Chris Fisher
University of Canberra

Abstract

This paper is about an Act of the British Parliament which has largely been forgotten by British labour historians but is very important for Australian labour historians. That Act permitted for the first time what we would call “industrial arbitration”. The Act gave the means of legal arbitration of future disputes about wages and conditions of employment, linked the awards and rules of arbitration to the law of contract and provided a means for the aggregate formation of the terms of many contracts of employment. The paper argues that industrial arbitration of this kind was the creation of a Wolverhampton County Court judge who wished to assimilate the control of industrial disputes to “the ancient Common Law of England”.

 

Industrial arbitration, as a law-based system of third party intervention in industrial disputes, had evolved in England over the course of two centuries before it was made part of the foundation statutes of the Commonwealth of Australia. It was not until 1872, however, that a statute set out a basis in law for the determination of wages and conditions of work by an arbitrator’s award. Industrial arbitration, of the kind which became important in Australia, was the invention of the Arbitration (Masters and Workmen) Act of 1872.¹ Until then, arbitration, as it has been known in Australian industrial life, had been explicitly excluded from statutes dealing with industrial arbitration.

The account that this paper offers of the adoption of “legal arbitration” by statute in 1872 has two purposes. The first is to argue that the Act did permit for the first time what we would now agree to call industrial arbitration. Second, the paper argues that industrial arbitration of the kind which has dominated Australian industrial life for so long was the creation of a Wolverhampton County Court judge who wished to assimilate the control of industrial disputes to “the ancient Common Law of England”.

The story which is told here, of the invention of industrial arbitration, is different in many important ways from the story of the development of “conciliation and arbitration” which has been told by British labour historians, for two reasons.²  First, there were two competing models of conciliation and arbitration in the early 1870s, both of which found expression in the Act of 1872. One of them was what we would now call “joint collective bargaining” and was “voluntarist” in its inspiration. This was the “conciliation and arbitration” of the mainstream of development of the British labour movement and of British industrial relations. The Act of 1872 certainly reflected that dominant approach to conciliation and arbitration. The Act also, however, contained a number of provisions deriving from a more “legal” approach to arbitration. For Australian labour historians, the creation of a legal means of arbitration of future disputes about wages and conditions of employment, rather than the development of voluntarist joint collective bargaining is the important part of the story. For Australian purposes—in this case at least—the forgotten story is the one which matters.

The second way in which the story told here is different from that told previously, is that the main character in the British version of the story, Mr AJ Mundella MP, is of much less importance in the Australian version than the Wolverhampton man, Mr Rupert Kettle. Kettle’s thought underpinned the assimilation to the law of industrial arbitration and it was the manoeuvring of Kettle in the drafting of an arbitration Bill by the Parliamentary Committee of the Trade Union Congress, which brought into the Act of 1872 the principles which would allow the creation of the Australian version of industrial arbitration.

Contract and the commercial model of arbitration

The model of industrial arbitration which has prevailed in industrial relations in the Australian federal jurisdiction since 1904 has some characteristics which might easily be (and usually are) taken for granted. The first is that, in the course of an arbitration, some person or institution resolves disputes by means of decisions, the terms of which will apply at some point in the future. To people accustomed to modern Australian industrial arbitration the basic point that industrial arbitration is “future” arbitration hardly seems worth the mentioning. Nor does a second characteristic of federal arbitration seem remarkable: that arbitration is “legal” arbitration. That is to say, the processes by which modern Australian industrial arbitration produces decisions about wages and conditions are integrated in complex ways into the wider body of common law and statute law that applies in Australia. In particular the Australian law of industrial arbitration has been inextricably mixed in with the law of contract of employment and also, therefore, the law of contract and the common law more generally. Industrial awards are part of a process that establishes the terms of individual contracts of employment. That is moreover, an aggregate process: the contracts of employment between many employers and many employees or between one employer and many employees are formed simultaneously.³

As late as 1872, industrial arbitration as it existed in English law had none of these characteristics.⁴ Industrial arbitration of the kind contained in the Commonwealth legislation of 1904 could not have existed before 1872. The law did not recognise “future arbitration” of industrial disputes. The law, indeed, had said specifically that industrial arbitration could not determine the wages and conditions that would apply at some time in the future. Consequently, “industrial arbitration”, as that term might now be understood in Australia, had no place among the concepts of law. So far as people in fact set wages for the future by means of voluntary arbitrations involving institutions such as trade unions and employer associations, what they did was not “legal”, was not recognised by, and enforceable in, the law.

