|Description of this FunctionDescription of this Function|
State regulation of relations between employers and employees has been subject to various legislative provisions, the nature of which has changed over time. State legislation has included provisions for the imposition of penalties for breach of employment contracts, for minimum wages and conditions of employment, for registration of unions of employers and employees, for processes of conciliation and arbitration to settle industrial disputes and for the registration of Determinations and Awards having the force of law.
State regulation of labour has had two principal strands: the regulation of physical conditions (see workplace health and safety) and the regulation of non-physical conditions such as wages, hours, leave etc. It would appear that industrial relations has mostly been concerned with wages and hours and other non-physical conditions. Since 1904 responsibility for working conditions has been shared with the Commonwealth which has responsibility for industries operating nationally.
Relations between employers and employees were originally conducted by means of contracts of service which were subject to the provisions of Masters and Servants Acts, principally concerned with the imposition of penalties for breach of contract. Early attempts by workers to form unions ("combinations") for mutual benefit and protection as well as unified action to improve wages, hours and conditions were subject to legal obstacles.
The first State intervention to protect the health and welfare of certain industrial workers was provided for in the Supervision of Workrooms and Factories Act 1873 (37 Vic., No.466) which forbad the employment of any female in a factory employing not less than ten persons for more than eight hours in any day. The Act sought to "mitigate the worst evils of the factory system" but its inadequacies, including a lack of enforcement, led to public agitation and strikes which resulted in the appointment of a Royal Commission in 1882. The result of the Commissioner's Report of March 1884 was the Factories and Shops Act 1885 (49 Vic., No.862), which became operative in March 1886. That Act regulated the hours of work of women and children. It also provided for the registration of factories and the appointment of inspectors to ensure greater compliance with the Act's provisions.
The Trade Unions Act 1884 provided for the registration of unions. Registration under the Act gave a trade union a corporate identity and legal status for the purpose of engaging in strikes. Registration was not compulsory and few unions registered under this Act.
1896 to 1981
The Royal Commission of 1882 considered the introduction of Courts of Conciliation and Arbitration for the negotiation and settlement of industrial disputes. It was not until the Factories and Shops Act 1896 (60 Vic., No.1445) was passed, however, that a Government system for negotiating industrial disputes (other than a Court of Law) was introduced. The Act provided for special Boards, comprising representatives of employers and employees, to be elected by their peers (with the exception of a Board for the furniture trade which was to be appointed by the Governor in Council) with power to determine the lowest price or rate of payment for preparing or manufacturing clothing, footwear and furniture and for bread making and baking.
The Wages Board system which developed for the settlement of industrial disputes, including the determination of wages, hours and conditions of employment, had its origins in Victoria and was based on the jury principle of trial by peers. The special Boards originally consisted of equal numbers of representatives of employers and employees, with the qualification that each should be actively engaged in the trade concerned. The Factories and Shops Act 1934 modified this to permit a paid officer of any corporation, public body, or association of employers to be elected to represent employers. If such an officer was appointed then one of the employees' representatives was to be an officer of the trade union concerned.
Originally four Boards were established and subsequently there were over two hundred in operation. The work of each Board related to the wages and conditions of work of a particular group or category of workers working in a specific trade, a branch of a trade, or a related group of trades. Until the early 1900's the wages of the majority of the wage earners were not determined by the Wages Boards. In most cases wage rates were simply determined by collective bargaining or, where unions did not exist, by individual work contracts.
It is evident that initially the Wages Boards were primarily forums for negotiation between employers and employees, agreement being reached by a majority of votes. The independent Chairman (appointed by the Governor in Council) appears to have been given a casting vote. Gradually the Chairman was vested with power to determine a matter where the representatives of each side could not agree. The employment conditions set by the Boards were known as Determinations and had the force of law.
The matters which could be determined by the Wages Boards were extended by amendments to the original legislation. The Factories and Shops Act 1897 (61 Vic., No.1518) provided that the minimum wage could be varied according to the age and sex of the workers. The Factories and Shops Act 1898 (62 Vic., No.1597) amended the 1896 Act with respect to the Special Boards including the provision of a right of appeal against decisions of the Special Boards before the Supreme Court (see employment conditions appeals below) and a provision that the Special Boards could also fix the maximum number of hours per week to which the rate of payment applied. The Factories and Shops Act 1903 (3 Edw.VII, No.1857) provided for special wages to be fixed for "aged, infirm or slow" workers. The Factories and Shops Act 1907 (7 Edw.VII, No.2137), which came into force 1 March 1908, provided for the Special Board system to be extended to certain trades and businesses not connected with factories. The Factories and Shops Act 1909 (9 Edw.VII, No.2184) provided for Special Boards to be appointed with respect to shops to fix wages, prices or rates. The Factories and Shops Act 1909 (No.2) (9 Edw.VII, No.2241) increased the powers of the Special Boards, including the prescription of the form of apprenticeship indentures. The Factories and Shops Act 1910 (1 Geo.V, No.2291) provided for Special Boards to fix the number or proportionate number of apprentices and improvers employed in any trade, business or occupation. The Factories and Shops Act 1910 (No.2) (1 Geo.V, No.2305) provided for Special Boards to be appointed for any trade, business or occupation in the whole or any part of Victoria and extended their powers to fix the times of beginning and ending work upon each day, and to fix special rates for Sundays and public holidays. The Factories and Shops Act 1927 extended the powers of the Wages Boards to determine any matter with respect to conditions of employment.
