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TECHNICAL PREPARATORY MEETING OF THE OAS/Ser.K/XII.12.1
XII INTER-AMERICAN CONFERENCE OF TRABAJO/RTP/INF.6/01
MINISTERS OF LABOR 9 July 2001
July 12-13, 2001 Original: Spanish
Miami, Florida, USA
INFORMATIVE DOCUMENT
LABOUR JUSTICE AND ALTERNATIVE MEANS TO SETTLE COLLECTIVE AND INDIVIDUAL LABOUR CONFLICTS
(CIMT / OIT)
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INTERNATIONAL LABOUR OFFICE
REGIONAL OFFICE FOR THE AMERICAS
IMLC-ILO PROJECT
LABOUR JUSTICE AND ALTERNATIVE MEANS
TO SETTLE COLLECTIVE AND INDIVIDUAL
LABOUR CONFLICTS
JORGE J. SAPPIA
June, 2001
EXECUTIVE SUMMARY
I. PRESENTATION
Essentially, the document highlights the Declarations of Buenos Aires and Viña del Mar in the context of the Inter-American Conference of Labour Ministers, as well as their respective Plans of Action. The latter emphasize the political will of the Labour Administrations throughout the region to modernize the Labour Justice System and implement alternative machinery to settle individual and collective labour conflicts. The analysis splits off the diagnostic from the objectives of Viña del Mar by picking specific sentences, in order to point out with precision the task that the Ministers assigned to themselves in the quest for those achievements.
II. CONFLICT CHARACTERIZATION
The second chapter describes and characterizes the different types of legal conflicts, classifying as legal disputes those born out of grievances triggered by an actual or alleged failure to abide by valid rules, while while economic conflicts are those attempting to alter something that is already regulated. At the same time, the former may be individual and collective as well, while the latter are always of a collective nature.
Individual conflicts, which are also know as controversies, are attributes of the Courts of law, while collective conflicts are derived by the legislation to the labour administration system, to be
dealt with through mediation, conciliation and arbitration machinery, except in the case of Brazil, where judges can also settle collective conflicts.
A reference is made also about pluri-individual and so-called improper conflicts. The former represent the accumulation of individual grievances that become collective by virtue of the number of participants and may request the intervention of the labour administration, even with a simple conciliatory intention. As for the remaining, notice is taken of the existence of inter-union conflicts related to jurisdictional issues between two or more unions, which only involve the organizations in question; internecine union disputes that betray clashes between a trade union and one or more members of the same, and are dealt with by ordinary Courts; and lastly solidarity or political conflicts that are brought to the attention of the political authorities.
III. THE STATE BEFORE LABOUR CONFLICTS
The chapter devoted to this question suggests that, to the extent that conflicts may have a negative effect on social peace and become obstacles to the normal development of economic activities, the State cannot remain indifferent and passive. Likewise, emphasis is made on the inconvenience of adopting conducts aimed at avoiding, disguising or repressing a conflict. Against these considerations, the opportunity of adopting adequate criteria to overcome a conflict from a positive perspective, capable of taking labour relations to a better level, as compared with the moment of the inception of the dispute.
IV. CONFLICT RESOLUTION SYSTEMS
The fourth chapter describes judicial, administrative and atypical procedures to settle conflicts. With regard to judicial activity, notice is taken to the effect that, with the exception of Brazil, the rest of the countries settle bring individual legal controversies before the Courts of law. The convenience of making efforts to resolve a conflict in the administrative area is pointed out, in order to avoid the negative consequences of an excessive judicialization. In this field, the existence of administrative tribunals with jurisdictional authority in Mexico and Panama is taken into account. Regarding the administrative handling of conflicts, emphasis is made on the fact that this is an activity that best fit the profile of the labour administration, adding that its intervention may also include legal conflicts with mere conciliatory effects. Mediation, conciliation and arbitration devices are seen as the best tools to settle conflicts, emphasizing the convenience of resorting to voluntary arbitration and restricting mandatory arbitration to cases affecting the life, health and safety of the individuals.
A positive analysis of the activities of the United States Federal Mediation and Conciliation Service is conducted, considering its important contribution to the peaceful solution of labour conflicts. Likewise, a comment is devoted to the opportunity of using direct negotiations within a collective contract for the purpose of settling labour disputes.
V. CURRENT PROBLEMS
Under this title, the study points out the problems affecting the institutions charged with conflict resolution, emphasizing that the lack of resources prevents them to move to adequate facilities and provide training to their employees on a continuous basis. With respect to the judicial field, this chapter recognizes that the number of Courts of law is inconsistent with the number of trials, resulting in serious delays in the sentencing process. For the purpose of speeding up this process, a proposal is made to the effect of dictating specific labour procedural rules and conducting oral trials in lower Courts, in an attempt to prevent extreme judicialization from leading judges to rule on extra judicial questions. A suggestion is made to explore the possibility of resorting to administrative organs to reduce judicial gridlock, specially taking into account the possibility of implementing services such as those operating in Canada or the above mentioned United States Federal Mediation and Conciliation Service.
V. CONCLUSIONS
The following suggestions are offered as final conclusions:
l. Working in unison to modernize conflict resolution machinery as part and parcel of labour relations.
2. Founding its behavior on the ILO 1998 Declaration of Fundamental Principles and Rights.
3. Speeding judicial activities on the basis of specific labour procedures providing for self-conciliation and conducting oral trials at lower Courts of law. Promoting pre judicial conciliation machinery through administrative means.
4. Allocating adequate resources to the judicial system and providing professional training to all its members on a continuous basis.
5. Including a permanent observatory of collective labour relations as a means to prevent conflicts and provide guidance, in order to reach durable agreements and make solid contributions to economic and social progress. Fostering direct negotiations within collective contracts.
6. Enhancing the prestige of the institutions devoted to mediation and conciliation, examining the opportunity of creating bodies similar to the United States Federal Mediation and Conciliation Service.
7. Making a restrictive use of mandatory arbitration to settle collective conflicts.
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