Labour courts and court systems
Not all EU member states operate specialist labour courts. The following review outlines procedures for handling employment litigation in six countries.
Belgium
Denmark
Germany
Italy
The Netherlands
Spain
Links
Belgium
There are two levels of specialist labour court in Belgium:
- Labour tribunals: Courts of first instance dealing primarily with individual employment contract issues.
- Labour courts: These hear appeals referred by tribunals and seek to resolve significant collective disputes.
Each tribunal retains a team of labour prosecutors who may be called upon to provide opinions to the court and are also responsible for instituting criminal proceedings against employers when health and safety laws have been seriously breached.
return to top
Denmark
Denmark operates a well established and highly complex array of courts, arbitration and conciliation machinery. Actions concerning individual employment contracts are heard by the general courts. The Labour Court Act governs the activities of the labour courts (Arbejdsretten) that hear cases involving breaches of collective agreements. However, the starting point for disputes resolution is usually the set of 'standard rules' that are common to almost all collective agreements. These define a number of steps to be followed as soon as a problem arises in the workplace. The parties are first obliged to negotiate, then to seek private arbitration (faglig voldgift) if required and, finally, to go to court rather than resort to strike action or lock-outs. No individual employee can bring a case, or be the sole subject of a labour court action.
The Danish government has established its own conciliation service that oversees all labour disputes. Copies of notices about work stoppages must be sent to the Conciliator covering the industry concerned, who is empowered to intervene in any dispute and demand a cooling-off period of up to two weeks.
return to top
Germany
Around 650,000 cases are heard by labour courts each year in Germany. Of these around 90% concern individuals rather than trade unions or works councils (as collective suits). Half of all cases are settled at an initial hearing before a lower labour court, but 1,000 cases a year eventually go through the full appeals process.
There are three levels of court:
1) Labour courts (Arbeitsgerichte)
2) Higher labour courts (Landersarbeitsgerichte) - courts of appeal
3) The Federal Supreme Labour Court (Bubdesarbeitsgericht) - final court of appeal
These deal with private law disputes involving statutory rights - such as wrongful dismissal, infringements of works council procedures, wage payment problems and the interpretation of collective agreements. Social security cases are heard by separate courts of social affairs. Conflicts of interest between works councils and employers are dealt with by ad hoc settlement committees (einigunsgstelle).
There is an automatic right of appeal for all cases before the labour courts provided the award is in excess of 1200 DM. An appeal to the Federal Court requires consent from a higher labour court or (on complaint) the Federal Court itself.
Only cases that are believed to infringe constitutional rights may be sent on further appeal to the Federal Constitutional Court.
Each court contains a mixture of professional and lay judges. A court of first instance (labour court) is composed of one professional (Berufscichter) and two lay members (ehrenamtlich) drawn from both sides of industry.
A preliminary meeting is normally set in order that a labour court judge may achieve an amicable settlement without recourse to a formal hearing. If a settlement is concluded at this stage, the court will generally not charge court fees (other than the initial filing fee). Although each party must meet their own costs for legal representation before a labour court, the losing party will have to pay court fees (up to 1,000 DM) plus witness expenses.
It is not necessary to be represented by a lawyer during lower labour court proceedings. However, if cases go before the higher labour court, the parties must be represented by a lawyer, trade union official, or employers' association official. All cases before the Federal Labour Court must be legally represented.
Cases are not generally expected to go to mediation before being heard by a labour court. The only exceptions are where the case concerns vocational training or mediation is built into a collective agreement.
return to top
Italy
Labour courts are an integrated element of the civil court system. They are composed of professional judges who deal with a wide range of social insurance and social welfare issues as well as internal civil service disputes and labour law.
There are three levels of labour court:
1) The court of first instance
2) The appeals court
3) The Cassazione
In addition, contradictory judgements by the Cassazione are resolved by a special forum - the Corte di Cassazione a Sezioni Unite.
Before a case will be heard by a labour court, the parties must show that they have attempted to settle the dispute by all reasonable means. In collective disputes, this will normally require the involvement of public labour officials or an independent mediator. When a case reaches court, the presiding judge will also normally seek to reach an informal settlement which can then be admitted as a full decision of the court.
Court proceedings in labour courts allow for the extensive admission of evidence by the plaintiff and defendent. Moreover, the decision of the court is normally reached immediately after the conclusion of pleadings by each party.
All parties must be legally represented at every level of labour court. Both individuals and collective bodies may seek a decision by the court. However, unions may intervene in individual disputes if the case involves the interpretation of a collective agreement. Most cases that are heard by a court of first instance are permitted to go forward upon appeal.
return to top
The Netherlands
The Dutch do not operate specialist labour courts. Disputes arising from collective agreements or individual employment contracts are heard by local (canton) courts of first instance. Appeals against judgements are then heard by a district court (Rechtbank). Legal proceedings can be very lengthy and employers often apply to the courts for an interim ruling. This may, however, be overturned if the case goes to a full hearing. In cases involving dismissal, it is frequently faster and more advantagous to make an application to a local court of first instance. The canton judge's decision is final and may not be subject to appeal. In the case of genuine redundancy, it is also usual for the court to settle compensation in the same hearing.
There is no formal disputes procedure or arbitration service operating in the private sector. Some collective agreements have established ad hoc voluntary disputes panels (geschillencommissies) and many serious cases involving strike action are heard by a district court.
return to top
Spain
Around 300,000 cases are heard by Spanish labour courts each year. However, only 40% of all cases relate to contracts of employment, with the balance being taken up by social security disputes.
There are three levels of labour court:
1) The social courts (JS) at a provincial level.
2) The social chamber of the high courts (TSJ) at a regional level.
3) The social chamber of the Supreme Court (TS) in Madrid.
Appeals are heard by the TSJ through a process called suplicacion. The TSJ may not, however, consider matters of fact and cases must involve awards/claims in excess of 300,000 ptas before an appeal will be accepted. The Supreme Court will only consider appeals if a decision by the TSJ contradicts another very similar case and the decision has important legal ramifications.
The courts consider individual disputes about statutory rights or contracts of employment, as well as collective disputes. The latter may only be heard in the presence of a relevant employer (or employers' association) and trades union representative. Before the courts will hear any case, they generally require the parties to have sought independent mediation. This will normally be through the offices of the Mediation, Arbitration and Conciliation Service (SMAC). Conciliation arrangements are usually provided for under major national and regional collective agreements.
At the start of a hearing before a labour court, a judge will normally seek to reach a settlement between the parties without recourse to formal proceedings. If a settlement is reached at this stage, it will be ratified by the court and will be legally enforceable. If the case moves ahead to a formal hearing, it will usually be speedily dealt with through oral submissions. Each party will be called upon to state their case, a consideration of evidence will take place, and each party will perform a summing up. The court will normally publish its decision within five days of the hearing.
The members of all courts are professional judges and there are no lay members. A natural bias tends to occur in favour of the employee during litigation because they are considered to be the weakest party in the employment relationship.
The average time delay to a hearing before the social court (JS) is three months, whilst cases on first appeal must generally wait for six months or longer.
return to top
Links
European Court of Justice
Belgian Courts (including Labour Court)
Dutch Judicial System
Finnish Labour Court (in English: general description)
French Supreme Court of Appeal
German Federal Labour Court
Irish Labour Court
UK Employment Appeals Tribunal
|
