Labour courts

in Europe
Proceedings of a meeting organised
by the International Institute
for Labour Studies

Edited by Bert Essenberg

36900

International Institute for Labour Studies Geneva

Copyright © International Labour Organisation
(International Institute for Labour Studies) 1986

ISBN 92-9014-407-6

Copies can be obtained direct from the International Institute for Labour Studies,
P.O. Box 6, CH-1211 Geneva 22 (Switzerland).
 TABLE OF CONTENTS

Page

Introduction 1

Summary of the discussions 3

The labour court system in Belgium, by J. Rene Rauws 11

The Labour Court of Finland, by Jorma Pelkonen and Kari-Pekka

Tiitinen 14

The organisation of labour courts in France, by Pierre

Veillieux 19

The labour jurisdiction in the Federal Republic of Germany,

by Otto Kissel 22

The National Labour Court of Iceland, by Bjarni K. Bjarnason 27

The Labour Court in Ireland, by Maurice P. Cosgrave 30

The labour courts in Israel, by Zvi Bar-Niv 41

The Labour Court of Norway, by Stein Evju 44

The labour court system in Spain, by Rafael Martinez

Emperador 48

The court procedure in labour disputes in Sweden, by Ake

Bouvin 52

Labour courts in Switzerland, by Alexandre Berenstein 57

Industrial tribunals in the United Kingdom, by Lord McDonald 60

Annex I: List of participants 63

Annex II: Suggested points for discussion 65

 INTRODUCTION

In September 1984 the International Institute for Labour Studies in

co-operation with an initiating committee composed of Judge Zvi Bar-Niv,
President of the National Labour Court of the Federal Republic of
Germany, Judge Ake Bouvin, President of the Labour Court of Sweden, and
Mr. Alan Gladstone, Chief of the Industrial Relations and Labour
Administration Department of the 1L0, organised in Szeged, Hungary, a
meeting of presidents of labour courts and similar institutions in
Europe. The purpose of the meeting was to allow the participants to
share their experience and problems and exchange views on a number of
matters of common interest concerning the role and functioning of their
institut ions.

The meeting was attended by judges of courts from ten countries

representing, with few exceptions, those European countries in which such
institutions are found. These were: Finland, France, the Federal
Republic of Germany, Hungary, Iceland, Israel, Norway, Spain, Sweden and
Switzerland. The meeting was also attended by observers from Canada.1
Judges from Belgium, Ireland and the United Kingdom could not participate
in the meeting but prepared papers on the labour court system in their
respective countries.

The organisation, competence and the place of the labour courts in

the judicial system differs from country to country and sometimes even
within one country (Switzerland).

A common feature in the countries concerned, with the notable

exception of Spain, is the importance attached to the presence of lay
judges, representing employers' and workers' viewpoints, in one or more
instances of the labour court system. In France and in the Canton of
Geneva (Switzerland) the courts of first instance are entirely composed
of lay judges, elected by their peers.

In a number of countries (Finland, France, Ireland and Sweden) there

is one labour court with sole territorial jurisdiction. Other countries
(Federal Republic of Germany, Israel and Spain) have established a labour
court system consisting of two or more instances. Again other countries
have introduced a system of labour courts or similar bodies as courts of
first instance in labour matters; the decisions of these courts of first
instance can, under certain conditions, be appealed in the ordinary

A list of participants is included in Annex I.

 - 2 -

appeal courts, which often have specialised chambers or divisions for

labour and social matters.

It is also important to note that although there exist differences in

jurisdiction between the labour courts in Europe, none of the courts
concerned has jurisdiction in economic (or interest) disputes but rather
only in disputes over rights (i.e. "legal" disputes). The court in
Ireland can perhaps be seen as an exception to this rule as it has
advisory competence in economic disputes.

Several of the courts have jurisdiction only in individual disputes,

while other courts have jurisdiction only in collective disputes. Few
courts (Belgium, Federal Republic of Germany, Israel and Spain) also have
jurisdiction in certain disputes concerning social security legislation.

For every country represented, a paper was prepared by a participant

from that country, describing the organisation and functioning of "his"
labour court system. These papers are included in this publication. The
11LS, on the basis of suggestions from members of the Initiating
Committee, prepared an extensive list of points for discussion (see Annex
11) which sought to pinpoint the significant subject areas.

The importance of the meeting and of this publication lies in the

recognition of the important role of labour courts in ensuring equity and
social justice and of their contribution to harmonious industrial
relations in the countries concerned. The meeting also demonstrated the
importance attached by the 11LS and the 1L0 to the system of labour
courts.
 - 3-

SUMMARY OF THE DISCUSSIONS

1. Judge Zvi Bar-Niv, speaking on behalf of the Initiating

Committee, introduced the members of the Committee and welcomed the
participants. He discussed the origins of the Committee and the reasons
for organising this meeting with the help of the International Institute
for Labour Studies (11LS) and the International Labour Organisation
(1L0). He thanked the organisers of the European Regional Congress of
the International Society for Labour Law and Social Security, in
particular Professor Nagy, for their co-operation without which it would
not have been possible to hold this meeting. Finally, Judge Zvi Bar-Niv
indicated that the Initiating Committee had decided for this first
meeting, hopefully to be followed by similar meetings in the future, to
invite only the judicial members of labour courts in order to allow for a
more thorough discussion of common problems in an atmosphere free of
constraints.

2. Mr. Alan Gladstone, on behalf of the I1LS and the ILO, in his
remarks noted that this was the fourth in a series of meetings organised
by the 1ILS for labour court judges. Earlier meetings concerned judges
of labour courts, industrial tribunals and similar institutions in
industrialised countries (1973), industrial courts in English-speaking
developing countries (1976) and labour courts in French-speaking Africa
(1977). The organisation of this meeting demonstrated once again the
importance of labour court systems for industrial relations as well as
the interest of the ILO and the IILS in such systems. This and similar
meetings could help the labour court judges to improve the operation of
their courts, to exchange experiences with other jugdges and to discuss
common problems.

3. Labour courts were established for various reasons. In 1970 the

judicial system in Belgium underwent a fundamental reform, among other
things in order to bring all legal social disputes within the competence
of the labour tribunals and courts. Another aim was to harmonise the
autonomy of the labour courts with the unitary nature of the judiciary.
In Finland the establishment of a separate labour court was influenced by
the following facts: (i) ordinary courts of law were regarded as too
slow; (ii) these courts did not have the necessary expertise to settle
disputes arising out of collective agreements; and (iii) a separate
labour court of special composition would more easily gain the confidence
of workers' organisations. The basic idea behind the dispute board
(conseil de prud'hommes) in France is the desire to allow plaintiffs to
have their case heard by judges who are particularly sensitive to labour
problems by virtue of their own occupational activity or of the nature
and subject matter of the disputes. The boards also
 - 4 -

reflect a desire to democratise legal proceedings both in the way the

members are elected and by the requirements for election. In the Federal
Republic of Germany, the Constitution lays down that there are five
independent areas of jurisdiction, one of them being labour
jurisdiction. The law determines which cases are assigned to particular
areas of jurisdiction. The labour court system in Israel was not imposed
upon the labour relations parties but was established in response to a
mutual request by the parties in 1967. The establishment of the labour
court in Norway was the result of a growing understanding between the
industrial relations parties and the government based on the idea of
promoting and strengthening collective agreements and creating machinery
for the peaceful solution of industrial disputes.

4. The composition of the courts varies from one country to another

but in almost all countries the courts are composed of one or more
professional judges and a varying number of lay assessors. In Belgium
the labour courts are composed of professional magistrates and lay
members representing the representative trade unions, employers'
organisations and the organisations of self-employed workers. In
addition, there are special public prosecutors (auditeurs du travail).
The Finnish labour court has a tripartite composition: eight members with
the legal training required for judicial appointment, four members
appointed upon nomination by the most representative employers'
organisations, four nominated by the central workers' organisations and
four other members who must be familiar with employment relationships in
the civil service, nominated by the public authorities and the central
unions of civil servants' associations. The courts of first instance in
France (conseils de prud'hommes) are composed exclusively of members who
exercise an occupation either as employer or employee and who are elected
by their peers. The presidents of the courts are elected by and from the
members for one year and are chosen alternatively from among the workers'
and employers' members. In the Federal Republic of Germany, the local
labour courts consist of professional judges and labour judges, i.e. lay
assessors appointed from lists of candidates submitted by employers'
associations, trade unions, independent employees' associations and
public corporations. The state (lander) courts and the federal labour
court also have lay assessors. The labour courts in Israel consist of
professional judges, lay members and registrars. The lay members are
appointed after consultation with the most representative employers' and
workers' organisations. In Iceland, the labour court is composed of
three professional judges, one judge appointed by the federation of
employers and one appointed by the central trade union organisation. The
lay members may be replaced by other lay judges - depending on the
dispute before the court - who are appointed by the organisations
concerned. The Norwegian labour court has three neutral (professional)
judges and four lay judges appointed from among persons nominated by the
major organisations of workers and employers. These persons may not be
officials or members of the executive of one of the nominating
organisations. In Spain, a notable exception compared with other
countries, the labour courts are exclusively composed of professional
career judges. There is no provision for either a jury or joint
representation of workers and employers. The Swedish labour court is
composed of three chairmen and three deputy chairmen, all having legal
training and experience as judges. In addition there are three so-called
 - 5 -

"professional" members who have specific knowledge of the conditions on

the labour market and who cannot be regarded as representing the
interests of employers or employees. The 13 lay members of the court are
appointed upon the recommendation of the most representative
employers'and workers' organisations. The industrial tribunals in the
United Kingdom are composed of a legally qualified chairman and two lay
members, one from each side of industry. The Employment Appeal Tribunal
is composed of high court judges and of lay members with special
knowledge of, or experience in industrial relations. In the Canton of
Geneva (Switzerland) the labour court of first instance (conseil de
prud'hommes) is composed entirely of workers' and employers'
representatives elected by their peers. The labour court of appeal
(unique in Switzerland) is presided over by a judge from the court of
justice, assisted by two employer and two worker judges. In most other
Swiss cantons having a labour court, the president is generally a
professional judge, assisted by lay assessors - as the representatives of
workers and employers - elected by the people or the cantonal parliament,
often upon the proposal of occupational organisations.

5. In all the countries concerned the labour courts are competent

to hear only "legal" or "rights" disputes. In certain countries the
labour courts are only competent for individual disputes. In Belgium the
labour courts are competent for all individual legal disputes with regard
to labour relations, social security and special benefits, social
benefits for the handicapped, minimum standards of living, etc. In the
field of social security and the various benefits, the courts have the
competence to apply administrative sanctions. The dispute boards in
France are the courts of first instance for individual disputes arising
out of individual employment contracts. All disputes are first submitted
to the conciliation committee of the board and, in case of disagreement,
they are brought before the judicial committee of the board. The labour
courts of first instance in Geneva (Switzerland) have jurisdiction in all
individual disputes between employers and workers arising out of the
employment contract. The industrial tribunals in the United Kingdom have
jurisdiction in disputes arising out of redundancies or unfair
dismissals, out of matters affecting the relationship between employer
and employee as specified in the Employment Protection (Consolidation)
Act, breaches of provisions of the Equal Pay and the Sex Discrimination
Acts as well as complaints under the Race Relations Act.

6. In a number of other countries, the labour courts only have

jurisdiction in collective disputes. This is the case in Finland where
the labour court has sole territorial jurisdiction with material
competence over legal disputes arising out of collective agreements or
the Collective Agreements Act. In Iceland the labour court adjudicates
violations of the Labour Union and Labour Disputes Act as well as cases
of allegedly illegal strikes and disputes between employers and employees
which the parties agree to refer to the court. The jurisdiction of the
labour court in Norway is confined to disputes regarding collective
agreements and industrial action. The court only has jurisdiction in
individual disputes when individual workers or employers are liable for
damages for breach of collective agreements or breach of a peace
obligation. The labour court in Sweden is the court of first and last
 - 6 -

instance in collective disputes over collective agreements and other

labour disputes covered by the Co-Determination at Work Act.

7. Finally, in still other countries, the labour courts have

jurisdiction in a wide range of matters, both individual and collective.
In the Federal Republic of Germany the jurisdiction of the labour courts
can be divided into two main areas: (a) civil proceedings, including
disputes arising out of collective agreements or out of employment
contracts and the employment relationship or disputes over trade union
rights; (b) collective proceedings, including disputes in connection with
the Works Constitution Act, the Co-Management Act of 1976, the election
of employee representatives to supervisory boards and disputes concerning
the ability to bargain collectively and the collective bargaining powers
of associations. The labour court in Ireland has a wide range of
competences, a number of these would fall within the competence of
various government agencies in other countries. Its judicial competence
includes the investigation of trade disputes and the making of
recommendations for their settlement, disputes concerning Fair Employment
Rules as well as deciding on appeals against recommendations of the
Rights Commissioner or of Equality Officers. In Israel the regional
labour courts have exclusive jurisdiction in all statutory and voluntary
labour and social security matters: disputes arising out of the
employment relationship, violations of safety and protective legislation,
legal rights disputes between parties to collective agreements, disputes
between members of employees' organisations and their organisations,
matters arising out of arbitration under the General Arbitration Law, and
all social security matters. The National Labour Court has jurisdiction
in appeals from the decisions of the regional courts, in collective legal
disputes arising out of industry-wide or national agreements as well as
organisational and jurisdictional disputes between workers' or between
employers' organisations. The Spanish labour courts have sole
jurisdiction in the social branch or law: individual disputes over the
employment contract, collective disputes of a judicial nature, the
verification of the legality of collective agreements, law suits with
regard to social security, claims arising out of the failure to observe
statutory or other provisions in the social field which are not subject
to a special procedure.

8. Following the presentation and discussion of the papers

describing the various courts, the meeting went on to discuss the problem
of the access of individual workers to the courts. In some countries
individuals have access to the courts but in other countries the courts
only accept complaints by unions. In cases where an individual worker
has no access to the labour court he will have to go to his union which
may or may not decide to pursue the complaint with the employer in the
instances outside the enterprise. After various stages the complaint may
reach the central or national level where an agreement may or may not be
reached.

9. In some countries if no agreement can be reached, the union

concerned will refer the case to the labour court and ask for a decision
with regard to the rights of an individual worker stemming from the
collective agreement. This often means that a union adopting an
 - 7 -

individual claim will transfer it into a collective one in order to bring

it before the court.

10. Another point of discussion was the question of appeals against

awards of labour courts, whether inside or outside the labour court
system. In a number of countries the possibility of appeal inside the
labour court system does exist and the participants from those countries
were of the opinion, even if it is difficult to give a general answer,
that the possibility should be maintained, even where it involved several
instances. It was recognised that the possibility of appeal might run
counter to one of the basic reasons for the establishment of labour
courts, namely the need to render decisions quickly. Nevertheless, the
solution to this should not be found in abolishing appeals but rather in
limiting or restricting the right of appeal, for instance by allowing
appeals only on questions of law and not on facts. In one country
(Spain) employers who appeal must deposit a security (caution) equal to
the award of the court of first instance. It was noted that in several
countries the right of appeal was guaranteed by the constitution and that
other ways and means could be found to deal with the case load of labour
courts.

As far as appeals outside the labour court system were

concerned, many participants were of the opinion that such a possiblity
would undermine the basic reasons for the existence of labour courts and,
in a certain sense, may be "harmful" to the prestige of labour courts.
Appeals outside the system (i.e. to the supreme court) could be envisaged
for constitutional questions.

