Published online by Cambridge University Press: 07 October 2011
In Australia, since 1904, there has existed Commonwealth legislation which empowers an independent industrial tribunal, currently the Australian Industrial Relations Commission, to prevent and settle interstate industrial disputes between employers and employees and unions. The disputes are settled primarily by conciliation, which is a type of mediation, and also by a decision imposed on the parties by the tribunal through the mechanism of arbitration in the form of an order or award.
The scope of the industrial tribunal's powers to settle disputes has been the subject of much litigation in the High Court spanning the almost one hundred years since the establishment of the system. What disputes can be settled by that tribunal? Is the particular dispute an ‘industrial dispute’, or is it, say, a political dispute which would be beyond the tribunal's power? Is the dispute truly interstate in nature, or is it a dispute in one State only? What sort of matters can the tribunal arbitrate on? These are some of the issues which have come before the High Court as the final arbiter of such jurisdictional legal questions. In the course of its ruling on such matters, the Court rules not only on the meaning of the provisions in the governing legislation (currently the Workplace Relations Act 1996 (Cth)), but also on the scope of the power in s. 51(xxxv) of the Constitution which is the authority for the Commonwealth Parliament's legislative capacity to make laws with respect to labour relations.