with children check clearance of a class applicable to
the work, or
(b) there is a current application by the worker to the Children’s Guardian for a
clearance of a class applicable to that work.
Maximum penalty: 100 penalty units, or imprisonment for 2 years, or both.
(2) A worker must not engage in child-related work at any time that the worker is subject to an
interim bar.
Maximum penalty: 100 penalty units, or imprisonment for 2 years, or both…’
[2016] FWCFB 1752
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[32] Section 9 provides that an employer must not commence employing, or continue to
employ, a worker ‘in child-related work’ in certain circumstances. We set out the terms of s.9
later.
[33] Provision is made in Part 3 of the Child Protection Act for applications for a
‘Clearance’ to be made to the Children’s Guardian and for the conduct of risk assessments by
the Children’s Guardian. Where an application for a ‘Clearance’ has been made, the
Children’s Guardian may issue an ‘interim bar’ under s.17(1) pending the determination of
the application. Section 17 provides:
17 Interim bars
(1) The Children’s Guardian may, at any time after receiving an application for a working
with children check clearance or commencing an assessment of an Applicant for or holder of a
clearance, determine that the Applicant or holder is subject to an interim bar, being a bar on
the Applicant or holder doing any of the following:
(a) engaging in child-related work,
(b) residing on the same property as an authorised carer,
(c) residing on a property where a home based education and care service or family day
care service is provided.
(2) The Children’s Guardian may make a determination under this section if it is of the
opinion that it is likely that there is a risk to the safety of children if the Applicant or holder
engages in child-related work or resides on a property referred to in subsection (1) (b) or (c)
pending the determination of the application or assessment.
(3) The Children’s Guardian must as soon as practicable after determining that an Applicant
or holder is subject to an interim bar, give written notice of that determination to the Applicant
or holder and to each person that the Children’s Guardian reasonably believes to be a
notifiable person in relation to the Applicant or holder.
(4) An interim bar ceases to have effect:
(a) on notification in writing by the Children’s Guardian to the Applicant or holder that
the interim bar is revoked, or
(b) in the case of an Applicant for a clearance, if the Applicant is granted or refused a
clearance, or
(c) 12 months after the interim bar takes effect,
whichever occurs first.
[34] Section 18 provides for the determination of applications for Clearances and in
particular provides that the Children’s Guardian must not grant a ‘Clearance’ to a
‘disqualified person’. Section 18(1) defines a ‘disqualified person’ in the following terms:
18 Determination of applications for clearances
(1) The Children’s Guardian must not grant a working with children check clearance to the
following persons (disqualified persons):
(a) a person convicted before, on or after the commencement of this section of an offence
specified in Schedule 2, if the offence was committed as an adult,
[2016] FWCFB 1752
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(b) a person against whom proceedings for any such offence have been commenced, if
the offence was committed as an adult, pending determination of the proceedings for the
offence.
…
[35] The Children’s Guardian is also required, by s 23(1), to cancel a person’s ‘Clearance’
if the Children’s Guardian becomes aware that the person is a ‘disqualified person’.
[36] Part 4 of the Child Protection Act makes provision for reviews and appeals. A person
who has been refused a ‘Clearance’ or whose ‘Clearance’ has been cancelled may apply to the
Civil and Administrative Tribunal for administrative review of the decision.10 The Tribunal
may, on application by a disqualified person, make an order declaring that the person is not to
be treated as a disqualified person for the purposes of the Act.11
[37] As we have mentioned, the Applicant was not required to obtain a ‘Clearance’ upon
the commencement of the Child Protection Act by reason of the staged application of the Act
to existing child-related workers, as provided for in Schedule 1 to the Regulations.
[38] Clause 2 of Schedule 1 of the Regulations deals with ‘Savings and transitional
provisions’ and it provides, relevantly for present purposes, :
‘2 Staged application of Act to volunteers and existing workers and others
(1) This clause applies to the following persons:
(a) workers engaged in child-related work as volunteers,
(b) existing child-related workers who continue in the employment of the existing
employer,
(c) existing residents who continue to reside at the home of the same authorised carer or
at the same home where a home based education and care service or family day care
service was provided immediately before the commencement of Part 2 of the Act, and
where that care or service continues to be provided,
(d) a person to whom clause 4 of Schedule 3 to the Act applies who is not exempted by
that clause from having to comply with Division 2 of Part 2 of the Act.
