In recent years, legislation, international instruments and general literature on occupational health and safety have highlighted the importance of information, consultation and cooperation between workers and employers. The focus has been on averting disputes rather than their settlement. Some contend that in the area of occupational safety and health, the interests of workers and employers converge and thus disputes can be more easily avoided. Yet disputes still arise.
The employment relationship is subject to diverging interests and priorities as well as changing concerns, including with respect to health and safety considerations. The potential thus exists for disagreement or conflicts which may harden into labour disputes. Although there may be a consensus regarding the importance of health and safety issues in general, disagreement may arise regarding the need for specific measures or their implementation, particularly where extra time or money is involved or production will be decreased. When dealing with health and safety, there are few absolutes: what is an “acceptable” risk, for instance, is relative. Where to draw the line on a number of issues is open to debate, particularly since complicated situations may have to be addressed with limited technical assistance and a lack of conclusive scientific evidence. Also, perceptions in this area are continually shifting as a result of the use of new technology, medical and scientific research, changing societal attitudes and so on. The potential for diverging views and dispute in this area is, therefore, considerable.
In all areas of labour relations, but perhaps particularly with respect to health and safety concerns, the equitable and efficient resolution of disputes is essential. Disputes may be resolved at an early stage as a result of one side to the dispute making the other aware of relevant facts. This may be done formally or informally. Disputes may also be dealt with through internal complaints procedures, usually involving progressively higher levels of management. Conciliation or mediation may be needed to facilitate the resolution of the dispute, or a solution may be imposed by a court or an arbitrator. In the health and safety area, the labour inspector may also play an important role in dispute settlement. Some disputes may lead to work stoppages, which in the case of health and safety issues may or may not be considered a strike under the law.
Categories of Disputes
Within the purview of health and safety considerations, a variety of types of dispute may arise. Although the categories may not always be obvious, giving the dispute a particular definition is often important for determining the mechanisms for settlement that will be applied. Disputes in general can be classified as individual or collective, depending on who initiates, or has the authority to initiate, the dispute. Generally, an individual dispute is one involving an individual worker and a collective dispute involves a group of workers, usually represented by a trade union. A further distinction is often made between rights disputes and interest disputes. A rights dispute (also called a legal dispute) involves the application or interpretation of rights under law or an existing provision set out in a contract of employment or a collective agreement. An interest dispute, on the other hand, is a dispute regarding the creation of rights or obligations or the modification of those already in existence. Interest disputes primarily arise in relation to collective bargaining.
Sometimes defining a dispute as collective or individual will determine the resolution procedures; however, it is usually the interaction between the categories that is relevant – collective rights disputes, collective interest disputes and individual rights disputes are usually given distinct treatment. This article deals only with the first two categories, but it should be kept in mind that some stages in the process of collective disputes will coincide with those for individual claims.
Whether a dispute is considered to be collective or individual may depend on whether the law allows the trade union to raise a dispute on the issue in question. To obtain authority to negotiate over health and safety and other issues, in a number of countries a trade union needs to be registered with the public authorities or to be recognized as being representative of a given percentage of the employees concerned. In some countries, these prerequisites also apply with respect to the authority to raise rights disputes. In others, the employer must voluntarily agree to deal with the trade union before the trade union can act on behalf of the employees.
A trade union may be able to initiate procedures to settle a collective rights dispute where health and safety obligations affecting the workplace as a whole are at issue: for example, if there is a provision in the collective agreement or in legislation providing that noise levels are not to exceed a certain limit, particular precautions are to be taken with respect to machinery, or personal protective equipment is to be provided and the employer does not comply with these provisions. Collective rights disputes may also arise, for example, where the employer fails to consult with or provide information to the health and safety committee or representative as required by law or the collective agreement. Due to its inherently collective nature, an alleged breach of the collective agreement may in some countries be considered a collective dispute, particularly if it concerns the implementation of provisions of general applicability such as those on safety and health, even if in reality only one worker is immediately and directly affected by the employer’s breach. Breach of legal provisions may be considered collective where the trade union acts on behalf of all affected workers, where it is entitled to do so as a result of the breach.
