The system of adjudication or compulsory arbitration has come to stay in India as a part of the Industrial Disputes Act. In India this system of adjudication is supposed to fill in the void created by the weak trade union movement historically which was not strong enough to negotiate with the employer on an equal footing. This system however has been criticized for its unfavourable effects on the trade union movement. Undue dependence on the trade union movement has deprived the trade unions of the incentive to organize itself on a strong and effective basis and has rendered the unions mere petitioning and litigant organizations arguing their case before tribunals . This system of adjudication has also been criticized because of long delays involved in the final settlement of dispute, particularly where one of the parties chooses to go in appeal against an award. Such delays are themselves responsible for industrial strife . Another argument against the principle of adjudication is that it leads to an authoritarian imposition of the terms and conditions of employment and suppresses the possible self-government in industries based upon the democratic freedom of the parties to resolve their disputes through collective bargaining.
But inspite of many arguments made against adjudication, it has come to stay in India and there are influential protagonists for it. Supporters of compulsory adjudication contend that adjudication, coercive though it may be, is superior to collective bargaining as collective bargaining settles a dispute on the principle of trial by combat where not the cause but the relative strength of parties actually triumphs. Compulsory arbitration, though imperfect, introduces an element of law and justice in the c...
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...uch a nature that industrial establishments situated in more than one State are likely to be interested in, or affected by, such disputes.
(2) A National Tribunal shall consist of one person only to be appointed by the Central Government.
(3) A person shall not be qualified for appointment as the presiding officer of a National Tribunal [unless he is, or has been, a Judge of a High Court].
(4) The Central Government may, if it so thinks fit, appoint two persons as assessors to advise the National Tribunal in the proceeding before it.
Supra note 2 at 301.
Supra note 1 at 668.
A.M. Sarma, Industrial Relations: Conception and Legal Framework, (Delhi: Himalaya Publishing House, 1992) at 81.
(1998) 1 LLJ 868.
Supra note 2 at 303.
Section 10 (1), Industrial Disputes Act, 1947.
Schedule III, Industrial Disputes Act, 1947.
Supra note 2 at 304.
Bodies that can make a reference have to be courts or tribunals that satisfy the Dorsch criteria.
The Commission on the date of April 8, 2011 announced to the Tribunal and the alleged parties that is would not be involved in the hearing directly. They enclosed
Ulrich, G. (1999). Widening the circle: Adapting traditional Indian dispute resolution methods to implement alternative dispute resolution and restorative justice in modern communities. Hamline Journal of Public Law and Policy. 20, (2), 419-452.
In the contentious world of politics the actors at times find themselves at an impasse, unable to move forward between their conflicting visions. In these moments the courts may be asked to mediate between the different levels of government by providing constitutional or legislative advice. These scenarios can become perilous because since the courts must provide insight on issues that are political without stepping outside of its jurisdiction. Regardless of their dangers, however, I would argue that the reference instrument has proven to be a valuable tool in preventing political chaos. In the Patriation Reference and the Quebec Secession Reference the courts ++++---In order to illustrate the importance of reference cases in the Canadian system, despite their shortcomings, I will first look at the history of the advisory mechanism with a view to explain the roll of the courts. I will then look at the constitutional perspectives the courts took in several reference cases, especially the Patriation Reference and the Quebec Cessession Reference. In the next section I will explore the ways in which the courts opinions in these cases impacted Canadian federalism to determine the constitutionality of their advice. Finally I will explore the eventualities of a system without reference cases to demonstrate why they are so important. Attention will also be paid to the reference system of the United States in order to provide a comparative view. I will argue that in reference cases the Supreme Court takes on an important role as a mediator between political actors, however, the Court must act with caution as these are perilous grounds where suggestions can cross into political territory. – Indeed, political actors can abuse the system, >re...
Instructively, it behooves to set the premise on the background of the industrial relation system in the within the territorial jurisdiction of the Federation of Australia. Pursuant to section 51 under the Australian Constitution, the Federal Government has the powers to legislate with regard to conciliation as well as arbitration with a view to prevent and settle industrial disputes that step out of the confines of any given state (Fleming, 2004). Previously, the Conciliation and Arbitration Act of1904 had been the relevant Act in this respect, and it provided for the existence of trade unions and instituted the Commonwealth Conciliation and Arbitration Act Court (Fleming, 2004). The commonwealth Court lost powers to the Commonwealth Conciliation and Arbitration Commission in 1956; subsequently, it was renamed to the Australian Industrial Relations Commission (AIRC) which serves to resolve dis...
Alternative Dispute Resolution (ADR) involves dispute resolution processes and techniques that fall outside of the government judicial process. There has been moves against ADR in the past by entities of many political parties and their associates, despite this, ADR has gained inclusive acceptance among both the broad community and the legal profession in past years. In fact, many courts now entail some parties to remedy to ADR of some type, usually mediation, before allowing the parties' cases to be tried. The increasing attractiveness of ADR can be clarified by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to obtain larger control over the selection of the individual or individuals who will decide their dispute.
