A trial judge's failure to identify the terms of an employment contract before determining whether it is unfair under s 106 of the Industrial Relations Act 1996 (NSW) constitutes jurisdictional error. However, the Full Bench on appeal may correct such error and, having identified error of the House v The King kind, may vary the decision on an alternative basis that could have been reached by the primary judge, provided the alternative basis was sufficiently raised during argument to afford procedural fairness. The word 'merely' in s 191(3) means the Full Bench is entitled to substitute its decision after identifying error — the constraint is on the basis for finding error, not on the kind of orders that may be made.
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