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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
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