(2) Until the end of the applicable compliance date specified by this clause for work done by a
person, the person is not required to obtain or have a working with children check clearance in
respect of that work and:
(a) in the case of a child-related worker, section 9 of the Act does not apply in respect of
an employer of any such person, and
(b) in the case of an existing resident, section 10 (2) of the Act does not apply to the
applicable designated agency or the applicable approved provider.’
[39] Clause 10(1) of Part 2 of the Regulations provides that work in schools is ‘child-
related work’ and subclause 2(6)(b) of Schedule 1 provides that the ‘applicable compliance
date’ (for the purpose of clause 2(2), set out above) for ‘education-secondary schools’ is 31
March 2017.
[2016] FWCFB 1752
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[40] As a consequence of these provisions a teacher in a secondary school (i.e. an ‘existing
child-related worker’) who continues in the employment of their existing employer is not
required to obtain or have a ‘Clearance’ in respect of that work, until 31 March 2017. Further,
s.9 of the Child Protection Act does not apply in respect of an employer of any such person.
The Applicant was such a person.
[41] Importantly in the present context the staged implementation arrangements to which
we have referred do not apply to ‘disqualified persons’. Subclause 2(9A) of Schedule 1
provides:
‘This clause does not apply to a person who:
(a) is a disqualified person, …’
[42] It is common ground that the Applicant became a ‘disqualified person’ upon the
commencement of the proceedings for the offence (see s.18(1)(b)). At that time the staged
application of the Child Protection Act did not apply to the Applicant and he was required to
obtain a ‘Clearance’ in order to undertake child-related work, but was unable to obtain such a
‘Clearance’ because of the operation of s.18(1). Section 9 of the Child Protection Act applied
to the Respondent in respect of its employment of the Applicant, when the Applicant became
a disqualified person.
[43] Further, at the time his employment was terminated on 20 February 2015 it is common
ground that the Applicant:
(i) was a ‘disqualified person’ within the meaning of s.18;
(ii) did not have a working with children check clearance; and
(iii) was required to have a working with children check clearance in order to
undertake ‘child-related work’.
[44] It is in this context that s.9 of the Child Protection Act is of significance. Section 9(1)
provides:
9 Employers must require clearance or current application
(1) 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:
(a) the worker is not the holder of a working with children check clearance that
authorises that work and that there is no current application by the worker to the
Children’s Guardian for a clearance of a class applicable to that work, or
(b) the worker is subject to an interim bar.
[45] It is common ground that the Respondent knew that the Applicant was not the holder
of a ‘Clearance’ and that at the relevant time he had not applied for such a ‘Clearance’.
[46] The Respondent’s contention that it had no lawful alternative but to terminate the
Applicant’s employment turns on the meaning of the expression ‘An employer must not
commence employing, or continue to employ, a worker in child-related work…’ (emphasis
added) in s.9 of the Child Protection Act.
[2016] FWCFB 1752
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[47] The Respondent submits that the Applicant’s unfair dismissal application should be
dismissed for want of jurisdiction on the basis that on becoming a ‘disqualified person’ under
the Child Protection Act, the Applicant could not be granted a ‘Clearance’ and that s.9(1)
prohibited the Respondent from ‘continuing to employ’ the Applicant in ‘child-related work’.
In short it is submitted that the Applicant was employed as a teacher and so was required to
perform ‘child-related work’ and once he was charged with a proscribed offence the
Respondent could no longer ‘continue to employ’ him as a teacher. It is said that the
Applicant’s dismissal was not a dismissal at the initiative of the employer, rather the
Respondent had no lawful choice but to terminate the Applicant’s employment.12
[48] It is important to note that the Respondent is not advancing an argument based on the
doctrine of frustration.13
[49] The Applicant rejects the Respondent’s proposed construction of s.9 and submits that
while the Child Protection Act prohibits a ‘disqualified person’ from undertaking or being
permitted to undertake ‘child-related work’, it does not require the immediate severing of the
employment relationship merely because an employee has become a ‘disqualified person’.
