6th ADR Research Roundtable 2017

The ADR Research Network is please to announce details of:

The 6th ADR Research Network Round Table

Monday 4 December to Tuesday 5 December 2017

Hosted by the Legal Issues Centre, University of Otago, Dunedin, New Zealand

Call for Paper Proposals

The Australasian Dispute Resolution Research Network is pleased to be hosting its sixth annual research round table on 4-5 December 2017. This year we are very excited to be expanding across the Tasman to New Zealand, to be hosted by the Legal Issues Centre, University of Otago, Dunedin. The round table will be held two days immediately prior to the Law and Society of Australia and New Zealand Conference at University of Otago, 6-9 December 2017.

The round tables are designed to encourage a collaborative and supportive research environment in which papers are workshopped and discussed in detail. Papers in draft form are distributed one month ahead of time to participants, to enable thoughtful and constructive quality feedback. In 2017 we will also be asking you to draft a short (1,000 words max) blog post about your paper prior to the roundtable. On the day, speakers are given up to 30 minutes for presentation, with 30 minutes for feedback and discussion. Two primary commentators will be appointed for each paper.

We welcome proposals that consider dispute resolution from a scholarly, critical and/or empirical perspective. We particularly encourage submissions from postgraduate students and early career researchers. All proposal will be considered. Papers must not have been published or submitted for publication, as the focus is work in progress.

There will be a limit to the number of papers able to be part of the round table discussions. A panel will select round table papers from abstracts submitted. The aim is to be as inclusive as time and numbers allow. The following selection criteria will be applied:

* Papers take a scholarly, critical and/or empirical perspective on an area of dispute resolution;

* The round table will include a spread of participants across stages of career; and

* A well-balanced range of work will be presented at the round table to provide diversity, to develop the field and to enable cohesive discussion.

Participation is on a self-funded basis.

Attendance at the Round Table is only open to individuals who are contributing to the scholarly discussions by presenting a paper, or commentating and/or chairing a session.

Deadline for paper proposals: 19 June 2017 (300 word maximum plus short bio, to adrresearchnetwork@gmail.com)

Date for notification: 31 July 2017

Draft (full) papers + blog post due: 30 October 2017 (to send to participants early Nov.)

For further information, please contact:

Conference Convenors and 2017 Network Presidents: Sue Douglas and Becky Batagol via adrresearchnetwork@gmail.com (monitored twice weekly)

About the Australasian Dispute Resolution Research Network

The Australasian Dispute Resolution Research Network brings together leading dispute resolution scholars and provides a collaborative environment to foster, nurture and enrich high quality research and scholarship. The Network is inclusive and forward-looking and seeks to bring together emerging, mid-career and established scholars to build excellence in the field and provide peer support. Network activities are expressly designed to provide a supportive and collegial presentation environment in which meaningful discussion and constructive feedback is provided to the presenter.

Network activities include maintaining the ADR Research Network blog at http://www.adrresearch.net on Twitter and conducting annual scholarly round tables of work in progress since 2012.

Guest blog post proposals are always welcome. Contact blog editor Dr Becky Batagol, at Becky.Batagol@monash.edu.

Membership of Australasian Dispute Resolution Research Network

We don’t like hierarchies or unnecessary administration, so we don’t have any membership list or legal organisational framework. The way to become a member of the ADR Research Network is to subscribe to the blog. This is our primary means of communication.

Subscription will mean that every time a post is made on the blog you will receive a notification alert to your email address. Other ways to follow blog activity is through Facebook “ADR Research Network” and Twitter, but engagement on these platforms is not necessary to keep track of blog activity.

Call for Papers: International Seminar on ADR and Legal Aid, Kolkata, India, June 2017

THE WB NATIONAL UNIVERSITY OF JURIDICAL SCIENCES, KOLKATA Presents

International Seminar on ADR and Legal Aid (A Dissemination Seminar under the Department of Justice Project) 24 June 2017

Background:

Strength of the justice delivery system lies in providing quick and inexpensive relief to the people having disputes. Most of the states in the world have responded to this need of the people by setting up strong forum of ADR. However, the issue doesn’t seem to be addressed satisfactorily in India, which still primarily banks on the judicial settlement of disputes. This has paved way for congestion in courts, ultimately leading to the unwanted delay in the dispensation of justice. There is a huge backlog of cases pending before various High Courts as well as lower judiciary in India.

