Labor Law: Arbitration and Conciliation Under Australian Fair Work

This essay delves into the historical and contemporary roles of arbitration and conciliation within the Australian labor law framework, with a specific focus on the functions and evolution of the Fair Work Commission (FWC). It traces the development of industrial relations and labor law in Australia, highl...Read More

Running head: LABOR LAW
LABOR LAW
Name of the student
Name of the university
Author note

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Answer to question 2
Arbitration and conciliation
The fair work commission in Australia is the novel institution that was established in
2009 to conduct series of functions under Fair work legislation. It has the autonomy to function
in manner that have more in common with two antecedents the Australian fair pay commission
and workplace authority. It had established to deal with the issues of approval of enterprise
arrangement, the settlement of claim concerning unfair dismissal, wage fixation, variation and
setting o\f minimum standards. The commission is placed at the core of regime of “fair work”
that is institute by labor government in 2009. The industrial relation and labor law in Australia
have developed in the profound manner over 20 years culminating the most contemporary
regime that is represented by Fair Work Act, 2009 in addition to that connected legislation. Like
that of predecessor the regime of fair work has evidenced controversial (Bray, Macneil &
Stewart, 2017).
Therefore especially it has stimulate criticism from employers and conservative
commentators and politicians, who view it as dangerous return to past because alleged aid for
collective bargaining and union. Immediately after enactment of legislation the chief executive
of Australian Mines and Metals Association moved much further (Ross 2016). The associates of
labor government have supported the regime of fair work stressing the central character of
collective bargaining as well as fundamental values of fairness and balance.

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The stability of the regulatory procedure that is embodied in the conventional arbitral
structure remained stable in Australia from the initiation of twentieth century till 1990s. Under
the arbitral structure the rule making was subjugated by delegated rules of uniquely Australian
form. The first characteristic of the customary arbitral model was very restricted legal regulation,
the commonwealth did not make enactment of laws which directly governed working conditions
and substantive wages other than during wartime or own workers (Isaac, 2018). The state
parliament had the ability to establish minimum standards and many of them did so on matters
like long service leave and annual holidays. Nevertheless the federal parliament was incapable to
pass this category of legislation for private organization due to the restriction that either
perceived to exist or exist under constitution (McCrystal, 2018). Section 51 sanctioned
Commonwealth to make legislation for the settlement or prevention of the industrial
disagreement that had crossed the boundaries of state. However the authority especially
necessitate this to be complied by the procedure engaging arbitration and conciliation, a criteria
that could not be fulfilled by direct legislative prescription of the conditions of employment.
Furthermore the state parliament apply conciliation and arbitration authority to establish a
structure of the labor regulations that was relied upon delegated regulation.
The Conciliation and Arbitration Act, 1904 and much later the Industrial Relation Act,
1988 conferred to the autonomous tribunal extensive authority to identify the procedural as well
as substantive principles of the relationship of employment. It also creates the procedural
regulation regarding the method the employers as well as the trade union communicate with each
other and also with the tribunal. Therefore compulsion is considered to exist at the core of the
structure in the manner that the tribunal could pressurized the employers and trade unions who

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were engaged in dispute to move before the tribunal and also impose settlement of that conflict
on the distinct parties (Peetz, 2016).
The impact of these laws was the tribunal primarily the court of arbitration and
conciliation, and then the conciliation and arbitration and finally Australian Industrial Relation
Commission enhancing dominated the federal structure. the impact of decision of tribunal which
were set forth in the legally enforceable documents are termed as awards become the core
regulatory mechanism identifying the working conditions and wages (Hamberger, 2015). The
robust roles of the delegated regulations but did not imply that other methods of regulations were
insignificant. The making of collective agreement for instance was common.
The awards content in many instances identified by the settlement between the employers
and trade union with tribunal simply conferring the statutory impact to arrangement arrived
voluntarily or after the process of conciliation between the distinct parties by tribunals impacting
in “consent awards” (Buchanan & Oliver, 2016). The process of collective bargaining also
positioned outside the arbitration and conciliation structure and the parties often did arrive the
private arrangements on the conditions and terms of employment, particularly where the trade
union was robust enough to acquire recognition from the employers in addition to that to secure
substantive concessions. . However thee exist significant limitations. The collective agreement
could be provided to tribunal and if accepted has the same legal effect as that of awards.
However to gain acceptance they have to fulfill the minimum criteria enumerated in awards they
could not replace but only supplement awards as well as their sections had therefore “over
award”.
The political and industrial consensus that had aided the arbitral structure for many
decades collapsed during late 1980s and early 1990s. Thus it lead the governmental body to