[50] The starting point is to construe the words of the Child Protection Act according to
their ordinary meaning having regard to their context and legislative purpose. Context
includes the existing state of the law and the mischief the legislative provisions was intended
to remedy.14 Regard may also be had to the legislative history in order to work out what a
current legislative provision was intended to achieve.15
[51] Section 9 of the Child Protection Act must be read in context by reference to the
language of the Act as a whole.16 The relevant legislative context may operate to limit a word
or expression of wide possible connotation17 and, further, the literal meaning (or the ordinary
grammatical meaning) of the words of a statutory provision may be displaced by the context
and legislative purpose. As the majority observed in Project Blue Sky Inc v Australian
Broadcasting Authority:
‘… the duty of a court is to give the words of a statutory provision the meaning that the
legislature is taken to have intended them to have. Ordinarily, that meaning (the legal
meaning) will correspond with the grammatical meaning of the provision. But not always. The
context of the words, the consequences of a literal or grammatical construction, the purpose of
the statute or the canons of construction may require the words of a legislative provision to be
read in a way that does not correspond with the literal or grammatical meaning.’18
[52] More recently, in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue19
the High Court described the task of legislative interpretation in the following terms:
‘This Court has stated on many occasions that the task of statutory construction must begin
with a consideration of the text itself. Historical considerations and extrinsic materials cannot
be relied on to displace the clear meaning of the text. The language which has actually been
employed in the text of legislation is the surest guide to legislative intention. The meaning of
the text may require consideration of the context, which includes the general purpose and
policy of a provision, in particular the mischief it is seeking to remedy.’
[2016] FWCFB 1752
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[53] Section 33 of the Interpretation Act 1983 (NSW) requires that a construction that
would promote the purpose or object of the Child Protection Act is to be preferred to one that
would not promote that purpose or object. As we have mentioned, the Child Protection Act
has the object of protecting children by not permitting certain persons to engage in child-
related work and by requiring persons engaged in child-related work to have Clearances.20
The Act has broad application to a range of relationships under which work is performed.
[54] The Respondent’s contention turns on the meaning of the expression ‘must not …
continue to employ, a worker in child-related work’, in s.9(1). The Respondent submits that
the word ‘employ’ in this context means ‘to hire or engage’ and on that basis submits that the
prohibition in s.9(1) goes to the continuation of the employment relationship.
[55] The word ‘employ’ has more than one meaning. The meanings ascribed to ‘employ’
in the Shorter Oxford Dictionary are:
‘Use for a particular purpose, make use of …
Use or retain the services of (a person), esp. in return for payment; pay (a person) to work for
oneself or one’s organisation …
Keep (a person, a person’s senses or powers) occupied or busy … be engaged in work.’
[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.
[58] Contrary to the Respondent’s contention, the fact that Mr O’Connell was unable to
obtain a ‘Clearance’ because he was a ‘disqualified person’ does not mean that s.9 of the
Child Protection Act required the Respondent to terminate his employment. That section, on
its proper construction, does not prevent an employer continuing to employ a person provided
that the person is not employed ‘in child-related work’. An employer could, for example,
continue to employ the person on suspension, on leave or assigned to duties not involving
child-related work.
[59] Section 9 is in Division 2 of Part 2 of the Child Protection Act which is titled
‘Mandatory requirements for child-related work’ and the focus of s.9 on ‘child-related work’
is consistent with that heading.21 The Child Protection Act is directed at a person engaging in
‘child-related work’ and the object of the Act is to protect children by imposing restrictions
and requirements upon persons who engage in ‘child-related work’. The construction we have
adopted is consistent with this legislative purpose. Construing s.9 such that it requires
termination of employment of a person who is able to continue employment without engaging
in ‘child-related work’ does not advance the object of the Act.
[60] Three other contextual considerations support the adoption of such a construction.
[2016] FWCFB 1752
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[61] First, construing the word ‘employ’ in the manner proposed fits more conformably
with the scope of the Child Protection Act than the construction advanced by the Respondent.
It will be recalled that the Act adopts a broad definition of a ‘worker’ which includes, among
other categories, a volunteer and a contractor. The use of the word ‘employ’ to connote hiring
or engagement might be apt in the context of an employment relationship, properly speaking,
but not in relation to the broad range of working relationships, including non-employment
relationships, encompassed by the legislation.
[62] Second, it will be recalled that s.8(1) provides that a worker ‘must not engage in child-
related work’, in certain circumstances. Section 8 can be seen as the counterpart to s.9, : s.8
applies to workers and s.9 applies to employers. Importantly, s.8 uses the expression ‘engage
in child-related work’ whereas s.9 uses a different expression’, ‘continue to employ … in
child-related work’. The difference in language between ss.8 and 9 tells against the
Respondent’s submission that the word ‘employ’ in s.9 means ‘to hire or engage’. If that
were so, one would have expected the Parliament to have used the word ‘engage’ in s.9, as it
did in s.8. The use of the word ‘employ’ in s.9 suggests that Parliament intended it to mean
something different from ‘engage’.
