Research Paper no.15 2001-02
The Federal Conciliation and Arbitration Power: from Cradle to
the Grave?
Dr Andrew Frazer
Politics and Public Administration Group
28 May 2002
Vision in Hindsight
Vision in Hindsight is a Department of
the Parliamentary Library (DPL) project for the Centenary of
Federation.
The Vision in Hindsight: Parliament and the
Constitution is a collection of essays each of which tells the
story of how Parliament has fashioned and reworked the intentions
of those who crafted the Constitution. The unifying theme is the
importance of identifying Parliament's central role in the
development of the Constitution. A number of essays have been
commissioned and will be published, as IRS Research Papers, of
which this paper is the fourteenth.
Eleven of these papers were selected for inclusion in the final
volume, Parliament: The Vision in Hindsight,
G. Lindell and R. Bennett, eds, Federation Press, Sydney
2001.
A Steering Committee comprising Professor
Geoffrey Lindell (Chair), the Hon. Peter Durack, the Hon. John
Bannon and Dr John Uhr assisted DPL with the management of the
project.

Centenary of Federation
1901-2001
|
Contents
Major Issues
Introduction
Part 1: The Founders and their Vision
Nineteen Fateful Words: The
Federation Debates The Vision Established: The Conciliation and
Arbitration Act
Part 2: Attempts to Expand the Industrial
Power
First Moves
Hughes and Industrial Nationalism
The 1926 Referendum
Other Proposals for Constitutional Reform
Part 3: The Parliamentary Record: Legislating
on Industrial Disputes
Challenge: The 1920s
The Industrial Peace Act The
Bruce-Page Amendments
Reconstruction: 1947-56
The 1947 Changes
The Boilermakers' Case and the 1956 Amendments
Consequences of the Reconstructed System
Transformation: 1985-96
The Hancock Report and the Industrial
Relations Act Change in the 1990s
Part 4: Other Constitutional Powers
Public Service
Trade and Commerce
External Affairs
Corporations
Part 5: The Vision in Hindsight
Endnotes
The Commonwealth Parliament's industrial power
contained in section 51(xxxv) of the Constitution was the result of
a compromise which limited Parliament to legislating for the
settlement of industrial disputes using the methods of conciliation
and arbitration, and then only in interstate disputes. This measure
gained acceptance at the Federation Conventions because it defused
political controversy by relying on an adjudicative model of
dispute resolution which would operate subject to legislation
framed by a democratic parliament.
The constitutional framers did not have a clear
idea of how the industrial power was to be exercised, although
there was wide consensus that it would involve the resolution by an
independent tribunal of disputes which were national in concern. A
clear vision was only reached during the passage of the
Conciliation and Arbitration Act in 1903-04. It was here that the
judicial model was firmly adopted. Since the system was primarily
concerned with dispute resolution (rather than a legislative
function of industrial regulation), an approach based on
adjudicative arbitration was thought to be a natural one.
While federal arbitration was originally
intended only to apply to the resolution of major disputes in
national industries, the demands of government economic policy and
the interests of the parties soon created an impetus towards a more
extensive, regulatory approach to industrial arbitration. However
restrictions placed on the Arbitration Court by the High Court's
interpretation of the industrial power limited the scope for a move
away from an adjudicative form of arbitration.
In response, between 1911 and 1926 several
federal governments of various persuasions sought extension of the
industrial power by referendum to overcome these constitutional
limitations. The amendments also addressed the complexities caused
by industrial matters being shared between federal and State
jurisdictions. The referendum proposals aimed to supplement the
adjudicative model of arbitration, and its focus on dispute
resolution, with a wider regulatory function, including
non-arbitral methods and the direct setting of industrial standards
by legislation if necessary. All these referendum attempts failed
after facing strong opposition from State-based political forces
from a variety of quarters. Likewise, many plans to convince the
States to transfer their powers over employment matters have proved
fruitless (apart from the recent example of Victoria in 1996, which
the current Victorian Government is seeking to reverse).
In all, referenda to expand the Commonwealth's
power on industrial relations have been put forward-and failed-on
seven occasions: in 1911, 1913, 1919, 1926, 1944, 1946 and (in
relation to incomes) 1973. In view of this record, since the 1950s
extra-constitutional solutions have been preferred for achieving
change, relying on greater co-operation between Federal and State
legislatures and tribunals.
The parliamentary record of legislation to
implement the industrial power under section 51(xxxv) has been one
of frequent and contested change. The arbitration system itself has
been a matter of legislative focus in three key periods:
-
- during the 1920s attempts were made to reduce the Arbitration
Court's formalism and judicial approach in favour of 'round table'
conciliation. At this time, the political contest over the
enforcement of Federal awards and the demarcation between Federal
and State industrial systems cast into doubt the continued
existence of Federal arbitration. The arbitration system was
popularly endorsed at the 1929 election, while further legislative
attempts to move away from an adjudicative approach in 1930-31 were
unsuccessful
-
- the period after the Second World War saw greater expectations
on the federal arbitration system to implement economic planning
and regulation. Between 1947 and 1956, the inefficiency and
legalism of judicial arbitration was countered by legislation which
introduced a more informal administrative approach to arbitration,
together with the promotion of conciliation and bargaining. However
the constitutional interpretation of the industrial power placed
limits on such developments. The High Court's decision in the
Boilermaker's Case required that the arbitral and judicial
elements be separated, causing conflicts between these two arms
over the imposition of sanctions for industrial action. The O'Shea
affair in 1969 was a direct outcome of this division, and led to
further demands for a shift away from judicial institutions and an
adjudicative approach to arbitration, and
-
- most recently, changes in the 1990s have resulted in a
transformation of the arbitration system and a reduced reliance on
the Constitution's industrial power. Many of the previous
constitutional limitations were removed by the High Court's
Social Welfare Union decision in 1983. The
Hancock Report reaffirmed the value of an independent institution
while emphasising its policy and regulatory role. The report was
largely implemented in the Industrial Relations Act 1988
which adopted a more administrative approach to arbitration. Around
this time, however, came demands for reduction or abolition of the
arbitration system and its replacement by enterprise-based
bargaining. The ALP's amendments of 1992-3 brought a more
accommodative approach to arbitration, with a greater focus on
facilitation of bargaining while largely retaining the independence
of the Commission. The Liberal-National changes under the
Workplace Relations Act 1996 continue along this path. An
independent regulatory role for the Commission was retained as the
result of amendments insisted on by the Australian Democrats.
Despite its restrictions, the Commonwealth
Parliament has continued to rely extensively on the industrial
power, making limited use of other constitutional powers. The
original vision of the constitutional founders, of just
determination of disputes and their underlying grievances by an
impartial umpire, has been adapted and extended across the domain
of industrial legislation. Even when other powers have been used,
the tendency has been to adopt a system based on independent
arbitration of industrial claims. The direct regulation of key
industries during the Second World War was dismantled in the 1950s
and indirect regulation through the arbitration system has until
recently remained the norm. Adherence to the arbitral model
provided a high degree of institutional and procedural stability
but with restricted flexibility.
Only in recent years have attempts been made to
replace this approach with potentially more direct forms of
legislative regulation using the external affairs and corporations
powers. The use of such powers indicates a decline in confidence by
governments in the value of the arbitration tribunal's autonomy and
expertise.
The trend of federal legislation in industrial
relations shows an increasing tendency of governments to influence
arbitral decision-making through procedural checks and by requiring
the consideration of public policy issues such as the state of the
economy. In recent years Federal legislation and government policy
in industrial relations have become more direct and interventionist
in the pursuit of accommodative arbitration and deregulated
bargaining. These developments have led to serious concerns being
expressed over the federal arbitration tribunal's loss of
independence and authority.
The history of federal industrial legislation
contains a common thread consistent with the original vision of the
constitutional founders, although the approach and functions of the
arbitration system have been adapted in response to the changing
industrial relations environment. Attempts to engineer fundamental
change to the system have been of limited success because of the
constitutional and political restraints of a complex federal
system. It is likely, therefore, that the industrial power will
continue to form a significant basis of Commonwealth legislation in
the future, although other constitutional powers will be relied on
to overcome its limitations.
Introduction
Section 51(xxxv) gives the Federal Parliament
power to make laws with respect to:
conciliation and arbitration for the prevention
and settlement of industrial disputes extending beyond the limits
of any one State.
Throughout the history of the Commonwealth, this
power has remained one of the most contentious and litigated
clauses in the Constitution. Because of the constitutional limits
on the manner in which national legislative power can be exercised
in this area, the institutions and processes of the Federal system
of conciliation and arbitration have remained a consistent focus of
public debate. It is timely to review the legislative history of
the industrial power because the principles and processes
underlying the Federal arbitration system have been seriously
questioned in recent years. Since 1904 national industrial
relations policy has relied on implementation of the industrial
power through a permanent and independent arbitration tribunal
(from 1904 to 1956 the Commonwealth Court of Conciliation and
Arbitration; between 1956 and 1988 the Commonwealth Conciliation
and Arbitration Commission; and since 1988 the Australian
Industrial Relations Commission). Over the last decade an
institution considered one of the more enduring features of
Australia's federated history has been challenged by demands for
reduction of industrial regulation in the interest of efficiency
and competitiveness.
This Paper(1) examines key phases in
the history of implementation and reform of the Commonwealth
Parliament's industrial power, using the parliamentary debates and
papers, legislation and court cases as the main sources. The
industrial power is unusual in not giving Parliament direct power
to legislate outcomes; rather it requires use of a particular
method (conciliation and arbitration) and then only in certain
circumstances (interstate industrial disputes). Hence any
examination of this topic involves studying the complex triangular
relationship between the High Court (as interpreter of the
Constitution), the Parliament (as legislator and site of political
debate) and the Commonwealth arbitration tribunal (as the
institution responsible for exercising the constitutional power,
and as itself the site of industrial and political contest). The
federal arbitration tribunal has the unenviable task of operating
according to Parliament's legislated policy while observing the
High Court's decisions on how the Constitution limits not only the
legislation but the tribunal's own character and processes.
In exploring these relationships, four key
themes form the focus for this study:
-
- the effects which High Court decisions on section 51(xxxv) have
produced on the character and operations of the tribunal
-
- the tendency by Parliament to distance itself from direct
regulation of industrial matters, using the tribunal as an
independent expert body
-
- the tension between the tribunal's role as an independent
quasi-judicial body and its development as an instrument of policy,
and
-
- the extent to which Parliament has continued to rely on section
51(xxxv) as the source of its legislative power in industrial
relations, or has resorted to other constitutional heads of power
in order to avoid the limitations of the industrial power.
In describing the general trends in this
triangular relationship, it is useful to distinguish three types or
models of arbitration.(2) The first type, adjudicative
arbitration, is focused on dispute resolution and is judicial in
function. It tends to be passive or receptive in outlook, formal in
procedure, involving public hearings before an independent tribunal
such as a court, uses hearings and evidence, reaches decisions by
weighing the rights and interests of the parties, with outcomes
decided according to precedents and principles of justice. By
contrast, administrative arbitration is focused on regulation and
is legislative in function. It tends to be active or
interventionist in outlook, formal in procedure, involving a public
and interested body such as an inquiry, uses independent reports
and data, reaches decisions by achieving stated objectives, with
outcomes decided according to the public interest and ideals of
equity or fairness. A third type, accommodative arbitration, tends
to be conciliatory in outlook, informal in procedure, using
mediation and negotiation in private meetings, reaches decisions
based on the relative power of the parties by finding a workable
solution in the immediate circumstances, with outcomes decided
according to compromise and the bargaining positions of the
parties.
The history of the implementation of the
industrial power under the Constitution shows an oft-remarked trend
away from adjudicative arbitration and the use of judicial
processes, as the focus of the federal arbitral tribunal has moved
from dispute resolution to regulation. The impetus for this change
has come from successive governments keen to direct the outcome of
the process towards economic and industrial policy goals; but it
has also come from the industrial relations parties themselves,
particularly unions, which have tended to desire comprehensive
regulation of working conditions. At the same time, however,
reactions to the judicial model have come in the form of demands
for more accommodative arbitration with less centralised regulation
by the tribunal. The co-existence of these contrary tendencies
helps to explain the relative stability of the arbitration system
despite the high level of legislative activity throughout the
period.(3)
When the first Federation Convention assembled
in Sydney in March 1891, the colonies of Australasia had recently
experienced the most bitter and disruptive strike in their history.
The Maritime strike, which simultaneously involved the key wool and
shipping industries, shook away the complacent view that Australia
had left behind the class enmity and industrial strife of the old
world. Coming at the end of a long boom of prosperity in the late
nineteenth century, it heralded nearly a decade of industrial
struggle between the newly-formed mass unions, which campaigned for
recognition as legitimate bargaining partners in the setting of
industrial conditions, and employers demanding the unilateral right
of 'freedom of contract' to determine terms of employment on an
individual basis. The strike highlighted the economic
interdependence of the colonies: apart from the inevitable effects
of disruption in the shipping industry, stoppages by coalminers in
New South Wales made for a scarcity of coal and gas in Melbourne,
causing factories to shut down and families to eat their dinners
cold. Even as the delegates to the first Constitutional Convention
in Sydney began their work in March 1891, the next major
contest-the Queensland pastoral strike-was already escalating into
armed hostility, with military forces despatched to break up the
shearers' camps.
It was in this context that the South Australian
politician Charles Cameron Kingston proposed to the first
Convention that the Federal Parliament should be given legislative
power for 'the establishment of courts of conciliation and
arbitration, having jurisdiction throughout the commonwealth, for
the settlement of industrial disputes.'(4) Kingston had
only a few months before presented a Bill to create such courts in
his home colony. He put forward his novel ideas for encouraging
collective agreements, backed by enforceable arbitration of
industrial grievances, to the New South Wales Royal Commission on
Strikes which had been convened to find solutions for major
industrial disturbances.(5) Kingston claimed that his
proposal for Federal tribunals would not interfere with the powers
held by the colonial parliaments; but the recent strikes showed
that widespread industrial disturbances could only be addressed by
a national body. At this stage he would not have foreseen any
problems in sharing powers between Federal and State legislatures;
he had, after all, envisaged both levels of government co-operating
closely, and even advocated allowing persons to be simultaneously a
member of both State and Federal Parliament.(6)
Kingston consented to leave the matter until the
discussion on the federal judiciary, when he argued for power to
allow the federal legislature to call tribunals into existence as
the need arose. The motion was solidly opposed by conservatives
like Sir Samuel Griffith, Premier of Queensland, as an interference
with property and civil rights-matters which were decidedly the
preserve of the States. Kingston attempted to circumvent such
hostility by arguing that the terms of the legislation should be
entrusted to the good sense and discretion of the Federal
Parliament. The proposal was defeated by 25 votes to 12. During the
short debate, delegates were not entirely clear whether the draft
Constitution should allow Parliament to dictate directly the actual
terms of settlement, or whether the power would only extend to the
establishment of machinery for hearing disputes.(7)
The matter was raised again at the Adelaide
Convention in 1897, by which time things had changed radically.
There was by now an active conciliation and arbitration system in
New Zealand, one which by most accounts was operating successfully.
Kingston had succeeded in getting a compromise system enacted in
South Australia. In New South Wales the newly-formed Labor party
had initiated a long debate over the merits of various schemes for
making arbitration effective, while in Victoria wages boards had
been established by legislation in 1896 to set minimum wage rates
for the most exploitive ('sweated') trades.(8) As Quick
and Garran put it, by the time of the Adelaide Convention,
'political thought had developed and public sentiment had ripened'
in favour of state-sanctioned industrial arbitration originally
advocated by Kingston.(9)
This time it was the Victorian liberal Henry
Bournes Higgins who pursued the issue, proposing the inclusion of
'industrial disputes extending beyond the limits of any one State'
to the Federal Parliament's list of legislative powers. Like
Kingston before him, he noted that this proposal was facilitative
and did not actually require Parliament to establish a court for
the purpose; nor did he wish to prescribe the method which might be
used to resolve such disputes.(10) Then Kingston rose to
speak in support, announcing that his preferred amendment would
read 'conciliation and arbitration for the prevention and
settlement of industrial disputes.' His approach was not to limit
the federal jurisdiction to interstate disputes: a national court
would have cognisance of all the wider issues and would command
greater respect, while being able also to assist local efforts at
industrial peace. The official responsible for administering any
federal legislation could be trusted to determine whether a
particular dispute was better dealt with at the Federal or State
level. Hence he did not see the need for the federal legislative
power to be limited to only those disputes which extended beyond a
single State.(11)
While Kingston saw no problems with overlapping
jurisdictions, since Federal and State measures would complement
rather than conflict with each other, Higgins' solution was to
avoid potential inconsistency by limiting Federal jurisdiction to
interstate disputes, which were inherently beyond the domain of any
State. He subsequently admitted that he had inserted the
interstateness qualification in order to calm fears that the
Federal tribunal would intervene in purely local
disputes.(12) Another Victorian liberal, Alfred Deakin,
gave support to the idea of arbitration in principle, but thought
that Higgins' approach was no answer to the jurisdictional
difficulties, since it would never be clear precisely at what point
a dispute had passed from State to Federal control. He was joined
by Bernhard Wise of New South Wales, who thought that local bodies
were more competent to deal with industrial matters, and was wary
lest a central authority might set uniform wages across the country
irrespective of local conditions.(13) Higgins' proposal
lost by 22 votes to 12, having failed to gain support even from
some liberals who, like Deakin and Wise, sympathised with state
intervention to promote industrial conciliation.
Higgins continued to push the amendment at the
Melbourne Convention the following year. This time it was a
compromise motion that was put forward, embracing the reference to
conciliation and arbitration urged by Kingston together with the
interstateness limitation adopted by Higgins. The same arguments
were recited from both sides of the debate with the key proponents
urging that, as framers of an enduring Constitution, the delegates
would be derelict in their duty if they did not provide the Federal
Parliament with the ability to exercise such a power if it were
needed, and that the contours and limits of the power could safely
be left to the elected legislators of the new
Commonwealth.(14) The proposal's most trenchant critic
was Josiah Symons of South Australia, who was convinced that labour
disputes lay within the inherent domain of the States. He could not
see that any labour disturbance could become a Federal concern, as
it would always remain located in one or more specific States. The
inclusion of limitations on the Federal power would not clarify the
matter:
To insert this amendment as it stands seems to
me to be simply the insertion of a series of words; and stripped of
these idle words the amendment simply means that the Federal
authority is to exercise complete power over all industrial
matters. Is that the wish of this Convention? Is it the desire of
the representatives of any State that their industrial affairs
shall be placed under the control of the Federal authority?
The inclusion of the amendment would simply
generate dissension:
We shall have a sufficiently fine crop of
difficulties without overloading the Federal Parliament, and
without introducing matters of this kind, about which, undoubtedly,
passion will rage in the most intense degree.(15)
The New South Wales Premier, George Reid,
envisaged that allowing federal jurisdiction over interstate
disputes would provide a strong incentive for disputants to 'extend
the mischief and evil into another State ... in order to shift the
venue of the tribunal which will try the dispute.'(16)
Deakin thought that the power was 'not likely to be exercised by
the Federal Parliament for many years to come,' but that it should
be included to provide 'in advance for all conceivable federal
contingencies.' But, as Higgins warned in his concluding address,
the federation of labour across the country was likely to bring
ever more disputes within the national domain.(17) When
it came to a vote, Higgins' motion passed narrowly by 22 votes to
19. Compared with the defeat the previous year, the proposal gained
approval largely because it attracted the support of the Western
Australian delegation led by the Premier, John Forrest. While
Forrest was no radical, he saw a need for government to intervene
in industrial disruptions and thought that the power would be
exercised more carefully and moderately by a Federal Parliament
than by local legislatures which might be subject to sectional
interests (he no doubt had the labour movement in
mind).(18)
At the time of its insertion into the
Constitution, nearly all the major problems that would emerge in
with the operation of the industrial power had been foreseen: the
difficulties in demarcating the domains of Federal and State
authority, the right of States to control local matters; the
appropriateness of a judicial model; the occupations and industries
to be covered; the extension to State government employees; the
difficulties of enforcement; the intrusion on business and
property; the accommodation of regional differences. Many of these
are the inevitable result of maintaining the concurrent
jurisdiction of central and provincial government in a strong
federal system; others stem from the fact of state intervention in
industrial (and consequently wider economic) affairs. Some issues
derive from prescribing the methods of conciliation and arbitration
for resolving disputes, and are compounded by the interpretation
that this requires an adversarial court-like system which does not
however exercise judicial power. Some of the more intractable
problems emanating from the industrial power have arisen from
friction between these elements as the system has developed, such
as the use of an autonomous tribunal to frame and implement
national economic policy.
There never was a single vision of the
industrial power among the framers of the Constitution. The measure
was unusually hard-fought: as Deakin later recalled, no other
proposal had been debated three times.(19) Eventually a
majority of votes was gained on the basis of an independent
judicial tribunal with power to settle disputes which affected the
whole nation. To the extent that the proposal gained widespread
acceptance, it was due to three main factors: the built-in
limitations introduced by Higgins' and Kingston's compromise
(especially interstateness); the assurance that any scheme would be
framed by a legislature subject to the popular will (moderated by
an upper house with equal representation by the States); and the
confidence reposed in a judicial tribunal which would most likely
be headed by a judge. The industrial power gained acceptance
because of its restrictions and qualifications, not despite
them.
Demands began early to implement a national
system of industrial conciliation and arbitration: at Kingston's
insistence the Protectionist party promised such legislation at the
first Federal election, although the party leader, Edmund Barton,
expected that the occasion for its use would seldom
arise.(20) A Bill was foreshadowed, but like many other
important measures it was not reached during the first session. A
revised version was prepared by Kingston, but he resigned only
weeks before he was due to present it to Parliament, ostensibly
because the Cabinet refused to support his proposal to have the
Bill extend to crews on foreign ships operating on the Australian
coastal trade (Barton argued, probably correctly, that such a
measure would be unconstitutional).(21) So it fell to
Alfred Deakin (Protectionist, Ballaarat, Vic.) to introduce the
legislation in July 1903. He stressed that the Bill was 'federal in
all its characteristics,' not only because it was confined to
interstate disputes, but because it allowed the Commonwealth Court
of Conciliation and Arbitration to co-operate with similar State
bodies by referring matters to them. State industrial tribunals
could also refer specific matters to the Commonwealth Arbitration
Court for determination.(22)
Like earlier measures adopted in the States, the
legislation was designed first of all to promote the making of
enforceable collective agreements. If disputant parties failed to
settle their differences in this way the state, in the form of an
independent tribunal, could be called to assist, firstly to
encourage amicable agreement by conciliation, and if this were not
possible, by hearing both sides and making an equitable and
enforceable award. In return for this legal avenue of redress, and
to protect the public interest, strikes and lockouts would be
prohibited. Deakin was aware that the scheme involved a
transformation in industrial affairs, one which the legislature
itself could not hope to produce and only a separate tribunal could
accomplish:
It must be at once clear that however much
Parliament might desire to take into its own hands the immediate
regulation of industrial affairs, and to provide for the
suppression of their vendettas, it would be incompetent to do so,
notwithstanding all its authority, by reason of the immense
complexity of the task cast upon it... . We are touching some of
the springs upon which the working of society depends. We are
seeking to control them without interfering with what may be
broadly described as legitimate business methods. We realize
nowadays that society is a living organism in every sense of the
term... . The rigid provisions of legislation, therefore, must
necessarily be ineffective in dealing with a living society. The
only way to cope with the ever-changing, ever developing needs and
forms of unfoldment in society and its industries is to create some
authority of independent minds, able to follow its workings so far
as their knowledge and ability permit, and to assist its progress
by adapting forces to foster growth, not once, but from time to
time.(23)
The great significance of this approach was that
it would extend the reign of law and justice into the industrial
arena by an impartial method for settling disputes. Parliament was
not to intervene by setting the terms of the Court's inquiries. The
Court was given no other remit than to determine disputes according
to equity, good conscience and the merits of the case; although in
time it was expected that precedents would develop to guide the
results of future cases: 'No attempt is made to enforce any theory
or doctrine. The court is asked to do justice, and no more than
justice.'(24) Hence the adoption of the method of
adjudicative arbitration was a rejection of direct and
comprehensive regulation by the legislature.
The Bill was destined to falter over coverage of
State railway employees. The Irvine Government in Victoria had
recently insisted that its railway workers should disaffiliate with
the local Trades Hall; when the workers went on strike in protest,
the Government passed legislation making such strikes illegal. The
Australian Labor Party (ALP) members thus insisted that employees
of State Government railways should have access to the federal
arbitration system; Deakin strongly demurred, arguing that such a
step was not only unconstitutional but violated the federal balance
by overriding the States' powers of self-government. When the
amendment passed in the House, the Government abandoned the
Bill.(25)
At the election in 1903 all parties supported
Federal arbitration in some measure. The election resulted in a
House split between the three parties. Deakin's liberals retained
office, and the Parliament assembled in the new year with the Bill
as one of the Government's first priorities. When an ALP amendment
to extend coverage to all government employees succeeded against
Deakin's entreaties, he treated the vote as a confidence motion and
the Protectionist ministry resigned to great
surprise.(26) They were replaced by the short-lived
Watson Labor Government which resigned after four months when it
failed to gain sufficient support to continue passage of the Bill.
Both the opposition parties wanted to restrict the Arbitration
Court's ability to order that preference in employment be given to
unionists; the Labor Government insisted on leaving the Court with
a large discretion over when to award it.(27) Eventually
a coalition ministry led by George Reid was formed and succeeded in
putting the Bill through all stages by December 1904 despite a
stand-off between the Houses over the preference issue: the
Labor-controlled Senate eventually backed down and agreed to
greater restrictions.(28)
The legislation which finally passed was the
product of a range of political opinion. Underpinning the debate
was an acceptance that the Bill had gained popular support at the
election. Although there were a few strident critics of the very
notion of compulsory arbitration,(29) they were in the
distinct minority and there was widespread (if sometimes reluctant)
agreement on most of the general principles. Reid, for example, had
reservations at the incursions which the Bill made on individual
rights and liberties, but justified them as necessary to prevent
greater harm.(30) Others were concerned that the
legislation did not define which disputes were interstate but
relied on the vague words of the Constitution and the Arbitration
Court's interpretation, thus allowing uncertainty and potential
erosion of the States' domain.(31) Much of the voting in
Parliament was tactical, based on political manoeuvre and
point-scoring rather than philosophical conviction. The main points
of disagreement concerned the Court's power to give preference to
unionists, and exclusion of certain occupations from the Act's
coverage. The preference issue in particular was a litmus test of
the principles underlying the legislation: while the Labor party
supported preference generally as a means of preventing anti-union
victimisation and encouraging unions to resort to arbitration, Reid
opposed it as an unwarranted extension of privilege but was willing
to accept it in some measure if objections to preference could be
heard in particular cases.(32)
The federal arbitration system was slow to
develop, with only six awards being made in its first five years of
operation. The Act required the President of the Commonwealth Court
of Conciliation and Arbitration to be a judge of the High Court,
and it was anticipated that the position would be a part-time one
which would only be activated when pressing disputes arose. The
first President, from 1905 to 1907, was Justice O'Connor, who
played little role in the development of federal arbitration. It
was Justice Higgins who, as second President from 1907 to 1920,
gave real substance to the jurisdiction. Higgins occupied the
unusual position of constitutional founder, legislative drafter
(briefly, as Attorney-General in the Watson Labor Government), and
eventually the judicial administrator of the federal industrial
jurisdiction. It was his vision of an independently-minded judicial
tribunal, deciding disputes using ordinary legal procedures but
according to general principles of fairness and equity, which so
heavily influenced the operations of the Court over its first two
decades.
