Art of Conciliation: A Win-Win Solution for Labour Conflicts

Introduction

Conciliation is a process of facilitating an amicable settlement between parties who are involved in a conflict or dispute. It is a voluntary and informal method of dispute resolution, where a neutral third party, called a conciliator, helps the parties to communicate, understand each other’s perspectives, and explore possible solutions.

Conciliation is an art, as it differs from arbitration or litigation, where an arbitrator or a judge imposes a binding decision on the parties. Conciliation is an art as it is also different from mediation, where the mediator does not suggest any solutions, but only assists the parties in reaching their agreement. Conciliation involves listening, understanding, empathizing, communicating, negotiating, and finding common ground. The art of conciliation is resolving conflicts and disputes peacefully and constructively.

In today’s era, conciliation is an important skill for resolving conflicts and disputes in various domains, such as business, trade, labour, family, community, and international relations. Conciliation can offer many benefits to the parties, such as saving time, money, and resources, preserving relationships, enhancing trust and cooperation, reducing stress and hostility, and promoting harmony and peace. Conciliation is one of the well-adopted alternative dispute resolution methods (ADR) that aims to avoid litigation and promote harmonious industrial relations.

Industrial disputes are conflicts between employers and employees, or between different groups of workers, over issues such as wages, working conditions, union recognition, or collective bargaining. Industrial disputes can have negative impacts on productivity, profitability, and social harmony. Therefore, finding effective ways to resolve them is crucial for both the parties involved and the society at large. One of the methods of resolving industrial disputes is conciliation; conciliation under labour laws of India is governed by various statutes, such as the Industrial Disputes Act, of 1947, the Trade Unions Act, of 1926, the Industrial Employment (Standing Orders) Act, of 1946, and the Payment of Wages Act, of 1936.

Historical Evolution of Conciliation in India

Conciliation in India has a long history that can be traced back to the colonial era when the British government introduced various legislations and institutions to regulate the labour market and prevent unrest. Britain in the late 19th century passed the Industrial Conciliation and Arbitration Act of 1896, this act, then established the first statutory framework for conciliation and arbitration and created the Board of Trade as the central authority for appointing conciliators and arbitrators. This act, also encouraged the formation of joint conciliation boards, composed of representatives of employers and workers, to deal with disputes at the industry or local level. Subsequently, the Industrial Conciliation and Arbitration Act of 1896 was followed by several other acts and amendments, such as the Trade Disputes Act of 1906, the Industrial Courts Act of 1919, the Trade Disputes and Trade Unions Act of 1927, and the Industrial Relations Act of 1971. The British trade union movement played a significant role in the development and promotion of conciliation as a method of resolving industrial disputes. In the early 20th century and particularly in the pre-independence era, The Indian Factory Act, of 1891 was introduced that regulated the working conditions, hours, health, and safety of factory workers in India. It also provided for the appointment of inspectors and certifying surgeons to enforce the provisions of the act. The act did not contain any specific provision for conciliation, but it empowered the inspectors to intervene and mediate in disputes between the employers and the workers, and to report the cases to the government.

The concept of conciliation has its roots in the ancient Indian tradition of panchayat, which was a system of village councils that resolved disputes among the villagers. The panchayat was based on the principles of mutual respect, cooperation, and compromise. The modern concept of conciliation was introduced in India by the Industrial Disputes Act, of 1947, which was enacted to prevent and settle industrial disputes and to promote industrial peace and harmony. The Act provides for the appointment of conciliation officers and boards of conciliation, who must investigate and mediate any industrial dispute referred to them by the government or the parties. The Act also lays down the procedure and rules for conciliation, such as the submission of reports, the extension of time, and the binding effect of the settlement. The Law Commission of India has also in several of its reports made recommendations for improving the effectiveness and efficiency of the conciliation process.

Importance of Conciliation

Conciliation stands on four pillars which over the period has made it the most viable method of dispute resolution.

First, Mutual Trust and Respect: Conciliation helps to preserve and improve the relationship between employers and employees, as it is based on mutual trust, respect, and understanding.

Second, Time and Cost Efficiency: Conciliation saves time, money, and resources, as it is faster, cheaper, and simpler than arbitration and adjudication.

Third, Consensual Arrangement: Conciliation enhances the satisfaction and compliance of the parties, as it is based on their own participation, consent, and agreement.

Fourth, Harmony and Peace: Conciliation contributes to the social and economic development of the country, as it reduces the incidence and intensity of industrial disputes, strikes, and lockouts, and promotes industrial peace and productivity.