[63] Third, s.9(1) also applies to a worker who is the subject of an interim bar imposed
under s.17(1) pending the determination of an application for a Clearance. On the
Respondent’s construction of s.9(1) the imposition of an interim bar must lead to immediate
dismissal22 even though there is a right to seek administrative review of a decision to impose
an interim bar (pursuant to s.27(3)). An interim bar may be imposed for a period of up to
12 months while an application is being assessed.23 If the Respondent’s contentions are
correct, an employer would be required to terminate the employment of an employee merely
because an interim bar is imposed.24 It is inherently unlikely that the legislature intended to
mandate the termination of an employment relationship merely because an interim bar is
imposed pending further inquiries being made.
[64] The extrinsic materials also support the interpretation we have adopted. The second
reading speech confirms that the focus of the legislation is upon persons engaging in ‘child-
related work’ and supports the conclusion that s.9 does not require the termination of the
employment relationship simply because proceedings for a relevant offence have been
commenced or an interim bar has been imposed.
[65] In referring to what became ss.8 and 9 of the Child Protection Act, the Minister made
clear that those provisions are directed at engagement in ‘child-related work’. Relevantly, the
Minister said:25
‘Clauses 8 and 9 in division 2 of the bill set out the mandatory provisions applying to child-
related work. The Working with Children Check will now provide a universal and clearly
recognisable standard for workers and employers. A Working with Children Check
application can produce two outcomes: a clearance for all child-related work or a bar from all
child-related work. A person must not engage in child-related work without a Working with
Children Check clearance or a current Working with Children Check application. A person
who has been barred cannot meet either of these standards and so must not engage in child-
related work. It is an offence to breach this rule. A person has a current application if he or she
has completed the application form successfully, verified his or her identity and paid any
[2016] FWCFB 1752
13
required application fee. As long as the commission has not issued a bar or terminated the
application, a person awaiting the outcome of a current application may work with children.
The commission's capacity to issue interim bars when there are demonstrated serious risks will
continue to keep children safe while these risks are being assessed.’ (emphasis added)
[66] The Minister’s second reading speech also makes clear that Parliament did not intend
that an employee will be automatically required to be dismissed by reason of becoming a
‘disqualified person’ due to a pending charge or being subject of an interim bar. The Minister
said:26
‘As I noted before, the new Working with Children Check provides two outcomes from a
Working with Children Check application: the Applicant is cleared or the Applicant is barred.
Employers have indicated that they must be free to suspend or dismiss workers from child-
related roles if the worker becomes barred or is not authorised to work with children under this
legislation and its regulations. Clause 47 provides that a person suspended or dismissed as a
result of being barred or not having the required authority to work with children may not be
reinstated or re-employed, or given damages or compensation for this by any court or tribunal.
This allows employers to carry out the intention of this bill to protect children without being
caught by industrial rulings.
This does not mean that all Applicants with an interim bar, or an appeal in progress, or a bar
resulting from a pending charge, automatically will be dismissed by their employers. The
Administrative Decisions Tribunal has the power to issue a stay of the bar so that the person
may continue to work with children while a review of the bar is in progress. Employers with
the capacity to do so may suspend a barred worker or redeploy such a worker to a non child-
related role. Nevertheless, under clause 47, employers retain the right to dismiss a child-
related worker who may not work with children as a result of being barred or not holding a
clearance or a current application for a Working with Children Check.’ (emphasis added)
[67] We accept that the words of a Minister are not to be substituted for the text of an act.27
However, s.34 of the Interpretation Act 1987 (NSW) (the Interpretation Act) permits resort to
extrinsic material ‘capable of assisting in the ascertainment of the meaning of the provision’,
to confirm that the meaning is the ordinary meaning (taking into account the context and the
purpose or object underlying the Act) or to determine the meaning where the provision is
ambiguous or obscure. We are satisfied that s.9 of the Child Protection Act is ‘ambiguous or
obscure’ and accordingly s.34(2)(f) of the Interpretation Act specifically provides that the
material that may be considered in the interpretation of a provision of an Act includes a
Minister’s second reading speech.
