Protection And Industrial Arbitration And Conciliation example essay topic

In a time of social unrest and industrial action was becoming a common place. A few sort to rectify the problem. These liberal reformers included Charles Kingston, Alfred Deakin and Justice Higgins who were influential in bringing about the establishment of arbitration. This paper will discuss what these liberal reformers did to establish arbitration and why did they favour this type of form of industrial regulation. Also, what the response was of employers and unions to this type of industrial regulation.

Charles Kingston is considered the pioneer behind the arbitration. Seeing the need for a system that would end the industrial strikes he first attempt an industrial conciliation and arbitration legislation in 1894 as a means of preventing and settling industrial strife. However, the Act was not a success due to the trade unions not registering under this act. The next attempt was to include a clause in the constitution relating to arbitration powers, which was include in the constitution. His final attempt was the conciliation and arbitration bill of 1903.

However, disagreement broke out regarding the inclusion of British and foreign seamen who employed in the Australian coastal trades (Playford Vol 9). Finally, Charles Kingston resigned form ministry and the bill gained royal assent in December 1904, now known as the Conciliation and Arbitration Act of 1904. Alfred Deakin was a most harden supporter of 'New' protection. Described by Alfred Deakin himself in Gollan as: "The 'Old' protection contented itself with making good wages possible. The 'New' protection seeks to make them actual. It aims at the manufacturer that degree of exemption from unfair outside competition, which enable him to pay fair and reasonable wages without impairing the maintenance and extension of his industry, or its capacity to supply the local market.

It does not stop. Having put the manufacturers in a position to pay good wages, it goes to assure the public that he does pay them". (1960 p 165). Deakin used this 'New' protection to introduce a series of protective legislation including arbitration. Collaborating with Charles Kingston to introduce the Conciliation and Arbitration Bill. Justice Higgins is considered the father of arbitration.

As a Victorian radical, he with Charles Kingston were responsible for the clause relation to the arbitration powers of the Commonwealth. Gollan indicates that Higgins was firstly opposed to the first draft of the constitution saying, "the machinery of the Government should be mobile and free from complications and embarrassing restrictions" (1960 p 182). This relates to the first draft of the constitution that did not relate to the interests of the working class and ultimately all classes in the country. Higgins would then go on to sit on the Commonwealth Court of Conciliation and Arbitration. Liberalism in short is independence and the way these liberal reformers would obtain independence was through economic prosperity of Australia. For arbitration to be accepted steps had to be taken to guarantee economic prosperity.

Which at the time in the 1890's was becoming derailed by the great depression and associated strikes of the era. So in order to stop these disruptions Deakin drew up a new social contract. This new social contract is described by Robert Leach "labour would receive award wages; the state would be the great independent mediator in the best corporate (or guiding) state tradition; this would be backed by a class alliance between white capitalist business and white male labour; Australian business would receive protection" (2002 p 8). The new social contract did not end there. Free trade was a looming just overhead and big business needed protection. Deakin used this to his advantage and by offering protection he insured the success of arbitration.

Robert Leach illustrates, "Free trade would also mean the destruction of the local national capitalist by foreign capitalism. National capitalism, or locally based big business, needed the state to protect it and wanted labour demands to be reasonable (or, as some argued, to be slowed). Arbitration would do this. Protection and industrial arbitration and conciliation became the norms as local capital and right wing trade unions and labour politicians found a mutual interest in its existence" (2002 p 9) Not only was free trade protection used as a bargaining chip for the implementation of arbitration so was protection of white Australian labour.

The Deakin administration also implemented the Immigration Restriction Act 1901 which "had attempted to ensure that indentured labour would not be imported and that coloured labour would not seek to enter Australia to the detriment of employment conditions of white labour" (1986 p 591). Also, along with this Act was the Defence Act of 1903, which deterred illegal aliens from entering the county. The final nail in the coffin in gaining support for arbitration was the Customs Tariff Act of 1902 and the Excise Tariff Act of 1906. These Acts are put in place to protect local manufacturers from adverse overseas competition on the condition they paid fair and equitable wages. With all of these steps in place Deakin gained support for the arbitration in the constitution and later the Conciliation and Arbitration Act of 1904. Therefore, the Commonwealth Conciliation and Arbitration established the Commonwealth Court of Conciliation and Arbitration, this court exercised judicial and arbitral powers.

The court was able to create new rights and obligation for employers and employees by making awards which defined the terms and conditions of employment. (History of Regulation) This court could also intervene to interpret awards, order compliance of awards and intervene in any industrial action or dispute between employers, unions and employees that may affect the economic prosperity of the country. The employer response to arbitration is one that is closely related to those of the resulting strikes about the minimum wage before arbitration. The employers immediately lead to the formation of employer groups. Plowman illustrates this on page 588 " the fact that arbitration legislation provided for standing rather than ad hoc tribunals, together with the legal protection afforded unions under legislation, forced employers to form permanent associations, which fragmented once their raison d'etre had cease to exist. Employer and trade associations further responded by federating at the state levels to form employer federations" (1986).

