Principle and Practice in Commonwealth Industrial Arbitration after Sixty Years
| Published date | 01 March 1964 |
| DOI | 10.1177/0067205X6400100103 |
| Date | 01 March 1964 |
| Subject Matter | Article |
PRINCIPLE AND PRACTICE
IN
COMMONWEALTH
INDUSTRIAL ARBITRATION AFTER SIXTY YEARS
By
R.
E.
MCGARVIE*
1.
THE
ROLE
OF COMMONWEALTH INDUSTRIAL ARBITRATION
IN
THE AUSTRALIAN COMMUNITY
In
its joint judgment in the Standard Hours Inquiry,
1947
the Full
Court
of
the Commonwealth Court
of
Conciliation and Arbitration
observed:1
The issue, as the history
of
the case indicates, comes to this Court
as anumber
of
industrial disputes (over
100
applications are before
the Court) between many registered organizations
of
workers and
their employers who are respondents. Some
of
these disputes are
of
long standing; others
of
them were created when it was known
that
the Court proposed to make ageneral investigation into standard
hours.
It
is acommonplace
of
Australian industrial law that the
limit
of
the constitutional power
of
the Court
is
to settle these disputes
each within its ambit, and the ultimate judgment will in fact settle
these particular disputes, and do no more. But
we
know, as amatter
of
practical fact, that it will in the long run lead to uniform standard
hours throughout Australia. The responsibility
of
this onerous
task does
not
properly belong to this Court.
It
is
bound only
to
settle the dispute.
It
is
something additional that State legislatures
and
State industrial tribunals make its decisions in these disputes
the bases
of
industrial determinations.
The evolution
of
this Court from an industrial tribunal limited
to
the particular task in each case, to
an
institution having in effect
wide legislative powers,
is
an
interesting one which some one will
one day explore. This legislative power is so great indeed as
to
occupy afield from which the Federal Parliament
is
excluded; so
paramount as to override in appropriate cases the State legislation,
and so vital as to make the law for Australians in that realm which
touches them most closely and intimately, viz., their industrial
relations filling half the waking hours
of
their working days.
It
is
amatter
of
striking comment that in ademocracy so much respons-
ibility and so much legislative power should be imposed
on
and
entrusted to three men appointed for life and beyond the reach
of
the popular will.
It
is
clear, however, that the popular will
if
it could be ascertained
is, in afundamental question
of
this kind, amatter which this Court
should not ignore,
...
2
*Q.C., LL.B. (Hons.) (Melb.);
of
the Victorian Bar.
1(1947)
59
C.A.R. 581, 588.
2The evolution referred to by the Full Court has since been traced by R. J. Hawke,
,The Commonwealth Arbitration
Court-Legal
Tribunal
or
Economic Legislature?'
(1956) 3University
of
Western Australia Annual Law Review 422.
47
48 Federal Law Review [VOLUME 1
On
the other hand the Commonwealth Conciliation and Arbitration
Commission has denied
that
it is
an
economic legislature. Thus, in the
Basic Wage and Standard Hours Inquiry,
1961
it said:3
From
time to time the Commission and the Court before
it
have
endeavoured to make clear what is the role
of
the federal arbitral
tribunal and what is its function in dealing with cases such as the
Basic Wage case now before us.
For
instance, in the 1952-1953
Basic Wage and Standard Hours Inquiry the Court pointed out
that
it
was neither asocial
nor
an
economic legislature.
It
said
that
the
exercise
of
its powers
had-
"wide-spread social and economic
results";
but
that
it
was-
"not
the function
of
the Court to aim
at
such social and
economic changes as may seem to be desirable to the members
of
the tribunal
".4
In
the
1959
Metal Trades Margins case the Commission said:
"The true function
of
the Commission is to settle industrial
disputes. In the settlement
of
disputes involving payment
of
wages, such as this one in which such issues have been raised,
the Commission will bear in mind the various economic sub-
missions made
to
it, including those about price rises and
inflation; it will also bear in mind the fiscal and economic
policies
of
the Government.
It
will not ignore the consequences
to be expected from its actions
but
it
will
not
deliberately create
situations which would need rectification by Governmental
action.
