20 APRIL 2001





[1] In a little over one month it will be 100 years precisely since the introduction into the Commonwealth Parliament of the first bill to establish a national industrial relations institution. That bill was the Conciliation and Arbitration Bill of 1901 and it was introduced in the second session of the first Parliament by Sir Edmund Barton. The colonies had quite well developed industrial relations systems before Federation. While those systems had been retained by the recently created States, there was broad agreement that a national body should be established to deal with disputes extending beyond the limits of any one State. When, however, the Bill was amended in the House of Representatives to give the new Court jurisdiction over industrial disputes in the State railways, the Government opted to abandon the bill rather than permit it to pass in its amended form.

[2] In early 1904, the first Deakin Ministry introduced another Conciliation and Arbitration Bill. Consistent with Deakin's policy during the 1903 election, the Bill excluded employees in State government industries. Like the Bill of 1901, this one was also amended in the House in a similar fashion, this time to remove the exclusion for State employees. Deakin resigned. A new government was thereupon formed, headed by Watson. This was the first Labour Party government. Watson took up Deakin's Bill in its amended state and attempted to secure its passage. But another highly controversial issue arose - whether the new Federal system should give preference to unionists. It was on this issue that the Bill eventually foundered for a second time. Watson immediately asked the Governor-General for a double dissolution. When the request was refused Watson resigned and the Labour Government fell. The Bill was eventually passed during the Reid - McLean administration, a coalition of Free Traders and Protectionists respectively, on 9 December 1904.

[3] Professor Sawer wrote in 1956, in a masterpiece of compression, that "the most important single achievement, in light of later history," of the Second Parliament "was the passing of the Conciliation and Arbitration Act 1904, establishing a system of compulsory juridical arbitration of industrial disputes. This was to have a profound effect on the social structure because of the encouragement it gave to trade union development on a national scale; on the economic structure, because of its consequences for wages and hours fixation; and on politics, because of the periodical party crises caused by attempts to alter the system."

[4] Perhaps there is another area in which the national industrial system has had a profound effect and that is in the development of Australia's constitutional law through the many cases decided by the High Court in which the extent of the Commonwealth's power to make laws with respect to the prevention and settlement of industrial disputes and, more recently, corporations and external affairs, has been in issue.

[5] So began the Commonwealth's role, through the Court of Conciliation and Arbitration, in the prevention and settlement of industrial disputes. The beginning was certainly stormy with two Governments falling within the space of one year as result of divisions over the powers to be exercised by the new institution. As bitter as those divisions undoubtedly were it seems clear enough that support for a Commonwealth arbitration system was widespread. It was the inability of the interest groups to agree on the outer limits of the jurisdiction, rather than disagreement about the nature of the jurisdiction, which caused the problems.

[6] This is not the occasion on which to trace the development of the system or the changes which have occurred in the jurisdiction of the State and Federal tribunals. But certainly for a large part of the first century of the Commonwealth the relationship between the systems of industrial regulation has been a matter of some significance both politically and industrially. Some of the difficulties arising from the overlap between the Federal and State industrial systems which were to emerge over the next 10 or 20 years, and which still remain almost a century later, were unforeseen in 1904. At that time the theoretical basis for regulation was simple - contracts of employment governed by the general law overlaid where necessary with awards at either a state or federal level made in settlement of collective disputes. In addition there was another area of regulation, for many years to be mainly the province of the State legislatures, which operated in conjunction with the common law to protect employees from the requirement to work in unsafe or unhealthy conditions.

[7] Since 1904 there has been a steady increase in Federal and state industrial laws. This increase has not been confined to what might be described as the original or traditional industrial systems. The number of laws which now impinge in some way or another upon industrial relationships has grown considerably over the century. Perhaps this is not unusual given the growth in legislation in so many other areas of commercial and industrial activity. It is nonetheless a matter of importance. In the areas which affect employers and their employees directly there are Federal and State laws on industrial relations, equal opportunity and discrimination and in the Public Service various merit-protection arrangements. There has been also a very significant increase in the number of judicial, quasi-judicial and administrative bodies to which resort may be had in relation to the various statutory rights and rights of action. A workplace dispute might have repercussions in a State or Federal arbitral tribunal, the Federal Court, equivalent State courts, the Human Rights and Equal Opportunity Commission, various State specialist tribunals and, in public employment sector, various internal review bodies such as merit protection tribunals.

