Commonwealth Court of Conciliation and Arbitration

The Commonwealth Court of Conciliation and Arbitration was an Australian court that operated from 1904 to 1956 with jurisdiction to hear and arbitrate interstate industrial disputes, and to make awards. It also had the judicial functions of interpreting and enforcing awards and hearing other criminal and civil cases relating to industrial relations law.

The Court was declared invalid by the High Court of Australia in the Boilermakers' case,[1] and was replaced by two bodies: the Commonwealth Conciliation and Arbitration Commission and the Commonwealth Industrial Court.

HistoryEdit

The Court was created in 1904 by the Commonwealth Conciliation and Arbitration Act 1904,[2] an Act of the Parliament of Australia. The Court was initially less important than the various State industrial conciliation commissions, which had jurisdiction over all disputes which occurred within their respective states. The Court's workload was so low that it made only six awards in the first five years of its existence.[3]

Amendments in 1926 reformed the Court. The changes included replacing the office of President with that of Chief Judge alongside other judges, and ensuring all cases involving the basic or living wage would be heard by a full bench of the Court. The changes also allowed for the appointment of Conciliation Commissioners, with a role similar to mediators. Further changes were made to the Court in 1947 to increase the role of the Commissioners, leaving the judges to conduct the judicial work, and a select few matters of arbitration including the basic wage and the minimum wage for women.[3]

In 1956, the High Court of Australia in the Boilermakers' case held that the Commonwealth Court of Conciliation and Arbitration, as a tribunal exercising the non-judicial power of arbitration, could not also exercise judicial power as a Chapter III Court under the Australian Constitution.[1] The decision has come to stand for the important doctrine of the separation of powers in Australia. The decision effectively rendered the Court defunct.

Following the decision, two new bodies were created to perform the function of the now-defunct Court. The Commonwealth Conciliation and Arbitration Commission was created in 1956 to carry out the non-judicial functions.[4] It was renamed the Australian Conciliation and Arbitration Commission in 1973,[5] the Australian Industrial Relations Commission in 1988,[6] Fair Work Australia in 2010,[7] and the Fair Work Commission in 2012.[8]

The Commonwealth Industrial Court was created to exercise the Court's judicial powers.[4] In 1973 the Industrial Court was renamed the Australian Industrial Court,[5] and in 1977 its functions were transferred to the new Federal Court of Australia.[9]

Notable decisionsEdit

One of the Court's early awards was the landmark Harvester case (Ex Parte H.V. McKay of 1907), delivered by Justice H.B. Higgins, which introduced the concept of the living wage into Australian industrial relations.[10] Within 25 years, the concept of a living wage had been extended to most of the Australian workforce, and influenced later decisions establishing certain types of paid leave, and equal pay for indigenous Australians and women.[11] During the Great Depression, the Court reduced wages by 10%.[10]

The Court also decided cases setting the standard working week in Australia. In 1904, the standard working week was 48 hours. In 1930, the Court reduced the working week to 44 hours. In 1947, the Court reduced the working week to 40 hours in a case that took two years to hear.[10][12]