At first, the system resembled the aims of the
founders: it was mainly unions in the key interstate maritime,
waterside and shearing industries which approached the Court. Other
unions registered under the Commonwealth Act but remained largely
State-based organisations pursuing their demands in the State
systems. The new Act soon faced a concerted campaign of resistance
by employers, who organised in order to bring a succession of
constitutional challenges before the High Court and met with a
strong measure of success.(33) Applications for Federal
awards increased once the High Court began taking an expansive
attitude to the Federal arbitration jurisdiction between 1913 and
1926.
While the federation conventions had established
the extent of the federal industrial power as extending only to
truly national disputes, attempts to expand this domain began
almost as soon as the new Commonwealth Parliament began to operate.
Once a policy of uniform tariff protection for local manufacturing
had been adopted, with such protection linked to favourable wages
and conditions for Australian workers, the scope of legitimate
industrial regulation was considerably widened. In the first
private member's motion in the House of Representatives, H. B.
Higgins called on the Commonwealth Parliament to acquire, with the
consent of the States, 'full power to make laws for Australia as to
wages and hours and conditions of labour'. The motion gained
widespread support from Labor and liberal members; the recent
introduction of a Federal tariff was enough to change the minds of
even some former federation delegates, who now accepted that
employment conditions and wages were matters of national
significance. While Higgins' motion was adopted, no State
government was found sufficiently willing to divest itself of its
plenary industrial power and the matter was not
pursued.(34)
The Deakin Protectionist Government, with Labor
party support, introduced the policy of New Protection, which
rested on the linkage of beneficial wages and conditions to
protective tariffs and immigration restriction. A key mechanism of
this policy was the Excise Tariff (Agricultural Machinery) Act
1906, under which local manufacturers could gain exemption
from excise duty if the wages they paid were in accordance with a
Federal award, or were declared 'fair and reasonable' by resolution
of both Houses of Parliament or by decision of the President of the
Commonwealth Court of Conciliation and Arbitration. It was under
this Act that Justice Higgins, now President of the Court,
determined in November 1907 the basis for a living wage in what
became known as the Harvester judgment.(35) Yet, only
seven months later, the Act under which Higgins made his landmark
decision was deemed constitutionally invalid by the High Court
because the legislation was essentially concerned with the
regulation of employment conditions, a power not held by the
Commonwealth Parliament and not capable of being supported by the
excise power.(36) Other key aspects of the New
Protection policy-the registration of the 'union label' as a trade
mark certifying that goods were made by union members working under
beneficial conditions, and the outlawing of (principally
foreign-owned) monopolies-were also declared unconstitutional by
the High Court.(37) While the Harvester case
itself was closely followed by members of Parliament, the
decision's wider significance was not appreciated until Higgins
continued to rely on the needs-based approach to set basic wage
rates in subsequent cases under the Arbitration
Act.(38)
In response to these setbacks, Deakin privately
suggested a constitutional amendment which would allow for uniform
Commonwealth regulation of employment in industries which were
protected by customs duties. This system would be operated by the
Inter-State Commission, a body of mixed judicial and administrative
powers envisaged under section 101 of the Constitution; though
Deakin's plan would require a constitutional amendment allowing the
Federal Parliament to devolve quasi-legislative responsibility for
uniform industrial conditions onto the Commission.(39) A
modified version of this idea was floated at the 1909 Premiers'
Conference, where the States agreed to introduce legislation
referring State powers on industrial conditions to the
Commonwealth, using the Inter-State Commission as a national
standard-setting body.(40) Like many similar plans, it
was never carried out.
While the policy of liberals like Deakin
gravitated towards expansion of Federal powers over industrial
conditions, an enhanced Federal industrial power had been an early
aspect of Labor's policy: the party's national conference adopted
'uniform industrial legislation' as a plank in 1902, although the
item was rejected by the NSW party at its annual
conference.(41) By 1908 the Labor party at the national
level was confirmed in its centralist approach to industrial
regulation and convinced that its policies could only be carried
out by constitutional change, since the High Court had shown a
restrictive attitude to the powers of the Commonwealth Arbitration
Court in a succession of cases. The most contentious of these was
Whybrow's case, where a majority of the High
Court engaged in a narrow reading of the meaning of 'arbitration'
in section 51(xxxv), thus finding that the Arbitration Court was
constitutionally debarred from declaring any of its awards as a
common rule for a whole industry. This meant that unions (and
employers) who wanted award conditions to apply uniformly across an
industry had to ensure that every employer in an industry became a
party to the dispute by being served with a separate notice of
demand and log of claims. This requirement extended the delay and
cost of proceedings in the Federal jurisdiction immeasurably. The
conviction developed in Labor circles that a conservative judiciary
was determined to block the popular will, a view amplified by
Higgins' exasperated statement from the Arbitration Court bench
that, as a result of constitutional interpretations, 'the approach
to the Court is through a veritable Serbonian bog of
technicalities; and the bog is extending.'(42)
Such a view was the basis of changes which were
introduced by Labor's Attorney-General, the Hon. W. M. Hughes, as
soon as the party gained power federally in 1910. To overcome some
of the restrictive judicial interpretations, Hughes introduced
several amendments to the Conciliation and Arbitration Act,
including one which expanded the definition of 'industrial dispute'
to include 'any threatened impending or probable
dispute'.(43) By such measures Hughes hoped to allow for
greater use of the prevention power in section 51(xxxv) and to
reduce legal formality. In the long-term, though, Hughes was
convinced that the party's platform could only be achieved by
taking control of social legislation out of the hands of the
courts.(44) The industrial power would be changed to
include 'the wages and conditions of labour and employment in any
trade, industry or calling' as well as general power for 'the
prevention and settlement of industrial disputes.'(45)
This expansion of power would avoid most of the legal restrictions
of the existing provision, while additionally allowing for the
direct statutory regulation of employment conditions if
necessary.
Against Hughes and his national vision, the
Opposition argued that the referendum proposals disturbed the
delicate balance of federalism by erasing the exclusive legislative
domain of the States and abolishing the limitations on central
power which were 'a fundamental and organic part of the Federal
scheme.'(46) In Deakin's view, Labor's solution was out
of all proportion to the legal deficiencies in section 51(xxxv)
that had been revealed by the High Court:
Wages, hour, terms and conditions are alike to
be brought under this Parliament. Every trifling industry in every
part of the continent will have the right, and may be compelled, to
appeal to this House for legislation to meet its ends. The whole of
the industrial powers of the States are to be transferred without
limitation to the Commonwealth. The minutiae of every occupation
throughout Australia will be the concern of the National
Legislature.(47)
Deakin was joined in opposition to the
amendments by members of the New South Wales Labor Government, led
by Premier W. A. Holman who countered that the constitutional
amendments would inevitably lead to the accretion of Federal power
because inconsistent State legislation would gradually become
invalidated through the operation of section 109 of the
Constitution. Even if this were not the case, State governments
would scarcely bother to legislate if they could never be sure that
the powers they now shared with the Federal Parliament in Melbourne
were not about to be overruled. He proposed instead that the States
should voluntarily cede their powers to the
Commonwealth.(48)
The referenda were lost, though by a narrow
margin. Undeterred, Hughes immediately began planning another
attempt at constitutional reform. In 1912 he presented five
separate amendments, including a more detailed proposal on
industrial matters which contemplated giving the Federal Parliament
power to make laws with respect to:
Labour, employment, and unemployment,
including-
(a) the terms and conditions of labour and
employment in any trade, industry or calling
(b) the rights and obligations of employers and
employees
(c) strikes and lock-outs
(d) the maintenance of industrial peace, and
(e) the settlement of industrial
disputes.(49)
While extensive, the powers sought were,
according to Hughes, no greater than those presented at the earlier
referendum. In Parliament he argued that a 'broad national power'
was needed to preserve industrial peace; the existing words of the
Constitution had proved wholly inadequate in giving the Arbitration
Court scope to prevent disputes from escalating.(50)
What was being sought, was no more than had been intended by the
original framers of the Constitution and the Arbitration
Act.(51) The Government continued to deny that the
proposed power would be used to legislate directly on employment
conditions; the power would naturally be delegated to the
Arbitration Court.(52) One of the founders of the modern
union movement, W. G. Spence (Labor, Darling, NSW), showed his
frustration at the maze of legal decisions confronting the
Arbitration Court when he said that:
it is because of interpretations, different from
those which we laymen had been led by the many lawyers in the House
to believe would be given, that we are now asking for amendments of
the Constitution. We are asking to have restored to us that which
was supposed to be given to the Commonwealth Parliament by the
framers of the Constitution ... I admit that, in some respects, we
are going further, and asking for more than the original framers of
the Constitution provided. We are led to do so because it has been
found that the Constitution really does not carry out what was the
aim of its framers.(53)
All the proposals again failed to gain popular
approval, though with a smaller minority than two years earlier:
the industrial matters question failed by just 1.3 per cent of the
total formal vote.
The referendum debates reveal a change in
Hughes' thinking about the appropriate form of federal legislative
regulation of labour disputes. Hughes had long taken the view that
the Federal Parliament's power under section 51(xxxv) to prevent
industrial disputes was ineffective, and could not support
legislation designed to promote industrial peace by collective
bargaining and joint regulation-an approach which his
union-organising days had convinced him was the only effective
method of preventing strikes. The amendments sponsored by Hughes in
1910 had included a provision which allowed the Arbitration Court
to appoint a board of reference-typically, a panel of experts, not
unlike a wages board, with responsibility for determining local or
specialist issues arising out the application of an award. But in
1913 the High Court held, as a matter of statutory interpretation,
that such a board could not be assigned general powers but could
only exercise the functions specifically enumerated in an award.
This decision was taken by Hughes as proof that the Federal system
was incapable of accommodating a less formal approach to the
settlement of disputes, such as conciliation
committees.(54) While the decision did not go that far,
it is true that at the time the High Court saw arbitration as
inescapably adversarial in nature and would never have contemplated
allowing binding decisions to be made in a round-table fashion
where the parties and the issues were not completely clear-cut.
The Labor party refused to let go of the
constitutional reforms, even when out of power. In 1914 a
Labor-controlled Senate passed several referendum Bills along the
lines of the 1913 proposals, including industrial powers, but they
were not passed by the House and the Governor-General declined to
submit them to the people.(55) Labor regained power
later that year after a double dissolution election fought over
attempts to wind back the Act. The outbreak of war prompted the
Labor Government to renew its campaign for expanded Commonwealth
constitutional powers. Hughes admitted that federal control over
industrial matters could be enlarged by using the defence power,
but argued that explicit constitutional provision was far
preferable to a kind of 'military despotism' imposed through the
uncertain interpretation of the defence power, which would elevate
the High Court 'to the position of a supreme legislative chamber.'
The Opposition demurred, arguing that the war situation was too
grave for a potentially divisive referendum. They finally withdrew
it from the House when the Speaker refused to accept their
amendment on the grounds that it raised the more general issue of
the Government's handling of the war.(56) After a
meeting with the Premiers it was agreed that instead the States
would refer a range of powers to the Commonwealth for the duration
of the war, so the referendum process was suspended. In the event
only New South Wales passed the necessary
legislation.(57) The issue was temporarily circumvented
by the High Court's decision upholding the expanded use of the
defence power for control over domestic matters during
wartime,(58) while the split within the Labor party over
the conscription issue prevented a further referendum on Federal
powers.
The conclusion of the war was greeted with a
wave of industrial unrest prompted by high inflation. For Hughes,
who now led the non-Labor Nationalist Government, post-war
reconstruction could only be achieved with uniform national powers
over industrial relations. In September 1919 Hughes gained some
acceptance by the Premiers for a referral of State powers to the
Commonwealth for a period of three years pending further
constitutional amendments. The proposals for extension of the
Commonwealth's powers in relation to industrial matters, as well as
trade, corporations, trusts and monopolies, were again put to the
people, though now only on an urgent and temporary basis until a
mooted convention on the Constitution had put forward
recommendations on the whole issue of the division of legislative
powers.(59) Again the proposals were rejected by the
electorate, so the voluntary referral of State industrial powers
never took place.
While he remained in office, Hughes continued to
seek an expansion of Federal powers, putting forward his plan for a
wide-ranging review of the Constitution, and bemoaning that the
national Parliament still could not address the conflict of labour
and capital-'the great question of the time'-by making a uniform
national law.(60) In the meantime, as a compromise, he
presented a further proposal to the Premiers' Conference in 1921.
Now his idea was for the States to refer their industrial powers to
the Commonwealth, which would legislate for a federal arbitration
system with jurisdiction over 'Federal industries' (primarily the
waterfront and shipping), together with the basic wage and standard
hours. The Commonwealth would also establish an Industrial Court of
Appeal to rationalise competing awards in different States; but all
other industries and matters would be reserved to the exclusive
jurisdiction of State industrial tribunals. The Premiers' initial
approval soon turned to hostility as it was realised that the
proposal would result in the gradual accretion of federal power, as
ever more industries became national in character, while uniform
industrial conditions would be imposed across the country through
the appeal process. (61)Doubtless this was no
mistake.
By this time, though, many of the constitutional
obstacles to the expansion of the federal domain in industrial
relations had been overcome to some extent by a series of
constitutional cases which recognised evolving industrial relations
practices. The original judges of the High Court, who had also
contributed to the drafting of the Constitution, took the view that
the federal industrial power was inherently limited by the proper
sphere of activity of the state, by the idea of industrial
arbitration as a quasi-judicial method of settling discrete
disputes between particular identified parties, and by the
inviolable domain of the former constituent Colonies, now States.
According to this view, section 51(xxxv) of the Commonwealth
Constitution allowed 'a new power conferred upon a legislature of
limited jurisdiction, which as a general rule has no authority to
interfere with the domestic trade or industry of a
State.'(62)
This approach to the Constitution was
fundamentally changed by new appointees to the Court, beginning
with Higgins and Isaacs in 1906, but gaining dominance with the
elevation of Gavan Duffy, Powers and Rich in 1913. These new judges
were much more receptive to industrial arbitration as a legitimate
area of state intervention, and more willing to allow the expansion
of the Commonwealth arbitration system by a reading of the
Constitution which was not restricted by an idea that federal power
was inherently limited by the pre-eminent rights of the
States.(63) By 1914 the new judges on the High Court had
succeeded in replacing the original implied limitations approach
with an expanded 'realist' one. Their approach allowed the creation
of 'paper disputes' by unions serving the same log of demands on
employers in different States.(64) While such a practice
has often been criticised as artificial, the alternative would have
been to require the parties to demonstrate their seriousness by
protracted strikes or lock-outs. The Federal jurisdiction was
enlarged in this way because it rested on an independent tribunal:
the judges made it clear that the ultimate check of the expansion
of Federal power reposed in the discretion and good judgment of the
Arbitration Court judges. It is doubtful that such tolerance and
realism would have been accorded to the direct exercise of
legislative power by the Parliament.
From the early 1920s the dual system of Federal
and State industrial tribunals had come to be perceived as an
increasing problem as the expansion of the Federal system resulted
in many workplaces being regulated by overlapping and conflicting
awards. The problem was mooted by Nationalist Prime Minister, the
Right Hon. Stanley Melbourne Bruce, when announcing his
Government's program soon after he took over power from Hughes. To
Bruce the problem was one of national efficiency. He hoped
initially that some agreement with the Premiers might be able to
demarcate industries as objects of regulation by either Federal or
State authorities.(65) While not by nature a centralist,
it soon seemed to Bruce that the neatest and most efficient
solution was one which involved either the exercise of joint
Federal and State powers by a composite tribunal, or else giving
the Federal body supreme authority. It soon became apparent that
the use of joint power was impracticable: the States had
consistently refused to cede their industrial powers, and any
attempt to divide industries into State and Federal jurisdictions
was impossible.(66)
A proposal to amend the Constitution was
outlined by the Attorney-General, John Latham, to a joint meeting
of Nationalist and Country parties in May 1926, apparently without
prior consultation.(67) It was introduced into the House
by Bruce three days later. The Government proposal involved
removing the requirement for an interstate dispute from section
51(xxxv) and adding two additional clauses giving Parliament the
power to make laws with respect to:
(xl) Establishing authorities with such powers
as the Parliament confers on them with respect to the regulation
and determination of terms and conditions of industrial employment
and of rights and duties of employers and employees with respect to
industrial matters and things;
(xli) Investing State authorities with any
powers which the Parliament, by virtue of paragraph (xxxv) or
paragraph (xl) of this section, has vested or has power to vest in
any authority established by the Commonwealth.(68)
The need for expansion of federal power was
justified as the inevitable result of growth in national
industries. The amendment was designed to overcome difficulties
with the existing clause which had been revealed by High Court
decisions, and to recognise the expanded meaning which that court
had given it. Latham noted that the amendment would allow for other
forms of industrial regulation to be established, such as wages
boards and conciliation committees.(69) Speaking in
Parliament, Bruce and Latham stressed that unlike previous
referendum proposals, this one did not involve giving the
legislature direct power to make laws on industrial matters, but
required that the power be exercised by authorities independent of
Parliament.(70) At the same time the Government proposed
a related constitutional amendment to give the Federal Parliament
legislative power over essential services, a change prompted by
recent strikes in the coal and transport industries.
The proposal met with a mostly hostile
reception. Notably, the parliamentary debate made little reference
to the intentions of the Constitution's founders: rather,
discussion was focused squarely on making the arbitration system
more efficient and in tune with modern industrial conditions.
Federal ALP politicians initially supported the proposal as being
in the Labor party's tradition of seeking united national power
over industrial relations, but thought that the referendum should
be deferred until it could be considered in the review of the
Constitution which had already been mooted by Bruce. The Leader of
the Opposition, Matthew Charlton, favoured giving full and direct
legislative power over industrial matters to the Federal
Parliament, as earlier Labor-sponsored referendum proposals had
envisaged. Many State-based unions and Labor politicians were wary
of the amendment's ability to undermine the advances gained through
State legislation and industrial awards. With bitter division
emerging across the labour movement, the Federal Parliamentary
Labor party eventually decided not to take a fixed position on the
referendum.(71) Added to this, the proposal directly
conflicted with State-rights sentiments, thereby provoking
opposition from conservatives. With such a division of opinion, and
with several key groups actively campaigning against amendment, it
is not surprising that the proposal failed to win popular support
at the referendum in September.
Undeterred by the result, Bruce included the
industrial power among the wide-ranging terms of reference given to
the Royal Commission on the Constitution which was appointed in
August 1927. At the time the New States movement was prominent, and
the Commission was presented with several proposals for a
fundamental changes to the federal political system, including a
unitarist model. However a majority of the seven-member Commission
opted for retention of federalism, and recommended that the States
should be given exclusive power to legislate with respect to
industrial matters. The Commission saw industrial legislation as
inherently local rather than national in nature, being a matter of
general public order while closely allied to such
employment-related local issues as health, commerce, public works
and development. The Commission further recommended that the
Commonwealth's existing power should be deleted, as experience
showed not only that conciliation and arbitration should not be
divorced from the regulation of industrial matters generally, but
that it was extremely difficult to isolate genuine disputes from
attempts to secure awards.(72) By contrast, the minority
report led by the two ALP members recommended that industrial
matters be reserved to the Federal Parliament, in line with Labor's
preference for the Commonwealth having plenary legislative powers
over maters of national significance.(73) By the time
the Report was presented in late 1929, the Bruce-Page Government
had already been defeated over its proposals to abolish the Federal
arbitration system along lines similar to those recommended by the
majority of the Committee. This episode is discussed in Part 3 of
the paper.
The Australian people have been asked to change
the Constitution on 19 occasions; seven of these times have
included requests to increase the Federal power in relation to
industrial matters, employment or incomes. The table below
summarises these proposals. Voters were asked specific questions
dealing with industrial or employment issues in four referendums;
at other times, industrial powers were included with a number of
other proposals in the same question (although the industrial power
was a major issue in all except the 1944 vote). On three
occasions-in 1913, 1919 and 1946-the proposals came close to
approval. The closest any of the referendums came to success was in
1946 when a majority of formal votes favoured expansion of the
federal power, although the proposal did not obtain approval in a
majority of States. Of the States, only Western Australia has
consistently voted in favour of expansion of Federal power, while
Queensland also approved federal expansion in three of the early
referendums up to 1926.
Commonwealth Industrial Powers Referendums
Year
|
Proposal
|
Total % in favour
|
States in favour
|
1911
|
Labour & Employment (multi-power qn)
|
39.42
|
WA
|
1913
|
Industrial Matters (of 5 qns)
|
49.33
|
Qld, SA, WA
|
1919
|
Industrial Matters (multi-power qn)
|
49.65
|
Vic, Qld, WA
|
1926
|
Industry & Commerce (of 2 qns)
|
43.50
|
NSW, Qld
|
1944
|
Post-war Reconstruction (multi-power qn)
|
45.99
|
SA, WA
|
1946
|
Industrial Employment (of 3 qns)
|
50.30
|
NSW, Vic, WA
|
1973
|
Incomes (of 2 qns)
|
34.42
|
Nil
|
Source: House of Representatives Standing
Committee on Legal and Constitutional Affairs, Constitutional
Change: Select Sources on Constitutional Change in Australia
1901-1997, Canberra, 1997, pp. 61-97.
After the failure of 1926-29, the last attempts
to change the industrial power itself arose in the context of the
Curtin and Chifley Labor Governments' wartime legislation, when
special Commonwealth agencies had amassed control over most aspects
of employment. Although the Federal Government assumed greatly
enlarged powers of industrial regulation under the defence power,
it was still thought desirable for the Commonwealth's
responsibilities in the area to be regularised. In order to avoid a
referendum during wartime, a draft Bill was presented to the
Premiers in 1942 providing for the referral of State legislative
powers to the Federal Parliament. As with previous schemes, this
proposal failed to gain support from the State
Governments.(74) Somewhat different in intent was the
1944 referendum on Commonwealth powers. Designed to assist post-war
reconstruction, it included 'employment and unemployment' in its 14
specified matters which were proposed for transferral to the
Federal Parliament for five years. It failed, with only 45 per cent
of voters approving the measure. Two years later a proposal to
alter section 51(xxxv) by giving the Commonwealth power to make
laws on 'terms and conditions of employment in industry' was again
put forward-and failed by a similar margin.(75)
The Joint Committee on Constitutional Review,
appointed by the Menzies Government in 1956, recommended that the
Federal Parliament's existing legislative power be supplemented by
the power to make laws with respect to 'terms and conditions of
industrial employment.' In the view of the Committee it was time to
end the inconsistencies which arose from leaving primary
responsibility for regulation of industrial relations to the
States. Noting that the Federal system now covered as many workers
as the State systems (around 44 per cent of the national
workforce), and that the economic role of the Commonwealth had
expanded rapidly since the war, the Committee considered it would
be a retrograde and impracticable step to abolish the federal
system and leave industrial law to the States, as the 1929 Royal
Commission on the Constitution had proposed.(76) The
existing constitutional provision, which effectively required a
dispute (real or manufactured) to be in existence before the
Federal arbitration tribunal could exercise jurisdiction to resolve
it, was considered to provoke rather than ameliorate industrial
disputation. At the same time, the Committee was not convinced that
conciliation and arbitration were the most effective processes of
industrial regulation, and pointed to the success of wages boards
and mediated collective bargaining.
The Committee's report was permeated by the view
that government's role now lay, not in the resolution of disputes
which threatened to harm the public interest, but in the integrated
and efficient management of factors affecting economic stability.
As an aspect of economic policy, the regulation of wages and
conditions could no longer be left to the unco-ordinated
ministrations of extra-governmental bodies; ones, moreover,
influenced by the arguments of 'interested parties'. This shift in
attitude broke with a tradition stretching back to the Federation
debates-that state intervention was most safely left in the hands
of an independent judicial body deciding according to principles of
justice:
The regulation of industrial relations is a
matter of government which affects the welfare of the entire
Australian community and the Committee's view is that it is
inconsistent with responsible democratic government that
independent tribunals without responsibility either to parliament
or the people should be accorded, by the Constitution, the role of
supreme legislators. Whilst the Committee believes that independent
statutory bodies should continue to determine terms and conditions
of employment in Australian industry, it considers that the
Parliament of the Commonwealth, which is elected by the people to
whom it is responsible, and not the tribunals themselves, should be
the final repository of industrial responsibility. The
answerability of governments to the electors is a safeguard against
unwise action in the industrial field.(77)
A further consideration was that, unless overall
power over industrial conditions was vested in the Federal realm,
Australia could not discharge its international treaty obligations
to implement International Labour Organisation (ILO) Conventions
which it had signed. Several reasons were given for increasing
compliance with international labour standards: it would 'enhance
Australia's reputation as a socially advanced country' and increase
the country's influence in the international arena. Ratification by
Australia would promote wider acceptance of the labour standards by
other countries and would also open up new markets for Australian
trade.(78) The Committee also foresaw that increasing
technological innovation, resulting in automation and demand for
new skills, would produce important industrial issues which needed
to be resolved on a national level.
