Settlement of Labour Disputes

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1 Settlement of Labour Disputes
Italy, France, Germany Prof. Fiorella Lunardon University of Turin

2 Individual/Collective Disputes
Labour disputes and conflicts are inherent in all labour relations systems. Types of disputes: A individual dispute is a a disagreement between a single worker and his or her employer, usually over existing rights. It can also include situations in which a number of workers disagree with their employer over the same issue, but where each worker act as an individual. A collective dispute is a disagreement between a group of workers usually, but not necessarily, represented by a trade union, and an employer or group of employers over existing rights or future interests

3 Rights Disputes A rights dispute is a disagreement between a worker or workers and their employer concerning the violation of an existing entitlement or protection embodied in the law, a collective agreement, or under a contract of employment. Such disputes usually take the form of a claim by employees that they have not been provided with their entitlements with regard to such things as wages, overtime payments, holidays, and the working environment – indeed anything which is an entitlement that already exists by law. Rights disputes can be either individual or collective.

4 Interest Disputes An interest dispute is a disagreement between workers and their employer concerning future rights and obligations under the employment contract. In practice most interest disputes are the result of a breakdown in the bargaining process with the parties failing to reach agreement on the terms and conditions of employment that will apply in future. Interest disputes are generally collective in nature.

5 The resolution of employment disputes in Italy
Who are Labour Judges? Scholars, with a university degree in law, are engaged as judges by a public competition. The examination commission is compsed by university professors and Higher Court judges. No interference of the Government or of the Ministry of Justice is allowed.

6 After entering the Judicial Body judges’ career is administrated by a body (Consiglio Superiore della Magistratura) composed by 16 members judges elected by all judges and 8 members elected by the Parliament. In their decision, judges are submitted only to the law, and cannot be pursued for the decision taken.

7 Labour Court system in Italy, according to the last law of 1973 (n
Labour Court system in Italy, according to the last law of 1973 (n. 533), is dealt with by judges specialized in labour and social security matters. No Lay Judges are involved. Lay judges hace been introduced for the minor civil disputes, but not in labour and social security matters.

8 Rules of procedure The proceeding rules for Labour Disputes are a specific part of the procedure code for civil disputes; they follow the same principles. The main differences are in the system of statutory limitations, in concentration of hearings, in direct and personal approach of the judge with the litigant, and in the power of the labour judge to search the truth ex officio.

9 Judicial Bodies There are three instances for each case, no matter the value Tribunal (single judge) Court of Appeals (three judges) Supreme Court (Corte Suprema di Cassazione), social chamber (five judges), just in Rome. This Court has to deal with up than 30,000 cases each year, whose 40% labour and social security cases

10 Individual Disputes involve:
employees/employers relationship (unfair dismissals, wages and rest disputes, overwiew in disciplinary decisions, industrial accidents and diseases, etc.) civil servants (except some categories as soldiers, policemen, magistrates, university professors) agricultural workers

11 Collective disputes involve:
Trade Union’s claim against employer’s acts that limit their freedom of acting in working places Reference for preliminary ruling to the Supreme Court for direct interpretation of the collective agreements

12 Main Features of Labour Trial
Introduction of the dispute: plaintiff’s application to the Court and writ of summon scheduling of the hearing

13 Defendant’s pleading Deadlines and statutory limitations pursuant to wich defendant’s rights will lapse if he does not in his first written pleading: make any counterclaim raise preliminaty objection that cannot be raised by the judge on his own initiative (f.e. exception of prescription) identify relevant evidence contest the facts specifically

14 Hearing: appearance of both parts, with their lawyers free examination conciliation attempt admission of evidence inquiry; the judge has the power to call for further evidence, inside the boundaries of the fact alleged by the parties

15 Discussion and decision
immediate reading of operative part of judgement immediate enforceability of judgement, despite the appeal monetary revaluation the loser party is condemned to pay the lawyer fee of the winning party

16 Appeal Free appeal without any filter or leave by the judge a quo
Appeal Judges will decide only on contested parts of the judgement appealed

