International Dispute Resolution
Overview
• Little distinction between interests disputes and right
disputes, such as in U.S. and Canada
– Grievance Procedures
• May or may not be negotiated between union and management
• If negotiated, may not be exclusive
– Complaints not restricted to those negotiated by labor and
management (no “arbitrability”)
– Complaints may come from employees or representatives
– Strikes may occur
– Binding resolution of disputes common; U.S./Canadian
style arbitration uncommon
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Role of Law
• Most countries provide employees legal
protection against unjust dismissal and other
issues
– U.S. and unjust dismissal
• Montana has a law
• Other states may apply judicially-created common law
doctrines
– Implied contract
» Witten – handbooks
» Oral
– Public Policy
– Good Faith and Fair Dealing
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Third Party Intervention
• Used if “direct dealing” cannot resolve the
dispute
– In most countries, court system has a role in resolving
shop floor disputes
• Flows from highly regulated employment relationship
– Labor Court the most common adjudicative
mechanism
• May be expert judges in some countries
• May be tripartite
– Professional judges
– Lay judges representing labor and management
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Arbitration
• Rarely used
– Exceptions – Canada, Japan
• Substitutes
– tripartite labor courts look something like
arbitration
– Conciliation boards or committees may issue
binding decisions
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Other Third Party Mechanisms
• Conciliation Committees
– Belgium – tripartite with government-appointed chair
• Industrial sectors
– Regional level
– National level
– Italy – provincial conciliation commission in labor office
– Netherlands – committees offer “binding advice” but not legally
enforceable
– France – Labor Inspectorate enforces labor standards
– Japan – Labor Relations Commission
• Voluntary resolution
• Arbitration
– UK – Advisory Conciliation and Arbitration Service
• Conciliation
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Labor Court Example - Germany
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Labor Court System has special and exclusive jurisdiction to hear labor law disputes
Three levels
– 1) labor courts
2) Higher labor courts - courts of appeal
3) The Federal Supreme Labor Court - final court of appeal
Jurisdiction
– labor courts adjudicate private law disputes involving statutory rights - examples
• wrongful dismissal,
• infringements of works council procedures,
• wage payment problems
• interpretation of collective agreements..
– Appeal - automatic right of appeal for all cases before the labor courts provided the award is in
excess of 1200 DM.
Composition
– Each labor court contains a mixture of professional and lay judges– court of first instance (labor court) is composed of one professional and two lay members drawn
from both sides of industry.
Procedure
– labor Court preliminary meeting is normally set in order that a labor court judge may achieve an
amicable settlement without recourse to a formal hearing.
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It is not necessary to be represented by a lawyer during lower labor court proceedings.
Higher labor court, parties must be represented by a lawyer, trade union official, or employers'
association official. All cases before the Federal labor Court must be legally represented.
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Labor Court Example - Italy
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labor courts an integrated element of the civil court system.
Composed of professional judges who deal with a wide range of social insurance
and social welfare issues as well as internal civil service disputes and labor law.
– There are three levels of labor court:
• 1) The court of first instance
2) The appeals court
3) The Cassazione
Before a case will be heard by a labor court, the parties must show that they have
attempted to settle the dispute by all reasonable means.
– In collective disputes, this will normally require the involvement of public
labor officials or an independent mediator.
– When a case reaches court, the presiding judge will also normally seek to
reach an informal settlement which can then be admitted as a full decision of
the court.
Court proceedings in labor courts allow for the extensive admission of evidence by
the plaintiff and defendant. Moreover, the decision of the court is normally
reached immediately after the conclusion of pleadings by each party.
All parties must be legally represented at every level of labor court.
– Both individuals and collective bodies may seek a decision by the court. U
– Unions may intervene in individual disputes if the case involves the interpretation of a
collective agreement.
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Labor Courts Example - Spain
Around 300,000 cases are heard by Spanish labor courts each year. However, only 40% of all cases relate to
contracts of employment, with the balance being taken up by social security disputes.
There are three levels of labor court:
– 1) The social courts at a provincial level.
2) The social chamber of the high courts at a regional level.
3) The social chamber of the Supreme Court in Madrid.
Authority
– individual disputes about statutory rights or contracts of employment,
– collective disputes.
• may only be heard in the presence of a relevant employer (or employers' association) and
trades union representative.
Procedure
– generally require the parties to have sought independent mediation.
• Mediation, Arbitration and Conciliation Service
• Conciliation arrangements are usually provided for under major national and regional collective
agreements.
– At the start of a hearing before a labor court, a judge will normally seek to reach a legally enforceable
settlement between the parties without recourse to formal proceedings.
– No settlement and formal hearing , it will usually be speedily dealt with through oral submissions.
Each party will be called upon to state their case, a consideration of evidence will take place, and
each party will perform a summing up. The court will normally publish its decision within five days of
the hearing.
The members of all courts are professional judges and there are no lay members.
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Labor Court Example - Portugal
• Structure
– Part of Ministry of Justice, a special division
• Until 1976, part of ministry of employment
• Coverage is geographic, most populated areas
– Regular courts deal with labor issues in less populated
areas
• Authority
– All civil and contractual matters arising from employment
relationship
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Accidents
Workplace health and safety
Worker complaints under collective agreements
Allegations of violations of labor and employment statutes
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United Kingdom
• No Labor Courts
• Employment/Industrial Tribunals
– Tripartite
– Jurisdiction over a wide range of employment
matters, primarily unjust dismissal
• Arbitration
– Alternative to Tribunal
– Through Advisory Conciliation and Arbitration Service
(ACAS) for flexible working arrangement (similar to
FMLA)
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Labor Courts - France
• Industrial tribunals whose unique feature is its strictly joint
composition, with half of its members (judges) elected by
employees and half by employers.
– exclusive authority for dealing with individual disputes arising from the
contract of employment.
• All disputes must be the subject of an initial conciliation stage
(before a joint conciliation board).
– Oral presentation
– Personal appearance, attorney optional
• . Appeals against their rulings may be brought before the Courts of
Appeal and before the Supreme Court .
• Although frequently criticized, the Industrial Tribunals are strongly
supported both by many employers and by the trade unions.
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General Conclusions
• Exclusive use of adversarial binding arbitration
used to resolve disputes under CB used only in
– US - voluntary
– Canada –statutory
• Other countries
– Legal structures
• Regular courts
• Labor courts
– Consensual Systems
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