BOOK REVIEW

“A Prince among Men”

 PRINCE ALBERT, the man who saved the monarchy.

 by A.N. Wilson

Atlantic Books (2019)

Prince Albert was born more than 200 years ago and died at the relatively young age of 42.  How then is A.N. Wilson’s biography of Queen Victoria’s husband, Prince Albert, of any interest to us today?

In order to fully appreciate the world we live in, we need to understand the forces which shaped it.  Prince Albert’s achievements and failures were major contributors to the making of our world.

Prince Albert played a significant part in helping to transform Britain from an agricultural society to the world’s greatest industrial and trading power. Relevantly, for the readers of Workplace Review the Industrial Revolution necessitated the development of employment and safe factory laws to mitigate the Dickensian working conditions and to temper the rigour of the common law’s attitude to the rights of ‘servants’ vis-à-vis their ‘masters’.These laws established in Britain in the 19^th century were largely adopted by the legislatures of the self-governing colonies of Australia.

A.N. Wilson is an authority on the Victorian era.  His most recent book is a biography of Charles Dickens, other books include “The Victorians” and a biography of Queen Victoria herself.

Prince Albert of Saxe-Coburg and Gotha, was born in 1819, the youngest son of a German Prince of a small German duchy, Albert’s parents’ marriage was turbulent and ended in divorce. Albert’s father “openly mocking the marriage bed with a succession of women”, no doubt making Albert determined to preside over a very different and orderly family life.

Notwithstanding that Victoria and Albert were cousins, they married in 1840. He became the Prince Consort.   At the time, Victoria was devoted to Lord Melbourne her Whig Prime Minister.  As the author comments “All British monarchs in the last century had sided with one particular grouping or another”. (see page 101)  Victoria believed ‘the Whigs are the only safe and loyal people.” (p.101)

In 1848 many of the European powers were racked by revolutionary fervour. Albert believed that the monarchy could only be saved from revolution by not being tied to one party and being seen to be non-partisan.  The Government and Prime Minister were to serve at the behest of Parliament.  No matter who Albert and Victoria preferred as Prime Minister, it was to be the decision of the parliamentary majority.  For example, although Victoria and Albert never cast aside their faith in Robert Peel, when he lost his majority in Parliament his successor took the oath of Prime Minister without any royal objection.

Albert led a busy life. He  was elected Chancellor of Cambridge University in 1847, defeating a rival candidate, the Earl of Powis “A staggeringly undistinguished person”. (p.172)

Together with other reformers, he expanded the subjects available and modernised university education.

The Great Exhibition of 1851 opened by Queen Victoria and held in the glass building, the Crystal Palace, is forever associated with Prince Albert:

“The Exhibition was not, primarily, his idea and he had to be persuaded to give it his backing.  When he had done so, however, his influence was a major contributor to his success.  And the marriage which it demonstrated, between the Prince and the emergent wealth-producers of the world, was a decisive factor in the stabilising and strengthening of the monarchy for the future.  Old Tories like Sibthorp would have seen monarchies belonging unequivocally with the old world which modern history and a burgeoning bourgeoisie destroyed.  Marx and his followers saw the industrial struggle as one which would inevitably destroy his thrones and altars.  Prince Albert’s embrace of industrial technology not only defied both these extremes of view.  It led to such an acquisition of wealth by the Royal Commission for the Exhibition of 1851 that he was able to leave behind his one unquestionable legacy: the Albertopolis in South Kensington, a complex of concert halls, museums and colleges which, to this day, directly benefit from the money raised by the Exhibition.  So, in any consideration of Albert’s life the Exhibition must be central.” (pp222-223)

Albert was determined his family life needed to be seen as exemplary.  Victoria and Albert, by their frequent self-exposure in photography and painted portraits were models of family rectitude. The depiction and reality were quite different.

Victoria was a prolific diarist and letter writer.  The author gives an estimation that her written records were printed and bound in one book form there would be 700 volumes.  The writings contained often acerbic opinions of her children.

Both Victoria and Albert were strong characters.  Even though they were often at odds, Victoria never ceased loving Albert.  However, having nine children she hated the loss of control and the attendant crippling depression, which the experience of childbirth had on her.  Albert, as Consort, was happy and willing to exercise the extra power which the Queen’s indisposition brought.

Albert’s many achievements have made for a better world today.  However, his failure of his vision for a united liberal Germany and a peaceful Europe had dire consequences.  As the author observes, the dynastic marriages he planned for his children did not spread peace and a constitutional monarchy on a British model.  Militarism and nationalism played a larger part in bringing about the horror of World War I.

Albert suffered from chronic, poor health.  In contrast to many of his royal ancestors and contemporaries who often led extravagant and wanton lives,  Albert pursued and loved work which further undermined his weak constitution.

Finally, the author pays tribute to Albert in writing that the people who mourned his death were “…those who made the nineteenth century as a glory-age  for Great Britain, the engineers, the scientists, the university reformers, the museum curators, the art historians, the social reformers, the city planners, the philanthropists, the choral societies and orchestras, the librarians.” (pp384-385)

He truly deserved the sobriquet, Albert the Good.

Malcolm Kerr,OAM was a Sydney barrister and the State member for Cronulla (1984-2011)

A Pandemic amongst the Sandstone

During the late 2nd century, the Antonine Plague crippled the Ancient Roman Empire at the very peak of its power. Believed to have been brought back by Roman legions from military campaigns along the Silk Road, the Antonine lasted over 15 years and killed around a third of the population in certain areas. Some historians have marked the pandemic in antiquity as the beginning of Rome’s famous decline. Others prefer to view it as evidence of the Roman people’s resolve, foregrounding the Empire’s rebirth and ability to rule beyond the plague for another two and a half centuries. While interpretations of the pandemic may differ, historians concur on one key point: life after Antonine for the Roman people was never the same.

