Conciliation, mediation and arbitration in Spain
An agreement on resolving labour disputes out of court was signed in January 1996 by Spain's largest unions (UGT and CC.OO) and employers' associations (CEOE and CEPYME), covering the period until 31 December 2000. The agreement built on the experience in mediation and arbitration at a regional level that had grown on the basis of joint quasi-judicial institutions formed in the 1990s. We review the complex system which now applies in this area.
The Spanish system of mediation and arbitration
In Spain, as in other countries of the European Union, the history of labour relations has determined the structure of the system for resolving disputes.
A system of labour tribunals (Jurisdiccion del Orden Social) comprises courts of professional judges that resolve individual and collective labour disputes. These courts have an area of competence and procedure that are different from those of civil law. Their procedures lead to rulings issued by the judges that are published in an official source and are binding on all parties (though they are open to appeal).
However, before disputes reach these labour tribunals, there are two opportunities for conciliation (in which the dispute is resolved by the parties themselves) and mediation (in which the participants choose to accept a resolution proposed by a mediator). The first opportunity is offered by the Regional Mediation, Conciliation and Arbitration Units (Unidades Territoriales de Mediacion, Conciliacion y Arbitraje) that are staffed by civil servants. If this fails, the second opportunity is given on the same day as the public hearing before the judge specialising in labour law. The judge attempts mediation, which means that an interesting mixture of conciliation and mediation is involved. Most of the Regional Units come under the jurisdiction of the Autonomous Administrations, though not all have been transferred. (There are 17 Autonomous Communities in Spain - such as Catalonia, the Basque Country and Andalucia- each one of which is governed by an Autonomous Administration.)
There also exists a Spanish Public Labour Administration (Administracion Publica Laboral Espanola), with powers to rule on whether or not the economic, technical, organisational or operational reasons alleged by a company in making redundancies are justified. This administrative decision is adopted after a period of consultation between the company management and the workers' representatives, and this channel therefore also incorporates elements of mediation for resolving disputes. The Labour Inspectorate also takes part by drawing up reports. However, if there is no agreement in the consultation period then the final ruling is made by the Labour Administration by means of an administrative decision, which approves or rejects the proposed redundancies.
Given the great volume of cases processed through the different judicial channels for resolving disputes and the lack of a tradition of arbitration in the Spanish model of labour relations, in the early 1990s the social partners initiated a series of agreements at regional level involving the creation of joint organisations of unions and employers for resolving disputes out of court.
Joint quasi-judicial institutions
This scheme was pioneered in the Basque Country, and was then extended to Catalonia, Andalucia, the Canary Islands, Valencia and Galicia, that is to say, most of the Autonomous Communities with major powers and with a more autonomous approach to labour relations. The Administrations of these Autonomous Communities granted different types of aid and support to these initiatives.
By virtue of the Agreement on resolving labour disputes out of court concluded in late January 1996, a new institution - the Interconfederal Mediation and Arbitration Service- was created designed to encompass the whole of Spain. In its structure and functions, it is similar to the USA's Federal Mediation and Conciliation Service. Access to this new institution is limited to those matters that are expressly granted to its jurisdiction. It therefore does not interfere with the existing joint institutions at a regional level, and in fact is aimed mainly at Autonomous Communities that do not have organisations of this type.
The competence of all these joint institutions covers collective labour disputes and certain individual disputes where more than one worker is involved. Both the agreements reached through conciliation and mediation and the findings of the arbitrators produce defence of res judicata. This means that a person concluding his or her action with a joint institution cannot then present it to a labour tribunal, and vice versa. The interested parties may choose either one channel or the other. However, there are matters for which competence is reserved for the labour tribunals, such as social security litigation. Meanwhile, officials of the Regional Units or judges may not act as arbitrators in a joint institution.
Mediation and arbitration figures
It is still difficult to obtain a general overview of the impact of the different mediation and arbitration systems in Spain. Statistics on mediation, arbitration and conciliation are published by the Ministry of Employment and Social Affairs. The source of its figures are the Mediation, Conciliation and Arbitration Units, which sometimes come under the jurisdiction of the Ministry and sometimes under that of the Autonomous Communities. These figures must be complemented by those published in the Labour Statistics Bulletin of the Ministry of Employment and Social Affairs, which give an idea of the volume of such cases in Spain. However, the statistics still do not reflect the proceedings of the joint institutions. In order to obtain data on these, it is necessary to approach each one in each Autonomous Community. It is therefore not yet possible to establish the volume of arbitration cases that go through their procedures.
Several trends can, though, be observed with regard to the Regional Mediation, Conciliation and Arbitration Units. The volume of cases submitted to conciliation and mediation is very high, sometimes representing over 50% of the total population in paid employment, sometimes up to 30% or 40%. In other words, in 1989 over five million workers were affected by collective and individual conciliation and mediation; in 1995, this figure was 2.3 million workers. (Latest figures reveal that there are currently 9,454,000 paid employees in Spain.)
There is also a high degree of use of the administrative and judicial mechanisms for resolving disputes. As far as the system of labour tribunals is concerned, in one year it is normal for some 500,000 conciliation cases and 250,000 judicial cases to be dealt with, whilst the awards in conciliation, mediation and judicial cases in one year may amount to PTA 400 million.
The complex Spanish system for resolving disputes is based on a varied judicial and administrative structure that has a very high level of activity and a long tradition in the labour relations system. In the 1990s the joint out-of-court system was established, first at regional level and then at state level.
Following the 1996 national agreement there are five institutions in which mediation, arbitration and conciliation may be carried out:
- the Regional Mediation, Conciliation and Arbitration Units, in the framework of central state public administration or, in most cases, Autonomous Administration, deal with the great majority of conciliation and mediation cases, but not with arbitration;
- the labour tribunals deal with conciliation immediately prior to public hearing. Their performance is coordinated legally with the Regional Units;
- the Public Labour Administration carries out consultation before taking a decision on redundancies;
- the joint institutions of unions and employers in the Basque Country, Catalonia, Valencia, Galicia and the Canary Islands, with the support of the Autonomous Administrations, perform mediation and conciliation, provide lists of arbitrators and support labour arbitration; and
- finally, the Interconfederal Mediation and Arbitration Service, emerging from the 1996 agreement on the resolution of labour disputes out of court, is one more piece in the jigsaw. For the time being it does not replace any of the above institutions, since it only accepts requests for mediation and arbitration arising from the provisions of the agreement and its regulations.
Some legacies from the past - the Regional Units and labour tribunals - are thus combined with the new joint institutions to deal with mediation, conciliation and arbitration in Spain. At present they are all part of the industrial relations landscape and do not interfere with one other. It remains to be seen whether in the future they will remain complementary or whether the development of some will inhibit the development of others. (Fernando Almendros, CIREM)