Aidan Nagle v The Commonwealth of Australia as represented by the Department of Finance [2026] FWC 461

1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Aidan Nagle v The Commonwealth of Australia as represented by the Department of Finance (U2025/14609) COMMISSIONER SPENCER BRISBANE, 13 FEBRUARY 2026 Application for an unfair dismissal remedy – jurisdictional objection: no dismissal, not terminated at the initiative of the employer in accordance with s.386(1)(a) of the FW Act – jurisdictional objection dismissed Introduction [1] Mr Aidan Nagle (the Applicant) made an application pursuant to s.394, of the Fair Work Act 2009 (Cth) (the FW Act), seeking an unfair dismissal remedy. Mr Nagle lodged his application against an entity named as “Department of Finance & Deregulation”. At the Conference listed in this matter, the Parties consented to amend this to the “Department of Finance”. That is, the Applicant’s Employer was the Commonwealth of Australia as represented by the Department of Finance. [2] The Respondent raised an objection to the application on the basis that the Applicant was not dismissed within the meaning of s.386 of the FW Act (the jurisdictional objection). Section 386 of the FW Act states that a person is ‘dismissed’ when either their employment has ‘been terminated on the employer’s initiative’ (s.386(1)(a)) or if the person resigns but was ‘forced to do so because of conduct, or a course of conduct, engaged in by his or her employer’ (s.386(1)(b)). The Applicant argued that his employment had been terminated in accordance with s.386(1)(a). The Respondent refuted this and submitted that the Applicant’s dismissal was caused by the operation of the law. [3] The Respondent submitted that the Applicant was employed as a ‘personal’ employee in the office of Senator Malcolm Roberts. Senator Roberts is a member of Pauline Hanson’s One Nation (One Nation) political party. It was agreed between the Parties that this employment occurred pursuant to a Commonwealth Determination made under s.4 of the Members of Parliament (Staff) Act 1984 (Cth) (the MOPS Act). The Respondent stated that when this Determination was revoked, the Applicant’s employment was automatically terminated pursuant to s.14 of the MOPS Act. [2026] FWC 461 [Note: This decision has been quashed - refer to Full Bench decision dated 15 July 2026 [[2026] FWCFB 172] DECISION -- 1 of 24 -- [2026] FWC 461 2 [4] The Applicant’s argument in response to the jurisdictional objection was nuanced, as he agreed with the Respondent that the Revocation of the Determination, automatically terminated his employment. However, in response to questions at the Hearing, he submitted that the Determination as issued by the Commonwealth (which specifically caused the automatic termination of his employment) improperly reduced the allocation of staff to the One Nation party, and in turn to Senator Roberts. That is the Applicant’s argument was that it was necessary to look behind the automatic nature of his termination, to the steps taken at the initiative of his Employer, the Commonwealth. He submitted those steps taken at the Commonwealth’s initiative included revoking the s.4 Determination that he was employed under. This Decision deals only with the jurisdictional objection; that is whether Mr Nagle’s employment was terminated pursuant to s.386(1)(a) of the FW Act. [5] Directions were set by consent for the filing of submissions and evidence in relation to the jurisdictional objection. A Hearing by Microsoft Teams Video occurred on 28 January 2026. The Applicant was self-represented. The Respondent was represented by Mr Glenn Fredericks of Counsel, instructed by Ms Louise Rumble, Partner of Gadens Lawyers. Directions had been set for the filing of material in relation to the Respondent’s application for legal representation. The Applicant did not object to legal representation. The application was granted, for the Respondent to be legally represented, pursuant to s.596(2)(a) on the basis that legal representation would assist with the efficient handling of the matter, taking into account its complexity. [6] The Applicant filed his own witness statement, and the Respondent filed a witness statement from Ms Rocio Jamardo Paradela, a solicitor at Gadens Lawyers. Both Parties waived cross-examination of the other Party’s witness. The statements were accepted. Further submissions were provided at the Hearing; and these have been taken into account. Background and Relevant Legislation [7] The MOPS Act is the statute by which Commonwealth Members of Parliament can employ both ‘electorate’ and ‘personal’ employees; to assist them in discharging their duties as elected officials. [8] Immediately before his termination of employment, the Applicant was employed in the category of a ‘personal’ employee of Senator Roberts. This employment arose under a Determination issued pursuant to s.4 of the MOPS Act, which is set out below: “4 Determination that parliamentarian may employ personal staff (1) The Prime Minister may, in writing, determine that, having regard to the parliamentary duties of a parliamentarian, the parliamentarian may employ personal employees under subsection 11(3). Note: The determination has the effect of making the parliamentarian an office-holder (see paragraph (c) of the definition of office-holder in section 3). Office-holders may employ personal employees (non-Ministerial) under subsection 11(3). -- 2 of 24 -- [2026] FWC 461 3 (2) A determination made under subsection (1) is not a legislative instrument.” (emphasis added) [9] The Applicant had been employed at separate times as an ‘electorate’ and a ‘personal’ employee for Senator Roberts. These categories of employment are guided by ss.11 and 12 of the MOPS Act: “11 Employment of electorate employees and personal employees Electorate employees (1) A parliamentarian may, on behalf of the Commonwealth, employ a person, under a written agreement, as an electorate employee. Note: The power to employ a person under this subsection is subject to section 12. Personal employees (Ministerial) (2) A Minister may, on behalf of the Commonwealth, employ a person, under a written agreement, as a personal employee (Ministerial). Note 1: The power to employ a person under this subsection is subject to section 12. Note 2: A person who is both a Minister and a parliamentarian may employ persons under both subsections (1) and (2). Personal employees (non-Ministerial) (3) An office-holder other than a Minister may, on behalf of the Commonwealth, employ a person, under a written agreement, as a personal employee (non-Ministerial). Note 1: The power to employ a person under this subsection is subject to section 12. Note 2: A person who is both an office-holder other than a Minister and a parliamentarian may employ persons under both subsections (1) and (3). 