ARBITRATION POWER: Constitution, s 51(xxxv)

The Parliament shall, subject to this constitution have power to make laws..with respect to: (xxxv) - Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. The aim of the power is to settle industrial disputes and supposedly prevent disputes, but not much time has been spent on it by the Cth. The purpose of the power was to enable the Cth to settle national industrial disputes efficiently, completely and justly, through a uniform system of collective bargaining. Conciliation and arbitration Involves introduction of third person to resolve the dispute by discussion. Must have the third party element for 51(35) and have to have an industrial dispute. The Boilermakers Case (1956) 94 CLR 254; (1957) 95 CLR 529 S51(35 case. All about separation of powers. HC and Privy Council said judicial power must be exercised by federal judicature and they can only exercise judicial power. Non-judicial power must be vested in non-judicial bodies. After Boilermakers, you had to separate judicial power from non-judicial and introduced Industrial Relations Commission and Court to exercise arbitration of nonjudicial power. Australian Railways Union v Victorian Railways Commissioners (1930) Defined Conciliation and Arbitration Conciliation voluntary involvement of parties Arbitrations refer to power of an independent and important umpire to determine disputes where conciliation or voluntary arguments have failed.

What is an Industrial Dispute?

Essence of a dispute is a disagreement. Cth does not have to act only in the event of a strike or have to show actual action before they can act on it. An Industrial Dispute is a dispute between employers and employees about the terms of employment and the conditions of work. However, a mere disagreement is insufficient. It must be a dispute that arises out of an industrial relationship. Re Coldham: ex parte Australian Social Welfare Union (CYSS)(1983) 153 CLR 297 FACTS: Members of the Australian Social Welfare Union served a log of claims on their employers relating to the pay conditions of the CYSS project officers and sought an award settling their claims in the Cth Con & Arb.Commission. The HC said that the phrase should be given its popular meaning. the popular meaning of the expression no doubt extends more widely to embrase disputes between parties other than employer and employee such as demarcation disputes, but just how widely it may extend is not a matter of present concern.

Would man in the street see it as an industrial dispute? Court said yes as it was the heart of employment relationship and work they are performing were in industrial sector. Mustnt confine industrial dispute to a dispute occurring in a conductive industry. Not in just one type of work ie manual. However, admin services of the states are outside s51(35) scope due to Melbourne Corp principle. The Expression is industrial disputes not disputes in industry. Federated State School Teachers Association of Australia v Victoria (1929) State School Teachers Case HC said that work of school teachers in the State system formed no part of federal industrial system. Not capable of being involved in an industrial dispute. There are two types of disputes 1) relationship between parties is not industrial 2) The subject of the dispute is not industrial matter. Education bears no resemblance to ordinary trade, business or industry no production/distribution of wealth or co-operation of capital labour. Re State Public Services Federation: ex parte A-G (WA) (1993) 178 CLR 249 Comments that Cth industrial system cant deal with all public servants. A claim will not be genuine if its fanciful. Court held that it was just a bare claim for increased wages and conditions. Such a claim cant gibe rise to an industrial dispute because it w as based on an incorrect assumption that the commission had general regulatory power rather than specific power to conciliation and arbitration disputes.

Industrial disputes; its identification and subject matter

Not all topics are proper topics of industrial disputes. Ie. Politics and religion are outside and you cant characterise them as an industrial dispute. Jumbunna Coal Mine v Victorian Coal Miners Association (1908) 6 CLR 309 The initial broad approach to the meaning of industrial disputes was not just manufacturing. Court held that it was incidental to allow Cth to set up register of federal Unions. R v Kelly: ex parte Victoria (1950) 81 CLR 64 FACTS: an award providing for the opening and closing hours of butcher shops. The Con & Arb.Act 1904 provided that a commisionner may declare a term of an awad to be a common rule of an industry to prevent further disputes. The Meat and Allied Trade Federation then applied for and obtained an award for common rule. Cth said s51(35) didnt allow for Commissioner to make common rule.