Role and Functions of the Conciliator

In the King James Version of the Bible, the text reads: “Blessed are the peacemakers: for they shall be called the children of God.” The conciliator is a neutral third party who does not have the authority to impose a settlement, nor to give any legal advice or opinion. The conciliator's role and functions may vary depending on the nature and stage of the dispute, the preferences and expectations of the parties, and the conciliator's style and skills.

Common roles and functions of the conciliator are:

i. Establishing contact and rapport with the disputing parties and explaining the conciliation process and its rules.

ii.?Gathering information and clarifying the issues and interests of the parties and identifying the areas of agreement and disagreement.

iii.??Encouraging the parties to communicate directly and constructively, and to listen and understand each other's perspectives and needs.

iv.?Assisting the parties to generate and evaluate possible options and solutions, and to assess their feasibility and acceptability.

v.?Using various techniques, such as questioning, summarizing, reframing, reality testing, or caucusing, to overcome impasses and to move the parties towards a settlement.

vi.?Formalizing and recording the agreement and ensuring that the parties understand and commit to its terms and conditions.

vii.??Following up with the parties to monitor the implementation and compliance of the agreement, and to provide any further assistance or support if needed.

Advantages and Disadvantages of Conciliation

a)?????? While conciliation is voluntary and informal, which means that the parties have the freedom and flexibility to choose whether to participate, how to conduct the process, and what to agree upon, however, it is not completely impartial or independent, which means that the conciliator may have some bias or interest, or may be influenced or pressured by the parties or other factors, that could compromise the integrity or credibility of the process or the outcome.

?b)?????? While it is less costly and time-consuming than other methods, such as arbitration or litigation, which may involve lengthy and complex procedures, fees, and legal representation, however, it is not guaranteed or predictable, which means that the parties may not reach an agreement or may reach an agreement that is not satisfactory or fair.

?c)?????? While it is less adversarial and more cooperative, which means that the parties can maintain or improve their relationship, and avoid further escalation or hostility, however, it is not comprehensive or holistic, which means that the parties may not address the underlying causes or the broader implications of the dispute or may not consider the interests or views of other stakeholders or the public.

d)?????? While it is more confidential and private, which means that the parties can protect their reputation and interests, and avoid any public exposure or scrutiny, however, it is not transparent or accountable, which means that the parties may not follow any rules or standards, or may not disclose any information or evidence, that could affect the quality or legitimacy of the process or the outcome.

?e)?????? While it is more satisfying and empowering, which means that the parties can have more control and ownership over the process and the outcome, and feel more respected and valued, however, it is not binding or enforceable, which means that the parties may not comply with the agreement, or may change their minds or circumstances, and re-open the dispute.

New Wage Codes and Conciliation

The new wage codes, aim to simplify and consolidate the existing labour laws and regulations in India. The new wage codes cover four major aspects of labour relations: wages, social security, industrial relations, and occupational safety and health. One of the key features of the new wage codes is the introduction of two types of conciliation for resolving disputes between employers and employees: pre-litigation conciliation and post-litigation conciliation. Pre-litigation conciliation empowers the appropriate government to appoint conciliation officers to facilitate and promote the settlement of disputes relating to the payment of wages, bonuses, settlement of disputes relating to social security benefits, contributions, settlement of disputes relating to industrial relations, trade unions, strikes, lockouts, and the settlement of disputes relating to occupational safety, health, and working conditions. Post-litigation conciliation is a process of resolving disputes between employers and employees after they have initiated formal litigation.

Conclusion

Conciliation is an essential and dynamic component of the industrial relations system in India and has a long and rich history of adapting to the changing socio-economic and political contexts. Conciliation in India has achieved many successes and benefits, such as the prevention or resolution of numerous disputes, the maintenance of industrial peace and harmony, the enhancement of productivity and quality, and the protection of the rights and interests of the parties. Conciliation is not a matter of confrontation or coercion but of mutual respect and understanding. The workers have the right to defend their rights through peaceful and legitimate means, but they should also respect the interests and obligations of the employers. Employers have the responsibility to provide fair and decent working conditions, but they should also recognize the contributions and expectations of the workers. Conciliation in India has a bright future if it is supported by the legal and institutional framework, and by the best practices and standards. However, conciliation in India also faces many challenges and limitations, such as the lack of adequate resources and infrastructure, the delay and backlog of cases, the quality and credibility of the conciliators and the authorities, the compliance and enforcement of the settlements, and the changing nature and complexity of the disputes. Therefore, conciliation in India needs to be further improved and strengthened, by adopting best practices and standards, such as ensuring independence, improving the efficiency and effectiveness of the conciliation process, enhancing the participation and cooperation of the parties, and promoting the innovation and creativity of the conciliation process to find win-win solutions for an employer, an employee, and our Nation.