17 Supreme Court Cassazione will control both the correct interpretation and application of the law, and the reasoning of the judgement But it doesn’t reexamine questions of fact (only question of law). Interpretation of collective agreements was considered as question of fact. Since 2006, it has been introduced the direct interpretation on collective agreements (in individual disputes)

18 Collective disputes in Italy
Collective disputes, as we said before, are those between Trade Union (or employee’s representatives) and the Employer or Employer’s Associations, involving a Conflict of rights (related to the interpretation of a collective agreement) or a Conflict of interest (concerning the bargaining process)

19 Collective disputes referred to Courts are not very common
Collective disputes referred to Courts are not very common. Tipically, the conflicts between Trade Unions and Employer’s Association (or individual employer) are settled through negotiation outside any official channel (but there are two exceptions)

20 Art. 28 Workers’ Statute The only kind of collective dispute dealt with by Tribunals concerns Trade Unions’ claim against employer’s actions affecting their rights (referendum, paid leaves, assembly, message boards, etc.) or activities (freedom of organization, of negotiation, right to strike)

21 Art. 420 bis c.c.p. Disputes on the interpretation of a collective agreement have a collective relevance. That’s why the Italian Legislator introduced in 2006 a specific provision inside the code of civil procedure, providing the so-called preliminary ruling on the interpretation of collective agreements.

22 Art. 420 c.c.p. This procedure aims at stimulating a sudden intervention of the Supreme Court on issues concerning the interpretation of collective agreements 1) The Tribunal shall decide immediately only the question of the interpretation, leaving to a further decision the merit of the case; 2) The decision of the Tribunal cam therefore be appealed before the Supreme Court within 60 days of its communication to the parties. Pending the appeal, the procedure of first instance shall be suspended, until Supreme Court delivers its decision

23 With regard to the conflict of interest, the Italian Law provides for a compulsory conciliation attempt between Trade Unions and employers in case of strike concerning services of public relevance considered as essential (because they involve the protection of the fundamental rights of persons, e.g. health, school, transportation). Before calling a strike, Trade Unions shall participate to tihs conciliative attempt, following the rules provided by collective agreements.

24 ADR: Alternative Disputes Resolution
ADR have been taking into consideration only in recent times. Workers and Trade Unions are skeptical on ADR, because they are traditionally considered (especially arbitration) more favorable to employers than to employees. ADR are useful because potentially able to give relief to overloaded Labour Courts.

25 ADR ADR normally uses well known processes of conflict resolution in collective labour disputes, such as conciliation, mediation and arbitration, but applies these to individual workers’ complaints. ADR may be an alternative to litigation through the courts or it can also be a consensual approach to the resolution of individual conflicts in the workplace used by the courts or an agent appointed by the court. ADR has a number of variants. It is usual for an independent person to be involved as a third party. This can sometimes be someone from inside the employing company or organisation but more usually involves someone from outside who is an independent person.

26 Conciliation Here the third party acts only as a facilitator by maintaining the two way flow of information between the conflicting parties and encouraging a rapprochement between their antagonistic positions. This is where the third party listens to each side, usually in person, but it can be done by phone, and seeks to find an acceptable solution, which can be compensation or alternatively, measures taken in the workplace. The conciliator does not make a judgement nor suggest a solution but works with the applicant and the employer to find an acceptable outcome. In some countries the law requires that before the matter can be heard in a labour court or tribunal the applicant must use the services of a conciliator. If agreement is reached it would be normal for the case to be withdrawn from the tribunal and registered as ‘settled’.

27 Administrative Conciliation
This attempt at conciliation is initiated by the worker, also through the trade union to which he or she gives the mandate, before a special board instituted at the Provincial Labour Directorates (Direzioni Provinciali del Lavoro, DPL). The DPL are the provincial offices of the Ministry of Labour, which comprises also the labour inspectorates. The attempt at conciliation is not applicable to social security disputes, because the law expressly restricts its scope to individual labour disputes.

