Dispute Resolution in the Dispute Resolution in the Public Service – past Public Service – past

achievements and future achievements and future innovationinnovation

Dawie BoschDawie Bosch14 February 2005, PSCBC Conference 200514 February 2005, PSCBC Conference 2005

OverviewOverview

Highlight key Highlight key achievementsachievements

Raise issues for Raise issues for possible possible future future developmentdevelopment

Working towards a Working towards a vision on dispute vision on dispute resolutionresolution in the in the public servicepublic service

Taken some liberty to Taken some liberty to presume to pronounce on presume to pronounce on a possible vision of the a possible vision of the future for dispute future for dispute resolution in the public resolution in the public service.service.Focus of paper: on the Focus of paper: on the dispute procedure, rather dispute procedure, rather than on the nature and than on the nature and content of negotiations on content of negotiations on terms and conditions of terms and conditions of employment. employment.

How does PS compare to other How does PS compare to other forums?forums?

Employees within scope of different forums12%

14%

74%

Public service councils

Bargaining councils(excl PS)

CCMA

No. of disputes referred to different forums2%

19%

79%

Public service councils

Bargaining councils(excl PS)

CCMA

Conclusion – Conclusion – relatively few disputes relatively few disputes are referred in the are referred in the public service.public service.

Rate of disputes referred to Rate of disputes referred to different forumsdifferent forums

Rate of disputes referred to different forums

0

5

10

15

20

25

30

Public servicecouncils

CCMA All bargainingcouncils (excl PS)

Forums

No

. o

f d

isp

ute

s re

ferr

ed

per

100

0 em

plo

yees

in

sc

op

e

Rate of disputes referred per Sectoral Council

0

1

2

3

4

5

6

7

Health andWelfare

Education Safety &Security

GeneralPublic

Service

Sectoral Councils

No

. of

dis

pu

tes

refe

rred

per

100

0 em

plo

yees

in s

cop

e

Conclusion: Factors Conclusion: Factors other than PS play a other than PS play a significant role in rate significant role in rate of disputes referred.of disputes referred.

Types of disputes referredTypes of disputes referred

0%

20%

40%

60%

80%

100%

Publicservice

councils

All bargainingcouncils (incl

PS)

CCMA

Types of disputes referred to different forums

Other

Unfair Labour Practice

Unfair dismissals

ULP much ULP much more prevalent more prevalent than in CCMA, than in CCMA, but less but less common than common than in other BCs.in other BCs.

Wider scope for role of Wider scope for role of Public Sector Councils (1)?Public Sector Councils (1)?PS Councils have achieved high PS Councils have achieved high standards of service delivery to their standards of service delivery to their sectors.sectors.

Despite some growth pains in the past, Despite some growth pains in the past, Councils generally are coping with Councils generally are coping with workloads.workloads.– Although turn-around time can be improved.Although turn-around time can be improved.

Parties generally have confidence in Parties generally have confidence in referring cases.referring cases.

There is scope for extension to services There is scope for extension to services rendered. rendered.

Wider scope for role of Wider scope for role of Public Sector Councils (2)?Public Sector Councils (2)?Potential benefits of widening scope:Potential benefits of widening scope:– Using panelists that know the sector.Using panelists that know the sector.– Lower cost and quicker resolution.Lower cost and quicker resolution.

Some services have already been extended:Some services have already been extended:– ELRC is engaging more frequently, with consent of ELRC is engaging more frequently, with consent of

parties, in facilitation of wider disputes / issues, such as parties, in facilitation of wider disputes / issues, such as restructuring.restructuring.

– PHWSBC is debating widening scope to conciliate and PHWSBC is debating widening scope to conciliate and arbitrate unfair discrimination disputes, where both arbitrate unfair discrimination disputes, where both parties agree.parties agree.

Overall achievementsOverall achievementsImprovements over past Improvements over past years:years:– Councils have developed Councils have developed

sufficient administrative sufficient administrative capacity capacity

– High standards of service High standards of service delivery to their sectors;delivery to their sectors;

– Professional panels of dispute Professional panels of dispute resolvers.resolvers.

Despite some growth pains Despite some growth pains in the past, Councils in the past, Councils generally are coping with generally are coping with workloads, although turn-workloads, although turn-around time can be around time can be improved.improved.

Fine-tuned dispute Fine-tuned dispute procedure, and adopted procedure, and adopted dispute resolution rules dispute resolution rules in most of the councils.in most of the councils.– The dispute procedures of The dispute procedures of

the various councils, and the various councils, and specific innovations that specific innovations that have assisted to address have assisted to address problem areas, are problem areas, are described in the described in the Conciliation and Arbitration Conciliation and Arbitration HandbookHandbook..

Parties generally seem Parties generally seem to have confidence in to have confidence in referring cases.referring cases.

Wider scope for role of Wider scope for role of Public Sector Councils (1)?Public Sector Councils (1)?There is scope for There is scope for extension to extension to services rendered. services rendered.

Potential benefits of Potential benefits of widening scope:widening scope:– Using panelists that Using panelists that

know the sector.know the sector.– Lower cost and quicker Lower cost and quicker

resolution.resolution.

Some services have Some services have already been already been extended:extended:– ELRC is engaging more ELRC is engaging more

frequently, with consent frequently, with consent of parties, in facilitation of parties, in facilitation of wider disputes / of wider disputes / issues, such as issues, such as restructuring.restructuring.

