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INTERNATIONAL LABOUR OFFICE

LABOUR COURTS
IN LATIN AMERICA
Report submitted by the International Labour Office to the Fourth
Conference of American States Members of the International Labour
Organisation (Montevideo, April 1949) on the Fourth Item on the
Agenda : The Adjustment of Labour Disputes

GENEVA
1949

STUDIES AND REPORTS
New Series, No. 13

PUBLISHED

BY THE INTERNATIONAL LABOUR OFFICE

Geneva, Switzerland

Published in t h e United Kingdom for t h e INTERNATIONAL LABOUR O F F I C E

by Staples Press Limited, London

Distributed in the United States by the INTERNATIONAL LABOUR OFFICE

Washington Branch, 1826 Jefferson Place, Washington 6, D.C.

P R I N T E D BY " IMPRIMERIES POPULAIRES "
GENEVA, SWITZERLAND

CONTENTS
Page
1

INTBODUCTION

CHAPTEB I : The Different Methods of Adjustment
Disputes
The System in the United Kingdom
The French Probiviral Courts
The Swedish Labour Court
The German Labour Courts

of Legal Labour
5
5
6
7
7

CHAPTEB I I : Grievance Procedure in the United States and Canada

CHAPTEB I I I : Settlement of Legal Disputes in Latin-American
tries

Coun-

Survey of Existing Systems of Labour Courts
Labour Courts for both Legal and Economic Disputes . . . .
Labour Courts for Legal Disputes
Jurisdiction as regards Individual and/or Collective Legal Disputes
Extent to which Existing Labour Courts Constitute Complete
Judicial Systems
Courts of One or More Instances
Systems Consisting of Courts of One Instance Only . . . .
Systems Consisting of Courts of First and Second (or Final)
Instance
Systems Consisting of Courts of First, Second and Third
Instance
Territorial Extent of Labour Court Systems
Extent to which Industry as a Whole is Covered by the Labour
Courts
Agriculture
Maritime Industry
Transport Industry
Extent to which All Categories of Employees are Covered b y
the Labour Courts
Public Officials and Employees
Wage-earning and Salaried Employees
Jurisdiction of the Labour Courts with regard to Certain
Special Categories of Workers
Organisation of Labour Courts
The Legal Position of Labour Courts
Composition of Labour Courts : the Principle of Tripartite
Representation
Courts of Sole or First Instance
Courts of Second or Final Instance .

18
19
20
20
21
21
21
22
22
23
25
26
26
26
27
27
28
29
30
31
34
34
35

CONTENTS
Page

Qualifications and Methods of Appointment of Members of Labour
Courts
"
Qualifications of Labour Judges
Methods of Appointment of Labour Judges
Qualifications of Employers' and Workers' Members of Tripartite Labour Courts
Methods of Appointment of Employers' and Workers' Members
of Labour Courts
Competence of the Labour Courts
Arbitration Machinery Replacing the Labour Courts
Matters within the Competence of Labour Courts
Competence with regard to Individual Legal Disputes . . .
Competence with regard to Collective Legal Disputes . . . .
Competence in Certain Special Matters
Penal Jurisdiction in Certain Cases
Functioning of the Labour Courts
Parties in Cases before the Labour Courts
Capacity in which Persons may Sue and be Sued before the
Labour Courts
The Role of Industrial Associations
The Role of the State
Guarantees of the Exercise of the Workers' Right to Avail
Themselves of the Labour Courts
Procedure before the Labour Courts
General Considerations Governing Labour Court Procedure
Institution of Proceedings
Preliminary Hearing and Conciliation
The Hearing after Conciliation has Failed
Judgment
Appeals
Appeals from the Labour Court of First Instance
Procedure where no Appeal is Lodged
Right of Appeal from Labour Courts of Intermediate Jurisdiction
Right of Appeal from Superior Labour Courts in Certain
Cases
Procedure in Labour Courts of Appeal