However, at no point of time the inflow of cases can be stopped nor should it be, since the doors of justice can never be closed. Therefore, there is a need to increase the outflow, which requires some additional outlets like ADR.

Dispensation of justice in India has also got setback due to the inability of poor to have access to the justice delivery system. Today, seeking justice has been an expensive affair in spite of the sincere urge and efforts to make it cost effective. Various other factors like lengthy procedures, complex issues involved, unreasonable adjournments granted and many more have made us to be skeptical towards the Judiciary.

But like in life, even in law we have some silver lining- a ray of hope, a helping hand towards the needy. Legal aid is one such scheme which guarantees to all that in case of need for legal assistance, a person can ask for it not as a charity but as a right. The efforts to popularize the ADR mechanisms and to provide necessary legal aid are made through the Arbitration and Conciliation Act 1996 and Legal Services Authorities Act 1987. The legal aid and Lok Adalats under the Legal Services Authorities Act 1987 are increasingly dealing with civil cases, matrimonial cases, criminal cases excluding noncompoundable offenses, labour matters as well as matters pertaining to motor accident claims. Legal aid societies have emerged in many parts of India to assist the needy in seeking justice or even to provide free legal aid in suitable circumstances.

Emergence of national law universities in many states has also helped in promoting access to justice through the institutional legal aid societies. Despite the above efforts, the situation is still worrisome. Large numbers of people in India are still not having access to justice and many amongst the remaining are not satisfied with the kind of justice delivered to them. The state of West Bengal is not an exception to this norm. The West Bengal Judiciary has time and again stressed on the importance of ADR and legal aid in the settlement of the disputes.

However, the masses have not yet embraced the ADR whole-heartedly due to their scepticism about the effectiveness of ADR coupled with the over-reliance on the traditional court system. Moreover, the lawyers, being trained only in hardcore litigation, are finding difficulty in adapting to ADR mechanisms. Added to this, quality legal aid has always remained expensive and illusive for poor mass.

In light of the above factors, The WB National University of Juridical Sciences has undertaken a major research project to study the position of ADR and legal aid in West Bengal with an objective to improve them. The research team of the project has conducted a study of current position and has come out with its findings. Finalising the research report is now being done with a dissemination seminar to receive inputs from different scholars in the field.

 

Objectives

One of the major objectives of this seminar is to discuss the project findings before the panel of experts and to get their valuable feedbacks. Since the research team is suggesting on the improvement of situation relating to ADR and legal aid in West Bengal, search for a better working model is on. Hence, all the papers to be deliberated in the Seminar would carry the objective of outlining such a model.

 

Call for Papers

Those who are interested in presenting a paper on any area of ADR or legal aid must send an abstract of 600 words along with a brief biographical note (not more than 200 words) on or before 25 April 2017.

Submission should only be on any good model of ADR or legal aid, which is practically working in any part of India or in other jurisdictions. Preference would be given to those papers that incorporate empirical method of research. The acceptance of paper for presentation would be informed by 30 April 2017.

A full length paper of 4,000 – 6,000 words must be sent by 10 June 2017. If the full length paper is not submitted before the last date, authors will not be allowed to present the paper in the Seminar. Submission of the full length paper would be presumed as unconditional consent of the author/s for its possible use in the preparation of research report by the organisers.

Submission of abstracts and full length papers must be made through e-mail to Dr. Shyamala D. at shala_llm@yahoo.co.in. All submissions must be made in Microsoft word.

 

Participants’ Registration

There is no registration fee for the Seminar. However, the participation to the Seminar is limited to 50 participants (excluding the paper presenters).

All interested participants must register by sending a mail to Ms. Amrisha Tripathi at amrishat@nujs.edu. Registration would be done on first-come first-served basis until the seats are filled.

 

Financial Support

Limited financial support is available on competitive basis to meet the transportation and accommodation expenses of outstation participants presenting their papers. Financial support to the extent of Rs. 30,000 (Indian Rupees thirty thousand only) would be available to selected four international participants. Financial support to the extent of Rs. 10,000 (Indian Rupees ten thousand only) would be available to selected four national level participants. Decision on financial support would be made on the basis of quality of the paper and its relevance to the project work.

