conc arbitra adjud

8/7/2019 Conc arbitra adjud

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MEDIATION

Conciliation & Mediation: Through conciliationand mediation a third party providesassistance with a view to help the parties toreach an agreement. They are regarded asequivalent terms.

The conciliator brings the rival parties togetherdiscuss with them their differences and assistthem in finding out solution to their problems.

Their role is limited to encouraging the

parties to discuss their differences and tohelp them develop their own proposedsolution.

Mediator on the other hand is more actively

involved while assisting the parties to find an


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MEDIATIONFunctions:

Mediation is an attempt at settling disputeswith the help of an outsider who assists theparties in their negotiations.

The mediator should be a confidential advisor

and an industrial diplomat.Mediation contemplates affirmative andpositive action by a third party to bringabout a settlement of disputes.

Kinds of Mediator1. The eminent outsider2. The non governmental board3. The board connected with some part of the

governmental system of the country.( they


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Essentials of MediationMediation can be an effective and successful device

if the following measures are adopted:1. Mediation can work only in a climate of consent. Themediator has to be acceptable to both the partiesand their consent is crucial.1. During negotiations he only acts to avoid

impasse and if it occurs he tries to restorenegotiations.

2. If strike is eminent he tries to prevent it and if astrike breaks out he tries to end it.

2. The mediator must be an impartial andunprejudiced person, having influence on theparties and induce confidence in them. He shouldhave full knowledge of the case and should be

willing to hear the parties patiently3. Mediation should take lace in ro er settin .


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Conciliation

Conciliation is an important methodfor preventing or settling industrialdisputes through third partyintervention. It is the process where

representatives of workers andemployers are brought togetherbefore a third person with a view topersuade them to arrive at anagreement by mutual discussionbetween them.

A conciliation process should beflexible, informal and simple.


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&onciliat ion Collective Bargaining The practice of conciliation has developed

mainly due to disputes arising from failure.of collective bargaining Conciliation has

been described as an extension of collective bargaining with third party assistance or

assisted collective bargaining Both aim at joint decision making but in conciliation

.process the conciliator participates onciliat ion and Arbitration An

arbitrator usually conducts a hearing of the parties and makes his award and decision

.afterwards The decision in arbitration is.binding on both the parties Conciliation

proceedings are less formal and a joint meeting is only one of the ways in which a

.conciliator performs his task


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Qualities of a ConciliatorA conciliator must be independent and impartialA conciliator must be physically and psychologically

fitHe should make serious efforts to reach an

agreement and not allow conciliatory proceedingsto be a mere formality or a step towardsarbitration.

He must have the ability to get along well withpeople. He must be polite, honest, tactful, self confident, even tempered and patient

He must be responsible, clear headed and capable of mature judgment

He should have a friendly personality

He should be well acquainted with the law andre ulations concernin industrial relations and the


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Role of a conciliatorAs a discussion leader

As a safety valveAs a communication linkAs an innovatorAs a sounding BoardAs a protectorAs a stimulatorAs an advisor

As a face saverAs a promoter of collective bargaining


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conciliationConciliation may be voluntary or compulsory.It is voluntary if the parties are free to make use of the

same . The disputes are referred to the conciliationofficer or board by both the parties of their own freewill. They agree to have their disputes settled by anoutsider, but are free to accept or not to accept the

decision.It is compulsory when the parties have to participateirrespective of whether they desire to do so or not.

The disputes are referred to the Board of Conciliationand the procedure is made compulsory, requiring thecompulsory attendance of both the parties during theproceedings, also prohibiting strikes and lock outswithout prior resort to conciliation. Compulsoryconciliation is more useful and effective and helps in

educating, training & guiding the parties towardsbilateral ne otiations.


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Steps towards Conciliation The case is first assigned to the conciliator.He will make preliminary contacts with the parties

separately and obtain information from them aswell as establish his relationship with them.

After that the conciliator schedules and conducts twotypes of meetings.

Joint meetings attended by both parties where theparties discuss their differences, may have heateddiscussions, either party may be antagonistic,aggressive or defensive. The conciliator also canobserve their relationship with each other.

Separate meetings with only one party where theindividual parties freely air their differences andopinion, may divulge more information and helpsthe conciliator to analyse and interpret each partysposition.

Drafting of Agreement. This report is submitted to


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Sequential patterns of Conciliation The hard posture phase The parties initially

come to conciliation as adversaries withhardened attitudes. The conciliator acquiresinformation on the parties position and of thegap which separates them and on this basisbegins his efforts

Search for Accommodation- The conciliatorsobjective is to induce them to adopt a moreflexible attitude and move closer to eachother and prevent the discussions fromdeveloping into stalemate.