Like Antonine, the COVID-19 pandemic of 2020 will undoubtedly be remembered throughout history. It is now clear that the virus has not only created a historical global health crisis, but also an economic one. From a legal perspective, we have seen major disruptions to both the commercial industry as well as the courtroom, lawyers were asked to work from home and hearings moved to online platforms, both with varied degrees of success. The classroom has been no different.

As a law student at the University of Sydney, I can attest to the drastic changes that have been made to way students are ‘learning the law’ during the pandemic. In March, as the virus continued to spread, the University of Sydney effectively closed its campus; facilities like libraries and gyms were shut and all lectures and tutorial classes were substituted for online recordings or live video calls. With these changes, many students like myself found it more difficult to maintain motivated study, exacerbated by stress induced by the pandemic and a less tangible link to University life. Not only were students no longer attending classes, catching up with friends (both on and outside of campus) was prevented by social distancing requirements, suppressing the enjoyable, social side of University life. International and inter-state students were faced with the additional complexity of border closures and travel restrictions. For me, it was an ultimatum between packing a bag and rushing to the Queensland border or hunkering down and waiting out an unforecastable storm in Sydney!

As someone who prefers routine face-to-face learning, the new laissez faire online approach was a challenge, though not without its perks. Online learning certainly provided students with more flexibility, specifically, the freedom to complete content in their own time, study from the convenience of their own homes and, a personal favourite, wake up 10 minutes before their online classes (which I had certainly been guilty of on occasion even prior to the pandemic). Gone was the Monday 10:30–10:35 race across campus between International Law and Financial Valuations classes! However, I soon realised that the online classroom was imperfect, even if I could take part in it from the comfort of my own PJs. I missed participating directly with my tutors and fellow classmates. I missed asking questions without having to press the unmute button and interrupt awkwardly. I missed a certain sense of engagement I could seemingly only find on USYD campus. While I admit I was impressed by the ability of technologies like Zoom to facilitate a classroom-like environment, a certain ingredient of the learning process was lacking, leaving me ‘full’, yet never satisfied. Slowly, online classes began to lose their initial charm.

However, as I (like others) grew more familiar with the online environment I began to adapt. I learned to accept that digital learning was never going to be the same as it was in person, and I stopped focusing so much on its limitations. It was clear that the University was making the most of a bad situation to which there was no better alternative. Indeed, some of my friends studying more practical-based disciplines such a physiotherapy or electrical engineering surely had it worse. Perhaps I was just being too harsh. The frictions involved with online learning were unpopular, but certainly not intolerable.

It was with this gradual adjustment to online learning that my peers and I came to contemplate important questions surrounding the value of digital education more seriously. Questions that are becoming increasingly relevant against the backdrop of the education industry’s shift toward more flexible online learning over the past decade. However, as technologies continue to advance, could COVID-19 serve as a catalyst for the further adoption of online learning platforms? I find the prospect as intimidating as it is exciting. Clearly, digitalisation has both benefits and limitations. Online learning may have the potential to provide more flexible education, with greater reach at lower costs but I have found it comes with a trade-off in personal development and interpersonal relationships. For me, exclusively online learning lacks the required balance between both.

Ultimately, it seems in the current climate there is extraordinarily little we can be sure of. However, if we are to heed the teachings of antiquity, one thing we can be certain of is change. Indeed, it is safe to forecast that as we begin to emerge into the post-COVID environment, of which the details are still blurry, our workplaces, our courtrooms and our classrooms, like those of the Romans, will never be the same.

I think the writings of Marcus Aurelius, ruler of the Roman Empire during the Antonine, are be particularly pertinent. Aurelius described change as a ‘river’, with a ‘strong current’ in which much of the old is eventually ‘swept away’. COVID-19 has caused a tidal-wave’s worth of changes. Yet the elements of our classrooms, workplaces and courtrooms which will remain in place once the water subsides is yet to be determined. I think if we are to ensure that our ‘new world’ following COVID-19 leads not to a Romanesque decline but instead a progressive rebirth we must carefully chose the things we allow to be swept away.

Oscar Pursey

Third Year Commerce and Law student,

University of Sydney

ring rust (n) ( 20^th century) a collective noun; a colloquial expression from the sport of boxing to describe a boxer who has not had a fight for many months.

The sport of boxing has supplied many expressions which have wider application. Examples being,’throw the towel in’, ’on the ropes’ and ‘down for the count’. A boxer with ‘ring rust’ is at acute vulnerability the next time he or she steps into the ring for a fight. The most challenging time is the first few rounds of the bout. I feel the same applies to a barrister after a long holiday and the first serious case back in court. Like boxing successful litigation requires you to have good reflexes and to be ‘on your toes’. As I get older the ‘ring rust’ after the summer holidays seems more debilitating.

Congratulations to Melbourne barrister Stuart Wood,QC who was recognised in the Australia Day Honours’ list for services to industrial relations and the law. Stuart was the subject of a Workplace Review interview found at Volume 9 WR 39. Well done Stuart Wood, AM, QC!

Talking of my years at the bar this year marks my thirty seventh year in full time continuous practice. Last Friday night I had the pleasure to attend Max Kimber, SC’s celebration of forty years as a barrister. Max has had a wonderful career at the bar particularly in the area of employment law and industrial relations. He was made silk in 1999. He has become one Australia’s most talented and successful mediators.

