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Industrial relations law: call off the funeral. [Speech to launch the Labour Law Association, Melbourne, 18 July 2001]
Speeches INDUSTRIAL RELATIONS LAW - CALL OFF THE FUNERAL
The Hon Justice Michael Kirby AC CMG*
It is exactly a hundred years since the uniquely Australian system of conciliation and arbitration was proposed to the Federal Parliament sitting in Melbourne. The Bill was not passed until 1904.  The idea remains one of the few lasting innovations to come out of a royal commission.  So disruptive were the Australia-wide strikes of the 1890s that a commission was established to come up with a solution. Thus was born one of Australia's great social experiments. The idea found its way into the new federal Constitution.  Before very long, it saw the creation of a unique national court to bring a "new province" of law and justice to the relations between Australia's employers and employees.
White Australia, tariff protection and conciliation and arbitration were the three pillars of Australian social policy for most of the first century of federation.  Now White Australia is dead. Tariff protection is on its last legs. What of conciliation and arbitration?
Since the High Court was first set up in 1903  and the Arbitration Court in 1904  there has been a close connection between the two bodies. From the start there was an overlap in their personnel. Of the forty three justices of the High Court, eight have at one time served on the national industrial tribunal: Justices O'Connor, Higgins, Isaacs, Powers, Rich, Starke, Gaudron and me. Justice Gaudron is on record as saying that the old Arbitration Commission was much more fun than the High Court. For once, I will not dissent. She was assigned the meat industry and spent much of her time trudging around the abattoirs of the nation settling strikes. My assignment was to the maritime industry which, in those days, was comparatively easier to handle. Higgins, the father of Australia's arbitration system, certainly regarded the industrial body as more important than the High Court.  For ordinary Australians, it usually had more relevance.
In 1907 the Arbitration Court established the basic wage of seven shillings a day for Australian workers. In 1922 it introduced automatic costs of living adjustments to protect workers and their families against inflation.  Between 1920 and 1930 it gradually introduced the 44 hour week into federal awards. By 1947 the working week was reduced to 40 hours. In 1965, equal pay was awarded to Aboriginal stockmen, more than a quarter century before the High Court's Mabo decision. In 1968, equal pay for women was first awarded federally.  In 1979 maternity leave was granted. It is a remarkable history of social change brought about through a national judicial institution. No other country attempted anything quite like our system.  It was distinctively Australian. It achieved equity through labour law.
Over most of the century, the High Court supported the innovations of the Arbitration body. It upheld the log of claims procedure.  It expanded the notions of what could constitute an industrial dispute. It narrowed the exclusive prerogatives of employers.  Occasionally, it slapped its rival upstart down, as when, in 1956 it declared the Arbitration Court an unconstitutional mixture of judicial and non-judicial functions. This led to the divided Commonwealth Industrial Court and the Arbitration Commission. These have now emerged as the Federal Court and the Australian Industrial Relations Commission. The latter maintains its tradition of innovation. For example, in May 2001 it expanded parental leave to apply to casual employees.  But gone are the days of the National Wage decisions that, up to the 1980s, affected just about everybody's wages. In fact, some observers have suggested that the network of industrial relations law, that once ruled the Australian economy from Melbourne, is dead and the Commission that was its vehicle is now sidelined as a "bit
player" in today's system.
There is some evidence to support this assessment. The Australian arbitration system worked through worker unions and employer organisations. The proportion of Australian employees who are members of unions has been steadily falling. In 1996 it was 31%. Last year it was only 25% and still dropping. In part, this change has been reinforced by the moves of successive federal governments to alter the focus of industrial law from industry-wide awards to workplace agreements.
The Commission was undoubtedly damaged in the 1980s by the Staples affair  and the departure by the Hawke Government from the convention of appointing successive members of the national tribunal from those with significant professional associations with unions, employers' organisations and the public service. The dropping of judicial titles also did not help the status of the
What does the future hold? It seems unlikely that there will be a return to the glory days. But those who are waiting for the funeral should not hold their breath. The use of national and State arbitral bodies may not always have been economically efficient. But it is part of Australia's history and culture - and it played a key role in building the egalitarian features of our society that mark us off from many other countries. Economics is not everything. Looking after those who need a safety net is also part of Australia's ethos. 
