16 The section was amended by a referendum approving s.2 of the Constitution Alteration (Retirement of Judges) Act 1977, which changed the tenure to "a term expiring upon [the Justices] attaining the age of seventy years".
1^ The case is Australian Railways Union v. Victorian Railways Commissioners and Others (1930) 44 CLR 319.
C ourt^ was created. The importance of the permanency of this tribunal in Australia was dramatised in the 1920s in the confrontation between Higgins and the Hughes' Government, as outlined below.
The latter part of World War 1 was dominated by a climate of industrial unrest in Australia. The Hughes' Government^, "was frustrated by the failure of Higgins and Powers [President and Deputy President of the Court] to secure quick settlements of damaging strikes" (Hancock, 1979: 17). In response, the Government appointed ad hoc
tribunals and later institutionalised them by getting through the Parliament an enabling legislation - the Industrial Peace Act 1920. This Act empowered the Government to appoint special tribunals, constituted in the manner of wages boards, whose awards would override those of the Arbitration Court.
Higgins was infuriated by this manoeuvre and showed it in a statement to the Court on September 25, 1920, during which he announced his resignation. Among other things, he said:
By the Industrial Peace Act the Prime Minister (unwittingly, I think) undermines the influence and usefulness of the Court ... [special tribunals] must be merely opportunist, seeking to get the work of the particular industry carried on at all costs, even the cost of concessions to unjust demands, and of encouraging similar demands from other quarters. On the other hand, a permanent Court of a judicial character tends to reduce conditions to system, to standardize them, to prevent irritating contrast ... The objectives of the permanent Court and of the temporary tribunal are, in truth, quite different ... A tribunal of reason cannot do its work side by side with executive tribunals of panic (Higgins, 1922: 172-173)20.
Despite this crisis in the 1920s, permanent public tribunals have remained the dominant institutional machinery in the Australian law. As of 1988, there were 18 of such tribunals in the Commonwealth jurisdiction (see Brooks, 1988: 28).
This was renamed "the Industrial Arbitration Board" by the Industrial Relations Act 1971 and "Central Arbitration Committee" by the Employment Protection Act 1975.
19 The last seven years of Hughes' Prime Ministership, beginning from November 14, 1916, were on the platforms of the National Labor Party - a break-away party from the Australian Labor Party - and the National Party - a product of the merger between the Liberals and the National Labor Party in February
1917. He had begun on the platform of the Australian Labor Party on 27 October 1915 (see Brodie, 1988: 126-135).
20 For a good window into the background of the clash between Higgins and Hughes, see McQeen (1983: 154-162).
Equally significant is the point that this institution represents a "court" or "judicial" approach to the prevention and settlement of industrial disputes. For instance, although there is no statutory obligation on the institution to observe formal notions of precedence, its operators (e.g Higgins) have apparently adhered to the rule of taking cognizance of previously established principles in subsequent award-making. Hancock (1979: 16) attributes this to "the adoption, in the Commonwealth jurisdiction, of court- type arbitration rather than wages boards". Willis (1984: 4) also underlined this point when he remarked that despite the changes over the years "the tribunal of 1904 and the tribunal of 1983 are not really all that dissimilar in their respective roles and functions. There is still, in essence, a vcourt’ approach to the prevention and settlement of industrial disputes of an interstate character" (emphasis, mine).
In a working paper entitled "Australian Federal Labour Law: Legal Regulation and the Arbitral Model", Gardner, et. al. (1989) develop the argument that the Australian "arbitral tribunals do not conform to the ideal-type descriptions of courts". Further, in the context of this argument, they remark that "the mantle of court-like processes and judicial independence becomes less important as a description of aspects of arbitration and more important as a mechanism for bolstering the tribunal's claims to autonomy - claims which may be vital to effective dispute settling".
One main basis for their argument seems to be that the Australian tribunal system has incorporated "the bureaucratic administrative tradition in which the arbitrator adopts a more inquisitorial role formulating principles based on the public interest". This reflects the reference by Rawson (1980: 293) to the arbitration law as a "bureaucratically-oriented public law". The entire argument seems like a response to what Gardner et al might have perceived to be an attribution of traditional "judicialness" to the tribunals even though they did not demonstrate such attribution in their paper.
It is nonetheless pertinent to draw attention to the fact that the framers of the system were certainly not in doubt about the extra-ordinary character of the tribunal which they were putting in place. Let us witness the emphasis which Deakin put on the Court while presenting the Bill. He said: "... I now come to the general scheme of the Bill ... [I]n the forefront of the scheme of the Bill there is a Court - a Court in every sense of the name worthy of that title" (CPD, 1904 vol. XVIII: 767). He was quick to point out that this was "a Court which has not yet its parallel in this country, except in New South Wales, and which in the area of its jurisdiction has probably a parallel nowhere outside the Supreme Court of the United States, and one or two of the courts of great nations". How extra-ordinary? Here it is:
The Court is first a committee of conciliation and then a court of arbitration ... the Court is clothed with a power with which Judges are not endowed in our ordinary courts, except in very rare instances and to a very confined degree. Here we have connected judicial and administrative duties of the highest importance (CPD, ibid) (emphasis, mine).
It is clear from this presentation that, from inception, the Australian tribunal was conceptualised to embody judicial and administrative approaches. It began operation as such and later this gave rise to significant constitutional cases including R. v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254. These cases, in turn, led
to significant amendments, reshaping the character of the tribunal. For example, the
Boilermakers case resulted in the 1956 amendment in which the arbitral and judicial powers of the Court were located in two separate bodies: the former in the Commonwealth (later Australian) Conciliation and Arbitration Commission and the latter in the Commonwealth (later Australian) Industrial Court and then Federal Court. Whether this separation effectively put an end to these bodies adopting a judicio- administrative approach to dispute settlement is open to debate.
