ARBITRATION VERSUS JUDICIAL DISPUTES Basic advantages of the conciliation or arbitration process are the informality and flexibility of the proceedings, in which the parties themselves get involved, as opposed to the judicial process where the parties are generally not involved in the proceedings which remain in the control of the court and lawyers. Further, from the cost and speed perspective, a common worker or a trade union of workers can sustain the informal process.
ARBITRATION VERSUS JUDICIAL DISPUTES
Basic advantages of the conciliation or arbitration process are the informality and flexibility of the proceedings, in which the parties themselves get involved, as opposed to the judicial process where the parties are generally not involved in the proceedings which remain in the control of the court and lawyers. Further, from the cost and speed perspective, a common worker or a trade union of workers can sustain the informal process.
It reduces considerably the caseload of the courts and, as a consequence, the quality of justice dispensed by the courts also improves as courts, then, have a lower pendency of cases and relatively more time for cases they can handle.
In these proceedings, the conciliator or mediator does not take any decision or give any award; decision-making remains the jurisdiction of the parties and based on the consent of the parties, therefore, the feeling of imposition of judgment, which is consequential to litigation, does not occur.
PROBLEMS AND PITFALLS
In order to bring about a movement towards the alternative dispute resolution procedures set out in this article, awareness programs may have to be organized in various parts of Pakistan. This can be done through seminars, lectures, and articles in newspapers and debates and discussions on the electronic media. In addition, capacity building of conciliators and arbitrators is also the need of the hour.
Structured training programs can be introduced for lawyers and judges. Awareness programs will create the right kind of climate for introducing conciliation and arbitration methods under statutory cover.
ANALYSIS OF CONCILIATION AND ARBITRATION
As discussed, conciliation is the second stage in the process for the amicable resolution of disputes between the employer and the union. The first stage is bilateral negotiation, Conciliation assumes importance inasmuch as it is an endeavour by a third party, invariably an official of the Government in the Ministry of Labour who intervenes, in at helping the employer and the union, in most cases, the collective bargaining agent, to amicably resolve their disputes. A Memorandum of Settlement or understanding concluded in the conciliation through the efforts of the conciliator has binding effects on all the workers of the organization. If a majority of workers accept the settlement, it is binding. Individual workers do not come in the picture as settlements are invariably concluded between the employer and the C.B.A. If the settlement so arrived at in the conciliation proceedings is accepted by the vast majority of the workmen, who have executed the instrument with their eyes open, it is presumed to be fair and not liable to be ignored merely because some workers are not prepared to accept the agreement. In fact, it is not necessary that each individual workman should know the implications of the settlement. Industrial jurisprudence is based on the spirit of collective bargaining and in the matter of collective bargaining, during the course of conciliation; the individual workmen do not enter the picture at all.
Invariably, as is the case in the labour laws of most developed nations, if no understanding can be reached at the negotiation or conciliation stages, the matter is offered for arbitration. In light of the volume of work in the NIRC, the labour courts, the Labour Appellate Tribunals and even the High Courts, all of which form the overall hierarchy of the labor judiciary, there is now an increasing need to develop workable methods of alternative dispute resolution. In this connection, the role of arbitration in almost every country and every field is being increasingly encouraged. Arbitration proceedings are not governed by the Civil Procedure Code (“CPC”) or the Qanune Shahadat Order, 1984 (“Evidence Act”) etc, but are widely flexible. Arbitration, as the nomenclature suggests, does not mean any arbitrary act on the part of the arbitrator. The arbitrator is bound by the general principles of the Labour laws, the rules of natural justice and to a certain extent also by the broad and general principles of the CPC and / or the Evidence Act, although rigid notions of these laws are not applicable. An arbitrator can be any person mutually acceptable to both the parties. In some Labour Laws a panel of arbitrators is available and both the parties may choose an arbitrator. The jurisdiction of an Industrial Arbitrator is different from that of a commercial arbitrator. The jurisdiction of an industrial arbitrator stems from statute, whereas the jurisdiction of a commercial arbitrator is based upon the agreement or consent of the parties. Such a commercial arbitrator may even have some of the “trappings of a court” but lacks the essential judicial powers otherwise vested by the law. The award of a commercial arbitrator is of a quasi judicial nature.