The law of employment had evolved over the eighteenth and nineteenth centuries to become what we would now recognise as the common law of contract of employment. By the end of the eighteenth century, the law which governed contract of employment, like that which governed other kinds of contracts, made provision for the settlement of disputes by arbitration. The notion of an “arbitration”, indeed, had meaning in the law only as a process used in the resolution of disputes about contracts. Accordingly, the law that governed and gave specific content to the notion of “arbitration” reflected from time to time the stage of development of contract law generally.⁵ In the eighteenth century the law of contract and the litigation of contracts was about “executed” or “part-executed” contracts: about what had or had not been done in the performance of a contract. The law of executory contract, or contracts for future performance, had yet to develop. The very idea that the procedures of arbitration could be used to determine the terms of future contractual arrangements was not available.

Consequently, arbitration, as it applied to employment contracts at the beginning of the nineteenth century, was about the past rather than the future. At some time in the past there had been a contract or agreement to do work at a price. Then, the work already having been done or the price actually paid, there might be a dispute between the parties to a contract—between one employer and one employee—about whether the terms of the contract had been satisfied: whether, for example, the work had been done properly and the correct price paid or whether there had been damage or injury to the goods or undue delay in performance. This was arbitration “on the contract”.

Perhaps the most important consequence of the restricted character of arbitration on the contract was that it could not be used as a general means of establishing collectively the wages and conditions to be paid in future: merely to settle disputes about what had been done in the past and to settle those disputes, moreover, as matters between an employer and a single employee. Indeed, statutes which permitted arbitration on the contract generally provided, as an Act did in 1824, that “nothing in this Act contained shall authorize a Justice or Justices…to establish a Rate of Wages or Price of Labour or Workmanship at which the Workman shall in future be paid…”⁶ Parliament restated the prohibition on the arbitral determination of future wages as late as 1867.⁷ Arbitration of this sort was not a process that could be used as the basis of trade union formation or action.

It was not until the Arbitration (Masters and Workmen) Act, 1872 that enforceable arbitration of future disputes entered into the law. A number of the terms of that Act need to be noticed. First, an agreement could be made under the Act to appoint “some board, council, persons or person” as arbitrator.⁸ Second, a master and a workman would become mutually bound by an agreement made under the Act if the master gave to the workman, and the workman accepted, a printed copy of the agreement. The workman could, within forty-eight hours, give notice to the master or his agent that he would not be bound by the agreement and the agreement would then be of no effect.⁹ Once bound, a master and workman continued to be bound so long as there was any contract of employment or service in force between them which was in force at the time of the making of the agreement or the making of which was in contemplation at the time the agreement was made, so long as both parties consented to continue to employ and serve without rescinding the agreement.¹⁰ The agreement could deal with future matters

(4) The agreement may provide that the parties to it shall during its continuance, be bound by any rules contained in the agreement, or to be made by the arbitrators, arbitrator, or umpire as to the rate of wages to be paid, or the hours or quantities of work to be performed, or the conditions or regulations under which work is to be done, and any specify penalties to be enforced by the arbitrators, arbitrator, or umpire for the breach of any such rule.¹¹

Agreements could cover a number of subjects including hours of work and wages. When a dispute about any such matter arose during the currency of an agreement, the arbitrator had exclusive jurisdiction for the hearing and determination of the dispute.

The Act, moreover, provided something as important as the recognition of future disputes: a means of enforcement of the decisions of arbitrators, through penalties for breach of the arbitrator’s award. More than that, the Act gave to arbitrators’ awards a status they had never had before:

(7) The agreement, and also any rules made by the arbitrators, arbitrator, or umpire in pursuance of its provisions, shall in all proceedings as well before them as in any court be evidence of the terms of the contract of employment and service between the parties bound by the agreement.¹²

 In short, the parties could make an agreement to appoint arbitrators, and the awards made by the arbitrators would form part of the contract of employment, so long as the agreement contained provision to refer matters to an arbitrator and so long as a printed copy of the agreement had been given to the workman. The arbitrator’s decision became enforceable as a term in a contract.