12 Arrangements and conditions affecting power to employ under section 11 (1) A power to employ a person under section 11 must be exercised: (a) in accordance with any arrangements approved under paragraph (2)(a) of this section; and (b) subject to any conditions determined under paragraph (2)(b) of this section; that apply to the parliamentarian or office-holder, and to the power. (2) The Prime Minister may, in writing, do either or both of the following: (a) approve arrangements in accordance with which a parliamentarian or office-holder is to exercise a power under section 11; (b) determine conditions subject to which a parliamentarian or office-holder is to exercise a power under section 11. (3) An instrument made under subsection (2) is not a legislative instrument.” -- 3 of 24 -- [2026] FWC 461 4 [10] The Applicant argued that the termination of his employment occurred within the meaning of s.386(1)(a) of the FW Act as a result of the Revocation of the s.4 Determination he was employed under following the 2025 election. He stated that the termination of his employment was caused by the Commonwealth (at the direction of the Prime Minister). The Applicant in summary terms, claimed that the Revocation of the Determination resulted in an unwarranted reduction of personal employee numbers for One Nation Senators. That is, he claimed that based on the election results where One Nation had doubled the number of Senators, the corresponding reduction caused to One Nation staffing numbers was unfair. The Determinations in Summary Terms [11] During the Applicant’s employment he had been subject to a number of staffing Determinations of the Commonwealth. These are covered in summary form below. 2019 Determination – Applicant Employed as an Electorate Employee – Senator Roberts had Electorate Employees and Four Personal Employees [12] The Applicant’s employment in the office of Senator Roberts commenced on 16 July 2019; he commenced as an ‘electorate’ officer under the MOPS Act. He was not a ‘personal’ employee at this time. [13] The Applicant set out that on 25 July 2019, the then Minister for Finance, on instruction of the then Prime Minister (as was the regular procedure), issued Determination 2019/10 (2019 Determination) under the MOPS Act. Determination 2019/10(xxxix) was in relation to Senator Roberts and this Determination took effect from 1 July 2019. The material filed before the Commission sets out that the then Prime Minister had determined to grant Senator Roberts, in addition to the number of electorate employees he was allocated, four personal staff (two Advisers and two Assistant Advisers). 2022 Determination – Applicant Employed as a Personal Employee – Senator Roberts had Four Electorate Employees and Two Personal Employees [14] On 19 July 2022, it was stated that the Prime Minister by means of a Determination advised Senator Roberts that, in addition to the four-electorate staff allocated, he was entitled to employ two additional personal employees (one Adviser and one Assistant Adviser). [15] On 5 September 2022, the Applicant’s employment was varied by Senator Roberts to be employed as a ‘personal employee’ at Assistant Adviser level under the MOPS Act, while still remaining employed in the office of the Senator. Senator Hanson also had two personal employees. 2025 Determination – Applicant Automatically Terminated as a Personal Employee – Senator Roberts had Electorate Employees and No Personal Employees [16] On 28 July 2025, the Special Minister of State for and on behalf of the Prime Minister issued Determination 2025/24 under the MOPS Act, which had the effect of revoking Determination 2019/10(xxxix) with respect to Senator Roberts, with effect from 22 June 2025. Various other parliamentarians also had their Determinations revoked pursuant to -- 4 of 24 -- [2026] FWC 461 5 Determination 2025/24. Determination 2025/24(lxxviii) authorised Senator Roberts to employ staff to take effect from 23 June 2025, but he was not given an allocation to employ any personal employees. [17] The Applicant set out that on 23 June 2025, the Prime Minister in terms of the Determination had written to Senator Hanson, leader of the One Nation political party. The correspondence as referred to by the Applicant, detailed that One Nation was allocated four personal employees to be employed across the party room. After the 2025 election, One Nation had four Senators. The Applicant’s submissions in summary terms was that the staff allocation per Senator was reduced. [18] The Applicant’s argument was that in taking these steps, the Commonwealth as per the Prime Minister’s Determination, had the direct effect of causing the termination of his employment. The Respondent refuted this and submitted that the issuing of the Determinations by the Commonwealth, at the direction of the relevant Prime Minister of the time, is a mechanism associated with the necessary re-organisation of staffing levels. It was provided by the Respondent that the Determinations are issued taking into account a range of factors, and staffing levels had been reset for Government parliamentarians also. The Determination in this matter related to the Prime Minister’s re-setting of employee numbers after the 2025 election. [19] The Applicant however detailed the practical effect of the Determination on his employment as follows. On 21 July 2025, the Applicant received correspondence from the Parliamentary Workplace Support Service (PWSS) which stated that, owing to the Revocation of the s.4 Determination that the Applicant was employed under, Senator Roberts’ employment of personal staff had been revoked. The PWSS correspondence advised the Applicant that his employment was automatically terminated in accordance with the MOPS Act. The correspondence from the PWSS stated that the termination was deferred for the 8 week notice period from 22 June 2025 to be affected on 17 August 2025, the date of the Applicant’s termination of employment. The Applicant referred to the implementation of the notice period, as a result of the date of the receipt of that correspondence, in effect from 21 July 2025 to 17 August 2025 (being closer to four weeks). [20] The correspondence from the PWSS to the Applicant dated 21 July 2025 stated: “Dear Mr Nagle, I am writing to explain how your employment is affected following the Federal Election. As you may be aware, the Parliamentary Workplace Support Service (PWSS) is the lead agency for HR advice and support for all MOP(S) Act staff. We appreciate that change affects everyone differently and it is not uncommon to experience a range of emotions over the coming weeks. Our counselling and support team are available 24/7 to assist you and can be contacted on [redacted] by email to [redacted] and/or by text to [redacted]. Our Parliament House office is located at [redacted] and is open between 8.30am-5pm, Monday to Friday. -- 5 of 24 -- [2026] FWC 461 6 When the Prime Minister provided your parliamentarian with their new personal staffing allocation, their previous determination under section 4, to employ personal staff was revoked. As a result, your employment has been automatically terminated, in accordance with the Members of Parliament (Staff) Act 1984 (MOP(S) Act). However, your termination does not take effect immediately and has been deferred until 8 weeks from 22 June 2025. As such, the date of your termination of employment is Sunday, 17 August 2025, in accordance with Section 14 of the Members of Parliament (Staff) (Employment Arrangement) Determination 2025. During the deferral period, you remain a MOP(S) Act employee, and it is expected you will continue with the duties of your role. You may also use this period to seek alternative employment or elect to take leave. If you are currently on leave (including leave without pay) from the APS, you need to make contact with your home department to arrange for your return as soon as possible and prior to the end of the deferral period. Please complete the Notification of Employment Status form when you are ready. This form must be completed during your deferral period and is used to advise MaPS and the PWSS of your employment intentions, including if you are continuing with MOP(S) Act employment for the same or another parliamentarian, returning to the APS or if you would like to bring your cessation date forward. Final monies or other pay actions will be processed in accordance with your advice. Where you have had a break