[8] The growth in regulation can be illustrated by taking the familiar case of the dismissal of an employee. Dismissal may lead to litigation based on discrimination of one kind or another in a specialist anti-discrimination tribunal either Federal or State, in the Federal Court because the reason for dismissal is an unlawful or a prohibited one, under the unfair dismissal provisions of the Workplace Relations Act 1996 or State unfair dismissal legislation, or under the more general dispute resolution provisions to be found in industrial relations legislation and awards and agreements. There is also the possibility of an action at common law for breach of contract, perhaps with a trade practices overlay. In some jurisdictions there may be an action available based on unfair contracts legislation.

[9] In some very important respects the existence of this thicket of regulation threatens the quality of our democracy. This is not simply a question of the amount of regulation. Most of the legislation, if not all of it, is directed towards useful and important social purposes, such as the prevention and settlement of industrial disputes, the protection of freedom of association, the elimination of discrimination in all of its forms and so the list goes on. Various statutory provisions establish the machinery and processes which the several Parliaments of the States and the Commonwealth have adopted to carry those purposes forward. So my concern is not about the need for regulation in whatever areas sovereign governments think appropriate. But as all practitioners in the field know, for any one set of facts there is a variety of potential causes of action, in a number of different courts and tribunals, with a range of possible outcomes. This is confusing to say the least for the parties directly concerned but it also means that the outcome of particular cases is of very little predictive value in similar cases. Our regulatory framework should be designed in a way which accords a high priority to consistency of treatment.

[10] At each step in any of the processes there is the potential for legal issues to arise. Whilst questions of construction and jurisdiction may take time to resolve on an individual basis and to reconcile one with the other over a period of years questions of that kind are a feature of all legal systems. What is of real concern, however, is the potential, some may say the fact, for discretionary decisions to be made by individual judges or arbitrators which have no consistent theoretical basis either because they are made in different statutory contexts or because the discretion afforded by the law is too wide. To illustrate how different statutory contexts might lead to different results in the same factual context, it is useful to contrast the approach required when a matter falls to be decided in the course of an industrial dispute with the situation when the same matter is dealt with under a provision primarily concerned with individual rights. In industrial disputes the position of an individual or individuals might give way to the public interest or the good of the greater number involved in the dispute and an industrial tribunal, acting properly, might give greater priority to the well-being of the workforce at the expense of one or two individuals. In a statutory regime which gives primacy to individual rights the broader public interest merges with the right of the individual and the interests of the group are of less significance. This contrast in approaches is paralleled by the tension within the Workplace Relations Act 1996 between parts which focus on collective rights and other parts which deal with individual rights. And the more one looks at the scope for the exercise of discretion in the various jurisdictions and the statutory context in each case, the clearer it becomes that there is the potential for a number of different outcomes in any particular case depending upon the court or tribunal and the relevant law. While the problem is capable of amelioration through appeal systems, appeals cannot provide a complete answer while there is a multiplicity of laws, courts and tribunals.

[11] This is a problem of some significance. It is unfortunately true that there are many instances where the parties to employment relationships are unable to say with confidence that particular conduct will have definite legal consequences or will result in a particular form of relief. This kind of problem is of course not confined to labour law. Demands for consistency in sentencing evidence concern of a similar kind in the criminal jurisdiction. But I suggest that the problem in industrial law is far bigger and more complex and can have grave social consequences.