Collective interest disputes over health and safety matters may also take many forms. Such disputes could arise out of negotiations between a trade union and an employer over the formation or responsibilities of a health and safety committee, the introduction of new technology, specific measures for dealing with hazardous materials, environmental control and so on. The negotiations may involve general statements of principle regarding health and safety or specific improvements or limits. Where the parties reach an impasse in the negotiations, dealing with the dispute is considered an extension of the freedom to bargain collectively. In the Collective Bargaining Convention, 1981 (No. 154), the ILO has noted the importance of setting up bodies and procedures for the settlement of labour disputes as part of the process of promoting collective bargaining (Article 5(2) (e)).
The term grievance procedure is generally used to mean internal procedures set out in the collective agreement to resolve disputes regarding the application or interpretation of the collective agreement (rights disputes). Similar procedures are, however, often set up even in the absence of a union or collective agreement to address problems and complaints of workers, as they are seen to be a fairer and less costly means of dispute resolution than litigation (McCabe 1994). The collective agreement normally provides that the complaint is to be dealt with through a multi-stage procedure involving increasingly higher levels within the organization. For example, a dispute on a health and safety matter may go first to the immediate supervisor. If not resolved at the first stage, the supervisor and the health and safety representative may then undertake an investigation, the findings of which are submitted to a manager or perhaps the health and safety committee. If the dispute remains unresolved, a senior level of management may then intervene. There may be several stages which need to be exhausted before outside procedures are set in motion. The agreement may go on to provide for third party intervention in the form of inspection, conciliation and arbitration, which will be discussed in more detail below.
The Examination of Grievances Recommendation (No. 130), adopted by the ILO in 1967, underlines the importance of grievance procedures for rights disputes, whether individual or collective. It states that workers’ organizations or the representatives of workers in the undertaking should be associated with the employers in the establishment and implementation of the grievance procedures within the undertaking. Rapid, uncomplicated and informal procedures are urged. Where procedures within the undertaking are exhausted without a mutually acceptable resolution being reached, the Recommendation goes on to set out procedures for final settlement, including joint examination of the case by the employers’ and workers’ organizations, conciliation or arbitration and recourse to a labour court or other judicial authority.
Conciliation and Mediation
The collective agreement or law may require collective disputes to be submitted to conciliation or mediation before further dispute settlement procedures can be invoked. Even without being required to submit a dispute to conciliation, the parties may voluntarily ask a conciliator or mediator, an impartial third party, to assist them in reducing their differences and ultimately reaching an agreement. In some industrial relations systems, a distinction is made, at least in theory, between conciliation and mediation, though in practice the line is difficult to draw. The role of conciliators is to re-open the lines of communication, if they have been broken, to help the parties to find common ground so that an agreement can be reached and perhaps make findings of fact. The conciliator does not, however, present formal proposals to resolve the dispute (although in practice such a passive role is seldom adopted). A mediator, on the other hand, is expected to propose terms of settlement, though the parties remain free to accept or reject the proposals. In many countries there is no real distinction between conciliation and mediation, with both mediators and conciliators seeking to assist the parties to a dispute to find a solution, using the most appropriate tactics of the moment, sometimes remaining passive, sometimes putting forth proposals for settlement.
Conciliation is one of the most widely used and is considered to be one of the most effective procedures for the settlement of disputes over interests. In the process of collective bargaining, conciliation can be seen as the continuation of negotiations with the assistance of a neutral party. In a growing number of countries, conciliation is also used at the initial stages of settling rights disputes. The government may make conciliation services available or may set up an independent body to provide such services. In some countries, labour inspectors are involved in conciliation.
The ILO, through the adoption of the Voluntary Conciliation and Arbitration Recommendation, 1951 (No. 92), has advocated that free and expeditious voluntary conciliation machinery be “made available to assist in the prevention and settlement of industrial disputes between employers and workers” (Paras. 1 and 3). The role of conciliation in ensuring the effective exercise of the right to bargain collectively is reflected in the European Social Charter (10 October 1961, Article 6(3)).
Arbitration involves the intervention of a neutral third party who, though not a member of the established judiciary, is authorized to impose a decision. In several countries, virtually all rights disputes arising out of the application or interpretation of the collective agreement are dealt with through binding arbitration, sometimes following an obligatory and unsuccessful conciliation stage. Arbitration is available in many countries as a voluntary procedure, while in others it is compulsory. Where arbitration is imposed as a method of resolving disputes over interests it is usually limited to the public service or essential services. In some countries, however, particularly developing countries, arbitration of interest disputes is more generally applicable.
