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International Perspectives: Workplace Dispute Resolution Conference Cape Town, 22 – 23 October 2008. Key Issues Highlighted Nerine Khan Important to share common issues and common problems, share issues, have discussions and debate

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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

Nerine Khan

Important to share common issues and common problems, share issues, have discussions and debate

Important role of dispute resolution agencies in a time of economic down-swing


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

Judge R Zondo

The importance of looking at the resolution of labour disputes in different jurisdictions

Different jurisdictions to share their experiences

Look at issues to see where we are going wrong and where we would like to be

“Forum shopping” (choosing the forum that you think you might be most successful in)‏


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

Judge R Zondo

Labour Relations Act of 1995

Provide for an agency where people are well trained in Mediation and Arbitration

Such agency to provide for the expeditious resolution of labour disputes


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

Judge R Zondo

Chirwa case (forum shopping), Constitutional Court found that the High Court did not have jurisdiction and that the dispute should have followed the mechanisms set out in the Labour Relations Act

Other recent cases have tended to uphold the Chirwa finding (Fredericks)‏

There should be no confusion that could lead to 'forum shopping' (This could take up to 20 years!)‏


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

Prof Haroon Bhora

(An economist at a lawyers conference)‏

Unemployment in South Africa, Descriptors & Determinants

The lens that economists use when trying to understand the labour market

The key labour market challenge is UNEMPLOYMENT!

South Africa's unemployment rate is more than double its nearest comparative country in the 'developed' world


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

Prof Haroon Bhorat

The disparity in unemployment rates in terms of race and gender

34% of people between 15 & 24 unemployed, youth unemployment is a predictor for the future

Youth unemployment is a concern globally, but far more pronounced in SA

Highest growth in unemployment for the more highly educated, are the right graduates being produced?


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

Prof Haroon Bhorat

Differentiating between the unemployed and the unemployable

Legacy of Apartheid Schooling, disadvantage still located within traditional African Schooling

Possible causes: Output & Employment, Growth, Wages & Employment, Trade Unions & Bargaining Councils

Looking ahead: Pro-Poor Growth? Growth has not been Pro-Poor


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

Prof Haroon Bhorat

The gains from growth have not been shared equally, the “Second Economy”

Dispute resolution systems and processes should be seen within the wider context of the labour market, one of which is the scale of unemployment, this latter factor, especially amongst the 15-24 year old work seekers is a major challenge for dispute resolution


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

Australia

A discussion of the major recent changes in the workplace relations system in Australia & the present Government’s legislative programme – including an analysis of likely developments in relation to minimum conditions of employment, bargaining & dispute settlement.


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

Australia: Justice Geoff Giudice

A number of major reforms in Industrial Relations systems in Australia in last 15 years

Previously compulsory Conciliation and Arbitration, Arbitration now only available in relation to disputes that threaten the economy or an important part of it or which threaten the health and welfare of a significant part of the population

Protected action may not be taken without a ballot and an order of the Australian Industrial Relations Commission


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

Australia: Justice Geoff Giudice

Statutory protection against unfair termination of employment

Commission can assist Collective Bargaining disputes through Conciliation and Mediation

“The value of good labour relations cannot be underestimated”


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

Northern Ireland: Bill Patterson

The state of dispute resolution, collective bargaining trends, effects of the global economic down-swing.

Impact of the changing nature of work.


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

Northern Ireland: Bill Patterson

Government review of Dispute Resolution

Revised legislation expected 2009-2010

Abolish fixed periods for conciliation

Introduce comprehensive LRA Guidelines

Expand LRA dispute resolution services to a full menu of mediation processes


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

United Kingdom: John Taylor

A specific focus on Alternative Dispute Resolution Agencies’ role in educating and promoting workplace best practice and good employment relations

“Good employment relations are the new competitive advantage”


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

United Kingdom: John Taylor

ACAS, created by employers and unions coming together, “mutuality of purpose,” completely impartial

Prevent or resolve disputes between employers and their workforces

An organisation for the workplace, not simply an organisation dealing with conflict, encourage people to work together more effectively


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

United Kingdom: John Taylor

How do you balance out employee rights with employer desire for a flexible market?


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

United Kingdom: John Taylor

ACAS Aim: “Improve organisations and working life through better employment relations”

Perceptions of job insecurity fuelled by outsourcing, off-shoring and employment fragmentation

Changing workforce pattern – gender, age, nationality

Changing working patterns (24/7 society)‏

Growing influence of ICT


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

United Kingdom: John Taylor

Growing income inequalities, concern over vulnerable workers, but minimum wage effective

Emergence of super-unions – UNITE etc

Future Business Challenges: Managing 'Diversity', Managing continuous change, Making the most of the work-force's potential – 'Human Capital'


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

United Kingdom: John Taylor

ACAS' role going forward:

Greater focus on ADR

New code of practice on discipline and grievance

Expansion of pre-claim conciliation

Greater focus on mediation services

Boost professionalism of collective conciliation

“Voluntarism, based on the credibility and professionalism of the dispute resolution agency”


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

United Kingdom: John Taylor

2000 + “The Age of Resolving Issues and Maintaining Relationships” Win-Win


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

South Africa: Nerine Kahn

The state of dispute resolution, collective bargaining trends, effects of the global economic down-swing.