in service and are then re-engaged under the MOP(S) Act, MaPS processes your final monies. This will result in your PEMS access being revoked. Once your re-commencement documentation has been processed, PEMS access will be reinstated. Please note this means you will likely have a gap between payment of final monies and your first pay under any new employment agreement. The PWSS will make further contact with you at the end of your deferral period to confirm the cessation of your employment. Final Monies You can produce an estimate of your final entitlements payout with the help of the final entitlements estimator. Leave balances and salary information are available through PEMS. For any queries related to your final monies please contact the MaPS Helpdesk on [redacted]. Further Support Available There are career transition courses available for ongoing, non-ongoing and casual employees to participate in. Employees interested in participating can register by contacting [redacted] or through the relevant link for CV and application writing skills, and Interview preparation. Former MOP(S) Act employees who receive severance benefits under the Commonwealth Members of Parliament Staff Enterprise Agreement 2024-27 may -- 6 of 24 -- [2026] FWC 461 7 obtain a payment of up to $1000 (GST inclusive) for career transition counselling, training or financial advice. Part-time employees can access the full amount. To be eligible, the pre-approved service must be provided within six months of termination. A range of election resources are available on our website via the Election Resources page. If you would like to discuss your personal circumstances, or have a question that hasn’t been covered, please contact our HR Advice team on [redacted] or email [redacted], 9am to 5pm Monday to Friday. We appreciate that these circumstances can also impact our loved ones at home. It is open to you, or your family, to seek assistance by contacting the Employee Assistance Program (EAP). The EAP is a free and confidential professional counselling service available 24/7 by contacting [redacted]. Kind regards, HR Advice” [21] On 19 August 2025, two days after the Applicant’s termination of employment took effect (on 17 August 2025), the Applicant commenced a non-ongoing contract for three months as a Personal Employee – Non-Ministerial for Senator Roberts. Senator Hanson had written to the Special Minister of State to inform the Minister that two staff members (one being Mr Nagle) had been appointed to Senator Roberts on a non-ongoing three-month contract “in response to the staff cuts imposed on One Nation senators and is intended to provide Senator Roberts and myself with additional time to restructure our Electorate Offices.” Senator Hanson stated that upon conclusion of the non-ongoing contracts, that the positions would return to her office. Mr Nagle’s non-ongoing contract ended on 19 November 2025, at which time the Applicant was then employed on an ongoing basis by Senator Pauline Hanson as an Electorate Officer. These ensuing contracts resulted in the Applicant being out of employment for one day immediately after the the effective termination date of the employment (by way of the Determination). Further Relevant Legislation as per the Parties’ Submissions Fair Work Act 2009 (Cth) [22] Section 385 of the FW Act defines an unfair dismissal as occurring if the Fair Work Commission (the FWC) is satisfied a person has been dismissed and the dismissal was harsh, unjust or unreasonable. [23] Section 386 of the FW Act defines a dismissal as: “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 -- 7 of 24 -- [2026] FWC 461 8 (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 ….’ Members of Parliament (Staff) Act 1984 (Cth) [24] Section 3AA of the MOPS Act defines ‘the employing individual’ as: “3AA Definition of employing individual (1) The employing individual, for a person employed under this Act, is the parliamentarian or office-holder who, on behalf of the Commonwealth, employed the person under section 11. (2) A parliamentarian ceases to be an employing individual if they cease to be a parliamentarian, unless they continue to be an office-holder. (3) An office-holder ceases to be an employing individual if they cease to be an office-holder and are not also a parliamentarian.” [25] Section 4 of the MOPS Act provides for the issuing of the Determinations (repeated for convenience): “4 Determination that parliamentarian may employ personal staff (1) The Prime Minister may, in writing, determine that, having regard to the parliamentary duties of a parliamentarian, the parliamentarian may employ personal employees under subsection 11(3). Note: The determination has the effect of making the parliamentarian an office-holder (see paragraph (c) of the definition of office-holder in section 3). Office-holders may employ personal employees (non-Ministerial) under subsection 11(3). (2) A determination made under subsection (1) is not a legislative instrument.” [26] The Respondent relied on s.14 of the MOPS Act in support of their jurisdictional objection. They stated that this is a self-executing provision which had the effect of causing the automatic termination of employment when one of the five Events in the Table below occur. The Employer argued that the automatic termination of the Applicant’s employment by the Determination was referred to below in Item 5 of the Table: -- 8 of 24 -- [2026] FWC 461 9 “14 Automatic termination of employment (1) A person’s employment under this Act terminates if an event specified in the table occurs and the person is the kind of employee specified for the event. Events that terminate employment Item Event Kind of employees whose employment terminates 1 The employing individual dies Electorate employees and personal employees 2 The employing individual ceases to be a parliamentarian Electorate employees and personal employees 3 The employing individual ceases to hold a relevant office and on the same day: (a) starts to hold another relevant office; or (b) starts to be covered by a determination made under section 4 Personal employees 4 The employing individual ceases to hold a relevant office and does not do one of the following on the same day: (a) start to hold another relevant office; (b) start to be covered by a determination made under section 4 Electorate employees and personal employees 5 The employing individual ceases to be covered by a determination made under section 4 (whether or not the employing individual starts to be covered on the same day by another such determination) Personal employees Note 1: The employing individual is the parliamentarian or office-holder who employed the person on behalf of the Commonwealth (see the definition of employing individual in section 3). Note 2: The effect of this subsection may be altered by a direction under section 15. (2) For the purposes of table item 2 in subsection (1), a person is taken not to have ceased to be a parliamentarian at any time while remuneration is to be paid to the person in accordance with section 49 of the Parliamentary Business Resources Act 2017. (3) For the purposes of table items 3 and 4 in subsection (1), a person ceases to hold the office of Minister at the time the person ceases to be appointed to administer any Departments (even if the person is immediately after that time appointed to administer one or more Departments). Example: If a person is appointed to administer 2 Departments and then ceases to be appointed to administer one of those Departments, the person will not cease to hold the office of Minister. However, -- 9 of 24 -- [2026] FWC 461 10 if the person ceases