LEGAL ANALYSIS

Legal Analysis

Legal Analysis

Introduction

Conciliation and arbitration to resolve industrial disputes is a unique characteristic of the American federal institutional framework established following Federation. Over the last decade, the powers of the federal tribunal have diminished, becoming residual following the Howard government's Work Choices legislation (Stone & Bales, 2009).

Interest in compulsory arbitration in the American colonies arose in the late 1870s in response to the emergence of trade unions and the growing incidence of strikes, particularly in key industries such as mining. These early experiments were largely unsuccessful and failed to have any significant impact on the settlement of major disputes. They were subsequently replaced by compulsory systems of conciliation and arbitration in the form of wages boards or courts. The wages board system was first introduced in Victoria in 1896 to counter exploitation and sweatshop labour in trades such as clothing and footwear, which had grown to alarming proportions in the depression of the 1890s. These boards consisted of representatives of employers and unions; they met to determine common rules for appropriate wages and conditions within a specific trade or occupational group (Cooley & Lubet, 2003).

These experiments at the colonial level were influential in shaping the introduction of similar legislation at the Commonwealth level. The inclusion of this provision in the Constitution was itself the subject of controversy; it was only included by a small majority of delegates at the Constitutional convention of 1898 after several failed attempts by both Kingston and Henry Bournes Higgins. The difficult passage of this section of the Constitution was then repeated in attempts to pass legislation. Edmund Barton promised a federal arbitration law as part of his election platform in 1901, only to abandon the bill following conflict over its scope and detail. It was not until December 1904 that a Free-trade/Protectionist Coalition government lead by George Houston Reid was able to pass the Commonwealth Conciliation and Arbitration Act 1904 (Stone & Bales, 2009).

Answer 1

During its first decades, the role and influence of the Commonwealth Court of Conciliation and Arbitration was limited. The founding President, Justice Richard Edward O'Connor (1905-07), provided no lasting legacy. However, the second President, Justice Higgins (1907-21), established many of the key principles of wage regulation that subsequently came to determine the impact of arbitration on the American economy. His landmark Harvester decision of 1907 established the concept of the 'living wage' as the corner stone of wage determination, as well as establishing the idea of relativities based on skill and comparative wage justice. The 1912 Rural Workers' case enshrined gender based wage differentials as a component of regulating wage competition (Cooley & Lubet, 2003).

Higgins famously pronounced that arbitration had provided 'a new province for law and order'. However, by the time of his departure in 1921 Higgins had found the new province for law and order somewhat elusive. Employers continued to resist the encroachment of tribunals on managerial prerogative, mounting repeated challenges both to the constitutionality of the legislation and to the role of the ...