Emergence of appropriate mood for settlementof compromise- The conciliator prods,encourages and assists the parties to makemodified proposals and counter proposals on


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Conciliation Machinery IndiaConciliation Officer A conciliator is often a

government official functioning in an individualcapacity. The government may appoint aconciliation officer for a specific area or specificindustry, under Section 4 of the Industrial Act1947, to mediate in or promote the settlement of industrial disputes. He may be appointed eitherpermanently or for a limited period of time.

Conciliation Board Under Section 5 of the same Act,the government may appoint a Board of

Conciliation, consisting of a chairman who shall bean independent person i.e. unconnected with thedispute and two to four members, as thegovernment thinks fit, to promote settlement of disputes. The employers and trade union membersmay recommend the names of its representatives.


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ArbitrationArbitration, a form of alternative dispute

resolution, is a legal technique for theresolution of disputes outside the courts,wherein the parties to a dispute refer it to oneor more persons (the "arbitrators", "arbiters"or "arbitral tribunal"), by whose decision (the

"award") they agree to be bound.Arbitration means securing an award on aconflict issue by reference to a third party.

The process is as follows-1. The dispute is submitted to a person or

persons chosen by the parties in dispute orappointed under a statutory provision.

2. There is a hearing and a determination of acause between parties in controversy by thethird party.

3. The arbitrator makes a decision in relation to


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o n cilia tio n a n d A rb itra tio n A n a rb itra to r u sua lly con d u cts a h e a rin g o f th e p a rtie s a n d m akes

.h is a w ard an d d ecision a fte rw ard s Th e d e cision in a rb itra tion is.b in d in g on b o th th e p a rtie s C on cilia tion p ro ce ed in g s a re le ss

fo rm a lan d a jo in t m ee tin g is on ly on e o f th e w ays in w h ich a.con cilia to r pe rfo rm s h is ta sk

Th e con cilia to r h a s to re co n cile th e re co m m en d a tion s o f th e, ,p artie s m ayb e ag a in st h is ow n d iscre tion to b rin g ab ou t an

.ag ree m en t b e tw een th e con ten d in g p a rtie s Th e a rb itra to r

e n force s h is p o in t o f vie w on th e con te n d in g p a rtie s an d th e .op in ion o f th e p a rtie s a re n o t g ive n an y p red om in an ce.A rb itra tion is m o re ju d icia l in ch a racte r th an co n cilia tion

rb itra tio n a n d M e d ia tio n A rb itra tion is a ju d icia lp roce ss w h ile m e d ia tion is m ore

.leg isla tive,Th e aw ard o f th e a rb itra to r re sts on eq u ity an d ju stice w h e re as

com p rom ise is th e ve ry e sse n ce o f m e d ia tionTh e a rb itra to r s a w a rd is b in d in g w h ile th a t o f th e m e d ia to r is n o t

A rb itra tion g en e ra lly le ad s to te rm in a tion o f th e d isp u te w h ile m ed ia to r m ay o r m ay n o t b rin g ab ou t te rm in a tion

A rb itra tion is b e st su ite d to se ttlem e n t o f co n tractu a l rig h ts w h e rea s m e d ia tio n is su ited to ad u stm e n ts o f d is u te s ove r


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Approaches to ArbitrationQuasi -judicial Approach This emphasises that

there should be a vindication of the stand takenby the disputing parties and not a compromise.

The arbitrator should not only confine to aninterpretation of existing agreement but find asettlement that the disputants can with

advantage accept and not impose a solution thatis fair and just.Settlement Approach This emphasises on the

need of a workable solution which will reduce theconflict between the contending parties andshould be conducive to harmonious industrialrelation. The decision must be based on theprinciple of natural justice.

(This is an old concept which opposes forced andadvocated settlements of controversies but prefers


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Pros and cons of ArbitrationADVANTAGES

Workers and managementhave greater faith andconfidence in this systemsince it is established bythe parties themselves

Since arbitration isestablished by agreement,it is more flexible

The procedure is relativelyexpeditious compared tocourts and labourtribunals.

It is informal and less

expensive, often withoutrecourse to lawyersSince arbitration is based on

mutual consent of bothparties, awards areimplemented withoutfurther litigations and setsa base for healthy

EVILSIt deprives labour to go on

strike as there is often aprovision of refrainingfrom strikes during theprocess

Arbitrators are not alwayswell versed with theeconomic and technicalaspects of industry andhence judgments maybeill advised

Awards may not be infavor of labour as theyare often biased againstthem.

The conditions laid downby the third party mayberesented due to absenceof negotiations

Too much arbitration is nota healthy signs as


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Compulsory

Voluntary Arbitration - the dispute is referred for

arbitration only if the parties agree to the same. Theparties themselves volunteer to come to a settlementthrough an arbitration machinery.

It implies that that the contending parties, unable toresolve their differences by themselves or with the helpof a mediator or conciliator , agree to submit the disputeto an impartial authority, whose decision they are readyto accept.

