Labour Dispute Resolution Research Articles

Arbitration and Wrongful Termination Claims: An Evaluation of Fairness and Efficiency in Labour Dispute Resolution

This paper shall review the position of arbitration in wrongful termination claims, especially regarding its effectiveness as a system of labour relation dispute resolution. Employment disputes specifically wrongful dismissal lawsuits stem from contractual breaches and violations of labour laws which may take time and cost a lot of money. Arbitration is seen as a suitable process for resolving disputes more effectively because it is faster, slightly cheaper, and does not attract public attention. As is to be expected there are some problems, some minor issues to be addressed. As for the problems the main issue regards the nature of arbitration and the fact that a major principle against it is the imbalance of power between employers and workers. Used in the study is both a synthesis of the current literature and qualitative interviews conducted with stakeholders, namely, arbitrators, legal commentators and employees. The implication herein is that while arbitration is effectiveness-oriented, it lacks procedural equity which is overshadowed by employer-biased scales. Based on the findings of this paper, this paper asserts that while using arbitration as a means of minimizing the time and money spent on wrongful termination claims, changes should be made in an effort to tackle the issues of partiality and bias.

Flexible sovereignty and contested legality: The overseas employment and legal struggles of Chinese workers

The surge in Chinese overseas investments has increased the transnational movement of Chinese workers. While much literature explores the interactions between Chinese managers and local workers in host countries, the dynamics between Chinese employers and Chinese workers abroad remain under-examined. This paper employs the conceptual frameworks of flexible sovereignty and contested legality to examine the distinctive norms and practices in labor recruitment, management, and dispute resolution emerged through overseas employment. Through a critical review of lawsuits between returned Chinese workers and their Chinese employers in Chinese courts – originating from the top five African countries receiving Chinese labor (Algeria, Angola, Nigeria, Ethiopia, and Equatorial Guinea) – the analysis reveals new spatialities and temporalities of sovereign control exerted by globalized Chinese companies over overseas workplaces and migrant workers. Overseas employment marks a complex process of coupling and decoupling among various forms of Chinese capital and labor. Three mechanisms of corporate sovereign control are identified: the delineation of workplaces and workers' bodies as spaces of exception, the flexibilization of working hours and job tenure, and the politics of delays in wage disbursement and dispute resolution. These mechanisms provoke contentious debates during court proceedings and result in uneven judicial outcomes for Chinese workers.

Legislative regulation of relations social dialogue

The article analyses the Laws of Ukraine in the field of social dialogue relations and explores ways to harmonize and/or improve their provisions, which would enhance the guarantees of interaction and mutual understanding between the parties involved in such dialogue. The main provisions regarding social dialogue, particularly those concerning the resolution of collective labour disputes and labour mediation, should be enshrined in the fundamental regulatory act in the field of labour relations - the Labour Code of Ukraine (or a codified act that may replace it). The article provides a characterization of the Laws of Ukraine that are interconnected with the Law of Ukraine «On Social Dialogue in Ukraine» on issues concerning the subjects of such legal relations, including those that define the participation of executive authorities and local self-government bodies in social dialogue relations, as well as relevant draft laws. It also presents the provisions of the Law of Ukraine «On Trade Unions, Their Rights and Guarantees of Activity» that require harmonization with the fundamental regulatory act on social dialogue, as they limit its scope concerning the participation of trade unions/ their associations in social dialogue relations. It is proposed to address the identified inconsistencies by aligning them with the fundamental legislation on social dialogue. Attention is drawn to the contentious status of local self-government bodies as subjects of social dialogue due to the combination of partnership and accountability. It is noted that the Law of Ukraine «On the Procedure for Resolving Collective Labour Disputes» regulates the stages of resolving collective labour disputes, one of which is conciliation procedures. This procedure corresponds to the forms of social dialogue defined in the Law of Ukraine «On Social Dialogue in Ukraine». Therefore, there is a need to substantively synchronize the legislative rules of conciliation procedures during the resolution of collective labour disputes with the norms of legislation on social dialogue. Arguments are presented that labour mediation is one form of social dialogue: 1) it involves the interaction of parties in an out-of-court, structured procedure aimed at preventing conflicts, conducted through negotiations; 2) the scope of the Law of Ukraine «On Mediation» includes relations related to conducting mediation to prevent potential conflicts (disputes) or to resolve any existing conflicts (disputes), including labour disputes. It is concluded that the Law of Ukraine «On Social Dialogue in Ukraine» should be harmonized with the Law of Ukraine «On Mediation» regarding the definition of forms of social dialogue.

