Individual labour dispute resolution systems: A sub-regional comparative overview

1. Individual labour dispute resolution systems: A sub-regional comparative overview Ohrid, 20 October 2016 Minawa Ebisui Labour Law Officer Labour Law and Reform Unit Governance and Tripartism Department ebisui@ilo.org

2. Common challenges in the sub-region Limited information, awareness-raising, education services Limited preventative emphasis Limited coverage of legal frameworks Unclear jurisdictional demarcation/overlap/ uncertainty Financial and human resources constraints Lack of balanced combination of forums Limited access to justices Ineffective procedural connection between institutions (e.g. short qualifying period) Cumbersome procedures Multiplicity and complexity of institutions and processes Lack of clarity in terms conciliation/mediation and arbitration Unclear interactions between courts and labour inspectorates Lack of effective cost and temporal incentives Limited adherence to and enforcement of outcomes Unclear jurisdictional demarcation between dispute resolution mechanisms and labour inspectorates Lack of possibility to appeal (extra-judicial arbitration) Limited functioning of internal procedures Broader political economy

3. Good examples – how CEE countries tackle challenges • Removing legal and procedural barriers to access • Permitting non-adjudicative settlement options for certain types of individual labour disputes in and/or outside courts (e.g. BiH, Bulgaria, Croatia, Hungary, MKD, Serbia) • Longer limitation periods for access to the courts (e.g. Hungary, Romania) • Use of mediation suspends the qualifying period for access to the courts (e.g. MKD) • Role of inspectors in evaluating and re-designating an employment relationship (e.g. Hungary) • Access is guaranteed for those outside employment relationships (e.g. Serbia– the Commissioner of Equality)

4. Good examples – how CEE countries tackle challenges • Promoting voluntary conciliation/mediation and arbitration • Agency’s proactive and promotional approach (e.g. BiH-RS, Montenegro): in case of one party’s non-participation or no consent (usually employers), conciliators contact the party to attempt to seek an agreement to participate in a process. If this fails, conciliation does not take place. • Court referrals to settlement options subject to parties’ consent (e.g. Bulgaria, Croatia, Hungary, MKD, Montenegro) • Setting temporal incentives - speedier procedures/time limit (e.g. Montenegro, MKD, Serbia) • Setting cost incentives– reduction of court duties depending on participation in mediation (e.g. Bulgaria, Hungary); court duties payable only after voluntary mediation (e.g. MKD) • Information and advice services, promotional campaigns (e.g. BiH, Bulgaria, Hungary)

5. Good examples – how CEE countries tackle challenges • Ensuring the quality of conciliation/mediation and arbitration • Court-connected/annexed mediation in and outside courts and mandatory conciliation within labour court procedures - legality of outcomes ensured through courts’ approval (e.g. Bulgaria, Croatia, Hungary, MKD) • Guaranteeing access to courts/securing the right to appeal regarding legaility and legitimacy of outcomes reached extra-judicially (e.g. BiH, Croatia: subject to parties’ prior agreement, Hungary, Montenegro) • Clear qualification criteria, selection and licensing procedures (e.g. Montenegro, BiH, Serbia) • Training (e.g. Montenegro, BiH, Bulgaria, Hungary, MKD) • Codes of ethics for mediators/use of the European Code of Conduct for Mediators (e.g. Albania, Hungary)

6. Good examples – how CEE countries tackle challenges • Connection between the labour inspectorates and the civil courts • Inspectors’ report can be used as evidence in the courts (e.g. Romania) • Inspectors are empowered to suspend employers’ decision to terminate until the court renders a decision (e.g. Serbia) • Improving adherence to and enforcement of outcomes • Inspectorate’s cooperation/joint inspections with tax authority, policy authority (e.g. Albania, Hungary) • Settlement agreements and arbitators’ decisions are enforceable as the court decisions (e.g. Albania, BiH, Croatia) • Inspectorate’s cooperation with tax authority, policy authority (e.g. Albania) • Court-annexed/in-court conciliation/mediation (e.g. Bulgaria, Croatia, Hungary, MKD, Serbia) • Interim measures through the court orders to prevent forceful action or in order to remedy irreparable damage (e.g. Croatia) - applicable for dismissal and monetary claims • Enforcement of court orders accompanied by fines and penalties (e.g. Croatia)

7. Good examples – how CEE countries tackle challenges • Broader information and advice services to promote voluntary compliance and dispute prevention • Labour inspectorates • Albania: information tools, telephone and email counselling services • BiH: information and advisory services; warning and correction recommendations • Romania: information, education campaigns • MKD: phone-based information services • Labour administrative departments • BiH: consultation • Dispute resolution agencies • BiH, Montenegro, Serbia: informtion, advice and guidance services • Reaching out to volunerable workers: targeted/proactive services through labour inspectorates • MKD: educational activities for employers upon inspectors’ invitation • Romania: Targeted campaigns • Hungary: targeted annual inspection plan

8. How can internal procedures be improved in CEE countries? Discussion: Many internal procedures are put in place in the CEE countries, but the studies show that they are dysfunctionalor their role is limited. • What are major challenges to effective functioning of various internal procedures? • What needs to be done to improve their role?

9. Other relevant examples from selected OECD countries • Enhancing simplicity and clarity • `One-stop’ or `single-contact’ services for comprehensive information services on dispute resolution options (Japan, Ireland) • Judicial or administrative (quasi-judicial) specialized labour court/tribunal procedures • Offer speedier, cheaper, and less formal options than the ordinary courts, while ensuring the application of expertise • Settlement options are built into the procedures • Access • Legal standing: a claim can be pursued on a claimant’s behalf by another individual, an administrative agency, a trade union or another employee representative, or a third-party/entity (e.g. Australia, Canada, France, Sweden, United Kingdom, United States), • Targeted inspection to reach out to migrant workers, including undocumented and illegal migrants (e.g. Australia, Canada, Japan, United States) • Telephone-based services, online applications • Class action procedures (Australia, United States)

10. Other relevant examples from selected OECD countries • Improving the quality of conciliation/mediation through empowering weaker claimants • Cooling-off period after conciliation of unfair dismissal claims before committing to a settlement agreement (Australia) • Free legal representation and legal aid provided by private and public institutions • In-court mediation fees adjusted taking into account the financial power balance between the parties - Employment tribunal’s judicial mediation: respondents pay (United Kingdom) - Employment Tribunal’s judicial mediation: in the absence of parties’ agreement to split the cost equally, the judge can consider it unfair in view of the respective economic circumstances of the parties (France) • Improving adherence to and enforcement of outcomes • Financial penalties for employers’ failure to pay sums ordered by Employment Tribunal or due under settlement agreements: the new Small Business, Enterprise and Employment Act in 2015 – its impact is yet to be seen (United Kingdom). • Public-private partnerships • Inspectorates’ education and awareness raising activities through working with unions, NGOs, migrant resource networks, community groups, legal centres, workers’ centres (e.g. Australia, United States,)