As a student at the University of New South  Wales he was lectured by Richard Kenzie,QC who spoke at Max’s party. He spoke of Max as one of those students whom lecturers fear… intelligent, irreverent and opinionated. Attending the celebration amongst many of his friends and colleagues was the deputy Chief Justice of the Family Law Court and former Federal Attorney General, Robert McClelland. McClelland and Kimber have known each other since high school days when they respectively attended Blakehurst and North Kingsgrove High Schools in the St George area of Sydney. Their paths crossed when they were both involved in high school musical theatre. As the celebration continued a number of show tunes were belted out to prove that neither of them had lost their musical talent.

Murray Wilcox not only was a barrister and judge but was a committed environmentalist and was president of the Australian Conservation Foundation 1979-1984. From 1984 to 2006 he was a judge on the Federal Court and was the only Chief Justice of the short-lived Industrial Relations Court of Australia. He was an outstanding judge always courteous to counsel even when probing the most novel of arguments. I recall once appearing before him at a directions hearing in a union demarcation dispute. After some argument the case required some dates to be allocated for its hearing. The other side was represented by its solicitor, Mr Stephen Boatswain who had instructed Stephen Rothman, SC for the hearing. Mr Boatswain said, “ I am sorry your Honour  I don’t have Mr Rothman’s diary. Somewhat waspishly his Honour replied,” Mr Rothman’s diary! That’s a book I would love to read.”

Paul Murphy throughout his sixty six years had many jobs and careers. Selling flowers as a schoolboy for his father, a high school teacher, a flight attendant, a public servant, a trade union official, a lecturer and a solicitor. As a solicitor he became a specialist in employment and industrial law. Before he set up his own law firm he had worked for W G McNally, Jones, Staff & Company. He was involved in the celebrated age discrimination case QANTAS Airways Ltd v Christie (1998) 193 CLR 280. He was a delight to appear for and against.

Jeffrey Phillips, SC

State Chambers

THE King’s Shilling Mark 2

HISTORY OF WAGE SETTING IN AUSTRALIA

 and its relevance for the determination of military remuneration 

1. The purpose in providing a history of wage setting in Australia relates to understanding the context and special role played by the Defence Force Remuneration Tribunal (DFRT) when in accordance with its statutory powers it determines  military remuneration in Australia.  Last year at this induction training day I delivered a paper entitled The King’s Shilling, Military Industrial Relations in Australia.  That paper has been published in Thompson Reuters quarterly journal, Workplace Review.[1]
2. In that paper, I set out the origins of the DFRT and the powers it holds with respect to its function to determine the salaries and allowances of members of the Australian Defence Force (ADF). In particular, its powers are to be found in s58H of the Defence Act 1903 (the Act), in particular s58H(2) which reads:

“The Tribunal shall, as provided for by this section:

(a)       Inquire into and determine the salaries and relevant allowances to be paid to members.”

1. In making these determinations, the DFRT was instructed to have regard to s58K(7) of the Act which reads:

“The Tribunal shall, in making a determination, have regard to:

(a)       Any decision of, or principles established by, the FWC that is or are relevant to the making of the determination; or

(b)       If the FWC has not yet made any such decision or established any such principles, any decision of, or principles established by, the AIRC (that is or are relevant to the making of the determination).”

1. The reference to the FWC is to the Fair Work Commission; and the reference to the AIRC is to its predecessor body called the Australian Industrial Relations Commission.
2. Over time, the DFRT has established its own jurisprudence, that is, its own way of formulating how it makes its determinations for members of the ADF.  In the article last year I stated as follows:

“Even though the procedure in s58K(7) refers to principles established by the Fair Work Commission, the Fair Work Commission’s principles under the Fair Work Act do not have as much relevance as the principles formerly established by its predecessor organisation, the Australian Industrial Relations Commission.  This is so because the Fair Work Commission operates on a different basis to previous Acts such as the Commonwealth Conciliation and Arbitration Act 1904 (Cth) and the Industrial Relations Act 1988 (Cth). The Fair Work Act, in the formulation of wages and conditions at an enterprise level, has a focus on bargaining and permits protected industrial action, two matters which are contrary to military discipline.”[2]

1. Accordingly, an understanding of the history of wage setting inAustraliagoing back before the Federation of the States into the Commonwealth of Australia is relevant to understand what might guide members of the DFRT in determining salaries and allowances.  This is particularly so when one considers that the membership of the DFRT has as its President a person who is a Deputy President of the Fair Work Commission and a lay member who was appointed because of that person’s extensive industrial relations experience.  In addition to those two persons, there is also a retired service member who is able to add his or her experience having been a senior officer in one of the branches of the ADF.
2. This paper does not purport to set out a full history of wage setting in Australia, many scholarly books have been written on that topic .This paper’s purpose is somewhat more modest. It seeks to describe general concepts  which have some relevance to proceedings before the DFRT.
3. An important matter to keep in mind is that members of the ADF are not employees but serve the Crown at its pleasure, subject to the Act and various Defence regulations.[3] The use which one can derive from the history of wage setting in Australia for employees is because one needs to have regard to how employees are regulated. This is in accordance with of the statutory instruction given to the DFRT by s.58K(2)  the Act and by way of analogy.

