- Category: Alternative Dispute Resolution
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ADR in Labour Law
Ethiopia has undergone lots of revisions and amendments in her legal regime regarding labour laws in the different political regimes we experience. It is because that the political system and belief we adhere has got a significant relation and impact as well on the liberalization or otherwise of the labour or industrial relation. What makes legal regimes regulating labour law different from the others is also that different laws are implemented to guide the relationship of different groups according to the nature of the work (e.g. house servants), the identity of the employer (e.g. civil servants) and sometimes according to the status of the employee ( e.g. managers). It is not the intention of this sub section to deal this categorization more than this. Rather to look the latest proclamation No 377/2003 in relation to the settlement of disputes other than the labour divisions of the regular courts.
We have three kinds of forums recognized by this proclamation to entertain labour dispute and give valid disposition accordingly; regular courts, labour relation board, and ADR (like Arbitration, Conciliation, strike, look out, collective bargaining). In this part we will see only some of the ADR means employed in labour dispute and the working of the Labour Relation Board.
ADR is a means to achieve justice without the interference of the government. It is not usually lead by the will and whim of the government. But exceptionally the government may have a limited interest in the ADR proceedings, for instance in labor cases the government plays some role in conciliation proceedings. This part will try to deal with this situation in detail.
ADR in labor relation is aimed in maintaining industrial peace and security towards the all round development of the country. Furthermore since disputes are bound to arise ADR lays down the procedures necessary for their expeditious settlement. We also aimed at addressing various ADR methods and their legal effects as are used in the labor proclamation. Furthermore we will see how labor disputes are settled at various levels. The other issues dealt with are the salient features of each dispute settlement methods, in an attempt to familiarize the reader with the legal framework of available dispute settlement methods in the labour law.
Conciliation is an activity conducted by a private person or persons appointed by both parties jointly or the ministry at the request of either of the parties for the purpose of bringing the parties together and seeking to arrange between them voluntary settlement of dispute which their own effort alone could not have produced. (Art 136 (2) of labour proc.).
Nomination is an inherent right of the parties (Art 3318 of the civil code). The parties may entrust a third party with a mission of bringing them together and if possible settling the dispute between them. They can transfer their right to appoint a conciliator to third party when they are not in a position to know the best conciliator. In addition, the conciliator can be appointed at the request of the parties by institution or by third party.
When we come to labor dispute, the question as to who appoints the private person mentioned in article 136(1) of the labor proclamation the Amharic version seems very clear than the English one. In the Amharic version the conciliator is appointed by the disputing parties or the ministry at the joint request of the parties but the English version of the same article says “by a private person or persons appointed by the Ministry at the joint request of the parties”. What exactly mean ‘private person’ is not clear in the English version. But the Amharic one speaks about conciliators nominated by the disputants for mattes under Article 143. The Amharic version seems to reflect the intention of the legislator more accurately; because article 143(1) clearly states that the parties can resort to conciliation or arbitration of their own choice rather than the ministry. And secondly the proclamation under article 141(1) imposes obligation up on the ministry to assign the conciliator once a labor dispute is reported by other parties.
We have to kinds of conciliation by considering the definition Article 136(1) and Articles 141 - 143 of the same by looking the identity of the person who nominates the conciliators, i.e. the disputants themselves or the Ministry. Article 136(1) left the option open as to who nominates the conciliator; either by the will and interest of the disputants or by the Ministry “at the joint request of the parties”. When the parties themselves nominate the conciliators it is a kind of conciliation recognized under Article 143(1) and there is no limitation of the king of dispute, collective or individual, in this regard. But if the conciliators are nominated by the Ministry, it will be regulated under Articles 141 and 142, and it is only collective labour disputes that can be entertained by this panel.
