Australia, June 30 -- New South Wales Land and Environment Court issued text of the following judgement on May 29:

1. This decision considers the following question (Question):

Does the Industrial Relations Commission (Commission) have jurisdiction with respect to the proceedings, or power to make an order in the proceedings pursuant to s 213 of the Industrial Relations Act 1996 (NSW) (IR Act), having regards to ss 20 and 26 of the Members of Parliament Staff Act 2013 (NSW) (MOPS Act)?

2. For the reasons that follow, the answer to the Question is: yes.

Background

3. Ms Gemma Ashton (the applicant) was employed as an electorate officer at the East Hills Electorate Office of Ms Kylie Wilkinson MP pursuant to Part 3 of the MOPS Act. Ms Ashton's employment was terminated on 22 November 2024.

4. On 12 December 2024 Ms Ashton lodged an application for relief from victimisation, pursuant to s 210 and s 213 of the IR Act. In that application she says her employment was terminated by Ms Wilkinson and identifies that termination as a detriment that she suffered because of reasons that are prohibited by s 210 of the IR Act, including that she had engaged in a public or political activity. She seeks reinstatement to employment as an electorate officer, continuity of employment and backpay of wages.

5. Arising from a motion filed by the respondent, Senior Commissioner Constant, who was allocated the matter, referred the Question to the President pursuant to s 193(1) of the IR Act. The President determined pursuant to s 193(2) that a Full Bench of the Commission should deal with the Question.

Members of Parliament Staff Act 2013 (NSW)

6. The MOPS Act provides for the employment of political staff. Part 2 deals with the employment of staff by "political office holders", namely a Minister, the Leader of the Opposition in the Legislative Assembly and such other political officer holders that the Premier determines are entitled to employ staff under Part 2.

[1] Part 3 provides for the employment of staff by members of Parliament to assist the member in exercising his or her functions, such as Ms Ashton.

7. Staff are employed by political office holders and members "on behalf of the State".

[2] Staff employed by members of Parliament are employed on conditions that are set by the Presiding Officers.

[3] Section 14, which applied to Ms Ashton as a staffer employed by a member of Parliament, is in the following terms:

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.

(2) Any such written agreement may be varied or replaced by a further agreement in writing.

8. Political office holders and members "may at any time dispense with the services" of their staffer [4] and if that occurs their employment terminates. [5] Section 20, which applied to Ms Ashton, is in the following terms:

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.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1971417f61ae3600654fb6d3)

Disclaimer: Curated by HT Syndication.