Labour Relations in the Flattening World on the Example of Collective Dispute Resolution in Poland

There have been notable concerns in the current dual dispute resolution system in Kenya. The problems include protracted referral timeframes for dismissal disputes, non-regulation of maximum timeframes for the agreed extension after 30 days conciliation period has lapsed, the absence of statutory timeframes for appointing a conciliator/ commissioner and arbitration process under both the Labour Relations Act, 2007 and the Employment Act, 2007. Likewise, the responsibility of resolving statutory labour disputes in Kenya is still heavily under the control of the government through the Ministry of Labour. There is still no independent statutory dispute resolution institution as envisaged by the Labour Relations Act, 2007. As a result, the Kenyan dispute resolution system has been criticised for lack of impartiality leading to the increase in strikes and lockouts.This article examines the effectiveness of the Kenyan labour dispute resolution system. The article evaluates the provisions of international labour standards relevant to labour dispute resolution. The article illuminates and describes the bottlenecks in the current Kenyan system and argues that it does not adequately respond to the needs of parties in terms of the international labour conventions. A comparative approach with South Africa is adopted to see how independent institutions, such as the Commission for Conciliation, Mediation and Arbitration, Bargaining Councils and specialised Labour Courts can lead to effective dispute resolution. In view of that, a wide range of remedial intervention intended to address the gaps and flaws highlighted in the study are made. Systematically, the article provides suggestions and possible solutions for a better institutional framework and processes to address them.

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Is mediation the preferred procedure in labour dispute resolution systems? Evidence from employer–employee matched data in China

Journal of Industrial Relations ◽

10.1177/0022185619834971 ◽

2019 ◽

Vol 62 (1) ◽

pp. 81-103 ◽

Cited By ~ 1

Author(s):

Jiaojiao Feng ◽

Pengxin Xie

Keyword(s):

Dispute Resolution ◽

National Level ◽

Organizational Factors ◽

Individual Level ◽

Labour Relations ◽

Labour Dispute ◽

Structure Factors ◽

The Individual ◽

Matched Data ◽

The Relationship

This study explores procedural preferences in the historical development of labour dispute resolution systems at the national level and employees’ pre-experience preference to resolve disputes at the individual level. Drawing on two datasets – one from national public statistics and one from China’s employer–employee matched data – we find that mediation has fluctuated in its use and efficacy, and it has re-emerged as an important method to stabilize labour relations. Employees choose internal mediation only if they feel that the enterprise’s mediation committee is selected fairly. Organizational structure factors, such as the enterprise’s size and the effectiveness of the Staff and Workers Representative Congress, moderate the relationship between employees’ perceptions of justice and procedural preferences. This study contributes to the dispute resolution literature by highlighting the interactions between individual perceptions of justice and organizational factors of procedural preference. Additionally, practical implications are offered to aid in the design of dispute resolution systems and improve organizational justice.

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BREACH OF A COLLECTIVE AGREEMENT: DOES THE LRA PROVIDE A REMEDY IN SECTION 24? Minister of Safety and Security v Safety and Security Sectoral Bargaining Council [2010] 6 BLLR 594 LAC

Obiter ◽

10.17159/obiter.v32i3.12251 ◽

2021 ◽

Vol 32 (3) ◽

Author(s):

Adriaan van der Walt ◽

Glynis van der Walt

Keyword(s):

Dispute Resolution ◽

Case Note ◽

Collective Agreement ◽

Labour Relations ◽

Appeal Court

In a recent judgment of the Labour Appeal Court the application of section 24 of the Labour Relations Act (66 of 1995, hereinafter “the LRA”) was considered, and curtailed. In this case note the judgment of Minister of Safety and Security v Safety and Security Sectoral Bargaining Council ([2010] 6 BLLR 594 LAC, hereinafter “Minister of Safety and Security”) is evaluated. In addition, an amendment to section 24 is proposed with a view to clarifying the ambit of the dispute-resolution procedure contained in that section of the LRA.

