Industrial Relations Commission of New South Wales in Court Session CITATION : AOS Group Australia Pty Ltd (in liquidation) v Arrogante and Others [2004] NSWIRComm 80 AOS GROUP AUSTRALIA PTY LTD (IN LIQUIDATION) ACN 084 580 496 Appellant PARTIES : JOEL ARROGANTE AND ORS First Respondents AOS GROUP STAFF PTY LTD (IN LIQUIDATION) ACN 084 708 633 Second Respondent FILE NUMBER: IRC 5467 of 2003 CORAM: Wright J President; Walton J Vice-President; Schmidt J CATCHWORDS : Appeal - Application for leave to appeal and appeal against orders varying an unfair arrangement - jurisdiction - construction of section 105 and section 106 of the Industrial Relations Act 1996 - argument that no power to vary arrangement, if result a new contract - narrow construction rejected - asserted limitation upon power to vary an arrangement rejected - leave to appeal granted - appeal dismissed Industrial Arbitration Act 1946 (repealed) s88F LEGISLATION CITED : Industrial Relations Act 1996 s105 s106 Industrial Relations Act 1991 (repealed) s275 Arrogante & Ors v AOS Group Aust Pty Ltd (in Liq) & Anor [2003] NSWIRComm 283 Agius v Arrow Freightways Pty Ltd [1965] AR 77 Bartolacci v Permanent Custodians Ltd (1992) 44 IR 388 Brown v Rezitis (1970) 127 CLR 157 Bull v Attorney General (NSW) (1913) 17 CLR 370 CASES CITED : Custom Credit Corporation Ltd v Goldsmith [1976] AR (NSW) 98 Davies & Anor v General Transport Development Pty Ltd & Ors [1967] AR 371 Gough v Gilmour v Caterpillar (No 2) (2001) 106 IR 274 Hoffman v Industrial Commission of New South Wales (1990) 33 IR 139 Mitchforce Pty Ltd v Industrial Relations Commission (NSW) [2003] NSWCA 151 Myer Stores Limited t/a Grace Bros v Stowart (1994) 55 IR 21 Stevenson v Barham (1977) 136 CLR 190 HEARING DATES: 03/29/2004 DATE OF JUDGMENT: 04/06/2004 APPELLANT: Mr JJE Fernon SC with Ms AF Fernon of counsel SOLICITORS: Truman Hoyle Lawyers LEGAL REPRESENTATIVES: FIRST RESPONDENT: Mr Malcolm Holmes QC with Mr David Robinson SC SOLICITORS: Paul Bard Lawyers JUDGMENT: - 16 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: Wright J, President Walton J, Vice-President Schmidt J Tuesday, 6 April 2004 Matter Number IRC 5467 of 2003 AOS GROUP AUSTRALIA PTY LTD (IN LIQUIDATION) v JOEL ARROGANTE AND OTHERS Application by AOS Group Australia Pty Ltd (in liquidation) for leave to appeal and appeal against a decision of Justice Marks given on 11 September 2003 in matter number IRC 4249 of 2001 JUDGMENT OF THE COURT 1 This is an application for leave to appeal and appeal from a judgment given by Marks J on 11 September 2003 pursuant to s106 of the Industrial Relations Act 1996 ('the Act'): see Arrogante & Ors v AOS Group Aust Pty Ltd (in Liq) & Anor [2003] NSWIRComm 283. His Honour concluded that the arrangement existing between the parties was unfair and made orders varying the arrangement and requiring the appellant and the second respondent to pay the 22 personal respondents certain moneys, as well as the costs of the proceedings. 2 The personal respondents to the appeal had been granted leave by the Supreme Court to institute the proceedings. The judgment under appeal 3 Marks J found that the personal respondents had been employed for varying periods in a printing and binding business, acquired by a consortium after the business had been put into administration. The purchase price had regard to the fact that the purchaser assumed liability to pay outstanding employee entitlements. Two companies were established by the consortium. One company, (the appellant - referred to by Marks J as 'New AOS') was to acquire the assets of the business and manage the financial operations of the business; the other, (the second respondent to the appeal - referred to by Marks J as AOS Staff), was to employ and manage staff. 4 Under the terms of the business sale agreement, the appellant was required to offer existing employees employment in the business and became solely responsible for their statutory and other entitlements, if they accepted the offer of employment. The personal respondents were, in fact however, offered employment by the second respondent, rather than by the appellant. The personal respondents each accepted and most signed, a contract of employment accordingly. 5 The appellant and the second respondent later entered into an agreement, under which the second respondent was to provide certain advice and services to the appellant. The management fee fixed was to cover, amongst other things, the cost to the second respondent of the employees' wages and other expenses. Both the appellant and the second respondent later went into liquidation. The liquidator of the second respondent did not defend the claims brought by the personal respondents, submitting to any order of the Court. The second respondent had no assets. The appellant defended the claims. 6 The initiating summons claimed: 1. An order that: (a) the Consultancy Agreement made between the First and Second Respondents in or about October 1998; and (b) the Employment Contracts between each of the applicants and the Second Respondent made in or about October 1998, are unfair contracts within the meaning of s 105 of the Industrial Relations Act 1996. 