The Committee did not, however, propose direct
regulation by Parliament: it contemplated that Federal legislation
would give governmental agencies the power to determine general
principles which would then be applied by industrial tribunals. The
Federal Parliament would acquire legislative competence over all
aspects of industrial regulation, including factories,
apprenticeships and industrial safety. Existing State tribunals
would also be delegated power to set local
conditions.(79) These recommendations would have removed
most of the constitutional impediments to expansion of the Federal
legislative domain, but would still not have avoided the legal
difficulties which have surrounded the interpretation of the word
'industrial' in High Court decisions since the 1920s, and which
were reaffirmed in the Professional Engineers case shortly
after the Joint Committee had concluded its
deliberations.(80)
Recognising the difficulty of expanding the
Commonwealth's legislative power by constitutional alteration,
opinion since the 1959 Review has tended to favour other paths:
either the reference of State powers to the Commonwealth under
section 51(xxxvii) of the Constitution, or more informal solutions
involving greater co-operation between the State and Federal
tribunal systems. During the 1970s, discussion focused on the
mutual interchange of powers between the Commonwealth and the
States, although wider constitutional problems associated with this
approach prevented any specific proposals being put to
referendum.(81) Between 1979 and 1982 a review by
Commonwealth and State labour ministers examined ways of making the
various systems more complementary without resorting to
constitutional alteration. The 1982 Premiers' Conference
unanimously agreed to a scheme of complementary legislation
designed to promote co-operation between tribunals through such
means as joint hearings and the referral of federal matters to
State bodies.(82) A precedent of sorts for this approach
had already been set after a long-running jurisdictional dispute in
the New South Wales oil refining industry was addressed by
complementary legislation in 1980 which conferred exclusive
jurisdiction on the State tribunal while allowing a member of the
federal body to participate in hearings.(83) In 1983 the
High Court confirmed the validity of this type of approach when it
held that the Coal Industry Tribunal could exercise powers derived
from complementary Federal and State
legislation.(84)
Such a co-operative approach, involving joint
appointments and combined sittings by State and Federal tribunals,
was the short-term solution favoured by the Committee of Review
into Australian Industrial Relations Law and Systems (the Hancock
Committee), which is discussed in more detail in Part 3 of this
paper (see page 16). This approach was implemented in the
Industrial Relations Act 1988(85) with
limited success. The Hancock Report's long-term approach favoured a
united effort to create a national system, either through a
combination of Federal and State legislative powers or by the
States referring their powers to the Commonwealth.(86)
The Committee did not recommend that the Commonwealth Parliament
draw on a wider range of constitutional heads of power: expansion
of federal power in this way would be divisive and most likely be
opposed by pro-State interests; its constitutional effectiveness
was uncertain, and there would be gaps in coverage as not all
matters and relationships would be covered by at least one of the
alternative powers, which it described as
'exotic.'(87)
After decades of fruitless discussion, a
reference of State powers was finally accomplished in 1996 when the
Victorian Parliament made an extensive donation of its legislative
powers on industrial relations to the Commonwealth. This allowed
the Federal Commission to determine minimum terms and conditions
for most employees in the State, as well as settling purely
intrastate disputes.(88)
Proposals for changing the Constitution itself
were raised at the Adelaide session of the Australian
Constitutional Convention in 1983, where a sub-committee was
established to consider whether 'a more appropriate distribution of
responsibility' could be achieved between the Commonwealth and the
States.(89) The matter was further noted at the
subsequent Brisbane session of the Convention in 1985. Later in the
decade, the Constitutional Commission returned to the option of
expanding the Commonwealth's legislative power by referendum: its
advisory committee on the distribution of powers recommended that
the industrial power be widened to include 'industrial relations
and employment matters' but that it remain concurrent with the
States.(90) The final report of the Commission in 1988
endorsed the use of mechanisms for closer Federal-State
co-operation, but thought that such changes 'would still not deal
with some fundamental issues relating to Parliamentary democracy
and to the responsibility of the Federal Parliament for national
economic management.'(91) In particular, the final
report argued that the existing constitutional provisions impeded
the Federal Government's ability to carry out national employment
and incomes policy; indeed, the Government was often forced to
argue its policy before the Federal Arbitration Commission, whose
decisions often led it to be seen as 'in reality an economic
legislator.'(92) Congruent with its proposal to give the
Federal sphere responsibility for economic policy (including all
aspects of both intrastate and interstate trade and commerce), the
Commission recommended that the Commonwealth Parliament's
legislative power be widened to cover 'industrial relations.' While
such a change would remove nearly all fetters on the Federal
legislature's ability to mould industrial policy, the Commission
was confident that, in view of its long history of adoption in this
country, industrial arbitration would continue to remain a central
feature.
During its long history, the industrial
arbitration system has managed to find adaptive mechanisms to
circumvent many of the problems of overlapping jurisdictions. From
an early stage, the primacy of the federal tribunal was recognised
by State tribunals, which tended to follow its lead in setting
standard wages and conditions. Both State and Federal tribunals
have tended to recognise each other's priority and expertise in
some industries, refraining from intervening in areas traditionally
regulated by the other.(93) In practice a pattern of
industry coverage between State and Federal systems gradually
emerged, based on whether the industry was national in
orientation.(94) The High Court set further boundaries
by determining that the constitutional requirement of an
'industrial dispute' restricted the Federal system to occupations
in distinct 'industries' and not trades or professions.
As the result of High Court decisions which
expanded the reach of the Federal tribunal, the division of
occupations between State and Federal systems has changed radically
in the last half-century. In the Professional Engineers
case the High Court held that professional and clerical
employees could obtain access to the Federal system provided their
employer operated in an area which could be described as
'industry.'(95) Then, in the Social Welfare Union
Case of 1983, the arcane structure of constitutional decisions
on the meaning of the term 'industrial dispute' was completely
swept away in favour of an approach based on the ordinary meaning
of the words of the Constitution.(96) Since then a much
wider range of employees have been able to obtain a federal award,
although conflicts between State and Federal jurisdictions do not
seem to have increased. Problems with federalism still arise over
the regulation of State Government employees, with the High Court
maintaining that the federal system cannot hamper the capacity of
the States to function as independent entities by dictating the
number and identity of employees engaged in 'the administrative
services of the States' through federal dismissal and redundancy
provisions.(97)
Throughout the history of the Federal
Parliament, industrial relations has been a constant issue for
debate and enactment. During its operation from 1904 to 1988 the
Conciliation and Arbitration Act was amended 87 times, including 60
changes of more than an administrative nature. Just as governments
have sought to make wider use of the industrial power, they have
frequently been curbed by decisions of the High Court, resulting in
further amendments to deal with constitutional objections or to
preserve the existing system. Despite major restrictions imposed by
the High Court, the Act remained reasonably stable during its first
twenty years. The Labor Government introduced amendments in 1910
designed to overcome some of the legal obstacles, but ultimately
sought a solution by constitutional reform.
In the legislative history of the federal
industrial power, three periods stand out for the ways in which the
constitutional vision was adapted. First, the 1920s saw successive
governments searching for ways to resolve the division of powers
between the Commonwealth and the States. The prevailing
interpretation of the Constitution had also produced a system which
was highly legalistic and formalised, leading to conflict over the
Commonwealth Arbitration Court's authority and questioning of its
continued existence. Next, the period after the Second World War
was one where governments strengthened the economic policy role of
the arbitration system while simultaneously promoting flexibility
in dispute resolution by moving away from an adjudicative model of
arbitration to a more accommodative approach. However, the
retention of a separate judicial institution, again influenced by
constitutional constraints, resulted in further conflicts over the
system's authority. Most recently, the 1990s have seen a
transformation of the arbitration system and a reduced reliance on
the Constitution's industrial power. Demands for direct bargaining
to replace state intervention have produced a fundamental challenge
to conciliation and arbitration.
The 1920s saw the federal arbitration system
grow in importance under the influence of a developing national
trade union movement and an expansive interpretation of the
Constitution by the High Court. Whereas in 1921 only 22 per cent of
all wage changes in Australia were made under the Federal
arbitration system, by 1929 this proportion had grown to 61 per
cent. By that stage, about half of all trade unionists
(406 000 members) were employed under federal
awards.(98) The decade also saw the development of a
truly national economy and the growth of manufacturing industry.
The economic, industrial and legal changes brought new demands from
the Federal Government, unions and employers for the federal
arbitration system to act as a national economic regulator. The
growth of the federal system resulted in friction with the State
industrial systems, while the demand for a new regulatory role
conflicted with the Court's adjudicative style of arbitration which
it had inherited from Higgins and the framers of the
Constitution.
The First World War had already placed great
strains on the arbitration system, as soaring prices fuelled
industrial unrest. The Labor Government, led by the Right
Hon. W. M. Hughes, responded by seeking to resolve
disputes in the interest of prosecuting the war effort. Beginning
in 1916, both Federal and State governments increasingly resorted
to ad hoc inquiries and tribunals to deal with disputes in key
industries. As President of the Commonwealth Arbitration Court,
Justice Higgins was opposed to the use of temporary and private
tribunals, which he regarded as tending to sacrifice the public
interest for the sake of a solution convenient to the immediate
parties. Apart from doubts over their constitutional validity,
Higgins viewed such interventions by government as detracting from
the principled and judicial approach to the settlement of
industrial disputes. He criticised Hughes' intervention in the
coalminers' strike of October 1916 under the War Precautions
Act 1914, as well as the Government's punitive approach to the
1917 general strike in New South Wales using the same legislation.
Such actions Higgins viewed as an invasion of his judicial
independence.(99) For his part, Hughes had come to
believe that informal industry-wide conciliation and bargaining was
preferable to the legalistic system of arbitration which the
federal jurisdiction had become. In November 1917 the Prime
Minister and the judge clashed publicly over a tribunal constituted
under the War Precautions Act to settle a coal mining dispute.
Higgins refused to sit as the tribunal because it would only have
limited powers. He also claimed that Hughes tried to dictate the
issues to be arbitrated and the outcome to be decided, a claim
which Hughes denied.(100)
Towards the end of the war, Hughes fixed on a
new scheme for industrial regulation, using the defence power to
control key industries through a series of industrial boards with
powers to set awards, and incorporating the Arbitration Court as a
central appellate tribunal. A Bill had been drafted in 1917 and was
discussed with Higgins, who supported the existing system
supplemented by the State industrial courts.(101) It was
revived in 1920 following a lengthy mining strike and the failure
of Hughes' plans to extend Commonwealth powers by referendum or
with the agreement of the States. Relying on an expansive reading
of the industrial power, the Industrial Peace Act 1920
allowed for special tribunals to be appointed by the Government,
with the Attorney-General having power to refer specific disputes
to them for compulsory conference or arbitration.(102)
The Act also created a network of district and national industrial
councils for 'round table' conciliation.
Although Hughes presented the special tribunals
as adjuncts to the existing arbitration system and tried to ensure
that there would be no overlap between the two systems, the
legislation was seen by the Labor Opposition as an unprecedented
intrusion by the executive into industrial matters, and an erosion
of the status of the Arbitration Court.(103) In fact,
Hughes increased the powers of the Arbitration Court under separate
amending legislation.(104) Higgins regarded the special
legislation as an affront to his judicial probity and impartiality:
under the Act his awards would no longer be final but could be
overridden by a special body appointed by the Government.
Considering that 'the public usefulness of the Court has been
fatally injured,' he announced his resignation on the next sitting
day after the legislation was passed, gravely declaring that 'a
tribunal of reason cannot do its work side by side with executive
tribunals of panic.'(105) The Industrial Peace Act
itself was an anti-climax: its reputation as an example of
exceptional political intervention remained and, apart from being
used to create four special tribunals for the coalfields in the
early 1920s, it remained dormant until it was expunged from the
statute books in 1950.
The Bruce-Page
Amendments
Hughes' successor, Stanley Melbourne Bruce,
signalled his intention early in his tenure of adopting a policy of
non-intervention in industrial disputes. To him, direct government
involvement was not only an improper admixing of political and
industrial issues, but an inefficient way of proceeding when there
was already machinery for the settlement of disputes-especially
when politically-brokered solutions tended to produce economically
unsound results.(106) After the defeat in 1926 of his
referendum to expand the federal industrial power, Bruce became
convinced that the States should instead be given primary
responsibility for industrial matters. His Government's approach
was heavily influenced by a confidential report on the effects of
government regulation which concluded that the existence of dual
jurisdictions for labour regulation was a major impediment to
industrial efficiency. Though potentially more effective, a single
national regime was simply beyond the capacity of the Commonwealth
Parliament: the sheer volume of detailed regulation required
(safety and sanitation in factories, apprenticeships, workers
compensation, etc.) would swamp the legislature. The advisory
committee thus recommended that the Commonwealth should restrict
its reach to truly national industries, leaving most of the detail
of industrial regulation to the States.(107) Similar
conclusions were reached by the Royal Commission on the
Constitution which reported at the end of 1929.
By the mid-1920s the problems of Federal-State
dualism had gained a new dimension. Under the accepted
interpretation of section 109 of the Constitution, any
inconsistency between Federal and State awards was resolved in
favour of the Federal award. The High Court had originally adopted
a narrow 'direct collision' test of inconsistency which preserved
Federal and State awards unless they could not both be obeyed at
the same time. This approach minimised the risk of conflict:
because awards set minimum conditions, employers could
simultaneously abide by Federal and State awards by observing the
more generous conditions of each.(108) A change in the
personnel and outlook of the High Court from the early 1920s was
marked by an increased tendency to regard the pursuit of the
national interest by the Federal Parliament as overriding the local
concerns of the States, and Federal awards as therefore
pre-eminent.(109) In 1925 the New South Wales Government
had introduced a standard working week of forty-four hours,
although the standard week under Federal awards remained at
forty-eight.(110) The High Court held in Clyde
Engineering Co Ltd v Cowburn(111) that the federal
award prevailed as it was designed to cover the whole field of
working hours. The dominance of the federal award was viewed as
necessary to preserve the integrity and utility of the Federal
arbitration system.(112) The power of the Commonwealth
Arbitration Court to restrain State industrial authorities from
dealing with similar matters was also upheld at this
time.(113) Thus industries previously governed by State
systems were now open to Federal regulation.
From the mid-1920s the Commonwealth Arbitration
Court began taking on a stronger economic planning role, imposing
stringencies on wages and conditions in response to declining
economic performance and rising unemployment.(114) A
series of strikes then erupted in outrage at the Court's awards.
The Government reacted by treating the unrest as a crisis in the
Arbitration Court's legitimacy, prompting Bruce and the
Attorney-General, John Latham, to introduce increasingly punitive
measures. The High Court had ruled in Alexander's case in
1918 that the Arbitration Court did not exercise Commonwealth
judicial power under the Constitution because its judges were not
appointed for life, and so they could not impose a penalty for the
breach of a Federal award.(115) This was seen as a major
limitation on the authority as well as the practical operation of
the Court. Amendments introduced in 1926 addressed this problem by
giving the judges life tenure, and also provided for conciliation
commissioners to assist the parties to settle disputes by
agreement. These changes were presented as strengthening law and
order under arbitration, while simultaneously making the system
more flexible.(116)
Further amendments were presented late in 1927
by the Attorney-General, Mr Latham. He admitted it was not possible
for the Federal Parliament to address the whole problem of
industrial regulation, but while the Commonwealth Arbitration Court
remained in place it should be adapted and strengthened. Demands
had been made on the Government to abolish the Court, but this
would not mean an end to regulation since the State systems would
remain. It was necessary 'to face the realities of the situation,'
when a large number of unionists were working under Federal awards.
But if those who submitted to the Commonwealth Court were not
prepared to abide by its awards, 'the Government will have to
re-consider whether it is desirable to maintain the
system.'(117)
The 1928 amendments were the Government's
last-ditch attempt to strengthen the Federal arbitration system,
with its heavily judicial approach. As a means of circumventing the
duality problem, the Commonwealth Arbitration Court was now
required to determine whether it was preferable to deal with a
dispute itself or leave the matter to a State tribunal. Provision
was also made for joint conferences of Federal and State arbitral
authorities. The Court's power to impose penalties for strikes and
lockouts was strengthened, and employers were empowered to lock out
employees if the Court declared that they were engaging in a
strike. The amendments gave the Court for the first time power to
regulate internal union affairs, including the ability to order a
secret ballot of members in cases of industrial action. The Court
was also given power to punish for contempts made against it.
(118)A new section required the Court to 'take into
consideration the probable economic effect of the agreement or
award in relation to the community in general and ... upon the
industry or industries concerned.'(119) The sanctions
against strikes and the controls over unions led the legislation to
be denounced by the ALP as provocative, one-sided and 'a
declaration of war against the organised workers of Australia'. The
obligation placed on the Court to consider economic effects was
denounced as interfering with agreements reached by conciliation,
while the measure as a whole was viewed as so unfair as to be an
abrogation of the principle of conciliation and arbitration. Labor
instead proposed a system of conciliation boards along the lines of
the Industrial Peace Act. Bruce and Latham defended the legislation
against claims of class bias, and chided labour leaders for
questioning the arbitration judges'
independence.(120)
A series of strikes on the waterfront and aboard
ships in 1928 led the Government to introduce the Transport Workers
Act, using the commerce power to impose a licensing system for
workers by means of delegated legislation.(121) The Act
ingeniously allowed particular workers to be excluded from the
industry if they failed to obtain a licence or were refused one:
because of this requirement and its coercive effects the Act was
dubbed the 'dog-collar Act' by waterside workers. Bruce defended
the Government's decision not to conciliate the strike by saying
that if they had done that 'it would have taken the first step
towards the repeal of the Conciliation and Arbitration Act, and the
destruction of the Arbitration Court.'(122) He warned
that if the Court were not obeyed it might as well be
abolished.
Early in 1929 timber workers began a
well-supported strike in response to a federal award by Judge Lukin
which imposed longer hours and lower pay for many employees in the
industry. The new legislation was invoked to order a secret ballot,
and when this was boycotted the Government began prosecuting
strikers. A national industrial peace conference was called, but
failed to reach any policy consensus. The Government considered the
timber workers' strike an outbreak of industrial lawlessness, and
support for the strikers as an indication of lack of support for
the principle of arbitration. Bruce increasingly believed that the
Federal Government lacked sufficient power to uphold the
arbitration system by prosecuting disobedient workers. If the
system was not being enforced it was better to abolish it and leave
industrial regulation to the States, which Bruce believed had
better prospects of imposing order and enforcing decisions.
Responding to a censure motion accusing his Government of
introducing 'class legislation and partisan administration,' Bruce
declared:
We are rapidly coming to the point where we must
determine whether our system of arbitration is to be continued or
whether we shall replace it. If it is to be continued, we must
recognise that awards must be obeyed, and the prestige and position
of the judiciary maintained. It is necessary to provide in our
legislation, powers that will enable the executive government to
take action when those who are not prepared to obey the awards of
the Court are defying the laws of the country, because it is
impossible to have upon the statute-book legislation which any
section of the community may be permitted to
defy.(123)
In May 1929, Bruce issued an ultimatum to the
State Premiers: unless they agreed to refer the States' industrial
powers to the Commonwealth, he would repeal the Conciliation and
Arbitration Act and leave the field to the States, apart from
interstate shipping.(124) The Premiers' refusal was then
used as the basis for introducing the Maritime Industries Bill,
which attempted to carry out his threat. Bruce intended abandoning
use of the industrial power altogether. His Bill involved creating
several Government-appointed committees 'empowered to deal with the
regulation of industry in every respect,' though only in connection
with terms of employment in the international and interstate
transport industries because the Commonwealth's legislative powers
over trade and commerce did not extend any further. The
Commonwealth Court of Conciliation and Arbitration would be
abolished and its members transferred to a new Maritime Industries
Court which would act as a judicial board of review for the
committees as well as imposing penalties.(125) All other
industries would become the exclusive preserve of the State
industrial authorities. Such a drastic change was justified by
Bruce because industrial disruption had not diminished despite the
amendments introduced the previous year.
The proposal contradicted the Nationalist party
policy which still favoured expansion of Federal powers. Former
Prime Minister W. M. Hughes saw the proposal as contrary to the
natural tendency of national progress:
This measure is without parallel in the
legislation of the Commonwealth. For a quarter of a century the
National Parliament has been building up, stretching out, and
consolidating its powers. The passing years have seen successive
governments vieing with each other in an endeavour to exercise more
effectively the powers granted to them under the Constitution. ...
The leaders of all parties, though not always agreeing as to the
form of the amendments desired, have declared quite definitely that
there was a need for wider powers to be vested in the Parliament.
But while they have regretted the limitations of the Constitution,
they have not halted nor stumbled in their onward march. They have
endeavoured to exercise to the utmost all existing power. It has
remained to this Government to sound the trumpet for a general and
shameful retreat from a difficult but vitally important strategic
position.(126)
At the heart of Hughes' critique was the view
that the national system of arbitration was a key component of the
federal compact. Bruce's proposal 'is without parallel in our
history; it is contrary to the intentions of the framers of the
Constitution; it deprives the National Parliament of all power to
deal with the greatest problem of the age ...
.'(127)
Hughes insisted that as there was no popular
mandate for such a drastic change, the Bill should be placed before
the people by referendum or ballot. Bruce's scheme was sufficiently
drastic to rouse opposition from among his own ranks. His
Government suffered defeat on the floor of the House when Hughes'
motion was supported by five other rebels from the Government
benches. Bruce advised the Governor-General to dissolve the
Parliament and call an election. The campaign was largely fought
over industrial arbitration. Bruce defended his move to abolish the
federal system as a final attempt to make industrial control
simpler and more effective, while Scullin claimed that the
Government had made the federal system excessively legalistic and
punitive. Although a wide and confusing range of views was
advanced, the campaign was commonly seen as a plebiscite on the
continuation of the federal arbitration system. The election
produced a landslide for Labor. Although the actual voting swing
was moderate (about 4 per cent), the Government's large number of
marginal seats meant that Labor won fifteen additional places in
the 75 member House. Bruce and four other Ministers were defeated
in their own electorates.(128) The outcome has been
interpreted as the result of a gigantic political blunder by Bruce,
and a resounding popular vote in support not only of federal
arbitration but the method of industrial arbitration generally.
While other factors were at play, there can be little doubt that
the result showed widespread support for the existing system.
The incoming Scullin Government thus had good
reason to claim a popular mandate for retention of federal
arbitration, and proceeded to put forward amendments to make the
system less adversarial and legalistic. Labor admitted that its
reforms were hampered by 'the self-imposed straight-jacket' placed
by the Constitution on the legislative power; consequently the
Parliament was restricted in its ability to express the people's
will and pursue the national interest.(129) The
Government aimed to promote co-operation by creating a series of
conciliation committees chaired by commissioners attached to the
Court. The proposal departed from the judicial model of arbitration
in several respects. Like wages boards, members of the conciliation
committees would be appointed by the Government to represent
employers and employees generally. The committees could apply
across a whole industry, binding parties who had not appeared
before them. In addition, the commissioners could exercise arbitral
powers on their own behalf without being subject to an appeal to
the Court.(130) Because of these changes the Bill was
blocked by the Opposition-controlled Senate. A rare conference was
held between the managers of both Houses, resulting in several
amendments which diluted the novelty of the changes. The
Government's original plan to prevent appeals from the committees
or the commissioners to the Arbitration Court was changed at the
insistence of the Senate if the case involved an issue of general
importance.(131) The commissioners were also given
statutory appointments and could only be suspended from office
after a review by both Houses of Parliament.
The High Court immediately held that the
legislation went beyond the industrial power because the
committees' deliberations were not limited to settlement of an
industrial dispute and did not involve any hearing or determination
between disputing parties.(132) The decision effectively
meant that binding decisions resulting from industry-based
conciliation and 'round table' negotiation could not be implemented
under the industrial power, which was limited to judicial-style
hearings for the making of compulsory awards and orders. In 1931
the ALP Government attempted to overcome the High Court's
objections, introducing legislation which extended the arbitral
power to conciliation committees, but this move was blocked in the
Senate as an erosion of the Court's functions.(133)
Most of the innovations introduced by the 1930
amendments were designed to shift the system from a judicial style
of arbitration to an accommodative one, but were for this reason
negated by the High Court or the Senate. Labor's reforms did,
however, result in some reduction of legalism (allowing lawyers to
appear in court only by consent of all parties) and a greater use
of conciliation. The 1930 legislation also repealed or amended the
penal provisions of the Act, many of which had been added only two
years before. Although participation in a strike was no longer an
offence, the legislation now prohibited union officials from
inciting or encouraging the breach of an award. These changes were
supported by the Leader of the Opposition, Mr Latham, who opposed
the criminalisation of non-violent industrial action as
ineffective, and claimed he had 'always been doubtful of the
principle which they embody.'(134) Some of the detailed
requirements which the former Government had placed on registered
organisations were also removed. By the 1930s the intersection of
popular, parliamentary and judicial forces had tempered the more
radical changes sought by both sides of politics, confirming the
Commonwealth Arbitration Court's status as a key component of the
Australian system of government.
The Second World War, with the threat of
invasion and the need for total mobilisation of the nation's
resources in order to achieve victory, led to unprecedented demands
on the organisation of industry. In 1940 regulations made under the
National Security Act 1939 expanded the Commonwealth
Arbitration Court's jurisdiction immensely, using the defence power
under the Constitution to circumvent the restrictions contained in
the industrial power. The Court was given responsibility for
resolving all actual or potential disputes, including those within
a single State, and empowered to make a common rule for the whole
industry or to include in its award issues not raised in the
original dispute.(135) From 1942 the Labor Government
introduced an extensive system of direct planning and regulation of
key industrial sectors, using the defence power to set up special
administrative authorities for the waterfront, maritime and
coalmining industries. Besides directing production, these bodies
were also responsible for settling industrial grievances and
determining employment conditions. In protected occupations, the
freedom to change work or engage in industrial disputes was
drastically curtailed. General regulations were also made which
pegged wages and set working hours.(136)
The 1947
Changes
During the period of post-war reconstruction the
Chifley Government sought to continue the wartime system of direct
industry regulation in key industries. It also tried to move away
from the ornate edifice which the Arbitration Court had become
towards a more informal mixed system of boards and court which
operated in some of the States, and which the Scullin Government
had attempted to emulate in 1930 before that scheme ran foul of the
High Court. However the changes were not as radical as those
attempted in 1930 and did not seek to deregulate the system by
abolishing the Court in favour of conciliation committees as the
union movement wanted. The 1947 amendments were designed to
increase the role of conciliation and collective bargaining, while
reducing delay and legalism, but they retained centralised
regulation by the Court as a crucial element in post-war economic
planning through its determination of wages and
hours.(137)
The Attorney-General, Dr H. V. Evatt, (Labor,
Barton, NSW) introduced the Bill as 'a new chapter in the history
of industrial relations in Australia;' one which departed from the
formalism and technical complexity of the existing system by
emphasising the prevention of disputes through
conciliation.(138) Whereas conciliation commissioners
had played only a minor role before the war, now they were to
handle most day-to-day functions of resolving disputes and making
awards. It was expected that they would operate as administrative
bodies rather than legal tribunals, exercising their powers with
discretion to prevent impending disputes before they arose, rather
than depending on the formal notification of a dispute by the
parties. Procedures would be simplified 'to enable commissioners to
intervene long before differences between parties become
irrevocably defined.'(139) The reforms marked a much
greater reliance on the hitherto little-used prevention power under
section 51(xxxv). The definition of industrial dispute was widened
to include 'a situation which is likely to give rise to a dispute
as to industrial matters.'(140) In keeping with the
reduction in legalism, the Court was confined in its role to the
hearing of purely legal issues and the setting of standards of
national importance. The avenue for appeals to the Full Court was
therefore removed and the commissioners became completely
independent. The Court was largely restricted to operating as a
bench of three judges, and confined to the setting of standard
hours, the male basic wage, annual leave and minimum pay rates for
women.(141)
Evatt justified the changes by claiming that the
Bill embodied 'the true spirit of the constitutional power of the
National Parliament,' which did not require legalism and
technicality. But, as the Leader of the Opposition, Mr Menzies,
(Liberal, Kooyong, Vic.) noted, the legal issues which constrained
the operation of the Federal arbitration system were largely the
result of constitutional interpretation by the High Court: for good
or ill, they could not be touched by parliamentary
action.(142) The Opposition was most concerned at the
unfettered discretion given to the commissioners, preferring the
traditional judicial system of arbitration as productive of
consistency and respect.