The Labour and Industry Act 1953 provided that Wages Boards could make a Determination in respect of any one or more employers or establishments, could hear the representations of any interested organisation or person and could appoint a Board of Reference to determine disputes of fact concerning any provision of a Determination. The Act also required organisations of employers or employees to inform the Chairman of the appropriate Wages Board of any impending or actual industrial dispute.
Certain minimum conditions, such as a minimum weekly wage, were provided for in the legislation. The enforcement of both the legislative requirements and the requirements of Determinations set by the Boards was undertaken by Inspectors of the Department of State of the Minister administering the relevant legislation - see the Industrial Compliance function.
1981 to 1992
Following recommendations of a Committee for Review of the Labour and Industry Act 1958 the Industrial Relations Act 1979 (No.9365) was introduced, coming into operation on 1 November 1981. The Act provided for the establishment of the Industrial Relations Commission. The role of the Commission was to expeditiously resolve industrial disputes, to determine industrial matters and, through a system of Conciliation and Arbitration Boards, promote the resolution of industrial difficulties without recourse to industrial action.
The powers and duties of the Industrial Relations Commission were able to be exercised by either the President sitting alone (referred to as the Commission in Court session), the President and both Commissioners sitting together (referred to as the Commission in full session) or one Commissioner sitting alone. The powers vested in the President sitting alone were exercised as a result of his/her qualification to be appointed a Judge of the Supreme Court.
The Commission in full session could hear and determine:
applications for the constitution or abolition of a Board
applications for the jurisdiction of a Board to be increased or reduced
applications for the interpretation of an award or registered agreement
any industrial matter referred by the Minister, a Board or the Chairman of a Board
appeals against awards made by the Conciliation and Arbitration Boards
appeals against the decision of the registrar to recognise or refuse to recognise an industrial association
matters relating to the recognition of industrial associations
applications to revoke the registration of an industrial agreement.
The Commission in Court session could hear and determine:
appeals against convictions by a Magistrates Court for an offence against the Industrial Relations Act, the Labour and Industry Act or the Industrial Training Act
applications by industrial associations to convene a meeting of a Board
appeals against decisions of the secretary to refuse to register or to cancel the registration of any factory or shop or market site.
A Commissioner sitting alone could hear and determine any industrial dispute or matter referred to the Commission as directed by the President of the Commission.
Under the 1979 Act, Conciliation and Arbitration Boards (VA 1010) were able to be established by the Commission for any trade, branch of a trade, or group of trades. These Boards replaced the Wages Boards and had power to make an Award relating to any industrial matter concerning the trade for which they were appointed. The matters most often dealt with were:
days and hours of work
pay and wages
privileges and rights of employers/employees
terms and conditions of employment
The Industrial Relations Commission oversaw these Boards and had the power to create or abolish Boards and to define, vary or extend the area of jurisdiction of any Board.
Under the Industrial Relations Act 1979 any association of employers or employees could apply to be recognised as an association with respect to any trade or trades for which a Conciliation and Arbitration Board had been constituted. Applications for recognition as an association were required to be lodged with the Registrar of the Industrial Relations Commission. Recognition gave the association the right to nominate members for appointment to Boards, to appear before the Commission or a Board and to enter into industrial agreements. Recognition under this Act did not confer corporate status on an association.
Industrial agreements between recognised associations of employers and/or employees were required to be filed with the Registrar and, if approved by the Commission, were to be registered.
The Industrial Relations (Miscellaneous Amendments) Act 1987 (No.94/1987) was passed on 30 April 1987 and incorporated some of the recommendations of the Marshall Inquiry into the Delivery of Services by the Industrial Relations Commission.
