Working with Children Check – Decision

Please download this document for a copy of the decision handed down by the NSWIRC Full Bench in regards to the Crown’s motion to dismiss the application for a new Child Protection (Working with Children) Award.

The Crown’s motion was successful and the application for the new award has been dismissed.

This decision is directly linked with the “no extra claims” decision also handed down by the NSWIRC Full Bench today.

In reading the decision please note the following important points contained in the decision:

Paragraph 12: “… a validly made award will necessarily extinguish the capacity of any party to agitate the subject matter of that award within … a 12 month period of making the award”

Paragraph 17: “… the Regulation … actively requires that an award, in order to be validly made, must deal in entirety with the subject matter of proceedings before it. Matters cannot be dealt with ‘progressively’ once a valid award has been made which addresses those subject matters. …”

Paragraph 20: “… s 146C of the Act and the words of the Regulation impose in clear terms a limitation on the Commission’s powers …”

Paragraph 26: “… the Commission lacks the jurisdiction to make the award sought”

The NSWIRC Full Bench has made its decision without deciding the issue of whether the “reimbursement” which was the subject of the application was an employee related cost.  As a result, this decision does not prevent a further application being made in the next award round, or potentially an application being made now in similar terms but clearly identifying the ground that the reimbursement is not an employee related cost.

Unions NSW is considering its position and will advise of any further action, if appropriate, which may be taken.