Arbitration is dealt with in the Voluntary Conciliation and Arbitration Recommendation, 1951 (No. 92). As with conciliation, the Recommendation concerns itself with disputes that are voluntarily submitted to arbitration and provides that in such cases the parties should abstain during the proceedings from striking or locking out and should accept the arbitration award. The voluntary nature of submission to arbitration is also stressed in the European Social Charter (ibid.). If one of the parties or public authorities can initiate arbitration proceedings, arbitration is considered to be compulsory. The ILO’s Committee of Experts on the Application of Conventions and Recommendations has stated that, in the case of interest disputes, compulsory arbitration is generally contrary to the principles of the Right to Organize and Collective Bargaining Convention, 1949 (No. 98), as it vitiates the autonomy of the bargaining parties (ILO 1994b). A final award binding on the parties concerned, if they have not voluntarily submitted a dispute to arbitration, may also be viewed as unreasonably limiting the right to strike. The Committee of Experts has stated that “such a prohibition seriously limits the means available to trade unions to further and defend the interests of their members, as well as their right to organize their activities and to formulate their programmes, and is not compatible with Article 3 of Convention No. 87 [the Freedom of Association and Protection of the Right to Organize Convention, 1948].” (ibid., para. 153.)
Labour Administration Authorities
The labour administration in most countries has a variety of responsibilities, of which one of the most important is inspecting work premises to ensure compliance with the laws on employment, in particular those on health and safety. Inspectors do not require a labour dispute in order to intervene. However, where a dispute alleges a violation of the law or agreement, they may play an important role in achieving its settlement.
In dispute settlement, labour administration authorities generally play a more active role in health and safety matters than in other areas. The role of the inspector in disputes may be defined in collective agreements or legislation involving health and safety, general labour law, workers’ compensation or a specific industry. In some countries, the health and safety representative or committee is entitled to lodge complaints with the labour inspector, or other public labour or health and safety officer, against the employer. The inspector may be requested to intervene where there is an allegation that health and safety regulations are not being observed. The labour administration authorities may also be required to intervene due to their competence under state workers’ compensation schemes.
The inspectors may have authority to issue improvement, prohibition or stop-work orders, levy fines or penalties or even initiate prosecutions. Civil or criminal proceedings may be available depending on the nature of the violation, the seriousness of the consequences, prior knowledge of the likely consequences and whether the violation has been repeated. An inspector’s decision can normally be reviewed on appeal to a higher public officer, a specialized labour or health and safety body or the court. Separate administrative and appeal mechanisms may exist for different industries (e.g., mining).
The Labour Inspection Recommendation (No. 81), adopted by the ILO in 1947, encourages collaboration between officials of the labour inspectorate and workers’ and employers’ representatives. European Union Framework Directive No. 89/391/EEC on Health and Safety adopted in 1989 provides that workers and their representatives are entitled to appeal to the authority responsible for health and safety protection at work if they are not satisfied that the measures taken by the employer will ensure safety and health at work. According to the Directive, workers’ representatives are to have the opportunity to submit their observations during inspection visits by the competent authority (Article 11(6)).
Regular and Labour Courts
Since rights disputes involve rights or obligations that are already in existence, the general principle underlying their settlement is that they are to be resolved ultimately by courts or arbitrators and not through industrial action, such as a strike. Some countries leave ordinary courts to deal with all disputes over rights, irrespective of their labour relations character. However, in many countries, labour courts (called in some countries “industrial courts”) or specialized tribunals will deal with rights disputes. They may deal with rights disputes generally or only certain types of disputes, such as claims of unjustified discipline or dismissal. The principal reason for having such specialized judicial bodies is the need for speedy, inexpensive and informal procedures and specialized capacity in labour matters. The delays and expenses involved in the ordinary court system are not considered acceptable when dealing with employment, which is an area of crucial importance to a person’s life and often involves a relationship that must continue even after the dispute is settled. Jurisdiction over collective rights disputes may be divided between the ordinary and the labour courts: for instance in some countries the only collective disputes that a labour court is competent to adjudicate are those arising out of an alleged breach of a collective agreement, leaving breaches of legal provisions to the regular courts.
Often representatives of workers and employers as well as an independent judge sit on labour courts or tribunals. Labour courts consisting of only workers’ and employers’ representatives also exist. This bipartite or tripartite composition is aimed at ensuring that the members have expertise in industrial relations matters and, therefore, that relevant issues will be canvassed and dealt with in light of practical realities. Such composition also assists in giving credibility and persuasiveness to the decision. The workers’ and employers’ representatives may have an equal voice in determining the outcome of the dispute or they may be entitled to act only in an advisory capacity. In other countries, judges unaffiliated to either side of industry resolve collective rights disputes.
