Labor Arbitration Research Articles

ON THE QUESTION OF THE NECESSITY TO EXPAND THE LIST OF EXECUTIVE DOCUMENTS (IN CASE OF OUT-OF-COURT SETTLEMENT OF DISPUTES)

This article is devoted to the issues of improving the current legislation of the Republic of Kazakhstan in the field of enforcement proceedings in terms of expanding the list of enforcement documents. As is known, the executive document, due to its qualities endowed by law, represents the basis for the commencement of enforcement proceedings. Currently, the problem is that the Law of the Republic of Kazakhstan “On Enforcement Proceedings and the Status of Bailiffs”, while establishing a closed list of enforcement documents, does not provide for the inclusion in this list of other types of documents that at the present stage of development of legislation could be considered as enforcement documents, having the force of enforcement and which could simplify civil circulation and the procedure for restoring the subjective rights of individuals. Thus, the purpose of this article is to consider the need and possibility of expanding the range of executive documents. The article analyzes the norms of legislation of the Republic of Kazakhstan, as well as international agreements governing executive documents. The author, using the method of analysis, the formal legal method, methods of systematization and modeling makes a conclusion as a result of the research, about the need to improve the legislation of the Republic of Kazakhstan in the field of enforcement proceedings in terms of the rules governing executive documents by including a mediation agreement, notarized agreement about resolving a dispute by negotiations, agreements on the payment of alimony, decisions of the conciliation commission and labor arbitration, as well as decisions of the Eurasian Economic Commission into the list of executive documents.

Право на забастовку в современной России

The article presents different approaches to the right to strike as part of another right (the right to association, the right to labor disputes, the right to collective action). The objectives of the strike, stipulated by the legislation of the Russian Federation and proposed by the Committee on Freedom of Association of the International Labor Organization are compared. The cases in which it is expedient to simplify the procedure for conducting a strike are highlighted and justified: 1) non-fulfillment by the employer of a collective agreement; 2) non-fulfillment by the employer of agreements reached by the parties to a collective labor dispute; 3) non-fulfillment by the employer of a labor arbitration decision.

АНАЛИЗ СТРАТЕГИЙ ПРЕДОТВРАЩЕНИЯ ТРУДОВЫХ РИСКОВ И РИСКОВ ЗАНЯТОСТИ С ТОЧКИ ЗРЕНИЯ ТРУДОВОГО ПРАВА

There are labor risks in the process of work and employment, which are especially evident in hiring, day-to-day management and the conclusion of an employment contract. The risk factor is relatively high, therefore, it is necessary to strictly regulate labor and employment in order to prevent and eliminate labor and employment risks. At the same time, it will also help to avoid labor disputes or falling into the sphere of labor arbitration and litigation. Based on this, the article will consider the prospect of employment contracts as a starting point, with an emphasis on labor risks and appropriate strategies for their prevention.

Fostering Financial Literacy for the Visually Impaired: Improving Accessibility and NGO Collaboration

This research paper examines the importance of financial literacy, and the specific challenges faced by visually impaired individuals in China. Financial literacy is vital for making informed monetary decisions and safeguarding against exploitation. The visually impaired population in China, estimated at 17 million, encounters difficulties in perceiving boundaries, understanding regulations, and accessing technical documents, making them more vulnerable to exploitation by employers. Limited access to microfinance, portfolio diversification, and labor arbitration tools further compounds their challenges. A questionnaire revealed a lack of public knowledge about financial rights and labor laws protecting visually impaired individuals, along with a consensus that more attention should be given to their rights and interests. Our innovation project developed Braille guidebooks, launched online platforms, and started promotional campaigns. By collaborating with Beijing Hong Dan Dan Charity, we facilitated connections with schools, distributing over 100 guidebooks to over 500 visually impaired students across 20 schools. The successful implementation of the guidebooks and multimedia platforms demonstrates potential for positive social impact in addressing the financial literacy needs of visually impaired individuals in China.