11. The next point to be discussed was the relationship between

labour court judges and general court judges and the advantages or
disadvantages of rotation between the two systems. Some of the
participants were opposed to the idea of judges rotating between labour
and general courts. In several countries judges are appointed for life
in one or other branch of the judicial system in which they normally
remain. Transfers to another branch seldom occur. In the Nordic
countries general court judges are appointed for life, while labour court
judges are appointed for a fixed period (in Norway, for example, for
three years). The possible consequences for the independence of the
judges have never really been an issue in these countries and
reappointment is often quasi-automatic. It was generally felt that when
judges were appointed for a fixed period this in no way affected their
independence. Some participants emphasised that full independence and
security is important to judges in an area where decisions are delicate
and subject to criticism. It was also stressed that the industrial
relations parties had to have full confidence in the courts, that this is
important to the judges and to the system as a whole.

12. The place and role of labour courts in the industrial relations
system was also discussed. The conclusion was that, particularly with
regard to this point, it was difficult to draw any general conclusions as
the role of a labour court is closely related to the national system of
industrial relations. In discussing certain national systems some points
were highlighted which were of interest to most of the partipants.
 - 8 -

13. One of these points was the acceptance of decisions of labour

courts. In Norway, where the labour court was established on the
initiative of the social partners, the labour court under its first
president made an effort to win the trust of the parties. This was
important in a system where parties may opt for arbitration if they have
no trust in the labour court. Nowadays the court is highly respected and
the parties very rarely choose the arbitration alternative. In Sweden,
where the labour court was established against the will of the trade
unions (the most important political strike ever in this country was
against the establishment of the labour court) from the beginning
emphasis was placed on the labour court acting as a court of law in order
to create respect for it. At present, it is widely accepted and
respected by both the trade unions and the employers. In the Federal
Republic of Germany decisions in individual cases are accepted by the
social partners and the parties concerned. The acceptance of decisions
in collective cases is much more difficult because here social policy
considerations play an important role. The judiciary is often seen as
one of the instruments of social policy. Under the present circumstances
it is often tried in collective cases to further or to change policies
through judicial decisions. This may constitute a danger for the
independence of the courts as well as for social policy. If trust in the
labour courts decreases alternative means or institutions for dispute
settlements may evolve. The labour court, in particular the Federal
Labour Court, has an impact on the legislator's consideration of areas in
which normative action may be needed. Good laws play an important role
in the long-term acceptance of the labour courts. As far as Spain is
concerned, acceptance of the role of the courts exists in both individual
and collective cases.

14. Related to the question of the acceptance of the decisions of

the labour courts by the industrial relations parties is the problem of
the acceptance by or the representation of minority organisations not
normally included in the tripartite tribunals. This question is of
current importance in some of the Scandinavian countries (Norway and
Sweden). Very often these minority organisations, mainly trade unions
not affiliated to the national confederation, do not have the same policy
ideology as the majority organisation(s) and they often feel that when
they come to the court they are confronted with one big enemy (employers)
and a small one (the majority union). Some of these organisations have
challenged the tripartite composition of the National Wages Board in
Norway (with regard to which a complaint was made to the 1L0) and may in
the future challenge the composition of the labour court. It was
suggested that in such cases it might be envisaged that the minority
organisation may ask the lay members to be excused so that the
professional judge(s) only will hear # the case. In a few countries it is
possible for the parties to request the court to take a decision without
the presence of lay members.

15. Another question was the extent of use by the labour court of
conciliation or mediation as an adjunct to adjudication. While in
certain countries the courts refuse to conciliate or to mediate as this
may be seen as harmful to the impartiality of the court, in a number of
other countries the courts first try to conciliate, normally in the
preliminary stage of the procedure. The labour courts in Israel, for
 - 9 -

example, attempt conciliation at a very preliminary stage. In 1983, out

of 84 collective disputes, 65 were settled by conciliation and did not
even come up for hearing. It was felt that the more restraint was
exercised by the courts in granting injunctions, the better the parties
would accept an injunction when granted. Also in this country when an
individual case is filed with the court the registrar (a
legally-qualified person but not a judge) will make an effort at
settlement. On average the registrars are successful in about 47 per
cent of the cases. In the Federal Republic of Germany in individual
cases there is an obligatory conciliation session held by the
professional judge only. About 50 per cent of the individual cases are
settled in such conciliation sessions. In Spain most disputes have first
to go through conciliation before being submitted to the labour court.
Once the case comes before the court, the judge will also try to
conciliate. The obligatory conciliation procedure does not apply to
social security cases. In Switzerland more than 50 per cent of the cases
are settled by conciliation either before the introduction of the case or
before the court. In Norway there exists a system of pre-trial
conciliation procedures by the individual disputes conciliation council,
which is composed of laymen and can be considered as a kind of obligatory
gateway to the ordinary courts in most civil law matters, including
individual labour law disputes with the exception of termination of
employment disputes. As regards these latter disputes pre-trial
bargaining between the parties themselves is a possibility under the
relevant legislation. The conciliation council system does not apply to
disputes for which the Labour Court is competent. Dispute bargaining by
the parties to the collective agreement is a pre-condition for taking
such disputes to the court. The problem was raised that, since the
labour courts deal with legal disputes, conciliation - often involving a
compromise - might be conceived as a threat to the maintenance and
protection of legal rights and entitlements. However, it was widely felt
that even in "legal" disputes conciliation was appropriate since the
procedure often led the parties themselves to recognise the respective
rights involved and, moreover, there were many instances in which there
was room for a compromise which could often be the best solution, even if
it did not give entire satisfaction to one or other of the parties, while
the award of the judge often left a winner and a loser with a degree of
bitterness. In at least one country (Spain) when the parties reach a
compromise in the conciliation stage, the judge will confirm this
settlement.

16. Much attention was given to the work or case load of the labour
courts. The participants first tried to analyse the reasons for unduly
heavy case loads. It was recognised that throughout their history there
have been complaints about the slowness of (labour) courts. in extreme
cases, the court may give a final and binding decision and the plaintiff
may no longer be in a position to benefit from it. Among the various
reasons for the increased workload of the courts the following were
mentioned: (i) political changes leading to a change in social policies;
(ii) a stricter application of social security schemes; (iii) budgetary
problems: not enough funds available for personnel and "equipment"; (iv)
new labour legislation often gives rise to a plethora of cases with
regard to the interpretation of the new legislation. In some countries
the number of appeal and cassation cases has also increased considerably,
 - 10 -

which leads to an increase in the case load of the higher courts. In

some of the Scandinavian countries the case load was not seen as a
problem. In Sweden, for example, cases are normally decided within five
months and the industrial relations parties have no complaints on this
score.

17. In trying to find solutions to the case load problem it is

important to make a distinction between cases of a more temporary nature
(for instance an important change in legislation) and cases of a longer
term nature (e.g. the economic crisis and the conflicts resulting
therefrom). In many cases under the present economic circumstances it is
no longer the individual worker who fights his own case but, assisted by
his union, he fights for his colleagues as well. The courts have at
present to deal with an increased number of cases because of the economic
crisis while the number of judges is based on the case load normal for a
more favourable economic situation. In several countries solutions to
the case load problem have been suggested. One of these is better
training (more specialised) for both professional and lay judges. Other
suggestions are to reduce the number of possibilities for appeal or to
reduce the number of judges sitting on labour chambers. It was, however,
argued that in view of the social consequences of labour cases
collegiality is very important and that only after very careful
consideration could such a decision be taken.

18. The participants considered that further meetings of this type

would be very useful and beneficial for labour justice in all countries
concerned. Such meetings could be organised in conjunction with other
international meetings or congresses. The Initiating Committee, in
co-operation with the International Institute for Labour Studies and the
ILO should select and prepare special themes which could be discussed in
greater depth.
 - 11 -

THE LABOUR COURT SYSTEM IN BELGIUM

by J. Rene RAUWS
Judge, Social Division of the Cassation Court, Brussels

The establishment of separate labour courts

Until November 1970 social legal disputes fell within the competence
of a variety of courts: civil courts, courts for disputes concerning
contracts of employment, administrative courts and even commercial courts.

Unity of jurisdiction and procedure was achieved by the new Judicial

Code which established separate labour courts having full competence in
social legal disputes. Although the labour courts are integrated in the
judiciary system they are fully independent and constituted in a special
way. The Belgian labour court system, as it exists now, is a compromise
between two opposite trends: full autonomy outside the judiciary system,
on the one hand, and full integration in the ordinary courts, on the
other.

The composition of the labour courts

Labour courts are composed of judges and "judges in social cases".

The former are magistrates, members of the judiciary; the latter are lay
members appointed by the Minister of Labour or the Minister for the
Middle Classes on the proposal of the representative trade unions and the
employers' or self-employed workers' associations.

Each division of a court is composed of three members: a magistrate

and two "judges in social cases", respectively nominated as an employer
and an employee. However, in proceedings concerning social security for
self-employed workers a division consists of two magistrates and one
"judge in social cases" nominated as a self-employed worker.

The divisions of the labour courts of appeal are composed in the same
way.

The structure of labour courts

A labour court of first instance, the Labour Tribunal, exists in each

judicial "arrondissement". Each labour tribunal consists of at least two
divisions. By royal decree a labour tribunal may be divided into
sections, each having a well-defined competence ratione loci. To each
tribunal is attached a special public prosecutor's department:
"Arbeidsauditoraat" (in Dutch), "Auditorat du travail" (in French). The
 - 12 -

chief of this department, the Labour Auditor ("Arbeidsauditeur'V'auditeur

du travail") and his assistants are part of the Department of the Public
Prosecutor ("Openbaar Ministerie'V'Ministere public"), just as the "Crown
Prosecutor"; they are working under the authority of the "Prosecutor
General" at the Court of Appeal. The decisions of the labour tribunals
can be appealed to an appeal court of labour ("Arbeidshof"/"Cour du
travail"). There are five of these appeal courts, some of them being
divided into territorial sections. Each court of labour has its own
special public prosecutor's department under the direction of the already
mentioned Prosecutor General.

The social division of the Court of Cassation (Supreme Court) is an

integrated part of the Court. It has no exclusive competence in the
field of social proceedings not does its composition legally differ from
that of the other divisions (civil and penal) of the Court. The only
special legal provision is that five judges of the Court and one member
of the Office of the Public Prosecutor at the Court have to be chosen
from among the judges or public prosecutors of the labour courts. These
five judges are members of the Social Division, but they are not the only
ones as each division has two sections, Dutch and French being the
official languages of the Court.

Jurisdiction and competence

Within the competence ratione materiae of the labour courts fall all
individual legal disputes concerning labour relations, social security
and special benefits, including the social security for self-employed
workers as well as the social benefits for the handicapped, minimum
standards of living, etc. However, collective labour disputes, such as
strikes for example, do not fall within the competence of labour courts
or of any other court. Although many labour and social security laws
contain penal provisions, breaches of these penal provisions are dealt
with by the penal divisions of the ordinary courts. Administrative
penalties, however, applicable in the field of social security or social
benefits - for example the loss or suspension of benefits as a penalty -
fall within the competence of the labour courts.

The competence ratione loci of a labour court in labour proceedings

is determined by the place where the employee is put to work. In social
security and social benefits cases the competence ratione loci belongs to
the court of the place of residence of the beneficiary.

All decisions of labour tribunals, even preparatory decisions, are

appealable.

The special public prosecutor's departments attached to the labour

courts have far-reaching rights of investigation. In all legal
proceedings in which the labour courts have competence the members of the
department can request the responsible authorities, including public
servants and even ministers, to provide all information needed. For that
purpose they can ask for help from the social inspection services.

All cases referred to a labour court concerning social security and

social benefits as well as those concerning legal disputes resulting from
 - 13 -

breaches of labour regulations or social legislation provisions must be

communicated to the special public prosecutor's department under penaly
of nullity of the procedure. In all these cases the labour auditor has
to give his opinion and also has a right of appeal.

The rules of procedure in social proceedings are largely the same as

in civil proceedings. However, the role assigned to the prosecutor's
department adds an inquisitorial aspect to the lawsuit, particularly in
social security and social benefits cases. As a rule court costs are low
or inexistant for beneficiaries of social benefits. The assistance of a
lawyer is not compulsory. Employees and self-employed workers can appear
before the court represented by a proxy of a representative trade union
or self-employed workers' association.

Particular problems

After an experience of 14 years few particular problems seem to

exist. The question may be asked, however, if a mainly civil procedure
is fully appropriate for proceedings concerning social security and
social benefits cases.
 - 14 -

THE LABOUR COURT OF FINLAND

by Jorma PELKONEN, President, Labour Court, Helsinki

and Kari-Pekka T11T1NEN, Judge, Labour Court, Helsinki

Reasons for the establishment of a separate labour court

In Finland collective agreements have been concluded ever since the

latter part of the nineteenth century, althouth they were few in number
until the end of the Second World War. The first Collective Agreements
Act was passed in 1924. When the Bill was under preparation, it was
considered to establish a separate labour court in order to solve
disputes arising out of collective agreements. For two reasons it was
decided then not to establish a separate labour court: (i) the inadequate
experience in the application of collective agreements and (ii) financial
reasons. The Collective Agreements Act, 1924, provided that a collective
agreement could include a clause referring disputes arising out of it to
arbitrators, instead of to ordinary courts of law. In the practical
application of the few existing collective agreements, it was quite
common to resort to arbitration.

By the end of the Second World War the view of the central
organisations of employers' and employees' associations with regard to
the usefulness and expediency of collective agreements had come so close
to each other that, between 1945 and 1947, collective bargaining between
the member associations of the central organisations took place on a
relatively large scale. Therefore, it became necessary to amend the
Collective Agreements Act and to reconsider the need for a separate
labour court. The establishment of the Finnish Labour Court, which
started functioning at the beginning of 1947, was firstly influenced by
the fact that ordinary courts of law with their several instances were
regarded as being too slow. Secondly, ordinary courts of law were
considered not to have the special expertise required in the settling of
disputes arising out of collective agreements, which were thought to be
difficult to solve and likely to have far-reaching consequences.
Thirdly, it was estimated that a separate labour court of exceptional
composition would be able to gain the confidence of the labour
organisations more easily than the ordinary courts of law. Finally, the
positive experiences in the other Scandinavian countries with their
separate labour courts contributed to the establishment of a separate
labour court in Finland.

The position of the Labour Court has become so well established that,
when the Collective Agreements Act, 1974 - which is still in force - was
being prepared, the necessity of having one was not even discussed.
 - 15 -

The composition of the Court

The Finnish Labour Court is composed of a president and a legal

counsellor, who act as chairmen of the Court, and of 14 other members.
The Court is based on the principle of tripartism. The president, the
counsellor and two other members (as well as their deputies) are
appointed from among persons having the legal degree required for judges
in Finland and who cannot be considered to represent either employers or
employees' interests. Eight members are appointed upon the nomination by
the most representative central organisations of employers' and
employees' associations. These members must have a sound knowledge of
labour relations but are not required to have a law degree. Four members
must be familiar with the employment relationships of civil servants,
both government and local authority employees, and they are appointed
upon the nomination by the public authorities (State, municipalities,
etc.) and the most representative central organisations of civil
servants' associations.

Both the full-time chairmen and the part-time members are appointed
for a period of three years. In addition, the Labour Court may,
exceptionally, include a "man from the street", if a member and his
deputy are both prevented from attending and the court would not
otherwise have the quorum necessary to meet. In an exceptional case like
this, the chairmen must appoint a suitable and qualified person as an ad
interim member of the court. Both full-time and part-time secretaries
act as referendaries at the Labour Court. The court usually convenes
divided into two sections with alternating membership (2+2+2). A case
may also be heard and tried in a plenary session of the Court, if so
required by consistency in the application of law, or by the fact that
the decision to be made in a particular case may have far-reaching
consequences, or for any other important reason.