36
36
38
40
41
43
44
45
46
49
61
51
52
52
52
53
55
57
59
59
60
61
62
66
67
67
69
69
70
71

Costs

Enforcement of Decisions

CHAPTER IV : Conclusions

Methods of Settlement of Legal Labour Disputes
Labour Courts
Organisation of Labour Courts
Independence of Labour Courts
Composition of Labour Courts
Organisation of the Labour Courts on a Geographical and Industrial Basis
Hierarchy of Labour Courts

77
79
79
80
81
82
83

CONTENTS

V
Page

Competence of Labour Courts
Functioning of Labour Courts
The Parties and their Representation
Principles of Procedure
Simplification of the Procedure
Shortening of the Procedure
Gratuitous Procedure
Discretionary Powers of the Labour Judge
Judgments and their Enforcement
Guarantees
CHAPTER V : Proposed Text
Proposed Resolution concerning Labour Courts

84
86
86
88
89
89
89
89
90
91
*

APPENDICES

I. Resolutions Adopted by the Third Conference of American States
Members of the International Labour Organisation (Mexico
City, April 1946)
I I . Resolution concerning Freedom of Association and Protection
of the Right to Organise and to Bargain Collectively, Adopted by
the International Labour Conference at its 30th Session (Geneva,
1947)
I I I . Convention (No. 87) concerning Freedom of Association and
Protection of the Right to Organise, Adopted by the International
Labour Conference at its 31st Session (San Francisco, 1948)

92
95
99

105

108

INTRODUCTION
At its 103rd Session, the Governing Body decided to place
the question of "the adjustment of labour disputes" on the agenda
of the Fourth Conference of American States Members of the International Labour Organisation, which is to meet in Montevideo
on 28 April 1949. The expression "labour disputes" actually
includes different types of disputes which are fundamentally
unlike each other in character and, therefore, call for different
methods of settlement. The Governing Body certainly had no
intention of bringing before the Fourth Conference of American
States a problem in broad general terms, certain aspects of which had
already been considered by the Third Conference of American States
(Mexico City, April 1946)1 and, subsequently, by the International
Labour Conference (Geneva, 1947, and San Francisco, 1948).
In order to delimit clearly the scope of the discussions of the
Montevideo Conference, therefore, it is important to define,
' although very briefly, the different types of labour dispute and the
methods by which they are adjusted.
It may be recalled that the majority of national legal systems
prescribe particular methods of settlement in respect of the three
following principal kinds of dispute : (1) disputes regarding union
recognition, (2) economic disputes, and (3) legal disputes.
DISPUTES REGARDING UNION RECOGNITION

A dispute regarding union recognition arises where an employer
(or an employers' organisation) refuses to negotiate with a workers'
organisation on the pretext that he maintains relations only with
the individual wage-earners employed by him.
It will be seen that such a dispute does not relate to the actual
substance of a possible agreement, but to a preliminary question
—whether or not the union should be recognised as the accredited
spokesman for the workers.
1
Cf. Third Conference of American States Members of the International
Labour Organisation, Mexico City, April 1946, Report IV : Industrial
Relations (Montreal, I.L.O., 1946).

LABOUR COURTS IN LATIN AMERICA

In the absence of mutual recognition by agreement, legislatures
have intervened in order to prevent such disputes by according legal
protection to the right to organise and by imposing on the parties
an obligation to undertake collective negotiation in good faith.
I t may be pointed out, moreover, t h a t the proposed text
concerning the application of the principles of the right to organise
and to bargain collectively, which is to come before the International
Labour Conference at its 32nd Session for second discussion, is
intended to give international ratification to this same principle. 1
ECONOMIC D I S P U T E S

