Improving the performance of individual dispute resolution systems:
A global perspective
6 February 2017
Minawa Ebisui Labour Law Reform Unit (LABOURLAW) Governance and Tripartism Department International Labour Office, Geneva 1
ILO research on performance of individual labour dispute resolution systems
Follow-up decisions by the Governing Body concerning the Cartier
Working Party conclusions (2002): Recommendations Nos. 92, 130.
Proposal for general discussions on “promoting sound industrial relations through the prevention and resolution of labour disputes” (2012)
Conference conclusions concerning the Recurrent Discussion on
Social Dialogue (2013)
Plan of Action to follow up on the ILC discussion on social dialogue endorsed by the 319th Session of the Governing Body (2013)
Progress of research and preliminary findings will be informed to
the 328th Session of the Governing Body concerning the Agenda of the International Labour Conference (2016)
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ILO research: what has been done
Over 50 country studies conducted in all regions, using a pre-established research questionnaire, to examine:
• Both judicial and extra-judicial dispute resolution mechanisms and
processes, including: - Specialized labour court/tribunal procedures; - Conciliation/mediation and arbitration; and - Bipartite voluntary procedures through the participation of employers and
workers.
• Interaction between these mechanisms, and their connection to labour inspectorates
Research workshops in 2015
Book on OECD countries
Multiple challenges to effective systems
Legal and procedural frameworks
Access to collective voice
mechanisms and their role
Adjudication and/ or
arbitration
Information and
prevention services
Non-adjudicative settlement
through conciliation
and/or mediation
Enforcement and
implementation of outcomes
Performance
assessment in terms of both efficiency and
quality
- • Legally guaranteed
access and coverage • Lack of jurisdictional
and procedural clarity/complexity
• Cumbersome and lengthy procedures
• Multiplicity of institutions and processes
• Limitations on substantive /normative rights protections including FPRWs
• Procedural disconnections and limitations
Broader political economy
- Policy changes and law reforms
- Labour market situations
- Budgetary constraints - Lack of coordination at
international level
• Gap between unionized and non-unionized workers in terms of access to justice
• Low or declining coverage of collective voice mechanisms (trade unions and other representation mechanisms)
• Limited or premature industrial relations and social dialogue
• Limited focus on the role of collective mechanisms by law or in practice
• Weaker claimants, particularly the vulnerable do not tend to access in practice even when they are legally guaranteed to access.
• Increasing need to establish either judicial or quasi-judicial specialized labour court/tribunal or arbitration procedures to ensure expertise, at the same time providing options that are speedier, less formal, less costly and thus more accessible.
• Ordinary courts are lengthy, expensive, formal and complex • Alternative pathways (e.g. non-discrimination and equality
bodies): lack of coherence across various forums • Limited access to and/or lack of free legal aid and
representation services • Case overloads
• Budget constrains • Human resources constraints • Overloaded with settlement of disputes • Limited focus on statistical and case
management
• Different meanings and processes depending on forums
• Limited coverage • Limited focus and use • Lack of appropriate incentives • Lack of understanding of the meaning,
processes, benefits, expected outcomes • Limited capacity of conciliators/mediators
and understaffing • Over-emphasis on efficiency: quality
concerns
• Lack of or limited adherence to and/or enforcement of conciliation/mediation agreements, arbitration awards, judicial orders or rulings
• Complex, costly and lengthy enforcement process
• Lack of statistical and case management systems and their cost
• Overemphasis on efficiency • Limited evidence on quality
(e.g. confidence and trust, impartial and fair processes, outcomes, capacity of practitioners)
• Lack of assessment criteria • Difficulty in establishing a
balanced combination of various mechanisms
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Common responses and innovations
Improving legal and procedural frameworks
Establishing and strengthening
specialized courts/procedures
Improving efficiency and quality of processes and
outcomes
Increased role of private actors,
including through public-private partnerships
Increased focus on information, advice,
awareness-raising and education services
Empowering weaker individual claimants
Introducing proactive/targeted
approaches
Strengthening role of collective voice
mechanisms
Increased use of conciliation and
mediation in and outside the adjudication
systems
Social partners
Lawyers/law firms
Academics
Private conciliators/
mediators and arbitrators
Key private actors/entities
Judicial mechanisms
Administrative mechanisms
Dispute resolution Labour inspection
Alternative pathways (e.g. human rights or non-discrimination
bodies)
Workers’ representatives
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NGOs and community
organizations
Scarcity in good practices and innovations – further research needs
Enhancing the quality of settlement procedures and outcomes – what criteria is used to ensure the quality?
What are major challenges to ensuring the quality of
conciliation/mediation that hinder meaningful access to justice?
What kind of criteria can be used to assess the quality of conciliation/mediation?
What efforts are being made to ensure the quality of
conciliation/mediation?
Available empirical research findings on the quality of conciliation/mediation
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Scarcity in good practices and innovations – further research needs
Improving adherence to and enforcement of outcomes
What are major causes of such challenges? In what kinds of
disputes do such implementation challenges exist?
What efforts or innovative practices are adopted to ensure that settlement agreements, judicial orders, rulings or enforcement orders are appropriately adhered to or implemented? What is their impact?
Available statistics or empirical research findings on the level of their adherence or implementation
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Further research needs
Strengthening the role of bipartite procedures
through collective voice mechanisms What are the major shortcomings of, or challenges to, effective
functioning and use of such processes?
What kinds of legislative or policy measures are effective to encourage bipartite processes and to ensure appropriate connection to formal mechanisms?
What sorts of services (e.g. information, advice, counselling,
training, Q&A/guidelines) are provided to encourage voluntary prevention and settlement of disputes?
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Scarcity in good practices and innovations – further research needs
Coordination between different administrative
authorities, and between them and judicial authorities beyond the labour administration systems
Coordination at the supra-national/international level
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Ways forward
Research continues to work to identify guiding principles for effective individual labour dispute resolution systems, taking into account the global developments in access to justice, in the context of the Sustainable Development Goals.
Review of existing International Labour Standards
Forthcoming publications
• Working papers • Policy briefs • Global comparative synthetic report
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Forthcoming (November 2016) Reference: Print: 978-92-2-130419-7[ISBN] Web PDF: 978-92-2-130420-3[ISBN] Contact(s): To order printed copies: [email protected]
Chapter 1: Resolving individual labour disputes: A general introduction Minawa Ebisui, Sean Cooney and Colin Fenwick Chapter 2: Australia Anthony Forsyth Chapter 3: Canada Stéphanie Bernstein Chapter 4: France Isabelle Daugareilh, Allison Fiorentino, Joël Merkhantar, Sylvain Niquège, Mireille Poirier, Nicolas Sautereau and Sébastien Tournaux Chapter 5: Germany Bernd Waas Chapter 6: Japan Ryuichi Yamakawa Chapter 7: Spain Adoración Guamán Hernández Chapter 8: Sweden Jenny Julén Votinius Chapter 9: United Kingdom Benjamin Jones and Jeremias Prassl Chapter 10: United States Aaron Halegua
Resolving individual labour disputes: A comparative overview Edited by Minawa Ebisui, Sean Cooney and Colin Fenwick
Book on OECD countries
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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: [email protected]
