Resolutionâ, Final version printed in Soziologische Jurisprudenz. Festschrift für Gunther Teubner. Ed. by G.-P. Calliess, A. Fischer-Lescano, D. Wielsch.
(Festschrift Gunther Teubner)
Reflexive Regulation of Labour and Employment Conflict Resolution Ralf Rogowski Ralf Rogowski “Reflexive Regulation of Labour and Employment Conflict Resolution”, Final version printed in Soziologische Jurisprudenz. Festschrift für Gunther Teubner. Ed. by G.-P. Calliess, A. Fischer-Lescano, D. Wielsch and P. Zumbansen. Berlin: De Gruyter Recht 2009, pp 573-586.
Reflexive law can offer research on labour conflict resolution a new paradigm. Niklas Luhmann‟s and Gunther Teubner‟s insights in autopoietic social systems and conditions of legal regulation shall be utilised in the following to rethink some basic features of labour and employment conflict resolution.
Reflexivity in Law
Reflexive law, including reflexive labour law, shares main features of autopoietic social systems theory, including the notion of modern society as a functionally differentiated society that consists of a variety of self-reproducing social systems. Of particular importance for reflexive labour law 1 are two autopoietic function systems: the legal system and its internal differentiation into subsystems or subdisciplines 2 and the industrial relations system which I have proposed to view as an autopoietic function system of society 3. Labour and employment conflict resolution differs in relation to the social system in which it takes place. A basic insight that can be derived from systems theory for a theory of labour and employment conflict resolution is that types of conflicts differ according to their system reference and that their resolution is fundamentally shaped by the social system in which they occur. In applying this insight we can distinguish three “arenas”: collective conflict resolution in the industrial relations system,
1
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employment conflict resolution, respectively the handling of disputes between an employer and an employee at company level, and judicial decision-making. The thesis of this chapter is that the modern approach in regulating labour and employment conflict resolution is characterised in all three contexts by reflexive processes of regulation of self-regulation and recursive decision-making. This shall be demonstrated with respect to examples of regulation of self-regulation in industrial relations and in company contexts, regulation of decision-making at the judicial level, and the recognition of labour market concerns in labour and employment conflict resolution. In general terms we can distinguish analytically processes of reflexivity from processes of reflexion. Reflexivity can be defined as a solution applied to itself. In a number of assessments of the advanced modern society, reflexivity is claimed to be the defining feature of modern society (Beck, Giddens, Luhmann) and its law (Luhmann, Teubner). In these accounts modern society develops reflexive mechanisms and engages in processes of reflexion in which it becomes aware that it is increasingly occupied with solving problems that it created for itself. The theory of reflexion describes and analyses various forms of self-awareness of the system. These include basic operations of self-reference, forms of self-observation and modes of self-description. Through reflexion systems become autonomous. Examples of reflexion are the conscious use of techniques how to learn (learning of learning), the introduction of legislation that regulates legislation (legislation of legislation or standardisation of standardisation) and deciding how to decide (decision-making of decision-making). 4 In our context we can add the attempt to solve conflicts that arise from conflict resolution. Both, the use of reflexive mechanisms and processes of reflexion, can be found in labour and employment conflict resolution. A reflexive process in conflict resolution occurs when it distinguishes itself from conflict regulation. 5 In other words conflict resolution becomes reflexive when it perceives itself as conflict regulation. Regulation of conflict is in this view a form of conflict resolution that uses its mechanisms to regulate itself. The distinction between conflict resolution and regulation of other systems is a wellknown feature of the legal system. 6 However, the line between conflict resolution and 2
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regulation as two distinct results of procedure is not always easy to draw. Indeed, whether conflict resolution also means regulation depends on the scope of the conflict, the characteristics of disputants involved and the issues of the conflict. Procedures serve different functions for individual employment disputes and collective labour conflicts. Arbitration procedures for collective conflicts form part of the immune system of the industrial relations system. Labour courts, on the other hand, are judicial bodies for employment disputes which belong to the institutional structure of the legal system.
