COMPARATIVE STUDY OF THE EFFECTIVENESS OF

CONCILIATION AS A LABOUR DISPUTE

RESOLUTION MECHANISM IN INDIA AND
AUSTRALIA

UNDERGRADUATE PROJECT ON LABOUR LAW

Submitted by
BUVANIYAA SRI L
Reg. No: BC0220009

Submitted to
Mrs Preetham

TAMIL NADU NATIONAL LAW UNIVERSITY

(A State University Established by Act No. 9 of 2012)
Tiruchirappalli, Tamil Nadu — 620 009
India

1
 ACKNOWLEDGEMENTS

I, “Buvaniyaa Sri L”, am elated to acknowledge my heartfelt gratitude to “Mrs

Preetham”, Assistant Professor of Law and Professor V Nagaraj, the Vice Chancellor of
“Tamil Nadu National Law University”. Their unwavering support, guidance and
encouragement gave me the opportunity to work on this project titled “The Comparative
Study of the Effectiveness of Conciliation as a Labour Dispute Resolution Mechanism in
India and Australia”. This project enriched my understanding of a diverse array of subjects
and sharpened my research skills. I am indebted to remember their mentorship and the
precious insights they provided me during my research. I would also like to extend my
wholehearted gratitude to my friends and family who provided their unwavering support and
encouragement throughout the process. Their belief in my capabilities enabled me to submit
this project in the stipulated time frame. Finally, I extend my gratitude to my fellow students
for their constant inspiration.

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 DECLARATION

I, “Buvaniyaa Sri L”, bearing registration number “BC0220009” and currently

studying in third year of B.Com LLB., at “Tamil Nadu National Law University”, do hereby
solemnly declare that the research paper/project of the title “The Comparative Study of the
Effectiveness of Conciliation as a Labour Dispute Resolution Mechanism in India and
Australia” is a product of my individual effort under the guidance of “Mrs Preetham”,
Assistant Professor of Law at “Tamil Nadu National Law University,
Tiruchirappalli-620009”. I affirm that this work, in its entirety, is the result of my research,
with no prior publication or credit granted by any other university or academic institution for
any degree or diploma program. This declaration stands as a testament to the originality and
authenticity of my efforts in conducting this research paper/project. It is my sincere
endeavour to contribute meaningfully to the field, and I am grateful for the guidance and
support provided by “Mrs Preetham” throughout this journey.

Date: 2nd September 2024

Place: Tiruchirappalli

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 THE TABLE OF CONTENTS

ABSTRACT.............................................................................................................................. 5
Review of Literature.............................................................................................................5
Statement of the Problem..................................................................................................... 7
Research Objectives............................................................................................................. 7
Research Questions.............................................................................................................. 8
CHAPTER 1: INTRODUCTION TO THE PROJECT....................................................... 9
CHAPTER 2: THE INSTITUTIONAL FRAMEWORK OF CONCILIATION IN
INDIA AND AUSTRALIA.................................................................................................... 11
Institutional Framework of Conciliation in India...............................................................11
Institutional Framework of Conciliation in Australia........................................................ 13
Comparison of the Institutional Framework of Conciliation in India and Australia..........14
CHAPTER 3: PROCEDURAL STEPS IN THE CONCILIATION PROCESS: A
COMPARISON OF INDIA AND AUSTRALIA.................................................................15
Procedural Steps Involved in Conciliation in India........................................................... 15
Procedural Steps Involved in Conciliation in Australia..................................................... 16
Comparison of the Procedural Steps Involved in Conciliation in India and Australia...... 17
CHAPTER 4: ASSESSMENT OF THE EFFECTIVENESS OF CONCILIATION IN
INDIA AND AUSTRALIA.................................................................................................... 17
The Effectiveness of Conciliation in India.........................................................................17
The Effectiveness of Conciliation in Australia.................................................................. 18
Comparison of the Effectiveness of Conciliation in India and Australia...........................19
THE CONCLUSION OF THE PROJECT..........................................................................20
BIBLIOGRAPHY.................................................................................................................. 22
List of Cases....................................................................................................................... 23

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ABSTRACT
Labour disputes are a significant concern that impact the harmony of the industry and the
economic stability. Effective dispute resolution mechanisms are essential so that there are
timely settlements and fairness. Conciliation is a process in which an impartial third party
intervenes in the disputes and aids a mutually acceptable resolution. This method was widely
used to resolve labour disputes. This study focuses on the conciliation process of India and
Australia. India and Australia employ different conciliation systems because of their unique
cultural and institutional environments. The aim of this research is to assess the effectiveness
of conciliation in India and Australia and contrast these. The study seeks to find out how each
system operates and identify inconsistencies and the scope for improvement. These findings
are expected to provide valuable recommendations to improve the system in India.

Keywords: conciliation, labour dispute resolution, comparative analysis, India, Australia,

effectiveness.