An economic dispute or a dispute regarding interests arises
where the two parties concerned, while mutually recognising each
other, cannot agree as to the terms of a collective agreement which
would determine their relations (wage rates, hours of work and
other conditions of employment).
For the settlement of economic disputes, the different countries
have established conciliation and arbitration procedures to which
the parties may have recourse where direct negotiations have failed.
I n this connection, also, it may be pointed out t h a t the International Labour Conference, at its 32nd Session, will have before
it for first discussion the whole question of the adjustment of
economic labour disputes. 2
LEGAL D I S P U T E S

A legal dispute arises where the parties cannot agree as to the
interpretation or application of a collective agreement which has
already been concluded. Such a dispute is not distinguishable
on juridical grounds from other civil legal disputes, because in
both cases the issue is the interpretation of a formal text which
governs the relations between the parties.
The same criterion also applies to individual disputes which arise
as the result of differences of opinion regarding the interpretation
of individual contracts of employment, works regulations, etc.
1
Cf. International Labour Conference, 32nd Session, Geneva, 1949,
Report IV (1) : Application of the Principles of the Bight to Organise and to
Bargain Collectively (Geneva, I.L.O., 1948); and 31st Session, San Francisco,
1948, Reports V I I I (1) and V I I I (2) : Industrial Belations (Geneva, I.L.O.,
1947, 1948).
2
Cf. International Labour Conference, 31st Session, San Francisco,
1948, Provisional Becord, No. 36.

INTRODUCTION

The position is similar where the dispute concerns the interpretation of labour legislation or established custom.
To sum up, "legal labour dispute" should be taken to mean
any individual or collective dispute which results from differences
of opinion regarding the interpretation or application of regulations
already laid down or of rights already acquired, whatever their
basis may be—individual contract of employment, collective
agreement, legislation or custom.
This report relates exclusively to the problem of the adjustment
of legal labour disputes. The Third Conference of American
States Members of the International Labour Organisation, which
met in Mexico City in April 1946, has already had occasion to
consider both the question of the adjustment of disputes regarding
union recognition and t h a t of the adjustment of economic disputes.
I t was able to perform valuable ground-work, because it has been
possible to utilise, to a considerable degree, the resolutions adopted
at the close of its proceedings ' a s a basis for the preparation of the
Convention concerning freedom of association and of proposed texts
of international regulations concerning the application of the
principles of the right to organise and to bargain collectively,
collective agreements, and conciliation and arbitration. 2
On the other hand, neither the earlier Conferences of the American States Members of the International Labour Organisation nor
the International Labour Conference have hitherto had an opportunity of considering the problem of the adjustment of legal labour
disputes. There can be no doubt t h a t the examination of this
problem a t the Fourth Conference of American States Members
of the International Labour Organisation will usefully prepare the
way for the future consideration of the question at an early session
of the International Labour Conference.

1
Cf. I.L.O. : Official Bulletin, 5 September 1946, Vol. X X I X , No. 2 :
"Third Conference of the American States Members of the International
Labour Organisation (Mexico City, April 1946)", Resolutions VI, VII,
VIII, I X and X .
2
Cf. ibid., 31 August 1948, Vol. X X X I , No. 1 : Convention (No. 87)
concerning freedom of association and the protection of the right to organise (p. 1); Resolution (VII) placing on the agenda of the next general
session of the Conference : (1) the question of the application of the
principles of the right to organise and to bargain collectively; (2) an
item dealing with industrial relations comprising collective agreements,
conciliation and arbitration, and co-operation between public authorities
and employers' and workers' organisations (p. 41).

