Direct negotiations, followed by Conciliation/Mediation then Arbitration for Final Settlement

Mar 14, 2024 Letters

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Dear Editor,

The Collective Bargaining process comprises of direct negotiations between the employer and the recognized Trade Union followed by Conciliation/Mediation. The outcome of both Negotiations and Conciliation/Mediation is agreement(s) between the two parties. The failure of such an agreement follows ARBITRATION as the last stage in the signed Representation Procedures Agreement between the parties for final and binding settlement of any labour dispute

There is generally no place for the Courts in the collective bargaining process, but to call/direct the parties to observe and honour their own signed collective agreement for the bargaining in good faith in keeping with the Trage Union Recognition Act – No 33 of 1997. Actions by any court can be appealed to the Court of Appeal and ultimately the CCJ.

The conciliator/mediator is not an arbitrator and cannot substitute his/her judgement for that of the parties. The conciliator/mediator cannot impose a settlement; it is for the parties to agree to a solution under the guidance and skill of the conciliator/mediator who must maintain a strictly impartial and neutral attitude towards the two parties. The conciliation/mediator’s function requires independent professional judgement, and a conciliator/mediator should not be swayed by external pressures.

Arbitration is another type of third-party intervention. It is the stage which, in the context of the usual grievance representation procedure, is expected to follow closely upon an impasse or failure at conciliation to resolve a dispute. However, arbitration need not await the failure of the conciliation/mediation process in situations where a dispute can have a severe social and economic impact, or where a prolonged dispute in a major industry/ service could severely affect community life or where the ongoing operation of an industry is necessary to sustain the national economy. In such a case the Minister of Labour is empowered by law to intervene to bring to an end any dispute by promoting a return to negotiations by the employer and trade union or refer the dispute to arbitration.

Arbitration, like conciliation /mediation, involves third party intervention in the collective bargaining process. In conciliation/mediation, however, the conciliator/mediator is expected to use his powers of persuasion to enable the parties to narrow the areas of differences between them with a view to reaching acceptable solutions. In arbitration, the arbitrator is required to decide the issue on the merits of a case presented by the parties and make an award.  Such an award is final and binding on the parties involved in the dispute, and they are expected to give effect to that award in the tradition of industrial relations practice.

In general, when an employer recognizes a trade union as the sole bargaining agent of the workers in any undertaking, the parties usually sign a collective agreement for recognition and avoidance and settlement of disputes. Embodied in that recognition agreement is the grievance procedure in which the various stages through which a grievance/dispute can be processed are outlined. It provides for arbitration as the final stage for the resolution of disputes.

But there are, within industrial relations practice, several means by which the stage of arbitration could be reached.In some agreements, either party may request that the matter under dispute should be taken to arbitration; if this happens, the other party has no option but to comply.  In others, arbitration can only take place with the mutual consent of both parties; and once one of the parties refuses to consent to arbitration, no arbitration proceedings can take place. The law, in certain situations, provides for arbitration with which the parties must comply.

In collective agreements, there are two types of arbitration provisions: voluntary arbitration– where the consent of both parties is required to set the machinery for arbitration in motion; and compulsory arbitration  — (a) where the collective labour agreement provides for the matter to be referred to arbitration  at the request of either party; (b) where the  State may consider it necessary to  ensure that services deemed to be essential are not  unduly interrupted by work stoppages resulting from  industrial disputes.  In this case, the State can refer a dispute to compulsory arbitration as applicable in national law, for final resolution of any such disputes.

Adjudication through arbitration reflects the rights approach in one of the following dispute resolution processes for determining the dispute involuntary arbitration in which, the disputing parties jointly ask an independent and acceptable third party to hear both sides and consider the dispute and make an award, which by prior agreement would be final and binding. In compulsory arbitration – anyone of the parties could have a dispute determined by a third party. The third party’s decision is final and binding, and is compulsory once initiated, and may or may not take account of any precedent. The outcome is also legally enforceable. Collective labour agreements in Guyana provide for voluntary arbitration, either by mutual consent or at the request of one party, or for compulsory arbitration by law in the essential services or in situations where the national interest is at stake.

Industrial relations methods as alternative dispute resolution (ADR)

Negotiation, conciliation, mediation, and arbitration in the settlement of industrial disputes have special significance for the social partners and are valued, effective dispute resolution methods in the conduct of labour relations. These tried and tested methods are frequently and extensively utilized in industrial relations as routine services of Ministries/Departments of Labour, mediation services, and other labour dispute resolution institutions. Within the industrial relations context therefore, one cannot seriously refer to these methods as ADR. It is a misnomer, for the methods used in ADR, are essentially industrial relations methods – negotiations, conciliation, mediation, and arbitration. These methods and processes have had a long tradition and history of success in industrial relations.

When these methods are used in civil society matters, they are referred to as ADR – alternative to the protracted, expensive, legal/ judicial/court system.  This is a valuable contribution of industrial relations to civil society. It is to be noted also that conciliation/ mediation and arbitration have long been used in the field of international relations, civil society, family, and community relations, and in the commercial world in place of the costly, protracted and time-consuming litigation through the judicial system.

There is no need for court appointed mediators, as in the case of the current teachers’ strike. However, in this unusual court intervention in the well-established system of industrial and labour to deal with industrial disputes, the expectation and duty of the appointed mediators is to mediate an end to the current strike called by the GTU and the recommencement of direct negotiations with the Ministry of Education and the GTU or Conciliation/mediation by the Ministry of Labour. Failure of agreement invokes the ARBITRATION  process for final and binding resolution. This is essential for the discipline and maintenance of the best practices in labour and industrial relations.

Yours sincerely,

Samuel J. Goolsarran

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• arbitration, collective bargaining, Final Settlement, Mediation, Samuel J. Goolsarran

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