Self-regulation in industrial relations and in company contexts
National, sectoral and workplace industrial relations operate with a host of alternative dispute resolution mechanisms. These include arbitration, mediation and conciliation as well as grievance and dispute procedures which are prevalent modes of labour and employment conflict resolution in companies. These procedures are regulated by law or by collective agreements, often by both. If regulated by law, bipartite procedures usually have to adhere to basic democratic principles, for example election of representatives. In relation to the industrial relations system, the regulation of industrial action is most important for the development of industrial relations as a social system. 7 In a sociological perspective three stages can be distinguished in the evolution of industrial relations and collective bargaining: a conflictual, a cooperative, and a participatory or collaborative stage 8. These stages are characterised by different styles of communications between the collective parties. Mechanisms of labour conflict resolution and their functions do not only change while the industrial relations system advances from one stage to the next, but also contribute in decisive ways to these changes. In the early stages of the development of an industrial relations system the institution “collective bargaining” is hardly distinguishable from arbitration. 9 Industrial conflict is the prevalent mode of interaction; negotiations only take place in the context of conflict resolution. In response the law of industrial conflict develops which
3
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encompasses in general limitations on the right to strike and lockouts 10 and provisions regulating liability for collective action 11. In order to enhance stability the industrial relations system tends to introduce in the second stage a body of norms which aims at a non-conflictual and cooperative basis of collective bargaining.12 This is supported by the introduction of the distinction of conflicts of interest and conflicts of rights. 13 The development of norms for the resolution of industrial conflict is facilitated by the state in a number of industrialised countries, including Germany, France and the United States. The development in Britain was different because the system of voluntary industrial relations14 prevented active state participation; however, procedural and institutional means were offered to support autonomous self-regulation. 15 In the third phase of the development of collective bargaining and industrial relations the treatment of collective conflicts is often delegated to procedures which are separated institutionally from collective bargaining over collectively negotiable issues. Collective bargaining becomes a process of co-decision-making in which both parties realise that they rely on each other to achieve a common goal. The parties begin to define themselves as parts of the industrial relations system. The participating organisations transform into intermediaries who serve their members through representation in collective bargaining and other forms of collective cooperation.16 A good example of self-regulation of conflict resolution in industrial relations is the German practice to regulate mediation and arbitration procedures in separate collective agreements. This differentiation of collective bargaining procedures into negotiation and conflict resolution is an important evolutionary achievement of the industrial relations system. It is also a good example of using the reflexive mechanism of resolving the conflict how to solve a conflict or of deciding how to decide. There are a number of ways how a labour law system realises the needs of the industrial relations system for self-regulation. An example is the proceduralisation of arbitration as a result of judicial policies in Germany.17 Both the legal doctrine and the judicial policy of the Federal Labour Court have created legal structures of conflict resolution and collective bargaining which favour procedural requirements over substantive conditions. In particular the concept of power parity (Kampfparität)
4
indicates a withdrawal of substantive welfare state intervention in favour of procedural solutions which are not only acceptable to the negotiating parties but also compatible with major structures of the collective bargaining system and principles of the welfare state representing the public interest. In addition “power parity” based on the principle of proportionality is a legal concept which appears to establish a “sound” basis for judicial review of industrial actions accompanying collective bargaining. Inherent in the concept of power parity is the tendency to favour compromise over “all or nothing” decisions. The use of reflexive mechanisms and reflexion can also be observed in the company context. Grievance and dispute procedures at company level form part of a system of shop floor rules. The legal nature of shop floor rules varies among countries. Shop floor rules have been a major concern in British labour law for some time. Since the issuing of the Donovan report 18 , employment policies have placed high emphasis on these rules. The legal approach was supposed to reflect the voluntarist tradition to rely on self-regulation at company level. The solution was the so-called Code of Practice which was designed by a government agency (ACAS) as a model procedure to be implemented by companies. Self-regulation through disciplinary and grievance procedures has been further supported by the introduction of the employee right to be accompanied in attending a disciplinary or grievance hearing. 