to be appointed to administer both Departments, the person ceases to be a Minister even if the person is immediately appointed to administer another Department. (4) For the purposes of the table in subsection (1), the Prime Minister may, by legislative instrument, determine any of the following: (a) circumstances, not inconsistent with subsection (2), in which an Event specified in table item 2 is taken to occur, or taken not to occur; (b) circumstances, not inconsistent with subsection (3), in which an Event specified in table item 3 or 4 is taken to occur, or taken not to occur. Subsection (1) has effect in accordance with the determination. (5) If more than one event specified in the table in subsection (1) occurs at the same time, the event listed first in the table is the only event that is taken to have occurred.” [27] The Respondent contrasted ss.14 and 16 of the MOPS Act in terms of the automatic nature of the termination undertaken in accordance with s.14, compared with the steps required to be taken in s.16 to terminate an employee’s employment: “16 Termination by notice (1) The employing individual for a person employed under this Act may at any time, by notice in writing given to the person, terminate the person’s employment. Note 1: The employing individual is the parliamentarian or office-holder who employed the person on behalf of the Commonwealth (see the definition of employing individual in section 3). Note 2: The employing individual must first consult the PWSS (see subsection (3)). (2) The notice must specify the ground or grounds that are relied on for the termination. Note 1: The Fair Work Act 2009 has rules and entitlements that apply to termination of employment. See, for example, Parts 3-1 (general protections) and 3-2 (unfair dismissal) of that Act. Note 2: Additional rules or procedures to be followed in terminating the employment of a person may be set out in: (a) the agreement for the employment of the person; or (b) fair work instruments (within the meaning of the Fair Work Act 2009); or (c) arrangements approved or determinations made under section 12 or subsection 13(2) or (3) of this Act. Note 3: Termination of employment may be unlawful under anti-discrimination laws in certain circumstances. (3) Before terminating a person’s employment under subsection (1), the employing individual must consult, and have regard to any advice provided by, the PWSS. Note: If an employing individual fails to consult with the PWSS, the CEO may include details about the failure in a public report. (4) A failure to consult with, or to have regard to advice provided by, the PWSS as required by subsection (3) does not affect the validity of the termination of the person’s employment.” [28] The Respondent also referred to s.13 which provided guidance on the conditions of employment under the MOPS Act: -- 10 of 24 -- [2026] FWC 461 11 “13 Terms and conditions of employment Terms and conditions (1) The terms and conditions of employment for a person employed under this Act include the terms and conditions set out in: (a) the agreement under which the person is employed; and (b) any fair work instruments (within the meaning of the Fair Work Act 2009) that apply to the person; and (c) any determination made under subsection (2) or (3) that applies to the person. Note: This Act has effect subject to the Fair Work Act 2009: see section 3A of this Act. Variation of terms and conditions for all or a class of employees (2) The Prime Minister may, by notifiable instrument, determine that the terms and conditions of employment of either of the following (as specified in the instrument) are varied in accordance with the determination: (a) all persons employed under this Act; (b) all persons included in a specified class or classes of persons employed under this Act. Variation of terms and conditions for individual employees (3) The Prime Minister may, in writing, determine that the terms and conditions of employment of a specified person employed under this Act are varied in accordance with the determination. Other matters affecting determinations (4) Subsections (2) and (3) do not authorise the making of a determination that varies a matter expressly provided for by section 14, 16 or 17 (termination of employment), 18 or 19 (suspension from duties) or 20 (employment actions following IPSC recommendation). (5) A determination may vary terms and conditions by varying specified terms and conditions or by including new terms and conditions. (6) A determination that applies to a person prevails over the agreement under which the person is employed, to the extent of any inconsistency.” [29] Section 15 of the MOPS Act, as raised by the Respondent, specifies further directions that can be made, in relation to the automatic termination of employment pursuant to s.14 of the MOPS Act: “15 Directions in relation to automatic termination Direction in relation to class of persons -- 11 of 24 -- [2026] FWC 461 12 (1) The Prime Minister may, by legislative instrument, direct that the employment of the persons included in a specified class or classes of persons, whose employment would, but for this subsection, be terminated by subsection 14(1), is taken: (a) not to have been terminated; and (b) to continue, or to have continued, until a specified date. Direction in relation to specified person (2) The Prime Minister may, in writing, direct that the employment of a specified person whose employment would, but for this subsection, be terminated by subsection 14(1), is taken: (a) not to have been terminated; and (b) to continue, or to have continued, until a specified date. (3) A direction made under subsection (2) is not a legislative instrument. Effect of direction (4) If the Prime Minister gives a direction under subsection (1) or (2), then, despite subsection 14(1), the employment of the persons included in the specified class or classes, or the employment of the specified person, is taken for all purposes to continue, or to have continued, until the specified date. …” [30] The MOPS Act recognises and interacts with the FW Act as follows: “3A Relationship with Fair Work Acts (1) This Act has effect subject to the Fair Work Act 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. (2) Subsection (1) is not intended to imply anything about the relationship between this Act and any Act other than the Fair Work Act 2009 or the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.” Summary of the Respondent's Submissions and Witness Evidence [31] The Respondent stated that further to the earlier Commonwealth issued Determinations, the Applicant’s employment was terminated automatically as a result of the Determination which revoked the earlier Determination which allowed Senator Roberts to employ personal employees. From the 2025 Determination, Senator Roberts was authorised to employ staff, however in contrast to the previous Determinations, the Senator was not given an allocation or authorisation to employee any personal employees. The Respondent submitted this was distinguished on the basis that the personal employee allocation was given to the One Nation party as a whole (rather than to the individual Senators of the One Nation party). Importantly the Respondent submitted that: -- 12 of 24 -- [2026] FWC 461 13 “The termination did not have immediate effect as by reason of s.14 of the Members of Parliament (Staff) (Employment Arrangement) Determination 2025 (the EA Determination) (made under subsections 12(2), 13(2), and 15(1) of the MOPS Act), Mr Nagle’s employment was “deemed not to have terminated and to continue until the day eight weeks from the day of the employee’s