Abstract
There has been an increasing tendency to promote systems of extra-judicial intervention in resolving collective conflicts in Southern European countries. However, it seems that it has been difficult for these initiatives to displace traditional judicial avenues of settlement. We consider various efforts to promote extra-judicial settlement, and identify the greater success enjoyed by the Spanish system of settlement in providing an alternative to labour courts. Explanatory factors include its distinctive design features, social partner unity and deficiencies in the judicial system. Spanish experience suggests a need to reassess assumptions about the obstacles to extra-judicial collective conflict resolution in Southern Europe.
Introduction
Recent anglophone literature has shown little interest in the role of third-party intervention in collective conflicts, and comparisons of the institutional structuring of conflict resolution are unusual (Elvander, 2002). This lack of interest can be associated with a decline, from the 1990s onwards, in the number of days lost through strike action in most West European countries. However, in Southern Europe there has been an increased interest in promoting the resolution of collective conflicts by extra-judicial as against judicial means (Brown, 2004; Valdés Dal-Ré, 2003). This interest is the focus of this article of which the main contention is that analyses, largely pessimistic, of the possibility of promoting extra-judicial intervention in this region and associated models of the relationship between extra-judicial and judicial settlement routes need to be re-assessed.
We first review relevant literature on third-party intervention in collective conflicts in Western Europe. We then consider efforts in Southern Europe to move away from dependence on judicial mechanisms of conflict resolution, and seek to explain the success of the Spanish system in comparison with other countries. We conclude by arguing for the need to rework several assumptions about collective conflict resolution in Europe and by considering the likely impact of the current economic crisis on the Spanish system of collective conflict resolution.
For the purposes of this discussion, the designated Southern European countries are France, Greece, Italy, Portugal and Spain. The inclusion of France in this category warrants explanation: ‘France is torn between being the most advanced Southern European country or the least reasonable Northern country in Europe’ (understandfrance.org, 2012). Discussions of models of capitalism which posit a statist Mediterranean model locate France in this category (Esping Andersen, 1990; Schmidt, 2002). Discussions of regulatory regimes also locate France in the high regulation Southern European model (OECD, 2004) as do considerations of employment relations regimes (Ebbinghaus and Visser, 1999).
Third-party intervention in collective conflicts
Third-party intervention in collective conflicts has typically taken one of three forms: conciliation, mediation and arbitration. Conciliation, the most passive form, seeks to bring the parties to a dispute closer together without necessarily making concrete proposals. Mediation is more active, and may include the proposal of solutions to the conflict. In the third case, the arbitrator proposes a specific solution to the conflict, which – under some, but not all procedures – may be binding on the parties. In practice it is not always easy to distinguish between these different forms of intervention (Valdés Dal-Ré, 2003).
Recourse to third-party intervention may be voluntary or compulsory. Third-party intervention in Western Europe has usually been based on a voluntary approach, in contrast to Australia and the United States where there has been a stronger tradition of compulsory arbitration (Salamon, 2000). The type of conflict can influence the type of intervention. Conciliation and mediation tend to be used more in the case of conflicts of interest, involving differences with respect to the conclusion or revision of a collective agreement. Arbitration is more common in the case of disputes of rights arising over the interpretation of existing collective contracts and legal norms (Valdés Dal-Ré, 2003; Zack, 1997).
As well as the forms of intervention, the literature has addressed the characteristics of the agencies responsible for intervention. In practice, although there is a considerable variety in Western European systems, three types predominate: first, courts associated with the broader judicial system; second, administrative authorities responsible to labour ministries, such as labour inspectors; finally, autonomous mechanisms normally involving some degree of participation or management by the social partners. The relation between judicial and non-judicial systems has been grouped into two models by Valdés Dal-Ré (2003). In the first, the relationship is one of functional dependence, with the non-judicial mechanisms usually in a subordinate role, relieving some of the excess workload of the courts. In the second, the relationship between the two systems is one of functional autonomy with parties to a dispute able to choose either route.
