Introduction to Labour Dispute Prevention and Resolution System

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1 Introduction to Labour Dispute Prevention and Resolution System Sylvain Baffi, Programme Officer, Social Protection, Governance and Tripartism Programme, ITC/ILO International Training Centre of the ILO 1

2 Why labour dispute resolution is gaining more and more attention? More attention devoted to the cost of labour conflict More attention to the impact of labour conflict on production Awareness of advantages of negotiated solutions Economic crisis has forced social partners to look more carefully at their options? Good dispute resolution services as one of the comparative advantages of countries International Training Centre of the ILO 2

3 Aim of an effective system of dispute resolution Encourage collective bargaining Provide voluntary conciliation free and expeditious Discourage industrial actions Ensure that agreements are written and bindings International Training Centre of the ILO 3

4 ILO standards related to dispute resolution Voluntary Conciliation and Arbitration Recommendation, 1951 (N 92) Examination of Grievances Recommendation, 1967 (N 130) International Training Centre of the ILO 4

5 Voluntary Conciliation and Arbitration Recommendation, 1951 (N 92) Voluntary conciliation 1. Voluntary conciliation machinery, appropriate to national conditions, should be made available to assist in the prevention and settlement of industrial disputes between employers and workers. 2. Where voluntary conciliation machinery is constituted on a joint basis, it should include equal representation of employers and workers. International Training Centre of the ILO 5

6 Voluntary Conciliation and Arbitration Recommendation, 1951 (N 92) (cont d) 3. (1) The procedure should be free of charge and expeditious; such time limits for the proceedings as may be prescribed by national laws or regulations should be fixed in advance and kept to a minimum. (2) Provision should be made to enable the procedure to be set in motion, either on the initiative of any of the parties to the dispute or ex officio by the voluntary conciliation authority. International Training Centre of the ILO 6

7 Voluntary Conciliation and Arbitration Recommendation, 1951 (N 92) (cont d) 4. If a dispute has been submitted to conciliation procedure with the consent of all the parties concerned, the latter should be encouraged to abstain from strikes and lockouts while conciliation is in progress. 5. All agreements which the parties may reach during conciliation procedure or as a result thereof should be drawn up in writing and be regarded as equivalent to agreements concluded in the usual manner. International Training Centre of the ILO 7

8 Voluntary Conciliation and Arbitration Recommendation, 1951 (N 92) (cont d) Voluntary arbitration 6. If a dispute has been submitted to arbitration for final settlement with the consent of all parties concerned, the latter should be encouraged to abstain from strikes and lockouts while the arbitration is in progress and to accept the arbitration award. International Training Centre of the ILO 8

9 Voluntary Conciliation and Arbitration Recommendation, 1951 (N 92) (cont d) General 7. No provision of this Recommendation may be interpreted as limiting, in any way whatsoever, the right to strike. International Training Centre of the ILO 9

10 Examination of Grievances Recommendation, 1967 (N 130) Where all efforts to settle the grievance within the undertaking have failed, there should be a possibility, account being taken of the nature of the grievance, for final settlement of such grievance through one or more of the following procedures : International Training Centre of the ILO 10

11 Examination of Grievances Recommendation, 1967 (N 130) (cont d) (a) procedures provided for by collective agreement, such as joint examination of the case by the employers' and workers' organisations concerned or voluntary arbitration by a person or persons designated with the agreement of the employer and worker concerned or their respective organisations; (b) conciliation or arbitration by the competent public authorities; (c) recourse to a labour court or other judicial authority; (d) any other procedure which may be appropriate under national conditions. International Training Centre of the ILO 11

12 Types of dispute management systems Ministries/department of labour Independent statutory bodies Shared arrangements International Training Centre of the ILO 12

13 Types of dispute management systems Ministry or department of labour: under the responsibility of national labour administration International Training Centre of the ILO 13

14 Types of dispute management systems Independent statutory bodies: Under the responsibility of bodies funded by the state but that operates with greater autonomy and independence International Training Centre of the ILO 14

15 Types of dispute management systems Shared arrangements: partly under the responsibility of labour administration and partly in the hands of an independent body International Training Centre of the ILO 15

16 Types of disputes Individual dispute Collective dispute Rights disputes Interest dispute International Training Centre of the ILO 16

17 Types of disputes Individual dispute: A disagreement between a single worker and his or her employer usually over existing rights. It can also include situations in which a number of workers disagree with their employer over the same issue, but where each worker acts as an individual. International Training Centre of the ILO 17

18 Types of disputes Collective dispute: A disagreement between a group of workers usually, but not necessarily, represented by a trade union, and an employer or group of employers over existing rights or future interests. International Training Centre of the ILO 18

19 Types of disputes Rights disputes: A disagreement between a worker or workers and their employer concerning the violation of an existing entitlement embodied in the law, a collective bargaining agreement or under a contract of employment. International Training Centre of the ILO 19

20 Types of disputes Interest disputes: A disagreement between workers and their employer concerning future rights and obligations. Such disputes are not based on existing entitlements but over the desire of one party to create new rights in the future. International Training Centre of the ILO 20

21 Some useful terminology for working together Conciliation/mediation: A process whereby an independent and impartial third party assists the disputing parties to reach a mutually acceptable agreement to resolve their dispute International Training Centre of the ILO 21

22 Some useful terminology for working together Compulsory conciliation/mediation: A situation in which the disputing parties are required by law to use the conciliation service provided by government. International Training Centre of the ILO 22

23 Some useful terminology for working together Voluntary conciliation/mediation: A situation where the disputing parties are free to decide whether or not to use the available conciliation service. International Training Centre of the ILO 23

24 Some useful terminology for working together Arbitration: The determination of a dispute by one or more independent third parties rather than by a court. During arbitration, an arbitrator hears the arguments of both parties to a dispute and settles the case by making an award. International Training Centre of the ILO 24

25 Some useful terminology for working together Adjudication: A process of settling a dispute in a court before a judge or magistrate in accordance with the formalities and procedures required by law. International Training Centre of the ILO 25

26 Approaches to dispute resolution Avoidance Power Consensus Rights

27 Approaches to dispute resolution Avoidance A party fails to deal with the dispute. Power Consensus Rights

28 Approaches to dispute resolution Avoidance Power Consensus Rights A party uses coercion to force another to do what it wants.