termination”, that is until 17 August 2025. On its face, this does not have the effect of providing a fresh notice of termination but simply postpones the date of the effect of the termination. This is again done as a matter of law and without any step by the employer. The termination then took effect on 17 August 2025.” [32] The Respondent submitted during the Hearing, in response to the Applicant expanding on his position, that the automatic termination of the Applicant’s employment was not related to the particular circumstances of the Applicant or the Respondent (the Commonwealth at the Prime Minister’s direction) taking the initiative to terminate his employment. The Respondent stated that the circumstances of the Applicant’s termination of employment were similar to many employees, also the subject of revoked Determinations that occurred after the election. The Respondent as set out, submitted that when one of the five Events specified in the Table in s.14 of the MOPS Act occur, that the employment of the employee is automatically terminated with no “further step to be taken by the employer” to affect the termination. The Respondent contrasted this with s.16 of the MOPS Act, which requires certain steps to be taken to affect the termination. [33] The Respondent filed a statement of Solicitor Ms Rocio Jamardo Paradela. That statement set out that she is a solicitor for the Respondent, the Commonwealth of Australia as represented by the Department of Finance. She is an Associate at Gadens Lawyers engaged by the Respondent. She was not cross-examined. The following extract from her statement sets out the chronology of the final series of events relevant to the Applicant’s employment as follows: “On 21 July 2025, the Applicant was notified by email of the automatic termination and the termination date. The Parliamentary Workplace Support Services (PWSS) advised the Applicant of the automatic termination of his employment pursuant to section 14 of the Members of Parliament (Staff) (Employment Arrangement) Determination 2025. On 4 August 2025, the Applicant sought clarification regarding the automatic termination of his employment. On 8 August 2025, the PWSS responded to the queries. The Applicant had a one-day break in service and commenced a non-ongoing contract as a MOPS Act employee for Senator Roberts on 19 August 2025. During his employment, the Applicant was subject to the Commonwealth Members of Parliament Staff Enterprise Agreement 2024-27.” [34] The Respondent included the table which sets out the Determinations regarding employment and the range benefits for staff under Part III of the MOPS Act. The table included -- 13 of 24 -- [2026] FWC 461 14 the range of Determinations issued under s.12 of the MOPS Act. It included the Determinations for a range of politicians which empowered them to employ staff under Part III of the Act. [35] The Respondent in its submissions relied on a series of authorities in support of the jurisdictional objection. These are referred to later. Summary of the Applicant’s Evidence and Submissions [36] The Applicant conceded that his employment was automatically terminated, on the Revocation of the Determination he was employed under, however he submitted that the current circumstances can be distinguished from those as dealt in with the case authorities relied on by the Respondent. He stated that in his case, the Employer “is the cause of the conditions necessary to trigger a statutory termination.” He submitted that the new Commonwealth Determination “was the principal contributing factor that led to the termination of [his] employment.” He submitted to this point, that Senator Roberts still wished to employ him, and filed a reference from Senator Roberts to this effect. [37] The Applicant in his written submissions stated that his employment was terminated at the initiative of the Employer on the basis that: “a. The principle of termination by statute not being considered a dismissal, applies to cases where the necessary conditions triggering the operation of statute were caused by a party external to the employment relationship, not where those conditions were directly caused by the employer, b. The respondent, purely of its own decision and initiative, created the conditions or ‘factum’ that it knew would trigger the statutory termination, c. The respondents conduct taken as a whole, was the principal contributing factor which lead to the termination of the employment relationship.” [38] The Applicant stated that he had worked for Senator Roberts for over 6 years pursuant to the MOPS Act where the Commonwealth Department of Finance is included on his payslips with Senator Roberts as his employing parliamentarian. [39] The Applicant in his witness statement stated: “On 16 July 2019 I was employed on an ongoing basis as an Electorate Officer of Senator Malcom Roberts of Pauline Hanson’s One Nation Party. This employment was not pursuant to a section 4 determination of the Members of Parliament (Staff) Act 1984 (Cth) and the 2019 letter from the Prime Minister in relation to personal staff, a different classification to electorate officers. On 19 July 2022 the Prime Minister issued a letter to Senator Roberts authorising him to employ an additional personal staffer at the Assistant Adviser level. -- 14 of 24 -- [2026] FWC 461 15 On 5 September 2022 I was promoted to the role of Adviser 2 (non-Ministerial) (formerly known as Assistant Adviser (non-Government)), on an ongoing basis as an employee for Senator Roberts. On 23 June 2025, the Prime Minister issued a letter to Senator Pauline Hanson advising that Pauline Hanson’s One Nation was allocated 4 personal staff. On 25 June 2025 I sought clarification regarding the effect of the 23 June letter including asking whether it meant I would be terminated or not. The Parliamentary Workplace Support Service responded on 26 June that “The PWSS is currently preparing communications for personal staff affected by the staffing allocations which will be coming out in the near future”. At 3:21pm 7 July 2025 I contacted the Parliamentary Workplace Support Service by phone (redacted) and was advised there was no further information on my previous inquiry. On 21 July 2025 I was notified of the termination. This was 4 weeks and 1 day before the date my termination would take effect, 1 day more than the minimum notice period required under my Enterprise Agreement. …” [40] At the Hearing, the Applicant emphasised paragraphs [218]-[226] of the case of Quirk v Construction, Forestry, Maritime, Mining and Energy Union1 in particular paragraph [223] of that case which stated that: “223 The question at hand is the meaning of the word 'terminated' in s 386(1). What that provision requires is two things: (a) an initiative of the employer; that (b) results in the termination of the employment relationship. The provision does not require the employer to pull the trigger but only to load the gun. In my view, the provision is expressed in such a way that it is agnostic as to the precise means by which the employment relationship comes to an end. Its focus is upon, however it might have ended, at whose initiative this occurred.” [41] The Applicant in relation to the above paragraph, submitted that in relying on this ‘gun analogy’ as referred to in Quirk, that it is the Commonwealth of Australia under direction from the Prime Minister’s office that metaphorically ‘loaded the gun’, and then it is the issuing of the Determination under the MOPS Act that metaphorically pulled the ‘trigger’. He submitted that his dismissal would not have occurred but for the actions of the Commonwealth in making the