01861

THE LAW OF CONCILIAnON AND ARBITRAnON

Michael Kirby & Breen Creighton

The Parliament shall, subject to this Constitution, have power to make laws for the peace,;,order and good government ofthe Commonwealth with respect to: -

Conciliation and arbitration for the prevention and settlement of industrial disputes. extending beyond the limits ofanyone State.

~fitution ofAustralia, section 51 (XXXV)]j - .

'tory of the law of conciliation and arbitration in Australia is, to a large extent, a storynstitutlonal Interpretation. One of the key issues that arises in any study ofitutional law in a country like Australia with a written constitution, concerns the theoryII be adopted in giving meaning to the constitutional text. Obviously, the judges of a

pourt who have the responsibility of assigning that meaning could do so on the basistnsiderations such as their impressions, intuitive feelings or consultation of a goodin~ry or two. On the otherhand, the judges might, for consistency, try to deveiop a"sophistlca!edanalysis of the constitutional charter and oftheir function in interpreting

, the judges could follow an approach that insisted upon asslg11lng to disputed;jitutional words a meaning derived from the perceived meaning of those words at the

.the Constitution was adopted as law. This is the so-called "orlginalist" approach toI'"stltutional interpretation. As will appear, in the assignment of meaning to the words of[ekl\ustralian Constitution that include the conciliation and arbitration power, ther&~d"tlon and early Justices of the High Court of Australia sometimes embraced this'Iinalist doctrine. They could readily do so because all of the early Justices had beenlPicipants in the Constitutional Conventions that resulted in the final language in which,);){Jthe most part, the Constitution passed into law.'

"~Ii'the passage of time, however, it was no longer possible for the members of the High~rfto rely on their own memories and recollections of what had transpired in the years

":afore 1900. After that point, the adoption of the "originalist" approach to interpretation,~Iuding for the meaning of s 51 (xxxv) of the Constitution, became more problematic.~,s change coincided substantially with the decision of the High Court in 1920 in the~!neers' Case.' As will be shown, that decision represented a watershed in the Court's,eoO.stitutional exposition.

"f;,

~..furtherPlowman & Smith 1986: 206-09. On the origins ofsection 51 (xxxv) see the essays collected in MacintyrelW}!phelJ 1989, Fitzpatrick 1941; Patmore 1991 ell 5; Bennett 1994 and the chapters by Plowman and Rowse in this

~l,lfllle;' .

01861

THE LAW OF CONCILIATION AND ARBITRATION

Michael Kirby & Breen Creighton

- The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to: -

Conciliation and arbitration for the prevention and settlement of industrial disputes . , . extending beyond the limits of anyone State.

!SfllUCI(IfI of Australia, section 51 (XXXV)]

of the law of conciliation and arbitration in Australia is, to a large extent, a story g~i~~~"~~~~~'~: interpretation. One of the key issues that arises in any study of :s I law in a country like Australia with a written constitution, concerns the theory

adopted in giving meaning to the constitutional text. Obviously, the judges of a who have the responsibility of assigning that meaning could do so on the basis

om,id,,,atiorls such as their impressions, intuitive feelings or consultation of a good . On the other hand, the judges might, for consistency, try to develop a

SOI)hi:stic,a\Eldanalysis of the constitutional charter and of their function in interpreting

judges could follow an approach that insisted upon assigning to disputed

i:l:r~:2~~I: ~w~:O)~rd~;S~~a~~m~~e~aning derived from the perceived meaning of those words at the was adopted as law. This is the so-called "originalist" approach to

. As will appear, in the assignment of meaning to the words of Constitution that include the conciliation and arbitration power, the early Justices of the High Court of Australia sometimes embraced this

dOlcirinA. They could readily do so because all of the early Justices had been 'ieino"t. in the Constitutional Conventions that resulted in the final language in which,

most part, the Constitution passed into law.'

passage of time, however, it was no longer possible for the members of the High rely on their own memories and recollections of what had transpired in the years

1900. After that point, the adoption of the "originalist" approach to interpretation, for the meaning of s 51 (xxxv) of the Constitution, became more problematic.

ch;mr'A coincided substantially with the decision of the High Court in 1920 in the 2 As will be shown, that decision represented a watershed in the Court's

~iilution;al exposition.

Plowman & Smith 1986: 206-09. On the origins of section 51 (xxxv) see the essays collected in Macintyre J 1989, Fitzpatrick 1941; Patmore 199 J eh 5; Bennett. 1994 and the chapters by Plowman and Rowse in this

2

w;8ethat time, the struggle to give meaning to the constitutional text has taken severalmi;s.' They have included what Justice Scalia of the Supreme Court of the United States'I~"exponent of originalism in constitutionai interpretation) has called "faint-hearted"lI!'inalism (Scalia 1995:142). But they have aiso ranged through other theories orFI,ex!J'!enations such as the "living force" doctrine of constitutional meaning embraced byIilea"ne J and some of his predecessors and successors', -i\\'I,,',)debates over theories of constitutional interpretation have attracted vigorous,xRressions of opinion in the High Court in recent times' Many schoiariy articies have,,~nwritten anaiysing the conflicting opinions, their viability and consistency of application

~"pite this, there is no area of constituti.on~1 discour~ewhich more clearly demonstratesjj1f,durln9 the first century of the Constitution, the High Court has failed consistently toriBiY,an originalist construction (robust or faint-hearted) to the federal legislative powers

l,h"J,he Court's approach to the interpretation of the industriai conciliation and arbitration[il!'.X{er., Indeed, this area of constitutional law illustrates more vividly than most the impact1:gpconstitutional exposition of the forces of history, economics, national values and~,",!ival as well as the forces of changing legal doctrine and political and social needs.Iii, '

Illl!~is ~hapter we will illustrate, by ref~renc~ to the constitutional powers relevant to theew:of mdustrlal arbitration, the way m which the High Court of Australia, and other~\ralian courts, have developed the sparse words of the Constitution to apply to an area

:0~q6iety's activities that has changed more over the century than most others. Theisfpry of the High Court's response to the very large number of cases challenging the

'i/I?calion of the federal power over industrial arbitration, demonstrates theM!,e"e,',c,,e,,ptability of simplistic demands that constitutional courts should simply apply the~{ds of the constitutional text as if, without more, those words alone were sufficient to'SOry.~ all of the problems. As the reader embarks on the legai and political historyIp,imted in this chapter, he or she will become a witness to the naive character of callsI~,,,,,~'pure legalism" in constitutional interpretation and the mischief that such adolescentIaPPioaches to constitutional meaning (or law generally) can engender.

,gis chapter shows nothing else, it is' that choices must be made In constitutlonai'in$fpretation. The real question is whether those choices are made candidly and

lI1::-_." •'t,~/!lglgalll(l1edSociety ofEngineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.

t~;;~~~f!!eOp"{f1l0IlS v Herald & Weekly Times LId (1994) 182 CLR 104, 171, 174 per Deane J quoting Clark 1901; cf R v~~~iimOmYealth Conciliation and Arbitration Commission: Ex parte Professional Engineers Association (1959) 107'@,~R.-208. 267; Victoria v The Commonwealth (1971) 122 CLR 353. 396 per Windeyer J.

w~~:WakilJl: Ex parte McNally (1999) 198 CLR 511, 551 w 554 [40]-[49]; 599w 600 [186]; Grain Pool of Westel'1lMrttalia'll The COlllmonwealth (2000) 202 CLR 479, 511-513 [76H80], 522-530 [110HI29]; Eastman 'II The Queen

J1P~0) 203 CLR 1,41-51 [134J-[158]; 79-81 [240]-[245]; Brow"lee v The Quee" (2001) 207 CLR 278,285 [8J, 297,rg]" 300-301 [59]-[64],320-327 [122J-[128J.

ts~~ ego Craven 1990: Dawson 1990; Goldsworthy 1997; Kirk 1999; Bagaric 2000; Goldsworthy 2000; Kirby 2000;l~~gher 2002a and 2002b.

2

that time, the struggle to give meaning to the constitutional text has taken several They have included what Justice Scalia of the Supreme Court of the United States

of originalism in constitutional interpretation) has called "faint-hearted" (Scalia 1995:142). But they have also ranged through other theories or

i such as the "living force" doctrine of constitutional meaning embraced by J and some of his predecessors and successors'

"~~:i~~~~ over theories of constitutional interpretation have attracted vigorous i< of opinion in the High Court in recent times' Many scholarly articles have n""itten analysing the conflicting opinions, their viability and consistency of application

this, there is no area of constitutional discourse which more clearly demonstrates the first century of the Constitution, the High Court has failed consistently to

originalist construction (robust or faint-hearted) to the federal legislative powers Court's approach to the interpretation of the industrial conciliation and arbitration

Indeed, this area of constitutional law illustrates more vividly than most the impact ~nconsltitutional exposition of the forces of history, economics, national values and

as well as the forces of changing legal doctrine and political and social needs.

chapter we will illustrate, by reference to the constitutional powers relevant to the industrial arbitration, the way in which the High Court of Australia, and other

courts, have developed the sparse words of the Constitution to apply to an area ,nr,ietv's activities that has changed more over the century than most others. The

the High Court's response to the very large number of cases challenging the of the federal power over industrial arbitration, demonstrates the

Iccl3ptabiilli ty of simplistic demands that constitutional courts should simply apply the the constitutional text as if, without more, those words alone were sufficient to of the problems. As the reader embarks on the legal and political history in this chapter, he or she will become a witness to the naive character of calls

legalism" in constitutional interpretation and the mischief that such adolescent iil'iclac,he.s to constitutional meaning (or law generally) can engender.

chapter shows nothing else, it is that choices must be made in constitutional The real question is whether those choices are made candidly and

~g(;;;;;;;dS;;ci,;;;'oififiE~ng~in;;;,;';ers 'II Adelaide Steamship Co Ltd (1920) 28 CLR 129.

!'~~~::~;'~;:,," Herald & Weekly Times LId (1994) 182 CLR 104, 171, 174 per Deane J quoting Clark 1901; cf R v lill Conciliation and Arbitration Commission: Ex parte Professional Engineers Association (1959) 107

267; Victoria'll The Commonwealth (1971) 122 CLR 353, 396 perWindeyer J.

Wakim: Ex parte McNally (1999) 198 CLR 511, 551 w 554 [40]-[491; 599-600 [186]; Grain Pool of Westel'll 'II The COllllllonwealth (2000) 202 CLR 479, 511-513 [76]-[80],522-530 [110]-[129]; Eastman v The Queen

CLR 1,41-51 [134J-[158J; 79-81 [240J-[245J; Brow"l" v The Q""" (2001) 207 CLR 278,285 [8J, 297 [59J-[64J, 320-327 [122J-[128J.

ego Craven 1990: Dawson 1990; Goldsworthy 1997; Kirk 1999; Bagaric 2000; Goldsworthy 2000; Kirby 2000; 2D02a and 2002b.

3

parently, by reference to the real reasons that lay behind them - or explained in; that deny the choices and obscure the reasons.

'Dt~on Rule and Registered Organisations

r'l:lflli~-in 1898, Sidney and Beatrice Webb noted that uthe Device of the Common Rule" was a~~~rsllI feature of Trade Unionism" and that "the assumption on which it is based is held from~t(Iofthe Trade Union world to the other" (Webbs 1898: 561). The "assumption" to which the~_b$;referred was that "in the absence of any Common Rule, the conditions of employment are

~tb>'free competitiol1', this always means, in practice, that they are arrived at by Individual.!!tbiiining between paIlles ofvery unequal bargaining strength" (Webbs 1898: 560).I --~B~.c", .

'~~~'~6111m0I1 rule" the Webbs meant the fixing of telms and conditions of employment which

I~e.fie.-(it.o "whole bodies of:-V0rkers" .h~ a given trade or industry. In plinc~ple: sU~h rules coul~ be" PQ:sed by means of collective bargaml11g. However, for the Webbs. the distrIbutIOn of power 111 a,cap:i,t-iLlist system was such that "the only available method of securing a Common Rule is Legal~~ct,i:rient - difficult in the face of interests so powerful for the Trade Unions to obtain, but once

Wtllirted...easy of application and enforcement" (Webbs 1898: 554).

iR(sJogic clearly constituted part ofthe conceptual underpinning of the conciliation and arbitrationWd wages boal'd systems that were adopted in the Australian colonies/States in the late 191h and

iMiY,20th centuries.6 It also found expression in section 38(f) of the original Commonwealth~~}fciliation and Arbitration Act. This empowered the Commonwealth Court of Conciliation and~~itration lito declare by any award or order that any practice, regulation, mle, custom, ten'll of

ragteement, condition of employment or dealing whatsoever determined by an award in relation to an~1a·~lstrial matter shall be a common rule of any industry in connection with which the dispute (ie thej~p~te which gives rise to the award) arises. II In the itltellectual context of the day, it is easy to

lcierstand how it might be assumed that the technique of the common rule was consistent withl~§Jii:~1e letter and the spirit of the new province for law and order which was to be ushered in by the~~g04 Act.7 But it is equally easy to understand why use of this technique might be seen as highly,~,ltroversia1.

~i\~e,n the initial general hostility ofthe business community towards the conciliation and arbitration~sx,stem,B it is hardly surprising that the constitutional validity of this provision should have been put~;ls~ue at an early stage in the history of the system. The challenge duly occurred in 1910 in the..Whybrow Case. 9

~:'1~'8".

~T1)is was actually the third case to reach the High COUIt in that year involving Whybrow & Co.

Reeves 1902: 69-181; Mitchell 1989; Creighton & Stewart 2000: 36-39.

further Higgins 1915, 1919 and 1920.

Plowman & Smith 1986; Plowman 1989a; 1989b, cbs 1-2.

~~:\The Australian Boot Trade Employees Federatiol1l' Wltybrow & Co (1910) 11 CLR 311.

3

par·ently, by reference to the real reasons that lay behind them - or explained in the choices and obscure the reasons.

Rule and Registered Organisations

1898, Sidney and Beatrice Webb noted that "the Device of the Common Rule" was a feature of Trade Unionism" and that "the assumption on which it is based is held from

ofthe Trade Union world to the other" (Webbs 1898: 561). The "assumption" to which the , ,referred was that "in the absence of any Common Rule, the conditions of employment are

competitiol1', this always means, in practice, that they are arrived at by Individual. inirlg ilel''''e,m paIlies ofvery unequal bargaining strength" (Webbs 1898: 560).

t'com.m')I1 rule" the Webbs meant the fixing of telms and conditions of employment which to "whole bodies of workers" in a given trade or industry. In plincipie, such rules could be by means of collective bargaining. However, for the Webbs, the distribution of power in a system was such that "the only available method of securing a Common Rule is Legal

- difficult in the face of interests so powerful for the Trade Unions to obtain. but once :ain,ed., .. easy of application and enforcement" (Webbs 1898: 554).

logic clearly constituted part of the conceptual underpinning of the conciliation and arbitration boal'd systems that were adopted in the Australian colonies/States in the late 19th and

centuries.6 It also found expression in section 38(f) of the original Commonwealth II1Ci/iC,ticI" and Arbitration Act. This empowered the Commonwealth Court of Conciliation and Ib:;::::~~ lito declare by any award or order that any practice. regulation. lUie, custom, ten11 of li condition of employment or dealing whatsoever determined by an award in relation to an

shall be a common rule of any industry in connection with which the dispute (ie the gives rise to the award) arises. II In the itltellectual context of the day. it is easy to

?~r·stand how it might be assumed that the technique of the common rule was consistent with letter and the spirit of the new province for law and order which was to be ushered in by the

7 But it is equally easy to understand why use of this technique might be seen as highly "'"trolversia!.

the initial general hostility of the business community towards the conciliation and arbitration it is hardly surprising that the constitutional validity of this provision should have been put at an early stage in the history of the system. The challenge duly occurred in 1910 in the

Case. 9

was actually the third case to reach the High COUlt in that year involving Whybrow & Co.

Reeves 1902: 69-181; Mitchell 1989; Creighton & Stewart 2000: 36·39.

,:·",e "mi"er Higgins 1915, 1919 and 1920.

Plowman & Smith 1986; Plowman 1989a; 1989b. cbs 1-2.

Australian Boot Trade Employees Federation l' WltybrolV & Co (1910) 11 CLR 311.

4

• ill Al/sll'alian Boot Trade Employees Federation v Whybrow & COlO the High COUIt had, ince upon the "reserved State powers" doctrine, ruled that the Commonwealth Court ofmation and Arbitration lacked the capacity to make an award that was inconsistent with a Staten·this instance detenninations of Wages Boards in New South Wales, Queensland, ~outh

alia and Victoria) - although the> COUlt also determined that "inconsistency" did not arise for1l1'pOSe where it was possible to give effect to both the State law and the Federal law. II [n the

"il'd case in the sequence, The King v Commonwealth COllrt ofConciliation and Arbitration: Ex'e>Whybl'ow & CO,12 the High Court unanimously rejected an argument to the effect that the

.,,,.npu!sory" aspects of the regime established by the 1904 Act were unconstitutional because they~re inconsistent with the essentially "voluntary" character of arbitration at common law. Plowman .

fShiith (1986: 214) observe that this decision shows tllat the three original members oftlle COllrtI~re_prepared to adhere to canons of constitutional interpretation even though this resulted in the'r~sei'Vation of aspects ofthe arbitration system to which they were personally opposed."13

:~'i.~

iJia,:-third case in the Whybrow trilogy saw a rather different outcome. In this instance, all five'iMI;'bel~ of the Coul1 found that section 38(1) of the 1904 Act was beyond the power of the FederaiM:-rliament acting in reliance upon section 51(xxxv). Griffith CJ put the matter thus:~:o/

I adhere to the opinion which I expressed in the Woodworkers' Case l4 that the term'dispute' connotes the existence ofpal1ies taking opposite sides, to which I would add thatthe word <arbitration' connotes the same idea. In the nafure of things. an industrial disputemay be prevented from coming into existence by various means, but the only means whichthe parliament is authorised to employ are conciliation and, perhaps. arbitration. If,therefore. the state of things such that there are no asce11ainable parties between whom anascertainable difference capable of being composed exists -the basis of arbitration iswanting. Afortiori if all the parties concerned are contentep.IS

. .

~j:ffith el, Barton and O'Conno~ JJ all proceeded from the assu~ption that it simply was not'ssible for the Parliament to pass a law in reliance upon section Sl(xxxv) that pel:mitted the

',This proposition has played an important role in determining the relationship between federal awards and State lawsrid awards and agreements). It has the effect that employees who are covered by both State and Federal provision on a'en topic may obtain the benefit of both sets of prov"isions. so long as it is possible to comply with both of them in a

ner that is not inconsistent with the federal provision - cf Blakeley v Devondale Cream (Victoria) Pty Ltd (1968)7CLR 253.

'he original members oftlle Court, Griffith el, Barton and O'Connor JJ, were appointed in 1903. In 1906 the size ofCourt was increased to five with the appointments oflssacs and Higgins lJ.

. Jr-' Federated Smllmill, Timbelyard alld General Woodworkers Employees' Association ofAustralasia v James Moore'&'SOIl PO' Ltd (1909) 8 CLR 465, 468.

'!·"(1910) II CLR311, 317-18.

C-..

4

ill Allsll'alian Boot Trade Employees Federation v Whybrow & COlO the High COUIt had, in upon the "reserved State powers" doctrine, ruled that the Commonwealth Court of

i~cilia,tion and Arbitration lacked the capacity to make an award that was inconsistent with a State ~""t"" instance detenninations of Wages Boards in New South Wales, Queensland, ~outh

and Victoria) - although the' Comt also determined that "inconsistency" did not arise for 'blliI'P()sewhere it was possible to give effect to both the State law and the Federal law, II [n the

in the sequence, The King v Commonwealth COllrt of Conciliation and Arbitration: Ex l&,Whvbl'OW & CO,12 the High Court unanimously rejected an argument to the effect that the

3~f.:~:~~~;'~:a~~s;p~ec~itts~,0fthe regime established by the 1904 Act were unconstitutional because they iM the essentially 'Iyoluntary" character of arbitration at common law. Plowman·

I (1986: 214) observe that this decision shows that the three originailUembers of the Court prepared to adhere to canons of constitutional interpretation even though this resulted in the

,ej'tatiionofaspects afthe arbitration system to which they were personally opposed."13

case in the Whybrow trilogy saw a rather different outcome. In this instance, all five of the Coul1 found that section 38(1) of the 1904 Act was beyond the power of the Federal

'rlil,ment acting in reliance upon section 5 1 (xxxv). Griffith CJ put the matter thus:

adhere to the opinion which I expressed in the Woodworkers' Case l4 that the term 'dispute' connotes the existence ofpal1ies taking opposite sides, to which I would add that the word 'arbitration' connotes the same idea. In the nafure of things, an industrial dispute may be prevented from coming into existence by various means, but the only means which the parliament is authorised to employ are conciliation and, perhaps, arbitration. If, therefore, the state of things such that there are no ascertainable parties between whom an ascertainable difference capable of being composed exists, the basis of arbitration is wanting. A/ortiori if all the parties concerned are contentep.IS

CJ, Barton and O'Conno~ JJ all proceeded from the assum-ption that it simply was not for the Parliament to pass a law in reliance upon section Sl(xxxv) that pel:mitted the

!, "-This proposition has played an important role in determining the relationship between federal awards and State laws awards and agreements). It has the effect that employees who are covered by both State and Federal provision on a topic may obtain the benefit of both sets of prov"isions. so long as it is possible to comply with both of them in a

that is not inconsistent with the federal provision - cf Blakeley v Devondale Cream (Victoria) Pty Ltd (1968) CLR 253.

original members ofthe Court. Griffith el, Barton and O'Connor JJ, were appointed in 1903. In 1906 the size of was increased to five with the appointments oflssacs and Higgins lJ.

'Federated Smllmill, Timbelyard alld General Woodworkers Employees' Association of Austl'alasia v James Moore . PO' Ltd (t 909) 8 CLR 465. 468,

5

llg', of common rule awards. In separate judgments, Higgins and Isaacs JJ agreed that section',as it then stood was invalid. However, they bOtll left open the possibility that differentiy(provisions might be found to fall within the power conferred by section 5I(xxxv), so long

:y:relied upon techniques of conciliation and arbitration..16 The Legislature made no attempt torethese possibilities for almost 40 years,17 and when it did do so, it again foundered on thetdescribed in the reasoning in Whybrow. 18 The consequence is that the principal focus of the

..~:iit::Jor virtually all of its first century has been upon the settlement of disputes, with littlemrlffipi to explore the possibilities afforded by the concept ofprevention.19

~i;~s,,_;not entirely surprising that Griffith CJ and Barton and O'emmal' 1J should have been

:ur~hWortable with provisions enabling the. making of common rule awards. For most ,of the~Qders of the Constitution, including the three original members of the High Court, it was~~qtl;:d that the conciliation and arbitration power would be invoked in only highly exceptionalli-f6:~t;Jinstances such as those which had arisen in the early 1890s. Principal responsibility form.j~~ial.r~la:ions was. ~o r.eI,?ain ~ith the States. The concept of comm~n rtll~ awards 111U.st haveIRp"~ared mUllIcal to tIllS ongmal VIew ofthe "federal balance". Taken to Its logical conclUSion, the~)!l~.bility of such awards could have had the effect of entirely displacing State regulation by~Giing that Federal common rule awards operated in all sectors of the economy - especially if the

IRla~(3.1 instruments l~ad the effect of entirely displacing any inconsistent State provisions dealingi,i~1:the same issue. Obviously, the foundation justices of the High Court thought that such an

~~r.a_tion of the power in section 51 (xxxv) of the Constitution would exceed the paragraph and alsojf~t~-it was inconsistent with the implied relationship between the federal and State law making;':',..<".' ,llthorities.\.~'

1r~~)fVhybrow litigation ensured that this did not happen. The first case appeared to establish that~l:Commonwealth Court of Conciliation and Arbitration could 1).ot make, any award that was1~~9_~sistent with a law of a State - although that principle did 110t survive the demise of the:l%:.served State powers doctrine in the Engineers Case in 1920.:20 Of more lasting effect was them'Cision in the third case to the effect that section 51(xxxv) did not provide authority for the making

~/J,I;91O) 11 CLR 311,336 (Isaacs J). 342 (Higgins J). See further McCallum & Smith 1986: 68-69.

-ri-~j-~e legislation has for many years contained provision for the making of common rule awards in the Territories.;;)lese provisions depend for the constitutionality upon the Territories power in section 122 of the Constitution. See now!/f,f!/'kplace Relations Act 1996, sections 141- 142.