It
will
not
use its powers for the purposes
of
causing
any particular economic result apart from altered wages although
in the event the decision it makes may have other economic
consequences."5
We agree with the views expressed in the passages just quoted and,
indeed, many similar passages may be found in other decisions
of
the Commission and
of
the Court. We find it necessary to make
general comments
of
this kind in view
of
certain propositions
put
to
us which seemed to be founded
on
the assumption that
we
had
jurisdiction to deal with economic matters
at
large. We are not
national economic policy makers
or
planners. We are confined
to the legislation under which
we
act and, in particular, in basic
wage cases
we
have the function
of
deciding only what
is
ajust and
reasonable basic wage. This does
not
mean,
of
course, that
we
have
not
to
consider seriously the probable effects
of
our decision
on
the economy.
As Dixon C.J. said in The Queen
v.
Kelly;
Ex
parte Australian
Railways Union:
"While
an
arbitral tribunal deriving its authority under
an
exercise
of
the legislative power given by
s.
51
(xxxv.) must
confine itself to conciliation and arbitration for the settlement
3Serial No. A
7848
pp. 5-6.
4(1953)
77
C.A.R. 477,
506.
5Serial No. A7072 p.
9.
JUNE
19641
Commonwealth Industrial Arbitration
49
of
industrial disputes including what
is
incidental thereto and
cannot have in its hands the general control or direction
of
industrial social or economic policies, 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 or
of
what, subject
to the power
of
variation, it had actually done."6
These passages show that there are strong differences
of
view as to
the jurisprudential characterisation
of
the functions
of
the Commission.
It
is
not
intended in this article to enter into this controversy.
It
is,
however, clear that the Commonwealth tribunal now occupies aposition
in national affairs which was never contemplated by the framers
of
the
Constitution. This
is
well
put
by
Dr
E.
I. Sykes:7
It
is
well known that par. xxxv
of
s.
51
of
the Commonwealth Con-
stitution, giving power to the Commonwealth Parliament to enact
laws with respect to "conciliation and arbitration for the preven-
tion and settlement
of
industrial disputes extending beyond the
limits
of
anyone
State"
was inserted to substitute apeaceful method
of
dispute-settlement for the nationally wasteful methods
of
strike
and lock-out.8
It
was also thought that any tribunal established
would function only in the case
of
adispute
of
some national signi-
ficance.9Hence the provision regarding the "inter-state
dispute".
Little could our forefathers foresee the resources and ingenuity
of
union and employer organization! Although Mr. Justice Higgins
might later speak
of
" a new province for law and
order",
10
he was
thinking only in terms
of
the industrial dispute situation and was
not
contemplating the emergence
of
anational wage-fixing machine.
What he conceived
of
was a
"rule
of
law~'
which would replace
in industrial relations the trials
of
naked strength in just the same
way as it had banished resort to violence and self-help in those
spheres
of
civil law which govern relationships between individuals.
11
It
is
also clear that in
an
age when the regulation
of
the economy is
the main business
of
government12 the decisions
of
the Commission do
have avital influence upon the economy.
It
is
as true to say
of
the
6(1953)
89
C.L.R. 461,
474.
7
'Industrial
Conciliation, Arbitration and Regulation' (1957)
31
Australian Law
Journal
574, 575.
8See the remarks
of
Mr.
A.
Deakin in introducing the Bill to establish the Common-
wealth Court
of
Conciliation and Arbitration-Commonwealth Parliamentary Debates,
Vol. XV, 2862.
9Kingston
at
the 1897 and
1898
Convention debates envisaged that the Parliament
would do no more than create anumber
of
ad hoc tribunals
to
deal with large national
disputes in the shipping and shearing industries. Even
W.
M. Hughes in the debates
in Parliament on the Bill to set up the Court thought that the chiefreason for the Bill
would disappear once all the States had followed the example
of
the Commonwealth
in setting up arbitration tribunals-Commonwealth Parliamentary Debates, Vol.
XVII, 4762.
10
Higgins, ANew Province for Law and Order (1922).
11 Ibid.
150.
12
Of
the
98
Acts passed by the Parliament
of
the Commonwealth
of
Australia
during the year
1961
all but
24
Acts appear to be directed to the regulation
of
some
part
of
the economy
or
the economic
or
taxation activities
of
the Commonwealth.
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