Prior to Federation

1. Prior to the Federation of the States to form the Commonwealth of Australia, the States were independent self-governing colonies.  With respect to industrial relations matters, the contract of employment between employers and employees was essentially governed by the common law, that is, the common law dealing with contracts as derived   from the laws of England.  In the nineteenth century various Australian colonial Parliaments followed what was happening in England and  started to pass legislation which modified the harsh effects of the common law with respect to the relations between an employer and an employee, although in those days referred to quaintly as a relationship of  ‘master and servant’. The altered terminology reflected the changing dynamic in the employment relationship brought about by statutory intervention.
2. The legislation passed by the self-governing colonies or States ameliorated the contractual imbalance between master and servant, by imposing minimum wage standards and protections to workers.  This was done on the basis that was recognised there was an inequality of bargaining power between employers, particular large ones, and individual workers.  The rise of the trade union movement in England and subsequently in the self-governing colonies is reflected in the greater protection given to workers. The latter part of the nineteenth century was also a time of strikes and other industrial turmoil. Such strikes required an enduring settlement outside of the normal civil and criminal sanctions for strike action under the common law. At common law strike action is potentially a breach of contract and therefore unlawful. The enduring settlement of disputes was necessary because of the on-going need for workers to continue to earn their wages by the supply of their labour and employers need for that labour. Accordingly specialist tribunals were set up, by legislation, to conciliate (i.e., settle or mediate disputes) and to determine or arbitrate a result should conciliation fail.
3. Industrial tribunals arbitrated or determined minimum wage standards and conditions as found in the terms of industrial awards which applied to a particular industry or calling.  When the States combined to form the Commonwealth of Australia, they did so under the Australian Constitution (the Constitution)  and in particular,  industrial relations were in part to be regulated by legislation of the Commonwealth Parliament by use of s.51(xxxv) of the Constitution.  That part of the Constitution has been referred to as the ‘industrial power’. It permitted the Commonwealth Parliament to make laws with respect to industrial relations on originally a limited basis. The States continued to play a significant role in their own right with respect to intra-State industrial relations.
4. The relevant industrial power under the Constitution is found in s51(xxxv) it reads:

“The Parliament shall, subject to the Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to … 

…… (xxxv) Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State…..”

After Federation

1. Within a short period after Federation the Commonwealth Parliament enacted the Conciliation and Arbitration Act 1904 which set up the Commonwealth Court of Conciliation and Arbitration which had both arbitral and judicial roles until the High Court in R v Kirby; ex parte Boilermaker Society of Australia [1956] ALR 163; 94 CLR 254 held that the mixing of the arbitral  and  judicial    function in one tribunal was not permitted by the Constitution. The difference between an arbitral role and a judicial one is that an arbitral body creates new rights whereas a judicial body enforces existing rights. The making of an industrial award is an exercise of an arbitral power. The DFRT is an arbitral body in that it creates by its decision new salaries and allowances or increases existing salaries and allowances within its limited jurisdiction. It is not a court that exercises any judicial function.
2. The industrial power under the Conciliation and Arbitration Act 1904 was limited in that it was only designed to resolve industrial disputes which extended beyond the limits of any one State. Although the original intention of these words were extended by various decisions of the High Court of Australia which widened the federal industrial power. However,, the powers of the various tribunals set up by the States to resolve internal industrial disputes continued to play a significant role in industrial relations in Australia . A significant shift occurred under the Workplace Relations (Work Choices) Amendments by the Howard Liberal National Party Government.  The so-called Work Choices legislation  continued into the Fair Work Act no longer relied upon the Constitution’s limited ‘industrial power’, but relied upon a broader power  referred to as the ‘corporations’ power’ under s.51(xx) of the Constitution.
3. Section 51(xx) provided for the following:

“The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to (xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth; …”

1. In due course the States ultimately , voluntarily surrendered other industrial powers which related to other entities (e.g. partnerships,sole traders,unincorporated associations and trusts) which were not corporations, save for State public sector and local government employees (except Victoria where no Industrial Commission exists).
2.  Within a very short period of time the State Industrial Relations Commissions have been reduced to merely looking after State public sector employees and local government employees in New South Wales, wherein some States such as Victoria there is no independent Industrial Relations Commission.
3.  The WorkChoices’ legislation effectively nationalised the industrial relations system in this country.

Principles used by the Fair Work Commission and its predecessors

1. A number of principles used by the Fair Work Commission and its predecessors have a role to play with respect to the functions exercised by the DFRT.

Awards

1. When a particular case is brought before the DFRT to establish a new work category or an increase to salary or allowance to an existing category or group, it is little different to the award making powers exercised by  Federal or State industrial tribunals. A determination made by the DFRT is like the making of an award by an industrial tribunal. Award making has been one of the core activities of industrial tribunals’ when exercising an arbitral role. An award is an instrument made by an industrial tribunal which sets the wages and conditions regulating the work of employees in the particular craft, industry or occupation to which the award relates. Another way of looking at the award or DFRT determination process is that it a piece delegated legislation  arising out of its particular statute.
2. In Australia, awards are made by industrial authorities constituted either under the Fair Work Act or its predecessor Commonwealth legislation or State industrial statutes. In all cases, the terms of an award must be observed as a minimum by the parties bound by it. Any contract which provides wages and conditions below what is provided by the award is ineffective.
3.   Awards could be made to cover employees in particular crafts or callings, for example, carpenters , plumbers or nurses .Awards may be industry-based in order to cover all employees in a particular industry or section of industry, irrespective of their craft or occupation, for example, the power generation, retail  or maritime industries. The terms of most awards cover a similar range of subject matters with differences in classifications, pay rates and conditions.  The terms in relation to each subject matter covered may differ widely as each occupation or industry has its own particular features which may require special attention, regulation or qualifications. [4] 
4. In determining either the settlement of industrial disputes or determining what should be fair remuneration and conditions for employees, from time-to-time the Federal tribunal and the State tribunals have been guided by various changing principles.
5. Similarly the DFRT makes decisions which apply salary and allowances to particular ADF members, groups or categories.