,,;;J'

!~>;-

~:j?v Commonwealth Court o/Conciliation and Arbitration; Ex paNe Ozone Theatres (Aust) Ltd (1949) 78 CLR 389.~J<,:See also R v Kelly: Ex parte State of Victoria (1950) .81 CLR 64. The provision that was at issue in Ozone,!~/l~,alres was an attempt to extend the operation ofa common rule measure that had been put in place during World War!'J)~reliance upon the defence pOwer in section 51(vi).It:';,;i~;7)ee further Ford 1984: 65-78 - but cf R v Turbet; Ex pal'te AI;slralian Building Construction Employees and~~uildel's Labourers Federation (1980) 144 CLR 335, 353-56 (per Murphy J); Re Federated Slol'emen alld Packers~:'f;!~liplJ ofAustralia; Ex parte Wooldumpers (Victoria) Ltd (1989) 166 CLR 311,320-21 (per Mason CJ), 327-28 (per~J~~~e J). Partly in response to the observations in Wooldwllpel's, the legislation was amended in 1993 by the insertionl;~f;~'rovision intended to prevent "industrial situations" developing into "disputes" - see WRAct, section 4(1).

;!~'";

~ltA/I1algamated Society a/Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.~d;:-' ,

5

of common rule awards. In separate judgments, Higgins and Isaacs 1J agreed that section it then stood was invalid, However, they bOtll left open the possibility that differently

. might be found to fall within the power conferred by section 5 I (xxxv), so long ,eyrelleo upon techniques of conciliation and arbitration .. 16 The Legislature made no attempt to

these possibilities for almost 40 years,17 and when it did do so, it again foundered on the descri\,ed in the reasoning in Whybrow. 1B The consequence is that the principal focus of the

virtually all of its first century has been upon the settlement of disputes, with little explore the possibilities afforded by the concept ofprevention.19

entirely surprising that Griffith CJ and Barton and Q'COImor JJ should have been ;)lTlfortalbJe with provisions enabling the making of common rule awards. For most ,of the

of the Constitution, including the three original members of the High Court, it was that the conciliation and arbitration power would be invoked in only highly exceptional

~!n!;ta"'ces such as those which had arisen in the early 1890s, Principal responsibility for relations was to remain with the States. The concept of common nile awards must have inimical to this original view ofthe "federal balance". Taken to its logical conclusion, the

iilability of such awards could have had the effect of entirely displacing State regulation by Federal common rule awards operated in all sectors of the economy - especially if the

instruments l~ad the effect of entirely displacing any inconsistent State provisions dealing same issue. Obviously, the foundation justices of the High Court thought that sllch an of the power in section 51(xxxv) of the Constitution would exceed the paragraph and also

inconsistent with the implied relationship between the fe4eral and State law making lilioritiies,

W]-.vbr01W litigation ensured that this did not happen. The first case appeared to establish that

';~:~~;:~'~~~:1t: Court of Conciliation and Arbitration could not make any award that was c~ with a law of a State - although that principle did ~10t survive the demise of the

State powers doctrine in the Engineers Case in 1920.:20 Of more lasting effect was the in the third case to the effect that section 51(xxxv) did not provide authority for the making

11 CLR 311,336 (Isaacs J). 342 (Higgins J). See further McCallum & Smith 1986: 68-69.

;:~;"~:1:;~~~::o;, has for many years contained provision for the making of common rule awards in the Territories. Ie: depend for the constitutionality upon the Territories power in section 122 of the Constitution. See now

.Relations Act 1996, sections 141- 142 . ..... ;

Commollwealth Cottrl o/Conciliation and Arbitration; Ex parte Ozone Theatres (AIISf) Ltd (1949) 78 CLR 389. also R v Kelly: Ex parte Slate of Victoria (1950) .81 CLR 64. The provision that was at issue in Ozone

'a"'eswas an attempt to extend the operation ofa common rule measure that had been put in place during World War reliance upon the defence pOwer in section 51(vi).

further Ford 1984: 65-78 - but cf R v Turbet; Ex parte AI;sll'alian Bui/ding Constrllction Employees and Labourers Federation (1980) 144 CLR 335, 353-56 (per Murphy J); Re Federated Storemen and Packers

of,4usll'o{jo; Ex parle Woo/dumpers (Victoria) Ltd (1989) 166 CLR 311,320-21 (per Mason CJ), 327-28 (per 1 in response to the observations in Wooldwllpel's, the legislation was amended in 1993 by the insertion

of,iro,';s;,mintended to prevent "industrial situations" developing into "disputes" - see WRAct, section 4(1) .

. Am""ga.ualed ,Soci"!' oj'En,gineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.

i<;;

6

'~r,~'"

r.f1~:mlll0n rule awards, and that the Federal tribunal could deal only with disputes to which there'ef:e_identifiable parties. As indicated, this not only helped preserve the autonomy of the State'ft~~i~~s,but also severely circumscribed the development of the prevention power in the Federal~r~. This, in turn, meant that the development of the system as a whole had to depend on the

'jfhlyal'tificial and increasingly ul1wieidy concept of the industrial "dispute".-:; ,

~t1161;gh the decision in the third Whybrow Case undoubtedly served to inhibit the development of,lJ;federal system of conciliation and arbitrati011, its' practical impact was much less marked than'iJrhave been anticipated simply by taking the decision at face value. This can be attributed to a11Ul~b.e'r of factors. among the most important of which were the decisions of the High C01ll1 in the~.!l1lood Cinemd- I and Metal Trades cases.2

!.~ ... , .

fg~:first of these cases enabled registered trade unions to generate indusb'ial disputes withre'm~ib¥ers who did not presently employ any members of the union, and irrespective of whetherI,p;','existing employees were satisfied with their terms and conditions of employment. This~si()n was based on the premise that unions were palties principal to disputes in their own right.~ia not just as agents for their members. This reasoning meant that unions could now generate~kutes on behalf of persons who were presently neither employees nor members. but who might

~me their members in the future. Furthermore, they could do this by service upon employers ofall,ds set out in written logs of claims. If the employer rejected or ignored these demands, or put

,unter-offer. that was sufficient to create a "dispute" for purposes of attracting the jurisdiction of:,federal tribunal, even though the dispute existed only "on paper".23 Ten years later, in Metal'eJes. a majority of the High Court took this reasoning a stage further by determining that unionsIg,also generate disputes about the terms and conditions of non-members who were presently

ployed by employer parties.~4 An award made in settlement of such a dispute could require the

'ilrwood Cinema Limited v The Allstralian Theatrical and Am!lsement Employees' Association (1925) 35 CLR 528." J

'The Metal Trades Employers Associatio[t v The Amalgamated Ef!gineering Union (1935) 5,4 CLR 387.

On the origins of paper disputes see R v Commonwealth COllrt a/Conciliation and A,·bitration; Ex parte OP Jones1.914) 18 CLR 224.

i'In deciding this case, the Court overruled its earlier decision in Amalgamated Engineering Union v Alde,.dice Pty.. In re Metl'opolitan Gas Co (1928) 41 CLR 402, in which the Court had decided that the Commonwealth Court ofnciliation and Arbitration did not have power to make awards "prescribing the duties ofemployers to employe~s who~ neither parties to the industrial dispute before the Court nor members of nor represented by an organisation which is'party to that dispute" (per Knox CJ. 411). Interestingly, only one member of the Court (Isaacs J, 419) made eveniSsing reference to the decision in Burwood Cinema. In Re Finance Sector Ultion ojAllstralia; Ex parte Financial'lil1ic (Vic) PO' Ltd (1993) 178 CLR 352 by a 4:3 majority the Court determined that the AIRC could not includerovision in an award to the effect that employers in the insurance industry make superannuation contributions in respectfall employees, irrespective of union membership, into a named superannuation fund. In reaching this decision Mason, Deane. Toohey and Gaudron JJ (at 361) suggested that the Metal Trades principle extended only to claims relatingWages and conditions of non-members. and not to claims that relate to matters beyond that This decision is not

:,~itltout difficulty. On one view, any claim that falls within the jurisdiction of the Commission ill relation to employees:~ho are union members ought logically also to pertain to the terms and conditions of non-members. Unfortunately,

}heir Honours did not provide any guidance as to how the distinction between member and non-member claims was to~l¥=drawn, and subsequent decisions provide little indication as to the extent, if any. to which the Metal Trades principle~llas been compromised.

6

rule awards, and that the Federal tribunal could deal only with disputes to which there identifiable parties. As indicated, this not only helped preserve the autonomy of the State

but also severely circumscribed the development of the prevention power in the Federal This, in turn, meant that the development of the system as a whole had to depend on the

artificial and increasingly unwieidy concept of the industrial "dispute".

the decision in the third Whybrow Case undoubtedly served to inhibit the development of system of conciliation and arbitrati011, its· practical impact was much less marked than been anticipated simply by taking the decision at face value. This can be attributed to a

factors, among the most important of which were the decisions of the High COlllt in the Cinemd- I and Metal Trades cases.2

!

of these cases enabled registered trade unions to generate indusb'ial disputes with who did not presently employ any members of the union, and irrespective of whether

employees were satisfied with their terms and conditions of employment. This was based on the premise that unions were patties principal to disputes in their own right,

, 110t just as agents for their members. This reasoning meant that unions could now generate on behalf of persons who were presently neither employees nor members, but who might

their members in the future. Furthermore, they could do this by service upon employers of set out in written logs of claims. If the employer rejected or ignored these demands, or put

'punt'''-()fii'', that was sufficient to create a "dispute" for purposes of attracting the jurisdiction of liefe,le"a! tribunal, even though the dispute existed only "on paper".2) Ten years later, in Metal

majority of the High Court took this reasoning a stage further by determining that unions [ul,j,also generate disputes about the terms and conditions of non-members who were presently mploy'ea by employer parties.;l4 An award made in settlement of such a dispute could require the

Cinema Limited v The Allstralian Theatrical and Am!lsement Employees' Association (1925) 35 CLR 528,

J Metal Trades Employers Associatio!f v The Amalgamated Et!gineering Union (1935) 5,4 CLR 387.

On the origins of paper disputes see R v Commol/wealth COllrt a/Conciliation and A"bitration; Ex parle GP JOlles 18 CLR 224.

deciding this case, the Court overruled its earlier decision in Amalgamated Engineering Union v Alde,.dice Pty Metl'Opolitan Gas Co (1928) 41 CLR 402, in which the Court had decided that the Commonwealth Court of

:o,~:~\:.~~:~~ and Arbitration did not have power to make awards "prescribing the duties of employers to employe~s who l~ to the industrial dispute before the Court nor members of nor represented by an organisation which is

dispute" (per Knox CJ, 411). Interestingly, only one member of the Court (Isaacs J, 419) made even ~,.-' c .•. '-'c--- to the decision in BIII'wood Cinema. In Re Finance Sector Ullion of Australia; Ex parte Financial

PO' Ltd (1993) 178 CLR 352 by a 4:3 majority the Court determined that the AIRC could not include an award to the effect that employers in the insurance industry make superannuation contributions in respect

~[aO ',,"'ployo<~. irrespective of union membership, into a named superannuation fund. In reaching this deciSion Mason Toohey and Gaudron JJ (at 361) suggested that the Metal Trades prinCiple extended only to claims relating

and conditions of non-members, and not to claims that relate to matters beyond that This decision is not difficulty. On one view, any claim that falls within the jurisdiction of the Commission ill relation to employees

are union members ought logically also to pertain to the terms and conditions of \lon-members. Unfortunately, Honours did not provide any guidance as to how the distinction between member and non-member claims was to

and subsequent decisions provide little indication as to the extent, if any, to which the Metal Trades principle been compromised.

7

party to observe the terms and conditions set out therein in respect of both members andbut could not impose obligations upon those non-members by reason of the fact that

,..:~re not party to the dispute, and were not members of an organisation' that was such a party.25

Jbglcof Melal Trades also led to tl;e result that awards could be binding upon all members of a;ler~~ organisation of employers that was a party to an industrial dispute. even though thatbefwas not itself a party to the dispute.26 It followed that employers who wished to escape the-:of awards could endeavour to do 50 either by resigning from an organisation that had beenp!lrty to a relevant dispute, or by not joining an organisation in the first place. 27 Yet this

..al1ce strategy would be ineffectual in circumstances where a union elected to generate an~Iynew dispute with the employer, or to "rope" them in to an existing award. This latteri~jqi.le generally involved the union creating a dispute by serving a log of claims upon the(iQyer demanding that they observe the terms of the award that is attached to the log. An award~;in' settlement of any such dispute would then bind the employer to observe the terms of the'6)l.i award.28

::constraints imposed by Whybrow were also mitigated by the provisions of the 1904 Act whichXwith the continuing operation of a~ards in circumstances where there has been a transmission

Jusiness by an employer who was respondent to an award to another employer entity who wasirrol:"respondent to that particular award, or who was not respondent to any award. Theli\sJitiJtionality ofthese provisions was upheld in George Hudson. 29 Although they have generatedrI~ti'yely little litigation over the years,3° they did serve to maintain the integlity of the federal'»~in, by ensuring that employers could not escape award coverage simply by transferring theirtm[sThess to another entity that was not party to an industrial dispute, and consequently was covereds;, ::~,

_>£/See Re Media, Entertainment and Arts Alliance; Ex parte Arnel (1994) i79 CLR 84; Re National Tertial)'i~~~{1(it;lI7lndustIY Union; Ex parte Quickenden (1996) 71 ALJR 75; Attorney General (Queellsland) v Riordan (1998)ih92J::LR 1.39-48 (per Kirby 1).

~~¥-'

now Workplace Relations Act 1996, section 149(1)(f).

~r1niS logic caused Some employer organisations to devise a form of "associate" or "non-industrial" membership,)~i~ll carried most (if not all) of the benefits of membership, but did not carry the burden of award coverage. The~~CY of this technique has been thrown into some doubt by the decision of the AIRC in Carpenter v CorOlla'?«il1yacturing Pty Ltd, Whelan C. 30 October 2002. Print PR924136.

",~ection 111AAA of the WR Act is intended to help preserve the integrity of State systems of conciliation and:arl;lItration by requiring the AIRC to cease dealing with a dispute involving employees whose terms and conditions are~Lilated by a State award or agreement, unless satisfied that it would not be in the public interest for it to cease dealing~!ll:the dispute. This provision was introduced in 1996, and appears to have had the effect of reducing the use of!r~pi!lg-inawards. although it certainly has not eliminated the practice.

Oeorge Hudson Limltedv Australian Timber Workers' Union (1923) 32 CLR 413.

;~~;"But see Shaw v United Felt Hat Pty Ltd (1927) 39 ClR 533. More recently, see North Western Health Care~!11;ol'k v Health Services Union ofAustralia (1999) 92 FCR 477; PP COllsultallts Ply Ltd v Finance Sector Unioll,~900) 201 ClR 648. For comment see Creighton 1998; Ginters 1999; McCallum 2001.

. '

7

to observe the terms and conditions set out therein in respect of both members and but could not impose obligations upon those non-members by reason of the fact that

not party to the dispute, and were not members of an organisation· that was such a party.25

of Melal Trades also led to the result that awards could be binding upon all members of a organisation of employers that was a party to an industrial dispute. even though that

was not itself a pruiy to the dispute.26 It followed that employers who wished to escape the awards could endeavour to do 50 either by resigning from an organisation that had been

to a relevant dispute, or by not joining an organisation in the first place. 27 Yet this strategy would be ineffectual in circumstances where a union elected to generate an

new dispute with the employer, or to "rope" them in to an existing award. This latter , generally involved the union creating a dispute by serving a log of claims upon the

demanding that they observe the terms of the award that is attached to the log. An award settlement of any such dispute would then bind the employer to observe the terms of the award.28

lccmstl'aints imposed by Whybrow were also mitigated by the provisions of the 1904 Act which the continuing operation of a~ards in circumstances where there has been a transmission

by an employer who was respondent to an award to another employer entity who was ic.res,.ondellt to that particular award, or who was not respondent to any award. The I~fi'tutiionality ofthese provisions was upheld in George Hudson. 29 Although they have generated

little litigation over the years,3° they did serve to maintain the integlity of the federal ensuring that employers could not escape award coverage simply by transferring their

to another entity that was not party to an industrial dispute, and consequently was covered

Media, Entertainment and Arts Alliance; Ex parte Arne/ (1994) i79 CLR 84; Re National Tertial)' IndusllY Union; Ex parte QUickel1den (1996) 71 ALJR 75; Attorney General (Queellsland) v Riordan (1998)

1.39-48 (per Kirby 1).

now Workplace Relations Act 1996, section 149(1)(f).

caused Some employer organisations to devise a form of "associate" or "non-industrial" membership, most (if not all) of the benefits of membership, but did not carry the burden of award coverage. The

technique has been thrown into some doubt by the decision of the AIRC in Carpenter v Corona 1;'1,raCI"'·ii'~ Pty Ltd, Whelan C, 30 October 2002. Print PR924136.

111AAA of the WR Act is intended to help preserve the integrity of State systems of conciliation and requiring the AIRC to cease dealing with a dispute involving employees whose terms and conditions are

a State award or agreement, unless satisfied that it would not be in the public interest for it to cease dealing This provision was introduced in 1996, and appears to have had the effect of reducing the use of

awards. although it certainly has not eliminated the practice .

.. : George Hudson Limltedv Australian Timber Workers' Union (1923) 32 CLR 413.

But see Shaw v United Felt Hat Pty Ltd (1927) 39 CLR 533. More recently, see North Western Health Care . v Health Services Union of Australia (1999) 92 FCR 477; PP COllsultallts Ply Ltd v Fillance Sector Unioll 201 CLR 648. For comment see Creighton 1998; Ginters 1999; McCallum 2001.

8

ijW'combined effect of the decisions in Burwood Cinema, lvIetal Trades and George Hudson. was

I dba-ble the federal system of conciliation and arbitration to maintain and to extend its reach110twfthstanding the constraints imposed by the third Whybrow decision. These decisions were theff£aiu::t of the expanded and reconstituted High Ccmt as described earlier. However, their practicalI.l><a.c.t.w.. auld have been significantly less profound had it not been for what some might regard as amf~i~_r~intuitive decision ofthe Court whilst the fouudingmernbers were still in the majority.

~it:;-' ,'uJiibimna Coal Mine NL v Victorian Coal Miners' AssociationJI arose out of a decision of Higgins~~resident of the Commonwealth Court Conciliation'and Arbitration to uphold a decision of the'~strial Registrar to register a union of Victorian coalminers under the 1904 Act. The case raised~~~,~_~-prit1cipal issues: whether a trade union all of whose members were in one State had the

rl6'lCity to engage in an interstate industrial dispute thereby ttiggering the jurisdiction of the Federalfb<~,nal;-whether those provisions of the Act which providea for the registration and regulation of~,~<:imions and employer associations, including the conferral of corporate status upon registeredlal~s,.were within the scope of the conciliation and arbitration and incidental powers; and whether~i-~_xpansive definition of "industrial dispute" in the 1904 Act was within the legislati~e

IllTIP~tence of the Parliament.f~:

i~'Court, comp;'ising Griffith CJ, Balton, O'Connor and Isaacs JJ, unanimously upheld HigginsI-~~fision to register the applicant union, and in doing so rejected all of the arguments put forward1i*.1,~,~.employers to the effec: that the registI'a~ion provisions of the 1904 Act were be~ond" tI~e

:legl,sl,atlve powers of the Parhament under sectlOn 51(xxxv). The Court was also UnanllTIOUS 10

~~§iiirg employer arguments that the definition of "industrial dispute" in section 4 of the 1904 Act~~<beyond power.~:-:

'~:decision in Jumbzmna played a crucial role in the development of the federal system of~ustrial regulation over the ensuing decades. For example, it helped legitimate provisionsmj~1l4ed to protect the organisational security of registered organisations and to give such~~"nisations the capacity to access the Commonwealth Court of Conciliation and Arbitration byDn~ting disputes as representative of their members and (post-Burwood Cinema) as paJties!R~!~cipal in their own right. It also helped to expand and consolidate the jurisdiction of the federal~il~"hilal by permitting the legislature to adopt an expansive approach to the range of matters thatrl-~w be made subject to conciliation and arbitration - although, as will appear, the jurisprudence in'I]i-s:wea took some curious twists and turns over the years.~,iJ;'fi/'}

~~Il~_.co.urse of their r~sol1s in Jll1n?zmna, se~~ral members of the COUlt exhibited a very r~alap'p.l'eClatlon of the logrc of collective bal'gammg, and of "the central role· of representativefganisations in that process. For example O'Connor J observed that:'1"- ",t:

It may well be conceded that there'is no general power to prevent and settle industrialdisputes by any means the legislature may think fit to adopt. The power is restricted toprevention and settlement by conciliation and arbitration. Any attempt to effectivelyprevent and settle industrial disputes by either of these means would be idle if individualworkmen and employees only could be dealt with. The application of the 'principle ofcollective bargaining,' not long in use at the time of the passing of the Constitution, is

8

'.om',;,,"" effect of the decisions in Burwood Cinema, lvIetal Trades and George Hudson, was the federal system of conciliation and arbitration to maintain and to extend its reach

QitlllStanding the constraints imposed by the third Whybrow decision. These decisions were the of the expanded and reconstituted High Ccmt as described earlier. However, their practical

would have been significantly less profound had it not been for what some might regard as a ~tel·,intuitive decision ofthe Court whilst the fOllndingmembers wel'e still in the majority.

Coal Mine NL v Victorian Coal Miners' AssociationJI arose out ofa decision of Higgins ~P';l:esiident of the Commonwealth Court Conciliation and Arbitration to uphold a decision of the

Registrar to register a union of Victorian coalminers under the 1904 Act. The case raised j'Drin"iD;.J issues: whether a trade union all of whose members were in one State had the

to engage in an interstate industrial dispute thereby triggering the jurisdiction of the Federal whether those provisions of the Act which provideB. for the registration and regulation of

and employer associations, including the conferral of corporate status upon registered . within the scope of the conciliation and arbitration and incidental powers; and whether

fe'(pansive definition of "industrial dispute" in the 1904 Act was within the legislati~e

~pet"",ce of the Parliament.

cOlnp;'ising Griffith eJ, Balton, O'Connor and Isaacs JJ, unanimously upheld Higgins to register the applicant union, and in doing so rejected all of the arguments put forward

empi<lye,rs to the effect that the registration prOVisions of the 1904 Act were beyond" the powers of the Parliament under section 51(xxxv). The Court was also unanimous in

employer arguments that the definition of "industrial dispute" in section 4 of the 1904 Act

in Jumbzmna played a crucial role in the development of the federal system of regulation over the ensuing decades. For example, it helped legitimate provisions

to protect the organisational security of registered organisations and to give such I'mi:,ations the capacity to aCCess the Commonwealth Court of Conciliation and Arbitration by

disputes as representative of their members and (post-Bul'wood Cinema) as pruties in their own right. It also helped to expand aild consolidate the jurisdiction of the federal

by permitting the legislature to adopt an expansive approach to the range of matters that be made subject to conciliation and arbitration - although, as will appear, the jurisprudence in

took some curious twists and turns over the years.

" course of their reasons in J1.lmbzmna, several members of the Comt exhibited a very real " of the logic of collective bargaining, and of "the central role' of representative

!anisaltiorlS in tha~ process. For example O'Connor J observed that:

It may well be conceded that there'is no general power to prevent and settle industrial disputes by any means the legislature may think fit to adopt. The power is restricted to prevention and settlement by conciliation and arbitration. Any attempt to effectively prevent and settle industrial disputes by either of these means would be idle if individual workmen and employees only could be dealt with. The application of the 'principle of collective bargaining,' not long in use at the time of the passing of the Constitution, is

9

essential to bind the body of workers in a trade and to ensure anything like permanence inthe settlement. Some system was therefore essential by which. the powers of the Act couldbe made to operate on representatives of workmen, and on bodies of workmen, instead ofon· individuals only. But if such representatives were merely chosen for the occasionwithout any permanent ~tatLis before the Court [of Conciliation and Arbitration], it isdifficult to see how the permanency ofthe settlement of the dispute could be assured.32

"~wareness of the nature of collective b~rgaining and sensitivity to the need for representativeisations of employees and (to a lesser extent) employers helps explain a decision that may at .lush appear to be somewhat at odds with the views of the thre,e original members of the High .concel11ing the implied constitutional limitations on the power of the Federal Parliament to

:'Jaws or authorise the making of awards intruding upon the sphere of State legal regulation."pugh both Barton and O'Connor JJ (and Griffith CJ less overtly) had opposed the inclusion of#mciliatiol1 and arbitration power in the Constitution, they would. have been fully aware of the

r~~:o.ns for its inclusion. As such, they were clearly prepared to countenance the enactment ofrgislation which was apt to, and indeed essential for,' the achievement of that pUl'pose.33

~(16~equent developm'ents have clearly demonstrated that, having in Jumbunna permitted the genie~:conciliation and arbitration to escape from the bottle of section 51 (xxxv), it was quite impossible,~~fticuhl.rly where that power was enhanced by the express and implied incidental powers, to restorem:Ystatus as a means of last resort where collective bargaining had proved to be ineffectual or~possible. After the Engineers Case,J4 comparatively few cases have been argued before the High@'PlIl1 in an attempt to _revive the notion that the Constitution itself imported an implied federal~~'Striction on the Commonwealth's law-making. None has attempted to reverse the historic ruling~1)1l171 mmna.

i;;~.:·~The Industry Requirement~1:'.:r

(9'Tl7e dispute must be in an industry

:eemployers' challenge to the validity of the 1904 Act in Jumbunna was based, in part, on theion that the definition of "industrial dispute" in section 4 of that Act, and the criteria for

:istratiol1 as an organisation set out in section 55, encompassed disputes and organisations who:~re engaged in activities that did not fall within the meaning of "industry" as that term is lIsed inction 51 (xxxv) of the Constitution. O'Connor J dealt with this issue in a straightforward andmmonsense manner:

. Ibid, 358-59. Sel; too Griffith CJ, at 334; Barton J at 345; and Isaacs J at 371-78.