The structure of the Court and of the system

An action is brought before the Labour Court by a written application

for a writ, which must state (i) all the parties to the case; (ii) all
the claims to be made; and (iii) the grounds for them. The writ as well
as all the documents submitted by the petitioner are then officially
served on the respondent who is asked to submit to the Court, within a
prescribed period of time, his statement of defence in writing. The
answer must contain both the material claims and the procedural
arguments. After the written preparation of the case by one of the
referendaries, the chairman and the referendary proceed to an oral
preliminary hearing of the case. It is at this hearing at the latest
that the parties to the dispute must, ordinarily, bring up all the points
they intend to base their case on, submit their written evidence and name
all the witnesses they intend to call during the main hearing. These
written and oral preliminary hearings are aimed particularly at finding
out which claims and points are disputed and which are not, so that the
case can then be tried during the main hearing in one session without any
adjournments.

The main hearing, which must take place without any delay after the
preliminary hearings, and which is attended by all the members of the
 - 16 -

Court or of the relevant section of the Court, is oral. The main hearing
consists for the most part in the hearing of witnesses called by the
parties to the case. After deliberations the Court may, immediately
after the hearing, pronounce its decision. But, in practice, this is
only done in cases where the dispute concerns a breach of the peace
obligation and the offensive action, strike or lockout is going on during
the main hearing of the case. Thus, normally, the Court convenes for a
so-called deliberative session to give its final decision only after the
record of the proceedings of the main hearing has been completed and is
at the disposal of the Court. Then the written decision is mailed to the
parties in the case.

The decision of the Labour Court is final, and it can be enforced in

the manner of a judgment by an ordinary court of law. The Supreme Court
of Justice may, however, be appealed to by resorting to the so-called
extraordinary means of appeal (e.g. annulment and procedural complaint).

It might still be mentioned that the Finnish collective agreements,

both for private employees and for civil servants, quite often
incorporate a clause providing for a procedure for negotiating disputes
arising out of these agreements. This procedure, which may contain two
or three steps, is a form of mandatory preliminary procedure: with very
few exceptions, the Labour Court leaves untried, ex officio, an
application for a writ if the preliminary negotiations have not been
conducted in the way agreed upon.

Jurisdiction and competence

The Finnish Labour Court has sole territorial jurisdiction, i.e. its
competence covers the whole country, and there is no ordinary appeal
against its decisions to a higher instance. Its material competence is
limited to the so-called "legal disputes" which arise out of collective
agreements, or out of the Collective Agreements Acts pertaining to these
agreements, if the issue concerns:

(1) the competence, validity, contents and extent of a collective

agreement and the correct interpretation of a clause in such an
agreement;

(2) whether an act has been in accordance with a collective agreement or

with the corresponding Collective Agreements Act; or

(3) the imposition of a sanction due to a breach of any of the norms

mentioned above. The Labour Court is not empowered, however, to
impose a disciplinary sanction or a criminal sentence. It is only
competent to impose a sanction, a compensatory fine, stipulated in
the said laws. The fine is limited to a definite maximum amount,
and, in many respects, it is comparable to damages.

In connection with a dispute concerning the interpretation or

application of collective agreements, the Labour Court may also, if it
sees fit, pass a sentence of specific performance in an individual case,
provided the facts of the case are clear and undisputed. In other cases
the Labour Court must advise the parties to bring their claims for
 - 17 -

specific performance before the ordinary court of first instance

concerned or to administrative proceedings.

A collective agreement, both for private employees and for civil

servants, may provide that disputes falling under the jurisdiction of the
Labour Court are to be settled by arbitration. But only very few
collective agreements contain such a provision.

It should be clear from what has been said above that the Labour
Court in Finland is not empowered to deal with disputes arising out of
individual employment contracts or out of the legislation regarding
employment [Link] are under the jurisdiction oT
ordinary courts of law or that of administrative tribunals. But the said
tribunals may ask for an expert opinion from the Labour Court in a matter
which requires special knowledge of collective bargaining or industrial
relations. But the courts or tribunals are not bound by the opinion of
the Labour Court.

The activities of the Finnish Labour Court

Table 1. Proceedings of the Labour Court

Actions initiated by 1947-56 1972-81 1982 1983

Employers 54 644
Employees 73 608

Total 127 1,252 219 225

 - 18 -

Table 2. Subject matter of actions

Indus- Breach of Other

Year trial ers * 2
ees* collective cases-^ e.o.^*
peace agreement

1972 44 44 _ 13 28
1973 41 38 3 25 33
1974 53 48 5 18 32
1975 73 65 8 8 23 6
1976 63 53 10 24 30 3
1977 54 51 3 23 46 9
1978 37 35 2 18 29 15
1979 110 105 5 43 31 14
1980 98 93 5 24 46 4
1981 109 93 16 32 44 6

Total 6 8 2 6 2 5 5 7 2 2 8 3 4 2 ( 5 7 )

ers = actions initiated by employers. ees = actions initiated by

employees. ^Interpretation of the collective agreement, civil
servants' collective agreements, etc. ^e.o. = expert or advisory
opinions.

Table 3

Year Industrial Industrial Working days

disputes peace actions lost per
in LC, brotight worker
by ers affected

1972 849 44 2.0

1973 1,009 38 3.7
1974 1,788 48 1.2
1975 1,530 65 1.3
1976 3,282 53 2.6
1977 1,673 51 3.2
1978 1,237 35 0.8
1979 1,753 105 1.1
1980 2,238 93 3.9
1981 1,612 93 1.3
 - 19 -

THE ORGANISATION OF LABOUR COURTS IN FRANCE

by Pierre VEILLIEUX
President, Social Chamber of the Cassation Court, Paris

The settlement of individual labour disputes is entrusted at least in

the first instance to a special and specialised individual disputes board
known as the Conseil de prud'hommes.

Reasons for the establishment of individual disputes boards

From the standpoint of judicial policy the existence of these special

boards is attributable to the desire to allow plaintiffs to bring their
cases before judges who are particularly sensitive to labour problems by
virtue of their own occupational activity or of the nature and subject
matter of the disputes brought before them.

From the strictly political point of view the boards reflect the
desire to democratice legal proceedings, both by the manner of
appointment of the judges (election) and by the requirement that they
belong by occupation to one of the various sectors of the economy.
Consequently, each individual disputes board is divided into five
sections: industry, commerce and commercial services, agriculture,
miscellaneous activities and management. Unlike the first four sections,
the management section is defined by the function rather than by the
occupation exercised.

Composition of individual disputes boards

Individual disputes boards consist exclusively of judges elected by

their peers and there are no career judges. The electoral colleges are
very broad-based, including all persons from 16 years onwards, foreign
workers as well as unemployed persons. To be eligible persons must at
least have reached the age of 21 years, have the French nationality and
not have been convicted of any offence entailing the removal of their
name from the electoral rolls. Pensioners are eligible for six years
after ceasing their occupational activity.

Election is by proportional representation according to the highest

average number of votes. Members of the boards are elected for six
years, half of the members being replaced every three years.

Each board is a joint body consisting of equal numbers of workers and

employers. The (conciliation and judicial) committees within each
section also comprise an equal number of employers and workers. The
 - 20 -

president of the board, who is elected for one year, is chosen

alternatively from among the worker and the employer members.

When, because of the joint nature of the board, there is a split

vote, the casting vote is given to a judge of the competent court of
first instance, i.e. a career judge. This is in fact a not significant
departure from the principle of joint representation.

The members of the individual disputes boards enjoy a special status

protecting them from discriminatory action by their employer.

Proceedings and structure of the judicial system

The individual disputes boards are part of the hierarchy of judicial

jurisdictions. For individual disputes the board is the jurisdiction of
first instance and the parties to the dispute may not opt for another
jurisdiction. They are, however, permitted to seek a compromise.

Each board or section of a board consists of:

a conciliation committee;
a judicial committee.

All disputes first have to be submitted to the conciliation committee

consisting of one employer member and one worker member. The parties are
convened by letter by the secretariat; they may be assisted but must
appear in person. The minutes of the proceedings are drawn up indicating
whether there is agreement or disagreement. An interim decision may be
reached against which an appeal may be lodged only in conjunction with
the judgement as to the substance.

In case of disagreement the parties are convened by letter to appear

before the judicial committee. In the event of a split vote, the case is
referred to a subsequent sitting of the same committee under the
presidency of the judge of the court of first instance.

If the amount of the claim in the dispute brought before the

individual disputes board exceeds its competence in the last instance,
the parties may appeal. The appeal is brought before the common law
Court of Appeal that is competent to hear appeals against decisions
handed down in the first instance by all the judicial jurisdictions
within its territorial competence.

The Court of Appeal is therefore not a specialised jurisdiction,

though one division of the Court of Appeal is generally specialised in
labour lawsuits.

All decisions handed down in the last instance are open to appeal to
the Supreme Court on a point of law. The Supreme Court of Appeal (Cour
de cassation), the competence of which is national and unique, is the
highest hierarchical jurisdiction. A division of the Supreme Court known
as the Social division rules on appeals against decisions handed down in
respect of individual labour disputes.
 - 21 -

Competence of individual disputes boards

The competence of the individual disputes board extends to all

individual differences arising out of an individual labour contract,
regardless of the occupation and regardless of the amount of the claim.

Though it excludes collective labour disputes, this definition is

extremely broad and the individual disputes board can therefore be said
to be the common law judge in such matters.

However, its competence does not extent to:

disputes arising out of the application of social security

legislation;
disputes arising out of contentious electoral matters connected with
occupational elections (staff delegates and members of works
committees);
disputes connected with bankruptcy proceedings (liquidation).
 - 22 -

THE LABOUR JURISDICTION IN THE FEDERAL REPUBLIC OF GERMANY

by Otto KISSEL
President, Federal Labour Court, Kassel

1. General

The judicial system of the Federal Republic of Germany is

characterised by five independent areas of jurisdiction which are laid
down in the Constitution (article 95 of the Basic Law):

ordinary jurisdiction (general civil cases, criminal cases and

discretionary jurisdiction);
administrative jurisdiction;
tax jurisdiction;
labour jurisdiction; and
social jurisdiction.

The assignment of cases to particular areas of jurisdiction is not

expressly provided for in the Constitution but is determined in
accordance with this basic division in individual Acts. The five areas
of jurisdiction are of equal value and rank. The authorities in each
area themselves decide whether they are competent or not, and this
decision is binding upon the authorities in the other areas of
jurisdiction.

Appeals may be lodged with the Federal Constitutional Court if

judicial decisions are deemed to violate the Constitution. In the event
of divergent decisions being taken by the different higher federal courts
in the various areas of jurisdiction a final decision is taken by the
Common Bench of the higher federal courts.

2. Jurisdiction of the labour courts

The jurisdiction of the labour courts is laid down in an extensive

list in the Labour Courts Act. A distinction should be drawn between
civil and collective proceedings.

2.1 Jurisdiction in civil proceedings

2.1.1 Civil proceedings between parties to a collective agreement

(trade unions and employers' associations or employers with bargaining
powers) or between such parties and third parties, arising out of
collective agreements or respecting the operativeness or otherwise of
collective agreements, or in respect to unlawful acts where the matter
 - 23 -

relates to industrial strife or to a question of freedom of association,

including the right to establish associations.

The labour courts also have jurisdiction in civil proceedings

between trade unions and employers in respect of the union's right of
access to the undertaking for purposes of recruitment but not, for
example, in respect of disputes concerning membership, such as the
expulsion of a union member from a union.

2.1.2 Civil proceedings between employees and employers arising out of

the contract of employment or respecting the operativeness or otherwise
of a contract of employment, or relating to negotiations prior to, or
obligations subsisting after, a contract of employment and civil
proceedings in respect of unlawful acts connected with the employee's
employment and employment documents. The labour courts therefore have
jurisdiction in all individual civil proceedings between employees and
employers connected with the employment relationship. Important examples
in practice are claims relating to wages, protection against dismissal,
leave, employment records and compensation. Under the Labour Courts Act
the term "employee" means any wage-earning or salaried employee, any
person employed for the purposes of vocational training, a person
employed in home work and a person placed on the same footing, and any
other person who by reason of his economic dependence must be regarded as
being equivalent to an employee. The term does not cover, for example, a
public servant who initiates proceedings under public law against his
official employer or a severely disabled person who wishes to bring an
action against the central welfare office in respect of the office's
agreement to his dismissal.

2.1.3 Civil proceedings between employees arising out of group

employment, or in respect of any unlawful act occurring in connection
with their employment.

2.1.4 The labour courts also have jurisdiction, for example, in

respect of claims by employees or their survivors to payment in the event
of bankruptcy and actions involving provident, relief and pension funds
concerning matters for which no provision is made under public law.

2.1.5 Actions other than labour actions may also be brought in the
labour courts if the claim has a direct legal or economic connection with
civil proceedings already commenced or simultaneously brought in a labour
court. In virtue of an agreement civil proceedings between bodies
corporate under private law and their representatives (for example, an
action brought by a joint stock company against a member of its managing
board) may also be brought in the labour courts.

2.2 Jurisdiction in collective proceedings

2.2.1 Matters arising in connection with the Works Constitution Act,

for example in respect of co-management by the works council or the
validity of a decision given by the conciliation board.
 - 24 -

2.2.2 Matters arising in connection with the Co-management Act of 1976

and the Works Constitution Act of 1952 concerning the election of
employees' representatives to the supervisory board and their removal.

2.2.3 Decisions in respect of the ability to bargain collectively and

the collective bargaining powers of an association (trade union,
employers' association). The ability to bargain collectively means the
ability to conclude collective agreements as specified in the Collective
Agreement Act.

2.3 Arbitration tribunals

Arbitration tribunals may give decisions in the place of labour

courts only in exceptional cases. Provision is made for arbitration only
in respect of civil proceedings between parties to collective agreements
arising out of collective agreements or respecting the operativeness or
otherwise of collective agreements and disputes arising in connection
with the employment relationship, where the persons covered by the
collective agreement are stage, screen or variety artists or are members
of a ship's crew, and only when the employment relationship is governed
by a collective agreement and provision is made in the collective
agreement for a decision to be given by an arbitration tribunal.

2.4 Mediation

It is not permitted for the State, even through the courts, to

mediate in the event of industrial strife as this would contradict the
basic principle of autonomy in collective bargaining. Agreements reached
through mediation come under the provisions of private law.

3. Structure of the labour courts

3.1 Local labour courts

The local labour courts have jurisdiction in all labour cases as

courts of first instance. The local labour courts give decisions through
divisions, each of which is composed of a judge who acts as chairman and
two labour judges. Chairmen are appointed for life and are personally
and materially independent. The labour judges are appointed by the
central Land labour authority for a period of four years from the
candidate lists submitted by employers' associations, trade unions,
independent employees' associations having social or occupational
objectives and public corporations. Directors and managers who are
entitled on their own responsibility to engage employees for the
undertaking or have been given full power of representation or a general
authority are eligible for appointment as employers' assessors. The
composition of the divisions is established on an equal basis with one
labour judge from the employees' side and one from the employers' side in
each case.
 - 25 -

3.2 State (Land) labour courts

The state (Land) labour courts have jurisdiction as courts of

second instance. They are exclusively courts of appeal in respect of
decisions given by a local labour court which may be lodged on points of
law (Berufung) in the case of civil proceedings (2.1 above) and through a
petition for review (Beschwerde) in the case of collective proceedings.

An appeal on points of law is subject go certain restrictions

and may only be made if a local labour court has declared such an appeal
permissible or if the case is an action in respect of a pecuniary claim
for an amount in excess of 800 DM.

The composition of the state (Land) labour courts is the same as

in the case of the local labour courts.