Review of Literature
1. Arjun P. Aggarwal, Conciliation and Arbitration of Labour Disputes in
Australia, 8 J. Indian L. Inst. 30 (1966).
The document titled "Conciliation and Arbitration of Labour Disputes in Australia"
by Arjun P. Aggarwal traces the historical development of conciliation and arbitration
in labour disputes. It highlighted its establishment to address interstate labour disputes
that individual states could not effectively manage. The author discusses the legal
framework, which created an approach to resolving industrial disputes. The paper
emphasised the informal nature intended by the legislation. The document also
critiques the complexities and delays often associated with the arbitration process that
hinder timely resolutions. The article suggests that Australia’s practices and legal
principles could inform and improve labour law systems in other countries,
particularly India, which was thoroughly analysed in the research project. This paper
helped in structuring the skeleton of the research project.

2. E. P. Kelsall, The Decline of Conciliation in Industrial Relations, 31 Austl. Q. 58

(1959).

5
 The essay "The Decline of Conciliation in Industrial Relations" by E. P. Kelsall
critiques the Australian arbitration system. It highlights its inefficiencies and the
diminishing role of conciliation and that it has been overshadowed by arbitration. The
author notes that the introduction of compulsory conferences and conciliation
commissioners failed in improving the effectiveness of conciliation. The author
concludes that compulsory arbitration undermines the benefits of conciliation. By
building upon the findings of this article, the research project has utilised the author’s
insights to examine the impact of legislative changes on the effectiveness of
conciliation proceedings.

3. B. R. Patil, Collective Bargaining and Conciliation in India, 12 Indian J. Indus.

Relations 41 (1976).
The journal article "Collective Bargaining and Conciliation in India" by B. R. Patil
examines the effectiveness of collective bargaining and conciliation in resolving
industrial disputes. The author notes that collective bargaining is widely used in
various sectors by both employers and trade unions. The author discusses that
conciliation plays a role in the extension of collective bargaining and in the necessary
processes. The author notes that collective agreements get turned into legally binding
agreements or settlements through conciliation proceedings. The author notes that
larger establishments tend to rely more on collective bargaining compared to smaller
ones and that trade unions affiliated with certain federations are more likely to engage
in converting agreements to settlements. The paper notes that the lack of legal
recognition for collective agreements under the statute limits its effectiveness and
calls for reforms. By building upon these findings, this project has explored the
evolution of industrial relations in India.

4. Vish S. Subba Rao, "Conciliation" Under the Industrial Disputes Act 1947:
Should It Necessarily Remain "A Fifth Wheel to the Coach"?, 29 J. Indian L.
Inst. 236 (1987).
The article titled "Conciliation" Under the Industrial Disputes Act 1947: Should It
Necessarily Remain "A Fifth Wheel to the Coach" by Vish S. Subba Rao discusses
the role and effectiveness of conciliation in resolving industrial disputes in India. The
author notes that the current conciliation machinery under the Industrial Disputes Act,
1947 are inefficient. The paper argues that conciliation should be a vital process

6
 instead of a mere hurdle in the procedure. The author notes that enthusiastic
participation of both parties and well-trained conciliators increase the effectiveness of
the process. The author says that more robust provisions in the conciliation
framework and enthusiastic commitment from all parties will remove the status of a
“fifth wheel to the coach” from conciliation. By exploring the effectiveness of the
conciliation process and examining the impact of legislative reforms, the paper aids in
establishing a clear theoretical understanding of the inefficiencies in the legal
framework and has helped in formulating the suggestions.

5. Debi S. Saini, Failure of Conciliation: Perceptions and Realities, 28 Indian J.

Indus. Rel. 105 (1992).
The article "Failure of Conciliation: Perceptions and Realities" by Debi S. Saini
examines the inadequacies of the process of conciliation in India. The author explains
that the distrust between the parties, fear of failure and extreme demands do not
explain the inadequacy. The author argues that structural and cultural framework
significantly contribute. The author conducted a fieldwork in the Faridabad Industrial
Complex and analysed 33 disputes to gather data. The author’s findings indicate that
unfair labour practices and lack of commitment from Conciliation officers contribute
to the weakening of the process. The paper suggests that the existing framework tends
to favour the management and calls for systemic restructuring. This paper helped in
understanding the structural and cultural factors that contribute to the failure of
conciliation, which aided in recommending improvements.

Statement of the Problem

This study examines the effectiveness of conciliation in resolving labour disputes in
India and Australia, aiming to compare the processes, outcomes, and impacts in each country.
It seeks to identify strengths and weaknesses to improve labour dispute resolution in both
contexts.

Research Objectives
1. To examine the process of conciliation as a labour dispute resolution mechanism in
India and Australia.
2. To examine the role of the State in the process of conciliation in India and Australia.

7
 3. To assess the effectiveness of conciliation as a labour dispute resolution mechanism in
India and Australia.

