Tana v Baxter [1986] HCA 69

High Court of Australia Gibbs C.J. Mason, Brennan, Deane and Dawson JJ. Tana v Baxter [1986] HCA 69

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 26 Gibbs C.J.,Mason, Deane and Dawson JJ.

The question for decision in this appeal is whether the Industrial Commission of New South Wales ("the Commission") had power under s. 11 of the Service and Execution of Process Act 1901 Cth, as amended, to order that Paul Matthew Baxter and others, the first respondents to this appeal, be at liberty to proceed against the appellant in proceedings brought in the Commission for relief under s. 88F of the Industrial Arbitration Act 1940 N.S.W., as amended. Sub-sections (1) and (2) of s. 88F provide as follows:

(1) The commission may make an order or award declaring void in whole or in part or varying in whole or in part and either ab initio or from some other time any contract or arrangement or any condition or collateral arrangement relating thereto whereby a person performs work in any industry on the grounds that the contract or arrangement or any condition or collateral arrangement relating thereto—

(a) is unfair, or

(b) is harsh or unconscionable, or

(c) is against the public interest. Without limiting the generality of the words "public interest" regard shall be had in considering the question of public interest to the effect such a contract or a series of such contracts has had or may have on any system of apprenticeship and other methods of providing a sufficient and trained labour force, or

(d) provides or has provided a total remuneration less than a person performing the work would have received as an employee performing such work, or

(e) was designed to or does avoid the provisions of an award, industrial agreement, agreement registered under Part VIIIA or contract determination.