Chinese Law on Resolving Labor Disputes Through Arbitration - Experience for Vietnam

Labor disputes are a socio-economic phenomenon and have become a complex issue for every economy, including Vietnam. Resolving labor disputes is an essential requirement in the labor process. An investigation of Chinese legal provisions on resolving labor disputes through arbitration (which is a legal system relatively similar to Vietnam in terms of origins, history, and culture) serves as a basis for improving Vietnamese law to protect the rights of workers in case of disputes, aiming to develop a good litigation system.

The Use of Legal Regulators of Civil Relations in the Resolution of Labor Disputes

The impossibility of using legal regulators of civil relations to regulate labor conflicts is analyzed. Arguments are made against theories asserting the expediency of directly or indirectly involving the norms of civil law in the field of labor relations. Within the framework of the concept of an integrative understanding of law, a conclusion is formulated indicating that civil law is different from labor law and cannot be applied to the regulation of labor relations directly, additionally (vicariously) or using an intersectoral analogy. In this regard, a proposal is being put forward to amend the Labor Code of the Russian Federation to restrict the use of regulators of legal relations similar to labor relations.

Resolving labour disputes within african international organizations

The article describes the internal mechanisms for resolving labour disputes between staff and administration within african international intergovernmental organisations, such as: African Union, Southern African Development Community, Economic Community of West African States. It is indicated that within the African Union there are informal and formal stages of dispute resolution – an appeal for review to the chairperson or competent authority of any other body and an appeal to the Administrative Tribunal. It is noted that the Administrative Tribunal is competent to consider applications for violations of the Staff Rules and Regulations; non-observance of contracts of employment and any other acts of employment; and, in certain cases, complaints about disciplinary sanctions. It is emphasised that the feature of protection of labour rights of the African Union staff is the provision enshrined in the Staff Rules and Regulations, according to which a staff member may, under certain circumstances, appeal to the African Court of Justice and Human Rights. It is stated that the Southern African Development Community Administrative Tribunal has jurisdiction to hear and resolve labour disputes between the Community Secretariat and any of its institutions. The Tribunal has two levels: First Instance and Appeal Board. It is noted that the system of internal labour dispute resolution of the Economic Community of West African States provides for the submission of an application for review, hierarchical recourse, and referral of the case to the Committee for Conciliation of Staff and Dispute Resolution. An Inter-Institutional Appeals Committee is established to deal with disciplinary appeals in relation to the application of the Staff Regulations, to which employees or their next of kin can apply. It is stated that the staff of any institution may apply to the Court of Justice of the Community after the staff member has exhausted all appeal procedures available to the official under the ECOWAS Staff Rules and Regulations.

Business environment optimization and labor income share of enterprises: Evidence from China

The external business environment in which enterprises operate is often subject to constant change. This paper explores how the business environment affects firms’ labor income share. Utilizing a micro-level dataset of China’s A-share listed companies from 2010 to 2020, we find that an optimal business environment enhances the labor income share. Mechanism tests reveal that a better business environment contributes to the increase in labor income share by fostering human capital upgrading and improving labor dispute resolution. Further analysis demonstrates that the positive effect is more pronounced for firms with lower labor intensity and non-state ownership, and also for firms with coastal locations and higher institutional investor shareholdings. These findings contribute to existing literature on factors influencing labor income share and also provide valuable policy implications for promoting the development of a better business environment.