Plowman & Smith (1986: 213) suggest that the decision may be attributed to the fact that the members of the Courtlay not have fully considered the implications of the decision; that they may "have been carried away by the sense ofcasion, given that this was the first time they had been called upon to examine the scope of the conciliation and'bitration power; and that «having excluded the majority of employees of State govermnents' (.ic) and StateIstrumentalities from the jurisdiction of the Arbitration Court [in Federated Amalgamated Government Railway and

,-i'amway Service Association v New SOl/th Wales Railway Traffic Employees Association (1906) 4 CLR 488] the,_Judges were mOre prepared to give the Arbitration court a free reign (sic)."

';J~AmalgalllatedSociety a/Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.

9

essential to bind the body of workers in a trade and to ensure anything like permanence in the settlement. Some system was therefore essential by which. the powers of the Act could

-, be made to operate on representatives of workmen. and on bodies of workmen, instead of - on individuals only. But if such representatives were merely chosen for the occasion

without any permanent ~tatLis before the Court [of Conciliation and Arbitration], it is difficult to see how the permanency of the settlement of the dispute could be assul'ed.32

awarene,,, of the nature of collective b~rgaining and sensitivity to the need for representative Inisatil)I1S of employees and (to a lesser extent) employers helps explain a decision that may at .

appear to be somewhat at odds with the views of the thre,e original members of the High . concel11ing the implied constitutional limitations on the power of the Federal Parliament to

or authorise the making of awards intruding upon the sphere of State legal regulation. Barton and O'Connor JJ (and Griffith CJ less overtly) had opposed the inclusion of

tc()ne,ilil,ti<l11 and arbitration power in the Constitution, they WOUld. have been fully aware of the for its inclusion. As such, they were clearly prepared to countenance the enactment of

which was apt to, and indeed essential for,' the achievement of that pUl'pose.ll

lSe'quomt developm'ents have clearly demonstrated that, having in Jumbunna permitted the genie J~:~;~:~;'~i~~~ and arbitration to escape from the bottle of section 51 (xxxv), it was quite impossible, til where that power was enhanced by the express and implied incidental powers, to restore

a means of last resort where collective bargaining had proved to be ineffectual or After the Engineers Case,J4 comparatively few cases have been argued before the High

in an attempt to _revive the notion that the Constitution itself imported an implied federal <gstriction on the Commonwealth's law-making. None has attempted to reverse the historic ruling

Industry Requirement

dispute must be in an industry

employers' challenge to the validity of the 1904 Act in Jumbunna was based, in part, on the "",rtion that the definition of "industrial dispute" in section 4 of that Act, and the criteria for :egistn,ti(111 as an organisation set out in section 55, encompassed disputes and organisations who

engaged in activities that did not fall within the meaning of "industry" as that term is used in 51 (xxxv) of the Constitution. O'Connor J dealt with this issue in a straightforward and

manner:

358-59. Se~ too Griffith CJ, at 334; Barton J at 345; and Isaacs J at 377-78.

Plowman & Smith (1986: 213) suggest that the decision may be attributed to the fact that the members of the Court not have fully considered the implications of the decision; that they may "have been carried away by the sense of . given that this was the first time they had been called upon to examine the scope of the conciliation and

:?~:~:~;~~~p~~o~;wer; and that «having exCluded the majority of employees of State goverrunents' (.ic) and State ~;';~ from the jurisdiction of the Arbitration Court [in Federated Amalgamated Govern1/lent Railway and

Service Association v New SOllth Wales Railway Traffic Employees Association (1906) 4 CLR 488] the were mOre prepared to give the Arbitration court a free reign (sic)."

Amalgamated Society a/Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.

10

The words ["industrial dispute"] are free from ambiguity, and must be construed with theirordinary grammatical meaning. So construed, the definition includes within the term'industry' every kind of employment for pay, hire, adval1tage, or reward... 'Industrial

, dispute' was not, when the Constitution was framed, a technical or legal expression. It hadnot then, nor has it now, any acquired meaning. It meant just what the two English wordsin their ordinary meaning conveyed to ordinary persons... 3S

it,"""",.,,:, ,

:~ill·~Le.xpansive approach to the concept of "industry" survived for some considerable time. Fori1Wiple, in the Municipal Employees Case36 a majority of the High Court decided that manualJi'B.i:kers employed by local govenunent authorities were engaged in industry in the requisite sense.ffthecourse of his reasons Higgins J expressly rejected the proposition;that only manual employees~hldbe so engaged:

It is true that up to the present most of the disputes are disputes with manual workers; bLltwe are discussing a remedial power confelTed on parliament for all time; and we have noright to limit the meaning of the words to manual disputes, even if it were true that whenthe Constitution became law there had been 110 disputes with non~manual workers as totheir conditions of labour...37 ' :

~~ravan Duffy J, in dissent, saw the matter rather differently:

In my opinion an 'industrial dispute' within the meaning of section 51(xxxv) of theConstitution is one in which a number of employees organised or united together are incontest with their employer or employers with respect to the remuneration of theemployees, or with respect to any matter directly affecting them in the performance of theirduties, in an undertaking or undertakings carried on for the purpose of gain and wholly ormainly by means of manuallabour.JS .

~l;ese observations of Gavan Duffy J neatly encapsulate the tensions that were to bedevil theJ'ri~erpretation of the l'industrial dispute" concept for more than sixty years: the notion that white

"@.6Har workers in general, and professional staff in particular, could not engage in "industrial"~)sputation for purposes of attracting the jurisdiction of the Federal tribunal; that "industrial"~4isputes could only arise in situations where business was undertaken for purposes of profit; and

What even where the parties were engaged in an "industry" in the relevant sense, the range of matters~;;h,r-elation to which they could engage in disputation was limited to "remuneration" and to "anyijJl'atter directly affecting them in the performance of their duties."

,.( 1908) 6 CLR 309, 365. See also Griffith CJ at 333, and Isaacs J at 370. Barton J did not make any direct reference~tqjihis issue. but nor did he disagree with his colleagues on this point.

tt,­~~f:.'Fedel'ated.M/lnicipa/ and Shire COIUlCi! Employees' Union ofAustralia \I City ofMelbow'ne (1919) 26 CLR 508.

Loc. Cit., 575.

It is perhaps worth mentioning in this context that Gavan DuffY J was counsel for the employers in

10

The words ["industrial dispute"] are free from ambiguity. and mllst be construed with their ordinary grammatical meaning. So construed, the definition includes within the term 'industry' every kind of employment for pay, hire, adval1tage, or reward ... 'Industrial

, dispute' was not, when the Constitution was framed, a technical or legal expression. It had not then, nor has it now, any acquired meaning. It meant just what the two English words in their ordinary meaning conveyed to ordinary persons ... 3S

!_exp,msive approach to the concept of "industry" survived for some considerable time. For in the Municipal Employees Case36 a majority of the High Court decided that manual

employed by local goverrunent authorities were engaged in industry in the requisite sense. course of his reasons Higgins J expressly rejected the proposition;that only manual employees be so engaged:

It is true that up to the present most of the disputes are disputes with manual workers; bLlt we are discussing a remedial power confelTed on parliament for all time; and we have no right to limit the meaning of the words to manual disputes, even if it were true that when the Constitution became law there had been 110 disputes with non~manual workers as to their conditions of labour ... 37 ' :

Duffy J, in dissent, saw the matter rather differently:

In my opinion an 'industrial dispute' within the meaning of section 51(xxxv) of the Constitution is one in which a number of employees organised or united together are in contest with their employer or employers with respect to the remuneration of the employees, or with respect to any matter directly affecting them in the performance of their duties, in an undertaking or undertakings carried on for the purpose of gain and wholly or mainly by means of manuallabour.JS .

observations of Gavan Duffy J neatly encapsulate the tensions that were to bedevil the rlte.cp,""tation of the "industrial dispute" concept for more than sixty years: the notion that white

we,rk,ors in general, and professional staff in particular, could not engage in "industrial" ~isputation for purposes of attracting the jurisdiction of the Federal tribunal; that "industrial"

could only arise in situations where business was undertaken for purposes of profit; and where the parties were engaged in an "industry" in the relevant sense, the range of matters

""""VU to which they could engage in disputation was limited to "remuneration" and to "any directly affecting them in the performance of their duties."

6 CLR 309, 365. See also Griffith CJ at 333, and Isaacs J at 370. Barton J did not make any direct reference issue. but nor did he disagree with his colleagues on this point.

"Federated.Municipal and Shire COlmcil Employees' Union of Australia \I City ofMelbow·ne (1919) 26 CLR 508.

Loc. Cit., 575.

Loc. cit., 584. It is perhaps worth mentioning in this context that Gavan DuffY J was counsel for the employers in

11

:~~cbl1ar employment was found to be within the reach of the federal tribunal in the Insurance;'~ildBal1k Officials Cases in 1923.39 This was essentially on the basis that the activities of;-aIid insurance companies were ancillary to the functioning of industry, and as such could berid as uincidental" to industry for purposes of access to the conciliation and "arbitration

i~'~40 However, the High Comi adopted a rather different approach in the State Teachers CaseIn that case it was held that school teachers employed in State schools were not engagedin the relevant sense. In the course of their joint reasons, Knox CJ and Gavan Duffy and

found that the educational activities of the States could not constitute an industry:

They bear no resemblance whatever to an ordiriary trade, business or indttstry. They -arenot connected directly with, or attendant upon, the production Or distribution of wealth; andthere is no cooperation of capital" and labour, in any relevant sen~e, for a great publicscheme of education is forced upon the communities of the States by law.42

[f carrying on a system of public education is not within the sphere of industrialism, thosewho confine their effOlts to that activity cannot be engaged in an industry or in an industrialoccupation or pursuit.43

course of a vigorous dissent, Isaacs J made it clear that he saw the matter in a very different

Education, cultural and vocational, is now and is daily becoming as much the artisan'scapital and tool, and to a great extent his safeguard against unemployment, as theemployers' banking credit and insurance policy are part of his means to carry on thebusiness. There is at least as much reason for including tile educational establishments inthe constitutional power as 'labour' services, as there is to include insurance companies as'capital'services.44

Insurance Staffs' Federation v Accidellt Underwriters' Association and Bank Officials AssociatiolT vofAustralasia (1923) 33 CLR 517. The two cases were heard together.

See Rich and Isaacs'JJ, loc. cit.• 527. See also Prop/'ietors oj Daily News Limited v Australian Journalistsiisociation (1920) 27 CLR 532. where the High Court unanimously rejected the proposition that journalists were',"" of being involved in an industrial dispute.

Federated State School Teachers Association ojAustralia v Vic/orja (1929) 41 CLR 569. Prior to the decision in theCase (supra), the majority could have achieved the same result in reliance upon either or both of the reserved

powers and implied governmental immunities doctrines.

Loc. Cit., 588.

11

employment was found to be within the reach of the federal tribunal in the Insurance Officials Cases in 1923.39 This was essentially on the basis that the activities of

insurance companies were ancillary to the functioning of industry, and as such could be as uincidental" to industry fol' purposes of access to the conciliation and "arbitration However, the High Comi adopted a rather different approach in the State Teachers Case In that case it was held that school teachers employed in State schools were not engaged in the relevant sense. In the course of their joint reasons, Knox CJ and Gavan Duffy and

found that the educational activities of the States could not constitute an industry:

They bear no resemblance whatever to an ordiriary trade, business or industry. They -are not connected directly with, or attendant upon, the production Or distribution of wealth; and there is no cooperation of capital' and labour, in any relevant sen~e. for a great public scheme of education is forced upon the communities of the States by law.42

[f carrying on a system of public education is not within the sphere of industrialism, those who confine their effOlts to that activity cannot be engaged in an industry 01' in an industrial occupation or pursuit.43

, course of a vigorous dissent, Isaacs J made it clear that he saw the matter in a very different

Education, cultural and vocational, is now and is daily becoming as much the artisan's capital and tool, and to a great extent his safeguard against unemployment, as the employers' banking credit and insurance policy are part of his means to carry on the business. There is at least as much reason for including tile educational establishments in the constitutional power as 'labour' services, as there is to include insurance companies as 'capital'services.44

Insurance SIajJs' Federation v Accident Underwriters' Association and Bank Officials AssociatiolT v .. of Australasia (1923) 33 CLR 517. The two cases were heard together.

Rich and Isaacs'JJ, lac. cit .• 527. See also Prop/'ietars oj Daily News Limited v Australian Journalists (1920) 27 CLR 532. where the High Court unanimously rejected the proposition that journalists were

of being involved in an industrial dispute.

'_d''''n""IState School Teachers Association oj Australia v Victorja (1929) 41 CLR 569. Prior to the decision in the Case (supra), the majority could have achieved the same result in reliance upon either or both of the reserved

powers and implied governmental immunities doctrines.

Lac. Cit., 588.

12

ite the force of this logic, over the next fifty years the High COtllt handed down a series of'ons which had the effect that some groups of workers were adjudged to be engaged inipy" in the relevant sense. whilst others in apparently similar situations were found 110t to be;aged.. For example, in the Professiona! Engineers Case,4S professional engineers employed,te gov"ernment depaltments and· authorities were found to be engaged in an "industry" in the

[vaht sense. The same was the case for credit union clerks,46 for insurance clerks employed by:f"t~s'manian Motor Accidents Insurance Board,47 and for clerks employed by health funds in. . Iria.43 By way of contrast, clerical officers employed by State governments were found not to

~ployed in an "industry" in the State Public Servants' Case.49 Clerical workers employed by,G~:immissioner for Motor Transport ofNew South Wales,so firefighters,S] and university teachers11et a similar fate. s2

.:eiid-result of these decisions was that, by 1983, it was impossible to predict~with any degree of;j;lty whether any given group of employees would or would not be regarded as being engage9~t'tindustry» for purposes of accessing the jurisdiction of the federal tribunal. Creighton, Ford &I)ell (1993: 443) have suggested that to the extent that it is possible to derive any principles of

lral application from the decided cases, it was to the effect that a dispute could be regarded as'Iisitely industrial if:

(a) the activity of the employers directly involved the production 01' distribution of materialwealth ('tangible goods and commOdities');

(b) regardless of the activity of the employei's, the work of the relevant employees wasindistinguishable in character from work pelformed by other employees directly engaged inthe production and distribution of material wealth;

(c) the activitY of the employers, whilst not of itself directly productive of material wealth,

I,,_~)e Queen v The President etc ofthe Commonwealth Conciliation and Arbitration Commission; Ex parte Association(~IProfessional Engineers. Australia (1959) 107 CLR 155.

_~~"Orhe Queen v Marshall; Ex parte Federated Clerks Union ofAustralia (I975). 132 CLR 595.

~~I':/ R 11 Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577.

R v Holmes and Federated Clerks Ullion ofAustralia; Ex parte Manchester Unity Independent Order ofOddjellowsfi~ Victoria (1980) 147 CLR 65.

The King v Commonwealth COllrt ojCollciliation and Arbitration; Ex parte Victoria (1942) 66 CLR 488.

R v Holmes; Ex parte Public Service Association ofNew SOl/th Wales (1978) 140 CLR 63.

Pitfield 11 Franki (1970) 123 CLR 448.

-R v lvlc1l4ahon,' Ex parte Darvall (1982) 151 CLR 57.

12

the force of this logic, over the next fifty years the High Comt handed down a series of which had the effect that some groups of workers were adjudged to be engaged in in the relevant sense, whilst others in apparently similar situations were found not to be

For example, in the Professional Engineers Case,4S professional engineers employed gov"ernment depaltments and· authol'it"ies were found to be engaged in an "industry" in the sense. The same was the case for credit union clerks,46 for insurance clerks employed by

asnlOnian Motor Accidents Insurance Board,47 and for clerks employed by health funds in way of contrast, clerical officers employed by State governments were found not to

iml,lo:yed I an "industry" in the State Public Servants' Case,49 Clerical workers employed by Gpmrnissic.ner for Motor Transport of New South Wales,so firefighters,Sl and university teachers

a similar fate,S2

<_end-result of these decisions was that, by 1983, it was impossible to predict~with any degree of wl"etl,er any given group of employees would or would not be regarded as being engage9

~n.~·indu,;trl'" for purposes of accessing the jurisdiction of the federal tribunal. Creighton, Ford & 443) have suggested that to the extent that it is possible to derive any principles of

apl,lie,atiion from the decided cases, it was to the effect that a dispute could be regarded as quelse,'OIY industrial if:

(a) the activity of the employers directly involved the production 01' distribution of material wealth ('tangible goods and commodities');

(b) regardless of the activity of the employei·s, the work of the relevant employees was indistinguishable in character from work pelformed by other employees directly engaged in the production and distribution of material wealth;

( c) the activitY of the employers, whilst not of itself directly productive of material wealth,

President etc of the Commonwealtlt Conciliation and Arbitration Commission; Ex parle Association 'PI',,!,,·,;onai Engineers. Australia (1959) 107 CLR 155.

Queen v Marshall; Ex parte Federated Clerks Union of Australia (I975). 132 CLR 595.

v Cohen; Ex parle Motor Accidents Insurance Board (1979) 141 CLR 577.

R v Holmes and Federated Clerks Ullion of Australia; Ex parte Manchester Unity Independent Order ojOddjellows ,: Victoria (1980) 147 CLR 65.

King v Commonwealth COllrl ojConciliation and Arbitration; Ex parte Victoria (1942) 66 CLR 488.

", R v Holmes; Ex parte Public Service Association of New SOllth Wales (1978) 140 CLR 63.

Pitfield v Franki (1970) 123 CLR 448.

-R v lv1cA4aholl: Ex parte Darvall (1982) 151 CLR 57.

13

was so closely associated with it as to be 'incidental' or 'ancillary' to industry propel'. Thecloseness of the connection required was a matter of degree.53

~~'_:-:-­

~~tpl!Sly. the notion that "industry" was confined to manual labour must be taken to have been~:j~q by the time Professional Engineers was decided in 1959. Furthermore, with the passage ofi:~·",aqd the increasing integration of the modern economy, the dissenting opinion of Isaacs J in the

rrrlJ-'Teachers case becomes more and more compelling.

"rt'~/;~:Sl/bject-mattel' ofthe dispute must be industrial in character'-·",,'k'·-·

;~~sl1oted earlier that in the course of his dissenting reasons in the lvlzmicipal Employees Case,:V\~ll-Duffy J had indicated that in his opinion "industrial disputes" within the meaning of section

~;<kv) were disputes with respect to the remuneration of employees or to "any matter directly'~~6~til'g them in the performance of their duties". This form of words clearly suggests that Gavan0trffy' j considered that the jurisdiction of the federal tribunal did not extend to "disputes" that had~fy:<all indirect bearing upon the performance of work by the employees to whOlT{ the allegedIlrlpbte related.

,~L:easOnil1g is also evident in the op~nion of O'Connor J in.Clancy, Sol an early case involving theitf~,~p;'etation of the Industrial Al'bih'ation Act 1901 (NSW). The case turned upon whether the'At~;itiol1 of "industrial matter" in the 190I Act extended to regulation of the closing hours ofr.ij~hers shops. O'Connor J stated tllat:

'-,,'C'o,

The construction of the section must be controlled by the sUbject matter, and the generalintention of the Act. The subject matter is to regulate the relations between e~nployers andemployees...Ifwe confine the effect of the sections to matters directly affecting industries,its scope and intention can be carried out. But once we begin to introduce and include inits scope matters indirectly affecting work in the industry, it becomes very difficult to drawany line so as to prevent the power of the Arbitration Court from being extended to theregulation and'control of bus.inesses and industries in every part.ss

:~

~he views of Gavan Duffy J (in the Municipal Employees Case) and O'COIUlor J (in Clancy) standiffi.~narked contrast to those of Isaacs and Rich JJ in the Union Badge Case:

The words of the Constitution 'industrial disputes' stand unabridged·_by any specifiedsubject matter of disputes; they fit themselves to every phase of industrial growth, and lookonly to the single fact ofan industrial dispute. Parliament, shaping the national policy inaccordance with the predominant political ideas for the time being, mayor may not restrictcauses upon which public interventioll shall proceed; but unless it does so, we are unable tose~ how the COUlt can impose any limitations on the matters Which, at any given moment inthe life of the Commonwealth, do in fact, and by their practical operation, affect at Some

~~"jor mOre detailed consideration ofthe industry requirement see Creighton, Ford & Mitchell 1993: ch 17~ McCallunl~~:rittard 1995: 237-57; Williams 1998: 68-78.

jr'Wi Clancy 11 Butchers' Shop Employees Union (1904) 1 CLR 181.

13

was so closely associated with it as to be 'incidental' or 'ancillary' to industry propel'. The closeness of the connection required was a matter of degree.53

the notion that "industry" was confined to manual labour must be taken to have been the time Professional Engineers was decided in 1959. Furthermore, with the passage of

increasing integration of the modern economy, the dissenting opinion of Isaacs J in the ',/7ea,c/z,,,"s case becomes more and more compelling.

'subject-matter of the dispute mllst be industrial in character

noted earlier that in the course of his dissenting reasons in the Jvlzmicipal Employees Case, i,all,uuIIY J had indicated that in his opinion "industrial disputes" within the meaning of section

were disputes with respect to the remuneration of employees or to "any matter directly them in the performance of their duties". This form of words clearly suggests that Gavan

considered that the jurisdiction of the federal tribunal did not extend to "disp~tes" that had indirect bearing upon the performance of work by the employees to whom the alleged

related.

:iv".,;oning is also evident in the opinion of O'Connor J in.Clancy, Sol an early case involving the "D1'etal:ion of the Indush'ial Al'bih'ation Act 1901 (NSW), The case turned upon whether the

of "industrial matter" in the 190 I Act extended to regulation of the closing hours of shops. O'Connor J stated that:

The construction of the section must be controlled by the subject matter, and the general intention of the Act. The subject matter is to regulate the relations between e~nployers and employees ... Ifwe confine the effect of the sections to matters directly affecting industries, its scope and intention can be carried out. But once we begin to introduce and include in its scope matters indirectly affecting work in the industry, it becomes very difficult to draw any line so as to prevent the power of the Arbitration Court from being extended to the regulation and· control of bus.inesses and industries in every part.S5

views of Gavan Duffy J (in the Municipal Employees Case) and Q'COIU101' J (in Clancy) stand " ... ,_ .. ___ contrast to those of Isaacs and Rich JJ in the Union Badge Case:

The words of the Constitution 'industrial disputes' stand unabridged·_by any specified subject matter of disputes; they fit themselves to every phase of industrial growth, and look only to the single fact ofan industrial dispute. Parliament, Shaping the national policy in accordance with the predominant political ideas for the time being, mayor may not restrict causes upon which public intervention shall proceed; but unless it does so, we are unable to se~ how the COUlt can impose any limitations on the matters which, at any given moment in the life of the Commonwealth. do in fact, and by their practical operation, affect at Some

detailed consideration of the industry requirement see Creighton, Ford & Mitchell 1993: eh 17~ McCallunl 1995: 237-57; Williams 1998: 68-78.

'T'M""" Butchers' Shop Employees Union (1904) 1 CLR 181.

14

',; stage interrelations of employers and employed 50 as to give rise to what would then beregarded as an industrial dispute.56

.'ilhd Ridl JJ clearly contemplated that the legislature could place restrictions upon the range.tte.rs that could properly be made the subject matter of arbitral disputes. But they were equally:~fthe view that no such restrictions were inherent in section 51 (xxxv) itself.

