Fish v Solution 6 Holdings Ltd

The appeal concerned the jurisdiction of the Industrial Relations Commission of New South Wales to declare a share purchase agreement void or to vary it under section 106(1) of the *Industrial Relations Act 1996* (NSW). The appellants sought a writ of prohibition from the Court of Appeal to restrain the Commission from exercising this jurisdiction. The core of the dispute revolved around whether the share purchase agreement, which stipulated the first appellant's entry into an employment contract with a related company of the purchaser as a condition precedent to completion, constituted a "contract whereby a person performs work in any industry" within the meaning of the Act.

The legal issues before the High Court were whether the Industrial Relations Commission had jurisdiction to consider the share purchase agreement as a contract whereby a person performs work in an industry, and consequently, whether a writ of prohibition was an appropriate remedy to restrain the Commission from exercising its powers. This involved determining the proper construction of section 106(1) of the *Industrial Relations Act 1996* (NSW), particularly the phrase "whereby a person performs work in any industry," and considering the relevance of the employment contract being a condition precedent to the share purchase agreement. The Court also had to consider the effect of a privative provision in the Act and whether the application for prohibition was premature, given that no jurisdictional objection had been raised before the Commission.

The Court reasoned that the *Industrial Relations Act 1996* (NSW) should be construed purposively, with a view to preventing subterfuges that remove workers from the protections of industrial awards. Previous High Court decisions, such as *Brown v Rezitis* and *Stevenson v Barham*, indicated that the Commission's powers under equivalent provisions were not to be narrowly construed and could extend to arrangements that formed part of a broader scheme to circumvent industrial law. The majority held that the share purchase agreement and the subsequent employment contract were intrinsically linked and formed part of a composite arrangement under which work was performed in an industry. Therefore, the Commission had jurisdiction to consider the fairness of the entire arrangement.

The High Court dismissed the appeal, upholding the decision of the Court of Appeal. The appeal was dismissed with costs.