Download Presentation of Minawa Ebisui

ILO global research
Improving the performance of
individual dispute resolution systems:
A global perspective
Ohrid, FYROM
18 October 2016
Minawa Ebisui
Labour Law Reform Unit (LABOURLAW)
Governance and Tripartism Department
International Labour Office, Geneva
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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
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Book on OECD countries
Resolving individual labour disputes:
A comparative overview
Edited by Minawa Ebisui, Sean Cooney and Colin Fenwick
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
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]
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Multiple challenges to effective systems
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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
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Policy changes and law
reforms
Labour market
situations
Budgetary constraints
Lack of coordination at
international level
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
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
•
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Broader political
economy
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•
Performance
assessment in
terms of both
efficiency and
quality
•
Legal and
procedural
frameworks
Enforcement
and
implementation
of outcomes
•
Access to
collective voice
mechanisms and
their role
Nonadjudicative
settlement
through
conciliation
and/or
mediation
Adjudication
and/ or
arbitration
•
Budget constrains
Human resources constraints
Overloaded with settlement of disputes
Limited focus on statistical and case
management
•
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Information
and
prevention
services
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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
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, lengthy 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
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Common responses and innovations
Key private actors/entities
Improving legal and
procedural
frameworks
Social partners
Workers’
representatives
Lawyers/law
firms
Private
conciliators/
mediators and
arbitrators
NGOs and
community
organizations
Increased use of
conciliation and
mediation in and outside
the adjudication
systems
Establishing and
strengthening
specialized
courts/procedures
Judicial mechanisms
Strengthening role
of collective voice
mechanisms
Introducing
proactive/targeted
approaches
Improving the quality
of processes and
outcomes
Administrative
mechanisms
Dispute resolution
Labour inspection
Alternative pathways
(e.g. human rights or
non-discrimination
bodies)
Empowering weaker
individual claimants
Increased role of
private actors,
including through
public-private
partnerships
Increased focus on
information, advice,
awareness-raising and
education services
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Scarcity in good practices and
innovations – further research needs
 Enhancing the quality of settlement procedures and
outcomes – what criteria
 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.
 Forthcoming publications
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•
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Working papers
Policy briefs
Global comparative synthetic report
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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]
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