Access To Labour Justice - Comparative Law and Practice

X Access to labour justice:
Comparative law and practice

on labour disputes prevention
and resolution
X Access to labour justice:
Comparative law and practice
on labour disputes prevention
and resolution
Labour Law and Reform Unit

Governance and Tripartism Department
© International Labour Organization 2023
First published 2023
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ISBN 978-92-2-039573-8 (print)

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Also available in French: Accès à la justice du travail: Droit et pratiques comparées en matière de prévention et de
résolution des conflits du travail, ISBN 9789220395776 (imprimé), ISBN 9789220395783 (PDF web); and Spanish:
Acceso a la justicia laboral: Derecho y prácticas comparadas sobre prevención y resolución de conflictos laborales,
ISBN 9789220395769 (impreso), ISBN 9789220395752 (web pdf).
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Printed in Switzerland
III
Foreword
The most recent Report of the Director-General of the International Labour
Organization (ILO) to the International Labour Conference focuses on the need for
greater social justice globally and the means to achieve it. The Report emphasizes
that, “…while it may seem to go without saying, it [social justice] is about the rule
of law and access to justice within a society.” Access to labour justice is therefore
clearly acknowledged as a key dimension of access to social justice. Strengthening
and supporting labour dispute prevention and resolution institutions is hence an
important priority for the ILO.
Irrespective of the nature and underlying reasons for individual or collective
labour disputes, effective labour dispute prevention and resolution institutions to
address them are a critical aspect of labour market governance. Countries across
the world have organized labour dispute prevention and resolution systems, within
and outside the scope of their ministries of labour, to maintain harmonious and
productive work environments while safeguarding the rights and interests of
employers and workers. While United Nations agencies provide extensive guidance
on access to justice under Sustainable Development Goal 16 emphasizing that
conflict, insecurity, weak institutions and limited access to justice remain a great
threat to sustainable development, the ILO’s approach is to focus on responding to
access to justice related challenges in the world of work.
Regulation of labour and employment relations, and industrial relations systems,
often develop in close relation to one another, and thus these legal and institutional
linkages impact labour dispute prevention and resolution mechanisms. The present
report acknowledges these mutual influences and provides a comparative analysis
of the varied regulatory and institutional arrangements that play a role in labour
dispute prevention and resolution. Through an overview of the legal, institutional
and procedural frameworks governing labour dispute resolution in a variety of
countries, this report notes commonalities and differences across systems, in
law and practice. The overarching research question of which dispute resolution
mechanisms work best in different contexts, and why, guides the analysis. It is
hoped that the information and analysis presented here can guide policy discussion.
Vera Paquete-Perdigão
Director, Governance and Tripartism Department
International Labour Organization
Geneva, September 2023
IV X Access to labour justice: Comparative law and practice on labour disputes prevention and resolution
Acknowledgements
This report has been prepared by the Labour Law and Reform Unit (LABOURLAW)
of the Governance and Tripartism Department (GOVERNANCE) of the International
Labour Office. The report’s drafting was led by Tvisha Shroff under the supervision
of Cristina Mihes, Head of Unit of LABOURLAW. The following team members
provided technical inputs: Valérie Van Goethem, Pablo Arellano, Elizabeth Echeverría
Manrique, Dominique Rocha Mattos and Yiwen Zhang. A special thanks goes to
former members of LABOURLAW who developed initial studies and drafts that
served as a critical resource for this work: Vongai Masocha, Colin Fenwick and Maria
Carolina Martins da Costa.
The report benefited from various national studies on labour dispute prevention
and resolution undertaken by independent experts. We wish to express our
warm thanks and gratitude to all the experts involved in collecting the relevant
information for the report (in alphabetical order): Andrés Ahumada, Christopher
Albertyn, Zdenka Burzan, Sean Cooney, Thierry Galani, Christoph Garbers, Judge
Avinash Govindjee, Rachid Filali, Georges Feghali, Judge Cathrine Lilja Hansson,
Jakir Hossain, Senad Jašarević, Jenny Julén Votinius, Evance Kalula, Anthony Kerr,
Muhammad Syam Ali Khan, Ara Khzmalyan, Ohseong Kwon, Martin Malin, Judge
Alan Neal, Goran Nesevski, Desmond Odhiambo, Cesar Rosado Marzan, Jonathan
Sale, Achim Seifert and Trang Tran.
We would like to thank International Labour Organization colleagues at
headquarters and in the field offices for their contributions, in particular
(in alphabetical order): Sylvain Baffi, Delphine Bois, Jajoon Coue, Ockert Dupper,
Jovan Protic, Nguyen Hoang Ha, Nina Krgovic, Emil Krstanovski, Ambra Migliore,
Limpho Mandoro, Mahandra Naidoo, Dorina Nika, Lejo Sibbel, Jovan Protic and
Youngmo Yoon.
Finally, we would like to thank our colleagues from the Bureau for Workers’ Activities
(ACTRAV) and the Bureau for Employers’ Activities (ACT/EMP), in particular Mélanie
Jeanroy (ACTRAV) and Matias Espinosa (ACT/EMP) for their contributions and inputs
in finalizing the report.
V
X Contents
Foreword.................................................................................................................................................................III
Acknowledgements..............................................................................................................................................IV
1. Introduction......................................................................................................................................................1
Dispute resolution in a changing labour market context.......................................................................3
This report’s terminology and caveats.......................................................................................................4
2. Legal and regulatory frameworks governing labour dispute prevention and resolution...............7
Defining individual and collective labour disputes..................................................................................7
Ensuring inclusion: Who is covered?..........................................................................................................10
Explicit legislative exclusions..............................................................................................................................10
The boundaries of the employment relationship and access to labour justice.......................................13
The material scope of labour disputes......................................................................................................14
Conclusion.......................................................................................................................................................15
3. Labour dispute resolution institutions and mechanisms.....................................................................17
The functions performed by labour dispute resolution institutions..................................................17
Adjudication: Judicial and quasi-judicial institutions.............................................................................20
Judicial institutions............................................................................................................................................... 20
Quasi-judicial institutions................................................................................................................................... 25
Alternative dispute resolution: Non-judicial institutions and labour administration....................28
ADR and labour inspection ................................................................................................................................ 32
Other institutional arrangements.................................................................................................................... 32
Conclusion...................................................................................................................................................... 34
4. Procedural aspects of dispute prevention and resolution................................................................... 37
Voluntarism in resolving labour disputes: Compulsory and voluntary procedures...................... 40
Processing applications for dispute resolution: Accessibility and speed......................................... 43
Admissibility of claims......................................................................................................................................... 43
Case management systems............................................................................................................................... 45
Timelines................................................................................................................................................................ 45
Costs and fees....................................................................................................................................................... 46
Procedural fairness in resolving disputes................................................................................................47
Representation in proceedings..........................................................................................................................47
The burden of proof..............................................................................................................................................49
Right to appeal...................................................................................................................................................... 50
Enforcement...........................................................................................................................................................51
5. Conclusion...................................................................................................................................................... 52
Chapter 1.
1
Introduction
Labour disputes—both individual and collective—are an inevitable feature of work environments.
Efficient and accessible labour dispute prevention and resolution systems that can resolve conflict in
a fair and timely manner are essential to harmonious industrial relations. Access to labour justice is an
essential building block of social justice itself. Target 3 in Goal 16 of the 2030 Sustainable Development
Agenda is “Promote the rule of law at the national and international levels and ensure equal access to
justice for all”. Target 6 has “Develop effective, accountable and transparent institutions at all levels”, and
Target 7 “Ensure responsive, inclusive, participatory and representative decision-making at all levels”.
While much of the academic literature and many international normative documents focus on access to
justice in general, pre-conditions for effective and inclusive access to labour justice have been examined
to a lesser extent.
Undoubtedly, effective labour prevention and resolution institutions cannot be taken for granted.
Challenges of accessibility, independence and accountability, scarce resources, complex procedural
requirements, and inadequate remedies continue to plague labour dispute prevention and resolution
systems around the world. Moreover, it is crucial that such systems allow space for labour dispute
prevention and the voluntary resolution of disputes through genuine social dialogue among the social
partners.1 This report provides an overview of the law and practice related to labour dispute prevention
and resolution—judicial and non-judicial—in a wide variety of Member States of the International Labour
Organization (ILO).
The primary focus of this report is a comparative analysis of law and regulations, as well as institutional
arrangements and their role in the effective functioning of labour dispute prevention and resolution
systems, in law and practice. The report highlights the commonalities and differences across the legal
and regulatory, institutional and procedural frameworks governing dispute prevention and resolution
mechanisms in the countries under study. It reviews how labour disputes are defined across jurisdictions,
their legal and material scope, the mandate and composition of dispute resolution institutions, and how
procedural matters that govern dispute handling —including whether processes are mandatory or
voluntary. As an important element of their effectiveness, the report also addresses how such dispute
prevention and resolution institutions manage their finances and the concomitant role of the social
partners in their design and operations. In short, the report seeks to contribute to the existing guidance
at the international level on access to justice by bringing in the labour dimension and the perspective of
the world of work.
The methodology to prepare this report entailed using data from three sources: country studies
prepared by national experts, in-house desk research, and information gathered with the new ILO
diagnostic tool2 in selected countries. For developing this report, a range of jurisdictions were chosen
to represent a diverse number of legal systems—Member States at varying levels of economic and
human development and in different geographical regions. The report encompasses comparative data
on individual and collective labour disputes, and primarily addresses state-provided mechanisms for
judicial and non-judicial labour dispute resolution. It does not address enterprise-level mechanisms for
grievance handling or workplace cooperation. Privately established mechanisms for dispute resolution
and procedures instituted by collective agreements are addressed briefly in contexts where they
are prominent.
1 See also ILO, Social Dialogue: Recurrent Discussion under the ILO Declaration on Social Justice for a Fair Globalization, Report VI,
International Labour Conference, 102nd Session, Geneva, 2013, paras 132–139.
2 ILO, Access to labour justice: A diagnostic tool for self-assessing the effectiveness of labour dispute prevention and resolution, 2023.
2 X Access to labour justice: Comparative law and practice on labour disputes prevention and resolution
The present report aims to analyse and respond to the research question “Which dispute resolution
mechanisms work best in different contexts and why?” as requested by the ILO tripartite constituents.3
The 2013 Resolution concerning the recurrent discussion on social dialogue called upon the ILO to
expand its assistance to strengthen and improve the performance of labour dispute prevention and
resolution systems and mechanisms, including the effective handling of individual labour complaints
through research, expert advice, capacity building and exchange of experience.4 These outcomes were
endorsed in the Plan of Action of follow-up to the discussion on social dialogue at the 102nd Session of
the International Labour Conference (2013) adopted at the 319th Session of the Governing Body which
required the ILO to generate research on labour dispute resolution to increase its capacity to provide
effective technical advisory and capacity-building services.5
During its 107th Session in 2018, the discussions of the International Labour Conference were informed
by a background report which noted that Member States were facing myriad challenges to establishing
and maintaining fair, effective and sustainable dispute resolution systems, particularly for individual
labour disputes. The challenges, among other reasons, stemmed from unclear or inconsistent legal
frameworks, multiple mechanisms or forums that created jurisdictional uncertainty and overlap, and the
exclusion of those whose employment status was unclear.6 The 2018 Resolution concerning the second
recurrent discussion on social dialogue and tripartism7 further called upon the ILO to strengthen dispute
prevention and resolution systems, at various levels, that promote effective social dialogue and that
build trust.
More recently, the Office’s research has been reoriented towards the area of access to labour justice,
with the objective of “improving access to labour justice by revising legal frameworks to extend and
protect rights for all, streamlining procedures and reducing costs, and reinforcing the qualifications and
capacity of all personnel in courts and institutions of dispute prevention and resolution”.8 The importance
of the topic was reiterated by the 2023 Resolution concerning the second recurrent discussion on labour
protection adopted by the International Labour Conference, which emphasizes access to justice, access
to effective remedies, and dispute settlement in the quest to achieve inclusive, adequate and effective
labour protection for all.9
In light of this, the Office launched the diagnostic tool10 for self-assessing the effectiveness of labour
dispute prevention and resolution institutions. The tool provides guidelines for a reflective process
within judicial and non-judicial dispute resolution bodies, and aims to help governments and social
partners identify potential opportunities and challenges for access to justice, and jointly address them.
The tool defines a set of generally accepted principles of “effectiveness”, which serve as assessment
criteria: efficiency, speediness, accountability, accessibility, independence, impartiality, fairness,
equality, professionalism and enforcement; and additionally with non-judicial institutions, voluntarism,
confidentiality and prevention.
Aligned with this background understanding, the present report aims to fill an important knowledge gap
in practical aspects of labour dispute prevention and resolution by attempting to identify and highlight
good practices conducive to full and inclusive access to labour justice.
3 ILO, Conclusions concerning the second recurrent discussion on social dialogue and tripartism, International Labour Conference,
107th Session, 2018, points 3(j) and 5(j).
4 ILO, Resolution concerning the recurrent discussion on social dialogue, International Labour Conference, 102nd Session, 2013.
https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_223786.pdf.
5 ILO, Follow-up to the discussion on social dialogue at the 102nd Session of the International Labour Conference, 2013: Plan of
action. Governing Body, 319th Session, Geneva, p. 3. https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/
meetingdocument/wcms_222313.pdf.
6 ILO, Social dialogue and tripartism, International Labour Conference, 107th Session, 2018, para. 49.
7 Adopted at the 107th session of the International Labour Conference (June 2018).
8 ILO, Preview of the Programme and Budget proposals for 2022–23, GB.340/PFA/2, Governing Body 340th Session, Geneva,
October–November 2020, p. 12.
9 ILO, Resolution concerning the second recurrent discussion on labour protection, International Labour Conference, 111th
Session, 2023. https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_886646.pdf
10 ILO, Access to labour justice: A diagnostic tool.
X 1. Introduction 3
X Dispute resolution in a changing

labour market context
Significant challenges have arisen in the context of access to labour justice, particularly triggered by
recent disruptions to the labour market and changes in work organization. The use of open-ended or
“standard employment relationships” has been eroded with increased prevalence of more flexible forms
of contractual relationships for the performance of work.11 This fragmentation of work relationships
and the reliance of enterprises on a wide array of contractual relationships with providers has been
termed the “fissuring” of the workplace in recent academic literature.12 At the same time, labour
market segmentation—in formal and informal wage employment, and in voluntary and involuntary
self-employment—has long persisted in labour markets across the globe, particularly in developing
economies.13 The weak enforcement of labour market laws and regulations in the informal sector
presents a fundamental challenge to ensuring workers’ access to justice.
Thus, labour markets have been impacted by a number of challenges: informality, gender pay gaps,
slowdown in productivity growth, barriers to labour market transitions. This has been coupled with
changes in workplaces, job profiles, and the organizational structure of enterprises induced by new
technologies, climate changes as well as sectoral shifts due to new demand. All of these trends have
the potential to directly or indirectly impact access to justice, for employers and workers. Further, these
long-standing problems were exacerbated during the COVID-19 pandemic. Informal workers were at a
higher risk of job loss than formal ones throughout the pandemic, with informal economic units being at
a higher risk of shutting down. Many workers were pushed into self-employment or own-account work
to weather the financial crisis that resulted from the pandemic.14 One of the notable emerging labour
market trends, has been the expansion of work through digital platforms and mobile applications with
the rise of the “gig” or on-demand economy.
These challenges to labour market regulation, old and new, have altered not just the organization of
work processes but also the relationship between workers and employers.15 The increasing diversity of
work relations and workers’ preferences, combined with the prevalence of individualized rather than
collective work relations, make for a more complex environment in which to address worker discontent
or grievances.
No single international labour standard directly addresses the issues of labour dispute prevention
and resolution in a holistic and integrated manner. Existing standards lack detail in the guidance they
provide, or provide only fragmented guidance.16 The absence of a unitary approach to labour dispute
prevention and resolution hinders the Office’s capability to respond to the needs of Member States and
social partners as work relations continue to evolve, and new issues emerge in workplace disputes. In
the broader context of these new dynamics, this report presents a comparative analysis of how various
policy and legal and institutional choices have affected access to “labour justice for all” in the countries
under study, providing some initial lessons learnt about the working of labour dispute prevention and
resolution systems to guide future policy discussions on this topic.
11 ILO, Non-standa7rd employment around the world: Understanding challenges, shaping prospects, 2016.
12 David Weil, The Fissured Workplace: Why Work Became So Bad for So Many and What Can Be Done to Improve It, 2017.
13 John Bennett and Matthew D. Rablen, “Self-employment, wage employment, and informality in a developing economy”, Oxford
Economic Papers 67 No. 2 (2015), pp. 227–244.
14 ILO, World Employment and Social Outlook: Trends 2022, 2022.
15 ILO, World Employment and Social Outlook 2021: The role of digital labour platforms in transforming the world of work, 2021, p. 3.
16 ILO, Agenda of Future Sessions of the International Labour Conference, GB.344/INS/3/1, 2022, para. 71. https://www.ilo.org/
wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_838083.pdf.
X This report’s terminology and caveats