Determination, in the knowledge that the termination of his employment would accordingly automatically occur. The Applicant submitted that it was the Commonwealth’s decision to take the particularised actions in reducing the staff of the One Nation political party, that ‘triggered’ the automatic termination of his employment. [42] The Applicant submitted that the automatic termination of his employment by the means of the Revocation of the Determination was initiated by the Employer (in the action of ‘loading the gun’). He submitted this cannot be separated from the employment relationship and the termination: -- 15 of 24 -- [2026] FWC 461 16 “I submit that the Commonwealth’s decision to make a new determination in relation to personal staffing arrangements was the principal contributing factor that led to the termination of my employment. That termination was in the end effected by statute, but as the Commonwealth was my employer, that conduct in creating the necessary conditions to trigger that statute cannot be separated out from the employment relationship and the following termination.” Consideration [43] Under s.386(1) of the Act, there are two ways that a dismissal can occur. The limb relevant to the current facts is whether there was a dismissal pursuant to s.386(1)(a), that is whether the Mr Nagle’s employment was terminated on the Employer’s (the Commonwealth’s) initiative. [44] The Respondent emphasised the distinction between the termination of an employee’s employment undertaken at the Employer’s initiative. That is a dismissal, as distinct from a termination of employment which occurred by the operation of law; that not being a dismissal.2 The following case of Mylan v Health Services Union NSW3 referred to by the Respondent, reflected this distinction: “In Mylan, the Court was dealing with the situation where a union officer’s employment was terminated following an order of the Federal Court which vacated all elected offices of the Union, including that of Mr Mylan. The Court in Mylan stated … the position in my view is reasonably straightforward. I have no doubt that any employment which Mr Mylan may have held with the union was co- extensive with holding office in the union and depended upon that circumstance. When he ceased to hold office in the union by operation of the union rules, the position was no different than if he had been displaced at an election. The circumstances upon which any employment depended no longer existed. Any employment was at an end without any necessity for action by the union. In any event, Mr Mylan’s office (and any employment) was lost by operation of law as a result of the Orders.”4 [45] However, the current circumstances of the Applicant are distinct from those considered in Mylan, as the action of issuing the Determination by the Commonwealth caused the termination of the Applicant’s employment. [46] In addition, the Respondent referred to a recent case of the New South Wales Court of Appeal in the State of New South Wales v Ashton5 which examined the automatic termination provisions of the Members of Parliament Staff Act 2013 (NSW) (MOPS NSW Act). In that case, the court considered the effect of a legislative provision, as a result of which employment is terminated, and the employee’s services are dispensed with by the Member of Parliament.6 [47] In that case the action of a Member of Parliament in terminating the services of an employee, was found to be an automatic termination by operation of the MOPS NSW Act. In accordance with this ruling, the New South Wales Industrial Relations Commission did not -- 16 of 24 -- [2026] FWC 461 17 have jurisdiction to determine an unfair dismissal claim, due to the automatic nature of the termination of employment. [48] However, the current Applicant distinguished s.20 of the MOPS NSW Act from the relevant section of the Commonwealth MOPS Act, in emphasising that the relevant issue is how the termination was implemented. Section 20 of the MOPS NSW Act is as follows: “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.” [49] Relevant to Mr Nagle’s case was whether the termination was as a result of an act of the Employer or caused by the application of legislation in line with the decision of Ashton. The Respondent submitted that a statutory termination can occur even in circumstances “where that was triggered by a precursor decision of the employer”.7 [50] The Respondent submitted that in examining the current termination of employment, the significant issue is whether the dismissal required any action by the Employer to cause the termination. The Respondent affirmed that s.14 of the MOPS Act is a self-executing provision as per the Table of prescriptive Events (already included). The Respondent argued that the circumstances of the Applicant as a ‘personal’ employee who was no longer covered by a s.4 Determination reflected the circumstance in Item 5 in the Table in s.14 of the MOPS Act. They -- 17 of 24 -- [2026] FWC 461 18 stated it was an automatic termination brought about by the Revocation of the s.4 Determination. However the Applicant argued that what must be considered are the alleged steps taken at the initiative of the Commonwealth in the knowledge that making this Revocation of the Determination, the outcome would mean the particular reduction in the staffing levels. [51] In examining the actions of whether the Commonwealth ‘loaded the gun’ leading to the specific termination at the initiative of the Employer outcome, the following case authorities examining similar circumstances are referred to: [52] Deputy President Easton in Walker v Australian Capital Territory as represented by Chief Minister Treasury and Economic Development Directorate8 referred to the case authorities which are “clear in distinguishing between the cessation of employment by operation of law and the cessation of employment as a result of conduct by the employer”: “[50] The authorities relied upon by the Directorate are clear in distinguishing between the cessation of employment by operation of law and the cessation of employment as a result of conduct by the employer. In Mylan v Health Services Union NSW [2013] FCA 190 (Mylan) the applicant’s appointment to an office of a registered organisation was brought to an end by an order of the Federal Court. Justice Buchanan observed at [26] that “… any employment was at an end without any necessity for action by the [employer] union. In any Event, Mr Mylan’s office (and any employment) was lost by operation of law as a result of the Orders.” [51] In Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1587, (2021) 312 IR 359 Perram J endorsed the reasoning in Mylan’s case but came to a different conclusion on the facts. The applicants in Quirk were removed from office purportedly by operation of the union’s rules after they faced internal disciplinary charges. The employment of the applicants was said to have been terminated by operation of law. Justice Perram’s reasoning included the following: “[225] I therefore do not accept the Respondents' submission that there can be no termination of an employment relationship purely because the contract of employment came to an end by operation of law. Nor do I accept that Mylan stands in the way of that conclusion … I would accept that Mylan is authority for the proposition that where a contract of employment ends by operation of law without any act by the employer then there will be no termination within the meaning of s 386. But I do not accept that his Honour intended to say, or did say, anything about the situation where a contract of employment ends by operation of law as a result of the actions