This Act of 1872 thus did three new things. First, it recognised arbitral determination of future wages. Secondly, it made the arbitrations legal not only in the sense that they were not forbidden or made illegal, but that they were linked to the broader common law, the law of contract of employment and the law of contract generally. Thirdly, this Act solved the problem of how aggregate means could be used to establish individual contracts of employment and how people who were not parties to the original dispute or arbitration were to be bound. These elements in the solution of 1872 would be the foundation of Australian practice in the following century.

The Act of 1872, Mr Mundella, Mr Kettle and ‘Legal Arbitration’

Where did the solution of 1872 come from? What were the meanings and implications of its component parts? Why did the solution of 1872 involve the linking of arbitration to the law of contract? The answer to these questions has to do with the way in which the Act was developed and the influence on the drafting of the Bill exercised by Mr Rupert Kettle. (It should be noticed that only a very limited question about the content of the Act is being asked here. The question why the Act was sought and adopted is well beyond what this paper is about.)

The Bill came in the first place from the Trade Union Congress of 1871, which debated the merits of conciliation and arbitration at the instigation of Mr AJ Mundella MP.¹³ The Congress required a Bill to be drafted. This was done and a draft placed before the Congress of January 1872. Subsequently the Parliamentary Committee of the Congress adopted a Bill that, under Mr Mundella’s management successfully progressed through the Parliament.

Mr Mundella was an employer in the hosiery trade at Nottingham, where he had set up a board of conciliation and arbitration. The Nottingham board has been described as the first successful board of conciliation and arbitration. According to Hicks, the “history of conciliation begins at Nottingham in 1860, and its leading figure is AJ Mundella”. Mundella was the “father of conciliation… He produced the first board which worked”.¹⁴ Mr Mundella, Crompton thought, “must be regarded as the inventor of systematic industrial conciliation”.¹⁵ Mundella’s Nottingham model was imitated in a number of other places, notably in the lace trade, the pottery trade in Staffordshire and the iron trade in the north of England. Mundella’s scheme was also important in the coal industry and in a general wave of enthusiasm for “conciliation and arbitration” which swept through many industries in the early eighteen seventies.¹⁶

Much of what British labour historians describe as “conciliation and arbitration” in the nineteenth century refers to the Mundella model and to copies of it. It is important to notice, however, that Mundella’s system was more like “voluntarist joint collective bargaining” than the law-based third party intervention that matters in Australian industrial history. Mundella’s scheme required masters and men to appoint equal numbers of representatives who elected a chairman from their number.¹⁷ Each side appointed a “secretary” to the board. Two of the representatives from each side formed a standing committee or committee of inquiry. When a dispute arose it went first to the secretaries who might then refer it to the committee. If the committee could not settle the matter then it went to the board.

The board had a number of important characteristics. First, the emphasis in its proceedings was on conciliation rather than arbitration. The original constitution of the board gave the chairman a casting vote. This proved to be unsatisfactory and Mundella “made it his business to see that decisions were arrived at by agreement. The arbitration element thus rapidly disappeared…” Mundella emphasised the informal and conciliatory character of proceedings:

…the proceedings of the board are very informal, not like a court, but the masters and men sit round a table, the men interspersed with the masters. Each side has its secretary. The proceedings are without ceremony, and the matter is settled by what the men call “a long jaw”, discussion and explanation of views, in which the men convince the masters as often as the masters the men…It is in fact conciliation, and is far better than the decision of a court or of an umpire. The “long jaw”, ending in agreement, may take a long time, but is the true practical way out of the difficulty.¹⁸

Mundella’s scheme was neither compulsory nor enforceable in a Court: it was “voluntarist”.

