Good Report About Purpose Of Using Alternative Disputes Resolutions
This report comprises of two parts. The first part of the report involves finding detailed reasons for the use of Alternative Dispute Resolution (ADR) especially regarding the services provided by ACAS. This will be done by carrying out comprehensive and critical analysis of the relevant literature. Moreover, the section will also focus on the benefits of using (ACAS) and why ACAS is a successful means of dispute resolutions. Again the report will identify the major reasons why European Union Law is superior to domestic law in the United Kingdom.
Alternative Dispute Resolution means various dispute resolution mechanisms that are best alternatives to the full-scale court process (Kyprianides). The ADR also refers to the process through which dispute resolution is done through negotiation. In this process, the persons involved are brought to negotiate with each other before taking legal processes such as arbitration system or judicial channels such as courtroom process. On the other hand, Conciliations and Arbitration Service (ACAS) is a publicly funded organization that helps to promote good working relations by providing suitable conflict resolutions between workers and employers or employee and employee. ACAS also provide trainings to the employees on how to resolve disputes in the organization.
According to Tuckman and Snook, small and medium enterprises’ limited resources make it hard for them to defend tribunal claims as the legal process needs a lot of money and other resources. The costs involved are potentially significant to small and medium enterprises hence they are more than willing to pay external sources for advice, supports and trainings that will help to reduce employee- employer conflicts. Consequently, small and medium enterprises involved ACAS in the solving of their organizational problem. Business owners and managers chose ACAS on the basis of confidentiality, speed and costs involved in the dispute resolution methods (Akintoye, Renukappa and Lal)
Earnshaw and Goodman, affirm that the frequent lack of formal processes for handling disciplinary cases and grievances in the small and medium firms encouraged the business owners to look for some informal procedures for resolving individual disputes. The informal procedures were also to involve at least some of the steps required by the statutory procedures hence they choice ACAS.
According to Harris, when the advantages of informality procedures of solving grievances are greater than those of formality, employers will focus on the less procedural compliance as the best means of defense against costly litigation. Thus, they resolve to use ACAS to resolve employment tensions. He adds that, individuals employee who finds themselves in dispute will first see the manager as the first step in maintaining social cohesion in the working environment.
Kersey argued that, the large business firm needed methods and way of managing employee relation as large firms involved handling high number of the individual dispute. The comparison carried found that small firms employees rate of absenteeism was lower compared to bigger firms. Consequently, the managers had to look for better and cheaper methods of resolving the disputes hence the choice of ACAS.
Analysis of the Topic
This section of the paper will involve inclusive evaluation of the purpose of alternative dispute resolutions. It will also look benefits of engaging ACAS as an alternative dispute resolution and why ACAS is a successful means of disputes resolution outside the formal judicial process.
The purpose of using the alternative dispute resolution system is to achieve particular goals. Some of these goals involve improving good working relation in the business firm or the society at large. Some objectives, however, are developments oriented such as management of tensions and conflicts in the business, economic restructuring in the community and increasing the outputs in the business. For example, efficient dispute resolution procedures may be critical to economic development goals where judicial and court process delays and full of corruption.
Researchers have shown that the use of ADR can greatly support, complement court reforms.ADR can help to reduce the number of cases in court that causes backlog. Again, ADR is purposefully used to improve the court effectiveness since complex procedures impair the court working programs (Marqués and Sáenz) .Marques also argues that, the main reason for using ADR is to make it efficient and cheap enough for illiterate and poor people who cannot afford the court to be able to get their justice. He emphasizes further that, the small informal system can reach a larger geographical location hence serving a lot of people compared to the large centered formal system.
Benefits of using ACAS as alternative disputes resolution
Most fundamentally, ACAS processes are less formal compared to court procedures. Many a times, the ACAS rule is more flexible, with no formal pleading or rules of tabling evidences. This informality is very important for increasing access to dispute resolutions for parties involved who may be intimidated by either employer or employee.
