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

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Adjudication Arbitration

Industrial action

Conciliation/mediation

Information and prevention

Negotiation/collective bargaining Social dialogue

Workplace cooperation

Key principles of an effective dispute resolution system

Modern dispute resolution theory

workplace relations

and dialogue

negotiation

conciliation

mediation

arbitration

judiciary

power

Losing control

Balance of power and how it changes

SOURCE: F. Steadman - Handbook on Alternative Labour Dispute Resolution

The evolution of a labour dispute

ILO support

• Legal and regulatory framework • Dispute prevention and resolution mechanisms

Advisory services in accordance with ILSs

• Consensus-building/Negotiation skills • Effective dispute prevention and resolution systems • Conciliation / mediation skills: Certification course • Managing Interpersonal Workplace Conflict • Labour Court judges

Training (ILO/ITC) with GOVERNANCE

• Research • Knowledge sharing

Knowledge sharing

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)

Freedom of association and collective bargaining 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)

Governance and other 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)

Dispute settlement standards

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

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

Industrial disputes settlement: voluntary conciliation and arbitration (R 92)

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

Industrial disputes settlement: voluntary conciliation and arbitration (C154, R158)

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

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

Examination and settlement of grievances (R130)

Common features: collective dispute resolution mechanisms

Separate procedures for:

• Collective disputes over interests (new entitlements) • Collective disputes over rights (existing entitlements)

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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

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)

Characteristics of good governance

Voluntary Consensus-

oriented

Transparent

Responsive

Equitable and

inclusive

Effective and

efficient

Follows rule of law

Participatory

Key elements of an effective dispute resolution system

Preventative emphasis

Range of services/ early interventions (complementarity)

Free/ accessible

Voluntarism

Simplicity and Clarity

Professionalism

Innovation

Impartiality/ Independence

Resources

Confidence and trust

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)

• European Labour Court Judges Meetings

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. 2013. Social Dialogue: Recurrent Discussion under the ILO Declaration on Social Justice for a Fair Globalization, ILC 102nd Session, Geneva, ILO.

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. 2013. Social Dialogue: Recurrent Discussion under the ILO Declaration on Social Justice for a Fair Globalization, ILC 102nd Session, Geneva, ILO.

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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.: +41.22.799.7855

Fax: +41.22.799.8749

E-mail: ebisui@ilo.org