550
ABBITRATION
AND
CONCILIATION
IN
LABOUR
DISPUTES.
mendations, though either side may decline to accept them and may appeal to the Court of Arbitration, which in that colony has compulsory powers. Most frequently, however, in Great Britain ,the mediating party abstains from pronouncing a definite judgment of his own, but confines himself to friendly suggestions with a view of removing obstacles to an agreement between the parties. On the other hand, it is not easy to define how far the “outside party” must be independent of the parties to the dispute, in order that the method of settlement may be properly described as “ conciliation.” There is a sense in which a friendly conversation between an employer or his manager and a deputation of aggrieved workmen is rightly described as “ conciliation,” but such an interview would certainly not be covered by the term as ordinarily used at the present day. Again, when the parties are represented by agents (e.g., the officials of an employers’ association and of a trade union) the actual negotiators or some of them may not personally be affected by the particular dispute, and may often exercise some of the functions of the mediator or conciliator in a manner not clearly to be distinguished from the action of an outside party. It seems best, however, to exclude such negotiations from our purview so long as those between whom they are carried on merely act as the authorized agents for the parties affected. In the same way a meeting arranged ad hoc between delegates of an employers’ association and a trade union, for the purpose of arranging differences as to the terms on which the members of the association shall employ members of the union is not usually classed as “conciliation,” unless the meeting is held in the presence of an independent chairman or conciliator, or in pursuance of a permanent agreement between the associations laying down the procedure for the settlement of disputes. If, however, the dispute is considered and arranged not by a casual meeting between two committees and deputations appointed ad hoc, but by a permanently organized “joint committee” or board with a constitution, rules of procedure, and officers of its own, the process of settlement is by ordinary usage described as “conciliation,” even though the board be entirely representative of the persons engaged in the industry. Such joint boards, as will be seen, play a most important part in conciliation at the present day, and they almost always have attached to them some machinery for the ultimate decision by arbitration of questions on which they fail to agree. Another form of conciliation is that in which the mediating board represents a wider group of industries than those affected by the dispute {e.g., the London and other “ district ” boards referred to below). Moreover, in some of the most important cases of settlement of disputes by conciliation, the mediating party has not been a permanent board but a disinterested individual, e.g., the mayor, county court judge, government official, or member of parliament. As will be seen below, the Conciliation Act now provides for the appointment of “conciliators” by the Board of Trade. Voluntary trade boards, however (i.e., permanent joint boards representing employers and work-people in particular trades), are at once the most firmly established and the most important agencies in Great Britain for the prevention and settlement of labour disputes. Among the earliest of such bodies was the board of arbitration in the Maccles1 The House of Lords decided, in the Taff Vale Railway case (1901), field silk trade, formed in 1849, in imitation of the French that trade unions may be sued in tort, but the decision does not refer “ Conseils des Prud’homines,” but which only lasted four to their status as regards contracts. years. The first board, however, which attained any
THE terms “arbitration and conciliation,” as employed in this article, are used to describe a group of methods of settling disputes between employers and workpeople or among two or more sets of work-people, of which the common feature is the intervention of some outside party not directly affected by the dispute. If the parties agree beforehand to abide by the award of the third party, the mode of settlement is described as “arbitration.” If there be no such agreement, but the offices of the mediator are used to promote an amicable arrangement between the parties themselves, the process is described as “conciliation.” The third party may be one or more disinterested individuals, or a joint-board representative of the parties or of other bodies or persons. The process here termed “ arbitration ” is rarely an arbitration in the strict legal sense of the term (at least in the United Kingdom), because of the defective legal personality of the associations or groups of individuals who are usually parties to labour disputes, and the consequent absence in the great majority of cases of a valid legal “submission” of the difference to arbitration. Trade unions, whether consisting of employers or workmen, in the United Kingdom are not corporate bodies capable of entering through their agents into legally binding contracts. Consequently a written agreement on the part of the representatives of employers and workmen to submit a dispute to the decision of a third party is of no legal force except as regards the actual signatories.1 Broadly speaking, therefore, the provisions of the Arbitration Act, 1889, which consolidated the law relating to arbitration in general, would as a rule have no application to the settlement of collective disputes between employers and workmen, even if the Act had not been expressly excluded by section 3 of the Conciliation Act of 1896 in the case of disputes to which that Act applies. Besides the absence of a legal “submission,” labour arbitrations differ from ordinary arbitrations in the fact that the questions referred often (though by no means always) relate to the terms on which future contracts shall be made, whereas the vast majority of ordinary arbitrations relate to questions arising out of existing contracts. The defective “ personality ” of the parties to labour disputes also prevents the enforcement of an award by legal penalties. Since, however, difficulties of enforcement affect not only settlements arrived at by arbitration, but all agreements between bodies of employers and work-people with regard to the terms of employment, they are most appropriately considered at a later stage of this article. The term “ conciliation ” is ordinarily used to cover a large number of methods of settlement, shading off in the one direction into “arbitration” and in the other into ordinary direct negotiation between the parties. In some cases conciliation only differs from arbitration in the absence of a previous agreement to accept the award. The German “ Gewerbegerichten” when dealing with labour disputes, communicate a decision to both parties, who must notify their acceptance or otherwise (see below). The State Board in Massachusetts sometimes takes similar action. The conciliation boards established under the New Zealand Arbitration Act of 1894 (see below) make recom-
