1. Copyright  2005 McGraw-Hill Australia Pty Ltd PowerPoint Slides t/a Industrial Relations 3e by Bray, Deery, Walsh and Waring 4–1 Part two The parties CHAPTER FOUR THE FEDERAL TRIBUNAL

2. Copyright  2005 McGraw-Hill Australia Pty Ltd PowerPoint Slides t/a Industrial Relations 3e by Bray, Deery, Walsh and Waring 4–2 Overview  The evolution of the federal tribunal  Tribunal diffusion and integration  The federal tribunal: Objectives, organisation and operations  Other elements of the federal regulatory framework  Strikes, lockouts and penalties  Federal and state tribunal cooperation  Termination of employment  Final observations  Summary

3. Copyright  2005 McGraw-Hill Australia Pty Ltd PowerPoint Slides t/a Industrial Relations 3e by Bray, Deery, Walsh and Waring 4–3  The origins of conciliation and arbitration  the Conciliation and Arbitration Act of 1904  the growth of federal arbitration, 1904–1928  Arbitration and the Great Depression, 1929–1935  Recovery and the centralising effect of war, 1936–1945  Post-war changes, 1946–1986  The present role and position of the federal tribunal 1987– 2000s Evolution of the federal tribunal

4. Copyright  2005 McGraw-Hill Australia Pty Ltd PowerPoint Slides t/a Industrial Relations 3e by Bray, Deery, Walsh and Waring 4–4  Rapid growth of the labour movement through the 1880s; the economic collapse of the 1890s saw prolonged striking and the routing of the unions.  The defeated labour movement sought political reform; moved into parliament.  The parliamentary Labor and Liberals sought to develop new ways of dealing with industrial conflict at a colonial and federal level: – by 1904 the Conciliation and Arbitration Act was passed. Evolution of the federal tribunal (cont.) The origins of conciliation and arbitration

5. Copyright  2005 McGraw-Hill Australia Pty Ltd PowerPoint Slides t/a Industrial Relations 3e by Bray, Deery, Walsh and Waring 4–5 Section 51(xxxv) of the constitution enabled parliament to make laws for the ‘conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond any one state’. Creating the 1904 Act was very difficult, it: –‘wrecked three Ministries; it embittered the relations of the parties in Parliament; it evoked the antagonisms of the States’. The Act obliged employers to recognise registered unions, and unions to acknowledge management’s right to manage. Evolution of the federal tribunal (cont.) The Conciliation and Arbitration Act 1904

6. Copyright  2005 McGraw-Hill Australia Pty Ltd PowerPoint Slides t/a Industrial Relations 3e by Bray, Deery, Walsh and Waring 4–6 Evolution of the federal tribunal (cont.) The growth of federal arbitration, 1904–1928  The Commonwealth Court of Conciliation and Arbitration was initially envisaged to play a small role.  Opposition by employers to the new Court.  Three significant High Court cases: –Bootmakers’ case (1910) –Builders’ Labourers case (1914) –Cowburn case (1926).

7. Copyright  2005 McGraw-Hill Australia Pty Ltd PowerPoint Slides t/a Industrial Relations 3e by Bray, Deery, Walsh and Waring 4–7 Evolution of the federal tribunal (cont.) Arbitration and the Great Depression, 1929–1935  Employers blamed depression on the arbitration system.  Nominal wages cut by 10% by both state and federal tribunals.  Reduction restored by 1934.

8. Copyright  2005 McGraw-Hill Australia Pty Ltd PowerPoint Slides t/a Industrial Relations 3e by Bray, Deery, Walsh and Waring 4–8 Evolution of the federal tribunal (cont.) Recovery and the centralising effect of war 1936–1945  Employers shifted to supporting the arbitration system.  Arbitration Court seen as a way to resist union’s claims in a climate of labour shortages.  National security (industrial peace) regulations.

9. Copyright  2005 McGraw-Hill Australia Pty Ltd PowerPoint Slides t/a Industrial Relations 3e by Bray, Deery, Walsh and Waring 4–9 Evolution of the federal tribunal (cont.) Post-war changes, 1949–1986  Enhanced role for the Arbitration Court  1947 reforms: –removing judicial characteristics –appointment of conciliation commissions.

10. Copyright  2005 McGraw-Hill Australia Pty Ltd PowerPoint Slides t/a Industrial Relations 3e by Bray, Deery, Walsh and Waring 4–10 Evolution of the federal tribunal (cont.) The present role and position of the federal tribunal 1987–2000s  Boilermakers’ case (1956).  Separation of arbitral and judicial powers.  Industrial Court (now the Federal Court of Australia)  judicial powers.  Conciliation and Arbitration Commission (now the Australian Industrial Relations Commission)  arbitral powers.