Freedom of association and the effective recognition of the right to collective bargaining are both
recognized as fundamental principles and rights at work per the ILO’s 1998 Declaration on Fundamental
Principles and Rights at Work.17 These are critical rights that frame overall industrial relations systems
in countries. At the outset, the report acknowledges the close relationship between labour dispute
resolution mechanisms, on the one hand, and the broader industrial relations and legal systems in which
they operate, on the other.18 Indeed, it is the overall industrial relations environment that sets the tone
for interactions between employers and workers in a particular jurisdiction, and it is the nature and
characteristics of those interactions that can determine the preferred manner for handling disputes
between them. A cooperative industrial relations climate and the use of consensus-based approaches
can help prevent disputes, or at the very least prevent their escalation into strikes and lockouts.19
In a broad sense, then, a multitude of factors helps determine employer–worker relations and, by
extension, the resolution of disputes that arise in the context of those relations. This context includes the
political environment: whether freedom of association and the right to bargain collectively are recognized
and whether labour market governance is inclusive and participatory; the legal environment: whether
labour laws are supportive of freedom of association and collective bargaining and whether the scope
of labour laws extends to all employers and workers; and the socioeconomic environment: whether the
economy is weak or strong, whether production is labour-intensive, and what kind of sociocultural norms
feature in conflict management.20 One of the limitations of a comparative overview such as this is that
time and space restrictions do not permit an analysis of each dispute resolution system in these broader
political, legal, and socioeconomic environments.
More specifically, the present analysis excludes a discussion of the interactions between labour dispute
resolution, on the one hand, and collective bargaining and industrial action, on the other. Undoubtedly,
freedom of association and the right to collective bargaining imply the right of employers’ and workers’
organizations to engage freely in resolving disputes between them. The Collective Bargaining Convention,
1981 (No. 154) recognizes that “bodies and procedures for the settlement of labour disputes should be so
conceived as to contribute to the promotion of collective bargaining”. And in practice, the regulation of
dispute resolution mechanisms can have implications for the exercise of the right of parties to engage in
industrial action.21 In our view, this aspect of dispute resolution merits a separate standalone analysis,
but we do not venture to provide that in the present report.
Further—and importantly—the report recognizes that different legal systems tend to define the terms
relevant to labour dispute resolution differently, which is to be expected across the wide range of
jurisdictions covered here. Still, ILO publications have defined certain key terms and we acknowledge
them upfront as guides to our overall approach (Box 1). Finally, while identifying shared values and
common good practices, the present report also acknowledges the diversity of legal solutions and
practices in different economic, political, social and industrial relations contexts.
17 ILO’s 1998 Declaration on Fundamental Principles and Rights at Work: https://www.ilo.org/wcmsp5/groups/public/---ed_

norm/---declaration/documents/normativeinstrument/wcms_716594.pdf.
18 Aristea Koukiadaki, “Individual and collective dispute resolution systems – A comparative review” (ILO, 2020).
19 ILO and International Training Centre of the ILO (ITC), Labour Dispute Systems: Guidelines for improved performance, 2013, p. 5.
20 ILO and ITC, Labour Dispute Systems, pp. 9–11.
21 Laws restricting or excluding public servants from the right to strike, particularly in the case of “essential services”; laws that
distinguish between collective rights and interest disputes permitting industrial actions only in the case of interest disputes; and
compulsory arbitration procedures before or during protracted industrial action.
X 1. Introduction 5
X Box 1. Definitions of key terms according to ILO publications
X Labour dispute resolution institution: An organization that assists in the resolution of

labour-related disputes. This term covers judicial and non-judicial institutions, including
consensus-based and adjudicative bodies. It also covers, depending on the national
context, a range of different arrangements including ministries and departments of
labour (bodies within public-service national or state labour administrations), independent
statutory bodies (bodies funded by the state but which operate with a degree of
independence and autonomy), courts, and shared arrangements (where labour dispute
resolution is partly the responsibility of the labour administration and partly that of an
independent institution).
X Collective dispute: A disagreement between a group of workers usually, but not

necessarily, represented by a trade union, and an employer or group of employers.
X Individual dispute: A disagreement between a single worker and his or her employer,
usually over existing rights. It can also include situations in which a number of workers
disagree with their employer over the same issue, but where each worker acts as an
individual.
X Interest dispute: A disagreement between workers and their employer concerning future
rights and obligations under the employment contract. Such disputes are not based on
existing entitlements but rather the desire of one party to create new rights in the future,
such as a higher level of wages and additional benefits. Interest disputes are directed to
the creation of new rights and emerge as a result of a breakdown in collective bargaining.
X Rights dispute: A disagreement between a worker or workers and their employer

concerning the violation of an existing entitlement embodied in the law, a collective
bargaining agreement, or under a contract of employment. A confrontation sometimes
referred to as a legal dispute. Such disputes can be either individual or collective.
Source: ILO and International Training Centre of the ILO (ITC), Labour Dispute Systems: Guidelines for improved
performance, 2013
Chapter 2.
7
Legal and regulatory

frameworks governing
labour dispute prevention
and resolution
This section presents an analysis of the legal and regulatory frameworks defining and regulating
collective and individual labour dispute prevention and resolution mechanisms—judicial and non-judicial.
Legal certainty is a critical factor in law-making and the upholding of the rule of law, and consequently
it is of utmost importance in ensuring access to justice.22 An effective labour dispute prevention and
resolution mechanism contributes to the rule of law by facilitating equitable redress for disputes with
appropriate enforcement mechanisms in place.23 Such facilitating needs to be based on a foundation of
systematic and clearly defined legal principles that serve to grant all employers and workers access to
all these mechanisms.
The analysis here focuses on the legislative provisions that define individual and collective disputes,
distinguish between rights-based and interest-based disputes, and provide for the legal basis upon
which employers and workers may access labour dispute prevention and resolution mechanisms. The
challenges in applying some of these provisions underscore the need for well-defined substantive rights
supported by clear processes that grant access to appropriate and competent authorities.
Defining individual and collective labour disputes
The lack of legislative clarity on what the terms “individual labour dispute” and “collective labour
dispute” encompass is a real concern as it may lead to ambiguity and inconsistent application of the
law. Indeed, there is no one common approach to defining individual or collective labour disputes, and
varying legislative solutions are applied in different countries, as seen below. The crucial question is
whether such definitions, or their lack, improve or hinder the ability of an individual worker, employer,
or organization of workers or employers to access dispute prevention and resolution mechanism. The
terminology referring to labour disputes in the countries under study varies widely and is specific to
each jurisdiction.24
22 Legal certainty is included in the UN Secretary General’s conception of rule of law in the 2004 Report to the Security Council, The
rule of law and transitional justice in conflict and post-conflict societies: Report of the Secretary-General, 23 August 2004, p. 4.
23 ILO, Access to labour justice: A diagnostic tool, p. 5.
24 For instance, it is “trade dispute” in Ireland, Kenya and Malaysia, “industrial dispute” in India and the Republic of Korea, and
“labour conflict” in Romania.
In some instances, labour laws define labour disputes in general terms without distinguishing between
individual and collective disputes.25 For instance, a trade dispute in Ireland is defined as “any dispute
or difference between employers and workers or between workers and workers connected with the
employment or non-employment, or the terms of the employment, or with the conditions of employment,
of any person and includes any such dispute or difference between employers and workers where the
employment has ceased”.26 Although the parties to a “trade dispute” are here expressed in the plural, it
is well established that the term includes disputes between an individual worker and his or her employer.
In India, an “industrial dispute” is defined similarly,27 but while the Indian definition also reads as if only
to include collective disputes, it does include some but not all individual disputes. Indian courts have
interpreted the term to mean that any dispute espoused by a trade union or a substantial number of
workers can be treated as an industrial dispute. An amendment brought by the Industrial Disputes Act28
clarifies that any form of termination of services of a worker is to be treated as an industrial dispute, no
matter that any other worker or trade union is party to the dispute. Indeed, a circumscribed definition
such as this can limit the possible paths for redress in individual disputes (other than those related to
termination) that are not taken up by a trade union or by other workers.29
Certain countries legislations examined, provide a clear definition in statute of individual and collective
disputes,30 numerous labour laws in this study have no specific statutory definition of labour disputes,
whether individual or collective.31 Where definitions are provided in the law, there are a few different
ways in which we observe a distinction between individual and collective disputes. Frequently, this
distinction follows closely the distinction between rights-based and interest-based disputes; individual
disputes are taken to be those related to the exercise of an individual right, whereas collective disputes
are associated with the pursuit or defence of a collective interest.32 In other cases, the same distinction is
not made explicitly in statute, but is implicit in how disputes are handled.33 A few examples are observed
of countries that distinguish between collective interest disputes and collective rights disputes.34
In countries where collective agreements serve as an important source of workers’ rights, the distinction
between individual and collective rights disputes can be blurred. For example in Sweden in many cases, a
dispute regarding the rights of individual employees (that is, an individual labour dispute), simultaneously
involves a breach of the collective agreement, which makes it a collective labour dispute. Hence, it is
common that the same case is brought (by the trade union) both on behalf of the individual employee
25 As in Ireland, India, Brazil, Kenya, Bangladesh, Sweden, South Africa and the United Kingdom (UK).
26 See section 3 of the Industrial Relations Act 1946 as amended by section 40 of the Industrial Relations (Amendment) Act 2015.
27 Section 2(k) of the Industrial Disputes Act: “... any dispute or difference between employers and employers or between
employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the
terms of employment or with the conditions of labour, of any person”.
28 Section 2A, added in 1965.
29 For example, anti-union discrimination such as an unlawful suspension or transfer. See R. Gopalakrishnan and L. Tortell, “Access
to justice, trade union rights, and the Indian Industrial Disputes Act, 1947”, International Journal of Comparative Labour Law and
Industrial Relations 22(4) (2006).
30 This is the case for instance in some of the West African countries studied including Burkina Faso, Niger and Togo, as well as
Armenia, Bulgaria, Romania and Viet Nam.
31 For instance, in Germany, Lebanon, Mozambique, Argentina, Chile, Colombia, Malaysia, Albania no specific legal definition of
“individual labour disputes” is provided, but the Labour Code provides a definition for “collective labour disputes”.
32 As in Burkina Faso, Niger and Togo.
33 As exemplified in Ireland where no distinction is made between individual and collective disputes or between disputes of rights
and interest. Disputes of rights are resolved on an individual basis (even if they are collective in nature) through adjudication. Interest
disputes (whether individual or collective) are resolved though non-enforceable recommendations. A similar distinction is implicit to
the systems in Germany, Lebanon, Republic of Korea, Brazil, Kenya, Colombia and Serbia.
34 Including Viet Nam, Montenegro, Panama and Mexico. In Mexico, the Federal Labour Act (FLA) states that labour courts resolve
labour disputes—between workers and employers, between workers, or between employers—emerging from labour relations. The
FLA identifies that disputes may be individual and collective (but does not define them), and that they may be resolved by ordinary
or special procedure (the ordinary procedure is applicable to individual and rights disputes, with no special proceeding set out in the
FLA; see Chapter VII and Chapter VIII of the FLA). Only collective disputes of an economic nature (per this report, “interest disputes”)
are defined as those with the purpose of modifying or introducing new working conditions or the suspension or the termination of
collective labour relations and follow a procedure exclusively for these disputes, unless another procedure is stipulated in the FLA
(Chapter XIX).
X 2. Legal and regulatory frameworks governing labour dispute prevention and resolution 9
represented by the trade union and on behalf of the trade union itself, which means that the case cannot
be categorized based on the distinction between individual and collective. The important demarcation in
the Swedish system is between disputes of rights and disputes of interest, rather than between individual
and collective disputes.
Another factor sometimes emphasized in the definition of individual and collective disputes is the parties
to the dispute. Specifically, an individual dispute may be referred to as one between a worker and his or
her employer, while a collective dispute may be described as one between a group of workers and either
one or more employers.35 In some instances, the definition may specify that the parties be a workers’ or
employers’ organization. In Viet Nam, both rights-based and interest-based collective labour disputes are
expressed in terms of “one or several workers’ representative organizations and an employer or one or
more employers’ organization(s)”, for instance.36
Finally, some definitions, specifically with individual disputes, tend to associate an individual dispute
with the source of rights, based on which a dispute may arise: primarily this includes the individual
employment contract and labour legislation setting specific standards of employment. For example, the
Senegalese Labour Code defines individual labour disputes as disputes arising between workers and
employers as pertaining to the employment contract; the apprenticeship contract; collective agreements;
working conditions; social security; and hygiene, health and safety at work. 37 The existence of the
individual dispute in Senegal is linked to that of the employment contract.38 Conversely, few definitions
of collective disputes are tied to the notion of disputes that arise in the context of the negotiation of a
collective agreement.39 For instance, when individual disputes are raised by a group of workers over the
same right-related claim, in some jurisdictions such disputes are handled not as a collective dispute, but
as a sum of individual ones.40
Hence we observe that individual and collective disputes may be legally defined and distinguished,
emphasizing either one or various combinations of these three factors: the nature of the dispute (rights-
based versus interest-based); the parties to the dispute (single or a group of workers or employers); or the
source of the rights over which there is a dispute (the individual employment relationship versus collective
agreements). In certain instances, individual disputes can be handled as singular disputes raised by the
employee concerned, or as a sum of individual disputes raised by a group of employees.41
Of course, a legal definition may not in itself be important. Still, to the extent that it determines (or
contributes to determining) the procedural and institutional pathway that a dispute follows, it is of great
importance to the functioning of the system for such a definition to be clear and well understood. In
Canada for instance, the emphasis is not so much on the legal definitions of individual or collective
disputes but on whether workers are unionized or not. For unionized workers, dispute resolution is
primarily through arbitration by independent arbitrators, whereas for non-unionized workers, a
complaint may be filed with a Ministry of Labour Inspector or an application may be made to the Superior
Court for relief. In general, therefore, classification of a dispute (or in this case, classification of workers)
can sometimes be a crucial question in deciding whether an individual worker or employer, a group of
35 For example, Niger, Togo, Bulgaria and, for collective disputes, Albania.
36 Art. 179 of the Labour Code of Viet Nam. The Senegalese Labour Code (art. L.86) refers to collective labour disputes as disputes
between organized labour and employers.
37 Art. 229.
38 This is also the case in Armenia and Argentina.
39 In Armenia, collective disputes are defined as disagreements between the trade union and the employer or other parties who
are entitled to execute a collective agreement related to demands posed by one party and left unsatisfied by the other party. The
demands in question must relate to the negotiations of a collective agreement, performance of the collective agreement, or to
changes in the terms of a collective agreement or amendments of laws, or else to the establishment of new conditions of work (art.
64 of the Labour Code). This is also the case in Viet Nam where an interest-based collective labour dispute is a labour dispute that
arises during the process of collective bargaining. In North Macedonia, a collective labour dispute, in the sense of the Law on the
peaceful resolution of labour disputes is considered a dispute that rises from concluding, amending, supplementing, or applying a
collective agreement, exercising the rights of trade union organization and strike.
40 Art. 164(1)(b), as opposed to “disputes arising from individual employment relationships” (art. 182(1)).
41 As in Canada.
workers, or an organization of workers or of employers has the ability or locus standi to submit a claim
before a certain authority. This consideration must guide attempts at gaining legal clarity when defining
individual and collective disputes.
Ensuring inclusion: Who is covered?
Explicit legislative exclusions

An important aspect of the legislative frameworks governing labour dispute resolution is the extent
to which legal systems can include, and thus protect, the rights of all participants in the labour market
to access mechanisms for the prevention and resolution of labour disputes. The direct and indirect
exclusion of certain types of employers and workers presents a significant challenge to the effectiveness
of national dispute resolution systems and the industrial relations system overall. Most often, as will be
seen, it is the workers who are explicitly excluded from legal protection, and such workers tend to be
those already susceptible to exploitation and facing significant barriers to protection and remedy.
Explicit legislative exclusions (for the purposes of this subsection) do not include exemption clauses
in general labour laws in relation to workers subject to special regulatory frameworks and processes.
Numerous labour codes and dispute resolution statutes examined in this study exclude workers
such as civil servants, police and defence forces, armed forces, and seafarers,42 for these reasons.43
This is common practice across most of the systems analysed and in itself does not pose a challenge
to industrial peace as alternative systems for dispute resolution—administrative/military courts or
government-administered conciliation and grievance redressal—tend to be made available to these
categories of workers. In some jurisdictions, these categories of workers are included in the scope of
some employment legislation but subject to certain legal exclusions. In Armenia for instance, labour law
fully applies to civil servants, but rules pertaining to collective relations (including collective agreements
and collective disputes) do not apply to the armed forces, police, employees of the national security
bodies, and persons holding public positions.44 In other jurisdictions, civil servants are included in the
labour code’s scope of application, but higher executives of the civil service are excluded.45
Beyond these limited categories of workers who have access to other channels of grievance redressal,
however, many of the labour laws in the countries reviewed explicitly exclude specific categories of
vulnerable workers from their scope of application, leaving them with no means to access labour dispute
resolution mechanisms at all—typically, domestic workers.46 The Lebanese Labour Law specifically
excludes domestic workers working in private houses, and relations between domestic workers and
their employers are governed by a private contract with certain mandatory clauses imposed by the
42 In North Macedonia, the maritime personnel of merchant shipping companies, aircraft crew members and foreigners employed
in passenger and railway traffic companies that have their registered headquarters abroad are excluded from the legal framework
for labour dispute resolution.
43 Including Ireland, Germany, Lebanon, the Republic of Korea, India, Burkina Faso, Togo, Viet Nam, Mozambique, Mexico, Brazil,
Montenegro, Kenya, Argentina, Chile, Colombia, Panama, Croatia, Bulgaria, Canada, Bangladesh, Sweden, Albania, China, Morocco,
South Africa and Costa Rica.
44 In Ireland for example, police and defence forces in some cases, even if they fall in the scope of an act, are excluded from the
dispute resolution process of that act (such as the Parental Leave Act, 1998). In Niger, workers in restricted areas of companies in the
defence industry or affiliated with the military are within the scope of labour regulations, yet labour inspection services as well as
the execution of labour regulations are conducted by personnel designated by military authorities. In Chile, Law No. 21.280 on the
legal coverage of workers’ human rights procedures includes civil servants in cases of human rights violations.
45 As in Senegal and Niger.
46 Including China, Malaysia, Lebanon, Brazil, Bangladesh and Canada (in some provinces, such as Ontario, New Brunswick,
Alberta, Nova Scotia, and Prince Edward Island); conversely, domestic workers are included in the legislative framework in Ireland,
North Macedonia and Morocco (based on country studies commissioned for these jurisdictions).
Ministry of Labour. Still, this arrangement leaves domestic workers in Lebanon in a precarious position,
particularly as most of them are not Lebanese.47 In some countries, domestic workers may be eligible
for partial protection: in the Republic of Korea for example, domestic workers fall outside the purview of
the Labour Standards Act (that is, the individual employment law) but are eligible for coverage under the
Trade Union Act (that is, the collective labour law). Hence, it is feasible for domestic workers to establish
and participate in a labour union, enabling them to engage in collective bargaining with their employers
per the provisions in the Trade Union Act, and to access dispute resolution mechanisms thereunder.48
In contrast, Argentina provides an example of an entirely separate procedure for disputes arising
between domestic workers and their employer. Domestic workers are regulated by a specific law49 that
establishes a Domestic Workers Court with a particular procedure. Per this procedure, before filing the
claim, it is mandatory to submit the conflict to an administrative body under the structure of the Ministry
of Labour for conciliation.50 If the parties do not reach an agreement at that stage, the Domestic Workers
Court must summon the parties to a hearing where the judge proposes the basis of a conciliatory
agreement.51 Yet in Mexico, Panama and Chile, for example, domestic workers are specifically included
in the Labour Code.52
Exclusion from the scope of labour law and thus access to labour dispute resolution mechanisms also
frequently arises for workers whose employer is entitled to claim sovereign or diplomatic immunity.53
(But not always: Togo, for example, adopted a new Labour Code in 2021 and one of its most notable
reforms is that it expressly includes employment relations between a worker and any employer who
benefits from diplomatic or consular immunity.) In some countries, certain types of agricultural and
rural workers are also explicitly excluded from legislative protection.54 Less commonly are a few other
categories of workers excluded from labour law protection: those working in export processing zones,55
family workers,56 workers in traditional microenterprises,57 managerial and executive personnel,58
and apprentices59 and trainees. Conversely, a few express inclusions of workers in some labour codes
pertain to foreign and/or migrant workers,60 stateless persons employed with an individual employment
47 Historically, domestic workers have been subject to separate legal provisions primarily in the abusive Kafala (sponsorship)
system. Some 250,000 migrant domestic workers are estimated to be working in Lebanon. More recently, Lebanon has taken steps
towards dismantling this system through the launch of a revised Standard Unified Contract for domestic workers. https://www.ilo.
org/beirut/media-centre/news/WCMS_755008/lang--en/index.htm.
48 Consequently, in the Republic of Korea, if a dispute of collective interest emerges during the negotiation process, mediation or
arbitration procedures can be pursued as potential means of resolution, though instances of such mediation or arbitration remain
scarce.
49 Law No. 26.844. The law includes in its scope personal assistance and support provided by family members or those who live
at the same address as the employer, as well as the non-therapeutic care of sick or disabled people (art. 2, Law No. 26.844).
50 Art. 53, Law No. 26.844.
51 Art. 54, Law No. 26.844.
52 Arts. 230 and 231 of the Labour Code in Panama. Art. 146 of the Labour Code in Chile. For Mexico, see Chapter XIII of the FLA.
53 Ireland for instance.
54 Including Lebanon, Brazil, Bangladesh, Canada (Ontario, Alberta, Nova Scotia and Prince Edward Island). Agricultural workers
are excluded from the scope of the National Labor Relations Act (NLRA) in the United States.
55 As in Bangladesh and India.
56 For example, Bangladesh, Albania and Morocco.
57 Including Morocco.
58 India for example, per section 2(s) of the Industrial Disputes Act, excludes those working in a managerial or administrative
capacity. Supervisors and managers are excluded from the scope of the NLRA in the United States.
59 As in Malaysia.
60 Panama for example.
contract,61 persons with refugee status with an individual employment contract,62 apprentices63 and
members of cooperatives.64
Finally, two of the countries surveyed have criteria for workers’ salary thresholds, which have
consequences for workers’ access to dispute resolution mechanisms (Box 2).
X Box 2. Salary thresholds
Until recently, under the Malaysian Employment Act, employees were covered based on
earning thresholds (that is, those not earning more than RM 2,000) or based on the nature
of their work (that is, those engaged in manual labour or the operation of mechanically
propelled vehicles, irrespective of their earnings). The Director General of Labour could also
deal with disputes in respect of employees who earn more than RM 2,000 but not more
than RM 5,000 per month where their complaint relates to non-payment of wages or other
payments due per their employment contract.a A definition such as this left those excluded
by salary thresholds outside the Act’s scope and hence without recourse to dispute resolution
mechanisms other than those provided by the terms of their employment contracts. The
Employment Amendment Act of 2022, which came into force on 1 January 2023, has now
been amended so as to ensure that all employees are covered under the Employment Act,
irrespective of their wages.
Salary thresholds in South Africa play a very different role—that of determining speedy
access to dispute resolution mechanisms to low-income workers. The South African
Minister of Employment and Labour has the powerb to determine what is commonly called
the “threshold amount”c as a proxy for the vulnerability of employees earning under this
threshold. Labour legislation extends more rights to employees earning under this threshold
than employees above it. Where there is doubt about the status of these employees and
their right to protection, a presumption of employmentd makes it easier to establish they are
employees. Labour legislation also gives increased access to the Commission for Conciliation,
Mediation and Arbitration (CCMA), which provides faster and cheaper access to labour
dispute resolution than the Labour Court for employees earning under the threshold. For
instance, whereas contractual claims usually have to go to the Labour Court/civil courts in
South Africa, employees earning under the threshold may refer a contractual claim for an
“amount owing” to the CCMA. Similarly, while unfair discrimination disputes usually go to the
Labour Court, employees earning under the threshold may refer such disputes to the CCMA.e
a Michael Gay and Craig Bosch, Report on review of Malaysia’s dispute resolution system, Geneva: International
Labour Office, 2020.
b Under 6(3) of the Basic Conditions of Employment Act 75, 1997.
c Currently, 241,110.59 South African Rand per year.
d In section 200A of the Labour Relations Act 66, 1995 and in section 83A of the Basic Conditions of Employment
Act 75, 1997.
e Section 10 of the Employment Equity Act 55, 1998.
61 As in Romania.
62 Including Romania.
63 As in Romania.
64 Again exemplified by Romania, on forming and joining a trade union, hence such workers have access to alternative resolution
procedures as provided by law for collective disputes arising during collective bargaining.
The boundaries of the employment relationship

