CHAPTER 14: TRADE DISPUTE SETTLEMENT · 2010. 9. 29. · 1.4 MEDIATION A rare method; not mentioned...
Transcript of CHAPTER 14: TRADE DISPUTE SETTLEMENT · 2010. 9. 29. · 1.4 MEDIATION A rare method; not mentioned...
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CHAPTER 14:
TRADE DISPUTE SETTLEMENT
OCTOBER 2010
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OVERVIEW
RESOLVING TRADE DISPUTES
INDUSTRIAL COURT
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1. RESOLVING TRADE DISPUTES
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1.1 DIRECT NEGOTIATION
Ideal method
2 parties are willing to come together for discussion
until a satisfactory compromise is reached
Solutions arrive at by mutual decision between the 2
parties without the involvement of an outsider is
more likely to result in smooth implementation
without further damaging their relationship
Seen as a mature and harmonious way of settling a
dispute
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Voluntary negotiations- encouraged in the IRA
Eg: a collective agreement must include a grievance
procedure(a method the parties can use to settle
any dispute arising out of the implementation of the
agreement)
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1.2 CONCILIATION
Definition: process of arriving at a settlement of a trade dispute with the help of a third party(neutral party)
Carried out by officers of the Dept of Industrial Relations
Can be voluntarily requested requested by either of the disputing parties, or the Director General of Industrial Relations may intervene ‘in public interest’, requiring the parties to attend a conciliation meeting->COMPULSORY CONCILIATION
Director General cannot intervene, however until he is sure that the parties’ effort to settle the problems themselves although negotiations have filed
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Procedure
If the 2 parties still fail to resolve, the DG can:
Use other methods to bring the 2 parties to resolve the problems
Inquire further the causes and circumstances of the dispute
Appoint arbitrator
IR officers meet the parties
Both parties brief on problems that have arose
IF officer advice both parties until acceptable by both parties
It must be noted that the officers have no authority to insist that the parties accept any particular recommendations
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1.3 ARBITRATION
When the disputing employer and union cannot find
a solution by themselves with the help of the DG,
arbitration may be the only way to settle dispute
In arbitration, an impartial 3rd party which is
Industrial Court is given the authority to settle the
dispute by examining the information given by both
sides and then make judgement
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Types
Voluntary: 2 Parties disputing request a third party to
solve the problems and they are willing to accept
whatever decisions made by arbitrator
Compulsory: the 2 parties are compelled by law to
have arbitration
Decision of arbitrators will be an award and shall
be binding to parties in dispute
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1.4 MEDIATION
A rare method; not mentioned in employment laws but is occasionally used nevertheless
The mediator needs to pay for the services whereas conciliation is free
Similar to conciliation in that a neutral 3rd party is called in by the employer and the trade union who are in the midst of a dispute to help them find a settlement
The mediator is not usually from the government, but is a person considered unbiased and impartial and is respected and trusted by both parties
A politician or other local leader may intervene in a dispute at the request of the parties and he may be able to bring about a settlement
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2. INDUSTRIAL COURT
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2.1 ROLE OF INDUSTRIAL COURT:
PART 7 IRA
Role:
To provide a peaceful and unbiased means of settling
disputes between employer and employees(arbitration)
To prevent conflict from escalating
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2.2 STRUCTURE OF THE INDUSTRIAL
COURT:
SECTION 21, IRA Industrial Court consists of a President appointed by
YDPA and a number of Chairman to assist president
and also 3 panels:
Representative of employer
Representative of employees
Independent person
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2.3 PROCEEDINGS:
SECTION 27 OF IRA
Parties to a dispute may be represented at the
hearing as follows:
Employer may choose one of his officers (from Industrial
Relations Dept of Legal Dept) to present his case, if can
be represented by officer/employee of association or
represented by MEF official
Union of employees may appoint officer/employee of
trade union of MTUC official to represented them
Employees may be represented by office/employee of
trade union or MTUC
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2.4 POWER OF INDUSTRIAL COURT:
SECTION 29, IRA
To summon any person who in the court’s opinion is connected with the proceedings
To join, substitute or strike off a party
To take evidence on oath or affirmation
To compel the production of books, papers, documents
To hear and determine the dispute referred to it in the absence of any party notified to the proceedings and despite the failure of any party to submit a written statement within the prescribed time
To conduct its proceedings in private
To call in the aid of experts
To direct and do everything necessary to determine speedily the dispute referred
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POWER OF INDUSTRIAL COURT:
SECTION 30, IRA
To make an interim award(award relating to issues
in dispute before the court)
To make a consent award(award based on terms of
settlement reached to parties to the dispute before
the court, prior to or during the proceedings)
To specify period for which an award is to be
effective
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POWER OF INDUSTRIAL COURT:
SECTION 33B, IRA
Award of Industrial Court shall be final and
conclusive and shall not be challenged, appealed
against, reviewed or called in question in any court
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2.5 JURISDICTIONS OF INDUSTRIAL
COURT(IC)
Definition
Practical authority granted to a formally constituted
legal body or to a political leader to deal with and
make pronouncements on legal matters and, by
implication, to administer justice within a defined area
of responsibility
The right and power to interpret and apply law
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Jurisdictions
Unfair dismissal claim: IC has jurisdiction over representations alleging unjustified dismissal made by non-unionized workmen against their employers
Trade disputes: IC has jurisdiction over trade disputes referred to for arbitration by the Minister.
He may refer a dispute to the Court on the joint request of the employer and also of the union representing workmen.
He may also refer a dispute on his own motion, if he is satisfied that he is expedient(helpful) to do so.
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Interpretation of collective agreement or award:
IC has jurisdiction over all collective agreement entered into by employers and workmen’s unions. Every agreement must be submitted jointly by parties to the court for its cognizance or approval.
IC also has jurisdiction over request to interpret awards.
In interpreting an award, the Court is required to afford the parties thereto a reasonable excuse to be heard.
Contravention of union rights or complaints of non-compliance
IC has jurisdiction over complaints alleging non-compliance with awards or approved collective agreements and also over complaints alleging contravention of the trade union rights and responsibilities imposed on employers and workmen.
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Amendment
IC has the power to require the parties to amend the
agreement as directed by it. And if they refuse, the court
has the authority to amend the agreement itself after
affording them a reasonable opportunity to be heard.
Misbehavior
IC has jurisdiction over any contempt or misbehavior
committed in its presence. The court may detain the offender
in custody or have him removed. It may also punish him by
fine or imprisonment, or discharge him or remit his
punishment.
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Bonus
Bonus: a widespread practice in the private sector.
Encouraged by the gov- ingredient in the flexi-wage
system where workers are rewarded financially if the
company improves its productivity
Reduction of existing benefits