Government Agency entry Commonwealth Court of Conciliation & Arbitration (1904 - 1956)

Summary

The first federal tribunal to have jurisdiction over industrial matters was the Commonwealth Court of Conciliation and Arbitration. Established under the Conciliation and Arbitration Act 1904, the Court had both arbitral and judicial powers. This meant that it could make an award specifying wages and conditions of employment in settlement of an interstate dispute and it could interpret and enforce the award, if necessary imposing penalties on any party to the award who did not comply with its provisions. The Act also provided for the registration of organisations of employers and employees.

The federal system had a slow beginning as the Court made only six awards in its first
five years. In 1910 Justice Higgins, the President of the Court at the time, noted that the
approach to the Court was through a "bog of technicalities". Justice Higgins is perhaps best
remembered as the author of the famous Harvester judgment in 1908 which established the concept of the basic or foundational wage, a component of federal award wages for 60 years. By the 1920s, the federal tribunal had increased its influence relative to the influence of State tribunals.

The Court was completely reconstituted in 1926 to comprise a Chief Judge and other judges and the legislation then contained explicit reference to the basic wage and provision that cases relating to it, together with those concerning hours of work, be heard by a multi-member or Full Bench of the Court; provision for the Commonwealth Attorney-General to intervene "in the public interest" in basic wage and hours cases - this facilitated the Federal Government putting submissions to the Court; and provision for the appointment of Conciliation Commissioners to assist parties to reach agreements - at first only one was appointed to a term ending in 1934. By 1944 ten had been appointed.

The Conciliation and Arbitration Act 1904 was further amended in 1947 to enhance the role
of Conciliation Commissioners, and to separate the roles of the Court and the commissioners. The Court was confined to judicial functions (interpretation and enforcement) and arbitration in respect of four specified matters, namely basic wage, minimum female wage, hours of work and paid annual leave. All other matters were left for Conciliation Commissioners. This separation led to concern about consistency of approach, and amendments to the Act in 1952 sought to enhance co-ordination between judges and commissioners.

In 1956 substantial amendments were made to the Conciliation and Arbitration Act which affected a seperation of the judicial and arbitrative functions of the Court. In effect, it was deemed unconstitutional for the Arbitration Court to be vested with both arbitral and judicial powers because of the acceptance in the Constitution of the separation of legislative and judicial powers. Hence amendments were made providing for the establishment of a Commonwealth Industrial Court and a Conciliation and Arbitration Commission to overtake the dual role of the Court of Conciliation & Arbitration.

Related entries

Timeline

 1904 - 1956 Commonwealth Court of Conciliation & Arbitration
       1956 - 1973 Commonwealth Conciliation & Arbitration Commission
       1956 - 1977 Commonwealth Industrial Court
             1973 - 1988 Australian Conciliation & Arbitration Commission
             1977 - 1993 Industrial Division of the Federal Court
                   1988 - Australian Industrial Relations Commission
                   1993 - Industrial Relations Court of Australia