[2016] FWCFB 1752
FAIR WORK COMMISSION

DECISION


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.

[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 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, Sydney 1 (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 - :

[18] In an ex tempore decision the Appeal Bench determined that:

[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:

[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:

[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:

[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:

[28] For the purposes of s 6(1)(a), ‘child-related work’ involves two components:

[29] A ‘worker’ in the context of the Child Protection Act is broadly defined in s.5(1) and means:

[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:

[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:

[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:

[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, :

[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.

[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:

[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:

[44] It is in this context that s.9 of the Child Protection Act is of significance. Section 9(1) provides:

[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.

[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:

[52] More recently, in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue 19  the High Court described the task of legislative interpretation in the following terms:

[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:

[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.

[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 dismissal 22 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

[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

[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.

[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

[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:

[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 Ltd 38 (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.

 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.

 38   (1997) 79 IR 472.

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