Dispute Resolution in the Public Service – past achievements and future innovation Dawie Bosch 14 February 2005, PSCBC Conference 2005

Overview Highlight key achievements Raise issues for possible future development Working towards a vision on dispute resolution in the public service Taken some liberty to presume to pronounce on a possible vision of the future for dispute resolution in the public service. Focus of paper: on the dispute procedure, rather than on the nature and content of negotiations on terms and conditions of employment.

How does PS compare to other forums? Conclusion – relatively few disputes are referred in the public service.

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

Types of disputes referred ULP much more prevalent than in CCMA, but less common than in other BCs.

Wider scope for role of Public Sector Councils (1)? PS Councils have achieved high standards of service delivery to their sectors. Despite some growth pains in the past, Councils generally are coping with workloads. –Although turn-around time can be improved. Parties generally have confidence in referring cases. There is scope for extension to services rendered.

Wider scope for role of Public Sector Councils (2)? Potential benefits of widening scope: –Using panelists that know the sector. –Lower cost and quicker resolution. Some services have already been extended: –ELRC is engaging more frequently, with consent of parties, in facilitation of wider disputes / issues, such as restructuring. –PHWSBC is debating widening scope to conciliate and arbitrate unfair discrimination disputes, where both parties agree.

Overall achievements Improvements over past years: –Councils have developed sufficient administrative capacity –High standards of service delivery to their sectors; –Professional panels of dispute resolvers. Despite some growth pains in the past, Councils generally are coping with workloads, although turn-around time can be improved. Fine-tuned dispute procedure, and adopted dispute resolution rules in most of the councils. –The dispute procedures of the various councils, and specific innovations that have assisted to address problem areas, are described in the Conciliation and Arbitration Handbook. Parties generally seem to have confidence in referring cases.

Wider scope for role of Public Sector Councils (1)? There is scope for extension to services rendered. Potential benefits of widening scope: –Using panelists that know the sector. –Lower cost and quicker resolution. Some services have already been extended: –ELRC is engaging more frequently, with consent of parties, in facilitation of wider disputes / issues, such as restructuring. –PHWSBC is debating widening scope to conciliate and arbitrate unfair discrimination disputes, where both parties agree.

Wider scope for role of Public Sector Councils (2)? Disputes that could be considered for future resolution by PS Councils, usually with the consent of both parties: –Unfair discrimination –Other disputes that must usually be referred to the LC. –Individual contract-type disputes, including payment and unresolved BCEA disputes –Broader facilitation on process that could lead to disputes, where independent facilitation is not used

Cost of the PS Councils Cost per referral is relatively low. Costs per referral reduced : –Screening of cases by the Secretary, ensuring that: Clear cases of no jurisdiction are referred to correct forum; Incomplete referrals are corrected. –Increase case load in a council such as the GPSSBC. Need to address regular increase in income: eg automatic levy increase in ELRC, linked to the % salary increases.

Panels of dispute resolvers (1) Already in place (in some councils): –Selection of panelists: Use of ‘objective’ criteria in some councils –Smaller panels, with due attention to quality. Allows panelists to develop better knowledge of the sector Focused training of panelists –Discretionary power for secretaries in some councils to use higher fee-paying panel members Future: –Ensure adequate annual increases to avoid erosion of panel –Use of a senior panel, where appropriate. –Quality control; Checking quality of awards Best method: correct selection; briefings; appropriate fees

Panels of dispute resolvers (2) Communicate principles considered in awards –Post key awards on the internet –Summaries of decisions –Effective search engine Whether to defend applications for reviews in some circumstances?

Role of parties and secretariats Parties may have controlled too closely the process of adapting procedures –Negotiators do not always have experience in day-to- day problems of dispute resolution in the councils –Long delay in finalizing review of dispute procedures –Important issues not addressed Role of secretariats –Key to effective functioning of a council –Relationships between secretariats and parties have grown over the years. –Still scope for more trust being placed in secretariats, where appropriately skilled. More skill in the secretariats and more confidence by parties in the secretariat –to fulfill functions that will streamline dispute procedures, such as vetting of applications, appointment of panelists

Coordination of DRP in public service councils? Appropriate to have a general core of shared principles and procedures Supplemented with appropriate adaptations for each sector, –Ie appropriate tweaking of procedures

Some specific innovations Expedited procedures in the ELRC –Allowing flexibility to bring in conarb when in appropriate. –Panellist selected by secretary, not the parties Pre-dismissal arb – Council paying fully for hearings Compulsory pre-arb meeting in the SSSBC, to avoid postponements

Information Improve provision of information to parties and employees Clear description of similarities and differences between different councils, to be readily available. Key principles considered in arbitration awards to be summarised and available to all users.