Survey
* Your assessment is very important for improving the workof artificial intelligence, which forms the content of this project
* Your assessment is very important for improving the workof artificial intelligence, which forms the content of this project
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 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) 2 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 3 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] 4 Multiple challenges to effective systems - • • • • • • 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 • • • • • • • • • 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 • • Broader political economy - • 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 • • • • Information and prevention services • • • • • • • • • 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 5 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 6 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 7 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 8 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? 9 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 10 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 • • • Working papers Policy briefs Global comparative synthetic report 11 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] 12