«ПЕРСПЕКТИВЫ РАЗВИТИЯ МЕЖДУНАРОДНОГО КОММЕРЧЕСКОГО
АРБИТРАЖА В УЗБЕКИСТАНЕ»
Сборник международной научно-практической конференции
72
Shakhida Ishmetova
Lecturer, Private International Law Department, Tashkent State University of Law
https://doi.org/10.47689/978-9943-7818-6-3/iss1-pp72-76
EXPERIENCE OF FOREIGN COUNTRIES IN THE REGULATION AND
RESOLUTION OF INTERNATIONAL LABOR DISPUTES
Abstract:
In the article, the author examines the issues of legal regulation and
resolution of labor disputes, including those of an international nature, and arising
within the framework of the international division of labor. The author analyzes
foreign experience and mechanisms for resolving labor disputes and draws
conclusions about the possible implementation of foreign experience.
Key words:
labor disputes, dispute resolution, individual labor disputes, mediation.
Шахида Ишметова
Преподаватель, кафедра «Международное частное право», Ташкентский
государственный юридический университет
ОПЫТ ЗАРУБЕЖНЫХ СТРАН РЕГУЛИРОВАНИЯ И
РАЗРЕШЕНИЯ МЕЖДУНАРОДНЫХ ТРУДОВЫХ СПОРОВ
Аннотация:
В статье автор рассматривает вопросы правовой
регламентации и разрешения трудовых споров, в том числе имеющих
международный характер и возникающих в рамках международного
разделения труда. Автор анализирует зарубежный опыт и механизмы
урегулирования трудовых споров и делает выводы о возможной
имплементации зарубежного опыта.
Ключевые слова:
трудовые споры, разрешение споров, индивидуальные
трудовые споры, медиация.
At the international level, there are a number of situations and disputes
related to labor activity, as well as the international division of labor. In this
aspect, the legal regulation of labor disputes and their resolution is important.
An analysis of law enforcement practice shows that the international legal
regulation of labor disputes is carried out by the following documents:
Convention for the Protection of Human Rights and Fundamental Freedoms
and its protocols – the provisions of art. Art. 6, 8, Art. 1 of Protocol 1 [2];
Universal Declaration of Human Rights – Art. 25 [3];
– International Covenant “On Civil and Political Rights” – art. 14 [4].
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These documents and their respective norms establish fundamental rights,
including the right to access to justice, the right to the effectiveness of legal
remedies, and the right of everyone to ensure a decent standard of living.
Among labor disputes, a separate and main category is individual labor
disputes. The consideration of individual labor disputes in the countries of the
Anglo-Saxon (for example, the USA and Great Britain) and Romano-Germanic (the
Republic of Uzbekistan, the Russian Federation, the Federal Republic of Germany)
legal family has both common points and specific features.
The procedure for resolving individual labor disputes in these countries can
be divided into pre-trial and judicial, involving the consideration of the dispute in
the relevant state bodies and the court.
Pre-trial methods for resolving individual labor disputes in the United
States include conciliation procedures at the local level (Grievance procedures,
grievance), arbitration, and mediation. Pre-trial settlement of individual labor
disputes at the local level is quite widespread.
Typically, the settlement of individual labor disputes is carried out in
several stages.
The pre-trial procedure for settling a dispute can also include arbitration,
which is mandatory in cases stipulated by the agreement of the parties. When
concluding an employment contract, employers can include in it an agreement on
arbitration proceedings (Prehire Arbitration Agreements), which means the
terms of the agreement on the pre-trial settlement of the dispute. As a rule, such
agreements are concluded with the aim of limiting the right of employees to go to
court. However, judicial practice on the application of such agreements is quite
contradictory and does not guarantee the restriction of the employee’s right
to judicial protection [Chikanova L.A., 2018, p. fifteen]. In Gilmer v.
Interstate/Johnson Lane Corporation, 500 US 20 (1991) the court pointed to the
possibility of entering into these agreements.