3.3 Federal Labour Court

The Federal Labour Court established at Kassel has supreme

jurisdiction in labour cases as the court of the last instance. An
appeal on law (revision) may be made against a judgement of a state
(Land) labour court in respect of an appeal on facts of law (Berufung)
and a petition for review on law (Rechtsbeschwerde) may be made against a
decision given by a state (Land) labour court in respect of a petition
for review (Beschwerde). The Federal Labour Court gives decisions only
in regard to questions of law and must abide by the decisions given by
the lower labour courts.

An appeal on law may only be made if it has been declared

permissible in the judgement of a state (Land) labour court. This is
possible only if a case involves matters of principle or if the judgement
of a state (Land) labour court diverges from the judgement of the Federal
Labour Court or another state (Land) labour court. The same applies to a
petition for review on law.

The Federal Labour Court gives decisions through benches

(Senate) which are competent to act with one federal judge acting as
chairman, two judicial assessors and one federal labour judge from the
employees' side and one from the employers' side. The federal labour
judges are appointed by the Federal Minister for Labour and Social
Affairs for a period of four years, also from the candidate lists
submitted by the associations. They must have attained the age of 35
years, have special knowledge and experience in the fields of labour law
and industrial life and have been assessors in a labour court for four
years or more.

As in the case of all higher courts, the Federal Labour Court

has a Great Bench (Grosser Senat). If on a question of law one bench is
unwilling to follow the ruling of another bench or of the Great Bench the
question is referred to the Great Bench for a decision. The bench which
gives a ruling may refer any question involving matters of principle to
the Great Bench where, in its opinion, a decision is necessary for the
evolution of law or uniformity of judicial practice. The Great Bench
consists of the President of the Federal Labour Court, the senior of the
 - 26 -

bench presidents, four federal judges, two federal labour judges from the
employees' side and two from the employers' side.

4. Judges

All bodies with jurisdiction in labour cases are composed of judges

and labour judges who have the same powers and the same duties. In
particular, they enjoy unrestricted judicial independence.

5. Proceedings

5.1 In the labour courts civil proceedings (2.1 above) are conducted
essentially in accordance with the Civil Procedure Code while collective
proceedings (2.2 above) are conducted in accordance with a special
procedure.

5.2 Rapid disposal of business: in all proceedings and in all courts

the rapid disposal of business is a requirement under the law.

5.3 All proceedings are characterised by the desire of the

legislator wherever possible to reach an amicable settlement. Provision
has therefore been made for conciliation proceedings before actions are
brought in courts of first instance. It is in any case the judge's duty
in all proceedings to attempt to bring about an amicable settlement.

5.4 Proceedings are characaterised by the low level of costs. Legal

costs are considerably lower than in comparable cases under the general
civil procedure and no legal costs are charged in some cases. Special
rules other than those under the general civil procedure also apply in
respect of counsel's fees in some cases.
 - 27 -

THE NATIONAL LABOUR COURT OF ICELAND

by Bjarni K. BJARNASON
President, National Labour Court, Reykjavik

Introduction

The National Labour Court in Iceland was established in 1938 with the
enactment of the Labour Union and Labour Disputes Act No.80, which is
still in force. This was the first time that such a court with sole
territorial jurisdiction was established. The Act decided that the seat
of the Court was to be in the capital of Iceland, Reykjavik.

Composition of the Court

The Court is composed of five judges. Two of the judges are

appointed by the Supreme Court of Iceland and one of them is appointed by
the Supreme Court as the President of the Labour Court. One judge is
appointed by the Minister of Social Affairs from among a group of three
persons nominated by the Supreme Court.

One judge is appointed by the Federation of Employers and another

judge is appointed by the Labour Union.

If a dispute concerns civil servants or banking employees, their

respective unions appoint a judge and the same is done by the Minister of
Financial Affairs or the boards of the state-owned banks. These latter
judges replace the judges appointed by the Federation of Employers and
the Labour Union for the particular case concerned. In certain other
cases a similar procedure may be used. Substitute judges who act as
member of the Court in case of a vacancy are appointed by the same
parties that appointed the titular judges.

Procedure

Each case is tried by a panel of five judges. The judges appointed

by the Supreme Court and the Minister of Social Affairs hear every case
which is brought before the Court.

It is a civil duty to take a seat in the Labour Court. If an

appointed judge or his substitute for one or another reason are unable to
take their seat in the Court, the party which appointed them shall
appoint another substitute. In case the appointing party fails to do so,
the President of the Labour Court shall appoint a judge to fill the
vacant seat.
 - 28 -

In general the Labour Union and the Federation of Employers will

represent their members before the Court. Associations not affiliated to
the Labour Union or the Federation of Employers will represent
themselves. Individual persons, who are not a member of a federation or
a union, will represent themselves. In case the Federation or the Union
refuses to institute a litigation on behalf of a certain party, that
party can institute a litigation on his or her own capacity. However,
before that party can issue a summon, it has to prove to the President of
the Labour Court that the federation or union concerned refused to
institute the litigation.

A dispute that falls within the competence of the Labour Court cannot
be brought before the general courts of law.

The President of the Court decides when a case shall be set down for
trial; he issues summons in the name of the Court. Each summon coantains
a detailed description of the facts in case, the claims presented by the
plaintiff as well as the way in which the plaintiff intends to prove his
allegations.

When registering the case, the plaintiff presents and delivers the
summon, a complaint and all other documents necessary to support his
claim. The defendant then gets a brief delay to hand in his answer to
the charges and claims made by the plaintiff. If deemed necessary by the
parties, and upon approval by the Court, the parties can get an
additional delay to obtain further documents and evidence to present to
the Court. At the end of this delay the Court decides when the trial
will take place. The pleadings before the Court are generally oral. In
particularly complicated cases, the Court may decide to have written
pleadings. During the oral pleading the representataives and wittnesses
of the parties testify and finally the counsels deliver their pleadings.
The Court normally tries to pronounce its judgement within ten days from
the hearing. This is in line of the provision of the Act of 1938 that
every case referred to the Labour Court shall be tried and concluded as
fast as possible. Under extraordinary and exceptional circumstances it
has happened that the procedure has been delayed for several months.

It can be said that the procedures of the Labour Court are in

principle the same as those of the ordinary lower courts. There are a
few exceptions such as the provision of article 56 of the 1938 Act which
imposes a duty on the Court to elucidate every case as thoroughly as
possible.

Functions of the Court

The main functions of the Labour Court are:

(1) to adjudicate disputes concerning violations of Act No. 80 of 1938 as

well as cases concerning losses suffered as a consequence of an
illegal strike;

(2) to adjudicate cases of violations of a contract of employment or

disputes concerning the interpretation and validity of such an
agreement;
 - 29 -

(3) to adjudicate disputes between employers and employees, where the

parties to the dispute have agreed to refer the dispute to the Labour
Court. The institution of a litigation in such a dispute is subject
to the consent of at least three members of the Labour Court.

Appeals

The judgements and decrees of the Labour Court are final and, in
principle, not subject to appeal. Within one week from the pronouncement
of a judgement or decree an appeal to the Supreme Court is possible under
the following circumstances:

(1) when the Labour Court has rejected to hear a case or when it has
denied a request for injection;

(2) an appeal for nullifying a judgement when it is alleged that the

Labour Court adjudicated without having jurisdiction;

(3) decisions of the Labour Court concerning the obligation of a person

to give evidence before the Court and the imposition of fines by the
Court are also appealable.

Few decisions of the Labour Court have been appealed to the Supreme
Court of Iceland. In most of these cases the question of the
jurisdiction of the Labour Court has been the ground for appeal.

The State bears the costs of the Court, including the salaries of the
judges.
 - 30 -

THE LABOUR COURT IN IRELAND

by Maurice P. COSGRAVE
Chairman, Labour Court, Dublin

Industrial Relations Acts, 1946, 1969 and 1976

1. The Labour Court was established by the Industrial Relations

Act, 1946. Provisions of that Act relating to the Court's constitution
and operations were amended by the Industrial Relations Act, 1969 and the
Industrial Relations Act, 1976. The Court has also been allotted certain
functions under the terms of the Anti-Discrimination (Pay) Act, 1974, and
the Employment Equality Act, 1977.

2. The Court at present consists of a chairman, three deputy

chairmen and eight ordinary members, all of whom are appointed by the
Minister for Labour. Further deputy chairman and ordinary members are
provided for in the legislation if they are considered necessary. The
eight ordinary members are nominated for appointment by organisations
representative of workers' and employers' trade unions, and are required
not to hold any office or employment which would prevent them from being
at all times available for the work of the Court. The chairman is
required to devote his full time to the work of the Court.

3. When considering any matter, the Court may consist of the

chairman and all the ordinary members o£ a chairman (who may be one of
the deputy chairmen, as explained below) and two ordinary members (one
workers' and one employers' representative).

4. As a help towards the speedy dispatch of business the chairman

may group the Court into four divisions. A division is comprised of a
chairman and two ordinary members, one of the latter being representative
of workers and the other of employers. The chairman of a division may be
one of the deputy chairmen who, when chairing that division, has all the
power of the chairman. In practice, the Court almost always works in
four divisions.

5. The functions of the Labour Court may be stated briefly as

follows:

(1) the provision of an industrial relations (conciliation) service;

(2) the investigation of trade disputes and the issue of recommendations

for their settlement;
 - 31 -

(3) the registration and variation of certain agreements;

(4) the establishment and servicing of joint labour committees and the
ratification of wages and conditions of employment proposed by these
committees;

(5) the provision of a chairman and/or secretaries for joint industrial

councils;

(6) the making of fair employment rules (if requested to do so);

(7) fixing (non-binding) standard wage rates for an area;

(8) deciding on appeals in disputes in which the recommendations of a

rights commissioner have been rejected;

(9) the provision of the services of an equality officer to investigage

claims concerning discrimination in pay and/or employment, and
deciding on appeals against the equality officers' recommendations.

6. Investigations of disputes by the Court. As explained above,

the Court may, at present, consist of nine or three persons for the
consideration of any matter. Only the members of a particular Court have
the right to vote on the question before it. (Thus in a Court of three,
comprising the chairman and two ordinary members neither the deputy
chairman nor the other six ordinary members have the right to vote.)

7. It is unlikely that the members of the Court considering a

dispute will always be unanimous in their decision. To deal with this,
Section 20(3) and (4) of the 1946 Act provide that, where the members of
the Court are unable to agree upon the determination of the question
before it,

(a) if the majority of the ordinary members agree upon the determination
of the question, the question shall be determined accordingly;

(b) if the majority of the ordinary members do not agree, but a majority
of all the members agree, the question shall be determined
accordingly;

(c) otherwise, the question shall be determined in accordance with the

opinion of the chairman.

8. The decision of the Court shall be pronounced by the chairman or

such other member as the chairman shall authorise and no other opinion
whether assenting or dissenting shall be pronounced, nor shall the
existence of any such other opinion be disclosed.

9. The formality of the Court's proceedings is reduced to a minimum

but the Court may:

(a) require witnesses to attend before it;

(b) examine on oath the witnesses attending before it;

 - 32 -

(c) require any such witness to produce to the Court any document in his
power or control.

These provisions are rarely used.

10. Section 67 of the Industrial Relations Act, 1946, empowers the

Labour Court to investigate trade disputes. This section also enumerates
certain circumstances in which the Court should not carry out an
investigation viz:

(a) a trade dispute between persons who are represented on a registered

Joint Industrial Council unless (a) the Council so requests or (b)
the Court is of opinion that the dispute is likely to lead to a
stoppage of work;

(b) a dispute in relation to which there is an agreement in force between

the parties in dispute which provides another method of terminating
the dispute, unless the Court is of the opinion that the dispute is
likely to lead to a stoppage of work; and

(c) a dispute between persons to whom a registered employment agreement

applies concerning matters to which the agreement relates unless (a)
a party to the agreement so request or (b) the Court is of the
opinion that the dispute is likely to lead to a stoppage of work.

11. While Section 67 of the Industrial Relations Act, 1946, empowers

the Labour Court to investigate trade disputes it does not impose any
obligation on the Court to investigate, and a separate decision to
investigate or not is taken by the Court in each case.

12. Sections 18 and 20 of the Industrial Relations Act, 1969,

introduced certain further provisions relating to investigation of
disputes by the Court. These are, in the main, as follows:

Section 18: the Court is precluded from investigating unless the parties
to the dispute request it to do so, and then only if an
industrial relations officer certifies that conciliation had
failed to settle the dispute unless exceptional circum-
stances exist.

Section 20: the Court is required to investigate a dispute in private

and with such priority as is feasible when the union or both
parties agree in advance to accept the Court's recommen-
dations.

13. Under Section 8 of the Industrial Relations Act, 1969, Court

investigations must be held in private unless one of the parties
concerned request a public hearing. In public investigations the Court
has the power to hear any part or parts of the case in private.

14. The procedure and general atmosphere prevailing at the hearing,

by the Court, for the purpose of the investigation of a trade dispute,
bears little resemblance to the formalities of a court of law.
Formalities are reduced to a minimum. Written submissions are normally
 - 33 -

made, by both parties, before the Court investigation commences. These

written submissions are read at the Court hearing by the main spokesman
for each side, but the fact that certain aspects of the dispute may not
be covered in the written submission does not prevent a party from
covering these additional aspects by way of a supplementary oral
submission. Any points on which clarification or elaboration is required
will be dealt with by way of questions by members of the Court. The more
fully facts and arguments are given in the written and oral submissions
the less need there will be for members of the Court to put questions.
Written submissions are required to be in the hands of the Court a few
days before the hearing.

Labour Court recommendations

15. The Court, having investigated a trade dispute, may make a

recommendation setting forth its opinions on the merits of the dispute
and the terms on which it should be settled. The Court is no longer
obliged, as it was prior to the 1969 Act, to have regard to the public
interest, the promotion of industrial peace, the fairness of the terms to
the parties concerned and the prospects of the terms being acceptable to
them though, of course, the Court may consider any or all of these
matters.

16. Recommendations issued by the Court normally take the form of a

summary of the case submitted by each party to the dispute, followed by
the Court's recommendation with regard to a basis for settlement. On
occasions, the Court also makes oral recommendations at the end of a
hearing or issues its recommendations by letter. There has, from time to
time, been criticism of Court recommendations because they sometimes fail
to set forth fully the Court's opinion on the merits of the dispute. It
has been argued that, if the reasons for the Court's recommendation were
in every case fully stated, it would encourage and stimulate a more
intelligent consideration of Court recommendations by both sides of
industry.

17. Except in the cases referred under Section 20 of the 1969

Industrial Relations Act, appeals against rights commissioners
recommendations and appeals against equality officers' recommendations,
the Court's recommendations are not legally binding on the parties. The
parties to a dispute will, however, be expected to give very serious
consideration to the terms of the settlement, recommended by the Court,
in any case, particularly now, as the Court is normally precluded from
investigating unless both parties request it to do so. This is in
complete accord with the principle of free collective bargaining which
underlies the establishment of the Labour Court. The Court's duty is to
give a considered opinion as to the terms on which a particular dispute
should be settled but the responsibility for the settlement rests at all
times with the parties themselves.
 - 34 -

18. The success of the Labour Court rests to a very large degree on
the confidence which employers and workers repose in it. The following
figures show the number of cases coming before the Court in recent years:

Year Number of recommendations, reports

and decisions issued

1974 365
1975 403
1976 474
1977 462
1978 546
1980 576
1981 802
1982 975
1983 1,045

Of the 510 recommendations issued between 1st January 1979 and 31st
December 1979, the Court had received (up to 20 February 1980) a
notification of acceptance or rejection from both parties in only 112
cases (21.9%) 64 (57.1%) were accepted by both sides and 48 (42.9%) were
accepted by employers' side and rejected by the trade union side. In the
vast majority of cases (398 or 78% of cases) either no reply was received
from one side or the other or both sides as regards acceptance or
rejection of recommendations.