The other issue here is the seemingly inconsistency between Articles 136(1) and 141 whether the consent of both of the disputants or only one of them suffices the Ministry to nominate conciliator for them. Article 136(1) speaks about “joint request of the parties”, whereas the latter article reads that the Ministry shall appoint conciliators when a collective labour dispute “is reported to the Ministry by either of the disputing parties”. One line argument here is that to look the very purpose of ADR proceeding in general and conciliation in particular and try to find out the answer for these seemingly inconsistence articles. Any of the disputants should not be compelled to submit his or her cases for the conciliators nominated by the Ministry if he or she prefers the labour board over this panel. Other wise how could we say it an alternative? This may lead us to give effect to Article 136 over Article 142 and hence the Ministry will be obliged to secure the consents of the disputants as to their willingness to submit themselves to the panel before nominating the conciliators. The other line of argument says that it is public policy which compels collective labour disputants to the conciliation proceeding though one of them prefers labour board over conciliation. Do you think that it is the intention of the legislator to compel the disputants to do so?
In principle conciliation is a consensus oriented joint problem solving process and does not seem to be compulsorily imposed on the parties but in exceptional cases disputants are obliged to bring their case before conciliator, this is true in disputes arising out of co-operative societies (ART 46,Co- Operative Society Proc. No. 147\98). The reason behind compulsory conciliation is encouraging the party initiating it, by saving him from being seen by other parties as a weaker party.
The reading of art 158 (2) of labor proclamation shows that the disputing parties before they strike or lockout partially or wholly shall make all efforts to solve and settle all their disputes through conciliation. In case of Art 157(3) cumulatively taken with art136 (2) of labor proclamation neither have workers the right to strike out nor employers have the right to lockout in cases of essential public undertaking (Art. 136(2) Labor Proc.).
So conciliation is offered by the legislature to serve as appropriate labor dispute settlement means. Generally parties sit together put all the playing cards on the table so as to say, negotiate in good faith and mutually concede a jointly favored settlement which may finally lead them into a mutually agreed solution for the dispute.
As to the determination of the number of the conciliators, there are two arguments. The first one argues their number should be odd while the other says it should be even. One line of argument is that it should be even because the disputant acquire equal opportunity to select conciliator. This means that if one party selects a conciliator the other party also selects another. The other argument is that the number of conciliator should be odd. Even though these arguments are presented, the number of conciliator does not matter as the conciliator does not give a binding decision, so the number of conciliators is not limited.
Individual labor disputes can not be taken to Ministry nominated conciliator, so it is possible to say such kind of conciliation is made for collective labor disputes (Arts141 -142 of the labour law). The proceedings in conciliation could take place either with a neutral third party conciliator assigned by the ministry or appointed by the parties themselves. Naturally, the disputing parties involved in the labor dispute will try to settle their point of disagreement through a process of communication in the absence of a third party otherwise known as negotiation. This is the most effective and advantageous means of settling disputes. However, the fact remains that, not all disputes are solved through negotiation.
Arbitration as pointed out under article 143 of the labor proclamation is recognized as alternative means to conciliation which are provided under art 136,141 and 142 of the above cited proclamation. In conciliation either of the parties can submit their case to the ministry which appoints the conciliator. But alternatively the parties can appoint an arbitrator with out reporting to the minister. This provision also states that the appropriate law shall govern the settlement of dispute by the arbitrator. The appropriate law might mean the provisions of civil and civil procedure code.
Arbitration is one of the ADR means which helps the parties to adjudicate with out going to the court litigation or some administrative tribunal. Arbitration seems more rigid than the other ADR means and also more flexible than court litigation. Even though that may not be typically the same with the court proceeding and also the third party in the dispute or the arbitrator give binding decision over the dispute ;because of these procedural activities it is more rigid than the other ADR means’s. When we compare it with the courts or administrative tribunal litigation, it is more flexible.
Much has not been said about Arbitration under the labour law when we compare it with the place of conciliation. It only recognizes arbitration as one alternative means of settling labour disputes. This shows us that conciliation is preferable to settle labour disputes than arbitration. Thus, it will be necessary to resort to the civil code and the civil procedure code provisions to guide the procedure.