In a few countries, labour courts deal both with collective rights disputes and interest disputes. As discussed above with respect to arbitration, where adjudication is compulsory for interest disputes, the voluntary nature of collective bargaining is undermined.
A concerted work stoppage may take place for a variety of reasons. Most commonly it is understood as a form of pressure on the employer to agree to terms and conditions once an impasse has been reached in the collective bargaining process. This is considered to be a strike in most countries and is normally viewed as a legitimate means of workers and their organizations to promote and protect their interests.
The right to strike is expressly recognized as a general right under the International Covenant on Economic, Social and Cultural Rights (16 December 1966, Article 8(1) (d)). The European Social Charter (supra, Article 6(4)) links the right to strike to the right to bargain collectively and states that workers and employers are to have the right to collective action in cases of conflicts of interest, subject to obligations arising out of the collective agreement. The Charter of the Organization of American States (30 April 1948, Article 43(c)) defines the right to strike as an integral element of freedom of association, along with the right to collective bargaining. The ILO’s Committee of Experts on the Application of Conventions and Recommendations and Governing Body Committee on Freedom of Association have recognized the right to strike as arising out of the general principles of freedom of association set out in the Freedom of Association and Right to Organize Convention, 1948 (No. 87), though the right to strike is not mentioned specifically in the text of the Convention. The Committee of Experts has stated that “a general prohibition of strikes constitutes a considerable restriction of the opportunities opened to trade unions for furthering and defending the interests of their members... and of the right of trade unions to organize their activities” (ILO 1994b, para. 147).
In some countries the right to strike is a right of a trade union and thus strikes not organized or authorized by the trade union are considered “unofficial” and unlawful. In other countries, however, the right to strike is a right of the individual, even though it is normally exercised by a group, in which case the distinction between “official” and “unofficial” strikes is of little significance.
Even where the right to strike is recognized in principle, certain categories of workers may be excluded from enjoying the right, such as members of the police or armed forces, or senior public servants. The right may also be subject to certain procedural limitations, such as requiring prior notice to be given or a ballot to be taken in support of the strike. In a number of countries, the parties are obliged to refrain from striking or locking out, either absolutely or on issues regulated in the agreement, while the collective agreement is in force. This “peace obligation” is often set out specifically in legislation or collective agreements, or may be implied through judicial interpretation. The right to strike in many countries is severely restricted, or even prohibited, in essential services. This restriction is permitted under ILO principles if the services to which it applies are limited to those the interruption of which would endanger the life, personal safety or health of the whole or part of the population. (ILO 1994b, para. 159.)
In the field of disputes over health and safety issues, a distinction must be made between those relating to negotiating for certain rights (for instance, determining the precise functions of a safety representative in the implementation of a general health and safety policy) and those relating to situations of imminent danger. Where a dangerous situation exists, or is believed to exist, legislation or collective agreements generally give workers the right to stop work. This is often expressed as an individual right of the worker or workers who are directly at risk. A variety of formulas exist for justifying a work stoppage. An honest belief that a danger exists may suffice, or an objective danger may need to be shown. Regarding who is in danger, workers may cease working if they are immediately threatened, or the right may be broader and include causing danger to others. Collective work stoppages in solidarity (sympathy strikes) are not generally envisaged by the provisions (and therefore may be considered unlawful), but in fact they do take place. Authority to stop work may also be vested in the workplace health and safety representatives. Work may then be suspended pending a final decision by labour administration authorities.
The Occupational Safety and Health Convention, 1981 (No. 155), provides that workers shall not suffer undue consequences from having removed themselves from a work situation which they believe presents an imminent and serious danger to their life or health (Article 13). A similar provision can be found in Article 8(4) of the European Union’s 1989 Framework Directive, which refers to “serious, imminent and unavoidable danger”. Often the right to stop work due to imminent danger is contained in health and safety legislation. In some countries, the right is embodied in labour legislation and conceived as a work stoppage that does not constitute a strike; therefore, the procedural prerequisites for a strike do not need to be met and the peace obligation is not breached. Similarly, where an employer closes the workplace in compliance with a stop-work order or because of a reasonable belief that a dangerous situation exists, it is generally not considered to give rise to a lockout.