and access to labour justice
With due cognizance of the above issues stemming from explicit legislative exclusion, some of the greater
challenges to ensuring access to justice are created by indirect exclusion, owing to legislative definitions
and requirements. Simply, many workers and some groups of employers65 cannot meet minimum
qualifying conditions for legal coverage. The labour laws examined in this study have a variety of legal
provisions that establish a basis for applicability, and generally define parties to individual disputes as an
employee or worker, on the one hand, and an employer, on the other. In the vast majority of jurisdictions
surveyed—as well as in numerous other countries66 —national labour dispute systems are accessible
only to parties in employment relationships legitimized by employment contracts. In some instances, it
is for the party seeking to access a labour dispute resolution mechanism to demonstrate the existence
of an employer–employee relationship, or to show that the dispute falls within the scope of the given
institution’s jurisdiction.67 Courts may, however, be empowered by virtue of a legal presumption of
employment to address the issue of bogus self-employment at the time a dispute is raised.68
Such legal obstacles—created by reliance on the standard employment relationship as the sole gateway
to legal protection—have been well documented.69 In many cases, therefore, labour law generally
provide for categories of workers who fall outside the traditional “employee” mould. In Ireland for
instance, dependent self-employed workers are explicitly covered by some employment protection
laws,70 as well as by industrial relations legislation. Similarly in the Republic of Korea, there is a difference
in the meanings of “employee” in individual employment law and in collective labour law, the former
emphasizing personal subordination and the latter economic dependence. Thus, while dependent self-
employed workers are not employees under individual employment law in the Republic of Korea, they
may often be covered by the Trade Union Act. In Germany, independent contractors who are economically
dependent on their contract partner71 are considered “quasi-employees” and therefore have access to the
labour courts when they have a labour dispute arising from their contractual relationship with their main
customer. Similarly, some individuals and/or businesses may not be able to meet legislative requirements
to qualify as employers. In the Republic of Korea once more, the Labour Standards Act provides some
exemptions for a business or workplace that regularly employs no more than four employees,72 although
there were very few such cases in the legislations examined.
65 In most cases this refers to Small and Medium-sized enterprises.

66 Nicola Countouris, Defining and regulating work relations for the future of work.
67 Recent case law (2018 and 2014) in Kenya has held that “for one to access the jurisdiction at Employment and Labour Relations
Court (ELRC) he must demonstrate that there exists an employer–employee relationship; that there is an oral or written contract of
service or that the issue is a dispute falls within the provision of Section 12(1) of the ELRC Act”.
68 For example, Panama, Colombia, Chile, Argentina, Mexico, France and Spain.
69 Nicola Countouris, Defining and regulating work relations for the future of work. See also ILO, 2006, “The employment relationship”,
Report V(1), 95th Session of the International Labour Conference, 2006, Geneva, ILO. On platform workers see Decent work in the
platform economy: Reference document for the Meeting of experts on decent work in the platform economy (Geneva, 10–14 October
2022), p. 5.
70 For instance, the Terms of Employment (Information) Act 1994 and the Employment Equality Act 1998.
71 If at least 50 per cent of their income results from the corresponding contractual relationship.
72 Labour Standards Act, sections 11(1) and (2). For example, the requirement of “just cause” for dismissing or disciplining an
employee under the Labour Standards Act of the Republic of Korea does not apply to businesses with fewer than five employees
at any given time. In addition, the Labour Standards Act requires that overtime, night and holiday work be compensated with an
additional payment of at least 50 per cent of the regular wage. It also provides for paid annual leave for eligible workers. However,
again, these provisions do not apply to enterprises with fewer than five employees at any given time.
In some cases, a labour dispute may also occur between an employer and a person who is not, and
never has been, employed by that employer. For example in Sweden, disputes between temporary
agency workers and user undertakings over the application of legislation on temporary agency work are
considered labour disputes under the Labour Disputes Act.73 The same applies for discrimination cases,
where the concept of labour dispute covers not only disputes between employers and employees, and
between temporary agency workers and user undertakings; it also covers disputes between employers
and jobseekers; persons enquiring about or applying for work; and persons applying for or carrying out
a traineeship.74 Disputes between employers and jobseekers are further considered to be labour disputes
in cases concerning the prohibition against unfavourable treatment on grounds of parental leave.75
Beyond the employment relationship, the de facto exclusion from the operation of labour laws is often
seen with undocumented migrant workers who are often excluded from labour laws and social welfare
legislation.76 In some cases, courts or authorities have stepped in to ensure access to dispute resolution
procedures to migrant workers irrespective of their work permit or legal status. For instance, courts in
the Republic of Korea have established that migrant workers, regardless of their legal status, are entitled
to the same labour law protection as local workers, which includes the right to organize and form a trade
union. Migrant workers are thus granted equitable and non-discriminatory access to dispute resolution
mechanisms, encompassing both judicial courts and labour commissions. In contrast, a discernible
regulatory approach can be identified in the labour laws of Central and Eastern European countries
in relation to the regulation to protect their citizens who are posted abroad,77 and who are historically
susceptible to falling outside legal protection.78 These countries’ labour codes apply to those who perform
work abroad on the basis on an employment relationship with an employer in the same jurisdiction.79
The material scope of labour disputes
A range of legal provisions in the laws examined establish specific grounds for a dispute to be eligible for
individual and collective labour dispute processes. A traditional, albeit enduring, regulatory approach can
be identified in most labour laws that treat rights-based labour disputes separately from interest-based
collective disputes.80 Broader conceptions of rights-based individual disputes allow parties to submit
claims pertaining to rights from labour laws, individual employment contracts, collective agreements,
and any other instruments that have a regulatory effect.81 This is closely linked to the determination of
the specific dispute resolution institutions that have competence or jurisdiction over them. Labour laws
specify which institutions have jurisdiction over different disputes and some countries take the approach
73 Temporary Agency Work Act (2012:854), section 17.

74 Discrimination Act (2008:567), ch. 6, section 1.
75 Parental Leave Act (1995:584), sections 16 and 23.
76 This issue is highlighted in, for example, the country study on Morocco where undeclared work threatens the majority of migrant
workers. The fact that their employment is subject to the prior approval of the foreigner’s employment contract by the administrative
authority responsible for employment dissuades many of them from taking the risk of being refused and pushes employers, like
migrants, to agree to informal and atypical arrangements that do not allow rights to be enforced through conciliation and the courts.
77 Such workers are workers temporarily sent by their employer to work in another country (often between EU countries).
78 There is a well-documented history of reliance on low-cost labour from Eastern Europe in Western European countries through
posted work. For recent information on efforts to strengthen the legislative protection of posted workers in Eastern Europe, see
European Centre for Social Welfare Policy and Research, Posting of workers in Eastern Europe Project (EEPOW).
79 For example, Romania, Montenegro and Serbia.
80 Countries include Ireland, Germany, Sweden, Morocco and South Africa.
81 In Canada for example, an individual labour dispute for non-union employees can arise from statute or under the common law
(their common law employment contract) whereas, for unionized employees, disputes arise from statute or from the interpretation
of the collective agreement.
that rights-based disputes are to be settled via judicial processes, whereas alternative dispute resolution
(ADR) processes are applied to interest-based disputes.82
An extremely common issue across all countries in the study pertains to disputes on whether a
termination of employment is lawful, fair or justifiable. Disputes over dismissals may be treated differently
by jurisdiction. Under Lebanese Labour Law, collective disputes may arise in the context of collective
dismissals, but in Ireland, disputes concerning collective dismissals are processed on an individual basis.
Across many of the legal frameworks, individual disputes relating to wage claims, discrimination, working
hours, overtime and leave entitlements, social security payments, severance pay, notice periods and
occupational safety and health are also common. In so far as collective rights disputes are concerned,
the issues usually highlighted tend to revolve around the capacity of trade unions to conclude collective
agreements,83 the representativeness and recognition of trade unions,84 violations of the right to organize
and bargain collectively85 and acts of discrimination against union officials.86 Collective interest disputes
are generally referred to as disputes that arise in the course of collective bargaining.87
Conclusion
A few key messages may be drawn from the above analysis. Individual and collective disputes may be
legally defined and distinguished, emphasizing either one or various combinations of three factors: the
nature of the dispute (rights-based versus interest-based); the parties to the dispute (single or group
of workers or employers); or the source of the rights regarding which there is a dispute (the individual
employment relationship versus collective agreements). Indeed, as seen in these varied regulatory
approaches in different jurisdictions, it is not merely the presence of statutory definitions of such disputes
that matters. What is important is that such a definition be inclusive, so that it does not leave out any kind
of dispute from the labour dispute prevention and resolution system. Definitions that are circumscribed
to include certain disputes but not others might effectively limit access by the parties to the appropriate
forums for dispute resolution. The purpose of such definitions is to provide clarity on the specific avenues
that parties to a labour dispute may have, no matter how that dispute is defined. A lack of clarity on this,
whether on account of poor legal definitions or confusion over the jurisdictional competence of different
labour dispute resolution institutions, can seriously hinder access to labour justice.
In addition, it is crucial that labour laws do not explicitly exclude any party—worker or employer—from
the regulatory framework for labour dispute resolution. Such exclusion, whether de facto or de jure,
greatly hinders access to labour justice and ultimately the effective resolution of disputes for maintaining
harmonious industrial relations. This approach is vital not just for definitions to be inclusive of all types of
disputes, but to be inclusive of all potential parties to a dispute so that they have access to the appropriate
forums for dispute resolution.
Finally—and above all—we must recognize that even when legal and regulatory pathways to dispute
resolution are clear, it is fundamental that in practice these are made known and accessible to parties.
A broad understanding of the legal options available is essential for them to exercise their right to access
labour justice. It is therefore necessary that these definitions not only be clearly stated in the law but that
they be made clear through appropriate information channels to those workers and employers who may
need this information.
82 For example, Ireland, Germany, Republic of Korea and Sweden.

83 Germany for instance.
84 As in Lebanon, Malaysia, India, Viet Nam, Serbia and Argentina.
85 Exemplified by the Republic of Korea and Serbia.
86 For instance, Lebanon, Republic of Korea, Malaysia, India, Serbia and Argentina.
87 In Canada for example.
Chapter 3.
17
Labour dispute
resolution institutions
and mechanisms
A wide variety of institutional arrangements are set up by Member States to prevent and resolve labour
disputes. This section presents an analysis of the various types of institutions in the countries under
study; the functions they perform; and their mandate, composition and governance structures. As above,
we follow the definition of a labour dispute resolution institution in the ILO’s diagnostic tool, that is, an
organization that assists in resolving labour-related disputes. This definition covers judicial and non-
judicial institutions, including consensus-based and adjudicative mechanisms. It also covers, depending
on national context, a range of different arrangements including ministries and departments of labour
(bodies within public-service national or state labour administrations); independent statutory bodies
(bodies funded by the state but that operate with a degree of independence and autonomy); courts;
and shared arrangements (where labour dispute resolution is partly the responsibility of the labour
administration and partly that of an independent institution).88
The functions performed by labour dispute

resolution institutions
The functions carried out by the institutions analysed here include those that exercise final (or near final)
authority to render a binding decision in a dispute. This is the case for all judicial institutions, whether
ordinary courts, specialized labour courts or the labour chambers of ordinary civil courts. It is also the
case for quasi-judicial institutions. The analysis also covers those institutions that use consensus-based
mechanisms and encourage a significant degree of voluntarism by the parties to resolve a dispute. Such
institutions include those which provide forms of ADR, that is, conciliation, mediation and arbitration
services, to find solutions to labour disputes outside the traditional judicial sphere.
There are significant complementarities between the adjudicative and consensus-based approaches
of labour dispute resolution. Such ADR procedures can serve to filter disputes that come to judicial or
quasi-judicial institutions. The judicial, quasi-judicial and non-judicial institutions, when functioning in
coordination, complement one another and contribute to strengthening the effectiveness of the dispute
resolution system as a whole, although there may often be an overlap and needless repetition of cases in
these different bodies. Initially, it is important to understand how different jurisdictions define or apply
these various functions, namely, adjudication, negotiation, conciliation, mediation and arbitration.89
88 ILO, Access to labour justice: A diagnostic tool.

89 Our understanding of these terms is guided by the glossary in ILO and ITC, Labour Dispute Systems.
Some countries do not provide formal definitions of most of these terms, or indeed any of them.90 Across
most of the legislations analysed, the term “adjudication” is not defined in any code or statute,91 yet is
commonly understood as a formal decision-making process in which the rights and obligations of the
parties are determined on the basis of evidence and legal argument to settle disputes. Nor is the term
“negotiation” often defined. One exception is Senegal, which defines negotiation as “processes entailing
discussion between employers and employees for the purpose of seeking agreements and solutions to
individual and collectives labour disputes”.92The legal framework in the four West African jurisdictions
studied, while not defining it formally, refers to negotiation in similar terms, emphasizing the aspect of
discussions between employers and workers.93 Mozambique refers to the “collective negotiation process”
as beginning with the proposal for signing or revising a collective bargaining instrument.94
Most commonly, countries have definitions of the terms “conciliation”, “mediation” and “arbitration”, which
sometimes conflict or overlap.95 The terms “conciliation” and “mediation” can be used synonymously to
refer to the process of a neutral third party assisting the parties in finding a mutually acceptable solution,96
as in some of the jurisdictions studied.97 But in other cases, a distinction is made between the two terms
based on the notions that a conciliator may play an advisory or evaluative role,98 or sometimes provide a
recommendation to parties,99 whereas a mediator acts only as a facilitator of voluntary discussions. This
distinction is seen most clearly in Brazil, where the Superior Council of the Labour Court distinguishes
between conciliation and mediation as a third person bringing together, empowering and guiding parties
“with the creation or proposal of options for the resolution of the dispute” (conciliation) and “without the
creation or proposal of options for the resolution of the dispute” (mediation) [our emphasis].100
In the Republic of Korea among other countries, the terms “conciliation” and “mediation” are used
the other way around. Conciliation refers to a former system utilized for mediating labour disputes.
Under this system, a conciliation commissioner reviews the key arguments from the involved parties
and attempts to facilitate resolution. The commissioner’s role is not to propose specific solutions
90 Bangladesh, Germany and Ireland, for instance, have only formal definitions of “mediation”.
91 An exception here is Sweden where adjudication is defined as “A court’s determination on the merits of the matter at issue an
action is made in a judgment […]”. The Swedish Code of Judicial Procedure (1942:740), ch. 17, section 1, available in a (non-official)
English translation.
92 The Labour Code (art. L.5.) and Decree No. 2009-1413 of 23 December 2009 (preamble and art. 1). Sweden, too, is an exception.
Negotiation is regulated in the Co-determination Act (1976:580), stating that the duty to negotiate is a duty to “in person or through
a representative, appear at the negotiation’s meetings, and, where necessary, put forward a reasoned proposal for a solution of the
matter to which the negotiations relate. The parties may jointly decide upon a form for negotiations other than through a meeting”.
See Codetermination Act (1976:580), sections 15 and 16.
93 Burkina Faso, Niger and Togo.
94 Art. 167. Senegal too refers to “collective negotiation” in its Labour Law.
95 These are defined in the glossary of ILO and ITC, Labour Dispute Systems, as follows:
Arbitration: The determination of a dispute by one or more independent third parties rather than by a court. During arbitration, an
arbitrator hears the arguments of both parties to a dispute and settles the case by making an award. The proceedings are less formal
than a court but there are some similarities including the presence of witnesses, the right to cross examination, and the right to legal
representation. In most cases the award is final and binding. Appeals are usually confined to cases in which the award is contrary to
the law, or the parties’ right to be heard was not respected.
Conciliation: A process in which an independent and impartial third party assists the disputing parties to reach a mutually acceptable
agreement to resolve their dispute. Conciliation extends the bargaining process by encouraging the disputing parties to reach a
consensus but without imposing a solution to their dispute. It is sometimes referred to as assisted bargaining. For the purpose
of this publication conciliation and mediation are used to describe the same process, leading to the use of the terms conciliation/
mediation and conciliator/mediator.
Mediation: In most jurisdictions the term is synonymous with conciliation. There are, however, some more academic aspects
of mediation which focus on different approaches to the process, but without changing its basic process orientation and non-
determinative role. Facilitative mediation concentrates on the process alone without any suggestions or remedies being offered to
the disputing parties.
96 See definition in previous footnote.
97 In, for example, Croatia, Canada and Sweden.
98 As in Ireland.
99 Including in Serbia, Montenegro, Colombia, China and South Africa.
100 Superior Council of the Labour Court (Conselho Superior da Justiça do Trabalho, CSJT) Resolution No. 252 of 22 November 2019.
X 3. Labour dispute resolution institutions and mechanisms 19
but to encourage the parties to reach an agreement on their own. Mediation occurs when a labour
dispute remains unresolved, and a conciliation commissioner101 listens to the perspectives of labour and
management and then formulates and presents a conciliation plan, that is, a settlement in an impartial
position aiming to facilitate resolution and reach a mutually acceptable outcome. The manner in which
conciliation and mediation are understood in the Republic of Korea differs from that in many other
countries. In Bangladesh, for example, the conciliator is understood as having a more passive role than
the mediator, and conciliation is a form of “assisted collective bargaining” in which the conflicting parties
can have a fair chance of settlement through the services of expert negotiators. In mediation, however,
parties are obliged to abide by the decisions made by a unanimously selected mediator.102
Beyond the role of a neutral third party as a mediator, the observed definitions of mediation tend to
emphasize voluntariness or autonomy of the parties,103 confidentiality of the process104 and a mutually
acceptable or amicable solution.105 Similarly, the definitions of conciliation emphasize reaching an
amicable solution.106 Some jurisdictions emphasize the role of the mediator or conciliator as facilitating
dialogue or communication between the parties.107
For the term “arbitration”, definitions are sparse, but the few found emphasize the binding nature of the
arbitrator’s decision-making power.108 In addition, the highlighted features of arbitration tend to revolve
around voluntariness109 and the independence and neutrality of the arbitrator.110 Yet arbitration can
sometimes be non-binding, taking the form of advisory arbitration. In such cases, the proceedings may
be more formal than with conciliation or mediation, but still the arbitral award is suggestive, and it is up to
the parties to accept the award or challenge it through legal means.111 In Canada, we see a prevalence of
“med-arb”—mediation-arbitration—by the same neutral person.112 In this process, a mutually agreed-on
arbitrator will, with the (typically tacit) consent of the parties, mediate and arbitrate, and the processes
are intertwined. Similarly, “con-arb” is provided for in South Africa, with the idea that arbitration follows
immediately after unsuccessful conciliation attempts.113 Con-arb—concilliation-arbitration— in South
Africa is only compulsory in probation disputes (dismissal of probationers and other unfair conduct
relating to probation); in all other disputes, it may only take place if there is no objection.
101 Here, the terminology is the same (i.e. conciliation officer) even though the role is different (i.e. in the first case it is conciliation
and in the second it is mediation)
102 Section 113(6), Bangladesh Labour Rules, 2015. Here the terminology is that of “mediation” though in practice this may appear
to be more like arbitration.
103 For instance, Ireland, Germany, Serbia, Romania and Sweden.
104 For example, Ireland, Germany and Romania.
105 Including Ireland, Germany, Armenia, Mozambique, North Macedonia and Romania.
106 Exemplified in Burkina Faso, Niger, Senegal, Togo, North Macedonia and Romania.
107 As in Mozambique, Montenegro, Romania, Argentina and Chile.
108 For example, Romania, Montenegro, North Macedonia, Niger and Burkina Faso. An exception is Sweden: Arbitration is defined
in the Swedish Arbitration Act (1999:116), according to which an arbitration agreement as an agreement between at least two parties
that stipulates that a dispute shall be “referred to one or several arbitrators for resolution. Such an agreement may relate to future
disputes pertaining to a legal relationship specified in the agreement. The dispute may concern the existence of a particular fact”
See Swedish Arbitration Act (1999:116), section 1, available in a (non-official) English translation at the Swedish Arbitration Institute.
109 Montenegro for instance.
110 Examples are Montenegro and North Macedonia.
111 Including Viet Nam and South Africa. In South Africa, advisory arbitration is defined in labour legislation as non-binding
arbitration, which may form part of conciliation, but is required in a dispute about refusal to bargain (section 64(2) of the Labour
Relations Act). Sections 150A–D of that Act now also provide for the possibility of advisory arbitration (after unsuccessful conciliation)
in the case of unduly protracted or violent strikes/lockouts or where the strike/lockout creates a social crisis. The goal is stated to be
“to facilitate” resolution of the dispute.
112 This process has become the norm for labour arbitration in Ontario and to varying degrees in other parts of Canada. It is
expressly available under the main Ontario labour relations statute; see section 50(1) of the Labour Relations Act, 1995.
113 Section 191(5A) and Rule 17 of the Commission for Conciliation, Mediation and Arbitration (CCMA).
Adjudication: Judicial and quasi-judicial institutions
Various countries have established judicial and quasi-judicial institutions (defined at the start of each
subsection below) that receive many labour disputes for adjudication. The courts remain the primary
institution for resolving individual rights based labour disputes in most of the countries covered.
Legislative instruments may grant competence over labour disputes to judicial institutions that are
either specialized labour courts and tribunals, or civil courts in the ordinary justice system. While many
of these courts have exclusive jurisdiction over labour disputes, they interact with various non-judicial
institutions or perform conciliation or mediation functions when carrying out their judicial functions. For
their part, quasi-judicial institutions have adjudicative functions that are broadly comparable with those
of courts, and they generally operate to reduce the incidence of cases submitted to judicial proceedings.
We see a trend in the establishment of quasi-judicial institutions in almost all countries surveyed in the
Asia-Pacific region.114
Judicial institutions
For this report, we define judicial institutions as conflict-resolving forums