-jistinction between inherent constitutional constraints upon the subject matter of industrial~~s'and those imposed by the legislature became a constant refrain in the decisions of the High

,._oyer the years following the Municipal Employees case. In some instances, the COutt shnptyoot make clear whether it was dealing with the interpretation of the statutory definition of theli!:industrial dispute", or with the metes and bounds of what was permissible in terms of section'%i<v). In other cases, it seemed to elide the two concepts. On either view, the High Court's:'ii1e on this subject was unclear and open to the criticism that it lacked consistency. ,,rticular;the Court appeared for a time to vacillate between an apparent desire to respe~t theiple of "managerial prerogatives", and an acceptance that parties that stand in .an industrialonship may properly engage in a dispute about any subject matter that pertains to that(Hlship - and that it is for the legislature to decide whether or not to invest the tribunal with the

~~city to prevent and settle such disputes by conciliation and ,arbitl'ation. This, in turn, helped to~i~hJight the reality that if industrial parties chose to dispute in relation to a given sUbject matter, itfkted little practical purpose to determine that that subject matter stood outside the realm of~ltral disputes. Arguably, the fact that a given issue could not fonn the subject matter of an~itraI dispute I?ight make disputatio~ in relation t~ t.hat issue less likely, bec~t1s.e such ~isputation~JJbeen "delegltnnated". More prosaIcally, a restnctIve approach to the permIssible subject matter,8Cdispute simply served to put the parties beyond th~ reach of the umpire.~., .

11r:'6f the most vigorous proponents of the view that matters of "managerial prerogative" stood~qiside the realm of arbitrable disputes was Barwick CJ. For example, in 7}·amways No 2 his~~i~bul' put the matter thus:

Whilst it is a truism that industrial disputes and awards made in their settlement mayconsequentially have an impact upon the management of an enterprise and upon otherwiseunfettered managerial discretions, the management of the enterpdse is not itself the subjectmatter ofan industrial dispute.57 .

,if"~ti~the facts of that case, the High Court unanimously came to the view tl~at it was not possible to!\~ve an arbitrable dispute over whether tram or bus services operated by a two-man crew should ber,

~'::'.Alls'I'((lian Tramway Employee's Association y Prohran & Malyern Tramways Trl/st (1913) 17 CLR 680, 702. In~n!s case the majority of the Court determined that a dispute about whether union members could wear a union badge on~~~ir watchchains whilst on duty was a dispute as to an industrial matter, Note also the expansive approach adopted by~Ii~majority in Federated Clothing Trades y Archer (1919) 27 CLR 207 (a demand that aU garments made by[~spondent employers should carry a label identifying the actual manufacturer of the garment was found to be~~irdustrial" in character).'\

~~.:;The Queen v Commonwealth COITciliation and Arbitl'atiolJ Commissi01l; Ex parte Melbolll'l7e and Metropofilani!rll1lllvays Board (1966) 115 CLR 443, 451. To the same effect, see also his Honour's observations in R v Flight Crew'((f/icel's' Industrial Tribunal.. Ex pal'te Australian Federation ofAir Pilots (1971) 127 CLR 11,20.

14

stage interrelations of employers and employed 50 as to give rise to what would then be regarded as an industrial dispute.56

Ri'cil JJ clearly contemplated that the legislature could place restrictions upon the range could properly be made the subject matter of arbitral disputes. But they were equally

" .. ,n'''," view that no such restrictions were inherent in section 51 (xxxv) itself.

i\listirlctioll between inherent constitutional constraints upon the subject matter of industrial those imposed by the legislature became a constant refrain in the decisions of the High

the years following the Municipal Employees case. In some instances, the Couti simply clear whether it was dealing with the interpretation of the statutory definition of the

j'!~il1dl1strialdispute", or with the metes and bounds of what was permissible in terms of section In other cases, it seemed to elide the two concepts. On either view, the High Court's

on this subject was unclear and open to the criticism that it lacked consistency. , la11icl1lar.·the Court appeared for a time to vacillate between an apparent desire to respe~t the

"managerial prerogatives", and an acceptance that parties that stand in .an industrial tlionsillip may properly engage in a dispute about any subject matter that pertains to that aticlllsihip - and that it is for the legislature to decide whether or not to invest the tribunal with the

to prevent and settle such disputes by conciliation and ,arbitl·ation. This, in turn, helped to the reality that if industrial parties chose to dispute in relation to a given sUbject matter, it

little practical purpose to determine that that subject matter stood olltside the realm of disputes. Arguably, the fact that a given issue could not form lbe subject matter of an dispute might make disputation in relation to that issue less likely, because such disputation

"delegithnated". More prosaically, a restrictive approach to the permissible subject matter simply served to put the parties beyond th~ reach of the umpire.

the most vigorous proponents of the view that matters of "managerial prerogative" stood the realm of arbitrable disputes was Barwick CJ. For example, in n·amways No 2 his

, put the matter thus:

Whilst it is a truism that industrial disputes and awards made in their settlement may consequentially have an impact upon the management of an enterprise and upon otherwise unfettered managerial discretions, the management of the enterpdse is not itself the subject matter of an industrial dispute.s7 .

·the facts of that case, the High Court unanimously came to the view that it was not possible to an arbitrable dispute over whether tram or bus services operated by a two-man crew should be

Tramway Employee's Association v Pra/wan & Malvern Tramways Trllst (1913) 17 CLR 680, 702. Tn the majority of the Court determined that a dispute about whether union members could wear a union badge on

watchcllhains whilst on duty was a dispute as to an industrial matter, Note also the expansive approach adopted by in Federated Clothing Trades v Archer (1919) 27 CLR 207 (a demand that aU garments made by

';::~~~~~:~, employers should carry a label identifying the actual manufacturer of the garment was found to be tii in character),

Queen v Commonwealth Conciliation and Arbitl'atio/J Commissio1l; Ex parte Melbolll'l7e and Metropofilan [rG,,,,,ays Board (1966) 115 CLR 443, 451. To the same effect, see also his Honour's observations in R v Flight Crew

Industrial Tribunal; Ex parte Australian Federation of Ail' Pilots (1971) 127 CLR 11,20.

\5

rted to one-man operation. The Australian Tramway and Motor Omnibus Employees'jritiOll had formulated its demands in this way, following an earlier majority decision of the":COUlt to the effect that a demand that all trams and buses opeIated by the respondents be

i1ed:·by both a driver and a conductor and that no existing two-man tram or bus operation be,:¢I·ted to one-man operation without the consent of the union or an order of the Commission did

;t6bnstitute an "industrial" matter in the requisite sense.S8

M,f?"':-'lJij\~i~g the decision in the 1966 Case, the Union reformulated its claim yet again. This time, it

efff~;;ded that employees should not be required· to drive trams or buses without the assistance of a~a(J~tor. By a majOlity of 3:2 the High Court detennined that this demand did operate to create

Rrbitrable dispute.s9 Just two years later, in Gallagher, the Court had to determine whether an!5ifrable dispute could arise from a demand that the crew of a ship called the Cel/ana should

'IJu?e the .three cooks claimed by the relevant union or the two proposed by the ship-owner. In an(lfi'unous JUdgment, the Court stated that:

r;::-:;;.We should have thought that it was beyond argument that a dispute on such a subjectmatter is an industrial dispute and that it clearly relates to the relations bet~~en employerand employees and to work done or to be dOl1e by employees.6o -

rfP'ni~-:',twin concepts of managerial prerogatives and the requirement that the subject matter of a

~p\~te should bear directly upon the relations of employers and employees permeated decisions of~~¢}{jgh Cow1 for many years. This resulted in a broad range of matters being adjudged to be~:yond the reach of the tribunal. In addition to shop trading hours61 and manning levels on buses,

1-$115 and aeroplanes,62 they included: compulsory unionism,63 occupational 51.lperannuation,64 use of,~!,,:'.-R v Commonwealth Conciliation and Arbitration Commfssion; Ex parle Melbourne & Metropolitan n·amways~Hard (1965) 113 CLR 228 (Tramways No I).

~i{Melbol/rne& Metropolitan Tramways Board v Horan (1967) 117 CLR 78 (Tramways No 3). For a critical analysis[l3'f:the Tramways decisions. see Maher & Sexton 1972: 111-14.

:~':;r'.

{f!i,Tlie Qlleen v Gallagher; Ex parte Commonwealth Steamship Owners' Association (1968) 121 CLR 330, 335. The:Gourt comprised Kitto, Taylor, Menzies, Windeyer and Owen JJ. Of these, two (Kitto and Owen J1) had dissented in

mways No I, whilst two (Taylor and Menzies JJ) had been in the majority in that case. Taylot, Menzies and Owen JJ,-:'been members of the Court in TI'amways No 2. Menzies and Owen JJ had been part of the majority in Tramways3, whilst Taylor J had dissented in that case.

':In-addition to Clancy, see R v Kelly.: Ex parte Slate o/Victoria (1950) CLR 64.

~H,,' ·See Tramways No J, 1i'Qlnways No 2, and Austl'Quan Fedemtioll of Air Pilots v FUghtcl'ew Officers Indus/rial~r:ribl/Ilal (1968) 119 CLR 16. The logic of the position adopted by Barwick CJ in this latter would have the effect that;tl:!ccupational health and safety ofemployees might not constitute an industrial matter.

