Solution 6 Holdings Ltd v Industrial Relations Commission of New South Wales

Solution 6 Holdings Ltd and others (the Claimants) sought orders from the Supreme Court of New South Wales, Court of Appeal, to prohibit the Industrial Relations Commission of New South Wales (the Commission) from proceeding with an application by the First Opponent to have a share sale agreement declared void or varied under section 106 of the *Industrial Relations Act 1996* (NSW). The dispute concerned whether the Commission had jurisdiction to entertain such an application concerning a commercial share sale agreement, which the Claimants argued was not a contract "whereby a person performs work in any industry" as contemplated by the Act.

The central legal issues before the Court of Appeal were whether the Commission possessed jurisdiction under section 106 of the *Industrial Relations Act 1996* to review and potentially void or vary a share sale agreement, and whether the privative clause contained in section 179 of the Act precluded judicial review of the Commission's interlocutory decisions in this matter. The Court was required to interpret the scope of the Commission's powers concerning non-industrial contracts and the meaning of "decision" for the purposes of the privative clause.

The Court of Appeal held that the Commission's jurisdiction under section 106 was limited to contracts that were industrial in nature, meaning contracts for the performance of work in an industry. A share sale agreement, being a commercial transaction for the transfer of ownership of a company, did not fall within this definition, and therefore the Commission lacked jurisdiction to hear the application. Furthermore, the Court found that no operative "decision" had yet been made by the Commission, as only interlocutory procedural steps had been taken. Consequently, the privative clause in section 179 was inapplicable, and the Court exercised its discretion to grant prohibition due to the patent defect in the Commission's jurisdiction.

The Court of Appeal made the first order sought by the Claimants, prohibiting the Commission from further hearing the application. The Second and Third Opponents were ordered to pay the Claimants' costs.