11. Copyright  2005 McGraw-Hill Australia Pty Ltd PowerPoint Slides t/a Industrial Relations 3e by Bray, Deery, Walsh and Waring 4–11 Evolution of the federal tribunal (cont.) The present role of the federal tribunal, 1987–2000s (cont.)  Economic and financial market deregulation.  Operation of the federal commission in a deregulated context: –reduced role for commission forces parties to the court system –significant costs –promotes adversarialism.  Series of decisions (from 1986) to shift responsibilities to the workplace.  Government uses multiple heads of constitutional power to establish laws for enterprise bargaining.

12. Copyright  2005 McGraw-Hill Australia Pty Ltd PowerPoint Slides t/a Industrial Relations 3e by Bray, Deery, Walsh and Waring 4–12 Tribunal diffusion and integration  Establishment of specialists tribunals.  Growth in the number of members of the Commission.  Mechanisms established to integrate work: –full benches –panel system –incorporation of specialist tribunals.  Impact of enterprise bargaining on the structure of the federal commission.

13. Copyright  2005 McGraw-Hill Australia Pty Ltd PowerPoint Slides t/a Industrial Relations 3e by Bray, Deery, Walsh and Waring 4–13 The federal tribunal: Objectives, organisation and operation  Objectives of the Australian Industrial Relations Commission.  Organisation of the Australian Industrial Relations Commission.  Operation of the Australian Industrial Relations Commission: – commissioners – full bench – the panel system.

14. Copyright  2005 McGraw-Hill Australia Pty Ltd PowerPoint Slides t/a Industrial Relations 3e by Bray, Deery, Walsh and Waring 4–14 The federal tribunal: objectives, organisation and operations (cont.) Objectives of the tribunal a)Encouraging the pursuit of high employment, improved living standards, low inflation and international competitiveness through higher productivity and a flexible and fair labour market and aa)Protecting the competitive position of young people in the labour market, promoting youth employment, youth skills and community standards and assisting in reducing youth unemployment and b)Ensuring that the primary responsibility for determining matters affecting the relationship between employers and employees rests with the employer and employees at the workplace or enterprise level; and Source: Workplace Relations Act 1996, Section 3. All legislation herein is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright.

15. Copyright  2005 McGraw-Hill Australia Pty Ltd PowerPoint Slides t/a Industrial Relations 3e by Bray, Deery, Walsh and Waring 4–15 Objectives of the tribunal (cont.) c)Enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances, whether or not that form is provided for by [the] Act and d)Providing the means: (i) for wages and conditions of employment to be determined as far as possible by the agreement of employers and employees at the workplace or enterprise level, upon a foundation of minimum standards; and (ii) to ensure the maintenance of an effective awards safety net of fair and enforceable minimum wages and conditions of employment and Source: Workplace Relations Act 1996, Section 3. All legislation herein is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright.

16. Copyright  2005 McGraw-Hill Australia Pty Ltd PowerPoint Slides t/a Industrial Relations 3e by Bray, Deery, Walsh and Waring 4–16 e)Providing a framework of rights and responsibilities for employers and employees, and their organisations, which supports fair and effective agreement-making and ensures that they abide by awards and agreements applying to them and f)Ensuring freedom of association, including the rights of employees and employers to join an organisation or association of their choice, or not to join an organisation or association and g)Ensuring that employee and employer organisations registered under the Act are representative of and accountable to their members, and are able to operate effectively and h)Enabling the Commission to prevent and settle industrial disputes as far as possible by conciliation and, where appropriate and within specified limits, by arbitration and Source: Workplace Relations Act 1996, Section 3. All legislation herein is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright. Objectives of the tribunal (cont.)

17. Copyright  2005 McGraw-Hill Australia Pty Ltd PowerPoint Slides t/a Industrial Relations 3e by Bray, Deery, Walsh and Waring 4–17 i)Assisting employees to balance their work and family responsibilities effectively through the development of mutually beneficial practices with employers and j)Respecting and valuing the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin and k)(k) Assisting in giving effect to Australia’s international obligations in relations to labour standards. Source: Workplace Relations Act 1996, Section 3. All legislation herein is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright. Objectives of the tribunal (cont.)

18. Copyright  2005 McGraw-Hill Australia Pty Ltd PowerPoint Slides t/a Industrial Relations 3e by Bray, Deery, Walsh and Waring 4–18 The federal tribunal: Objectives, organisation and operations (cont.) Organisation of the tribunal  Members are appointed by the Governor General: – one president:  responsible for day-to-day running of the AIRC  assigns industries to panels – two vice presidents – senior deputy presidents – deputy presidents – commissioners.