It can be argued, though, that the restructuring which followed the Boilermakers was a logical extension of what had been begun in 1947. In that year the 1904 Act was amended to restrict the Arbitration Court to purely legal matters (judicial functions) and
to specific disputes involving basic wage (now defined for the first time), minimum female wage, hours of work, and annual leave with pay. Simultaneously the role of the Conciliation Commissioners was enhanced. Outside the matters specified for the Court, the Commissioners could conciliate and arbitrate in all matters. In a later amendment in 1952 under the Menzies Government, parties could apply to the Chief Judge to have their disputes transferred from the Commissioners; and a limited right of appeal against the decisions of the Commissioners was also allowed. Clearly there were signs before 1956 that the jurisdictions of the Court could or should be put in two mutually exclusive bodies, except that the separation was not clear-cut.
The post-1956 changes have left the jurisdictional divide largely intact. The 1972 amendment was seen as significant in that it altered the qualifications for the appointment of Deputy-Presidents and also created two categories of Commissioners - Arbitration Commissioners and Conciliation Commissioners. This did not affect the separation of judicial and arbitral jurisdictions. Even the distinction between the Commissioners was soon abolished by the 1973 amendment to the Act. In 1977 the Industrial Court became the Industrial Division of the Federal Court of Australia; and the 1988 Act changed the name of the Conciliation and Arbitration Commission to the Industrial Relations Commission.
In the Nigerian law, innovative as the introduction of compulsory arbitration through the 1968 Decree was claimed to be, the tribunal system which was originally set up to operate it was ad hoc - a carry-over from the system under the Trade Disputes (Arbitration and Inquiry) Ordinance 1941. Sections 9 and 11 of the 1968 Decree provided for the appointment a of Board of Inquiry and an Arbitration Tribunal by the Commissioner for Labour on an ad hoc ("appointed for the purpose") basis to inquire into, and settle, any trade dispute pursuant to the Decree. Once the Tribunal "gave an award in respect of the dispute it became functus officio" (Adeogun, 1972: 116).
Soon, however, a permanent public tribunal system was introduced under the amending law - Trade Disputes (Emergency Provisions)(Amendment)(No. 2) 1969. In s.3, a provision was made for the establishment of a standing tribunal "to be known as the Industrial Arbitration Tribunal", consisting of a Chairman, a Vice-Chairman and five others - all appointed by the Commissioner. The Decree came into force on 12 December, 1969, and three months later the tribunal was inaugurated on Monday, March 16, 1970. Apparently, this was a welcome development. In Adeogun's (1970: 125) words, "the establishment of a standing Industrial Arbitration Tribunal is very welcome and serious consideration should be given to the possibility of making it a permanent feature of our industrial relations system after the cessation of the current national emergency".
Evidently such consideration was indeed given, for the Trade Disputes Decree 1976
established the Industrial Arbitration Panel as a standing institution (or "permanent" body - see ILO, 1980: 157) in the place of the Industrial Arbitration Tribunal. This Panel was composed of a Chairman, a Vice-Chairman and not less than ten other members. Of these members, two each were to be nominated by the employers organisations and workers organisations, so appearing to the Minister of Labour as representing the interests of employers and workers respectively [s.7(2)]. The members of the Panel had three years tenure of office and could be eligible for re-appointment.
Quite significantly, the 1976 Decree also introduced the "court" approach into the Nigerian industrial relations system by providing for the establishment of the National Industrial Court, with a President and four other members (see s.14). The appointment of these members was to be done by the [National Assembly] acting, in the case of the President, after consultation with the Federal Judicial Service Commission [s.16(1)]T Under s. 17 the President was empowered to appoint, with discretion, assessors to assist the Court, consisting of two each nominated by employers' and workers' representatives. The members of the Court could hold office up to the time they attained the age of 62 years (see s. 19).
The establishment of this Court had been recommended by a number of sources long before it eventuated. For instance, the Morgan Commission^* in 1964 remarked that they "received submissions on the desirability of making provisions for the establishment of Industrial Courts in the country". Convinced by the evidence, they accordingly recommended "that legislative provisions should be made for the establishment of Industrial Courts to adjudicate upon industrial disputes" (Morgan,
1964: 44). In 1969, Adeogun recommended in a similar vein:
An industrial court should ... be set up to deal with such labour matters as termination of contracts of employment, interpretation of collective agreements and adjudication upon industrial disputes. The establishment of an industrial court, it is hoped, would obviate the present painful delays, not to talk of the expense, involved in litigation through the ordinary courts (Adeogun, 1969: 40).
The Adebo Commission^ is also said to have made a similar recommendation in 1971 (see Adeogun, 1976: 6 - footnote 11).
The Court actually commenced functioning in June 1978. Armed with original and appellate jurisdictions, the Court emerged "as the final arbiter in all trade disputes between the management and the trade unions" (Launching address, 1981: 8). These jurisdictions cover the settlement of trade disputes and the interpretation of collective agreements. Thus, there now exists in Nigeria, as in Australia, a separate judicial institution dealing solely with industrial or labour matters.
4.3.2 Institutions: Parties - individual/collective distinction
What is the status of collective bodies in the two compulsory arbitration systems? How does this affect the standing of individual disputant before the tribunals? These questions, inter alia, constitute a significant aspect of the debate about the position of "parties" within the structural frameworks of the Australian and Nigerian collective labour laws. They are examined in this sub-section.
21 This Commission was set up to hold an inquiry into the salaries and wages of junior employees, the