f~',,: R v I-Vallis; Ex parte Employers' Association ofWool Selling Brokers (1949) 78 CLR 529; R v Findlay; Ex parte~!!icto"ian Chamber ofMamifaclures (1950) 81 CLR 537 - 'cf R \I Gaudrolt; Ex parte Uniroyal Ply Ltd (1978)'141 CLR;'[/204. For comment on these decisions see Mitchell 1986, 1987, 1988; Weeks 1995.~',

~~~:

t;~~,; R l' Hamil/on Knight; Ex parle Commonwealth Ship Owners' Association (1952) 86 CLR 283. Although theif,M1990377/4 . .

15

to one-man operation. The Australian Tramway and Motor Omnibus Employees' had formulated its demands in this way, following an earlier majority decision of the to the effect that a demand that all trams and buses opel1lted by the respondents be both a driver and a conductor and that no existing two-man tram or bus operation be one-man operation without the consent of the union or an order of the Commission did

;Oll,SHILll.e an "industrial" matter in the requisite serise,S8

the decision in the 1966 Case, the Union reformulated its claim yet again. This time, it that employees should not be required· to drive trams or buses without the assistance of a

By a majOlity of 3:2 the High Court detennined that this demand did operate to create arbitrable dispute,S9 Just two years later, in Gallagher, the Court had to determine whether an

dispute could arise from a demand that the crew of a ship called the Cellana should the three cooks claimed by the relevant union or the two proposed by the ship-owner. In a

judgment, the Court stated that:

We should have thought that it was beyond argument that a dispute on such a subject matter is an industrial dispute and that it clearly relates to the relations bet~~en employer and employees and to work done or to be dOl1e by employees.6o -

concepts of managerial prerogatives and the requirement that the subject matter of a should bear directly upon the relations of employers and employees permeated decisions of

Cow1 for many years. This resulted in a broad range of matters being adjudged to be the reach of the tribunal. In addition to shop trading hours61 and manning levels on buses,

and aeroplanes,62 they included: compulsory unionism,63 occupational superannuation,64 use of

0Rj:£~~~~~C~O~'~'C~U~;o~tion and A}'bUration Commfssion; Ex parle Melbourne & Metropolitan n'amways 113 CLR 228 (Tramways No I).

,,~~e~:~::::~;& Metropolitan Tramways Board v Horan (1967) 117 CLR 78 (Tramways No 3). For a critical analysis ft decisions. see Maher & Sexton 1972: 111-14.

Qlleen v Gallagher; Ex parte Commonwealth Steamship Owners' Association (1968) 121 CLR 330, 335. The i~~~"~~I~~iS~d Kitto, Taylor, Menzies, Windeyer and Owen JJ. Of these, two (Kitto and Owen JJ) had dissented in

1, whilst two (Taylor and Menzies JJ) had been in the majority in that case. Taylot, Menzies and Owen JJ members of the Court in T,.amways No 2. Menzies and Owen JJ had been part of the majority in Tramways

3, whilst Taylor J had dissented in that case.

~J".ilditionto Clancy, see R v Kelly.: Ex parte Slate o/Victoria (1950) CLR 64.

Tramways No 1, 1i-amways No 2, and Australian Federation of Ail' Pilots v FUghtcrew Officers Industrial 119 CLR 16. The logic of the position adopted by Barwick CJ in this latter would have the effect that

~.c,,"p,.tic,".ll health and safety of employees might not constitute an industrial matter .

. R v I'Vallis; Ex parte Employers' Association of Wool Selling Brokers (1949) 78 CLR 529; R v Findlay; Ex parte . Chamber o/Mamifaclures (1950) 81 CLR 537 --cf R v Gaudrolt; Exparte Uniroyal Pty Ltd(1978)'141 CLR For comment on these decisions see Mitchell 1986, 1987, 1988; Weeks 1995. .

R l' Hamiltol1 Knight; Ex parte Co"~monwealth Ship Owners' Association (1952) 86 CLR 283. Although the

16

kers,6S reinstatement of dismissed employees/I> decisions on compulsory redundancy of~:~;"pi,I~ts,61 and direct deduction of trade union dues.6s However, just as there were many

mJ.~!~s.of restrictive interpretations ,of either or both of the statutory definition of industrial matter11,~ection 51 (xxxv), there were also many instances, especially in the 19705, where the Court~ed' a preparedness to adopt a more expansive approach than had been evident in cases slich as

-~;'4111ways trilogy.69 Nevertheless, by the early 19805 there was a clear need for a reassessment1:~~J~msive and confusing body of learning on the industrial matter requirement -as with the~~~n,;¢nt that for a dispute to be arbitrable the parties must be engaged in an industry.7o

'I'at the two English words in their ordinary meaning conveyed fo ordinaly persons"

'a number of decisions in the 1970s and early 1980s it was clear that members of the Highn"were becoming increasingly uncomfortable with the "veritable Serbonian bog oficalities" in which the interpretatiOll of the term "industrial dispute" was then mired.71 For,Ie, in Darvall

I'is commonly cited as authority for the proposition that occupational superannuation could not constitute anrial matter", this may be to overstate the matter. This is because only two members oftl1e Court (McTiernan and11S JJ) expressly based their decision on the proposition that occupational superannuation could not con~titute anrial matter". Two others (Webb and Kitto 11) determined that it could constitute an industrial matter, whilst two

-:n':CJ Wld Fullagar J) based their decision on the fact that as the legislation then stood, awards could not operate forod of more than five years. This would have meant that in many instances the award which created an entitlement

:uperannuation payment would no longer be operative by the time the benefit became payable.

Judges of the Commonwealth Indll3trial Court; Exparte Cocks (1968) 121 CLR 313 - cf R v Moore; Exparte;,ed Miscellaneous Workers' Union ofAustralia (1978) 140 CLR 470, 477 (per Jacobs 1).

GOl/gh: Ex parte Meat and Allied Trades Federatiol1 (Australia) (1969) 122 CLR 237; R v Flight Crew Officers''ial Tribl/na~· Ex parte Australian Federation of Air Pilots (1971) 127 CLR 11; R v Portus; Ex parte City of

'Ii':1973) 129 CLR 312.

;(Flight Crew Officers' Industrial Tribunal: Ex parte AI/stralian Federation ofAir Pilots (1971) 127 CLR 11 - cf'oldham; Exparte Fitzsimons (1976) 137 CLR 153.

(v_Portus; Ex pClI'te ANZ Group (1972) 127 cm 353 - cf Re Alcal1 Australia Ltd: Ex parte- Federation of:,.ia/, Manufacturing and Engineering EmploJ'ees (1994) 181 CLR 96, discussed below.

for example: R v Commonwealth Conciliation al1d Arbitration COlllmission: Ex parte Transport Worke"s'ofAI/stt'alia (1969) 119 CLR 529 (demarcation disputes); R v Coldham; Ex parte Fitzsimons (1976) 137 CLR'ablishment and maintenance of a seniority list for airline pilots and its application in relation to promotion andncy): R v Moore; Ex parte Federated Miscellaneolls WOI'kers' Union ofAustralia (1978) 140 CLR 470, 477

~~fJacobs J) (terms upon which contractors might be engaged on a mine construction site); and R v Gaudl'on; Ex pa,.te'ljroyal Pty Ltd (1978) 141 CLR 204 (preference in employment for union members).~~-

;'::'[for more detailed studies of the industrial matter concept, see Creighton, Ford & Mitchell 1993: eh 18; Pittard &;'~ughtoll 2003: 458-86.

~~.

~j11i~ colourful metaphor was employed by Higgins J (in the Commonwealth COlirt ofConciliation and Arbitration) inlte1~ff,erl11ath of the decision in the second WhybrOlV Case - see Australian Boot Trade Employees Fed.eration v

'90377/4

16

65 reinstatement of dismissed employees/I> decisions on compulsory redundancy of 61 and direct deduction of trade union dues,6s However, just as there were many

restrictive interpretations of either or both of the statutory definition of industrial matter 51 (xxxv), there were also many instances, especially in the 19705, where the Court

a preparedness to adopt a more expansive approach than had been evident in cases slich as trilogy.69 Nevertheless, by the early 19805 there was a clear need for a reassessment

);vte11<;,'e and confusing body of learning on the industrial matter requirement -as with the that for a dispute to be arbitrable the parties must be engaged in an industry.70

""'V/',of ",,. two English words in their ordinary meaning conveyed to ordinGlY persons"

, a number of decisions in the 1970s and early 19805 it was clear that members of the High , becoming increasingly uncomfortable with the "veritable Serbonian bog of

in which the interpretatioll of the term "industrial dispute" was then mired,71 For in DaI·vall

commonly cited as authority for the proposition that occupational superannuation could not constitute an • this may be to overstate the matter, This is because only two members of the Court (McTiernan and

expressly based their decision on the proposition that occupational superannuation could not con~titute an matter", Two others (Webb and Kitto 11) determined that it could constitute an industrial matter, whilst two Wld Fullagar J) based their decision 011 the fact that as the legislation then stood, awards could 110t operate for

than five years, This would have meant that in many instances the award which created an entitlement i";,;.nn, .. t;on payment would no longer be operative by the time the benefit became payable.

of the Commonwealth Industrial Court; Exparte Cocks (1968) 121 CLR 313 - cf R v Moore; Exparle Workers' Union of Australia (1978) 140 CLR 470, 477 (per Jacobs 1),

. Gough: Ex parte Meat and Allied Trades Federation (Australia) (1969) 122 CLR 237; R v Fligllt Crew Officers' TJ'ibllna~· Ex parte Australian Federation of Air Pilots (1971) 127 CLR 11; R v Porfus; Ex parte City of

,973) 129CLR312.

Flight Crew Officers' Industrial Tribunal; Ex parte AZlstralian Federalion of Air Pilots (1971) 127 CLR 11 - cf Exparle Fitzsimons (1976) 137 CLR 153.

. Ex pClI'te ANZ Group (1972) 127 eLR 353 - cf Re Alcon Australia Ltd; Ex parle- Federation of Manufacturing and Engineering Employees (1994) 181 CLR 96, discussed below.

for example: R v Commonwealth Co/rei/;ation and Arbitralion Commission: Ex parte Transport Workers'

ro(:.s1.~;::~~':~~· (1969) 119 CLR 529 (demarcation disputes); R v Coldham; Ex parte Fitzsimons (1976) 137 CLR ?,~ and maintenance of a seniority list for airline pilots and its application in relation to promotion and

R v Moore; Ex parte Federated Miscellaneous Wo/'ke/'s' Union of Australia (1978) 140 CLR 470, 477 J) (terms upon which contractors might be engaged on a mine construction site); and R v Gaudl'on; Ex parte

Ply Ltd (1978) 141 CLR 204 (preference in employment for union members).

more detailed studies of the industrial matter concept, see Creighton, Ford & Mitchell 1993: ch 18; Pittard & I 2003: 458-86,

colourful metaphor was employed by Higgins J (in the Commonwealth Court of Conciliation and Arbitration) in ~~fl.ertll lath of the decision in the second Whybrow Case - see Austl'alian Boot Trade Employees Fed.eration v

The Court comprised Gibbs

17

~III:nembeJ's of the COllrt seemed somewhat frustrated by the fact that the applicant association ofrtKTyersity teachers had chosen to try to estab1isl~ that universities were engaged in activities that,~'dlA properly be regarded as ancillalY or inCidental to industry, "rather than seeking to reassert ther!Uiflority of the approach adopted by Griffith CJ and O'Connor J in Jumbunna.7J

, -ty:~\he 'following year, in the Social W~lfa,.e Case74 the Court was unanimous in sweeping away aml'e',ofauthority dating back to the decision in State Teachers in 1929.75 In doing so. it affirmed thea}rectness oftile approach expounded by Griffith CJ and O'Connor J in Jumbunna, and by Higgins

!J1inthe lvlunicipal Employees Case76 and in the Insurance Staffi Case.77 Their Honours had nolib\lbt that:'r

The words ['industrial disputes'] are not a technical or legal expression. They have to begiven their popular meaning - what they convey to the man in the street. And that isessentially a question offact.78

It is, we think, beyond question that the popular meaning of 'industrial disputes' includesdisputes between employees and employers about the terms of employment and theconditions of work...We reject any notion that the adjective 'industrial' imports somerestriction which confines the constitutional conception of 'industrial disputes' to disputesin productive industry ai1d organised business carried on for the purpose of makin]: profits.The popular meaning of the expression no doubt extends more widely to embrace disputesbetween parties other than employer and employee, such as demarcation disputes, but justhow widely it may extend is not a mater of present conc.ern.79

"{brOW & Co (1910) 4 CAR 1. 42 -cfAttorney-General (Queensland) v Riordan (1998) 192 CLR1, 39-48 (per KirbylX,

i[~';:17leQlleelJ v McMahon; Ex parte Darvall (1982) 151 CLR 57.

~~'

~('tLoc; cit., 60-61 (per Gibbs CJ), 65-66 (per Mason J), 73-74 (per Murphy J) and 74-75 (per Brennan J).

I'~::.!~le Queen v Coldham; Ex parte Australian Social Welfare Union (1983) 153 CLR 297.:§I,;Mason, Murphy, Wilson, Brennan, Deane and Dawson JJ.

~:,State School Teachers' Association 01Australia v Victoria (1929) 41 CLR 569.%~ .

r~_:;'Federated Municipal and Shire Council Employees' Union 01Australia v Melbourne Corporation (1919) 26 CLRJQ8,572.')':,

i~_ ,-Alls/mUan Insurance Stafft' Association v Accident Underwriters' Association (1923) 33 CLR 5 17528-29.~. .L

1;,'(1983) 153 CLR 297, 312.

17

memb,eJ's of the Court seemed somewhat frustrated by the fact that the applicant association of teachers had chosen to try to estab1isl~ that universities were engaged in activities that

of{>Derlv be regarded as ancillalY or inCidental to industry, "rather than seeking to reassert the of the approach adopted by Griffith CJ and O'Connor J in Jumbunna.7J

following year, in the Social Welfare Case74 the Court was unanimous in sweeping away a authority dating back to the decision in State Teachers in 1929.75 In doing so, it affirmed the

ITeo,tn,ess of the approach expounded by Griffith CJ and O'Connor J in Jumbunna, and by Higgins the lvIzmicipal Employees Case76 and in the Insurance StaJft Case.77 Their Honours had no

that:

The words ['industrial disputes'] are not a technical or legal expression. They have to be given their popular meaning - what they convey to the man in the street. And that is essentially a question offact.78

It is, we think, beyond question that the popular meaning of 'industrial disputes' includes disputes between employees and employers about the terms of employment and the conditions of work ... We reject any notion that the adjective 'industrial' imports some restriction which confines the constitutional conception of 'industrial disputes' to disputes in productive industry ai1d organised business carried on for the purpose of makin]: profits. The popular meaning of the expression no doubt extends more widely to embrace disputes between parties other than employer and employee, such as demarcation disputes, but just how widely it may extend is not a mater of present conc.ern.79

& Co (1910) 4 CAR 1. 42 - cf Atto/'l1(!y-General (Queensland) v Riordan (1998) 192 CLR 1, 39-48 (per Kirby

Queen v McMahon; Ex parte Darvall (1982) 151 CLR 57.

cit .• 60-61 (per Gibbs CJ). 65-66 (per Mason J). 73-74 (per Murphy J) and 74~75 (per BreMan J).

.... Queen v Coldham; Ex parte Australian Social Welfare Union (1983) 153 CLR 297. The Court comprised Gibbs Mason, Murphy. Wilson, Brennan, Deane and Dawson JJ.

School Teachers' Association 0/ Australia v Victoria (1 92?) 41 CLR 569.

: F"d.,"ated Municipal and Shire Council Employees' Union 0/ Allstralia v Melbourne Corporation (1919) 26 CLR

'.,"A,,,""a/i,,,, Insu,.ance Sla/ft' Association v Accident Underwrite,.s' Association (1923) 33 .CLR 5 17528-29.

1983) 153CLR297,312"

18

s;: last observation clearly indicated that there was still some unfinished business in terms of the'~lissible subject matter of industrial disputes, despite the radical reassessment of the position

:i'lg to the range of persons wl10 could engage in such disputes. Even here, however, the Highdid not discard the established doctrine in its entirety:

It has been generally accepted...that the power confen-ed by s 51(xxxv) is inapplicable tothe administrative services of the States...The implications which are necessarily drawnfrom the federal structure of the Constitution itself impose certain limitation on thelegislative power of the Commonwealth to enact laws which affect: the States (and viceversa). The nature of those limitations was discussed in A!lelbourn~ Corporation v TheCommonwealth,gO Victoria v The Commonwealth (the Pay-roll Tax Case)gl .. .If at leastsome of the views expressed in those cases are accepted, a Commonwealth law whichpermitted an instrumentality of the Commonwealth to control the pay, hours of work andconditions of all State public servants could not be sustained as valid, but... the limitationshave not been completely and precisely formulated and for present purposes the questionneed not be fmi11er examined.82

e, question was "further examined" three years later in Re Lee,83 where the Court unanimouslyected arguments put by the State of Queensland to the effect that State and private school teachers

Jfi;e not .engaged i? ~n "i.ndustry:' in the relevant .sens~, ~d that teach~rs in State schools :-,~re1(II'{plved in the admll11stratIve services of a State or 111 actIVitIes that were 1l1herently a State actiVIty.~~1,~,)approach adopted by the Court in that case meant that it was not necessary for it to express anyI~~i~ed view as to the existence or extent of the exclusion .from the reach of the concilia,'tion and~pjtt:ation system of employees' of a State engaged in the administrative services of that State.~yvertheless. the members of the Court did see fit to express some preliminary views on this issue.if,prexample:

There is...much to be said for the proposition that, assuming that there is no discriminationagainst a State or singling out... the exercise of the arbitration power in the ordinary courseof events will not transgress the implied limitations on Commonwealtll legislative power.The exercise by the [the Australian Conciliation and Arbitration] Commission of itsauthority with respect to the employment relationship between a State and its employees inthe course of settling an interstate industrial dispute appears to fall within s 51(xxxv).Although the purpose of the implied limitations is to impose some limit on the exercise ofCOlmnonwealth power in the interest ofpreserving the States as constituent elements in thefederation, the implied limitations must be read to the express provision of theConstitution.84

:(1947) 74 CLR31.

~)li '(1971) 122 CLR 353.

~'!:(1983) 153 CLR297, 313.

;~ iJ. Re Lee; &. parle Harpel' (1986) 160 CLR430.

'~;i~, Loe. cU., 453 (per Mason, Brennan and Deane JJ).

~MI99031714',"

18

observation clearly indicated that there was still some unfinished business in terms of the :p)iSSible subject matter of industrial disputes, despite the radical reassessment of the position

the range of persons wl10 could engage in such disputes. Even here, however, the High not discard the established doctrine in its entirety:

It has been generally accepted ... that the power confen-ed by s 5l(xxxv) is inapplicable to the administrative services of the States ... The implications which are necessarily drawn from the federal structure of the Constitution itself impose certain limitation on the legislative power of the Commonwealth to enact laws which affect: the States (and vice versa). The nature of those limitations was discussed in blelbourn~ Corporation v The Commonwealth,gO Victoria v The Commonwealth (the Pay-roll Tax Case)gl .. .If at least some of the views expressed in those cases are accepted, a Commonwealth law which permitted an instrumentality of the Commonwealth to control the pay, hours of work and conditions of all State public servants could not be sustained as valid, but ... the limitations have not been completely and precisely formulated and for present purposes the question need not be fmiher examined.82

question was "further examined" three years later in Re Lee,83 where the Court unanimously arguments put by the State of Queensland to the effect that State and private school teachers

engaged in an "industry" in the relevant sense, and that teachers in State schools were in the administrative services of a State or in activities that were inherently a State activity.

'heaDt)roach adopted by the Court in that case meant that it was not necessary for it to express any view as to the existence or extent of the exclusion from the reach of the concilia,'tion and

:Pt~;~t\~,~:~,:s~ystem of employees' of a State engaged in the administrative services of that State. e' the members of the Court did see fit to express some preliminary views on this issue.

'or example:

There is ... much to be said for the proposition that, assuming that there is no discrimination against a State or singling out ... the exercise of the arbitration power in the ordinary cOllrse of events will not transgress the implied limitations on Commonwealtll legislative power. The exercise by the [the Australian Conciliation and Arbitration] Commission of its authority with respect to the employment relationship between a State and its employees in the course of settling an interstate industrial dispute appears to fall within s 51(xxxv). Although the purpose of the implied limitations is to impose some limit on the exercise of COlmnonwealth power in the interest of preserving the States as constituent elements in the federation, the implied limitations must be read to the express provision of the Constitution.84

(1971) 122 CLR 353.

(1983) 153 CLR297, 313.

Re Lee; &. parle Harpel' (1986) 160 CLR430.

Loc. cit., 453 (per Mason, Brennan and Deane J1).

19

Re Australian Education Union;' Ex parte State o/Victona (1995) 184 CLR 188.

., (1995) 184 CLR 188, 232.

In our view, also critical to a State's capacity to function as a govemment is its ability, notonly to determine the number and identity of those whom it wishes to engage at the higherlevels of government, but also to determine the terms and conditions on which thosepersons shall be engaged. Hence, ministers, ministerial assistants and advisers, heads ofdepartments and high level statutory office holders, parliamentary officers and judgeswould clearly fall within this group. The implied limitation would protect the States from

h""ID~SF.55 the Court again took the view that it was not necessary to pronounce upon the nature andriih of the implied limitation in the case then before it.s6 However, the Court was finally called"Wri to express a decided view on this issue in Re AEU.87

!i!i:",tt:f",·', .

:i1ii~;case arose out of a wide-ranging challenge by the State of Victoria (suppOlted by several otherrftes) to various aspects of federal industl"ial relations legislation as it applied to the State public

iSeti;(,in Victoria. The Coutt reaffirmed the preliminary position expressed in Re Lee, and in doing~idehtified two practical impacts of the implied limitation upon the operation of the federalf!t~ln. 88 First:

'I,;;;,,>It seems to us that critical to that capacity of a State [ie the capacity to function as agovernment] is the government's right to determine the number and identity of the personswhom it wishes to employ, the term of appointment of such persons and, as well, thenumber and identity of the persons whom it wishes to dismiss with or without notice fromits employment on redundancy grounds. An impairment of a State's rights in these rightsin these respects would, in our view, constitute an infringement of the implied limitation.On this view, the prescription by a federal award of minimum wages and workingconditions would not infringe the implied limitation, at least if it takes appropriate accountof any special functions 01' responsibilities which attach to the employees in questiol1.1I9

~~, '

[i{',other words, federal regulation of core terms and conditions of State employees would not of:it§elf run foul of the implied limitation, but regulation of the numbers and identity of such~~J)loyees would not be within the Federal power. However, the Courfwent all to identify a second~~;t~gory of State employees whose core terms and conditions could not be subject to any measure offf~deral regulation:

@!,~-Re Stale Public Services Federation; Ex parte Attorney-General (WA) (1993) 178 CLR 249.:1'.

§i:i~ This case arose out of some rather vague and highly inflated claims in a log of claims served upon the Governments~of Western Australia and a number of other States. The case was decided on the basis that the U,lioo's demands~f,~onstituted a claim for pay increases as determined by the AlRG, and that as such they were not capable ofgiving rise to~'~geouine interstate dispute between the parties.

~til1i A majority comprised of Mason CJ, Brennan, Deane, Toohey. Gaudron and McHugh JJ delivered joint reasons./Dawson J dissented, essentially on the ground that he did not COl1Sider that an industrial dispute between a State and itsl?i:-,~mployees could possess the necessary element ofinterstatedness to fall within thejurisdietion ofthe tribunal.

19

the Court again took the view that it was not necessary to pronounce upon the nature and of the implied limitation in the case then before it.86 However, the Court was finally called express a decided view on this issue in Re AEU,B7

arose out of a wide-ranging challenge by the State of Victoria (suppOited by several other various aspects of federal industl"ial relations legislation as it applied to the State public

. The Coutt reaffirmed the preliminary position expressed in Re Lee, and in doing idelltified two practical impacts of the implied limitation upon the operation of the federal

First:

It seems to us that critical to that capacity of a State [ie the capacity to function as a government] is the government's right to determine the number and identity of the persons whom it wishes to employ, the term of appointment of such persons and, as well. the number and identity of the persons whom it wishes to dismiss with or without notice from its employment on redundancy grounds. An impairment of a State's rights in these rights in these respects would, in our view, constitute an infringement of the implied limitation. On this view, the prescription by a federal award of minimum wages and working conditions would not infringe the implied limitation, at least if it takes appropriate account of any special functions or responsibilities which attach to the employees in questiol1.119

words, federal regulation of core terms and conditions of State employees would not of run foul of the implied limitation, but regulation of the numbers and identity of such

ilploy,ees would not be within the Federal power. However, the Courfwent 011 to identify a second of State employees whose core terms and conditions could not be subject to any measure of

regulation:

In our view, also critical to a State's capacity to function as a govemment is its ability, not only to determine the number and identity of those whom it wishes to engage at the higher levels of government. but also to determine the terms and conditions on which those persons shall be engaged. Hence, ministers, ministerial assistants and advisers, heads of departments and high level statutory office holders. parliamentary officers and judges would clearly fall within this group. The implied limitation would protect the States from

Stale Public Services Federation; Ex parte Attorney-General (WAJ (1993) 178 CLR 249.

This case arose out of some rather vague and highly inflated claims in a log of claims served upon the Governments Australia and a number of other States. The case was decided on the basis that the U,lion's demands

C,co"stilut"d a claim for pay increases as determined by the AlRC, and that as such they were not capable of giving rise to ,a "eniline interstate dispute between the parties.

Re Australian Education Union;· Ex parte State o/Victona (1995) 184 CLR 188.

A majority comprised of Mason CJ, Brennan, Deane, Toohey. Gaudron and McHugh JJ delivered joint reasons. J dissented, essentially on the ground that he did not COl1Sider that an industrial dispute between a State and its

,e.""pillye'" could possess the necessary element ofinterstatedness to fall within thejurisdiction of the tribunal.

. ., (1995) 184 CLR 188, 232.

20

the exercise by the [Australian Industrial Relations] Commission of power to fix minimulllwages and working conditions in respect of such persons and possibly others as well,90

effect of these decisions is -that the only employees who fall olltside the reach of the~';';·':',..il;",t\on and arbitration power is a somewhat imprecisely defined group of senior State public

and office holders and, in -l:espect of certain issues, some less senior employees of thetes. It remains to consider the range of matters in relation to which the federal tribunal may

:.~_ercise powers of conciliation and arbitration.

--'~ill be recalled that in Social Welfare the High Court had expressly reserved the question of thetent to which the conciliation and arbitration power would extend to disputes between parties'i-';'er than employer and employee, "such as demarcation disputes". By implication, it had also

rved reconsideration of the "industrial matter" concept. Manifestly however. the existingcisional law in this area could not long survive a reversion to a broader view of the concept of'dustrial dispute" defined by reference to what the "man in the street" would understand by the

...,ffi.91

hat this was indeed the case was evident from two 1984 decisions concerning the powers of the6en) Victorian tribunal. First, in the Federated Clerks Case,n a majority of the High COllrt

J1~termined that the concept of "industrial matter" as used in the Industrial Relations Act 1979" (Vic),cQuld encompass a demand for the insertion in an industrial instrument of a clause requiringnotification and consultation in advance of teclmological change. where that change might have;~materia[ effects", inclUding "termination of employment. the elimination or diminution of job•'pportunities, promotional opportunities. job tenure or the use of skills, the alteration of hours of

ork, and the need for retraining or transfer of employees to other work locations." In the course of11.is reasons. Mason J clearly signalled that at least some members of the Court were prepared toountenance a reconsideration of the notion that matters of managerial prerogative fell'outside theealm ofindustlial matters:

Whether the concept of management or managerial decisions can be sustained as anabsolute independent criterion of jurisdiction...is an important question that may requirefuture consideration...The prospect of industrial tribunals regularly reviewing businesspolicy decisions made by employers. and thereby controlling the economy to a substantialextent, is indeed a daunting one. On the other hand, the popular understanding of anindustrial dispute extends to any dispute between employees and employers that may resultin the dislocation of industrial relations...What is more, reflection on the serious impact Onthe community of industrial dislocation suggests that the scope and purpose of statutesregulating conciliation and arbitration and industrial relations extend to the conferment ofjurisdiction on industrial tribunals in relation to industrial disputes in their broadestconception.93 .

R v Coldham; Ex parte Australian Social Welfare Union (1983) 153 CLR 297, 312.

'12 Federated Clerks Union ofAustralia v Victorian Employers Federation (1984) 154 CLR 472.

20

the exercise by the [Australian Industrial Relations] Commission of power to fix minimulll wages and working conditions in respect of such persons and possibly others as well,90

'net effect of these decisions is -that the only employees who fall outside the reach of the ,nel"."UU and arbitration power is a somewhat imprecisely defined group of senior State public

and office holders and, in -l:espect of certain issues, some less senior employees of the It remains to consider the range of matters in relation to which the federal tribunal may powers of conciliation and arbitration.

be recalled that in Social Welfare the High COllrt had expressly reserved the question of the ta which the conciliation and arbitration power would extend to disputes between parties'

than employer and employee, "such as demarcation disputes". By implication, it had also reconsideration of the "industrial matter" concept. Manifestly however, the existing

ecisionai law in this area could not long survive a reversion to a broader view of the concept of indllstdai dispute" defined by reference to what the "man in the street" would understand by the

this was indeed the case was evident from two 1984 decisions concerning the powers of the Victorian tribunal. First, in the Federated Clerks Case,n a majority of the High Court

neterrninlOd that the concept of "industrial matter" as used in the Industrial Relations Act 1979· (Vic) encolnpass a demand for the insertion in an industrial instrument of a clause requiring

:;;[;~~~i::~::.a;nd consultation in advance of teclmological change, where that change might have

effects", including "termination of employment, the elimination or diminution of job promotional opportunities, job tenure or the use of skills, the alteration of hours of

and the need for retraining or transfer of employees to other work locations." In the course of ll~~l:;::~:~~:~~ Mason J clearly signalled that at least some members of the Court were prepared to ;p a reconsideration of the notion that matters of managerial prerogative fell·outside the

ofindustlial matters;

Whether the concept of management or managerial decisions can be sustained as an absolute independent criterion of jurisdiction .. .is an important question that may require future consideration ... The prospect of industrial tribunals regularly reviewing business policy decisions made by employers, and thereby controlling the economy to a substantial extent, is indeed a daunting one. On the other hand, the popular understanding of an industrial dispute extends to any dispute between employees and employers that may result in the dislocation of industrial relations ... What is more, reflection on the serious impact On the community of industrial dislocation suggests that the scope and purpose of statutes regulating conciliation and arbitration and industrial relations extend to the conferment of jurisdiction on industrial tribunals in relation to industrial disputes in their broadest conception.93 .

91 R v Coldham; Ex parte Australian Social Welfare Union (1983) 153 CLR 297, 312.

'/2 Federated Clerks Union of Australia v Victorian Emp/oyers Federation (1984) 154 CLR 472.

21

.will appeal' presently, the foreshadowed reconsideration did not take long in coming. Furtheri'dence of its imminence was furnished by the decision in the second of the 1984 Victorian cases,i,im v Fellows.94 That case arose Ollt of a decision by the Chairman of a Conciliation and~bitration Boal'd, subsequently affil1ned by the Full Comi of the Supreme Court of VictOl'ia, that

Board did not have the capacity to'deal with a dispute between a trade union and an employerncerning the reinstatement of a member of the union who had been dismissed by the employer.,e High Court unanimOUSly found that such a dispute did relate to an industrial matter in thel~vant sense, although the COtllt also expressed saine reservations as to whether there could be an'

l;bitrable dispute about reinstatement between a dismissed employee and their fOimer employer,i~tce by definition the employer/employee nexus would have been broken by the dismissal.9S

'urther erosion of the notion that decisions concerning termination. of employment andinstatement fell outside the realm of arbitrable matters came with the decision in Rcmgel'',;anium96 although the importance of ensuring that claims in this area are made in proper form isearly evidenced by Woold1/mpel'so~

eanwhile, any doubt as to whether claims for payment into an occupational superannuation fund;ould constitute an industrial matter was put to rest by the decision in Manufacturing Grocers. 98 In

course of its decision, the High Court had this to say about the need for a "relevant connection"Neen the subject matter of a purported dispute and the relationship of employer and employee:

For present purposes, it is sufficient to say that a matter must be connected with therelationship between an employer in his capacity as an employer and an employee in hiscapacity as an employee in a way which is direct and not merely c~nsequential for it to be

Loc. cit., 491.

(1984) 154 CLR505.

Loc. cit., 514 (per Wilson J).

Re Rcmger Uranium Mines Pty Ltd; E:t parte Federated Miscellaneous Workers' Union ofAustralia (1987) 163 CLR

Re -Fecferated Storemen and Packers Union ofAustralia: Ex parte Wooldumpers (Vict%ia) Ltd (1989) 166 CLR 311.See also Re Boyne Smelters Ltd; Ex parte Federation of Industrial Manlifactlwing and Englileering Employees of., ..M··-'ia (1993) 177 CLR 446; Re Printing and Kindred Industries Union; Ex parte Vista Paper Pi'odt/cls Pry Ltd

67 ALJR 604.

Re Manufacturing Grocers 'OEmployees Federation (Australia); Ex parte Australian Chamber ofManufactl/res (1986)160 CLR 341. It should be noted that the demands in this instance were rather less ambitious than in R v HamiltonKnight; Ex parte Commonwealth Steamship Owners' Association (1952) 86 CLR 283. which is discussed at note 64;supra. In Re Amalgamated Metal Workers Union ofAustralia; Ex pa/·te Shell Co ofAustralia Ltd (1992) 174 CLR 345,the High Court determined that the identity and form of superannuation schemes into which superannuation paymentsshould be made was a matter that pertained to the employment relationship in the relevant sense. On the other hand. asnoted earlier, the Court in Re Finance Sector Unioll ofAustralia; Ex parte Financial Clinic (Vic) Pty Ltd"(993) 178CLR 352 adopted a restrictive view of the capacity to make award provision in respect of superannuation contributionson behalf of non-union members.

M/990377/4

21

,. will appeal' presently, the foreshadowed reconsideration did not take long in coming. Further . - of its imminence was furnished by the decision in the second of the 1984 Victorian cases,

v Fellows.94 That case arose Ollt of a decision by the Chairman of a Conciliation and :,·h,,,·.'inn BOal'd, subsequently affil1ned by the Full C01ll1 of the Supreme Court of Victol'ia, that

did not have the capacity to"deal with a dispute between a trade union and an employer ...... , .... the reinstatement of a member of the union who had been dismissed by the employer. High Court unanimously found that such a dispute did relate to an industrial matter in the

sense, although the Ccmt also expressed saine reservations as to whether there could be an' ,i·l,;,,·.hl. dispute about reinstatement between a dismissed employee and their fOimer employer,

by definition the employer/employee nexus would have been broken by the dismissal.9S

erosion of the notion that decisions concerning termination. of employment and

ii~:!~:::,:~:~~"~~; fell outside the realm of arbitrable matters came with the decision in Rcmgel' ;} although the importance of ensuring that claims in this area are made in proper form is

evidenced by Woold1/mpel's.~

:M,:anwhile, any doubt as to whether claims for payment into an occupational superannuation fund constitute an industrial matter was put to rest by the decision in Manufacturing Grocers.98 In

course of its decision, the High Court had this to say about the need for a "relevant connection" Ib"tween the subject matter of a purported dispute and the relationship of employer and employee:

For present purposes, it is sufficient to say that a matter must be connected with the relationship between an employer in his capacity as an employer and an employee in his capacity as an employee in a way which is direct and not merely c~nsequential for it to be

Loc. cit., 491.

(1984) }54 CLR505.

Lec. cit., 514 (per Wilsoll J).

Re Rcmger Uranium Mines Pty LId; E:t parte Federated Miscellaneous Workers' Ullion of Australia (1987) 163 CLR

Re -Fecferaled Storemen and Packers Union of Australia: Ex parle Wooldumpers (Viclo/'ia) Ltd (1989) 166 CLR 311. See also Re Boyne Smelters LId; Ex parte Federation of Indust,.ial Manlt/acllwing and Engli1eerillg Employees of A ustraiia (1993) 177 CLR 446; Re Printing and Kindred Industries Union; Ex parte Vista Paper Pi'odt/cis Pry Ltd (1993) 67 ALIR 604.

'IK Re Manufacturing Grocers "Employees Federation (Australia); Ex parte Allstralian Chamber of Manufactllres (1986) 160 CLR 341. It should be noted that the demands in this instance were rather less ambitious than in R v Hamilton Knfght; Ex parte Commol/wealth Steamship Owners' Association (1952) 86 CLR 283. which is discussed at note 64; supra: In Re Amalgamated Metal Workers Union of Australia; Ex pa/·le Shell Co of Australia Ltd (1992) 174 CLR 345,

HIgh Court determined that the identity and form of superannuation schemes into which superannuation payments should be made was a matter that pertained to the employment relationship in the relevant sense. On the other hand. as noted earlier, the Court in Re Finance Sector Unioll of Australia; Ex parte Financial Clinic (Vic) Pty Ltd"(993) 178 CLR 352 adopted a restrictive view of the capacity to make award provision in respect of superannuation contributions on behalf of non-union members.

M/990377/4

22

an industrial matter capable of being the subject of an industrial dispute.99

e observations constituted the starting point for the COUlt's rejection of managerial prerogativesn inherent restriction on the jurisdiction of the tribunal in Re Cram. lao That case arose out of aute in the mining industry over manning levels and recruitment The 'Colliery Proprietors'

~~;;ociation argued that such matters could not properly be made the sUbject of an industrial dispute-;::~ause it did not directly affect the relationship between employer and employee as such, rather it

.'a dispute about the policy and procedure to be adopted by the employer in the management of'ls,6usiness enterprise and thus falls within the scope of managerial prerogatives.;' 10\ In a joint:'jgn~eI1t, the High Court decisively rejected this argument:

we reject the suggestion...that managerial decisions stand wholly outside the area ofindustrial disputes and industrial matters. There is no basis for making such animplication. It is an implication which is so imprecise as to be incapable of yielding anysatisfactory criterion ofjUl'isdiction... 102

:)~e, Court was not unmindful of the concerns expressed by O'Connor J in Clancy about the""j,sdiction of the tribunal being extended "to the regulation and. control of businesses and,4~1S~'ies in every part." Their Honours acknowledged that these observations "probably echoed"

\,lat was received doctrine at an earlier time." However:

Over the years that climate of opinion has changed quite radically, perhaps partly as a resultof the extended definition of 'industrial matters' in s 4 of the ConciUation and ArbitrationAct and partly a result of a change in community attitudes to the relationship betweenemployer and employee...No doubt our traditional system of industrial conciliation andarbitration has itself contributed to a growing recognition that management and labour havea mutual interest in many aspects of the operation of a business enterprise. Manymanagement decisions, once regarded as the sole prerogative of management, are nowcorrectly seen as directly affecting the relationship of employer and employee andconstituting an "industrialmatter'.103

This did not mean that the cautionary note sounded by O'Connor J in 1904 should be disr~garded:¢11tirely. On the contrary, whilst managerial prerogative did not· go to the jurisdiction of thetribunal:

.. .it is an al'gumel1t why an industrial tribunal should exercise caution before it makes anaward in settlement of a dispute where that award amounts to a substantial interference

Loc. cit., 353.

Cram; Ex parte New South Wales CollielY Proprietors' Association Ltd (1987) 163 CLR 117.

Loc. cit., 135.

22

an industrial matter capable of being the subject of an industrial dispute.99

observations constituted the starting point for the COUlt's rejection of managerial prerogatives inherent restriction on the jurisdiction of the tribunal in Re Cram. lao That case arose out of a

in the mining industry over manning levels and recruitment The 'Colliery Proprietors' iso"iation argued that such matters could not properly be made the sUbject of an industrial dispute

it did not directly affect the relationship between employer and employee as such, rather it dispute about the policy and procedure to be adopted by the employer in the management of

.business enterprise and thus falls within the scope of managerial prerogatives." 101 In a joint

.- the High Court decisively rejected this argument:

we reject the suggestion ... that managerial decisions stand wholly outside the area of industrial disputes and industrial matters. There is no basis for making such an implication. It is an implication which is so imprecise as to be incapable of yielding any satisfactory criterion of jurisdiction ... 102

Court was not unmindful of the concerns expressed by O'Connor J in Clancy about the of the tribunal being extended "to the regulation and. control of businesses and

::'A"o"·;po in every part." Their Honours acknowledged that these observations "probably echoed" was received doctrine at an earlier time." However:

Over the years that climate of opinion has changed quite radical1y, perhaps partly as a result of the extended definition of 'industrial matters' in s 4 of the ConciUation and Arbitratio1l Act and partly a result of a change in community attitudes to the relationship between employer and employee ... No doubt our traditional system of industrial conciliation and arbitration has itself contributed to a growing recognition that management and labour have a mutual interest in many aspects of the operation of a business enterprise. Many management deciSions, once regarded as the sole prerogative of management, are now correctly seen as directly affecting the relationship of employer and employee and constituting an "industrialmatter'.103

did not mean that the cautionary note sounded by O'ConDor J in 1904 should be disr~garded .. er,ti""lv. On the contrary, whilst managerial prerogative did not· go to the jurisdiction of the

.. .it is an al'gumel1t why an industrial tribunal should exercise caution before it makes an award in settlement of a dispute where that award amounts to a substantial interference

Loc. cit., 353.

I Re Cram; Ex parte New South Wales CollielY Proprietors' Association Ltd (1987) 163 CLR 117.

Loc. cit., 133.

Loc. cit., 136.

Loc. cit., 135.

23

with the autonomy of management to decide ho\y the business enterprise shall beefficiently conducted. The evident importance of arming such tribunals with power tosettle industrial disputes capable of disrupting industry is a powerful reason for refusing toread down the wide and general definition of <industrial matters' in the Commonwealthand State Acts by reference to any notion of managerial prerogatives as Sl1Ch. I04

i~ythe late 1980s, therefore, it appeared that the integrity of the approach to the definition of:[lidllstrial disputes" adopted by Griffith CJ and O'Connor J in Jl.lmbUl111Q had effectively been

