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Tribunals and Arbitration Systems

Based on Chapter 23 of Human Resource Management in a Business Context (2nd Edition) by Alan Price - published by Thomson Learning

To what extent can differences between employers and workers be resolved through arbitration or legal tribunals? It is the view in many countries that an impartial, legally-based process has a significant role to play in a number of circumstances. Industrial tribunals take many forms: in Germany the labour courts make legally binding judgements; in the UK tribunal decisions do not set a precedent in law and cannot establish criminal behaviour. Even in the latter case, however, they have a long-term effect since they establish a set of values and influence the behaviour of others. If there is a judgement on a case of significant racial discrimination, for example, the resulting publicity may lead to a moderation of racialist behaviour as people fear the possibility of similar action against themselves. In Australia, under the former Labor government's 13-year accord with the trade unions, the emphasis was on conciliation and co-operation. The Industrial Relations Commission (AIRC) could make binding rulings (...)

When the new Liberal-National Party coalition took over, industrial unrest increased markedly. In the first three months alone, four times as many working days were lost through strikes. 20,000 trade unionists joined Aboriginal groups outside the Australian Parliament to protest at drastic budget cuts and planned reductions in trade union rights. The Accord was dismantled and emphasis changed to banning closed shops, restricting secondary picketing and increased flexibility in the workplace. As we have noted earlier, the role of the AIRC was much curtailed.

In the UK, ACAS plays a similar role to the Australian Industrial Relations Commission in relation to collective disputes. It provides the following services:

  • Binding arbitration. ACAS can appoint an arbitrator provided that the two parties agree to accept the arbitrator's decision. .
  • Voluntary conciliation. ACAS provides a calm environment and help on defining the important issues. ACAS conciliation staff act as facilitators and do not make judgments or attempt to impose solutions.
  • Mediation. Intermediate between arbitration and conciliation. ACAS mediators make advisory recommendations which are aimed at preventing disputes from degenerating into industrial action. These recommendations are not binding on the parties involved.

ACAS also plays a major role in promoting agreed settlements in disputes taken to industrial tribunals. Of these, only about a third achieve go to a full hearing by the tribunal - most are settled with ACAS assistance or withdrawn - and less than half of these are judged in favour of the complainant.

Tribunals are composed of a qualified lawyer as chair and two lay members - one employer and one trade unionist. The tribunals are informal by legal standards but continue to be intimidating for applicants.

Relevant articles

Businesses losing confidence in tribunal system, say CBI
September 30 2005 - A report from the CBI (the employers' organisation) shows that British businesses have major concerns about the complexity of the new employment tribunal procedures despite a fall in the number of tribunal cases since the reforms were introduced last October.

Where do we want workplace relations to be in five years time?
February 27 2005 - Full text of Australian Federal Minister Kevin Andrews' speech on February 25 2005

Bullying and harassment complaints - is mediation the answer
April 2 2004 - Workplace Mediation is becoming an increasingly popular dispute resolution method to resolve interpersonal employee conflicts including harassment and bullying complaints. Nora Doherty, Director of Professional Mediation Resolutions (PMR) explains what mediation is, how it can be most appropriately used by organisations and what kind of training staff may require.

Work dispute system reform 'squandered'
December 21 2003 - According to the TUC, new laws being introduced to resolve more workplace disputes represent a 'squandered' opportunity that might lead to an increase in Employment Tribunals and threaten an employee's right to a fair hearing.

OSAS / AFSA Union Wins Case Against Detroit School District
January 15 2003 - OSAS / AFSA Union Wins Case Against Detroit School District: Arbitrator Orders District to Re-Employ Remainder of Demoted, Fired School Workers



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