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Conciliation proceedings in the labour dispute committee help coming to an agreement

30.05.2019


Unlike an official meeting of the labour dispute committee, the main base of which are legislations, the aim of conciliation proceedings is to reach a compromise, which would be acceptable for both parties. Conciliation proceedings are less official and there are more options for finding a suitable solution.

Meeli Miidla-Vanatalu, Deputy Director General in the Field of Prevention and Legal Affairs of the Labour Inspectorate

Legislations applicable in the employment-related conciliation proceedings

  • § 13 (2) of the Labour Dispute Resolution Act + Division 3 of the Act
  • Conciliation Act
  • §§ 4, 121¹, 627¹ and chapter 62¹ of the Code of Civil Procedure

The nature and the principles of the conciliation proceedings and the resolution of a dispute are very different. Both have complicated nuances as well as possibilities that facilitate reaching a solution.

The Labour Dispute Resolution Act that took effect in 2018 would give different possibilities for resolving their conflict to an employer and an employee who are involved in labour dispute:

  • reaching a mutual agreement without involving external assistance;
  • starting a dispute in a labour dispute resolution body or in the labour dispute committee or in court so that an independent party would make the decision;
  • reaching a compromise in the course of the dispute, or
  • undergoing a conciliation proceeding.

The cases where an employee and an employer resolve their problems among themselves do not reach the Labour Inspectorate or the labour dispute committee.  But all other cases where the sides in conflict either do not communicate with each other at all or decide to communicate through the labour dispute committee, end up there. In 2018, the labour dispute committee handled 2,700 applications, of which 407 were successfully resolved with a compromise between the parties and in 5 cases the parties came to the labour dispute committee to be conciliated.

The first solution for the problems at work is always communication with each other and looking for appropriate compromises within one’s own organisation. This necessitates that at least one of the parties is ready to make the first move or make a proposal regarding how the problem could be solved in their opinion. Unfortunately, Estonians do not wish to simply come to an agreement, but would rather take a long and complicated path of demanding truth and justice, best shown in the Estonian classic “Tõde ja õigus” (Truth and Justice) by A. H. Tammsaare. In a worst case scenario, one of the parties does not even let the other party know that they are having a problem but express their discontent directly to the third parties, including the press.

Without a doubt, there are and will be situations where it is not possible to talk about a compromise or reconciliation. For example, when despite sending repeated reminders, an employee has not received their salary for several months, and the employer only gives verbal promises without even considering to fulfil these. If the very same employer would like to show a little good will, they could propose a payment schedule to the employee in order to pay their debt to the employee over a longer period.

If there is a will for conciliation but the parties are not able, do not want or even do not know how to communicate with each other, it is possible to get help from a professional conciliator and start the conciliation proceedings.

Who can be the conciliators?

According to the Conciliation Act, a conciliator of the labour dispute can be either a natural person whom the parties have entrusted the task of conciliating the parties, an attorney at law who has submitted a corresponding application to the management board of the Estonian Bar Association, or in the cases provided by law, a conciliation body of the government or a local authority. The labour dispute committee is one of the above mentioned conciliation bodies established by the state. Thus the parties themselves can decide who would qualify as the best intermediary.

If the employer is ready to bear the costs of a conciliator, the employee may become suspicious that the one, who pays the piper, calls the tune, or in other words, whether a professional conciliator is able to remain unbiased.

A conciliator cannot conduct the conciliation proceedings in the matter where they are themselves a party of the proceedings, or a person against whom a claim, resulting from the proceedings, can be filed. Moreover, a conciliator cannot conciliate in the matters of their direct blood relatives, spouse or domestic partner. Excluded is also a conciliation in the matter where the conciliator is or has been the representative, or the advisor of the party to the proceedings, where they have participated, or where they had the right to participate as the legal representative of the party to the proceedings. Thus, addressing the labour dispute committee as a state conciliation body can be one of the best and most appropriate solutions.

Seeking a quick conciliation or opting for an exhausting and time-consuming dispute?

If a conciliation proceeding is conducted by a chairperson of the labour dispute committee, the major advantage is the speed of the conciliation. A written conciliation agreement between the parties is made within ten working days from taking the application into the proceedings, and if the parties agree with a conciliation proposal, the conciliation body will confirm the agreement and notify the parties about it in writing. The conciliation proceedings end with that and the parties cannot dispute over that matter any longer. Thus, the disputing parties can get a solution appropriate for both parties, which will not be contestable later on.

What happens when one of the parties changes their mind later and fails to observe the agreement?

The conciliation agreement is not automatically subject to compulsory enforcement. It means that unlike a compromise approved by the labour dispute committee, it is not possible to address a bailiff directly, but one would have to turn to a court. The Code of Civil Procedure prescribes the exact rules according to which the court, in whose jurisdiction the conciliation proceedings have been conducted, declares the made agreement, reached as a result of conciliation proceedings, enforceable. The court arranges a court session for adjudication of the matter and hears the parties to the conciliation proceedings and the conciliator. The court, in turn, may approve the conciliation agreement, or disapprove it. If the court, for its part, also approves the validity of the conciliation agreement, this is already subject to compulsory enforcement by a bailiff.

Stages of a conciliation proceeding when addressing the labour dispute committee

  1. One of the parties to the dispute proposes to the other party to start a conciliation with the help of an intermediary.
  2. The other party agrees with the conciliation proceeding.
  3. The parties address the labour dispute committee with an application for starting the conciliation proceedings (both parties confirm their agreement).
  4. The chairperson of the labour dispute committee decides on starting the conciliation proceedings and starts negotiations with the parties in order to determine the time of meeting that would suit both parties.
  5. One or several conciliation meetings take place.
  6. The chairperson of the labour dispute committee hears the parties as a conciliator and if needed, guides them toward finding common ground and proposes a conciliation agreement.