~~~tored. With a limited exception in respect of senior State public servants, no group of employees~~ "placed beyond the reach of the system of conciliation and arbib-ation by reason only of the'mture of the work they performed or of their employer's business. FurthermOl'e, the range ofRh'a~ters in relation to which parties could legitimately engage in disputation was to be constrained,-1iot,by artificial constructs such as the managerial prerogative doctrine, but rather by the need for an~,p:P!opriate degree of connection to the employment relationship, and by what the Parliament~'gbhsidered could appropriately be the subject of regulation through conciliation and arbitration.~<iM importance of this last proposition is neatly illustrated by the decision in Alcan. los In that case,Hl¢ High C01.ut determined that although it was now clear that there was 110 constitutional:ffu'p,ediment to award provision concerning direct debit of trade union dues, at any rate where thetfmployee concerned had authorised the deduction,Io6 the fact that the legislature had not changed~11~"definition of "industrial matter" since the decision in Portus l01 must be taken to evince an,A\\tentiol1 that the matter should remain outside the realm of arbitrable matters. Even mOre1Jroportantly, the Workplace Relations and Other Legislation Amendment Act 1996 renamed andi~jlellded the former Industrial Relations Act 1988. Among the most significant of the amendments~i(fected by that measure was the introduction of what is now section 89A of the Workplace'~~_fflations Act 1996. In simple terms, this means that the AIRC now has power to make arbitratedit~.w~ds only in relation to a list of20 "allowable award matters". To a large extent, these allowablel#tatters mirror the range of matters that were traditionally regarded as falling outside the scope of~:lli:n~nagerial prerogative", and thus to be within the jurisdiction of the tlibullal. I08 Put differently,~!jl~tters of managerial prerogative have once again effectively been put beyond the reach of thek~ay..ard-making powers of the federal tribunal, having clearly been recognised to be within its~,~onstitutionally permissible jurisdiction only in 1987. This time the exclusion is by statute, rather~~t!ian interpretation of section 5I(xxxv). Obviously, if the legislation were to be changed again, the~;;.::.

Re Alcon Australia Ltd; Ex parte Federation ofIndustrial. Manufacturing and Engineering Employees (1994) 18196.

r;U6 The Court did not express any decided view as to whether deductions which had not been authorised by the~:llJployee fell within the scope ofsection 51(xxxv), but clearly had some doubts on the matter-loco cit., 104.

The Queen v Portus; Ex parte ANZ Banking Group Ltd (1972) 127 CLR 353.

For an unsuccessful challenge to the validity of the removal of provisions dealing with non-allowable mattei'S from:;existing awards see Re Pacific Coal Pty Limited; Ex parte Construction, Forestry, Mining & Energy Union;

r,· ~c.ons'rllc'ion. Forestry, Mining & Energy Union v Commonwealth (2000) 203 CLR 346.

23

with the autonomy of management to decide ho\y the business enterprise shall be efficiently conducted. The evident importance of arming such tribunals with power to settle industrial disputes capable of disrupting industry is a powerful reason for refusing to read down the wide and general definition of 'industrial matters' in the Commonwealth and State Acts by reference to any notion ofmanageriai prerogatives as Sl1Ch,I04

the late 1980s, therefore, it appeared that the integrity of the approach to the definition of "" disputes" adopted by Griffith CJ and O'Connor J in JlIl1lbllllllQ had effectively been

With a limited exception in respect of senior State public servants, no group of employees '3" ~, •• <,u beyond the reach of the system of conciliation and arbib-ation by reason only of the'

of the work they performed or of their employer's business. Furthermm'e, the range of in relation to which parties could legitimately engage in disputation was to be constrained,

artificial constructs such as the managerial prerogative doctrine, but rather by the need for an nOI"ooriate degree of connection to the employment relationship, and by what the Parliament ""sidered could appropriately be the subject of regulation through conciliation and arbitration.

importance of this last proposition is neatly illustrated by the decision in Alcan. los In that case, C01.ut determined that although it was now clear that there was 110 constitutional

)1~:~::~"~t()~to~c:a~~w::ar~(d provision concerning direct debit of trade union dues, at any rate where the ~ had authorised the deduction,Io6 the fact that the legislature had not changed

deltiniitic,n of '~industrial matter" since the decision in Portus l01 mllst be taken to evince an the matter should remain outside the realm of arbitrable matters. Even mOre

hi"ortanl:lv. the Workplace Relations and Other Legislation Amendment Act 1996 renamed and iiJ"""ledthe former Industrial Relations Act 1988. Among the most significant of the amendments

by that measure was the introduction of what is now section 89A of the Workplace' :el<.lio·nsAct 1996. In simple terms, this means that the AIRC now has power to make arbitrated

only in relation to a list of20 "allowable award matters". To a large extent, these allowable mirror the range of matters that were traditionally regarded as falling outside the scope of

\ii~,analge'rial prerogative", and thus to be within the jurisdiction of the tlibunal. lo8 Put differently, mall1a.gel"ial prerogative have once again effectively been put beyond the reach of the

'a)'iardl-makiing powers of the federal tribunal, having clearly been recognised to be within its ,co,"stitlttiollally permissible jurisdiction only in 1987. This time the exclusion is by statute, rather

interpretation of section 51(xxxv). Obviously, if the legislation were to be changed again, the

Re Alcan A IIstralia Ltd; Ex parte Federation of Industrial. Manufactllring and Engineering Employees (1994) 181

The Court did not express any decided view as to whether deductions which had not been authorised by the :",ployee fell within the scope of section 51(xxxv), but clearly had some doubts on the matter -loco cit .• 104.

The Queen v Portus; Ex parte ANZ Banking Group Ltd (1972) 127 CLR 353.

For an unsuccessful challenge to the validity of the removal of provisions dealing with non-allowable matters from awards see Re Pacific Coal Ply Limited; Ex parte Construction, Forestry, Mining & Energy Union;

C"ns,r",,"iol!" Forestry, Mining & Energy Union 11 Commonwealth (2000) 203 CLR 346.

24

·:~of constitutional authority would presumably remain that set Ollt in Clancy and Alcal1.

~'- The Separation of Powers Doctrine and the Law of Conciliation an~ Arbitration{,c

;js.-"cleal' from the opening words of section 51 of the Constitution that the legislative powersJ'lferred upon the Federal Parliament under that section must be exercised subject to the other'bvisions of the Constitution - express and implied. The "implied limitation" that constrains theisdiction of the federal tribunal in relation to certain categories of employees engaged in theDlinistration of the States fumishes an interesting example of the impact of an implied

'l-\1stitutional principle of general application upon the operation of the system of conciliation andbitration. An even more dramatic illustration of this impact is provided by the doctrine of

aration of powers as applied by the High COUlt (in 1956) and the Judicial Committee of the Privyouncil (in 1957) in the Boilermakers Case. 109

.rfor to 1919, members of the Commonwealth COUlt of Conciliation and Arbitration were.~ppointed for fixed, renewable terms of seven years. In Alexander's Case, 110 the High Court cast'bubt upon whether it was permissible in constitutional terms for the judicial power of the_:,ommonwealth to be vested in a uibunal, the members of which did not enjoy judicial tenure. This,.'~sulted in the 1904 Act being amended in 1919 to provide that judges of the Commonwealth COUlt)f'Conciliation and Arbitration had the same security of tenure as the members of all other courts~~~a~lished 'under Chapter III of the Constitution. There the matter rested until 1956.

f(Jilel'makers arose out of a challenge to the power of the Commonwealth Court of Conciliation and~rbitration to include provisions in awards banning the taking of industrial action~ and then toiipose fines for failure to observe those same orders. The Boilermakers' Society argued thatnforcement of the bans clauses involved the exercise of a judicial power of the Commonwealth,ndthat it was not constitutionally permissible for those powers to be vested in a body that also:xercised arbitral functions. This challenge was upheld by the High COUlt by a majority of 4:3. In:

course of this decision, the majority said:

It is difficult to see what escape there can be from the conclusion th.at the ArbitrationCOUtt.. .is established as an arbitral tribunal which cannot constitutionally combine with itsdominant purpose and essential functions the exercise of any part of the strictly judicialpower of the Commonwealth. The basal reason why such a combination is constitutionallyinadmissible is that Chapter III does not allow powers which are foreign to the judicialpower to be attached to the COUtts created by or under that chapter for the exercise of thejudicial power of the Commonwealth. 111

~. Ex paNe Boilermakers' Society of Australia (1956) 94 CLR 254 (He) and Attol'l1e~General

(Commonwealth) v The Queen (1957) 95 CLR 529 (PC).

Waterside Wo/'kel's' Federation ofAustralia v JW Ale.,(Qnder Ltd (1918) 25 CLR 434.

III (1956) 94 CLR 254, 289 (per Dixon CJ, McTiernan, Fullagar and Kitto JJ). The dissentients were Williams, Webband Taylor JJ.

24

of constitutional authority would presumably remain that set alit in Clancy and Alcal1.

Separation of Powers Doctrine and the Law of Conciliation an~ Arbitration

clear from the opening words of section 51 of the Constitution that the legislative powers upon the Federal Parliament under that section must be exercised subject to the other of the Constitution - express and implied. The "implied limitation" that constrains the of the federal tribunal in relation to certain categories of employees engaged in the

of the States fumishes an interesting example of the impact of an implied principle of general application upon the operation of the system of conciliation and

An even more dramatic illustration of this impact is provided by the doctrine of ~~p,,,at:iol1of powers as applied by the High COlllt (in 1956) and tlle ludicial Committee of the Privy

(in 1957) in the Boilermakers Case, 109

to 1919, members of the Commonwealth COUlt of Conciliation and Arbitration were !pp'Dinted for fixed, renewable terms of seven years. In Alexander's Case, 110 the High Court cast

upon whether it was permissible in constitutional terms for the judicial power of the ;."nomoI11Ne"lth to be vested in a tIibunal, the members of which did not. enjoy judicial tenure. This

the 1904 Act being amended in 1919 to provide that judges of the Commonwealth COUlt 0r\,;b~'~s~;,~~~,~~~ and Arbitration had the same security of tenure as the members of all other courts ~¢: Chapter III of the Constitution. There the matter rested until 1956.

)B"i/e,'mak,,,'s arose out of a challenge to the power of the Commonwealth Court of Conciliation and .lAl.bitratiion to include provisions in awards banning the taking of industrial action~ and then to

fines for failure to observe those same orders. The Boilermakers' Society argued that 5°o,fOJ'cOiment of the bans clauses involved the exercise of a judicial power of the Commonwealth,

was not constitutionally permissible for those powers to be vested in a body that also ,xerci:,ed arbitral functions, This challenge was upheld by the High COlllt by a majority of 4:3, In,

course of this decision, the majority said:

It is difficult to see what escape there can be from the conclusion tll.at the Arbitration COUtt .. ,is established as an al'bitI'a1 tribunal which cannot constitutionally combine with its dominant purpose and essential functions the exercise of any part of the stI'ictly judicial power of the Commonwealth. The basal reason why such a combination is constitutionally inadmissible is that Chapter III does not allow powers which are foreign to the judiCial power to be attached to the COUtts created by or under that chapter for the exercise of the judicial power of the Commonwealth. III

R v Kirby; Ex paNe Boilermakers' Society of Australia (1956) 94 CLR 254 (He) and Attol'l1e~Gel1eJ'a/

(Commonwealth) v The Queen (1957) 95 CLR 529 (PC),

,".110 Waterside Wo/'kel's' Federation of Ails/mila v JW Ale;mnder Ltd (1918) 25 CLR 434,

ILL (1956) 94 CLR 254, 289 (per Dixon CJ, McTiernan, Fullagar and Kitto JJ), The dissentients were Williams, Webb and Taylor JJ,

M199037114

25

The principal conclusion of the Boilermakers' Case was unnecessary...faT the effectiveworking of the Australian Constitution or for the maintenance of the separation of thejudicial power or for the protection of the independence of courts exercising that power.The decision leads to excessive subtlety and technicality in "the operation of theConstitution without ... any compensating benefit. But nOlle the less and notwithstanding"the unprofitable inconveniences it entails it may be proper that it should continue to befollowed. On the other hand, it may be thought so unsuited to the working of theConstitution in the circumstances of the nation that there should now be a depaltUl'e fromsome or all of its conclusions.112

For comment on this phase in the history of the judicial power see McCallum 1992.

See for example Re Cram; Ex parte Newcastle Wa//send Coal Co Pty Ltd (1987) 143 CLR 140.

1956 the non-judicial powers were vested in the Commonwealth (later Australian) Conciliation

II] See for example Harris v Caladine (1991) 172 CLR 84; Brandy v Human Rights and Eqllal Opportunity'Commission (1995) 183 CLR 245; Wilsoll l' lvflnistel' for Aboriginal and Torres Strait Islander Affairs (1997) 189 CLR1; Re Wakin; Ex parte McNally (1999) 198 CLR511.

',··11S

~Various members of the High Court have suggested from time to time to time that Boilermakersihiay have been incorrectly decided and/or that it introduced an unnecessary rigidity that might need~o--be reconsidered. -Ofparticular interest in this ·regard are the observations ·of Barwick CJ in the~BLFCase:

~i~evertheless, in recent years, the High Court has on several occasions reaffirmed that the principle~,"Ofseparation of powers is a fundamental tenet of the Constitution. llJ It has struck down decisions[fof industrial tribunals. which were adjudged to have stepped over the line of what wasF:~Onstitlitionallypermissible by reason of the Boilermakers' principle.1l4

~?~sThe Commonwealth's immediate response to the decision in Boilel'makers was to legislatek~:;retrospectively to validate decisions handed down by the Commonwealth COUlt of Conciliation and~i'Arbitl'ation over the previous decades, which had technically been rendered invalid by the decision!i!!~f the High Court. The Commonwealth also moved to separate the judicial and non-judicial~:~;functions of the Court of Conciliation and Arbitration. The fonner were initially vested in thet.::Commonwealth Industrial Court. In 1976 they were transferred to the newly-established Federal~"'fCourt of Australia. lls In 1993 these powers were again transferred, this time to the lndustlialtc4~'Relations COUlt of Australia. However, in 1996 they were retumed to the Federal Court of~,;~'Al1stralia, where they presently reside. In accordance with invariable federal convention, none of~!;;'the Commonwealth Court of Conciliation and Arbitration, the Commonwealth Industlial COUlt or~;;\the Australian Industrial COUlt were abolished whilst there remained any member of the Court who~_,~";;had not resigned or died in office. Consistently with this convention, the Industrial Relations Court~:rofAustralia remains in being, even though its jurisdiction is now vested in the Federal Court.~'.',.

.. 111 The Queen v Joske: Ex parte Australian Building Construction Employees' and Builders £abolwers' Federation~::; (I974) 130 CLR 87, 90. See too Mason J, 102. See also R v Josk£; Ex parte Shop Dist1'iblllive and Allied Employees

~:;~: AssociatiolJ (1976) 135 CLR 194. For comment see Lane 1981.'/';.

25

members of the High Court have suggested from time to time to time that Boilermakers have been incorrectly decided andlor that it introduced an unnecessary rigidity that might need reconsidered. Of particular interest" in this "regard are the observations -of Barwick CJ in the

The principal conclusion of the Boilermakers' Case was unnecessary ... foT the effective working of the Australian Constitution or for the maintenance of the separation of the judicial power or for the protection of the independence of courts exercising that power. The decision leads to excessive subtlety and technicality in "the operation of the Constitution without ... any compensating benefit. But nOlle the less and notwithstanding" the unprofitable inconveniences it entails it may be proper that it should continue to be followed. On the other hand, it may be thought so unsuited to the working of the Constitution in the circumstances of the nation that there should now be a depalture from some or all of its conclusions.112

'N"Yerth,ei,,,s. in recent years, the High Court has on several occasions reaffirmed that the principle <O[lar"ticm of powers is a fundamental tenet of the Constitution. l13 It has struck down decisions

tribunals. which were adjudged to have stepped over the line of what was fccmstitllticmally permissible by reason of the Boilermakers' principle.1I4

Commonwea1th's immediate response to the decision in Boilermakers was to legislate (,"'trcIsoect.iy"ly to validate decisions handed down by the Commonwealth COUlt of Conciliation and ,Arbitl'ation over the previous decades, which had technically been rendered invalid by the decision

High Court. The Commonwealth also moved to separate the judicial and non-judicial \~::~~~,~'~,~Of~it~1.~1e Court of Conciliation and Arbitration. The fanner were initially vested in the

~_;: Industrial Court. In 1976 they were transferred to the newly-established Federal of Australia. JlS In 1993 these powers were again transferred, this time to the Industrial

c"fteiati"l1s Comt of Australia. However, in 1996 they were retumed to the Federal Court of ,""ISIr,"a, where they presently reside. In accordance with invariable federal convention, none of

Commonwealth Court of Conciliation and Arbitration, the Commonwealth Industlial COl1lt or Australian Industrial Comt were abolished whilst there remained any member of the Court who not resigned or died in office. Consistently with this convention, the Industrial Relations Court

Australia remains in being, even though its jurisdiction is now vested in the Federal Court.

1956 the non-judicial powers were vested in the Commonwealth (later Australian) Conciliation

111 The Queen v Joske: Ex parte Australian Building Construction Employees' and Builders £abolwers' Federation (1974) 130 CLR 87,90. See too Mason J, 102. See also R v Josk£; Expal'te Shop Distliblltive and Allied Employees Association (I976) 135 CLR 194. For comment see Lane 1981.

III See for example Harris v Caladine (1991) 172 CLR 84; Brandy v Human Rights alld Equal Opportunity 'Commission (1995) 183 CLR 245; WilSall l' lvflnistel' for Aboriginal and Torres Strait Islander Affairs (1997) 189 CLR ,-1; Re Wakin; Ex parte McNally (1999) 198 CLR511.

See for example Re Cram; Ex parte Newcastle Wallsend Coal Co pry Ltd (1987) 143 CLR 140.

For comment on this phase in the history of the judicial power see McCallum 1992.

M199037714

26

tt~\Arbitration Commission, where they remained unti,l that body was aboli~hed in 1988, and~~laced by tbe AIRC.'16 . . .."" .~_i~' not easy to assess the practical impact of the application of the Boilermakers prillciple in the

r;£htext of the law of conciliation and arbitration. Of course, there was an immediate and direct

11~.-.pact in terms of tbe restructuring of the tribunal. But beyond that it is difficult to express any~J:yrdefinite view. In palt, this stems from the fact that it is impossible precisely to define whatd5itstitute judicial as opposed to nonjudicial functions. 1l1 Nevertheless, it does seem reasonable to~ippose that the power to enforce legislation and definitively to pronounce upon its meaning are~ore _elements of the judicial function. The same tnight be said for making a definitive1fu;'termination of the rights and duties of parties vis-a-vis each other, altho:ugh this adjudicativelfunction inevitably merges into the quasi-legislative function of creating new rights through$'focesses of conciliation and arbitration. .:b...

~.s.indicated, the el1tire Boilermakers episode stemmed from a challenge to the capacity of the~dmmonwealthCourt of Conciliation and Arbitration to enforce its own decisions. Manifestly, the~ewly created Conciliation and Arbitration Commission lacked the power to do this. There are some[wllo would argue that the standing of the tribunal was diminished in consequence. On the other:!f;alld, the Commonwealth Industrial Court was invested with extensive powers of enforcement, andjf might equally be said that the effective demise of those powers in the aftermath of the Clarriel~~;Shea episode in 19~9 had ~ rather great::r effect upon the standing of the institutions of the~~~tem than the separation of dIspute-resolution and enforcement after 1956. Nevertheless, had theK~llforcementpowers been vested in a tribunal that was rather more in tune with the sensitivities and~_huances of industl'ial relations, the O'Shea debacle might have been avoided. 1I8i:f:.'~""--'

§:T~_iere is 1ittle reason to suppose that the loss of the power to interpret awards has had any great~:jlnpa~t upon the functioning of the federal industl'ial tribunal. Only a very small number of cases~Rnvolving the interpretation of awards have come before the courts over the years. Instead, it has~!<~~en common practice for such matters to be brought before the Commission, which thenJ:;.detennines what the award ought to mean in light of tl)e representations of the parties, and then1<pl~oceeds to give effect to its decision, where necessary, by varying the instrument in the appropriate/".' -,:i;~:pla.nl1er. In a polity governed by the rule of law, it is inevitable-that the AIRC will regularly be'~:_r#1uil'ed to give meaning not only to awards but to statutes (including its own constituent statute)"J:,a~d to the Constitution itself.

~,:The most vexed issues that arise in this area concern the line between adj udication 011 e.xisting rights"...~-_--.:.--.:.~=---:::.:~lb This apparently innocuous change generated significant controversy in consequence of the decision of the

<government of the day not to appoint one of the members of the Australian Conciliation and Arbitration Commission,'~-justice Staples, to the new tribunal. See Kirby 1989, 1990.

:~; 111 Perhaps the best-mown attempt to describe the judicial function is to be found in the judgment of Griffith CJ in;-Hltddart Pal'ker & Co Ply Ltd v Moorehead (1909) 8 CLR 330, 357. See also more recent aecisiol1s such as R v Trade

/,Practices Tribunal; Ex parte Tasmanian Breweries Ply Ltd (1970) 123 CLR 361, 378 (per Kitto J); Attomey-Gene/'Ql-; (Commonwealth) v Brecklel' 197 CLR 83 at 1I I [424 47] (per Gleeson CJ, Gaudron, McHugh, Hayne, and Callinan 1J),

J24-31 [78-95](per Kirby J).

11K For detailed accounts of the O'Shea incident see Sykes & Glasbeek 1972: 551-52; d'Alpuget 1977: 232-35; Hutson,'1983: 264-80; Hancock 1985: 59-61. On the "paradox" this incident created for the federal system, see Creighton 1991.

26

'. Arbitration Commission, where they remained unti,1 that body was aboli~hed in 1988, and by the AIRC.'''