On- and off-duty conduct(or): a feminist critical discourse analysis of two dismissals of a railway worker

PurposeThe authors sought to examine how hegemonic masculinity and sexism functioned in a storied, historic corporation, a test of MAnne's (2017) claim that misogyny is a structural phenomenon rather than being about anger and hatred of individual men.Design/methodology/approachThis study was an archaeological excavation of discourse in a well-documented employment relationship. The researchers were informed by feminist poststructuralism and drew on critical discourse analysis of labour arbitration and media from the case of a woman, twice wrongfully dismissed.FindingsThe authors concluded that the employer was the site of hegemonic masculinity, which led to a train conductor being repeatedly targeted and demeaned in a bad faith and discriminatory manner for disrupting the conductor’s employer's patriarchal strictures. The authors found that misogyny shaped the conductors’s experience as a repeated pattern of abuse, a gendered feature of a patriarchal organisation, and a coercive matter of maintaining the conductor’s subordination. The authors also found that the male arbitrator in the conductor’s second dismissal arbitration became complicit in misogyny by penalising the conductor for acts of resistance, giving the employer what the employer wanted, to purge the conductor for violating the patriarchal norms.Originality/valueThe authors traced how a historic corporation demonstrated vulnerability to the resistance of a lone female worker, who faced discriminatory, disturbing and bad faith managerial behaviour in the creation of the conductor’s own meaning and resistant identity. The authors concluded that evidence of the regulation of employee relations, such as the decisions of arbitrators, can reveal the processes and outcomes of work under hegemonic masculinity, sexism and misogyny.

The Construction of Specialized Institution for Cross-Border Labor Arbitration in the Guangdong-Hong Kong-Macao Greater Bay Area

As the main means of resolving labor disputes, labor dispute arbitration has played an important role in resolving labor disputes in China, protecting the legitimate rights and interests of the parties, and promoting harmonious and stable labor relations. The governments and social organizations of Guangdong, Hong Kong and Macao are building a social governance pattern of co-construction and co-governance and a multi-dispute handling mechanism of labor disputes. In this context, the existing labor dispute arbitration institutions in China are no longer sufficient to solve the problems of cross-border labor disputes. It is feasible and necessary to build a specialized institution for cross-border labor arbitration in the Guangdong-Hong Kong-Macao Greater Bay Area. Based on this, the article puts forward feasible suggestions on the positioning, construction mode, personnel composition and supporting mechanism setting of specialized agencies, to make up for the deficiencies of the current labor dispute resolution mechanism, and to promote the construction of Guangdong-Hong Kong-Macao labor relations and the legalization process in the Greater Bay.

Labour Protection of Platform Workers in China: Legal Innovations and Emerging Trends

Abstract At present, there are as many as tens of millions of digital platform workers in China, and their number is growing rapidly. However, the protection of platform workers’ rights still faces many challenges. In recent years, China’s judicial and administrative authorities and trade unions have made many efforts to strengthen labour protection for platform workers. Many innovative measures have been introduced, which strive to find a balance between the development of the platform economy on the one hand and worker protection on the other. The introduction of a number of significant administrative and legislative measures in 2021 suggests that the protection of platform workers occupies a more important position than before. Courts and labour arbitration institutions have introduced new factors into consideration in the determination of employment relationship in some cases, although they in general still apply the traditional definition and methods of determination of the employment relationship. Administrative organs have put forward the new concept of the ‘incomplete labour relationship’ (Bu Wanquan Fuhe Queli Laodong Guanxi Qingxing, referring to the situation in which the parties do not completely meet the conditions for the formation of a labour relationship), as part of administrative guidance to platform companies in the form of ‘guiding opinions’. The Trade Union Law has been amended in a timely way to clarify that platform workers can join and establish trade unions. In addition, pilot projects have been launched in some areas to provide occupational injury protection to platform workers. The main feature of the labour protection of platform workers in China is that the administrative organs have played a leading role. At present, the main challenge is to improve the imperfect legislation. The way forward is to formulate special laws to further clarify the basic rights of platform workers, including algorithm-related rights, and to improve the rules on the determining of employment status in platform work, so as to enhance legal certainty and ensure effective protection for platform workers.

