Effective labour dispute prevention and resolution systems: ILO standards and support

Transcription

1 Effective labour dispute prevention and resolution systems: ILO standards and support 6 February 2017 Minawa Ebisui Labour Law Officer, Labour Law Reform Unit (LABOURLAW) Governance and Tripartism Department International Labour Office, Geneva 1

2 Key principles of an effective dispute resolution system Adjudication Arbitration Industrial action Conciliation/mediation Information and prevention Negotiation/collective bargaining Social dialogue Workplace cooperation

3 Modern dispute resolution theory Balance of power and how it changes workplace relations and dialogue negotiation conciliation mediation arbitration judiciary power Losing control

4 The evolution of a labour dispute SOURCE: F. Steadman - Handbook on Alternative Labour Dispute Resolution

5 ILO support Advisory services in accordance with ILSs Legal and regulatory framework Dispute prevention and resolution mechanisms Training (ILO/ITC) with GOVERNANCE Consensus-building/Negotiation skills Effective dispute prevention and resolution systems Conciliation / mediation skills: Certification course Managing Interpersonal Workplace Conflict Labour Court judges Knowledge sharing Research Knowledge sharing

6 Freedom of association and collective bargaining standards The Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) The Right to Organize and Collective Bargaining Convention, 1949 (No. 98) The Workers Representatives Convention, 1971 (No. 135) The Labour Relations (Public Service) Convention, 1978 (No. 151) The Labour Relations (Public Service) Recommendation, 1978 (No. 159) The Collective Bargaining Convention, 1981 (No. 154) The Collective Bargaining Recommendation, 1981 (No. 163)

7 Governance and other standards Governance standards: The Labour Inspection Convention, 1947 (No. 81) The Labour Inspection Recommendation, 1947 (No. 81) The Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144) The Tripartite Consultation (Activities of the International Labour Organization) Recommendation, 1976 (No. 152) Other standards The Labour Administration Convention, 1958 (No. 150) The Labour Administration Recommendation, 1978 (No. 158) The Termination of Employment Convention, 1982 (No. 158) The Termination of Employment Recommendation, 1982 (No. 166)

8 Dispute settlement standards The Voluntary Conciliation and Arbitration Recommendation, 1951 (No. 92) The Co-operation at the Level of the Undertaking Recommendation, 1952 (No. 94) The Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113) The Communications within the Undertaking Recommendation, 1967 (No. 129) The Examination of Grievances Recommendation, 1967 (No. 130)

9 Technical advisory services Legal and regulatory frameworks Assisting constituents with drafting or reform of labour legislation that regulates mechanisms and procedures for dispute prevention and resolution, through tripartite consultative processes Dispute prevention and resolution mechanisms and processes Supporting the establishment or revitalization of dispute prevention and resolution systems and services, including those within labour administration

10 Industrial disputes settlement: voluntary conciliation and arbitration (R 92) Voluntary Conciliation: Purpose: prevention and settlement of industrial disputes Voluntary, free of charge, expeditious Equal representation of workers and employers Parties encouraged to abstain from strikes or lockouts during the process Agreement reached equivalent to usual agreement Voluntary Arbitration If dispute submitted for final settlement with the consent of all the parties they should abstain from strikes and lockouts BUT does not limit the right to strike

11 Industrial disputes settlement: voluntary conciliation and arbitration (C154, R158) C154 Bodies and procedures for the settlement of labour disputes for the promotion of collective bargaining Voluntary conciliation and/or arbitration can be part of bargaining process R158 Competent bodies within the labour administration should provide conciliation and mediation facilities in case of collective disputes

12 Industrial disputes settlement: compulsory arbitration Compulsory arbitration is generally contrary to the principles of collective bargaining and only acceptable in certain specific circumstances: Where the party requesting arbitration is a trade union seeking a first collective agreement for the promotion of collective bargaining When, after protracted and fruitless negotiations, it becomes obvious that the deadlock will not be broken without some initiative by the authorities When the strike in question may be restricted, or even prohibited, that is: In the event of an acute national or local crisis, but for a limited period of time and to the extent necessary to meet the requirements of the situation In the case of disputes in the public service involving public servants engaged exercising authority in the name of the State In essential services in the strict sense of the term, whose interruption would endanger the life, personal safety or health of the whole or part of the population

13 Examination and settlement of grievances (R130) Encourages the establishment of a grievance procedure at the level of the undertaking as a first step before resorting to other procedures, such as courts or arbitration Not applicable to collective claims aimed at modifying terms and conditions of employment Procedure should be simple and rapid, minimize formalities, ensure the right of the worker to participate, to be assisted or represented Protection against retaliation Grievance prevention through the establishment and proper functioning of a sound personnel policy based on cooperation with workers representatives Adjustment of unsettled grievances through voluntary procedures (e.g. CAs), conciliation/arbitration by the competent public authorities, labour courts or other judicial authority

14 Common features: collective dispute resolution mechanisms Separate procedures for: Collective disputes over interests (new entitlements) Collective disputes over rights (existing entitlements)

15 ILO research on individual labour dispute resolution systems Gaps in the international labour standards system Greater demand for comparative information on national practices ILO research 15

16 Training and capacity building Guide on Labour Dispute Systems: Guidelines for Improved Performance English, Chinese, Arabic, Romanian, Bosnian, Albanian, Arabic, Bulgarian, Spanish, Russian, and French Annual Training Courses on building effective dispute prevention and resolution systems (24-28 October, 2016)

17 Characteristics of good governance Voluntary Consensusoriented Participatory Transparent Follows rule of law Responsive Effective and efficient Equitable and inclusive

18 Key elements of an effective dispute resolution system Preventative emphasis Confidence and trust Range of services/ early interventions (complementarity) Resources Impartiality/ Independence Free/ accessible Voluntarism Innovation Simplicity and Clarity Professionalism

19 European Labour Court Judges Meetings International partnerships Fair Work Commission (Australia): Memorandum of Understanding (MoU) signed in April 2013 Workplace Relations Commission (Ireland): MoU signed in February 2014 Advisory, Conciliation and Arbitration Service (UK) Federal Mediation and Conciliation Service (US): MoU signed in September 2013 Commission for Conciliation, Mediation and Arbitration (South Africa) Labour Relations Agency (Northern Ireland)

20 Recent review and reforms to improve dispute resolution mechanisms (cont.) Greater emphasis on capacity building for dispute resolution practitioners as well as on workplace-level training Development of guidelines or codes of conduct Introduction of case management systems Simplified legal/procedural requirements Policy measures to encourage informal dispute handling through dialogue ILO Social Dialogue: Recurrent Discussion under the ILO Declaration on Social Justice for a Fair Globalization, ILC 102nd Session, Geneva, ILO.

21 Recent review and reforms to improve dispute resolution mechanisms Changes to or creation of dispute resolution processes and institutions Increased/improved use of conciliation, mediation and/or arbitration Introduction of new techniques (e.g. telephone services, one-stop legal advisory services, single contact points) Increased focus on informal workplace-level grievance settlement mechanisms Enhanced role of the social partners or labour administration officials ILO Social Dialogue: Recurrent Discussion under the ILO Declaration on Social Justice for a Fair Globalization, ILC 102nd Session, Geneva, ILO.

22 Contact : Minawa Ebisui Labour Law Officer Labour Law and Reform Unit (LABOURLAW) Governance and Tripartism Department (GOVERNANCE) International Labour Office 4 route des Morillons CH-1211 Genève 22 Switzerland Tel.: Fax: ebisui@ilo.org 22