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Collective bargaining is a common tool utilized by unions to negotiate wages, hours, rules, and working conditions with an employer for all the employees collectively whom they represent. Unfortunately, during this process, there may be issues which can arise that hinder the complete satisfaction of the employees and their collective representative body. As a result, unions assist employees in taking affirmative action via organized strikes.
The present dispute resolution system in the United Kingdom is tightly aligned with the establishment of the Industrial Tribunal System and the acknowledgement of unfair dismissal introduced by the Industrial Relations Act in 1971. This legislation came into existence via the findings of the ‘Donovan Commission', which was created as a means of reviewing the state of industrial and employment relations. In this instance the notion of the ‘Labour Tribunal' system was a type of people's court, which was an easily accessible, cheap and informal dispute resolution method.
In 1975, the UK saw the establishment of the Advisory Conciliation and Arbitration Service (ACAS). It was founded as an independent organization with a responsibility to conciliate individual rights cases. On the other hand, it does not have authority to pressure parties to mediate and agree on all scenarios. Furthermore, ACAS has the ability to perform an imperative role in assisting employers and unions to achieve settlements and have power to make sure these are lawful and practiced ethically by both parties.
Due to the easy access to tribunals and mediation services, the UK has experienced a notable rise in the number of applications and court costs within the last two decades. This can be one possible cause of the reduction in the strike rate in the nation. A trend observed during this period was the growth of domestic employment legislation for individual rights and the decreased rate of collective bargaining initiatives with a twenty percent decrease in trade union membership in the private sector. This in turn demonstrated that employees began to move away from union membership and collective bargaining and advanced towards individual bargaining attempts which ultimately contributed to the declining strike record of the UK.
In early November of 2004, the UK government put into practice new dispute resolution policies which further built upon the Dispute Resolution Regulations (DRR) put into practice in 2002. These regulations were tailored to sort the legible claims from the ineligible ones. The main effect of this new system was that employees who are inclined to undertake employment tribunal cases must firstly engage in disciplinary or grievance procedures prior to proceeding with a legal claim.
Japan significantly experienced economic growth after the Second World War. The nation became the yardstick for economic success and a structure of industrial relations famous for its infrequent employment disputes, job security, stability and seniority based pay.
What is not generally known is that, in the period immediately after the 1940's, many aggressive labour disputes took place in Japan. As a result, Japan's labour system placed a great significance to collective bargaining disputes, which were guaranteed by the Trade Union law and the Constitution. Under this law various Industrial Relations Commissions were launched as expert agencies to deal with collective labour disagreements. However, individual labour disputes were not viewed as significant enough to require a special system to reach a resolution.
Consequently, this left only the civil courts with long waiting periods for those who had the resources and finances to pursue such proceedings. The economic crisis at the commencement of the 1990s caused great deal of trouble for Japanese industries. The 1990s experienced a significantly large rise in individual grievances which were directly attributed to the downsizing and restructuring of organisations.
Other factors such as demands for flexible work practices, increased employment of female workers and new and improved strategic recruitment practices all played a part in sifting through employees and retaining only a handful of core workers. Additionally, as a result of large risky loans, the economy was frozen and significant unemployment hastily followed (Sugeno 2004:524). Currently, as a result of such events there has been a shift away from the traditional view of life time job security and a cultural shift in the values of the workforce where they now progress from one short-term contract to another (Yagi 2007).
During this time the current dispute resolution system was portrayed by a lack of specialist services to effectively and swiftly deal with individual labour disputes. There was also a lack of any method of nation wide advisory or counseling services. Additionally, missing, was any form of nationwide counseling or advisory service and a legal structure with the ability to keep up to par with the greater increase in employment disputes (Sugeno 2004).
Therefore, there was a strong need to reconsider Japan's conventional political, legal and economic systems in order to tackle the best tailored dispute resolution methods for the nation. Hence, the judicial reform process during the 1990s was not sufficient enough for the rapidly changing nation and therefore a change was imperative.