Research Questions
1. What are the differences and similarities in the institutional framework of conciliation
in India and Australia?
2. What are the differences and similarities in the procedural steps involved in the
process of conciliation in India and Australia?
3. What is the effectiveness of conciliation as a labour dispute resolution mechanism in
India and Australia?

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CHAPTER 1: INTRODUCTION TO THE PROJECT

Conciliation is an alternate dispute resolution mechanism in which a neutral third

party participates between the employees and the management1. Conciliation attempts to
bring them together to resolve their differences. Conciliation is generally taken up as a
voluntary and cooperative approach to resolve labour disputes. The primary objective of
conciliation is to protect industrial harmony, peace, and stability. It works to prevent severe
industrial disputes such as strikes or lockouts. It encourages the parties to reach an agreement
that is acceptable to both parties. This ensures that the relationship between the two parties is
preserved. Conciliation makes resolving the dispute more co-operational and less
confrontational.
Conciliation also provides a speedy, flexible, cost effective, and informal way to
resolve the dispute. This ensures that the focus of the process is on resolving the dispute
rather than abiding to procedure and reduces the financial burdens on the parties2. Parties may
choose to opt for conciliation due to a lot of reasons. Conciliation avoids litigation.
Therefore, the parties need not spend too much time or money during the process. It is also a
highly confidential process. The decision taken in the conciliation process is an outcome over
which the parties have control. This is unlike arbitration or litigation, where the judge or the
arbitrator takes the decisions.
Conciliation involves a neutral third party who has expertise in labour relations and
dispute resolution. This helps the parties in reaching a fair agreement3. The government of
India is empowered by section 4 of the Industrial Disputes Act, 1947 to appoint competent
authorities to hold conciliation. The government may appoint as many conciliating officers as
it deems fit after notifying in the official gazette. A conciliation officer may do everything he
deems fit to bring the parties to a fair and amicable settlement for the dispute. These efforts to
investigate must be taken without delay for the purpose of bringing about a settlement.
However, a conciliation officer cannot bind parties. The conciliating officer does not
have the power to force the parties into an agreement of his suggestions even if it was out of
best interest4. He may only make suggestions. A conciliation proceeding can be concluded

1
Cornelius Lucey, Conciliation and Arbitration in Labour Disputes, 29 Studies: An Irish Q. Rev. 497 (1940),
http://www.jstor.org/stable/30098201.
2
B. R. Patil, Collective Bargaining and Conciliation in India, 12 Indian J. Indus. Relations 41 (1976).
3
Ahmedullah Khan, Settlement of Industrial Disputes, 23 J. Indian L. Inst. 446 (1981),
http://www.jstor.org/stable/43950763.
4
Aditya Tripathi & Shailja Shukla, Alternate Dispute Resolution and Its Acceptability in India (2021) (ISBN:
978-81-948082-1-3).

9
only when the conciliation ends in a settlement, ends in a failure, or when it gets referred to
the labour court.
India’s history with conciliation as a labour dispute resolution mechanism is rooted in
the Industrial Dispute Resolution Act, 1947. The Trade Disputes Act, 1929 was one of the
first attempts to provide a structured approach to conciliation. The Industrial Disputes Act
established a formal conciliation process. It mandated the appointment of conciliation officers
to mediate the disputes. After India’s independence marked further refinement in the process
of conciliation. The act went through several amendments to reduce the number of strikes and
lockouts. The act made them legal only under specific conditions. Additionally, India has a
collective bargaining system. Collective bargaining is a negotiation process between
employers and unionised groups (such as the trade unions) on the terms of employment such
as working hours, wages and working conditions5. It aims to reach rules to govern the
employers and the employees which are mutually-agreed upon.
Despite India having a conciliation framework, the process of conciliation is still
ineffective. Case studies suggest that a large fraction of disputes remain unresolved in the
conciliation stage6. This is often owing to the attitudes of the parties involved in the process
and the perceived ineffectiveness of the conciliator. Another factor that has been influencing
the conciliation process is the role of the State. In recent years, reforms have made the
conciliation process more effective. This is due to better trained conciliators, autonomous
conciliation bodies that have been established, and legal reforms.
Australia’s history with conciliation as a labour dispute resolution evolves from the
early legislative attempts. They aimed to provide a structured system that worked for
domestic purposes and adhered to the international quality standards. The South Australian
Conciliation Act, 1894 was the first legislative attempt at addressing labour issues. However,
owing to the prematurity of the concept, it largely failed and parties pushed to arbitration
instead.7
Conciliation was a vital tool to protect peace until the mid-twentieth century. The
compulsory conferences to conciliate were viewed as formalities that lead to arbitration
instead of an effective resolution. Post-World War - II, conciliation was attempted to be
restored by streamlining the process and reducing the formalism8. However, these efforts
5
B. R. Patil, Collective Bargaining and Conciliation in India, 12 Indian J. Indus. Relations 41 (1976)
6
Vish S. Subba Rao, "Conciliation" Under the Industrial Disputes Act 1947: Should It Necessarily Remain "A
Fifth Wheel to the Coach"?, 29 J. Indian L. Inst. 236 (1987).
7
E. P. Kelsall, The Decline of Conciliation in Industrial Relations, 31 Austl. Q. 58 (1959).
8
Gregory S. Kealey & Greg Patmore, Comparative Labour History: Australia and Canada, 71 Labour History 1
(1996).

