25 This situation is a classic one of the kind with which the section is concerned. The arguments on jurisdiction advanced for the appellant were of a kind which this Court has repeatedly rejected. As long ago as 1967, Sheldon J in Davies & Anor v General Transport Development Pty Ltd & Ors [1967] AR 371 at 373-4 after referring to 'chicanery' amongst other things, described the jurisdiction as acting with 'drastic and pervasive effect'. He went on to observe:
It certainly plays havoc with the classic principles relating to contracts. "In general, unless a contract is vitiated by duress, fraud or mistake, its terms will be enforced though unreasonable or even harsh and unconscionable . . . Moreover in the ordinary case the court will not remake a contract; unless in the special case where a contract is severable, it will not strike out, one provision as unenforceable and enforce the rest" ( Esso Petroleum v. Harper's Garage (per Lord Reid ) 1967 1 A.E.R. at p.705). But s. 88F has no such inhibitions; for it not only proscribes transactions which directly undermine awards (see (d) and (e)) or threaten general industrial standards (which, I think, is the most relevant "public interest" referred to in (c)), but it also, in (a) and (b), strikes separately at those which are "unfair" or "harsh" or "unconscionable". Presumably, this is because any transaction, leading to work in an industry, which can be so described is regarded as inimical to the purposes of the Act. In this setting, these words are probably, for practical purposes, a tautological trinity. To find in relation to a shoddy dealing concerning, say, a motor truck and a promise of carrying work, that it is "unfair" but not "harsh" or "unconscionable" suggests an approach too refined for the subject. But, insofar as there are nuances between thee words (as Lord Reid's statement suggests), s. 88F makes it clear that, for its purposes, any one will serve. As to remaking contracts, this can be done either by admitting parts and retaining the rest, or by adding new terms. Thus, destruction, dilution, renovation and patching are all weapons in the section's arsenal. Nor does it tolerate argument, on such nice questions as whether the contractual relationship has been perfected. It is sufficient that there be an "arrangement" and, for good measure, "conditions and collateral arrangements" are also included. Moreover, there is no loophole available in transactions, so dear to those allergic to awards, under which the working party is not an employee but an independent contractor. Unlike some other sections in the act, s. 88F does not transmute contractors into employees; it takes the contract as it finds it but imperils both its continuance and its prior operation. In the result, when deciding actual cases under this section, to seek assistance from authorities on the general law of contract is an arid exercise, for if ever a law was intended to stand on its own feet it is this one.
While it is hard to see how any transaction directly leading to work in an industry, and involving mutual promises, can escape a net so widely cast to attract jurisdiction, no action is warranted on a transaction not directly covered by (c), (d) or (e) unless it is unfair, or harsh or unconscionable. To determine this, requires no more than the common sense approach characteristic of the ordinary juryman and this cannot be communicated - indeed it may be clouded - by an analysis of decided cases even where there is some analogy in the facts. It is a plain matter of morals not law. On this question, I respectfully adopt what was said by Beattie J. in the Arrow Freightways Case 1965 A.R. at pp. 88-89.
That case disclosed that the section in its then form lacked bite because there was no procedure available under the Act for enforcing any order or award which avoided a transaction, and there was considerable discussion, but no concluded opinion was necessary, on how far in such a case an action lay in the ordinary courts to recover moneys paid (see 1965 A.R. at p.87 et seq.) As a result of this, Parliament acted again in 1966 and resolved the difficulty by rendering it academic. By adding sub-s. (2), it gave the Commission power, when avoiding or altering a transaction, to "make such order as to the payment of money . . . as may appear to the commission to be just in the circumstances of the case". Not only can no wider discretion be conceived, but the whole subject of right and remedy under this section was thus committed exclusively to the industrial tribunal. This discretion is certainly comprehensive enough for the Commission to ensure that moneys unfairly extracted are returned and that there is adequate a compensation for working time wasted for sub-standard, remuneration. Nor have costs, sometimes the Commission's Achilles heel, been forgotten. They can be awarded or withheld on an equally wide discretionary basis and, to render this easier, the Commission is made its own taxing officer (s.88F (3)).
This all shows that under s.88F the way of the transgressor is hard. He is under fire from a diversity of angles and the armour that clever drafting sometimes supplies is in this case far from impenetrable. The fact that this commission has been selected to enforce the section adds to his difficulties. In this regard, the Commission's general statutory duty to be "governed in its . . . decision by equity and good conscience" (s.83) may not be significant because that conception is also embodied in the section itself. But the fact that this is not a court of pleading and is not "bound to observe the rules of law governing the admissibility of evidence" (s.83) is a real advantage in this class of case, where it is better to have all the cards on the table (even if some don't matter) than to lack vital ones because of difficulties of proof. At times, too, a judicious relaxation of the rules relating to hearsay can help to unravel the truth. All in all, smart operators would do well to consider whether it may be cheaper in the long run to assume, with what equanimity they can summon, the burdens that fall on more orthodox employers.