Those who would like to avail the financial support must submit their full length paper by 15 May 2017 along with a request for financial support highlighting their expected expenditure to enable the organising committee to take an early decision. Decision of the organising committee on all aspects shall be final and binding. Financial support, if granted, shall be collected by the recipient during the time of seminar by providing adequate proof of identity.

 

Dates

Last date for submission of Abstract: 25 April 2017

Last date for submission of Full Paper: 10 June 2017

Last date for submission of Full Paper for Seeking Financial Support: 15 May 2017

Conference Date: 24 June 2017

 

Contacts

E-mail id for Submissions: shala_llm@yahoo.co.in

E-mail id for Registration by Participants: amrishat@nujs.edu

Contact Number: +9133-23357379 / 0765 (extn 1180) +91 8617705282

Conference Coordinator Dr. Sandeepa Bhat B. Professor of Law Principal Investigator – Department of Justice Project on ADR & Legal Aid The WB National University of Juridical Sciences 12 LB Block, Sec III, Salt Lake City, Kolkata West Bengal, INDIA

 

Conference Venue:

The WB National University of Juridical Sciences 12, LB Block, Sec III, Salt Lake, Kolkata – 700098 *

Note: Certificate would be issued to only those participants who attend all sessions.

 

Research Higher Degree Topics at UTAS

The Faculty of Law at the University of Tasmania has opened its final round of research higher degree scholarships in 2017. Two topics have been proposed by network member Dr Olivia Rundle. Applications will be considered in competition with applications for all other Law topics (ie the scholarships are not tied to particular topics and there are a limited number available).

The closing date for scholarship applications is 30 April 2017

Applications from prospective candidates who do not require a living allowance scholarship are welcome at any time.

Dr Rundle’s advertised topics are:

Case Management Practices in Tasmanian Civil Litigation

Relationships with Clients in Legal Services Delivery

Applicants will need to develop a proposal that falls within the topic area.

If you decide to inquire about application (to Olivia.Rundle@utas.edu.au) please provide information about the following:

  1. Your academic qualifications record
  2. Your Curriculum Vitae
  3. Any publications you have authored
  4. Any other examples of your scholarly writing
  5. Where you propose to be while you undertake a research higher degree (ie do you propose to be located physically in Tasmania for all or part of your candidature)
  6. Whether you propose to be a full or part time candidate
  7. Whether you study will be self-funded or you require a living allowance scholarship

Olivia looks forwa2016 Profilerd to hearing from budding researchers who are excited to contribute to research about the way disputes are handled within legal institutional contexts or the way lawyers engage in their relationships with their clients.

Consultation comment invited – Review of the Farm Debt Mediation Act 1994 (NSW)

The following has been posted on behalf of Dr Hanna Jaireth, Farm Debt Mediation Officer at the NSW Rural Assistance Authority

Consultation comment invited – Review of the Farm Debt Mediation Act 1994 (NSW)

drought

Photo credit: Tim Vrtiska

The Farm Debt Mediation Act 1994 (NSW) (FDMA) is being reviewed to ensure it continues to deliver on its original intent, and to provide a model for nationally consistent legislation.

The Board of the NSW Rural Assistance Authority (RAA) is overseeing the review.

Your feedback is requested in response to questions in the Review Consultation Paper (PDF, 696.57 KB).

Submission options

You may respond by 5 May 2017 by:

  • completing theonline survey, or
  • emailingyour comments, or
  • posting your comments in hardcopy, or
  • one or more of the above.

Online survey

The online survey provides the questions raised in the Review Consultation Paper (PDF, 696.57 KB) so that if you wish, you can respond easily to all or some of the questions.

Individual survey responses will not be published.

Questions 1 to 3 are mandatory so that we can assess which stakeholders express which views, and we can provide you with information about the outcomes of the review.

Email your comments

If you wish to email a submission, please email farmdebt.mediation@raa.nsw.gov.au.

We would prefer to receive longer submissions in Word and/or Pdf format as an attachment.

Please make it clear if you attach additional documents to your submission, whether those documents may be published on the review website.

Post your comments

You may send a submission in hard copy to:

Dr Hanna Jaireth NMAS | Farm Debt Mediation Officer

NSW Rural Assistance Authority

Level 2 | 161 Kite Street | ORANGE  NSW  2800
Locked Bag 23 | ORANGE  NSW  2800
Ph: 1800 678 593 | Fax: 02 6391 3098 | E: hanna.jaireth@raa.nsw gov.au
W: www.raa.nsw.gov.au

Release policy

The RAA will not accept or publish anonymous submissions or comments.