ACAS procedures are more speedy and flexible. Disputants can easily formulate their terms of reference thus saving time. Gibbons, states that business owners and managers supports devolving initial disputes handling as far down the organization as possible to support the early resolution of the conflict. Thus, ACAS give the managers quick and easy time to resolve disputes and concentrate on other activities.
ACAS is very beneficial because of its confidential nature. It provides all users with arbitration service and an assurance that it will not disclose details to anyone of its cases other than the parties involved. It also extends its commitments to confidentiality to the parties who, in the main, honor their pledge. ACAS also offers users of arbitration services guaranteed of confidentiality. Its process eliminates the presence of the public to listen to disputants’ view therefore ensuring confidentiality to the parties. ACAS also benefits users by the fact that the arbitrators will hear and decide their cases with complete impartiality hence helping to maintain the integrity of the disputants and the dispute resolution methods.
Why ACAS is as successful means of resolving disputes outside the formal judicial process
Marqués and Sáenz assert that the major reason ACAS is a successful means of dispute resolution is due to the approach it gives to the resolution process. Research indicates that ACAS play three major roles in the case recognition; conciliation roles, labeled information and instrumental. These roles comprised of different elements of the conciliators work that go between and use simultaneously through the recognition process. Earnshaw and Goodman argue that, where the approach to ACAS came from an employer, ACAS play the role of providing information on the statutory procedures. On the same case, ACAS will give the possibilities of a failure to agree or of unionization for the organization and thus settling the disputes. ACAS also play an important role in facilitating membership check and intermediating employers and unions so as to bring agreement between the disputants.
Again, ACAS success is attributed to its post -recognition outcomes. Kersey explains that, in many situations managers lack trainings for dispute recognition that hinder the development of management -union's relations and reduce representatives' effectiveness in carrying out their roles. However, ACAS provides these trainings to the managers hence bring a positive impact in the workplace.
ACAS superior recognition processes drive it to succeed in its operation as the best dispute resolution organization. Positive perceptions of the benefits of ACAS in the recognition process came to light when the disputants involved ACAC, which made it difficult for achieving recognition of the dispute. Therefore, ACAS was taken as a neutral body valued by both persons in the conflict because conciliators made the parties reach an agreement. Therefore, the respondents felt that ACAS involvement created a conducive environment for the development of positive union-management relationship and eliminating chances of conflicting during and after the recognition hence it the success.
The second part of this report comprises the examination of the relationship between the European Union law and the domestic laws in the United Kingdom. It will also give the reasons why European Union Laws takes precedence over the domestic laws in the United Kingdom.
Relationship between European Union Laws and domestic laws in the United Kingdom
The relationship between the European Union laws and domestic laws in the United Kingdom involve the supremacy of the two laws. According to Albert Dicey, European Union laws are derived from secondary legislation and also from treaties that have direct or indirect control over domestic laws in the member states in which the United Kingdom fall. The treaties have effects on the obligation of the domestic courts to interpret the respective law in question with respect to EU provisions having a direct effect on them. These consequently show that EU law is logically supreme.
European Union has three major sources which are; supplementary sources, primary sources and secondary sources. These three sources always come from treaties, directives, and regulations. The composition of EU Congress entails the European Parliament and the Council of the European Union in which the treaties are used to set secondary laws that applies and has effects on all domestic laws.
Why European Union Laws take precedence over the domestic laws in the United Kingdom.
Blake asserts that the main two principles which give EU laws power over domestic laws in UK comes from section two sections. Section (1) and section two (4) of the European Community Act 1972.The section two (1) mandates UK to enforce all rights directly resuming from the treaties and community with no enactment or modification given legal weight or used in the UK courts to enforce justice. Again, section two (4) Of the European Communities (Act 1972) table that, interpretation of English law should justify that European Union law is supreme. This means that the European law should be superior to all other domestic laws.
Mbaye and Heather AD, explains further that, the words of the section two (4) are both prospective and retrospective since any enactment made will have effect subject to the previous provision of the sections. The meaning of this is that, when the domestic law conflicts with European Union law then the EU laws take the priority applied. Nigel Foster explains that, in section three of the European Communities Act 1972 the interpretation of the community treatise and legislations leads to questioning of EU law.