The new system showed its shortcomings almost
immediately. The changes were criticised, especially by employers,
for reproducing the problems that they had been designed to
eliminate: the system divided responsibilities irrationally, was
unduly inflexible, and lacked a mechanism for consistency between
awards of the commissioners.(143) The division of
functions between the Court and the conciliation commissioners was
especially difficult to determine in practice, leading to lengthy
delays and court challenges. In one case, the High Court held that
a conciliation commissioner was not permitted to insert provision
for a tea break into an award because this constituted a variation
to standard hours under the Act.(144) In wage-fixing
cases, it was sometimes difficult to determine whether a claim
involved a simple variation, which was the province of the
commissioners, or was an alteration of the basic wage principles,
which could only be handled by the Court.(145) The
Menzies Government introduced amendments in 1952 which restored
appeals from the commissioners and allowed cases of special
significance to be removed to the Full Court. Apart from these
problems of co-ordination (which also reflected real differences on
the bench regarding wage-fixing principles), the historian of the
period, Tom Sheridan, has concluded that the 1947 legislation had
little effect on the actual operations of the Commonwealth
Arbitration Court.(146)
The Boilermakers'
Case and the 1956 Amendments
The rise in industrial militancy after the war
led to demands for greater enforcement of sanctions, with
enforceable penalties for breach of awards or for taking industrial
action. While the prohibition on strikes had been removed in 1930,
the Arbitration Court continued to have the power to make an order
requiring the observance of any term of an award, and to punish
breaches of such a term.(147) The 1947 amendments, which
expanded this power while at the same time enhancing the Court's
power to punish for contempt of court, were widely regarded as
reimposing by other means the 'penal powers' for strikes.
The issue was tested during conflict over the
1950 Basic Wage Inquiry when metal trades unions imposed a ban on
the working of overtime contrary to an express provision in the
award. When the power to enforce this clause was overturned by the
High Court, a new provision was inserted into the Act by the
Menzies Government in 1951 expressly allowing the Arbitration Court
to make an order requiring an organisation to observe award
provisions, and providing that failure to observe such an order
could be treated as a contempt of court, punishable by a heavy
fine.(148) A bans clause was inserted into the Metal
Trades Award in 1952 and when the Boilermakers' Society refused to
obey an order from the Arbitration Court to observe the clause by
ceasing a strike, Justice Richard Kirby of the Court fined the
union for contempt. The union then appealed to the High Court to
have the penal power declared invalid.
By a narrow majority the High Court held that
the Arbitration Court did not possess the necessary judicial power
under the Constitution to impose penalties. This decision was later
confirmed by the Privy Council. The new Chief Justice of the High
Court, Sir Owen Dixon, in common with many members of the
judiciary, had the view that industrial tribunals should not be
clothed as courts of law since their curial appearance tended to
undermine public respect for the legal system.(149) The
decision echoed previous decisions dating back to 1918 which
declared that only a properly constituted court could exercise the
judicial power of the Commonwealth under the Constitution. But it
went significantly further than this in holding that any such court
whose primary function was to administer arbitral or legislative
powers could not also exercise the Commonwealth's judicial power.
Hence the Commonwealth Arbitration Court could engage in
conciliation and arbitration, but it could not also enforce its own
decisions by imposing penalties, for this was a judicial function
which must remain institutionally separate.(150) It
perplexed the appellate judges that such an obvious defect had been
allowed to stand for so long; but until the penal powers began to
be used so vigorously, neither the unions nor employers had
sufficient motivation to mount a challenge to the entire system
with consequences that could not be predicted.
In establishing a demarcation between judicial
and other powers, the decision set clear limits on the manner in
which Parliament could exercise its power to legislate with respect
to conciliation and arbitration. The Parliament could easily have
relied on the existing Federal and State court system to discharge
the judicial function, as most other federal legislation did at the
time. Instead, the Government decided to create a new court, the
Industrial Court, to discharge the legal functions of the system
especially the imposition of penalties and the regulation of
industrial organisations.
In fact it seems that the Government had already
decided to overhaul the arbitration system before the Boilermakers'
case was decided. By the early 1950s there was widespread
dissatisfaction with the formalism of the Commonwealth Arbitration
Court. The Government is reputed to have blamed the legalism and
inflexibility on the Chief Judge, Sir Raymond Kelly. Appeals from
the conciliation commissioners had already been legislated in 1952,
integrating the system but making the Court even more important.
The Government was worried by the nation's unfavourable balance of
payments and rising inflation; its solution was to increase
productivity while cutting purchasing power.(151) These
measures would most likely increase industrial unrest. A review of
the system was raised during the December 1955 election, and at the
opening of Parliament the following February the Government
announced its intention to pursue changes to make the Court more
efficient, weeks before the High Court's decision was handed down.
The Minister for Labour, the Hon. Harold Holt (Liberal, Higgins,
Vic.), preferred a more informal approach and raised reform of the
Act with the newly-created Labour Advisory Council around this
time.(152) Holt apparently sounded out Judge Kirby as a
possible successor to head a less formal body as early as
1954.(153) The Boilermakers' decision made more pressing
the need for overhaul of a system which was already showing
strain.(154)
The 1956 amendments continued the trajectory of
the 1947 changes in seeking a reduction in legalism and the
encouragement of agreements. The existing system would be retained
not only because it was well-established and accepted, but because
an independent tribunal was needed to protect the public
interest.(155) The new Conciliation and Arbitration
Commission was designed to make the handling of disputes more
'streamlined' and flexible. The former conciliation commissioners,
now called simply commissioners, would be able to bring their
expertise to full benches in important matters, joining the judges
(now designated as presidential members) for the first time. They
were supplemented by specialist lay conciliators who could also
arbitrate on matters in dispute if the parties
consented.(156) The Minister hoped that the atmosphere
of the Commission would be less formal and that its judges would
dispense with wigs and gowns (which they did). The Bill was
criticised by the Opposition because it did not go far enough: it
retained the system of appeals, which the Labor party saw as the
main cause of delay, and allowed the Commission to overturn
collective agreements on economic grounds which were beyond the
control of both government and the tribunal. In his reply the
Leader of the Opposition, Dr Evatt, declared that an effective
conciliation and arbitration system could only be achieved if
Parliament were vested with powers over all industrial matters, as
well as prices and profits.(157)
Coming at a time of intense industrial unrest
and rapidly changing conditions (the 40 hours case, the 1949
coal strike, inflation and the struggle over margins in the metals
industry), the statutory changes by both Labor and Liberal
governments in the immediate post-war period cemented the federal
arbitration tribunal's role as a maker of economic policy, rather
than an arbiter of individual disputes. Both measures involved
consultation with unions and employers before the proposals were
presented to Parliament. Under the 1947 amendments the Court's
statutory responsibility for basic wage and standard hours
inquiries confirmed it as an expert body. The Menzies amendments of
1952 and 1956 enhanced this role for the Full Bench by providing it
with general co-ordinating jurisdiction. The tribunal began relying
more on statistical data and expert submissions rather than sworn
evidence given by individual witnesses. Its policy role was taken
up enthusiastically in the highly controversial 1953 Basic Wage
Case, which abandoned automatic wage increases linked to the cost
of living and replaced the needs-based Harvester principle with a
series of economic indicators designed to determine industry's
capacity to pay.
The post-war amendments represented the most
fundamental alteration yet to the structure of the federal
arbitration system, but even these changes were in keeping with the
traditional independent judicial model of arbitration which had
emerged from interpretation of the Constitution, while allowing the
Commission to adopt a more accommodative role towards disputant
parties.(158) The High Court declared the new approach
as falling within the Parliament's industrial power: provided the
federal tribunal was acting in settlement of a constitutional
industrial dispute, 'it would be absurd to suppose that it was to
proceed blindly in its work of industrial arbitration and ignore
the industrial social and economic consequences of what it was
invited to do.'(159)
Consequences of
the Reconstructed System
The Boilermakers' Case and the 1956 amendments
resulted in a bifurcated system, with conciliation and arbitration
being handled by the Commission, while the new Industrial Court
determined legal matters of award interpretation and enforcement.
The chief defect of this system, as it soon emerged, was the lack
of co-ordination between the arbitral and judicial arms. The
Industrial Court operated purely as a court of law without any
consideration either of the activities of the Commission or the
wider consequences of its own decisions. This problem came to a
head as the result of employers' increasing use of penal sanctions
during the 1960s. After the criminal penalty for engaging in a
strike was abolished by the Scullin Government in 1930, employers
began turning to bans clauses as an alternative method of
enforcement. The High Court had already endorsed the legality of
bans clauses in 1936, with the majority declaring this to be a
matter within the arbitration tribunal's discretion (even though,
as the minority pointed out, the legislature had made clear its
intention by removing the statutory prohibitions against industrial
action in its 1930 amendments).(160) However the use of
bans clauses did not become common until after the 1951 amendments
which made breach of an Arbitration Court order a contempt of
court. After the 1956 amendments the power to punish for contempt
was transferred to the new Industrial Court.
By inserting a bans clause, the tribunal could
prohibit any ban or restriction which impeded the performance of
work in accordance with the award, thus making any industrial
action a breach of the award. But rather than seek a penalty for
breach of the award, employers could instead obtain an injunction
from the Industrial Court ordering observance of the award or
restraining any future breach. Any disobedience of such an order
was treated as a contempt of the Court and punished by a heavy
fine. The total burden of such proceedings was compounded by the
ability of successful parties to recover their legal costs in
Industrial Court actions. Unlike the Arbitration Court which it
replaced, the Industrial Court proved to be highly receptive to
such enforcement procedures, and fines for breach of bans clauses
became common after 1956 as employers began resorting to the Court
rather than arbitration.(161) Most of these fines were
imposed during the 'absorption battles' of the 1960s in the metals
industry. In December 1967 the Commission had granted an award
increase in the industry but allowed employers to absorb the
increase in existing over-award payments. When the metals unions
began a campaign of industrial action demanding payment of the full
increase, employer organisations retaliated by enforcing the bans
clause with the aim of bankrupting the unions. By May 1968 the
metals and engineering unions resolved to refuse to pay any further
fines. This policy was endorsed by the annual congress of the
Australian Council of Trade Unions (ACTU).(162)
This explosive situation was touched off by a
continuing dispute over restructuring of the Melbourne transport
system, in what became known as the 'one-man bus' dispute. The
union tried to have the matter resolved in the Commission, but
twice the High Court held that there was no jurisdiction to hear
the dispute as it did not fall within the meaning of the industrial
power in the Constitution. On the third occasion the Commission's
power was upheld.(163) Besides highlighting the semantic
pedantry to which judicial interpretation of the industrial power
had by this stage descended, the cases exhausted the union's
patience with the legal system. A series of fines had already been
imposed for breach of injunctions by the Industrial Court during
the 'one-man bus' dispute; the union refused to pay them as it
considered it had been vindicated by the eventual award. By the
time a further penalty was imposed in 1969, the union executive
resolved not to pay any further fines and withdrew its funds to
protect them from being confiscated by the Court.
The matter became a focus of the union
movement's campaign to abolish the 'penal powers' when the union
secretary, Clarrie O'Shea, was summonsed for contempt of the Court.
When he finally attended the Court on 15 May, he refused to be
sworn or answer questions about the union's finances. Judge Kerr
thereupon committed O'Shea to prison until he purged his
contempt.(164) As the first gaoling of a union official
for 18 years, the sentence was treated as a threat to the whole
union movement by a court which was widely perceived as having an
anti-labour bias. Widespread stoppages followed within days, but
talks to defuse the spreading dispute reached a stalemate when the
Government insisted that the fines must be paid. The crisis was
resolved only when the fines were paid by an anonymous individual,
thus allowing both the Government and the unions to withdraw
without backing down. The donor was later revealed to be one Dudley
MacDougall, who used his recent Opera House lottery winnings in a
gesture of public beneficence. The episode was widely regarded as
providing a lesson that punitive sanctions for industrial action
were unworkable, since the ultimate sanction of gaoling was
excessive and a negation of any freedom to take industrial
action.
This was a clear occasion when the Parliament
served as the focus for debate on a matter of vital public concern.
Lacking a majority in the Senate, the Government faced intense
questioning at the height of the crisis when an urgency motion
sponsored by the Labor Opposition gained the support of the
Democratic Labor Party. The Senate Opposition Leader, Senator
Lionel Murphy (Labor, NSW), attributed the cause of the conflict to
the division of functions between the Commission and the Court.
While the Commission was charged with preventing and resolving
disputes, the Court refused to consider the industrial merits of
the enforcement cases before it. As Senator Murphy noted, in the
previous decade the industrial relations system had moved towards
one of collective bargaining, yet the widespread availability of
bans clauses prevented unions from taking any industrial action to
force negotiation on above-award claims. He criticised the
Government for failing to provide workers with the right to strike
which was necessary to ensure fairness in a bargaining
regime.(165) A similar debate was allowed in the House
of Representatives two days later. Opposition members repeatedly
pointed to the one-sidedness of the penal sanctions, and the
Industrial Court's refusal to examine the rights or wrongs of
industrial action before imposing a penalty.
While the Government continued to assert that
effective sanctions were an essential feature of the arbitration
system, it resumed negotiations with the union movement on
modifications to the enforcement provisions.(166) An
agreement was also reached with the ACTU and employers'
associations on the use of dispute resolution procedures. With the
growth of informal collective bargaining, the power of the
Parliament and the Commission to control the industrial relations
climate were increasingly being eclipsed.
The following year the Government introduced
amendments designed to make the use of sanctions a last resort,
admitting that the existing process was 'no longer appropriate or
desirable' and that where possible disputes should be resolved
without recourse to penalties. In future a bans clause could only
be inserted into an award by a presidential member of the
Commission. The Industrial Court's power to issue orders for
compliance of an award was abolished, leaving it with only the
power to exact a lesser penalty for breach of an award. In order to
allow an opportunity for settlement by arbitration, such a penalty
could be imposed by the Court only after a presidential member of
the Commission had attempted to settle the matter.(167)
Recognising the shortcomings of a purely legal tribunal in dealing
with industrial disputes, the amendments clearly reasserted the
primacy of conciliation and arbitration. The trend towards
facilitation of dispute resolution was continued in the McMahon
Government's major revision of the Act in 1972. By appointing
commissioners, whose main role was to mediate agreements, the
Government hoped to encourage resort to the Commission in informal
collective bargaining. The attempt to separate the conciliation
function from arbitration lasted until the following year, when it
became apparent that the separation only led to delays; as a
result, the processes of conciliation and arbitration were again
combined.(168)
The accession of the Whitlam Labor Government in
December 1972 gave the ALP its first opportunity at reform of
industrial relations legislation since 1947. The Minister for
Labour, Mr Clyde Cameron (Labor, Hindmarsh, SA), introduced a Bill
in April 1973, which he described as 'the first stage of a radical
transformation of industrial relations in
Australia.'(169) A major aim of the changes was to shift
the system away from court proceedings and penalties in favour of
bargaining and conciliation. As a consequence of the penal powers
controversy four years earlier, the Bill recognised a right to
strike by protecting unions from civil liability for industrial
torts under the common law and removing the remaining power to
impose bans clauses or issue penalties for strikes. As a means of
promoting and legitimating collective bargaining, greater powers
were also proposed for single commissioners to approve industrial
agreements, while appeals against the certification of agreements
would be abolished. The Minister noted that in the longer term the
Government aimed to implement the Labor party's commitment to
constitutional reform by seeking an expansion of the Federal
legislative domain:
It is the task of the national Parliament to
create labour relations which meet and match the needs of the
community and which will anticipate and overcome obstacles to
justice and common sense in industrial
relations.(170)
While the Government presented the amendments as
a way of saving the arbitration system by accommodating it to
change, the Opposition saw these moves as destroying the authority
of the Commission and the effectiveness of the legislative
framework under which it operated.(171) The proposal to
abolish penalties for industrial action (replacing them with other
sanctions) was identified as particularly destructive of the
arbitration system on the basis that any legal system ultimately
rested on the threat of penalties for its operation. The Federal
Parliament's ability to limit the operation of the industrial torts
was also doubted in an academic paper which argued that the
provision could not be supported by the Constitution's industrial
power.(172) When the Bill reached the Senate, the
Opposition and Democratic Labor Party members combined to prevent
detailed consideration beyond the second reading stage. Some of the
changes to the machinery of the Commission and Court were, however,
passed later that year.(173) Faced with a hostile
Senate, Labor was unable to proceed with its more extensive
proposals. Attempts to gain expanded legislative power through
constitutional change also proved abortive in the 1973 referendum
which failed to gain approval for Federal control over prices and
incomes when the ACTU, fearful that it would be used to freeze
wages, campaigned against the proposal.
The period of Liberal-National Party Government
from 1976-83 saw a strengthened role for the Arbitration
Commission. Industrial relations became more centralised and award
regulation gained greater prominence as national wage cases took on
a major role in the Government's attempts to contain inflation by
limiting wage increases. The Commission acquiesced in this role by
adopting the mechanism of partial wage indexation which passed on
only part of the rising cost of living in award increases. A key
part of the Government's strategy was the containment of industrial
action through strengthened legal sanctions and enforcement
mechanisms.(174) Additional sanctions for industrial
action were introduced (notably the prohibition of secondary
boycotts under the 1977 amendments to the Trade Practices Act
1974), with the Government stating that 'it is impossible to
maintain the authority of the Act unless there are consequences
which are appropriate to the particular breaches of the
rules.'(175) This period was also marked by an increase
in direct intervention by government in industrial relations as
legislation was passed which either limited the discretion of the
Commission or gave new legal powers to employers.(176) A
further proposal made in 1982 would have allowed employers to
stand-down employees as a result of industrial action without
having to obtain the approval of the Commission as had previously
been required. The Commission would not have any power to limit
this new right. The clause was criticised by the Labor Opposition
as 'an imposition from outside the system.' When it came before the
Senate, the change was opposed by the Australian Democrats in
conjunction with the ALP; after being referred to a select
committee the Bill eventually lapsed.(177)
By contrast the ALP took power in March 1983
with a strategy heavily reliant on its Accord on economic policy
which it had concluded with the ACTU. This was premised on a
centralised system of wage fixation under the Arbitration
Commission, and its implementation depended on the adoption of its
principles by the Commission in national wage cases. The High
Court's approach in the Social Welfare Union case (June
1983) and subsequent decisions allowed this to occur. By treating
the meaning of the words 'industrial dispute' in section 51(xxxv)
of the Constitution as largely a question of fact and ordinary
meaning, the Court allowed the Commission unprecedented discretion
to determine which matters it could include in an award, while also
expanding the range of workers who could be covered by the federal
arbitration system.(178)
The Hancock
Report and the Industrial Relations Act
The original Accord contained a commitment to
the establishment of an inquiry 'to conduct a total review of
Federal industrial legislation.'(179) In July 1983 the
establishment of such a committee of review was announced. It was
tripartite in nature, consisting of Professor Keith Hancock (an
academic economist) as chairman, together with Mr Charlie
Fitzgibbon (former Senior Vice-President of the ACTU) and Mr George
Polites (former Director-General of the Confederation of Australian
Industry, the peak employer association). The Committee's terms of
reference had a distinct legal and constitutional focus, requiring
it to examine 'all aspects of Commonwealth law relating to the
prevention and settlement of industrial disputes,' the recognition
and operation of industrial organisations, and 'the extent to which
and the manner in which the Federal and State industrial relations
institutional and legislative arrangements might better
inter-relate.'(180) The report was handed down in April
1985 after the Committee had received substantial submissions from
all major representatives of employers, unions and government.
The Committee took the essentially conservative
approach that, since it was difficult to achieve change across an
industrial relations system, reform 'should only be attempted if
there is reasonable ground for the expectation that present
problems will thereby be overcome and that different and worse
problems will not be created.'(181) It noted that no
submissions had advocated radical changes to the existing system,
although some preferred a more decentralised and inclusive approach
by the Commission, or greater availability of
bargaining.(182) In the end, the Committee was not
persuaded that 'definite and decisive advantages' would flow from
any major change. The proponents of fundamental deregulation had
assumed rather than demonstrated its claimed benefits, while the
existing system had proved itself to be sufficiently adaptable to
accommodate new policies and practices. A system of conciliation
and arbitration was the one most capable of developing and
implementing a centralised wage policy in the national
interest.(183) Considering the long history of the
present system, the widespread public support which it had
engendered, and the complexities of changing an overall system
which was spread across federal and State domains, any major change
would face difficulties and uncertainty.(184) However a
recommendation was made to allow for a collective bargaining stream
which could be utilised by mutual agreement between the relevant
parties to regulate their relationship to the exclusion of the
Commission.(185)
Special emphasis was placed on the Commission's
status as an independent and expert body which proceeded by public
argument and deliberation: these characteristics gave it the
flexibility to adapt its principles and processes to a changing
economic and industrial climate, to maintain public confidence, and
to accommodate the needs of the parties.(186) While it
accepted that the Commission should take account of the public
interest and the economic consequences of its
decisions,(187) the Hancock Committee was opposed to any
closer direction by Parliament, especially:
measures which would involve intrusion by the
legislature directly on the Commission in exercising its
dispute-settling function. To do so, would, we believe, cast doubts
upon the independence of the Commission. The tribunal's
independence is essential for it to operate effectively and with
the continued confidence of the community and the parties who rely
upon it for the resolution of disputes.(188)
The history of the Commonwealth legislation
showed that the functions of conciliation and arbitration should
not be separated since they tended to become merged in the course
of resolving particular disputes. While it was desirable to promote
the use of conciliation by the parties, this was best achieved, not
by making arbitration less accessible, but by providing for more
flexible use of conciliation (for example, by creating industry
consultative councils and requiring dispute processes to be
included in awards).(189)
The Report's main recommendations concerned the
restructuring of the federal institutions. The Committee emphasised
the continuing central role for an arbitral tribunal, but thought
its name should be changed to the Australian Industrial Relations
Commission to reflect its broader role 'in consultative processes,
in the consideration of the public interest, and in the promotion
of industrial harmony.'(190) To improve consistency and
equity, the specialist tribunals should be abolished and
incorporated into this single tribunal.(191) A separate
Australian Labour Court should also be created, the members of
which would hold concurrent office as presidential members of the
Commission. The integration of arbitral and judicial functions by
the sharing of personnel would result in 'a more practical and
streamlined' system while avoiding the restrictions imposed by the
Boilermakers' Case.(192) Giving the federal judicial
functions to a specialist court whose members were 'actively
involved in conciliation and arbitration' would effectively allow
the same personnel to make, interpret and enforce their own awards.
The Committee did not seem to see any dangers in combining
functions in this way.
The Committee thought that penal sanctions such
as fines and imprisonment could never be a major part of a system
based on conciliation and arbitration, and recommended that such
penalties for industrial action should not be included in
legislation. Rather, it proposed the development of more extensive
'internal' sanctions within the arbitration system itself, such as
cancellation of awards or deregistration of organisations. Making
the benefits of conciliation and arbitration dependent on
conformity to its processes would promote commitment to the overall
system.(193) However no agreement could be reached on
the place for the common law industrial torts or the prohibitions
on secondary boycotts under the Trade Practices Act. The Committee
divided over whether registered organisations should be given
immunity from such 'external' legal sanctions, leaving disputes to
the processes of conciliation and arbitration rather than the
general law.(194)
While largely based on the Hancock Report, the
Industrial Relations Bill introduced in May 1987 made some
significant departures from its recommendations. In the words of
the Minister for Industrial Relations, the Hon. Ralph Willis, the
Bill represented an 'evolutionary development' of the existing
system, one which retained the centrality of conciliation and
arbitration 'based on a clear understanding of the social,
historical and structural characteristics of our industrial
relations system as it has evolved over the past 80
years.'(195) The Commonwealth Government had been unable
to secure the States' commitment to setting up a unified system, so
the Bill was confined to providing for joint appointments to State
and federal tribunals. The Government also disagreed with the
Report's proposal for a scheme of collective agreements enabling
parties to 'opt out' of the arbitration system; instead, the
Commission would be able to certify non-variable fixed term
agreements which could be enforced before the Labour Court.