The industrial power produces a living wage and fairness

1. In the  WorkChoices case  in the High Court, NSW v The Commonwealth (2006) 231 ALR 1, Mr Justice Kirby wrote about the ‘industrial  power’ in s51(xxxv) of the Constitution.  He said that it was designed to protect industrial fairness.  He referred to an early decision of the Commonwealth Court of Conciliation and Arbitration, and at paragraph [524] said this:

“The story can be traced back to at least the decision of Higgins J in ex parte HV McKay (1907) 2 CAR 1 (the Harvester Case) which, with his successors, had a profound effect upon the wages and conditions of life of Australian workers and their families.  But it also extended to decisions concerning standard hours of work; the principle of equal pay for women workers; fairness and training requirements in the conditions of juniors and apprentices and the removal of discriminatory employment conditions for Aboriginals.  The regulation of excessive overtime to compensate workers and to encourage employers to a better system of organising work; the introduction of bereavement or compassionate leave entitlements; the introduction of provisions for retrenchments or redundancies; and reinstatement in case of unfair termination are just some of the matters arising in industrial disputes in Australia decided by a process of Federal conciliation and arbitration over the course of a century.  Work value cases frequently ensured attention to the provision of fair wages for manual and other vulnerable workers which market forces and corporate decisions alone would probably not have secured.  Attention to particular conditions of work, including arduous, distressing, disagreeable, dirty or offensive work, instilled in Australian work standards and egalitarian principle not always present in the pure operation of the market or the laws and practices of other countries.

[525] The effect of this history, clearly anticipated by the language of the grant of constitutional power in s51(xxxv), profoundly affected the conditions of employment, enhancement of ordinary life, of millions of Australians.  It did so in the years following Federation, and indeed until very recently.  Inherent in the guarantee and procedures of conciliation and arbitration was transparent process, decided in a public procedure which could be subjected to appeal and review, reason criticism and continuous evolution.”

1. The relevance of the Harvester decision was that Justice Higgins established a ‘living wage’ which set   a fair and reasonable wage having regard to the needs of a family of five and also the rates being paid at the time by reputable employers to unskilled labourers.[5]

Margins for skill and features of the work

1. Margins for skill above the basic wage became an important part of wage fixation , see  the Metal Trades Case re Margins[6] as follows:

“Margins are minimum amounts awarded above the basic wage to particular classifications of employees for the features attaching to their work which justified payments above the basic wage, whether those features are the skill or experience required for the performance of that work, it’s particularly the laborious nature, or the disabilities attached to its performance.  Furthermore, the assessment of each margin should be made in relation to each other margin, so that the margin awarded to one employee should bear, as far as possible, its proper monetary comparison with that of every other employee awarded a margin, having in mind the various matters which in each case should be weighed in assessing the margin.

…

In assessing margins it may be, of course, relevant to consider history, past expressions of wage fixation and the economics both of industry generally, and of the particular industry, but it is vital, in order to try to attain industrial justice where there is a contest, to have information about the work done and the conditions under which it is done.”

1. In an earlier case dealing with margins, Justice Beeby, in the Metal Trades Case[7] said as follows:

“I have never agreed that margins for skill should be uniform in all occupations.  Some callings call for more intensive training and more knowledge than others.  Independent investigation of differing industries is necessary in assessing margins for degrees of skill, knowledge and experience.

My decision in this group of industries is not to be taken as an opinion that margins in all industries should be similarly assessed.

…

The fixation of margins must necessarily be arbitrary.  There is no measuring rod for ascertaining the relative value of skilled, semi-skilled or unskilled labour. An assessment can only be based on consideration of the past practices and changes in methods of production.

…”

1. In the Remuneration Reform Project,  heard between February 2003 and December 2005, with a date of effect of 1 July 2006, the DFRT said this by way of background:

“The Officer’s Common Scale (OCS) was introduced in 1948, applying an ‘all of one company’ philosophy to the profession of arms in the ADF.  Officers at the same rank and seniority received the same base salary, regardless of differences in work and performance.  This system has come under stress with the accelerating pace of change, such that additional allowances have grown in number and amount over time to recognise differences in work and the pressure of market forces.  A number of reviews and reports have recommended change to introduce greater flexibility in salary outcomes across the wide range of officer roles and, for approximately 10 years the ADF has been exploring options for change

1. Similarly, when one considers cases which have been determined by the DFRT there is a base rate or a lower pay grade for all new recruits and ranks at the lower end of the spectrum.  Thereafter, in accordance with the principles set out in the Graded Officer Pay Structure case (GOPS) a base rate (Pay Grade 2) was the starting point to which was added additional pay grades for skill, training and experience. A similar process which has guided the civilian industrial tribunals for wage setting.
2. These concepts of basic wage and margins for skill have some echo in the way in which the DFRT since its inception in 1984, and earlier Commissions of Inquiry have made determinations in relation to salaries and allowances of ADF personnel. In ADF pay placement one as a starting point had to take account of relativities between officer groups, i.e. rank.

Relativities

1. Industrial tribunals and the DFRT often are concerned if an arbitrated movement in wages for one category or group may have an unintended consequence or expectation raised elsewhere. That is would a movement  have a ‘flow on’ effect elsewhere. This ‘fear’ comes under the general heading of ‘relativities’.
2. In this regard consideration should be given to the principles established by the DFRT in the Graded Officer Pay Structure.[8]  In that case, the DFRT stated:

“Instead, the Tribunal sought from the ADF a plan to place all officer categories simultaneously in the new structure, taking account of relativities in work done and any other relevant factors.”