[68] In construing the Child Protection Act, we may also have regard to the consequences
that would flow from adopting a particular construction. If the Respondent is correct, an
employee against whom proceedings for an offence are brought must be immediately
dismissed from what may be long term, career employment, whether the employer wishes to
end the employment or not. On the Respondent’s construction that would be the
consequence, even if the employee could be deployed to perform other work, had available
leave or could be suspended. In our view clear words or necessary implication would be
required before coming to the conclusion that s.9 of the Child Protection Act was intended to
operate in a manner that required the immediate termination of a contractual relationship.
[69] We now propose to deal with some of the arguments advanced by the Respondent in
support of the construction it proposed.
[2016] FWCFB 1752
14
[70] First, contrary to the Respondent’s submission s.47 does not suggest that s.9 requires
the termination of a disqualified person’s contract of employment. Section 47 concerns a
‘prohibition on employment imposed by this Act’. The only prohibition on employment
imposed by the Act is upon the commencement or continuation of employment ‘in’ child-
related work. Further, s.42(2) makes clear that, subject to s.47, nothing in the Act ‘affects any
statutory right that an employee may have in relation to employment or termination of
employment’ and requires only, in s.42(3), that a court or tribunal exercising jurisdiction with
respect to such a right have regard to a determination or assessment under the Act.
[71] Second, we are not persuaded that the relevant legislative history suggests a different
conclusion.28 Part 7 of the previous Act, the Commission for Children and Young People Act
1998 (NSW) contained restrictions upon persons taking up, undertaking or continuing ‘child-
related employment’. ‘Child-related employment’ was defined to mean employment ‘that
primarily involves direct contact with children.’29 Section 33E provided that an employer
must not commence employing or continue to employ a prohibited person in child-related
employment. Section 33Q made clear that the provisions did not prevent an employer
continuing to employ a prohibited person in ‘employment of a different kind.’ Contrary to the
Respondent’s contention it was unnecessary for such a provision to be included in the Child
Protection Act given the change in focus to ‘child-related work’.
[72] Third, the Respondent submits that the Child Protection Act does not itself provide for
suspension from employment.30 That is unsurprising. The Child Protection Act does not set
the conditions of employment for private sector employees. In the context of private sector
employment, the power to dismiss or suspend derives from the contract of employment or,
perhaps, an industrial instrument.
[73] The Teaching Service Act 1980 (NSW) governs the employment of public school
teachers in New South Wales. Contrary to the Respondent’s submissions,31 the Teaching
Service Act (to the extent that it has any relevance) does not support the Respondent’s
construction of the Child Protection Act. To the extent that the Teaching Service Act provides
that a teacher is, in certain circumstances, dismissed by operation of that Act,32 the provision
would be unnecessary if s.9 of the Child Protection Act already achieved that outcome.
Further, as we have noted, on the Respondent’s construction of s.9(1) an employee must be
dismissed if the subject of an interim bar or if a person is refused a ‘Clearance’. The Teaching
Service Act, to the contrary, provides that an employee may be suspended if the subject of an
interim bar or, in certain circumstances, if refused a ‘Clearance’.33 That provision is
inconsistent with the Respondent’s construction of s.9(1).
[74] For the reasons given, the Child Protection Act requires only that a person who
becomes a disqualified person by reason of pending proceedings not be utilised to perform
‘child-related work’. Section 9 does not require that such a person be immediately dismissed.
An employer may decide to dismiss an employee in such circumstances, but is not required to
do so. Any such dismissal would be a termination of employment on the employer’s initiative,
within the meaning of s.386(1) of the FW Act, a point conceded by the Respondent during the
course of oral argument.34
[2016] FWCFB 1752
15
[75] We acknowledge that the construction we have adopted is inconsistent with the views
expressed by the Appeal Bench in Mahony. Although the Commission is not bound by
principles of stare decisis it has generally followed previous Full Bench decisions. 35 As a Full
Bench of the Australian Industrial Relations Commission observed in Cetin v Ripon Pty Ltd
(T/as Parkview Hotel)36:
‘Although the Commission is not, as a non-judicial body, bound by principles of stare decisis,
as a matter of policy and sound administration it has generally followed previous Full Bench
decisions relating to the issue to be determined, in the absence of cogent reasons for not doing
so.’37
[76] We are satisfied that there are cogent reasons for departing from the conclusion
reached in Mahony. We note that the Appeal Bench’s decision in that matter was given ex
tempore and that we have had the benefit of extensive submissions on the point in question.