It was in the sanctions provided against
industrial action that the Bill contained its most significant
innovation. The Government believed that all remedies and penalties
for industrial action should be located in the specialised labour
law system, rather than derived from a variety of common law and
statutory sources. The Bill proposed that the new Labour Court
would have primary responsibility for orders to cease industrial
action, including the statutory remedies for secondary boycotts
under the Trade Practices Act as well as new powers to issue
injunctions and impose fines for non-observance of Commission
orders. However the jurisdiction of the State courts to award
compensation for breach of the industrial torts and other common
law actions was retained.(196) These provisions drew
such strong objections from employer organisations as to lead to
the Bill's demise. When the Government decided to call a snap
election for July 1987, the Bill was delayed and the enforcement
provisions dropped in order to neutralise a threat by business
groups to campaign against the changes. Government members claimed
that the amendments had been misrepresented, especially those
concerning sanctions, and that the community needed more time to
understand them.(197)
When the Parliament resumed after Labor's
re-election, the Government announced that, as the result of
extensive consultations, its reforms would be reintroduced 'without
changing existing sanction provisions.'(198) Because the
proposal to limit the availability of other remedies was so
strongly opposed by employer groups, the Government decided to
abandon its related amendments for more effective sanctions
administered by the Commission. Hence the sanctions under the new
Act substantially reproduced the complicated and largely
inoperative provisions which had developed after 1970. The
Government also decided not to go ahead with the establishment of a
specialist Labour Court, since it was no longer needed to
administer sanctions.(199) The revised Bill was pushed
through the House on 23 May, passing through all stages with
minimal scrutiny.(200) When it reached the Senate, the
Opposition criticised the Bill for maintaining the 'heavily
controlled, centralised and essentially bureaucratic procedures' of
the existing system. It put forward an extensive series of
amendments based on the Coalition's recently adopted policy
favouring 'single enterprise bargaining units' designed to enable
employers and employees 'to resolve their differences by direct
agreement.'(201) For the first time since the 1929-31
proposals there was fundamental disagreement between the major
parties concerning the form and processes of the federal industrial
relations system. The Opposition also proposed additional strike
sanctions, effectively reviving the pre-1970 powers by allowing the
Federal Court to issue an injunction enforcing the Commission's
order to cease industrial action. In response, the Government
argued that such an approach would reproduce the problems
highlighted by the 1960s controversy over the enforcement of bans
clauses, culminating in the O'Shea case.(202) After
extensive debate the Government's scheme prevailed with the support
of the Australian Democrats.(203)
The Industrial Relations Act which resulted was
therefore little more than a reordering of the existing
system.(204) The most significant change in the
long-term was the recognition which the Act gave to collective
bargaining in the form of certified agreements. While the Hancock
Report had envisaged the Commission continuing to play a strong
central role in the implementation of economic policy, the climate
had changed by the late 1980s. From 1986, under a renegotiated
Accord between the Federal Government and the ACTU, centralised
regulation began to be replaced by a decentralised approach as the
focus of change shifted towards the workplace.(205)
Unions and employers were responsible for enhancing productivity by
negotiating and implementing change at the workplace level. However
the Commission continued to determine the parameters of wage
increases based on productivity changes, and to operate a fully
centralised approach to the award of base-level wage increases
linked to the cost of living. Union leaders became increasingly
dissatisfied with the results of the Accord process, and sought to
circumvent the Commission's central power by resort to collective
bargaining.(206)
Change in the
1990s
The later years of the Labor Government, from
1991-96, have been described as a period of 'co-ordinated
flexibility' in industrial relations, when a shift towards
enterprise-based collective bargaining was achieved within the
framework of the award system.(207) Pressure from the
ACTU and employers for greater autonomy was initially resisted by
the Commission in April 1991. Concerned that deregulated bargaining
would lead to excessive claims and disputes, the Commission
declared that the parties still needed to develop 'maturity' so
that some consensus could be reached on the nature of the new
bargaining system.(208) When the Federal Government
announced that it would introduce amendments designed to facilitate
a shift towards enterprise bargaining,(209) the
Commission was forced to accept greater deregulation. In its
October 1991 wage decision it announced that in future the
Commission would endorse enterprise agreements provided they
implemented its principles for improving efficiency. As part of its
new supervisory role, the Commission declared that from now on it
would refrain from using arbitral powers to resolve disputes over
the conduct of bargaining, leaving such issues to conciliation or
to negotiation between the parties.(210)
The legislative changes introduced in 1992 and
1993 were designed to formalise this shift to a system based on
enterprise-focused bargaining. While the Commission continued to
oversee the process, its independent discretion was diminished. In
the majority of cases (where only a single enterprise was
involved), it could no longer refuse to certify an agreement on the
ground that it was 'contrary to the public interest.' However the
Commission still retained an important role in the approval
process: an agreement could only be certified if the Commission was
satisfied that its overall terms did not disadvantage employees by
comparison with the award.(211) A Full Bench could also
terminate an agreement (or agree to its variation) if its continued
operation was found to be unfair to employees covered by
it.(212) Under the amendments introduced by the
Industrial Relations Reform Act 1993, a separate
Bargaining Division of the Commission was established, with power
to oversee the bargaining process, although the Commission held
that its power was only facilitative and could not be used to
enforce bargaining in good faith.(213) The Commission
also had limited power to scrutinise the fairness of
agreements.(214)
Under the Reform Act, the Commission was also
subjected to greater direction when making awards, which by now had
completely lost (other than in purely formal terms) their original
function as the settlement of an industrial dispute. Awards were
now to 'act as a safety net of minimum wages and conditions of
employment underpinning direct bargaining,' rather than a
prescription of actual entitlements.(215) When deciding
whether to certify an agreement, the Commission was now required to
use an overall comparison between its award and the agreement to
determine whether the agreement satisfied a 'no disadvantage' test.
It was also required to review awards on a regular basis to ensure
that they provided for 'secure, relevant and consistent' wages and
conditions, and did not contain any 'unnecessary
detail.'(216) While the Commission retained a central
position as an arbiter of general standards and a gateway for
approving particular agreements, it is clear that these changes
significantly displaced its traditional role as an independent
judicial tribunal resolving disputes.(217) The validity
of this focus on bargaining was confirmed in 1996 when the High
Court held that legislation allowing parties involved in an
industrial dispute to settle their differences by making an
agreement was an exercise of the incidental aspect of the
industrial power under section 51(xxxv) of the
Constitution.(218)
The Reform Act was also constitutionally
significant in its reliance on alternative heads powers, such as
the corporations and external affairs powers (discussed in Part 4
of this paper). One of the terms of the renegotiated Accord in 1992
between the ACTU and the ALP Government, implemented in the 1993
Reform Act, was the introduction of a range of minimum employment
standards. So that the standards would apply to all employees in
Australia (including employees in Victoria, which had recently
abolished its industrial arbitration system), they were enacted
using the external affairs power rather than leaving it to the
Commission to devise principles through the award process. In this
respect the legislation was the most dramatic example of direct
regulation by the Federal Parliament in the field of industrial
relations since Federation. Yet the Commission retained significant
responsibilities for determining the details and application of the
minimum standards: it was required to set minimum wages for
employees not covered by a federal or State arbitration system,
make orders implementing equal remuneration between men and women,
devise recommendations for carers' leave, and adjudicate on the
dismissal of individual employees. The Reform Act also achieved
Labor's long-held ambition for a specialist labour court,
establishing the Industrial Relations Court of Australia with
primary responsibility for interpreting and enforcing the
Act.(219) Thus, in the early 1990s, the ALP in
government had moved towards a more deregulated system, using a
variety of constitutional powers while retaining a role for the
Commission in adjudicating claims and implementing policy.
By contrast its political opponents had moved
away from third-party intervention altogether. Beginning in 1984,
Liberal Party policy abandoned the traditional conservative faith
in a strong arbitration system in favour of deregulated bargaining,
and increasingly advocated 'opting out' of the award system. By the
time of its 1992 industrial relations policy 'Jobsback,' the
Coalition was advocating the abolition of compulsory arbitration,
proposing an 'opting in' system in which the Commission's awards
would only be binding if mutually agreed by the parties. The policy
also endorsed the use of private arbitration to replace the
Commission in dispute resolution. By this stage the vocal employer
groups which had captured the initiative in the industrial
relations debate were pressing a completely deregulated individual
bargaining system. The Coalition's policy progressively followed
this approach.(220)
The Liberal-National Coalition Government
introduced its reforms less than three months after gaining power
at the March 1996 election. The Workplace Relations and Other
Legislation Amendment Bill made fundamental changes to the existing
legislation, including a change of its name to the Workplace
Relations Act. This and other amendments were indicative of a
complete transformation, one which minimised the Commission's role
in third-party dispute resolution and limited its regulatory
function. The Minister for Workplace Relations, the Hon. Peter
Reith (Liberal, Flinders, Vic), described the Bill as a break with
the conflict and paternalism of the existing system of industrial
relations by shifting the focus to employers and employees at the
workplace level.(221) Many of the key features of the
Bill had already been presented in the Coalition's critique of the
1988 Act: enterprise-based bargaining with minimal involvement of
the Commission, restricted intervention by unions in the direct
bargaining process, freedom of association notably the right of
non-membership, and more effective sanctions for industrial action
including court injunctions.
Under these changes, the role of the Commission
was changed dramatically. The Commission's arbitral powers were now
to be exercised 'as a last resort' rather than 'where necessary,'
and would normally be limited to a list of specified 'allowable
award matters' which would provide a 'safety net' of core standards
underpinning more comprehensive regulation by agreement. Beyond
this, the Commission was prevented from making binding
determinations unless bargaining had broken down and threatened to
cause harm to the economy or the community. However it could
continue to exercise conciliation functions to facilitate
bargaining, and could engage in voluntary arbitration with the
agreement of the parties. The power of the Federal Commission was
also limited if a matter was already being addressed by a State
tribunal.(222) In addition, the Industrial Relations
Court would be abolished and its functions returned back to the
Federal Court.
One of the Coalition's objectives was the
creation of greater choice over the type of agreement which the
parties could make. Hence if the parties decided to be bound by a
State-based industrial agreement, the traditional predominance of
the federal award was displaced and the State agreement took
precedence.(223) The Bill introduced Australian
Workplace Agreements (AWAs), a new form of industrial instrument
concluded on an individual basis between an employer and an
employee. The Commission would have no jurisdiction over AWAs,
which would come into force simply by being lodged with the
Employment Advocate. This was a new statutory office subject to
ministerial direction, responsible for encouraging bargaining and
protecting the rights of parties but not originally having the task
of vetting AWAs. It was originally envisaged that all kinds of
agreements would be expected to satisfy a series of minimum
conditions prescribed directly by the legislation, instead of the
'no disadvantage' test by which the Commission compared the total
terms of prospective agreements to those prevailing under existing
awards. The statutory minima proposed under the Bill included
well-accepted leave entitlements, and relied on wage rates set
under relevant awards of either the Australian Industrial Relations
Commission or a State industrial authority.(224)
The Australian Democrats had already indicated
their reservations over several aspects of the Bill, which was
referred to the Economics References Committee as soon as it
reached the Senate. With the major parties implacably divided, the
supplementary report by Democrats Senator Andrew Murray proved
decisive. According to this report, the Democrats' key principles
included 'support for a strong Industrial Relations Commission with
responsibilities for overseeing and maximising employment justice,
while delivering the best possible economic outcomes.' The
Democrats also believed that employees should have access to the
Commission as an 'independent umpire.' Where parties could not
agree on the form of regulation to apply, employees should have
'the protection of an adequate award, buttressed by compulsory
arbitration.'(225) The Democrats insisted that the
Commission should retain the power to arbitrate and make an award
beyond the allowable award matters 'where agreement cannot be
reached and resolution of the mater by arbitration would be in the
public interest.(226) It was also recommended that
agreements be judged using a no disadvantage test by comparison
with award entitlements, rather than the proposed list of statutory
minimum conditions.
After protracted negotiations between the
Minister, Mr Reith, and the leader of the Australian Democrats,
Senator Cheryl Kernot (Qld), an agreement was reached on amendments
acceptable to both parties which would allow the Bill to
pass.(227) While the Minister claimed that the changes
retained the 'basic integrity' of his proposals, the amended Bill
made significant concessions towards retention of the Commission's
role in a reduced form. Provision was made for the Commission to
include award terms beyond the allowable matters in exceptional
circumstances. Certified agreements would be subject to a global no
disadvantage test supervised by the Commission. The Employment
Advocate was given responsibility for approving AWAs after
ascertaining that the employee was not disadvantaged by its overall
terms and had genuinely consented to them. The Democrats insisted
that the Employment Advocate's new approval function would be
independent of direction by the Minister. In doubtful cases, the
Employment Advocate was also required to refer an agreement to the
Commission for a final decision on whether to approve it. To
prevent erosion of employees' conditions by resort to deregulated
State systems, federal awards and agreements could only be
displaced by State agreements which had been subject to an approval
process by an industrial authority (such as an arbitration
tribunal) using a no disadvantage test. Significantly the
compromise was reached outside the normal parliamentary process and
the jointly-sponsored amendments passed through the Senate without
further changes. In the process the Commission's role was retained
though recast: henceforth it would determine reasonable minimum
conditions, facilitate agreements and judge their fairness, but
would be called on to fully arbitrate disputes only in exceptional
or intractable situations. Further attempted amendments introduced
in 1999 were aimed largely at abolishing many of the compromises
made during the passage of the Workplace Relations Act. These
proposals were not proceeded with after they were rejected by the
Democrats on the grounds that the recent legislative changes had
not been shown to be defective and that further change should be
evolutionary in nature.(228)
While the Federal Parliament has mainly relied
on its industrial power to make laws in the field of labour
relations and employment, from time to time use has been made of
other constitutional sources of legislative power. The national
statutory system of occupational superannuation was introduced in
1992 by use of the taxation power after the Commission declined to
extend existing award superannuation provisions.(229)
The defence power was used during both world wars, and formed the
basis for extensive co-ordination of all kinds of
employment-related matters by the executive by means of regulations
made under the National Security Act 1939.(230)
Legislation was also passed to place coal production under the
control of a special Commissioner, while the defence power was also
used to expand the employment of women in occupations usually
performed by men 'for the purpose of aiding the prosecution of the
present war'.(231)
Extensive war-time regulation of the coal
industry continued beyond the cessation of hostilities when a
government inquiry under Justice Davidson recommended a national
system to revitalise the industry. As the judge saw it, the
constitutional impediments to Federal control could only be
overcome through voluntary co-operation by the coalmine owners,
with incentives in the form of bounties.(232) This
approach was rejected by Treasury officials as an unstable basis
for government intervention; a partial solution, applicable only to
the New South Wales coalfields, was reached instead, using the
unusual means of joint legislation passed by the Labor-dominated
Commonwealth and New South Wales Parliaments. While other aspects
of the industry were subjected to direct executive control by the
Joint Coal Board, industrial matters were placed in the hands of an
independent tribunal working by the traditional methods of
conciliation and arbitration.(233) The powers of the
Coal Industry Tribunal derived mainly from State plenary powers
together with the federal industrial power.(234) Use of
other powers and approaches in the industrial arena was apparently
deemed inappropriate or unnecessary.
Public
Service
The Commonwealth public service was at first
regulated directly by the Public Service Commissioner using the
Parliament's power to legislate for government departments under
section 52. However in 1911 the Labor Government used the same
constitutional power to transfer the setting of employment
conditions in the public service to a special arbitration scheme
administered by the Commonwealth Arbitration Court. This scheme
followed agitation by unions who found themselves shut out of
normal access to arbitration because public servants did not
constitute an 'industry' as the term was interpreted by the High
Court.(235) This resort to arbitration had the virtue of
absolving the Government from responsibility for dealing with
dissatisfaction with the Commissioner's decisions.(236)
The constitutionality of the measure was questioned by the
Opposition which doubted that Parliament could hand over its
legislative power and responsibility for the public service in this
way. In formal terms, though, the arbitrator's determinations
remained mere recommendations subject to disallowance by
Parliament. The latter requirement preserving the ideals of a
politically independent public service and the parliamentary
supervision of fiscal expenditure.(237) Even though a
royal commission was critical of the Arbitration Court's
'interference' in the administration of the service and urged that
the Public Service Commissioner should be the final arbiter of
disputes and grievances, the Hughes Government persisted with
employees' right of access to the independent scrutiny of an
external umpire, and in 1920 established a separate office of
Public Service Arbitrator who would be expert in administrative
matters.(238)
This policy was reversed by the Bruce-Page
Government which planned to replace the Public Service Arbitrator
with ad hoc arbitration committees based in part on the
Victorian system of wages boards. Although the Government stressed
that it was retaining the right of appeal to an independent
tribunal, the proposed committees would be limited to setting wage
rates while all other matters (including the equally contentious
issues of functions and classifications) would be left to the
expert prerogative of the Public Service Board. This scheme
prompted the public service unions to take the unusual step of
entering into political controversy, criticising the proposal as an
erosion of the tradition of independent arbitration and an
unprecedented limitation on the powers of the arbitrator. The
defeat of the Government at the 1929 elections, when the right of
public servants to access an independent arbitrator became a major
campaign issue, led the incoming Scullin Labor Government to
reaffirm the supremacy of the arbitrator over decisions of the
public service commissioners affecting employment
conditions.(239) The arbitrator retained complete
independence until 1952, when the Menzies Government introduced an
avenue of appeal to the Full Bench of the Arbitration Court. This
was opposed by the ALP on the grounds that there was no
constitutional need to do so and 'the appellate court in such cases
is the Parliament itself.'(240) The separate position of
Public Service Arbitrator was finally abolished in 1984 when its
functions were absorbed into the Conciliation and Arbitration
Commission.(241)
Trade and
Commerce
Of all the other possible heads of federal
legislative power, the trade and commerce power has received the
greatest use in industrial relations. Even so, because the
industrial power is regarded as the natural source of federal
labour law, its use has not been common. Also, like the industrial
power, the trade and commerce power is limited to interstate
matters, although it does not require the use of a particular
method (such as conciliation and arbitration) or depend on the
existence of an industrial dispute. At the beginning judicial
opinion was that the trade and commerce power could not be relied
on to regulate employment conditions generally unless the
employment was closely and substantially related to interstate
trade.(242) This requirement has most easily been
established in the shipping industry, where Federal power was
undisputed (although assumed not to extend to the distinct coastal
or intrastate shipping business).
The Bruce-Page Government used the trade and
commerce power to support the inclusion of sections 30J and 30K of
the Crimes Act in 1926. These provisions allow for criminal
prosecution of strikes or boycotts which threaten to disrupt trade
and commerce with other countries or among the States. The power
was also used by the same Government to enact the Transport Workers
Act in 1928, which was upheld as a valid exercise of the federal
commerce power because the definition of 'transport worker' in the
Act embraced only workers engaged in connection with international
or interstate trade or commerce.(243) On both these
occasions the provisions were criticised for overriding normal
industrial rights and processes, and just as vigorously defended as
an exceptional exercise of federal legislative power to meet a
national emergency. The 1928 Act was frequently evoked by the Lyons
Government when it threatened to intervene in maritime disputes
during the 1930s. Bruce's abortive attempt to withdraw the
Commonwealth from the field of industrial relations, except in the
maritime industry, was also based on the use of the trade and
commerce power. This attempt to repeal the Conciliation and
Arbitration Act and thus deactivate section 51(xxxv) of the
Constitution was, as we have seen, decisively rebuffed.
Most uses of the commerce power in industrial
relations have continued to be concentrated in the transport
sector. In 1947, arguing the need for greater efficiency and
industrial peace, the Chifley Government decided to continue the
Stevedoring Industry Commission, which had initially been set up
under wartime regulations using the defence power. As well as
taking over functions of the Arbitration Court in relation to
interstate industrial disputes, the Commission was authorised to
deal with all industrial matters relating to international or
interstate trade and commerce. Local employment committees were
also established under the commerce power.(244) Because
the head of the Commission needed to possess both independence and
industrial expertise, the legislation required that the position be
filled by a judge of the Arbitration Court or a conciliation
commissioner. However it was thought most appropriate to create a
new body separate from the Court because there were other
functions, such as running employment bureaux, which were not
appropriate for the Arbitration Court to exercise. The Stevedoring
Industry Commission was equally criticised by the Opposition for
the admixture of powers which were conferred on it, and for its
departure from a judicial model as exemplified by the Arbitration
Court.(245)
Two years later, this 'bold legislative
experiment' was abandoned when the Waterside Workers Federation
representatives refused to co-operate with the Commission. The
arbitral functions of the Commission were transferred to the
Commonwealth Arbitration Court as 'the most appropriate tribunal
for this industry.'(246) By acquiring use of the
commerce power, combined with the incidental power, the Court could
then regulate industrial matters in the stevedoring industry which
did not form part of an interstate industrial dispute, provided
that they were at least incidental to interstate trade and
commerce.(247) The application of the commerce power in
this fashion was subsequently held to constitute a valid exercise
of the Federal Parliament's legislative capacity.(248)
Problems of co-ordination between administrative and arbitral
functions remained, and the Tait Committee appointed by the Menzies
Government to review the industry recommended that the controlling
statutory agency be again vested with arbitral functions. This
approach was rejected as contrary to the beliefs of the
Liberal-Country Government that the same arbitration tribunal
should supervise all industries, and that hybrid agencies should be
avoided.(249)
The commerce power was also used in 1967 in a
similar way to enhance the reach of the Flight Crew Officers'
Industrial Tribunal, after the withdrawal of the airline pilots'
union from the arbitration system, the failure of collective
bargaining, and pressure by airlines for special legislation to
cover the industry.(250) The use of this power was
largely a safeguard, as the tribunal's powers and processes
conformed to the model of conciliation and arbitration; although it
relieved the tribunal of the need to find the existence of an
actual or probable industrial dispute, while also ensuring
jurisdiction over purely intrastate matters.
The various uses of the commerce power in
relation to the waterside, maritime and airline industries were
consolidated when the special tribunals in these areas were
amalgamated into the newly-created Australian Industrial Relations
Commission in 1988 following the recommendation of the Hancock
Committee. The current Act thus relies on the commerce power for
additional operation as a safeguard in case the legislation and
decisions made under it are not supported by the industrial
power.(251)
The commerce power was also used as the basis of
the boycott provisions contained in section 45D of the Trade
Practices Act, first enacted in 1977 and more recently restored and
expanded in 1996. In 1976 the Swanson Committee was established by
the incoming Coalition Government to advise the Minister for
Business and Consumer Affairs on changes to the Trade Practices
Act; its terms of reference included considering whether the Act
should be extended to 'anti-competitive conduct by employees, and
employee or employer organisations.' The Committee recommended that
the Act should allow for recourse by businesses against secondary
boycotts by employees and unions: because such tactics did not
involve an industrial dispute, but were aimed at an employer
indirectly by placing pressure on the employer's customers or
suppliers, they were constitutionally barred from being dealt with
by the arbitration system.(252) The Government was
initially open-minded as to whether the provisions should be
included in trade practices or industrial legislation, but
ultimately decided that industrial action involving boycotts should
not be distinguished from boycotts by business
competitors.(253)
Constitutional issues were not canvassed
directly during the parliamentary debate, though they were implicit
in the Opposition's criticisms that it was inappropriate to use
competition law to regulate industrial action. The introduction of
section 45D was also declaimed as a direct attack on unions,
particularly as the legislation prohibited primary industrial
boycotts if they hindered interstate or overseas trade, while also
making unions primarily liable for the acts of their
members.(254) The High Court confirmed the validity of
section 45D to the extent that it prohibited industrial action
hindering interstate or overseas trade. The Court saw no reason why
employment matters should be excluded from regulation under the
trade and commerce power provided the constitutional requirements
for the use of that power were met. As Justice Mason said, 'a law
with respect to overseas trade and commerce is a valid law and it
does not cease to be valid because it can also be characterised as
a law with respect to employment.'(255)
External
Affairs
It was not until 1936 that the High Court
confirmed that the external affairs power could be used as a source
of domestic legislative power in order to implement international
treaties entered into by the Commonwealth. While opinion was
divided on the extent to which the power could be used to support
domestic legislation, two judges, Evatt and McTiernan JJ, went so
far as to suggest that Conventions passed by the International
Labour Organisation (ILO) could be used to legislate nationally on
such subjects as standard hours of work.(256) However,
until recently the Commonwealth was unwilling to explore the use of
this head of power in the industrial arena. In 1945 the ACTU
Congress called on the Federal Labor Government to introduce a
national 40-hour week once hostilities had ceased, using the
external affairs power to implement an ILO Convention by
legislation. The Government refused, claiming it lacked the
constitutional power, although it was also concerned not to hamper
business profitability. Eventually in March 1946 an agreement was
reached between the Government and the unions to refer the matter
to the Arbitration Court. Regulations were passed allowing the
Court to hear claims for variation to both standard hours and the
basic wage.(257) While the Government's resort to the
Court rather than direct legislation managed to distance itself
from responsibility for the outcome, at the same time the Court was
the obvious body to undertake such an investigation.
Federal governments have traditionally been wary
of using the external affairs power to support domestic legislation
in case the federal balance of power was disturbed. The Industrial
Relations Reform Act of 1993 marked a significant departure from
this stance. Decisions of the High Court in the 1980s had already
confirmed that the external affairs power could support a broad
range of legislative initiatives.(258) In line with a
shift away from a centralised award system towards enterprise
bargaining, the Reform Act drew on ILO Conventions for the minimum
standards underpinning the new bargaining regime. International
labour standards formed the basis for major legislative innovations
in the areas of minimum wages, equal remuneration, parental leave,
unfair dismissal and protection for industrial action during
bargaining negotiations. In general terms, the Act now had the
object of 'providing the means for ensuring that labour standards
meet Australia's international obligations.'(259) The
use of the external affairs power in this way was condemned by the
Opposition as undermining the constitutional balance, presumably
since it allowed the Federal Parliament to legislate on employment
matters often previously considered the preserve of the
States.(260) Despite the novelty of federal intervention
in many areas, the High Court did not consider this to be a
constitutional impediment to the validity of the Reform Act. Most
of the Act's controversial provisions were held to be supported by
the external affairs power since they could reasonably be
considered appropriate and adapted to the implementation of
international conventions.(261)
So significant was the Reform Act's reliance on
international labour standards that it has been described as
ushering in 'the internationalisation of Australian industrial
law.'(262) Since that legislation, labour law in
Australia has, like never before, been evaluated in terms with its
compliance with ILO standards, and new legislation has regularly
been referred to the ILO's complaints machinery. This increased
concern with international compliance meant, for example, that
among the terms of reference for the Senate Economics References
Committee's inquiry into the Workplace Relations Bill (which
abolished most of the Reform Act's use of international standards)
was whether the measure 'will fulfil Australia's international
obligations' and 'will affect Australia's international relations.'
