Page:EB1911 - Volume 02.djvu/349

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334
ARBITRATION AND CONCILIATION

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.

The following statistics are based on the reports of the Labour department of the Board of Trade. The number of boards of conciliation and arbitration known to be in existence in the United Kingdom is nearly 200, but a good many of Statistics of existing agencies. these do little or no active work. Only about one-third of these boards deal with actual cases in any one year, the active boards being mainly connected with mining, iron and steel, engineering and shipbuilding, boot and shoe and building trades. During the ten years 1897-1906 the total number of cases considered by these boards averaged about 1500 annually, of which they have settled about half, the remainder having been withdrawn, referred back or otherwise settled. About three-quarters of the cases settled were determined by the boards themselves and only one-quarter by umpires. The great majority of the cases settled were purely local questions. Thus more than half the total were dealt with by the “joint committees” in the Northumberland and Durham coal trades, which confine their action to local questions, such as fixing the “hewing prices” for new seams. The great majority of the cases settled did not actually involve stoppage of work, the most useful work of these permanent boards being the prevention rather than the settlement of strikes and lockouts. A certain number of disputes are settled every year by the mediation or arbitration of disinterested individuals, e.g. the local mayor or county court judge.

The extent to which the methods of arbitration and conciliation can be expected to afford a substitute for strikes and lockouts is one on which opinions differ very widely. The difficulties arising from the impossibility of enforcing Future scope and limits. agreements or awards by legal process have already been discussed. Apart from these, however, it is evident that both methods imply that the parties, especially the work-people, are organized at least to the extent of being capable of negotiating through agents. In some industries (e.g. agriculture or domestic service) this preliminary condition is not satisfied; in others the men’s leaders possess little more than consultative powers, and employers may hesitate to deal either directly or through a third party with individuals or committees who have so little authority over those whom they claim to represent. And even where the trade organizations are strong, some employers refuse in any way to recognize the representative character of the men’s officials. The question of the “recognition” of trade unions by employers is a frequent cause of disputes (see Strikes and Lock-outs.) It may be observed, however, that it often occurs that in cases in which both employers and employed are organized into associations which are accustomed to deal with each other, one or both parties entertain a strong objection to the intervention of any outside mediator, or to the submission of differences to an arbitrator. Thus the engineering employers in 1897 were opposed to any outside intervention, though ready to negotiate with the delegates chosen by the men. On the other hand, the cotton operatives have more than once opposed the proposal of the employers to refer the rate of wages to arbitration, and throughout the great miners’ dispute of 1893 the opposition to arbitration came from the men. Naturally, the party whose organization is the stronger is usually the less inclined to admit outside intervention. But there have also been cases in which employers, who refused to deal directly with trade union officials, have been willing to negotiate with a mediator who was well known to be in communication with these officials, e.g. in the case of the Railway Settlement of 1907.

Apart, however, from the disinclination of one or both parties to allow of any outside intervention, we have to consider how far the nature of the questions in dispute may in any particular case put limits to the applicability of conciliation or arbitration as a method of settlement. Since conciliation is only a general term for the action of a third party in overcoming the obstacles to the conclusion of an agreement by the parties themselves, there is no class of questions which admit of settlement by direct negotiation which may not equally be settled by this method, provided of course that there is an adequate supply of sufficiently skilful mediators. As regards arbitration the case is somewhat different, seeing that in this case the parties agree to be bound by the award of a third party. For the success