10
failed. By the latter half of the twentieth century, it was evident that the usage of conciliation
as an alternative dispute resolution mechanism was declining. Australia has an individualistic
approach and emphasises on personal contracts and individual negotiations between
employers and the employees.9 This system prioritises efficiency and speedy resolution.
The countries India and Australia have been chosen for this study because of a
multitude of reasons. Both countries operate under the common law system. However, they
have distinct legal frameworks. India’s system emphasises the intervention of the state while
Australia’s system utilises an institution. India’s labour relations have a strong union
presence. This makes conciliation crucial to prevent strikes. However, Australia has
structured labour relations. This implies that conciliation might be applied differently. India’s
mandatory conciliation is in contrast with Australia’s voluntary process. India and Australia
also have different cultures in labour relations. India has a collective-bargaining culture while
Australia has an individualistic approach.

CHAPTER 2: THE INSTITUTIONAL FRAMEWORK OF

CONCILIATION IN INDIA AND AUSTRALIA

Institutional Framework of Conciliation in India

Conciliation can be either mandatory or voluntary. In mandatory conciliation, the

parties are required by law to engage in it. This is done before initiating arbitration or
litigation processes. Parties who undergo mandatory conciliation may view the process as a
formality instead of an effective mode of resolution. In voluntary conciliation, as the name
suggests, the parties choose to engage in conciliation voluntarily without any legal mandate
to do so. Therefore, both the parties are eager in engaging in the process and generally, the
conciliation succeeds10. In India, disputes regarding public utility services need to undergo
mandatory conciliation according to section 22 of the Industrial Disputes Act. All other
parties are suggested to go through conciliation however, it is not a legal mandate.
The State appoints the conciliating officer in India according to section 4 of the
Industrial Disputes Act. The state has the power to establish the conciliating machinery
including the appointment of the Conciliating Officer (CO). The CO mediates the disputes
among the parties. The appropriate government has the power of appointment of the officers

9
Lloyd Ross, Recent Developments in Australian Industrial Relations, 2 Indus. & Lab. Rel. Rev. 98 (1948),
https://doi.org/10.2307/2519260.
10
B. R. Patil, Collective Bargaining and Conciliation in India, 12 Indian J. Indus. Relations 41 (1976).

11
to ensure impartiality and efficiency. The COs investigate the disputes and promote
settlements. The COs may compel the parties to attend and examine them under oath similar
to the powers of the civil court. To further enhance the mediation process, the government
may form the Board of Conciliation which will comprise representatives from both the
employers and employees11. The State aims to promote a harmonious relationship between
labour and the management, promote industrial peace, and reduce the burden of the litigation
process. It attempts to do so by appointing a qualified and impartial body to maintain the
stability in the industrial relations.
The State may refer an industrial dispute to engage in conciliation if the State is of the
opinion that it is required. This is given in section 10 of the Act. The circumstances under
which the state may refer the dispute are-
1. When there is an existence or a reasonable apprehension of a dispute.
2. When the dispute is related to a public utility service. This is also mentioned
in section 22 and under section 10(1), proviso.
3. When the issue is of national importance as stated under section 10(1A)
4. When there is a majority representation in the application for reference as
provided under section 10(2)
5. When the consequences of the dispute are serious
Conciliation is generally employed for disputes between the employer and the
employees and they generally pertain to issues on employment, working conditions, wages,
etc.12 Common types of disputes that may require conciliation include-
1. Disputes on wages, that is, demands for higher wages or bonuses.
2. Issues related to working conditions such as the compliance with safety
standards and work hours.
3. Disputes on employment like layoffs, dismissals and retrenchments
4. Collective bargaining agreements disputes
5. Workplace practices or policies grievances
The conciliation board and the conciliation officer play a vital role in the process of
conciliation. The conciliation officer facilitates the conciliation process and helps both parties
reach an agreement that is mutually acceptable. The settlements reached during the
conciliation process with the help of the CO and the Conciliation Board are binding on both

11
Aditya Tripathi & Shailja Shukla, Alternate Dispute Resolution and Its Acceptability in India (2021) (ISBN:
978-81-948082-1-3).
12
B. R. Patil, Collective Bargaining and Conciliation in India, 12 Indian J. Indus. Relations 41 (1976).

