(i) have declared or varied any contract or arrangement (whereby work is performed in an industry) which is unfair, harsh or unconscionable, or against the public interest, or which provides to a person less remuneration than an employee would have received for performing the work in question, or is designed to or does avoid the provisions of an award or industrial agreement; and
(ii) to recover any losses connected with such contract or arrangement;
The Commission is vested with a discretion under Section 88F(2) as to the making of an order for the payment of any monies in connection with any contract or arrangement declared void or varied.
25. It is to be emphasised, therefore, that the subject matter of Section 106 is directed to a contract answering the relevant description as to the performance of work which is found to be an unfair contract on the specified grounds so as to enable the Court to declare it void or to vary it and to order the payment of money for the recovery of losses connected with such avoided or varied contract. In other words, it seems clear to us, on the ground of unfairness being established, the subject matter of the section essentially relates to the power to make an order as affecting the challenged contract so as to adjust its terms to remedy the unfairness found. It need only be added, by reason of sub-s(2) of s 106, that a contract may be found as unfair at the time it was entered into or that it subsequently became unfair because of any conduct of the parties, any variation of the contract or any other reasons.
26 . Having in mind the subject matter so identified, the legal operation or form of Section 106, again adopting the analysis of Brennan CJ in Residential Tenancies Tribunal (190) CLR at p 426) in assessing the existence of inconsistency, was comprehensively reviewed by a Full Bench of the Court in Beahan v Bush Boake Allen Australia Limited (1999) 47 NSWLR 648 at p 685; (1999) 93 IR 1 at p 35 in this way:
What emerges from the above authorities, we think, is the now settled view that s 106 (as with the previous Section 88F of the 1940 Act and Section 275 of the 1991 Act) is directed to an impugned contract of employment, whether existing or terminated, as to the fairness of its express or implied terms. Such unfairness will depend upon the facts of each particular case by focusing attention on the contractual relationship between a particular employer and employee and where the unfairness might arise from the terms of the contract itself, the surrounding circumstances and/or the manner of performance or operation of the contract. The Section, we emphasise, is not concerned with re-establishing an employment relationship which has ended nor with compensating an employee for the loss of his employment contract. In other words, the Section is properly concerned with the fairness of the terms of a contract of employment in its various respects, and if relevantly found to be unfair, to provide remedial relief by avoiding or varying the terms of that contract and to order the payment of money in connection with any contract so avoided or varied as is considered just in the circumstances of the case.
27. In summary, the subject matter of Section 106 is the power of the Court in relation to a relevant contract, including as here, a contract of employment, as being one whereby work is performed in any industry. The operation of the Section on the ground of unfairness being found is to declare the subject contract void or to vary it and to make an order for the payment of money in connection with the contract so declared void or varied. Howsoever one views Section 106, either in substance or in form, it is clear that an inherent and fundamental aspect is the contract itself as to its terms and conditions, including any adjustment thereof. The payment of money in connection with the contract so declared void or varied is dependent upon such a declaration being made: see Tana v Baxter (1986) 160 CLR 527 at p 578 and BMY Australia Ltd v James (1992) 26 NSWLR 57 at pp 83, 95; [1992] 40 IR 1 at 25,38. Also, any order for the payment of money is to be one with a necessary connection with the contract: see Brown v Rezitis (127 CLR at pp 166, 170). The subject matter of Section 32 is the arrangement put in place for the staffing of the respondent to enable to it to perform its functions and to exercise its powers. The operation or form of the Section is to empower the respondent itself to engage such employees as are necessary for the purpose and to require it to determine the terms and conditions of employment of the employees so engaged. Central to Section 32, therefore, are the terms and conditions of employment, or, in other words, those matters forming the contract of employment.
28. It follows, in our view, that although the competing sections are different in substance, and in the way they operate, central to both is the contract of employment as to the terms and conditions of employment.