2. An order varying the terms of the Consultancy Agreement between the First and Second Respondents, from the commencement of such agreement on 14 October 1998, by: (a) deleting the words "independent consultant" in clause 1, and inserting the word "agent" in their place; (b) deleting clause 5 and inserting the following: "The relationship between Staff and Group is that of agent and principal." 3. Further, an order varying the terms of the Employment Contracts between each of the applicants and the Second Respondents, as from the commencement of each such contract, by adding the following provision: '15.1 This contract is made by AOS Group Staff Pty Limited (ACN 084 708 633) as agent for an on behalf of AOS Group Australia Pty Limited (ACN 084 580 496), and for the purposes of this contract the expression "Employer" shall mean AOS Group Australia Pty Limited.' 4. An order that the First Respondent pay to each of the Applicants respectively, the amount specified against each Applicant's name in Schedule B. 5. An order for costs. 7 Marks J concluded that there existed an arrangement comprising two contracts, namely that between the appellant and the second respondent, on the one hand and the employment contracts between the second respondent and the personal respondents, on the other. The arrangement came within the definition of contract in s105 of the Act and within the provisions of s106(1), involving as it did contracts whereby a person performed work in an industry. His Honour also took the view that arguably, each employment contract was collateral to the contract between the two companies and also a related condition to that contract. 8 His Honour found that the arrangement was relevantly unfair. His Honour said at [28] to [30]: 28 In submitting that the relevant unfairness existed Mr Holmes QC who together with Mr D Robinson appeared as counsel for the applicants relied on the fact that outstanding entitlements of employees of the former business were always significant matters in connection with the sale of the business to New AOS. That sale and purchase was negotiated on the basis that New AOS would take over all outstanding entitlements. Indeed, this was emphasized to employees in the letter of 30 September 1998. As the operating company, New AOS held the assets of the business and was in receipt of the earnings of the business. Not only did it agree to meet outstanding entitlements of the former employees of the vendor company but it had the resources to meet those entitlements. Representations concerning the protection of their entitlements were made to employees at the time that they entered into their contracts of employment with AOS Staff. There is evidence that employees who did not transfer across to AOS Staff were paid out their full entitlements as was the case of employees who left the employment of AOS Staff prior to liquidation of that company. This is compounded by the fact that the purchase price of the business comprehended within it as consideration the assumption of responsibilities to pay out employee entitlements. In utilising a two company structure those persons who were involved in the negotiation of the acquisition of the business were able to quarantine employee benefits with the result that there were no assets against which any long-standing or more recent employee entitlements might be enforced. The artificial nature of AOS Staff was emphasized in that it owned no assets, it did not charge any management fee nor make any profit and was a mere conduit for the receipt of moneys from New AOS against obligations to pay moneys to employees, those employees providing the necessary labour to enable New AOS to function. 29 In my opinion it is a contemporary community value held generally, if not substantially, by the citizens of the State of New South Wales that employees are fundamentally entitled to receive outstanding entitlements derived from legal rights. It was unfair according to these values that those persons responsible for the implementation of the purchase of the business on the basis that existing employee entitlements would be protected would be able to utilise a structure that would have the effect of depriving employees of the ability to gain the priority which the law attaches to outstanding employee benefits as embraced in the Corporations Act. 30 I agree with the submissions made on behalf of the applicants that the relevant unfairness exists in the manner in which I have described and I find accordingly. 