The Importance of Arbitration in Contemporary Labour Disputes: A Clarification of the Compulsory or Optional Arbitration Issue Essay

Abstract

The research aims to explore the contemporary importance, in terms of appropriateness and sufficiency, of arbitration in different areas and forms of labour disputes and the implications on the compulsory or optional arbitration debate as well as identify areas for improvement. Completing the study would contribute to the clarification of the debate over the compulsory or optional use of arbitration in resolving labour disputes. The study would also renew understanding of the importance of arbitration in the settlement of labour disputes by determining the range of applicability and limits and scope of utility of arbitration in different areas and forms of labour disputes. The research would employ qualitative study to gather a wide range of secondary data through desk or library research and analyse data using multiple methods, including thematic organisation and comparison, to derive conclusions and recommendations. The research would be organised into eight chapters.

Background of the Study

            The arbitration of labour disputes emerged in the context of collective bargaining processes in unionised organisations. Until the early 1990s, arbitration remained a popular means of resolving labour disputes such as wage increase, unfair dismissal, and other unfair labour practices resulting in lock-outs or strikes. However, the decentralisation of wage-setting and decline of unionisation in organisations slowed down labour arbitration in the context of collective bargaining agreements and unionisation as a growth industry. Nevertheless, arbitration remains an important alternative in resolving disputes in existing unionised organisations.

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The emerging and increasing frequency of labour disputes in non-unionised organisations filling the docket of the labour tribunal or the courts comprised an opportunity for arbitration as an alternative means of resolving labour disputes. The complexities of political, legal, economic and socio-cultural environment of labour created new areas of disputes such as wrongful termination based on the terms of the employment contract, various forms of discrimination, and unfair treatment at the workplace that could also become areas for arbitration. Arbitration has a wide potential for use in resolving various labour disputes through the benefits of confidentiality, flexibility, finality of the agreement, and easy enforceability of the awards. These contributed to its continuing popularity.

The popularity of arbitration and its success as an alternative means of resolving labour disputes gave rise to the divergence in opinion on whether arbitration should be made compulsory or optional in labour disputes. Some court decisions have validated arbitration clauses in contracts but some experts and practitioners questioned the appropriateness and sufficiency of arbitration in covering different areas of labour disputes. The issue cuts across the importance of arbitration in resolving different areas and forms of labour disputes.

Research Problem & Questions

            The overall importance of arbitration as an alternative means of resolving labour disputes is undeniable. However, its relative appropriateness and sufficiency in resolving various specific labour disputes has been questioned in the debate over whether arbitration should be compulsory or optional in labour disputes. Some believe that arbitration of labour disputes should be compulsory. However, others think that it should be optional. Resolving the issue requires a consideration of the application or use of arbitration in labour disputes, the relative appropriateness and sufficiency of arbitration in particular areas or forms of labour disputes, and the derivation of areas for improvement on the role of arbitration in labour disputes.

            To address this research problem, the study would answer the following questions:

How does arbitration apply as an alternative means of resolving labour disputes?
How does arbitration resolve different particular areas or forms of labour disputes?
What are the arguments for compulsory and optional use of arbitration in resolving labour disputes?
What are the challenges experienced in using arbitration to resolve labour disputes?
How can arbitration processes be improved to enhance its effectiveness in resolving labour disputes?
Research Importance

            Conducting the research would yield a number of beneficial outcomes. The results would contribute to the resolution of the issue on whether arbitration should become compulsory or optional in labour disputes. The resolution of this issue would determine the place and position of arbitration in labour disputes by determining the limitations and scope of arbitration in particular areas or forms of labour dispute. The study would also renew the understanding and appreciation of the role of arbitration as a tool in the settlement of contemporary and emerging labour disputes. The investigation would also point to the challenges in utilising arbitration in resolving different areas and forms of labour disputes and derive recommendations in achieving these improvements for the benefit of practitioners.

Research Aim & Objectives

            The research aims to explore the contemporary importance, in terms of appropriateness and sufficiency, of arbitration in different areas and forms of labour disputes and the implications on the compulsory or optional arbitration debate as well as identify areas for improvement.