28 Trade Union Conciliation
As an alternative, the worker may attempt to reach agreement with his or her employer with the assistance of a trade union (so-called trade union conciliation). This conciliation procedure is not subject by law to any specific procedure, because it is the collective agreement which lays down the rules. The law does not identify the trade-union organisations entitled to represent workers. Hence a worker who wants to be assisted must give his or her mandate in writing to the trade union selected. For the conciliation to be valid, it must be the result of a document signed by the parties (worker and employer), and the worker’s trade-union representative. For the trade-union conciliation to be valid, it is not necessary that this document be lodged with the DPL, although the parties have the option of submitting the report. In the first case (non-submission of the trade-union report to the DPL), the agreement has immediate validity, but it may be contested by the worker for up to six months after he or she has signed it. In the second case (deposit of the report at the DPL) the conciliation has immediate validity but may not be contested by the worker.

29 Monocratic Conciliation
‘Monocratic conciliation’ is a form of conciliation which may take place before the intervention of the labour inspectorate in the firm (the inspection may be requested by the worker, or it may be undertaken directly by inspection staff). Hence before the labour inspectors carry out an investigation at the firm, they may make, with the agreement of the employer and employee, an attempt at conciliation at the Provincial Directorate of Labour. Monocratic conciliation may only deal with disputes concerning the worker’s wage rights. In the case of conciliation, the agreement (through written statements) extinguishes the inspection procedure, while in the opposite case (lack of agreement between the parties) the labour inspectors will supervise the firm.

30 Mediation This is where an impartial third party, the mediator, helps two or more people in dispute to attempt to reach an agreement. Mediation is based on the principle of collaborative problem-solving with the focus on the future and rebuilding relationships, rather then apportioning blame. Sometimes a mediator may suggest a possible solution to the conflict, as they do in collective labour disputes. Another type of mediation is where the mediator guides the parties toward finding their own solution by getting them to explore different and new ways of thinking and acting. This approach has its origins in family mediation.

31 Arbitratrion A further instrument of alternative individual labour dispute resolution is arbitration. This instrument entrusts collective bargaining agreements with the task of establishing and regulating conciliation procedures that are optional, not mandatory. If mandatory attempts at conciliation fail, the parties, instead of going to court, may resort to special optional arbitration to resolve the dispute provided that the relative nation-wide collective agreement (CCNL) envisages the possibility (amongst other things, the social partners determine through the CCNL the composition of the Arbitration Committee, i.e. nomination of arbitrators). Those who wish to contest the arbitration (the so-called lodo or ruling) can do so within thirty days of notification of the ruling.

32 Transactions - Certification
The parties may seek to reconcile the dispute in private (without the mediation of the trade union). This may take place through a transaction, i.e. an agreement with which the parties resolve the dispute. In practice, the worker surrenders a right in exchange for a quid pro quo from the employer. For the transaction to be valid, it must exist in written form. The worker has six months to challenge the agreement, after which all possible further claims lapse. If private conciliation efforts (transitions) or by a trade union fail, it is necessary to undertake the mandatory conciliation attempt before the dispute can be taken to court. Certification Certification is a particular procedure, introduced in 2004, for the purpose of reducing work-related litigation. The parties concerned (the employer and employee), also with the assistance of their respective representative organisations, may on joint agreement request certification of the employment relationship. Certificates may be issued for all types of work contract. Authorised to issue certification are the “certification commissions” set up at the Provincial Labour Directorates, the provinces, and the bilateral bodies established by national collective agreements. Workers may appeal against the certification with the judicial authorities.

33 Questions What traditional or established methods are used in your country to seek to resolve individual disputes (e.g. labour courts/tribunals)? What ADR methods are now used as alternative or additional means to resolve individual conflicts? The Italian law envisages a two-stage procedure for the judicial settlement of disputes concerning the employment relationship. Appeals can be made against decisions in the court of first instance. Appeals to the court of cassation (second degree) may concern only questions of legitimacy (breach of the provisions of law, procedure, jurisdiction). The labour tribunal procedure applies to disputes relating to subordinate and freelance employment relationships and agricultural contracts. Self-employed workers (VAT position holders) are excluded, and they must resort to the civil courts. A dispute may concern issues such as: pay claims, appeals against dismissal, constitution of the employment relationship, payment of damages, transfers of companies. The competent judge is the one in whose district the company or its branch at which the employee worked is located. Petitions are statute-barred five years from the date when the right claimed was lost. Besides court hearings, also foreseen are the conciliation, arbitration and transactional procedures, which are envisaged by the law and by collective bargaining.

