CAMS
The employment relationship between employer and employee is a very special type of exchange. One crucial distinguishing feature is that it involves both market and managerial relations: a price is fixed for the labour expended, but management then determines the tasks actually carried out. Another feature is that the relationship is in a state of continuous flux. There are constant pressures for one party or another to adjust it: employees or employers may want to adjust the price or the content and manner in which work is carried out. Conflict is thus an inherent feature of the employment relationship and so too, therefore, is conflict resolution, the primary mechanism of which is direct social dialogue. This occurs most commonly between an individual employee and his or her employer, or collectively between one or more employers and their workers, generally through their representatives at workplace, company, regional or national levels.
Where direct dialogue between the two parties did not lead to dispute resolution and the conflict remained active other means of resolving conflicts developed that involved ‘third parties’, individuals or agencies that were substantially independent of the two directly involved opposing parties. This often occurred in situations where ‘a wider public interest’ could be invoked – either in terms of direct negative effects (loss or disruption to a service of which the public is a significant consumer or where the state has a strategic interest), or in terms of indirect public effects (where the dispute risked social peace through legitimating unfairness or breaches of social justice). Three principal (and sometimes overlapping) forms of alternatives or supplements to direct social dialogue processes developed:
The contexts that led to the creation of these alternative dispute resolution systems historically had one or more common characteristics: they could be periods of new and/or comparatively high levels of conflict, and/or they could be periods in which industrial relations institutions, in particular the trade unions and employers’ organisations, were relatively immature and/or weak. In each of the five countries being studied one or more of these features applied in the initial moment of enactment of or agreement to procedures that permit third party (generally state agency but also agreed independent) interventions.
In France, for example, an individual right to access a conciliator over individual work-related issues was introduced after ten years of exceptionally high strike levels in 1978; while in the UK a dedicated independent conciliation and arbitration service, ACAS, with responsibilities that were later extended to cover both individual and collective disputes was created in 1975 after a similar decade of rising conflict; in Italy, a Guarantee Authority to ensure minimum public services during public sector disputes and to conduct conciliation was established in 1990.
While third party intervention processes were made binding on the parties in some countries, in others they were not. In Portugal, for example, when an impasse in collective negotiations occurs, the parties individually or together may request a conciliation intervention by representatives of the Ministry of Labour and Social Solidarity (MTSS). If still no agreement can be reached, the Conciliation may be transformed into Mediation and the negotiating parties may appeal to an arbitrator to act as a mediator, drawing up proposals for consideration by the two parties. In both Conciliation and Mediation processes in Portugal it is the two negotiating parties who decide on the final settlement. If no settlement is reached, they can advance to arbitration. This process is led by three arbitrators, two of them nominated by the negotiating parties and the third agreed upon by the first two arbitrators. The decisions in arbitration in Portugal are the responsibility of the arbitrators and have the legal effect of a collective agreement that is binding upon the negotiating parties who are compelled to carry out the decisions.
By contrast, in Poland while parts of the third party intervention procedure are mandatory, the outcomes are not. Thus mediation is obligatory if the social partners fail to reach agreement during collective negotiations. The mediator should be designated jointly by the parties to the dispute and is generally a respected person such as a member of parliament, senator, minister, State Labour Inspectorate employee or member of the clergy. The two parties may also select a mediator from a list maintained by the Ministry of Labour and Social Policy, and drawn up in agreement with the national-level social partners. If the parties do not agree on a mediator within five days, one of the parties may request the Ministry to choose a mediator from this list. However, if one of the parties to a dispute fails to meet obligations undertaken during the mediation proceedings, there is no legal basis for enforcing compliance by way of administrative decisions or court injunctions.
Yet despite a hint in 2007 and 2008 that higher rates of inflation might be about to revive industrial conflict in some countries, the industrial relations climate across Europe is today very different to that one, two or three decades earlier. On the one hand the high levels of industrial-political conflict associated with the democratic transitions in Portugal and Poland of the 1970s and 1990s and that had led to their legal frameworks had fallen away. On the other hand, so too had the very high levels of 1970s workplace-level industrial conflict in France, Italy and the UK. Almost everywhere, with the partial exceptions of Italy and of the French public sector, open conflict levels are today very low compared to ten or twenty years earlier. At the same time the trade unions generally have fewer members than they did before, and are more likely to emphasise social dialogue than membership mobilisation in pursuit of their objectives. The development of the European Social Model from the mid-1980s has also created a much stronger floor of individual and collective legal rights than existed previously. And many of the larger public and private employers have adopted human resource management policies that seek directly to motivate and persuade employees individually rather than collectively.
The decline in the most obvious indicator of conflict, the strike, is widespread. In the UK, for example, the average number of days lost per year in the late 1970s and early 1980s stood at around 7 million working days in official records, or 300 days per thousand employees. By the second half of the 1990s and early years of the twenty-first century, days lost to officially-recorded stoppages had fallen to around 0.5 million per annum or just 20 days per thousand employees and in 2005 there was a record low of just 6 days per thousand employees – although this was quite exceptional if the two last years shown in Table 1 below are anything to go by.
