Conciliation in United Kingdom

Definition of Conciliation

In accordance with the work A Dictionary of Law, this is a description of Conciliation :

1. (in civil disputes). See ACAS; alternative dispute resolution.

2. A procedure of peaceful settlement of international disputes. The matter of dispute is referred to a standing or ad hoc commission of conciliation, appointed with the parties’ agreement, whose function is to elucidate the facts objectively and impartially and then to issue a report. The eventual report is expected to contain concrete proposals for a settlement, which, however, the parties are under no legal obligation to accept.

Definition of Conciliation

The process of adjusting or settling disputes in a friendly manner through extra judicial means.

Legislation in the United Kingdom

At all events up to the year 1896, the development of arbitration and conciliation as methods of settling labour disputes in the United Kingdom was entirely independent of any legislation. Previously to the Conciliation Act of 1896 several attempts had been made by parliament to promote arbitration and conciliation, but with little or no practical result, and the act of 1896 repealed all previous legislation on the subject, at the same time excluding the operation of the Arbitration Act of 1889 from the settlement of “any difference or dispute to which this act applies.” The laws repealed by the Conciliation Act need only a few words of mention. During the 18th century the fixing of wages by magistrates under the Elizabethan legislation gradually decayed, and acts of 1745 and 1757 gave summary jurisdiction to justices of the peace to determine disputes between masters and servants in certain circumstances, although no rate of wages had been fixed that year by the justices of the peace of the shire.

These and other laws, relating specially to disputes in the cotton-weaving trade, were consolidated and amended by the Arbitration Act of 1824. This act seems chiefly to have been aimed at disputes relating to piece-work in the textile trades, though applicable to other disputes arising out of a wages contract. It expressly excluded, however, the fixing of a rate of wages or price of labour or workmanship at which the workmen should in future be paid unless with the mutual consent of both master and workmen. The act gave compulsory powers of settling the disputes to which it relates on application of either party to a court of arbitrators representing employers and workmen nominated by a magistrate. The award could be enforced by distress or imprisonment. The act was subsequently amended in detail, and by the “Councils of Conciliation” Act of 1867 power was given to the home secretary to license “equitable councils of conciliation and arbitration” equally representative of masters and workmen, who should thereupon have the powers conferred by the act of 1824.

The act contains provisions for the appointment of conciliation committees, and other details which are of little interest seeing that the act was never put into operation. Another amendment of the act of 1824 was made by the Arbitration (Masters and Workmen) Act of 1872, which contemplated the conclusion of agreements between employers and employed, designating some board of arbitration by which disputes included within the scope of the former acts should be determined. A master or workman should be deemed to be bound by an agreement under the act, if he accepted a printed copy of the agreement and did not repudiate it within forty-eight hours. Like the previous legislation, however, the act of 1872 was inoperative.

The evidence given before the Royal Commission on Labour (1891-1894) disclosed the existence of a considerable body of opinion in favour of some further action by the state for the prevention or settlement of labour disputes, and some impetus was given to the movement by the settlement through official mediation of several important disputes, e.g. the great coal-miners’ dispute of 1893 by a conference presided over by Lord Rosebery, the cab-drivers’ dispute of 1894 by the mediation of the home secretary (H.H. Asquith), and the boot and shoe trade dispute of 1895 by a Board of Trade conference under the chairmanship of Sir Courtenay Boyle. In these, and a few other less important cases, the intervention of the Board of Trade or other department took place without any special statutory sanction. The Conciliation Act passed in 1896 was framed with a view to giving express authorization to such action in the future.

This act is of a purely voluntary character. Its most important provisions are those of section 2, empowering the Board of Trade in cases “where a difference exists or is apprehended between any employer, or any class of employers, and workmen, or between different classes of workmen,” to take certain steps to promote a settlement of the difference. They may of their own initiative hold an inquiry or endeavour to arrange a meeting between the parties under a chairman mutually agreed on or appointed from the outside, and on the application of either party they may appoint a conciliator or a board of conciliation who shall communicate with the parties and endeavour to bring about a settlement and report their proceedings to the Board of Trade. On the application of both parties the Board of Trade may appoint an arbitrator.