List of presidents and judgesEdit

Position   Name Appointment
commenced
Appointment
ended
Term in office Comments Notes
President   Richard O'Connor 10 February 1905 13 September 1907 2 years, 215 days Judge of the High Court [13]
  H. B. Higgins 14 September 1907 29 June 1921 13 years, 288 days Judge of the High Court [14]
  Charles Powers 30 June 1921 25 June 1926 4 years, 360 days Judge of the High Court [15]
Chief Judge   George Dethridge 20 July 1926 29 December 1938 12 years, 162 days [16]
  George Beeby 15 March 1939 31 July 1941 2 years, 138 days [17]
  Harold Piper 1 August 1941 16 June 1947 5 years, 319 days [18]
  Edmund Drake-Brockman 17 June 1947 1 June 1949 1 year, 359 days [19]
  Sir Raymond Kelly 30 June 1949 25 July 1956 7 years, 25 days [20]
Deputy President   Charles Powers 10 October 1914 30 April 1920 5 years, 203 days Judge of the High Court [15]
  Sir John Quick 26 June 1922 25 March 1930 16 years, 10 days [21]
  Noel Webb 26 June 1922 12 February 1927 4 years, 231 days [22]
Judge   Lionel Lukin 20 July 1926 6 July 1938 11 years, 351 days [23]
  George Beeby 21 July 1926 31 July 1941 15 years, 10 days [17]
  Edmund Drake-Brockman 18 April 1927 1 June 1949 22 years, 44 days [19]
  Harold Piper 15 February 1938 16 June 1947 9 years, 121 days [18]
  Thomas O'Mara 15 March 1939 14 October 1946 7 years, 213 days [24]
  Sir Raymond Kelly 15 August 1941 25 July 1956 14 years, 345 days [20]
  Alfred Foster 12 October 1944 26 November 1962 [a] 18 years, 45 days Deputy President of the Commonwealth Conciliation and Arbitration Commission [25][26]
  Bernard Sugerman 15 April 1946 9 September 1947 1 year, 147 days Resigned to take up appointment with NSW Supreme Court [27]
  Sir Richard Kirby 26 August 1947 1973 [a] 25–26 years First President of the Commonwealth Conciliation and Arbitration Commission [29][25][30]
  Edward Dunphy 27 April 1949 15 August 1956 7 years, 110 days Appointed to the Commonwealth Industrial Court [31][25]
  Sydney Wright 14 December 1950 1970 [a] 19–20 years Deputy President of the Commonwealth Conciliation and Arbitration Commission [32]
  Malcolm McIntyre 4 July 1952 21 September 1953 1 year, 79 days [33][34]
  Sir Edward Morgan 4 August 1952 15 August 1956 4 years, 11 days Appointed to the Commonwealth Industrial Court [35][25]
  Richard Ashburner 1 February 1954 1963 [a] 8–9 years Deputy President of the Commonwealth Conciliation and Arbitration Commission [25]

NotesEdit

  1. ^ a b c d Appointed for life and so maintained appointment as a judge even though the Court ceased to sit after 1956. The Court was only abolished after the retirement of its last member, Sir Richard Kirby in 1973.[28]