The determination of terms and conditions of employment of academic and teaching staff of Colleges of Advanced Education, Technical and Further Education Colleges and the Council of Adult Education was undertaken by a Tribunal responsible to the Minister of Education (VRG 35). As part of a policy of rationalisation of State-regulated industrial jurisdictions the Post-Secondary Education Remuneration Tribunal was abolished under the Post-Secondary Education Remuneration Tribunal (Repeal) Act 1986. The Act, which came into operation on 6 November 1986, transferred functions of the Tribunal to the Industrial Relations Commission.
Determinations relating to members of the Public Service, the Teaching Service and the Police Service were made by bodies specifically appointed by Statute for this function. These functions have not been the responsibility of the Labour and Industry ministries.
1992 to ct
Significant reform of the industrial relations system occurred under the Industrial Relations (Enterprise Bargaining) Act 1992 which has restored a system of individual contracts of service between employer and employee. The Conciliation and Arbitration Boards were abolished under this Act and Awards or orders of a Board or any proceeding before a Board were to be treated as if they were awards or proceedings of the Industrial Relations Commission. The Act also provided for the Commission to certify employment agreements relating to industrial matters. Such agreements were enforceable as Awards and could prevail over Awards in the case of inconsistencies.
In October 1992 responsibility for all Acts administered by the Minister for Labour (VRG 42) was transferred to the Minister for Industry and Employment.
The reform of the industrial relations system was continued with the Employee Relations Act 1992, operative from 1 March 1993. The Act establishes the Employee Relations Commission as successor to the Industrial Relations Commission and provides for a deregulated system placing greater onus on individual employers and employees, or their representatives, to negotiate the terms and conditions of employment. Collective and individual employment agreements are the basis of the new system. These agreements have replaced the certified agreements provided for in the Industrial Relations (Enterprise Bargaining) Act 1992. Awards can still be made by the Employee Relations Commission through a process of arbitration, however, employment agreements prevail over Awards which are inconsistent with them and employment agreements may also provide that some or all of the provisions of an Award shall not apply.
Minimum employment conditions are still provided for in the legislation. The Chief Commission Administration Officer of the Employee Relations Commission is vested with power to issue certificates of exemption from these minimum terms and conditions to aged, slow or infirm workers and to certain students undertaking training in a work situation.
The Employee Relations Act 1992 which replaced the Industrial Relations Act 1979 provides for associations of employers or employees to be recognised through registration with the Chief Commission Administration Officer. The Act also empowers the Chief Commission Administration Officer to register unions under the Trade Unions Act 1958.
The Employee Relations Act 1992, like the Industrial Relations Act 1979 before it, has as its prime object the settlement of disputed industrial matters.
The functions of the Commission, as stated in the Act, are:
to facilitate the prompt settlement of industrial matters and disputes in a fair manner by agreement, mediation, conciliation, and arbitration with the minimum of legal form and technicality
to facilitate the prevention of industrial disputes.
The Employee Relations Commission can sit in two forms, either as the Commission in Full Session or as a single member of the Commission. Only the Commission in Full Session may make, vary or revoke certain awards (ie. awards in relation to standard hours of work, rates of pay, where based on grounds related to the Victorian economy and annual leave with pay). The President of the Commission can also divide the members of the Commission into panels and assign an industry to a panel.
The Commission is vested with responsibility to do one or more of the following with respect to industrial matters:
attempt to settle the matter or dispute informally
mediate between the parties to the dispute
attempt to conciliate the matter or dispute
arbitrate the matter or dispute
make an award in relation to any matter or dispute
vary or revoke an award
hear and determine appeals against awards made by a single member of the Commission, against decisions by a single member not to make an award and against decisions by a single member relating to the recognition of employee associations. Appeals are made to the Commission in Full Session.
Other provisions in the Act empower the Commission to enter and inspect any workplace and to inspect the employment records at the workplace.
Administrative support and registry services to the Commission are provided by the Commission Administration Office established under the Act. Functions of the Office as stated in the Act are:
to keep a register of recognised associations
to investigate associations of employers or employees and make recommendations concerning their rights and obligations under the Act
to assist recognised associations and individuals concerning their rights and obligations under the Act
to maintain and make available for inspection up-to-date copies of awards made by the Commission
to keep a register of collective employment agreements.
The Chief Commission Administration Officer can also appoint and authorise inspectors to undertake inspections and interviews to ensure that awards, employment agreements, orders, rules and regulations made pursuant to the Act are complied with.
The Act also provides for the establishment of the Industrial Division of the Magistrates Court as successor to the Metropolitan Industrial Court. The Industrial Division of the Magistrates Court is vested with power to hear and determine claims of breaches of employment agreements, to hear cases of unlawful industrial action, to hear disputes concerning long service leave and to undertake proceedings for other offences under the Act.