Legal framework for the protection of foreign employees in China

PurposeThis study aims to examine the adequate application of rights and protections granted to employees under labor laws and regulations to foreign employees working in China.Design/methodology/approachThe authors analyzed applicable laws, regulations and related literature on the employment of foreigners in China and employed quantitative and qualitative methods to scrutinize the features of labor disputes involving foreign employees, to assess claims of inconsistencies. A group of judges and labor arbitrators were also interviewed.FindingsThe inconsistencies between Chinese immigration and labor laws, and between applicable laws and court enforcement, result in a considerable gap in employment protection for foreign employees. They have grown over the last two decades, in a changing legal environment of labor protection and labor market for foreigners.Research limitations/implicationsThis study focused on documented foreign employees' labor litigations from 2017 to 2020 in people's courts in China's five most economically developed regions. Future studies could cover a wider geographic territory and labor disputes of undocumented foreign employees to provide an even more comprehensive picture of the challenges and potential solutions.Practical implicationsThe inconsistency between immigration and labor law regarding employment protection for documented foreign employees requires legal clarification and regulation to ensure equal employment protection of both Chinese and foreign employees.Originality/valueThere are limited studies using empirical data from different regions in China to document and understand the gap between the statutory labor protections and the labor protection granted to foreign employees in law as well as in court practice.

Quasi judicial institutions in the civilization space for labor dispute resolution

This article examines conciliatory forms of proceedings for complaints and disputes related to the application of labor legislation or conditions of certain contracts that echo the past and modern period of extrajudicial forms; it also emphasizes that the period of the new economic policy was due to the phenomenon of rationalization and individualization of consciousness. The normative base of the conciliation and intermediary institutions of the early Soviet period is analyzed, and the competence of the assessment and conflict commissions is shown. The first norms of labor legislation emphasized democracy and attention to the literal mathematical equality of the parties during procedures for resolving conflicts and resolving cases, which has reference to the classical judicial principles of openness, publicity, transparency, and parity in proceedings, and allows us to make a reservation in terms of confusion and inconsistency and rationing the activities of all quasi-judicial institutions. Conciliation and mediation institutions, on the one hand, were built into the system of labor relations, and on the other hand, they are qualified as quasi-judicial, with all the signs of judicial activity. The relevance of the study lies in the fact that conciliatory activity in the civilizational space has been poorly studied, and in this regard, the study has historical significance, and has parallels with the practice of modern labor dispute commissions, conciliation commission, mediator, labor arbitration, arbitration court, mediator, lawyer, notary, and other conciliatory and intermediary institutions. Also, the parallels of the past years against the background of the reconstruction of archival materials and files according to the reports of the craft department of the workshop against the background of the industrial panorama of Belarusian cities in the 19th — early 20th centuries, the industrial appearance of the city of Minsk.

¿Luz roja para el arbitraje en materia laboral? Reflexiones sobre la jurisprudencia reciente (con énfasis en el caso “UBER”)

In this paper, we propose to analyse -from a procedural perspective- the current situation of labour arbitration in Uruguay. For this purpose, we have chosen to carry out a comparative analysis of the different recent jurisprudential rulings of some courts in Uruguay. We also analyse the situation of labour arbitration in other parts of the world, which we consider relevant and useful to contextualise the subject analysed.

Arbitragem trabalhista na visão econômica do Direito

The article will analyze the labor arbitration institute, from an economic point of view, in relation to the employer, employee and the society itself – art 507-A of the CLT. Aiming for the social growth for all, the rules must bring benefits to the community and be written in a clear and objective way to enable the understanding so that the population fulfills its legal rights and obligations. If a conflict arises, it can use one of the appropriate forms of conflict resolution – conciliation, mediation and arbitration – in order to minimize transaction costs. It is faster, less costly and more informal in relation to the Judiciary system. Economically, the standard in question presents favorable and unfavorable, but more advantageous for the parties involved.