ReferencesEdit

  1. ^ a b R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10, (1956) 94 CLR 254.
  2. ^ Commonwealth Conciliation and Arbitration Act 1904 (Cth).
  3. ^ a b "Commonwealth Court of Conciliation & Arbitration" (http). Australian Trade Union Archives. Retrieved 18 January 2006.
  4. ^ a b Conciliation and Arbitration Act 1956 (Cth).
  5. ^ a b Conciliation and Arbitration Act 1973 (Cth).
  6. ^ Industrial Relations Act 1988 (Cth).
  7. ^ Fair Work Act 2009 (Cth).
  8. ^ Fair Work Amendment Act 2012 (Cth).
  9. ^ Federal Court of Australia Act 1976 (Cth).
  10. ^ a b c "Centenary of Federation and the Court/Commission". Australian Industrial Relations Commission. Archived from the original (http) on 5 January 2006. Retrieved 18 January 2006.
  11. ^ Hamilton, R.S., ed. (2011). "Waltzing Matilda and the Sunshine Harvester Factory" (PDF). Fair Work Commission. ISBN 9780646548814. Retrieved 4 December 2018.
  12. ^ "70 years ago today, the 40-hour, five day working week began". The Sydney Morning Herald. 1 January 2018. Retrieved 4 December 2018.
  13. ^ Rutledge, M. "O'Connor, Richard Edward (Dick) (1851–1912)". Australian Dictionary of Biography. Melbourne University Press. ISSN 1833-7538 – via National Centre of Biography, Australian National University.
  14. ^ Rickard, J. "Higgins, Henry Bournes (1851–1929)". Australian Dictionary of Biography. Melbourne University Press. ISSN 1833-7538 – via National Centre of Biography, Australian National University.
  15. ^ a b "Appointment of Mr Justice Powers as a Deputy President" (PDF). Cth Gazette. 17 October 1914. p. 2358.
    Forster, C. "Powers, Sir Charles (1853–1939)". Australian Dictionary of Biography. Melbourne University Press. ISSN 1833-7538 – via National Centre of Biography, Australian National University.
  16. ^ Sharp, IG. "Dethridge, George James (1863–1938)". Australian Dictionary of Biography. Melbourne University Press. ISSN 1833-7538 – via National Centre of Biography, Australian National University.
  17. ^ a b Nairn, B. "Beeby, Sir George Stephenson (1869–1942)". Australian Dictionary of Biography. Melbourne University Press. ISSN 1833-7538 – via National Centre of Biography, Australian National University.
  18. ^ a b Selth, PA. "Piper, Harold Bayard (1894–1953)". Australian Dictionary of Biography. Melbourne University Press. ISSN 1833-7538 – via National Centre of Biography, Australian National University.
  19. ^ a b Sharp, IG. "Drake-Brockman, Edmund Alfred (1884–1949)". Australian Dictionary of Biography. Melbourne University Press. ISSN 1833-7538 – via National Centre of Biography, Australian National University.
    "Appointment Justice Drake-Brockman as Chief Judge" (PDF). Cth Gazette. 13 June 1947. p. 1607.
  20. ^ a b Dabscheck, B. "Kelly, Sir William Raymond (1898–1956)". Australian Dictionary of Biography. Melbourne University Press. ISSN 1833-7538 – via National Centre of Biography, Australian National University.
  21. ^ Maslunka, M. "Quick, Sir John (1852–1932)". Australian Dictionary of Biography. Melbourne University Press. ISSN 1833-7538 – via National Centre of Biography, Australian National University.
  22. ^ "Noel Augustin Webb" (PDF). State Library of SA.
  23. ^ Gill, JCH. "Lukin, Lionel Oscar (1868–1944) (1863–1938)". Australian Dictionary of Biography. Melbourne University Press. ISSN 1833-7538 – via National Centre of Biography, Australian National University.
  24. ^ "Mr Justice O'Mara dead". The Sydney Morning Herald. 14 October 1946. p. 4 – via National Library of Australia.
  25. ^ a b c d e "Appointments Industrial Court and Arbitration Commission" (PDF). Cth Gazette. 4 September 1956. pp. 2701A–2701D.
  26. ^ Larmour, C. "Foster, Alfred William (1886–1962)". Australian Dictionary of Biography. Melbourne University Press. ISSN 1833-7538 – via National Centre of Biography, Australian National University.
  27. ^ Forbes, MZ. "Sugerman, Sir Bernard (1904–1976)". Australian Dictionary of Biography. Melbourne University Press. ISSN 1833-7538 – via National Centre of Biography, Australian National University.
  28. ^ Conciliation and Arbitration Act (1973) (Cth) s39.
  29. ^ "Appointment Richard Kirby" (PDF). Cth Gazette. 11 September 1947. p. 2645.
  30. ^ (1973) 149 CAR v.
  31. ^ "Appointment Edward Dunphy" (PDF). Cth Gazette. 26 May 1949. p. 1517.
  32. ^ "Appointment Sydney Wright" (PDF). Cth Gazette. 21 December 1950. p. 3309.
  33. ^ "Appointment Malcolm McIntyre" (PDF). Cth Gazette. 7 August 1952. p. 3317.
  34. ^ "Death of Mr. Justice McIntyre". The Sydney Morning Herald. 22 September 1953. p. 1 – via National Library of Australia.
  35. ^ "Appointment Edward Morgan" (PDF). Cth Gazette. 21 August 1952. p. 3471.