12
parties13. However, neither of them have a binding power over the parties. The Conciliation
Board provides authority to the conciliation proceedings, making it a vital component. These
two bodies prevent industrial unrest. Intervention from these two bodies ensures that the
resolutions are reached quicker, and more efficiently. Finally, the conciliation process in India
also promotes collective bargaining and encourages parties to establish long-term
relationships.

Institutional Framework of Conciliation in Australia

The conciliation process in Australia is mandatory as per the Industrial Relations Act,
1996. According to section 133, the parties must first attempt to achieve resolution through
conciliation before proceeding with arbitration or litigation. The State mandates that the
parties try to conciliate before proceeding to arbitrate. According to section 134 of the Act,
the State appoints a conciliator to ensure that the industrial relations framework runs
efficiently. The conciliation commissioners have the power to intervene in the industrial
disputes14. They facilitate negotiations between disputing parties. They aim to resolve
conflicts before they develop into strikes or arbitration. The State provides the legal
framework and the authority for the proceedings. This ensures that conciliators are equipped
enough to handle disputes.
According to section 130(1), any party to the dispute may notify the Commission for
the purpose of deriving a resolution. The following parties can refer the dispute-
1. Employer or employees of an industrial organisation
2. An employer who is likely to be affected by the dispute
3. A person who is or is likely to be the subject of a secondary boycott in
connection with the dispute
4. A State peak council
The Commission may also act on its own and take up a dispute on its own as stated in
section 130(2) of the Act. The Commission must ensure that the dispute resolution
procedures mentioned in the Industrial Instrument have been followed reasonably before
engaging in conciliation15. This is as per section 131 of the Act. The Commission will

13
Ahmedullah Khan, Settlement of Industrial Disputes, 23 J. Indian L. Inst. 446 (1981),
http://www.jstor.org/stable/43950763.
14
Lloyd Ross, Recent Developments in Australian Industrial Relations, 2 Indus. & Lab. Rel. Rev. 98 (1948),
https://doi.org/10.2307/2519260
15
Arjun P. Aggarwal, Conciliation and Arbitration of Labour Disputes in Australia, 8 J. Indian L. Inst. 30
(1966).

13
conduct a compulsory conference to facilitate conciliation if all the conditions have been
fulfilled. This is as per section 132.
The disputes that arise between the employees and the employers are taken by the
Commission. These disputes encompass the following issues-
1. Wage and salary issues
2. Disputes on the working conditions
3. Disputes on the terms of the employment
4. Disputes over the recognition of unions and their rights
5. Disputes against disciplinary actions taken by the employers
6. Conflicts in between unions
The Commission and Commissioners play an extremely significant role in the
essential mechanisms for resolutions. These entities serve several critical functions.
Conciliation boards and officers facilitate the conciliation process by being neutral between
the disputing parties. These entities also address grievances and disputes early, thereby
preventing the occurrence of strikes and lockouts. It helps foster a cooperative industrial
environment. These entities provide expertise to the disputing parties without being impartial.
This leads to more amicable resolutions and effective mediation. These bodies ensure that the
process of conciliation is informal and flexible. This improves the accessibility of
conciliation to everybody, even if they are not well-read. The Commission takes up many
disputes every year. However, the historical reports show that the annual number of
compulsory conferences did not increase and the number of successful resolutions have
decreased16. This implies that the people do not value conciliation as an alternate dispute
resolution mechanism and only view it as a formality that leads to other resolution
mechanisms.

Comparison of the Institutional Framework of Conciliation in India and

Australia

The institutional framework of India and Australia differ in several aspects even though they
share the same objectives. In India, conciliation can be either mandatory or voluntary. It’s
mandatory only for public utility disputes. However, in Australia, conciliation is always
mandatory. In India, conciliation is an effective tool for industrial peace even though it is not
mandatory. However, in Australia, conciliation is often just viewed as a formality even

16
E. P. Kelsall, The Decline of Conciliation in Industrial Relations, 31 Austl. Q. 58 (1959).

14
though it is mandatory. This could be owing to the nature of industrial relations that India and
Australia have. India has a collective bargain system while Australia has a more
individualistic approach. Both countries use conciliation as a tool to address disputes between
employers and the employees.