CHAPTER I

THE DIFFERENT METHODS OF ADJUSTMENT OF LEGAL
LABOUR DISPUTES
At the present day, the majority of countries recognise the
desirability of prescribing special procedures for the settlement
of legal labour disputes, but the methods adopted vary considerably
from country to country. Hence, before examining in detail the
systems in force in the countries of the American Continent, it
would appear useful to analyse very briefly the different methods
of settlement in application in other countries. Such an analysis,
rather than a lengthy theoretical survey, may emphasise more
clearly the salient points of the fundamental problems involved
in the settlement of legal labour disputes. In the following pages
reference will be made to the typical examples afforded by the
methods of settlement in force in the United Kingdom, France,
Sweden and Germany.1
The System in the United Kingdom
Under United Kingdom trade union legislation, collective
agreements may not be directly enforced by legal action. Hence,
disputes as to the interpretation of collective agreements cannot
come before the courts. The parties to collective agreements,
therefore, have themselves in many cases prescribed by contract
the procedure for settling legal disputes. The numerous texts
of collective agreements reveal that a clear distinction is drawn
between economic disputes which arise as to the conclusion, revision
or renewal of an agreement, and legal disputes arising as to the
interpretation or application of the agreement. For the purpose
of settling the latter kind of disputes, collective agreements frequently make provision for the establishment of special machinery
1
For a more detailed survey, cf. I.L.O. : Labour Courts. An international survey of judicial systems for the settlement of disputes (Geneva,
1938).

LABOXJE COTJETS IN LATIN AMERICA

with the function of conciliating and—in the event of the failure
of conciliation—of arbitrating the disputes in question. Most
generally, the parties in disputes of this kind undertake beforehand
to accept the arbitral award as binding. In view of the fact that
in the United Kingdom collective agreements cover a very large
majority of wage-earners, it may be said that most legal disputes
can be settled by this method, based purely on agreement. Similar
systems are in application in most of the other countries whose
legislation does not provide for the settlement of legal disputes.
The French Probiviral Courts
French legislation concerning the probiviral courts affords the
earliest example of a special system of labour courts, but their
competence is limited to the settlement only of individual labour
disputes. The probiviral courts were established by an Act of
1806, but already existed before that date. Their status is now
governed by an Act of 27 March 1907 which has since been amended
on several occasions, particularly in 1924 * and 1932.2
The probiviral courts are special tribunals the principal features
of which may be described as follows :
(1) Probiviral courts are civil courts of first instance. Ordinary
appeals or final appeals on points of law (en cassation) must be
brought before the ordinary courts.
(2) Probiviral courts do not consist of magistrates, but of
employers on the one hand and workers on the other, chosen
respectively by employers' and workers' electoral colleges. Their
structure, therefore, is exclusively bipartite.
(3) Probiviral courts are competent to settle, by conciliation,
or by judgment if conciliation fails, differences which may arise
in relation to a contract of employment. In other words, their
competence is limited to individual legal disputes. They cannot
entertain actions in respect of the interpretation or carrying out of a
collective agreement, or in respect of the application of social
legislation.
However, in the legislation concerning conciliation and arbitration, which was in force from 1936 to 1939 but is at present
1
1.L.O. : Legislative Series, 1924, France 3.
series are indicated by the initials L.S.)
2
L . S . 1932, France 11.

(Future references to the

METHODS OF ADJUSTMENT OF LEGAL LABOUR DISPUTES

suspended, a very clear distinction was made between economic
disputes, on the one hand, and legal disputes, on the other.
Probiviral courts on the French model have been established
in many European countries.
The Swedish Labour Court
In Sweden, the labour court created by an Act of 22 June
1928 1 is competent exclusively in respect of "questions relating
to collective contracts". Its main features are the following :
(1) A single labour court is established which gives final decisions with regard to disputes which are within its competence.
From its decisions, therefore, there is no right of appeal to the
ordinary courts.
(2) The court consists of a chairman and six assessors. The
chairman and two assessors are independent persons. The chairman and one of these assessors must be judges and the other must
be an expert on labour legislation. Of the other four assessors,
two are appointed on the recommendation of the Swedish Employers' Association and two on the recommendation of the
National Federation of Trade Unions.
(3) Unless the parties provide for a reference to arbitration,
the court is competent in respect of any question concerning the
validity, existence, interpretation or application of a collective
agreement.
Similar systems are in application in Denmark and Norway.
The German Labour Courts
The German labour courts are competent in respect of all
legal labour disputes whatever their origin. Established by
an Act of 23 December 1926 2, their status now depends on a
Law of the Control Council for Germany dated 30 March 1946.3
However, the Act of 1926 is still in force in so far as its provisions
are not in conflict with those of the new Law.
The principal features of this system may be summarised as
follows :
1
2
3

L . S . 1928, Sweden 3.
L . S . 1926, G e r m a n y 8.
L . S . 1946, G e r m a n y 2.

