A full explanation of the difficulties experienced by Justice Staples during his career on the former Australian Conciliation and Arbitration Commission requires an understanding of the political relationship between the tribunal and its client parties and other branches of the state. It is argued that during times of political and industrial uncertainty there are strong pressures on industrial tribunals to operate in a flexible, opportunistic manner. Staples, however, based a number of his decisions on legal, social and industrial principles that he considered just and proper for the discharge of his office, but which conflicted with the interests of unions, employers, governments and even other members of the commission. His reliance on the principle of judicial autonomy did not deter his opponents from seeking to discipline and finally remove him from the bench. This incident was but the most recent of a number of similar episodes this century, which raises as yet unanswered questions about the extent to which industrial tribunals are and should be free from external intervention.
This above all: to thine own self be true, And it must follow, as the night the day, Thou canst not then be false to any man.
In May 1980, Justice Staples, a deputy president of the Australian Conciliation and Arbitration Commission, was relieved of most of his duties by the commission’s president, Sir John Moore. From that time, Staples, who became the fourth longest serving presidential member of the tribunal, was provided with little or no work in his official capacity, and he was eventually removed from the tribunal. Despite offers of alternative employment, he steadfastly refused to step down as a matter of principle.
Staples is no stranger to controversy. Before his appointment to the commission, he had acquired a reputation as a champion of unpopular causes in his career at the bar. He had experienced a previous period of ’exile’ not long after joining the commission. In his decisions and comments from the bench, Staples was often highly critical of widely accepted industrial relations practices and powerful institutions. He acquired the reputation of being a ’maverick’ judge, and his difficulties were widely viewed as the result of personal idiosyncracies. It came as no surprise to many observers that a concerted attempt was made to relieve him of his duties.
Yet it could be argued that explaining Staples’s troubles purely in such personal terms misconstrues the situation that arose. While some of his practices in the commission were unusual, and were the immediate cause of his downfall, the controversy that surrounded his actions must be understood in terms of the institution of industrial arbitration as it has developed in Australia, and the wider context within which arbitration operates. It is suggested that the problems that Staples encountered illustrate important aspects of the politics of industrial arbitration, particularly the constraints on the independence of tribunal members in decision making that can be imposed from both outside and inside the commission.
Arbitration and problems of policy
Despite the limited aspirations for arbitration held by most political leaders involved in its establishment, the industrial tribunals became deeply enmeshed in the general regulation of wages and conditions of employment. An important effect of this was to focus economic class conflict on one of the state apparatuses. This ’canalization’ (Therborn 1978) of conflict has been a central feature of industrial arbitration since the early years of this century, and it poses dilemmas of state policy formation in an unusually stark form.
A useful perspective on the policy dilemmas of industrial tribunals’ can be found in the work of Claus Offe. Offe (1976) argues that the capitalist accumulation process is unlikely to proceed smoothly, and that complex economic difficulties tend to arise, which may threaten to undermine the legitimacy of existing production arrangements. To the extent that problems of accumulation cannot be overcome by purely economic means-and Offe, along with many other writers, argues that this is often the case-solutions are sought outside the ’pure’ operations of the market. Over time, the state’ becomes deeply involved in economic activities, either directly or indirectly through attempts to regulate the private sector. Political intervention, however, is likely to result in economic conflict being refocused upon the state. Although state managers will seek to minimize the negative consequences of such politicization (Block 1977, 1980), the conflicting demands of ’legitimacy versus efficiency’ often cannot be accommodated (Offe 1975a).
Many of the economic problems dealt with by the state involve opposing interests, and lasting solutions cannot be found. Nevertheless, the state is unable to opt out of economic intervention, and faces the dilemma of actively preserving the conditions for private accumulation without generating new impediments. As Offe dryly observes (1976, 49), this requires ’an opportunism whose adherence to its own principle is unswerving’. Offe argues that effective long-term planning by the state is difficult, because ’state power subject to such contradictory demands can determine its own strategies neither through general consensus of the citizenry nor through technocratic calculation; for one can neither desire nor calculate opportunistic action.’ Where incompatible demands are particularly strong or urgent, flexibility and the ability to shift the basis for decision making will be particularly desirable. Where these conditions cannot be met, the state’s ability to develop even short-term solutions will be hindered.
The implications of this argument for Australian industrial tribunals should be clear. Even discounting the bravado that regularly accompanies industrial conflict, tribunals are subject to unusually strong, incompatible claims by trade unions and employers, which at times threaten to create wider political and economic difficulties. Where unions seek large increases in wages or conditions, acquiescence may lead to reduced profitability and investment; resistance may lead to high levels of industrial disputation, or inadequate levels of consumer demand, or both. It is not surprising that the history of such state apparatuses as the Australian Conciliation and Arbitration Commission is characterized by inconsistency and opportunism. This has little to do with the calibre of tribunal members, who are typically highly capable individuals, but instead with the dilemma that any solution is unlikely to remain ’correct’ for very long.
In some circumstances the need for flexibility is less pressing. Offe (1975b) points in particular to situations in which key client groups are unable, whether voluntarily or involuntarily, to pursue their interests outside the framework provided by the state. This would explain the ability of the federal tribunal to enforce a very strict and detailed set of wage fixation guidelines under the ALP/ACTU Accord during the Hawke government. More generally, the commission has sought to retain flexibility in its principles and policies, allowing the tribunal to respond to pressures placed upon it. This becomes especially important during times of economic uncertainty or high levels of industrial conflict. The pressures on the commission were particularly strong during the late 1970s, the period with which we are most concerned. A wage indexation ’package’ was introduced by the tribunal in 1975 in response to the wages explosion and industrial unrest in 1974, and an economic recession. In the context of continuing economic uncertainty through the late 1970s and little agreement among the commission’s main constituents over wages policy, wage indexation required an unusually high level of co-ordination within the tribunal. Internal cohesion has been a continuing problem for industrial tribunals from the early years of this century (Dabscheck 1986; Dabscheck & Niland 1981). The high level of centralization upon which the 1970s model of indexation was based created particular dangers for the commission, as the recession had not uniformly reduced the bargaining power of trade unions, and by 1978 the potential for a wages breakout had become apparent. The commission repeatedly revised its guideliness (i.e. it responded flexibly), while trying to maintain centralized control over wage determination. There was little room for individual members of the commission to strike out on an independent path under the circumstances, for fear of unleashing pent-up wage pressures in an uncontrolled manner.