Exploration of the Path of Labor Dispute Resolution

According to the traditional view, the main ways to handle labor disputes include: workers and employers resolve disputes through consultation, apply for mediation to the Labor Dispute Mediation Committee, submit to the Labor Dispute Arbitration Committee to apply for arbitration in accordance with the law, and file labor lawsuits with the court. Each of these ways has its own advantages and disadvantages, but they are also closely related and interconnected. In practice, the parties may not know which route is more conducive to resolving a dispute, nor are they clear about the specific functions of the various institutional themes and the differences in the advantages and disadvantages of resolving specific issues. And in the legislative system, the functions of the various institutional subjects also have cross and blank areas. This article will focus on the labor security supervision system and the labor dispute arbitration system, as well as the relationship and interface between the labor dispute arbitration system and the labor litigation system to do a brief analysis and put forward proposals.

Industrial Relations Dispute Resolution Reform in Court: A Review of Structural and Substantial Weaknesses in Law Number 2 of 2004

Conflict resolution in the context of industrial relations within the framework of labor law after the enactment of Law Number 2 of 2004 concerning Industrial Relations Dispute Settlement has been known through two mechanisms, namely voluntary settlement through bipartite mechanisms, conciliation, mediation, and arbitration, as well as compulsory settlement mechanisms through the Industrial Relations Court. However, the existence of the Industrial Relations Court poses several challenges, including workers' low understanding of the formal and material aspects of labor law, protracted processes, and substantial deficiencies in applicable law. Issues that arise around the resolution of industrial relations disputes include various factors, ranging from disputes regarding rights, interests, termination of employment, to disputes between unions in a company. In addition, the limited competence of the Industrial Relations Court also hinders effective resolution of labor disputes. This research adopts a normative juridical approach, which relies on positive legal analysis, especially Law Number 2 of 2004, as well as a review of judicial principles. The research findings identified a number of weaknesses, both in terms of structure and legal substance, that require updates in Industrial Relations Dispute Resolution in the Industrial Relations Court. One of the efforts to overcome these challenges is through reforms in the settlement process at the Industrial Relations Court, including the establishment of Industrial Relations Courts in each administrative region. However, Law Number 2 of 2004 is still considered unable to accommodate judicial principles

Current issues of labour dispute resolution through mediation

The article presents a comprehensive theoretical and legal study of mediation as an alternative procedure for resolving labor disputes. The author proves that the urgent issue of labor law science is to make specific proposals for the development of a systematic and consistent legislative framework for the use of labor mediation in resolving labor disputes. The author draws attention to the fact that current legislation makes situational references to this concept in certain articles without disclosing its content, which leads to law enforcement problems. Thus, the Law of Ukraine "On Mediation” supplemented the current Labor Code of Ukraine with a new Article 221-1 "Settlement of Labor Disputes through Mediation”. It is emphasized that the inclusion of the new provision in Chapter XV "Individual Labor Disputes” of the Labor Code of Ukraine indicates that the legislator has limited the mediation procedure to the settlement of individual labor disputes. The author emphasizes that failure to comply with the principle of legal certainty as a component of the rule of law principle enshrined in Article 8 of the Constitution of Ukraine impedes the proper protection of labor rights. The author argues that the national legislator incorrectly applies the concept of "labor dispute” by defining mediation as an alternative way of its resolution, since in fact a "labor dispute” arises at the time of applying to the bodies which consider them. Mediation does not resolve a labor dispute, but rather disagreements between the parties to labor relations at the stage of voluntary settlement of such disagreements, which is more appropriately called a "labor conflict”. The author denies the legislator's position that the mediation procedure is applicable only to individual labor disputes. Attention is drawn to the need to extend such an institution to collective labor disputes. The author argues that it is necessary to eliminate regulatory uncertainty regarding the terminology of the concept of "mediation" and to harmonize the provisions of the Law of Ukraine "On Mediation" and current labor legislation. The existence of stable and clear legislation on mediation is an embodiment of the rule of law and will contribute to the formation of public confidence in alternative out-of-court dispute resolution procedures.