In both liberal market economies such as the UK and the coordinated market economies of Northern Europe, the emphasis has been upon extra-judicial intervention with little dependence on judicial systems. Even in Germany where there is well defined provision for judicial intervention in collective conflict, the social partners prefer to resolve conflicts through voluntary mechanisms established in sectoral agreements. Thus relatively few conflicts reach the labour courts (Zachert, 2003). Extra-judicial intervention in these countries has tended to be available on a voluntary basis. With strong traditions of collective bargaining, the social partners have sought to resolve conflicts internally without ceding much control to third parties. An exception is Sweden where the National Mediation Office (Medlingsinstitutet) can intervene in disputes; but its role in conflict resolution is limited, the Industrial Agreement (Industriavtalet) of 1997 having established a system of private mediation covering 60 percent of the labour market. Exceptions to the general emphasis on voluntarism can also be found in three other Nordic countries, Denmark, Norway and Finland, which ‘have public mediation institutions based on legislation’ without ‘supplementary private arrangements’. This may be explained by distinctive historical patterns of the evolution of industrial relations in these countries (Elvander, 2002: 210–12).
Southern European or Mediterranean countries have been described as Mixed Market Economies (MMEs), one of the characteristics of which is an employment relations system highly regulated by law (Hall and Soskice, 2001). At least until the current economic crisis, they have had the strictest employment protection regimes (OECD, 2004). Their model of industrial relations has been termed ‘Latin polarized’ by Ebbinghaus and Visser (1999), with a high level of state intervention and adversarial and politicized industrial relations systems (OECD, 2004). The high degree of regulation has contributed to a preponderance of rights disputes, consolidating the role of the judicial route in conflict resolution.
Attempts in Southern Europe to reduce dependence on judicial systems
Promoting extra-judicial systems of collective conflict resolution has been seen as offering a number of advantages in Southern European countries: cost savings, flexibility, greater speed of settlement, less of a ‘winner-takes-all’ dynamic and greater connection with the collective bargaining process (Brown, 2004; Valdés Dal-Ré, 2003). Extra-judicial systems can also embrace a wider range of conflicts than the traditional processes, not being confined to issues of legal interpretation but also playing a role in conflicts of interest. However, attempts to establish extra-judicial systems have not been easy. It has proved difficult to reduce the role of judicial routes of settlement to give space to the new approaches (Brown, 2004). Valdés Dal-Ré (2003: 38) argues that extra-judicial processes in Southern Europe fit into the ‘functional dependence’ model, tending to be designed as auxiliary techniques to jurisdictional procedures, as ‘simple appendices to judicial protection’. Their purpose is normally to remove through conciliation practices some of the excessive workload of judges or courts.
There are common obstacles to the promotion of extra-judicial systems in Southern Europe. First and foremost, such efforts have to overcome a well-established statist culture and its emphasis upon legal regulation. Second, the existence of specialized labour courts with procedures to facilitate worker access to justice can act as a disincentive to the consolidation of extra-judicial avenues of conflict resolution (Valdés Dal-Ré, 2003). This disincentive can be even greater in those systems such as in France, where labour courts consist wholly or in part of non-professional judges designated equally by trade unions and employer organizations. Finally, the promotion of these new systems can result in a quite complicated ‘offer’ of third-party intervention, the new systems co-existing with traditional judicial systems and procedures administered by the labour authorities (ILO, 2007; Welz and Eisner, 2006). We now review some of the attempts to establish extra-judicial systems in individual Southern European countries.
In France, several authors have noted an increasing interest in developing non-judicial routes to resolving collective conflicts (Contrepois, 2009; Jeammaud, 2003). A relatively recent example is the loi de modernisation sociale of 2002, which provided for resort to a mediator selected from an official list in the event of serious disagreement between a company and its comité d’entreprise on a proposal to suspend the firm’s activity. However, official efforts to sponsor extra-judicial intervention on a general basis do not appear to have been very successful. The code du travail provides for both conciliation and mediation processes through the Ministère du Travail. The former process takes place through tripartite conciliation commissions; the latter can be initiated by the chair of the conciliation commission or the Ministry. However there is a consensus that this system is little used (Jeammaud, 2003; Pernot and Vincent, 2006), and the failure by the Ministry to publish data on its use is cited as evidence that the system is obsolete (Contrepois, 2009). Mediation practices in collective disputes have developed outside the framework of the Code, often carried out by labour inspectors, ‘in a not insignificant number of disputes’ (Jeammaud, 2003: 262). However, these systems of privatized mediations have a decentralized and unsystematic character (Elvander, 2002) and most collective disputes where the parties cannot reach agreement follow the judicial path, in the civil courts. There it is possible to conciliate prior to a hearing but this depends very much on the initiative of the judge (Contrepois, 2009; Muñoz and Serverin, 2005).