Novel Issues in Canadian Labour Arbitration Related to COVID-19

The COVID-19 pandemic of 2020-21 changed working conditions for millions of Canadians quickly and dramatically. Employers responded by requiring employees to quarantine, implementing workplace COVID policies, disciplining employees who violated those policies, changing work schedules, cancelling leaves or vacations, and furloughing or laying off employees. Union have challenged many of these actions, raising a variety of novel issues that are now being resolved through labour arbitration. This article surveys those labour arbitration awards.

Prohibiting Use of Recreational Cannabis by Safety-Sensitive Workers in Canada : A Legal Evaluation of the New Workplace Policies

In 2018, Canada became the first G7 nation to legalize recreational cannabis. In response, at least a dozen prominent employers in safety-sensitive industries implemented policies to prevent workers from using legal cannabis for extended periods before reporting for duty, ranging from 28 days to a continual ban. The various unions that represent these workers allege an unnecessary breach of employee privacy and intend to challenge the legality of the policies. Informed by labour arbitration and Supreme Court decisions, this paper proposes a custom-made test and uses it to assess the enforceability of the new cannabis workplace policies. Notwithstanding the significant challenges facing employers, it is the position of this paper that the new policies are enforceable under certain conditions. SummaryInformed by labour arbitration and Supreme Court decisions, this paper proposes a custom-made test and uses it to assess the enforceability of the new cannabis workplace policies, which prohibit legal consumption for safety-sensitive workers. The analysis identifies two main challenges facing employers.Establishing that a problem exists in the workplace. Consumption of cannabis must have an impairing effect during the period of prohibition. Demonstrating that the policy has sufficient benefits to justify the consequences. The improvements in workplace safety must outweigh the breech of employee privacy.To identify a problem in the workplace, employers will rely on the strongest available evidence linking cannabis to impairment during the entire period of prohibited consumption. Medical research is helpful in this regard. A substantial body of evidence points to significant motor and cognitive deficiencies immediately following consumption (first eight hours). Although some studies indicate a prolonged period of impairment, the evidence is less compelling as a user approaches 30 days of abstinence. At the same time, employers must contend with the difficulty of establishing the benefits of a workplace policy that relies on existing cannabis testing technology and which, at best, identifies an unspecified level of consumption at some time during the preceding 30 days.The employer thus faces a conundrum. On the one hand, the period of prohibited consumption can be shortened to align with current scientific evidence on the length of impairment. The policy will then be more difficult to enforce because existing testing technology cannot prove that the consumption took place during the shorter period. On the other hand, the period can be lengthened to 30 days to align with the limitations of existing testing technology. The policy will then be criticized because the longer period is not justified by current scientific evidence. Notwithstanding the significant challenges facing employers who pursue either option, it is the position of this paper that the policies are defendable under certain conditions.

COVID-Related Labor Arbitration Awards in the United States and Canada: A Survey and Comparative Analysis

The COVID-19 pandemic of 2020-21 has changed working conditions for millions of Americans and Canadians quickly and dramatically. Employers responded by requiring employees to quarantine, implementing workplace COVID policies, disciplining employees who violated those policies, changing work schedules, cancelling leaves or vacations, and furloughing or laying off employees. Unions have challenged many of these actions, raising a variety of novel issues that are now being resolved through labor arbitration. This article surveys those labor arbitration awards and then comparatively analyzes the awards from Canada and the United States.