of the employer. Facts of that kind were not before the Court in Mylan. [226] I therefore accept that Mr Quirk and Mr Miller's employment by the Federal Union was terminated on the initiative of the Federal Union within the meaning of s 386. The Divisional Executive invalidly removed them from office which then led Ms Mallia to repudiate their contracts of employment on 27 April 2015. They were therefore dismissed by the Federal Union from its employment within the meaning of Item 1, cl (a) of the Table of adverse actions in s 342.” -- 18 of 24 -- [2026] FWC 461 19 [52] In Australian Liquor Hospitality and Miscellaneous Workers’ Union (1994) 55 IR 18 the applicant reached the maximum retirement age under the Public Service Act. Justice Moore found that “the termination of the employment of Mr Simmons was not termination at the initiative of the employer but rather, as is submitted by the respondent, termination resulting from the operation of the Act of parliament.” Mr Simmons relied on the employer’s discretion to extend the employment. Justice Moore found that the statute applied without qualification and that the existence of the discretion, and the employer’s decision not to exercise that discretion, did not alter the ordinary operation of statutory provision.” [53] The MOPS Act provides the basis on which Members of Parliament (in the current case Senator Roberts) can conduct employment on behalf of the Commonwealth. That statute also sets out how the employment can be terminated. The statute includes certain circumstances in which the employment can be concluded by automatic termination. [54] Section 14 of the MOPS Act provides that an Event that terminates employment is when “[t]he employing individual ceases to be covered by a determination made under section 4”. The Respondent submitted that when the circumstances in s.14 of the MOPS Act arise, the employment of the employee automatically terminates by operation of the section. [55] The Respondent also referred to s.16 of the MOPS Act which in contrast to s.14, sets out the required steps to be taken by the Employer in the situation of a termination by notice (for example, where an employee's employment is terminated because of performance or conduct issues). The Applicant's contention was that in terms of s.14, the Employer can also take steps in initiating the Determination, the detail of which leads to the automatic termination of the particular employment. [56] The Respondent in their reply submissions stated: “It appears that the gist of Mr Nagle’s submissions is that even though the termination of his employment happened by operation of law, it is still a termination of his employment at the initiative of the Commonwealth as it was the Commonwealth which created the conditions which triggered the operation of the statute in question. Mr Nagle says that accordingly, he was ‘dismissed’ within the meaning of s.386 of the Fair Work Act 2009 (Cth) (FW Act).” [57] The Respondent also stated that there may be circumstances in which the termination of a contract employment by the operation of law can be a dismissal. However, they stated that in the current circumstances, the Applicant’s ongoing employment was terminated automatically pursuant to s.14 of the MOPS Act. The Applicant’s post-termination employment then initially occurred by way of a non-ongoing contract (with Senator Roberts) and then on a different ongoing contract (with Senator Hanson). This further employment, is separate to the termination of the employment contract, currently under consideration. The nature of this further employment is therefore not required to be considered in relation to this jurisdictional decision. [58] The Applicant submitted that there is a clear, unambiguous and direct line of causation between the termination of his employment and the Commonwealth’s conduct in issuing the -- 19 of 24 -- [2026] FWC 461 20 specific terms of the Determination. The Applicant submitted that “but for the Commonwealth’s revocation leading to the statutory termination, [that he] would have continued in employment.” [59] The Respondent stated during the Hearing that the Determination was not personal to Mr Nagle’s circumstances. They stated that it was purely a mechanism of the Commonwealth, by which the operation of such permitted the Commonwealth to reset staffing levels after an election, with the automatic result of terminating the Applicant’s employment. The Respondent's representative in examining the Determination and the associated termination of employment, raised that it is important to distinguish between the different arms of the Commonwealth. For example, when the Commonwealth is functioning in its legislative arm or acting in its employer capacity and when separately acting to discharge its Governmental duty. [60] Neither party referenced the rationale for setting the employee/staffing levels, arising from the Determinations. In terms of the basis for issuing the Determinations, in the Second Reading of the MOPS Act, it was stated that “The numbers and levels of these staff will continue to be decided by the Government on the recommendation of the Remuneration Tribunal.”9 This indicates that the making or revoking of a s.4 Determination requires steps to be taken by the Commonwealth in relation to the consideration of these staffing levels for parliamentarians. No specific information about the deliberations or guidance for those steps and the resultant staffing numbers were provided. [61] The Respondent submitted that their analysis of the Applicant’s circumstances demonstrated that there was no action of the Commonwealth in the capacity as an Employer that was evident, other than the operation of the law in question. That is s.14(1) of the MOPS Act states: “A person’s employment under this Act terminates if an Event specified in the Table occurs and the person is the kind of employee specified for the Event.” [62] Section 14 of the MOPS Act provides for 5 different Events in which termination is automatically triggered. Item 5 is the relevant circumstance to the termination of Mr Nagle’s employment. Mr Nagle in relation to the first two Items (in the Table) stated that they “are clearly precursor conditions or step factum outside of the Commonwealth’s control, so Parliament would not want to have a dismissal generated from that.” The Respondent during the Hearing submitted that there is no basis on the words of the section (s.14) that would give different characteristics to Items 3 to 5 as is done in Items 1 to 2. Items 1 and 2 being when the employing individual dies or the employing individual ceases to be a parliamentarian. Items 1 and 2 are outside of the control of the Government, but there is nothing from the wording of Item 5 which prevents it from being a termination of employment at the Employer's; the Commonwealth's initiative. Conclusion [63] Mr Nagle's employment as a personal employee was terminated when Senator Roberts direct allocation of personal employees ceased to be allotted to him (due to the Revocation of the s.4 Determination made post the 2025 election). The Applicant argued that it was known -- 20 of 24 -- [2026] FWC 461 21 by the Commonwealth that this would have the inevitable and direct result of reducing staffing; and terminating his employment. [64] The particular formulation for the reduction of staffing by the 2025 Determination was not explained. It is recognised that the Respondent’s case did not address these matters as they advocated this termination occurred automatically in accordance with s.14(1) of the MOPS Act. However on this point, the Applicant argued that no reduction in