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pursue the substitute structure of labor law. in the context of agreement making and bargaining,
The Conciliation and Arbitration Act, 1904 provided for tribunal of arbitration and conciliation
to do all the matters proper and right for the purpose of reconciling the parties involved in labor
dispute in addition to that for persuading resolution of the industrial disagreement by the
arrangement. The act also enumerates for president of court to confirm written arrangement that
arrived in between the parties in the resolution of labor dispute (Forsyth et al., 2017). The
subsequent national industrial laws entail similar sections while conferring national industrial
organization a discretionary power of not certifying the arrangement it was made not in the
interest of public. Furthermore Part VI of the said act also enumerates for the institution to create
written industrial arrangement with another institution or individual for settlement and
prevention of labor dispute by the method of conciliation and arbitration for such arrangement to
be filed with office of Industrial Registrar as well as for court of arbitration and conciliation to
differ such arrangement to bring in conformity with common rule as declared by the court.
National Industrial Legislation enumerates identical sections until 1988.
In the case of Federated Engine Drivers and Firemen’s Association of Australia v.
Broken Hill Pty Co Ltd, the Australian High court decided that only industrial arrangement that
was contemplated by part VI of the said act were ones for the settlement and prevention of trade
dispute by arbitration and conciliation (Ragusa & Groves, 2015). As an impact an arrangement
that was made by the institution as well as by employer asserting to settle employment
conditions and wages was not the trade agreement within the scope of Part VI of Conciliation
and Arbitration Act, 1904 notwithstanding the arrangement labeling itself as such and giving for
it to be filed before Industrial Registrar.

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Primarily CAA act 1904 also forbidden anything in the nature of lockout or strike in
respect of trade dispute. From 1920 it further forbidden an organization or person who is bound
by award as well as authorized to its advantage from lockout or strike activity. On the repeal of
sections in 1930, bans provisions were often involved in awards forbidding bans on work under
award although the dominance of same decline from 1970. The Industrial Relations Reform Act,
1993 importantly the role of national industrial organization in regard of agreements and
bargaining. Furthermore it revised the Industrial Relations Act, 1988 to permit the institutions as
well as their members to take safeguarded trade action to advance or aid allegation in respect of
the certified arrangement (Creighton et al., 2016). AIRC orders and ban provisions to prevent or
stop trade actions by those who are engaged in Territory public sector employment or
Commonwealth were declared not to implement to safeguarded trade action. The AIRC was also
authorized to make order in respect of good faith bargaining in addition to that to advance the
effective act of negotiation and otherwise to provide agreement making. In certain situation the
revision facilitates for flexibility agreement of enterprise between the employees and the
constitutional corporation and along with that certified arrangement with the unions.
The power of AIRC to make orders regarding bargaining for an arrangement were
removed in addition to that its authority to make orders to prevent or stop unsafeguarded trade
action extended in 1996 by WR Act, 1996 impacting in advanced version of pre 1970 system of
ban provisions. The Work Choices Act, 2005 revised WR Act, 1996 to facilitate for AIRC with
the assent of the distinct parties to perform alternative dispute resolution procedure in connection
to the bargaining disagreement (Forsyth & Stewart, 2016).
As part of the procedure the AIRC was authorized at the request of the parties to make
several strategies concerning the substance in dispute, however was not authorized even if the

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parties approved to induce an individual to do an act, arbitrate or otherwise identify obligations
or rights, make an order or award, or appoint Board of reference. The revision further necessitate
a secret ballot to held to identify whether the suggested trade action to enhance allegations
regarding the proposed workplace arrangement had the assistance of significant employees as
well as facilitate for AIRC to create safeguarded trade action ballot order for such ballot. The
FW Act 2009 facilitates for FWA to make order concerning bargaining for an agreement of
enterprise involving severe breach declarations, bargaining orders, scope orders, majority
support determinations, single interest employer sanctions and low paid sanctions in addition to
that safeguarded trade actions ballot orders for sanctions of trade action inviting certain
immunities. It further facilitates for FWA to make order regarding the reduced payments to
workers for partial ban of work and to prevent or stop unsafeguarded trade action (Farbenblum &
Berg, 2017). Furthermore FW Act, 2009 facilitates for FWA to pact with bargaining
disagreement involving by consent arbitration stipulates the situation in which FWA must and
may terminate or suspend protected trade action in addition to that prolongs the situation in
which FWA can create a workstation determination. It also facilitates for FWA to agree and
differ enterprise arrangements subject to the detailed requirements being fulfilled.
In the context of Alternative dispute resolution of right based disagreements, the section
for the procedure of alternative dispute resolution of the right based disagreement by national
trade institution this is the settlement of such conflict other than by litigation was involved in
CAA Act, 1904. The court of arbitration and conciliation was authorized to involve a section in
award appointing Board of references to agree, deal or fix with the specified matters. In 1956,
the board of references were authorized to also identify any substance under the award as well as
particular provision was made for board of references to include or consist of a conciliator or