In all cases the Board of Trade has discretion as to the action to be taken, and there is no provision either for compelling the parties to accept their mediation or to abide by any agreement effected through their intervention. There are other provisions in the act providing for the registration of voluntary conciliation boards, and for the promotion by the Board of Trade of the formation of such boards in districts and trades in which they are deficient. During the first eleven years after the passage of the act the number of cases arising under section 2 (providing for action by the Board of Trade for the settlement of actual or apprehended disputes) averaged twenty-one per annum, and the number of settlements effected fifteen.

In the remaining cases the Board of Trade either refused to entertain the application or failed to effect a settlement, or the disputes were settled between the parties during the negotiations. About three-quarters of the settlements were effected by arbitration and one-quarter by conciliation. A number of voluntary conciliation boards formed or reorganized since the passing of the act provide in their rules for an appeal to the Board of Trade to appoint an umpire in case of a deadlock. At least thirty-six trade boards are known to have already adopted this course. The figures given above show that the Conciliation Act of 1896 has not, like previous legislation, been a dead letter, though the number of actual disputes settled is small compared with the total number annually recorded.

Proposals for compulsion

Arbitration and conciliation in labour disputes as practised in the United Kingdom are entirely voluntary, both as regards the initiation and conduct of the negotiations and the carrying out of the agreement resulting therefrom. In all these respects arbitration, though terminating in what is called a binding award, is on precisely the same legal footing as conciliation, which results in a mutual 334 agreement. Various proposals have been made (and in some cases carried into effect in certain countries) for introducing an element of compulsion into this class of proceeding.

There are three stages at which compulsion may conceivably be introduced: (1) The parties may be compelled by law to submit their dispute to some tribunal or board of conciliation; (2) the board of conciliation or arbitration may have power to compel the attendance of witnesses and the production of documents; (3) the parties may be compelled to observe the award of the board of arbitration.

The most far-reaching schemes of compulsory arbitration in force in any country are those in force in New Zealand and certain states in Australia. Bills have been introduced into the British House of Commons for clothing voluntary boards of conciliation and arbitration, under certain conditions, with powers to require attendance of witnesses and production of documents, without, however, compelling the parties to submit their disputes to these boards or to abide by their decisions. In the United Kingdom, however, more attention has recently been given to the question of strengthening the sanction for the carrying out of awards and agreements than of compelling the parties to enter into such arrangements. An interesting step towards the solution of the difficulty of enforcement in certain cases is perhaps afforded by the provisions of the terms of settlement of the dispute in the boot and shoe trade drawn up at the Board of Trade in 1895.

Under this agreement £1000 was deposited by each party with trustees, who were directed by the trust-deed to pay over to either party, out of the money deposited by the other, any sum which might be awarded as damages by the umpire named in the deed, for the breach of the agreement or of any award made by an arbitration board in consonance with it. Very few claims for damages have been sustained under this agreement. Nevertheless it cannot be doubted that the pecuniary liability of the parties has given stability to the work of the local arbitration boards, and the satisfaction of both sides with the arrangement is shown by the fact that the trust-deed which lapsed in 1900 has been several times renewed by common agreement for successive periods of two years, and is now in force for an indefinite period subject to six months’ notice from either side. Theoretically a trust-deed of this kind can only offer a guarantee up to the point at which the original deposit on one side or the other is exhausted, as it is impossible to compel either party to renew the deposit.

A proposal was made by the duke of Devonshire and certain of his colleagues on the Royal Commission on Labour for empowering associations of employers and employed to acquire, if they desired it, sufficient legal personality and corporate character to enable them to sue each other or their own members for breach of agreement. This would give the association aggrieved by a breach of award the power of suing the defaulting organization to recover damages out of their corporate funds, while each association could exact penalties from its members for such a breach. For this reason the suggestion has met with a good deal of support by many interested in arbitration and conciliation, but has been steadily opposed by representatives of the trade unions.

The question is not free from difficulties. The object of the change would be to convert what are at present only morally binding understandings into legally enforceable contracts. But apart from the possibility that some of such contracts would be held by the courts to be void as being “in restraint of trade,” the tendency might be to give a strict legal interpretation to working agreements which might deprive them of some of their effectiveness for the settlement of the conditions of future contracts between employers and workmen, while possibly deterring associations from entering into such agreements for fear of litigation. Individuals, moreover, could avoid liability by leaving their associations. In practice the cases of repudiation or breach of an award or agreement are not common. In countries like New Zealand, where the parties are compelled to submit their differences to arbitration, some of the above objections do not apply.

Source: Encyclopedia Britannica (1911)

Resources

See also

Good offices
Mediation