The Opposition-led majority of the Committee expressed concerns
that the Bill failed to ensure compliance with Australia's
obligations under ILO Conventions, although it must be admitted
that similar concerns could have been made of previous legislation
as well.(263)
Corporations
Early interpretations of the corporations power
assumed that it only extended to the activities of foreign, trading
and financial corporations as such, and could not therefore be used
to regulate matters properly characterised in some other manner,
such as employment or industrial relations.(264) This
view was abandoned when the High Court finally adopted an expansive
approach to the corporations power in the Concrete Pipes
case in 1971.(265) The corporations power has,
however, remained of infrequent resort in industrial relations. In
1977 it was used to support the secondary boycott provisions under
section 45D of the Trade Practices Act, a provision which was
upheld because the legislation was directed at the effects of such
boycotts on the business of trading corporations (although a
provision making unions automatically liable for the actions of
their members was found to exceed this constitutional basis because
it was substantially a law about trade unions).(266) The
corporations power was also relied on when the Industrial Relations
Commission was given authority in 1992 to determine whether a
contract involving an independent contractor was
unfair.(267) This provision was also found
constitutionally valid, though only to the extent that the contract
involved a corporation as a party; the mere fact that the contract
related to the business of a corporation was not
sufficient.(268)
The enterprise bargaining provisions of the
Industrial Relations Reform Act were also partly underpinned by the
corporations power. While the main bargaining avenue relied on the
industrial power, requiring certified agreements to be made between
parties to an industrial dispute, the amendments additionally
allowed for enterprise flexibility agreements between a corporation
and individual employees. The aim of using the corporations power
was to avoid the constitutional restrictions imposed by the
industrial power, allowing non-unionists to participate in
enterprise bargaining by allowing agreements to be made directly
between an incorporated employer and its employees.(269)
While the scope for bargaining was thus expanded by the Reform Act,
it still remained integrated within the existing industrial
relations system: both types of agreement had to be certified by
the Commission, satisfying a 'no disadvantage' test when compared
with an existing Federal award. Thus only employees already covered
by a federal award could become parties to an enterprise
flexibility agreement; a requirement which was also justified by
the Minister for Industrial Relations, the Hon. L. J. Brereton
(Labor, Kingsford-Smith, NSW), in order 'to avoid intrusion into
the State jurisdictions.'(270) Nor were unions
altogether excluded from enterprise flexibility agreements:
relevant unions were entitled to appear at Commission certification
hearings, and could also agree to be bound by such
agreements.(271) While in force, enterprise flexibility
agreements could override an inconsistent award, but were
subordinate to an existing Federal certified
agreement.(272) They remained little-used, at least
partly because of the strict statutory requirements for their
certification.(273)
Because these recent usages of the corporations
power have been found constitutionally valid, the possibility has
emerged that the limitations of the industrial power could be
avoided by extensive resort to this power. Various proposals have
been made for using the corporations power as the basis for
bargaining regimes, as either a supplement or an alternative to
arbitration.(274) While such legislation would not
extend to unincorporated employers, the majority of work
relationships could be touched in this way. Most recently, the
former Minister for Workplace Relations, the Hon. Peter Reith,
flagged a proposal to replace the use of the industrial power with
a widespread reliance on the corporations power. At an address to
the National Press Club in March 1999, he described the
corporations power as being able to discard 'in one legislative act
the complexity and cost created by paper disputes, ambit logs of
claim, dispute findings, notional interstateness, competing award
respondency and dual registration.'(275) The use of the
corporations power would not limit federal legislation in the
processes used; conciliation and arbitration might still be
available but would not be a mandatory aspect of the system. The
appeal of the corporations power was more than a matter of
convenience: it carried a message that the system would no longer
focus on unions and state-created tribunals.
H. V. Evatt remarked in 1939 that 'in Australia,
the intervention of the legislature in labour relations and
industrial disputes has long been accepted as a postulate of
political life.'(276) By international standards, the
level of government legislative action on industrial relations in
the past century has been exceptionally high. Nearly all this
activity at the national level has been indirect in nature, founded
on the industrial power under section 51(xxxv) of the Constitution,
despite the potential for other heads of power to be used. This
focus on conciliation and arbitration has been due not to inertia
but to the vision contained in the industrial power itself. As
Justice Michael Kirby has put it, the advent of arbitration:
was in part, out of conviction that the court
analogy could provide a just solution to the disputes between
employer and employee which had plagued earlier colonial times. It
was in part, out of the perceived incapacity of the other heads of
power to provide a more direct means for Federal regulation. It was
in part, the result of the view that here was a provision
specifically enacted as the charter for Federal legislation in
industrial relations-not by direct legislative control but through
a tribunal intermediary set up to discharge the functions of
conciliation and arbitration.(277)
Throughout nearly the whole past century,
industrial relations policy has been measured and marked by a
persistent adherence by governments to an ideal of compulsory
conciliation and arbitration, a scheme seen as embodied in the
Constitution and taken to be embedded deeply in the national
sentiment as a 'fair go.' In the popular phrase, this ideal has
been regarded as the right of employees, especially the most needy
and powerless, to have ready access to an independent umpire for
the settlement of their claims and grievances. That umpire,
moreover, would decide the issues in a spirit of judicious fairness
and generosity according to generalised notions of equity and the
merits of the case, as represented in such diffuse concepts as
industrial justice and a 'fair and reasonable' living wage.
This is not to say that industrial relations
policy has been bipartisan throughout the period, or that the
elements of section 51(xxxv) have been met with unswerving
adherence. In fact, the boundaries and many of the constituent
elements of compulsory arbitration have remained the subject of
political controversy ever since its establishment. Attitudes to
proposals for legislative change have tended to divide predictably
along party lines, which has limited the degree of success of
reforms. A recent study by Fox and Pittard has shown that of the 95
industrial relations Bills introduced into the Commonwealth
Parliament since 1956, one-third have failed to pass into law.
While most proposals have met with strong political disagreement,
there has been common support for retaining an independent
arbitration tribunal. Just over half the proposed amendments have
dealt with arbitration, awards and the tribunal
structure.(278)
Industrial relations policy has tended to be
seen as a political rather than a technical matter, with frequent
debate focused in Parliament. Instead of relying on independent
commissions of inquiry, governments have usually resorted to
informal consultation with peak organisations representing unions
and employers, as well as the Commission itself, or through more
formal tripartite mechanisms such as the National Labour
Consultative Council.(279) Official inquiries were used
particularly during the restructuring of industrial relations in
the coal and maritime industries during 1947-56, and in the review
by the Hancock Committee in the 1980s. More often, changes to
federal industrial legislation have been the result of formulated
party policy. Even when inquiries have been used, they have not
tended to question the fundamental basis for state regulation but
have been limited to finding more rational and efficient mechanisms
for achieving such regulation, and for dealing with the division
between Federal and State powers.
This picture changed in the 1990s when most
industrial relations legislation was referred to Senate committees
for scrutiny. Largely due to the more prominent position of minor
parties (combined with the more contentious nature of the changes
proposed), there were seven such referrals to Senate committees
during the 1990s, compared with only one in the 1980s and none in
the 1970s. Since 1996 the use of Senate committees to analyse the
impact of legislative changes has become routine.(280)
Such committees are able to draw on expert submissions and
evidence, as well as gaining the opinions of unions and employer
associations. They have thus provided a more open substitute for
the tripartite consultative mechanisms which were abolished by the
Liberal-National Government.
All sides of Parliament have routinely stressed
the need to ensure that industrial tribunals maintain independence
from government. Of particular concern has been the risk that
tribunal members might be placed under financial pressure; hence
remuneration of tribunal members, like that of judges, has
generally been placed beyond control by the executive. For this
reason, the protection which judges of the Arbitration Court
enjoyed against arbitrary removal from office was continued after
1956 when the Court was replaced by a Commission, and similar
protections have been extended to members of specialist industrial
tribunals, even those appointed for limited terms. One exception
was the Flight Crew Officers' Industrial Tribunal which was created
in 1967. The Labor Opposition strongly objected to the proposal not
to give the presiding member tenure as a member of the Arbitration
Commission and to allow the salary to be set without parliamentary
scrutiny. The Government was forced to accept an amendment to bring
the terms of appointment into conformity with other
positions.(281)
Concern over independence of the Commission was
again sparked by the Howard Government's 1999 legislative
proposals, which included provision for the appointment of members
for limited terms as well as acting Commissioners. These proposals
were criticised by several groups as threatening the Commission's
independence. Similar ideas had been rejected by the Hancock
Committee in 1985 for just this reason. While disagreeing with the
criticisms, the majority of the Senate Committee reviewing the
proposals accepted 'that it is of vital importance to maintain
public confidence in the impartiality and independence of the
Commission.'(282)
Governments of all persuasions have still sought
to influence outcomes by procedural changes, either by providing
restrictions on who could make decisions on certain matters, or by
requiring the tribunal to take certain matters into account. After
Justice Higgins had awarded a 44-hour working week to timber
workers and announced his intention to review the whole issue of
reducing hours across industry, the Commonwealth Parliament passed
legislation which specifically prescribed that the alteration of
the standard week could only be considered by a majority among at
least three judges of the Arbitration Court. It was widely accepted
that this move was designed to prevent Higgins' views from
prevailing.(283) This approach has continued to be used
by governments, apparently in the belief that a three-person Full
Bench would tend to produce more economically responsible and
conservative decisions as well as promote consistency.
Other indirect controls have involved creating
avenues of appeal to promote consistency and economic
'responsibility.' When conciliation commissioners were given the
power to make awards under the 1930 amendments, the Opposition
insisted that their decisions be made appealable to the Full Court
in any matter which affected wages, hours or the public interest,
although awards of a single judge remained unreviewable. While the
original scheme of the 1947 changes was to give greater
independence to conciliation commissioners and their decisions were
not subject to appeal, in 1952 this was expanded to allow important
matters to be referred to a Full Bench on appeal if the Chief Judge
considered it to be in the public interest.(284) Changes
introduced in 1976 allowed the Government, through the relevant
minister, to seek a Full Bench review of a single commissioner's
decision if the minister thought it to be contrary to the public
interest.(285)
Further legislative intervention has allowed
direct government participation in hearings. In 1926 the
Attorney-General was given standing to intervene in matters
involving standard hours or the basic wage; in 1952 this was
changed to allow intervention in any type of
matter.(286) Government attitudes before the tribunal
have ranged from impartiality to that of an interested party, but
traditionally the arbitrators were keen to show their independence
while recognising the Government's views as statements of popular
will and indicators of public policy.(287)
There have been more obvious attempts by
governments to influence arbitration outcomes through legislative
direction. The Bruce-Page Government's inclusion of a requirement
that the Commonwealth Arbitration Court must take into account the
economic effects of its decisions was introduced in the wake of the
Court's move towards a standard 44-hour week. It was repealed by
the Scullin Government in 1930 on the ground that the Court should
not be instructed by the legislature and that the Government alone,
as 'trustee for the people,' should be responsible for public
policy. Disquiet in the Opposition-controlled Senate was assuaged
by a statement from the President of the Arbitration Court, Chief
Justice Dethridge, that the Court had always taken such
considerations into account and would continue to do
so.(288) Thenceforth, consideration of public interest
issues was expected but not mandatory.
From the beginning the Court could dismiss any
matter if it appeared to it that further proceedings were 'not
necessary or desirable in the public interest.'(289) The
definition of 'industrial matters' was changed as early as 1910 to
include 'questions of what is right and fair in relation to an
industrial matter having regard to the interests of the persons
immediately concerned and of society as a whole.' This formula was
used by the Court in 1944 in determining whether a five-day working
week should be introduced.(290) In 1972 a new amendment
was inserted stating that when sitting as a Full Bench:
The Commission shall, in considering the public
interest, have regard, in particular, to the state of the national
economy and the likely effects on that economy of any award that
might be made in the proceedings.(291)
Amendments in 1976 added that the Commission
should take specific account of inflation and unemployment; this
change was described as not only unnecessary (since the Commission
already did so) but an 'attempt to intimidate the Commission'
especially as a national wage case was then in
progress.(292) On the recommendation of the Hancock
Committee, under the 1988 legislation the requirement to consider
economic effects was extended to all matters before the Commission
and the instruction to take account of the public interest made
more prominent. However the Committee was not prepared to recommend
anything which would 'involve intrusion by the legislature directly
on the Commission' and might result in erosion of the Commission's
independence, on which its public confidence
depended.(293)
In recent years many commentators have perceived
a considerable decline in the autonomy of the Commission. By the
late 1980s a number of changes to the personnel, structure and
remuneration of the Commission led to concerns that its
independence was being compromised. The issue of greatest symbolic
significance was the Government's decision not to reappoint Justice
Staples to the new Industrial Relations Commission when it replaced
the Conciliation and Arbitration Commission in
1989.(294) The passage of the Industrial Relations Act
1988 signified a greater willingness by government to direct the
Commission's decision-making, by requiring attention to
anti-discrimination principles as well as State apprenticeship and
safety laws, while providing for uniformity of employment
conditions within an industry.(295) Such provisions
still recognised the Commission's independence by stopping short of
prescribing the actual outcome of decisions. In the early 1990s the
Federal Labor Government's attempts to hasten the spread of
enterprise bargaining saw a series of amendments which
progressively limited the discretion of the Commission to refuse
certification of agreements on public interest
grounds.(296)
Most recently, under the Workplace Relations Act
the Parliament has instructed the Commission to give primacy to
bargaining rather than conciliation and
arbitration.(297) More importantly in terms of
parliamentary interference, the discretion of the Commission has
been circumscribed by limiting the range of issues which can
normally be addressed in the arbitration of an industrial dispute
to a list of allowable award matters.(298) This is the
first time that Parliament has sought to affect the outcome of
Commission decisions through legislation by restricting the actual
content of awards. It is for this reason that Justice Kirby has
described the High Court's validation of this amendment as one
which 'breaks nearly a century of previously unbroken
constitutional authority' by allowing Parliament to change the
solution reached in an award, and thus producing 'a radical
enlargement of the Federal legislative power under section
51(xxxv).'(299) Even here, though, the legislation is
not completely prescriptive and reserves some discretion to the
Commission to arbitrate on a future matter if satisfied that it is
exceptional, will not be resolved by conciliation and would result
in a harsh or unjust outcome if not included in an
award.(300) The High Court has long emphasised that
while the legislature may prescribe the procedure used in settling
industrial disputes, the Parliament's power under section 51(xxxv)
does not extend to telling the Commission how it shall calculate
the outcome of an arbitration.(301)
The increased prescription of Commission
functions reflects a heightened concern by successive governments
to increase the rate of change in the industrial relations system,
and a diminution of trust in the Commission's ability to produce
that change.(302) As a former deputy president of the
Commission, Mr J. E. Isaac, commented to the Senate committee
reviewing the current Government's proposed amendments in 1999:
Until recently, the changes in principles and
procedures of the Federal tribunals have been driven not so much by
legislation as by the exercise of the wide discretion available to
tribunals within the statute. This discretion manifested itself in
a number of ways... . All these changes were made on the basis of
submissions in proceedings by parties and interveners, including
governments, without legislative prompting. Since 1993, legislation
has been the prime mover in the changed approach of the ...
Commission to the settlement of disputes and determination of
awards.(303)
The last decade has witnessed an increase in the
legislature's active intervention in industrial relations which is
unprecedented except, perhaps, for the 1920s. In tandem with this
development, the structure and machinery of industrial law and
relations, and even its constitutional framework, have become ever
more politicised, the subject of election debate and policy in a
way not seen for the last seventy years.
Despite, or perhaps because of, these trends, it
is likely that the industrial power will continue to be the
mainstay of federal legislative authority in the field of
industrial relations. Although other constitutional powers,
particularly the corporations power, have recently attracted
enthusiasm from several quarters, they still lack
comprehensiveness. The corporations power does not cover
unincorporated employers and its limits in the employment area are
untested, while the external affairs power is limited in
subject-matter to the terms of ILO standards. Such powers will
however continue to be used as valuable supplementations to the
industrial power, as in the legislation of 1993 and
1996.(304)
There are several reasons why the industrial
power is likely to retain its primary significance. Most of the
reasons given over the years for retention of the arbitration
system still have force. The division of responsibilities between
the Commonwealth and the States is a powerful source of inertia
favouring the retention of arbitration. While the Commonwealth
could conceivably arrogate to itself full responsibility for
employment matters by the use of alternative constitutional powers,
such a move would meet strong political hostility in defence of
federalism and States' rights. In any case, there would still
remain some areas of employment regulation not covered by federal
power and which would need to be filled by State legislation. The
broad interpretation given to the industrial power by the High
Court since the 1980s has reduced most of the former obstacles
limiting the federal arbitration jurisdiction, although it still
remains a complex and technical matter to institute
proceedings.
Indirect regulation through an independent
tribunal remains a useful means of delegating power and
responsibility, and an effective way to limit the politicisation of
industrial relations issues. It is also unlikely that government
will totally abrogate the economic policy and regulatory functions
of the Commission, although the dispute resolution role may decline
further under the decentralised bargaining regime. Besides this, it
does seem that arbitration as an institution still has a large
measure of popular legitimacy as well as political support. The
progress of the 1996 legislation suggests that any major
legislative proposal, if it is to succeed, will need to retain an
independent arbitral body to set minimum conditions, oversee
fairness in bargaining and settle more serious disputes.
-
- This Paper is current at 31 May 2001.
- M. Perlman, Judges in Industry: a study of labour
arbitration in Australia, Melbourne University Press,
Melbourne, 1954, ch. 2; J. Romeyn, 'Towards a Motivational Theory
of Arbitration in Australia', Journal of Industrial
Relations, vol. 22, 1980, pp. 186-7; C. B. Fox,
W. A. Howard and M. J. Pittard, Industrial Relations in
Australia: Development, Law and Operation, Longman, Melbourne,
1995, pp. 485-8.
- See M. Rimmer, 'The Workplace Relations Act 1996: An Historical
Perspective', Australian Bulletin of Labour, vol. 23, no.
1, 1997, pp. 74-5.
- Convention Debates, Sydney, 2 March to 9
April, 1891, 3 April 1891, p. 688.
The Convention Debates will be cited as
follows:
Official Record of the Proceedings and Debates
of the National Australasian Convention Debates, Sydney,
2 March to 9 April 1891, Government Printer, Sydney,
1891, cited as Convention Debates, Sydney, 1891.
Official Report of the National Australasian
Convention Debates, Adelaide, 22 March to 5 May 1897,
Government Printer, Adelaide, 1897, cited as Convention Debates,
Adelaide, 1897.
Official Record of the Debates of the
Australasian Federal Convention, Sydney, 2 September to
24 September 1897, Government Printer, Sydney, 1897, cited as
Convention Debates, Sydney, 1897.
Official Record of the Debates of the
Australasian Federal Convention, Melbourne, 20 January to
17 March 1898, Government Printer, Melbourne, 1898,
vol. 1., 20 January to 22 February 1898, vol. 2.,
22 February to 17 March 1898, cited as Convention Debates,
Melbourne, 1898.
- South Australian Parliamentary Debates, 17 December
1890, col. 2507-9; New South Wales Royal Commission on Strikes,
Report, Minutes of Evidence and Appendices, Government
Printer, Sydney, 1891, Minutes of Evidence pp. 233-9,
Conciliation Appendix pp. 71-5; R. Mitchell, 'State
systems of Conciliation and Arbitration: the Legal Origins of the
Australasian Model', in S. Macintyre and R. Mitchell, eds,
Foundations of Arbitration: The Origins and Effects of State
Compulsory Arbitration, 1890-1914, Oxford University
Press, Melbourne, 1989; A. Frazer, Law and Industrial
Arbitration in New South Wales, 1890-1912, PhD
thesis, Australian National University, 1990, pp. 91-4. It is
Kingston who was most likely the progenitor of the Australasian
system of compulsory conciliation and arbitration.
- L. F. Crisp, Federation Fathers, Melbourne University
Press, Melbourne, 1990, p. 299.
- Convention Debates, Sydney, 6 April 1891,
pp. 781-5.
- Frazer, Law and Industrial Arbitration in New South
Wales, op. cit., pp. 57-76, 100-101, 114-6; P. G.
Macarthy, 'Victorian Wages Boards: their Origin and the Doctrine of
the Living Wage', Journal of Industrial Relations, vol.
10, 1968, pp. 116-32; R. Francis, The Politics of Work:
Gender and Labour in Victoria 1880-1939, Cambridge University
Press, 1993.
- J. Quick and R. Garran, The Annotated Constitution of the
Australian Commonwealth, Angus & Robertson, Sydney, 1901,
p. 646.
- Convention Debates, Adelaide, 1897, 17 April 1897,
p. 782.
- ibid., pp. 782, 791.
- ibid., p. 792.
- ibid., pp. 784-7.
- Convention Debates, Melbourne, 1898, 27 January 1898, vol. 1,
pp. 186, 213.
- ibid., pp. 189, 192.
- ibid., p. 208.
- ibid., pp. 203, 213.
- ibid., p. 210; J. A. La Nauze, The Making of the
Australian Constitution, Melbourne University Press, 1972,
p. 208. Forrest introduced compulsory arbitration legislation
to his own colony in 1900 in order to gain political support: N. F.
Dufty, 'The Genesis of Arbitration in Western Australia',
Journal of Industrial Relations, vol. 28, 1986,
pp. 545-63.
- Senate and House of Representatives, Debates, 19
October 1910, p. 4810.
- Daily Telegraph, 18 January 1901; R. Norris, The
Emergent Commonwealth: Australian Federation Law: Expectations and
Fulfilment 1889-1910, Melbourne University Press, 1975,
pp. 66-7.
- A recent biography argues that Kingston resigned for personal
and family health reasons: M. Glass, Charles Cameron
Kingston: Federation Father, Melbourne University Press, 1997,
pp. 218-9.
- Senate and House of Representatives, Debates, 30 July
1903, pp. 2859-60, 2880.
- ibid., p. 2863. It was commonly thought at the time that
the Act would set minimum wages directly: see Deakin, ibid., 22
March 1904, p. 764.
- ibid., 30 July 1903, p. 2870.
- ibid., 8 September 1903, p. 4788; ibid., 9
September 1903, p. 4838; Norris, Emergent
Commonwealth, op. cit., pp. 189-190. Deakin's
concerns over the inclusion of State government railway workers
were later vindicated when the High Court struck down this aspect
of the eventual Act: Federated Amalgamated Government Railway
and Tramway Service Association v. N.S.W. Railway Traffic
Employees' Association (Railway Servants Case) (1906)
4 CLR 488.
- Senate and House of Representatives, Debates, 21 April
1904, p. 1244.
- Senate and House of Representatives, Debates, 10
August 1904, p. 4029; G. Sawer, Australian Federal
Politics and Law 1901-1929, Melbourne University Press,
Melbourne, 1963, p. 38.
- Senate and House of Representatives, Debates, 8
December 1904, p. 8089.
- Arthur Bruce Smith, (Free Trade, Parkes, NSW), ibid., 12 August
1903, p. 3459
- ibid., 6 August 1903, p. 3190.
- Mr. P. Glynn, (Free Trade, Angas, SA) ibid., 13 April 1904,
p. 888; Mr D. Thomson, (Free Trade, North Sydney, NSW) ibid.,
p. 906; G. B. Edwards, (Free Trade, South Sydney, NSW),
ibid., 14 April 1904, p. 1018.
- G. H. Reid, ibid., 24 June 1904, p. 2688; ibid.,
1 December 1904, pp. 7763, 7772-3; Sawer, Australian
Federal Politics and Law 1901-1929, op. cit.,
pp. 44-5.
- D. H. Plowman, Holding the Line: Compulsory Arbitration and
National Employer Co-Ordination in Australia, Cambridge
University Press, Melbourne, 1989, pp. 11-22; D. Plowman
and G. Smith, 'Moulding Federal Arbitration: the Employers and
the High Court, 1903-1935', Australian Journal of
Management, vol. 12, 1986, pp. 203-229.
- Senate and House of Representatives, Debates, 28 June
1901, pp. 1819-27; ibid., 29 Aug 1901, p. 4296; Norris,
Emergent Commonwealth, op. cit., p. 191; J.
Rickard, H. B. Higgins: The Rebel as Judge, George
Allen & Unwin, Sydney, 1984, p. 129.
- Ex p. H. V. McKay (1907) 2 CAR 1; P. G. Macarthy,
'Justice Higgins and the Harvester Judgment', Australian
Economic History Review, vol. 9, 1969, pp. 17-38.
- The King v. Barger (1908) 6 CLR 41.
- Sawer, Australian Federal Politics and Law 1901-1929,
op. cit., pp. 83-4.
- Senate and House of Representatives, Debates, 8
November 1907, p. 5780; ibid., 13 March 1908, p. 8994;
ibid., 22 May 1908, p. 11 382. The Harvester
principle was followed in Marine Cooks, Bakers and Butchers'
Association of Australia v. Commonwealth Steam-Ship Owners'
Association (1908) 2 CAR 55 at 60; Barrier Branch of the
Amalgamated Miners' Association v. Broken Hill Proprietary Company
Ltd (1909) 3 CAR 1 at 21; Australian Boot Trade Employees'
Federation v. Whybrow and Co. (1910) 4 CAR 1 at 10; see also
H. B. Higgins, A New Province For Law and Order,
Constable, London, 1922, pp. 5-7.
- P. M. McGlynn (August 1909), 'Memorandum Relating to (I) the
Australian Industries Preservation Act, and (II) the Industrial
Power: Together with Suggestions for the Amendment of the
Constitution in Relation to Trusts and Industrial Matters',
Commonwealth Parliamentary Papers, General, 1910, vol. 3,
p.3.
- J. H. Catts, (Labor, Cook, NSW), Senate and House of
Representatives, Debates, 19 October 1910,
p. 4833; Royal Commission on the Constitution,
Report, Government Printer, Canberra, 1929, p. 182.
- Sydney Morning Herald, 27 January 1903, p. 13.
- Australian Boot Trade Employees Federation v. Whybrow and
Co. (1910) 4 CAR 1 at 42.
- Commonwealth Conciliation and Arbitration Act 1904-10
(Cwlth), s. 4, amended by Commonwealth Conciliation and
Arbitration Act 1910 (Cwlth), s.2(b); M. Lee, The
Industrial Peace Act, 1920: A Study of Political Interference in
Compulsory Arbitration, MEc Thesis, University of Sydney,
1980, p. 63. The validity of the extended meaning of
'industrial dispute' was upheld in Merchant Service Guild of
Australasia v. Newcastle and Hunter River Steamship Co Ltd (No
1) (1913) 16 CLR 591.
- Senate and House of Representatives, Debates, 18
October 1910, pp. 4697, 4708. On Labor attitudes to the High
Court, see also Senator Rae, (Labor, NSW), ibid., 13 July
1910, p. 304.
- L. F. Fitzhardinge, William Morris Hughes: A Political
Biography; vol. 1, That Fiery Particle, 1862-1914,
Angus & Robertson, Sydney, 1964, p. 258.
- A. Deakin, Senate and House of Representatives,
Debates, 19 October 1910, pp. 4812, 4815, 4827; Sir
J. Quick, (Protectionist, Bendigo, Vic.), ibid., 20 October 1910,
pp. 4932, 4934; Sir J. Cook, (Liberal, Parramatta, NSW),
ibid., 21 October 1910, p. 5035.
- Senate and House of Representatives, Debates, 19
October 1910, p. 4825.
- C. Joyner, Holman versus Hughes: Extension of Australian
Commonwealth Powers, University of Florida Press, Gainesville,
1961, p. 28; H. V. Evatt, Australian Labour Leader: The
Story of W. A. Holman and the Labour Movement, Angus &
Robertson, Sydney, 1942, pp. 264-5.
- Senate and House of Representatives, Debates, 20
November 1912, p. 5685. Paragraph (c) dealing with strikes and
lockouts was added after the Bill was introduced.
- W. M. Hughes, (Labor, West Sydney, NSW) ibid., pp. 5687,
5693.
- W. G. Spence, ibid., 20 November 1912, p. 5734.
- Mr Archibald, (Labor, Hindmarsh, SA), ibid., 20 November 1912,
p. 5719; W. G. Spence, ibid., p. 5732-3; also W. M.
Hughes, ibid., p. 5686.