19 From a reflexive labour law point of view, the Codes of Practice and the introduction of a right of representation are forms of legal recognition of self-regulation. The status of the legal provisions is facilitative. Employers are forced by circumstances and conditions over which they have control to implement the code, but not by force of law. By not following the code or ignoring the right of representation employers can take the risk of losing in an employment tribunal. Reflexivity also characterises US labour law in its attempt to regulate grievance arbitration. US labour law is characterised by sophisticated forms of regulation of self regulation. In the unionised sectors it delegates decision-making powers in employment conflicts to private arbitration. This system of grievance procedures with final and binding arbitration concentrates the settlement of disputes on an intra company, on-the-spot and private level, free from both state intervention and judicial review. Supported by the courts and by administrative agencies, the grievance
5
arbitration system is given a high degree of autonomy. Its main actors, i.e. management, unions and arbitrators, actively engage in maintaining private decisionmaking at local company level.20 It has to be mentioned however that the US system of labour and employment conflict resolution has witnessed over a number of decades an almost continuous decrease of union-management controlled systems and an increase of human resource management (HRM) systems without union participation. It has long been argued that the non-union grievance procedure systems should essentially be understood as response to the union supported grievance arbitration system. 21 However, in newer research, alternative explanations have been put forward for the introduction of nonunion dispute resolution systems. According to Catherine Stone, high compensation awards in discrimination cases and a willingness of courts to grant compensation for unfair dismissals (just cause requirement) have been important factors for an increase of non-union disciplinary and grievance procedures. 22 In Germany collective conflicts are handled at company level in special procedures that are closely linked to the system of German works council and internal collective bargaining. It allows works councils and unions to enter into company agreements (Betriebsvereinbarung) or firm-level collective agreements (Firmentarifvertrag). In case of disagreement over these agreements or over their enforcement or interpretation as well as redundancy decisions, the works council or management can request that a tripartite arbitration panel is used (Einigungsstelle). These arbitration panels at the company level nowadays increasingly handle conflicts which could go to the labour courts. They have adopted judicial standards and show some tendency of legalism which derives not least from the participation of labour court judges as arbitrators.
23
A recent survey revealed that works councils oppose management
hostility by making frequent use of arbitration panels.
24
Arbitration panels can become sites of reflexion in companies. Dispute resolution provides opportunities for considerations of the “company interest” and the “public interest of the enterprise in itself”, in particular in relation to its internal and external social environment.
25
In internally controlled dispute procedures a range of
stakeholders engage in defining and redefining the company‟s self-understanding, albeit with a strong focus on the social responsibility of the company. Furthermore, in the context of codetermination bipartite or tripartite collective decision-making at 6
company level creates a potential for producer coalitions. 26 Labour conflict resolution offers models for decentralised economic decision-making in corporate networks and it seems to fit the trend of involution of neo-corporatist arrangements from macrocorporatism to microcorporatism that Gunther Teubner has observed. 27
Reflexive regulation of decision-making at the judicial level
Labour and employment conflict resolution in the judicial system is carried out in meso-corporatist structures. 28 Despite diverse historical trajectories, labour courts reveal remarkable organisational similarities in relation to these corporatist structures29. With few exceptions labour courts have tripartite. The main exception are the bipartite French councils of wise men (conseils de prud‟hommes) which are the oldest labour courts. The first Conseil was introduced in 1806 in Lyon to adjudicate and enforce a complex set of economic, legal and social norms of the local silk industry. Until today the Conseil is a lay court with no professional lawyer on the bench. Since 1848 it has been bipartite with an equal number of employer and employee representatives serving as judges. The employee judges are elected. The court‟s procedure is divided into an obligatory conciliation phase and a judgement phase. Despite a number of reforms, notably in the 1970s, the reputation of the Conseils is rather low. There is a high appeal rate, especially in cases in which the employer has lost and theses appeals are handled by appeal courts of the ordinary judiciary. 30 Like their French counterparts, German labour court proceedings are divided into an obligatory conciliation phase and a judgement phase. However, the bench is tripartite with a legally qualified chairperson and an employer and an employee lay judge. The first labour courts were introduced in 1926. They handle all disputes arising from the employment relationship and, in addition, statutory claims of collective industrial actors, mainly works councils. The German labour court system is autonomous and