9 Marks J then turned to consider what orders should be made. His Honour had earlier observed that one effect of the orders sought would be to create the relationship of employer and employee between the appellant and the personal respondents. He concluded that the orders were nevertheless within jurisdiction, concluding at [34] and [35]: 34 As I have earlier said, the applicants submitted that the consequences of making the variations sought namely by providing that the contract was made by AOS Staff as agent for and on behalf of New AOS would have the effect at law of rendering the employees of AOS Staff as employees of New AOS. This is because the contracts between each of the applicants as employees and AOS Staff would have been entered into by AOS Staff as agent for a disclosed principle namely New AOS. It was submitted by Mr A Fernon of Counsel who appeared for the liquidator of New AOS that this was impermissible because it involved the making of a new contract which this court was not empowered to do under s 106 of the Act, that power being limited to the avoidance and variation of existing contracts. In making this submission Mr Fernon emphasised that the consequences of the variations would be to create contracts of employment between New AOS and each of the applicants where none previously existed. I agree that if the variations sought were directed solely to each of the contracts of employment between each of the applicants and AOS Staff, then it would be arguable that this would be beyond the jurisdiction and power of this Court, which is limited to variation or avoidance of contracts as defined. However, the fact that an order otherwise within jurisdiction and power will have the effect of creating contracts where none previously existed does not in my opinion taint the making of such an order. Accordingly, if the arrangement previously identified is varied so that the individuals contracts made by AOS Staff with each of the applicants are made as agent for New AOS then, such an order is permissible notwithstanding the effect contended for by Mr Fernon. I should add, for completeness, that Mr Holmes did not concede that the effect contended for constituted the making of new contracts of employment and submitted that in all the circumstances the consequences might be characterised as a variation. 35 I am fortified in the conclusion to which I have come because in the circumstances of these proceedings New AOS is clearly a party to the arrangement which has been identified, and which I hold should be varied as sought by the applicants. The appeal 10 The appeal raised the following questions: (a) Does the Commission have jurisdiction to vary a contract between two respondents in proceedings where neither respondent has sought to have the contract varied. (b) Does the Commission have jurisdiction to create a contract of employment between persons who had at no time been in any contractual relationship. (c) Was there a contract within the meaning of section 105 of the Industrial Relations Act 1996 between the Applicants below and the Respondents. (d) If the orders of his Honour were prima facie within jurisdiction, were they otherwise beyond jurisdiction or an improper exercise of that jurisdiction by achieving indirectly what Parliament had not allowed to be achieved directly. (e) If the exercise of power referred to in (d) above was not a necessarily improper exercise of power, should his Honour have exercised his jurisdiction in any event. (f) Should his Honour have awarded compensation. The legislation 11 Because the language of the pertinent parts of the legislation provide the key to these proceedings, the terms of s105 and s106 should be noted here. Those sections provide: 105 Definitions In this Part: contract means any contract or arrangement, or any related condition or collateral arrangement, but does not include an industrial instrument. unfair contract means a contract: (a) that is unfair, harsh or unconscionable, or (b) that is against the public interest, or (c) that provides a total remuneration that is less than a person performing the work would receive as an employee performing the work, or (d) that is designed to, or does, avoid the provisions of an industrial instrument. 106 Power of the Commission to declare contracts void or varied (1) The Commission may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the Commission finds that the contract is an unfair contract. (2) The Commission may find that it was an unfair contract at the time it was entered into or that it subsequently became an unfair contract because of any conduct of the parties, any variation of the contract or any other reason. (3) A contract may be declared wholly or partly void, or varied, either from the commencement of the contract or from some other time. (4) In considering whether a contract is unfair because it is against the public interest, the matters to which the Commission is to have regard must include the effect that the 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. (5) In making an order under this section, the Commission may make such order as to the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case. In making an order under this section, the Commission must take into account whether or not the applicant (or person on behalf of whom the application is made) took any action to mitigate loss. The parties' cases 12 The appellant's case was that the Court's power under s106 was limited to declaring void or varying an existing contract. The existence of such a contract was a necessary condition or jurisdictional precondition for the exercise of that power. The power did not include the making of a new contract. There was an implied limitation in s106(1) in that respect. While leave to appeal would not be lightly given, the issue raised was fundamental to the jurisdiction. A refusal of leave would be far reaching, given that his Honour's judgment was inconsistent with relevant authority. It followed that the matter should be authoritatively dealt with by the Full Court. 