staff should have occurred given One Nation’s improved election result; in terms of Senator Roberts and the One Nation party as a whole. [65] The Applicant’s argument was double pronged in that on the basis of the legislation he acknowledged his circumstances reflected a s.14, Item 5, automatic termination. However, he stated that there was a requirement to look to the circumstances of the termination. That is the circumstances behind the Commonwealth issuing the self-executing Determination. These were the primary matters that he addressed in the jurisdictional objection. His written material did not fully expand on his arguments or evidence as to how this may be classed as an unfair dismissal. He stated that he had no obligation to present his full merits case in these jurisdictional proceedings and that he had evidence that he would put before the Commission in the unfair dismissal proceedings. He stated that the evidence would demonstrate that the effect of the Determination on One Nation’s staffing levels did not correlate with the election results and that One Nation had immediately disagreed with the allocation and its reduction in staffing numbers. It was stated that One Nation had instantly objected and referenced their intentions to commence other actions to object to the basis of the Determination.10 Again no reference was made to the actual basis or any formulaic guidance (for staff numbers) to be complied with by the Commonwealth, in setting Determinations. [66] The conduct of the Parties has been examined in line with the case law relevant to whether a dismissal occurred. In assessing s.386(1), the full context and the statements provided by both Parties have been considered also against the approach in O’Meara v Stanley Works Pty Ltd11: “[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said: ‘[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or -- 21 of 24 -- [2026] FWC 461 22 she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.’ 12 (emphasis added). … [23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether ‘the act of the employer [resulted] directly or consequentially in the termination of the employment.’ Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” 13 (footnotes omitted) (emphasis added). [67] The extract from the case authority Quirk v Construction, Forestry, Maritime, Mining and Energy Union14 (repeated for convenience) supports that an ‘Event’ of a Determination, triggering the automatic termination of employment can result in a dismissal undertaken in accordance with s.386 of the FW Act: “I therefore do not accept the Respondents’ submission that there can be no termination of an employment relationship purely because the contract of employment came to an end by operation of law. Nor do I accept that Mylan stands in the way of that conclusion. As I have already indicated, the critical part of his Honour’s reasoning is the statement that ‘any employment was at an end without any necessity for action by the union’. I do not read his Honour’s statement ‘In any Event, Mr Mylan’s office (and any employment) was lost by operation of law as a result of the Orders’ as a holding that in every case where a contract of employment ends by operation of law there can be no termination within the meaning of s 386. I would accept that Mylan is authority for the proposition that where a contract of employment ends by operation of law without any act by the employer then there will be no termination within the meaning of s 386. But I do not accept that his Honour intended to say, or did say, anything about the situation where a contract of employment ends by operation of law as a result of the actions of the employer. Facts of that kind were not before the Court in Mylan.” [68] The current 'Event' that brought about the termination of the Applicant's employment was the Determination at the discretion of the Prime Minister acting in the executive function of the Commonwealth that revoked the s.4 Determination. There was an established link at a -- 22 of 24 -- [2026] FWC 461 23 jurisdictional level between the Revocation of the Determination and the termination of the Applicant’s employment. To use the gun analogy in Quirk, the Determination revoking the personal employee’s employment with Senator Roberts was the ‘loading of the gun’, and s.14 of the MOPS Act was the ‘trigger’. Although the ‘trigger’ was automatic in nature, the ‘loading of the gun’ was as a result of actions taken by the Prime Minister’s office. As per Quirk, the focus in relation to s.386(1) is about if the Employer was the entity that ‘loaded the gun’. In this case, the Employer ‘loaded the gun’ by taking specific steps to revoke the s.4 Determination that Mr Nagle was employed pursuant to, and it follows then that the Employer took the initiative to terminate the employment of Mr Nagle. [69] With regard to the merits of a s.394 application, the Commission must act with caution with regard to the determination of a jurisdictional objection, the result of which may prevent an Applicant from being able to conduct their s.394 case. [70] This finding that there was a termination at the initiative of the Employer in accordance with s.386(1)(a), should not be taken as a predetermination of any further s.394 proceeding, this would need to be considered on the basis of the evidence put in the hearing of that matter. None of that material has been presented with any significant detail at this stage. The merits arguments of a s.394 case are not required to be fully made before the Commission at this stage. However, in terms of the efficacy of conducting the s.394 for arbitration on the available remedies (of reinstatement, redeployment or compensation) it is reasonable to consider in terms of the current status of the information before the Commission: If the primary remedy of reinstatement is being considered, the Applicant’s position (due to the Revocation of the Determination) on termination does not exist. If redeployment was sought, it is a fact that the Applicant is employed by Senator Hanson on an ongoing contract. Alternatively, in terms of compensation, it is a factor referred to by the Parties during the jurisdictional objection, that the Applicant was only without employment and remuneration for one day having been offered a three month non-ongoing contract and the consecutive current ongoing contract. [71] For all of the reasons as set out, the jurisdictional objection is dismissed. The Applicant was dismissed; his employment was terminated at the initiative of the employer, in accordance with section 386(1)(a) of the FW Act. [72] I Order accordingly. COMMISSIONER -- 23 of 24 -- [2026] FWC 461 24 Appearances: A Nagle, the Applicant G Fredericks of Counsel, instructed by L Rumble of Gadens Lawyers, for the Respondent Hearing details: 28 January 2026 Printed by authority of the Commonwealth Government Printer <PR796736> 1 [2021] FCA 1587. 2 Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200. 3 [2013] FCA 190. 4 Mylan v Health Services Union NSW [2013] FCA 190 at [26]. 5 [2025] NSWCA 199. 6 Section 20(1)(f) of the MOPS NSW Act. 7 The Respondent cited the High Court authorities cited by Kirk JA at [76] in State of New South Wales v Ashton [2025] NSWCA 199. 8 [2024] FWC 2010. 9 Commonwealth, Parliamentary Debates, Senate, 5 June 1984, 2512 (Gareth Evans, Attorney-General). 10 Section 590 of the FW Act allows a Member of the Commission to inform themselves in any way they consider appropriate in relation to the circumstances of a matter before them. 11 [2006] AIRC 496 (PR973462). 12 Ibid at [21]. 13 Ibid at [21]-[23]. 14 [2021] FCA 1587. -- 24 of 24 --