IF A CONCILIATION IS REACHED

7.  The parties sign a conciliation agreement and the chairperson of the labour dispute committee approves it.

8.  The parties will start performing the conciliation agreement.

IF A CONCILIATION IS NOT REACHED

7.  There will be no conciliation agreement and the parties continue to solve the labour dispute in the labour dispute committee or in court within 30 days from the end of the conciliation proceedings.

Comments of Agne Kalson and Jane Türbsal-Trolla, the chairpersons of the labour dispute committee who have conducted the conciliation proceedings

What is more complicated – finding a resolution to a dispute or to a conciliation?

Agne Kalson: A conciliation of the parties is certainly easier to reach than the resolution of a dispute in an ordinary proceeding. While in an ordinary proceeding the parties take defensive positions and are opposed to each other, the conciliation proceedings seek a solution, which would satisfy both of the parties. The task of a conciliator is to support the communication between the parties and help finding a solution for the dispute. The practice shows that those who have decided in favour of a conciliation proceeding are primarily oriented towards finding a solution, not having a dispute. This significantly facilitates the work of a conciliator.

Jane Türbsal-Trolla: The complicacy of the conciliation proceedings is that the parties are as if expecting a decision from the conciliator how to solve the issues. But the role of a conciliator is to be impartial, create an environment for negotiations and thus help achieve a conciliation. Although a conciliator has the right for making a proposal for conciliation, the conciliator still cannot start resolving the matter instead of the parties. When resolving a dispute, the chairperson of the labour dispute committee can be specific in communication with the parties, explain the judicial practice and the principles of law and help reach a compromise, or decide upon a solution of the matter.

The role of a conciliator is more complicated in comparison with that of the chairperson of the labour dispute committee because the conciliator is just a leader of the process (meeting) who enables the parties to see the positions of each other during a conversation and discussion. A conciliator must remain as the background force on one hand, but on the other hand has to direct the parties towards a result with their presence without expressing any opinions.

What is most difficult in conciliation for the parties as well as for the conciliator?

Agne Kalson: Actually starting the conciliation proceeding may be deemed as the most difficult part. Since the conciliation proceedings are a quite new problem-solving method of the labour disputes, many people are not yet aware of it. The labour dispute committees and the Labour Inspectorate are making efforts in order to increase the awareness of people of the conciliation proceedings and taking more parties to conciliation in the labour dispute matters.

Jane Türbsal-Trolla: It is difficult for the parties to understand that their own will to reach a solution is a decisive factor in a conciliation. The parties themselves can find the best way for resolving the issues or either come to the conclusion that the differences of their opinions are too big for conciliation. Communication between the parties is necessary for coming to terms and to a conciliation. It is important that a conciliator does not take sides or tell how the matter should be resolved. A conciliator is present, encourages and upholds a constructive discussion and if needed, guides the sides back to the debate. The role of a conciliator is also difficult because of scarce information in general about the relationship and background of the parties. At the conciliation meeting it is necessary to adapt oneself quickly and read the wishes of the parties in their eyes (e.g. if someone wishes to take time off to think about the situation or make a proposal to the other party about the solution). A conciliator is not a decision-maker but a helper to finding a solution.

What are in your opinion the advantages of the conciliation process in comparison with the dispute and why would you suggest the parties to come to the conciliation proceedings in the labour dispute committee?

Agne Kalson: The parties have declared that they have chosen the conciliation proceedings just because they want to find a solution for the point of dispute in a less formal atmosphere than they would find in a regulated meeting. The conciliation proceedings enable this. While the meetings of the labour dispute committee are generally public, a meeting of the conciliation proceeding is closed, thus ensuring the privacy of the parties in resolving the point of dispute. Unlike an ordinary proceeding, only the parties (or their representatives) and a conciliator take part in the conciliation meeting. I find that the less formal atmosphere of the conciliation proceedings enables the parties to approach the work-related points of dispute with less stress and solve the relationship problems between the parties in the most sparing way.

Jane Türbsal-Trolla: In my opinion, the conciliation proceedings are a very good opportunity for finding a solution for a dispute or an issue for parties who are still in an employment relationship. I have had several cases in labour dispute matters where the employment relationship between the employer and the employee is ongoing and one can see that the parties wish to continue the positive employment relationship, but for some reason a dispute has arisen. It is a good opportunity to resolve the arisen issues via the conciliation proceedings so that the dispute would not overshadow the good employment relationship. Also, in the situation where the employer and the employee have family connections, the conciliation proceedings are an appropriate way for resolving the issues without a third party to make the decision on these matters.

If there is no stress that someone else would pass judgement or that somebody is right and somebody has done something wrong, the parties themselves may reach a reasonable solution at the conciliator’s. I definitely recommend using the conciliation proceedings in these cases when the employer needs to use the knowledge of a professional employee also after termination of the employment relationship.

Advantages of conciliation

  • The conciliation proceedings can be conducted only when both parties wish to do so.
  • The conciliation cannot be imposed on the other party.
  • The format of conciliation is casual and the atmosphere is a lot less charged for the disputing parties than an official resolution of the dispute.
  • The parties may reach a reasonable solution which suits both parties.
  • The conciliation results in legal certainty and a peace of mind.
  • The whole process is confidential: neither the claims of the parties nor the content of the conciliation agreement will be disclosed.

Shortcomings of the conciliation proceedings

  • A conciliation proceeding can also be started with only the aim to obtain information from the other party that can be later used in a dispute.
  • Failure to reach an agreement means additional lost time.
  • If the conciliation agreement is not voluntarily performed, the case has to be brought to court.
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