Download ppt - Key Issues Highlighted1 International Perspectives: Workplace Dispute Resolution Conference Cape Town, 22 – 23 October 2008 Key Issues Highlighted Nerine

Key Issues Highlighted 1

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

Nerine Khan Important to share common issues and common

problems, share issues, have discussions and debate Important role of dispute resolution agencies in a time of

economic down-swing




Judge R Zondo The importance of looking at the resolution of labour

disputes in different jurisdictions Different jurisdictions to share their experiences Look at issues to see where we are going wrong and

where we would like to be “Forum shopping” (choosing the forum that you think you

might be most successful in)




Judge R Zondo Labour Relations Act of 1995 Provide for an agency where people are well trained in

Mediation and Arbitration Such agency to provide for the expeditious resolution of

labour disputes




Judge R Zondo • Chirwa case (forum shopping), Constitutional Court found

that the High Court did not have jurisdiction and that the dispute should have followed the mechanisms set out in the Labour Relations Act

Other recent cases have tended to uphold the Chirwa finding (Fredericks)

There should be no confusion that could lead to 'forum shopping' (This could take up to 20 years!)




Prof Haroon Bhora

(An economist at a lawyers conference) Unemployment in South Africa, Descriptors &

Determinants The lens that economists use when trying to understand

the labour market The key labour market challenge is UNEMPLOYMENT! South Africa's unemployment rate is more than double its

nearest comparative country in the 'developed' world




Prof Haroon Bhorat

• The disparity in unemployment rates in terms of race and gender

• 34% of people between 15 & 24 unemployed, youth unemployment is a predictor for the future

• Youth unemployment is a concern globally, but far more pronounced in SA

• Highest growth in unemployment for the more highly educated, are the right graduates being produced?




Prof Haroon Bhorat

• Differentiating between the unemployed and the unemployable

• Legacy of Apartheid Schooling, disadvantage still located within traditional African Schooling

• Possible causes: Output & Employment, Growth, Wages & Employment, Trade Unions & Bargaining Councils

• Looking ahead: Pro-Poor Growth? Growth has not been Pro-Poor




Prof Haroon Bhorat • The gains from growth have not been shared equally, the

“Second Economy”

• Dispute resolution systems and processes should be seen within the wider context of the labour market, one of which is the scale of unemployment, this latter factor, especially amongst the 15-24 year old work seekers is a major challenge for dispute resolution




Australia A discussion of the major recent changes in the

workplace relations system in Australia & the present Government’s legislative programme – including an analysis of likely developments in relation to minimum conditions of employment, bargaining & dispute settlement.




Australia: Justice Geoff Giudice

• A number of major reforms in Industrial Relations systems in Australia in last 15 years

• Previously compulsory Conciliation and Arbitration, Arbitration now only available in relation to disputes that threaten the economy or an important part of it or which threaten the health and welfare of a significant part of the population

• Protected action may not be taken without a ballot and an order of the Australian Industrial Relations Commission




Australia: Justice Geoff Giudice • Statutory protection against unfair termination of

employment

• Commission can assist Collective Bargaining disputes through Conciliation and Mediation

• “The value of good labour relations cannot be underestimated”




Northern Ireland: Bill Patterson The state of dispute resolution, collective bargaining

trends, effects of the global economic down-swing. Impact of the changing nature of work.




Northern Ireland: Bill Patterson Government review of Dispute Resolution Revised legislation expected 2009-2010 Abolish fixed periods for conciliation Introduce comprehensive LRA Guidelines Expand LRA dispute resolution services to a full menu of

mediation processes




United Kingdom: John Taylor A specific focus on Alternative Dispute Resolution

Agencies’ role in educating and promoting workplace best practice and good employment relations

“Good employment relations are the new competitive advantage”




United Kingdom: John Taylor ACAS, created by employers and unions coming

together, “mutuality of purpose,” completely impartial Prevent or resolve disputes between employers and their

workforces An organisation for the workplace, not simply an

organisation dealing with conflict, encourage people to work together more effectively




United Kingdom: John Taylor How do you balance out employee rights with employer

desire for a flexible market?