, not easy to assess the practical impact of the application of the Boilermakers prillcipie in the of the law of conciliation and arbitration. Of course, there was an immediate and direct in terms of the restructuring of the tribunal. But beyond that it is difficult to express any

I view. In palt, this stems from the fact that it is impossible precisely to define what judicial as opposed to nonjudicial functions. 1I7 Nevertheless, it does seem reasonable to

that the power to enforce legislation and definitively to pronounce upon its meaning are

?r:'''~:.~~;~~~l~ of the judicial function. The same tnight be said for making a definitive ~t of the rights and duties of parties vis-a-vis each other, altho:ugh this adjudicative

inevitably merges into the quasi-legislative function of creating new rights through of conciliation and arbitration. .

indicated, the el1tire Boilermakers episode stemmed from a challenge to the capacity of the 30n"ll'oJ1\Ne"lth Court of Conciliation and Arbitration to enforce its own decisions. Manifestly, the

Conciliation and Arbitration Commission lacked the power to do this. There are some argue that the standing of the tribunal was diminished in consequence. On the other

Commonwealth Industrial Court was invested with extensive powers of enforcement, and equally be said that the effective demise of those powers in the aftermatll of the Clarrie episode in 1969 had a rather greater effect upon the standing of the institutions of the

than the separation of dispute-resolution and enforcement after 1956. Nevertheless, had the enforcem.e"t powers been vested in a tribunal that was rather more in tune with the sensitivities and

of industl'ial relations, the O'Shea debacle might have been avoided. 1I8

is I ittle reason to suppose that the loss of the power to interpret awards has had any great upon the functioning of the federal industl'ial tribunal. Only a very small nUlTIber of cases

nv(,lvin. the interpretation of awards have come before the courts over the years. Instead, it has practice for such matters to be brought before the Commission, which then

'determines what the award ought to mean in light of tl)e representations of the parties, and then :'p';~~:::~IS to give effect to its deCision, where necessary, by varying the instrument in the appropriate n In a polity governed by the rule of law, it is inevitable that the AIRC will regularly be

to give meaning not only to awards but to statutes (including its own constituent statute) to the Constitution itself.

most vexed issues that arise in this area concern the line between adj udication 011 e..xisting rights

innocuous change generated significant controversy in consequence of the decision of the of the day not to appoint one of the members of the Australian Conciliation and Arbitration Commission,

Staples. to the new tribunal. See Kirby 1989, 1990.

Perhaps the best-mown attempt to describe the judicial function is to be found in the judgment of Griffith CJ in _ Pal'ker & Co Ply Ltd v Moorehead (1909) 8 CLR 330. 357. See also more recent aecisions such as R v Trade

Practices Tribunal; Ex parle Tasmanian Breweries Ply Ltd (1970) 123 CLR 361, 378 (per Kitto J); Attol'r/ey-Genel'Ol (Commonwealth) v Brecklel' 197 CLR 83 at 111 [42-47] (per Gleeson CJ, Gaudron, McHugh. Hayne, and Callinan 1J). 124-31 [78-95J (per Kirby J).

11K For detailed accounts of the O'Shea incident see Sykes & Glasbeek 1972: 551-52; d'Alpuget 1977: 232-35; Hutsoll ,'1983: 264-80; Hancock 1985: 59-61. On the '"paradox" this incident created for the federal system. see Creighton 1991.

27

the creation of new ones. Just how fine the line between the two can be is illustrated by thei''yJillg passage from the decision ofthe High Court in Ranger Uranium:

A finding that a dismissal is harsh, unjust or unreasonable involves the finding of relevantfacts and the formation and expression of a value judgment in the context of the facts so.found. Although findings of fact are a common ingredient in the exercise of judicialpower, such findings may also be an element in the exercise of administrative. executiveand arbitral powers...So too with the formation and el\'Pression ofvalue judgments.

In Olll" view the fact that the Commission is involved in making a determination of mattersthat could have been made by a court in the course of proceedings instituted under...the Actdoes not ipso facto mean that the Commission has usurped judicial power, for the purposeof inquiry and determination is necessarily different depending on whether the task isundertaken by the Commission or by a court. The purpose of the Commission's inquiry isto determine whether rights and obligations should be created. The purpose of a courfsinquiry and detennination is to decide whether a pre-existing legal obligation has beenbreaclwd, and if so, what penalty should attach to the breach.119

industrial conciliation and arbitration power in section 51 (xxxv) of the Australian Constitution'as the product of a very pmticular set of histolical circumstances. It seems safe to assume that05tofthose who supported the inclusion of section 51(xxxv) in the Constitution, and probably all"'those who opposed its inclusion, envisaged that the power to legislate in reliance upon this

l'fbvision should be used, if at all, only in highly exceptional circumstances such as the disputes ofhe 18905.

~T!ie reality has proved rather different. From its first sitting, the Parliament evinced an intention:-that the power be utilised to a substantial extent, and the system established in reliance upon thatpower, together with tariff protection and the "White Australia" policy, became one of the three

~;_pillars of social policy in Australia for the greater part of the first century of Federation. Thelr'qoinmonwealth's expansionary ambitions were also evidence by a number of unsuccessful attempts~~:£o,extend the reach of the power by constitutional amendment. 12o

~~:~~I~e High Court was initially inclined to adopt a restrictive approach to the interpretation of sectionf;-t~51(xA'Xv), and of legislation enacted in reliance upon it. This was especially evident during the early~~tr~ars of the 20lh century, when the Court was comprised of justices who had been involveq in the~;\:debates leading to the adoption of the Constitution, a majority of whom were pwticularly sensitivej;~"about the need to maintain the "federal balance". Nevertheless, even during this phase in its history,,l'>Jhe High Court handed down a number of decisions that sowed the seeds of the later dominance of

(1987) J63 CLR 656, 665-66.

There were attempts at such reform in 1911, 1913, 1919, 1926, 1944, 1946 and 1973. For further discussion ofendeavours, see. Frazer 2001.

27

creation of new ones. Just how fine the line between the two can be is illustrated by the passage from the decision of the High Court in Ranger Uranium:

A finding that a dismissal is harsh, unjust or unreasonable involves the finding of relevant facts and the formation and expression of a value judgment in the context of the facts so. found. Although findings of fact are a common ingredient in the exercise of judicial power, such findings may also be an element in the exercise of administrative, executive and arbitral powers ... So too with the formation and el'l.'Pression of value judgments.

In Ollf view the fact that the Commission is involved in making a determination of matters that could have been made by a court in the course of proceedings instituted under ... the Act does not ipso facto mean that the Commission has usurped judicial power, for the purpose of inquiry and determination is necessarily different depending on whether the task is undertaken by the Commission or by a court. The purpose of the Commission's inquiry is to determine whether rights and obligations should be created. The purpose of a courfs inquiry and detennination is to decide whether a pre-existing legal obligation has been breachl;:d, and if so, what penalty should attach to the breach.119

;"f'ut,.re Directions

industrial conciliation and arbitration power in section 51 (xxxv) of the Australian Constitution the product of a very pruticular set of histolical circumstances. It seems safe to assume that of those who supported the inclusion of section 51(xxxv) in the Constitution, and probably all

5FlhelSe who opposed its inclusion, envisaged that the power to legislate in reliance upon this ill'bvisi()11 should be used, if at all. only in highly exceptional circumstances such as the disputes of

1890s,

reality has proved rather different. From its first sitting, the Parliament evinced an intention the power be utilised to a substantial extent. and the system established in reliance upon that

. together with tariffpl'otection and the "White Australia" policy. became one of the three of social policy in Australia for the greater part of the first century of Federation. The

SO(,nnlOllw,oallh's expansionary ambitions were also evidence by a number of unsuccessful attempts the reach of the power by constitutional amendment. 12o

High Court was initially inclined to adopt a restrictive approach to the interpretation of section ,<1I'v>'",,\ and of legislation enacted in reliance upon it. This was especially evident during the early

of the 20!h century. when the Court was comprised of justices who had been involveq in the leading to the adoption of the Constitution, a majority of whom were patticularly sensitive

the need to maintain the "federal balance". Nevertheless, even during this phase in its history, High Court handed down a number of decisions that sowed the seeds of the later dominance of

(1987) J 63 CLR 656, 665-66,

1:>11 There were attempts at such reform in 1911, 1913, 1919, 1926, 1944, 1946 and 1973. For further discussion of these endeavours, see. Frazer 2001.

28

system of conciliation and arbitration. The most important of these was JumbUl1na,121not only legitimated the legislative provisions that provided' the basis for the registration and

ration of organisations of employers and employees; but also endorsed a view of the concept of~'indtlstrial dispute" that subsequent.lY provided a basis for federal regulation of almost all aspectsthe employment relationship and in respect ofa very large cohort of the Australian workforce.

Hawing significant changes in its size and composition' in 1913, the High COllrt adopted a more-Ilsistently expansive approach to the interpretation of section 5I(xxxv), and of the CommonwealthIl1c;!iation and Arbitration Act 1904. In certain instances, this entailed overruling some of the

.ilier restrictive interpretations.122 In others it involved breaking new ground. l2J The result was ".af:by 1935 the federal system of conciliation and arbitration was well on. its way to becoming the\)1inant force in social and economic regulation -that it remained until almost the end of the 20lh

:ntl1ry.

IS,t.as the COlllt handed down "expansionary" decisions during its early "restrictive" period, so it~o.ntinued to adopt "restrictive" interpretations of aspects of section 51(xxxv) and/or the 1904 Act~ven during its more expansive phase. In large measure this reflected a c<?ntinuing tension betweenflose members of the COUlt who were concerned to preserve the "federal balance" and those who:6ok the view that the regulation of work relations as an integral part of regulation of the national:honomy, and that, as such, it should be subject to national regulation. It also reflected a tension;~tween those who took an expansive view ofthe range of matters that could properly be the subject--atter of contention between employees, employers and their respective organisations, and thoseh,o took a more restdctive approach to such issues.

jspite such tensions, the system evolved in such a way that by the outbreak of World War II it~()lJstituted the basis for the regulation ofthe core terms and conditions of employment of the greatIlajority of the Australian workforce - whether through direct coverage by the federal tribunal, or

"thdugh flow-on in the State systems.

Xet. by the time the High Court seemed at last to be willing and able to adopt a consistent view ofl~e nature and extent of the conciliation and arbitration power under the Constitution, the traditional

!:~ystem was becoming increasingly unfashionable. In patticular, from the late 1980s onwards there1;\'Jas increasing pressure for a move away from detennination of terms and conditions of'~';'-~n1ployment through centralised processes of third party conciliation and arbitration in favour of,{Nirect negotiation of terms and conditi.ons at the level of the enterprise. TIlese pressures haver{:~resulted in significant changes to the legislative framework - notably in 1993 and 1996. To some~~:extent the reaction, evident in the legislation introduced by successive governments of differing~}pOlitical complexions, may have reflected the dynamic of global economic forces as they impactedf\':~pon Australia, and a belief that the highly regulated system of conciliation and arbitration,!'t~::eventL1ally endorsed by the High Court, was now out of harmony with the needs of the AustralianJ>~conomy and the best interests of employers and employees alike.

:::C_P1 JII11IbW1IlG Coal Mine No liability" Victorian Coal Millers' Association (1908) 6 CLR 309.

See for example, AmalgamatedSociety ofEngineers" Adelaide Steamship Co Ltd (1920) 28 CLR 129.

;:I:l3 See, eg Burwood Cinema Ltd v Australian Theatrtcal and Amusement Employees' Association (1925) 35 CLR 528;Melal Trades Employers' Association v Amalgamated Engineering Unio1l (1935) 54 CLR 387.

28

. system of conciliation and arbitration. The most important of these was JumbUI117a,121

not only legitimated the legislative provisions that provided' the basis for the registration and of organisations of employers and employees; but also endorsed a view of the concept of

~ ";"dllstri'al dispute" that subseqllent,ly provided a basis for federal regulation of almost all aspects employment relationship and in respect ofa very large cohort of the Australian workforce.

'~II,nW;''' significant changes in its size and composition' in 1913, the High Court adopted a more om,istl,ntly expansive approach to the interpretation of section 5 I (xxxv), and of the Commonwealth j,,"'Ciliat,ion and Arbitration Act 1904. In certain instances, this entailed overruling some of the

. restrictive interpl'etations.122 In others it involved breaking new ground.l2J The result was " 1935 the federal system of conciliation and arbitration was well on its way to becoming the

Olrdl1llOt force in social and economic regulation -that it remained until almost the end of the 20lh

as the Comt handed down "expansionary" decisions during its early "restrictive" period, so it i to adopt "restrictive" interpretations of aspects of section 51(xxxv) andlor the 1904 Act during its more expansive phase. In large measure this reflected a c<?ntinuing tension between members of the COUlt who were concerned to preserve the "federal balance" and those who

the view that the regulation of work relations as an integral part of regulation of the national 'co.nOlny, and that, as such, it should be subject to national regulation. It also reflected a tension

those who took an expansive view of the range ofmatlers that could properly be the subject . of contention between employees, employers and their respective organisations, and those

took a more restdctive approach to such issues.

such tensions, the system evolved in such a way that by the outbreak of World War II it ~,onstituted the basis for the regulation of the core terms and conditions of employment of the great

of the Australian workforce - whether through direct coverage by the federal tribunal, 01'

flow-on in the State systems.

by the time the High Court seemed at last to be willing and able to adopt a consistent view of nature and extent of the conciliation and arbitration power under the Constitution, the tl.'aditional

was becoming increasingly unfashionable. In patticular, from the late 1980s onwards there increasing pressure for a move away from detennination of terms and conditions of

',enllployrnellt through centralised processes of third party conciliation and arbitration in favolll' of

"~:~~:e;~~~lo~~i~~~~ of terms and conditi.ons at the level of the enterprise. TIlese pressures have :::_~I significant changes to the legislative framework - notably in 1993 and 1996. To some

reaction, evident in the legislation introduced by successive governments of differing :pcllitical complexions, may have reflected ~he dynamic of global economic forces as they impacted

Australia, and a belief that the highly regulated system of conciliation and arbitration, :,".e'venitulrlilly endorsed by the High Court, was now out of harmony with the needs of the Australian

the best interests of employers and employees alike.

Jllmbw1IlG Coal Mine No liability" Victorian Coal Millers' Association (1908) 6 CLR 309.

See for example, Amalgamated Society of Engineers" Adelaide Steamship Co Ltd (1920) 28 CLR 129.

See, eg BUl'wood Cinema Ltd v Australian Theatrical and Amusement Employees' Association (1925) 35 CLR 528; Trades Employers' Association v Amalgamated Engineering Union (1935) 54 CLR 387.

29

,t~he reasons for this shift of emphasis are beYO~d the scope of this chapter. But the emergence of$~~terprise bargaining has most assuredly had a profound impact upon the use to which the1t'b-nciliation and arbitration power is now put, and the use to which it is likely to be put in the~Y6reseeable fUhlre. .

\)A~noted earlier, the federal system of conciliation and arbitration was originally conceived as a'~~'~pport mechanism for collective bargaining, with arbitrated outcomes being imposed upon thewlp~rties only where collective bargaining, assisted by conciliation where appropriate, provedrJncapable of preventing or settling the differences between the parties. Gradually, conciliation and~~rbitratiol1 became the norm. But it is important to appreciate that they never entirely displaced ~

~'coI,l,ective bargaining - rather, collective bargaining assumed forms which do not confOlID to the~~:traditional NOlth American or (to a lesser extent) European conception of that phenomenon.124 The~'changes of the last fifteen years have seen a reversion to collective bargaining as the centre-piece ofi'ihe.system, with conciliation and arbitration as a kind of default or "safety net".125 In many respects,~\hese legislative changes have reflected, and fUIther stimulated, modifications that were already~:,6ccurring in a changing marketplace.

~:X,l1e early attempts to encourage enterptise bargaining - such as those contained'in sections 112-117~'9f,the Industrial Relations Act 1988, and their replacement in Division 3A of PaIt VI of the 1988f);\ct - all drew upon the conciliation and arbitration power for their constitutional underpinning.~:fiowevel', the Industrial Relatiol;s Reform Act 1993 represented a radical break from the past in this~Tre·spect. Whilst the principal enterprise bargaining stream still relied m:;linly upon the conciliationrt0'a.nd, arbitration power, a new stream of "enterprise flexibility agreements" drew upon the~WbOl'porationspower in section 51 (xx) of the Constitution, whilst provisions recognising (for the first~i:'time in federal law) a limited right to strike drew, in p31t, upon the external affairs power in section~"51(xxix).I"

~Whis shift away from reliance upon the conciliation and arbitration power gained further momentum'\i{~ith the passage of the Workplace Relations and Other Legislation Amendment Act in 1996. As~'-!~J19ted earlier, this measure renamed the 1988 Act as the Workplace Relations Act 1996.: .It further~(,';cp~solidated the shift to enterprise bargaining, and introduced an individualised bargaining option!~:'~,~i~,.the form of Australian Workplace Agreements (AWAs).121 It is still possible to enter into:;rc~rtified agreements to prevent or settle interstate industrial disputes}28 However, the great majority~i·,of agreements are now made between corporations and registered unions or between corporations

.,'.. See further Creighton. Ford & Mitchell 1993: 858-62; Creighton 2003 - cflsaac 1958; Laffer 1958; Niland 1978.

\!~i, This shift ofemphasis is neatly encapsulated in the Principal Object of the current version of the Federallegis[ation';as set out in section 3 of tile 1996 Act.

~ '11(, For a brief summary of the legislative changes of the 1990s concerning enterprise bargaining see Creighton &,rStewart 2000: 20-22, 148-50. For more detailed analysis see Mc Callum 1993; Naughton 1'994; Pittard 1997; McCarryW:;"1998. On protected industrial action see McCarry 1994, 1997. On the Constitutional ,validity of these provisions seeF, Victoria v ComlnomvealtJr (1996) 187 CLR 416. For international perspectives see McCallum 1994; Creighton 1997;~L;:',Kirby 2002.

!17 WR Act, Part VID. For comment see Coulthard 1997, 1999; Stewart 1999; Creighton & Stewart 2000: 174-87. Seealso Roan, Bramble & Lafferty 2001; Fetter 2002; Mitchell & Fetter 2002.

29

reasons for this shift of emphasis are beyond the scope of this chapter. But the emergence of

~i~~~~~~~~bargainillg has most assuredly had a profound impact upon the use to which the

and arbitration power is now put, and the use to which it is likely to be put in the fuhlre. .

noted earlier, the federal system of conciliation and arbitration was originally conceived as a , mechanism for collective bargaining. with arbitrated outcomes being imposed upon the

only where collective bargaining, assisted by conciliation where appropriate, proved 'i~::~~~~:~,0f preventing or settling the differences between the parties. Gradually, conciliation and ;8. became the norm. But it is important to appreciate that they never entirely displaced ~

colilective bargaining - rather, collective bargaining assumed forms which do not confOlID to the ;~~~~:~~;:~I NOlth American or (to a lesser extent) European conception of that phenomenon.

124 The

;< of the last fifteen years have seen a reversion to collective bargaining as the centre-piece of JIl",s)/StE:m, with conciliation and arbitration as a kind of default or "safety net" .12S In many respects, 't~~~~r1li:~~':~:~~~ changes have reflected, and fUlther stimulated, modifications that were already ~:( in a changing marketplace.

early attempts to encourage enterplise bargaining - such as those contained in sections 112-117 Industrial Relations Act 1988, and their replacement in Division 3A of PaIt VI of the 1988

- all drew upon the concili~tion and arbitration power for their constitutional underpinning. "H"wev"I", the Industrial Reiati011s Reform Act 1993 represented a radical break from the past in this

Whilst the principal enterprise baI'gaining stream still relied m:;tinly upon the conciliation arbitration power. a new stream of "enterprise flexibility agreements" drew upon the

COII'OC>r.t:i', 'I1S power in section 51 (xx) of the Constitution. whilst provisions recognising (for the first in federal law) a limited right to strike drew, in p31i, upon the external affairs power in section

(XXiX).126

shift away from reliance upon the conciliation and arbitration power gained further momentum the passage of the Workplace Relations and Other Legislation Amendment Act in 1996. As e.rlier, this measure renamed the 1988 Act as the Workplace RelatioltS Act 1996;, It furtller

'ccmsolid.l:ed the shift to enterprise bargaining. and introduced an individualised bargaining option of Australian Workplace Agreements (AWAs).121 It is still possible to enter into

(certified agreements to prevent or settle interstate industrial disputes. 128 However, the great majority agreements are now made between corporations and registered unions or between corporations

. See further Creighton. Ford & Mitchell 1993: 858-62; Creighton 2003 - cflsaac 1958; Laffer 1958; Niland 1978.

This shift of emphasis is neatly encapsulated in the Principal Object of the current version of the Federal legislation set out in section 3 of the 1996 Act.

For a brief summary of the legislative changes of the 1990s concerning enterprise bargaining see Creighton & 2000: 20-22, 148-50. For more detailed analysis see Mc Callum 1993; Naughton 1'994; Pittard 1997; McCarry

protected industrial action see McCarry 1994, 1997. On the Constitutional ,validity of these provisions see . v Commomvealtlr (1996) 187 CLR 416. For international perspectives see McCallum 1994; Creighton 1997; 2002.

WR Act, Part VID. For comment see Coulthard 1997, 1999; Stewart 1999; Creighton & Stewart 2000: 174-87. See ',11.,000,," Bramble & Lafferty 2001; Fetter 2002; Mitchell & Fetter 2002.

30

employees under Dlvis!ol1 2 of Part VIB of ti,e WR Act. The provisions relating to AWAsrely for their constitutional validity upon the corporations power.

e.year 1996 also saw another tnl;ljor development in the evolution of the federal system ofdustrial regulation. For the first time one of the States, Victoria, referred a significant- part of itsopaCity to legislate with respect to industrial relations to the Commonwealth in reliance upon'etion 5I(xxxv!i) ofthe Constitution. So far, no other State has followed this lead. However, theictorian referral clearly has the effect that for that jurisdiction it is not necessary to draw upon the

~o,J1ciliatioll and arbitration, corporations or external affairs power as a basis for federal regulation.tireferred matters,l:19 In respect of Victoria, sllbject to the Constitution, the Federal Parliament·

';njoys both referred State and federal legislative powers.i:},t, would be erroneous to suppose that the conciliation and arbitration power has been rendered:dundant by these legislative and economic changes. Awards made in reliance upon that poweriH playa crucial role in the federal industrial relations system, whether as the basis for the no­isadvantage test which must be satisfied by every certified agreement or AWA,lJO or as the basis

'for reg~lIating tel1ns and conditions of employment for those employees who for one t~ason oranother are not covered by a certified agreement or an AWA. Important issues of social policy, and's'afety net wage increases, are still dealt with through test cases in the AIRC. 1J1 Furthermore, the;federal tribunal still plays an important role in the d,ay to day operation of the industrial relationssystem - for example by means of conciliation to facilitate the making of certified agreements.

:}~evertheless, it seems clear that laws enacted in reliance upon the conciliation and arbitration power,~,:,Will never resume their former dominant role in the regulation of work relations in Australia. lJ2 Yet,tfh'is equally clear that the history of the national industrial relations tribunal over the first century of

its existence has been one of remarkable resilience, persistence and adaptability. That history has)~'reflected the expanding concept of Australian nationhood; the stable and changing features of the""applicable federal legislation; the evolving constitutional doctrines of the High Court concerning the;;televant heads of legislative power; the interpretative principles of constitutional law to be applied

'" in fathoming the depths of these powers; the alterations that have OCCUlTed in the national and~_., international economies; the changing educational and training levels of the Australian workforce;

'fluctuating levels of union membership; increasing challenges to the very nature of work; and,differing political fashions.

ll~ See WR Act, Part VIB, Division 3.

'119 For c~mment on the Victorian referral see Kollmorgen 1997.

130 See Workplace Relations Act 1996, sections 170LT(2), 170VPB, 170VPC, 170X-170XF.

See for exanlple Reasonable Hours Case, AIRC, 23 July 2002, PR 072002; Living Wage Case 2002, AIRC, 9 MayPR 002002.

m For overviews and assessments of the traditional system, and the continuing role of conciliation and al'bitration, see:Creighton 1999: 645-56 and 2000; Kirby 2001. For (premature) obituaries see Mitchell & Rimmer 1990; Vrallken1994; Dabscheck2001.

Mf990J77f4

30

I their employees under Divisi0l1 2 of Part VIB of the WR Act. The provisions relating to A W As rely for their constitutional validity upon the corporations power.

year 1996 also saw another tnl;ljor development in the evolution of the federal system of . regulation. For the first time one of the States, Victoria, referred a significant- part of its

to legislate with respect to industrial relations to the Commonwealth in reliance upon (xxxvii) ofthe Constitution. So far. no other State has followed this lead. However. the referral clearly has the effect that for that jurisdiction it is not necessary to draw upon the

;on.ciliatioll and arbitration, corporations or external affairs power as a basis for federal regulation. ,,·.ferred matters,Il9 In respect of Victoria, sllbject to the Constitution, the Federal Parliament·

referred State and federal legislative powers.

be erroneous to suppose that the conciliation and arbitration power has been rendered ·edl.ll1dant by these legislative and economic changes. Awards made in reliance upon that power

playa crucial role in the federal industrial relations system, whether as the basis for the no­d;:"~~~~:~lr:g1test which must be satisfied by every certified agreement or AWA,lJO or as the basis :,fl tel1ns and conditions of employment for those employees who for one t~ason or

are not covered by a certified agreement or an AWA. Important issues of social policy, and wage increases, are still dealt with through test cases in the AIRC. 1

31 Furthermore, the tribunal still plays an important role in the d.ay to day operation of the industrial relations - for example by means of conciliation to facilitate the making of certified agreements.