The European Courts of Justice mandates that community law comes fast before the national law in the case of conflict between them from both treaties and statements. Section three of the EU laws makes it mandatory for the UK court to interpret matters of the community law in line with the rulings of the ECJ. ECJ also require the courts to make judicial notice of community legislation and the different opinions of the EU laws. UK Parliament must give power to UK courts to carry out its work. Consequently, UK Parliament expects the courts to apply community law in the case of conflicts between community law and Acts the parliament. It justifies that the court are obliged to give priority to community law over UK legislation (European Community Act 1972).
Again, it is the obligation of the court to ensure that the interpretation process and application process of the Treaty is observed (Article 220, European Community Treaty). This the supreme power on all subjects of the community law. Ms. Smith Argu gives that ECJ is the judicial arm of the European Union, and its judgments overrule the community laws of the domestic court in the case of conflicts.
European Legislatures may act in line with the ordinary legislative process to adopt rules and regulations that may be designed to discourage certain actions on a ground of nationality(ART 18 TFEU).Taking this case, it shows that the EU parliament pass this legislation to its members states without any further implementation by members states domestic parliament. Additionally, Article 4(3) TEU explains that the principle of honest and sincere cooperation make members’ states and the Union respect, help one another in carrying the task that comes from the Treaties. This explains that all members states must be of help to each other whether they like or not hence the supremacy of European Union laws.
Article 288 TFEU, states that a regulation shall have general application and binding in its entirety and directly applicable in all member state. This requires that once a regulation has been reached by the EU legislature, its message apply in all member state, the UK. The regulation shall take effect immediately without further domestic parliament implementation in their national laws. Again, this indicates how treaties undermine the power of the UK parliamentary sovereignty.
According to ECJ, European Union possesses it owns institution and personality that make it meet its legal capacity especially power sourcing from limiting its member's sovereignty. Therefore, the member state has restricted and limited supreme freedom and has to bind their national and themselves to European Union. Bogdanor States that community laws take precedence over all conflicting provisions of domestic laws in regard to the European Union laws. The merging of each member states the law of which comes from the community and the terms of the Treaty makes it extremely impossible for the national law that comes later to overrule the European Union law that came earlier.
Finally, European Union law requires that member states not to cause any dispute concerning the interpretation, implementation process and application process of the Treaties to any method of settlement other than those given by European Union(Article 344 TFEU).By complying with this Article, it shows that the United Kingdom Parliament has not given up their rights to settlement of disputes arising from the interpretation of the European Union Treaties thus resulting in usefulness of the United Kingdom parliamentary supremacy. Consequently, if European Union court notified that a member state has failed to observe an obligation under the Treaties of the EU, the state shall be forced to comply with the European Union laws.
In summary, it must be noted that European Union law have the restriction that undermine the domestic law in members' states especially United Kingdom. Again these restrictions are both beneficial and undermining in some cases as seen in the report. The ECJ's exclusive power to interpret provisions involving abnormalities and disputes between domestic laws and European Union laws makes it the reason and logic of the European Union supremacy.
Again, the European Union supremacy is majorly derived from the members' states that are providing it with legislative powers to perform its obligation. Thus, the members’ state does not consider it as undermining laws but as laws that help in the promotion of peace, development, and good coexistence among the member's states. This result from the fact that European Union requires its member states to provide help to each other.
Therefore, from all the statement made, we can conclude that European Union law takes precedence over the domestic law in United Kingdom. Again we can conclude that European Law is supreme but it's notable that United Kingdom still maintained its parliamentary sovereignty as indicated in the European Communities Act 1972.It is worth noting that United Kingdom has asked its domestic courts to override national laws when they are in conflicts with European Union laws. Considering Dicey's rule law, if the parliament decides to repeal, they are still able to do it anytime. Therefore, EU laws can be said to be supreme but logically the UK‘s Parliament is still supreme.
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