19. Copyright  2005 McGraw-Hill Australia Pty Ltd PowerPoint Slides t/a Industrial Relations 3e by Bray, Deery, Walsh and Waring 4–19  Commissioners: – responsible for most of the routine dispute resolution – each member will also sit on a number of industry panels.  Full bench: three or more members (of which two are presidential) sitting together. – Specific role in relation to:  national wage cases  allowable matters  appeals  majority decisions. Panels: – groups of members with responsibility for specific industries. The federal tribunal: Objectives, organisation and operations (cont.) Operations of the tribunal

20. Copyright  2005 McGraw-Hill Australia Pty Ltd PowerPoint Slides t/a Industrial Relations 3e by Bray, Deery, Walsh and Waring 4–20 Other elements of the federal regulatory framework Federal Court of Australia: –responsible for all judicial functions under the Workplace Relations Act of 1996 –award interpretation and enforcement –activities of federally registered industrial organisations. Australian Industrial Registry: –responsible for record keeping under the federal system. The Inspectorate: –government unit responsible for prosecuting award and agreement breaches.

21. Copyright  2005 McGraw-Hill Australia Pty Ltd PowerPoint Slides t/a Industrial Relations 3e by Bray, Deery, Walsh and Waring 4–21 Employment Advocate: new role created by the Workplace Relations Act of 1996 responsible for: –approval of Australian Workplace Agreements (AWAs) –investigate alleged breaches of freedom of association. Other elements of the federal regulatory framework (cont.)

22. Copyright  2005 McGraw-Hill Australia Pty Ltd PowerPoint Slides t/a Industrial Relations 3e by Bray, Deery, Walsh and Waring 4–22 Strikes, lockouts and penalties  Strikes and lockouts – Technically strikes and lockouts are illegal in Australia, although they may occur in certain circumstances. – Long and difficult history in developing the legal framework to manage striking.  Bans clauses – After 1947, it became possible for a clause to be inserted into awards that prevented industrial action, and made it punishable as an award breach. – They created additional difficulties.

23. Copyright  2005 McGraw-Hill Australia Pty Ltd PowerPoint Slides t/a Industrial Relations 3e by Bray, Deery, Walsh and Waring 4–23 Strikes, lockouts and penalties (cont.)  Secondary boycotts: – Trades Practice Act of 1974 banned unions from ‘placing employers … under duress so as to win concessions from another employer …’ (see p.133 of the main text) – 1993 amendments.  Limited right to strike under the Industrial Relations Reform Act of 1993: – introduced a limited right to strike within the ‘bargaining period’ – protected action.  Limited right to strike under the Workplace Relations Act of 1996: – no protected actions under the life of an agreement – no payment during period of strikes – restored prohibition against secondary boycotts.

24. Copyright  2005 McGraw-Hill Australia Pty Ltd PowerPoint Slides t/a Industrial Relations 3e by Bray, Deery, Walsh and Waring 4–24 Federal and state tribunal cooperation  Dual systems—‘rival shops’.  Consistency of decisions?  Federal awards prevail over state.  Mechanisms to encourage cooperation.

25. Copyright  2005 McGraw-Hill Australia Pty Ltd PowerPoint Slides t/a Industrial Relations 3e by Bray, Deery, Walsh and Waring 4–25 Termination of employment  Common law enables ‘employment at will’.  Legislation provides restrictions on the termination of an individual’s employment: – earlier in the state – federally from 1994.  This legislation typically looks for: – procedural fairness – substantive fairness.

26. Copyright  2005 McGraw-Hill Australia Pty Ltd PowerPoint Slides t/a Industrial Relations 3e by Bray, Deery, Walsh and Waring 4–26 Termination of employment (cont.)  Two definitions: – unfair dismissal—unfair, harsh, or unreasonable – unlawful dismissal—dismissal contrary to law.  Workplace Relations Act of 1996 sought to reduce actions against unfair dismissal: – only available to those:  under federal awards and agreements  not on a fixed term basis or qualifying period.

27. Copyright  2005 McGraw-Hill Australia Pty Ltd PowerPoint Slides t/a Industrial Relations 3e by Bray, Deery, Walsh and Waring 4–27 Final observations  AIRC is now in decline, after a peak in the 1980s, due to: – expansion of enterprise bargaining – limitations on arbitral powers – growing use of remedies from other courts.  However, the AIRC and its predecessors have been central to Australian industrial relations for a century.

28. Copyright  2005 McGraw-Hill Australia Pty Ltd PowerPoint Slides t/a Industrial Relations 3e by Bray, Deery, Walsh and Waring 4–28 Summary  System established to resolve industrial disputes without the need for industrial action.  Intended to play a small role.  Coverage expanded by High Court decisions.  Re-evaluation of the system in the 1980s.  Devolution of the system—parties now have primary responsibility for setting employment conditions in the workplace.