In 2001 this need for change in judicial reform was addressed and in 2006 Japan introduced the establishment of a new labour tribunal system. Legislative reforms carried out during the turn of the new century were a movement to bring about essential foundational changes in Japanese society. This comprised of a large scale restructuring of the justice system which was motivated by the formation of a judicial reform council, headed by Junichiro Koizumi, the Japanese Prime Minister at the time.
In the area of employee relations a subgroup of the council was established which undertook a comparative study of dispute resolution systems in overseas countries especially in Great Britain and Germany. This particular study shed a clearer light on employee dispute resolutions for the council and, in April 2006, it saw the foundation of a new employment tribunal system which was modeled on the UK system, in terms of structure. Whilst the new system has distinctive similarities to the system utilized in Great Britain, it is however, uniquely Japanese.
Similar to the UK system, the procedure is held in a district court. Similarly, the tribunal has authority over all conflicts which have risen from employee/employer relations.
The district court is then required to organize a labour tribunal consisting of two specialists in labour relations and one registered judge. This is where the Japanese system branches away from the UK system.
Hearings are held informally and are not open to the public. The law prescribes that the case has to be disposed of in three sessions and not last more than three to four months in total. In the first session the panel will clarify the issues and the evidence and assess the status of negotiations between the parties. In the second the panel will investigate the facts by interviewing key witnesses and examining documents and ascertain the parties? readiness to resolve the case through mediation. In the third and final stage the panel will make supplementary inquiries of both facts and desires for mediation and will make a mediation proposal. If both parties agree the case is disposed of and entered into the record of the court. If either party rejects the proposal the panel makes a judgment on the merits of the complaint. Either party then has two weeks, to accept or reject, the judgment and the case is automatically referred back to the civil court system. This system is uniquely Japanese in that it is a formal part of the court system but unlike the UK, cases are held in private and tribunal members are required to use and apply mediation skills to achieve resolution. In essence Japan has managed to build an innovative and mandatory ADR system into their employment tribunal hearing process. It would however be misleading to suggest that the law and mediation in Japan are strangers. According to Nishikawa mediation and other alternative dispute resolution methods work well in Japan not least due to the historical context of mediation dating back to the Edo Period (1600-1868). The traditional Japanese culture tends to view litigation as shameful as it destroys human relationships and brings personal problems to the attention of public authorities (Nishiwaka 2000). However as previously sated there has been a significant cultural shift in behaviour and attitudes in many sections of the Japanese Labour force following the economic crisis of the early 1990?s, with a sharp rise in individual disputes. What does the new Japanese Labour Tribunal system have to offer Great Britain? It is clear that the Japanese labour tribunal system has borrowed ideas from other countries notably the UK, but the system is uniquely Japanese. The three session hearing system described has at its core an integrated mediation procedure. One of the main criticisms of the current UK system is the unduly adversarial and legally complex processes which characterises UK Employment Tribunal hearings and the bureaucratic steps which precede them. UK Tribunal members have little room to manoeuvre in terms of the system of presentation, hearing and cross-examination which typifies the classic adversarial judical hearing process, governed by complex and lengthy rules of procedure.
Japan on the other hand has created a system with legislative underpinning which actively promotes and prescribes the use of ADR techniques and seeks to make the system as informal as possible and easily accessible to ordinary workers. The latter has some resonance with the original concept of a „people?s court? envisaged by Donovan in 1970?s and the former offers one option which could be adopted by Great Britain in response to the Gibbon?s report recommendation to simplify UK domestic employment law and the Employment Tribunal application process. Even if the UK remains wedded to the current Tribunal hearing format there is still scope to amend current legislation to give tribunal members more powers to use ADR methods similar to the Japanese system as part of a mandatory pre hearing assessment. At the very least an element of prescribed ADR either at an organisational/employer or judicial level would be a desirable alternative to the current UK mandatory grievance processes and adversarial tribunal hearings