13 The case for the respondent was that the jurisdictional issue identified was illusory. The finding of the existence of the arrangements which had been varied by Marks J was indisputably correct on the evidence. The jurisdiction given by s106 included the power to vary such arrangements. The only limitation on that power was that it must be exercised for the purpose granted, namely to alleviate the unfairness found. The implied limitation asserted should not be accepted as a fetter on the actual words of the section. The premise upon which the appellant's submissions were advanced were submitted to be flawed, with the result that leave to appeal should be refused. Consideration 14 With some reservations we have come to the view that leave to appeal should be granted, given the nature of the matters raised and their importance to the exercise of the Court's jurisdiction under the section. Nevertheless, we are also satisfied that the appeal must be dismissed. We consider that it proceeds on a wrong premise, contrary to well settled authority on the proper construction of s106 of the Act. 15 We begin by noting that here there was no challenge to his Honour's factual findings as to the existence of an arrangement falling within the section. The evidence amply left that conclusion open. It is well settled that the term 'arrangement' is one of wide meaning. In Custom Credit Corporation Ltd v Goldsmith [1976] AR (NSW) 98 it was observed at 131: In our view, it is not a matter for comment that there is no definition in s.88F or, for that matter, in any other part of the Industrial Arbitration Act of "contract"; there is just no reason why there ought to be. It would not be disputed, we believe, that the meaning of "contract" is not peculiarly within the knowledge of lawyers, but rather is known to the community at large, who would know, as one reads in Anson's wellknown treatise on this branch of the law, that a "contract is an agreement enforceable at law, made between two or more persons, by which rights are acquired by one or more to acts or forbearances on the part of the other or others". But it must be true to say, we think , that it is significant that Parliament did not see fit to include in the Act any definition of "arrangement", which is not a term of art and is not a word which has a very precise meaning. Looking at the setting in which it is used in s.88F, we are of the opinion that in one of its meanings "arrangement" embraces transactions which do not give rise to contracts or obligations, that is to say, obligations enforceable at law; but we are also of the opinion that in another meaning it embraces a situation where there exist two or more separate contracts which, notwithstanding their separateness, are, given the facts, so sufficiently associated with each other in a practical sense as together to constitute an arrangement of which each contract is a part. 16 In coming to that conclusion the former Commission in Court Session had regard to what was said in Brown v Rezitis by Menzies J at 169: The section is clearly intended to confer a comprehensive power upon the Commission to go to the substance of an arrangement made for a person to perform work in an industry - and to do so in disregard of the legal dress in which the arrangement has been clothed - in order to put such a worker in no worse a position than if he had been working under a contract of employment protected by award conditions. 17 What was decided in Custom Credit has been repeatedly approved and applied. For example, in Myer Stores Ltd (t/a Grace Bros) -v- Stowart (1994) 55 IR 21, the Full Court accepted the approach of Hungerford J in Bartolacci v Permanent Custodians Ltd (1992) 44 IR 388 that Custom Credit 'is support for the proposition that two or more separate contracts may be so sufficiently associated with each other as together to constitute an arrangement under which work is performed in an industry so as to be comprehended within s.275' (a predecessor to s106). The Full Bench also went on to say that 'It is this flexibility of approach which, in the present case operates to allow an examination of all of the aspects of the relationships'. 18 In Strathfield Group Ltd v Hall (2002) 121 IR 158 it was concluded by another Full Bench at [40], that 'the power to afford relief under s106(3) extends to the whole of the arrangement, once that arrangement is found to be relevantly unfair within the meaning of the statute'. 19 We further note that there was also no challenge to Marks J's conclusion that the arrangement was an unfair contract, as that term is defined in s105. That was entirely understandable given the unchallenged facts found. The challenge on appeal went rather to the power to grant the relief ordered. 