that have the power to interpret the law and enforce its application, and that
are established in a judicial structure or hierarchy, that is, in the third power
in a state of law, besides the executive and the legislative.
Despite the prevalence of administrative and quasi-judicial bodies in labour dispute resolution systems,
judicial institutions remain the dominant mechanism for resolving labour disputes, particularly rights-
based disputes—whether individual or collective—in most of the countries in this study.115 The legal
frameworks examined place these judicial mechanisms, almost in equal numbers, under the purview
either of specialized labour courts and tribunals116 or of ordinary courts in the civil system.117 While in
some systems, parties must exhaust conciliation and/or mediation procedures before submitting a rights
dispute for adjudication, in others, they have the right, or the only option, to submit a complaint directly
to a court. With collective interest disputes in contrast, in most cases there is no recourse to judicial
forums.118 Collective interest disputes are, however, sometimes subject to adjudicative process within
the scope of quasi-judicial institutions.119
114 Including China, Republic of Korea, Malaysia, Pakistan, India and Bangladesh. In Viet Nam, a Labour Arbitration Panel exists but
its awards are not legally enforceable.
115 A few exceptions have been noted in Ireland, Lebanon, Malaysia and India where the administrative and quasi-judicial
institutions play a more active adjudicative role.
116 As in Germany, Burkina Faso, Niger, Senegal, Togo, Brazil, Mozambique, Kenya, Bangladesh, Mexico, Argentina, Chile, Colombia,
Panama, Sweden, South Africa, Costa Rica and UK.
117 As in the Republic of Korea, Armenia, Viet Nam, Serbia, North Macedonia, Montenegro, Romania, Croatia, Bulgaria and Albania.
(Also Morocco, through ordinary/civil courts with specialized labour sections). In China, in some regions with relatively developed
economies and many labour disputes, some courts have also begun to explore the establishment of special labour dispute tribunal.
In July 2021, the country’s first labour tribunal was officially established in the Intermediate People’s Court of Suzhou City, Jiangsu
Province. As of March 2023, the tribunal had accepted 3,939 labour dispute cases and concluded 3,659 cases; see http://rmfyb.
chinacourt.org/paper/html/2023-03/13/content_226568.htm?div=-1).
118 An exception is Chile, where some collective interest disputes go to the judicial system.
119 For example, the Labour Relations Commission in the Republic of Korea and the Arbitration Commission for the Resolution of
Collective Labour Disputes in Lebanon. In Lebanon however, rights-based disputes, too, are resolved by a quasi-judicial institution,
albeit a different one, namely the Labour Arbitration Council.
Quite a few countries have established labour courts that function as separate institutions from ordinary
courts, with specialized adjudicative mechanisms to address collective and individual labour disputes.
In such cases, features that distinguish labour courts include the presence of judges or sometimes lay
judges120 with expertise in labour law; simplified legal proceedings; and far lower costs for parties, all
of which are enabling factors in enhancing access to labour justice. In the West African jurisdictions
examined,121 specialized courts with territorial competences are tasked with resolving local labour
disputes. In some cases, this specialization extends all the way from the courts of first instance to
the highest court of appeal, as in Brazil (Box 3). The functioning of specialized labour courts can be
problematic, however: in Bangladesh, for example, where such courts and a labour appellate tribunal
have been established,122 we see long delays in resolving cases, a backlog of cases, frequent adjournment
of judicial proceedings and a dearth of experienced judges.
X Box 3. Brazil’s labour justice system
Since 1941, Brazil has had a justice system specialized in labour law, responsible for
conciliating and judging individual and collective disputes between workers and employers.
It is administratively and financially independent. Its judges and staff are selected mainly
through public competitions based on technical evaluations that require specific knowledge
of labour law. Its proceedings are simplified, including the possibility of filing a case without
a lawyer, free of charge for parties with limited resources and largely digitized, including
online hearings.
Brazil’s labour justice system consists of district and regional courts (first instance and
appellate level, respectively), as well as a Supreme Labour Court (the highest level of
appeal). The primary function of the Superior Labour Court system is to standardize labour
jurisprudence across the country. The Superior Labour Court is further subdivided into two
specialized sections on collective labour disputes and individual labour disputes. In addition
to adjudicating, labour courts at all levels mediate and conciliate individual and collective
disputes, regardless of the filing of a case. The most recurrent issues in the labour courts are
severance payments, including fines for late payment, overtime, prior notice and hazard pay.
The Superior Labour Court system has 24 regional labour courts; 1,587 district labour
courts; 102 judicial centres for consensual methods of dispute resolution; 3,955 Judges; and
43,167 support staff. Brazilian labour courts receive about 3 million cases a year; 100 per cent
of new cases are filed in digital format; conciliation takes place in around 45 per cent of the
cases in the pre-trial stage; and the average time taken to process cases in the first instance,
from the filing of the case to the delivery of the sentence, is about eight months.
Source: Superior Labour Court.
120 As in Germany, Belgium, Bangladesh, Romania and Barbados.

121 Including Burkina Faso, Niger, Senegal and Togo.
122 Sections 214 and 218 of the Bangladesh Labour Act, 2006.
Despite the many legal systems with specialized labour courts in this study, the resolution of individual
labour disputes through ordinary courts is still prevalent. Some legal systems may put in place special
measures to enhance disputants’ access to appropriate and effective mechanisms for labour matters.
In North Macedonia, for example, specialized court chambers are formed depending on the type and
volume of work in the court, including for labour disputes, which also enjoy a special regime in terms
of procedure, primarily to expedite matters. Yet this approach may be more informal. In Serbia, for
instance, ordinary courts hear individual labour disputes so reportedly there are frequent issues with
court caseload and lack of specialized knowledge of civil judges, including in relation to international
labour standards.
Some countries have endeavoured to streamline the judicial processing of labour disputes by establishing
specialized labour divisions within civil courts, including Germany and Romania. For instance, in all the
West African jurisdictions analysed, while at the first instance there are specialized labour courts, at the
level of the Courts of Appeal and Court of Cassation specialized labour chambers have been established.123
Even in many systems with specialized labour courts or provisions for labour disputes to be addressed by
quasi-judicial institutions, a crucial role remains for ordinary courts in labour dispute resolution, either
acting as a court of appeal for labour matters arising from such institutions124 or stepping in to hear
labour matters in the absence of competent labour courts.125 Sometimes, ordinary courts may have
jurisdiction for specific types of labour disputes or certain matters pertaining to labour disputes. In
Ireland for instance, the high court hears applications for injunctions to restrain industrial action during
a dispute, as well as cases for damages in cases of wrongful dismissal. Similarly, Irish circuit courts may
entertain cases of gender discrimination. In Canada, where dispute resolution for unionized workers
is primarily through arbitration, the Courts of Justice handle individual employment claims of non-
unionized workers.126 To the extent that labour legislation provides for criminal sanctions, prosecution
in such cases may take place within courts with appropriate criminal law jurisdiction.127 Ordinary courts
may equally play a role in enforcing decisions of other institutions.128
Additionally, legislative frameworks establish various bases for institutional linkages and interactions
between courts and other mechanisms integral to labour dispute resolution systems. As said, some
courts may hear cases following a process where ADR mechanisms overseen by administrative bodies
have been exhausted.129 In other cases, judges may have discretion to interrupt proceedings and refer
cases to conciliation or mediation.130 In Niger, for example, courts are required, first, always to attempt
to settle the matter via conciliation. If this is unsuccessful, parties may initiate judicial processes by
submitting a written or oral declaration to the registry of the territorially competent labour court.
Similarly, a distinctive feature of many jurisdictions in the Americas is the provision of in-court
conciliation.131 In Brazil for example, each regional labour court (appellate labour court) has Judicial
123 Burkina Faso, Niger, Senegal and Togo.

124 For example, Ireland, India, Burkina Faso, Niger, Senegal and Togo.
125 A unique example may be drawn from the Croatian Civil Code of Procedure, which grants ordinary courts jurisdiction over
“employment-related litigation”, while envisaging the establishment of specialized judicial bodies for resolving such disputes. In
practice, labour disputes are primarily heard in municipal courts, except in the capital, Zagreb, where a Municipal Labour Court has
been established. In Brazil and Mozambique too, where highly specialized labour courts are established, in the absence of such a
labour court in the disputant’s domicile, proceedings for labour disputes may take place before an ordinary judge.
126 As in Sweden: to directly approach the labour court, the action must be brought by an employers’ organization, an employees’
organization or an employer who has entered into a collective agreement on an individual basis. Therefore, the district courts in
Sweden hear cases where an employee brings an individual claim without being represented by a trade union—either because
the employee is not a member of a trade union, or because the union believes that the claim is wrongful and therefore refuses to
represent the union member. The district court is also the court of first instance in disputes where action is brought by or against an
employer who is not bound by a collective agreement. In both these cases, the Swedish Labour Court is the appellate court.
127 As in Ireland and India.
128 The district court hears applications for enforcement of decisions by the Labour Court (a quasi-judicial body) in Ireland.
129 See Viet Nam and Mexico in Section IV.
130 Germany is one such country.
131 As in Colombia, Panama, Chile, Argentina and Brazil. In-court mediation is also provided in Serbia and Montenegro.
Centres for Consensual Dispute Resolution (Centros Judiciários de Métodos Consensuais de Solução
de Disputas, CEJUSC-JT ), responsible for holding conciliation and mediation sessions and hearings in
individual claims at any stage or instance, including those pending trial before the Superior Labour
Court.132 Likewise in Argentina, the Compulsory Labour Conciliation Service (Servicio de Conciliación
Laboral Obligatoria, SECLO) conducts mandatory pre-judicial conciliation services for all rights-based
disputes falling under the jurisdiction of labour courts.133
On the composition of most judicial institutions, at the first instance, a number of countries provide
for labour disputes to be heard by a single judge.134 A few countries specifically provide for setting up
panels that include not only a professional judge but also “lay judges”, with the participation of social
partners in judicial institutions (Box 4). In Romania, panel members comprise a specialized professional
judge and two lay assistants, who are proposed by nationally representative employers’ and workers’
organizations. In Burkina Faso, Niger, Senegal and Togo, the labour court has two judges—the president
of the court and another judicial member—as well as “assessors” who equally represent organized labour
and organized employers, and are appointed for renewable terms of a certain number of years at a time.
They are selected from lists presented by the most representative employers’ organizations and trade
unions, or by the locally competent labour inspector if the employers’ organization and trade unions have
not provided lists of assessors. In some countries such as Viet Nam, social partners, particularly public
servants in upper-level trade unions, can occasionally be appointed as a jury in the labour court. In some
other systems, there is no practice of having lay judges in court.135
X Box 4. The participation of lay judges in labour proceedings—Examples from Europe
Several European judicial systems provide for lay judges in labour proceedings.
In Belgium, both the labour tribunals (first instance) and the labour courts (appeals level)
are divided into chambers comprising a professional judge, who chairs the chamber, and
two lay judges.a The lay judges are appointed by their respective organizations and their
role is to assist the professional judge in examining a case. Depending on the nature of
the dispute, lay judges may represent the workers, the employers or the self-employed.
However, the Supreme Court (Cour de Cassation) is composed only of professional judges.
For the deliberations, the voice of the lay judge in principle carries as much weight as that
of the professional judge, meaning that the latter may be in the minority. In practice, the
professional judge’s vote, on points of law at least, carries a certain additional weight.
In France, the Conseil de Prud’hommes is a first-level joint tribunal (“juridiction paritaire”) that
is competent for individual labour disputes arising from employment contracts. It is made up
of non-professional judges (councillors) divided into two colleges, which are composed of the
same number of conseillers appointed respectively by employers’ and workers’ organizations.
At the appeals level, both the Appeal Court and the Supreme Court (Cour de Cassation) are
composed exclusively of professional judges.
132 The CEJUSC-JT’s also offer amicable resolution of labour disputes, without the need for a judicial lawsuit. If a lawsuit already
exists, a request for pre-judicial conciliation/mediation is not applicable, but rather a request for designation of mediation and/or
conciliation as part of the judicial proceedings.
133 Arts. 1 and 4 of the Law on Compulsory Conciliation in Labour Disputes, No. 24.635, provide that individual and multi-individual
claims regarding “legal conflicts” (rights disputes) within the jurisdiction of National Labour Justices will be subject to mandatory
conciliation.
134 Including Croatia (unless the law stipulates that the case is tried by a panel), Panama, Colombia, Chile, Argentina and Brazil.
135 Countries include Ireland, Republic of Korea, Armenia, Brazil, Argentina and Mexico.
X Box 4 (cont.)
In Sweden, the Labour Court has a dual role. It can serve as an appeals body against
decisions by district courts. It can also be a one-instance special court for certain types of
labour disputes (first and last instance). The Labour Court generally has seven members,
including three “neutral” members and four lay judges who represent employers’ and
workers’ organizations (two for each side). The three neutral members are the chair, vice-
chair and a labour market specialist, who often comes from a ministerial department. Only
the chair and vice-chair are professional judges. Where legal issues are uncomplicated, the
Labour Court may consist of three members only—the chair and two lay judges. There are no
types of appeal on which professional judges must sit without lay judges. Every member of
the Labour Court has one vote, meaning that the four lay members could outvote the three
professional judges, though this has happened only once. The lay judges are selected by their
respective organizations and appointed by the government.
In the United Kingdom, the hearings of Employment Tribunals are always chaired by a
professional judge (known as an “employment judge”) who is an independent member of
the judiciary. In principle, preliminary hearings are always conducted by an employment
judge sitting alone. Certain types of cases can also be conducted only by such a judge. All
other cases are heard by a panel, normally consisting of an employment judge and two other
members (“non-legal members”). The non-legal members act as independent judges, and
are split between an “employer panel” and an “employee panel”. They may (and occasionally
do) outvote the professional presiding judge. From a judgment of the Employment Tribunal,
an appeal lies (on a point of law only) to the Employment Appeal Tribunal, which consists
of a High Court judge as chair and two or four lay members. Thereafter an appeal may lie
to the Court of Appeal (Civil Division) and the Supreme Court, which consists solely of
professional judges.
In Denmark, the system is quite similar to the Belgian one, although decisions made by the
Labour Court cannot be appealed to any other judicial instance (although the Labour Court
itself may review the decision). The Danish Labour Court is composed of a president and five
vice-presidents; six ordinary and 14 substitute members appointed by private and public
employers’ organizations; and six ordinary and 17 substitute members appointed by workers’
organizations. Usually, the president and vice-presidents are judges from the Supreme Court.
Consequently, no member is assigned to a full-time job at the Labour Court.
In Germany, the participation of lay judges is provided for at all three levels, but the number
of professional judges varies depending on the level. Cases before both the first-instance
Labour Court and the appeal-level regional labour courts are heard by panels (Kammern)
made up of one professional judge and of two lay judges representing employers and
workers respectively. At the federal labour court (final instance), the panels (Senate) are
made up of three professional judges—one of them the presiding judge—and two lay judges
representing employers and workers.
The participation of lay judges in labour proceedings tends to be perceived positively as a

factor that strengthens the confidence of employers and workers in the administration of
justice and that contributes to social peace.b
a Lay judges are called “social judges” at tribunal level, and “social counsellors” at court level. The Belgian Judicial
Code provides for certain cases where the professional judge can make the decision alone, without the assistance of
lay judges.
b See ILO European Labour Court Meeting of Judges, 10th meeting, Stockholm, 2002. Topic 1: Labour Court Lay
Judges. Available here.
Finally, a critical factor in maintaining judicial institutions’ independence and efficiency is the source
and reliability of funding. Most often among the countries surveyed, financial resources for judicial
institutions are provided by the state and are stable and predictable.136 In some countries, provisions are
made for the budget to be transferable within the court system,137 which may allow for some flexibility
in how funds are managed. Still, some countries report that their judicial institutions are not financially
independent and do not have a separate budget.138 Even when funding is predictable and reliable, the
amount of funding may be questioned.139 This has consequences for both the total number of judges
available and their wages, which if insufficient may not serve to attract and retain the best talent,
hindering the efficiency and professionalism of the judicial system for labour dispute resolution.
Quasi-judicial institutions
For this report, we define quasi-judicial institutions as those institutions that