The parties to individual labor disputes may also resort to the mediation
procedure, when the dispute that has arisen is considered with the participation
of an independent mediator. The duration of this procedure is no more than
3 months. [one]
As a general rule, American workers' right to sue is limited. If the subject of the
dispute is discrimination based on any criteria (pregnancy, gender, or sexual
orientation), then it is considered in the US Equal Employment Opportunity Commission
(EEOC). The term for filing a complaint with this organization is 180 calendar days and
calculated from the moment of violation of the employee’s labor rights.
An employee in a discrimination case cannot sue without special
permission from the Notice of Right to Sue from EEOC. As a general rule,
permission is issued after the completion of the organization of the investigation
of the case or after 180 days from the date of application to the said commission.
A permit may also be issued earlier if it becomes clear that the investigation of the
case cannot be completed within 180 days from the date of receipt of the
«ПЕРСПЕКТИВЫ РАЗВИТИЯ МЕЖДУНАРОДНОГО КОММЕРЧЕСКОГО
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complaint. Upon issuance of a permit, the investigation of the case is terminated.
Permission to apply to the court is valid for 90 days from the date of issue. If this
period is missed, the employee may be denied the right to judicial protection [8].
If the dispute involves a violation of the Equal Pay Act, the employee may go
to court without going through the EEOC. In this case, the period for applying to
the court is two years from the moment of violation of the right (three years if the
employer committed a deliberate violation of the right). In age discrimination
cases, permission to sue is not required, but the worker must file a complaint with
the EEOC. After 60 days from the date of registration of the complaint, the
employee may file a lawsuit with the court (but no later than 90 days from the
date of completion of the investigation of the specified complaint).
Turning to the consideration of the regulation of labor disputes in the UK,
we note that pre-trial settlement of individual labor disputes in the UK can be
carried out at the local level, with the help of arbitration and mediation.
In order to facilitate the pre-trial settlement of individual labor disputes at
the organization level, the Advisory, Conciliation, and Arbitration Service adopted
the Code of Practice on Disciplinary and Grievance Procedures [6]. Despite the
fact that its provisions are advisory in nature, the courts take into account
its provisions when considering individual labor disputes. Procedural Code
No. 1 establishes the requirements for a fair and open consideration of the
dispute, which is ensured through the consistent consideration of the case, taking
into account all the circumstances, the participation of the employee at all stages
of the consideration of the dispute and the possibility of making suggestions,
written notice to the employee, granting him access to all the materials of the case
and the possibility of making copies of any written evidence. The possibility of
participation of the representative of the employee at all stages of consideration
of individual labor disputes is provided. Based on the Code of Procedure,
employers can develop their own rules for resolving individual labor disputes in
the workplace.
If the parties could not resolve the dispute at the local level, they have the
right to turn to the mediation procedure. Mediation is the participation in the
dispute of an independent and impartial party, which, through discussion with
the employee and the employer, tries to find a solution to the dispute that has
arisen. The mediation procedure is voluntary, the mediator does not have the
right to force one or another party to make a decision. The parties also have the
right to resort to the settlement agreement procedure (Conciliation), which is
similar to the mediation procedure and takes place in cases where the employee
has applied to the court for the protection of his rights. Another way of pre-trial
settlement of a dispute is arbitration (Arbitration), in which a third party, after
studying all the circumstances of the case, makes a decision binding on the
employee and employer, which can be appealed in court.
«ПЕРСПЕКТИВЫ РАЗВИТИЯ МЕЖДУНАРОДНОГО КОММЕРЧЕСКОГО
АРБИТРАЖА В УЗБЕКИСТАНЕ»
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If the conciliation procedures are unsuccessful, the employee has the right
to apply to a specialized court for the consideration of labor disputes
(employment tribunal). An employee cannot go to court without going through
Advisory, Conciliation, and Arbitration Service. This service assists the parties to
an employment contract in settling individual labor disputes. The term for
applying to the court (employment tribunal) as a general rule is 3 months from
the moment of dismissal or from the moment of violation of the right. However,
when an employee contacts the advisory service for pre-trial settlement of the
dispute, the employee is issued a special certificate of timely contacting the
specified service (early conciliation certificate), which suspends the limitation
period.