The task before a mediator or conciliator is well illustrated by Edger L. Warren of the University of California (Los Angeles) in his Article on “Mediation and Fact Finding”, Chapter 22 (reproduced at page 251 of Labour Laws and Practice by Kothari). He says:
“Perhaps the most potent factor determining the pressure which may be exerted in the mediation is the comparative economic strength of the two parties. If, the Union is particularly weak because there is a slight pressure on the employer to make concessions. Under these circumstances the mediator’s only recourse for settlement may be to convince the Union that it will not be able to carry on a successful strike. Similarly in the tight labour market and where a loss of production is costly to the employer a small show of strength by the Union may result in major gains. If, however the strength of the two parties is in approximate balance, the mediator may be able to channel pressures for most effective results. Thus the mediator may get the employer’s customers to insist on the importance of an early settlement so that they will not be deprived of their supplies. In the case of a Union where a substantial degree of public interest is involved the mediator may point out that the postponement of the strike is the only way to avoid a government injunction …… A good deal of the mediator’s effectiveness in dealing with economic pressures will be based on his ability to make a realistic appraisal of possible future trends and the comparative economic positions of the parties.”
The Law does not intend to confer on the arbitrator uncontrolled judicial power to make an award. He has to give reasons so as to render it capable of judicial scrutiny. An arbitrator has to decide a proposal. An award not based on any reason is liable to be quashed. It is now well settled by the superior Courts that an arbitrator’s decision is amiable to judicial scrutiny in Writ. In the Indo- Pak subcontinent, an award of an Arbitrator is amiable to judicial review by the High Court. However there is Fundamental distinction between Industrial Arbitration and Commercial Arbitration. Industrial Arbitration is based altogether on different principles and norms and the scope of the arbitration is also not like civil arbitration.
Conciliation and Arbitration no doubt are the two most important pillars of mutual resolution of disputes and differences between the employer and the union and these two pillars have now invariably found recognition in most labour legislation, and are otherwise also recognized by International Labour Organizations.
In the circumstances of global competition, it may not be possible for some enterprises to continue and meet the economic consequences of competition. In such cases, one cannot compel non-viable undertakings to continue to bear the financial burdens needed to keep the concern going. In the area of determination of industrial disputes, adjudication is still the prevailing method of dispute resolution and one can only hope that collective bargaining and inbuilt arbitration will result in the bulk of the disputes between the parties being settled expeditiously. A system of an independent judiciary under the circumstances is the need of the hour. The basic role of the Courts is not to be capitalistic or humanitarian or social, but to dispense justice according to the law and to be subject to certain limitations from time to time.
The purpose of industrial law and the object of industrial justice is to establish a balance between the interests of the workers and those of the owners of industry, so that harmony of relations may be achieved. It is not easy, perhaps not even possible, to strike a perfect balance because limitations with respect to the interests of either party are imposed by existing socioeconomic conditions. The decisive factor for the decisions, in the existing state of affairs, would ultimately have to be the attitudes of and resulting policies designed by those who administer industrial justice. In these circumstances, the Legislature has considered it best not to confer industrial jurisdiction on the ordinary Courts and has created special Industrial Courts for this purpose. One of the reasons behind this move appears to be that the Industrial Courts are expected to be experienced in and appreciative of the special socioeconomic factors at play in labour and industrial disputes, while ordinary Courts are trained to administer purely legal justice with commendable emphasis on rationality and logic which is, however, not the same thing as the formation of and adherence to a well-designed policy within the law.
The jurisdiction to hear appeals from the awards of the Labour Courts has recently been conferred on the High Court; but the nature of the jurisdiction of such appellate Courts and their outlook should be the same as those of the special Courts from which the appeals are preferred, unless in respect of their outlook an error can be found which should be an error of law, fact or a legally recognizable policy, and not merely disunity in the implicit attitudes of mind.
The Presiding Officer of the Labour Courts in the Province have been in some cases ex-Judges of the High Court perhaps because the right experts are not easily available and because the training in the administration of purely legal justice guarantees logicality, legality and the capacity to accurately grasp facts as well as the trends of thought. The discovery and development of policies must nevertheless remain the responsibility of the special Courts.
The writer is an advocate Supreme Court