34 Questions Is there any formal link between ADR and a labour court or a tribunal? The judge takes into account the reasons given in the report on the failure of conciliation. Apart from this, there are no particular aspects that link the conciliation stage with the proceedings that follow if the former has been unsuccessful. Does the worker have to have applied to the labour court/tribunal first before ADR can be used? The law makes an attempt at conciliation compulsory. Therefore, if this latter is not made, the dispute may not be brought before a judge. If this occurs, the judge requires the parties to make an attempt at conciliation before proceeding. If ADR is used and is successful, must the claim be withdrawn from the tribunal? The dispute may not be presented to the court before the mandatory attempt at conciliation has been made. Can the independent expert providing ADR subsequently be required to give evidence in the labour court/tribunal hearing? This is not possible. The parties (former work colleagues, customers of the company, etc.) called to testify before the court are indicated directly by the parties in dispute. Is the worker using ADR usually accompanied by someone at the hearing? If so, by who (e.g. a fellow worker, a trade union official, a lawyer etc)? Usually, the worker is accompanied by a trade union official or a private lawyer, in some cases also by a labour law consultant (however, this latter cannot continue to assist the worker if the case goes to court). The trade unions have agreements with lawyers, who assist workers in court cases.

35 Questions Please provide a short commentary on the significance of ADR in your country and debates about its impact (or potential impact) on employment relations. In Italy, alternative dispute resolution practices, in particular of the conciliation type, generally work well (better in the private sector, less so in the public one because of the excessive formalisation of the procedure, which limits its efficiency and impedes its use by the parties). There are two main direct consequences of the good functioning of conciliation practices. First, around 50% of the disputes initiated are resolved in the first phase of conciliation, reducing the duration of disputes and relieving labour court judges of a significant number of cases (labour cases, compared to other civil and criminal proceedings, are much faster and more efficient). Second, the possibility of obtaining a court ruling in a relatively short time is a deterrent against resolving disputes using the trade unions, through industrial relations, without resorting to the conciliation boards, first, and the courts, where appropriate, subsequently

36 France General context Labour Courts in France are composed of four judges who are elected every 5 years: two chosen by employers and two bay employee. Decisions are based on a majority vote. If there is a tie, the case is reheard up to 12 months later, with an additional judge from general jurisdiction

37 The Macron Law According the Macron Law (August 7, 2015), after the Minister of Economy who proposed it, during the conciliation hearing, parties in dismissal cases may agree to have their case heard by a reduced court of only two judges: one chosen by employers and one by employees. The reduced Court will render the decision within three months.

38 However, duting the conciliation hearing, if the nature of the case requires it or if the parties request it, the matter can be directly heard by a 5-judges court. The purpose og this change is to avoid having the case heard twice if the chance for a tie-breaker seems inevitable, thus accelerating the proceedings.

39 New alternative dispute resolution opportunity - Employers and employee can now agree not to litigate before the courts for a set amount of time and will instead seek an amicable resolution to any future dispute. Such agreements apply only to future litigation, and each party must be represented by a lawyer when entering into them.

40 Germany A very different situation exists in Germany.
For a long time, in Germany it has been a statutory duty not only for the Local labour Courts but also for the Regional Courts to seek an amicable settlement of each case before proceeding to a contentious court hearing. Basically, any trial in front of German Labour Courts starts with conciliation efforts and negotiations.

41 The law havs reacted to this situation with the national implementation of EU Directive 2008/52/EC and with new statutory regulations for alternative dispute resolutions. To all solutions the parties participate voluntarily and seek to settle conflicts on their own, preferably by mutual agreement. But no party can be compelled to take part, and each party has the right to leave the proceeding at any time, without reasons, and to declare the proceedings failed.

42 Federal Labour Court (Bundesarbeitsgericht: 3 professional judges) is the court of the last resort for cases of labour law in Germany, both for individual and collective disputes. The Court hears cases from the Superior State Labour Courts (1 professional judge and 2 lay judges) , which are the Courts of appeals against decisions of the Inferior State Labour Courts (1 professional judge and 2 lay judges)