It is an inherent right of the parties to nominate the third party or the arbitrator though Article 143 doesn’t expressly say so and anything as to the determination of the number of third party. But when it say that parties can take their case to arbitrators or conciliators other than the one nominated by the Ministry, it is declaring that the parties can nominate their own arbitrator for the settlement of the dispute. It is noticed as well that there is no Ministry nominated arbitrator in such case.
In relation to the effect of the award one thing has been said under Article 143(2) of the code. As per the civil procedure code Articles 350 – 357, appeal from the award or setting aside of the award is permitted on the grounds listed there under. Article 143(2) in broader term speaks about these rights of the parties. In case of conciliation, for instance, if the parties fail to agree on the matter, they can either take the matter to the labour board if it is a collective labour dispute or to the labour division court if the matter is an individual labour dispute as a first instance case. But if the proceeding is arbitration first we don’t expect ‘agreement’ in the strict sense but only ‘award’ and this award may satisfy the interest and desire of both or only one of them or none of them though it is not advisable such to happen. In any of the instance any of the parties can take to appeal or setting aside of the ward to the labour board in case of setting aside of collective labour dispute, or to first instance courts in case of setting aside of individual labour dispute, or to the high court in case of appeal of any type of dispute. This seems the interpretation of Article 143 in line with the other relevant laws regulating the matter.
From the reading of Article 143 we may refer that all kinds of dispute whether individual or collective labour disputes can be entertained by arbitration proceeding unless there is an express prohibition in other parts of the law.
As to the matters related with the way of nomination of the arbitrators, the nature of the proceeding, the costs of the proceeding, the duty and right of the parties as well as the arbitrators, effect and enforcement of the award the general provisions of the civil code and the civil procedure code will apply.
Labour Relation Board
Labour relation board is the other king of organ duly established to address the grievances in the industrial relation of the nation when. This organ has a first instance jurisdiction over collective labour disputes. The question here is, is the labour relation board purely adjudicatory organ? Can we equate the procedures and the rules applied in the board with the same of the courts?
The minister shall assign the members of the board according to the proportional representation of trade unions and employers association including a chairman and two qualified members on matters of labor relation. This board can entertain cases and pass binding decisions or compromise the parties as to the appropriate end to their issues pursuant to art 147 of the proclamation.
To address this issue it is better to see some provision of the labor proclamation, civil code and civil procedure code. Article 149(5) of the labor proclamation provides that the ad-hoc or the permanent board shall not be bound by the rule of evidence law and a procedure applicable to the court of law. But it may inform it self in such a manner as it thinks fit. From this provision we can understand that the LRB is entrusted with unlimited discretion where it can the case in a flexible and informal manner as it thinks fit in informing itself as empowered by article 148 of the proclamation. But cumulative reading of article 3345(1) of the civil code and article 317 (1) of civil procedure code we can understand that, even an arbitrator do not have such extended discretion of disregarding the evidence and other adjective and procedural laws of the state.
Article 150(3) of the said proclamation in reaching its decision the board should take in to account the substantive merit of the case and need not follow strictly the principle of substantive law followed by the civil code. Under article 147(4) states that order and decision of the board shall be considered as those decided by the civil court of law. This provision gives the same effect for the decision of the board with the court decision. We will get the same wordings about the states of awards given by arbitrators under Article 319(2) though homologation by the court is additional requirement for the award to get enforced.
Article 147(1)(a) and 150(1) strictly and expressly obliges the board to try to conciliate or compromise the parties before giving any sort of decision of its own. It shows us that at least at the earliest stage of the proceeding it should conciliate but not adjudicate the matter. The other rules under Articles 147ff of the labour law as well resemble the civil procedure rules of arbitration.
Finally, it is noted that conciliation, Arbitration are not the only organs entertaining labour disputes alternative to court litigation. Even the objective of the labour Relation Board is not purely to act as an adjudicatory organ but to serve as a conciliator at least at the earliest stage of the proceeding. In addition we have other ADR types duly recognized under the labour law, i.e. self help. The effective implementation of these meanses will help parties to end up their grievances by extra- judicial devises amicably.