7
creates an independent pillar within the German judicial system. The appeals go first to the State Labour Court and then for a final decision to the Federal Labour Court. In Great Britain labour courts were first introduced as industrial tribunals in 1964 and were renamed into employment tribunals in 1998. Like their German counterparts the employment tribunal bench is tripartite with a legally qualified barrister or solicitor serving as chairperson and two lay members representing the employer and the employee side. The procedure differs significantly from their continental counterparts and is modelled on the rather cumbersome adversary common law model with lengthy cross witnessing and a rather passive bench. There are no attempts to conciliate the case by the tribunal. Conciliation is handled prior to the hearing by the separate agency Advisory, Conciliation, and Arbitration Service (ACAS).31 Appeals go to the Employment Appeals Tribunal and then to the Court of Appeal and finally to the House of Lords. There are no courts in the United States comparable to European labour courts. However, the private system of final and binding grievance arbitration constitutes a functional equivalent. In addition there exist agencies for the protection and enforcement of union rights, anti-discrimination laws and health and safety standards. Some of these agencies, in particular the NLRB, operate with quasi-judicial forms of decision-making. If we analyse recent developments in labour courts, we can detect examples of reflexive regulation of decision-making at the judicial level. Advanced labour courts discover that they are most successful in regulating social relations by regulating themselves. Judicial procedures are a preferred target. The reform of procedures in terms of procedural differentiation is largely a result of legal self-regulation. Since they are internal affairs of the judicial system we are in Teubner‟s realm of internal “variation of conditions of „access to justice‟” 32. In addition, the legal system regulates other subsystems through procedural requirements. Resort to procedural regulation is a main form of recognition of selfregulation of the industrial relations system by labour courts. However, labour courts facilitate industrial relations for their own purposes of extending legal autonomy in their field of law.
There are several examples of how labour courts try to
instrumentalise industrial relations procedures for their purposes.
8
In their formative period in the 1970s, British Industrial Tribunals went beyond mere recognition of industrial self-regulation and actively endorsed and directly controlled the employer's use or non-use of dispute procedures; they developed a reasonableness test linking the judgement of dismissals to procedural fairness.33 The Court of Appeal reversed this line of decision-making, thereby arguing that such a direct linkage would lead to formalistic results.34 In fact, the courts stopped the instrumentalisation of company procedures for purposes of judicial decision-making and this can be seen as enhancing the autonomy of industrial relations decision-making. Labour court procedures tend to be flexible in finding suitable solutions for ending a case that satisfy the disputing parties. French and German labour court proceedings start with an obligatory conciliation session and are required to seek conciliation at every stage of the procedure. Although only the parties can ultimately decide on this option of a conciliated or mediated settlement, they often do so with the active encouragement of the judge.35 This to some extent delegates decision-making to the parties themselves. A settlement reached in conciliation cannot be appealed, and therefore removes the dispute from the legal system at this stage. During conciliation German labour courts engage in active recognition of other forms of regulation. In conciliation about the dismissal of an employee, it is not uncommon for labour courts to propose a solution which suits the regulation of the unemployment agency to secure the dismissed employees an immediate payment of unemployment benefits, and to adopt the agency's view as terms of the settlement. However, labour courts encourage the reference to an absent third party in their own interest. The judges can more easily convince the parties to agree to a settlement when there is an option of calling in a third party. And settlements relieve the court of the obligation to produce a written decision. In relation to encouraging the use of procedures in company contexts, it makes an important difference if procedural regulation means control of self-regulation or control of unilateral decision-making by a small entrepreneur.