fall outside the scope of the judiciary and that have an adjudicative function—
specifically, those institutions that render final or near-final outcomes with limited
scope for review or appeal. If an institution has adjudicatory authority but its
decisions are readily subject to appeal at the will of a party, we do not include it
among quasi-judicial institutions but among non-judicial institutions.
Quasi-judicial institutions that adjudicate on labour disputes serve to reduce the volume of proceedings
instituted in labour courts or ordinary courts, while granting aggrieved parties access to swift remedy with
binding and legally enforceable outcomes. Several quasi-judicial institutions in the countries surveyed
take the form of public arbitration bodies, which are equipped with functional equivalence to courts of
first instance for individual disputes. Ranging from commissions,140 boards141 and councils,142 to courts143
and tribunals,144 the quasi-judicial bodies have various names and appear in a range of institutional
formats. However, not all arbitration/adjudicative bodies have the same authority. For example, both
Lebanon and Viet Nam have a Labour Arbitration Council, but while in Lebanon its decisions are final
and authoritative, in Viet Nam its decisions are not legally binding. Arbitration bodies play very different
roles in the various jurisdictions.
Ireland’s Workplace Relations Commission (WRC) performs a wide range of functions including,
adjudication in employment rights disputes (falling under the scope of the Employment Act) at the first
instance, besides conciliation in collective interest disputes. The Labour Court of Ireland is an industrial
appellate tribunal for employment rights disputes, that renders definitive decisions appealable in courts
of law on very restricted grounds. In addition, the Irish Labour Court hears collective labour disputes,
which remain unresolved through conciliation and provides non-binding settlement recommendations.
136 Examples are Sweden, Germany, Republic of Korea, Viet Nam, Brazil, Kenya, Argentina, Chile, Colombia, Panama and Mexico.
137 Such as Viet Nam.
138 For example, Burkina Faso, Niger, Togo and Senegal.
139 As for instance in Armenia, where the study highlights the inadequacy of the allotted budget.
140 For example, the Labour Relations Commission in the Republic of Korea, the Arbitration Commission in Lebanon, the Fair Work
Commission in Australia, and the CCMA in South Africa.
141 For example, labour relations boards in the United States and Canada.
142 For instance, the Labour Arbitration Council in Lebanon, and bargaining councils in South Africa.
143 Exemplified by the Labour Court in Ireland, the Industrial Court in Malaysia, and arbitration courts in Colombia and Panama.
144 Including industrial tribunals in India, the Arbitration Tribunal in Croatia and the Arbitral Tribunal in Chile.
In some cases, labour administration bodies may have exclusive authority to enforce certain laws, with
or without a complaint made by one of the parties affected by non-enforcement. An extreme example
of administrative agency control is that seen under the Occupational Safety and Health Act (OSH Act) in
the United States (US). The Occupational Health and Safety Administration (OSHA) in the US Department
of Labour does not have to receive a complaint to start the enforcement process, and it may inspect any
workplace on its own initiative (or of course after receiving a complaint), citing violations to employers.
If contested, OSHA’s orders are heard and adjudicated on by a staff administrative law judge of the
Occupational Safety and Health Review Commission (OSHRC). The National Labor Relations Board (NLRB),
established under the National Labor Relations Act (NLRA) has similar adjudicatory authority, but unlike
OSHA it may only act after a charge has been filed. Still, parties are highly dependent on the discretion
of these two bodies to issue charges and to prosecute violations, rather than themselves being able to
sue for violations of the law. Yet a party not satisfied with the administrative decision of these bodies may
appeal for it to be reviewed by the Administrative Review Board and, further, by the US Court of Appeals.
In some countries, arbitration may be the only route to labour dispute resolution. In Canada for example,
for unionized employees, all disputes arising from statute or from the interpretation of the collective
agreement that are not resolved by the parties themselves go to arbitration by an independent arbitrator
agreed on by the parties to the dispute. Failing agreement, the Minister of Labour appoints the arbitrator
from a roster of arbitrators that it maintains, and the Superior Court has limited scope for reviewing the
arbitrator’s decision.
In other countries, the parties may have a choice over whether to refer their dispute to arbitration. In
Bangladesh for example, if conciliation proceedings fail, the Conciliator will try to persuade the parties
to agree to refer the dispute to an arbitrator, and the parties may (or may not) agree to make such a
referral.145 The award of the arbitrator is binding for two years, and no appeal lies against it. The study on
Bangladesh reports that this discourages the parties from making a reference to an arbitrator, preferring
to approach the Labour Court instead.
Arbitration may be conducted either by a tripartite panel146 (of neutral chair, and union and management
nominees) or by a single arbitrator.147 In the United States, too, quite a few employers have, as a condition
of employment, required their employees to agree not to sue for violation of the various statutes
that regulate the workplace but will, instead, arbitrate their claims individually. Courts have generally
enforced these agreements even though they prevent employees from participating in class actions or
collective actions.
The arbitrator’s qualifications vary by country. In Ireland for example, adjudication officers in the WRC
are not required to have any legal training or qualification; some are civil servants, but the majority of
these officers are recruited through an open competition organized by the Public Appointments Service.
In some countries, there is no minimum educational or professional qualification for labour arbitrators.148
145 Section 210(10) and 210(12) of the Bangladesh Labour Act, 2006.
146 That is, giving equal voice to workers, employers and governments.
147 In Canada for example, tripartite boards of arbitration are rare in grievance arbitration, though much more common in interest
arbitration.
148 Most arbitrators in Canada, for example, are lawyers who have acted as representatives of employers or unions in labour law
disputes. In Bangladesh, the law does not clarify the arbitrator’s necessary qualifications.
X Box 5. Government referrals for adjudication
Government authorities in Malaysia are heavily involved in labour dispute resolution.

Adjudication of labour disputes is primarily performed by quasi-judicial institutions.
The Industrial Court in Malaysia is an arbitration institution consisting of a president and

chairpersons appointed by the Yang di-Pertuan Agong (head of state) as well as a panel of
persons representing employers and a panel of persons representing workers, all of whom
are appointed by the minister. Until recently in Malaysia, disputes under the Industrial
Relations Act were dealt with first under the auspices of the Director-General for Industrial
Relations (DGIR), where they are conciliated within the ministry and then, if conciliation failed,
referred to the minister for a decision (in case of recognition disputes) or for him/her to
determine whether the dispute should be referred to the Industrial Court for adjudication.
The minister used to have discretion (see just below) on whether to refer the dispute to the
Industrial Court of his/her own motion or after a joint request by the parties. The minister
was also given the power to first attempt further conciliation.
After the Industrial Relations (Amendment) Act, 2020, which came into force on 1 January 2021,
the DGIR was empowered to directly refer complaints relating to the protection of rights
of workers and employers, if he/she thinks fit, to the Industrial Court. With respect to
representations of dismissals, the DGIR is required to refer the matter to the Industrial
Court. This amendment was intended to expedite the resolution process and to remove
administrative discretionary authority, addressing concerns raised by the ILO on ministerial
discretion in respect of referrals of interest disputes. Indeed, government discretion in
referring cases to the Industrial Court for adjudication was a significant roadblock in access
to labour justice for parties, leading to this reform.
Quasi-judicial institutions are often tripartite industrial tribunals, such as the Labour Arbitration
Council and Arbitration Commissions in Lebanon, the Labour Court in Ireland and the Labour Relations
Commission in the Republic of Korea, but can sometimes be established with the appointment of a judge,
as with labour courts and industrial tribunals in India.
Findings on the financial independence of quasi-judicial institutions are more mixed than for judicial
institutions. In some reviewed countries they have regular and predictable funding provided by the
state,149 but not all.150 Arbitrators in general are paid for each case to which they are appointed, usually
at the rate stipulated by the arbitrator and accepted by the parties to the arbitration. Labour boards
in the United States and Canada have their own budget and are financially independent, per the
country studies.
149 As with the Labour Court and the Workplace Relations Commission (WRC) in Ireland and the Labour Relations Commission in
the Republic of Korea.
150 In the Lebanon country study, it is reported that “The Lebanese labor institutions do not operate with complete financial
independence. The budget for these institutions is determined and fully paid for by the government, and the funds allocated to them
may be subject to restrictions or limitations”.
Alternative dispute resolution:

Non-judicial institutions and labour administration
For this report, we define non-judicial institutions to be bodies operating outside

the purview of the judiciary; and designed to provide a less adversarial and
more cooperative approach to resolving labour disputes, with an emphasis
on consensus-based solutions. Such institutions are not directly involved in
interpreting laws.
In this subsection, we address mechanisms for labour dispute prevention and resolution other than those
that apply adjudicatory means. In this sense, ‘alternative dispute resolution’ (ADR) refers to mechanisms
such as mediation, conciliation, and arbitration for the resolution of labour disputes. Contrary to the
previous section, which analyses binding arbitration as a quasi-judicial procedure for dispute resolution,
the present section examines “advisory” or non-binding arbitration, that is, arbitration that does not
result in a binding and enforceable arbitral award, and that comes into effect only if the disputing parties
accept it.
Most non-judicial mechanisms for labour dispute resolution in the systems analysed are embedded in
the national labour administration system,151 except for those under the parliament or president, such
as the ombuds office or commission for anti-discrimination/human rights cases (discussed below in
Other institutional arrangements). Some are embedded or subordinated to ministries or departments
in charge of labour, social affairs or employment,152 whereas others are autonomous governmental
agencies.153 We do not include in-court mediation here as it has been addressed under the subsection
Judicial institutions. And because judicial institutions most often depend on the Ministry of Justice on the
one hand, and non-judicial institutions tend to be embedded in labour administration systems on the
other, coordination among them is required to ensure effective access to labour justice.
In many countries, labour dispute resolution functions are carried out by specialized institutions
independent from governmental ministries and departments by law, but in practice they are not
completely autonomous from government authority. In some countries, the Minister of Labour appoints
the bodies’ members. In India for instance, conciliation officers provided for under the Industrial Disputes
Act (Section 4) are directly appointed by the government (for certain industries under the authority of
the central government, and in all other cases the state government).154 In Burkina Faso for example,
arbitration proceedings are held before an Arbitration Board convened by the Labour Minister, and are
compulsory for collective disputes after conciliation has proven totally or partly unsuccessful.155
151 The term “labour administration” encompasses all public bodies responsible or engaged in administration activities in the field
of national labour policies which include ministerial departments or public agencies. Parastatal and regional or local agencies or
any other form of decentralized administration are also under the scope of labour administrative bodies. See art. 1 of the Labour
Administration Convention, 1978 (No. 150) and the Labour Administration Recommendation, 1978 (No. 158).
152 For example, Belgium, Ireland, Albania, North Macedonia, Bangladesh and Albania.
153 ILO and ITC, Labour Dispute Systems, p. 28; Labour Relations Commission in the Republic of Korea; Comissão de Mediação e
Arbitragem Laboral (COMAL) and Centros de Mediação e Arbitragem Laboral (CEMAL) in Mozambique; the Advisory, Conciliation and
Arbitration Service (ACAS) in the UK; the Federal Mediation and Conciliation Service (FMCS) in the United States; the CCMA in South
Africa; and the National Mediation Office (NMO) in Sweden.
154 As discussed above in India and Malaysia (until the recent reforms in both countries, which have yet to be implemented in India),
the government has authority is determining which cases are adjudicated. In Bangladesh too, the divisional offices of the Directorate
of Labour act as the conciliators.
155 And in Niger and Togo.
Some of the administrative bodies responsible for ADR are composed of an equal number of
representatives of employers and workers (Box 6).156 In other instances, they have a tripartite or
“tripartite-plus” constitution, that is, including representatives of government and, sometimes, civil
society. For instance in the Republic of Korea, the Labour Relations Commission that has a mediation and
arbitration function when labour dispute mediation is sought, forms a mediation committee consisting
of a trade union member, an employers’ organization member, and a public-interest member (three
in all) for general businesses; and a special mediation committee consisting of three public-interest
members for public services. Tripartite representation of government, employers and workers in some
dispute resolution bodies is an important factor in ensuring expertise in and understanding of the
concerns of disputing parties, which contributes to users’ trust in the system. (Box 7 presents examples
of institutional set-ups with diverse representation.)
X Box 6. The role of the social partners in conciliation of collective disputes—Belgium
In Belgium, joint committees (commissions paritaires) have been set up for all branches
and sectors, with the aim of bringing together employers and workers engaged in similar
activities. These committees are made up of equal numbers of representatives of employers’
and workers’ organizations. One of their main responsibilities is concluding collective
agreements; another is preventing and settling collective disputes. Most joint committees
and joint sub-committees have a conciliation board, which are usually chaired and vice-
chaired by a social conciliator belonging to the body of social conciliators established by the
Ministry of Labour, Employment and Social Dialogue. As of mid-2023, 100 joint committees
and 64 joint sub-committees had been established.
The objective of the conciliation board is to reach a consensual solution, possibly through
separate consultations with each party. Collective labour disputes or threats of such disputes
are referred to the chair of the conciliation board by one of the parties, or handled at the
initiative of the chair. In addition, in the event of industrial action, the joint (sub-) committees
are also responsible for determining and limiting the measures, services or facilities to
be provided, with a view to meeting certain vital needs, carrying out certain urgent work
on machinery or equipment, or performing certain tasks required by force majeure or
unforeseen necessity.
Source: Belgian SPF/Ministry of Labour, Employment and Social Dialogue. https://emploi.belgique.be/fr/themes/
concertation-sociale.
156 For instance, the Labour Arbitration Council in Viet Nam, which comprises at least five members nominated by the Department
of Labour, Invalids and Social Affairs (including the Chair and the Secretary of the Council); five members nominated by the trade
union at provincial level; and five members nominated by the representative organizations of the employers at provincial level.
In Brazil, the “commissions of previous conciliation” are established by companies and trade unions, with an equal number of
representatives from employees and employers, with the aim of trying to conciliate individual labour disputes.
Often, non-judicial means of labour dispute resolution can also be established by social partners within
the scope of their mutually negotiated collective agreements. In Germany for instance, social partners
rely on voluntary conciliation and arbitration procedures (Schlichtungsabkommen) for labour disputes
over the conclusion of collective agreements. These procedures have been established by collective
agreements, most of which do not establish permanent conciliation and arbitration bodies, but only
provide rules for establishing ad hoc conciliation and arbitration procedures, most of which are bipartite
institutions, funded by the social partners in the respective sector.
In Senegal, Article 71 of the National Inter-occupational Collective Agreement of 27 May 1982 established
the Joint Commission of Interpretation and Conciliation. It has two tenured members, and two substitutes
from each trade-union signatory to the collective agreement and an equal number of tenured and
substitute members of employers’ organizations that are signatory to that agreement. The mission
of this institution is to seek an amicable solution to disputes arising from the interpretation or non-
application of the collective agreement.
X Box 7. Bipartite dispute resolution set-up
Germany
A specific institution exists for labour disputes between works councils (Betriebsräte) and
employers. According to the Works Constitution Act of 1972, a works council is to be elected
by the workers in each plant with at least five workers. This body, representing the workforce
at the plant, has various participation rights vis-à-vis the employer. Beside an information and
consultation right in cases of dismissals and a veto right before the recruitment of employees,
the works council has important codetermination rights in social and economic matters. If
the works council has a codetermination right and an agreement between the council and
the employer cannot be reached, each side is entitled to call for an arbitration committee
(Einigungsstelle). For all other issues for which the works council has no codetermination
right, the arbitration committee may intervene if both sides agree on a conciliation and
arbitration procedure.
The arbitration committee is rarely a permanent institution but rather an ad hoc body
established by the works council and employer when it has been called for by one or both
sides. It is composed of an equal number of representatives of each party—the number
depends on the complexity of the labour dispute at hand—and a neutral chair whom the
parties have to agree on. If the parties do not agree on the chair, either side may ask the
labour court to appoint that person.
X Box 7 (cont.)
South Africa
The Labour Relations Act (LRA) provides for the establishment of two types of bargaining
councils: those in the public service (sections 35–38 of the LRA) and those in the private
sector (established by agreement between employers’ and workers’ organizations, and
registered by the Department of Employment and Labour by sector and area). These councils
have a dual function: to serve as a forum for bargaining, and to resolve rights disputes in
their jurisdictions (if they are accredited by the Commission for Conciliation, Mediation and
Arbitration (CCMA). Collective agreements may be extended to non-parties.
Compliance with these agreements is monitored and enforced by designated agents of the
council and, ultimately, arbitration conducted by the council. Councils are typically financed
through levies based on collective agreements reached in the council. Bargaining councils
are an integral part of the labour dispute resolution system and are given jurisdiction to
conciliate and arbitrate the most common types of disputes that are envisaged by legislation
and that arise in their jurisdiction. Where legislation gives jurisdiction to councils and the
CCMA to hear disputes, the LRA specifies that primary jurisdiction belongs to the councils.
A big issue in practice is the “demarcation disputes” in terms of section 62 of the LRA (disputes
about conflicting or overlapping areas of competence between different bargaining councils).
These disputes may be settled between councils; if not, they are arbitrated by the CCMA. In
addition, if the CCMA considers the issue of “substantial importance”, part of this process
includes an invitation (published in the Government Gazette) to make written submissions,
present consideration of those submissions, and provide for consultation with the National
Economic Development and Labour Council before the award is handed down (which may
also be published in the Government Gazette).
Similarly in Sweden, dispute resolution by conciliation and mediation can either be provided by the
National Mediation Office (NMO) in the statutory system, or in a system laid down in a collective
agreement called “negotiation procedure agreement (NPA)” entered into by the social partners. Such
an agreement can be registered at the NMO, provided that it contains time schedules for negotiations,
time frameworks and rules for appointment of a mediator, rules concerning the powers of the mediator,
and rules concerning notice of termination of the agreement. When an NPA has been registered, the
NMO may not appoint a mediator without the consent of the parties. In 2022, 14 NPAs were registered
at the NMO, providing negotiation procedures for 90 of the collective agreements in the Swedish labour
market (of the 650 in all), covering around 30 percent of employees.157 The vast majority of the NPAs
were concluded at the establishment of the NMO in 2000. Over the years, some of them have been
terminated without renewal and, nowadays, NPAs are more common for white-collar and academic trade
unions than for blue-collar trade unions. The NPAs registered in 2022 include one for manufacturing
industry (the Industrial Agreement, for blue-collar workers), six agreements between the trade union
for managers (Ledarna) and various employers’ associations in the private sector, and one agreement
that covers a large part of the municipal sector (although not the Swedish Municipal Workers’ Union,
Kommunal).158
157 NMO, 2023, p. 27, available (in Swedish).