19. Rights commissioners. Under the 1969 Act the Minister for
Labour has power to appoint rights commissioners who, except in certain
cases (such as rates of pay, hours of work or annual leave of a group of
workers), are empowered to investigate disputes. This service is outside
the ambit of the Labour Court. However, a party to a dispute in relation
to which a rights commissioner has made a recommendation may appeal to
the Court against the recommendation and the parties to the dispute are
then bound by the decision of the Court.

20. Equality officers. Under the provisions of the Anti-

Discrimination (Pay) Act, 1974, and the Employment Equality Act, 1977,
disputes concerning equal pay entitlements and discrimination in
employment on grounds of sex or marital status may be referred to an
equality officer of the Labour Court for investigation and recommendation.

21. During the course of an investigation the equality officer

examines written submissions made by the parties, meets the parties and
visits premises to inspect work in progress. For the purpose of carrying
out investigations the equality officers are empowered to enter premises,
examine records or documents, seek information and inspect work in
progress in the premises. Any person who obstructs an equality officer
in his/her investigation shall be guilty of an offence and liable to a
substantial fine.
 - 35 -

22. Following an investigation the equality officer issues a

recommendation to the parties and to the Labour Court. Either party to
the dispute may, within 42 days from the date of the equality officers'
recommendation, appeal to the Labour Court against the recommendation or
for a determination that the recommendation has not been implemented.
The Court's findings in such cases are binding on both parties. A more
detailed explanatory memorandum on the Anti-Discrimination (Pay) Act,
1974, is available on request.

23. Industrial Relations Service (Conciliation). The reference in

the Industrial Relations Act, 1946, to conciliation are few and brief.
Section 16 of the Act empowered the Court to appoint officers to act as
conciliation officers and Section 69 empowers the chairman of the Court,
before the Court undertakes the investigation of a trade dispute, to
appoint a conciliation officer to act as mediator in the dispute for the
purpose of effecting the permanent settlement thereof or such temporary
settlement as will ensure that no stoppage of work shall occur pending
the investigation of the dispute.

24. Section 6(2) of the 1969 Act repeals Section 16 of the original
Act, retitles these officers "industrial relations officers" and provides
as follows":

"Industrial relations officers shall perform any duties assigned

to them by the Court or the chairman, and, in particular, they
shall assist in the prevention and settlement of trade disputes
and in the establishment and maintenance of means for conducting
voluntary negotiations between employers and workers either
generally or in particular industries or particular areas or
between particular employers and their workers."

25. The nature of the Conciliation Service is that it be voluntary

and informal and consequently it has a considerable appeal for both
employers and workers when they find they are unable to reconcile their
different viewpoints by direct discussion. It is a natural extension of
the direct negotiations normally carried on by both sides of industry.
Because there is no element of compulsion in it, its efficiency will
depend almost entirely on the measure of co-operation which is
forthcoming from the parties themselves.

26. The normal procedure followed at conciliation conferences is for

the industrial relations officer to preside in the first instance at a
joint meeting of the parties, at which each side states its point of view
on the issues involved. Unless the dispute is of a very simple nature
the industrial relations officer will find it necessary to have private
discussions with each side separately. Generally speaking it is as a
result of the talks at these "side conferences" that most progress is
recorded, because the parties are prepared, to some extent at least, to
reveal their exact and true positions in the knowledge that their
confidence will not be abused. After these "side conferences" the
industrial reltions officer will have a clearer picture of what might
settle the dispute and from then on he will try to guide the parties
along certain lines or he may be in a position to come forward with a
solution which he can persuade each party to the dispute to accept.
 - 36 -

27. The usefulness of the conciliation service provided by the Court

can be judged from the number of disputes in which conciliation
conferences were held and the percentage of these which resulted in
settlement.

Year Number of disputes in Number and percentage of

which conciliation disputes settled at
conferences were held Conciliation

1971 628 429 68%

1972 713 443 62%
1973 855 487 56%
1974 951 646 68%
1975 1,108 576 52%
1976 1,071 581 54%
1977 1,175 638 54%
1978 1,288 651 51%
1979 1,301 633 49%

28. Those conferences which dit not result in settlement cannot be

regarded as having failed completely as almost all of them were
subsequently investigated by the Court and, in a majority of cases, the
Court recommendations were accepted without either party having recourse
to industrial action.

29. Industrial relations procedures. As indicated in the 1969 Act,

the industrial relations officers, whenever possible, are availble to
advise and assist in the setting up of suitable industrial relations
procedures.

30. Joint industrial councils. They are negotiating bodies for

particular industries or parts of industries. They are voluntary
associations in which one side represents employers and the other side
unions. They usually meet in the Court's premises and the Court provides
a chairman who is an industrial relations officer, and a secretary.
Joint industrial councils may be registered with the Court. Their rules
provide that before resort is had to industrial action the matter shall
be considered by the Council.

31. Joint labour committees. Under the Industrial Relations Act,

1946, the power to set up joint labour committees was transferred from
the Minister for Industry and Commerce to the Labour Court. The Court is
empowered to establish a joint labour committee provided that it receives
an application from the Minister for Labour or a trade union or any
organisation or group of persons claiming to be representative of the
workers or employers concerned. The Court must first hold an inquiry
into such an application, giving an opportunity to parties to present
observations on the proposals. As application for the establishment of a
joint labour committee must be on the grounds that there is substantial
agreement between the workers and employers to such establishment or that
 - 37 -

the existing machinery for the effective regulation of wages and

conditions of employment of the workers concerned is inadequate or that,
having regard to existing rates of wages and conditions of employment, it
is expedient that a joint labour committee should be established. The
Court may also abolish or vary the field of operation of an existing
joint labour committee on the application of the Minister for Labour, a
trade union or any organisation or group of persons representative of the
workers or employers concerned.

32. A joint labour committee consists of equal numbers of

representatives of employers and workers appointed by the Court and a
chairman and independent members appointed by the Minister for Labour.
In the case of the Agricultural Workers' Joint Committee, which was set
up under the terms of the Industrial Relations Act, 1976, the
representative members are appointed by the Court from a panel of
nominees presented by the Minister for Labour with the consent of the
Minister for Agriculture.

33. A joint labour committee may submit to the Court proposals for
fixing the minimum rates of remuneration of workers or for regulating
their conditions of employment. Where the Labour Court receives from a
joint labour committee proposals with regard to fixing of remuneration or
conditions of employment it will, unless it refers the matter back to the
committee for further consideration, publish notice of the proposals.
Objections to the proposals may be lodged within 21 days. If any
objections are made, they are first considered by the joint labour
committee and the committee may then submit the proposals, amended or
otherwise, for confirmation by the Court. The Court may either make an
Employment Regulation Order giving effect to the proposals from such date
(subsequent to the date of the Order) as it thinks proper and specifies
in the Order, or it may refuse to make the Order.

34. A joint labour committee may not submit proposals revoking or

amending an Employment Regulation Order unless the Order has been in
force for at least six months.

35. When proposals submitted by a joint labour committee are

confirmed by the Court, through the making of an Employment Regulation
Order, they become statutory minimum remuneration and statutory
conditions of employment for the workers concerned. Employers are then
bound under penalty to pay rates of wages and observe conditions of
employment not less favourable than those prescribed.

36. An employer of workers to whom an employment regulation order

applies mut keep records of wages, payment, etc. and must retain these
records for three years. He must also post up prescribed notices in his
factory setting out particulars of the statutory rates of remuneration
and conditions of employment.

37. The provision of employment regulation orders are enforced by

inspectors appointed for the purpose by the Minister for Labour. These
inspectors have power to enter premises, inspect wage sheets and other
records, examine the employers and workers concerned and institute
proceedings (if necessary).
 - 38 -

38. Registered agreements. An employment agreement is an agreement

relating to the remuneration or the conditions of employment of workers
of any class, type or group madee between a trade union of workers and an
employer or trade union of employers or made, at a meeting of a
registered joint industrial council, between members of the council
representative of workers and members of council representative of
employers.

39. Under the Industrial Relations Acts an employment agreement,

when registered by the Labour Court, becomes legally binding not only on
the parties to it but also on others who are not parties to it but who
are in the class, type or group to which the agreement is expressed to
apply.

hO. The application to the Court for registration of an agreement

may be made by any party to it but the Court will not grant registration
unless it is satisfied that:

(a) in the case of an agreement to which there are two parties only, both
parties consent to its registration and, in the case of an agreement
to which there are more than two parties, there is substantial
agreement amongst the parties representing the interests of workers
and employers, respectively, that it should be registered;

(b) the agreement is expressed to apply to all workers of a particular

class, type or group and their employers where the Court is satisfied
that it is normal and desirable practice or that is expedient to have
a separate agreement for that class, type or group;

(c) the parties to the agreement are subsequently representative of such

workers and employers;

(d) the agreement is not intended to restrict unduly employment generally

or the employment of workers of a particular class, type or group or
to ensure or protect the retention in use of inefficient or unduly
costly machinery or methods of working;

(e) the agreement provides that, if a trade dispute occurs between

workers to whom the agreement relates and their employers, a strike
or lock-out shall not take place until the dispute has been submitted
for settlement by negotiation in the manner specified in the
agreement; and

(f) the agreement in in a form suitable for registration.

41. Employers and workers who are not parties to the agreement, but
may be affected by it if it is registered, must, of course, be given an
opportunity of knowing about it and, if they so wish, objecting to the
registration. The Court must therefore direct the parties to publish
specified particulars of the agreement. Exactly how this is to be done
will be decided by the Court in each case; it may, for example, require
advertisment in the national and local newspapers, giving an indication
of the contents of the agreement and indicating that copies of it may be
obtained on request from the Labour Court.
 - 39 -

42. A period of at least 14 days or longer, if the Court considers

it necessary, must elapse between the publication of particulars of the
agreement and the final stage of the registration procedure. If by the
end of that period no objection has been received, the Court may proceed
to register the agreement. If an objection is received within that time,
the Court must (unless it considers the objection frivolous) hold a
sitting to hear the objectors and any other persons concerned who wish to
give their views. The Court has generally followed the practice of
arranging a sitting to consider each application for registration even
where no objections are raised within the specified period.

43. Enforcement of the provisions of a registered agreement may be

effected in either of two ways. Contracts of employment are deemed to
have been amended to comply with the agreement, so that if an employer
pays lower wages or gives less favourable conditions of employment than
the agreement requires, his workers would have the ordinary civil
remedies for a breach of contract. The Act also provides for enforcement
through workers' trade unions and the Labour Court. A union may complain
to the Court than an employer has failed to comply with the agreement.
If the Court is satisfied, after hearing all persons interested, that the
complaint is well founded, the Court may make an order directing the
employer to comply. If the employer falls to obey the direction
contained in the Order he is guilty of an offence and renders himself
liable, on summary conviction, to a fine of up to 100 with a further
fine of up to 10 for every day during which the offence is continued.

44. The 1969 Act provides that an employer may complain about
another employer who is not acting in conformity with the agreement. The
registration of an employment agreement imposes certain limitations on
the freedom of action of the trade unions of workers affected by the
agreement, even if a particular union was not itself a party to the
making of the agreement.

Employers have a right of complaint to the Labour Court corresponding

to the workers' right. If the Court is satisfied that a workers' union
is promoting or assisting out of its funds a strike which "is in
contravention of the agreement and which has for its object the
enforcement of a demand on an employer to grant to a worker remuneration
or conditions other than those fixed by the agreement", the Labour Court
may make an order directing the union to refrain from continuing to use
its funds in maintaining the strike. If a person to whom this direction
is given fails to obey, he is guilty of an offence and is liable, on
summary conviction, to the same fines as an offending employer.

Although there is limitation to the extent indicated on the exercise

of the right to strike, a registration of an agreement does not entail
complete abandonment of the right. There is nothing to prevent resort to
strike action (a) in support of a demand for the remuneration or
conditions set out in the agreement or (b) after the disputes procedure
has been properly followed.

45. If a registered employment agreement provides for the variation

of the agreement any party to the agreement may apply to the Court to
vary it in its application to any worker or workers to whom it applies.
 - 40 -

46. Where an application is made to vary an agreement, the following

provisions shall have effect:

(a) The court shall consider the application and shall hear all persons
appearing to the Court to be interested and desiring to be heard;

(b) after such consideration, the Court may, as it thinks fit, refuse the
application or make an order varying the agreement, in such manner as
it thinks proper;

(c) if the Court makes an order varying the agreement the agreement shall
as from such date not being earlier than the date of the order as the
Court specified in the order have effect as so varied.

47. A registered agreement may not be varied in such a way as to

increase its scope.

48. Annual report. The Court makes a report on its proceedings to

the Minister for Labour and the Oireachtas every year. The report is
then published and may be purchased from the Government Publications Sale
Office, G.P.O. Arcade, Dublin 1.
 - 41 -

THE LABOUR COURTS IN ISRAEL

by Zvi BAR-N1V
President, National Labour Court, Jerusalem

The labour courts have been established by the Labour Courts Act,
1969. The labour courts are specialised courts having limited but
exclusive jurisdiction in matters of labour and social security, and as
such constitute a part of the judiciary of the country.

Establishing the labour courts was the final stage of process which
commenced with the Declaration of Independence in 1948. Before that, the
main features characterising the labour relations and labour law systems
of the country were "collective laissez-faire" in the field of labour
relations and abstentionism in the field of individual labour law. A
complete change took place in the first ten years following the
Decleration of Independence.

Legislative action was based on an outline scheme, envisaging the

establishment of labour courts, thus departing from the basic principle
of a unitary courts system.

The Act of 1969 and the labour courts established thereunder were not
imposed upon the parties to the labour relations system, but came in
response to a mutual request which found its expression in a national
agreement of 1967.

Composit ion

The labour courts consist of: (a) professional judges; (b) lay judges
and (c) registrars.

(a) The professional judges are being appointed by the same process as
are appointed the judges of the other courts. They are appointed by
the President of the State upon nomination by a committee for the
appointment of judges. This committee consists of nine members: two
members of the legislature, two members of the Cabinet, three judges
of the Supreme Court and two appointees of the Bar. In the case of
appointments to the Labour Court, one of the two members of the
Cabinet is, by Statute, the Minister of Labour.
Qualifications for appointments as professional judges are: for
the Supreme (National) Labour Court, the same qualifications as for
the Supreme Court; for the regional labour courts, the same
qualifications as for the district courts.
 - 42 -

Professional judges of the labour courts enjoy the same status

and conditions of service as judges of the general courts.
The powers of judicial administration confered by law upon the
President of the Supreme Court have been assigned by the Labour
Courts Act to the President of the Supreme Labour Court.

(b) Lay judges are appointed by the Minister of Labour and the Minister
of Justice, after consulting the most representative workers'
organisations and representative employers' organisations. The
appointment is for three years, subject to reappointment. While
sitting on the bench - a lay judge is independent of the organisation
which was consulted towards his appointment and in the course of
hearing a case he or she enjoys the came standing as a professional
judge.

(c) Registrars are appointed by the President of the Supreme Labour Court
after consulting the Minister of Labour and with the approval of the
Minister of Justice. Qualified for appointment are those who are
qualified for appointment as magistrates. They have limited
jurisdiction and do not have the status of a judge, but are not
subject to any instructions in the exercise of their judicial
functions.

A bench of the Supreme Labour Court consists of three professional

judges and two lay judges (in special circumstances a bench may or must
consist of three professional judges and four lay judges). A bench of a
regional court consists of one professional judge and two lay judges.