THE SIGNIFICANCE OF THE LAW ON AMICABLE RESOLUTION OF LABOR DISPUTES AND THE REVIEW OF THE PRACTICE THUS FAR

During the work process, numerous instances of dispute regarding the positions of the employees, or the interpersonal relations between them or between them and their employer may arise. In addition to the traditional judicial method of labor dispute resolution, it is necessary to develop independent and impartial negotiation mechanisms between the parties in the area of individual and collective labor disputes. In Serbia, these are certainly the arbitration settlement of individual and collective labor disputes, and conciliation as a method of resolving collective labor disputes within and through the Republic Agency for Peaceful Settlement of Labor Disputes. There are many benefits to peaceful labor dispute settlement. The goal of supplementary procedures, i.e. procedures for peaceful labor dispute resolution, is to relieve the traditional judicial approach and direct it to the procedures where a judicial settlement of the dispute is truly necessary. Besides the concept, advantages and characteristics of the amicable labor dispute settlement procedures, certain types of these procedures such as mediation, conciliation and arbitration are also analyzed in the theoretical section of this paper, as well as the most important provisions of the Employment Act and the Law on Amicable Resolution of Labor Disputes. In the research section of this paper, the practice of the Republic Agency for Peaceful Settlement of Labor Disputes in the procedures of amicable labor dispute settlement, both for the territory of the Republic of Serbia and the territory of the City of Novi Sad, is analyzed. The primary research data source was the official data of the Republic Agency for Peaceful Settlement of Labor Disputes. The paper is methodologically based on a theoretical analysis of relevant contemporary theoretical views, a normative analysis of legislative sources, and a quantitative analysis of statistical indicators in the domain of the research subject.

Study on the Improvement of the Protection of Procedural Rights and Interests of Workers in Labour Dispute Arbitration

Arbitration of labour disputes, as an important way to protect the rights and interests of workers, aims to achieve better resolution of labour disputes and maintenance of labour relations through the front-loading of arbitration of labour disputes. With the continuous development of the society, labour dispute disputes are increasing, and the procedural rights and interests of workers in labour dispute arbitration are also more and more prominent. Based on this problem, China needs to carry out a series of reforms to the labour dispute arbitration system, to fill the gaps in the existing legal regulations, and to propose a series of targeted measures for the difficulties encountered by workers in labour dispute arbitration.

Libertarian principles of labor law in the member states of the Eurasian Economic Union

Objective: to define libertarian principles of labor law, to establish their place in the system of labor law, and to identify problems related to their implementation in the law enforcement practice of EAEU member states.Methods: dialectical approach to cognition of social phenomena, allowing to analyze them in historical development and functioning in the context of the totality of objective and subjective factors, which predetermined the following research methods: formal-legal, comparative-legal, and method of specific sociological research.Results: based of natural-law and libertarian concepts of legal understanding, the author formulates a definition of the “libertarian principles of labor law” concept as guiding ideas that embody freedom and underlie the labor law construction. The author determines the vector of its further development in the regulation of labor and associated relations. The main libertarian principles of labor law are proposed and analyzed: a) freedom of labor force movement; b) freedom of labor and the right to work; c) prohibition of forced labor; d) freedom of contract (specified as the principles of freedom of labor contract, freedom of collective bargaining, agreement); e) freedom of association; f) freedom of collective bargaining, freedom of choice in discussing issues within the sphere of labor, voluntariness of the parties’ taking obligations (as the main principles of social partnership). The study results are expressed in theoretical conclusions and assessment of labor legislation of the EAEU countries in terms of the libertarian principles of labor law completely reflected and guaranteed in them.Scientific novelty: the paper is the first to analyze libertarian principles of labor law as a separate group of principles of labor law in the EAEU member states and to reveal the legal nature and system of libertarian principles of labor law.Practical significance: the main provisions and conclusions of the article can be used in scientific, pedagogical and law enforcement activities when considering issues related to the consideration and resolution of labor disputes, in overcoming gaps and legal conflicts in labor legislation.

