International Dispute Resolution Overview

1
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

2
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

3
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

4
Arbitration

• Rarely used
• Exceptions Canada, Japan
• Substitutes
• tripartite labor courts look something like
  arbitration
• Conciliation boards or committees may issue
  binding decisions

5
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

6
Labor Court Example - Germany

• Labor Court System has special and exclusive
  jurisdiction to hear labor law disputes
• Three levels
• 1) labor courts 2) Higher labor courts - courts
  of appeal3) 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.
• 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.

7
Labor Court Example - Italy

• 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 instance2) The appeals
  court3) 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.

8
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.

9
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
• Accidents
• Workplace health and safety
• Worker complaints under collective agreements
• Allegations of violations of labor and employment
  statutes

10
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)

11
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.

12
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