158 A list (in Swedish) of the agreements is on this NMO web page.
ADR and labour inspection

Labour inspectorates are at the epicentre of enforcing labour laws, and have an important role in the
prevention and facilitation of resolution of disputes through information and advisory services, without
prejudice to the principle of confidentiality and impartiality. Therefore, Labour Inspection services are
called to perform such functions in complementarity and cooperation with judicial and non-judicial
institutions for labour dispute resolution. However, In various countries, there is a particularly strong
overlap of functions between non-judicial institutions and labour inspection systems. Often, it is not
just that the same institution performs law enforcement and at the same time conciliation/mediation
or arbitration functions, but the same officials. In some countries, labour inspectors may conduct or
participate in conciliation proceedings within their area of competence.159 This practice makes labour
inspectors a focal point for ADR, as conciliation and mediation mechanisms are often mandatory and must
be undertaken by disputing parties before they seek redress in labour courts. The Labour Inspectorate in
Chile, for example, exercises its functions through labour inspectors empowered to summon employers,
workers, union officials or any person to resolve matters submitted to it. Chile’s labour inspectors may
institute labour mediation processes to prevent the escalation of labour disputes.160 In Colombia, one of
the Labour Inspectorate’s main functions is the conciliation of individual and collective labour disputes.161
In Niger and Togo, labour inspectors may serve as informal mediators in labour disputes.
Such practices do not align with ILO conventions that establish that the primary duties of labour
inspectors should be labour law enforcement; information and advisory services; and reporting of
non-compliance.162 Conventions further recommend that labour inspectors should not be assigned
conciliation and arbitration functions.163 The ILO Committee of Experts on the Application of Conventions
and Recommendations, while observing that there are countries in which conciliation and mediation
are regarded as “a natural aspect of the function of labour inspectors”, stated that such functions may
negatively impact the efficacy of enforcement functions because of overburdening.164 This, in turn,
undermines the efficacy of inspectorates’ role in preventing labour disputes through enforcement.
Other institutional arrangements

In some jurisdictions, institutional arrangements are set up under the authority of the parliament, or
the president, and directly or indirectly play a role in labour dispute prevention and resolution. Such
institutional arrangements are most typically organized as ombuds office165 or bodies established to
defend and promote human rights, equality or non-discrimination.166 The level of involvement of such
institutions in labour disputes may vary. In Sweden for instance, in disputes concerning discrimination and
unfavourable treatment in connection with parental leave, legal support may be provided by the Equality
Ombudsman—a national authority assigned to promote equal opportunities, inform about and work
against discrimination, and represent individuals in discrimination cases. Besides proactive measures,
159 As in Burkina Faso where labour inspectors play a direct role in dispute resolution processes by being involved in, and in charge
of, conciliation proceedings (art. 320 of the Labour Code). In Senegal and Niger too, the Labour Code establishes the role, authority
and competences of labour inspectors and labour controllers as pertaining to conciliation proceedings during labour disputes.
160 Art. 29, Decreto con fuerza de ley No. 2 and art. 486 of the Labour Code.
161 Art. 3, Law No. 1.610.
162 Art. 3 of the Labour Inspection Convention, 1947 (No. 81).
163 Labour Inspection Convention, 1947 (No. 81), art. 3 (2); Labour Inspection (Agriculture) Convention, 1969 (No. 129), art. 6 (3);
Labour Inspection Recommendation, 1947 (No. 81), para. 8; 2022 ILO Guidelines on the general principles of labour inspection, para.
1.2.5 and para. 8.
164 See para. 72 of the ILO General Survey of the reports concerning the application of International Labour Standards on Labour
Inspection.
165 Including in Colombia, Serbia, Armenia, Togo, Senegal, Niger, Burkina Faso and Sweden.
166 Including in Albania, Armenia, Belgium, Bulgaria and Montenegro.
this authority offers support to individuals in discrimination cases, where it provides information services
and guidance, and has the competence to represent individuals in settlement negotiations and before the
court. In Serbia, the ombuds office issues legally non-binding recommendations, often in employment
discrimination disputes including those over age, motherhood (pregnancy), health conditions and
minorities. The Human Rights Defender (ombuds office) in Armenia does not deal with employment
rights for individual employers and employees at all, but rather focuses on regulatory gaps. In Belgium,
the Institute for Gender Equality can take legal action in disputes arising from the application of laws
aiming at guaranteeing gender equality and the well-being of workers.
In some cases, an ombuds office may be dedicated to a particular category of workers, as in Ireland,
where the Office of the Ombudsman is accessible only to members of the defence forces to carry out
investigations and make recommendations to the Minister of Defence, but this is not typical. In the
West African countries studied,167 the ombuds office typically acts as a facilitator in resolving conflicts
between the public administration and citizens, receiving complaints relating to the functioning of state
administrations, local authorities, public establishments and any other institution invested with a public
service mission. In Senegal, going beyond this typical role, the ombuds office has helped resolve disputes
with a labour or social security dimension, and regularly deals with conflicts between social partners or
labour disputes within the public administration and enterprises.
X Box 8. Labour dispute resolution by autonomous bodies
Brazil
In Brazil, the Labour Prosecutor’s Office is an autonomous body with a separate budget,
and is not part of the judicial, legislative or executive arms. It is specialized in labour law
and operates in coordination with the labour courts. The Office performs functions such
as bringing actions before labour courts for protecting collective interests in the context
of labour relations, intervening in cases in which there is a public interest, and monitoring
the right to strike in essential activities. But it is the Office’s role in out-of-court resolutions
of labour disputes as a mediator that makes it interesting. Requests for mediation in
collective disputes, for example, in the event of a strike or collective dismissal, can be made
electronically. This service is free of charge. In addition, with unlawful labour acts, such as
child labour, forced labour or non-compliance with occupational health and safety standards,
the “conduct adjustment agreement” can be signed by the employer via the intermediation
of the Office. The conduct adjustment agreement is an out-of-court procedure in which
offenders of collective or diffuse interests in the labour field undertake to bring their conduct
into line with the law, subject to the fines provided for in the agreement itself in the event of
non-compliance. In all these cases, the parties cannot freely choose the mediator.
To ensure that the whole country has access to its services, the Labour Prosecutor’s Office
has a national office, 24 regional offices, and some 100 municipal offices across the country.
As with Brazilian labour courts, all its staff have specialized knowledge and are selected
through public competition.
Source: Labour Prosecutor’s Office.
167 Burkina Faso, Niger, Senegal and Togo.

Conclusion
Several factors stand out in the functioning of judicial and non-judicial institutions. First, judicial
mechanisms and alternative methods of dispute resolution have differing and unique advantages
and disadvantages. On the one hand, the courts of law are vested with state authority to render final
resolution decisions and enforce their decisions through judicial law enforcement mechanisms. On the
other, the litigation process is adversarial, undermining cooperation and amicable settlement reached
by the parties themselves. Equally, judicial proceedings may be costly, lengthy and complex, ultimately
restricting access to justice for vulnerable groups of workers.
Pursuing an extra-judicial settlement—based on negotiation and consensus building—has the potential
to give parties greater control than at present over the dispute settlement process. Indeed, these
mechanisms are better suited to resolving collective interest disputes, as well as to some types of rights-
based disputes, where the parties seek to preserve the employment relationship. Alternative disputes
resolution procedures are less bureaucratic and formal, quicker, and more affordable. On the downside,
ADR mechanisms are reliant on the parties’ willingness to follow through with the settlement agreement,
leading to low enforcement rates. There is a limited margin of negotiation and compromise for rights-
based disputes, and a mandatory conciliation and mediation process may unnecessarily delay access to
justice for rights violations.
Yet what is clear from the analysis of judicial and non-judicial institutions is that neither type is better
on its own but the two complement one another rather than duplicate proceedings. Depending on
how they are set up in different jurisdictions, this degree of complementarity is achieved to different
extents. Ideally, ADR mechanisms serve to reduce the courts’ caseload. Equally, courts must recognize
and delineate between cases in which conciliation or mediation of the dispute is possible, and refer
such cases to the appropriate forums when adversarial litigation is unnecessary. In this way, disputing
parties will be able to benefit from the advantages of one or both systems, depending on their needs at a
given time. Another important point in ensuring complementarity between institutions is to balance the
provision of services to individual and collective disputes. As is well understood, with the individualization
of work relations in recent times, the number of individual labour disputes around the world has been
rising.168 It is therefore important to strengthen the capacity of institutions to respond to this imbalance
between individual and collective disputes.
As with legal and regulatory frameworks and the definitions of individual, collective, rights, and interest
disputes, the definition of adjudication, negotiation, conciliation, mediation and arbitration may vary.
What is mediation to one may be conciliation to another. Again, there is no one right or wrong way to
define these mechanisms at the international level. What matters is that these institutional pathways are
clearly defined in a given jurisdiction, and that it is clear to the users of the labour dispute prevention and
resolution system which institutional pathway is best for them in the circumstances. In some situations,
there may be multiple avenues for resolution, as in discrimination- or harassment-related disputes for
which redress can be sought in multiple and sometime overlapping instances. It is important that these
overlapping jurisdictions be clarified in law and practice, and that parties are made aware of the most
appropriate institutional pathway to pursue. And, as seen in the examples above where a reference by
the government is required for accessing a particular labour dispute resolution mechanism, it is best
that such discretionary power be limited. As far as possible, parties should have free choice for accessing
different institutions and the mechanisms they offer.
168 GB.344/INS/3/1.
As for judicial mechanisms, specialized labour courts in Brazil for example (see Box 3) are desirable
given the level of expertise and professionalism that they introduce to the dispute prevention and
resolution system. Still, as our analysis shows, ordinary civil courts are also often required to step in
and play a complementary role. Similarly, with institutions offering ADR mechanisms, a specialization in
labour matters is desirable. Whether these services are provided by the Ministry of Labour or through
autonomous agencies is unimportant. What matters is that they are delivered in an efficient, speedy, fair,
impartial, transparent and accessible manner that is responsive to the needs of the disputing parties, by
independent and neutral professionals.
Chapter 4.
37
Procedural aspects
of dispute prevention
and resolution
The discussion in the previous sections demonstrates that effective access to labour justice requires
clarity on the legal frameworks that define and categorize labour disputes, and on institutions’
jurisdictional competence over the many different types of disputes that may arise. The next important
step in accessing labour justice is the procedural requirements that parties may need to meet. Access to
labour justice is understood to comprise not only formal access to labour dispute resolution institutions,
but also access to procedural fairness during the dispute resolution process.169 This section provides an
overview of such procedural aspects in judicial and non-judicial institutions.
Procedural rules are a critical factor in determining (a) the accessibility of labour dispute resolution
institutions (through considerations such as setting legal fees, possibility of legal aid, allowing for the
participation of representative organizations, and determining the criteria for admissibility); (b) the speed
of the process (through simplified and streamlined procedures, timelines set, and the efficient processing
of applications); and (c) the fairness of the dispute resolution process (through clear rules of evidence
and burden of proof, the possibility of appeal, and enforcement of final outcomes, whether judgments,
awards or settlement agreements).
Different institutions—judicial and non-judicial—have evolved varying procedural rules for resolving
labour disputes. For judicial institutions where labour disputes are handled by ordinary courts, these
may be the general rules of civil procedure. That aside, from the perspective of access to labour justice,
what matters is that these procedural rules and requirements are not so burdensome to parties that
they create barriers to labour justice and that overall that they are tailored to facilitate access to justice.
The Viet Nam country study provides a pictorial representation of what procedural steps may be required
in individual (Figure 1) and collective (Figure 2) labour disputes.
169 ILO, Access to labour justice: Judicial institutions and procedures in selected South American countries.
X Figure 1. Processes for resolving individual labour disputes in the Vietnamese Labour Code, 2019
This step
Either party to labour dispute submits request to local labour authority
is optional
Certain disputes
may proceed Dispute is forwarded/submitted
directly to to Labour Mediator
arbitration or
to the court
Mediation successful. Mediation unsuccessful/

Parties comply with does not take place/party fails to comply
mediated settlement with mediated settlement
OR
Dispute submitted to Labour Arbitration Dispute resolved

Council where both parties agree by the People’s Court
Arbitration Panel not

Dispute arbitrated
established/arbitration does not
by Labour Arbitration
take place/party fails to comply
Panel
with arbitrated decision
X 4. Procedural aspects of dispute prevention and resolution 39
X Figure 2. Processes for resolving individual labour disputes in the Vietnamese Labour Code, 2019
This step
Either party to labour dispute submits request to local labour authority
is optional
This step
Dispute submitted to Labour Mediator
is compulsory
Dispute successfully mediated. Mediation unsuccessful / does not take place /

Parties comply with party fails to comply with
mediated settlement mediated settlement
Rights-based Interest-based
collective dispute collective dispute
OR OR
Dispute submitted Workplace Representative

to Labour Arbitration Council Organization may
if parties agree initiate strike procedures
Dispute resolved
by the People’s
Court
Dispute arbitrated
by Labour Arbitration Panel not
Arbitration Panel established/arbitration
does not take place/
party fails to comply
Rights-based with arbitrated decision Interest-based
collective dispute collective dispute
Voluntarism in resolving labour disputes:

Compulsory and voluntary procedures
A key factor in the effectiveness of labour dispute prevention and resolution is, as seen, the voluntary
feature of non-judicial methods. The principle of voluntarism is set out in the Voluntary Conciliation
and Arbitration Recommendation, 1951 (No. 92), which provides that “voluntary conciliation machinery,
appropriate to national conditions, should be made available to assist in the prevention and settlement
of industrial disputes between employers and workers”.170 Further, the Examination of Grievances
Recommendation, 1967 (No. 130), provides that “any worker who, acting individually or jointly with other
workers, considers that he has grounds for a grievance should have the right (a) to submit such grievance
without suffering any prejudice whatsoever as a result; and (b) to have such grievance examined pursuant
to an appropriate procedure”.171 Voluntarism means that disputing parties have a free choice to select
the method of settlement of their dispute and maintain full control over the process and its outcome.172
It is necessary to distinguish between compulsory arbitration,173 that is, arbitration that parties are
subject to against their will and are ultimately bound by the arbitral award, and compulsory conciliation,
to which parties are obliged to be subjected by law but are not ultimately bound to accept the outcome.
While both systems conflict with the principle of voluntarism that calls for parties to be free to decide on
the methods by which they choose to settle their disputes, the extent to which they do so is different. In
the former, both the process and outcome are compulsorily imposed on the parties, but in the latter only
the process is mandatory.174 Generally, compulsory conciliation is required by law where the negotiating
parties have exhausted their own efforts to reach an agreement and are in a stalemate. The purpose of
such a legal requirement is to offer a cooling-off period, during which the parties can have a “last chance”
to forge an amicable settlement.
Regarding international labour standards, conciliation and mediation mechanisms are undoubtedly
likely to facilitate bargaining, and with mandatory conciliation, it is desirable to entrust the decision
to open the conciliation procedure in collective disputes to a body independent of the parties to the
dispute.175 In addition, compulsory conciliation and mediation can be used to ensure that the parties
to a labour dispute come together at the negotiating table. Compulsion may therefore be preferred
where the labour relations system is not well developed and/or in cases where the parties are not used
to negotiating with each other.176
170 Para. 1
171 Art. 2.
173 Compulsory arbitration in the case that the parties have not reached agreement is generally contrary to the principles of collec-
tive bargaining. In the Committee’s opinion, compulsory arbitration is only acceptable in certain specific circumstances, namely: (a)
in essential services in the strict sense of the term, that is those the interruption of which would endanger the life, personal safety
or health of the whole or part of the population; (b) in the case of disputes in the public service involving public servants engaged in
the administration of the State; (c) when, after protracted and fruitless negotiations, it becomes obvious that the deadlock will not
be broken without some initiative by the authorities; or (d) in the event of an acute crisis. However, voluntary arbitration accepted by
both parties is always legitimate; see para. 247, 2012 General Survey.
174 “The European Committee of Social Rights (ECSR) is critical of compulsory processes of conciliation that take place prior to the
exhaustion of proper means of social dialogue inter-partes. Under the ESC, there is a role for voluntary arbitration, even though
negotiation-based approaches are much more frequently used in such disputes. The rationale for this preference for direct negoti-
ation or conciliation is obvious: unlike arbitration, these methods respect the autonomy of the social partners. The ECSR objects to
the mandatory character of arbitration but not of conciliation or mediation” [emphasis added]. In both cases, there is an impact on
the recourse to strike action. Whereas mandatory arbitration tends to exclude recourse to strike, mandatory conciliation amounts
to a kind of cooling-off period, suspending the ability to have recourse to strike action.” Source: Aristea Koukiadaki, “Individual and
collective dispute resolution systems – A comparative review” (ILO, 2020), pp. 21–23.
175 ILO Freedom of Association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body
of the ILO Geneva, International Labour Office, Fifth (revised) edition, 2006, para. 789.
176 ILO, Labour legislation guidelines, Chapter IV. Substantive provisions of labour legislation: Settlement of collective labour
disputes.
Yet compulsory arbitration processes that are binding on the disputing parties on referral by the
government, or at the unilateral will of either party, are still practised in quite a few countries.177 In other
cases, arbitration may become de facto compulsory as a precondition to approach the judicial system.
This is uniquely the case in China, where arbitration is a compulsory legal procedure before litigation.
The Chinese Labour Dispute Arbitration Commission is authorized by the state to arbitrate and handle
labour dispute cases in accordance with the law. After arbitration, if one of the parties refuses to accept
the arbitration award and submits it to the court, the court is bound to accept it (legal grounds are not
necessary in most cases). The arbitration procedure is compulsory to be able to access the court system,
but the arbitral award is non-binding.178
Often, compulsory conciliation procedures are instituted for collective disputes but not for individual
disputes,179 or vice versa.180 In some countries, compulsory conciliation applies to both individual and
collective disputes.181 In Chile for example, the Labour Inspectorate is empowered to conduct mandatory
mediation in the particular case of the violation of fundamental rights in the workplace, and the Labour
Inspectorate is obliged to report the facts to the competent court and take part in the labour trial.
Before submitting the complaint, however, the Labour Inspectorate must conduct a mediation process
to exhaust the possibilities of making amends for the violations.182
In some instances, parties are required to show that they have exhausted the possibilities of conciliation
and/or mediation to access adjudicatory bodies, making the process of conciliation a compulsory
procedure de facto (Box 9).183 Serbia, for instance, has mandatory Workplace Mediation184 in which
allegations of mobbing185 against co-employees or mid-level management have to be first submitted to
workplace mediation. The request can be made by the employee, trade union, workers’ representatives,
or members of the committee on occupational safety and health, with the consent of the employee
who cannot be exposed to any disciplinary measures or dismissal. In such cases, the employee must
exhaust the possibilities of amicable resolution through workplace mediation before seeking redress in
court, except where the charges are against the employer or against a natural person responsible for
177 India for example. however, the discretionary power of the Government to refer disputes to compulsory adjudication is due to be
removed by the Industrial Relations Code, 2020. Also Burkina Faso and Niger (in the case of collective disputes after conciliation have
proven totally or partially unsuccessful). In Panama, the arbitration will be mandatory for the employer in case—before or during a
strike—the workers requests to the Labour Directorate to submit the conflict to an arbitrator court. Moreover, the arbitration will be
mandatory in case the Labour Directorate orders it during a civil servant’s strike (art. 452 of the Labour Code). In Togo, for collective
labour dispute, when conciliation procedures have been unsuccessful, arbitration is not mandatory anymore as per the provisions
of Law No. 2021-012 of 18 June 2021 on the Labour Code. Art. 313 provides that parties to the dispute can opt to bring the dispute
before an arbitrator or arbitration board.
178 Regarding the effectiveness of the award, the award for labour disputes concerning labour remuneration, work-related injury
medical expenses, economic compensation or compensation not exceeding 12-months of the local monthly minimum wage standard
has a final effect. The arbitration award shall be final for the employer and only the employee can launch litigation. For such an award,
if the employer applies for revocation of the arbitration, specific grounds are needed. For other awards without final effect, each
party who is dissatisfied with the arbitration award can launch litigation. Labour Dispute Mediation and Arbitration Law of the PRC,
art. 47 and art. 48.
179 For example, Lebanon, Malaysia, Armenia and, for collective-interest disputes, Albania.
180 Germany for instance, where conciliation is compulsory for individual disputes.
181 As in India, Burkina Faso, Niger, Argentina and South Africa.
182 Art. 468 of the Labour Code. The Labour Inspection Convention, 1947 (No. 81), art. 3 provides that “1. The functions of the system
of labour inspection shall be: (a) to secure the enforcement of the legal provisions relating to conditions of work and the protection of
workers while engaged in their work, such as provisions relating to hours, wages, safety, health and welfare, the employment of children
and young persons, and other connected matters, in so far as such provisions are enforceable by labour inspectors; (b) to supply
technical information and advice to employers and workers concerning the most effective means of complying with the legal provisions;
(c) to bring to the notice of the competent authority defects or abuses not specifically covered by existing legal provisions. 2. Any
further duties which may be entrusted to labour inspectors shall not be such as to interfere with the effective discharge of their primary
duties or to prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers
and workers” [emphasis added].
183 For example in Lebanon, with collective disputes, if the parties are unable to reach a settlement through the Conciliation Board,
the dispute can then be referred to the quasi-judicial Labour Arbitration Council for adjudication. However, before the parties can
proceed, they must provide evidence to the Council that they have exhausted all possibilities for conciliation at the Ministry of Labour.
This is also the case in Morocco with individual disputes.
184 Regulated by the Law on Prevention of Harassment at Workplace of 2010.
185 A form of violence at work.
the enterprise.186 If mediation fails or the plaintiff is dissatisfied with the outcome, it is possible to initiate
a court procedure.187 In Brazil collective interest disputes can only be filed if both the disputing union(s)
and the employer agree. If there is no agreement, the Labour Court considers the case non-admissible. In
Mozambique, the Labour Code provides that access to justice is dependent on prior mediation, although
the country’s Constitutional Council has, in various lawsuits, declared this provision unconstitutional.
X Box 9. The interactions between judicial and non-judicial dispute resolution in Mexico
In Mexico, after the 2017 Constitutional reform and the 2019 reform to the Federal Labour
Act, the labour justice system changed. Before the reforms, labour disputes were handled
by conciliation and arbitration labour boards with a tripartite composition operating at
federal and state levels according to their jurisdiction, and were part of the executive branch.
Tripartite boards conducted conciliatory and arbitral functions, and the arbitral awards
issued could be subject to review by a second-instance tribunal depending on the judicial
branch. This change in the system was for numerous reasons, some examined by the ILO
supervisory bodies, including the lack of impartiality of the federal and local conciliation and
arbitration boards and the excessive length of their proceedings.a
The new labour justice system created specialized federal or local labour tribunals—with
jurisdiction determined by law—forming part of the judicial branch. Before a judicial process
is initiated, mandatory conciliation must be exhausted. By including mandatory conciliation,
legislators sought to facilitate access to justice more expediently and to find solutions to
disputes grounded in dialogue.b
The Federal Center for Labor Conciliation and Registration (Centro Federal de Conciliación y
Registro Laboral, CFCRL) has the mandate to conduct mandatory conciliation under federal
jurisdiction related to certain industries such as oil, textiles, energy, mining, automotive and
chemical, among others while the state centres cover all other industries.c The CFCRL has a
specialized division for the conciliation of collective disputes, and the labour tribunals may
refer to this division the conciliation of collective matters even when a jurisdictional procedure
is ongoing. The requirement to exhaust conciliation to access the tribunals has the following
exceptions: discrimination in employment and occupation, sexual violence and harassment at
work; designation of workers’ beneficiaries; social security benefits; fundamental principles
and rights at work and public liberties including freedom of association, collective bargaining,
forced labour and child labour; disputes between trade unions for bargaining rights; and
challenges to trade unions’ bylaws. Exceptions apply, provided there is preliminary evidence
offered by the claimant allowing the tribunal to reasonably presume that these rights are
being infringed (art. 685 ter FLA). The parties may always conciliate the matter before
escalating it to the courts.
186 Per art. 13.

