Still central: Change and continuity in Australia's major industrial tribunal

• Published date: 01 July 2023
• Author: Mark Bray,Johanna Macneil
• Date: 01 July 2023
• DOI: http://doi.org/10.1111/irj.12405

DOI: 10.1111/irj.12405

SPECIAL ISSUE ARTICLE

Still central: Change and continuity in

Australia's major industrial tribunal

Mark Bray

1,2

|Johanna Macneil

3

1

Graduate School of Business and Law,

RMIT University, Melbourne, Victoria,

Australia

2

Newcastle Business School, The

University of Newcastle, Callaghan,

New South Wales, Australia

3

School of Management, RMIT

University, Melbourne, Victoria,

Australia

Correspondence

Mark Bray, Newcastle Business School,

The University of Newcastle, NSW,

Australia.

Email: mark.bray@newcastle.edu.au

Abstract

Australia's major public dispute resolution agency has

changed substantially since the 1990s from a stand‐

alone tribunal administering a collectivist system of

compulsory conciliation and arbitration to an inte-

grated agency resolving both individual and collective

disputes as well as performing a broader regulatory

role. It remains central to Australian industrial

relations, reflecting its adaptability and the peculiarit-

ies of its political and industrial relations contexts.

1|INTRODUCTION

Our paper aims to describe and explain the changing structure and role of Australia's major

public dispute resolution agency (i.e., the federal industrial relations tribunal) since the early

1990s. Central to the analysis is a shift toward a new structure, which more effectively

integrates the tribunal with its supporting agency, and to a role that focuses more on the

resolution of individual, rather than collective, disputes. At the same time, however, there are

continuities with the past. In particular, the tribunal's role beyond dispute resolution continues,

especially by regulating the making of agreements (both individual and collective) and

determining individual employment rights through the Federal Minimum Wage and awards.

These continuities reflect a distinctively Australian model.

The explanation offered for these changes (and continuities) in the Australian tribunal can be

found in external and internal pressures. Particularly important is the impact of politics. This is both

because the structure and role of the tribunal flow from legislation created by the federal parliament,

and because of the tribunal's central position in a highly adversarial system of industrial relations. The

ongoing political contest over the tribunal reflects the policy preferences of Australia's major political

Ind. Relat. 2023;54:359–376. wileyonlinelibrary.com/journal/irj

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This is an open access article under the terms of the Creative Commons Attribution‐NonCommercial License, which permits use,

distribution and reproduction in any medium, provided the original work is properly cited and is not used for commercial purposes.

© 2023 The Authors. Industrial Relations Journal published by Brian Towers (BRITOW) and John Wiley & Sons Ltd.

parties, their respective sectional supporters in industrial relations, and their relative positions of

power. The outcomes of this political contest present external constraints on the tribunal. At the same

time, they also provide opportunities for the tribunal leadership to make choices and innovate.

Especially important has been the tribunal's capability to adapt to change and its strategic focus on

improved ‘public value’, which has increased the efficiency and accountability of its statutorily

appointed Members and promoted a greater role for nonmembers in dispute resolution.

The data on which the paper draws come mostly from published research and publicly

available sources, such as accounts written by academics, commentaries by participants, annual

reports and policy statements of relevant organisations, speeches and media reports. These

sources, which are extensive in Australia because of the long‐running and central role played

by the tribunal in industrial relations, are supplemented by the personal knowledge of the

authors, who have been researching the role of tribunals for many years (see, e.g., Bray

et al., 2017; Stewart et al., 2014), and interaction with key informants from the tribunal.

The novelty of the paper—and therefore its contribution—comes from the focus on the

tribunal rather than the broader system within which it operates. Most recent Australian

research has concentrated on the legislation (e.g., Bray & Stewart, 2013; Murray, 2006) and its

impact of the tribunal on trade unions (e.g., Cooper & Ellem, 2008; Forsyth, 2020; Peetz, 1998),

collective bargaining (e.g., Creighton & Forsyth, 2012; McCrystal et al., 2018) and individual

bargaining (Deery & Mitchell, 1999; Peetz, 2006). Focusing instead on the tribunal as an

organisation reveals elements of recent Australian industrial relations that were previously

neglected, especially the continuities with the past (as opposed to the changes) and the on‐

going distinctiveness of the Australian tribunal.

2|INSTITUTIONAL CONTEXT: THE TRADITIONAL

MODEL

From the creation of the Commonwealth of Australia in 1901 (through the Federation of the

previously separate colonies) until the 1980s, there was a long‐standing political compromise in

Australia over economic development. This compromise had four interconnected policy

components: tariff protection of local manufacturing; the regulation of wages and working

conditions through compulsory conciliation and arbitration; limits on the supply of labour

through restrictions on immigration; and a residual social policy targeted at citizens who could

not enter the labour market (Castles, 1988; see also Capling & Galligan, 1992; Kelly, 1994).

The compromise was partly reflected in the terms of the Constitution, which granted the

Commonwealth parliament the power to make laws with respect to some aspects of industrial

relations, leaving the balance of powers to the individual states. Particularly important was section 51

(xxxv), which focuses on the ‘conciliation and arbitration for the prevention and settlement industrial

disputes extending beyond the limits of any one State’. This constitutional provision dominated the

system throughout the period and placed a range of constraints over the structure and operations of

the industrial tribunal (Kirby & Creighton, 2004;Stewart&Williams,2007).

2.1 |Tribunal structure

In terms of structure, reliance on Section 51 (xxxv) of the Constitution meant that the federal

parliament could not directly legislate conditions of employment, instead delegating dispute

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