HC said the issue of opening hours was not a matter relating to the relations of employers and employees and so was not an industrial mater within s51(35).to make a common rule is to go outside the scope of conciliation and arbitration and to assume a function of general industrial legislation Matter must relate directly to relations between parties. a matter does not become an industrial matter or the subject of an industrial dispute simply because it is a matter with respect to which persons who are employers and employees are disputing Re Porters: ex parte ANZ Banking Corp narrow view Industrial dispute was claim by union to ask employer (bank) to deduct union fees from pay packets and pay to the union. HC held that this wasnt an industrial matter that directly related as it was between employee and union not employee and employer. OLD VIEW. Re Cram: ex parte New South Wales Colliery Proprietors' Association (Crams Case) (1987) 163 CLR 117 Industrial Dispute with 2 aspects 1) one was manning hours at mine, 2) was method of recruitment of labour. Question of whether this was industrial matter. Looking at statute, said it has to be employer/employee. HC said when you view manning level properly, it does impact on work to be done by employees because it effects volume of work to be done and conditions they are to be performed. Same thing for recruitment of labour Court rejected narrow view and said you are looking for something that directly impacts (Kelly) or indirectly BUT conclusion in Kellys case are correct. DONT OVER READ CRAMMES CASE!!! Does Employer have general interest? Does Employee have general interest? Federated Clerks Union (Australia) v Victorian Employers Federation (1984) A matter doesnt become an industrial matter or subject of an industrial dispute simply because it is a matter with respect to which persons who are employers and employees are disputing. A demand by employees of a management kind is not an industrial dispute.

Safety Issues
Generally, safety issues are not seen as condition of employment. Re Alcan Aust Ltd: ex parte FIMEE (1994) 181 CLR 96 Regarding union fees. Court said deduction of union fees have always been a topic of industrial dispute and has only be excluded because of narrow definition court uses.

The Dispute has to be bona fide

The dispute must be real and genuine.

Caledonian Collieries Ltd v Australasian Coal and Shale Employees Federation (No. 1) (1930) 42 CLR 527 Union sent telegrams to miners in QLD and VIC to go on sympathy strike shows other parties arent bona fide. The miners in QLD and VIC were satisfied with their employment so they werent in an industrial dispute. IT HAS BE A GENUINE DISPUTE! R v Ludeke: ex parte Queensland Electricity Commission (1985) 159 CLR 178 Workers went on a sympathy strike in WA for QLD. Union served log of claims with outrageous claims. Argument that claims didnt constitute a bona fide industrial dispute extending beyond one State within the meaning of s51(35). HC held the claims werent a sham or mere device to give the Commission jurisdiction to settle intrastate disputes but were genuinely advance by union for purpose of regulating terms and conditions of employment. Fact that claims were excessive didnt stop them from being bona fide. What was asked for was wanted. Must be bona fide in the sense that they are being genuinely advanced. Re Australian Education Union: ex parte Victoria (State Public Servants) (1995) 184 CLR 188 The fact that the Victorias jurisdiction and activities were limited to its own boundaries did not prevent the disputes being part of a wider interstate dispute.

Extending beyond the limits of one State

The industrial dispute must extend beyond the limits of one state. An industrial dispute cant extend beyond the limits of any one state unless in each of two or more states at one time the disagreement exists between people or groups who stand in some industrial relationship. The Builders Labourers Case (1914) 18 CLR 224 The employees and employers must be in more than one state.

Parties to a Dispute
Technical rules is only parties to a dispute are bound by an award. Australian Boot Trade Employees Federation v Whybrow (1910) 11 CLR 311 The conciliation and arbitration power is limited to authorising the Cth to make an award binding the specific parties to a particular dispute. S51(35) says power can only be used in conciliation and arbitration. There are two distinct points. 1) since conciliation and arbitration is not a legal function it must follow that a conciliation or arbitration court cant change the law, but must obey it. 2) Process of arbitration must retain the essential characters of its private form.

Parties to arbitration includes agreement by both parties to be bound by the decisions. Burwood Cinema v Australian Theatrical and Amusement Employees Association (1925) 35 CLR 528 An industrial relationship and not a contractual relationship is all that is necessary to constitute an industrial dispute. S51(35) would support awards binding by employers who employed non-union employees. Metal Trades Employers Association v Amalgamated Engineering Union (1935) 54 CLR 387 The court had jurisdiction to make an award binding all employers served with the log of claims including those who only employed non-union labour.

Need to be a common purpose across State Boundaries.

The industrial dispute will not genuinely extend beyond the limits of any one state where employees in different states are not united in their demands. Caledonian Collieries. Is an action of workers in Qld and NSW sufficient to create an industrial dispute extending beyond the limits of any one state = NO

Parties capable of being bound by an award

The award cant exceed ambit of the dispute. Has to be appropriate resolution to the issues.

A dispute regarding super entitlements can be an industrial dispute.

Re: Manufacturing Grocers Employees Federation of Australia 1986) It must be directly related not just consequential.

Limitations
Melb Cop has had vexed history in s51(35). Continual problem with State public servants. Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 Definite Judgement re: public servants. You cant have a federal system dealing with State without infringing.

Incidental Scope
News Limited Implied freedom of limitation.

Paper Disputes (log of claims)

If parties to a dispute in an industry are a registered organisation then an available award made binding on the employees union on the employers organisation is effectively binding on the whole industry.