PENYELESAIAN SENGKETA HUBUNGAN INDUSTRIAL DALAM PEMUTUSAN HUBUNGAN KERJA (PHK) MENURUT SISTEM PERADILAN DI INDONESIA DENGAN MALAYSIA

Industrial relations conflicts are intricate issues that often arise in the lives of individuals, particularly for those in worker and employer roles. These conflicts can lead to employment termination or layoffs. Each country has its own methods for resolving labor disputes depending on the adopted legal system. Indonesia uses a Civil Law system, while Malaysia follows a Common Law system, resulting in different approaches to resolving these conflicts. This study aims to examine and describe the impact and resolution efforts related to labor disputes in both countries. The research methodology employed is normative legal research, with a descriptive analytical approach. Primary data, obtained from interviews, and secondary data, obtained from literature studies, were used for analysis. The study reveals notable disparities in labor dispute resolution between the two countries, particularly in the process and the role of judges during dispute resolution hearings.

Wreaking Havoc on the System: An Examination of Nigeria’s Constitutional Reform, the National Industrial Court and the Employer’s Right to Unconditionally Terminate Employment

Following the recreation of the National Industrial Court (NIC) in 2010 through constitutional amendment (and constitutional provisions that allow this court to apply international best practice, international labour standards, international conventions, treaties and protocols in the resolution of labour and industrial disputes) the NIC has handed down decisions that sharply contradict well-established principles of law, including Supreme Court decisions in respect of the employer’s right to terminate an employment without reason. This article reviews the surrounding principles and argues that these NIC decisions are wrong. The article also questions the power donated to the NIC by the Legislature to apply international best practice, international labour standards, and international labour conventions that are not part of the sources of law in Nigeria. The article finds that these constitutional provisions are problematic and their application by the NIC is not justified in law. The article concludes that despite the constitutional reforms, the well-established legal principle allowing an employer to terminate with or without reason remains the law in Nigeria.

Alternative forms of resolution of labor disputes

The purpose of the article is to identify effective alternative forms of labour dispute resolution based on the analysis of theoretical information and practical experience of their application in the modern world and the possibility of their use in Ukraine. The methodological basis of the work is the methods of analysis and synthesis, comparative law, logical and legal, abstract and logical methods, and the method of generalisation. The author identifies the features and advantages of using the main alternative forms of labour dispute resolution: conciliation, direct negotiations, mediation, arbitration, and mediation. The author examines the international experience of using alternative forms of labour dispute resolution (France, Bulgaria, Poland, and the United Kingdom). The reasons for the low prevalence of the use of alternative forms of labour dispute resolution in Ukraine are: lack of legislative regulation or gaps in it; low level of public awareness; lack of qualified specialists (arbitrators, mediators). The author identifies the appropriate measures for the effective implementation of alternative forms of labour dispute resolution in Ukraine, which will reduce the burden on the judicial system, and resolve labour conflicts more quickly, efficiently, and with lower material costs.

Some aspects of legal consequences of the Constitutional Court of Ukraine decision’s No. 1-р/2023 dated 07.02.2023 for the practice of resolving labor disputes

The article analyzes the legal consequences of the decision of the Constitutional Court No. 1-р/2023 of February 7, 2023 for the regulation of labor relations between the employer and teaching staff who are paid an old-age pension, and for the practice of resolving labor disputes regarding the recognition of their dismissal and reinstatement as illegal.
 Different types of situations are considered. For example, if such labor relations lasted/continues after February 7, 2023 and a labor dispute has not yet arisen, the most optimal “way out” from the point of view of the theory of labor law is to transfer teachers who are paid an old-age pension, by order of the employer, to open-ended labor contracts.
 Various variants of the influence of the decision of the KSU No. 1-r/2023 of February 7, 2023 on the practice of resolving labor disputes were also studied. Such labor disputes are being systematized. The following groups of authors are distinguished:
 
 labor disputes that arose after February 7, 2023 and, accordingly, were considered after this date;
 labor disputes that arose before February 7, 2023, but were considered/reviewed after February 7, 2023;
 labor disputes that arose and were considered by the court until February 7, 2023, if the decision was not reviewed or its review was completed before this date.
 