It went on to say:

“The ADF’s placement principles and the Service proposals have evolved over the life of the Remuneration Reform Project.  While the structure allows for flexibility and differentiation across the officer population, the placement proposals involve only limited differentiation within rank, at least up to 04 level.  Vertical progression with seniority in the Officer’s Common Scale is largely replaced by diagonal progression up and across the pay grade matrix.  So, for example, all Army general service officers (not including engineers) progress from Pay Grade 2 at 02 rank to Pay Grade 5 at 04 rank; differentiation comes only at that point with various command appointments. 

While we were not concerned with the extra recognition award for command roles – indeed we see it as warranted and timely – we did press the leadership team on the appropriate level of differentiation within and between categories.”[9]

Further over the page:

“While there may seem to be arguments for adopting a cautious approach we were satisfied that the ADF leadership had carefully considered relativities, understanding that pay grade 10 is the foreseeable limit of the 01 to 06 structure.  We accept the CDF’s view there is no realistic prospect of the ADF arguing for placement of a category higher than sea command or SAS officers.  Consequently, introduction of further differentiation in the future is to be accommodated within these bounds.”[10]

Further, the Tribunal said:

“We did, though, have difficulties with the Army’s proposal that completion of training courses provide the trigger points for advancing in pay grade.  Accordingly, we rejected the first proposal to place army engineers.  In our view, sound principle requires that payment be for skills applied, rather than skills acquired.”[11]

1. Comparative wage justice or relativities can also be based upon proved historical relationships in order to permit a comparison.[12]
2. The concept which appears to be relevant in the DFRT about which some of the above quotes make mention, is the concepts of relativities or comparative wage justice.  Relativities relate to whether a change to a particular category’s salary may have a knock on effect upon another which may concern similar work or where there has been some sort of historical connection between their rates of pay.  That is, if one particular classification of work moves there is a related classification which either moves to a similar extent or moves on a pro rata basis.  This in the past had been a major wage fixing principle whether those doing the same or very similar work should be paid the same or comparable rates.  The expression used had been described as “like with like” and has always existed in compulsory arbitration systems on the rationale of equality of treatment:  see the Professional Engineers Case.[13] A lot of these matters regarding relativities exist within the mind of the DFRT so that if movement in one particular place, particularly when one has systems such as the Graded Officers Pay Structure, may have an effect upon one pay grade or rank because of a nexus with another.

Work Value

1. Another principle used by industrial tribunals and at times adopted by the DFRT is the principle of work value.  The work value principles were highlighted in 1975 by the Federal Commission and subsequently adopted in other State Commissions. Although the principle of work value changes had been around for a long time,e.g. see a New South Wales decision called Re Crown Employees (Teachers – Department of Education) Award.[14] In that case it was stated that the applicant asked the tribunal to assess or re-assess the value of work for wage and salary purposes in light of the evidence called of the nature of the work, the responsibilities it involves and the condition in which it is done.  Work value generally relates to making a proper assessment of the nature of the work under consideration.
2.   In the Metal Trades Work Value case[15] it was said one has to have regard to the qualifications, training, attributes, responsibility, conditions, quality of work, versatility, skill required, knowledge acquired, supervision, importance of work to the employer.  When one looks at work value cases, one examines whether the work which had once been valued at a certain rate has changed. Is there more training required, more responsibilities, more work expected and more supervision given?  In such circumstances, one could confidently suggest that there should be an increase to the rate because the nature of the work had significantly changed.
3. In a significant case involving nurses (re Application by RANF[16]), the factors considered which satisfied the work value change principles were assessment of change of work value, new categories of work, revised career structure, transfer of education to colleges, effective shortages, national character of nursing, need for in-service and continuing education programmes.  In such cases the onus is always on the applicant.  Other factors might involve new skills acquired, greater mobility, new techniques and the like.
4.  The DFRT consistent with its statutory instruction to have regard to principles developed by the FWC or its predecessors the work value principle is an important guide for the DFRT in setting ADF salaries and allowances.

National Wages Cases

1. Another principle which has been established by federal industrial tribunals relates to overall cost of living increases, sometimes called National Wage Cases or sometimes adjustments to minimum rates of pay. Some of the states had their own State Wage Cases,e.g.New South Wales. Often percentage increases to all rates were applied or on other occasions a flat rate was added to all award rates. The comparable task to National Wage Case movements performed by the DFRT is the triennial Workplace Remuneration Arrangement (WRA). The WRA decisions in recent years have provided equal percentage increases staggered annually over the life of the WRA.

Allowances

1.   Industrial tribunals not only look at the level of salary or wages based upon the skill levels required and the training necessary to perform the work, but also look at other allowances for other matters.  Common provisions in industrial awards are for penalties rates for work on public holidays or weekends, and also work performed over and above ordinary hours.  Ordinary hours vary from industry to industry and may be at 35 hours per week or 7.5 hours per day, and any work done outside what is called the span of hours will be paid at overtime rates.  Overtime rates vary from 150% of the ordinary hourly rate to 200% depending upon the amount of overtime worked. Also, penalty rates can be for time and a half or double time depending upon whether the work is performed on a Saturday, Sunday or public holiday.  Such provisions have been found at various levels in industrial awards for many decades.
2.  When one considers the nature of military service , different circumstances exist.  There is no such thing for the permanent full-time force or Reserves as overtime or indeed penalty rates for working on a weekend or a public holiday.  What is in place  is a concept called Service Allowance that attempts to compensate on a roughly annualised basis for some of these factors.
3.   In a Report for the Committee of Reference for Defence Force Pay presented to the Minister of Defence on 4 November 1981. The following is stated at chapter 9 in relation to Service Allowance:

“9.1 Since February 1973 a Service Allowance has been paid to most service personnel in recognition of the following features of service life:

(a)       The need to be on-call at all times and to work long and irregular hours, as required.