187 In Argentina too, mediation is a mandatory procedure given that prior to initiating any judicial process, a mediation procedure
must be carried out (art. 1, Law No. 26.589).
Conciliation and suspension of statutory limitation. The presentation of a request for

conciliation will suspend the statutory limitation to file a complaint before the tribunal. The
suspension will cease once the certificate of “no conciliation” has been issued. The suspension
applies irrespective of whether the tribunal or conciliation centre has no competence over
the issue. Also, the statutory limitation is suspended even if a claim is submitted before the
tribunal without mandatory conciliation having been exhausted (and no exception applies).
The tribunal will then submit the matter to the competent labour conciliation centre.
a See, for example, Case No. 2694, para. 34, in 2018. ILO. 387th Report of the Committee on Freedom of Association.
GB.334/INS/10.
b Molina Martínez, Sergio. 2022. “Los derechos sociales en el contexto del nuevo sistema de justicia laboral”, in
México in Anuario de Derecho constitutional Latinoamericano, No. 28.
c Among other functions including the registration of trade unions and collective bargaining agreements.
Processing applications for dispute resolution:

Accessibility and speed
Procedural rules and regulations are key factors in ensuring that dispute resolution mechanisms are easy
to access for parties as well as quick in delivering access to labour justice, as seen above. Factors such as
admissibility of applications, how they are processed, at what cost (fees), with how much delay (timelines)
and whether procedural requirements exist to exhaust grievance handling at enterprise level before a
party approaches dispute resolution institutions—all greatly affect the ease with which parties can seek
access to labour justice, and the time that takes. It is important that the procedural rules and practices
around dispute prevention and resolution are streamlined.
Admissibility of claims
On admissibility of claims, five criteria are generally seen in countries: (a) prior attempts at amicable
dispute resolution; (b) submission of claims in writing; (c) respect of the time limit for submission of
claims; (d) adherence to a specified format for claims; and (e) representation by a recognized trade union.
Conciliation, mediation or other amicable attempts at dispute resolution are often mandatory before
the dispute can be brought before a court. In such cases, criteria for admissibility (Figure 3) may take the
form of a report or other written confirmation from the body performing the mandatory procedure that
those remedies have been exhausted.188 Another requirement is that the claim has been submitted in the
prescribed time limit.189 In some cases, different time limits are prescribed for different types of cases.
For example, in Armenia, the general statutory limitation for individual disputes to be brought to court
is three years, though there is no statutory limitation for unpaid salary claims—but there is a statutory
limitation of two months for unlawful termination claims and claims against disciplinary sanctions and
unilateral change of essential terms of employment. In Mexico, the general statutory limitation to submit
a claim is one year, however for unlawful termination claims it is two months, and to claim justified
termination (on the employer’s or worker’s side) it is one month. Claims for severance owing to work
188 In Ireland, the Labour Court will not investigate a “trade dispute” unless it receives a report from the WRC stating that it is
satisfied that no further efforts on its part will advance the resolution of the dispute. This is also the case in Lebanon, India, Burkina
Faso, China, Argentina and Mexico
189 As in Armenia, Lebanon, Ireland, Mozambique, Chile and Mexico.
hazards, claims by beneficiaries for death originating in a work hazard, and claims to enforce a judgment
from a tribunal have a statutory limitation for submitting a claim of two years.
Procedural rules may require that the application be submitted in a specified form (most often written
form)190 or that proper notice be given to the other party.191 With collective disputes, it is often necessary
that the application be submitted by a legally recognized trade union or an authorized representative of
the workers,192 and that the union has an active registration.193
Restrictions may be imposed to ensure that parties do not bring the case to two separate forums at
the same time.194 Procedures adopted by courts hearing labour cases may follow specific rules enacted
for labour disputes, or general procedural rules, applicable to all cases falling under the jurisdiction
of ordinary courts.195 Some countries have special procedures intended to ensure the application of
expertise in complex employment and labour legislation, particularly in first instance.196 Other countries
adopt general codes of civil procedures with adaptations to labour cases. In Serbia, for instance, the Civil
Procedure Act has a section in which specific procedures are regulated, including those for “procedure
in litigation from labour relations” (that is, procedure in litigation from individual labour disputes) and
“procedure in litigation regarding collective agreements”.
X Figure 3. Criteria for the admissibility of claims
Prior attempt at amicable dispute resolution

Respecting the time limit for submission of claims
Submitting claimes in writing
Adhering to a specific format for claims
Representation by a recognized union
190 In Brazil, with collective disputes, the request before the Labour Court must be in writing (art. 856 of the Labour Code), but with
individual disputes, the complaint to the labour courts can be in writing or verbal (art. 840). See also Lebanon, Bangladesh, Sweden
and Kenya where proper form is necessary for admissibility. In Ireland, a complaint should be presented to the WRC by “giving notice
thereof in writing”. In Montenegro, art. 53 of the Law on Peaceful Resolution of Labour Disputes stipulates that the procedure for
peaceful resolution of a labour dispute is initiated by submitting a proposal for peaceful resolution of a labour dispute to the Agency
for Peaceful Resolution of Labour Disputes, in writing directly, by mail or email.
191 As in Lebanon for example.
192 Including in Lebanon, Viet Nam and Canada. For instance, in Canada unions have rights of carriage of individual disputes
(grievances). There is no general common practice. Each union will have its own process for determining which grievances proceed
to arbitration. Some unions take forward every grievance by an individual employee. Most have some filtering mechanism to decide
whether the grievance is to proceed to arbitration. For example, some unions will require that any potential grievance be submitted
to a union meeting to be decided on by the membership as to whether it will proceed to arbitration at the expense of the union;
some unions will take legal advise on the likely prospects of success of the grievance before proceeding to arbitration. In some
circumstances, unionized workers have a remedy if a union fails or refuses to pursue a grievance on their behalf. They may claim
that the union’s duty of fair representation to them has been violated and they may lodge a claim with the labour relations board
that has jurisdiction.
193 With collective disputes for mediation by the Ministry of Labour and Employment in Brazil.
194 In Viet Nam for example, where a case is referred for arbitration, the parties cannot simultaneously request resolution of the
issue by the court.
195 See ILO, Access to labour justice: Judicial institutions and procedures in selected South American countries, 2021.
196 Colombia for instance.
Case management systems

To process applications once procedural requirements have been met, a number of countries have digital
case management (DCM) systems in judicial, quasi-judicial and non-judicial institutions.197 The functions
of such DCM systems vary. In Armenia for instance, the DCM system in the judicial sphere is limited to
automatically assigning cases and acting as an information platform for providing public information
about the case (such as hearing dates and court rulings). In some countries, paper-based filing systems
and physical case files can lead to delays, inefficiencies and errors in case management, with case
files sometimes getting lost.198 Depending on the size of the country and nature of its organization,
complaints may also be processed centrally before being assigned to particular officers or institutions
for dispute resolution.199 A few country studies report the use of e-filing systems to submit claims or
complaints electronically.200 Digital systems may also be in place to make it easier for parties to request
mediation processes.201 In some countries, standard operating procedures are put in place to manage
the processing of applications.202
Timelines
A number of jurisdictions specify periods in which applications must be presented by claimants, as
discussed, but also time limits in which complaints must be heard and addressed, to ensure that dispute
resolution is carried out relatively quickly (Table 1). This time limit may take the form of a period in which
parties may need to be summoned to court203 or convened for conciliation.204 In most jurisdictions, the
number of days for rendering a decision, whether judgment or arbitral award or preparing a report of
the conciliation/mediation proceedings, is specified,205 while in others the amount of time in which a
case must be tried may be specified.206 The time limits prescribed may also envisage the period in which
an arbitration panel is set up or a judge assigned to a case,207 or the period in which a conciliation or
mediation procedure is required to be completed.208 In some cases, priority may be given to certain types
of labour disputes. In Germany for example, labour courts are obliged to prioritize hearings of complaints
against dismissals, with the conciliation hearing in these cases to take place in two weeks of the filing
of the lawsuit. Yet despite these provisions, several country studies report that there tend to be delays
beyond the time limits specified in law.209
197 Including Ireland, Brazil, North Macedonia, Argentina, Chile, Colombia, Panama, Canada and Morocco.
198 As in Lebanon.
199 In Ireland, complaints are initially processed in the WRC’s offices in Carlow before being sent forward to an adjudication officer
and a hearing date assigned.
200 Some are the Republic of Korea, Ireland and Malaysia.
201 In Brazil, mediation on collective disputes carried out by the Ministry of Labour and Employment can be requested online
through a digital system called “Mediador” (Mediator), and the meetings may be held through electronic videoconference platforms
(SRT Circular Letter SEI no. 1.376/2020/ME). The Labour Public Prosecutor’s Office in Brazil also receives and processes mediation
requests electronically. The online mediation request must include information about the conflict, the claimant, the respondent and
documents.
202 Including Viet Nam, Mozambique, Argentina, Chile and Colombia.
203 For example, Burkina Faso, Niger, Senegal, Togo, Kenya and Argentina.
204 For instance, Niger, Senegal and Togo.
205 As in Niger, Burkina Faso, India, Malaysia, Lebanon, Togo, Viet Nam, Serbia, Mozambique, Brazil, Montenegro and Bangladesh.
206 As in Armenia, China and Albania (in the last of which timelines are provided for mediation and conciliation procedures).
207 In Viet Nam for example.
208 For instance, in North Macedonia, Serbia, Montenegro and Argentina.
209 Including those for Armenia, Brazil, Malaysia and India.
X Table 1. Average number of days provided for institutions (both judicial and nonjudicial)
to render a decision
0-15 days 15-30 days 30-90 days
Burkina Faso, Niger, Senegal, Vietnam, Brazil, North Macedonia, Lebanon, Malaysia, India, Serbia
Mozambique, Romania, Chile, Montenegro
Panama
Costs and fees

A trend in most countries studied is that non-judicial institutions providing conciliation, mediation and
arbitration services are available to parties free of charge (Table 2).210 In Niger, not only are these services
made available free of charge to parties, but travel expenses, lost wages and salaries are also funded
by the state. Arrangements may sometimes require employers to pay a certain fee but not workers,
though the latter is not commonly seen.211 In some instances, quasi-judicial bodies providing adjudication
services are also available free of charge.212 With judicial institutions, most often the usual court fees and/
or stamp duty apply to labour disputes.213 In some cases, a reduced court fee may be applicable in labour
disputes,214 and judicial proceedings in labour disputes may even be free of charge.215
X Table 2. Access to labour dispute resolution institutions free of charge
Judicial institutions Quasi-judicial institutions Non-judicial institutions
Bangladesh, Bulgaria, Ireland, Malaysia, Albania (collective labour disputes

Burkina Faso, Colombia, Niger, Republic of Korea, South Africa only), Brazil (mediation only),
Senegal, South Africa, Sweden, Burkina Faso, Colombia, Niger,
Togo North Macedonia, Panama,
Republic of Korea, Senegal, Serbia,
South Africa, Togo, Viet Nam
Some jurisdictions specify that fees may be waived if they might cause undue hardship to the party 216
or simply make provisions to prevent financial hardship to workers. In Armenia for instance, which has a
stamp duty for filing the claim, employees are relieved of the stamp duty for salary-related claims, and
benefit from a very small duty to be paid for non-monetary claims. Similarly in Viet Nam, provision is
made for workers to be eligible for the full remission of court fees if they file lawsuits to request payment
of salaries, job loss allowance, severance allowance, social insurance contribution, compensation for
210 Including Albania, Ireland, Republic of Korea, Burkina Faso, Niger, Senegal, Togo, Viet Nam, Serbia, North Macedonia, Colombia,
Panama and South Africa. In Brazil this applies only to mediation, not to arbitration.
211 In non-judicial conciliation in Argentina, for example, the procedure is free for the worker (art. 3, Law No. 24.635). Although
the employer must pay a fee of 2,510 Argentine pesos if the parties do not achieve an agreement and 27,610 Argentine pesos if they
achieve an agreement. In Chile, for procedures before arbitration courts, the fee is paid by fiscal funds except with large companies,
in which the employer must pay the fee (art. 392 of the Labour Code).
212 As in Ireland (no fees are associated with the presentation of complaints to the WRC nor with the presentation of appeals to
the Labour Court), the Republic of Korea (no fees are charged for filing for relief with the Labour Commission), Malaysia (no fees are
charged to access the labour court) and South Africa (the services of the CCMA and bargaining councils are free).
213 For example, Albania, Ireland, Republic of Korea, Serbia, Mozambique, Kenya and Canada.
214 Germany for instance.
215 Including Burkina Faso, Niger, Senegal, Togo, Colombia, Bulgaria, Bangladesh, Sweden and South Africa.
216 As in Serbia, Mozambique and Brazil.
occupational safety and health costs, settlement of claims for damages, or compensation for unlawful
dismissal or labour contract termination.
In addition to fees, the costs that courts may impose on the losing party may also serve as a barrier or
disincentive to parties to access justice.217 In Germany, contrary to the general rules, each party bears his
or her own costs of a barrister in the procedure of first instance. The law seeks to avoid the situation that
employees do not file cases because they fear to bear all the costs if they lose the case (the general rule
in other jurisdictions). Other than fees and costs, a penalty or fine may sometimes be charged to parties
is they fail to appear for dispute resolution proceedings.218
Finally, a procedural requirement in a few jurisdictions to access dispute resolution mechanisms is to
exhaust grievance-handling procedures at enterprise level.219
Procedural fairness in resolving disputes
An equally important aspect of procedural rules is their role in ensuring fairness in dispute prevention
and resolution. The procedures should ensure that the outcomes of the dispute resolution process are
fair, and that those outcomes are reached, and seen to be reached, in a fair way.220 This is a broad notion
that encompasses facets of dispute prevention and resolution beyond those covered in this report, but
a few legal considerations are relevant here in ensuring fairness in the procedural aspects of dispute
resolution. These include the availability of legal assistance and representation; rules on burden of proof;
the right to appeal to a fair and impartial third party; and ensuring the proper and prompt enforcement
of judgments or awards, or giving effect to settlement agreements (as the case may be).
Representation in proceedings
Most cases before judicial institutions require the presence of qualified lawyers or barristers,221 with
exceptions (Figure 4). For instance in Albania, the list of legal representatives in court is very liberal,
including advocates, spouses, linear descendants and ascendants, and siblings; and legal graduates and
other persons whom the court allows to act as representatives in a case.222
Another example is Germany, where the parties may act without representation before labour courts,
but may also be represented by barristers or—for employees—by trade union officials or representatives
of an independent professional association of employees when the employee is a member of that
association. Employers may be represented by, instead of a barrister, an employee of their company
(such as a lawyer of the human resources department), a representative of an employers’ association, a
family member of the employer, or a person who has passed both state exams in law and has therefore
the capacity to become a judge. But before the state labour courts and the Federal Labour Court,
217 As in Ireland.
218 In Ireland, if the appellant does not appear before the adjudication officer in the WRC or Labour Court, they must pay €300,
which is refundable if the failure to attend was due to a “good cause”.
219 For example, Ireland (in some cases), India (but this is being removed by the new Industrial Relations Code 2020 that is to be
implemented), Brazil (in a few exceptional circumstances) and Kenya.
221 Including Ireland, Serbia, Chile, Colombia and Panama.
222 Yet the following cannot serve as representatives of parties in Albania: (a) persons that have not reached 18 years of age; (b)
persons who have had their capacity to act, legally removed; (c) advocates/licensed private lawyers during suspension from legal
practice; and (d) judges and prosecutors.
representation is more restricted—parties may only be represented by a barrister or an official of the

trade union or employers’ association to which the party belongs.223
In proceedings before non-judicial institutions, most often, representation may be provided by the
parties themselves, lawyers, trade union representatives, human resources consultants or other
recognized persons.224 In Mexico, the centres for conciliation may provide assistance in drafting the
petition for conciliation. Workers filing the petition may be accompanied, but not represented in the
conciliation process, by an ombudsperson, lawyer or trade union representative. In the specific
case of sexual harassment, discrimination or other acts of violence where there is an imminent risk
of revictimization, the conciliator takes appropriate measures to avoid the alleged perpetrator from
meeting the victim. A representative of the victim will act on his or her behalf.225 In Malaysia in dismissal
disputes,226 representation of either the employer or employee by an advocate or solicitor is specifically
excluded. The rationale for this is the concern that a lawyer’s presence could bring an adversarial element
to the conciliation process geared towards joint problem solving.227
There is no universal approach to this matter, although the exclusion of lawyers from conciliation
processes is uncommon.228 In some instances, a representative attending a non-judicial proceeding
may be required to be authorized in writing by the party.229 Legal representation before quasi-judicial
institutions can be more flexible, allowing representation by either the parties themselves, a lawyer, a
trade union or employer’s association official, or any other permitted person.230 Some country studies
provide details of availability of legal assistance to parties to a labour dispute.231
X Figure 4. Legal representation
Lawyers / barristers
Trade union representatives / employers organizations’ representatives
HR personnel
Ombuds office
The parties themselves
223 Other jurisdiction that are more flexible about representation before courts include Burkina Faso, Niger, Senegal, Togo,
Argentina, Croatia and Bulgaria. In Brazil, employees and employers may file a lawsuit before the Labour Court without the legal
assistance of a lawyer (Labour Code, art. 791). However, the lawsuit for the approval of an out-of-court agreement requires the
representation of the parties by a lawyer (Labour Code, art. 855-B). In Canada, at arbitration, anyone may represent a party.
224 As in Malaysia, Burkina Faso, Niger, Senegal, Togo, Serbia, Brazil, Montenegro, Argentina, Chile, Colombia, Panama and Bulgaria.
225 See art. 684-E of the Federal Labour Act.
226 Section 20 of the Industrial Relations Act, as amended by the Industrial Relations (Amendment) Act 2020.
227 Michael Gay and Craig Bosch, Report on review of Malaysia’s dispute resolution system, Geneva: International Labour Office,
2020, pp. 34–35. A similar provision for conciliation is made in India under section 36(3) of the IDA.
228 Gay and Bosch, footnote 106: “In conciliation proceedings in South Africa’s CCMA, a party may appear in person or only be
represented by a director or employee of that party or any member, office bearer or official of that party’s registered trade union or
registered employer’s organization”.
229 Including Bulgaria, Senegal, Niger and Burkina Faso.
230 For example, Ireland, Lebanon, Malaysia, India and South Africa.
231 For instance, Lebanon, Republic of Korea, Armenia and Viet Nam.
The burden of proof

