Social dialogue & conflict resolution mechanisms
Social dialogue and conflict resolution mechanisms in the acceding countries: Cyprus, the Czech Republic, Latvia, Lithuania and Slovakia
Prague, 14-16 January 2004
Speech abstract - Fernando Valdés Dal-Ré
Prof. of Labour Law, Complutense University (Madrid)
Labour conciliation, mediation and arbitration in European Union countries
- The purpose of the exposition to examine a number of specific resolution procedures for settling certain industrial disputes, namely those that are solely and exclusively collective in nature. Such collective disputes are deemed to be all those concerning the interests of a generic group of workers or employers defined with reference to a variety of different criteria (locative, personal or professional, to cite just three significant examples). The procedures themselves are also restricted in scope by means of a negative criterion used to define them thus: they are procedures in whose resolution there is no intervention by any public authority with jurisdictional powers.
The objective is to compare and contrast the legal arrangements for those solutions in European legal systems to detect the points on which they converge and on which they diverge. Essentially, this report aims to analyse the extrajudicial methods for settling collective industrial disputes and does so with the help of a very concrete methodological tool: a comparative study.
- This exposition is split into two parts. The first and possibly more constructive part, because it is pitched at a medium to high level of legal abstraction, aims to bring out the factors in both diachronic and synchronic terms that may have played a role in shaping the extrajudicial collective dispute resolution systems (ECDRS).The second part, however, is more analytical in content. Its goal is to try to group into relatively homogeneous categories or parameters the notable diversity of legal arrangements that regulate the extrajudicial resolution methods for collective disputes in each system. This is done by drawing up models as a basis for identifying the features that are most common to the European industrial dispute resolution systems.
- The institutional environment of collective dispute resolution procedures: pointers for debate
- Collective bargaining is definitely the reference institution for ECDRS. It defines the first and closest level of the institutional environment in which those systems are developed and function. Regardless of the most typical, chronic differences that can be discerned between the different European legal systems, the link between collective bargaining and ECDRS can be expressed through a triad or trio of forms of expression; through all of them simultaneously or, in more limited fashion, through any one of them (conciliation, mediation and arbitration)
- For a start, there are a great many legal systems where the resolution methods for collective disputes are established and regulated by typically bargaining-based instruments such as inter-professional agreements and collective agreements; ii) the experience of European systems bears witness to the special suitability of conciliation and mediation methods for solving any disputes that may arise in the two major phases involving social dialogue: the production of the collective agreement and its administration phase. But aside from the marked differences in their origin, conciliation, mediation and arbitration institutions or commissions often tend to be managed jointly and with equal participation by workers’ and employers’ representatives or, at the very least, those representatives play a major role in their management bodies. This executive function is not strictly speaking an expression of collective bargaining but it does offer new opportunities for social dialogue, which is the basis, or pre-requisite for codes of good negotiating practice to take firm hold.
- Judicial systems for the settlement of disputes provide a second, essential reference element when attempting to describe and understand the institutional framework in which the systems described with an adjective with the opposite meaning - the non-jurisdictional systems - operate.
The type of judicial organisation chosen, the effective functioning of the bodies given the task of administrating justice, the opinion that the social agents may hold about the way such institutions work and the rules that govern the procedure and industrial process make up a limited but concrete inventory or shortlist of factors that have an unquestionable impact on how the prevailing model for industrial dispute settlement is shaped and consolidated.
By examining the experience in Europe, it is possible to group the relations between a judicial system and non-jurisdictional methods used to settle legal collective disputes into two broad theoretical models or ideal types. The element that differentiates the two is actually drawn up on the basis of the functional linkage between non-jurisdictional methods and judicial protection. In the first model, the relationship between non-jurisdictional solutions and the judicial system is one of functional dependence. In the second model, on the contrary, the relationship between the judicial system and the non-jurisdictional system is not one of dependence but rather of functional autonomy. Both systems share a common goal; they collaborate to deflate industrial disputes without actually being designed as procedures to be used in sequence or side by side.
- A third and equally unavoidable element defines the institutional environment of the non-jurisdictional procedures to settle collective industrial disputes. That element is, of course, the State, or, perhaps it would be better to say, the role of the State in industrial relations systems. This role is or can be seen through two broad functions: the creation of laws and their enforcement.
The first field in which these public measures are being implemented is the strictly material terrain. But the legal regulation of non-jurisdictional procedures is the ideal terrain to implement legislative actions of a promotional nature. The immediate purpose of this kind of actions is to extend the set of legal guarantees that have historically been granted to the judicial solution to non-jurisdictional procedures
- Over the course of recent years, non-jurisdictional labour dispute resolution procedures have been the subject of growing interest in Europe. This phenomenon, however, has not made its presence felt with the same intensity in all the countries of the European Union.
The re-appraisal of non-jurisdictional dispute resolution procedures is largely the result of the progressive assertion and consolidation of an industrial culture that reinforces the social dialogue, concertation and cooperation trends to the detriment of conflict, opposition and rivalry. It is a culture that, likewise, broadens and multiplies both the scenarios for the development of bargaining practices and the methods through which agreements can be sought. In such a context, which, on top of that, coincides with far-reaching changes in the organisation of work and with a growing participation of the trade union in company strategic decision-making processes, the comparison of the respective benefits of each one of the two major ways of settling labour conflicts comes up with a net result, on balance, in favour of autonomous or voluntarist procedures. The slowness and rigour of court procedural forms is countered by the swiftness and flexibility of those other procedures; the need for strict enforcement of the law by the judges is opposed by the wide leeway that conciliators and, above all, mediators and arbitrators enjoy in order to weigh up the interests at stake more effectively. Compared with the winner-loser outcome that a legal ruling always produces, the capacity of conciliation and mediation formulas to generate or renew agreements and to create a stable negotiating channel and synergies for continuing negotiation is quite laudable.
- Finally, the exposition will examine some topics about non-jurisdicional solutions to industrial topics in EUC.