Moreover, the national system had some big successes in the past century. It did help to avoid nation-wide strikes. It provided a rapid response to bring disputing parties around the table. For these reasons Australia's strikes have tended to involve short term, localised disputes, often susceptible to conciliation. And the provision for conciliation and arbitration is in the Constitution  and unlikely to disappear in the near future. 
The suggestion that the common law of contract and trespass can fully take the place of the national tribunal system is unpersuasive. According to experts, the resort to ordinary courts in actions against or by workers or trade unions has rarely proved useful in the urgent dynamics of industrial relations. A fire fighter is sometimes needed.  The ordinary courts are not well equipped to fulfil that role.
The big challenge in the future is likely to come from the growing moves to render labour standards throughout the world the subject of international rules, through bodies such as the International Labour Organisation. In a sense, it is the counterpart, and balance, to the World Trade Organisation. It seems doubtful that, in the long run, Australia will be able to take one without the other. The Industrial Relations Commission is well placed to be an instrument that will assist our economy to translate changing international standards into Australian employment practices. Such standards are an increasing part of the global economy of which we ourselves are part.
So the work of industrial conciliation and arbitration in Australia will continue to change. Whatever happens, it will continue to require lawyers. In my view, lawyers can be generally proud of the contribution which labour law has made to the history of the Commonwealth in the first century of Federation. It is by law and legal instruments that we created a land of general industrial justice. In the years ahead the challenges will be different and global. The workplace has changed forever. Technology alone revolutionises the modern workplace. But it is much too early to write the obituaries of industrial relations tribunals in Australia. Call off the funeral.
* Justice of the High Court of Australia Between 1975ï¿½1983 Justice Kirby was a Deputy President of the Australian Conciliation and Arbitration Commission.
 Conciliation and Arbitration Act 1904 (Cth).
 R Mitchell "State Systems of Conciliation and Arbitration: The Legal Origins of the Australian Model" in S Macintyre and R Mitchell (eds.) Foundations of Arbitration (1989), 74.
 B Creighton, "One hundred years of the conciliation and arbitration power: a province lost?" (2000) 24 Melbourne University Law Review 839 at 843 (hereafter 'Creighton').
 Constitution, s 51(xxxv).
 H B Higgins "A new Province for Law and Order" (1915) 29 Harvard Law Review 13.
 Creighton, 839, 864..
 The High Court is established by the Constitution, s 71. It was brought into operation by the Judiciary Act 1903 (Cth): J M Bennett, Keystone of the Federal Arch (1980), 21-18.
 The Commonwealth Court of Conciliation and Arbitration created by the Conciliation and Arbitration Act 1904 (Cth). See discussion Waterside Workers' Federation of Australia v Alexander (1918) 23 CLR 434 and The Queen v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR
 Creighton, 840; cf S Dowd, cf "Henry Bournes Higgins - An Antagonist to Federation?" Law Society Bulletin (SA) June 2001, 32.
 Ex parte H.V Mckay (1907) 2 CAR 1. The issue was whether wages paid to a worker were "fair and reasonable" within the Excise Tariff Act 1906 (Cth). See Creighton, 846 cf The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (1967) 118 CLR 219.
 Cf The Queen v Kelly; Ex parte Australian Railways Union (1953) 89 CLR 461.
 See Australian Timber Workers' Union v John Sharp & Sons Ltd (1920)14 CAR 811; Master Builders' Metal and Allied Trades Federation v AMIEU (1933) 32 CAR 238 at 247-248. The original standard had been 48 hours per week: Australian Builders' Labourers' Federation v Archer (1913) 7 CAR 228; Amalgamated Engineering Union v J Alderdice & Co Pty Ltd (1927) 24 CAR 755.
 Standard Hours Inquiry (1947) 59 CAR 581.
 Cattle Station Industry (NT) Award (1966) CAR 651; Pastoral Industry Award (1967) 121 CAR 454 at 457-458; Australian Workers' Union v Director, Department of Aboriginal and Islander Advancement 1979 A.I.LR paragraph 250.
 Mabo v Queensland [No 2] (1992) 175 CLR 1.
 First Equal Pay Case (1969) 127 CAR 1142; reformulated Equal Pay Case (1972) 147 CAR 172 noted (1973) 49 ALJ 112.
