Employment Relations Issue in Work Place - Essay Example

Running head: LABOR RELATIONS OR EMPLOYMENT RELATION ISSUE IN WORK PLACE Labor Relations or Employment Relation Issue in Work Place Course: University: Tutor: Date: 342383. Labor relations or employment relation issue in work place Introduction The re are various ways of coming up with a solution emanating from employment environment. The most commonly adopted by labor organizations or working bodies are either resolution by making a binding arbitration between the worker and the employer or engagement in strikes and lockouts by the workers or employers. Forcing workers to work by intimidation or any other means will result to them using other tactics to have their demand met. To avoid the inconveniences of strikes and lock outs the employer should come to a binding arbitration with the employees (Dunshee, 2004) Binding arbitration . According to Mithra (2009), binding arbitration is a case whereby a party is asked to make an agreement which provides that if they have a dispute with the contracting partner then they opt to be heard by private arbitrator rather than normal litigation through courts. The contracting parties are bound totally by the decision of the arbitrator hence their case can not be appealed in a court of law. The arbitrator is usually a third party and has the authority to make final decision in accordance to prior arrangements of contracting parties. It can not be stated with certainty when formal processes of arbitration were established in the world but it is known that arbitration as method of resolution of disputes is far much older than courts litigation. Arbitration use can be traced far back from ancient civilizations e.g. Greece, Roman and Egypt. The arbitration act of 1697 was the first English law on arbitration, though arbitration was in common use even before the law came to be. Arbitrations before this law was usually never strong this was mainly due to the parties to arbitration terminating the arbitrators authority if the deemed things were not going well with their expectations on the arbitration . Arbitration process Arbitration is a resolution of a dispute by a non partisan third party who gives the final word on the settlement which is final to the parties in arbitration. Arbitration is distinct to mediation, determination by experts, alternative dispute resolution and judicial proceedings. In practice some cases of disputes are not able to be subjected to arbitration this is usually depending on the content of the case that involve arbitration. Examples of procedures that can not be subjected to arbitration include; Where the resolution of the dispute does not require the parties to the dispute to enter any form of agreement e.g., court processes that bind all members of the public or institutions or a dispute that involves public interest, this can be highlighted by the example that antitrust matters in U.S were not arbitral until recently (1980s). Another example of cases not arbitral is ones relating to family, status and crime. This is because the authority of the parties to enter into arbitration on these matters is limited. Private rights disputes are however arbitral. The other case where arbitration cannot apply is where relevant authority would want to protect weaker member who can be easily be disadvantaged by the agreement in arbitration e.g. consumers In arbitration, parties enter into agreement by consensus not by force, however in real life arbitration agreements are usually put in circumstances where like the workers or consumers have very limited or no power to speak for themselves. In some instances clauses on arbitration are placed in areas which render their useful meaning to be unrealistic e.g. within sealed user's manual in products. These agreements are of two kinds; Agreement with a provision for solution of any arising dispute by arbitration they are in most cases normal contracts and usually contain arbitration clauses; Agreements made due to dispute that has arisen consenting that it be resolved by arbitration. The first is the most common kind of arbitration. The law is much cautious to enhance the legitimacy of arbitration clauses since the process looks sometimes informal. Clauses which provide for resolution of disputes not necessarily in line with a given court system have been provided by courts. They are; Arbitration must not in all circumstances be judged strictly but should put into consideration rules of practical business; In any arbitration rules governing laws of contract that are accepted internationally should be considered. Arbitration laws Arbitration is defined by various laws which are as given 1. Law on arbitration agreement. This is an agreement to enter into arbitration. This law is apart of the main contract although it lives a life of its own and is independent of the main agreement. If one party attempts to get out of arbitration before its time this is the first law he/she faces apart from the law governing the main contract. 2. Law on arbitral tribunal and its proceedings "Seat" of arbitration is the term used by various legal systems to refer to geographical and legal limits where arbitration is allowed. The seat usually governs the procedures of the arbitration. However the seat doesn't have to be necessarily where the arbitration is taking place. 3. Law on procedure. This includes status of the arbitrators, authority of the tribunal and arbitration awards. Procedural law is determined by the parties through its choice or by choosing the arbitral tribunal. The other issues of procedure are given by the arbitral tribunal in accordance with relevant national law, parties and the arbitrators. 4. Law on substance. This is involved where disputing parties opt for the law that easily applies to the matter of their dispute. In such a case the law chosen is usually substantive and its effects are direct on he results of the dispute. 