Industrial_Relations

A PAPER ON A COMPARATIVE INDUSTRIAL RELATION IS INTERESTED IN THOSE FACTORS THAT EXPLAIN NATIONAL DIFFERENCES TAKING THIS INTO COGNIZANCE DISPUTE SETTLEMENT PROCEDURE OR MECHANISM IN BRAZIL AND EGYPT THE DISPUTE SETTLEMENT PROCEDURE OR MECHANISM IN BRAZIL AND EGYPT INTRODUCTION Conflict in work places is inevitable, there are two kinds of disputes in Industrial relations. There are disputes of interest or conflicts of interests and right disputes. The disputes of interest concern conflicts in collective bargaining arising out of the making of new agreements on terms of conditions of work, or the renewal of those which have expired. While rights disputers are those which involve alleged violations of rights already established in employment contract or agreements. The procedure for settlement of disputes differs in organizations and industries. A dispute procedure is any procedure designed to resolve disagreement between workers and their employers or between trade union and employers. It is any set of procedural rule comprising all or any of the following: a grievance procedure, a disciplinary procedure, a dismissal procedure redundancy procedure and a negotiating procedure. DISPUTE SETTLEMENT PROCEDURE A STUDY OF BRAZIL AND EGYPT In Egypt conciliation and arbitration procedures for settlement of labour disputes are compulsory and strikes are prohibited while these procedures are in effect. Since the introduction of the Arbitration law (Law No 27 of 1994) arbitration has become an important and effective means of dispute resolution in Egypt. The trend has been an increasing resort to arbitration in commercial disputes. Arbitration is in many cases preferred to court litigation particularly when the parties are seeking a relatively speedy resolution and can afford the much higher arbitration costs. An agreement must be in writing, no separate agreement is required. Judges have generally accepted and supported arbitral proceeding and an arbitral award. The Arbitration law makes it clear that courts shall not accept a case if there is an agreement to arbitrate (unless the defendant waives his right to arbitration). The court rules these cares inadmissible. Arbitration awards in Egypt are final, binding and subject to no appeal on the merits. However awards can be challenged in actions of nullity and can be declared null and void. In Brazil any and all labour and employment rights may be disputed in court. There are special courts in Brazil to hear labour and employment issues which are called labour courts. In addition with the participation of the unions, companies may implement preliminary conciliatory commissions to discuss and settle disputes. There are also preliminary conciliatory commission that are constituted by the Employers’ Association and Labour Union that are regulated by specific law. In Brazil disputes are resolved by labor courts which have over-time earned the reputation of having a strong pro-labor bias. Under Brazilian labor courts there are policy run power in that labor courts in judging a particular care are entitled to formulate policies in areas where the law is ambiguous in the opinion of the court Brazilian labor law gives labor courts policy setting powers “poder normativo” in that there courts can form policy on issues which are left unclear by the CLT and the constitution. As a result labor courts rulings have influences far beyond the case being arbitrated, in effect serving a policy-making role that should be the responsibility of Ministry of Labour. Arbitration in Brazil is governed by Law number 9307/96, the Brazilian Arbitration Law (“BAL”). The BAL allows for the enforcement of arbitration awards by Brazilian courts. Further under Presidential Decree No. 4.3111/2007 Convention on the Recognition and Enforcement of Foreign Arbitral Awards is part of Brazilian Law. In Brazil if conciliation is not successful, the mater proceeds to the labor judge, where decision can be challenged through an appeal to the Regional Tribunal of Labor either on grounds of fact or law. Further appeal, to the superior Tribunal of Labor can only be made on a legal basis and its deliberation is done from the perspective of establishing a homogenous national jurisprudence. The Supreme Federal Tribunal only has jurisdiction when the dispute touches a constitutional matter. In Brazil it is only recently a labor conflict could be solved at various different stages of a judicial procedure but had almost no chance to be settled before it came to court. Even though new conciliatory mechanisms have been established in order to create a less conflictive environment, litigation is still on the rise. In Egypt resolving disputes is a very complicated thing to do. In reality it is very tough to bring three judges in one committee none the less five. In Egyptian laws any administrative and/or governmental agency that is subject to a dispute, the claimant must first resort to a Dispute Resolution Committee. The committee’s main goal is to examine the dispute and exercise reasonable efforts to identify the matter amicably. If the dispute is not resolved, the committee will issue a recommendation to the constitution. As a result of the long exhaustive process of judicial proceedings in Egypt ADR is the preferred method for resolving disputes. Also due to lack of experience among judges with regard to technical issues for certain industries, parties in dispute usually prefer arbitration to judicial proceedings. Nevertheless, realizing that the value of mediation and the advantages