Whereas early
judicialisation of employment conflicts in large companies might only disturb selfregulation, in small firms it often is the only option and can rapidly lead to overcoming the stalemate and the loss of communication in the personal reemployment relationship resulting from the disciplinary or dismissal action. The finding that employment conflicts of small firms are over-represented in German 9
labour courts suggests a differentiation of judicial procedures for claims arising from small and from large companies.36 Regulation of conflict resolution at the judicial level might therefore lead to demands for procedural differentiation according to the degree of prior juridification of employment conflicts. Retreat to proceduralism at the judicial level thus can also mean new procedures. A developing field of reflexive decision-making in European labour courts is their interaction with the European Court of Justice. European Union law offers, with its preliminary ruling procedure37, any court or publicly recognised arbitration panel the possibility to refer a question of interpretation of European Union law to the European Court of Justice. Research has found out that there are remarkable differences in the use of the procedure among labour courts in Europe. A study of developments in six member states in the area of gender equality shows that German labour courts and British industrial and employment tribunals have been more active than their French and Danish counterparts, not to mention the very low activity rates of courts in Italy and Spain. 38 Although there are a number of factors that influence the practice, differences in the labour court systems are decisive. The German labour courts are used to judicial activism and repeated references if a decision of a higher court is not workable. 39 They indeed engage in reflexive decision-making to pursue their own judicial policies.
Reflexive labour and employment conflict resolution and the labour market
The biggest challenge to current labour conflict resolution results from fundamental transformations of the labour market. 40 Both collective bargaining and decisionmaking in labour courts is increasingly confronted with problems of dynamic labour markets and changing forms of employment. These challenges require from labour courts and collective bargaining systems a reflexive understanding of their regulatory capacities and their role and impact on the labour market. In collective bargaining we find a worldwide trend to broaden negotiation agendas to include working conditions. Collective actors increasingly engage in labour market policy. The reference to labour market conditions (high unemployment) can be used to shape the collective bargaining agenda in a certain direction. A prominent example 10
is reduction of working time. By shortening the normal working time companies are forced to hire additional employees, at least in theory. Furthermore, although an issue that belongs traditionally to the canon of collective bargaining topics, it also fits into political and legislative efforts to raise the employment rate. For example, with its Working Time Directive the EU does not only provide a level-playing field for its Member States in terms of employment protection but also pursues a policy objective that fits the Lisbon Agenda of increasing the employment rate to reach 70% of the EU‟s working population by 2010. In the US, state courts have used favourable labour market conditions (low unemployment) to engage in compensatory judicial policies. In response to the decline of unionisation and subsequent loss of protection by collective agreements, some state courts have introduced the concept of just cause for dismissals of employees. Employers who dismiss without just cause face high awards of damages issued against them. Furthermore the courts are prepared to issue high damage awards in cases of discrimination in employment (median recovery of USD 2,000,000 in the early 1990s in, admittedly, few cases in which the employee won). 41 The threat of high liability costs has resulted in a growth of non-union grievance arbitration. The US Supreme Court has supported this trend in a decision (Gilmer) in which private arbitration for a statutory claim was allowed. German labour courts have dealt with labour market problems in relation to atypical forms of employment. In the 1960s fixed-term contracts were assessed exclusively as ways to circumvent the existing dismissal protection system. The Federal Labour Court in particular saw its role in a peculiar reflexive fashion. It argued that it was necessary to protect the system of employment protection from being undermined (protection of protection). It introduced the requirement that fixed-term contracts were only legal when covered by one of the reasons permitted by the court. However with increasing need of fixed-term employment the court was forced to allow more and more reasons for engaging in fixed-term employment. 42 It reached a point that its decision-making created a source of legal uncertainty. In this situation the legislator introduced a law that removed the requirement of reason for new employment contracts, without however replacing the judicial policy. The statute that regulated fixed-term employment, the Employment Promotion Act 1985, was deliberately seen as an attempt to support the labour market by reforming labour law. Removing legal 11
restrictions that derive from employment protections was meant as support for the flexibilisation of forms of employment. The German Employment Promotion Act 1985 is just one example of a wider trend in Western industrial systems that favours deregulation of the employment system. In accordance with neo-liberal economic policies labour law is assessed whether it has a positive or negative impact on employment rates. The labour law system as well as labour and employment conflict resolution are forced to assess themselves in relation to their impact on the labour market. At least since the adoption of the Amsterdam Treaty this trend is supported at the level of the European Union by prioritising employment policies over traditional labour law issues. Policies like transitional labour markets and flexicurity that balance employer and employee interests are key concepts in this context.43 However, deregulation might be seen in a quite different light when it is linked to developments in labour law and labour conflict resolution that are a result of internal reflexive processes. In this perspective deregulation can be understood as a regular event, intricately linked to the perennial problem of reduction of legal complexity. Regulation and deregulation are different systemic modes in dealing with complexity. Deregulation can be used both for purposes of reflexive self-regulation of law and support of self-regulation of the labour market. 44
Conclusion
Regulations and practices of conflict resolution in industrial relations, companies and labour courts will have to deal with ongoing transformations of employment relations. They have to cope with the needs of modern transitional labour markets and policies designed to support them. The success of these policies will at least to some degree depend on the extent to which labour conflict resolution and labour law can become reflexive in handling the new complexity that arises from the fundamental changes in developed labour markets.
