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Book Review
| Greg Patmore (ed.), Laying the Foundations of Industrial Justice: the Presidents of the Industrial Relations Commission of NSW, 1902–1998, Federation Press, Annandale, NSW, 2003. pp. x + 309. $45.00 paper.
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| For the past hundred years state tribunals have played a central part in Australian industrial relations. Their establishment, operation, powers and procedures have figured largely in Federal and State politics and been repeatedly subjected to judicial review. Their decisions have shaped Australian living standards, determined the gender boundaries of paid employment, defined management prerogatives, encouraged particular forms of union activity and regulated the labour market. |
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How should the history of arbitration be written? A full account would call for research and analysis on an heroic scale. The published reports of the tribunals' decisions would need to be supplemented by the case transcripts, and behind them lie the voluminous records of unions and employers, not to mention the conferences and conciliation activities that have gone largely unreported. The political and legal dimensions open up further sources that are hardly less daunting. The determination of claims involving wages, working hours and conditions into legally enforceable awards drew on notions of need and entitlement; terms such as 'fair and reasonable' took on a popular resonance that would need to be traced in the Australian lexicon. |
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Arbitration has generated a substantial secondary literature. Most studies are restricted in compass, written by and for specialists in the various disciplines who are interested in the subject; some, especially those produced by non-Australian investigators) provide a broader appraisal but are usually contemporary in their concerns; and a smaller number of authors (including biographers such as John Rickard in his life of Henry Higgins and Blanche D'Alpuget's in her account of Richard Kirby) bring the past operation of the institution to life for lay readers. The desire to mark the centenary of arbitration in New South Wales and the Commonwealth with general histories presented a new challenge. One way of meeting the need would have been to persuade a specialist to undertake a broader and more systematic study, but the most obvious candidates are heavily engaged in academic duties that leave little room for this sort of project so that this approach would have required a prohibitively lengthy lead-time. A public historian could have been employed to complete the task more briskly, but that sort of commissioned history often suffers from a lack of familiarity with the subject. |
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When Joe Isaac and I attempted a centenary history of the Federal tribunal, we decided that the best way was thematic. We convened a group of historians, lawyers, economists, political scientists, management and industrial relations specialists to write chapters about the politics and law of arbitration, the role of unions and employers, the economic and social effects, the impact on women and indigenous workers, the way arbitration worked and the extent to which it managed industrial conflict. We tried to enliven these thematic chapters with vignettes of particular episodes and participants. The obvious problem with this approach was that each contributor had to cover a hundred years in chapters that ranged from less than 10 thousand to more than 20 thousand words, with an inevitable repetition of context and key episodes. A two-day workshop and subsequent editorial negotiation reduced some of the overlap but there remained a tension between the specialist nature of the chapters and the broader audience for whom the book was intended. We have been taken to task for these and other failures by Braham Dabscheck in a recent review in the Journal of Industrial Relations, who seems to assume that we were writing for his readers, and expected more of the leaden-footed model building that he practices. |
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Greg Patmore took a different approach to the centenary of the New South Wales tribunal. He organised this history chronologically and biographically with a series of chapters on the presidents, and enlisted a group of labour historians (supplemented by Andrew Frazer of the Law Faculty at Wollongong, who wrote a seminal doctoral thesis on the establishment of arbitration) to relate their careers. Patmore wrote one of the biographical essays and tied the collection together with an overview as well as an introduction and conclusion. The method captures well the background, methods, attitudes and vicissitudes of those who directed the work of the Court and the Commission. It allows for consideration of major cases, and offers striking insights into the adaptability of arbitration as it responded to legislative and judicial intervention. Labor and non-Labor governments repeatedly altered the duties of the tribunal, sometimes expanding its powers and sometimes overriding them. |
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The materials available for these biographical essays vary. From limited sources Andrew Moore reconstructs the way that the first president, H.E. Cohen (1902–05), conducted his novel jurisdiction. Andrew Frazer makes greater use of case reports to explain how C.G. Heydon (1905–18), his successor and a more conservative legalist, enunciated the concept of the living wage two years before Higgins (and as a leading Catholic layman Heydon was probably responsible for the introduction of the phrase 'frugal comfort', taken from the papal encyclical Rerum Novarum, to Australian wage determination) — though Heydon paid greater attention than his Commonwealth counterpart to the labour market. Subsequent presidents such as George Beeby and A.B. Piddington are better known, but I found the treatments of more recent ones particularly informative. Greg Patmore relates how the UAP premier Berteram Stevens appointed the Labor rat J.A. Browne (1932–42) in the expectation that he would reduce wages and conditions, and could do little when the president disappointed him because of his own insistence on the independence of the tribunal. Andrew Moore presents Stan Taylor (1942–66) as an enigmatic, even shady, Labor 'mate'; Andrew Frazer shows how Alexander Beattie (1966–81) sustained both the authority and utility of the Commission, while John Shields relates the difficult relationship of Bill Fisher (1981–88) with the interventionist Labor government. |
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The essays provide a helpful account of changing policy and procedures. The book's organisation is less well suited to chart the frequent changes in the structure, organisation and functions of the tribunal, and many of the underlying patterns remain largely implicit. The presiding officers of the New South Wales Court and Commission were far more likely than their Commonwealth counterparts to come from backgrounds sympathetic to the labour movement. This in turn reflects the greater political success of the Labor Party in State politics (and the fact that New South Wales drew its presidents from the District rather than the Supreme Court meant that they were less part of the legal establishment). As one would expect, the authors are most comfortable in treating the consequences of arbitration for workers and unions. Its implications for employers and the State's economy are not always apparent, so that the reader has no way of assessing the claim in the penultimate chapter that this was 'the nation's most efficient and respected arbitral body'. Yet the book should be judged by its purpose, which is to mark the centenary of a resilient institution. It does not purport to be comprehensive, but it provides an engaging overview. |
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| University of Melbourne |
STUART MACINTYRE | |
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