– PHWSBC is debating PHWSBC is debating widening scope to widening scope to conciliate and arbitrate conciliate and arbitrate unfair discrimination unfair discrimination disputes, where both disputes, where both parties agree.parties agree.

Wider scope for role of Wider scope for role of Public Sector Councils (2)?Public Sector Councils (2)?Disputes that could be considered for Disputes that could be considered for future resolution by PS Councils, future resolution by PS Councils, usually with the consent of both parties:usually with the consent of both parties:– Unfair discriminationUnfair discrimination– Other disputes that must usually be referred to the Other disputes that must usually be referred to the

LC.LC.– Individual contract-type disputes, including Individual contract-type disputes, including

payment and unresolved BCEA disputespayment and unresolved BCEA disputes– Broader facilitation on process that could lead to Broader facilitation on process that could lead to

disputes, where independent facilitation is not disputes, where independent facilitation is not usedused

Cost of the PS CouncilsCost of the PS Councils

Cost per referral is Cost per referral is relatively low. relatively low.

Costs per referral Costs per referral reduced :reduced :– Screening of cases by the Screening of cases by the

Secretary, ensuring that:Secretary, ensuring that:Clear cases of no Clear cases of no jurisdiction are referred to jurisdiction are referred to correct forum;correct forum;

Incomplete referrals are Incomplete referrals are corrected.corrected.

– Increase case load in a Increase case load in a council such as the council such as the GPSSBC.GPSSBC.

Need to address Need to address regular increase in regular increase in income: eg income: eg automatic levy automatic levy increase in ELRC, increase in ELRC, linked to the % linked to the % salary increases. salary increases.

Panels of dispute resolvers Panels of dispute resolvers (1)(1)

Already in place (in Already in place (in some councils):some councils):– Selection of panelists: Selection of panelists:

Use of ‘objective’ criteria Use of ‘objective’ criteria in some councilsin some councils

– Smaller panels, with due Smaller panels, with due attention to quality.attention to quality.

Allows panelists to develop Allows panelists to develop better knowledge of the sectorbetter knowledge of the sector

Focused training of panelistsFocused training of panelists

– Discretionary power for Discretionary power for secretaries in some secretaries in some councils to use higher fee-councils to use higher fee-paying panel members paying panel members

Future:Future:– Ensure adequate annual Ensure adequate annual

increases to avoid increases to avoid erosion of panelerosion of panel

– Use of a senior panel, Use of a senior panel, where appropriate.where appropriate.

– Quality control;Quality control;

Checking quality of Checking quality of awards awards

Best method: correct Best method: correct selection; briefings; selection; briefings; appropriate feesappropriate fees

Panels of dispute resolvers Panels of dispute resolvers (2)(2)

Communicate principles considered in Communicate principles considered in awardsawards– Post key awards on the internetPost key awards on the internet– Summaries of decisionsSummaries of decisions– Effective search engineEffective search engine

Whether to defend applications for Whether to defend applications for reviews in some circumstances?reviews in some circumstances?

Role of parties and Role of parties and secretariatssecretariats

Parties may have Parties may have controlled too closely controlled too closely the process of the process of adapting proceduresadapting procedures– Negotiators do not always Negotiators do not always

have experience in day-to-have experience in day-to-day problems of dispute day problems of dispute resolution in the councilsresolution in the councils

– Long delay in finalizing Long delay in finalizing review of dispute proceduresreview of dispute procedures

– Important issues not Important issues not addressedaddressed

Role of secretariatsRole of secretariats– Key to effective functioning Key to effective functioning

of a councilof a council– Relationships between Relationships between

secretariats and parties secretariats and parties have grown over the years.have grown over the years.

– Still scope for more trust Still scope for more trust being placed in secretariats, being placed in secretariats, where appropriately skilled.where appropriately skilled.

More skill in the More skill in the secretariats and more secretariats and more confidence by parties in confidence by parties in the secretariat the secretariat – to fulfill functions that will to fulfill functions that will

streamline dispute streamline dispute procedures, such as vetting procedures, such as vetting of applications, of applications, appointment of panelists appointment of panelists

Coordination of DRP in Coordination of DRP in public service councils?public service councils?

Appropriate to have a general core of Appropriate to have a general core of shared principles and proceduresshared principles and procedures

Supplemented with appropriate Supplemented with appropriate adaptations for each sector, adaptations for each sector, – Ie appropriate tweaking of procedures Ie appropriate tweaking of procedures

Some specific innovationsSome specific innovations

Expedited procedures in the ELRCExpedited procedures in the ELRC– Allowing flexibility to bring in conarb when in Allowing flexibility to bring in conarb when in

appropriate.appropriate.– Panellist selected by secretary, not the parties Panellist selected by secretary, not the parties

Pre-dismissal arb – Council paying fully Pre-dismissal arb – Council paying fully for hearings for hearings

Compulsory pre-arb meeting in the Compulsory pre-arb meeting in the SSSBC, to avoid postponements SSSBC, to avoid postponements

InformationInformation

Improve provision of information to Improve provision of information to parties and employeesparties and employees

Clear description of similarities and Clear description of similarities and differences between different councils, differences between different councils, to be readily available.to be readily available.

Key principles considered in arbitration Key principles considered in arbitration awards to be summarised and available awards to be summarised and available to all users.to all users.