LABOUR COURTS IN LATEST AMERICA

(1) Local and appellate labour courts are established throughout
the country. Under the Act of 1926 there was also a Federal
Labour Court which acted as a supreme court for labour matters.
This court no longer functions today.
(2) The labour courts consist of chairmen, who are judges
particularly experienced in labour questions, and assessors, who
are workers and employers selected in equal numbers from lists
of candidates submitted by workers' and employers' organisations
respectively.
(3) The labour courts are competent, to the exclusion of the
ordinary law courts, in respect of all differences arising out of a
collective agreement or out of unlawful actions committed in
connection with a labour dispute (collective disputes), or arising
out of an individual contract of employment or out of unlawful
actions committed in connection with employment (individual
disputes).
Thus, all legal labour disputes, whatever their origin—individual
contract, collective agreement or labour legislation—are within
the competence of the labour courts.
* * •

The conclusions which emerge from this brief survey of the
various methods of settlement may be summed up very broadly
as follows :
1. Employers' and workers' organisations, although opposed
in principle to any kind of compulsory arbitration in respect of
economic disputes, now recognise that legal labour disputes lend
themselves to amicable settlement without resort to economic
pressure. The parties, indeed, often undertake beforehand to
accept the awards made by agencies for settling these disputes
established by collective agreement.
2. In the absence of any satisfactory methods of settlement
prescribed by agreement, or in order to supplement such prescribed
methods, many countries have established special labour court
systems of varying degrees of competence. Legislators have
taken the view that only special labour courts, consisting of judges
who are expert in labour matters and often chosen from among
employers and workers, and who give judgment in accordance with
a procedure which is simplified and made as little burdensome as

METHODS OF ADJUSTMENT OF LEGAL LABOUR DISPUTES

possible, offer satisfactory. guarantees that equitable and speedy
solutions may be reached in labour disputes.
It is for the same reasons that special procedures for the settlement of legal disputes have been established in the majority of
the countries of the American Continent, either on a purely contractual basis, as in the United States and Canada, or in the form of
labour courts, as in most of the Latin-American republics. It
will be seen that these two systems, far from being mutually
exclusive, actually supplement each other.
In the following chapters a survey will be made, first, of the
procedure for settlement provided by agreement in application
in the United States and Canada, and, secondly, of the various
labour court systems established in a number of the Latin-American
republics.

CHAPTER II

GRIEVANCE PROCEDURE IN T H E UNITED STATES
AND CANADA
I n the United States and Canada the national policy for the
conduct of labour-management relations is primarily one of free
collective bargaining. Consequently, these countries, without
prejudice to the existing jurisdiction of the ordinary law courts in
appropriate cases, have adopted the method of dealing with
disputes concerning the application or interpretation of collective
agreements b y regulations agreed upon b y the parties and embodied
in their contracts.
The emphasis on this method is illustrated by the Labor-Management Relations Act, 1947 *, which declares it to be the policy of
the United States t h a t certain controversies arising between
parties to collective agreements may be avoided or minimised by
making available full and adequate governmental facilities for
furnishing assistance to employers and the representatives of their
employees in formulating for inclusion within such agreements
provision (inter alia) for the final adjustment of grievances or
questions regarding the application or interpretation thereof. The
Act therefore provides t h a t final adjustment b y a method agreed
upon by the parties is declared to be the desirable method for
settlement of grievance disputes arising over the application or
interpretation of an existing collective agreement. Hence, the
Federal Mediation and Conciliation Service is directed to make its
conciliation and mediation services available in the settlement of
such disputes only as a last resort and in exceptional cases.
The Act further provides t h a t employers and employees and
their representatives, in any industry affecting commerce, shall,
"whenever a dispute arises over the terms or application of a
collective agreement and a conference is requested by a party or
prospective party thereto, arrange promptly for such a conference
to settle the dispute expeditiously; and, in case such dispute is
1