Private contact information will not be published, but submitters’ names and organisations will be published unless a request for confidentiality is agreed after consideration of a written request.

Submissions will be published on the RAA’s website in full or in part unless the RAA declines to accept a submission because it contains information of a private, legal or otherwise sensitive nature, or because it is vexatious, offensive or defamatory.

If a submission includes something critical of another person or organisation the RAA will write to them and ask them to respond, and the RAA may decide to withhold publication of both the submission and the comments made in response.

Further information

If you need to access a translating and interpreting service please telephone 1300 651 500 or visit the Interpreting & Translation page of the Multicultural NSW website.

For further information please:

 

Ethics in Alternative Dispute Resolution: Special Edition of Law in Context

Ethics in ADR Law in ContextAustralian Dispute Resolution Research Network members Lola Akin Ojelabi and Mary Anne Noone have coordinated and edited a special edition of Law in Context on the topic of Ethics in Alternative Dispute Resolution. The special edition was published in February 2017 and is now available for purchase either as a whole volume in book form or by subscribing to the Law in Context journal.

The special edition draws from papers presented at the ADR Ethics for Practitioners Symposium, conducted at Latrobe University in June 2015 and convened by Lola and Mary Anne. The Symposium and the Special Edition considered a wide range of factors relevant to the complex questions of ADR ethics.

The papers included in the special edition are:

Lola Akin Ojelabi and Mary Anne Noone “ADR Processes: Connections Between Purpose, Values, Ethics and Justice” – Drawing from empirical research, this paper begins to explore the relationship between process purpose, underlying values and ethical responsibilities that arise for a range of ADR practitioners working in different fields and the potential of those processes to promote substantive and procedural justice.

Ellen Waldman “Inequality in America and Spillover Effects on Mediation Practice: Disputing for the 1 Per Cent and the 99 Per Cent” –  The question for mediation scholars and practitioners is whether growing inequality is affecting the way in which society’s ‘haves’ and ‘have-nots’ access and experience mediation. At the low end of the socio-economic totem pole, government cuts in legal services – combined with mediation practitioners’ obsession with neutrality – potentiate uninformed decision-making by unrepresented parties. At the high end, models of practice catering to legal professionals’ preferences threaten to rob mediation of its transformative, therapeutic potential. This paper explores these troubling developments and queries whether growing social inequality should precipitate shifts in our thinking about mediation ethics and the way we educate the next generation of lawyers. 

Susan Douglas, “Ethics in Mediation: Centralising Relationships of Trust” – In this paper, the relationship of trust between mediator and parties is proposed as a suitable and defensible alternative ethical framework. It is argued that this relationship can be constructed according to principles associated with fiduciary and therapeutic relationships, in recognition of the distinctive socio-legal context of practice. It is argued that relationships of trust provide a convincing framework within which to consider issues of substantive fairness in mediation.

Bobette Wolski, “An Ethical Evaluation Process for Mediators: A Preliminary Exploration of Factors Which Impact Ethical Decision-Making” – When mediators are confronted with an ethical dilemma such that they must choose between two or more ‘right’ or ‘good’ but contradictory courses of action, they must take numerous case-specific factors into account in arriving at a decision that they can justify. This article identifies some of the factors which mediators might take into account in deciding what is the ‘ethically fitting’ course to be followed, including: the objectives and values given priority in mediation; the approaches or models of mediation chosen by a mediator; and the standards of conduct to which mediators are subject.

Rachael Field and Jon Crowe, “Playing the Language Game of Family Mediation: Implications for Mediator Ethics

Judy Gutman and Jodie Grant, “Ethical Conundrums Facing Mediators: Comparing Processes, Identifying Challenges and Opportunities” – This article considers several ethical issues confronting mediators in family and civil disputes. We compare ethical frameworks, drawing on issues arising from mediation practice in two specific court-connected fora. Further, we make recommendations for changes to existing mediator training and to applicable standards and codes. 

