The Relation Between Function and Form in the Main Federal Industrial Tribunals

Abstract

This article examines the relation between function and form in the main Australian federal industrial tribunals, drawing on process jurisprudence, in particular the work of Lon Fuller. It suggests that the structures and procedures of the tribunals can be set against Fuller's idealized features of adjudication, in order to draw out their most important and innovative features. Of particular interest are the distinctive ways that the tribunals have mediated the participation of the industrial parties and tackled complicated problems such as wage-setting. The aim is to focus attention on procedural design and encourage research into the tribunals’ contributions to the rule of law in the industrial context. This should also lead to a better understanding of the continuities, discontinuities and dilemmas represented in the new umpire, Fair Work Australia.