In Portugal a distinction is made between conflicts of rights and of interests. Rights conflicts normally follow the judicial route to the labour courts. In the case of interest disputes, intervention, usually conciliation, is provided by a public institution, the Instituto de Desenvolvimento e Inspecção das Condições de Trabalho (IDICT), established in 1993, which is subsidiary to the Ministério do Trabalho. Conciliators and mediators are drawn from IDICT staff and are not chosen by the parties. However, the success of conciliation efforts by IDICT has been limited; Monteiro Fernandes (2003) found that conciliation had been attempted in only 35 percent of cases where strikes had been called. Hence the evidence suggests there is still a strong tendency to use the legal system to resolve collective conflicts (Valdés Dal-Ré, 2003).
In contrast to France and Portugal, extra-judicial intervention in interest cases in Greece has been provided since 1990 by an independent, but government-funded, service, the Organization of Mediation and Arbitration (OMED); while conflicts of rights proceed to the courts. The social partners play an important management role in OMED (occupying six of the 11 positions on the governing body), and appear to view its role positively (Patra, 2012). On average, OMED handles 182 cases per year (Koukoules and Yannakourou, 2003), and provides a list of mediators from which the parties to a dispute can make a selection. Where mediation fails, a dispute can be referred to arbitration. This has occurred relatively frequently: on average arbitrations have represented 41 percent of the number of interventions (Koukoules and Yannakourou, 2003). This can be explained because arbitration has been able to be activated unilaterally by one of the parties to a dispute (usually a trade union) if the other party rejects mediation or a proposal from the mediator. This mechanism has provided an option for trade unions in weakly organized sectors to influence working conditions. A result of the current economic crisis has been the abolition of this right to trigger arbitration unilaterally. In the Greek case, therefore, there is some evidence of the successful promotion of extra-judicial resolution in the case of interest disputes, but there has been no impact on the dominance of judicial settlement in disputes of rights.
Italy is the only Southern European country where the law excludes collective disputes from judicial settlement. However there is a fluid distinction between individual and collective disputes. In practice collective disputes of rights related to the application of a collective agreement are often treated as multiple individual cases and dealt with judicially (Grandi, 2003; Senatori, 2006). The resolution of other collective disputes takes place through procedures, normally involving conciliation, established by the social partners in collective agreements. These procedures may include recourse to a third party, in the case of multi-regional disputes involving the Ministero del Lavoro and in the case of regional disputes the regional labour authorities. Tripartite national agreements in 1998 and 2003 provided more detailed guidelines for the social partners, including provision for a cooling-off period in the case of interest disputes covering agreement renewals. However little separate institutional and formalized identity has been given to extra-judicial procedures for intervention in collective disputes, a fact criticized by the social partners (Elvander, 2002). An exception to this overall pattern is legislation which provides for conciliation and a cooling-off period in the case of disputes in essential public services. Statistics for Italy are not available on the resolution of collective disputes nor the methods used (Senatori, 2006) but commentators give little credit to the extra-judicial system for the decline in strike activity in Italy, attributing it to factors such as the decline in unionization, changes in industrial structure and the impact of legislation on strikes in essential public services (Grandi, 2003). Some analysts criticize the lack of detail in collective agreements on dispute resolution procedures and the lack of commitment to them by social partners, who tend to resolve disputes by resorting to the courts or to an industrial dispute (Paparella, 2000).
The Spanish history of third-party intervention prior to the 1990s had not been encouraging. During the Franco dictatorship, compulsory arbitration by the authorities played an important role in labour disputes (Marco Aledo and Tamborero Sanjuan, 2010). In the first two decades following the transition to democracy, a voluntary process involving the intervention of labour inspectors was introduced for conflicts of interest, but this suffered from the ‘heritage’ of compulsory intervention under the dictatorship and was little used. In the case of conflicts of rights, the specialist labour courts were the main avenue for settlement. Third-party intervention before an issue reached a court hearing was the responsibility of the labour authorities.