Kathy Douglas and Rebecca Leshinsky, “Ethical Concerns for Owners Corporation Managers who Informally Mediate in Owners Corporation Disputes: The Need for a Community of Practice” – Conflicts in owners corporations are not uncommon and the owners corporation or strata managers may informally mediate disputes. This article will outline research into the experience of conflict in owners corporations from the perspective of strata managers and discuss mediator ethics in this context. Managers, as informal ‘insider’ mediators, may experience a number of ethical dilemmas, most notably the issue of impartiality/ neutrality. They are part of a growing group of mediators that operate outside of the National Mediation Accreditation System. The article suggests the need for a community of practice of managers who informally mediate so that ethical concerns in their specific context can be shared and debated.

Alikki Vernon, “The Ethics of Appropriate Justice Approaches: Lessons From a Restorative Response to Institutional Abuse” – There have recently been several major initiatives in Australia in response to institutional abuse and sexual offending. This paper explores one of these initiatives: the Defence Abuse Response Taskforce. The Taskforce was established to address institutional abuse and sexual offending in the Australian Defence Force. It raised a number of important ethical questions and offers valuable lessons about appropriate justice approaches in complex matters.

Our humble-brag about this special edition is that almost all of the authors are members of our network. Congratulations to all involved in this research project, which makes a significant contribution to a thorny area of dispute resolution theory and practice.

The Course to Publication Never Did Run Smooth

One of the goals of the Australian Dispute Resolution Research Network is to create an environment where researchers can support one another in a rigorous and kind manner to engage in high quality scholarship. I am so excited that Jon and Rachael accepted my invitation to write this piece. Both of them are established professors with an excellent track record of scholarship both within and outside the dispute resolution subject area. Their story of taking their idea through three double blind peer review processes plus an ADRRN Roundtable to eventual publication demonstrates their resilience and confidence that their idea was a good one worth pursuing. Researchers need to foster an ability to accept peer review feedback graciously, consider it an opportunity, decide how to respond, and persist with work that has been criticised. Jon and Rachael’s story is a model for all of us and I thank them again for sharing it here. Olivia.

Jonathan Crowe and Rachael Field

jon and rachael

The path from idea to publication is often winding and tortuous. One example of this is our recent article, ‘Playing the Language Game of Family Mediation: Implications for Mediator Ethics’, which appears in a special issue of Law in Context on ethics and dispute resolution. The article explores some underlying ethical issues about access to justice in family mediation.

What, then, was the article’s path to publication?  We first started work on the paper in late 2008. We completed the initial version in May 2009 and submitted it to the Australian Journal of Family Law. The referees made a number of critical suggestions and we were asked to revise and resubmit.

Often it is hard to work out how to respond to referees’ comments, particularly when different referees seem to recommend different things. One of our referees commented: ‘The article needs complete rethinking and rewriting.’ The other said: ‘This article contains some interesting ideas. It is well written and original.’

The process of revision can be difficult and daunting. How do you mediate between diverse views and reconcile the referees’ comments and criticisms? Anyway, who has the time for this sort of thing? Other commitments—and life in general—tend to get in the way.

Nonetheless, we worked on revising the article, doing our best to respond. It did take a while, though!  It wasn’t until July 2010 that it was in shape to be resubmitted. Rather than resubmit to the Australian Journal of Family Law, we thought the new version would be well suited for a special domestic violence edition of the University of New South Wales Law Journal.

Again, however, the referees were split on the article’s merits. One reviewer said: ‘This is a well written and appropriately researched paper and raises some interesting ideas.’ The other said: ‘The article arouses two basic reactions: appreciation and disappointment. … The article needs serious and substantial revisions.’  Back to the drawing board!

After several years of neglect, procrastination and intermittent revision, we presented the paper at the Australian Dispute Resolution Research Network Roundtable in 2015. Our colleagues at the ADR Research Network reassured us of the paper’s value and made supportive suggestions for further improvement.

We are particularly grateful to Olivia Rundle for her generous and helpful commentary. This is why the Network is so amazing. Such levels of sincere and generous collegiality are unfortunately all too rare in the contemporary academy.

Re-energised by the support of our colleagues, we revised the piece again and resubmitted it to a special ethics edition of Law in Context in 2016. This time, it found favour with the referees. After a final round of revisions, it was accepted and is now in print.

What is the moral of this long-winded story? It certainly shows the value of tenacity and persistence in academic publishing. Being rejected and receiving referees’ (sometimes harsh) criticisms can be disheartening and emotionally draining. Resilience, patience and perseverance are key.