Secondly, the board dealt with future wages.¹⁹ Much of the work in the hosiery trade was piecework with separate prices for thousands of separate tasks. The board established an agreed piece list that it then altered from time to time, as circumstances demanded. When the men wanted an advance of wages on a particular class of work they gave notice of their claim at a board meeting which then considered the question a month later. These boards were specifically intended to deal with the matter of future wages and did so.

The debate before the Congress in 1871, the formation of the Bill and the subsequent Act all reflected Mundella’s approach. The principal sponsor of the Bill, both at the TUC and in the Parliament, was Mr Mundella. The Act has, indeed, been referred to as “Mundella’s Act”.²⁰ There is no doubt that Mr Mundella had an important influence on events and on the character of the legislation, most especially in that arbitration under the Act was to be voluntary and that there was to be no interference under the Act with any arrangements made under conciliation.

Much of what appeared in the Act, however, was not of Mundella’s devising. In order to understand where those elements of the legislation came from we need to look at the influence of Mr Rupert Kettle. Mr Kettle was at the Congress of 1871. Mr Mundella, indeed, in his address, introduced Mr Kettle to Congress as “a true friend to the working men of the country”.²¹ It was Mr Kettle, in fact who worked up the Bill that the Congress considered in 1872. The Bill was in a number of important ways the product of the mind of Mr Kettle. His approach to conciliation and arbitration was very different from Mr Mundella’s.

Kettle had been instrumental in establishing a board in the Wolverhampton building trades in 1865. Kettle was a lawyer and it was as a lawyer that he approached the problem of handling industrial disputes. Before the meeting that established the Wolverhampton board, he said, “I had passed through my mind the law upon the subject of arbitration, and I believed I had devised a means by which arbitration could be legally carried out in practice”.²² “Legally”, here meant something like “in accordance with the established principles of the common law of contract and commercial arbitration”. “I think”, Kettle said,” that the ancient Common Law of England is sufficient, when properly understood, for this as it is for most other purposes”.²³ Mundella wanted a means of industrial peace: Kettle wanted an arrangement in law that would assimilate the law of industrial arbitration to the common law.

The set of rules which Kettle prepared for his board contained an arbitration clause which allowed “future disputes” to be referred to arbitration. The substantive basis of these rules was to be found in the law of commercial arbitration. When Lord St Leonards was Lord Chancellor of Ireland his decision in Dimsdale v Robertson had “finally settled” the question of the binding effect of agreements to submit future disputes to arbitration. Commercial law had moved beyond its preoccupation with executed or part-executed contracts and now routinely allowed the reference of future disputes to arbitration in “almost all those executory contracts that extend over a considerable time”. Arbitration, Kettle argued,

…has been extensively adopted of late years as a mode of preventing technical and expensive litigation in those matters where there are continuing obligations on both sides, and where, from unforeseen circumstances, new interests may arise. For their mutual protection in the unknown future, parties agree in such cases to an arbitration clause. This is commonly done in articles of partnership; policies of assurance; leases; building contracts; and indeed in almost all those executory contracts which extend over a considerable time. There is no reason why agreements for work should be excluded from the benefits of that system of arbitration which experience has proved to be so efficacious in settling disputes arising upon other matters connected with the business of everyday life.

The submission of an industrial dispute to arbitration, as Kettle saw it: “is a formal submission to arbitration, such as is included in leases or agreements, or any other documents relating an executory contracts where the parties mutually agree upon an arbitration clause”.²⁴ These developments allowed the “common law as to contracts” to provide the basis of a “permanent and substantial legal system”.²⁵ Arbitration based on the commercial law, moreover, compared to “Courts of Conciliation” or “Tribunals of Commerce” (“novel institutions”) appeared to be “a more familiar, a more simple, and so to speak, a more English mode of settling trade disputes”.

Kettle’s scheme, which he described in a book on Strikes and Arbitration, was fairly simple.²⁶ First, the employers and the employees elected representatives who met under the chairmanship of an “umpire”. Notice here that the chairman is an “umpire”: a person who decides between arbitrators, by means, in this case, of a casting vote. The representatives were the “arbitrators”. The meeting then drew up a set of rules, including wage rates, which were to govern employment in the trade. The rules contained a clause by which both parties agreed to submit their disputes to an arbitration by the board. A supplementary rule to the arbitration rule, the conciliation rule, provided that where disputes arose which did not affect the general interests of the trade, they should be referred in the first instance to one of the employers’ arbitrators and one of the employees’ arbitrators. (This was the equivalent to the standing committee of secretaries in Mundella’s board).