Between 1990 and 1999, Spain lost more working days per 1000 employees through strike action than any other EU country (Monger, 2003). It was in this context that the social partners in 1996 signed the Acuerdo sobre Solución Extrajudicial de Conflictos Laborales, ASEC (Agreement on the extra-judicial resolution of labour conflicts). The agreement established in 1998 a national body, the Servicio Interconfederal de Mediación y Arbitraje (SIMA), to enable intervention in the case of disputes covering more than one region. At regional level similar agreements were negotiated. Social partner institutions (union federations, employers’ associations, large companies) signed up voluntarily to the agreements. In most cases the official system of intervention through the labour inspectorate continued to exist side-by-side with the new system; parties to a dispute could decide which to use. Once signed up to the agreements, in the case of SIMA and most regional agreements, recourse to mediation was obligatory in the event of a strike being called. The new institutions also provided the obligatory mediation required before court hearings on rights cases. Government involvement in the extra-judicial systems has been restricted to funding their activities. The regional institutions process significantly more cases than SIMA. The new institutions typically subsume conciliation within mediation (in this they followed the pattern of most EU countries; Welz and Eisner, 2006). Arbitration is voluntary.
Table 1 compares the intervention systems in the Southern European countries. The Spanish system alone has a hybrid character, functioning as an agency independent of the judicial process in providing mediation when strikes have been called but acting as an adjunct to the judicial system in the case of disputes of rights, providing a compulsory mediation stage before cases reach the court. This is unusual, with separate extra-judicial systems usually concentrating on interest cases (Welz and Kauppinnen, 2005) and, as Table 1 indicates, is one of the important differences between the Spanish system and those of the other Mediterranean countries. The obligation to accept intervention in the case of strikes and the lack of choice in respect of intervention system, once signed up to the agreements, are other distinctive characteristics of the Spanish system. They all function to narrow the options for collective conflict resolution to one system, regardless of the type of conflict, in contrast to the other countries where competing systems and voluntarism tend to prevail. Particularly interesting is the integration of rights and interest disputes in the same system. It opens up the possibility that success in resolving interest disputes can have a positive normative impact, establishing the credibility of the system and thus increasing the likelihood that there will also be an impact in respect of disputes of rights. In the other countries the lack of such integration maintains the separation and dominance of the judicial system in respect of disputes of rights. The acceptability of a narrow option for third-party intervention in Spain is facilitated by the process of voluntary adherence to the system and social partner involvement in its management. The system is only compulsory for those social partners that have subscribed to the different agreements. The management of the system by the social partners, down to their nomination of mediators, also increases acceptability.
Extra-judicial systems in five Southern European countries.
The impact of the Spanish system and its roots in Spanish employment relations
Available literature would suggest the Spanish initiative supporting extra-judicial intervention has had an impact. Martin Artiles (2005) pointed to the increasingly positive results of the Spanish system in preventing labour disputes from being taken to court. Sanz de Miguel and Caprile (2010) identified a sharp increase in the use of the regional extra-judicial systems.
There has been a significant decline in working days lost through strike action in Spain during the lifetime of the agreements, from 271 working days a year per 1000 employees in 1992–2001 to 121 in 2000–09 (Carley, 2005, 2010; Monger, 2003). While this decline can be related to a number of factors (changes in the composition of the labour force; the growth in the number of self-employed and temporary contract workers; and a more concessionary approach by the trade unions in the face of market globalization), there is some indication of the impact of the extra-judicial system. Luque et al. (2008), examining the relationship between the frequency of strikes and the various regional systems of intervention, established that in the case of systems where mediation was obligatory there was a depressing effect on strike frequency.
Given this evidence, we consider in more detail the impact of the Spanish system, focusing on the role of SIMA and the Valencian regional system, the Tribunal de Arbitraje Laboral (TAL). Apart from secondary data provided by the institutions of the extra-judicial system, our evaluation is also based on nine individual interviews and two focus groups with actors involved in SIMA and the Valencian regional system (including union workplace representatives and mediators, lawyers, an employer mediator, an HR manager, an arbitrator and officials of SIMA and TAL). Valencia was chosen because it has a procedural regime similar to SIMA, thus facilitating comparability. In addition the Valencian system is more established than many of the other regional systems, being set up around the same time as SIMA in 1997. The qualitative research was undertaken in order to gain an understanding of the processes of intervention and actors’ evaluation of their role and effectiveness. In the absence of existing data in these areas an exploratory qualitative approach was considered appropriate.