N,lvenhele>ss. it seems clear that laws enacted in reliance upon the conciliation and arbitration power never resume their former dominant role in the regulation of work relations in Australia. l32 Yet, equally clear that the history of tile national industrial relations tribunal over the first century of

existence has been one of remarkable resilience, persistence and adaptability. That history has "",fle:ct"d the expanding concept of Australian nationhood; the stable and changing features of the : ~~~~;~~~I~ federal legislation; the evolving constitutional doctrines of the High Court concerning the :.:.;. heads of legislative power; the interpretative principles of constitutional law to be applied

fathoming the depths of these powers; the alterations that have OCCUlTed in the national and ,:'.'.international economies; the changing educational and training levels of the Australian workforce;

'fluctuating levels of union membership; increasing challenges to the very nature of work; and )diffe>.·ing political fashions.

See WR Act, Part VIB, Division 3 .

. • 119 For comment on the Victorian referral see Kollmorgen 1997.

See Wo,.kplace Relations Act 1996, sections 170LT(2). 170VPB, 170VPC, 170X-170XF.

See for exanlple Reasonable Hours Case, AIRC, 23 July 2002, PR 072002; Living Wage Case 2002, AIRe, 9 May . 2002, PR 002002.

1)2 For overviews and assessments of the traditional system, and the continuing role of conciliation and al'bitration, see: Creighton 1999; 645-56 and 2000; Kirby 2001. For (premature) obituaries see Mitchell & Rimmer 1990; Vrallken 1994; Oabscheck2001.

Mf990377/4

O'il

31

l'.e seems to be no doubt that the national industrial relations tribunal will continue to adapt and. ge both in its functions and in its methods of operation. After a centl1lY, the impediments to

adaptation and change now seem less likely to be constitutional in character and more likely tohe emergence within the economy and the institutions of federal government, of a differentbi{for the role ofthe tribunal in its second century.

,;<

-lie history of the first century is any guide only two things can be said of the future with a fairte~ of certainty. First, that there will continue to be a need for a national tribunal of some kind to

iement and modify the outcomes of unregulated market forces. And secondly, that thetion of the established functions of the tribunal and the accretion of new ones, cannot

t.irately be predicted in a rapidly changing world of economic, social and technological__lavation. I))

Kirby 2002,575-76.

31

seems to be no doubt that the national industrial relations tribunal will continue to adapt and both in its functions and in its methods of operation. After a centlllY, the impediments to

ad::~~:~:~:~lIa~~nd change now seem less likely to be constitutional in character and more likely to e within the economy and the institutions of federal government, of a different

the role of the tribunal in its second century.

history of the first century is any guide only two things can be said of the future with a fair of certainty. First, that there will continue to be a need for a national tribunal of some kind to

'pl,,,,,,m! and modify the outcomes of unregulated market forces. And secondly. that the of the established functions of the tribunal and the accretion of new ones, cannot be predicted in a rapidly changing world of economic, social and technological

\nclvatiolll. 1J3

Kirby 2002,575-76.

32

BIBLIOGRAPHY

garic, M, 2000 "Originalism: Why'Some Things Should Never Change - Or at Least Not Too:Jickly" 19 University afTasmania Law Review 173

~~nnett, L, 1994 Making Labour Law in Australia: Industrial Relations. Politics and Law (Law.ok Co, Sydney)

._ar~, A I, 1901 Studies in Austl'alian Constitutiono(Lcrw (Charles F Maxwell, Melbourne)

ulthard, A, 1997 "The Individualisation of Australian Labour Law" 13 International Journal ofImparative Labour Law and Industrial Relations 95

;.oulthard,. A, 1999 "The Decollectivisation of Austnilian Industrial Relations: Trade Union:xclusion Under the Workplace Relations Act 1996 (Cth)" in S Deery & R Mitchell (eds),·'Iilployment Relations: Individualisation and Union Exclusion (Federation Press, Sydney)

f;·,raven, G, 1990 "Original Intent and the Australian Constitution - Coming Soon to a Court Near

fou?" 1 Public Lcrw Review 166

:/~C';eighton, ·w B, 1991 "Enforcement in the Federal Industrial Relations System: an Australian~pa.radox"4 Australian Journal ofLabour Law 197,,,.~

~f,;f';--

~:~iFrejghton. W B. 1997 "The Workplace Relations Act in International Perspective" 10 Australian~r'9011rnalofLabour Law 31&A~,~;

,*:':Creighton. W B, 1998 "Transmission of All or Palt of a Business: A Neglected Issue in Australian~~lndustrial and Employment Law" 26 Australian Business Law Review 162

~~f~breighton, W B, 1999 "Tr~sf01mation of Labor and Future of Labor Law in Europe: An Australian0=-~:pel'spective"20 Comparative Labor Law and Policy Journal 635~;:t\

~!'-'~Cl'eighton. W B, 2000 "One Hundred Years of the Conciliation and Arbitration Power: A Province£~t':Lost?" 24 Melbourne University Law Review 839;pL,

,fL9'eighton. W B. 2003 "Modernising Australiart Labour Law: Individualisation and the Shift from:~;'Compulsory' Conciliation and Arbitration to Enterprise Bargaining" in R Blanpain & M Weiss';f(eds) Industrial Relations: Liber Amicorum dedicated to the mem01Y of Professor Marco Biagih;(Kluwer, Deventer) (Forthcoming) . .".-,-,_.,

rl~,:i}Creighton, W B, Ford, W J & Mitchell, R J, 1993 Labour Law: Text and Materials (2nd ed, LawtySoOk Co, Sydney)

W B & Stewart, A, 2000 Labour Law: An Introduction (3rd ed, Federation Press,

":'d'Alpliget, S, 1977 lvIediator: A Biogl'aphy of Sir Richard Kirby (Melbourne University Press,'}'\:-iMe1bourne)

32

BIBLIOGRAPHY

M, 2000 "Originalism: Why'Some Things Should Nevel' Change - Or at Least Not Too 19 University afTasmania Law Review 173

L, 1994 Making Labour Law in Australia: Industrial Relations. Politics and Law (Law Co, Sydney)

A I, 1901 Studies in A llstl'alian Constitutiono(Lcrw (Charles F Maxwell, Melbourne)

Go"Jtllar,d, A, 1997 "The Individualisation of Australian Labour Law" 13 International Journal of C?Ol"v,ar<lti,'eLabour Law and Industrial Relations 95

A, 1999 "The Decollectivisation of Austnilian Industrial Relations: Trade Union '~~:~;;'~::nU~nder the Workplace Relations Act 1996 (Cth)" in S Deery & R Mitchell (eds), ~n Relations: Individualisation and Union Exclusion (Federation Press, Sydney)

G, 1990 "Original Intent and the Australian Constitution - Coming Soon to a Court Near 1 Public Law Review 166

c::~~:~~; ·w B, 1991 "Enforcement in the Federal Industrial Relations System: an Australian p; 4 Australian Journal a/Labour Law 197

:re.igilto,n, W B. 1997 "The Workplace Relations Act in International Perspective" 10 Australian of Labour Law 31

·.~::I;;~rt;~~; W S, 1998 "Transmission of All or Palt of a Business: A Neglected Issue in Australian U and Employment Law" 26 Australian Business Law Review 162

··~~;~~~~~'i~e.~w B, 1999 "TransfOlmation of Labor and Future of Labor Law in Europe: An Australian ~J 20 Comparative Labor Law and Policy Journal 635

Cn,ighto,n, W B, 2000 "One Hundred Years of the Conciliation and Arbitration Power: A Province 24 Melbourne University Law Review 839

:reighton, W B. 2003 "Modernising Australiart Labour Law: Individualisation and the Shift from o'Comlpulso'ry' Conciliation and Arbitration to Enterprise Bargaining" in R Blanpain & M Weiss

Industrial Relations: Libel' Amicorum dedicated to the mem01Y of Professor Marco Biagi ,.\'-""'''<, Deventer) (Forthcoming) , .

,'Crei:,hton, W B, Ford, W J & Mitchell, R J, 1993 Labour Law: Text and Materials (2"' ed, Law Book Co, Sydney)

W B & Stewart, A. 2000 Labour Law: An Introduction (3rd ed, Federation Press,

1977 Mediator: A Biogl'aphy of Sir Richard Kirby (Melbourne University Press,

33

~(;

~/~:El'abscheck, B, 2001 "The Slow and Agonising Death of the Australian Experiment With~b'liciliation and Arbitration" 43 Journal ofIndustrial Relations 277!if.~1l:\'lson. Sir 0,1990 "Intention and the Constitution - Whose Intent?" 6 Australian Bar Review 93I~L,:

:Fetter, J, 2002 The Strategic Use of Individual Employment Agreements: Three Case Studies,~entl'e for Employment and Labour Relations Law, The University of Melbourne, Working Paper

~626~:~1~:, !

[Fitzpatrick, B, i 941 The British Empire in Austraiia (Macmillan, Melbourne) (re-issued 1969)

'~(Jrd; W J, 1984 "The Federal Industrial Disputes Power: Comments all Some ConstitutionalfCo"nsiderations" in 0 Rawson & C Fisher (eds), Changing Industrial Law (Croom Helm. Sydney)

~ffE'fazer, A, 2001 "Parliament and the Industrial Power" in G Lindell & R Bennett (eds) Parliamentlebwers and Processes: The Vision in Hindsight (Federation Press, Sydney);>.b'i'nters, P, 1999 "The Transmission of Bu~iness Provisions in the Workplace Relations Act 1996,~(Pth): Reaffirming the Primacy of the 'Substantial Identity' Test" 12 Australian Journal a/Labour~Law211

f~6;dSW0l1hY,J, 1997 "Originalism in Constitutional Interpretation" 25 Federal Law Review 1

r661dsworthy, J, 2000 "Interpreting the Consti~ution in its Second Century" 24 Melbourne~q,l'ive,.sity Law Review 677i .~~!mcock, K, 1985 Committee of Review into Australian Industrial Relations Law and Systems,'<iileport, Volume 2 (AGPS, Canberra)~;~fliggins. H B, 1915 "A New Province for Law and Order", (Part I) 29 Harvard Law Review 13~.-"

:~[lIggins. H B, 1919 "A New Province for Law and Order", (Part II) 32 HaJ1laJ"d Law Review 189~,

P;~1-Hggins, H B, 1920 "A New Province for Law and Order", (Part III) 34 Harvard Law Review 105

33

S, 2001 "The Slow and Agonising Death of the Australian Experiment With iation and Arbitration" 43 Journal of Industrial Relations 277

Sir D, 1990 "Intention and the Constitution - Whose Intent?" 6 Australian Bar Review 93

J, 2002 The Strategic Use of Individual Employment Agreements: Three Case Studies, for Employment and Labour Relations Law, The University of Melbourne, Working Paper

'itz:Dat:rick. B, 1941 The British Empire in Australia (Macmillan, Melbourne) (re-issued 1969)

1984 uThe Federal Industrial Disputes Power: Comments on Some Constitutional ~OrlsiCler'ltions" in D Rawson & C Fisher (eds), Changing IndlisMal Law (Croom Helm, Sydney)

A, 2001 "Parliament and the Industrial Power" in G Lindell & R Bennett (eds) Parliament and Processes: The Vision in Hindsight (Federation Press, Sydney)

p. 1999 "The Transmission of Bu~iness Provisions in the Workplace Relations Act 1996 : Reaffirming the Primacy of the 'Substantial Identity' Test" 12 Australian Journal a/Labour 211

J61.ds·wOI1hv. J, 1997 "Originalism in Constitutional Interpretation" 25 Federal Law Review 1

Golds·wolrtll". J. 2000 "Interpreting the Constitution in its Second Century" 24 Melbourne tfi,ivel','ityLaw Review 677

il·ranco1ck, K, 1985 Committee of Review into Australian Industrial Relations Law and Systems, Volume 2 (AGPS, Canberra)

rllg:glll15, H B, 1915 "A New Province for Law and Order", (Part I) 29 Harvard Law Review 13

IHI!:gIllIS, H B, 1919 "A New Province for Law and Order", (Part II) 32 Harvard Law Review 189

,n't;glU15, H B, 1920 "A New Province for Law and Order", (Part III) 34 Harvard Law Review 105

H. 1983 Penal Colony to Penal Powers (rev ed, Amalgamated Metal Workers and Shipwlrighlts Union, Sydney)

1994 Committee of Expelts on the Application of Conventions and Recommendation, 7reed"m of Association and Collective Bargaining: General Survey (!LO, Geneva)

.K.lllnlOroeI1. S, 1997 "Towards a Unitary National System of Industrial Relations?" 10 Australian ,-:!o"ml,alojLabolir Law 158

M D, 1989 "The Removal of Justice Staples and the Silent Forces ofIndustrial Relations" 31 "JoUl'llal of Industrial Relations 334

M D, 1990 "Judicial Independence in Australia Reaches a Moment ,of Truth" 13 University South Wales Law Journal 187

D, 2000 "Constitutional Interpretation and Original Intent: A Form of Ancestor :Wo""hi"?"24 Melbourne University Law Review 1

34

fby,M D, 2001 "Industrial Relations Law - Call off the Funeral" 6 Deakin Law Review 256

tby;M D, 2002 "Human Rights and Industrial Relations" 44 Journal ofIndustrial Relations 562F-

rk, J, 1999 "Constitutional Interpretation and a theory of Evolutionary Originalism" 27 Federal'\.iJ 'Review 323

'-116, P H. 198 I "The Decline of the Boilermakers Separation of Powers Doctrine" 55 Australian11' Journal 6

cCallum. R C, 1992 "A Modern Renaissance" Industrial Law and Relations Under Federal Wigs977-1992" 14 Sydney Law Review 401

. cCallum~ R C. 1993 "Enhancing Federal Enterprise Bargaining: The Industrial Relations"glslation Amendment Act 1992 (Ctll)" 6 Australian Journal ofLabour Law 63

1tCaIlul11, R C, 1994 "The Internationalisation of Australian Labour Law: The Industrial Relationsfeform Act 1993" Sydney Law Review 122

··'1CCallul1l, R C, 2001 "Labour Outsourcing and the High Cou11" 14 Australian Journal 0/Labour

"",97

'thCallum, R C & Smith, GF, 1986 "Opting Out From Within: Industlial Agreements Under the,onciliation and Arbitration Act 1904" 28 Journal o/Industrial Relations 57

j1cCan'y, G J, 1994 "Sanctions and Industrial Action: The Impact of the Industrial Relations:~eform Act" 7 Australian Journal 0/Labour Law 33

McCarry, G J, 1997 "Industrial Action under the Workplace Relations Act i996 (Cth)" 10listration Journal o/Labour Law 133

McCarry, G J. 1998 "From Industry to Enterprise, From Award to Agreement: Federal Laws and/Workplace Change in Australia" in D R Nolan (ed), The Australasian Labour Law Reforms:

:;'; Jjzistralia and New Zealand at the End o/the Twentieth Centwy (Federation Press, Sydney)~:o:';: ',' -":Macintyre, S & Mitchell, R J, 1989 Foundations ofArbitration (OUP, Melbourne)

~~,Maher, L W & Sexton, M G. 1972 "'The High Court and Industrial Relations" 46 Australian Lawt:-Jpurnal 109

r:~Meagher. D, 2002a "New Day rising? Non-Originalism, Justice Kirby and s 80 of the1;:': Constitution" 24 Sydney Law Review 141~:'"

~/;Meagher, D, 2002b "Guided by Voices? ~ Constitutional Interpretation on the Gleeson Court" 7~~:Deakin Law Review 261.

~itchell, R J, 1986 "The High COllrt and the Preference Power: Wallis and Findlay in the ContextoJthe 1947 Amendments" 16 University o/Western Aushoalia Law Review 338

Mitchell, R J, 1987 ''The Preference Power and the Practice of the Federal Industrial Tribunal, 1904­I?70" 29 Journal ofIndustrial Relatiol1s 3

34

M D, 200 I "Industrial Relations Law - Call off the Funeral" 6 Deakin Law Review 256

M D, 2002 "Human Rights and Industrial Relations" 44 Journal of Industrial Relations 562

1, 1999 "Constitutional Interpretation and a theory of Evolutionary Originalism" 27 Federal Review 323

P H. 198 I "The Decline of the Boilermakers Separation of Powers Doctrine" 55 Australian Journal 6

(lc(:allunJ,R C, 1992 "A Modern Renaissance" Industrial Law and Relations Under Federal Wigs 992" 14 Sydney Law Review 401

~~~s~~~~~~ R C, 1993 "Enhancing Federal Enterprise Bargaining: The Industrial Relations ~t Amendment Act 1992 (Cth)" 6 Australian Journal of Labour Law 63

tVlcCa.llul11, R C, 1994 "The Internationalisation of Australian Labour Law: The Industrial Relations Act 1993" Sydney Law Review 122

McCallurn, R C, 2001 "Labour Outsourcing and the High COUlt" 14 Australian Journal of Labour

;~~~~~:::;I~nIR C & Smith, GF, 1986 "Opting Out FraIn Within: Industlial Agreements Under the :!C and Arbitration Act 1904" 28 Journal a/Industrial Relations 57

"i§I.cCal1Y, G J, 1994 "Sanctions and Industrial Action: The Impact of the Industrial Relations R·,'fo,'o, Act" 7 Australian Journal of Labour Law 33

G J, 1997 "Industrial Action under the Workplace Relations Act 1996 (Cth)" 10 >Aflsli"all'an Journal of Labour Law 133

~.%:~;~~~~~G J. 1998 "From Industry to Enterprise, From Award to Agreement: Federal Laws and

Change in Australia" in D R Nolan (ed), The Australasian Labour Law Reforms: and New Zealand at the End a/the Twentieth CentUlY (Federation Press, Sydney)

.'l\o!iaciinl)n'e,S & Mitchell, R J, 1989 Foundations of Arbitration (OUP, Melbourne)

"IV!"ner, L W & Sexton, M G, 1972 "'The High Court and Industrial Relations" 46 Australian Law .'.Journ.aII09

D, 2002a "New Day rising? Non-OriginaIism. Justice Kirby and 5 80 of the Constitution" 24 Sydney Law Review 141

':rvlea.gher, D, 2002b ''Guided by Voices? ~ Constitutional Interpretation on the Gleeson Court" 7 ,-'o""",Law Review 261.

Mitchell, R J, 1986 "The High COllrt and the Preference Power: Wallis and Findlay in the Context 0tthe 1947 Amendments" 16 University o/Western Aush'alia Lmv Review 338

>rvlitchel.l,R J, 1987 ''The Preference Power and the Practice of the Federal Industrial Tribunal, 1904-29 Journal of Industrial Relatiol1s 3

35

\chell, R J, 1988 "The Rise and Fall of the Preference Power: The Practice of the Federal,hlll1ission, 1970-1987" 1Australian Journal ofLabour Law 224

ii"tchell, R J. 1989 "State Systems of Conciliation and Arbitration: The Legal Origins of thefistralasian Model" in S Macintyre & R Mitchell (eds), Founds ofArbitration (OUP, Meibourne)

itchell, R J & Fetter, J 2002 Human Resource lvlanagement and the Individuolisatioll of':istralian Relations, Centre for Employment and Labour Relations Law, The University of'elbourne, Working Paper No 25

litchell, R & Rimmer, M, 1990 "Labour Law, Deregulation, and Flexibility in Australian Industrial:e_lations" 12 Comparative Labor Law Journal!

allghtol1. R B, 1994 "The New Bargaining Regime" 7 Australian Journal a/Labour Law 147

'atmore, G, 1991 Ausnoalian Labour HisfolY (Longman Cheshire, Melboume)

ittard, M J, 1997 "Collective Employment Relationships: Reforms to Arbitrated Awards and~ltified Agreements" 10 Australian Journal a/Labour Law 62

~~:"iuard. M J & Naughton, RB, 2003 Australian Labour Law: Cases and Materials (41h ed,;{a9tterworths, Sydney).,.'.... .~-\pI6wman, 0 H, 1989a "Forced March: The Employers and Arbitration" in S Macintyre & R'\t<\itchell (eds), Foundations ofArbitration (OUP, Melbourne)

[~'l~jowman. D H, 1989b Holding the Line: Compulsory arbitration and national employer co­';'<:::~I;dil1ation in Australia (Cambridge University Press, Cambridge)

~Plowman, D H & Smith, 0 F, 1986 "Moulding Federal Arbitration: The Employers and the High~\l:~.o~lrt 1903-1935" 11 Australian Journal ofManagement 203

c' Reeves, W P, 1902 State Experiments in Australia and New Zealand,. Vol 2 (Black, Edinburgh)f;i':~oan, A, Bramble, T & Lafferty, G, 2001 "Australian Workplace Agreements in Practice: The- tHard' and ·Soft' Dimensions" 43 Journal a/Industrial Relations 387

~'?Scalia, A, 1995 "The Role of a Constitutional Court in a Democratic Society" 2 The Judicial ReviewHI

f.-stewart, A, 1999 "The Legal Framework for Individual Employment Agreements in Australia" in S~,,":Deery & R Mitchell (eds), Employment Relations: Individualisation and Union Exclusion~:(Federation Press, Sydney)

t'SYkes, E 1& Olasbeek, H J, 1972 Labour Law in Australia (Butterworths, Sydney)

~~Vranken, M, 1994 "Demise of the Australasian Model of Labour Law in the 1990s" 16'.:.'-pompal'ative Labor Law JOZl171ali

~,:Webb, S & Webb, B, 1898 Industrial Democracy (Private, London)1"'

~~:~9i;~~~~~s, G, 1998 Labour Law and the Constitution (Federation Press, Sydney)

35

R J, 1988 "The Rise and Fall of the Preference Power: The Practice of the Federal ,1111111SS101i1, 1970-1987" 1 Australian Journal of Labour Law 224

R J, 1989 "State Systems of Conciliation and Arbitration: The Legal Origins of the listralaotian Model" in S Macintyre & R Mitchell (eds), Founds of Arbitration (OUP, Melbourne)

R J & Fetter, J 2002 Human Resource lvlanagement and the Individllolisatioll of Relations, Centre for Employment and Labour Relations Law, The University of

AelllOUlme, Working Paper No 25

R & Rimmer, M, 1990 "Labour Law, Deregulation, and Flexibility in Australian Industrial ';'""""0" 12 Compal'attve Labor Law Journal!

"aughton, R B, 1994 "The New Bargaining Regime" 7 Australian Journal a/Labour Law 147

Do'me,,·. G, 1991 Ausnoalian Labour Hist01Y (Longman Cheshire, Melboume)

M J, 1997 "Collective Employment Relationships: Reforms to Arbitrated Awards and ro'+i~;o" Agreements" 10 Australian Journal ofLaboll1' Law 62

J & Naughton, RB, 2003 Australian Labour Law: Cases and Materials (4111 ed, O:,,"·,,",n,+IK Sydney)

o H, 1989a "Forced March: The Employers and Arbitration" in S Macintyre & R "tylitcllell (eds), Foundations of Arbitration (OUP, Melbourne)

D H, 1989b Holding the Line: Compulsory arbitration and national employer co­'.·m:dillal.;or. in Australia (Cambridge University Press, Cambridge)

[Plowman. D H & Smith, G F, 1986 "Moulding Federal Arbitration: The Employers and the High 1903-1935" II Australian Journal of Management 203

',Kee"es. W P, 1902 State Experiments in Australia and New Zealand, Vol 2 (Black, Edinburgh)

A, Bramble. T & Lafferty, G, 2001 "Australian Workplace Agreements in Practice: The and ·Soft' Dimensions" 43 Journal o/Industrial Relations 387

A, 1995 "The Role of a Constitutional Court in a Democratic Society" 2 The Judicial Review

'~'ew,,, A, 1999 "The Legal Framework for Individual Employment Agreements in Australia" in S & R Mitchell (eds), Employment Relations: Individualisation and Union Exclusion

i(F'ed',ratiotl Press, Sydney)

E I & Glasbeek, H J, 1972 Labour Law in Australia (Butterworths, Sydney)

M, 1994 "Demise of the Australasian Model of Labour Law in the 1990s" 16 CC,"lllor·ativ< Labor Law JOZll71al1

S & Webb, B, 1898 Industrial Democracy (Private, London)

G, 1998 Labour Law and the Constitution (Federation Press, Sydney)