29 Approaches to dispute resolution Avoidance Power Consensus Rights A party endeavours to reconcile, compromise or accommodate positions or underlying needs.

30 Approaches to dispute resolution Avoidance Power Consensus Rights A party uses some independent standard of right or fairness to resolve the dispute

31 Approaches to dispute resolution AVOIDANCE POWER POWER RIGHTS RIGHTS CONSEN- SUS INEFFECTIVE SYSTEM CONSENSUS EFFECTIVE SYSTEM

32 DISPUTE RESOLUTION PROCESSES AVOIDANCE POWER RIGHTS CONSENSUS SETTLEMENT BY CHANCE SETTLEMENT BY FORCE VIOLENCE THREATS GO-SLOWS WORK TO RULE STRIKE LOCK-OUTS BANS BOYCOTTS BALLOTS DEMONSTRATIONS DISCIPLINE SETTLEMENT BY OUTSIDE PARTY COURT ARBITRATION FACT FINDING HYBRIDS ADVISORY ARBITRATION MED/ARB ARB/MED SETTLEMENT BY THE PARTIES NEGOTIATION JOINT PROBLEM SOLVING MEDIATION CONCILIATION FACILITATION R.B.O. BLOCKADES

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

34 Preventive emphasis Means not only conciliation/mediation, but also Advisory information Training services Proactive approach International Training Centre of the ILO 34

35 Preventive emphasis in practice Early resolution service Contacting parties before collective bargaining process start Proving training Providing Helplines Providing resources books International Training Centre of the ILO 35

36 Range of services Not only private sector Not only conciliation Not only rights disputes or collective disputes International Training Centre of the ILO 36

37 Range of services in practice Provision of information Advice Training Investigations Conciliation/Arbitration Arbitration/Conciliation International Training Centre of the ILO 37

38 Free service Provided by Recommendation N 92: voluntary conciliation procedures should be free of charge to the disputing parties International Training Centre of the ILO 38

39 Free service in practice Most statutory dispute resolution systems are free of charge Some systems charge the users with costs associated with interpretation, witnesses etc.. Representation costs usually borne by the parties International Training Centre of the ILO 39

40 Voluntarism Free to decide to use the services Gives chance to parties to use privately operated systems International Training Centre of the ILO 40

41 Simplicity Procedures and operations are clear, uncomplicated, informal Friendly forms Conciliation should look as an informal mechanism International Training Centre of the ILO 41

42 Simplicity in practice CCMA forms Language used Avoiding legalistic language International Training Centre of the ILO 42

43 Professionalism Fair selection of staff Staff trained Code of behaviours regulates the operation of the staff International Training Centre of the ILO 43

44 Professionalism in practice Innovative training tool Code of ethics available Staff recruited on the basis of competencies Compulsory training International Training Centre of the ILO 44

45 Innovation Be flexible New approached to dispute resolution and preventive approach Mobile services ICT technology International Training Centre of the ILO 45

46 Innovation in practice LRC (Ireland) mobile conciliation service Facilitation of disputes resolution Guidelines and website Mobile mediation International Training Centre of the ILO 46

47 Varieties of resources International Training Centre of the ILO 47

48 On-line application International Training Centre of the ILO 48

49 Independence No control by political parties No control by employers or workers But involvement of Government, Employers and workers in the governance of the system International Training Centre of the ILO 49

50 Resource support Sufficient resources to operate the system which includes: Sufficient professional staff Sufficient support staff Adequate space Adequate equipment International Training Centre of the ILO 50

51 Good governance of institutions How does all this fits with the principles of good governance? International Training Centre of the ILO 51

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

53 Participation Participation in decision making: are employers and workers being involved in process-making? Are employers and workers aware of the outcome of the systems? International Training Centre of the ILO 53

54 Participation International Training Centre of the ILO 54

55 Rule of Law Faire legal frameworks enforced impartially: Is labour law fairly applied? Are judges trained? Do we deal with cases efficently? International Training Centre of the ILO 55

56 Transparency Decisions taken follows rules Information is available and accessible International Training Centre of the ILO 56

57 Information is available International Training Centre of the ILO 57

58 Responsiveness Serve stakeholders in a reasonable time frame International Training Centre of the ILO 58

59 South Africa Arbitration Workflow International Training Centre of the ILO 59

60 Consensus Oriented Moderation of society viewpoints Requires long term understanding of what is needed Requires understanding of the historical, cultural and social contexts International Training Centre of the ILO 60

61 Equity and inclusiveness All groups of the society are covered, especially the most vulnerable Do we cover informal economy? Do we have sufficient geographical coverage? Do we have gender balanced staff? International Training Centre of the ILO 61

62 Equity and inclusiveness International Training Centre of the ILO 62

63 Effectiveness and efficiency Does the system have targets? Do we have indicators of success? Do we have a computerized case management system? International Training Centre of the ILO 63

64 Accountability Is the system accountable? Does the system makes the best use possible of its resources? International Training Centre of the ILO 64

65 Accountability International Training Centre of the ILO 65

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

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