Problems in the workplace, at times, soar to the point that outside intervention becomes unavoidable if the employer and the employee fail to resolve their dispute cordially. To avoid such an extent of the dispute costing heavily and a tiring legal proceeding, both the employer and the employee readily agree to management by external professionals. Thus, conciliation in the workplace is a contemporary reality!
“AN OUNCE OF CONCILIATION/MEDIATION IS WORTH A POUND OF ARBITRATION AND A TON OF LITIGATION!”- JOSEPH GYRNBAUM
What is meant by Conciliation?
The meaning of ‘conciliation’ as per the Oxford dictionary is stopping someone from being angry. Conciliation is a form of alternative dispute resolution mechanism. It is the process of settling disputes without going to the courts for litigation. Thus, it is classified as an informal process to resolve disputes. The disputing parties appoint conciliators or conciliation officers to resolve their dispute and arrive at a negotiated agreement. Interpreting the issues, providing smooth communication, bringing down tensions are some measures taken up by the conciliator during the course of resolution.
The provision for appointment of the conciliator is given in Section 64 of the Arbitration and Conciliation Act, 1996. The conciliator is chosen so that he tends to be independent and impartial apart from being an expert. The procedure for conciliation is provided in Section 62 of the Arbitration and Conciliation Act, 1996.
According to Section 80 of the Arbitration and Conciliation Act, the conciliator’s job is to help the parties attain resolution and not decide for the parties. A conciliator supports the parties to come to a conclusion that is equally beneficial to both parties. Section 67 provides the main function of the conciliator to assist the parties in reaching an amicable solution.
A conciliator might go about as a “go-between” for the sides in the conflict. He manages and guides the joint deliberation or may act as a nimble in explicating the differing opinions of the parties and proposing settlements.
Types of disputes referred in conciliation at workplace
Issues that tend to be dealt with in a conciliation process are-
~claims to better pay/working conditions
~issues of grading
~regulatory and disciplinary cases
~issues relating to the restructuring of companies and displacements
~disputes against sudden proposed changes in the work culture of a company
Conciliation under Industrial Disputes Act, 1947
An industrial dispute exists when one party has made a claim and the other party has rejected it. These may relate to a genuine contradiction between what the employees and unions seek and the employer.
According to Section 4 of Industrial Disputes Act, 1947, “the appropriate Government may, by notification in the Official Gazette, appoint such several persons as it thinks fit, to be conciliation officers, charged with the duty of mediating in and promoting the settlement of industrial disputes” Additionally, Section 12 of the Act, provides duties of conciliation officers.
The cases of S. Ramesh vs. The Commissioner Of Labour, 2009 and Subhashbhai Bhanabhai Patel vs. the State Of Gujarat And 2 Ors., 2007 highlight the critical role of conciliation in settling industrial disputes.
Conciliation and Prevention of Sexual Harrasment of Women at Workplace, 2013
According to Section 10 of the Act, “The Internal Committee or, as the case may be, the Local Committee, may, before initiating an inquiry under section 11 and at the request of the aggrieved woman take steps to settle the matter between her and the respondent through conciliation, provided that no monetary settlement shall be made as a basis of conciliation”.
This provision was highlighted in the case of Ruchika Singh Chhabra vs. M/S. Air France India And Anr., 2018.
Conciliation and collective labour conflicts
There was a triggered strike by workers at the Tata Motors Sadanand facility in December 2015, when 26 co-workers were suspended for misconduct. The decision arrived through a conciliation process, after a meeting between the workers’ representatives, the top executive of Tata Motors, and the Labour Commissioner’s office.
The settlement agreement
An agreement makes it certain that the disputes between the parties conclude in cordial terms to satisfy the disputing parties. A settlement agreement is drafted by a conciliator when there is a foreseeable prospect of a cordial bargain between the parties. A conciliator assists the parties in settling the disputes courteously. In Haresh Dayaram Thakur v. the State of Maharashtra, the Supreme Court held that “a conciliator requires to assist the parties to settle the disputes amicably.”
Conciliation under CPC
A new provision, Section 89, was added to provide out-of-court settlements when the Code of Civil Procedure, 1908, was amended in 1999. There is no need for any consent or consensus of the parties for referring any matter for settlement under this section of CPC, unlike Section 62 of Arbitration and Conciliation Act, 1996. The intuitive satisfaction of the court is enough for referring a matter for arbitration, conciliation, or a judicial settlement.
Challenges to conciliation
There is a high possibility that a process such as conciliation fails to deliver justice. Considering its informal nature and lack of legal backing. Even the conciliators can come out to be biased in quest of personal favors. Moreover, arbitration is trusted more, and conciliation still lacks popularity as compared to other forms of ADR mechanisms. Experts even consider conciliation at the workplace to be ineffective.
To conclude, it is hardly unagreeable that the use of conciliation in the workplace environment is under-used. What we require are firmer regulations to support conciliation processes at the workplace. The setting up of independent conciliation bodies by the government is needed. It will waive off the political pressures and enhance this specialized service. Certainly, conciliation is a cheap and quick process if used appropriately. The government should take steps to increase the number of conciliation officers in case of industrial disputes. Conciliation is a skillful process. Therefore the conciliators must be carefully chosen. Most importantly, the involved parties should be committed to resolving their dispute.
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