- ibid., p. 5734.
- Federated Engine-Drivers and Firemen's Association of
Australasia v. Broken Hill Proprietary Co. Ltd (1913) 16 CLR
245; Lee, Industrial Peace Act, op. cit., p. 39.
- S. Bennett and S. Brennan, 'Constitutional Referenda in
Australia', Research Paper no. 2, 1999-2000, Department of
Parliamentary Library, Canberra, 1999, endnote 10.
- W. M. Hughes, Senate and House of Representatives,
Debates, 23 Jun 1915, p. 4256, Sir J. Cook,
ibid., 18 June 1915, pp. 4195, 24 Jun 1915
pp. 4325-6.
- Senator Mullen, ibid., 11 November 1915, p. 7459;
Evatt, Australian Labour Leader, op. cit.,
p. 368; Joyner, Holman versus Hughes, op. cit.,
p. 49.
- Farey v. Burvett (1916) 21 CLR 433 (power to fix price
of bread); Joyner, Holman versus Hughes, op. cit.,
p. 51.
- Senate and House of Representatives, Debates, 1
October 1919, pp. 12846-7. The parliamentary Labor party
opposed this method, claiming that it was inadequate and conflicted
with the party's aim of seeking permanent expansion of Federal
powers.
- W. M. Hughes, ibid., 1 December 1921, p. 13473;
Lee, Industrial Peace Act, op. cit., p. 21 ff;
Royal Commission on the Constitution, Report,
op. cit., p. 182.
- Mr Brennan, (Labor, Batman, Vic.), Senate and House of
Representatives, Debates, 30 November 1921,
pp. 13403-4; J. J. Macken, Australian Industrial Laws: The
Constitutional Basis, 2nd edn, Law Book Co, Sydney, 1980,
pp. 255-6.
- Federated Felt Hatting Employees Union of Australasia v.
Denton Hat Mills Ltd (1914) 18 CLR 88 per Griffith CJ at
91.
- Merchant Service Guild of Australasia v. Newcastle and
Hunter River Steamship Co. Ltd (No. 1) (1913) 16 CLR 591.
An expansive approach to the prevention power had been taken by
Isaacs and Higgins JJ in R v. Commonwealth Conciliation and
Arbitration Court; ex p. Whybrow & Co. (1910) 11 CLR
1.
- R v. Commonwealth Court of Conciliation and Arbitration; ex
p. G. P. Jones (Builders Labourers' Case) (1914) 18 CLR 224;
R v. President of the Commonwealth Court of Conciliation and
Arbitration; ex p. William Holyman & Sons Ltd (1914) 18
CLR 273.
- S. M. Bruce, (Nationalist, Flinders, Vic.), Senate and House of
Representatives, Debates, 1 Mar 1923, p. 86.
- M. Charlton, (Labor, Hunter, NSW), ibid., 14 June 1923,
p. 66.
- Sydney Morning Herald, 18 May 1926, p. 9;
Worker, 26 May 1926, p. 1.
- S. M. Bruce, Senate and House of Representatives,
Debates, 20 May 1926, pp. 2164, 2168.
- J. G. Latham, ibid., 9 June 1926, p. 2837.
- S. M. Bruce, ibid., 20 May 1926, p. 2164; Worker,
16 June 1926, p. 16
- M. Charlton, Senate and House of Representatives,
Debates, 2 June 1926, p. 2544; W. A. Watt,
(Nationalist, Balaclava, Vic.), ibid., p. 2926 (10 June 1926);
Worker, 30 June 1926, p. 15; A. Wildavsky, 'The 1926
Referendum', in A. Wildavsky and D. Carboch, Studies in
Australian Politics, Cheshire, Melbourne, 1958, p. 12.
- Royal Commission on the Constitution, Report, op.
cit., p. 248. For the history of the Royal Commission, see C.
Saunders, 'The Parliament as Partner: A Century of Constitutional
Review', Research paper no. 2, 2000-01, Department of the
Parliamentary Library, Canberra 2000, pp. 15-16.
- Royal Commission on the Constitution, Report,
op. cit., pp. 245, 302. T. R. Ashworth, president of the
Victorian Employers' Federation, also recommended giving the
Federal Parliament unlimited power in order to reduce complexity
and promote efficient management by Cabinet.
- D. H. Drummond, 'The General Case for Revision of the
Constitution', in David Maughan et al., Constitutional Revision
in Australia, Australasian Publishing Co., Sydney, 1944,
p. 37.
- Constitutional Alteration (Post War Reconstruction and
Democratic Rights) Bill 1944; Report from the Joint Committee on
Constitutional Review, 1959, Senate and House of
Representatives, Papers 1959-60, vol. 3, p. 403, para
732; House of Representatives Standing Committee on Legal and
Constitutional Affairs, Constitutional Change: Select Sources
on Constitutional Change in Australia, 1901-1997, AGPS,
Canberra, 1997, pp. 82-7.
- Report from the Joint Committee on Constitutional Review, 1959,
op. cit., p. 403, paras 727-32.
- ibid., para 762. One member, Mr Downer, dissented on this
point, considering that bringing the details of industrial matters
into the political arena could result in parties making uneconomic
election promises in order to gain votes.
- ibid., para 779.
- ibid., paras 767, 783.
- R v. President Commonwealth Conciliation and Arbitration
Commission; ex p. Association of Professional Engineers (1959)
107 CLR 208; D. Thomson, 'Professional Engineers' Case',
Australian Law Journal, vol. 34, 1960, p. 46.
- J. T. Ludeke, 'The Reference of Industrial Powers from the
States to the Commonwealth', Australian Law Journal, vol.
54, 1980, pp. 88-91; C. Saunders, 'Constitutional Problems and
Intergovernmental Solutions', in J. Aldred, ed., Industrial
Confrontation, George Allen & Unwin, Sydney, 1984,
pp. 64, 68.
- I. M. Macphee, (Liberal, Balaclava, Vic.), House of
Representatives, Debates, 21 October 1982, p. 2378;
see Conciliation and Arbitration Act 1904-83,
ss. 44B, 44C, inserted by Conciliation and Arbitration
Amendment Act (No. 2) 1983 (Cwlth), s. 11.
- Conciliation and Arbitration Act 1904-80, s. 4A,
inserted by Conciliation and Arbitration Amendment Act (No. 2)
1980 (Cwlth); later Industrial Relations Act 1988,
s. 177. See also Industrial Arbitration Act 1940
(NSW), s. 38E.
- In R v. Duncan; ex p. Australian Iron and Steel Pty
Ltd (1983) 158 CLR 535.
- Industrial Relations Act 1988 (Cwlth), Pt VII.
- Committee of Review into Australian Industrial Relations Law
and Systems, Report, AGPS, Canberra, 1985, vol. 1
pp. 2-6; vol. 2, pp. 270-295 esp. p. 278.
- ibid., pp. 277, 318, 334.
- Commonwealth Powers (Industrial Relations) Act 1996
(Vic.), s. 4; Workplace Relations Act 1996 (Cwlth),
Pt XV, schedule 1A. The reference only extends to the matters
explicitly mentioned. An exception is made for State public sector
employees and law enforcement officers: see Dempster v.
Comrie (2000) 96 FCR 570.
- Proceedings of the Australian Constitutional
Convention, Government Printer, Adelaide, 1983, vol. 1,
pp. 224-7, 323.
- Constitutional Commission, Advisory Committee on the
Distribution of Powers, Report, Commonwealth of Australia,
Canberra, 1987, p. 35.
- Final Report of the Constitutional Commission, AGPS,
Canberra, 1988, vol. 2, p. 800.
- ibid., p. 800.
- Conciliation and Arbitration Act 1904,
s. 41(1)(d)(ii), originally s. 38(h); P. R. Gray and
S. R. Marshall, 'Yielding the field: the Australian
Industrial Relations Commission's Discretion to Refuse to Invoke
its own Jurisdiction', Australian Journal of Labour Law,
vol. 3, 1990, pp. 36-47; see now Workplace Relations
Act 1996, ss. 111(1)(g)(iii), 111AAA.
- Federated Hotel, Club, Restaurants and Caterers' Employees'
Union v. Abbott (1928) 26 CAR 489; see J. H. Portus,
'Aspects of the Commonwealth and State Division of the Industrial
Power', in G. W. Ford, J. M. Hearn and R. D. Lansbury, eds,
Australian Labour Relations: Readings, 3rd edn, Macmillan,
Melbourne, 1980, p. 395. In practice, the test placed the onus on
an applicant seeking a Federal award to show 'defined
circumstances' sufficient to warrant the disturbance of the status
quo: Municipal Officers' Association of Australia v. State
Electricity Commission of Victoria (1971) 138 CAR 500.
- R v. Commonwealth Conciliation and Arbitration Commission;
ex p. Association of Professional Engineers, Australia (1959)
107 CLR 208.
- R v. Coldham; ex p. Australian Social Welfare Union
(1983) 153 CLR 297.
- That public sector employees engaged in administrative or
governmental functions might not be able to gain an award under the
Federal system because of the Constitution's recognition of the
continued independence of the States (and not because public
servants were not employed in an industry under the then
interpretation of the industry power) was recognised in
Melbourne Corporation v. Commonwealth (1947) 74 CLR 31
(per Rich J at 66, Dixon J at 80). Reconsideration of the issue was
expressly left open in the Social Welfare Union Case
(1983) 153 CLR at 313. Since then the exception has been recognised
for a limited group of employees and not in relation to all
employment conditions: R v. Lee; ex p. Harper (1986) 160
CLR 430 at 452-3; Re Australian Education Union; ex p.
Victoria (1995) 184 CLR 188 at 232; Victoria v.
Commonwealth (1996) 187 CLR 416 at 503.
- Commonwealth Bureau of Census and Statistics, Official Year
Book of the Commonwealth of Australia, Melbourne, Government
Printer, 1925, p. 587; ibid., 1930, p. 390; Royal
Commission on the Constitution, Report, Canberra, op.
cit., p. 160.
- H. B. Higgins, A New Province for Law and Order,
op. cit., p. 66; Rickard, H. B. Higgins: The Rebel as
Judge, op. cit., p. 236.
- A series of public statements were made by Hughes and Higgins,
which were published in the Melbourne Argus and reprinted
in (1917) 11 CAR 994-1002.
- L. F. Fitzhardinge, William Morris Hughes: A Political
Biography; vol. 2, The Little Digger, Angus &
Robertson, Sydney, 1979, p. 443; Lee, Industrial Peace
Act, op. cit., p. 118.
- Industrial Peace Act 1920 (Cwlth), ss. 13, 18,
20.
- W. M. Hughes, Senate and House of Representatives,
Debates, 29 July 1920, p. 3109; ibid., 10 September 1920,
p. 4441; Mr Blakeley, (Labor, Darling, NSW), ibid.,
p. 3226; Mr Tudor, (Labor, Yarra, Vic.), ibid., 4 August 1920,
p. 3233.
- Commonwealth Conciliation and Arbitration Act 1920
(Cwlth); see Lee, Industrial Peace Act, op. cit.,
pp. 161-3.
- Statement Made in Court by Mr Justice Higgins on Announcing his
Resignation (25 September 1920) in Higgins, A New
Province, op. cit., pp. 175, 173.
- Hon S. M. Bruce, Senate and House of Representatives,
Debates, 13 June 1923 , p. 51.
- R. Morris, 'From the Webbs to Scullin: the Appearance of
Industrial Relations as a Branch of Knowledge in Australia',
Labour History, no. 64, 1993, p. 81.
- Federated Saw Mill etc. Employes' Association of
Australasia v. James Moore and Sons Pty Ltd (1909) 8 CLR 465
per Griffith CJ at 500; Australian Boot Trade Employes
Federation v. Whybrow & Co. (1910) 10 CLR 266 per Griffith
CJ at 286-7.
- Waterside Workers' Federation of Australia v. Commonwealth
Steamship Owners' Association (1920) 28 CLR 209 at 218, 230;
Waterside Workers' Federation of Australia v. J. W.
Alexander Ltd (1918) 25 CLR 434 per Isaacs and Rich JJ at 463;
see also Waterside Workers Federation of Australia v.
Gilchrist, Watt and Sanderson Ltd (1924) 34 CLR 482 per Isaacs
and Rich JJ at 528.
- Forty-Four Hours Week Act 1925 (NSW).
- (1926) 37 CLR 466; for description as the Forty-Four Hours
Case, see H. V. McKay Pty Ltd v. Hunt (1926) 38 CLR
308 per Isaacs J at 311.
- (1926) 37 CLR 466 per Isaacs J at 479, 480. The principle was
applied in October to strike down a Victorian Wages Board decision
which gave a wage higher than a Commonwealth award: H. V. McKay
Pty Ltd v. Hunt (1926) 38 CLR 308.
- R v. Commonwealth Court of Conciliation and Arbitration; ex
p. Engineers etc (State) Conciliation Committee (1926) 38 CLR
563.
- L. Bennett, 'The Federal Conciliation and Arbitration Court in
the Late 1920s', Labour History, no. 57, November 1989,
pp. 49-50.
- Waterside Workers Federation of Australia v. J. W.
Alexander Ltd (1918) 25 CLR 434.
- Governor-General's Speech, Senate and House of
Representatives, Debates, 13 January 1926,
pp. 6-7; C.L.A. Abbott, (CP, Gwydir, NSW), 14 January
1926, p. 47; Mr Latham, ibid., 21 May 1926 ,
p. 2234.
- J. G. Latham, Senate and House of Representatives,
Debates, 15 December 1927, pp. 3277, 3279.
- Commonwealth Conciliation and Arbitration Act 1904-28
(Cwlth), ss. 38C, 35A, 7-8, 56D, 86D, amended by
Commonwealth Conciliation and Arbitration Act 1928
(Cwlth).
- Commonwealth Conciliation and Arbitration Act 1904-28
(Cwlth), s. 25D.
- Mr Scullin, Senate and House of Representatives,
Debates, 16 May 1928, pp. 4892, 4896, 4902; Mr Blakeley,
ibid., p. 4912.
- Transport Workers Act 1928 (Cwlth); Richard Morris,
'The 1928 Marine Cooks' Strike and the Origins of the Transport
Workers' Act', Great Circle, vol. 21, 1999,
pp. 109-120. The regulations were enacted as legislation by
the Transport Workers Act 1929 (Cwlth).
- S. M. Bruce, Senate and House of Representatives,
Debates, 15 February 1929, p. 676.
- ibid., 1 March 1929, p. 330.
- D. Carboch, 'The Fall of the Bruce-Page Government', in A.
Wildavsky and D. Carboch, Studies in Australian Politics,
op. cit., pp. 133, 193.
- S. M. Bruce, Senate and House of Representatives,
Debates, 23 August 1929, p. 289; Maritime Industries Bill
1929, cll. 6, 9(2), 13, 24, 30.
- W. M. Hughes, Senate and House of Representatives,
Debates, 5 September 1929, p. 596.
- W. M. Hughes, ibid., 10 September 1929, p. 841.
- Carboch, 'The Fall of the Bruce-Page Government',
op. cit., p. 270-4; G. Sawer, Australian Federal
Politics and Law 1929-1949, Melbourne University Press, 1963,
pp. 2-4. For a summary of election results see C. A. Hughes
and B. D. Graham, A Handbook of Australian Government and
Politics, 1890-1964, ANU Press, Canberra, 1968, p. 613.
- Mr Brennan, Senate and House of Representatives,
Debates, 30 May 1930, p. 2364.
- G. Anderson, 'The Commonwealth Conciliation and Arbitration Act
1930', Economic Record, vol. 7, 1931, pp. 85-6;
Commonwealth Conciliation and Arbitration Act 1904-30
s. 34, amended by Commonwealth Conciliation and
Arbitration Act 1930 (Cwlth).
- Senate and House of Representatives, Debates, 8 August
1930, p. 5666.
- Australian Railways Union v. Victorian Railways
Commissioners (1930) 44 CLR 319 at 385.
- O. de R. Foenander, Towards Industrial Peace in
Australia, Melbourne University Press, Melbourne, 1937,
p. 64.
- Senate and House of Representatives, Debates, 18 June
1930, pp. 2838-9.
- National Security (Industrial Peace) Regulations 1940
(Cwlth), SR 1940, No. 290; Foenander, Wartime Labour
Developments in Australia, op. cit., 1943, pp. 5-8;
S. J. Butlin, War Economy, 1939-1942, Australian War
Memorial, Canberra, 1955, p. 245-6.
- S. J. Butlin and C. B. Schedvin, War Economy,
1942-1945, Australian War Memorial, Canberra, 1977,
pp. 26, 372, 555-6
- J. Hagan, The History of the ACTU, op, cit.,
p. 189; T. Sheridan, 'Planners and the Australian Labour
Market 1945-1949', Labour History, no. 53, November 1987,
p. 104.
- H. V. Evatt, Senate and House of Representatives,
Debates, 12 Mar 1947, p. 548.
- ibid., p. 550.
- Commonwealth Conciliation and Arbitration Act 1904
(Cwlth), s. 4 as amended by Commonwealth Conciliation and
Arbitration Act 1947 (Cwlth), s. 6(b).
- H. V. Evatt, Senate and House of Representatives,
Debates, 12 Mar 1947, pp. 548-9; Commonwealth
Conciliation and Arbitration Act 1904-47 (Cwlth), ss. 13,
24, 25.
- R. G. Menzies, Senate and House of Representatives,
Debates, 16 Apr 1947, p. 1304.
- Foenander, Studies in Australian Labour Law and
Relations, op. cit., pp. 72, 82-85;
B. Dabscheck, Arbitrator at Work: Sir William Raymond
Kelly and the Regulation of Australian Industrial Relations,
George Allen & Unwin, Sydney, 1983, p. 142; B. Dabscheck
and John Niland, Industrial Relations in Australia, George
Allen & Unwin, Sydney, 1981, pp. 226-7.
- R v. Galvin; ex p. Metal Trades Employers' Association
(1949) 77 CLR 432.
- R v. Commonwealth Court of Conciliation and Arbitration; ex
p Ozone Theatres (Aust) Ltd (1949) 78 CLR 389. Similar
problems had arisen soon after the Act was changed in 1930 by
reserving alterations to the basic wage or its principles to a Full
Court: see Australian Workers' Union v. Commonwealth Railways
Commissioner (1933) 49 CLR 589.
- T. Sheridan, Division of Labour: Industrial Relations in
the Chifley Years, 1945-1949, Oxford University Press,
Melbourne, 1989, pp. 154-5.
- Under s. 48 of the original 1904 Act the Court could issue
an injunction to compel compliance with an award or restrain a
breach, under penalty of a 100 fine or three months' imprisonment.
An additional power to order compliance with an award or order
which had been breached was inserted as s. 38(da) by
Commonwealth Conciliation and Arbitration Act (No 2) 1914
(Cwlth) . This provision, along with other penalty provisions, was
removed by the 1930 amending Act. It was reenacted as s. 29(b) by
Commonwealth Conciliation and Arbitration Act 1947
(Cwlth). The 1947 Act made the Arbitration Court a court of
superior record, which was supposed to give it plenary powers to
punish for contempt of its orders, including an order for
compliance with an award.
- R v. Metal Trade Employers' Association; ex p. Amalgamated
Engineering Union Australian Section (1951) 82 CLR 208;
Conciliation and Arbitration Act 1904-1951 (Cwlth),
ss. 29(c), 29A inserted by Conciliation and Arbitration
Act (No 2) 1951 (Cwlth), ss. 6-7; Jack Hutson, Penal
Colony to Penal Powers, revised edn, Amalgamated Metals
Foundry and Shipwrights' Union, Sydney, 1983, p. 238.
- Swearing In of Sir Owen Dixon as Chief Justice, (1952) 85 CLR
xvi.
- R v. Kirby; ex p. Boilermakers Society of Australia
(1956) 94 CLR 254 at 289; affirmed by Privy Council (1957) 95 CLR
529. For the immediate significance, see Orwell de
R. Foenander, Industrial Conciliation and Arbitration in
Australia, Law Book Co, Sydney, 1959, pp. 21-24.
- See the economic statement by the Prime Minister, Mr Menzies,
House of Representatives, Debates, 14 March 1956,
p. 788.
- House of Representatives, Debates, 15 February 1956,
pp. 20, 25; ibid., 6 March 1956, p. 524.
- B. d'Alpuget, Mediator: A Biography of Sir Richard
Kirby, Melbourne University Press, Melbourne, 1977,
pp. 141-147.
- H. E. Holt, House of Representatives, Debates, 8 March
1956, p. 643; ibid., 10 May 1956, p. 1991; D. W. Oxnam,
'Recent Changes in the Federal Arbitration System', Australian
Quarterly, vol. 29, no. 1, March 1957, p. 80.
- H. E. Holt, House of Representatives, Debates, 10 May
1956, p. 1989-90.
- Conciliation and Arbitration Act 1904-56, s. 19,
inserted by Conciliation and Arbitration Act 1956 (Cwlth).
- H. V. Evatt, House of Representatives, Debates, 22 May
1956, p. 2343.
- K. F. Walker, 'Arbitration in a New Key', Economic
Record, vol. 33, 1957, p. 60.
- R v. Kelly; ex p. Australian Railways Union (1953) 89
CLR 461 per Dixon CJ at pp. 474-5.
- Seamen's Union of Australasia v. Commonwealth Steamship
Owners' Association (1936) 54 CLR 626 per Latham C. J at
642; per Dixon J at 645; contra Evatt and McTiernan JJ at 655; L.
Bennett, Making Labour Law in Australia: Industrial Relations,
Politics and Law, Law Book Co., Sydney, 1994, p. 75.
Evatt and McTiernan noted that the effect of a bans clause was to
remove altogether the employees' ability to press their demands in
future bargaining: at 650.
- Hutson, Penal Colony to Penal Powers, op. cit.,
pp. 240-2; Bennett, Making Labour Law in Australia,
op. cit., pp. 79-82.
- Hutson, Penal Colony to Penal Powers, op. cit.,
p. 265; J. Hagan, The History of the ACTU,
op. cit., p. 268.
- These were the 'one man bus' cases: R v. Commonwealth
Conciliation and Arbitration Commission; ex p. Melbourne and
Metropolitan Tramways Board (1965) 113 CLR 228; R v.
Commonwealth Conciliation and Arbitration Commission; ex p.
Melbourne and Metropolitan Tramways Board (1966) CLR 443;
Melbourne and Metropolitan Tramways Board v. Horan (1967)
117 CLR 78; see E. I. Sykes and H. J. Glasbeek, Labour Law in
Australia, Butterworths, Sydney, 1972, pp. 521-6, 560.
- Hutson, Penal Colony to Penal Powers, op. cit.,
pp. 267-9; Industrial Registrar and Australian Tramway and
Motor Omnibus Employees Association (1969) 24 Industrial
Information Bulletin 700; Sydney Morning Herald, 16 May
1969, p. 4.
- Senate, Debates, 20 May 1969, pp. 1371.
- L. H. E Bury, (Liberal, Wentworth, NSW), House of
Representatives, Debates, 22 May 1969, p. 2113.
- B. M. Snedden, (Liberal, Bruce, Vic.) House of
Representatives, Debates, 5 June 1970, p. 3080;
Conciliation and Arbitration Act 1904-70, ss. 32A,
33A, inserted by Conciliation and Arbitration Act 1970
(Cwlth).
- P. R. Lynch, House of Representatives, Debates, 7
December 1971, p. 4182; Mr Lynch, ibid., 26 April 1972,
p. 2004; Conciliation and Arbitration Act 1973 (Cwlth); L.
Cupper, 'Legalism in the Australian Conciliation and Arbitration
Commission: The Gradual Transition', in G. W. Ford, J. M.
Hearn and R. D. Lansbury, eds, Australian Labour Relations:
Readings, 3rd edn, Macmillan, Melbourne, 1980, pp. 412-3.
- House of Representatives, Debates, 12 April 1973,
p. 1424.
- ibid., p. 1425.
- ibid., p. 1436; Mr Lynch, ibid., 8 May 1973, p. 1755;
Mr McMahon, ibid., p. 1775.
- C. P. Mills, 'Labour Legislation under a Labor
Government', Australian Law Journal, vol. 47, 1973,
pp. 321-2.
- Mr Cameron, House of Representatives, Debates, 30
August 1973, p. 662; Conciliation and Arbitration Act
1973.
- R. Mitchell, 'Industrial Relations Under a Conservative
Government: The Coalition's Labour Law Programme 1975 to 1978',
Journal of Industrial Relations, vol. 21, 1979,
pp. 435-7; R. Mitchell, "Australian Industrial Relations
and Labour Law Policy: A Post-War Review', Australian
Quarterly, vol. 52, 1980, pp. 49-57.
- A. A. Street, (Liberal, Corangamite, Vic.), House of
Representatives, Debates, 31 March 1977, p. 839.
- Conciliation and Arbitration Act 1904-79, s. 25A
(Commission not able to award pay for period of industrial action),
s. 143A (power of Governor-General to suspend or cancel
registration of organisation if found by a Full Bench of Commission
to have engaged in industrial action), inserted by Conciliation
and Arbitration Amendment Act 1979 (Cwlth); R. Mitchell,
'Liberal and Labor Governments and Labour Legislation: Is there a
Trend to Direct Intervention', in P. Sutcliffe and D. Ralston, eds,
Trends in Australasian Industrial Relations: Proceedings of the
Conference Held at the Bellevue Hotel, Brisbane, 22 August to
25 August 1985, Association of Industrial Relations Academics
of Australia and New Zealand, 1995, p. 102.
- Conciliation and Arbitration Amendment Bill 1982 (Cwlth); K.
Beazley, (Labor, Swan, WA), House of Representatives,
Debates, 22 April 1982, p. 1808; ibid., Senate,
Debates, 5 May 1982, p. 1858.
- R v. Coldham; ex p. Australian Social Welfare Union
(1983) 153 CLR 297; Federated Clerks' Union v. Victorian
Employers' Federation (1984) 154 CLR 472; Re Manufacturing
Grocers' Employees Federation of Australia; ex p. Australian
Chamber of Manufactures (1986) 160 CLR 341; Re Cram; ex p.
New South Wales Colliery Proprietors' Association Ltd (1987)
163 CLR 117; see E. Stern, '''Industrial Disputes'' and the
Jurisdiction of the Federal Industrial Tribunal: An Analysis of
Recent Developments', Australian Journal of Labour Law,
vol. 3, 1990, pp. 130-158.
- 'Statement of Accord by the Australian Labor Party and the
Australian Council of Trade Unions Regarding Economic Policy,
February 1983', in F. Stilwell, The Accord and Beyond,
Pluto Press, Sydney, 1986, p. 167.
- Committee of Review into Australian Industrial Relations Law
and Systems (Hancock Report), Report, vol. 2, AGPS,
Canberra, pp. 1-2.
