Industrial Law (N.S.W.)—Industrial Commission—Power to declare certain onerous contracts void—Contract or arrangement whereby a person performs work in any industry—Share-farming agreement—Industrial Arbitration Act, 1940 (N.S.W.), s.88F (1)*. * Section 88F (1) of the Industrial Arbitration Act, 1940 (N.S.W.), as amended, provides: "The commission may make an order or award declaring void in whole or in part or varying in whole or in part and either ab initio or from some other time any contract or arrangement or any condition or collateral arrangement relating thereto whereby a person performs work in any industry on the grounds that the contract or arrangement or any condition or collateral arrangement relating thereto—(a) is unfair, or (b) is harsh or unconscionable, or (c) is against the public interest. Without limiting the generality of the words 'public interest' regard shall be had in considering the question of public interest to the effect such a 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, or (d) provides or has provided a total remuneration less than a person performing the work would have received as an employee performing such work, or (e) was designed to or does avoid the provisions of an award or agreement."
Decisions
1977, February 1. The following written judgments were delivered:- BARWICK C.J. This appeal raises a fundamental question relating to the jurisdiction of the Industrial Commission of New South Wales under s. 88F of the Industrial Arbitration Act, 1940 (N.S.W.) (as amended) ("the Act"). The parties entered into a share-farming agreement as a business venture from which each, but particularly the appellant (Stevenson), expected to derive profit, as distinct from wages. In the facts of the case there is no room for any contention that Stevenson entered into the arrangement as a means thereby of securing the benefit of Barham's labour rather than as a means of employing him. As the venture was proving less profitable for Stevenson than he had hoped, he exercised his rights under the Agricultural Holdings Act, 1941 (N.S.W.). Barham then sought to have the share-farming agreement declared void under s. 88F of the Act. The Industrial Commission held that it had no jurisdiction to entertain Barham's application. On appeal to the Supreme Court, an order was made directing the Commission to hear and determine Barham's application (1975) 1 NSWLR 31 . (at p192)
2. Notwithstanding the wide language of s. 88F, I have found difficulty in becoming convinced that it was within the contemplation of the legislature that agreements for business ventures, of which the present may be a specimen, freely entered into by parties in equal bargaining positions, should be so far placed within the discretion of the Industrial Commission as to be liable to be declared void. However, I have come to…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Stevenson v Barham [1977] HCA 4
Case
[1977] HCA 4
Decision Date
CaseChat Overview and Summary
The case of *Stevenson v Barham* concerned a dispute between the appellant, Stevenson, and the respondent, Barham. The nature of the dispute is not detailed in the provided text, but it was heard and determined by the High Court of Australia, comprising Chief Justice Barwick and Justices Stephen, Mason, Jacobs, and Aickin.
The High Court was required to determine the legal issues arising from the dispute between Stevenson and Barham. The specific legal questions before the Court are not elaborated upon in the provided excerpt.
The reasoning of the High Court and the legal principles applied in reaching their decision are not detailed in the provided text. Similarly, the final orders or outcome of the case are not stated.