it avails over arbitration, the corporate community in Egypt is pursuing mediation over adjudication and arbitration. The table between demonstrates some of the advantages in Egypt of mediation over Arbitration. |Factors |ARBITRATION |MEDIATION | |Submission |Involuntary |Voluntary unless mandated by court | | | | | | | |Informal | |Process |Formal | | | |Imposed decision (may not be reasoned). |Decisions agreements created by parties. | | |May have discovery relaxed rules of evidence. |No rules of evidence/minimal discovery | | |May have subject matter expertise. |Usually subject matter expertise. | | |Proofs and argument. |Presentation of interests and needs. | |Time Frame |Moderate i.e. months or |Immediate, weeks, | | |Sometimes year. |months | |Cost |Expensive |Inexpensive | |Confidentiality |Confidential unless subject to court matter |Confidential | An agreement resulting from mediation is usually enforceable in Egypt courts unlike in Brazil. Nevertheless the resource of mediation must be based on a rule of law i.e. a contractual provision and most agreements that direct to course of mediation in Egypt usually contain the following clause: “Any dispute or difference of any kind whatsoever between the parties among under or out of or in connection with this Agreement, including without limitation any question regarding its existence validity or termination and whether before or after the termination, abandonment or breach of this agreement (“a Dispute”) shall be resolved in accordance with the following mechanism (i) Mediation. Each party shall designate in writing to the other party a representative who shall be authorized to resolve any dispute in an equitable in manner and, unless otherwise provided here in, to exercise authority of the parties to make decision by agreement. Each dispute shall be initially referred by written notice to such designed representative for resolution. If designed representatives are unable to resolve any dispute within fifteen (15) calendar days of such referral by each representative to a senior officer designated by the parties respectively and such senior officers shall attempt to resolve such dispute with a further period of fifteen (15) calendar days. The parties to this disputes shall attempt to resolve all dispute promptly equitably and in good faith, and shall provide each other with in a timely manner with reasonable non-privileged records, information and data pertaining to any such dispute. (ii) Arbitration: unless the parties otherwise agree, if the period of thirty (30) calendar days referred to above here expired and the dispute still remain unresolved, wither parties may initiate arbitration in accordance with Paragraph….). Once the parties agree to mediate (i.e. applied the provision contemplated in the clause above), they select the mediation in accordance with the criteria mentioned above. Below is the common process for mediation in Egypt. Due to the non-binding nature of mediation parties usually suggests the path of Evaluation – Mediation, whereby the parties empower the mediator to evaluate the nature of the dispute, demands of the parties and non-binding solution. The rational behind this path is that it allows the Mediator to evaluate their demands, and it shows the good faith and seriousness of the parties to exert the efforts for resolving the disputes and / on the conflicts among them. Some time the mediation process adopted in Egypt suggest a link between the mediation proposed and arbitration as per provisions of the clause above i.e. if the mediation process does not result in a resolution within a fixed period, the parties may resolve to Arbitration. In other events the parties strongly have mediation as their choice for resolving the dispute they disregard the evaluative mediation and proceed with the facilitative mediation. Also if the dispute is complex and involves technical matters the parties prefer to have a co-mediator (sometimes more than one co-mediator). In Brazil litigation is on the rise in settlement of disputes. Individual voice via court or tribunal complaints are becoming more important for employees when compared with collective voice via union bargaining or strike action. Some of the reason for growth of litigation in Brazil are: 1) Unemployment 2) Legal regulation 3) Change in employment 4) Weakening of collective voice. Below is a table for the Resolution of Dispute Over Rights” The Resolution of Dispute Over Rights” Main Stages in Brazil (Post 2000) Dispute over Rights Passage by the Previous Conciliation Committee Complaint before a Labour Judge (Pre-Trial Conciliation and Full Hearing Appeal to Regional Tribunal of Labour Appeal to Superior Tribunal of Labour Appeal to Supreme Federal Tribunal (Exceptional Cases, related to Constitutional Matters) Tribunals have produced a large body of case law over the years which is not only cited in petitions and decisions, but also used as a resource for the guidance of management. Labour litigation has become so complex in Brazil, that claimants can actually present themselves though no one does. The superior Tribunal of labour consolidates the way a complaint will be resolved if it reaches the tribunal. Even though Labour Judges and Regional Tribunals of Labour are not compelled to follow a ground for appeal. Before a statement is adopted the Superior Tribunal of labour can issue a jurisprudence guidance, which signals the content of a future statement. Such Guidelines are not binding but their application is strongly recommended as they direct the directions