12
1
On reflexive labour law see R. Rogowski, T. Wilthagen (1994) Introduction, in R. Rogowski, T.
Wilthagen (eds.) Reflexive Labour Law. Studies in Industrial Relations and Employment Regulation. Deventer: Kluwer, pp. 1-17, R. Rogowski (1998) Autopoietic Industrial Relations and Reflexive Labour Law in the World Society, in T. Wilthagen (ed.) Advancing Theory in Labour Law and Industrial Relations in a Global Context. Proceedings of the Royal Netherlands Academy of the Arts and Sciences. Amsterdam et al.: North Holland, pp. 67-82 and R. Rogowski (2001) The Concept of Reflexive Labour Law: Its Theoretical Background and Possible Applications, in D. Nelken, J. Priban (eds.) Consequences of Autopoietic Theory for Law. Aldershot: Ashgate, pp. 179-196. 2
On the legal system as an autopoietic function system see N. Luhmann (2005) Law as a Social
System. Oxford: OUP and G. Teubner (1993) Law as an Autopoietic System. Oxford: Blackwell. 3
R. Rogowski (2000a) Industrial Relations as a Social System, Industrielle Beziehungen, The German
Journal of Industrial Relations, Vol. 7, pp. 97-126 and R. Rogowski (2000b) Recht und Industrielle Beziehungen in Luhmanns Weltgesellschaft”, Zeitschrift für Rechtssoziologie, Vol. 21, pp. 279-292. 4
N. Luhmann (1970) Reflexive Mechanismen, in N. Luhmann, Soziologische Aufklärung, Vol. 1.
Opladen: Westdeutscher Verlag, pp. 92-112. 5
See R. Dahrendorf (1959) Class and Class Conflict in Industrial Society. Stanford: Stanford
University Press, pp. 223-231 6
Teubner, op.cit (Fn. 3), ch. 5.
7
A good overview of current approaches in industrial relations theory, including systems theory, can
be found in W. Müller-Jentsch (2004) Theoretical Approaches to Industrial Relations, in: B.E. Kaufman (ed.) Theoretical Approaches on Work and the Employment Relationship. Chanpaign, Illinois: Industrial Relarations Research Association, pp. 1-40. 8
W. Müller-Jentsch (1997) Soziologie der industriellen Beziehungen. Second ed... Frankfurt/Main:
Campus . See also R. Rogowski (1994) Industrial Relations, Labour Conflict Resolution and Reflexive Labour Law, in R. Rogowski, T. Wilthagen (eds.) Reflexive Labour Law. Studies in Industrial Relations and Employment Regulation. Deventer: Kluwer, pp. 53-93. 9
W. Müller-Jentsch, op.cit (Fn. 5), p. 162: “It is of great sociological interest that the institution
'collective bargaining' frequently originated from arbitration” (my translation, RR). 10
See only R. Ben-Israel (ed.) (1994) Strikes and Lockouts in Industrialized Market Economies.
Deventer: Kluwer. 11
See only A. Gladstone (2001) Settlement of Disputes over Rights, in R. Blanpain, C. Engels (eds.)