The following objectives should guide the accomplishment of this aim:

To trace the development of arbitration as an alternative tool in resolving labour disputes.
To identify the reasons for selecting arbitration in resolving labour disputes.
To determine the appropriateness and sufficiency as well as limits and scope of arbitration in different areas and forms of labour disputes.
To analyse the arguments in support of the compulsory and optional application of arbitration in labour disputes.
To recommend ways of improving the role of arbitration in resolving labour disputes.
Research Methodology

The research is a qualitative study because the purpose is to consider different accounts, descriptions or explanations of the importance of arbitration in labour disputes from practitioners and experts in arbitration and labour law. The qualitative study is the appropriate approach because the intention is to draw a wide range of opinions and perspectives on arbitration in labour disputes as opposed to the collection of measurable data in quantitative studies. The collection of accounts and descriptions supports the data requirements of the study.

The data collection method is desk, library or secondary research by searching through different databases for books, journal articles, official or government reports and publications, research papers, commentaries, court cases and opinions, and other documents on arbitration in labour disputes to draw a wide range of ideas, opinions and perspectives. This is the appropriate method since the study requires the consultation of different views on the topic.

Research analysis is through the organisation of ideas into themes based on the research questions; comparison of ideas, opinions and perspectives; critical analysis of competing or opposing ideas, opinions and perspectives; and determination of implications relative to the research objectives. Employing multiple methods of analysis would provide answers to the research questions and fulfil the aim and objectives.

Employing the qualitative study gives rise to the issues of reliability and validity. The issue on reliability is the repeatability of the results that do not use measures. The research would address this issue by utilising a wide range of opinions and perspectives to secure the representation of divergent ideas and ensure a significant level of repeatability. The issue on validity is securing appropriate conclusions or outcomes from the data collected and methods used in gathering and analysing data. The research would address this issue by using a wide range of sources and multiple methods of analysis to corroborate the outcomes.

The progress of completion of the study would coincide with the researcher’s three-year PhD degree as shown in the table below.

1st  quarter
2nd quarter
3rd quarter
4th quarter
5th quarter
6th quarter
7th quarter
8th quarter
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12th quarter
Draft Research Proposal

Final Research Proposal

Preliminary Collection of Data

Methodology Development

Collection of Data

Analysis of Data

First Draft

Second Draft

Final Paper

Organisation of the Research

            The research paper will be organised into eight independent but interrelated chapters shown in the table below. Chapter 1 provides a history of the role and use of arbitration in the settlement of labour disputes. Chapter 2 identifies the reasons for selecting arbitration in the resolution of labour disputes. Chapter 3 discusses the appropriateness and sufficiency of arbitration in resolving different labour disputes by using cases or examples of different areas and forms of labour dispute resolved through arbitration. Chapter 4 determines the limitations and scope of arbitration in the resolution of labour disputes based on the previous chapter. Chapter 5 considers the arguments for the compulsory and optional use of arbitration in labour disputes and provides a critical analysis of the contradicting arguments. Chapter 6 focuses on the challenges or difficulties in employing arbitration in labour disputes. Chapter 7 identifies the viable solutions to these challenges. Chapter 8 contains the conclusion relative to the research questions and objectives and recommendations for future study.

Chapter 1
The Development of Arbitration in the Settlement of Labour Disputes
Chapter 2
The Reasons for Selecting Arbitration in Resolving Labour Disputes
Chapter 3
The Appropriateness and Sufficiency of Arbitration in Resolving Various Areas and Forms of Labour Disputes
Chapter 4
The Limitations and Scope of Arbitration in Resolving Labour Disputes
Chapter 5
The Arguments for Compulsory and Optional Arbitration in Labour Disputes
Chapter 6
The Challenges in Using Arbitration in Resolving Labour Disputes
Chapter 7
The Viable Means of Improving the Use of Arbitration in Resolving Labour Disputes
Chapter 8
Conclusion and Recommendations