For the reasons given we are satisfied that the decision of the Appeal Bench in Mahony was
wrong.
[77] Given the conclusion we have reached in respect of the proper construction of s.9 of
the Child Protection Act it is unnecessary for us to deal with the Respondent’s contention that
the Full Bench decision in Fraser v Sydney Harbour Casino Pty Ltd38 (Fraser) was wrongly
decided and should not be followed. In Fraser it was held that employers have a choice as to
whether they comply with or ignore laws that (in effect) require the termination of designated
employees, such that any resulting terminations involve an election by the employer – and
hence are ‘on the initiative of the employer’. As we are not persuaded that s.9 required the
termination of the Applicant’s employment the point decided in Fraser does not arise in the
present matter.
[78] For the reasons given the Respondent’s jurisdictional objection is dismissed.
PRESIDENT
Appearances:
Mr M. Gibian for the Applicant
Mr M. Kimber and Mr B. Rauf for the Respondent
Hearing details:
Sydney.
2015.
November 24.
[2016] FWCFB 1752
16
Printed by authority of the Commonwealth Government Printer
Price code C, PR578178
1 [2015] FWC 1593.
2 [2015] FWCFB 4952 at para. 4.
3 [2015] FWCFB 4952.
4 Form F1 application, at question 2.2, para. 13.
5 (1995) 62 IR 200.
6 (1997) 79 IR 472.
7 Print 963977, Australian Industrial Relations Commission, 6 December 2005.
8 CP(WC) Regulation, Reg. 10. The Respondent erroneously submits that all work in schools is regarded as child-related
work: Respondent’s Submissions, para 23(c). Clause 10 of the CP(WC) Regulation declares that work in schools and
other educational institutions (other than universities) is child-related work for the purposes of s 6(2)(g). To constitute
child-related work for the purposes of the Act in accordance with s 6(1)(a), work must both be of a type referred to in
subsection (2) and involve direct contact with children.
9 See s.5.
10 Child Protection Act, s.27(1) and (2).
11 Child Protection Act, s.28(1).
12 Transcript 24 November 2015 at paras169-172.
13 Ibid at paras 157-158.
14 See Alcan (NT) Alumina Pty Ltd v Commissioner for Territory Revenue (Northern Territory) (2009) 239 CLR 27 at para.
4; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at para. 408.
15 See Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619 at para. 59;
Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FWCFB 2042 at paras 26–37;
Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union (2012) 219 IR 139 at paras 16–19.
16 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at para. 69.
17 See Prior v Sherwood (1906) 3 CLR 1054; R v Refshauge (1976) 11 ALR 471 at p. 475.
18 (1998) 194 CLR 355 at para 78 per McHugh, Gummow, Kirby and Hayne JJ. Also see Taylor v The Owners – Strata Plan
No 11564 [2014] HCA 9 at paras 65–66.
19 (2009) 239 CLR 27 at para. 47.
20 Child Protection Act, s.3.
21 See s.35(1) Interpretation Act 1987 (NSW).
22 Transcript at paras 530-531 and 551-557
23 Child Protection Act, s.17(4).
24 Transcript at paras 530–531 and 551–557.
25 Hansard, Legislative Assembly, 13 June 2012, p12767.
26 Hansard, Legislative Assembly, 13 June 2012, p12771.
27 Re Bolton; Ex parte Beane (1987) 162 CLR 514 at para. 518.
28 Respondent’s Submissions, para. 51.
29 Commission for Children and Young People Act 1998 (NSW), s.33(1).
30 Respondent’s Submissions, paras 50–55.
31 Respondent’s Submissions, paras 52–54.
32 Teaching Service Act 1980 (NSW), s.93T.
33 Teaching Service Act 1980 (NSW), s.93L(2).
34 Transcript at para. 224.
35 Re Furnishing Industry Association of Australia (Queensland) Limited Union of Employers, Print Q9115, 27 November
1998 per Giudice J, Watson SDP, Hall DP, Bacon C and Edwards C.
36 (2003) 127 IR 205 at [48].
37 Also see Re Furnishing Industry Association of Australia (Queensland) Ltd Union of Employers, Print Q9115, 27
November 1998 per Giudice J, Watson SDP, Hall DP, Bacon C and Edwards C.
[2016] FWCFB 1752
17
38 (1997) 79 IR 472.