It’s also important to back yourself and believe in your ideas and their merit. Some ideas take longer than others to mature. Sticking with the idea until it does get to that point pays off. It also really helps to be working with a supportive co-author (as we each were) and to have generous and encouraging colleagues like those in the ADR Research Network.

Overall, then, the article took about eight years from conception to publication. It took a long time, but we got there in the end! So what were the ideas we sought to express in this article? Here is a short summary.

Over the last 20 to 30 years, the use of family mediation in Australia to resolve family disputes has grown significantly. Since the 2006 reforms to the Family Law Act 1975 (Cth), family dispute resolution (as family mediation is now known) has effectively become a compulsory first step in post-separation parenting disputes that enter the family law system.

There are many good reasons for encouraging parties to participate in family mediation. Mediation is a flexible, cost-effective, time-efficient and less adversarial way for families to manage and resolve post-separation disputes. Family mediation is also a process that can enable party self-determination, empowering the parties to determine together the best arrangements for their family into the future.

However, we argue that vigilance is required if the capacity of each party to negotiate towards a mutually agreeable outcome is to be effectively sustained and the full potential benefits of mediation are truly to be achieved. This is because the relatively informal nature of mediation, along with its emphasis on party self-determination and mediator impartiality, holds the potential to mask the challenges the process presents for inexperienced or vulnerable parties.

In the article, we use Ludwig Wittgenstein’s concept of a language game and the related notion of a clash of genres to explore some of the underlying conventions and expectations that create challenges for the parties in family mediation. We then consider how mediators might respond to these challenges and the implications this holds for mediator ethics.

In our view, mediators must play an ethically active role in preparing and supporting the parties to operate effectively within the mediation language game. This requires a more sophisticated understanding of party self-determination that goes beyond the simplistic rhetoric that the parties control the content and outcome of the dispute.

Since we first met at a post-graduate law research colloquium in Adelaide in 2004 (where Jon’s paper won best paper and we sat next to each other at the dinner) we have enjoyed bringing our diverse perspectives and knowledge together. We’ve pretty much always had ideas we were developing or articles we were writing together since that time.

Coffee catch ups have always been fun. We really like the body of scholarship we are developing! See, for example:

After this blog post, our next adventure is a book on Mediation Ethics for Edward Elgar. Wish us luck! Hopefully, it doesn’t take eight years!

 

Flash Back Friday: Resolution of the Standard Hours Dispute

On Monday of this week some workers in some Australian states and territories enjoyed a public holiday called “Labour Day” or the “8 Hour Day”. This public holiday celebrates the establishment of a baseline expectation that the ordinary working week for full time wage earners in Australia is 40 hours (reduced to 38 hours in 1981). An irony of the celebratory public holiday is that a high proportion of Australian full time workers work significantly more hours per week (and many are not paid overtime, meaning that those additional hours are essentially voluntary contributions to their employer/business and/or significantly reduce their actual hourly earnings). Some research suggests that working greater than 39 hours per week is a health risk. In high salary sectors, critics have started to challenge the cult of over-work, reward for long work hours and addiction to busy-ness.

This post focuses upon the processes that were engaged to achieve the legal milestone, considered to be so significant that most Australian states and territories celebrate it as a public holiday each year. The remainder of this post does not focus upon distinctions between theory and practice in working hours, nor the manner in which industrial relations law has been implemented post 1947.

Australia’s historic commitment to conciliation and arbitration

The Australian Constitution, dated 1901, granted the following legislative power to the Commonwealth of Australia:

conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State (Section 51 (xxxv))

The driver for this power being included in the Constitution was a history of workers’ strikes and industrial unrest, particularly in the 1890s. It was hoped that the Commonwealth would be able to provide an effective way of minimising the disruption and facilitating the resolution of industrial disputes. The Commonwealth first exercised this power in 1904 when it established the Commonwealth Court of Conciliation and Arbitration. Section 2 of the enabling Act of Parliament listed the Court’s chief objects, some of which enshrined dispute resolution principles into law (author’s emphasis):

…(III) To provide for the exercise of the jurisdiction of the Court by conciliation with a view to amicable agreement between the parties;

(IV) In default of amicable agreement between the parties, to provide for the exercise of jurisdiction of the Court by equitable award;

…(VII) To provide for the making and enforcement of industrial agreements between employers and employees in relation to industrial disputes.

