International Perspectives Workplace Dispute Resolution Conference Cape Town

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 Important role of dispute resolution agencies in a time of economic down-swing Key Issues Highlighted 1

International Perspectives: Workplace Dispute Resolution Conference Cape 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) Key Issues Highlighted 2

International Perspectives: Workplace Dispute Resolution Conference Cape 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 Key Issues Highlighted 3

International Perspectives: Workplace Dispute Resolution Conference Cape 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!) Key Issues Highlighted 4

International Perspectives: Workplace Dispute Resolution Conference Cape 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 Key Issues Highlighted country in the 'developed' world 5

International Perspectives: Workplace Dispute Resolution Conference Cape 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? Key Issues Highlighted 6

International Perspectives: Workplace Dispute Resolution Conference Cape 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 Key Issues Highlighted 7

International Perspectives: Workplace Dispute Resolution Conference Cape 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 Key Issues Highlighted 8

International Perspectives: Workplace Dispute Resolution Conference Cape 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. Key Issues Highlighted 9

International Perspectives: Workplace Dispute Resolution Conference Cape 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 Key Issues Highlighted Commission 10

International Perspectives: Workplace Dispute Resolution Conference Cape 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” Key Issues Highlighted 11

International Perspectives: Workplace Dispute Resolution Conference Cape 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. Key Issues Highlighted 12

International Perspectives: Workplace Dispute Resolution Conference Cape 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 Key Issues Highlighted 13

International Perspectives: Workplace Dispute Resolution Conference Cape 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” Key Issues Highlighted 14

International Perspectives: Workplace Dispute Resolution Conference Cape 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 Key Issues Highlighted 15

International Perspectives: Workplace Dispute Resolution Conference Cape 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? Key Issues Highlighted 16

International Perspectives: Workplace Dispute Resolution Conference Cape 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 Key Issues Highlighted 17

International Perspectives: Workplace Dispute Resolution Conference Cape 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' Key Issues Highlighted 18

International Perspectives: Workplace Dispute Resolution Conference Cape 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” Key Issues Highlighted 19

International Perspectives: Workplace Dispute Resolution Conference Cape Town, 22 – 23 October 2008 Key Issues Highlighted United Kingdom: John Taylor 2000 + “The Age of Resolving Issues and Maintaining Relationships” Win-Win Key Issues Highlighted 20

International Perspectives: Workplace Dispute Resolution Conference Cape 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 Key Issues Highlighted 21

International Perspectives: Workplace Dispute Resolution Conference Cape 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. Key Issues Highlighted 22

International Perspectives: Workplace Dispute Resolution Conference Cape Town, 22 – 23 October 2008 Key Issues Highlighted Republic of Ireland: Kieran Mulvey & Maurice Cashell Rights Commissioner Service: Focus on a nonadversarial, 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 Key Issues Highlighted 23

International Perspectives: Workplace Dispute Resolution Conference Cape 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 Key Issues Highlighted 24

International Perspectives: Workplace Dispute Resolution Conference Cape 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!” Key Issues Highlighted 25

International Perspectives: Workplace Dispute Resolution Conference Cape 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 Key Issues Highlighted 26

International Perspectives: Workplace Dispute Resolution Conference Cape 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 Key Issues Highlighted 27

International Perspectives: Workplace Dispute Resolution Conference Cape 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 Key Issues Highlighted 28

International Perspectives: Workplace Dispute Resolution Conference Cape 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 Key Issues Highlighted 29

International Perspectives: Workplace Dispute Resolution Conference Cape 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 Key Issues Highlighted 30

International Perspectives: Workplace Dispute Resolution Conference Cape 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 oneanother” Need for Relationship Development and Training Need to keep Renewing Relationships Key Issues Highlighted 31

International Perspectives: Workplace Dispute Resolution Conference Cape 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. Key Issues Highlighted 32

International Perspectives: Workplace Dispute Resolution Conference Cape 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 Key Issues Highlighted to each other. 33

International Perspectives: Workplace Dispute Resolution Conference Cape 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 Key Issues Highlighted 34

International Perspectives: Workplace Dispute Resolution Conference Cape 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” Key Issues Highlighted 35

International Perspectives: Workplace Dispute Resolution Conference Cape 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!” Key Issues Highlighted 36