Some researchers point to a number of shortcomings and difficulties that
occur when considering individual labor disputes in courts [7]. So, as the first
drawback, it is noted that the dispute resolution process is too bureaucratic and
complicated. It is believed that the consideration of the dispute by the specified
court is very costly for all parties involved in the case. The court focuses not on
the circumstances of the case, but on the observance of a certain procedure. Fixing
different terms for going to court on various grounds leads to the fact that
employees abuse their rights. Employees may file multiple court cases for the
same violations (for example, protection from discrimination and wrongful
dismissal). Many workers are reluctant to go to labor tribunals because of the
complexity of the applicable laws, and the complexity of the dispute resolution
procedure. The second drawback is that the costs of considering a claim (both the
costs of the parties involved in the case and the state) may not be comparable to
the price of the claimed claim. The courts handle both simple cases involving the
recovery of small wage arrears and complex cases involving discrimination.
Statistics show that the number of class actions in the UK exceeds the number of
individual ones. As a third shortcoming, they note that employers'
representatives express concern about the adoption of inconsistent decisions by
the labor tribunal, and also indicate that the “judicial filter” does not work well,
since clearly vexatious cases pass through the judicial system.
Employers understand that the sooner they resolve disputes, the more cost-
effective it will be for them.
Unlike the United States and Great Britain, Russian employers do not pay
due attention to the procedure for settling individual labor disputes at the local
level. The procedure for considering individual labor disputes in the countries
considered has both positive and negative sides.
Despite the detailed procedure for pre-trial dispute resolution in the UK, it is
based on the observance of certain formal procedures. In this regard, unscrupulous
employers can only formally be guided by the recommendations developed by the
Advisory, Conciliation, and Arbitration Service in order to create a basis for protection
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in the event of a judicial review of the dispute (the employer will have a weighty
argument in the form of strict adherence to these recommendations).
The system developed in the USA also has its drawbacks. An employee in
certain categories of disputes is deprived of the opportunity to go immediately to
court bypassing the EEOC (thus, the employee’s right to judicial protection, or, to
be more precise, to the timely consideration of the dispute in court, is limited).
EEOC investigations may take more than six months. If the Commission reveals
the validity of the claims made by the employee, then his interests in court will be
represented by employees of the named service. However, if the commission does
not find sufficient grounds for going to court, the employee will lose a lot of time
and will be forced to independently represent his interests in court [9].
In conclusion, it can be noted that the experience of the UK in developing
procedural codes that help the parties resolve labor relations disagreements that
have arisen at the local level is interesting. In this connection, it is advisable to fix
at the federal level the norms on the features of the phased pre-trial consideration
of individual labor disputes by the employer. This will contribute to a more
complete, comprehensive consideration of disputes, and in some cases, it will be
able to prevent and resolve disagreements that have arisen between the
employee and the employer without applying for the protection of their rights to
specialized state bodies.
References:
1.
Rustambekov I. Mediation: a guide for mediators. 2019.
2.
Convention for the Protection of Human Rights and Fundamental
Freedoms.
3.
Universal Declaration of Human Rights.
4.
International Covenant on Civil and Political Rights of December 16, 1966
5.
Rustambekov I. Essence and features of mediation. Review of the
legislation of Uzbekistan. 2019. No. 1. pp. 84-87.
6.
Code of Practice 1. On Disciplinary and Grievance Procedures //
Advisory, Conciliation and Arbitration Service.
7.
URL: http://www.acas.org.uk/media/pdf/f/m/Acas-Code-of-Practice-1-
on-disciplinary- and-grievance-procedures.pdf
8.
Gibbons M. A review of employment dispute resolution in Great Britain
// Total Conflict Management Ltd. URL: https://thetcmgroup.com/wp-
content/uploads/ 2015/01/A-review-of-employment-dispute-resolution.pdf
9.
Filing a Lawsuit // US Equal Employment Opportunity Commission.
URL: https://www.eeoc.gov/employees/lawsuit.cfm (Accessed 09/19/2018).
10.
Resolving Employment Disputes [Electronic resource] // Thomson
Reuters.
URL:
http://corporate.findlaw.com/human-resources/resolving-
employment- disputes.html