CHAPTER 3: PROCEDURAL STEPS IN THE CONCILIATION

PROCESS: A COMPARISON OF INDIA AND AUSTRALIA

Procedural Steps Involved in Conciliation in India

The conciliation process starts with the initiation of conciliation. It starts when an
industrial dispute is apprehended or it already exists. According to section 4 of the Industrial
Disputes Act, 1947, the government will appoint the officers to facilitate the process. Then
the notice is sent to the disputing parties once the CO receives information about the dispute.
The notice informs the parties about their obligation to attend the conciliation proceedings as
per section 12(1).
The conciliation officer holds the proceedings in the prescribed way. The conciliation
officer must investigate all matters which are relevant to the dispute and especially those
affecting its merits. According to section 12(2) the CO has the discretion to determine the
procedure to be followed. This may include meetings or gathering evidence. The CO also
investigates the circumstances and facts surrounding the dispute. The CO has power, akin to
that of a judge, to hear and interview witnesses, understand the accounts of both parties and
summon witnesses and parties17. However, the COs main role is to mediate and promote a
fair settlement.
If a settlement is reached, the CO prepares a memorandum of the settlement, which
must be signed by the parties involved in the dispute. This must be submitted to the
appropriate government according to section 12(3) of the Act. Then the CO sends a report to
the government which also includes recommendations for future conduct and details the
settlement that was agreed upon. If a settlement is not reached, the CO needs to compile a
report on the steps taken during the proceedings, the facts confirmed and the reason a
settlement could not be reached and it is submitted to the government18. The government

17
Aditya Tripathi & Shailja Shukla, Alternate Dispute Resolution and Its Acceptability in India (2021) (ISBN:
978-81-948082-1-3).
18
B. R. Patil, Collective Bargaining and Conciliation in India, 12 Indian J. Indus. Relations 41 (1976).

15
refers the dispute to the Labour Court, Tribunals, or National Tribunal for Adjudication as
mentioned in section 10.
The CO must submit the report within a specified time, generally within fourteen days
of the commencement of the proceedings. This is given in section 12(6) of the Act. This
period may be extended if all the parties agreed to it. The confidentiality of the proceedings is
maintained throughout especially regarding the information obtained during the proceedings
as given in section 21. Finally, if a settlement is reached, the outcome of the conciliation
process is binding on all the parties. If the conciliation fails, the parties can take the dispute
up further and seek other legal remedies.

Procedural Steps Involved in Conciliation in Australia

When a person eligible to notify the Commission under section 130(1) of the
Industrial Relations Act, 1996, does so then the process of conciliation begins. The
Commission may also decide to take up a dispute on its own without notifications from any
person as stated under Section 130(2). The Commission must ensure that relevant dispute
resolution procedures of an industrial instrument have been followed before taking up the
dispute.19 This is only examined to a reasonable extent. This is because of section 131, which
states that the internal dispute mechanisms need to be exhausted before involving the
Commission.
Once the Commission takes up the dispute, it will decide to conduct a compulsory
conference as per section 132 of the Act. The Commission attempts to facilitate structured
discussion in this conference. The Commission is mandated by section 134(1) that it must do
everything in its power to help the parties settle at a mutually-agreed resolution. The
Commission may also make recommendations or provide directions to the parties during the
process. According to section 134(2), there may not be any penalties for failure of
compliance from the parties.
Section 134(4) of the Act gives the criteria for good faith. The Commission must
ensure that the parties are acting on good faith. According to the section, it is assessed based
on attendance at meetings, transparency of information and compliance. If the Commission
finds that good faith has not been observed, then it may recommend further negotiations20.
The Commission will issue a certificate of attempted conciliation if the dispute is not

19
E. P. Kelsall, The Decline of Conciliation in Industrial Relations, 31 Austl. Q. 58 (1959).
20
Lloyd Ross, Recent Developments in Australian Industrial Relations, 2 Indus. & Lab. Rel. Rev. 98 (1948),
https://doi.org/10.2307/2519260.

16
resolved as required by section 135(2). The certificate confirms that reasonable attempts have
been made to conciliate. This certificate allows the parties to proceed further with arbitration,
where the Commission makes binding decisions as given in section 135(1).

Comparison of the Procedural Steps Involved in Conciliation in India and

Australia

In India, the conciliation process starts with the apprehension of or existing dispute.
Then the government will appoint a Conciliation Officer. However, in Australia, the process
begins with an interested party notifying the Industrial Relations Commission or when the
Commission takes up a dispute on its own. The Commission needs to ensure that the parties
have exhausted all internal dispute resolution mechanisms. However, India has no such
provision. In India, the CO has the right to determine the procedure that needs to take place.
However, in Australia the Commission follows the already present legal frameworks and
convenes a conference. In Australia, the Commission issues a certificate of attempted
conciliation, which is required to proceed with Arbitration. However, India does not provide
any certificates upon failure of resolution. The dispute is referred to the government by the
CO and the government refers the dispute elsewhere. Here, we can see that the State plays an
active role in the process. However, in Australia, the State stays out of the process. This
analysis highlights how India and Australia differ in the intricate details of the process even
though the overall procedure is similar to each other.