Rules on the burden of proof tend to be extremely similar across most of the jurisdictions observed.
The standard rule is that the claimant or plaintiff must meet the burden of proof except that in cases
of unfair dismissal or disciplinary action, the burden of proving the fairness of the dismissal is reversed
and placed on the employer (Table 3).232 Other exceptions in which the burden of proof is placed on
the employer include cases of penalization for having made a “protected disclosure”; where there is
a presumption that the alleged penalization is a result of having made such a disclosure;233 cases of
discrimination, where a claimant merely has to show a prima facie case before the burden shifts to the
employer to establish that there has been no discrimination;234 cases of unilateral change of essential
terms of employment;235 cases of “unfair labour practices”;236 cases of harassment at work;237 termination
of employment during pregnancy or following maternity leave;238 cases of work-related injuries and
occupational diseases;239 claims of wages in arrears;240 cases on the protection of whistle blowers;241 cases
of violation of the fundamental rights of workers;242 freedom of association disputes;243 or generally cases
where the evidence is under the management and retention of employers.244
X Table 3. Reversal of the burden of proof
Complete reversal Reversal of Burden of Reversal of Burden

Reversal of Burden of proof in
of burden of proof proof in discrimination when “evidence is with
employment termination cases
in labour disputes related cases the management”
Bolivia, Romania Albania, Armenia, Australia, Burkina Albania, Bulgaria, Canada, China Brazil,
Faso, Canada, Chile, China, Croatia, Croatia, Ireland, Korea, Vietnam
Germany, Ireland, Kenya, Korea, Lebanon, Serbia, South
Montenegro, Morocco, Mozambique, Africa, Sweden
Niger, Senegal, South Africa, Vietnam
232 As in Albania, Ireland, Germany, Republic of Korea, Burkina Faso, Niger, Senegal, Armenia, Viet Nam, Mozambique, Montenegro,
Kenya, Chile, Croatia, Canada, China, Morocco, South Africa and Australia. In Lebanon, however, an employee claiming that they were
unfairly dismissed must provide evidence to show that their dismissal was unjustified or discriminatory. Once the party making the
claim has presented their evidence, the burden of proof may shift to the other party to provide evidence to contradict or rebut the
claims made by the first party.
233 As in Ireland.
234 Including in Albania, Sweden, Ireland, Lebanon, Serbia, Croatia, Bulgaria and South Africa. In the Republic of Korea (under art.
30 of the Equal Employment Opportunity and Work-family Balance Assistance Act), in cases where disputes arise relating to the Act,
the burden of proof rests with the employer to provide a resolution.
235 As in Armenia and Mozambique.
236 As in Canada.
237 In Serbia for instance.
238 In Albania for example, when the employer terminates the employment contract of the employee during pregnancy or when
she is back to work from maternity leave, according to art. 105/a of the Labour Code, the employer has the obligation to prove that
the reason for dismissal was neither the pregnancy nor the childbirth. Should the employer not prove that the contract termination
was due to other reasons, the termination will be invalid.
239 In China for instance, it is extremely difficult for the employee to provide evidence proving that it is a work-related injury, and
the employer has the legal responsibility to provide working conditions that meet the safety requirements. See Regulation on Work-
Related Injury Insurance, art. 19, and Measures for the Ascertainment of Work-related Injuries, art. 14.
240 Again, in China, employers are obliged to keep the evidence of wages paid, and it is generally impossible for workers to obtain
evidence of unpaid wages. When the employee presents evidence that he or she has fulfilled his labour obligations and claims to
claim wages in arrears, if the employer cannot provide evidence to prove that wages have been paid, the fact that wages have not
been paid should be confirmed and the claim of the employee should be supported, see Provisional Regulations on Payment of
Wages, art. 6, para. 3.
241 As in Serbia among others.
242 In Chile for example, in these cases the burden of proof is not reversed but merely lowered for the worker to be able to prove
the violation.
243 As in South Africa, where there is only an evidentiary onus on the applicant, per section 10 Labour Relations Act.
244 Including in Viet Nam, Brazil, Canada and China.
Some West African jurisdictions specifically provide for proof to be submitted by or requested from
public officials, such as labour inspectors and controllers, as the labour code gives them the authority,
during the course of their inspections and controls, to produce reports and other documentation with
value of proof until it is proven otherwise.245 In some instances, if an employer fails to maintain records
required by law, the onus of proving compliance with such a law lies with the employer.246 But in cases
where criminal complaints over labour disputes may be made, a high standard of proof is introduced.247
Right to appeal
Provisions for appeal vary depending on the institution issuing the judgment or award that is appealed.
Decisions and awards rendered by genuine quasi-judicial institutions (as defined in this report) are subject
to limited judicial review. The grounds for review or appeal in such cases tend to be limited to appeal on a
point of law.248 In some cases the language used to describe cases for review or appeal are: “standard of
reasonableness”;249 “exceptional circumstances”;250 “matters of general public importance”;251 and “abuse
of power”.252 A few countries provide for the annulment of arbitral awards on the basis that the arbitrator
issued the award beyond the established time limit or on matters not submitted to arbitration.253 In some
countries, even though grounds for review or appeal of quasi-judicial institutions are limited in law, in
practice we see appeals being filed in higher judicial bodies on other legal grounds.254
In judicial proceedings for labour dispute resolution, provisions for appeal tend to be more liberal.255 In
some jurisdictions however, the question of whether an appeal lies to a higher court may depend on
the sum of money involved in the claim. For instance in Burkina Faso, when the claim does not exceed
200,000 CFA francs,256 decisions of the labour court are final and without appeal, except for a dispute
on the competence of the court. Above this amount, labour court decisions can be appealed before the
territorially competent Court of Appeal.
245 As in Niger, Senegal and Togo.

246 In, for example, Ireland and Montenegro. (In the latter, in a dispute over working hours, where the employer fails to keep the
records in accordance with the law, the burden of proof rests with the employer.)
247 In Malaysia for instance; see Gay and Bosch.
248 Seen in, among others, Ireland, Germany (in Germany, in a case of arbitration to settle labour disputes between works councils
and employers), Lebanon, Niger, Brazil, Montenegro, Australia and South Africa. In very limited circumstances, the Labour Court
in South Africa has the power to hear an appeal against an arbitration award of the CCMA. There are two instances in which an
arbitration award may be appealed against in South Africa: where the award is about the interpretation or application of a collective
agreement (section 24 of the Labour Relations Act) and where the award concerns an unfair discrimination dispute in terms of the
Employment Equity Act, 55 of 1998 (section 10).
249 In Canada, review applications of labour board and arbitrator decisions are evaluated on the standard of reasonableness. If
the award is within the range of reasonable decisions, it will be upheld, unless there is an error of law, and a correctness standard
applies.
250 As in Ireland.
251 As in Ireland.
252 As in Niger.
253 Including Argentina and Montenegro.
254 For instance, in India under art. 136, the Constitution of India gives power to the Supreme Court to grant special permission
or leave to an aggrieved party to appeal against an order passed in any of the lower courts or tribunals in India. This means that
an individual takes special permission to be heard in appeal against any high court/tribunal verdict. In practice therefore, awards
of labour courts and industrial tribunals come to be challenged in this manner and under the “writ” jurisdiction of High Courts
(Constitution, art. 226).
255 As seen in Albania, Germany, Republic of Korea, Armenia, Viet Nam, Serbia, Mozambique, Brazil and Kenya.
256 The same holds true in Niger but for claims that do not exceed 100,000 CFA francs and in Senegal and Togo when the claim does
not exceed ten times the guaranteed minimum wage.
Enforcement
Finally, the enforcement of labour court judgments and the decisions rendered by quasi-judicial
institutions tend to be enforceable as per the usual law of civil procedure.257 In some countries, criminal
penalties may be imposed if a party fails to comply with an order.258 Enforcement is most often carried
out by civil courts (Figure 5), but in Brazil, the enforcement of instruments—such as arbitral awards, out-
of-court agreements approved by the Labour Court, conciliation agreements signed before the Prior
Conciliation Commissions, and the “conduct adjustment agreements” signed before the Labour Public
Attorney’s Office—must be processed before the Labour Court.259 In some West African jurisdictions,260
provisional execution may be ordered on condition that security is provided for enforcing orders to pay
a sum of money above a certain threshold.
X Figure 5. The enforcement of decisions in judicial and non-judicial institutions
The writ of execution

Judicial decision
is ordered by a judge
The writ of execution may be

vested in law
The settlement agreement

may have to be ratified by a judge
Non-judicial
settlement agreement
The settlement agreement
may have to be ratified by a notary
No legal provision may be made

regarding enforcement and execution
may be left to the parties.
257 Including in Kenya, Viet Nam, Armenia, Republic of Korea, Ireland, Germany and Canada.
258 In the Republic of Korea for example, if an employer fails to comply with the order of the Labour Commission even after the
remedy order is finalized, they may be subject to criminal penalties under relevant laws. In contrast, in cases of a remedy order for
unfair dismissal or unfair discipline, the Commission may impose a performance penalty of up to 30 million Korean won four times
within a two-year period, even before such a remedy order is finalized, if the employer fails to comply with it. In Lebanon, the Penal
Code punishes any employer or employee who refuses to implement or who delays the execution of any decision issued by the
Labour Arbitration Council, with imprisonment of between two months and one year. In addition, the Decree on the Authorities of
Arbitration Labour Councils subjects the defaulting party to a coercive fine.
259 Labour courts are also empowered to enforce their decisions in Mozambique.
260 Including Burkina Faso, Senegal and Togo.
In some of the jurisdictions studied, enforcement of out-of-court settlement agreements is more

uncertain. While some labour codes provide that the results of conciliation, mediation or arbitration
procedures are equivalent to an enforceable judgment for all legal purposes,261 in others, conciliation
or mediation agreements or arbitral awards are not legally vested with a writ of execution, and their
implementation remains largely at the will of the signatory parties.262
Conclusion
Procedural rules and regulations are clearly closely tied to questions of access, speed and fairness in the
labour dispute resolution process. Some good practices are seen in the countries examined, including
access to labour justice at no cost to parties, the provision of legal aid, opportunities for representation
by trade unions and employers’ organizations, the reversal of the burden of proof in cases where workers
do not have access to evidence, as well as good case management practices. Clarity and publicity on legal
and procedural requirements in the law are critical in ensuring effective access to labour justice.
A key factor in the design of labour dispute resolution procedures is the extent to which they encourage
voluntarism and consensus seeking on the part of employers and workers to support harmonious
employment and industrial relations. The principle of voluntarism is prominent in non-judicial
mechanisms for labour dispute resolution, with compulsory conciliation or mediation proceedings seen
as a “last chance” for amicable settlement before the parties resort to adversarial mechanisms such as
litigation. Regulations exist in different jurisdictions for exhausting internal procedures at enterprise
level. Still, most jurisdictions require some form of proof that attempts at amicable resolution were made
before judicial proceedings can be launched. Compulsary “interest arbitration” of public sector disputes
is recurrent in common law jurisdictions, but is generally not permissible in civil law legal systems where
only voluntary arbitration may serve as a pre-trial filter.
A majority of the jurisdictions studied offer state-based services for conciliation, mediation or arbitration
free of charge, although there is some uncertainty over enforcing non-judicial settlements in some
jurisdictions. These issues direct attention to the earlier point on the complementarity between judicial
and non-judicial institutions, and hence procedures. Despite the many benefits of ADR methods, in a
number of jurisdictions, parties continue to access courts where the trust in judicial institutions and in the
fairness of their procedures runs high, and the decisions are final. Better coordination between judicial
and non-judicial institutions and their procedures remains critical to ensuring access to appropriate
forums for access to labour justice.
261 Including Panama, Colombia, Chile, Argentina, Mozambique and Serbia.

262 Such as Albania.
53
Chapter 5.
55
Conclusion
This comparative study has demonstrated the diversity of legal and regulatory
models governing individual and collective labour dispute resolution in countries
across the globe. In some senses, these models are very different: some countries
provide for adjudication that is heavily reliant on the court system, while others
provide only for quasi-judicial institutions. Many countries do not provide for
arbitration of labour disputes at all, while others provide for compulsory and/or
advisory arbitration. Some focus their efforts more on non-judicial mechanisms,
while others are litigation-centric. Only a few countries provide for the strong
involvement of social partners in both quasi-judicial and non-judicial institutions
while most systems examined generally allow limited or no participation in the
judicial ones.
Yet despite these big-picture differences, it seems that certain basic approaches
towards labour dispute resolution across the countries studied have more
similarities than differences.
For a start, most jurisdictions distinguish between individual and collective labour
disputes on similar grounds: the nature of the dispute (rights-based versus interest-
based), the parties to the dispute (single versus group of workers or employers) or
the source of the rights over which there is a dispute (the individual employment
relationship versus collective agreements). The vast majority of the countries
studied define the scope of applicability of their labour laws—and thus access to
labour dispute resolution institutions—on the basis of the employment relationship.
The material scope of disputes, that is, the subject-matter of individual and collective
disputes, also overlaps widely, with issues around dismissals, payment of wages
and the representativeness and recognition of trade unions cited in many country
studies as common. Most countries provide for access to judicial institutions in
rights disputes, and for ADR-based mechanisms in collective interest disputes.
Cross-country similarities are close for procedures in labour dispute resolution. A
number of countries provide for case management systems, increasingly digital, and
there is a high uptake of technology to facilitate parties’ attendance at hearings, too.
Many countries provide for labour dispute resolution services free of charge or make
provision for legal aid to parties who might otherwise be unable to afford it. Similarly,
many countries provide for representation of the parties not just by lawyers, but
also by employers and workers’ representative organizations. Legal standards and
rules on the burden of proof and the enforcement of judgments and awards also
share similarities. These patterns demonstrate how, even though systems might
be set up in different ways across countries, there is still common ground on how
labour dispute prevention and resolution systems should be governed to ensure
effective functioning.
Clarity is critically important in the legal, institutional and procedural frameworks
governing labour dispute prevention and resolution systems, and that clarity must
be apparent to legal practitioners and to users; in how individual and collective
disputes are defined; in the institutional pathways available for resolving individual
and collective disputes; in what the competence and jurisdiction of various
institutions are; and in the procedural requirements to be met. Beyond that,
these governance frameworks must be inclusive so that they do not inadvertently
exclude certain types of disputes or parties from the labour dispute prevention
and resolution system. Narrow definitions, or systems that leave discretion to

government authorities on the disputes to bring to adjudication, can easily become
exclusionary. It is vital that the parties to the dispute to have an informed choice and
to be in control of how and when to resolve their disputes.
In line with international labour standards, it is important that labour dispute
prevention and resolution systems encourage and facilitate the process of
collective bargaining and of social dialogue more generally. ADR-based non-judicial
mechanisms can bolster the principle of voluntarism in labour dispute resolution
processes and are important in filtering cases that can be resolved between
the parties themselves, before these cases are escalated to judicial institutions.
This complementarity between judicial and non-judicial institutions is crucial to
maintain the fine balance between encouraging voluntarism and ensuring access
to adjudicative mechanisms where they are necessary. As this report has stressed, a
certain level of specialization of judicial and quasi-judicial bodies is critical to ensure
outcomes to the parties that are just and in line with labour laws, and that also serve
to harmonize labour jurisprudence itself—steps on the way to ensuring equal access
to labour justice for all.
ilo.org
International Labour Organization

Governance and Tripartism Department
Route des Morillons 4
1211 Geneva 22
Switzerland

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X Access to labour justice:

Comparative law and practice

Labour Law and Reform Unit

Attribution 4.0 International (CC BY 4.0)

ISBN 978-92-2-039573-8 (print)

X Dispute resolution in a changing

X This report’s terminology and caveats

17 ILO’s 1998 Declaration on Fundamental Principles and Rights at Work: https://www.ilo.org/wcmsp5/groups/public/---ed_

X Box 1. Definitions of key terms according to ILO publications

X Labour dispute resolution institution: An organization that assists in the resolution of

X Collective dispute: A disagreement between a group of workers usually, but not

X Rights dispute: A disagreement between a worker or workers and their employer

Legal and regulatory

Defining individual and collective labour disputes

Ensuring inclusion: Who is covered?

Explicit legislative exclusions

X Box 2. Salary thresholds

The boundaries of the employment relationship

65 In most cases this refers to Small and Medium-sized enterprises.

The material scope of labour disputes

73 Temporary Agency Work Act (2012:854), section 17.

82 For example, Ireland, Germany, Republic of Korea and Sweden.

The functions performed by labour dispute

88 ILO, Access to labour justice: A diagnostic tool.

Adjudication: Judicial and quasi-judicial institutions

For this report, we define judicial institutions as conflict-resolving forums

X Box 3. Brazil’s labour justice system

Source: Superior Labour Court.

120 As in Germany, Belgium, Bangladesh, Romania and Barbados.

123 Burkina Faso, Niger, Senegal and Togo.

X Box 4. The participation of lay judges in labour proceedings—Examples from Europe

The participation of lay judges in labour proceedings tends to be perceived positively as a

For this report, we define quasi-judicial institutions as those institutions that

X Box 5. Government referrals for adjudication

Government authorities in Malaysia are heavily involved in labour dispute resolution.

The Industrial Court in Malaysia is an arbitration institution consisting of a president and

Alternative dispute resolution:

For this report, we define non-judicial institutions to be bodies operating outside

X Box 6. The role of the social partners in conciliation of collective disputes—Belgium

X Box 7. Bipartite dispute resolution set-up

157 NMO, 2023, p. 27, available (in Swedish).

ADR and labour inspection

Other institutional arrangements

X Box 8. Labour dispute resolution by autonomous bodies

Source: Labour Prosecutor’s Office.

167 Burkina Faso, Niger, Senegal and Togo.

Mediation successful. Mediation unsuccessful/

Dispute submitted to Labour Arbitration Dispute resolved

Arbitration Panel not

Dispute successfully mediated. Mediation unsuccessful / does not take place /

Dispute submitted Workplace Representative

Voluntarism in resolving labour disputes:

186 Per art. 13.

Conciliation and suspension of statutory limitation. The presentation of a request for

Processing applications for dispute resolution:

X Figure 3. Criteria for the admissibility of claims

Prior attempt at amicable dispute resolution

Case management systems

0-15 days 15-30 days 30-90 days

X Box 1. Definitions of key terms according to ILO publications

X Labour dispute resolution institution: An organization that assists in the resolution of

X Collective dispute: A disagreement between a group of workers usually, but not

X Rights dispute: A disagreement between a worker or workers and their employer