Labour Arbitration and Commercial Arbitration: A Comparative Analysis

Labour Arbitration and Commercial Arbitration: A Comparative Analysis

互联网+模式下劳动争议仲裁法律问题研究——以浙江劳动人事争议调解仲裁网络平台为例

互联网+模式下劳动争议仲裁法律问题研究——以浙江劳动人事争议调解仲裁网络平台为例

Twenty Years of the Remedy of Reinstatement in the Law of Unfair Dismissal in South Africa: Some Preliminary, Jurisprudential and Sundry Issues

Reinstatement as a remedy for unfair dismissal was known to and applied by the Industrial Court of the bygone labour relations regime of 1956. It was, however, the Labour Relations Act 66 of 1995 (LRA) that entrenched this remedy in the modern South African labour relations system designed essentially to do justice between the employer and the employee and, fundamentally, to achieve industrial justice. After two decades of the operation of the adjudicative institutions established by the 1995 Act, it is time to evaluate the ways in which the labour arbitrators, the Labour Courts and the Labour Appeal Court, have interpreted and applied the provisions of the LRA relating to reinstatement. This evaluation exercise also extends to the immense contributions of the Supreme Court of Appeal and the Constitutional Court to the jurisprudence surrounding reinstatement as an unfair dismissal remedy in contemporary South African labour law. This article starts by defining reinstatement, distinguishing the remedy of re-employment and, further, the Constitutional Court’s judicial activist innovation to the labour relations lexicon—‘instatement’. Then it settles down to tackle issues that are preliminary and jurisprudential in nature—issues that were probably not contemplated by the enabling legislation, but which have arisen in adjudication. These include resignation and its effect on reinstatement, automatic reinstatement in the form of a declaration, and whether a court is able to order either ‘interim reinstatement’ or ‘semi-urgent interim relief’. The latter part of this article examines those non-statutory obstacles to accessing the remedy of reinstatement. These include the employer’s non-compliance with the order of reinstatement, as was the issue in the protracted litigation concerning Myers v National Commissioner of the SAPS ((2013) 34 ILJ 1729 (SCA); Myers v National Commissioner of the SAPS [2014] 5 BLLR 461 (LC); Myers v National Commissioner of the SAPS [2015] ZALCCT 68); whether the Prescription Act applies to claims for reinstatement; and such sundry issues as whether arrear wages could be recovered as a judgment debt. Finally, we consider whether an employee nearing the retirement age who is unfairly dismissed is entitled to reinstatement.

Systemic Reformulation of Labour Arrangements Between Demand and Pressure Concerning Income towards Welfare in Indonesia

AbstractsThe abstract of this article authors several points, among others:Firstly, Purpose of Article; to analyze labour regulation concerning income provision towards welfare for employers in Indonesia. Secondly, Scope of Work; that the legal implementation focuses on Indonesian labor law arrangements, and then concerning pressures relevant to income as international standard for laborers, and demand for wage acceptance as facility for labor welfare, and also labor law dispute settlement in Indonesian welfare system. Thirdly, Legal Methodology; refers to qualitative research with secondary materials from normative and empirical sources, also by conducting legal comparison from other countries outside of Indonesia. Fourthly, Result Summary; pertaining to systemic implementation of Indonesian labour regulation as stipulated in written constitution, that ”Each citizen shall reserve the rights for adequate employment and income based on sustainable standards (Article 27 paragraph (2), 1945 Indonesian Constitution). The income pressure for International labour standards via ILO has created a standard system to protect the rights of labourers binding themselves in an agreement, based on ILO Convention No.89 Year 1949 which instigated the birth of Law Number 18 Year 1956 concerning Ratification of ILO Convention No. 80 Year 1957. Demands for income to be accepted as labour welfare has yet to reiterate the importance of wage component in applicable labor law (Law Number 13 Year 2003 concerning Employment) since it allows Governor in each province to regulate the measurement of labour’s wage on annual basis. Similarly with labor trial pattern which only allows Industrial Relations Court and not solely referring to labour arbitration institution as expected from ILO and WTO as international organizations. Fifthly, Conclusion; that systemic reformulation of labour regulation in order to achive welfare in Indonesia still requires the participation or internal demand from labourers and pressure from international labour institution. Keywords: Income Regulation, Indonesian Labour Welfare.