5. Law on recognition and enforcement. The law of recognition is usually the law of the state or the country where one is seeking its recognition or its enforcement. E.g. various states in US are governed by the 1958 New York Convection which streamlines foreign arbitral awards. Strengths and limitations of binding arbitration as a method of dispute resolution. Strengths. Arbitrators with required level of knowledge or specialists can be hired if the dispute in question requires so. In a court system parties in dispute cannot hire an "arbitrator" a judge. As a method of dispute resolution arbitration is usually quicker and easier to follow than court litigation. In trade arbitration is more practical, versatile and less costly. Arbitration is widely accepted and its final settlements are rarely disputed in most legal systems. It is easy to harmonize arbitration procedures for example in New York Convention of 1958 hence making arbitration easily applicable in other countries or states than court litigations. Confidentiality of arbitration can be easily upheld since its procedures and awards are in most cases private. Limitations. In some cases parties in arbitration are needed to pay the arbitrators some amount which rises the cost in dispute resolution which could otherwise be avoided for instance in small scale conflicts. As stated earlier most legal systems does not provide venues for appeal of an arbitration settlement this means no room to rectify an error. If an arbitrating panel in a given company is dependent on that company its operations can be easily corrupted to rule against the worker. Arbitration awards are not easily enforced solely without seeking court help Strikes& lockouts I n labor strike can be termed as the cessation of work or part of it as an agreement by the working people in the course of making a demand in the employment environment. Lockouts on the other hand are stoppages of work by the employer as part of the demand on the employee. Under the law strikes and lockouts can be considered lawful if 1 They bargain for any party's agreement. 2. If the agreement has expired or the parties started bargaining for more than 40 days Prior to the strike. 3 The strikes and lockouts are also lawful where the parties involved feel it is sincerely for the sake of their health Remedy to unlawful strike and lockouts. In cases where strikes or lock outs are not legitimate the parties affected can indulge a court of law to stop the strike. Limitations of strikes. According to Hurth (2004), strikes and lockouts could have an advantage in that the grievances of striking parties could be considered on its occurrence. But this is overrun by the disadvantages in that, it gives extra and tedious obligations to relevant authority to resolve the dispute that makes the strike to arise. The involved company in strikes incurs loss in production as well as loss of clients due to delayed delivery either of a product or a service (Setiawan, 2009). Summary on preference of binding arbitration to strikes and lockouts as a way of dispute resolution in working environment. The best way of solving disputes is by a binding arbitration and it is the method that provides answer to strike and lockouts which are in most a cases inconveniencing to both employer and employee. This is because binding arbitration where recognized by the relevant legal system is more defined and controllable than strikes. Strikes and lockouts lead to loss in production on the part of the employer whereas it could make a worker lose a job which could be as important to him/her. The company or corporation affected by strike and lockouts also lose business responsibility due to delays or inconveniences to customers caused by strikes and lockouts. Strikes and lockouts can put important or very special interests at stake. Good example is where teachers strike putting the education of children at stake, it is clear that at this instance the victim of this method of conflict resolution is innocent (Dunshee, 2004). Resolution of disputes by strikes and lockouts could also see workers like police and fire fighters go on strike which would be a lot detrimental to the welfare of the society (Dunshee, 2004). In cases where medical practitioners strike and leave the health of a patient at stake then it is all unethical hence will be deemed unprofessional in their work. Conclusion In avoidance of the inconveniences brought about by strikes and lockouts, employers are likely to adopt binding arbitration as a method of dispute resolution in future. On the other hand most legal systems are likely to adopt arbitration method since it can be easily controlled and does not put the welfare of the society into jeopardy. Moreover there is a tendency of workers who are keen to job security to have well defined terms of employment which can easily be put down by method of binding arbitration. (Nussbaum & Gelbart, 2009). Considering above, the method of binding arbitration as a way of dispute resolution in labor is likely to predominate over strikes and lockouts further. References Mithra, S. 2009. What is binding arbitration Accessed on December 1, 2009 from http://www.wisegeek.com/what-is-binding-arbitration.htm Setiawan, H. April 2009.Advantages and disadvantages of strikes. Accessed on December 2, 2009 from http://dodiksetiawan.wordpress.com/2009/04/16/advantages-and-disadvantages-of-strikes/ Dunshee, H. (2004). July 2004 Teachers strike; Binding arbitration is the answer. Accessed on December 2, 2009.from http://www.hansdunshee.com/1157041359.html Nussbaum, P & Gelbart, M. (2009). Binding arbitration would end the Septa strike. Accessed on December, 2 2009 from http://www.philly.com/philly/news/20091106_TWU__Binding_arbitration_would_end_SEPTA_strike.html Hurth, E. (2004). Advantages and disadvantages of different forms of industrial action. Accessed on December, 2, 2009 from http://www.grin.com/e-book/61034/advantages-and-disadvantages-of-different-forms-of-industrial-action Read More