Comparative Labour Law and Industrial Relations in Industrialized Market Societies. 7th ed. Deventer: Kluwer, pp. 455-479. 12
O. Kahn-Freund (1954) Intergroup Conflicts and their Settlement, British Journal of Sociology, Vol.
5, pp. 193-227. See also K. Sisson (1987) The Management of Collective Bargaining. An International Comparison. Oxford: Blackwell, J.T. Dunlop (1958) Industrial Relations Systems. New York: Holt,
13
Rinehart, and Winston and J.T. Dunlop (1984) Dispute Resolution. Negotiation and Consensus Building. Dover: Auburn. 13
A.T.J.M. Jacobs (2001) “The Law of Strikes and Lock-outs”, in R. Blanpain, C. Engels (eds.)
Comparative Labour Law and Industrial Relations in Industrialized Market Societies. 7 th ed. Deventer: Kluwer, pp. 423-453. 14
On the characterisation of British industrial relations as a voluntarist system see A. Flanders (1970)
Management and Trade Unions. The Theory and Reform of Industrial Relations. London: Faber, especially pp. 83-128, 155-211, 213-240. 15
See P. Davies M. Freedland (1993) Labour Legislation and Public Policy. Oxford: Clarendon on the
gradual development of labour legislation and the transformation of the system of collective laissezfaire after World War II. 16
W. Streeck (1982) "Organisational Consequences of Corporatist Cooperation in West German Labor
Unions", in: G. Lehmbruch and P. Schmitter (eds.) Patterns of Corporatist Policy-making. Beverly Hills and London: Sage, pp. 29-81. 17
U. Goll (1980) Arbeitskampfparität und Tariferfolg. Versuch einer rechtstatsächlichen Fundierung
arbeitskampfrechtlicher Fragestellungen unter Berücksichtigung der "collective bargaining"-Theorien. Berlin: Duncker & Humblot. 18
Donovan Report (1968) Royal Commission on Trade Unions and Employers' Associations, Report.
Chairman: Lord Donovan. Cmnd. 3623. London. 19
Sec. 10 Employment Relations Act 1999. See M. Clancy, R. Seifert (2000) Fairness at Work?
Disciplinary and Grievance Provisions of the 1999 Employment Rights Act. London: Institute of Employment Rights. 20
R. Herding (1972) Job Control and Union Structure. A study on plant-level industrial conflict in the
United States with a comparative perspective on West Germany. Rotterdam University Press. 21
R.B. Freeman, J. Medoff (1984) What Do Unions Do? New York: Basic Books.
22
C. Stone (1999), “Employment Arbitration under the Federal Arbitration Act“, in A. Eaton, J. Keefe
(eds.) Employment Dispute Resolution and Worker Rights in the Changing Workplace. Madison, Wisc: Industrial Relations Research Association, pp. 27-65. 23
The German arbitration committees have encountered some criticism about their high costs resulting
from high fees for the arbitrator. Considering that most arbitrators are in fact labour court judges, it has been suggested that the Association of Labour Court Judges (Deutscher Arbeitsgerichtsverband) should design guidelines for arbitration fees. See D. Bünger, K. Moritz (1983) Schlichtung im Arbeitsverhältnis.
Funktionsbedingungen
paritätischer
Kommissionen,
in
R.
Voigt
(ed.)
Gegentendenzen zur Verrechtlichung. Jahrbuch für Rechtssoziologie und Rechtstheorie, Bd. 9. Opladen: Westdeutscher Verlag, pp. 172-185 and M. Hartmann (1987) "Reflexives Recht am Ende?
14
Zum Eindringen materiellen Rechts in die Tarifautonomie, Zeitschrift für Soziologie, Vol. 16, pp. 1632. 24