(b)       The need to at times live and work in uncomfortable conditions short of those situations for which separate provision was made at the time.

(c)        The requirement to submit to discipline and control in many matters in which a civilian has some freedom of choice.

(d)       The general turbulence in postings to the extent that such disruptions are not compensated in on-occurrence allowance.”

1. In relation to Service Allowance, the following was stated at 9.5:

“Service allowance should not be an ‘on occasion’ allowance in whole or in part, to be paid only when ‘overtime’ is undertaken by individual service members or when ‘penalty rates’ would ordinarily be incurred.  Quite apart from the daunting administrative difficulties, especially at sea and in the field, we are satisfied that to most service members, life and work in the Defence Force has connotations which do not readily conform with notions of overtime, penalty rates and the like.  We are satisfied, however, that the first element or feature which service allowance is paid dominates the quantification of the allowance and must be considered in detail.”

1. In dealing with the incidence of Service Allowance, the following is stated:

“9.44 It will be seen from our recommended salary structure that there is a break in the orderly progression of salary for rank as the scale progresses upwards from and including Lieutenant Colonel.  The increased margins for rank in that part of the structure are designed to reflect the changes of role and functions which have been experienced by members in those ranks. 

9.45 In the public and private sector, payment for long and irregular hours disappears at a point which approximately corresponds with the Lieutenant Colonel.  This is because management in the real sense occurs at that point and the trappings and duties of management should not be associated with any scenario which includes the Bundy clock.

9.46 Officers at the rank of Lieutenant Colonel and above should therefore be paid a consolidated salary which gives full recognition to the responsibilities within the rank, to the time taken to discharge those responsibilities and to the other disabilities which are the lot of the military manager.  The salaries which we have recommended at those ranks take cognisance of the fact that those who received them will not be paid service allowance.

9.47 For similar reasons we rejected the service commission that brigadiers and major generals should receive a service allowance.”

Over Award Payments

1. In civilian employment even though an award  rate for work might be set by an industrial tribunal employers who only pay that rate  for labour may not be successful in engaging and keeping skilled workers . Employers therefore have paid over award payments that is a sum over and above the rate set by the award to attract and retain skilled labour. The DFRT by decision has also used this device in its broad discretion in determining fair salaries and allowances in certain categories. In cases such as the Submarine Capability Assurance Payment (SM-CAP) a component of the allowance paid was made up of ‘attraction and retention’.

“[46] The SM-CAP is a financial measure and one of seven components of the SM-DDP. It is the only component within the jurisdiction of the Tribunal. We accept that all seven components are intended to work together to achieve the impact sought. We accept the submission and evidence the SM-DDP is likely to provide for growth and retention of sufficient experienced personnel to allow workforce expansion in support of the SWGS”^[17]

1. The above summary of industrial principles was not intended to be exhaustive but to examine briefly how many industrial principles established historically by the various industrial tribunals have an on-going effect of the jurisprudence of the DFRT and the fair assessment of military remuneration in Australia.

Jeffrey Phillips,SC

The author is Australia’s Defence Force Advocate and delivered this paper in Canberra on   6^th February 2018 at the Directorate of Military Remuneration’s annual conference.

During the 1970s Garrick Fay was the mainstay of the Wallaby forward pack. In this article he gives a fascinating insight into how Australian Rugby pulled itself out of an international slump. I recently caught up with Garrick with barrister and Gordon Rugby Football Club’ prop Chris Micali for lunch at the Union, University and Schools Club in Sydney . Garrick Fay has been in business all his life and is a celebrity speaker.

———————————

In 1971 I was a member of a Wallaby team that was thumped by South Africa. In 1972 the team lost three Test Matches against New Zealand. In 1973 the

Garrick Fay

Wallabies were beaten quelle horreur by Tonga, yes Tonga, and then humiliated by England and Wales.

Australian rugby was broke and the game in the doldrums. What could be done to resurrect our national team’s fortunes, pride and success?

It has been said that the past is a foreign country. Rugby then was a very different game to what it is now.

Let me paint the picture of this ‘foreign land’ of over four decades ago. In the early 1970s I played two seasons for Wasps, a first division London Club. One would receive a “card” in the mail each week which was an invitation to play from the club president, Mr. Neville Compton. An RSVP accepting the polite invitation was de rigueur.

The Club ran twelve teams all with an extremely large differences in proficiency. The club had no coaches at all except for a motor cycle policeman called “Orse” who endeavoured in vain to add a modicum of fitness to the thirty odd blokes who might show up. There was no skills training.

The Club maintained a fixture list and played each season against other first division teams. Heaven forbid, if London Irish, or Harlequins, or Llanelli had had a bad season the year before, Wasps may consider not inviting them to play. Come to think of it omit Llanelli from that list, they never had a bad season. There was no competition as exists now and the game was totally amateur.
After my stint with Wasps I returned to Sydney to play for Northern Suburbs for 12 more seasons. There was a twelve team competition and teams played each other twice. From there, one progressed to the Sydney Representative team. Each club had a selector and club nepotism was rife.

From Sydney one progressed to NSW as it was known more colloquially as the Waratahs. Once again the game was totally amateur unless a set of club cufflinks, presented by Norths’ Club President, George Marshall could be considered sufficient to contravene the pure laws of amateurism. Such largesse was for being picked to play for Australia.

