The Australian Arbitration System: An Analytical Description

The Australian Arbitration System: An Analytical Description

The Australian Arbitration System: An Analytical Description

The Australian Arbitration System: An Analytical Description

Excerpt

I feel very profoundly that much of the criticism of courts and many of the blunders of courts have their origin in false conceptions, or at any rate in varying conceptions, of the limits of judicial powers, the essence of the judicial function, the nature of the judicial process. ( B. N. Cardozo, The Growth of the Law, 1924.)

The Australian Arbitration System is an institution of a half century's standing and represents one of the longest attempts at governmental regulation of labor matters of the current period. This essay is an analysis of the place of the government in the labor relations picture. In short, we are concerned with the social role of the Court: we are not concerned either with the Court's evolved rules (industrial arbitration "law"), or with what, in the strictest sense, may be called the economic effects of arbitration.

The federal government in Australia dates from 1901. In its Constitution it provides that "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 -- (1) Trade and commerce with other countries, and . . . among the states," and "(35) Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one state. . . ."

These provisions have been interpreted by the Australian High Court (the equivalent of the United States Supreme Court) to mean that under normal conditions the Australian Parliament may not pass legislation directly affecting industrial relations problems, but is limited to the setting up of a supervisory semi-independent governmental agency. Thus the Arbitration System, as it has come to be known, not only serves as a "court" but as a legislative steward for the Parliament, and it is the only authorized instrumentality for the regulation of industrial disputes in the federal sphere.

At the present time the Arbitration System handles all unresolved industrial disputes in interstate industry. Either party can invoke the assistance of the System after a disagreement has become apparent. The officials usually refuse to intervene while a strike or lockout is in progress. In practice the System actually determines, or supervises the determination of, all wage rates and working conditions in interstate industry. By and large it works through the unions and the employers' organizations, although, in certain special instances, it will recognize individual workmen and employers as parties to the proceedings.

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