For Marc and Mia, multitude of factors which include legal, sociological, and economic, contributes to a party's decision to settle out of court. It is believed that the shortcomings in the adversarial system in resolving disputes especially those involving parties from different countries fuelled the emergence of ADR. The proponents of this supposition hold that domestic laws relating to jurisdiction of courts in most countries were not tailored to accommodate eventuali...
The defendant is an Airlines Company that had 900 employees. The economic crisis followed with monetary crisis gave bad effects to the defendant. They should decrease the number of their airplanes form 9 to 2 airplanes. They also had to do the efficiency on their employees to 700. On the efficiency process, there was an agreement between the defendant and employees representation on October 30 1998. The agreement stated that they would bring Independent Public Accountant to analyze company financial condition. During the process, all side should work on their duty. The Defendant should pay employees’ wage. The agreement was not guarantee that didn’t mean the dispute process was over, but the negotiation still moved on. During the process, there was another agreement between the defendant and several employees. They agreed the finish the disputed process and the employees would get separation pay. Meanwhile, other employees, who were 153 people didn’t agree with that agreement. Because they didn’t agree each other, so the employees gave the case to the “Panitia Penyelesaian Perselisihan Perburuhan Pusat (P4P)”.
Traditional literature in the field of labor relations has focused immensely on its benefit towards the employer and in the process equating it to working rules. This has been so despite the field being expected to cover the process of, labor management, union formation, and collective bargain; all which are anticipated to create a positive employer-employee relationship. This relationship is said to be positive if there exist a balance between employment functions and the rights of the laborer. Also important to note, is that this relation is equally important to the public sector as it is to the private one. Therefore, to ensure a mutually conducive labor environment exists, effective labor management process and inclusive negotiation program should be adopted (Mulve 2006; Walton, 2008).
The theory holds work to be governed by a wide range of formal and informal rules and regulations, which cover everything from recruitment, holidays, performance, wages, hours, and a myriad of other details of employment. It asserts that these rules are what industrial actors try to determine, that their establishment is influenced by the wider environmental context in which the actors operate, and that the actors themselves share an interest in maintaining the processes of negotiation and conflict resolution. On the back of these assertions four elements are held to make up the system of industrial relations rule-making. The first is industrial actors, which consists of employers and their representatives (i.e., employer associations), employees and their representatives (i.e., trade unions), and external agencies with an interest in industrial relations (i.e., government departments and labour courts). The second is the environmental context, which
Both forms of ADR have several common characteristics. However, one must consider that a neutral side in both procedures fulfils distinct from one another duties. Mediators do not have the objective to make decision, whereas arbitrators determine an outcome of the case. Upon the termination of the procedure, an arbiter renders a binding award that cannot be later avoided by disputants. During mediation, parties are not contingent upon the third side and enjoy freedom of actions needed for dispute resolution. In contrast, in case of failure to reach an agreement, parties are not legally bound for actions afterwards. By considering the true qualities of arbitration and mediation taken individually, legislation and scientists suggest that in single arbitration, arbitrators may use mediators’ functions to promote amicable settlement and functions of both arbitrators and mediators have incongruous
... with the aggrieved worker and representative meeting with the supervisor involved, followed by an appeal system with strict time limits and ultimately ending in binding arbitration. When management and the union cannot resolve a grievance submitted by a union, the union must decide whether to proceed to the final step of the grievance procedure: arbitration. Arbitration is an adversary proceeding like a trial in court. An arbitrator’s function is usually to interpret the collective bargaining agreement between the parties, not to apply his or her standards of what is right in a given situation. The courts have sought to compel labour and management to a peaceful resolution of grievances through arbitration. The Supreme Court has given support to the arbitration process in a series of decisions, and judicial deferral to arbitration has become a basic tenet of national labour policy.
The role of the government on industrial relations is very important as it sets the legal framework that industrial relations operates in. Appropriate industrial relations legislation should recognize the requirements of both employers and employee’s. Both the employee and the employer want to profit from each other but are also reliant on each other. This means that the equal bargaining power of employers and workers must be recognized (Peetz, David. 2006). Appropriate industrial relations laws should address any imbalance of power and give both groups an equal degree of control. Appropriate industrial relations should not only allow a mixture of both collective and individual bargaining but also facilitate employee participation in day to day workplace decisions. After all it’s the structure and framework of the employment relationship, which is governed by legislation that leads to good Industrial Relations.
Industrial Relations is a multidisciplinary field dealing with the study of employment relationship in union and non-union organizations. There have been various theories of industrial relations in place, but the first and most influential theory was put forward by John Thomas Dunlop. Dunlop, as a labor economist, remodelled the work of sociologists and developed a framework of industrial relations system. He developed the System’s Theory which stressed on the interrelationship of institutions and behaviors that enables one to understand and explain industrial relation rules.
Dunlop(1958) argues that in the system of industrial relations, there are 3 major components in the system. There are the actors, the context and the common ideology. The actors consist of the employers and their organizations and employees and, if present, the groups that represent them and the state or government agencies. The second major component, the context, is the situation or environment that influences any decision or activity, this is usually technology, market constraints or distribution of power in the wider society. The common ideology, under which the purpose of this essay falls, can be seen as a binding idea or theory which the actors share for the purpose of stability in the system. Under the common ideology component, there are various conflicting theories or frames of reference.