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REFORMING THE SOUTH AFRICAN SOCIAL SECURITY ADJUDICATION SYSTEM: INNOVATIVE EXPERIENCES FROM SOUTH AFRICAN NON-SOCIAL SECURITY JURISDICTIONS

Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad ◽

10.17159/1727-3781/2016/v19i0a1349 ◽

2016 ◽

Vol 19 ◽

pp. 1

Author(s):

Mathias Ashu Tako Nyenti

Keyword(s):

Social Security ◽

Dispute Resolution ◽

South African ◽

Access To Justice ◽

Constitutional Rights ◽

The South ◽

Labour Relations ◽

Resolution System ◽

Dispute Resolution System ◽

Limited Scope

There is currently no uniform social security dispute resolution system in South Africa due to the piecemeal fashion in which schemes were established or protection against individual risks regulated. The result is that each statute provides for its own dispute resolution institution(s) and processes. There are also various gaps and challenges in the current social security dispute resolution systems, some of these relating to the uncoordinated and fragmented nature of the system; inaccessibility of some social security institutions; inappropriateness of some current appeal institutions; the lack of a systematic approach in establishing appeal institutions; a limited scope of jurisdiction and powers of adjudication institutions; inconsistencies in review and/or appeal provisions in various laws; an unavailability of alternative dispute resolution procedures; and an absence of institutional independence of adjudication institutions or forums. The system is therefore in need of reform. In developing an appropriate system, much can be learned from innovative experiences in comparative South African non-social security jurisdictions on the establishment of effective and efficient dispute resolution frameworks. Dispute resolution systems in the labour relations, business competition regulation and consumer protection jurisdictions have been established to realise the constitutional rights of their users (especially the rights of access to justice, to a fair trial and to just administrative action). They thus provide a benchmark for the development of the South African social security dispute resolution system.

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THE REINSTATEMENT AND COMPENSATION CONUNDRUM IN SOUTH AFRICAN LABOUR LAW

Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad ◽

10.17159/1727-3781/2016/v19i0a1172 ◽

2016 ◽

Vol 19 ◽

pp. 1

Author(s):

Judith Geldenhuys

Keyword(s):

Dispute Resolution ◽

South African ◽

Negative Effects ◽

Labour Law ◽

Case Discussion ◽

Labour Relations ◽

Legal Principles ◽

Labour Dispute ◽

Novel Concept

The SBV Services (Pty) Ltd case brought a novel concept into the labour dispute resolution arena: arbitrators must inform employees who succeed in proving that they were dismissed for an unfair reason of the implications of a reinstatement or compensation order in terms of the Labour Relations Act 66 of 1995 before making an award. This case discussion highlights how the court, under the pennant of the interests of justice, made injudicious errors in the interpretation and application of accepted legal principles, and the potential negative effects that enforcement of this principle could have.

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THE NAMIBIAN LABOUR DISPUTE RESOLUTION SYSTEM: SOME LESSONS FROM SOUTH AFRICA

Obiter ◽

10.17159/obiter.v35i1.11944 ◽

2014 ◽

Vol 35 (1) ◽

Author(s):

Felix Musukubili ◽

Adriaan van der Walt

Keyword(s):

South Africa ◽

Dispute Resolution ◽

Industrial Relations ◽

Comparative Approach ◽

Political Systems ◽

Labour Relations ◽

Resolution System ◽

Labour Dispute ◽

Social Partners ◽

Short And Long Term

In Namibia and South Africa respectively, there are social partners (social partners are the workers’ and employers’ organisations in terms of the ILO classification) with common and divergent short- and long-term interests. These divergent interests must be accommodated and reconciled and this process is the subject of labour law and industrial relations. However, the processes employed in Namibia and South Africa vary. The purpose of this comparative article is to highlight and explain the differences between and similarities of the two respective countries’ labour dispute-resolution systems. This comparative approach brings to bear two schools of thought, the first being the convergence school, and the second is the divergence school. The convergence school holds that the influence of industrialisation gradually brings the labour-relations systems of various countries closer to one another. The divergence school, on the other hand, maintains that labour relations are sub-systems of political systems and manifestations of prevailing social and economic conditions. Despite these perspectives above, it should not be taken for granted that systems and institutions are transplantable as it is argued that any attempt to do so may entail a wish of rejection. The reason for this view is premised on the basis that Namibia and South Africa are not identical; there are distinct differences in certain areas, such as economic development. However, the differences between the systems do not mean that Namibia cannot adopt solutions that have proved successful in South Africa or vice versa, and therefore a degree of transferability may be accepted.