CHAPTER 4: ASSESSMENT OF THE EFFECTIVENESS OF

CONCILIATION IN INDIA AND AUSTRALIA

The Effectiveness of Conciliation in India

From the previous chapters, it can be understood that Conciliation plays an important
role in the resolution of labour disputes in both India and Australia. In the case of India, the
process of conciliation is informal in nature and facilitation of dialogue between the parties
involved in the dispute is the central aim. Furthermore, the conciliation officer is tasked with
the mediation process, clarification of issues to the interested parties and to propose solutions
that are acceptable to both parties. The importance of conciliation in the resolution of labour
disputes is further strengthened in the case of Tata Iron and Steel Company, Ltd. v. Its
Workmen And Ors. (1966). Where the court had authorised the labour courts to take a

17
decision regarding the legality of lockouts and strikes, this illustrates the vitality of the
conciliation process in dispute resolution.
In the case of DP Sharaf v Union of India21, key issues regarding conciliation in coal
mining disputes under the Industrial Disputes Act, 1947 are addressed. The appellant
challenged the legitimacy of the Joint Bipartite Committee for the Coal Industry (JBCCI) - IX
and the National Coal Wage Agreement - VIII. The appellant claimed that they were formed
without worker representation. This violated the Act’s provisions. He argued that these bodies
were established arbitrarily without any registered unions. The court upheld the validity of
JBCCI - IX. The judgement stated that conciliation proceedings’ srettlements were binding
on all parties, as long as the worker’s representatives are recognised.
In the case of Tata Iron and Steel Company Ltd. v. Its Workmen and Ors.22, the court
passed a ruling that recognized the jurisdiction of the labour courts in deciding the legality of
strikes and lockouts.The company altered the rest days without regard to the provisions of the
Industrial Disputes Act. Such an alteration requires proper notice consultation. The court
ruled that the lockout was illegal. This goes on to show that the conciliation process is a
preliminary step towards the resolution in disputes. This decision provided clarity regarding
the framework set by the Industrial disputes act which suggests the use of conciliation
process in dispute resolution.
Standard Coal Company Limited vs. S.P Varma and Ors23: The court in this case was
of the opinion that the government had all the authority to refer disputes to a tribunal for the
adjudication process to take place, which illustrates the role of conciliation in the resolution
of disputes before their escalation adjudication. The workers claimed compensation following
the closure of Standard Colliery. The conciliation efforts were contested because there was no
representation of the workers. The court held that effective conciliation requires genuine
representation.

The Effectiveness of Conciliation in Australia

However, the Australian conciliation process is in contrast to the Indian approach to

conciliation. The FWC’s facilitation of the conciliation process is more structured and formal,
wherein conciliation conferences are held. The FWC plays the role of a guide and has to
provide suggestions which are of help to both parties in achieving a mutually beneficial

21
WA No. 321 of 2021
22
(1967) ILLJ 581 PAT
23
AIR 1952 PATNA 56

18
agreement. The case of Australian Workers Union v. BHP Coal Pty Ltd (2014) is essential in
demonstrating the effectiveness of the conciliation process in dispute resolution. In the
aforementioned case, The FWC facilitated negotiation between the Union and the Employer
and helped them achieve a successful agreement.
Australian Workers Union v. BHP Coal pty Ltd: This dispute was a case of wage
negotiations, The FWC played its part in facilitating the conciliation process between the
union and the employer, The interjection by the FWC was paramount to the success of the
conciliation process between the parties involved in the case and this case demonstrated the
vital role played by FWC in maintaining the harmony in the industrial sector through the
conciliation process.
The case of Construction, Forestry, Maritime, Mining and Energy Union v. BHP
Billiton Iron Ore Pty Ltd24 is about that time when FWC had played a very important role in
the mediation of a dispute between the labour union and the employer with regard to the work
place conditions. The FWC’s facilitation of the conciliation process led to the success in
reaching an amicable outcome for both parties, this case highlights the effectiveness of the
conciliation process.

Comparison of the Effectiveness of Conciliation in India and Australia

Conciliation processes in India and Australia differ in approach and effectiveness. In

Tata Iron and Steel Company Ltd. v. Its Workmen and Ors, the court emphasised the
conciliation’s roles in resolving disputes before escalating to adjudication. Similarly, in DP
Sharaf v Union of India, the legitimacy of the JBCCI was challenged. The court upheld its
validity due to the binding nature of conciliation settlements. These cases imply that the
conciliation process in India is highly informal. However, in Australia, the process is
structured and formal. In the case of Australian Workers Union v. BHP Coal pty Ltd, the Fair
Work Commission got involved in the process of conciliation. This highly facilitated the
wage negotiations. In the case of Construction, Forestry, Maritime, Mining and Energy
Union v. BHP Billiton Iron Ore Pty Ltd, the mediation efforts from the FWC led to an
amicable resolution regarding workplace conditions. This analysis suggests that Australia’s
more formal method might lead to more consistent outcomes.