L.S. 1947, U.S. 2, Sees. 201-211.

GRIEVANCE PROCEDURE IN THE U.S.A. AND CANADA

not settled by conference, participate fully and promptly in such
meetings as may be undertaken by the Service under this Act for
the purpose of aiding in a settlement thereof". Obviously, the
widest application of this provision is in those instances where the
parties themselves have not established a procedure for the settlement of such disputes. Where such a procedure exists the provision has little application, for its scope is covered by the agreed
procedures of the parties, normally referred to as "grievance procedures".
In the United States, the grievance procedure agreed upon
by the parties and embodied in the contract establishes a means
for settling individual and collective disputes concerning the
application or interpretation of the contract through direct negotiation of the parties. These parties are usually the persons most
immediately interested in the observance of their agreements and
the persons best qualified to interpret their clauses. While the
grievance procedure is the formalised basis for carrying on more
or less continuous negotiations within the plant, it is distinct from
collective bargaining in t h a t the latter is the negotiation of the
terms to govern the relationship of the parties and the former aims
a t the settlement of disputes and grievances which arise out of
these terms during the life of the agreement. Frequently, the
grievance procedure provides as a last stage recourse to arbitration.
An enquiry conducted in 1944 1, dealing with 1,254 collective
agreements covering more than two and a half million workers
employed in the fourteen principal industries of the United States,
revealed t h a t on 1 January 1944, 915 of the agreements, covering
83 per cent, of the workers, provided for voluntary arbitration as a
last resort in the settlement of disputes concerning interpretation.
Of this number, 43 provided for establishing a permanent procedure,
while 872 provided for an ad hoc arbitration procedure. I n 40
per cent, of the collective agreements tripartite committees for
regulating disputes were arranged for, and in 36 per cent, a single
arbitrator was to settle the dispute. In many instances the
arbitration facilities of the Conciliation Service were to be utilised
in the arbitration process. 2 The arbitration award was consi1
Third Conference of American States Members of the International
Labour
Organisation, Report IV, op. cit., p . 61.
3
During the year 1946, for example, arbitrators were assigned at the
request of the parties in 808 cases to deal with grievance disputes arising
from interpretation or application of collective agreements (Labor Infor-

[footnote continued overleaf.