20 That challenge arose because, as his Honour noted, one consequence of the variation which he made to the arrangements before him, was that the appellant became the direct employer of the personal respondents and the second respondent became its agent, rather than an independent contractor. This was the nub of the appellant's complaint, namely that the Court had no jurisdiction to create what it described as "new contracts" (or more appropriately, to vary the arrangement to have the effect about which the appellant complains). 21 It is the appellant's focus upon the consequences of the orders made, that is, for the contracts which comprise the arrangement, rather than upon the variation to the arrangement itself, of which the contracts were but a part, which reveals the fundamental flaw in the point raised on appeal. 22 It is conceivable that, under s106, the Court is given no power to require the making of an entirely "new contract" (although whether the orders sought exceeded the limits of the power would require an analysis of the precise orders sought), when seeking to remedy a contract which is found to be unfair: see Gough v Gilmour v Caterpillar (No 2) (2001) 106 IR 274 at 284-5 and Mitchforce Pty Ltd v Industrial Relations Commission (NSW) [2003] NSWCA 151 at [116] to [119]. That, however, is not what his Honour here did. Rather, he exercised the power given by the section to vary an aspect of an arrangement found to be unfair, in order that the unfairness revealed on the evidence be redressed. 23 We are satisfied that the scope of this power is not such that it can be limited artificially. Section 106 is concerned with a particular class of relationships - those contracts, as defined in s105, whereby work is performed in an industry. The wide definition of contract has been crafted to ensure that the Court has power to deal with a wider class of dealings than unfair contracts simpliciter. By the approach adopted in s105 and s106, the Court is given wide powers to ensure that the parties' dealings with each other are made fair, once a contract, or arrangement, or related condition, or collateral arrangement is within jurisdiction. The history of the section, its predecessors and the authorities, throw considerable light upon how the statutory intention to ensure that the Court is clothed with sufficient power to unravel unfair subterfuges, sham arrangements and those designed to permit one party to extract an unfair advantage from those less powerful, has been achieved. 24 Here, the case brought involved employees of a business in administration, and the subject of a sale to a consortium, who were offered employment under a scheme devised as part of an apparent endeavour to remove them from the possibility of access to the assets of the business, in the event that the business did not succeed. The evidence showed that the personal respondents continued to perform work in the business after the sale, but not for the owner and operator of the business, as the sale agreement envisaged. This was achieved by the interposition of another corporate vehicle as the direct employer. That entity had no assets with which to meet the employees' entitlements. The arrangement proved to be patently unfair, given that the employing company had no assets with which to meet the employees' entitlements when the business failed. That result may well have been what the arrangement was designed to achieve. 25 This situation is a classic one of the kind with which the section is concerned. The arguments on jurisdiction advanced for the appellant were of a kind which this Court has repeatedly rejected. As long ago as 1967, Sheldon J in Davies & Anor v General Transport Development Pty Ltd & Ors [1967] AR 371 at 373-4 after referring to 'chicanery' amongst other things, described the jurisdiction as acting with 'drastic and pervasive effect'. He went on to observe: It certainly plays havoc with the classic principles relating to contracts. "In general, unless a contract is vitiated by duress, fraud or mistake, its terms will be enforced though unreasonable or even harsh and unconscionable . . . Moreover in the ordinary case the court will not remake a contract; unless in the special case where a contract is severable, it will not strike out, one provision as unenforceable and enforce the rest" ( Esso Petroleum v. Harper's Garage (per Lord Reid ) 1967 1 A.E.R. at p.705). But s. 88F has no such inhibitions; for it not only proscribes transactions which directly undermine awards (see (d) and (e)) or threaten general industrial standards (which, I think, is the most relevant "public interest" referred to in (c)), but it also, in (a) and (b), strikes separately at those which are "unfair" or "harsh" or "unconscionable". Presumably, this is because any transaction, leading to work in an industry, which can be so described is regarded as inimical to the purposes of the Act. In this setting, these words are probably, for practical purposes, a tautological