Best practices of services in alternative dispute resolution

From 24th until 25th of May 2018, an international seminar was organised by MOSZ in Balatonalmádi, Hungary on “Best practices of services in alternative dispute resolution”, with the support of EZA and of the European Union. The seminar was part of the EZA academic-practical education and training project on capacity-building for social dialogue. 33 representatives of workers’ organisations from Austria, Belgium, Bulgaria, Croatia, Cyprus, Germany, Hungary, Poland, Romania, Slovakia, Spain participated in the seminar.

The opening speech was held by Imre Palkovics, the president of the National Confederation of Workers’ Organisations, who said: in Hungary the collaboration between representatives of the employees and employer has resulted in the establishment of the Labour Consultation and Dispute Resolution Service (later referred to as ‘Service’), where the know-how of labour law departments of universities were providing the cornerstone of its structure. They have defined a twofold fundamental mission for the Service: (1) for individuals affected by a labour dispute, the Service should provide help at the right interpretation of the legal situation and (2) work towards increasing the coverage of collective bargaining, taking into account its limited power at the support of domestic collective bargaining issues. The Labour Consultation and Dispute Resolution Service is a so-called alternative dispute resolution system, which supports the resolution of labour disputes arisen among employees and employers.

In his presentation Dr. Gábor Kártyás, associate professor at the Labour Law Department of the Faculty of Law and Political Sciences, and Pázmány Péter from the Catholic University in Hungary explained the definitions and procedures of alternative dispute resolution systems. The Service can normally be turned to in case of conflicting interests throughout collective bargaining, but exceptionally it can intervene in case of collective labour lawsuits. After, the presenter gave a broad historical review on the evolution of the legal regulation of alternative dispute resolution. He stressed that during the recent years the number of lawsuits, e.g. legal court disputes, has decreased which does not equal to the diminution of the volume of the existing labour disputes. Probably we can just assume that nowadays a lot of conflicts are forced to remain at the workplace. A part of these conflicts (e.g. ‘not submitted lawsuits’) appear and evolve as a conflict of interest, where the Service and ADR mechanisms can play a role. In his comment Imre Palkovics reflecting on the causes for the decrease of lawsuits said, that the ‘effect’ of the current labour law regulation in Hungary can be examined in all this, especially at the transformation of sanctions – short ‘easement’ - of illicit termination of employment. Furthermore, the fact that in 2008, cost-free labour lawsuits have been annulled are causing a troubling situation for employees in case of a lost trial.

Dr. András Krémer, a professional mediator presented the Hungarian regulation in case of the education system followed by his opinion on the possibilities and challenges of the labour department approving the need for a better utilisation of the solutions of alternative dispute resolutions in labour law and especially at the collective labour law. He stressed, that the alternative dispute resolution is usually a sum of such procedures, which provide an alternative for the slow, non-flexible and expensive court trials.

Dr. Dorota Sylwia Majewicz (Poland) gave an extensive outlook on the main forms of alternative dispute resolution in the Polish legal system. In doing so, she gave a general overview of the evolution of regulation in the fields of civil legal disputes, criminal law cases, commercial legal relations, as well as customer protection, then she held a detailed presentation on the practice of labour mediation in Poland. Closing her presentation, she mentioned the evaluation of challenges due to cross-border dispute resolution (e.g. posting workers, employment of alien residents), which is regarded as a priority from the perspective of Solidarność.

The debate-initiating presentation of Dr. Karin Schönpflug (Austria) mentioned the challenges of employee interests, more detailed the need for protecting the freedom of association and the challenges for increasing organisational power. During the presentation (supported by ILO and Eurostat statistics) she portrayed those challenges, which at the same time affect the employees and their representatives, stakeholders, as well as the questions relating to decentralisation, digitalisation, diversity and democracy (as external ‘environment’ and as internal ‘operation’). She gave an overview of European tendencies relating to the direct labour actions, such as the application of strike, finally she mentioned the possible advantages and thought-provoking the disadvantages of ADR.

In their presentations Dr. Katarina Rumora (Croatia), Dr. Adrian Iliev (Bulgaria), Renos Savva (Cyprus) gave an overview with detailed statistical data on the practice of labour law in their countries stressing the role of Croatian, Bulgarian and Cyprian trade unions in the operation of ADR mechanisms. 

During the roundtable discussion it was mentioned that ADR procedures can – somewhat compensate the potential perplexity, destitution of representations of interest as well as they can aid to solve disputes reaching a ‘deadlock’, standoffs. The participants agreed, that this can promote the publicity, recognition, role of employee representation of interest (both towards employer and employee), but it should never result into a negative effect on the use of the trade union toolkit. It should be rather treated as some kind of a ‘capacity building’ function of representation of interest.

On the second day of the Seminar in his presentation Dr. Imre Szilárd Szabó stressed, that the Service and the wide scale of other services provided due to the open interpretation of labour disputes try to give quick, targeted, responsive and real-need aid for the parties in labour relations in the broadest way. He highlighted that the willingness for effective, proactive dispute resolution and the ability for the openness toward the Service should be part of both the vital, agile, constructive image of representation of interests (e.g. trade union) and the responsible, ethical employer ‘brand’. In his presentation he explained the ‘malleability’ of the labour juridical-scientific distinction of collective interest and legal dispute – the fact, that during the operation of the Service, conflicts of interest (‘regulation disputes’) and legal disputes (the interpretation and application of the regulation effecting employment contract, even questions concerning individual application of law effecting a larger number of employees) have occurred, in practice often occur simultaneously. He presented the Service’s functions overlapping its basic operation: besides dealing with the specific cases, the Service’s mission is to become a certain centre, ‘think-thank’ in the world of collective labour law (e.g. through its professional network, publications, events and chain of partners). During the debate on his presentation, the operation and possibility of development of the trade unions’ individual legal aid services emerged. In his comment Andreas Gjecaj explained the relationship of the Austrian Chamber of Labour and the ÖGB highlighting the advantage of the proper distinction of competences resulting in a fruitful cooperation and contributing to the appropriate management of individual and collective disputes.