These procedures and the rules that contained them were then made the basis of the individual contract between each employer and each of his employees. The employer posted the rules in his workshop or factory and referred to them in the employment agreement with each of his employees. The individually-formed contracts and their arbitration clauses, whose terms had been settled in the aggregate, then became legally enforceable in much the same way as any commercial contract with an arbitration clause

…the contract is easy of proof, inasmuch as the document being posted on a wall according to a well-known rule of evidence, we can give a copy of it as evidence of the contract, and I have provided that a copy issued by the umpire should be read as evidence of the contract upon any proceeding or before any umpire, there being a submission to arbitration easy of proof when any dispute arises between the master and the carpenters, then, by the mode provided in the arbitration clause, an arbitration sitting is held and the matter in difference is discussed. If the arbitrators agree the arbitrators determine it; if they, or a majority of them, do not agree it is then determined by the umpire in the usual way, and a regular award is made. When a regular award is made it can be enforced by an action in the County Court; it is obligatory on both parties…²⁷

 Two important points need to be made about this scheme of arbitration. The first is to emphasise that Kettle thought of his scheme as something that would be attached to the existing legal structure. Kettle derived his scheme from the commercial law of arbitration. He intended to extend the law of commercial arbitration to the arbitration of the disputes of employers and employees. Equally importantly, his scheme was designed to be enforceable in the County Courts.²⁸ In clear contrast to what Mundella thought of as a completely informal and voluntary conciliatory process at Nottingham, Kettle’s was a court-based as well as a law-based system.

Kettle incorporated into the Bill he wrote for Congress his own notions of what would constitute a sound system. First, he made sure that the boards would be able to deal with future wages and disputes. He wrote a clause which gave all the powers of the Act to boards “whatever may be the constitution or form of procedure, of such board, and whether or not the same shall purport to have cognisance of both present and future disputes; or cognisance of disputes relative to the terms of any contract about to be entered into; or to the construction of any existing contract…”.²⁹ Then there was the question of how each master and each man could, in aggregate proceedings dealing with future wages, conditions and disputes, become bound by an individual contract of employment. As Kettle explained to the Parliamentary Committee of the Congress, there were two parts to this. First:

My theory of trade arbitration is that whatever may be the constitution of the board each master should, in entering into a contract with each workman, make it part of the terms that both parties should submit to arbitration in manner prescribed. This gives the foundation of legality to the system without the necessity of going through any form of registration…³⁰

The procedure to be followed, for this purpose, was this:

Every master who agrees to be bound by the decision of any board, shall affix, and keep affixed in some conspicuous part of his place of business, where the same can be read by his workmen, a printed copy of the rules of such board; and shall also deliver a printed copy thereof to each of his workmen.

And every workman who agrees in the manner to be bound, shall accept a printed copy of the rules so delivered. And every employer so affixing, and every workman so receiving a copy of such rules, shall in all things be bound thereby.³¹

This, as Lord Amulree observed, was the “unique feature” of the Mundella Act; “the wholesale formation of standing agreements to refer disputes to arbitration…”. Kettle, though, did more than create a means of aggregate arbitration: his aggregate process worked to establish the terms of individual contracts of employment and thereby assimilated industrial arbitration to the noble principles of English common law.

There seems to have been some disagreement between Mundella and Kettle about what the Bill should provide. Kettle explained this to the Parliamentary Committee:

…in drawing the Bill I have been careful not to do more than appeared absolutely necessary to prevent for the future those breaches of faith which so much impair the usefulness and impede the extension of the arbitration system. At the close of your letter you refer to a conversation I had with Mr MUNDELLA and intimate that I know his difficulties. He was, I know, at one time opposed to carry out arbitration to its end legally. I understood both personally from him and from the report of the proceedings at Nottingham, that he no longer opposed this but thought it should be left to the parties interested to determine whether they would be legally bound or not.