LABOUR COURTS IN LATEST AMERICA

dered final and binding in 90 per cent, of the collective
agreements.
Supplementing the 1944 enquiry dealing with the prevelancy of
arbitration clauses as a final stage, a more recent study * examined
the existing procedural arrangements, exclusive of arbitration
clauses, for the adjustment of grievances under employer-union
agreements. The study encompassed 101 plants, most of which
had over 1,000 employees in the bargaining unit, distributed over a
wide geographical area. Plants in each of the principal manufacturing industries as well as several public utilities and one department store were included.
The report found that certain principles appear basic to any
grievance procedure if it is to be effective and foster good labourmanagement relations. These include provisions for a procedure
tending to achieve settlement of the grievance (a) on its merits,
(b) at or near its point of origin, and (c) with the minimum of
delay. The procedure should be designed to facilitate appeals,
where such settlements are not achieved, (a) by clearly defining
the authority and responsibilities of representatives who participate
at each progressive stage of the procedure, (b) by training the
representatives in the use of the procedure, and (c) by limiting the
appeals procedure to genuine grievances. To this end the machinery usually consists of a succession of procedural steps to be used
within certain time limits. Ordinarily, grievances are first taken
by the aggrieved worker or his union to his foreman. If not
satisfactorily adjusted, the grievance becomes the subject of an
appeal by the union, in succession, to high company officials and,
in most cases, to arbitration."
In over two thirds of the plants studied, a three-and-four-step
procedure, excluding arbitration, was found to be the most common ;
six plants had a two-step procedure; twenty plants a five-step
procedure ; and five plants a six-step procedure, the more elaborate
procedure generally appearing in plants which were units of
multi-plant companies.
motion Bulletin, U.S. Department of Labor, Washington, March 1947).
For a statement as to arbitration facilities available at the present time, see
"Statement of Arbitration Functions and Facilities", Federal Mediation and
Conciliation Service, Washington, 17 May 1948.
1
Grievance Procedure under Collective Bargaining, U.S. Department of
Labor,
Bureau of Labor Statistics, Washington, August 1946.
a
A recent survey conducted by a private organisation indicates that
about 85 per cent, of the more than 75,000 collective bargaining contracts
estimated to exist in the United States provide for arbitration as a final
step in the grievance procedure {Labor Relations Reporter, Vol. 22, p . 283,
published by the Bureau of National Affairs, Inc., Washington).

GRIEVANCE PROCEDURE EST THE U.S.A. AND CANADA

While marked variations existed in the type of representation
on both sides, and in the procedure itself, certain common characteristics were noted. On the union side, a committee of in-plant
union representatives was used most frequently at the intermediate
steps ; local outside union representatives generally entered the procedure after the second step ; and international union officials did not
participate until the last step but one. On the company side, management officials of the rank of plant manager usually represented
the company, and in relatively few cases production officials below
the rank of plant manager participated, at the last step but one.
At the last step, exclusive of arbitration, the union was represented by an international official in 70 per cent, of the cases;
the remaining plants, in almost equal proportion, had either a
plant union or local outside representative. Management was
represented at this stage by a company official or executive in
70 per cent, of the cases and by a plant official in the others.
In four fifths of the plants studied, grievances were presented
in writing, and in about half of these cases written grievances were
required from the second step onwards.
In three fifths of the 101 cases, time limits were provided for the
company's answer; about one third of the plants provided time
limits for the union's appeal either at the first step, or after the
company's answer at any stage; special time limits for handling
discharge and discipline complaints were found in over half of the
cases, and fifteen plants had no time limits in connection with
grievance procedure.
Three out of five plants held regularly scheduled meetings to
negotiate appeals in connection with grievances. These meetings,
which were generally scheduled at the last step but one of the
procedure, were usually held weekly during working hours.
Over four fifths of the unions and companies conducted training
programmes in labour relations, but in only five cases did stewards
and foremen receive joint instruction. The training usually
dealt with the provisions of the union agreement and basic union
and company policy.
In four out of five plants management compensated union
representatives for time spent in handling grievances during
working hours. I n about one fifth of the plants, after-hours
grievance activity was compensated by the company. Two
thirds of the firms which compensated for grievance work set no
specific limit on the time so spent, while the remaining third limited
either the amount or type of grievance activity.

