Employment Relations in the Organization: Conciliation and Arbitration Service - Assignment Example

Business Law Question (i) ACAS is an abbreviation for the Advisory, Conciliation and Arbitration Service. It is an independent organisation that is funded by the public with a mandate to uphold enhanced employment relations. To do this, ACAS engages with employers and employees to improve their relationships and solve any problems that may arise. In solving disputes, ACAS employs various means such as mediation or arbitration mostly between trade unions and employers. The independence and impartiality of the organisation aid it to be a neutral party in dispute resolution hence helping the disputing parties arrive at an appropriate determination in a dispute. Services offered by ACAS. The main service offered by Acas is dispute resolution. Therefore, the organisation uses three main ways of resolving a disagreement between parties. The first one is conciliation. Conciliation occurs when the organisation tries to find out the issues that bring disputes between the parties. The reason for conciliation is to aid the parties to come to a mutual agreement in solving their differences. Therefore, conciliation seeks to give the parties in a dispute the room to evaluate their differing positions before coming to a conclusion. In conciliation, ACAS l meets both parties in private before bringing them together with an aim to rebuild the bruised relationship. In addition, any decision arrived at is legally binding upon the parties. In addition, ACAS uses arbitration. In arbitration, the parties in a dispute usually agree to involve a third party in case of a dispute arising to decide on the dispute and make any awards where applicable. ACAS is more informal in this, and it avoids formal processes that go on in courts such as formal pleadings and documentaries. Parties coming for arbitration in ACAS must first agree to take part (Gennard and Judge 2005). The agreement must be in writing outlining the issues to be negotiated. In addition, the terms of reference are determined by the disputing parties, and where they are not able, they are helped by an ACAS conciliator. The organisations are committed to good conduct and fairness with its decisions being final, and the awards given difficult to be challenged. Mediation is the third method used by ACAS, and it bears some similarities with arbitration. The major difference is that no awards can be got from mediation. The mediators usually take an active role in dispute resolution proceedings to help the disputing parties find solutions. After that, the mediators make recommendations to the parties, and it’s upon the parties to implement the recommendations (Gennard and Judge 2005). ADR is any process apart from litigation before a judge or jury where a neutral third party aids or decides on the determination of the disputed issues. It is any means of settling down disputes outside the court of law. Alternative Dispute Resolution is important since it offers a cheap way of settling disputes at a time when the costs of litigation are always on the rise. In addition, it is a fast way to parties who chose ADR as a means of resolving disputes since it avoids the escalating court queues or rather the time one has to what before their matter comes up for hearing in a formal court. The most common types of Alternative Dispute Resolution are mediation and arbitration. The purpose of using ADR programs by ACAS is to give parties an alternative from the slow and tedious court processes when disputes arise and creating a need to settle the disputes. Application of alternative dispute resolution mechanism ensures that a dispute is essentially settled or decided much faster, for instance in a couple of months or even week, which is in contrast to initiating a formal lawsuit which can generally take a year or more to conclude (Gramberg 2005). In addition, Alternative Dispute Resolution is a sure way of reducing and easing the backlog of cases in the courts thereby improving the effectiveness of courts. It has been noted that the use of ADR in resolving disputes complements the court system’s mechanisms of dispute resolution. Where Alternative Dispute Resolution mechanisms are adopted, the quality of services delivered by the courts improves since the court has ample time to concentrate on the hard and complex cases that are brought before it by ADR focusing on the fewer complex cases. The purpose of Alternative Dispute Resolution being less informal is to make it less expensive and less time consuming than a formal trial, and at the same time giving the disputing parties a chance to determine on how and when to settle their dispute (Gramberg 2005). Another purpose of using alternative dispute resolution is to give the disputing parties control over the proceedings. In Alternative Dispute Resolution proceedings, disputing parties essentially perform a significant role in influencing the process of dispute resolution and its outcome. For instance, in the majority of the ADR proceedings, disputing parties have a greater chance of bringing out their side of the disputed facts than they can be afforded at trial. Taking mediation, in particular, the process affords the parties an opportunity to come up with carefully thought out resolutions a privilege that cannot be found in a trial. Even in arbitration proceedings, the parties are allowed to choose and come up with an expert on that specific ground of dispute for the chosen expert to determine the dispute. In addition, alternative dispute resolution mechanisms serve to preserve relationships of the disputing parties. This is because alternative dispute resolution is less hostile way of settling disputes since it is not very adversarial as the case in a formal court. This purpose is closely interconnected with the purpose of ensuring satisfaction of the outcome between the disputing parties. In alternative dispute resolution, parties can essentially come up with a solution that appears a win for all of them to accomplish what they intended to achieve from dispute resolution. This cannot be found in a formal litigation trial where there is bound to be a winner and a loser both of whom may not be satisfied with the outcome since even the winner may fail to be completely contented with the outcome. Looking at the aspect of attorneys in alternative dispute resolution proceedings, they are seen as problem solvers rather than opponents and combatants which brings joy and happiness to their clients leading to more business for the clients as a result of the satisfied clients referring their friends to such attorney (Gramberg 2005). The success of alternative dispute resolution mechanisms is dependent on various factors that hinge around the proceedings of the alternative dispute resolution. Chief among these factors is the disputing parties. For an alternative dispute resolution proceeding to be successful, the cooperation and meeting of the minds of the disputing parties is important. This is because in most cases the choice of adopting alternative dispute resolution that is essentially an out of court agreement with settling dispute is voluntary between the parties. As such, both of them must have the intention of seeking to adopt alternative dispute resolution in settling their dispute. Majority of the mechanisms of alternative dispute resolution such as mediation and arbitration require a lot of participation and contribution of the disputing parties themselves so as