Structure

The labour court system consists of regional labour courts and a

Supreme (National) Labour Court. There are five regional courts through-
out the country with 15 judges and seven registsrars. The Supreme Labour
Court has four judges, including the president. The president is, in
addition to his judicial functions, responsible for the administration of
the labour court system as a whole.

Jurisdiction

1. The main feature of the Labour Courts Act, as far as

jurisdiction is concerned, is its comprehensive approach to labour law.
The result is exclusive jurisdiction in all matters of labour, and in
addition to this, exclusive jurisdiction in all matters of social
security - statutory and voluntary.

1.1. Regional courts have jurisdiction in the following matters:

(a) claims between an employee and his employer, arising out

of the employer-employee relationship, excluding claims in
torts;

(b) legal disputes (disputes of rights) between those

qualified to be parties to collective agreements
 - 43 -

concerning the existence, application, interpretation,

implementation or violation of a collective agreement;

(c) claims between members of employees' organisations and

their organisations, arising out of membership or the
organisation's activity in matters of employment;

(d) violations of safety and protective labour legislation (in

these matters the Court consists of professional judges
only);

(e) matters arising out of arbitration under the general

Arbitration Law, if the subject matter of the arbitration
is within the exclusive jurisdiction of the regional court.

(f) all matters with regard to social security.

1.2 Registrars of the regional courts have jurisdiction in the

following matters:

(a) claims for unpaid wages not exceeding a certain amount;

(b) pre-trial in individual claims.

1.3 The Supreme Labour Court has jurisdiction in the following

matters:

(a) appeals from regional courts;

(b) collective legal disputes as under 1.1 (b) above, when the
collective agreement involved is a "general" one, i.e.
industry-wide or nation-wide;

(c) "organisational" and "jurisdictional" disputes between

workers' organisations or between employers' organisations.

Judgments of the Supreme Labour Court are final and not subject to
appeal; they are, however, subject to certiorari proceedings before the
Supreme Court for excess of jurisdiction. In criminal matters
violation of safety and protective legislation - judgments of the Supreme
Labour Court are subject to appeal, by leave, to the Supreme Court.

Main problems

(a) being the only civil, specialised courts, operating within a unitary
judicial system;

(b) difficulties of adjustment of the legal profession;

(c) selection and training of judges;

(d) workload at the level of the regional courts.

 - 44 -

THE LABOUR COURT OF NORWAY

by Stein EVJU
President, Labour Court, Oslo

Background

The Norwegian court system is basically uniform. The ordinary courts

(county courts, courts of appeal and the Supreme Court) have, in general,
jurisdiction in all areas of law. In this the Labour Court stands out,
being a special court with exclusive jurisdiction in certain areas of
labour law.

In Norway, like in so many other countries, collective agreements

developed independently of legislation, leaving open, however, questions
as to their status and effects under the general law of contracts. And
this was found insufficient to deal with the practical needs and problems
such agreements gave rise to. In 1902, the central organisations of
workers and employers (LO, founded 1899, and NAF, founded 1900,
respectively) concluded a general agreement on resolution of industrial
disputes, based on the principle of negotiations and private arbitration,
which was applied in most ensuing collective agreements. Also in 1902,
the Government put forward its first proposals on industrial relations
legislation. But the crucial development started five years later and
resulted in the 1915 Labour Disputes Act (LDA). The fundamental ideas
underlying the Act were to promote and strengthen collective agreements
as an instrument for regulating wages and working conditions and to
create machinery for the peaceful solution of industrial disputes, taking
into consideration the public interests concerned. The Act laid down the
relative peace obligation in statutory form and formalised the
distinction between disputes of interest and disputes of right embodied
in the 1902 Agreement. For disputes of interest a system of mediation
was introduced, leaving open recourse to industrial action if mediation
failed. And for disputes of right the Labour Court was established as a
special institution to deal with matters relating to collective
agreements. The basic considerations behind the creation of this special
court were two, and they are still valid. For disputes concerning
collective agreements a machinery capable of rendering solutions more
quickly than the ordinary court system is needed. And the Court should
possess expert knowledge of law and practice of industrial relations and
collective agreements in general.

The presently valid Labour Disputes Act was adopted in 1927 (with
later amendments), and is mainly a technical revision of the 1915 Act
upholding all the basic features of this Act. The 1958 Public Service
 - 45 -

Labour Disputes Act (PSLDA) established a system of collective bargaining

and collective agreements for state civil servants along the same lines
as the LDA, including the role of the Labour Court. (Civil servants in
local and regional governments fall within the scope of the LDA since
1956.)

The composition of the Labour Court

Originally having five members the Labour Court since 1927 is

composed of seven members, all appointed by the Cabinet-in-Council and
serving for three years at a time. The president, who is the only judge
in a full time position at the Court, and one of the neutral members must
have all the qualifications prescribed for a Supreme Court of Justice.
In practice, however, since 1945 both neutral members alongside the
president have been appointed from among persons meeting those
requirements and being Supreme Court or Court of Appeal judges. Four lay
judges are appointed from among persons nominated by the major
organisations of workers and employers; any employers' association with
at least 100 members and 10,000 employees, and any trade union with at
least 10,000 members, may each nominate two members with substitutes.
Ever since 1915 the permanent lay judges have been appointed upon
nomination by the largest central organisations, LO and NAF; some
substitute members are appointed from among nominees of other
organisations. No judge may be an official or member of the board of any
workers' or employers' organisation.

Each case is heard by the full Court and decided by majority vote of
the seven sitting judges. As a matter of fact, in the post-war period
the great majority of decisions have been unanimous. At times, there is
a 4-3 split, but votes of 5-2, with either the employer- of
worker-nominated judges dissenting, are rare. If a case before the Court
concerns an organisation whose nominee(s) have only been appointed as
substitute judges, the substitute shall act in lieu of the lay judge for
whom he is a substitute in the case concerned.

Structure and system

As indicated above, the Labour Court is organised as a one-division

court. And being a special court, it has a unique position in the
Norwegian juridical and court system. The decisions of the Labour Court
are final; they are not subject to appeal to any higher court, with the
mere exception of forum disputes. A decision of the Labour Court to
dismiss a case on grounds that it does not fall under the jurisdiction of
the Court may be appealed to the Supreme Court which can decide on the
forum question, but not on the substantial questions of the case in lieu
of the Labour Court. Likewise, a decision of the Labour Court may be
subject to an appeal for annulment to the Supreme Court on grounds that
the case falls outside the scope of jurisdiction of the Labour Court.

The labour court system consists also of local labour courts (however
not under the PSLDA). The Local Labour Court is the ordinary County
Court (one judge) acting in a special capacity and with two lay judges,
one worker and one employer. The local labour courts have jurisdiction
in disputes concerning collective agreements of a local or regional
 - 46 -

character only. And in point of fact, with the highly centralised

collective agreements system in Norway, very few cases are brought before
the local labour courts, at the average less than one per year for the
country as a whole. Decisions of the local labour courts are subject to
appeal to the Labour Court, the average number of such appeal cases is
less than one per two years.

Jurisdiction and procedure

The jurisdiction of the Labour Court is confined to disputes

regarding collective agreements and industrial action. Accordingly, the
Court handles cases concerning the validity and interpretation of
collective agreements, questions of breach of collective agreements and
of the peace obligation, and claims for damages resulting from such
breaches. At the outset the Labour Court has jurisdiction only in cases
where claims are based on a collective agreement. The Court can take
statutory provisions under consideration in so far as they have a bearing
on the question of the validity or interpretation of the agreement and on
the question of breach of the peace obligation, the latter particularly
includes the greater number of LDA and PSLDA provisions on mediation.
But the Court does not have jurisdiction where claims are based on
statutory provisions as such. Furthermore, the Court does not have
jurisdiction in individual disputes, with two exceptions. Individual
workers and employers are liable in damages for breach of collective
agreement or the peace obligation, and claims for indemnification in such
cases lie within the jurisdictional domain of the Labour Court. In
addition, in cases concerning collective agreements, the Court may give
judgement on claims based on individual contracts of employment, provided
that such claims have been included in the suit and that the decision as
regards them directly follows from the decision concerning the collective
agreement, with no further questions on evidence or legal problems being
necessary to resolve in order to dispose of the individual claims.

In disputes before the Labour Court organisations may only act as

plaintiff and defendant, and in case more than one organisation are party
to the collective agreement, normally only the superior ones.
Furthermore, a case will normally not be admitted by the Court unless the
dispute has been subject to negotiation between the parties. When a
complaint is filed with the Court, the president sends a copy of the
complaint to the defendant and the case is prepared for hearing through
further exchange of trial documents between the parties, administered by
the Court's president, who thereafter sets a time and place for the
hearing. The Court can subpoena any necessary witnesses or documents,
and the hearings of the Court are as a rule public. Hearings are
conducted in comparative informality, and questioning is freely done by
all judges. The Labour Court is seated in Oslo, and as a rule hearings
are conducted there. But at times, hearings are held at "the scene of
action", particularly in cases concerning unlawful indsutrial action
where the Court's presence on the spot may be useful in different
respects.
 - 47 -

Particular problems

The jurisdictional rules may give rise to some uncertainty and forum
disputes, particularly as regards individual claims based on collective
agreements. In practice, however, this does not represent a problem of
any mentionable size.

On the other hand, topical interest has in later years been given to
some problems arising from the procedural rules, in particular as regards
suits for indemnification. The full procedural rights of individual
parties, and not only the organisations involved, has in some instances
led to suits being dropped because the carrying through of the suit would
inflict a full stoppage of work while the proceedings in court take
place. The rights of individuals in this respect also give rise to some
more technical problems of procedural nature.
 - 48 -

THE LABOUR COURT SYSTEM IN SPAIN

by Rafael MARTINEZ EMPERADOR

Member of the General Council of the Judiciary of Spain, Madrid

Jurisdictional unity and jurisdictional orders

The principle of jurisdictional unity is the basis of the

organisation and operation of the courts (article 117.5 of the Spanish
Constitution of 1978).

Jurisdictional unity not only precludes the existence of special

jurisdictions but requires that the exercise of jurisdictional power,
both in passing judgement and having judgements executed, lies
exclusively within the competence of the courts and tribunals of the
judiciary.

However, jurisdictional unity does not imply the existence of a

single jurisdictional order or of uniform tribunals. On the contrary, it
permits and even counsels the existence of separate jurisdictional orders
and specialised jurisdictional bodies, each with its own sphere of
competence.

There are four jurisdictional orders in Spain: civil jurisdiction,

criminal jurisdiction, jurisdiction for suits under administrative law
and labour jurisdiction. This explanatory note refers to the labour
jurisdictional order.

Composition of the jurisdictional bodies

The bodies composing each of the jurisdictional orders are served by

judges and magistrates of the judiciary who are independent, irremovable,
liable and subject only to the rule of law. The judges and magistrates
are members of a preofession to which they accede by passing a number of
selective and objective tests. Citizens may participate in the
administration of justice through the establishment of the jury, provided
for under the Constitution solely for those criminal actions as may be
determined by law.

The judges of the labour jurisdictional order are therefore

professional judges. Under the terms of the Constitution there is no
provision in labour law cases for a jury or for joint representation of
workers and employers.
 - 49 -

Labour cases and the social jurisdictional order

The labour courts are the sole judicial authorities competent to

hear disputes coming within their purview in the social branch of law. A
decision handed down by a labour court may be reversed only by an
extraordinary appeal to the Supreme Court on a point of law or by
petition to a higher court, as the case may be. Labour cases are
governed by the principles of cross-examination, submission of evidence
by the parties concerned, simplified legal structure, expediting of court
action by the Crown, personal appearance of the parties, joinder of suits
and simplified procedure; proceedings are summary and free of charge.

The Labour Court is the competent authority to hear disputes in the

social branch of law. It is composed of a single person, the labour
judge, who exercises jurisdictional power assisted by a labour court
secretary who possesses legal authority to attest documents and is
directly responsible for administering the rest of the staff of each
court, consisting of such officers, assistants and judicial agents as
befit the obligations incumbent upon it.

The territorial competence of a labour court is the province, in the

capital city of which it is located. There are, however, a number of
labour courts whose territorial jurisdiction is a subdivision of a
province, as in Asturias (which has courts in Gijon and Mieres as well as
in Oviedo) , Pontevedra (which has courts in Vigo as well as in the
capital) and Cadiz (which has a court in Jerez). There are also labour
courts in Ceuta and Melilla.

When the workload so requires there may be several labour courts,

each of which is given a corresponding number and whose territorial
jurisdiction is identical. In such cases a senior labour judge is
designated and a board of judges appointed whose functions are purely
administrative. As indicated above the decisions handed down by the
labour courts, as the sole competent judicial authority, may be reversed
only by an extraordinary petition to a higher court or by appeal to the
Supreme Court on a point of law, as the case may be.

The body responsible for hearing petitions is the Central Labour

Court, whose jurisdiction is national and which is located in the capital
of the Spanish State. It is a collegiate body comprising five chambers,
the first of which hears all petitions that are not specifically assigned
to the other courts, the second petitions with respect to dismissals, the
third and fourth petitions with respect to social security and the fifth
petitions with respect to collective disputes.

The Supreme Court with jurisdiction throughout Spain is the highest

jurisdictional body for all orders, except in matters relating to
constitutional guarantees. Chamber No. VI, known as the Social Division,
hears appeals on points of law relating to labour and social security
matters.
 - 50 -

Competence

The jurisdictional bodies of the social order are the sole

authorities competent to pass judgement and have judgement executed in
respect of disputes that arise in the social branch of law.

Their competence is determined by the matter in dispute and

comprises:

(a) individual disputes between employers and workers arising out of a

contract of employment;

(b) collective labour disputes of a juridical nature;

(c) verification of the legality of collective agreements;

(d) law suits with respect to social security;

(e) all other disputes in which jurisdiction is expressly assigned to

them by law;

(f) claims arising out of a failure to observe the statutory and other
provisions enacted in the social field which particularly affect the
plaintiff and are not subject to any other special procedure.

The objective and functional sphere of competence of the labour

courts derives from the fact indicated above that they are the sole
competent judicial authorities.

Appeals against decisions handed down at this single level of

jurisdiction by labour courts in respect of claims for over 200,000
pesetas may be challenged by petition to a higher court or by appeal to
the Supreme Court on a point of law.

The functional competence of the Central Labour Court relates to

petitions against decisions not appealable on a point of law in respect
of claims where the amount in dispute is over 200,000 pesetas and not
more than 1 million pesetas. A petition may also be lodged with the
Central Labour Court, even though the amount in dispute is not over
200,000 pesetas, when the point at issue affects all or a large number of
workers or beneficiaries, depending on whether it concerns wage claims or
social security benefits respectively. Finally, a petition may be lodged
against decisions handed down by labour courts in respect of collective
disputes or the verification of the legality of collective agreements.

The functional competence of the Social Division (Chamber No. VI) of

the Supreme Court relates to appeals on a point of law against decisions
handed down by labour courts, irrespective of the point at issue, in
respect of claims for amounts exceeding 1 million pesetas. An appeal may
also be lodged with the Supreme Court:

(a) against decisions handed down by labour courts in respect of claims

based on total disability and major disability and on temporary
 - 51 -

incapacity for work based on such disability, provided the amount of

the claim is in excess of 500,000 pesetas;

(b) against decisions handed down by the labour courts in respect of the
dismissal of members of works committees or staff delegates.

The Social Division of the Supreme Court, meeting in plenary

session, also hears appeals "in the interest of the law", whose effects
are strictly jurisdictional and therefore do not modify in any way the
specific juridical situation created by the decision handed down by the
Central Labour Court against which the appeal is lodged.

Other matters

At the time of drafting this note an Organic Law respecting the

Judicial Power has been prepared in draft form by the Ministry of Justice
which, if adopted, will modify important aspects of the current social
jurisdictional order.