 The article concludes that the disputes of the first group are not characterized by problems. Court practice shows that such lawsuits to declare dismissal illegal and reinstatement are decided in favor of the plaintiff- teacher, who is paid an old-age pension.
 Labor disputes of the second group are resolved ambiguously in judicial practice. In one of the cases, the Supreme Court noted that the contested decision was based on the law that was in force at the time (as of the date of adoption of such a decision), and therefore no violations of substantive or procedural law were observed. On the other hand, in another case under a similar situation, the Supreme Court returned the case for a new consideration, pointing out the absence of other legal mechanisms for revising the court’s decision, which is based on an unconstitutional norm.
 Labor disputes of the third group are the most problematic and debatable, because formally, the final decision in the case was made before the adoption of the KSU decision No. 1-r/2023. Review of such cases under exceptional circumstances due to recognition as unconstitutional of the provisions of par. 3 ch. 2 Art. 22 of the Law is impossible. Violation of appellate or cassation review of such cases is complicated by missing the deadlines for such an appeal. “Summary” of the KSU decision under “newly discovered” circumstances is a debatable issue, although, in our opinion, in general, such an option is not excluded.

Predicting Critical Path of Labor Dispute Resolution in Legal Domain by Machine Learning Models Based on SHapley Additive exPlanations and Soft Voting Strategy

The labor dispute is one of the most common civil disputes. It can be resolved in the order of the following steps, which include mediation in arbitration, arbitration award, first-instance mediation, first-instance judgment, and second-instance judgment. The process can cease at any step when it is successfully resolved. In recent years, due to the increasing rights awareness of employees, the number of labor disputes has been rising annually. However, resolving labor disputes is time-consuming and labor-intensive, which brings a heavy burden to employees and dispute resolution institutions. Using artificial intelligence algorithms to identify and predict the critical path of labor dispute resolution is helpful for saving resources and improving the efficiency of, and reducing the cost of dispute resolution. In this study, a machine learning approach based on Shapley Additive exPlanations (SHAP) and a soft voting strategy is applied to predict the critical path of labor dispute resolution. We name our approach LDMLSV (stands for Labor Dispute Machine Learning based on SHapley additive exPlanations and Voting). This approach employs three machine learning models (Random Forest, Extra Trees, and CatBoost) and then integrates them using a soft voting strategy. Additionally, SHAP is used to explain the model and analyze the feature contribution. Based on the ranking of feature importance obtained from SHAP and an incremental feature selection method, we obtained an optimal feature subset comprising 33 features. The LDMLSV achieves an accuracy of 0.90 on this optimal feature subset. Therefore, the proposed approach is a highly effective method for predicting the critical path of labor dispute resolution.

ИССЛЕДОВАНИЕ ПРАВОВЫХ РИСКОВ И МЕР ПРОТИВОДЕЙСТВИЯ ТРУДОВЫМ СПОРАМ

In recent years, the legal system of our country has become more advanced, which has ensured reliable protection of labor rights and interests of employees at the legislative level. To this end, enterprises should increase their attention to labor disputes, carefully analyze the legal risks that may arise in connection with labor disputes, and take appropriate measures to prevent the occurrence of labor disputes. This article analyzes and examines the legal risks faced by the parties in resolving labor disputes, and puts forward proposals and opinions in order to more comprehensively protect the rights and interests of both enterprises and employees.

The many shades of intolerability in the workplace

The notion of intolerability traverses several workplace decisions. However, its meaning in the law is far from linear, and its significance varies, particularly when considering three primary dismissal-related scenarios: the meaning of dismissal; the general threshold for dismissal (also in the case of first offences); and the barriers to reinstatement in the case of unfair dismissal. This article restates established principles concerning labour dispute resolution, particularly those relating to onus and review standards and the role of breach of trust in employment relations. Drawing on recent jurisprudence, the article revisits the assumed role of intolerability and explores its nuanced impact on decision-making processes. In particular, the article demonstrates how the burden of proof and applicable review standards in the case of each of these dismissal-related scenarios can transform an ostensibly neutral term into a kaleidoscope of shades and meaning, with far-reaching implications in the workplace.