to come with an appropriate solution of the dispute. Therefore, where one party is not willing to adopt alternative dispute resolution in settling the dispute their contribution to settling the dispute will not be easy to get and this makes the ADR proceeding to fail to achieve the intended success (Robberts and Palmer 2005) The agreement of the parties to use alternative dispute resolution in settling their dispute should be expressly communicated. In addition, the success of using alternative dispute resolution is determined by the complexity of the issues in dispute. Some of the disputed facts usually involve complex situations and scenarios that may be beyond the scope of alternative dispute resolution mechanism making it an unsuccessful avenue to handle such complex issues. For instance, in ACAS where a dispute is brought that comprises of complex legal issues even though it may be accepted for determination, the disputing parties are usually advised to seek other avenues of settling their dispute where appropriate for instance the court of law or an employment tribunal (Robberts and Palmer 2005) Question (ii). European Union law is made up of a group of treaties and legislation that affect either directly or indirectly on the laws of the member states of the European Union. The sources of European law are categorized as either primary law, secondary law or supplementary law. The primary law sources include the various Treaties forming the European Union. On the other hand, Secondary law sources comprise the various regulations and directives that derive from the Treaties. Treaties may institute secondary law so as to achieve the various objectives sought by the treaties. The legislature of the European Union normally comes up with these secondary law sources. Supplementary law sources of the European law comprise the general principles of the European law as well as precedents by the Court of Justice (Barnard and peers 2014). Precedents are the authoritative judgments rendered by the Court of Justice that are binding on all courts in the United Kingdom including the House of Lords in some cases but not all. This is because the Court of Justice is the highest court in the hierarchy with the ability to infer European Union law. The European law extends rights and duties in the ruling class of every member state including the individuals and business enterprises. One of the obligations of the authorities in the member states is to execute the legislations of the European Union in national laws and to implement the legislations correctly. The authorities have an obligation of securing citizens’ rights under the European Union laws. In essence thus, the European Union Law is used by the courts in instances where the laws of the member countries afford lesser rights to an individual than the European Union Law. The courts can use European Law to enforce the rights of an individual in such a case (Barnard and peers 2014). Among the principles of European law is the supremacy of the European Union law. This is also referred to as the precedence principle to the effect that any law of the member states that contradicts or conflicts the European Union law is null and void and should consequently be disregarded in favour of the European law. The precedent principle creates a binding force to all European acts and hence the member states of the European Union are estopped from implementing any domestic law that contravenes the European law. Therefore, the precedent principle is one of the central pillars of the European law that assures the supremacy of the European Law over domestic laws. It is essential to note that the precedence principle is not expressly etched in the Treaties but has been safeguarded by the European Union Court of Justice (Barnard and peers 2014). Scope of the precedence principle The precedence principle is unqualified over domestic laws and extends with a binding force to every European acts irrespective of being either primary legislation or secondary. This implies that all domestic acts and laws are subject to the precedence principles notwithstanding their nature or whether given by the legislative or executive arm of the European Union member state. In addition, the judiciary of the member states is bound by this principle with the domestic courts being bound by precedent to respect and to a particular extent adhere to European case law in their domestic case laws. The scope of the European law can be demonstrated how far it stretches by the declaration of the Court of Justice that the national constitutions of the member states of the European Union are subject to the principle of precedence. This implies that judges cannot apply the provisions of the constitution that contravene the European law to determine a case notwithstanding the Constitution is the supreme law of the country that it applies (Anthony 2002). To ensure compliance with the principle of precedence the Court of Justice has been mandated to ensure compliance with the principle of member states. One way adapted by the court to do this is through enacting penalties on its rulings in member countries that impinge on the principle. One way of doing this is by instituting proceedings against the infringing member states for failure to meet a duty. In addition, judges in domestic courts are required to ensure that the principle is implemented. in instances where there are doubts about the application of the principle, the judges are required to make a preliminary ruling procedure. In the Factortame case of June 1990, the court of justice held that in a preliminary ruling procedure to ascertain the soundness of a domestic law, national courts should as a matter of urgency suspend the application of such law until the Court of Justice renders its recommendations to aid the national court come up with its ruling on the element of the issue (Anthony 2002). Application of the precedence principle The Court of Justice upheld the principle of precedence in the case of Costa vs. Enel a 1964 case. The court confirmed that the laws of the European Union are supposed to be incorporated into the member states’ legal systems, and consequently the member states have an obligation to comply with these laws. This establishes that European law has supremacy over domestic laws. In instances where a domestic law contradicts the provisions of a European Law, the authorities of the member states are obligated to uphold the provisions of the European law and disregard the domestic law. However, domestic law is not repealed or rescinded by such an action but it is just the binding force of the domestic law that is suspended. The Court of Justice went further to declare that the supremacy of the European law extends to all national acts with a retrospective effect. The essence of the European law having precedent over national law is to ensure the protection of all citizens in the European Union territories. References Gennard, J., & Judge, G. (2005). Employee relations. London, Chartered institute of personnel and development. Van Gramberg, B. (2005). Managing workplace conflict: alternative dispute resolution in Australia. Annandale, N.S. W., Federation Press. Roberts, S., & Palmer, M. (2005). Dispute processes: ADR and the Primary Forms of decision-making. Cambridge [u.a.], Cambridge Univ. Pr. Barnard, C., & Peers, S. (2014). European Union law. Anthony, G. (2002). UK public law and European law: [the dynamics of legal integration]. Oxford [u.a.], Hart. Read More