Sydney Water Corporation Ltd & v Industrial Relations Commission of NSW & Anor

(2004) 61 NSWLR 661; [2004] NSWCA 436

NSW Court of Appeal

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Interrogate

Catchwords

1. Industrial Law
2. › Industrial Relations Commission of New South Wales
3. › Unfair contracts
4. › Jurisdiction under s 106 Industrial Relations Act 1996
5. › Whether contract itself must be found unfair
6. › Whether unfair conduct in breach of contract sufficient to enliven jurisdiction
7. › Whether Reich v Client Server Professionals correctly decided
8. › Industrial Relations Act 1996 (NSW), ss 105, 106
1. Administrative Law
2. › Judicial review
3. › Jurisdictional error
4. › Industrial tribunal
5. › Whether error in construing scope of statutory power constitutes jurisdictional error
6. › Prohibition
7. › Declaratory relief as alternative to prohibition
1. Administrative Law
2. › Remedies
3. › Declaratory relief
4. › Declaration as to scope of statutory jurisdiction
5. › Whether declaratory relief available absent jurisdictional error
6. › Supreme Court Act (NSW), s 48

Quick Take

Section 106 of the Industrial Relations Act 1996 (NSW) requires a finding that the contract itself is or has become unfair as a precondition to the exercise of the Commission's remedial powers; unfair conduct in breach of contract does not, without more, render the contract unfair. Reich v Client Server Professionals is no longer good law on this point. However, the occurrence of unfair conduct in breach may in some circumstances support a finding that the contract was unfair because it lacked protective provisions or adequate remedies.