Impact of the changing nature of work.

A specific focus on the challenges of migrant labour in South Africa


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

Republic of Ireland: Kieran Mulvey & Maurice Cashell

The state of dispute resolution, collective bargaining trends, effects of the global economic down-swing.

Impact of the changing nature of work.

A specific focus on increased diversification of the workforce, including migrant labour.


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

Republic of Ireland: Kieran Mulvey & Maurice Cashell

Rights Commissioner Service: Focus on a non-adversarial, solution seeking approach to resolving labour conflicts

Rights Commissioners are independent of the Commission and are chosen from a list put forward by trade unions and employers

70% of decisions by Rights Commissioners are made in favour of the claimants

High number of claims by migrant labourers


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

Republic of Ireland: Kieran Mulvey & Maurice Cashell

Labour Relations Commission

Codes of Good Practice

The Irish Social Model 1987-2008: The Irish Process of Social Partnership. (Move from adversarialism to consultation, negotiation, bargaining, problem solving)‏

Agreement towards 2016 (Traditional agreement to meet the economic crisis)‏

The Bargaining Agenda-National / Enterprise Level


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

Republic of Ireland: Kieran Mulvey & Maurice Cashell

New Migrant Workforce – Ireland

The Challenge of Integration: The concerns of the unions (replacement workers, unrepresented workers); Ensuring Statutory Protection; Access to Dispute Resolution Services

“Living in difficult times, there are great possibilities for change, we work for people and with people!”


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

Canada: Guy Baron

Supreme Court of Canada decision in British Columbia Health Services

Constitutional Protection extended to the right to free collective bargaining

Right includes duty to bargain in good faith

Canadian adherence to international agreements (ILO Conventions) further supports right


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

Canada: Guy Baron

The Federal Mediation and Conciliation Service: Proactive in Building and Rebuilding Relationship

Collective Bargaining: Conciliation/Strike or Arbitration

Grievances; Mediation, Adjudication

The Canada Labour Code: Federal Jurisdiction for the Proactive Facilitation of Disputes


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

United States of America

The state of dispute resolution, collective bargaining trends, effects of the global economic down-swing.

Impact of the changing nature of work.

A specific focus on developing mediation capacity & skills in ADR Institutions & in Workplaces


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

United States of America

Unionised workforce perceived to be more costly than non-unionised

Intensification of labour-management tension, management and unions negotiating as economic adversaries rather than collaborative problem-solvers

Increase in labour-management tension

Job security becoming key bargaining issue with health care and pensions


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

United States of America

Persistent attitude that accepting mediation in a dispute is a sign of weakness

Lack of labour-relations training at business schools

Fewer labour-relations professionals, lack of experience on both sides

FMCS program, teaching the value and benefits of mediation


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

United States of America

“Real challenge in conflict management is people choosing how they are going to deal with that conflict!”

“We need to look for ways to accommodate one-another”

Need for Relationship Development and Training

Need to keep Renewing Relationships


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

New Zealand: James Wilson

The state of dispute resolution, collective bargaining trends, effects of the global economic down-swing.

Impact of the changing nature of work.

A specific focus on dispute prevention initiatives & outreach programme; migrant labour & newly introduced arrangements with Pacific Nations.


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

New Zealand: James Wilson

Employment Relations Act 2000 introduced good faith bargaining and increased union rights

Act's overall objective: “To build productive employment relationships through the promotion of mutual trust and confidence in all aspects of the employment relationship”

In terms of Act 'Good Faith Obligation' underlies employment relationships.

Employers & employees encouraged to talk & listen to each other.


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

New Zealand: James Wilson

Focus is on solving problems at earliest stage

Mediation is free, fast and flexible

Bargaining process agreements and mediation are seen as positive

More important than legislation is the willingness of the union and the employer to work constructively together


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

New Zealand: James Wilson

Mediators need to be involved before bargaining reaches a point of breakdown

Mediators are useful for parties in negotiation

Mediation improves the quality of negotiation

Mediation helps parties get a better understanding of each others positions

“There needs to be a clearer connection between workplace practices and productivity”


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Key Issues Highlighted

International Perspectives:Workplace Dispute Resolution ConferenceCape Town, 22 – 23 October 2008

Key Issues Highlighted

New Zealand: James Wilson

Emotional commitment is four times as valuable as rational commitment in producing discretionary effort

The search for a high-performing workforce is synonymous with the search for emotional commitment

“What's good for business is good for people, and what's good for people is good for business!”


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