Arbitraje laboral en la globalización: La nueva estructura de la dependencia

<p>La presente colaboración expone por qué el capital automotriz de Estados Unidos fluye constantemente hacia México y otras partes del Sur Global durante las últimas décadas, y cómo se relaciona con las ventajas que de ello extrae, entre otros mecanismos por el valor del arbitraje laboral en el contexto de las cadenas globales de valor. Estrategia seguida por más de tres décadas que la agenda del Consenso de Washington y que lejos de percibir indicios de “escalamiento” industrial más bien se ha producido un proceso de degradación y retroceso. Condición donde sobresale México pero también América Latina, lo que la ha mantenido sumergida en un escenario de dependencia tecnológico, fragmentación industrial y precarización del mercado nacional.</p><div><div><p> </p></div></div>

УМОВИ ТА ЧИННИКИ ДІЯЛЬНОСТІ НАЦІОНАЛЬНОЇ СЛУЖБИ ПОСЕРЕДНИЦТВА І ПРИМИРЕННЯ У ВИРІШЕННІ ТРУДОВИХ КОНФЛІКТІВ

The conditions and factors of the National Mediation and Reconciliation service in resolving labor conflicts are taken into consideration, the main tasks of the National Mediation and Reconciliation service are determined, the state of social and labor relations and the causes of collective labor disputes (conflicts) in enterprises and organizations of the Zaporizhzhya region are analyzed, the improvement of the situation in the field of social and Labor Relations is suggested, the necessary steps to improve the National Mediation and Reconciliation service are provided. Social and labor interests may clash between an employee and an employer at any stage of an employment relationship, which leads to labor disputes. Therefore, during the difficult economic situation in Ukraine, the problem of resolving labor disputes that arise between the owner of an enterprise, institution, organization or an authorized body or individual, on the one hand, and a specific employee or labor collective, on the other hand, is urgent. Labor dispute (conflict) is the disagreement that have arisen between the parties to social and labor relations regarding the establishment of new or changes in existing socioeconomic conditions of work and industrial life, the conclusion or modification of a collective agreement, agreement, performance of a collective agreement, agreement or their individual provisions, failure to comply with the requirements of labor legislation. Unresolved labor conflicts lead to such negative consequences as loss of working time, deterioration of the quality of management decisions, decrease in motivation, etc. The National Mediation and Reconciliation service, to our mind, should: firstly, provide explanations and practical advice on issues that arise when determining the subject matter and parties to a collective labor dispute, forming requirements, and determining the moment when the dispute arises; secondly, actively inform about the norms of national legislation, regulations of the NSPP that require study and compliance by participants in collective labor disputes; thirdly, hold meetings of the Conciliation Commission and labor arbitration, involving an independent intermediary; fourthly, conduct educational work to promote legal knowledge; fifthly, interact more actively with trade unions at the national, regional and individual enterprise levels. All these measures should significantly improve the legal literacy of the parties to the conflict and change the level of relations in the legal field for the better. The first direction of improving the activities of the NSPP involves regular publication in the printed publication "Bulletin of the NSPP" and in electronic sources, primarily on the official website of the NSPP, changes in regulatory documents with comments from specialists (NSPP employees and independent lawyers) (8). The second direction focuses on more clear and quick activities of the NSPP regional offices in responding to official requests. On the official website of the NSPP, publicly publish all responses to official appeals to the regional offices of the NSPP. The third direction involves the involvement of specialists certified by the NSPP in labor arbitration. At the same time, significantly increase the requirements for the accreditation level of specialists, review the procedures for their certification in the direction of increasing the requirements. The fourth direction is holding seminars, conferences and round tables with the participation of NSPP specialists. The results of these meetings should be published in the official print and electronic publications of the NSPP. The fifth direction of improving the activities of the NSPP involves regular meetings of managers of regional branches of the NSPP with representatives of trade unions and giving managers of the NSPP at the regional level greater powers in matters of interaction with representatives of trade unions.