tribunals of labour should go. So far the Superior tribunal of labour has issued 363 statements and 322 Jurisprudence Guidelines, along 119 Normative Precedents concerning collective agreements. This constitutes a very complex litigation system in which a full and adequate comprehension of the case law requires legal assistance. In Brazil in a case of breakdown of negotiations in collective bargaining or in the case of one of the parties refusing to negotiate, the law established that the demanding groups should apply to the regional office of the ministry of labour (Article 616). If the mediation of the representative of the Ministry failed to solve the dispute, or if the refusal to negotiate of one of the parties existed then the other party was allowed to file the processes in court. In Brazil once cases are filed in the tribunal the process was designated to a career. Judge and the parties have mentioned them for a conciliation hearing. Before filling the cases in the tribunal, the law required the parties to try to solve their disputes themselves through direct negotiations (Articles 616 of CLT). The Judges require a written statement from the parties in which they declared that they had unsuccessfully tested direct negotiation. Secondly, the judges also required a record of the parties meeting proceeding in the Regional office of the ministry of labour, which is referred to as “round-table meeting”. The meetings were the second step (in the process of resolution of their collective disputes) required by law. The representative of the Ministry of labour stated that, in general these encounters were “pro forma meetings”. Judges refrained from being involved in the conciliation stage. At the Conciliation stage, the most extreme involvement of the judge occurred after the parties reached an agreement. These agreements were required by law to be approved by the judges; the process is called ‘homologaco’ in the Brazilian labour law. In cases of arbitration the decisions of the judges were based on the rules established by the Superior Tribunal of Labour. These rules were referred to by the law as ‘normative precedents’, which were derived from recurring decisions of that tribunal in settling labour disputes. These rules were guidelines for the decisions of the regional tribunal judges in cases of arbitration. CONCLUSION Disputes can not be avoided in Industrial Relations. The procedures for settlement of disputes vary from organization to organization and from industry to industry even between countries. A dispute procedure has been defined as any procedure designed to resolve disagreement between workers and their employees or between trade Union and employers. In comparing Dispute settlement mechanism between Brazil and Egypt, it can be seen that Brazil has relies more on the litigation process and Arbitration in settlement of disputes. The Brazilian Law No 9307/97 allows for enforcement of arbitration awards by enforcement of arbitration courts. There is no specific law that governs mediation in Brazil but rulers of local institutions exists. In Brazil, agreements reached through mediation and conciliation cannot be enforced by the courts. Although conciliation is mandatory in court proceedings in Brazil, it is poorly used and therefore produces little effect in the settlement of disputes. Mediation is still developing in Brazil at a slower rate than arbitration, though it has gained a strong foothold in the main commercial centres of Rio De Janeiro and San Paulo. Labour courts have policy-making powers under Brazilian laws as a result, the labour courts have influence to go beyond the case being arbitrated in effect serving as policy making role that should be the responsibility of the Ministry of Labour. In Egypt on the other hand, Arbitration awards in settlement of disputes are binding, final and subject to no appeal on the merits, though awards can be challenged in actions of nullity and can be declared null and void. The Arbitration Law (Law No 27 of 1994) has become an effective means of dispute resolution in Egypt. The trend has been an increasing resort to arbitration in commercial disputes. Arbitration is preferred to court litigation in most cases in Egypt particularly when the parties involved in the dispute are seeking a relatively speedy resolution and can afford the much higher arbitration costs. In Egypt, an agreement resulting from mediation is usually enforceable in Egyptian Courts, although the recourse of mediation must be based on a rule of law i.e. a contractual provision. REFERENCES • MARTIN SCHENENRDER, Employment Litigation on the rise' Company British Employment Tribunals and German Labour courts 22 COMP LAD&POL J .261. 2001. • MALBERTO CARDOSO MORERIVO , AVAILABLE AT http //www. Sindicato .com.br/artigro/sindicat.htm( visited February 2002). • BOURDEAUX C ;O’ LEARY; THORNBURUGH R. Communication and Power. A Study of the Use of Alternative Dispute Resolution of Enforcement Action at the U.S. Enviromental Protection Agency, Negotiation Journal , April 2001 , Vol 17 pp175 191. • HEBA OSMAN; KARIM EL HELAY ; SAIF HANAJI; MAY E.I BATOURI , available at www. Ardmeda.org/PDF Egypt. • ADR CENTRE ,CONFLICT MANAGEMENT & DISPUTE RESOLUTION. In consortium with ibf CONSULTING-CMAP confatigmcato pg 28. • OTOBO DAFE, Industrial Relations Theory and Controversies. Malt House Press 2000. • KOSHERI; RASHED;RIAD, The New Egyptian Labour Law Employment Legal Developments April 2007. • Encyclopedia of the Nations Of Africa, Egypt. • www. mondaq.com. • www.employmentalliance.com.