Finally, it should be noted that the system of labour courts in

Spain is currently suffering considerably from an exceptional increase in
the number of cases brought before them, which has not been met by a
corresponding increase in the number of jurisdictional bodies. The fact
that the number of cases brought before the labour courts rose from
16,722 in 1940 to 126,088 in 1970 and 317,202 in 1983, whereas there are
only 150 labour courts in Spain to deal with this enormous workload, is
sufficiently eloquent to render any further comment superfluous.
 - 52 -

THE COURT PROCEDURE IN LABOUR DISPUTES IN SWEDEN

by Ake Bouvin
Former President, Labour Court, Stockholm

Introduction

The Labour Court is the central court in Sweden for the judgement of
labour disputes. It started its activities in 1929 with the main
function of taking up and deciding cases concerning the interpretation
and application of collective agreements. Initially all cases went
immediately to the Labour Court. By degrees the direct access to the
Court has been limited, and certain labour disputes can now be subject to
a decision by lower public courts (assize court - tingsra'tt) in the first
instance with the right of appeal to the Labour Court. The decision of
the Labour Court is final and is not subject to appeal.

Court procedures in labour disputes were laid down in the Act on

Litigation in Labour Disputes (LRA) , which came into effect on 1 July
1974 and which replaced the 1928 Labour Court Act. To the extent that
LRA does not provide for judicial proceedings in labour disputes the
appropriate paragraphs of the code of procedure for discretionary civil
actions applies. The code of procedure regulates the judicial processes
in the public courts.

The authority of the courts

The Labour Court is the court of first and last instance in disputes
over collective agreements or other labour disputes referred to in the
Act on Co-Determination at Work (MBL), which came into force on 1 January
1977, provided that the action is brought by an employer organisation or
trade union or by an employer who has himself signed a collective
agreement. The Court also has the authority, as first and final
instance, and on the same conditions, to decide other labour disputes,
when there is a collective agreement between the labour market
organisations or when individual employees who are affected by the
dispute are employed on work which is covered by a collective agreement
which is binding upon the employer. The situation arising when a
collective agreement is temporarily inapplicable - for example, after
termination in connection with a new round of wage negotiations - in no
way restricts the above-mentioned authority of the Labour Court.

In broad terms, the above description of the authority of the Labour

Court means in practice that the Court is the first and last instance in
the following main groups of cases: disputes over collective agreements,
 - 53 -

other labour disputes referred to in the Co-Determination Law - such as

disputes over the right of association, the right to negotiate, the right
to receive information, illegal industrial action or lock-outs - and
labour disputes in cases where a collective agreement is normally
applicable, for example, disputes over the position of a trade union
representative, employment security and vacations, providing in all cases
that the action is brought to court by the employers' association or a
trade union.

Other labour disputes are decided by the assize courts in the first
instance, and can then be appealed up to the Labour Court. In this group
of disputes are all labour disputes concerning unorganised labour or
organised workers whose trade union is not willing to bring or pursue an
action on their behalf.

According to special provisions in the Litigation Act disputes which

have been treated according to the law can be referred for decision by an
arbitration board. The Labour Court or the assize courts are thus not
authorised to decide labour disputes which have been referred to such
arbitration in accordance with an agreement between the industrial
relations organisations. Exceptions to this rule are cases which relate
to the termination of a collective agreement on the grounds of gross
breach of agreement, and cases relating to certain infringements of the
right of association.

Composition of the Labour Court

The Labour Court is composed of three chairmen, three deputy

chairmen, and sixteen other members. The chairmen and deputy chairmen
should have a legal training and experience as judges, while three of the
other members should have specific knowledge of conditions on the Swedish
labour market. The persons appointed to the "professional" positions
should be selected from among individuals who cannot be regarded as
representing the interest of employers or employees. Of the remaining
thirteen members, the laymen on the panel of judges, four are appointed
on the recommendation of the Swedish Employers' Confederation (SAF), four
nominated by the Swedish Local Authorities' Association, one by the
County Councils' Association, one as a representative of the State as an
employer, four upon the nomination of the Trade Unions' Central
organisation (LO) and two nominated by the central organisation of
Salaried Staffs' Associations. Each member, other than the three
chairmen, has three substitutes, who are appointed on an identical basis,
except that two of the substitutes for the member nominated by the
Salaried Staffs Associations' central organisation (TCO) are nominated by
the Professional Employees Associations' central organisation (SACO/SR).

The Labour Court is normally competent to function with a chairman

and a maximum of six and minimum of four members. For deciding
straightforward cases the Court is competent with a chairman and two
other members. For trial proceedings in the Labour Court there are
normally seven judges, i.e. the chairman, the deputy chairman, one more
magistrate, two employer representatives and two worker representatives.
 - 54 -

As regards the lay members the Labour Court is constituted

differently for different cases. In cases of general importance for
conditions on the labour market there is one representative from the SAF
and one lay member representing the public-sector employers, while on the
worker side there is one representative of LO and one of TCO (general
composition). In cases which are of significance only for specific
negotiating areas the lay members come from the fields most immediately
affected by the dispute (special composition). In straightforward cases,
which can be decided by three members, there is one lay representative
from the employers' side and one representing the workers.

The Labour Court is not divided into permanent sections, but works
instead through three groups of members, which, within the rules of
competence, change composition after a certain period of time. As is the
case with the Supreme Court in Sweden, the Labour Court can meet in
plenary sitting, if during the discussions prior to making a decision the
prevailing opinion is at variance with previously accepted basic legal
principles or interpretation of the law.

The rules laid down in the code of procedure concerning

disqualification apply to the members of the Labour Court. These are
applied, in the case of lay members so that the member in question may
not sit in court to decide a case in which a union or association to
which he belongs is party to the court proceedings. If a member is
disqualified in this way the substitutes sits in his place.

The Labour Court is, through the system of lay members, closely
linked with the trade unions and the employers' associations, and thus
obtains the necessary specialist knowledge about the specific problems of
the labour market. Similarly, the representatives of the industrial
relations parties have, as a result of sitting and making decisions in
the Labour Court, become closely acquainted with the procedure for the
administration of justice in the courts.

Basic principles of procedure during actions

in the Labour Court as court of first instance

The Labour Court has authority throughout the country and is in the
overwhelming majority of cases both first and last instance. This
situation, taken together with the composition of the membership of the
Labour Court, gives the Court its specific character. If the Court is to
function as sole instance in its area of competence it is essential to
limit the flow of cases reaching it. Primarily this has been achieved in
connection with the limitation of direct access to the Labour Court by
removing certain types of labour disputes to the Assize Court as court of
first instance, as mentioned above. A special limitation clause is also
included in the Litigation Act, under which an action may not, in
general, be brought in the Labour Court as court of first instance before
negotiations, which can be demanded under the terms of the
Co-determination Law or under the terms of a collective agreement, have
taken place to resolve the disputed issue. Hearing in the Labour Court
without prior negotiations is permissible only for certain types of
actions - for example, cases concerning illegal industrial action or
lock-outs - or when there is some obstacle preventing negotiations which
 - 55 -

is not the responsibility of the plaintiff. This limitation clause is of

considerable practical significance. Collective agreements, almost
without exception, incorporate or refer to rules for negotiating
procedures, and the vast majority of disputed matters are resolved at the
negotiating table. The majority of actions about collective agreements
relate to matters of principle or are important issues in some other
respect.

In this connection it should be mentioned that the Labour Court can,

without making a judicial examination, instruct the parties to the
dispute, by referring to more general pronouncements, to attempt to
resolve the action they have brought by means of negotiations, with the
right tor either party to return with a further action in the event they
are not able to negotiate an agreement.

On the other hand, actions seeking declaratory judgements by the

Labour Court can be brought to a greater extent than is the case in the
public courts. This is because the judgements of the Labour Court in
general are of importance as precedents. Under the terms of the
Litigation Act actions which do not include the claim that the opposing
party should be obliged to act or cease to act in some way are disallowed
i£ it is not of considerable importance for the plaintiff or for the
individual on whose behalf an organisation is bringing the action that a
declaratory judgement is given. The Labour Court has stated that a
declaratory judgement is regarded as of importance for either party when
there is reason to suppose that the allowance of the claim will either
directly affect the opponent in the legal proceedings in relation to the
party or will also be directly decisive during a future substantive
action.

A distinguishing feature of actions in the Labour Court is the

dominating position of the industrial relations organisations. In
disputes about a collective agreement an organisation can bring and
pursue an action for an individual who is or has been a member of the
organisation. In other labour disputes an employers' association or a
trade union can bring and pursue an action in the Labour Court on behalf
of a member of the organisation. If an organisation prefers not to
represent its member in a court: action the member is, as was mentioned
above, obliged to bring an action on his own behalf in an assize court.
If a plaintiff wishes to bring an action in the Labour Court against a
member or former members of an organisation the organisation itself must
also be proceeded against. The organisation can then defend the action
on behalf of the member, if he chooses not to do this himself. If there
is reason to suppose that a collective agreement which has been signed by
parties other than those involved in the action is of importance for the
trial of the action the organisations which have reached the collective
agreement shall be given opportunity to state their point of view in the
act ion.

Procedures of the Labour Court as court of first instance

When the Labour Court is sitting as a court of first instance its

procedure is the same, with certain deviations, as applies to trials in
assize courts. An action is brought by a written application for a
 - 56 -

summon. The Court issues a summon which is served upon the

[Link], the pre-trial hearings take place. in contrast to what
is stipulated in the code of procedure the Labour Court can decide in the
light of circumstances whether the pre-trial hearings are to be oral or
in writing. Usually both written and oral hearings occur. As a rule at
least two written documents are exchanged - the application for a writ
and the defendant's reply to the charge - after whith there will be a
meeting, sometimes several meetings, to oral hearings. The same
principle applies to the Labour Court as to the public lower courts in
discretionary civil actions, namely, that during the hearings the court
seeks to bring the two sides to a settlement if such is appropriate.
After the pre-trial hearings are concluded the court hearings commence.
If, once the court hearings have commenced, they are postponed, the
Labour Court can continue with them even though a longer period of time
has passed than is allowed in the procedural code.

The Labour Court can dismiss or write off a case, hand down a
judgement by default, i.e. a decision resulting from the absence of one
party, and a judgement of a claim which lias been admitted or conceded and
ratify a out-of-court settlement, without holding hearings. In other
situations the Court can, at the request of either party, and under
certain precisely stipulated conditions, bring the case to a conclusion
without holding court hearings.

Procedures of the Labour Court as appellate court

An appeal against the judgement or decision of an assize court can

be made to the Labour Court by lodging a notice of appeal in accordance
with the provisions of the procedural code. The procedure is essentially
the same as is applied by the public court of appeal in discretionary
civil actions. Cases which are appealed can be decided without court
hearings, if oral arguments are not being presented or if there is no
special reason for acting otherwise. Certain other cases are decided
without exception without holding court hearings.

General points on the procedures of the Labour Court

The record of the court proceedings does not need to include a

signed statement on oath or statements of evidence by witnesses or
experts, as the Labour Court is the court of final instance. Such
statements are normally tape-recorded and kept for a certain period of
time after the judgement has been handed down. The decision is based not
only on what was brought out in the court hearings but also on what the
relevant documents say concerning the disputed issue. In contrast to
what the procedural code lays down for public courts, the decision does
not need to be announced within two weeks of the conclusion of the court
hearings or the end of the trial, but should be announced as soon as
possible. During the court proceedings the time and method of announcing
the decision should be announced.
 - 57 -

LABOUR COURTS IN SWITZERLAND

by Alexandre BERENSTEIN
Former Judge of the Swiss Federal Court,
Chairman of the Federal Office for Conciliation in Labour Disputes

Introduction

The Swiss Confederation is a federal State made up of 26 federate

States - cantons or semi-cantons - which for the sake of simplicity will
all be referred to as cantons.

Civil law is uniform over the whole territory of the Confederation.

In particular, labour contracts and collective agreements are governed by
the Code of Contracts of 1911, as revised in 1971. Nevertheless, under
Section 64 of the Federal Constitution, the organisation, the procedure
and the administration of justice come under cantonal legislation. It is
for this reason that jurisdictions in the matter of labour disputes - and
indeed in other matters - are extremely varied. Half the cantons, or 13
out of 26, have labour courts, whereas in the others only the ordinary
civil courts are competent to settle disputes arising between employers
and workers. The Federal Court, the supreme court of justice, has no
special division for deciding labour disputes.

Reasons for the establishment of labour courts

The reasons that have been advanced, particularly when the first
conciliation courts were set up (in Geneva in 1882), are the following:

workers wish to be judged in labour disputes by persons who are

nearer to them than professional judges, by their peers, before whom
they can express themselves more freely and who understand their
problems better;
they must have their wages to live, and they expect to obtain
justice more rapidly, bypassing the lawyers, and to take advantage
of the free nature of this type of procedure;
- men of their own trade are better fitted than professional judges to
appreciate the quality of work and to follow the customs of the
occupation, and in this way it becomes unnecessary to call in
experts. (It may be mentioned, however, that the last argument has
today lost its value.)
 - 58 -

Composition

In most of the cantons with labour courts, these are presided over
by a lawyer, generally a professional judge, assisted by representatives
of the employers and of the workers, these lay assessors being elected by
the people or by the cantonal parliament, often on the proposal of the
occupational organisations. In Geneva, there is no legally qualified
judge in the Court of Conciliation of first instance, which consists
uniquely of employers' and workers' representatives, elected by the
employers and workers of each occupational, within 12 occupational
groups. The Conciliation Court of Appeal, which exists only in this
canton, is presided over by a judge of the Court of Justice (the appeals
court), assisted by two judges who are employers and two judges who are
workers from the occupational group concerned. A joint court pronounces
on disputes of competence and lis alibi pendens between conciliation
courts and civil courts.

It should be added that in certain cantons with labour courts these

exist only in some of the urban communes and that it is the civil courts
that decide disputes of this kind in the other communes. This is found
in Berne, Vaud and Zurich.

Competence

In most of the cantons with labour courts these courts deal only
with disputes whose value does not exceed a certain amount, which varies
from 3,000 to 10,000 francs. Sometimes, moreover, the president of the
court or a justice of the peace pronounces alone on disputes of little
importance (up to 100 francs in Obwald, up to 200 francs in Saint-Gall).
In two cantons (Geneva and Zurich), the labour courts deal with labour
disputes whatever the value at issue; in Zurich, however, when the value
exceeds 5,000 francs the parties may bring their dispute before the
ordinary courts. In Aargau only disputes concerning an industrial
undertaking or home work are judged by the labour court irrespective of
the value at issue; in other disputes the Labour Court is competent only
up to a value of 5,000 francs.

Appeals

In most of the cantons either the labour court pronounces as the

sole judicial authority of the canton or an appeal may be made to the
ordinary courts. In Geneva the appeal to the Conciliation Court of
Appeal mentioned above is possible as soon as the value at issue exceeds
1,000 francs. Any judgement handed down by a cantonal court as the final
judicial authority of the canton may be referred to the Federal Court by
means of an application for revision (provided that the value at issue
reaches 8,000 francs or is undetermined) or, where appropriate, by means
of an application under public law, for infringement of constitutional
rights, or an application for annulment (whatever the value at issue).
Lastly, if the parties so agree, they can lay the matter direct before
the Federal Court without passing through a cantonal court, provided that
the value at issue is at least 20,000 francs.
 - 59 -

Procedures

Although procedure is in principle governed by cantonal law, federal

law imposes on the cantons the obligation to observe certain rules of
procedure in disputes arising out of a labour contract where the value at
issue does not exceed 5,000 francs (Section 343 of the Code of
Contracts). In these disputes:

the procedure must be simple and rapid;

the judge determines the facts in full independence and assesses the
evidence at his own discretion;

the parties are not as a rule liable for any lawyers' fees or court
costs.