This brought into being the Associated Chambers of manufacturing of Australia in 1903 and Central Council of Employers of Australia in 1904. These new employer organisations were anti-labour and used political lobbying and legal action to limit the impact of compulsory arbitration. Some of the methods used by employer association to disrupt compulsory arbitration are illustrated by Patmore pg 110 stating "Employers also frustrated the system by encouraging the registration of bogus unions, refusing to register their own associations and using legal representation to slow down procedures and increase union costs. They reduced the impact of awards by strategies such as subcontracting and installing new labour saving machinery. ' (1991). As in the rest of the country were employer association were weakening compulsory arbitration so was New South Wales.

"Employers tried to weaken the federal arbitration system through legal challenges. Before 1912 they were assisted a High Court dominated by judges who adopted a restrictive interpretation of Commonwealth powers. Between 1907 and 1912 employers successfully challenged the 'New Protection', the common rule and the registration of craft unions" (Patmore 1991, p 115). However this did not last long, with the death of a judge and the Fisher government replacing them with three pro-federal judges in 1913.

Employer's victories diminished and some decisions overturned. Employer association increased the pressure on the government by lobbing state premiers. "In 1915 the Council of Employers was further involved in lobbying sate premiers to ensure that they did not legislate to hand over industrial powers to the commonwealth as promised in that years premiers conference" (Plowman 1986 p 601). However, employer lost a lot of power with the introduction of section 21 AA of the Conciliation and Arbitration Act, which reduced employer's ability to challenge the court finding in any industrial dispute. With the introduction of compulsory arbitration in 1904, trade unionists took a novel response to it. The faith in a system of compulsory arbitration was weakened and unions decide they could have it both ways.

Laff er indicates, "For a particular trade union, consideration of the relative advantages of (a) compulsory arbitration, or (b) collective bargaining backed by the threat of strike" (1971 p 100). To use the arbitration system unions had to register to qualify for legal representation. However it started slow, Bennett depicts: "The period of 1905-1910 there were 61 successful applications for union registration as compared with 116 for the period 1911-1920. The limited impact of the system on Australia industrial relations was partly due to the successful campaign waged by employers against the legislation in the courts" (1994 p 22). After registration, they were eligible to acquire a legally enforceable award if the unions were involved in an industrial dispute that extends beyond the limits of the state. Even though there was strong support of the union for compulsory arbitration, New South Wales experience was one of delayed claims and curbed militancy.

This created dissatisfaction and some unions tried to alter the system In New South Wales the legislation created an outcry in the trade union movement. "Unionists criticised the extensive penal powers for enforcing awards and preventing strikes. They also condemned the legislation for undermining trade unionism, since it allowed associations of at least twenty workers, as well as registered industrial trade unions, to apply to the wages board". (Patmore 1991, p 111). The labour council of New South Wales reacted by advising all unions to ignore the Act and rely of industrial action to achieve 'fair and reasonable' wages. But it was not until the end of World War I the difference between the unions and arbitration became extremely evident.

The most serious was industrial action taken by the Seaman's Union in 1919, which resorted to direct action and repudiated arbitration. Bennett describes: "The strike lasted for over three months and involved 22,000 seamen. It was claimed that 35,000 workers of the Victorian manufacturing industry were thrown out of work, as were 3,000 coal miners in New South Wales, there were marches on parliament and report that shortages of goods had produced illness and chaos in the remote communities of western Australia and Queensland. The strike was finally settled by around table conference where the employers granted the bulk of the unions demands" (1994 p 23). The government by passed the arbitration system using the industrial Peace Act 1920 where power to set up special tribunal in single industrial disputes. These special tribunals have since been used to settles disputes with powerful groups of workers such as miners, seamen, wharf labourers and pilots.

In conclusion, the Liberal reformers such as Charles Kingston, Alfred Deakin and Justice Higgins used Conciliation and Arbitration to solve issues such as social unrest, industrial action and economic prosperity. They favoured this form of industrial regulation because it gave the decision making power of solving strikes, wage disputes and terms and conditions of employment in the hands of the government. However, the liberal reformer did not anticipate the response of the unions or employers. The introduction of arbitration led employers to form association that actively tried to bring down compulsory arbitration seeing it as unfair and protect unions more then employers. The introduction of arbitration was suppose to help the unions and was fairly well received.

However, unions will always strike if there are enough employees that see there is an injustice. On a whole Arbitration and Conciliation has had its ups and downs, but due to some smart thinking by Justice Higgins the act can be amended as the current economic climate dictates.

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