[12] I do not want to be misunderstood. I am not directly addressing the basis or the continuing need for the various laws. Issues of that kind may be debated by others who are concerned with policy formulation and the political process. The uncertainty generated by the mixture of laws which impact on employment relationships in this country constitutes an erosion of our freedoms and impacts on the quality of our society. Laws at State and federal level which ostensibly have the same purpose are often quite different in their effect. One only has to consider again the laws dealing with termination of employment. The conditions for access differ, the remedies differ both between states and federally and there are other differences of significance. Treatment of costs is one example. The same general subject matter in some legislative schemes may be dealt with by a Court, in others by an industrial commission and in others again by a specialist tribunal. The potential for different outcomes in similar factual situations is widespread. To the extent that the potential for inconsistent treatment is avoidable the situation is quite simply unfair.

[13] There is an important related issue concerning minimum standards - referred to in Federal industrial legislation as the award safety net. A great deal has been done in the last 20 years or so to coordinate many basic entitlements through the state and federal industrial award systems. But there are still differences in the nature and level of entitlements. Where those differences have no rational basis but are accidents of industrial or political history they advantage some citizens and disadvantage others. This too is a lack of equality and it undermines our society in a significant way.

[14] Can I suggest that unfairness also arises from the relatively inadequate machinery for the enforcement of the awards made by industrial tribunals. A right which is unenforceable due to poverty or fear or some other reason is a right not worth having. Proceedings to enforce Federal awards, whether by individuals, by unions or by Government are fairly rare these days. It may be that awards are being observed at an acceptable level but instinctively one doubts it. If we are really concerned about equality before the law we would ensure that the award rights of employees and employers were protected by adequate enforcement procedures available to those unable to fund the enforcement of those rights or afraid to do so.

[15] It is important also to remind ourselves that the burden of these problems falls most heavily on those with fewer resources. The wealthy and large companies and unions have the resources to play out their cases in and out of tribunals and courts almost without limit and there are notable examples of such battles throughout our industrial history. But an individual employee or relatively small employer can be financially crippled by litigation. The difficulties for employees in enforcing the growing number of individual statutory rights are increasing. Access to legal aid for such purposes is extremely limited and many unions are understandably reluctant to commit scarce resources for the benefit of one individual.

[16] What can be done about these matters? The answer is obvious. Our industrial laws must be rationalised as must the number of Courts and tribunals exercising jurisdiction. By rationalization I do not mean to suggest that there should only be one tribunal and one statute. But so far as possible overlap between jurisdictions should be avoided. One way of reducing overlap is by drawing boundaries more clearly. Another way is to give each court or tribunal exclusive jurisdiction in the matters with which it is concerned. Only where overlap cannot be avoided should consideration be given to merging jurisdictions.

[17] Some progress has been made, however, and its significance should not be undervalued. By a cooperative approach between the Federal and state industrial commissions much has been done in recent years to reduce inconsistency of treatment. This has been achieved through increased consultation, harmonization of registry services and dual appointments. For example, members of a number of state tribunals who are also members of the federal tribunal now sit regularly in the federal jurisdiction and exercise federal powers. There are also a number of respects in which the differences in the legislative frameworks have been reduced. While much remains to be done, for example there are still significant differences in the nature of the remedies available in relation to termination of employment, there may be some useful indications in what has occurred so far for the rationalization of industrial relations laws and processes more generally.

[18] The means by which rationalisation is to be achieved are far from obvious. Change is difficult because of the competing interests - ideological, commercial and political - which always lie just beneath the surface of industrial relations only to erupt into the open at the first mention of reform. It is inevitable that in raising this issue I shall be accused of pursuing a self-interested agenda of one kind or another. But whatever else may be said the problems are real and although we can never remove them entirely we should strive to find ways of alleviating them. In this year of the Centenary of Federation it is appropriate that these important issues are raised for consideration and debate. As lawyers specializing in industrial law you are well placed to carry the debate forward, being experienced in the practice of the various jurisdictions, articulate and aware of the pitfalls that lie in the path of those who suggest reform of our industrial laws. I challenge you all to take up that debate.