trinity. To find in relation to a shoddy dealing concerning, say, a motor truck and a promise of carrying work, that it is "unfair" but not "harsh" or "unconscionable" suggests an approach too refined for the subject. But, insofar as there are nuances between thee words (as Lord Reid's statement suggests), s. 88F makes it clear that, for its purposes, any one will serve. As to remaking contracts, this can be done either by admitting parts and retaining the rest, or by adding new terms. Thus, destruction, dilution, renovation and patching are all weapons in the section's arsenal. Nor does it tolerate argument, on such nice questions as whether the contractual relationship has been perfected. It is sufficient that there be an "arrangement" and, for good measure, "conditions and collateral arrangements" are also included. Moreover, there is no loophole available in transactions, so dear to those allergic to awards, under which the working party is not an employee but an independent contractor. Unlike some other sections in the act, s. 88F does not transmute contractors into employees; it takes the contract as it finds it but imperils both its continuance and its prior operation. In the result, when deciding actual cases under this section, to seek assistance from authorities on the general law of contract is an arid exercise, for if ever a law was intended to stand on its own feet it is this one. While it is hard to see how any transaction directly leading to work in an industry, and involving mutual promises, can escape a net so widely cast to attract jurisdiction, no action is warranted on a transaction not directly covered by (c), (d) or (e) unless it is unfair, or harsh or unconscionable. To determine this, requires no more than the common sense approach characteristic of the ordinary juryman and this cannot be communicated - indeed it may be clouded - by an analysis of decided cases even where there is some analogy in the facts. It is a plain matter of morals not law. On this question, I respectfully adopt what was said by Beattie J. in the Arrow Freightways Case 1965 A.R. at pp. 88-89. That case disclosed that the section in its then form lacked bite because there was no procedure available under the Act for enforcing any order or award which avoided a transaction, and there was considerable discussion, but no concluded opinion was necessary, on how far in such a case an action lay in the ordinary courts to recover moneys paid (see 1965 A.R. at p.87 et seq.) As a result of this, Parliament acted again in 1966 and resolved the difficulty by rendering it academic. By adding sub-s. (2), it gave the Commission power, when avoiding or altering a transaction, to "make such order as to the payment of money . . . as may appear to the commission to be just in the circumstances of the case". Not only can no wider discretion be conceived, but the whole subject of right and remedy under this section was thus committed exclusively to the industrial tribunal. This discretion is certainly comprehensive enough for the Commission to ensure that moneys unfairly extracted are returned and that there is adequate a compensation for working time wasted for sub-standard, remuneration. Nor have costs, sometimes the Commission's Achilles heel, been forgotten. They can be awarded or withheld on an equally wide discretionary basis and, to render this easier, the Commission is made its own taxing officer (s.88F (3)). This all shows that under s.88F the way of the transgressor is hard. He is under fire from a diversity of angles and the armour that clever drafting sometimes supplies is in this case far from impenetrable. The fact that this commission has been selected to enforce the section adds to his difficulties. In this regard, the Commission's general statutory duty to be "governed in its . . . decision by equity and good conscience" (s.83) may not be significant because that conception is also embodied in the section itself. But the fact that this is not a court of pleading and is not "bound to observe the rules of law governing the admissibility of evidence" (s.83) is a real advantage in this class of case, where it is better to have all the cards on the table (even if some don't matter) than to lack vital ones because of difficulties of proof. At times, too, a judicious relaxation of the rules relating to hearsay can help to unravel the truth. All in all, smart operators would do well to consider whether it may be cheaper in the long run to assume, with what equanimity they can summon, the burdens that fall on more orthodox employers. 26 In Agius v Arrow Freightways Pty Ltd [1965] AR 77, Beattie J said at 88: There seems to me to be an argument of some weight in support of the view that the legislature had in mind the avoidance of contracts for the sake, if I may borrow Lord Mansfield's words "of protecting one set of men from another set of men, the one from their situation and condition, being liable to be oppressed or imposed upon by the other", and had also in mind that a remedy by way of an action for money had and received would be open to a person who succeeded in having a contract avoided on one of the grounds referred to in the section. 