Eaton v Industrial Relations Commission of New South Wales

[2012] NSWCA 30

NSW Court of Appeal

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Interrogate

Catchwords

1. Industrial Law
2. › Unfair dismissal
3. › Jurisdiction
4. › Public sector employees
5. › Police officers
6. › Probationary constables
7. › Whether Industrial Relations Commission had jurisdiction to hear unfair dismissal claim
8. › Whether inconsistency between Police Act 1990 (NSW), s 80(3) and Industrial Relations Act 1996 (NSW), Pt 6 Ch 2
1. Statutes
2. › Construction
3. › Implied repeal
4. › Inconsistency between statutes
5. › Whether later general statute impliedly repealed by earlier specific statute
6. › Whether two statutory regimes can operate harmoniously
7. › Police Act 1990 (NSW), s 80(3), s 218(1)
8. › Industrial Relations Act 1996 (NSW), ss 83, 84, 89, 405(3)
1. Statutes
2. › Construction
3. › Saving provisions
4. › Effect of provision that one Act 'is not affected by anything in' another Act
5. › Whether saving provision preserves unfair dismissal jurisdiction
6. › Police Act 1990 (NSW), s 218(1)
1. Statutes
2. › Construction
3. › Delegated legislation
4. › Whether regulations can effect implied repeal of earlier statute
5. › Police Regulation 2008 (NSW), cls 12-14

Quick Take

Probationary police constables dismissed under s 80(3) of the Police Act 1990 (NSW) have access to the unfair dismissal regime in Part 6 of Chapter 2 of the Industrial Relations Act 1996 (NSW). Section 80(3) does not effect an implied repeal of those provisions, and s 218(1) of the Police Act preserves the IR Act's application. The Ferdinands decision is distinguishable because in NSW the power of dismissal is in the earlier Act, not the later, and the legislative history shows Parliament was aware of and did not exclude probationary constables' access to unfair dismissal review.