It is clear from these objects that the intention was to provide a system that supported amicable agreement between employers and workers, and that conciliation was intended to be the primary means of resolving disputes, with recourse to arbitration occurring where they had been unable to reach agreement. This is further emphasised by section 16:

The President shall be charged with the duty of endeavouring at all times by all lawful ways and means to reconcile the parties to industrial disputes, and to prevent and settle industrial disputes, whether or not the Court has cognizance of them, in all cases in which it appears to him that his mediation is desirable in the public interest.

Although a Commonwealth institution, provision was made in the objects for the Court of Conciliation and Arbitration to take a collaborative and coordinating approach, dealing with matters referred by states and working with state industrial authorities:

(V) To enable States to refer industrial disputes to the Court, and to permit the working of the Court and of State Industrial Authorities in aid of each other.

One of the chief objects of the Act enabled the Court to allow a variety of interested parties to participate in its proceedings:

(VI) To facilitate and encourage the organization of representative bodies of employers and of employees and the submission of industrial disputes to the Court by organizations, and to permit representative bodies of employers and of employees to be declared organizations for the purposes of this Act.

This effectively enabled the Court to invite the participation of organisations that would not necessarily have legal standing (and would rarely be proactively invited to participate) in other contexts.

nla.obj-160959628-1

Fairfax Corporation. 1935, Judge’s associate Miss Mary Drake Brockman seated at a desk at the Federal Arbitration Court, Sydney, 12 February 1935, 1 , viewed 17 March 2017 http://nla.gov.au/nla.obj-160959628

Standard Hours Inquiry 1947

In 1947 the Commonwealth Court of Conciliation and Arbitration approved the 40 hour week through its Standard Hours Inquiry decision. Initially, the matter came before the Court as a dispute between the NSW Printing Industry Employees Union and Printing and Allied Trades Employers Federation about the terms of the printing industry award – essentially about whether the standard hours of work should be reduced from 44 to 40 hours. This was a confined dispute and could have been dealt with as an isolated case. Indeed, technically, all that the Court had jurisdiction to do was to settle the specific disputes that came before it. Where a dispute is confined to a narrow set of parties, and there is a public interest in mediating their dispute, the matter would properly be referred to conciliation. It can be safely presumed that the Standard Hours case was always considered to be of such great public interest, that it would not be an appropriate matter to refer to a private decision making process such as conciliation. The case would not have had much effect on Australian standard working hours had it been settled privately between the NSW Printing Industry Employees Union and the Printing and Allied Trades Employers Federation.

The matter was dealt with through a public inquiry by the Arbitration arm of the Court of Conciliation and Arbitration. The Court began to hear the printing industry case in November 1945 with two parties represented: the Printing Industry Employees Union and the Printing and Allied Trades Employers Federation. In February 1946 the Attorney General for the Commonwealth and the Victorian Chamber of Manufacturers were allowed to join the proceedings. The Attorney-General argued that it wanted to intervene in the case on the basis of public interest in the standard hours in the printing industry. The Court adjourned proceedings for one month:

…to give an opportunity to unions which desired to do so, to raise the general question of a 40 hour week in industry, by lodging applications for variation of awards. (Judgment at p 583).

The Australian Council for Trade Unions and 37 individual unions made application to intervene. The question at this point became whether or not the Court ought to continue with the printing industry case or consider the question of standard hours of work in industry more generally. It was decided that the broader question should be explored, drawing all of the claims together within a single inquiry. The matter adjourned and intervenors were asked to file all necessary documents with the Court.

The inquiry was complex, resource intensive, and long (demonstrating that these case attributes are not necessarily a “new” problem faced by legal systems). Five judges originally presided over the hearings (until one died and another became ill for an extended period of time). The hearing lasted for many months through 1946 and 1947. There were some breaks while the Court dealt with other matters. Some counsel were appointed to the bench and were replaced during the trial. The Court noted that:

Over 22 months have elapsed since the commencement of the case in November, 1945. The Court has before it some 8,875 pages of transcript, has heard evidence from 225 witnesses and received almost 500 exhibits…The immensity of the mass of material placed before this Court in the 158 sitting days occupied by the hearing of this case makes a detailed examination of it all in our reasons for judgement out of the question, if indeed, it is not beyond human capacity (Judgment at p 586).

The Court noted that at the time of judgment the inquiry comprised 100 individual industrial disputes regarding the issue of standard working hours.