 Federal Metal Workers' Union v ACT Employers' Federation 1979 AILR paragraph 88; 1979 AILR paragraph 199.
 Although there were, as Breen Creighton notes, similarities in New Zealand and Nigeria, Creighton, 843. Some aspects of the Australian system were later copied in South Africa and other parts of Southern Africa.
 The history is told in Attorney-General (Queensland) v Riordan (1977) 192 CLR 1 at 39-46.
 Federal Clothing Trades of the Commonwealth of Australia v Archer (1919) 27 CLR 207; The Queen v Hamilton Knight; Ex parte CSOA (1952) 86 CLR 283; The Queen v Portus; Ex parte Transport Workers' Union (1977) 141 CLR 1.
 eg The Queen v Hamilton Knight; Ex parte CSOA (1952) 86 CLR 283.
 The Queen v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254.
 Conciliation and Arbitration (Amendment) Act 1956 (Cth).
 Federal Court of Australia Act 1976 (Cth), s 5.
 Industrial Relations Act 1988 (Cth) s 8(1) now Workplace Relations Act 1996 (Cth), s 8(1).
 Parental Leave Test Case Standard noted CCH Australian Industrial Law (June 2001) Newsletter 6/2001, 1, 16.
 M Steketee "Still the Independent Umpire" The Age 4 June 2001, 11.
 H B Higgins (1915) 29 Harvard Law Review13 at 23.
 B Ellem "Trade Unionism in 2000" (2001) 43 The Journal of Industrial Relations 196 at 198.
 Amendments to the Industrial Relations Act 1988 (Cth) in 1993 introduced "enterprise flexibility agreements (ss 170NC-170Q G). See Creighton 849. Australian Workplace Agreements were introduced by the Workplace Relations Act 1996 (Cth), Part VID. But see Creighton, 850.
 M D Kirby, "The Removal of Justice Staples and the Silent Forces of Industrial Relations" (1989) The Journal of Workplace Relations 334; M D Kirby "Judicial Independence in Australia reaches a Moment of Truth" (1990) 13 University of New South Wales Law Journal 187; M D Kirby "The Removal of Justice Staples - Contrived Nonsense or Matter of Principle? (1990) 6 Australia Bar Review 1.
 Previously provided by the Conciliation and Arbitration Act 1904 (Cth) s 7(5), following the Boilermakers Case decision in 1956. ("the same rank, designation, status and precedence of a Judge of the Court"). See now Workplace Relations Act 1966 (Cth), s 9(2) ("the same rank, status and precedence as a Judge of the Court").
 Creighton, 859 emphasises the importance of the duty to act in the public interest, reflected in the Industrial Relations Act 1988 (Cth), s 3(c).
 J Riley, "Industrial Legislation in 2000" (2001) 43 The Journal of Industrial Relations 148 at 151 ("Awards have been relegated to the status of 'safety nets' only").
 Creighton, 853, 864.
 Creighton, 855, 863; B Ellen, "Trade unionism in 2000" (2001) 43 The Journal of Industrial Relations 196 at 207 ff.
 Constitution, s 51(xxxv).
 Breen Creighton expressed the view that the introduction of changes in the Workplace Relations Act will emphasise the Commission's role of conciliation as a support mechanism for collective bargaining, which, he suggests, is "the role envisages by the orginal framers of the system": Creighton, 850. He also points out that several attempts to amend the conciliation and arbitration power by constitutional referendum have failed: ibid 843.
 J Niland, cited Creighton, 856. See Nathan J (Supreme Court of Victoria) quoted B Ellem "Trade Unionism in 2000", (2001) 43 The Journal of Industrial Relations 196 at 203; P Sheldon and L Thornthwaite "Employer Matters in 2000" (2001) 43 The Journal of Industrial Relations 218.
 The jurisdiction of the Commission may still be invoked including by notification of the existence of an alleged industrial dispute under s 99 of the Industrial Relations Act 1996 (Cth). This enlivens particularly the powers of conciliation under the succeeding sections (ss 100-103). As well the Commission has powers under s 127 of the Act to make orders to stop or prevent industrial action. Such powers are regularly invoked and have the advantage of bringing parties together who might otherwise pursue protracted strike or lock-out action with consequent disruption and loss.
 cf Creighton, 856.