Table 2 shows the increasing role played by the new extra-judicial system. The number of cases processed through it is significantly greater than through either the labour authorities or the labour courts. Typically the majority of the cases relate to rights issues, as a result of the high degree of regulation of employment relations and the mediation role of the extra-judicial institutions before labour court hearings take place.
Average number of cases considered by various third-party agencies.
Source: SIMA; Memorias del Consejo Económico y Social.
To indicate the effectiveness of these interventions, Table 3 presents data on the outcomes of extra-judicial intervention at national and Valencian level. The proportion of successful outcomes (where a formal agreement is reached) as a result of the intervention of the institutions of the new social partner managed system is significantly higher than in the case of the service offered by the labour authorities. (One should note, however, that these settlement rates are lower than those in the British Advisory, Conciliation and Arbitration Service, which averaged 80% over the three-year period 2008–10. However, use of the UK system is voluntary and a higher settlement rate is to be expected.)
Percentage of interventions resulting in agreements.
Sources: SIMA; Memorias del Consejo Económico y Social.
There is strong evidence for the positive impact of the system on strikes. In 2007–09, 40 percent of strikes referred to TAL and 29 percent referred to SIMA were avoided by agreement following mediation (SIMA, 2011; TAL, 2011). The settlement rate for rights issues through mediation prior to court hearings is not radically different from that for strikes (25% in the case of TAL and 31% in the case of SIMA). However, given that far more rights than interest cases pass through the mediation process, there is some evidence here for the difficulties of the new system in minimizing the role of the labour courts, an interpretation supported by interviews with some of the actors. ‘If the dispute is purely and simply about what a rule or regulation means then the process can become a mere formality’ (employer mediator, Valencia). ‘Unions and employers have more confidence in the judge than the mediators’ (employment lawyer, Valencia). However, these views were put in a different perspective by an arbitrator in Valencia: ‘the success rate of the system is very high compared with the level of agreement reached in rights cases under the old system [labour inspectors: 1%]’. The mediators ‘are too optimistic about the level of agreement they should be achieving, they don’t give credit for agreements reached later’.
Secondary data support this latter view. In Valencia only 45 percent of rights cases submitted to mediation reach a court hearing (TAL, 2011). In the case of SIMA only 28 percent of rights cases submitted to mediation proceed to a court hearing while in only 32 percent of those proceeding to court was the verdict favourable to the plaintiff (SIMA, 2013).
The emergence of a distinctive system of intervention can be related to several characteristics of employment relations in Spain. First, Spanish employment relations have two dimensions: in the small and medium-sized companies (SMEs) in which most workers are employed, union organization is sparse and collective bargaining limited; while in bigger companies and at sectoral level relatively stable collective bargaining relationships have been developed. A strength of the intervention system is that it provides space for both patterns of employment relations.
A high proportion of cases are initiated by the trade unions in respect of disputes in SMEs (in Valencia, 57% of cases relate to firms with fewer than 100 employees). A dispute can be referred to mediation either by the worker representatives at enterprise level or by the regional organization of one of the unions. The latter is most often the case, thus reducing the possibly of victimization of worker representatives. Often, given weak organization at enterprise level, the threat of judicial action and the associated mediation are the only ways the unions can make progress in SMEs: ‘through the system [of mediation] on many occasions worker representatives are able to achieve what never takes place in their company – sit down with the employer’ (TAL official). A typical example is a small wood-processing company in Valencia (23 employees) in which the employer had been failing to observe the provincial collective agreement, modifying working hours unilaterally and failing to allow time off for medical appointments. The worker representative in the company informed his union office, the union laid a claim before the labour court and the employer was summoned to mediation. The outcome was that the employer agreed to implement the collective agreement, and subsequently more dialogue took place in the company between the employer and worker representative.
In arguing that the Spanish system has provided unions with a lever to intervene in less organized sectors, it is however important to recognize the limitations of this approach. Recourse to mediation is unlikely to transform union organization at SME level. From an employer perspective, the union recourse to mediation externalizes the conflict and does not necessarily provide a sustained threat to existing power relations. It would therefore be unwise to assume that intervention through the extra-judicial system would have a lasting impact on the culture of employment relations at company level. Further research on company employment relations after intervention would be needed to examine whether longer-term effects do result from the mediation process.