Observations about the role of the Court of Conciliation and Arbitration

Their Honours made some observations about the constitutional and jurisdictional limits of the Court on the one hand, and the actual influence that its determinations would have on the industrial landscape on the other:

It is a commonplace of Australian industrial law that the limit of the constitutional power of the Court is to settle each of these disputes within its ambit, and the ultimate judgment will in fact settle these particular disputes, and do no more. But we know, as a matter of practical fact, that it will in the long run lead to uniform standard hours throughout Australia. (Judgment at p 588).

The Court recognised that it would inevitably influence parliamentary reform to standardise workers’ rights. Their Honours also expressed a view that they ought not ignore the “popular will” when making their decision, as the effect of their decision’s impact upon the popular will could be either lowered productivity or increased worker effort (Judgment at p 588). In assessing the “popular will”, the Court was influenced by the fact that four states (NSW, Victoria, Queensland and Tasmania) and the Commonwealth had all intervened and advocated that the Court support the workers’ claims for a 40 hour working week in each of the relevant awards. Western Australia and South Australia had not advocated against the 40 hour week. The Court noted later that the governments who intervened were also some of the biggest employers in Australia (Judgment at p 591).

Broad considerations taken into account

One of the striking observations when reading the judgment is the way that the Court, in recognition of the significant and broad reaching consequences of its decision making in specific applications, took into account a range of broad contextual considerations. The inquiry took place post world war 2, and the fact that there were shortages of both commodities and labour was argued by the employers to be a reason not to stifle productivity levels in industry by granting the 40 hour work week claim. The Court acknowledged that there were many imponderable questions that came to mind when deciding the case:

…how shall we estimate the value of industrial contentment? How shall we measure the human value of it? How far is the shorter week a step on that road to co-operation of the forces of production which is so desirable? How shall we set the family aspects of this increased leisure against foreign trade or the claims of our people against those of other countries? Yet all these are factors which do enter into the fabric of one’s mind and ultimately issue forth in judgment. (Judgment at p 593).

Economic experts offered evidence about the forecast effect of a 40 hour week on national productivity, investment, and foreign trade, as well as the current economic situation in Australia and overseas (noting that the current year was anticipated to be a good one for agricultural production after some years of drought).

Another interesting observation that the Court made was its acknowledgment that a finding adverse to workers would not bring a stop to industrial action and unrest about their claim for a 40 hour working week:

No realist for a minute thinks that a rejection by the Court in these cases would bring about industrial harmony or would abate for an instant the demand for the shorter week. History has shown how persistent in the past have been such claims. There is no reason to suspect that the future will differ. (Judgment at p 590).

The judgment’s conclusion begins with an assertion that the Court was making a “major social judgment which will have very great and important consequences” (at p 610). The magnitude of that responsibility was clearly a weight on the minds of the members of the Court who conducted the inquiry and made the arbitral decisions in the individual disputes before it.

Dispute Resolution Perspective of the Standard Hours Inquiry 1947

The way that the Court of Conciliation and Arbitration conducted itself and delivered its reasoning in the Standard Hours Inquiry demonstrates adaptability, flexibility, and a broad view of what could have been treated as isolated disputes. Examples of adaptability, flexibility and breadth of view included:

  • To allow government intervenors;
  • Inviting unions not already involved in formal claims to make applications raising disputes and effectively expand the reach of the inquiry;
  • Taking a broad systemic approach to the inquiry and decision making while acknowledging the confined limits about what orders could be made to resolve the disputes;
  • Acknowledgement of the consequences the decisions would make beyond the immediate disputes;
  • Explicit acknowledgement of some of the unanswerable questions that occurred to the decision makers during their deliberations;
  • Explicit acknowledgement of the reality that the decision would not necessarily bring an end to the industrial unrest around the disputes.

The Court of Conciliation and Arbitration was a peculiar beast established for the purpose of supporting decision making in a complex area that crosses State and Commonwealth boundaries and affects the Australian community in fundamental and pervasive ways – economically and relationally, at macro and micro levels. The decision makers acknowledged the wider implications and effects of their decision and attempted to them into consideration. The capacity of the Court to make sure that its decisions were well informed by inviting greater participation assisted it to achieve its object of facilitating settlement of industrial disputes. The Standard Hours case is a classic example of a case that needed a well resourced, careful, broadly focused and public inquiry. The establishment of an arbitral process enabled that kind of inquiry to occur.