The essential elements are The voluntary submission of dispute to an arbitrator The subsequent attendance of witness and investigations The enforcement of an award may not be binding as there

is no compulsion, but the acceptance of arbitrationgenerally implies the acceptance of its award favourable or unfavourable


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o m p u ls o ry A rb itra tio n - is the submission of d isp u te s to a rb itra tion w ith o u t co n sen t o r a g re e m e n t o f

th e p a rtie s in vo lve d in th e d isp u te a n d th e a w a rd g ive n b y th e a rb itra to r b e in g b in d in g on th e p a rtie s to th e

.d isp u te C o m p u lsory a rb itra tio n le a ve s n o scop e fo r&strike s lo ck o u ts a n d d e p rive s b o th th e p a rtie s o f th e ir

.im p o rta n t a n d fu n d a m e n ta l rig h ts

Th e p a rtie s a re fo rce d to co m p u lsory a rb itra tion w h e n

T h e p a rtie s fa il to a rrive a t a se ttle m e n t b y a vo lu n ta ry.m eth od

T h e re is a n a tio n a le m e rg e n cy w h ich re q u ire s th a t p rod u ctio n sh o u ld n o t b e ob stru cte d d u e to fre q u e n t

w ork stop p a g e s T h e co u n try is p a ssin g th ro u g h g ra ve e co n o m ic crises

T h e re is g ra ve p u b lic d issa tisfa ction w ith existin g

in d u stria l re la tio n s In d u strie s o f stra te ic im o rta n ce a re in vo lve d in


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Act, 1947

The Industrial Disputes Act, 1947 was amended in 1956to provide for the settlement of industrial disputes by

voluntary reference to Arbitration. Section 10 A of theAct, provides for reference of dispute to arbitration. TheAct refers disputes to arbitration under the conditions-An industrial dispute exists or is apprehended in an

establishment The employers and workers agree in writing to refer to

arbitration The arbitration agreement is signed by the parties in the

prescribed form The consent of the arbitrator must be accompanied in

writing The dispute must be referred to arbitration before it has

been referred to a labour court or tribunalA copy of the arbitration agreement is forwarded to the

government and the conciliation officer. Apart from statutory provisions, emphasis has

been placed on this mode through The Code of


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Qualification of Arbitrator

Arbitrators should be drawn from 2 areas legalprofession and government servants with areputation of integrity and capability. They shouldhave

An understanding of the complexities of the labourmanagement relationships

A knowledge of collective bargaining and operationof arbitration procedures

High integrity, deep sense of impartiality and free

from prejudicesCommitted to maintenance of harmonious labour

management relations They must be acceptable to both the parties

i i l f ll d b b i


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:rin c ip le s fo llo w e d b y a n a rb itra to r.1 -Fa ir H e a rin g E q u a lo p p o rtu n itie s to b e g ive n to b o th

p a rtie s to b e h e a rd a n d cro ss exa m in e d.2 Prin cip le o f N a tu ra l Ju stice Pa rtie s sh o u ld h a ve d u e

,n o tice o f p ro ce e d in g s th e issu e s in vo lve d e tc.3 T h e Pa rty m u st b e fre e to g ive e vid e n ce in th e

p re se n ce o f th e o th e r p a rty so th a t th e y m a y re b u t a n d p la ce cou n te r e vid e n ce

.4 A lld o cu m e n ts sh o u ld b e in w ritte n fo rm a n d th e a rb itra to r h a s to b e im p a rtia la n d w ith o u t a n y b ia s o r p re ju d ice

5.:u b m iss io n o f a w a rd s

.1 T h e a w ard sh o u ld b e in lin e w ith th e te rm s o f re fe re n ce a n d n o t g o b e yo n d its ju risd iction

.2 ,It sh o u ld b e cle a r p re cise a n d d e fin ite

.3 It sho u ld b e ca p a b le o f b e in g e n fo rce d o r im p le m e n te d

.4 It sh o u ld co n ta in sp e cific d a te o r pe rio d fo r itsim p le m e n ta tio n


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Voluntary Arbitration in India The Government of India appointed in July 1967, A

NATIONAL ARBITRATION PROMOTION BOARD, witha tripartite composition. The functions of the Boardare:

1. To review the position periodically2. To suggest measures to make arbitration more

popular3. To compile and maintain updates of suitablearbitrators for different areas and industries

4. To evolve principles, norms and procedures for the

guidance of the arbitrator and the party5. To advise parties to accept arbitration for resolvingdisputes so that litigation in courts may beavoided.

6. To look into delays and expedite arbitrationproceedings


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AdjudicationAdjudication is the legal process by which an

arbiter or judge reviews evidence andargumentation including legal reasoning set forthby opposing parties or litigants to come to adecision which determines rights and obligationsbetween the parties involved.