- ibid., p. 214.
- ibid., pp. 219, 224.
- ibid., pp. 169, 205.
- ibid., pp. 241-2.
- ibid., p. 369.
- ibid., pp. 401, 403. The Committee accepted that there was
a role for purely private arbitration, but thought that it should
not be recognised in legislation because 'it is important for those
who exercise statutory functions of conciliation and arbitration to
do so within a recognised system, to adhere to generally accepted
principles, to be subject to appeals and to be open to public
scrutiny' (p. 548).
- ibid., pp. 206, 339.
- ibid., pp. 340-1.
- ibid., pp. 545-6.
- ibid., p. 399.
- ibid., p. 416.
- ibid., p. 425.
- ibid., pp. 637-9, 657.
- ibid., pp. 642-3.
- R. Willis, (Labor, Gellibrand, Vic.), House of
Representatives, Debates, 14 May 1987, p. 3165-6.
- ibid., 14 May 1987, pp. 3167, 3171-2; Industrial Relations
Bill 1987 (Cwlth), cll. 62, 164-8, 193-7, 215-7.
- R. J. Hawke, (Labor, Wills, Vic.), House of
Representatives, Debates, 26 May 1987, p. 3293;
Senator F. Chaney, (Liberal, WA), Senate, Debates, 27 May
1987, p. 3004; Senator T. Aulich, (Labor, Tas.), ibid.,
p. 3009; B. Dabscheck, Australian Industrial Relations in
the 1980s, Oxford University Press, Melbourne, 1989,
p. 146.
- Governor-General's Speech, House of Representatives,
Debates, 14 September 1987, p. 14; see Senate,
Debates, 12 October 1988, pp. 1227, 1230.
- Mr Willis, House of Representatives, Debates, 28 April
1988, p. 2335. In addition, the High Court's decision in
Re Ranger Uranium Mines Pty Ltd; ex p. Federated Miscellaneous
Workers' Union of Australia (1987) 163 CLR 656, upholding the
Commission's power to order reinstatement of unfairly dismissed
employees, was thought to make it unnecessary to establish a court
with jurisdiction over unfair dismissals.
- House of Representatives, Debates, 23 May 1988,
p. 2835.
- Senator Chaney, Senate, Debates, 24 August 1988,
p. 192; ibid., 31 August 1988, pp. 571-2; ibid., 1
September 1988, p. 658; ibid., 27 September 1988,
pp. 820-1.
- Senator G. Chapman, (Liberal, SA), ibid., 12 October 1988,
p. 1225; Senator P. Cook, (Labor, WA), ibid., p. 1229.
- The Government accepted the Democrats' amendments reducing the
minimum size of registered employee organisations (from 3000 to
1000 members), but further proposals to strengthen collegial
ballots in unions were defeated by the combined votes of the major
parties: ibid., 30 September 1988, p. 1105, 12 October 1988,
p. 1243.
- A. Stewart, 'The Industrial Relations Act 1988: The More Things
Change...', Australian Business Law Review, vol. 17, 1988,
p. 104; J. W. Shaw, 'The ''New'' Powers of the Australian
Industrial Relations Commission', Journal of Industrial
Relations, vol. 31, 1989, pp. 82-92.
- E. M. Davis and R. D. Lansbury, 'Employment Relations in
Australia', in G. J. Bamber and R. D. Lansbury, eds,
International and Comparative Employment Relations: A Study of
Industrialised Market Economies, revised edn, Allen &
Unwin, Sydney, 1998, p. 135; R. D. Lansbury and G.
J. Bamber, 'The End of Institutionalised Industrial Relations in
Australia?', Perspectives on Work, vol. 2, no. 1, 1998,
pp. 26-28.
- B. Dabscheck, The Struggle for Australian Industrial
Relations, Oxford University Press, Melbourne, 1995, ch. 3.
- Davis and Lansbury, 'Employment Relations in Australia',
op. cit., p. 136.
- National Wage Case, April 1991 (1991) 36 IR 120;
(1991) AILR 118.
- The Government's submissions to the Commission advocated
greater scope for bargaining: Senator Cook, Senate,
Debates, 4 September 1991, p. 1158. A ministerial
statement announcing the intention to bring in new legislation was
made while National Wage Case was still in progress: Senate,
Debates, 17 October 1991 , pp. 2279, 2284.
- National Wage Case, October 1991 (1991) 39 IR 127;
(1991) AILR 369.
- Industrial Relations Act 1988-92, Pt VI Div. 3A
(especially s. 134F), inserted by Industrial Relations
Legislation Amendment Act 1992 (Cwlth).
- Industrial Relations Act 1988-92, s. 134M(3);
retained as s. 170MM(4) by Industrial Relations Reform Act
1993 (Cwlth).
- Industrial Relations Act 1988-93, Pt VIB Div. 5,
especially s. 170QK; Appeal by Public Sector Union
(ABC Case) (1994) AILR 372, Print L4605; Asahi Diamond
Industrial Australia Pty Ltd v. Automotive Food Metals and
Engineering Union (1995) 59 IR 385 at 421-8, Print L9800.
- Industrial Relations Act 1988-93, ss. 170MC,
170MD, 170MG, inserted by Industrial Relations Reform Act
1993.
- Industrial Relations Act 1988-93, s. 88A(b).
Paid-rates awards specified actual rather than minimum
entitlements, but were only made if it was not appropriate or
likely for the matters to be settled by agreement: s. 170UA.
- Industrial Relations Act 1988-93,
ss. 170MC(1)(b); 150A.
- Review of Wage Fixing Principles August 1994 (1994) 55
IR 144, Print L4700.
- Victoria v. Commonwealth (Industrial Relations Act
Case) (1996) 187 CLR 416 at 537-8.
- In most respects the Court's jurisdiction was exclusive:
Industrial Relations Act 1988-93, ss. 413
(interpretation of awards), 414 (organisations), 294 (cancellation
of registration), 163G-163H (boycott conduct), 163EE (remedies for
unlawful termination). However, under s.178 other courts could also
impose penalties for breaches of an award (apart from a bans
clause), although the amount they could impose was lower.
- B. Dabscheck, 'The Coalition's Plan to Regulate Industrial
Relations', Economic and Labour Relations Review, vol. 4,
1993, pp. 6-9; C. Briggs and J. Buchanan, 'Australian Labour
Market Deregulation: A Critical Assessment', Research
paper, no. 21, Department of the Parliamentary Library,
Canberra,1999-2000.
- P. Reith, House of Representatives, Debates, 23
May 1996, p. 1295.
- Workplace Relations Act 1996, ss. 88A-88B, 89,
89A, 111AAA.
- Workplace Relations Act 1996, s. 152(2)-(3).
- Workplace Relations and Other Legislation Amendment Bill 1996,
schedule 13.
- Supplementary Report by Senator Andrew Murray for the
Australian Democrats, Senate Economics References Committee,
Report on Consideration of the Workplace Relations and Other
Legislation Amendment Bill 1996, Senate Printing Unit,
Canberra. 1996, pp. 328, 330, 331.
- ibid., p. 334.
- Agreement between the Commonwealth Government and the
Australian Democrats on the Workplace Relations Bill, October 1996;
Australian, 28 October 1996, p. 1; Senate, Weekly
Hansard, 30 October 1996, pp. 4719-21.
- Workplace Relations Legislation Amendment (More Jobs, Better
Pay) Bill 1999 (Cwlth); Senate Employment, Workplace Relations,
Small Business and Education Legislation Committee,
Consideration of the Provisions of the Workplace Relations
Legislation Amendment (More Jobs, Better Pay) Bill 1999,
Senate Printing Unit, Canberra, 1999, Democrat Senators' Report,
pp. 389-92.
- Superannuation Guarantee (Administration) Act 1992
(Cwlth); upheld as valid use of taxation power in Northern
Suburbs General Cemetery Reserve Trust v. Commonwealth (1993)
176 CLR 555. The Commission awarded superannuation in its
National Wage Case 1986, and its power to do so (as the
subject of an industrial dispute) was affirmed by the High Court in
Re Manufacturing Grocers' Employers Federation of Australia; ex
p. Australian Chamber of Manufactures (1986) 160 CLR 341.
However the Commission held in its National Wage Case April
1991 (1991) 36 IR 120; (1991) AILR 118 that the award system
was inappropriate vehicle for further imposts, leading to the
enactment of the 1992 scheme.
- By this means, power was given to the Arbitration Court to
determine all kinds of industrial disputes (including those limited
to a single State), any industrial matter referred by the Minister
even though not an industrial dispute, and to make industry-wide
common rule awards. Conciliation commissioners were also given
enhanced powers to make awards: National Security (Industrial
Peace) Regulations 1940. Special bodies were also set up to
control all aspects of employment in the shipping and stevedoring
industries: National Security (Maritime Industry) Regulations
1942; National Security (Stevedoring Industry) Regulations
1942. Extensive provisions were also made for the 'dilution'
of labour in the metals and furniture industries, allowing workers
who were not fully trades qualified to be certified and trained.
See Foenander, Wartime Labour Developments in Australia,
op. cit.; Foenander, Studies in Australian Labour Law and
Relations, op. cit., pp. 13-18.
- Coal Production (War-time) Act 1944 (Cwlth);
Women's Employment Act 1942 (Cwlth) and Women's
Employment Regulations.
- Report on the Coal-Mining Industry, vol. 1, Senate and
House of Representatives, Papers, 1945-46, vol. 3,
pp. 468-71.
- The legislation also set up a system of local conciliation
boards overseen by the tribunal: Coal Industry Act 1946
(Cwlth), ss. 34, 36, 42. In practice most industrial matters
were determined through these local bodies, within the framework of
an industry award set by the tribunal: see C. Fisher, Coal and
the State, Methuen, Sydney, 1987, pp. 226-7; on the
origins of the tribunal see ibid., p. 245; J. Romeyn,
Centralised and Specialist Tribunals: the Influence of
Structure on Arbitral Decision-Making in Australia, Industrial
Relations Research Centre, University of New South Wales, Sydney,
1982, p. 21. In R v. Duncan; ex p. Australian Iron and
Steel Pty Ltd (1983) 158 CLR 535, the High Court held that the
Tribunal could validly exercise Federal and State powers
concurrently.
- Mr Dedman, Senate and House of Representatives,
Debates, 24 July 1946, p. 3009; J. B. Chifley,
ibid., 30 July 1946, p. 3273.
- E. E. Crichton, 'The Development of Public Service Arbitration
Pt I', Public Administration, vol. 15, 1956,
pp. 151-153.
- G. E. Caiden, Career Service, Melbourne UP, 1965,
p. 105.
- Sir R. Best, (Liberal, Kooyong, Vic.), Senate and House of
Representatives, Debates, 4 December 1911,
p. 3627; W. M. Hughes, ibid., p. 3629;
Arbitration (Public Service) Act 1911 (Cwlth).
- W. M. Hughes, Senate and House of Representatives,
Debates, 3 September 1920, p. 4199; Arbitration
(Public Service) Act 1920 (Cwlth), s. 6; Caiden,
Career Service, op. cit., pp. 145-6. The Royal
Commission on Public Service Administration consisted of D. C.
McLachlan, the former Public Service Commissioner, who had very
clear ideas about the importance of the Commissioner remaining
supreme authority in the public service.
- Gerald E. Caiden, Career Service, op. cit.,
pp. 207-9.
- The Hon H. V. Evatt, Senate and House of Representatives,
Debates, 5 June 1952, p. 607; Public Service
Arbitration Act 1952 (Cwlth).
- Conciliation and Arbitration Amendment Act (No. 2)
1983 (Cwlth), s. 40. The Public Service Arbitration
Act 1956 (Cwlth) had already made the Public Service
Arbitrator a member of the Conciliation and Arbitration Commission,
though still exercising power under the 1920 Act.
- Federated Amalgamated Government Railway and Tramway
Service Association v. New South Wales Railway Traffic Employees
Association (1906) 4 CLR 488 per the Court at 541; cf.
Australian Steamships Ltd v. Malcolm (1914) 19 CLR 298 per
Gavan Duffy and Rich JJ at 334.
- Transport Workers Act 1928 (Cwlth), s. 2
(definition of 'transport workers'); Huddart Parker Ltd v.
Commonwealth (1931) 44 CLR 492; Victorian Stevedoring and
General Contracting Company Pty Ltd v. Dignan (1931) 46 CLR
73; Foenander, Towards Industrial Peace in Australia,
op. cit., p.183. Ironically, while the Act was passed to
challenge the power of the Waterside Workers Federation by
providing for licensing of wharf labourers (and thus allowing
employers to promote employment of non-unionists who had been
licensed), the High Court upheld regulations made by the Scullin
Labor Government which gave preference in employment to members of
the union. The regulations were repealed by the Lyons Government.
- Stevedoring Industry Act 1947 (Cwlth), ss. 12,
13, 19. On the history of the legislation, see R v. Kelly;
ex p. Waterside Workers' Federation of Australia (1952) 85 CLR
601 at 626-8; Foenander, Studies in Australian Labour Law and
Relations, op. cit., pp. 28-32.
- H. V. Evatt, Senate and House of Representatives,
Debates, 21 February 1947, pp. 125-6; R. G. Menzies,
ibid., 28 February 1947, p. 308.
- Mr Dedman, Senate and House of Representatives,
Debates, 28 June 1948, p. 1579; H. E. Holt,
ibid., 5 July 1949, p. 1973.
- Stevedoring Industry Act 1949 (Cwlth), ss. 33-34.
- R v. Webb: ex p Waterside Workers' Federation of
Australia (1955) 93 CLR 528. As none of the parties to the
case wished to pursue the implications of the separation of powers,
the Court did not determine the issue; but the judges' unease at
the mixture of such powers, later decided in the Boilermakers'
Case, is apparent: at 542.
- H. E. Holt, House of Representatives, Debates, 29 May
1956, p. 2554. A special presidential member of the new
Conciliation and Arbitration Commission was assigned to the
industry: Conciliation and Arbitration Act 1904-56
(Cwlth), Pt III Div. 4.
- Conciliation and Arbitration Act 1904-1967 (Cwlth),
s. 88U(2) inserted by Conciliation and Arbitration Act
1967 (Cwlth); Senator Gorton, Senate, Debates, 26
October 1967, p. 1788; N. Blain, Industrial Relations
in the Air, University of Queensland Press, St Lucia, 1984,
p. 55.
- Industrial Relations Act 1988 (Cwlth), s. 5,
replacing Conciliation and Arbitration Act 1904-87
(Cwlth), ss. 72, 88H.
- Trade Practices Act Review Committee (Swanson Committee),
Report to the Minister for Business and Consumer Affairs,
Canberra, Govt. Printer, 1976, P. P. 228/1976, pp. 85-6.
- The Hon. J. Howard, House of Representatives, Debates,
8 December 1976, p. 3533; Hon J. Howard, ibid., 3
May 1977, p. 1477; R. F. Shipton, (Liberal, Higgins, Vic.),
ibid., 24 May 1977, p. 1751.
- M. Young, (Labor, Port Adelaide, SA), ibid., 24 May 1977,
p. 1748; R. Willis, ibid., 25 May 1977, pp. 1818-20.
- Seamen's Union of Australia v. Utah Development Co
(1978) 144 CLR 120 per Mason J at 154. The boycott provisions were
also subsequently declared valid under the corporations power of
the Constitution, in so far as they prohibited boycott conduct
affecting trading corporations: Actors and Announcers' Equity
v. Fontana Films Pty Ltd (1982) 150 CLR 169.
- R v. Burgess; ex p. Henry (1936) 55 CLR 608 at 681.
- T. Sheridan, Mindful Militants The Amalgamated Engineering
Union in Australia, 1920-1972, Cambridge University Press,
1975, p. 170; J. Hagan, The History of the ACTU,
op. cit., p. 118.
- Commonwealth v. Tasmania (Tasmanian Dam Case) (1983)
158 CLR 1; Richardson v. Forestry Commission (1988) 164
CLR 261; Queensland v. Commonwealth (1989) 167 CLR 232.
- Industrial Relations Act 1988-93, ss. 3(b)(ii),
170AA, 170BA, 170CA, 170KA, 170PA,
- J. Howard, House of Representatives, Debates, 22
November 1993, p. 3355; Senator Crane, Senate,
Debates, 6 December 1993, p. 3897.
- Victoria v. Commonwealth (1996) 187 CLR 416 at 487,
496.
- R. C. McCallum, 'The Internationalisation of Australian
Industrial Law: The Industrial Relations Reform Act 1993',
Sydney Law Review, vol. 15, 1994, p. 134.
- Senate Economics References Committee, Report on
Consideration of the Workplace Relations and Other Legislation
Amendment Bill 1996, Senate Printing Unit, Canberra, 1996,
pp. 244, 298.
- Huddart, Parker & Co. Pty Ltd v. Moorehead (1909)
8 CLR 330 per Higgins J at pp. 409-10.
- Strickland v. Rocla Concrete Pipes Ltd (1971) 124 CLR
468.
- Actors and Announcers' Equity v. Fontana Films Pty Ltd
(1982) 150 CLR 169 per Mason J at pp. 201, 211.
- Industrial Relations Act 1988-92 (Cwlth),
ss. 127A-127C, inserted by Industrial Relations Amendment
Act 1992 (Cwlth).
- Re Dingjan; ex p Wagner (1995) 183 CLR 323;
Victoria v. Commonwealth (1996) 187 CLR 416; see George
Williams, Labour Law and the Constitution, Federation
Press, Sydney, 1998, pp. 115-8.
- L. Brereton, House of Representatives, Debates, 28
October 1993, p. 2782; P. Slipper, (Liberal, Fisher,
Qld), ibid., no. 11, 1993, p. 3077 (17 November
1993); Senator N. Sherry, (Labor, Tas.), Debates, 1993,
p. 3951; Industrial Relations Act 1988-93,
ss. 170NA(1), 170NC(1)(c).
- House of Representatives, Debates, 28 October 1993,
p. 2782; Industrial Relations Act 1988-93 (Cwlth),
ss. 170NC(1)(b), inserted by Industrial Relations Reform
Act 1993 (Cwlth).
- Industrial Relations Act 1988-93 (Cwlth),
ss. 170NA, 170NB, 170NP, inserted by Industrial Relations
Reform Act 1993 (Cwlth). The Commission could refuse to
approve an agreement if the employer did not give eligible unions a
reasonable opportunity to take part in the negotiations and be
party to the agreement: s. 170ND(7). See generally R.
Naughton, 'The New Bargaining Regime under the Industrial Relations
Reform Act', Australian Journal of Labour Law, vol. 7,
1994, pp. 156-62.
- Industrial Relations Act 1988-93 (Cwlth),
s. 170NL, inserted by Industrial Relations Reform Act
1993 (Cwlth).
- There were 172 applications for certification, extension or
variation of enterprise flexibility agreements in the last full
year of their operation: Annual Report of the President of the
Australian Industrial Relations Commission, 1996-97, table 1,
p. 14.
- G. F. Smith and R. C. McCallum, 'A Legal Framework for the
Establishment of Institutional Collective Bargaining in Australia',
Journal of Industrial Relations, vol. 26, 1984,
pp. 3-24; S. E. K. Hulme, 'A Constitutional Basis for the
Federal Coalition's Industrial Relations Policy-and Related
Matters', Economic and Labour Relations Review, vol. 4,
1993, pp. 62-76.
- The Hon. Peter Reith, 'Getting the Outsiders Inside-Towards A
Rational Workplace Relations System In Australia', Ministerial
Address to the National Press Club, Canberra, 24 March
1999,://
www.simplerwrsystem.govau/discussion/outsidersinside.htm#alternative]
(18 November 2000), and supporting discussion
papers located at this site. For an analysis of this proposal, see
A. Stewart, Federal labour Law and New Uses for the
Corporations Power, Australian Centre for Industrial Relations
Research and Training, Working Paper no. 61, 2000,
[http://www.econ.usyd.edu.au/acirrt/pubs/cp.pdf], (20 January
2001).
- H. V Evatt, 'Control of Labor Relations in the Commonwealth of
Australia', University of Chicago Law Review, vol. 6,
1939, p. 529.
- Justice M. Kirby, 'Industrial Relations in the ''Frozen''
Continent', Australian Journal of Labour Law, vol. 2,
1989, p. 5.
- See C. Fox and M. Pittard, Amending the Industrial
Relations Statute: An Australian Preoccupation, National Key
Centre in Industrial Relations, Monash University, Working Paper
no. 69, 1999, pp. 12, 23.
- A Ministry of Labour Advisory Council was formed in 1952, and
was succeeded by the National Labour Advisory Council in 1967.
While these were created by executive action, the most recent body
was a statutory creation: National Labour Consultative Council
Act 1977 (Cwlth).
- Consolidated Register of Senate Committee Reports
1970-1988, Senate Committee Office, Canberra, 1998,
pp. 174-176.
- House of Representatives, Debates, 19 October 1967,
pp. 2064-5; ibid., 26 October 1967, p. 2341; ibid.,
Senate, Debates, 31 October 1967, pp. 1920-6; ibid.,
House of Representatives, Debates, 2 November 1967,
p. 2638; N. Blain, Industrial Relations in the Air,
pp. 59-60.
- Senate Employment, Workplace Relations, Small Business and
Education Legislation Committee, Consideration of the
Provisions of the Workplace Relations Legislation Amendment (More
Jobs, Better Pay) Bill 1999, op. cit., pp. 205-6,
57.
- Commonwealth Conciliation and Arbitration Act 1904-20,
(Cwlth), s. 18A(4) inserted by Commonwealth Conciliation
and Arbitration Act 1920 (Cwlth), s. 9; Foenander,
Towards Industrial Peace in Australia, op. cit.,
pp. 135-7.
- H. E. Holt, Senate and House of Representatives,
Debates, 22 May 1952, p. 116; Conciliation and
Arbitration Act 1904-52, s. 31A(4), inserted by
Conciliation and Arbitration Act 1952 (Cwlth), s. 13.
- 'It will of course still be for the Commission to decide
whether to hear an appeal or reference in the public interest:' R.
I. Viner, (Liberal, Stirling, WA), House of Representatives,
Debates, 20 May 1976, p. 2324; Conciliation and
Arbitration Act 1904-76, s. 36A, inserted by
Conciliation and Arbitration Amendment Act 1976 (Cwlth).
Cupper, 'Legalism in the Australian Conciliation and Arbitration
Commission', op cit., p. 434.
- Commonwealth Conciliation and Arbitration Act 1904-26
(Cwlth), s. 18B; see C. P. Mills, Federal Industrial
Laws, 3rd edn, Butterworths, 1963, p. 220.
- R. M. Martin, 'Governments, Industrial Tribunals and the Rule
of Law', Journal of Industrial Relations, vol. 6, 1964,
pp. 37-50.
- E. Brennan, (Labor, Batman, Vic.), Senate and House of
Representatives, Debates, 30 May 1930, p. 2366;
ibid., 24 July 1930, p. 4612; Commonwealth Conciliation
and Arbitration Act 1930 (Cwlth), s. 18.
- Commonwealth Conciliation and Arbitration Act 1904
(Cwlth), s. 38(h).
- Commonwealth Conciliation and Arbitration Act 1910
(Cwlth), s. 2(c); Five Day Working Week Case (1944)
54 CAR 34; see C. P. Mills, Federal Industrial Laws,
3rd edn, Butterworths, Sydney, 1963, p. 94.
- Conciliation and Arbitration Act 1904-72 (Cwlth),
s.39(2), inserted by Conciliation and Arbitration Act 1972
(Cwlth), s. 16.
- R. Willis, House of Representatives, Debates, 28 May
1976, p. 2677.
- Committee of Review into Australian Industrial Relations Law
and Systems, Report, vol. 2, p. 340; Industrial
Relations Act 1988 (Cwlth), ss. 3(c), 90.
- J. T. Ludeke, 'The Public Interest and the Australian
Industrial Relations Commission', Journal of Industrial
Relations, vol. 34, 1992, p. 602; S. A. Kennedy,
'Reflections on Matters of Independence and Industrial Tribunals in
Australia', Journal of Industrial Relations, vol. 35,
1993, pp. 289-90; M. Kirby, 'The Removal of Justice Staples
and the Silent Forces of Industrial Relations', Journal of
Industrial Relations, vol. 31, 1989, pp. 334-71.
- Industrial Relations Act 1988 (Cwlth), ss. 93,
94, 96, 97.
- Industrial Relations Act 1988-92, ss. 134E-134F,
inserted by Industrial Relations Amendment Act 1992
(Cwlth); Industrial Relations Act 1988-93,
ss. 170MC-170MD, 170NC-170ND, inserted by Industrial
Relations Reform Act 1993 (Cwlth).
- Workplace Relations Act 1996, ss. 3(b), 88A(d),
89. Under the Industrial Relations Reform Act 1993 the
Commission was supposed to ensure that awards (other than paid
rates awards) underpinned direct bargaining by providing only
minimum wages and conditions: Industrial Relations Act
1988-93, s. 88(b).
- Workplace Relations Act 1996, s. 89A, inserted by
Workplace Relations and Other Legislation Amendment Act
1996 (Cwlth).
- Re Pacific Coal Pty Ltd; ex p. Construction, Forestry,
Mining and Energy Union [2000] HCA 34; 172 ALR 257 per Kirby J
at para 297.
- Workplace Relations Act 1996 (Cwlth), s.89A(7).
Similarly, the Commission may make an award covering non-allowable
matters if it has terminated the bargaining period, which can be
done basically because one party is not genuinely negotiating or
because industrial action is threatening serious public
consequences: ss.170MW, 170MX. This power to arbitrate may only be
exercised by a Full Bench, which must consider certain factors laid
down by the legislation: s.170MX(4), (5).
- R v. Commonwealth Conciliation and Arbitration Commission;
ex p. Amalgamated Engineering Union (Australian Section)
(1967) 118 CLR 219 per Barwick CJ at 242; per Windeyer J at 269.
- See A. Stewart, 'The Industrial Relations Reform Act 1993:
Counting the Cost', Australian Bulletin of Labour, vol.
20, 1994, p. 159.
- Senate Employment, Workplace Relations, Small Business and
Education Legislation Committee, Consideration of the
Provisions of the Workplace Relations Legislation Amendment (More
Jobs, Better Pay) Bill 1999, op. cit., p. 202.
- See R. J. Buchanan and I. M. Neil, 'Industrial Law and the
Constitution in the New Century: An Historical Review of the
Industrial Power', Australian Bar Review, vol. 20, 2001,
p. 263; N. Williams and A. Gotting, 'The Interrelationship
between the Industrial Power and other Heads of Power in Australian
Industrial Law', Australian Bar Review, vol. 20, 2001,
pp. 264-82.