Principles Underlying the Preference-to-Unionists Awards in Industrial Law

Abstract

Preference awards such as the following are common: 'As between members of the — Union and other persons offering or desiring service or employment at the same time, preference shall be given to such members at the time of engagement or retrenchment, other relevant things being equal."

It is the purpose of this paper to examine the principles under which awards of preference have been made by federal arbitration tribunals,

To do so, this paper surveys virtually all the reported decisions of the Common wealth industrial tribunals over the last seventy-five years to provide an examination of the legal nature and rationale of preference-to-unionist awards. The paper opens by examining the four principles given by one of the architects of the Conciliation and Arbitration Act, H. B. Higgins, justifying an award of preference under this Act with the positive encouragement of trade unionism as the first and fundamental reason. These are now largely built into the Act as s. 47(2). The paper continues with a survey of other principles which have been advanced since that time expanding the scope of a preference-to-unionists award as preference has developed as a standard clause of so many Commonwealth and State industrial awards. The paper also notes comments made by tribunals to the effect that an award cannot be made if various consequences, such as monopoly of employment or compulsory unionism, are said to result, and examines the realities of this contention, which, if correct, would destroy the practical operation of so many preference awards.