Understanding labour conciliation, mediation, and arbitration

Dear Editor,
Conciliation/mediation in an industrial dispute, whether it is a dispute of interest or a dispute of rights, is an essential process in the field of industrial relations. The conciliation process seeks to encourage disputing parties to discuss their differences with a view to assisting them to develop their own proposed solution, as an extension of negotiations. The outcome is essentially the agreement of the two parties, with the assistance of the conciliator/mediator.
The Ministry of Labour in Guyana is the principal third party dealing with individual and collective labour disputes, and provides a free voluntary conciliation service under the authority of the Labour Act, enacted to regulate the relationship between employers and employees, and the settlement of disputes between them. Conciliation/mediation has been one of the principal means used to resolve industrial disputes.
The Ministry of Labour, in its conciliation service, by virtue of the very nature of the service provided, embodies the concept of non-political conciliation/ mediation, and must maintain a role of non-partisan conciliation/ mediation if it is to enjoy the confidence of the social partners. It must function with credibility, impartiality, high professional standards, and integrity to command the respect of social partners and state agencies.
Technically, conciliation is limited to encouraging employers and unions to develop their own proposed solutions through rational discussion of their differences. Mediation, on the other hand, is a stronger form of third-party intervention, in which the mediator can offer the parties recommendations for settlement of any industrial dispute. In practice, however, the technical distinction is blurred, or disappears, as both words are used interchangeably to express the same process of third-party intervention, the outcome of which is an agreement by the involved parties.
The use of the conciliation service of the Ministry of Labour is required by a collective labour agreement, or at the intervention of the Chief Labour Officer or, exceptionally, by the Minister, given the fact that the Ministry is the sole agency which provides this service freely to employers and unions. This is usually the required procedure before resort to adjudication through arbitration or some other means for final settlement. In this context, conciliation/mediation can be described as an extension of collective bargaining with third-party assistance, or simply as “assisted collective bargaining”.
The conciliation/mediation process is used widely in Caricom countries on account of its voluntary nature, its attempts at compromise, the win-win outcomes, and because the process addresses both conflict and dispute. It is essentially a consensus-based process which includes negotiations, conciliation/ mediation, and joint problem-
solving, a process in which the parties agree on the outcome. They have control of the outcome with the assistance of the conciliator/ mediator. It is their judgement, and not the judgement of an arbitrator or judge.

Labour conciliator/mediator
The conciliator/mediator is not an arbitrator, and cannot substitute his/her judgement for that of the parties. The conciliator/mediator cannot impose a settlement; it is for the parties to agree to a solution under the guidance and skill of the conciliator/mediator, who must maintain a strictly impartial and neutral attitude towards the two parties. The conciliation/mediation function requires full independence of judgement, and a conciliator/ mediator should not be swayed or influenced by external pressures.
The conciliator/mediator must endeavour to bring about an agreement. However, if it is not possible to obtain agreement, the conciliator/mediator should persuade the parties to agree to submit the dispute to binding arbitration, or to another procedure for dispute settlement, in keeping with their collective agreement, or law, or practice in the process of conflict management.

Labour arbitration
Labour arbitration is another type of third-party intervention. It is the stage which, in the context of the usual grievance or representation procedure, is expected to follow closely upon an impasse or failure at conciliation /mediation to resolve a dispute. However, arbitration need not await the failure of the conciliation/mediation process in situations where a dispute can have a severe social and economic impact, or where a prolonged dispute in a major industry or service could severely affect community life, or where the on-going operation of an industry is necessary to sustain the national economy, or when the continuance of the dispute is likely to be gravely injurious to health and the national interest. In such a case, the Minister of Labour is empowered to refer the dispute to compulsory arbitration as a means of resolving any dispute. The Minister of Labour is so empowered under Section 4 of the Labour Act, and under Section 3 of the Essential Services Act.
Labour arbitration, like labour conciliation/mediation, involves third-party intervention in the collective bargaining process. In conciliation/mediation, however, the conciliator/mediator is expected to use the powers of persuasion to enable the parties to narrow the areas of difference between them with a view to reaching an acceptable, mutual solution.
However, in arbitration and industrial tribunal proceedings, the arbitration tribunal is required to decide the issue on the merits of a case presented by the parties and make an award. Such an award is final and binding on the parties involved in the dispute, in keeping with the terms of reference for the tribunal, and the parties are expected to give effect to the award in the tradition of industrial relations practice, and in keeping with the law.
In collective labour agreements, there is provision for voluntary arbitration, either by mutual consent or at the request of one party, while legislation provides for voluntary arbitration or for the establishment and operation of industrial tribunals, or compulsory arbitration in the essential services, or in situations where the national interest is at stake. This is the usual representation procedure outlined in collective labour agreements both in the private and public sectors.
While the terms and conditions for Civil Servants can be processed under the Recognition and Procedure Agreement between the Guyana Public Service Union (GPSU) and the Public Service Ministry (PSM), matters falling under the purview of the Public Service Commission are subject to adjudication by the Public Service Appellate Tribunal. Such matters relate to appointments, transfers, promotions and discipline, including dismissal of officers appointed by the Public Service Commission.

Sincerely,
Samuel J Goolsarran