At every level of rugby there was a plethora of selectors. The bleedin’ obvious happened of course. A disparity of fundamentals and playing styles between Sydney, Country, NSW & Queensland led to a total loss of cohesion and more losses to international teams.
In 1973 a group of concerned businessmen funded a trip to Wales for Bob Templeton the Australian coach, to examine their coaching techniques and report back. Wales were then undisputed world champions. Ray Williams the Welsh National Coach was invited to Australia in 1974.

After that trip, in the same year Dick Marks a former Wallaby was appointed National Rugby Coaching Director. His job was to coordinate coaching programs and to liaise with National and State. A committee was formed to produce a standard coaching manual which every coach at every level was able to adopt. It showed, inter alia, all the suggested techniques ranging from scrums, lineouts and mauls to defensive and attacking plays. It was not so much a mandatory manual but rather a guide for correct technique which each player could adapt to different situations. It was adopted and used in 1975. Success didn’t happen overnight. Common techniques and a rationalization of selectors took a while to eventuate. Garrick this seems out of place on the timeline)
However, something was happening. The late seventies saw England, Wales and the All Blacks beaten by Australia, the latter by the largest score ever up to that time. The early eighties saw the Wallabies win back the Bledisloe Cup and create wonderful records on tours to Britain. Who can forget the Wallabies’ Grand Slam of the ‘Home Nations’ in 1984?

Success however was not just due to enhanced coaching, other crucial elements were in the mix.

To win games consistently correct technique must be combined with team spirit, an elusive but essential commodity. The French call it esprit de corps. It may be defined as a feeling of pride and loyalty that exists amongst the members of a team. A proud, burning desire that makes each member want their team to do their very best and win. How was this achieved in the mid to late 1970s? Sydney led the charge. The Sydney team used to meet socially on a regular basis. The team not only had camaraderie but developed a deep bond. They went on tour together. Players were made to feel that they had an important role in the team. This feeling led in turn to self-esteem and a sense of freedom of expression on the field. In other words, if you “had a go” there was no fear of failure.
This was radically demonstrated when Sydney played Wales at the Sydney Sports Ground in 1978. Wales were ‘cock-a-hoop’, confident and arrogant. Sydney were a rag tag team of players with very little representative experience. In the first two minutes Sydney’s Jimmy ‘Possum’ Feggans tackled the legendary centre Steve Fenwick in the middle of the ground after he had tried to make a break, I can still hear the crunch. One minute later Fenwick decided he’d have another go, the same thing happened. Sydney soon found themselves ahead. O boyo! What happens now?

What happened next was that the Welsh machine clawed back the lead and with a minute to go were two points ahead. Their winger failed to find touch and Laurie Monaghan the Western Suburbs’ and then Sydney full back grabbed the ball and belted over a magnificent field goal from about 50 metres out to win the game. Oh what a feeling!

The point is of course that he trusted his skills and was not afraid of failure. You little bobby dazzler Laurie.

Sydney beat England and France and drew with the All Blacks as well. The Wallabies followed, we were on a roll.

Another essential ingredient for success is consistency of selection. To me it is inconceivable that more than one change, let alone several changes, can be made to the Wallabies in one week. It shows a lack of respect to any player who is the best in Australia in his position one week but not considered good enough the next. That doesn’t engender much self-confidence.

I once asked the brilliant will o’ the wisp Welsh winger and captain of Cardiff Gerald Davies what Cardiff’s selection policy was. His answer remains with me to this day. Altogether now in a Welsh accent, “Not did he have a bad game, Garrick but is there anyone better.” Sage advice.

Thank heavens Wallaby coach Michael Cheika has started to rationalize selections which has resulted in a magnificent Wallaby win against the All Blacks. One swallow does not a summer make, there is work to do. However, there is a good feeling about this team now and my belief is that given more time they will do very well.

Lack of consistency of selection also indicates to me that there can be a lack of understanding of what it means to develop effective combinations. At international level the game is faster and more physical, gaps close more quickly. The very fact that the same team plays together week after week means that those split second passes hit their target, the moves are made with greater speed and confidence because they have been practiced hundreds if not thousands of times. When you’re in the zone all moves are understood from scrums and lineouts to backline play. It’s all very well to blood players but please keep a rehearsed combination together.

The Administration of the game has come under scrutiny recently. A lot of harsh things have been said. However, the ARU leadership needs to acknowledge that what it has been doing isn’t working and has completely alienated the clubs and spectators. As in politics, if you lose your base how can you expect to flourish? It all starts in the grassroots and filters outwards and upwards. The hardcore supporters are still there because they learnt loyalty and camaraderie when they themselves played the game in their various clubs. Their wives, girlfriends, family and mates accompanied them.

When Norths played the wives and girlfriends sat on the sunny North Sydney Oval hill usually with a couple of bottles of wine and perhaps with cheese and crackers. These Norths’ ladies recently celebrated a forty year reunion such was the level of friendship generated. The club players of course have reunions as often as they can. Lose them both and you lose the lot.

New Zealand’s nursery filters through to their most senior team in a seamless transition of both pride and a common skills. How can this happen when our club teams are abandoned? Ignore them at your peril and give them some support and recognition. With little pre-match publicity Sydney grade Grand Finals have in the past few years attracted huge crowds.

So there you are dear readers. A few thoughts on what must be done to win from an old, yes old player and make no mistake, when the Wallabies win the spectators will follow and the money will flow.

Garrick Fay played for the Wallabies between 1971-1979