Table 1 Strike days per thousand employees in five countries, 1980s and 2003-7
| France | Italy |
Poland |
Portugal |
UK | |
| 1980-85 | 400 | 400 | |||
| 2003 | 201 | 43 |
1 | 20 | 19 |
| 2005 | 80 | 48 | 0 | 10 | 6 |
| 2006 | 29 | 3 | 16 | 28 | |
| 2007 | 26 |
16 | 39 |
Source: Carley, M. (2008) 'Developments in industrial action 2003-2007', eironline,
http://www.eurofound.europa.eu/eiro/studies/tn0804039s/tn0804039s.htm
In France, where strike waves of public sector workers are still important, although far below the levels of 1968-1975, private sector strikes have fallen almost continuously for 30 years from the mid-1970s. From 1985 to 2000 there was an annual average of 1,519 market sector strikes, compared to 3,245 a year between 1969 and 1984 and 1,857 a year between 1952 and 1967. There were market sector strike peaks in the election year of 1995 and, associated with the introduction of the 35-hour week, for the three years after 1998 when there were just 353,000 private sector strike days. But by 2003 the downward trend had resumed and French private sector strikes involved just 15 days per thousand employees, although as the data in Table 1 confirm, the national picture including public sector, transport and teacher strikes in particular, is of still a high level of open conflict.
In Poland, high levels of strikes in the 1970s were partly curbed by martial law in 1981, and then took off again in 1989 before declining sharply from the mid-1990s: over the five years 1990-94 there were annual averages of 836,000 striker days involving 333,000 workers; but from 1997 to 2001 the five year averages fell to 57,000 days a year and to just 13,500 workers, and between 2001 and 2003 they averaged still less, 6,300 days a year involving just 1,500 workers.
In Portugal, after a high level of political strikes during its democratic transition in the mid-1970s and an average of 581 strikes a year between 1981 and 1985, there was a dramatic fall in industrial conflict in the second half of the 1980s down to just 181 recorded strikes in 1988. This trough was followed by a rise in the early 1990s associated with failures in national-level negotiations and then a new decline from 1994 to 2004, when only 122 strikes were recorded. Since then there has been a slight increase in the numbers of strikes but the numbers of workers involved has continued to fall.
In Italy strike action also declined from the very high levels of the 1970s and 1980s. Whereas in the five years, 1981-85, strikes took an annual average of 78 million hours, by 1996-2000 they averaged only 7.7 million hours, ten times less. Strikes in Italy remained, however, above the levels of the four countries described above, with 1.8m striker days a year occurring between 2000 and 2004. Over the most recent period, 2003-2007, the 37 striker-days per thousand employees are only slightly above the EU average of 31, although the Italian figures exclude national one-day political protest strikes.
At the same time, and in part a driver of the declining levels of strike action, the quarter of a century since 1980 has also witnessed the ‘strong’ unions in France, Italy and the UK becoming weaker in terms of membership and influence, while the newly-reconstituted trade unions of Portugal and Poland have also both lost membership and become more institutionalised. In France average trade union membership of 4.5 millions in the 1970s fell to average 2.1 millions through the 1990s, where it has more or less stabilised in the 2000s. Paradoxically, these were years in which legislation strengthened the collective rights of trade unions. In the UK a similar proportional decline in trade union membership took place, fell from a post-war peak of 13 millions in 1979 to just 7 millions by 1997, a level it has remained close to since. In the UK the period witnessed the introduction of many laws making trade union recruitment and mobilisation in strikes and other forms of industrial action much more difficult and membership was just 28 per cent of all employees in 2006. In Italy, the numbers of trade union members of the three major confederations in work fell from 6.2 million in 1986 to 5.7 million in 1999. In Portugal membership remained at around 1.1 million over the 1990s, while density declined somewhat. Finally, in the much more exceptional circumstances of Poland, where one of the two major trade unions, Solidarnosc, played a leading role in triggering the transition processes of the 1980s and for a short period became a national institution both in and out of government in the 1990s, trade union membership decline has been exceptionally dramatic. Today, while still the largest trade union, it counts only just over 4 percent of employees as members compared with estimates nearly ten times greater at its height.
In the circumstances of falling levels of collective conflicts and declining trade union membership, many of the public authorities responsible for conciliation, arbitration and mediation in collective conflicts have witnessed a shrinking demand for interventions in such disputes. In Portugal, for example, the numbers of requests (all made by the trade unions) for collective dispute conciliation fell from 103 in 1998 to 46 in 2006. Yet the last 20 years has also seen the emergence of a stronger, pan-European system of individual employment rights as well as the enlargement of the EU. Alongside the emergence - particularly within the EU15 and within large multinationals - of more sophisticated management human resource systems aimed at defusing collective conflicts, these developments have, nearly everywhere, been reflected in an increase in the volume of individual grievances. This trend has significantly increased calls upon the time of trade union officials at workplace and local levels who are increasingly expected to represent individual members before management and/or at employment tribunals; further, in the context of a declining active trade union presence in the workplace, it has also increased employees’ direct recourse to third party interventions in conflicts based at work through juridical or semi-juridical employment courts, many of which require third party conciliation efforts before the case actually arrives at court.
In France in 2004 the 208,000 cases initially taken out at the Employment Councils (Conseils de Prud’hommes) was slightly below the level ten years earlier, but the numbers of individuals who took their cases on to hearings and then to appeal rose by one third. And 99 percent of these individuals were employees. In the UK, the numbers of individual cases taken out at Employment Tribunals rose dramatically: from 34,000 in 1989 to 130,000 in 2000 and 2001. But as the numbers of cases rose, so too did their complexity. Increasingly they covered not only a single issue, for example, unfair dismissal, but also sex or age discrimination.
Several significant questions emerge from this background sketch for study and discussion at national and international levels between conciliation, arbitration and mediation actors: