Review of Australian Arbitration and Industrial Relation Perspectives - Essay Example

Insert your name here Year: 2008 Title: Review of Australian Arbitration and Industrial Relation Perspectives By: Michael Wacheke Date: 22nd November 2008 Arbitration is the hearing and the deciding of a case by a referee who is chosen by the parties in dispute. It is a better way of solving disputes since it is faster and there is enough time and chance for the hearing thus both sides get an equal chance to prove their cases. In Australia many industries decide to go through arbitration instead of going through the court system while they have an industrial relations dispute. This is mainly because the industries fall into disputes due to a mistake in the payments where the figures paid to the employee could be wrong. This implies that the industry which is the employer in such a case and the employee are still in a good relationship only that there is an issue that both parties do not agree about. This makes the industry to seek hearing and they go to an arbitrator’s chamber where each is given a chance to prove their case. The arbitrators use the law and the only difference between arbitral hearing and a court hearing is that the arbitral hearing does not take place in court (Bennett 2002). The labour court in Australia started in year 1904 and then it was called Commonwealth court of reconciliation and arbitration since then it has been a major helper of industries when they fall into industrial dispute since the arbitrators have been assisting not only in the dispute solution but also in the reconciliation of the disputing parties. It has nurtured the industrial relations though there have been problems that have been realized as a result of taking industrial disputes to the arbitration chambers but 104 years down the line, arbitration in Australia is still considered among the best ways of solving industrial relation disputes. This has enabled arbitration to have an impact on the economy of Australian and this is a very great way of uniting industries. Some of the cases of industrial relations were as a result of oppression of the workers and this made the industries to turn to the arbitrators to avoid the wrath of worker’s unions and other labour organizations. With the introduction of international arbitration in the 80s there has been an improvement in the handling of industrial relation disputes since the Australian arbitrators have learnt better and more efficient ways of handling industrial relation disputes (Macintyre & Isaac 2004) . In the past, industrial relations arbitration was mainly hindered by the lack of expertise and the emergence of different cases and therefore the arbitrators had to use the law in a rigid way that at times left either the employee or the employer scathed. However, this has changed and off late there are better ways that the industrial relations are nurtured even when the case decision does not favour one party. This is by enabling a good rapport between the employees and the management and so when the arbitrators are solving an industrial dispute, both parties are already friendly and this prepares them psychologically for the arbitrator’s decision. The lack of expertise used to make the arbitrators make absurd decisions that were either based on the arbitrators point of view or on the existing law but as time continued, the law was changed and it provided for more cases, precedents were set that served as points of reference to the arbitrators and the arbitrators specialized in their work and in jurisprudence and this enabled them to give equitable awards (Fitch 1989). The perspectives of arbitrators that were there in the past have changed as a result of diversification of the arbitral practice and the arbitrators are extra careful nowadays and they strive to ensure that justice takes its course regardless of their perspectives. They are however allowed to deviate from the precedents but not from the law in their decision making process but this depends on the specialty of the facts that characterize a case (Elkouri & Elkouri 2003) . The past has contributed greatly to the present in industrial relations since it has enabled the setting of precedents that are used up to dare even by judges. Arbitration has recognized flaws in the industrial laws and the arbitrators have suggested amendments and this has greatly assisted the industrial sector in execution of equitable decisions in arbitral chambers. The computer era has also seen a change in the arbitration since off late there are cases that are being read online after the decision is deemed unique and worth being read by people for a reference to other cases. Placement of the Australian arbitral cases that have put precedent online has taken the arbitration to another level and employees can also confer to the arbitral precedents when they want to predict the outcome of a case that has similar facts. In a case where there is mistreatment of the workers, there has always been the active involvement of the trade unions and other worker’s unions in fighting for the rights of the workers. These unions have also ensured an improvement in the course of justice that is sought by arbitration and this has enabled the arbitration to have an impression that depicts reliability and equity (Fitch 1989). Fitch has shown examples where the arbitration has helped in solving complex disputes and the way the process has remained the same despite the changes in technology and developments in Australia. Arbitration comes as a relief to many employers and in most cases after the arbitration has solved a case, there is an improved relationship between the employers. This is because both parties feel that they have had an equal chance and once the dispute is solved they are in good terms again. Since in the industrial world many industries rely on the employees for production, there could be a problem maybe in the provision of allowances and other employee incentives and when the employees do not get their benefits it could lead to an industrial dispute. When such a case is taken to an arbitrator, the mediator may decide to get to the root cause of the problem where the employer may be put to task to explain why they are depriving their employee off their right and when the employer explains, the disputes ends there are then and both parties will understand each other. Instead, they will be more effective in the way they handle business between themselves and this improves the industrial relations (Fitch 1989). Advantages of arbitration in Australian industrial relations Arbitration in Australia has played an important role all along since apart from improving the relations between employers and employees there are other advantages that are attached top the arbitration process and its stand towards the industrial relation disputes. These advantages have been realized as a result of the improvement in the laws of Australia and they include: It saves time and resources since it provides instant solutions – when industries take their cases to arbitrators they are charged less than what they pay in court since at the arbitral chambers, it is not a must for one to have an attorney. There are no other payments that are involved in the arbitral chambers save for the award that is given to the party that has won and this comes as an expense only to the losing party. Costs are thus a major reason why both the employers and the employees opt for this method of case solution. The awarding is done promptly and this enables the employer and the employee to continue working thus arbitration promotes productivity through its efficiency (Jones 2008) . The case is taken with the seriousness it deserves – in court, there are many cases and a case may take several months before the hearing. This is mainly due to adjournments that arise when there are absent witnesses who have information that is needed in court. As a result of this, courts do not research deeply into the facts behind a case and the decision made by the court judge is made by the evidence that is available in court. In such a case, the court decision may be unfair and this is because the court does not have the time to research the facts for that case. This is not the case at the arbitral chambers since the employers and the employees who take cases to the arbitrators ensure that they have all the information they could need to prove their case at hand(Nolan 1998). Saves time for the courts too since it reduces the workload – this is an advantage to the courts since the arbitrators help the judges to reduce their workload and this avoids congestion in courts. Since the arbitrator’s perspectives in many cases have been influenced by the decisions that judges had made earlier on in other industrial cases, the arbitration process of Australia has enabled consistency in the law and in the decision making process as well as the execution of justice(Nolan 1998). References Ronald Fitch, 1989, Commercial Arbitration in the Australian Construction Industry Annandale, Federation Press Stuart Macintyre, Joseph Ezra Isaac 2004, The New Province for Law and Order: 100 Years of Australian Industrial Conciliation and Arbitration, London, Cambridge University Press Steven C. Bennett, 2002, Arbitration: Essential Concepts Arizona ALM Publishing Frank Elkouri, Edna Asper Elkouri, Alan Miles Ruben, American Bar Association (Committee on Alternative Dispute Resolution in Labour and Employment Law), 2003, How Arbitration Works, Washington, BNA Books Dennis R. Nolan 1998, The Australasian Labour Law Reforms: Australia and New Zealand at the End of the Twentieth Century, Annandale, Federation Press Doug Jones, 2008, Australia: building amore user-friendly arbitration Available from http://www.mondaq.com/article.asp?articleid=69292 [22nd November 2008] Read More