During the interview in London to which you refer, Mr MUNDELLA pointed out certain objections to my draft which he said had been mentioned to him.

I called his attention to the fact that the Bill and every part of it was permissive only, and that it did not apply to boards of conciliation. I certainly thought Mr MUNDELLA acquiesced in my opinion that these provisions met the objections pointed out to him.³²

The Committee accepted this explanation and sent the Bill on its further journey.

It is important to notice that these events took place in a larger context. The fact that the Act was pursued and adopted was part of a larger set of events surrounding labour legislation between 1867 and 1875. Part of that story is about the remaking of the idea of the contract of employment. “Contract” had become the basis of the relationship between master and man by the end of the eighteenth century. The common law of contract had been applied to the employment relationship, in ways that were mediated by masters and servants’ legislation that provided penalties for breach of contract. Between 1867 and 1875 the unions and their allies fought for changes to the masters and servants legislation in ways which were designed to create a contractual relationship which was subject only to civil remedy for breach of contract rather than criminal penalty. The union campaign was for workers to be equal contracting parties within the framework of common and statute law, a campaign which reached its conclusion with the Employers and Workmen Act of 1875: “henceforth employer and employee became in strictly legal terms, equal parties to a civil contract”.³³

It is likely that the movement for an Arbitration Act had significance within that larger campaign as a means of seeming to remove the apparent controls of masters and servant legislation while in fact imposing arbitral, court-based controls. While the unions were struggling for the freedoms of voluntarism and the equality of civil contract, others developed the idea of law-based, court-based arbitral control. The story told in this paper is, accordingly, only the first part of what will be a more complex and difficult account of the relationship between individual contract and industrial control: something which is central to the development of the Australian system.

In one sense the Act of 1872 was of no importance.³⁴ In the larger story of the development of British industrial relations, trade unions were less interested in arbitration than they were in the repeal of the criminal law applying to breach of employment contract and the actions of unions. The British unions were not interested in surrendering their freedom of action to control by judges and did not think that the law should recognise and deal with unions merely as associations for the purposes of arbitration. The Act, which was no sooner through the Parliament than it was forgotten, would hardly warrant the attention in a footnote of a British labour historian.

The Act was important, though, outside of Britain. In many of the United States of America, in the Austro-Hungarian Empire and other parts of Europe there was a phase of experimentation with conciliation and arbitration, which recognised and drew upon the British precedent of 1872. Part of that broad international phase of experimentation that followed on the British Act took place in New Zealand and Australia. The Australian experiment culminated in 1904 in a New Province for Law and Order, which owed a great deal to the imagination of Mr Rupert Kettle.

Seen from Australia in a long hindsight the Act was very important indeed because it made a kind of law and that kind of law then, by way of both permission and restraint, influenced law made subsequently in other places at other times. The fact that Australia came to have a law-based system which was implemented and enforced by courts, that the courts could deal with the future disputes of masters and men and that the awards of the courts used aggregate means to establish individual contracts of employment which were at the same time both statute-based awards and contracts inthe common law: all this became possible because Mr Kettle’s solution found legislative form.

None of this is to say that the Mundella voluntarist approach to conciliation and arbitration was unimportant in Australasia between 1870 and 1904. Of course it was and so was the complex, populist political economy which was built around the notion of joint regulation or joint collective bargaining.³⁵ Much of what developed in Australian federal arbitration after 1904 certainly had a range of precedents in the 1860s and 1870s in the Potteries, in Nottingham or in the coal and iron trades. That part of the story should at some point be told—from an Australian perspective. What this paper has argued is that there is also a part of the story that was about a striving to assimilate the arbitration of industrial disputes to the common law of England. That fragment of the story helps to explain why Australia came to have such an extraordinary system of industrial control.