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commissioner. The provisions of board of references were involved in the successive national
trade laws until 2009, though the Work Choices Act amendments to WR Acts 1996 enumerates
that Board of References could not determine or settle a matter. Furthermore Termination,
change and redundancy case results of Australian conciliation and arbitration commission
impacted in many awards being varies to facilitate for rumination of the employment not to be
harsh, unreasonable, or unjust on the basis of disparity also to constitute unreasonable, unfair or
harsh termination in addition to that ACAC to resolve termination disagreement.
The CAA Act, 1904 delivered for the regulation of the trade organization as well as gave
President of court of arbitration and conciliation a supervisory authority regarding the decision of
Industrial Registrar involving the decision concerning institution. Therefore successive national
trade laws has also given for the regulation of the industrial organization by national trade
institution. An internal appeal method was involved in CAA Act, 1904 in 1930. That Act
provides an appeal to lie with court of conciliation and arbitration comprising of chief judge and
not less than two judges against the section in any award of conciliation committee hampering
hours, wages or employment conditions probable to affect the interest and welfare of public. The
successive national trade laws has generally facilitate for national trade organization to pact with
appeals against the decisions made by the sing member judge.
Therefore the functions of FWA shield broad series of employment matters that are akin
to however have emerged from those of one or more antecedents function that concerning recent
awards, enterprise agreements and bargaining, right based conflict, employment termination,
trade organization as well as appeals.

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References
Bray, M., Macneil, J., & Stewart, A. (2017). Cooperation at work: How tribunals can help
transform workplaces.
Buchanan, J., & Oliver, D. (2016). ‘Fair Work’and the Modernization of Australian Labour
Standards: A Case of Institutional Plasticity Entrenching Deepening Wage
Inequality. British Journal of Industrial Relations, 54(4), 790-814.
Creighton, B., Denvir, C., Johnstone, R., & McCrystal, S. (2016). Protected Action Ballots and
Protected Industrial Action Under the Fair Work Act: The Impact of Ballot Procedures on
Enterprise Bargaining Processes–Methodological Approach. Available at SSRN 2858757.
Farbenblum, B., & Berg, L. (2017). Migrant workers’ access to remedy for exploitation in
Australia: the role of the national Fair Work Ombudsman. Australian Journal of Human
Rights, 23(3), 310-331.

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Forsyth, A., & Stewart, A. (2016). Swimming Against the Tide: New Challenges for Unions
under Australian Labor Law. Comp. Lab. L. & Pol'y J., 38, 99.
Forsyth, A., Howe, J., Gahan, P., & Landau, I. (2017). Establishing the Right to Bargain
Collectively in Australia and the UK: Are Majority Support Determinations under
Australia’s Fair Work Act a More Effective Form of Union Recognition?. Industrial Law
Journal, 46(3), 335-365.
Hamberger, J. M. (2015). Workplace dispute resoltion procedures in Australia.
Isaac, J. (2018). Why are Australian wages lagging and what can be done about it?. Australian
Economic Review, 51(2), 175-190.
McCrystal, S. (2018). Termination of Enterprise Agreements under the'Fair Work Act 2009'(Cth)
and Final Offer Arbitration. Australian Journal of Labour Law, 31(2), 131-156.
Peetz, D. (2016). Industrial action, the right to strike, ballots and the Fair Work Act in
international context. Australian Journal of Labour Law, 29(2), 133-153.
Ragusa, A. T., & Groves, P. (2015). Stigmatisation and the social construction of bullying in
Australian administrative law: You can't make an Omelette without cracking an
egg. UNSWLJ, 38, 1507.
Ross AO, J. I. (2016). Future Directions: Enhancing the public value of the Fair Work
Commission. Journal of Industrial Relations, 58(3), 402-418.