Three types of disputes are resolved throughadjudication:I. Disputes between private parties, such as individuals

or corporations.II.Disputes between private parties and public officials.III.Disputes between public officials or public bodies.

Adjudication is conditioned by various constitutional,political and socio-economic aspects. The decisionsor awards have a much wider appeal and influence


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Types of Adjudication

When the government gets a report of afailure of conciliation and arbitrationproceedings, it has the discretion to decidewhether to refer the dispute to

adjudication.Voluntary Adjudication: When both the

parties, at their own accord, agree to referthe dispute to adjudication, it is obligatory

on the part of the government to make areference.Compulsory Adjudication: When reference is

made by the government without the

consent of either or both the parties to the


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3 Tier System of AdjudicationThe Industrial Dispute Act provides for a three

tier system of adjudication viz. Labour Courts ,Industrial Tribunals and National Tribunals undersection, 7 , 7A and under section 7B respectively.

These are adjudicating bodies which decide thedisputes referred to them by the appropriategovernment and pass their awards.

1. Labour Courts They adjudicate upon disputeslisted in Schedule II of the Act.

2. Industrial Tribunal - They adjudicate upondisputes listed in Schedule II or Schedule III of the Act.

3. National Tribunals - They adjudicate upondisputes which are of national importance or

when the dispute is of the nature which will

L b C t


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Labour Courts Jurisdiction: Labour Courts have been empowered to

decide disputes relating to matters specified in theSecond Schedule. These matters are concerned withthe rights of workers, such as1. Propriety of legality of an order passed by an employer

under the standing orders2. Application and interpretation of standing orders3. Discharge or dismissal of workman including

reinstatement of grant of relief to workman wrongfullydischarged or dismissed

4. Withdrawal of any customary concession or privilege5. Illegality or otherwise of a strike or lockout.6. All matters other than those specified in the Third

Schedule of the Act.Constitution : A labour court will constitute of one

person only who (a) is or has been a judge of a HighCourt, (b) Has been a District Judge for a period of notless than 3 years (c) Has held any judicial office in Indiafor not less than 7 years.

I d t i l T ib l


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Industrial Tribunal Jurisdiction : The Industrial Tribunal are

empowered to adjudicate on matters specified in

both the Second and Third schedule i.e. bothrights and interest disputes. The jurisdiction of the Industrial Tribunal is wider that the labourcourts. These matters are concerned are-

(i) Wages-period and mode of payment (ii)compensatory, allowances (iii) working hours & restintervals (iv) leave with wages & holidays (v) bonus,profit sharing, provident fund, gratuity (vi) shiftworking (vii) classification of grades (viii) rules of discipline (ix) retrenchment or closure of establishment.

Constitution : A tribunal will constitute of one ormore persons who (a) are or have been a judge(s)of a High Court, (b) Are or have been District


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National Tribunals

The Central Government may constitute one ormore national tribunals for the adjudication of industrial disputes which are of nationalimportance or when the dispute is of the nature

which will affect industrial establishmentssituated in more than one state.Constitution: A national tribunal will constitute

of one person only who (a) is or has been a

judge of a High Court, (b) has held office of thechairman or any member of the LabourAppellate Tribunal for not less than 2 years. If the Central Government thinks fit, it may

appoint two or more persons as assessors toadvise the national tribunal on the roceedin s


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AdjudicationThe government is required to consider certain

principles before referring to adjudication

1. All disputes to be referred to adjudication on request2. Disputes may not be referred to adjudication 1. Unless efforts at conciliation have failed and parties have

not agreed to arbitration2. If there is a strike or lockout declared illegal by a court or

in breach of the Code of Discipline3. If the issues involved have been a subject matter of recent

judicial decisions or if a long time has lapsed since theorigin of the cause of action.

4. If other legal remedies are available ( Factories Act,

Minimum Wages Act etc ) for the matter concerned.3. Industrial Disputes raised in regard to individual cases

maybe referred to adjudication1. If there is a case of victimisation or unfair labour practice2. If the Standing Orders or principles of Natural Justice have

not been followed

G l P i i d h A


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General Provisions under the ActSteps contemplated for reference All steps under the

Act may not be necessary and steps should dependon the exigencies of the situation, imminence if industrial production, breach of industrial peace etc

Prohibition of strike and lock out on referenceLimits of adjudication the bodies concerned should

confine themselves to the specific points & matters of disputes and the award must be cover the whole field

of reference and not go beyond those termsIncluding other parties to the dispute When a disputeis referred for adjudication and the government feelsthat it may be of interest of affect otherestablishments, the government may refer thoseestablishments before submission of the awards

Effects of reference to National Tribunal When areference is made to the National Tribunal ,the labourcourt or tribunal will have no jurisdiction before thenational tribunal.

Limitation for making Reference Disputes should bereferred as soon as possible after they have arisen or

conc arbitra adjud

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