Social dialogue and conflict resolution

Kranj, 31 March - 2 April 2004 Kokra Hotel (Brdo Estate) Kranj, Slovenia

National development project - Slovenia

by Metka Penko Natlacen

Enforcement of social environment of industrial relations by developing the role of mediators in local conflict resolution

1. Slovenia has had a relatively short history of collective bargaining, which, however, has flourished in the twelve years of its use, both in the private and in the public sectors. Since 1990, collective contracts have provided for methods of peaceful resolution of collective disputes, but in practice they are rarely used. The rarity of such disputes must partly be due to the fact that many such mutual conflicts are resolved in further negotiations, which are not officially marked as conciliation, and arbitration never occurs. The system of collective bargaining in Slovenia is quite flexible and able to generally adapt to new economic and other situations over longer periods of time. Generations of collective contracts in the private sector can clearly be marked out: 1990-1993, 1993-1996, 1997-2003. With relation to the new employment act, a complete revision of collective bargaining is currently in progress. This revision is supposed to begin with a reworking of the general collective contract, according to established practice. The collective contract is the fundamental starting point and a minimum for the entire economic and non-profit field. In the profit sector, individual collective contracts of activities are formed in such a way as to constitute a transparent and complete system. There is virtually no overlapping. Where a collective contract for a specific activity does not exist, any minimum not provided for by the law is regulated by the general collective contract. In the private sector, this system does not function so transparently, the actual validity (area of application) of collective contracts for activities sometimes overlaps, the issue of abiding by collective contracts for vocations is raised. In the public sector, the awareness of the content and purpose of collective bargaining on the part of the employers’ party is not as present and clear as in the profit sector. Often various forms of pressure by trade unions in the public sector are more efficient than those in the private sector, even when their argumentation is weaker.

On the level of companies, we estimate from our experience that collective dispute resolution between employers and trade unions is at a high level. It can also be said for this level of collective bargaining that only exceptionally do situations occur where disputes need to be settled through conciliation and arbitration as out-of-court solutions. Problems of disagreements over interests are usually satisfactorily resolved by concluding new collective contracts for companies. If a collective dispute of a legal nature occurs, the submitter of the dispute will usually leave it to a court to settle. Not only because the labour procedure law provides for this area to be under court jurisdiction, but also because it is common in Slovenian cultural tradition for disputes over rights to be resolved in court. Despite this customary approach, the total number of collective disputes in courts is not beyond control. Undoubtedly it could be reduced further by entrenching and affirming the idea that the primary method of resolving disputes should always be the possibility of compromise between parties, only then a court settlement.

Currently a revision is in progress of the general collective contract for the public sector. Apart from the harmonisation of principles with the new law, it will contain particularly a revised chapter on resolving collective disputes peacefully. The drafters of the text have additionally furnished the procedures with individual deadlines, which are meant to accelerate the process of their implementation.

Regarding individual labour disputes, the new Employment act of January 1, 2003, enacts the possibility that the parties to the employment contract agree on resolving their dispute of a legal nature by arbitration, if this is provided for by the collective contract. This provision opens the way to setting up arbitration bodies on the level of companies, activities, or the entire commercial and non-profit sectors. While preparing an expert draft for such arbitration activity for the entire sphere of commercial activities, it was found that individual companies had no interest in setting up company arbitration bodies, because they were too reminiscent of the former complaint commissions, which resolved labourers’ complaints in connection with their labour relations. It is, however, possible that such arbitration bodies could be set up by agreement between representative associations of employers and confederations of trade unions, on the level of collective contracts for individual activities. These tendencies were noticeable in certain traditional commercial industries, such as construction and metal industry.

2. In the Social Agreement, concluded for the period 2003-2005, the social partners and the government agreed that the area of consolidating and promoting the possibilities of peaceful solutions is an important area that needs to be given special attention and allocated a source of funds for its operation.

With this, the contracting parties to the Social Agreement wished to emphasize the importance of the culture of solving collective and individual mutual disputes. The general attitude in the recent time introduces greater possibilities of peaceful dispute resolution, without the intervention of a judge, into the judicial system. This indirectly affirms methods of peaceful dispute resolution in the area of labour law as well.

3. It is appropriate to set out a rough time schedule for the promotion and consolidation of the peaceful collective dispute settlement system, and to outline the content of individual stages. The following points have been set out by Slovenia’s representatives as an ideal programme for the promotion and establishment of this area:

1. write a report to the Economic and Social Council and to various social partners’ bodies about the implementation of the peaceful dispute resolution project, organised by the foundation from Dublin, and providing information about the final conference at the end of the project in April 2004 in Slovenia;

2. form a chapter on collective dispute resolution in general collective contracts for the public and private sectors, now being prepared;

3. after signing these two documents, form a conciliation committee and arbitration committee for both sectors; the committees would be permanent bodies or have a permanent list of members;

4. participate in forming the chapter on peaceful dispute settlement of the Collective contract act, which, apart from the usual practice, would also include possibilities of settling legal disputes in the same way; if necessary, influence the change of certain provisions in connection with the Procedure before labour courts act, in the chapters on resolving collective labour disputes.

4.Undoubtedly, it will be social partners on the national level and the government who will have to become involved in the above-mentioned activities. The social partners who are especially important are the ones on the Economic and Social Council and those concluding both general collective contracts – for the commercial and the non-profit sector. Later on it will be necessary to harmonize collective contracts of individual activities with this system and appropriately encourage the social partners participating on this level.

The parliament is also indirectly involved in this process as a body passing both the mentioned acts. An important role in the parliamentary procedure is played by the Economic and Social Council as the body giving preliminary assessment for these two acts before they are passed.

5.The social partners and the government, each in their own field, must actively help to promote the peaceful dispute resolution system in the area of collective labour law in collective bargaining procedures on the national level. The role of social partners and the government as the employers’ representative in the public sector is of great importance in promoting this area.

On the condition that the goals are clearly set and the tasks correctly distributed among social partners, it is possible to reasonably presume that the promotion of peaceful dispute resolution will influence the promotion of peaceful resolution of individual labour disputes, which has no legal tradition yet in Slovenia.

6. To implement such an ambitious project, it is necessary to include all possible methods of promotion and resources, especially:

1. signatories to the social agreement for the period of 2003-2005;

2. the two competent ministries for financing;

3. expert publications, informative workshops and reports of experts for this area, especially associates in this project.