24
(2014) 253 CLR 243

19
THE CONCLUSION OF THE PROJECT

Conciliation serves as an essential alternative dispute resolution mechanism. Fostering

a peaceful and harmonious industrial relation and prevention of lockouts and strikes is its
aim. Conciliation can either be of voluntary or mandatory nature. It is a resolution based on
mutual agreements, good will, and cooperation. It provides a speedy, flexible, cost effective,
and informal way to resolve the dispute. It allows the party to communicate with each other
in a structural way and is facilitated by a neutral third party.
The institutional framework of India and Australia differ in several aspects even
though they share the same objectives. In India, conciliation can be either mandatory or
voluntary. However, in Australia, conciliation is always mandatory. India has a collective
bargain system while Australia has a more individualistic approach. In India the State plays
an active role in the conciliation process while Australia’s State does not play an active role
in the process. This shows that India and Australia have minor differences in the institutional
framework.
In India, the conciliation process starts with the apprehension of or existing dispute.
However, in Australia, the process begins with an interested party notifying the Industrial
Relations Commission or when the Commission takes up a dispute on its own. In India, the
CO has the right to determine the procedure that needs to take place. However, in Australia
the Commission follows the already present legal frameworks and convenes a conference. In
Australia, the Commission issues a certificate of attempted conciliation, which is required to
proceed with Arbitration. However, India does not provide any certificates upon failure of
resolution. This shows that there are minor and intricate differences in the procedural aspects
of the conciliation in India and Australia. However, the general process is similar.
Conciliation processes in India and Australia differ in approach and effectiveness. In
India, the court emphasised the conciliation’s roles in resolving disputes before escalating to
adjudication and the binding nature of conciliation settlements. These cases imply that the
conciliation process in India is highly informal. However, in Australia, the process is
structured and formal. In Australia, the Fair Work Commission got involved in the process of
conciliation. This highly facilitated the wage negotiations and the mediation efforts from the
FWC led to an amicable resolution regarding workplace conditions. This analysis suggests
that Australia’s more formal method might lead to more consistent outcomes.
However, the findings of the analysis suggests that the process of conciliation might
be more efficient in India than Australia. In India, owing to the informal nature the cases are

20
highly inconsistent. However, this inconsistency suggests that the parties in dispute require
different resolutions in each case and are not consistent. The formal nature of Australia’s
procedure makes it inefficient and also provides a one-size-fits-all resolution. This is bound
to negatively affect the satisfaction levels of the parties. This is evident in how there are
hardly any conciliation cases pertaining to coal mines after the 1950s. This is in correlation
with the decline of the number of conciliation cases in Australia25.
Moreover, the voluntary nature and flexible decision making by the Conciliation
Officers adds in the amicable touch to the cases in India. Conciliation proceedings are
inherently supposed to be amicable since the parties want to come to a mutual-agreement.
This is absent in the formal structure of Australia, which kills the objective. The public views
the process of conciliation as a formality that needs to be passed through instead of an
effective form of dispute resolution mechanism. Additionally, active participation of the
government in India adds credibility to the body, since the government is chosen by the
people, for the people and is made of the people. The independent body, Dispute Resolution
Commission, of Australia sacrifices its credibility for higher efficiency.
The above conclusions made through the analysis of the institutional framework,
procedural aspects and judicial interpretations suggests that India is more efficient than
Australia in its application of conciliation as a dispute resolution mechanism.

25
E. P. Kelsall, The Decline of Conciliation in Industrial Relations, 31 Austl. Q. 58 (1959).

21
 BIBLIOGRAPHY

1. Lloyd Ross, Recent Developments in Australian Industrial Relations, 2 Indus. & Lab.
Rel. Rev. 98 (1948), https://doi.org/10.2307/2519260.
2. Gregory S. Kealey & Greg Patmore, Comparative Labour History: Australia and
Canada, 71 Labour History 1 (1996).
3. E. P. Kelsall, The Decline of Conciliation in Industrial Relations, 31 Austl. Q. 58
(1959).
4. Arjun P. Aggarwal, Conciliation and Arbitration of Labour Disputes in Australia, 8 J.
Indian L. Inst. 30 (1966).
5. Cornelius Lucey, Conciliation and Arbitration in Labour Disputes, 29 Studies: An
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Necessarily Remain "A Fifth Wheel to the Coach"?, 29 J. Indian L. Inst. 236 (1987).
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Franceschini & Nicholas Loubere eds., ANU Press 2018),
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 14. Vincenzo Senatore & Emanuele Prisco, The Alternative Disputes Resolution System
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Labour History 44 (1989), https://doi.org/10.2307/27508953.

List of Cases
1. Tata Iron And Steel Company, Ltd. vs Its Workmen And Ors. (1967) ILLJ 581 PAT
2. Standard Coal Company Limited vs S.P. Varma And Ors. AIR 1952 PATNA 56
3. D.P. Sharaf vs Union Of India WA No. 321 of 2021
4. Australian Workers Union v. BHP Coal pty Ltd
5. Construction, Forestry, Maritime, Mining and Energy Union v. BHP Billiton Iron Ore
Pty Ltd (2014) 253 CLR 243

23