Stacking the Commission: has it occurred and does it matter in unfair dismissal arbitration?

Abstract

The Keating and Howard governments were accused of stacking the personnel of the Australian Industrial Relations Commission (AIRC) with appointees from respectively, union and employer associated backgrounds. By January 2010, the Labor Government will have its version of an industrial umpire, Fair Work Australia (FWA), fully operational. Labor’s claim is that the FWA appointment process will prevent the making of biased selections of members by the party in power. The unresolved question is whether such stacking, if it has occurred, matters? By conducting an examination of 883 unfair dismissal claims subjected to arbitration by the AIRC from 2001 to 2005, we conclude that the representation of employer and union members hearing unfair dismissal claims during the data collection period, is reasonably balanced in spite of the various figures produced by different bodies. A mildly significant correlation exists between the work background of the members and their substantive arbitration decisions, that is, members may be more likely to make a decision that is congruent with them having worked in either employer or worker focused positions, prior to AIRC appointment. Although when non-substantive arbitration decisions were analysed, the correlation between the members’ backgrounds and their decisions was insignificant. Here it appears that jurisdictional guidelines may logically limit the potential to exercise bias in arbitral decision making.