27 These observations have consistently been followed over the ensuing years. Their correctness is not open to doubt, particularly given the approach of the High Court in cases such as Brown v Rezitis (1970) 127 CLR 157, where it was observed by Barwick CJ at 164, that one of the purposes of the section was to deal with 'subterfuges which will take the servant out of the relationship of master and servant', and Stevenson v Barham (1977) 136 CLR 190, where the Chief Justice observed (at 192) that 'the language of s88F is intractable and must be given effect according to its width and generality'. Nowadays, of course, the rules of evidence do apply to proceedings brought under s106: see s163(2). 28 In this case, we are satisfied that the approach to jurisdiction urged by the appellant would require that the Court ignore its wide powers to vary or even declare void, unfair arrangements wider than any single contract (or even related conditions or collateral arrangements). 29 Were it otherwise, notwithstanding the wide meaning of the word or expression 'arrangement' and the definition of 'unfair contract' in s105, s106 would still leave available to the unscrupulous, a large opportunity to construct sham arrangements or subterfuges, by use of corporate vehicles which entered a series of contracts with each other. Employees would have no proper redress when made the victim of arrangements designed to shelter business assets, so as to ensure that they are deprived of the contractual, award and statutory benefits of their employment. The result would be that, even if together, the contracts comprised an arrangement to which the section applied, the remedy of variation of the arrangement, could not be utilised in order to rectify any unfairness found, if the end result would be to make one party to the arrangement, a new party to one of the contracts which comprised the arrangement. We are well satisfied that such a restricted construction of the sections is not properly available. 30 Such a construction would not result in, as was argued by the appellant, the Court doing indirectly, what it may not do directly, relying on Container Terminals Australia Ltd v Xeras (1991) 23 NSWLR 214 at 217. The section after all gives the Court an express power to vary an arrangement, in addition to the power to vary a contract. The power of variation is expressed without relevant limitation. We are satisfied that the construction here urged would have the result of introducing a limitation upon the power to vary an arrangement, which the legislature has not itself imposed. That this was so was confirmed by the appellant's submission that the orders made by Marks J were in reality not orders of variation of the arrangement. We reject that submission. 31 The approach urged therefore fails to give proper regard to the plain words of the statute. It would also not accord with the usual approach to statutory construction, which requires that remedial or beneficial legislation such as s106 be construed so as to give 'the fullest relief which the fair meaning of the language will allow': Bull v Attorney General (NSW) (1913) 17 CLR 370 at 384. See also the discussion in Statutory Interpretation in Australia, 5th edition, Pearce and Geddes, Chapter 9 commencing at p227. 32 As the authorities well show, the meaning of the section and what its proper limitations are, have been the subject of repeated consideration over the years. For example, in Hoffman v Industrial Commission of New South Wales (1990) 33 IR 139 Handley JA, (with whom Samuels and Priestly JJA agreed), said as to the construction point there raised, at p142: In my view, the unexpressed limitation which Mr Campbell submits should be read into the section, cannot be derived from the language, context or evident purpose of the section and in the end is based on nothing more than an invitation to this Court to read the section as narrowly as possible. Decisions of the High Court, and the Privy Council establish that the section should not be read in this way. 33 Kirby P, (as he then was), made similar observations in Walker v Industrial Court of New South Wales & Anor (1994) 53 IR 121 at 135. We are satisfied that the same conclusion must be reached here. There is no limitation upon the Court's power to vary an arrangement, as here asserted. Nor do we accept that there is any basis to find an implied limitation in s106(1) as contended for by the appellant, given, as we have described, the plain language conferring jurisdiction in that sub-section. 34 We are satisfied that the orders made by Marks J were open as a matter of jurisdiction, power and discretion, in the circumstances which came before his Honour for consideration. Accordingly, the appeal must be rejected. Orders 35 Leave to appeal is therefore granted, the appeal is dismissed and the appellant is ordered to pay the respondent's costs of the appeal, as agreed or assessed. ------------------------ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.