Furthermore, whereas the presence of counsel is often excluded in

disputes where the value at issue is small, the Federal Court has ruled
that in disputes where the value at issue is important, which are often
highly complicated, the right of the parties to be assisted by counsel
must be preserved, at any rate during one of the decisive stages of the
procedure.

Other questions

The labour courts decide above all disputes between employers and
workers that arise out of a contract of employment. Their competence is
sometimes extended to other disputes: in Geneva, for example, to disputes
between employers or workers and the equalisation funds responsible for
applying the provisions of collective agreements. Generally speaking,
disputes between occupational organisations do not come within the
competence of the labour courts: they come within that of the ordinary
courts, but in fact are often settled by the occupational courts set up
by collective agreements or by the conciliation and arbitration offices
established by the cantons and the Confederation, whose competition is
close to that of the labour courts. Sometimes the competence of the
labour courts does not extend to all individual labour disputes: in the
Canton of Basle Town it does not extend to disputes in which domestic
employees are concerned.
 - 60 -

INDUSTRIAL TRIBUNALS IN THE UNITED KINGDOM

by Lord McDONALD
Employment Appeal Tribunal, Edinburgh

The term "labour court" is not one which is used in the United
Kingdom. What we have is a system or network of tribunals, known as
industrial tribunals, which deal with a variety of employment and
associated matters.

The first industrial tribunals were established in 1964. They had a

very limited jurisdiction to deal with appeals against assessments to
levy which had been made under the then Industrial Training Act, 1964.
They consisted of a legally qualified chairman and two lay members, one
from each side of industry. They wer all engaged part time and did not
have to meet very often. Any party who was dissatisfied with the
decision of a tribunal on a point of law might appeal to the Court of
Appeal in England or the Court of Session in Scotland.

In 1965 the Redundancy Payments Act was introduced. This made it

obligatory for an employer who dismissed an employee on the ground of
redundancy to pay to him a lump sum, known as a "redundancy payment",
provided he fulfilled certain conditions as to length of service and
other matters. The jurisdiction of existing industrial tribunals was
extended to deal with applications for such redundancy payments. This
greatly extended the work of the tribunals, and in England and Wales some
chairmen were engaged full time. Appeal on questions of law continued to
be competent to the Court of Appeal or the Court of Session.

The real impetus for the establishment of a separate judiciary to

deal with industrial matters came with the passing in 1971 of the
Industrial Relations Act. The intention of this Act was to control and
restrict certain forms of industrial action, on the one hand, and to
introduce the conception of unfair dismissal, on the other. No employee
who had the necessary length of service and who fulfilled certain other
conditions could be dismissed unless his employer could show a valid
reason for it such as the conduct of the employee, his competence for his
job, or that he had genuinely become redundant. Even if an employer
could establish such a reason, the dismissal was still unfair unless the
employer could go further and establish that he had acted reasonably
overall, having regard to equity and the whole circumstances of the
case. If the employer failed to prove these matters the dismissal was
unfair and he had to pay compensation to his dismissed employee.
 - 61 -

It became the task of the industrial tribunals to decide whether a

dismissal was unfair and, if so, what amount of compensation was
appropriate. This greatly increased their work. Full-time presidents
were appointed for England and Scotland and a number of tribunal chairmen
were made full time. At the same time a new appeal court was constituted
with exclusive jurisdiction to hear appeals from industrial tribunals.
It was called the National Industrial Relations Court. It consisted of
High Court judges and lay members with special knowledge or experience of
industrial relations.

The Industrial Relations Act, 1971, did not have a long existence.
Following upon a change of government it was repealed by the Trade Union
and Labour Relations Act, 1974. The industrial tribunals were preserved,
mainly in respect of their jurisdiction regarding claims for redundancy
payments and for unfair dismissal. The National Industrial Relations
Court was abolished and the former system of appeal from industrial
tribunals on questions of law direct to the Court of Appeal or to the
Court of Session was restored.

In 1976 the Employment Appeal Tribunal was established with

exclusive jurisdiction to hear appeals from industrial tribunals on
questions of law. This Appeal Tribunal is similar in constitution to the
former National Industrial Relations Court. It has a full-time
president, who is an English High Court judge. Other High Court judges
sit part time as does the Scottish judge who is a Senator of the College
of Justice. That is the expression used in Scotland to describe a judge
of the High Court. The lay members are persons with special knowledge or
experience of industrial relations. The detailed legislative provisions
regarding the Employment Appeal Tribunal are now contained in the
Employment Protection (Consolidation) Act, 1978.

The Central office of the Appeal Tribunal is in London. There is an

office in Edinburgh where Scottish appeals are heard. The Appeal
Tribunal, however, may sit anywhere in the United Kingdom and
occasionally does sit elsewhere than in London or Edinburgh if this is
more convenient to all concerned. The tribunal does not normally hear
evidence although it has power to do so. Its proceedings usually take
the form of legal argument. Hearings take place in public unless, for
special reasons, it is considered to be desirable that they should be
held in private. An appeal lies to the Court of Appeal or the Court of
Session from any decision of the Employment Appeal Tribunal on any
question of law. A party who wishes so to appeal must obtain leave,
either from the Employment Appeal Tribunal or from the appellate Court.

The jurisdiction of industrial tribunals has been very greatly

enlarged since they were first established in 1964. In addition to
questions of redundancy and unfair dismissal, it extends to a wide
variety of matters affecting the relationship between employer and
employee. These include an employee's right to a written statement
containing particulars of his employment; conditions regarding trade
union membership and activities; the right to time off work for certain
purposes; and the right of an employee who has been dismissed to be given
reasons in writing for his dismissal. These grounds of jurisdiction are
all contained in the Employment Protection (Consolidation) Act, 1978.
 - 62 -

Other grounds of jurisdiction are to be found in the Equal Pay Act,

1970, and the Sex Discrimination Act, 1975. The object of these statutes
is to make it unlawful for an employer without good reason to
discriminate between men and women on grounds of sex on all matters
affecting pay, conditions of employment, selection of potential
employees, opportunities for promotion and other respects. An aggrieved
person may complain to an industrial tribunal that any of these
provisions have been breached and seek a remedy. Industrial tribunals
may also entertain complaints under the Race Relations Act, 1976, that an
employer or a potential employer has discriminated against a person on
racial grounds.

On all the foregoing matters an appeal lies from any decision of an

industrial tribunal to the Employment Appeal Tribunal on a question of
law only. It is not always easy to determine what is meant by a question
of law. All matters relating to the credibility of witnesses, the weight
to be attached to any particular item of evidence, and what is recognised
industrial practice in any given respect tend to be regarded as questions
of fact to be decided by the industrial tribunal and therefore
unappealable. It is only in the rare case where the Appeal Tribunal is
able to say that the decision of an industrial tribunal on fact is one
which no reasonable tribunal properly directed on the law could reach
that the Appeal Tribunal will be able to interfere with the original
decision.
 - 63 -

ANNEX I

List of participants

Belgium
Mr. J. RenS RAUWS, Judge, Social Division of the Cassation Court,
Brussels. '•

Finland
Mr. Kari-Pekka T11T1NEN, Judge, Labour Court, Helsinki.

France
Mr. P. VE1LL1EUX, President, Social Chamber of the Cassation Court, Paris.

Federal Republic of Germany

Mr. Otto KISSEL, President, Federal Labour Court, Kassel.2
Mr. Friedrich AUFFARTH, Vice-President, Federal Labour Court, Kassel.
Mr. Friedhelm JOBS, Judge, Federal Labour Court, Kassel.
Mr. Dirk NEUMANN, Presiding Judge, Federal Labour Court, Kassel.

Hungary
Mr. Zoltan NAGY, Vice-President, Supreme Court, Budapest.
Mr. Istvan KERTESZ, Deputy Chairman, College for Labour Cases, Budapest.

Iceland
Mr. Bjarni K. BJARNASON, President, National Labour Court, Reykjavik.

Ireland
Mr. Maurice P. COSGRAVE, Chairman, Labour Court, Dublin.1
Mr. John M. HORGAN, Deputy Chairman, Labour Court, Dublin.1

Israel
Mr. Zvi BAR-N1V, President, National Labour Court, Jerusalem.2
Mr. Menachem GOLDBERG, Vice-President, National Labour Court, Jerusalem.
Mr. Zeev NEGB1, Judge, National Labour Court, Jerusalem.

Norway
Mr. Stein EVJU, President, Labour Court, Oslo.
Mr. Finn M1DTSKAUG, Vice-President, Labour Court, Oslo.

Spain
Mr. Rafael MARTINEZ EMPERADOR, Member, General Council of the Judicial
Branch of Spain, Madrid.
Mr. Bartolomg R10S SALMERON, Judge, Labour Court, Murcia.
 - 64 -

Mr. Eustasio DE LA FUENTE GONZALEZ, Judge, Central Labour Tribunal,

Madrid.
Mr. Antonio RUIZ-FARABO BAQUERO, President, Central Labour Tribunal,
Madrid.
Mr. Bias OLIET GIL, Secretery General, General Council of the Judicial
Branch of Spain, Madrid.

Sweden
Mr. Ake B0UV1N, Member, Supreme Administration Court; former President,
Labour Court, Stockholm.2
Mr. Johan L1ND, President, Labour Court, Stockholm.

Switzerland
Mr. Alexandre BERENSTE1N, Former Judge, Federal Supreme Court.

United Kingdom
Hon. Lord McDONALD, Employment Appeal Tribunal, Edinburgh.1

International Labour Organisation

Mr. Alan GLADSTONE, Chief, Industrial Relations and Labour Administration
Department, Geneva.2

International Institute for Labour Studies

Mr. Bert ESSENBERG, Industrial Relations Sector, Geneva.

Invited but did not attend.

Member of the Initiating Committee.
 - 65 -

ANNEX 11

Suggested points for discussion

Session 1: A. Presentation of the various labour courts

B. Selected issues arising out of the presentation:

1. Background and reasons leading to the establish-
ment of separate labour courts.
2. Composition of the labour court: judges,
assessors, lay members, etc.
3. Jurisdiction and the competence of the labour
court.
4. Particular problems, if any, of labour courts
which are not treated below.

Session 11: The place and role of labour courts in the judiciary and
in the labour relations system:

A. Their place and role in the judiciary:

1. "Labour courts" as part of (a) a "unitary" or
"unified" judicial system with a special chamber
for labour matters; (b) as an identifiable part of
a "pluralist" system (e.g. commercial, criminal,
administrative courts as well as specialised
labour courts); (c) as part of a "unitary" or
"unified" judicial system with an identifiable
labour court as a special exception.
2. Relation of the labour court to other courts:
appeal, certiorari or other linkage to a court of
general jurisdiction.
3. Appeals: possibilities, frequency and results.
4. Effect of appeal to courts of general jurisdiction
on the development of a special jurisprudence by
the labour court in the field of labour law.
5. Relationship between labour court judges and
general court judges (permanent assignment to
labour courts or shifting assignments in various
courts); effect of temporary assignment from one
to another.

B. Their place and role in the labour relations system:

1. Attitude of the parties in the labour relations
system with regard to the labour court:
 - 66 -

(a) concerning the enforcement of individual

rights and legal disputes; (b) concerning
collective disputes.
2. Use made by the labour relations parties
(i.e. individual employer and employers
organisations, workers and trade unions) of the
services of the labour court; preponderance of
cases brought by one or other side.
3. Relationship between arbitration (in "legal"
disputes and in "economic" disputes) and the
labour court.
4. Extent of use by the labour court of conciliation
or mediation as an adjunct to adjudication.
5. Direct and indirect effects of the functioning of
the labour court on the industrial relations
climate: (a) in the negotiation phase; (b) during
conflicts.

Session 111: Case load of labour courts and possible solutions to case
load problems*

A. The case load:

1. Possibilities of reliable forecasting of the case
load on the basis of past experience;
possibilities in which labour courts themselves
can influence case load.
2. Possible indicators for and influences on case
load:
(a) Effect of new labour laws: increased number
of cases due to need for interpretation of
these laws.
(b) Economic influences:
(i) weaker economy and increases in
terminations of employment;
(ii) weaker economy leading employers to
reduce labour costs (i.e. reduction in
working time, reduction in wages and
social benefits, etc.): possible
influence on increase of individual
cases as well as collective disputes.
3. Industrial disputes as a cause of caseload
increase, e.g.:
(a) Provisional decisions to prohibit lock-outs
or to order certain rules for picketing;
disputes concerning the payment of wages
during lock-outs or work reductions resulting
from disputes; complaints concerning the
behaviour of the parties during the dispute.

The basic problem is one of delay in judgement owing to heavy case

loads and the consequent deleterious impact on the parties and on labour
relations.
 1

67 -

(b) Deterioration of the social climate, i.e. of

the relationships between the "social
partners" or between individual employers and
the employees.
4. Consciousness of the law as a factor in case load
increase: Subjective attitude regarding pursuit of
case to the highest possible instance or
willingness to compromise or to desist from
further action in an early stage.
5. Social policy, i.e. cases brought before the
labour court to achieve changes in the law or
reach social policy objectives through court
decisions, sometimes as a part of an overall
strategy.
6. Possible impact of a situation in which lawyers
(for reasons of personal income) depend on the
number of cases brought before the court.
7. Possible effect for case load of the existence of
individual or collective insurance covering legal
costs.
8. Impact of legal fees and related costs on case
load.

B. Particular measures to expedite procedures1

1. Number of judges: impact of reduced public budgets
on adjusting number of judges to case load; where
increases are impossible, possible solutions
through improvements in supporting services of the
courts to accelerate the proceedings.

It can be said that the case load is a "given" fact for labour
courts; it is also generally recognised that procedures should be dealt
with in a limited and "justifiable" period of time, particularly so for
labour law procedures which very often deal with employment relations and
consequently the livelihood of families or with labour peace in entire
undertakings.

Complaints about the slowness of courts are widespread and often

expressed in meetings of lawyers and judges, in parliamentary debates as
well as in professional journals.

Discussions about how cases facing the courts might be decided

within a reasonable period mainly concentrate on the following areas:
the number of judges;
the theoretical (should) and the reai (is) case load of judges;
recurrent education for judges;
technical support services for judges (typists, information
possibilities, library, etc.);
administrative support services (recording clerks, offices, etc.).
 - 68 -

Existing or new possiblities to settle certain

disputes before they reach the court; applicability of
experiences with conciliation boards for road
accidents, construction complaints, landlord and
tenant cases, etc.
Possibility of conciliation by the labour courts and
of reaching a settlement during the proceedings as a
positive impact on accelerating the case itself as
well as other cases.
Possibilities for potential plaintiffs of obtaining
sound and objective legal advice at little or no cost
and impact on restraining submission of hopeless cases.
Procedureal measures:
(a) Influence of the attitude and/or behaviour of the
parties and their lawyers (not always intentional)
on the length of the process and possible
reactions by the court to such behaviour.
(b) Number of instances or appeal possibilities;
restriction on the possibility of appeal in labour
matters to a few strictly defined grounds.
(c) Reduction of case load by the introduction of a
"standard" or "example" process for a number of
identical cases (e.g. dealing with one case in
depth with decision legally binding for other
cases).
(d) Possibility of dealing with a number of identical
cases, for instance after a labour conflict, at
the same time in one (mass) procedure.
(e) Use by judges of powers to limit the number of
cases, i.e. to declare suits non-receivable on
gorunds of judicial demarcation or on other gounds.
(f) The contribution of improved administrative and
technical support services to the acceleration of
proceedings.
(g) Self-restraint by judges, e.g. regarding the size
and length of decisions.