As well as providing a lever for intervention in SMEs, the Spanish system also reflects the needs of the more organized elements of collective employment relations, at sectoral level and in large companies. As noted above, during the 1990s these were associated with the highest strike rate in Europe. The commitment of these organized elements to the system should be seen in the context of the increasing difficulty experienced by the unions in mobilizing workers to take industrial action, faced by threats of disinvestment by multinationals and the remuneration of increasing numbers of employees at the margin of collective agreements (Rigby and Marco Aledo, 2001). The location of interest disputes within the system, and in particular the obligation to submit strikes to mediation, fitted these changed power relations and made the new system relevant to the organized sector (where judicial issues such as the failure to implement collective agreements were less common).
Thus we argue the system has not sought to change or ignore the reality of Spanish industrial relations but to articulate it, providing space for both SMEs and organized workplaces. In this respect the Spanish unions have again displayed their strategic flexibility and ability to exploit institutional advantage (Hamann, 2012). Since the transition to democracy, they have relied on the regulatory and institutional levers provided by the new political settlement to compensate for their weakness in SMEs.
A second characteristic of Spanish employment relations, which has favoured the consolidation of the intervention system, is social partner, and particularly trade union, unity. The negative experience of previous systems managed by the administrative authorities encouraged the social partners to take on responsibility for intervention. The consolidation of relations between the social partners in sectoral bargaining and national institutions such as the management of training systems established sufficient trust to embark upon a jointly managed venture in response to the high levels of industrial action being experienced. However, the existence of trade union unity was equally important. The active promotion of the intervention system by the two relatively centralized trade union confederations which dominate works council elections and have been working together for most of the last two decades has been an important factor in establishing the credibility of the system. With the possible exception of the Greek system, such unified trade union support has been lacking in other Southern European countries. More typical has been union division (as in France, where the accord national interprofessional of January 2013 was signed by only one of the three main unions). This emphasis on the impact of union structure and unity on intervention systems coincides with Elvander’s explanation of the difference between the Swedish machinery of conflict resolution and that of other Nordic countries.
Third, the perception of the Spanish judicial system held by the social actors has encouraged non-judicial outcomes. Baylos (2012) points out that judges have not always been seen as guarantors of workers’ rights, particularly in relation to collective issues; as a result, the Spanish trade unions have been often ambivalent about their role. In addition we should take into account the perceived uncertainty associated with the judicial system as a result of the poor quality of Spanish law, in particular its lack of precision, in turn increased by conflicting judicial interpretations (Ruiz Soroa, 2013). While the high degree of regulation means that conflicts of rights have a high profile in Spanish employment relations, uncertainty about the legal outcome provides an adequate incentive for the parties to avoid the judicial route. In this context it is perhaps less surprising, as noted above, that only 28 percent of rights cases submitted to SIMA for mediation proceed to a court hearing (SIMA, 2013). Such judicial uncertainty would seem to contrast with French experience, where the strongly embedded labour code and collective agreements are seen as important acquisitions by workers, with the result that it is necessary to take bad employers to court (Jefferys, 2011).
Conclusion
In the earlier part of this article we drew attention to the obstacles to extra-judicial conflict resolution in Southern European countries, which have been emphasized in the literature (Brown, 2004; Valdés Dal-Ré, 2003). As a result, according to Valdés Dal-Ré, the dominant model of the relationship between judicial and extra-judicial systems is likely to involve the subordination of the latter to the former, with extra-judicial systems being auxiliary to judicial protection.
Our discussion of attempts to promote extra-judicial avenues for settlement in Southern Europe, and in particular the Spanish experience, suggest the need to revisit this assumption and develop a more nuanced view of the relationship between judicial and extra-judicial systems. Specific characteristics of the design of the Spanish system have increased the credibility and independent impact of the extra-judicial processes. These characteristics include locating disputes of interest and rights within the same model, reducing the choice of intervention system available to actors, making cooperation with the mediation process compulsory and emphasizing mediation rather than conciliation. As a result, we would argue, the Spanish extra-judicial system, as well as achieving considerable success in resolving disputes of interest, has made progress in displacing the labour courts from their traditional role as the main destination for rights cases.