Endnotes

¹ An Act to make further provision for Arbitration between Masters and Workmen, 35 & 36 Vict., 1872.
² See for example: S. and B. Webb, The History of Trade Unionism, Longmans, 2nd ed., London, 1920; Lord Amulree, Industrial Arbitration in Great Britain, Oxford University Press, London, 1929; R.Y. Hedges and A. Winterbottom, The Legal History of Trade Unionism, Longmans, London, 1930. I.G. Sharp, Industrial Conciliation and Arbitration in Great Britain, George Allen and Unwin, London, 1950; H.A. Turner, Trade Union Growth, Structure and Policy, University of Toronto Press, 1962; J.H. Porter, “Wage Bargaining under Conciliation Agreements, 1860-1914”, Economic History Review, 2nd ser. xxiii, 1970; A. Musson, British Trade Unions, 1800-1875, MacMillan, London, 1972; K. Burgess, The Origins of British Industrial Relations, Croom Helm, London, 1975; K.D. Brown, The English Labour Movement 1700-1951, Gill and MacMillan, London, 1982; A. Fox, History and Heritage, George Allen and Unwin, London, 1985.
³ Arbitration here is described as an “aggregate” rather than a “collective” process. A collectivist approach to arbitration involves ideological belief or assumption that is additional to those of a merely aggregate approach to the determination of the terms of contracts. Kettle was a “laissez faire” individualist rather than a “collectivist”.
⁴ The material in the first part of this paper, about arbitration before 1872, is partly based on my earlier paper, “The English Origins of Australian Federal Arbitration: To 1824”, Industrial Relations Papers, Research School of Social Sciences, ANU, 1986.
⁵ P.S. Atiyah, The Rise and Fall of Freedom of Contract, Clarendon Press, Oxford, 1979, p.142 and M.J. Horwitz, “The Rise of Legal Formalism”, in American Journal of Legal History, 19, 1975, p. 251.
⁶ An Act to consolidate and amend the Laws relative to the Arbitration of Disputes between Masters and Workmen, 5 Geo. IV c.96, 1824.
⁷ In Lord St Leonard’s Act, An Act to establish Equitable Councils of Conciliation to adjust Differences between Masters and Workmen, 30 & 31 Vict. c. 105, s.4, which repeated the prohibition of 1824.
⁸ An Act to make further provision for Arbitration between Masters and Workmen, 35 & 36 Vict., 1872, s.1(1).
⁹ Ibid, s.1 (2).
¹⁰ Ibid, s.1 (3).
¹¹ Ibid, s.1 (4).
¹² Ibid, s.1 (7).
¹³ Beehive, 11 March 1871. See also Beehive, 18 March 1871.
¹⁴ J.R Hicks, “The Early History of Industrial Conciliation in England”, Economica, vol. x, 1930, p.27.
¹⁵ H. Crompton, Industrial Conciliation, p. 33.
¹⁶ I.G. Sharp, op. cit.; J.H. Porter, op. cit.; K. Burgess, op. cit.
¹⁷ Tenth report of the Commissioners appointed to inquire into the Organization and Rules of Trade Unions and Other Associations, Parliamentary Papers, 1867-68, vol. xxxix, QQ. 19,347-51.
 ¹⁸ Ibid, Q. 19,472.
¹⁹ Ibid, Q. 19,355.
²⁰ Lord Amulree, op. cit., ch. x.
²¹ Beehive, 11 March 1871.
²² Fourth report of the Commissioners appointed to inquire into the Organization and Rules of Trade Unions and Other Associations, Parliamentary Papers, 1867, vol. xxxii, Q.6, 993.
²³ Ibid, Q.7, 196.
²⁴ Ibid, Q.6, 995.
²⁵ Ibid, QQ.7, 009, 7,028.
²⁶ R. Kettle, Strikes and Arbitration, 1866.
²⁷ Fourth report of the Commissioners appointed to inquire into the Organization and Rules of Trade Unions and Other Associations, op. cit., Q.6, 998.
²⁸ Ibid, QQ.7, 029-30.
²⁹ Beehive, 23 March 1872.
³⁰ Ibid.
³¹ Ibid.
³² Ibid.
³³ Fox, op. cit., p.155.
³⁴ Lord Amulree, op. cit., p.88.
³⁵ See, for example, R.B. Walker, “Australia’s Second Arbitration Act”, Labour History, vol 19, 1970, pp. 17-25.