United Kingdom: John Taylor ACAS Aim: “Improve organisations and working life

through better employment relations” Perceptions of job insecurity fuelled by outsourcing, off-

shoring and employment fragmentation Changing workforce pattern – gender, age, nationality Changing working patterns (24/7 society) Growing influence of ICT




United Kingdom: John Taylor Growing income inequalities, concern over vulnerable

workers, but minimum wage effective Emergence of super-unions – UNITE etc Future Business Challenges: Managing 'Diversity',

Managing continuous change, Making the most of the work-force's potential – 'Human Capital'




United Kingdom: John Taylor

ACAS' role going forward: Greater focus on ADR New code of practice on discipline and grievance Expansion of pre-claim conciliation Greater focus on mediation services Boost professionalism of collective conciliation

• “Voluntarism, based on the credibility and professionalism of the dispute resolution agency”




United Kingdom: John Taylor 2000 + “The Age of Resolving Issues and Maintaining

Relationships” Win-Win




South Africa: Nerine Kahn The state of dispute resolution, collective bargaining

trends, effects of the global economic down-swing. Impact of the changing nature of work. A specific focus on the challenges of migrant labour in

South Africa




Republic of Ireland: Kieran Mulvey & Maurice Cashell The state of dispute resolution, collective bargaining

trends, effects of the global economic down-swing. Impact of the changing nature of work. A specific focus on increased diversification of the

workforce, including migrant labour.




Republic of Ireland: Kieran Mulvey & Maurice Cashell Rights Commissioner Service: Focus on a non-

adversarial, solution seeking approach to resolving labour conflicts

Rights Commissioners are independent of the Commission and are chosen from a list put forward by trade unions and employers

70% of decisions by Rights Commissioners are made in favour of the claimants

High number of claims by migrant labourers




Republic of Ireland: Kieran Mulvey & Maurice Cashell Labour Relations Commission Codes of Good Practice The Irish Social Model 1987-2008: The Irish Process of

Social Partnership. (Move from adversarialism to consultation, negotiation, bargaining, problem solving)

Agreement towards 2016 (Traditional agreement to meet the economic crisis)

The Bargaining Agenda-National / Enterprise Level




Republic of Ireland: Kieran Mulvey & Maurice Cashell New Migrant Workforce – Ireland The Challenge of Integration: The concerns of the unions

(replacement workers, unrepresented workers); Ensuring Statutory Protection; Access to Dispute Resolution Services

“Living in difficult times, there are great possibilities for change, we work for people and with people!”




Canada: Guy Baron Supreme Court of Canada decision in British Columbia

Health Services Constitutional Protection extended to the right to free

collective bargaining Right includes duty to bargain in good faith Canadian adherence to international agreements (ILO

Conventions) further supports right




Canada: Guy Baron The Federal Mediation and Conciliation Service:

Proactive in Building and Rebuilding Relationship Collective Bargaining: Conciliation/Strike or Arbitration Grievances; Mediation, Adjudication The Canada Labour Code: Federal Jurisdiction for the

Proactive Facilitation of Disputes




United States of America The state of dispute resolution, collective bargaining

trends, effects of the global economic down-swing. Impact of the changing nature of work. A specific focus on developing mediation capacity & skills

in ADR Institutions & in Workplaces




United States of America Unionised workforce perceived to be more costly than

non-unionised Intensification of labour-management tension,

management and unions negotiating as economic adversaries rather than collaborative problem-solvers

Increase in labour-management tension Job security becoming key bargaining issue with health

care and pensions




United States of America Persistent attitude that accepting mediation in a dispute is

a sign of weakness Lack of labour-relations training at business schools Fewer labour-relations professionals, lack of experience

on both sides FMCS program, teaching the value and benefits of

mediation




United States of America “Real challenge in conflict management is people

choosing how they are going to deal with that conflict!” “We need to look for ways to accommodate one-another” Need for Relationship Development and Training Need to keep Renewing Relationships




New Zealand: James Wilson The state of dispute resolution, collective bargaining

trends, effects of the global economic down-swing. Impact of the changing nature of work. A specific focus on dispute prevention initiatives &

outreach programme; migrant labour & newly introduced arrangements with Pacific Nations.




New Zealand: James Wilson Employment Relations Act 2000 introduced good faith

bargaining and increased union rights Act's overall objective: “To build productive employment

relationships through the promotion of mutual trust and confidence in all aspects of the employment relationship”

In terms of Act 'Good Faith Obligation' underlies employment relationships.

Employers & employees encouraged to talk & listen to each other.




New Zealand: James Wilson Focus is on solving problems at earliest stage Mediation is free, fast and flexible Bargaining process agreements and mediation are seen

as positive More important than legislation is the willingness of the

union and the employer to work constructively together




New Zealand: James Wilson Mediators need to be involved before bargaining reaches

a point of breakdown Mediators are useful for parties in negotiation Mediation improves the quality of negotiation Mediation helps parties get a better understanding of

each others positions “There needs to be a clearer connection between

workplace practices and productivity”




New Zealand: James Wilson Emotional commitment is four times as valuable as

rational commitment in producing discretionary effort The search for a high-performing workforce is

synonymous with the search for emotional commitment “What's good for business is good for people, and what's

good for people is good for business!”