We are not suggesting that evidence from the Spanish system points to the ultimate disappearance of judicial avenues of conflict resolution. As long as legislation plays a prominent role in regulating employment relations, the role of the courts in conflict resolution will not disappear, and activation of the judicial route will remain a mechanism whereby workers in SMEs in particular will seek to bring their employers to the negotiating table. The main argument of this article is that despite the weight of statutory regulation in employment relations in Southern European countries, the degree of autonomy and impact of extra-judicial systems is going to vary and that choices exist. Which choices are taken will be related to actor strategies and the institutional context.
The obligatory nature of the Spanish system has been identified as one of the reasons for its impact. Such an approach differs from the predominantly voluntary basis of intervention in most Western European countries. Spanish experience suggests the need to reassess the debate on voluntary versus compulsory systems of intervention. The arguments typically advanced for voluntary intervention are three in number. It is suggested that if the parties go willingly into the dispute resolution process they are more likely to respond constructively (Podro and Suff, 2005), that voluntary systems should be retained because they fit the culture of the employment relations system (Podro and Suff, 2009), and that a compulsory system would impinge on the role that collective bargaining plays. Spanish experience raises questions in relation to each of these arguments. The compulsory nature of mediation in Spain at the dispute stage is made more acceptable by initial voluntary adherence to the system by the bargaining institutions. The culture of employment relations systems in many countries has changed with a modified distribution of power. Perhaps a system which establishes stronger obligations on employers to seek actively to resolve collective disputes is more appropriate for societies in which collective bargaining faces major challenges. Finally, there is no evidence in Spain that the extra-judicial systems, though compulsory, have weakened collective bargaining. This is consistent with North American findings (Kochan et al., 2010; Slinn and Hurd, 2011).
To conclude, it must be recognized that the degree of consolidation of the Spanish system of conflict resolution is being tested by the changes in the economic and regulatory context of employment relations driven by the economic crisis which began when Spain went into recession at the end of 2008. The Spanish government, pursuing a flexibility agenda, has diluted some of the most important guarantees of collective bargaining and job security. The crisis has been reflected in more cases being processed through the extra-judicial system. In the case of SIMA, 17 percent more cases were processed in 2009–11 compared with 2006–08. The issues subject to mediation, reflecting the crisis and legislative reform, have become increasingly dominated by the non-payment of salaries and redundancy or restructuring issues. However, the settlement rate achieved has not changed significantly, and the renegotiation of the social partner agreement establishing SIMA in February 2012 expanded its coverage to all companies and sectors unless they opt out.
Three consequences of the labour market reform legislation, we argue, are likely to consolidate the role of the extra-judicial system, at least in the short term. First, the crisis and the accompanying legislative reforms have weakened the Spanish trade unions. This is reflected in frozen or reduced salaries, large-scale redundancies and a decline in bargaining coverage. In this environment the use of such institutional levers as are still available is likely to become an even more prominent strategic option for the unions (Baylos, 2012), among these the use of mediation processes. Mediation is being used in particular to ameliorate the impact of redundancies: for example in Iberia, where dismissals were reduced from 3800 to 3141 and redundancy compensation significantly improved following the mediation process.
Second, the legislative reforms have provided much scope for judicial interpretation, which has often failed to uphold the employer position. For example, of 34 judgments on collective redundancy in the first 10 months after the introduction of the new legislation, 26 found against the employer. A recent supreme court ruling found against the employer (the engineering firm Talleres López Gallego) for, among other reasons, not bargaining over redundancies in good faith because it did not improve its initial offer during negotiations with worker representatives (Gómez, 2013). As a result, the labour courts are viewed with even more distrust by employers and there is considerable pressure on employers to reach agreement and approach mediation with a view to settlement rather than risk an uncertain judicial decision; 50 percent of disputes over collective redundancies in the first 10 months of 2012 were resolved at the initial mediation stage (SIMA, 2013).
Third, reforms to collective bargaining introduced in 2011 and 2012 envisage a wider role for compulsory arbitration in the event of a failure to agree, for example on the non-application of a collective agreement because of economic circumstances. Given the level of opposition among the social partners to compulsory arbitration, it is quite possible that the role of mediation will be strengthened to avoid the uncertainty of an arbitration process outside social partner control.
Footnotes
Acknowledgements
We are very grateful for comments and editing received from Richard Hyman. The authors are also grateful for the comments and support received from Martin Borrego, Director, Fundación SIMA.
Funding
The research received no specific grant from any funding agency in the public, commercial or not-for-profit sectors.