M. Behrens (2007) Conflict, arbitration, and dispute resolution in the German workplace.
International Journal of Conflict Management, Vol. 18 (2), pp. 175-192. 25
G. Teubner (1994) “The Public Interest of the Company „in itself‟", in R. Rogowski, T. Wilthagen
(eds.) Reflexive Labour Law. Studies in Industrial Relations and Employment Regulation. Deventer: Kluwer, pp. 21-52. 26
W. Streeck (1992) "Co-Determination: After Four Decades" in: W. Streeck, Social Institutions and
Economic Performance. Studies of Industrial Relations in Advanced Capitalist Economies. London: Sage, pp. 137-168. 27
G. Teubner (1990) "Unitas Multiplex: Corporate Governance in Group Enterprises", in D. Sugarman
and G. Teubner (eds.) Regulating Corporate Groups in Europe. Baden-Baden: Nomos, pp. 67-104, here pp. 78-82. 28
R. Rogowski (1985) Meso-Corporatism and Labour Conflict Resolution, International Journal of
Comparative Labour Law and Industrial Relations, Vol. 1 (3), pp. 143-169. 29
R. Rogowski, A. Tooze (1992) "Individuelle Arbeitskonfliktlösung und liberaler Korporatismus.
Gewerbe- und Arbeitsgerichte in Frankreich, Großbritannien und Deutschland im historischen Vergleich“, in H. Mohnhaupt and D. Simon (eds.) Vorträge zur Justizforschung. Geschichte und Theorie. Band 1. Frankfurt am Main: Klostermann (Max-Planck-Institut für Europäische Rechtsgeschichte), pp. 317-385. 30
A. Lyon Caen and A. Jeammaud (eds.) (1986) Droit du travail, démocratie et crise. Arles: Actes Sud.
31
J. Wood (1992) Dispute Resolution - Conciliation, Mediation and Arbitration, in W. McCarthy (ed.)
Legal Intervention in Industrial Relations. Oxford: Blackwell, pp. 241-273, pp. 248-262. 32
Teubner, op.cit (Fn. 3), p. 81.
33
Earl v. Slater and Wheeler (Airlyne) Ltd. [1972] ICR 508.
34
See especially British Labour Pump Co. Ltd. v. Byrne [1979] ICR 347. The negative effect of this
decision on dismissal procedures at company level was acknowledged by the House of Lords in the decision Polkey v. Dayton Services Ltd. [1988] ICR 142, which reversed British Labour Pump. 35
E. Blankenburg, R. Rogowski (1986) German Labour Courts and the British Industrial Tribunal
System. A Socio-Legal Comparison of Degrees of Judicialisation, Journal of Law and Society, Vol. 13, 1986, pp. 67-92. 36
On the differentiation of claims from small firms and large companies see Blankenburg E.
Blankenburg, S. Schönholz; R. Rogowski (1979) Zur Soziologie des Arbeitsgerichtsverfahrens. Die Verrechtlichung von Arbeitskonflikten. Neuwied and Darmstadt: Luchterhand, pp. 69- 73. Bünger and Moritz, op.cit (Fn. 3), p. 183 have suggested procedural differentiation for the different conflicts.
15
37
Art. 234 (formerly 177) EC Treaty.
38
C. Kilpatrick (2001) Gender Equality: A Fundamental Dialogue, in S. Sciarra (ed.) Labour Law in
the Courts. National Judges and the European Court of Justice. Oxford: Hart 2001, pp. 31-100. 39
Kilkpatrick, op.cit (Fn. 31), p. 54.
40
A. Supiot (2001) Beyond Employment: Changes in Work and the Future of Labour Law in Europe.
Oxford: OUP. 41
Stone , op.cit (Fn. 21).
42
K. Schömann, R. Rogowski, T. Kruppe (1998), Labour Market Efficiency in the European Union.
Employment Protection and Fixed-term Contracts. London: Routledge. 43
See R. Rogowski (ed.) (2008) The European Social Model and Transitional Labour Markets: Law
and Policy. Aldershot: Ashgate and T. Wilthagen, R. Rogowski (2002), “The Legal Regulation of Transitional Labour Markets“, in G. Schmid, B. Gazier (eds.) The Dynamics of Full Employment. Social Integration through Transitional Labour Markets. Cheltenham, UK and Bookfield, USA: Edward Elgar, pp. 233-273. 44
R. Rogowski, G. Schmid, (1997) Reflexive Deregulierung - Ein Ansatz zur Dynamisierung des
Arbeitsmarktes, WSI-Mitteilungen 8/97, pp. 568-582.
16