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NO ORDINARY HEARSAY! A Discussion of Minister of Police v RM M, Safety and Security Sectoral Bargaining Council and M Smith NO (2017) 38 ILJ 402 (LC)

Obiter ◽

10.17159/obiter.v39i2.11380 ◽

2018 ◽

Vol 39 (2) ◽

Author(s):

Nicola Whitear

Keyword(s):

Criminal Justice ◽

Dispute Resolution ◽

De Novo ◽

Good Practice ◽

Prima Facie ◽

Recent Case ◽

Prima Facie Case ◽

Labour Relations ◽

Labour Dispute ◽

Justice Model

One is constantly reminded not to emulate the criminal courts when conducting disciplinary enquiries, nor, for that matter, labour dispute resolution arbitrations.The locus classicus dealing with the appropriate manner to conduct disciplinary enquiries is the Avril Elizabeth Home for the Mentally Handicapped v CCMA ([2006] 9 BLLR 833 (LC)) case. It was in this case, which has been quoted and followed innumerable times (a significant recent case being that of BEMAWU v SABC [2016] ZALCJHB 74 (2 March 2016)), that the court emphasised item 4(1) of the Code of Good Practice: Dismissal (Schedule 8, Labour Relations Act 66 of 1995) which provides that there does not have to be a formal disciplinary enquiry. The court indicated that the approach outlined in the code was a “significant and fundamental” departure from the criminal justice model, which “likened a workplace disciplinary enquiry to a criminal trial”.It is also, however well-established that arbitrators, and disciplinary chairpersons, must follow basic rules of fair procedure and evidence.This tension between avoiding over-formality while remaining true to basic rules of evidence and procedure is again evident in a recent case (Minister of Police v RM M Safety and Security Sectoral Bargaining Council (2017) 38 ILJ 402 (LC)), which deals with the proper manner to treat hearsay evidence in a labour dispute resolution arbitration.The case sends the message that if the proceedings of a disciplinary enquiry are conducted with a relatively high degree of formality, and fairly scrupulous adherence to what might be described as the criminal justice model – then one might be able to create a prima facie case against the dismissed employee at the de novo arbitration hearing while avoiding the re-calling of the witnesses – and instead by simply tendering the (hearsay) record of the disciplinary proceedings. The case also contributes to the jurisprudence seeking to protect (such as children, in casu) by canvassing means by which such witnesses may be spared having to repeatedly testify to traumatic events.

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ALTERNATIVE WAYS TO RESOLVE LABOUR DISPUTES: PRACTICE OF UKRAINE AND THE EU

Bulletin of Taras Shevchenko National University of Kyiv. Legal Studies ◽

10.17721/1728-2195/2020/2.113-12 ◽

2020 ◽

pp. 61-66

Author(s):

O. Terekh

Keyword(s):

Dispute Resolution ◽

Alternative Dispute Resolution ◽

Legal Regulation ◽

The European Union ◽

Legal Doctrine ◽

Labour Relations ◽

The Public ◽

Advantages And Disadvantages ◽

Comprehensive Information ◽

Labour Disputes

This article explores alternative ways of resolving labour disputes through the analysis of relevant regulations of Ukraine and the Member States of the European Union, in particular, France, Bulgaria and Poland, and compares the relevant regulations in this area by contrasting the provisions of domestic and foreign legislation. The purpose of the article is to explore the ways to alternatively resolve labour disputes by analyzing the relevant legal doctrine and provisions of domestic and European law, to identify the advantages and disadvantages of such methods as mediation, conciliation, arbitration, to suggest ways to improve existing legislation. It is noted that the lack of proper legal regulation of alternative dispute resolution today is not the only. Thus, it emphasizes the need to train personnel who could perform the functions of mediators in labour disputes, as well as the need to conduct a comprehensive information policy to inform the public about the benefits of alternative dispute resolution as opposed to litigation, to which the author, in particular, relates the speed, efficiency and focus on maintaining labour relations. In addition, consideration is given to the feasibility of introducing mandatory pre-trial procedures for the settlement of labour disputes. The results of the study can be used for further research in the study of alternative ways of resolving labour disputes, and the formulated proposals can be used to improve existing legislation in the field of labour disputes. Keywords: a labor conflict, mediation, conciliation, arbitration courts, arbitration, a labor dispute commission.

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