LABOTTE COURTS IN LATIN AMEBICA

The report of the study notes t h a t the express provisions of the
grievance procedure are less important than the attitude of the
parties. Where responsible parties have good faith and confidence
in each other, and display a co-operative spirit and mutual respect,
grievances are readily adjusted to the mutual satisfaction of the
parties; where one or more of these elements are missing, poor
relationships result. However, the express provisions of the
particular procedure are a factor in the maintenance of harmonious
relations, for in establishing the procedure to be followed in the
event of a dispute one area of possible disagreement is removed
and thus better relationships are facilitated.
I n the event of a dispute not being adjusted through the
grievance procedure of the agreement, or in cases where provision
is not made for such procedure, the parties are normally free in
appropriate instances to resort to their economic strength and to
seek relief through the ordinary law courts 1 , or through some
specialised governmental facility such as the Mediation Service,
the National Railroad Adjustment Board, or the National Labor
Relations Board. While there are these and other specialised
facilities of an administrative character t h a t are utilised both
locally and nationally in the adjustment of labour matters, and
while some of them do have functions that might be assimilated in
some instances to those of labour courts, labour courts, as such, do
not exist in the United States.
This does not mean, however, t h a t the subject has not been
considered at various times. As recently as 1947, a Bill was
introduced in the Congress to establish eleven United States district
labour courts. Such courts were to have original jurisdiction over
all cases arising out of collective bargaining contracts covering
employees in industries affecting commerce. I n addition, they
were to have jurisdiction over petitions and court reviews provided
for in the National Labor Relations Act, the Fair Labor Standards
Act, and the Railway Labor Act, and in such cases were to have
been empowered to order a new examination of the facts of a case
from the point of view of the application of the law. They were
to have authority to enforce their decisions and were exempt
1
Section 301 of the Labor-Management Relations Act specifically
authorises suits for violation of contracts between an employer and a labour
organisation representing employees in an industry affecting commerce,
or between labour organisations. For an analysis of other legal enforcement methods see Enforcement of Union Contracts, by David ZISKIND,
published by the Bureau of National Affairs, Washington, D.C., Vol. 9,
Labor Relations Reference Manual, pp. 851-858.

GRIEVANCE PROCEDURE IN THE U.S.A. AND CANADA

from the limitations on the issuance of injunctions imposed by the
Clayton Anti-Trust Act and the Norris-La Guardia Act, except under
specified conditions. Appeals from decisions of these courts were
granted precedence in appellate courts. This Bill was referred to
the Judiciary Committee of the Senate but was not reported out. 1
Moreover, the subject of labour courts is one of the questions
receiving current consideration by the Congressional Joint Committee on Labor-Management Relations studying the operation of
the Labor-Management Relations Act,-1947. In the course of
the hearings conducted by this Committee, Senator H. Alexander
Smith, a member of the Committee and co-author of the 1947
court Bill, has indicated t h a t the functions of labour courts might
be of a dual character : one, the interpretation of contracts and of
statutes, and the enforcement of the terms of contracts; and the
other, dealing with situations of national paralysis brought about
by nation-wide strikes. The Committee will report its findings
and recommendations to the Congress in March 1949.a
In Canada, the method of dealing with disputes concerning
the interpretation and application of collective agreements is
similar to t h a t in the United States. They differ, however, in
one major respect. Whereas in the United States the establishment of a grievance procedure is voluntary, in Canada it is compulsory, in t h a t each collective agreement must contain an appropriate
procedure to provide for the peaceful and final settlement of
disputes arising out of the interpretation or violation thereof.
The Minister of Labour, in introducing the Industrial Relations
and Disputes Investigations Act—which subsequently came into
force on 1 September 1948 8 —stated in the House of Commons
that :
The essential purpose of the legislation is to create conditions favourable to the free exercise of collective bargaining between employers and
employees. For that reason only such regulation of employer and
employee activities in their industrial relationship which are considered
as necessary for the protection of the public interest is incorporated in
the legislation. The main responsibility is left with labour and management for the settlement between them of their problems, the negotiation
of collective agreements and the administration of such agreements... .4
1
United States District Labor Relations Courts Act, S. 937, 19 March
1947, 80th Congress, 1st Session, as set forth in Digest of Public General
Bills, No. 4, 1947, The Library of Congress, Washington.
2
Hearings before the Joint Committee on Labor-Management Relations
on the Operation of the Labor-Management Relations Act, 1947, 80th
Congress,
2nd Session, May 24-June 12 1948, pp. 1, 242 and 978.
3
The Labour Gazette (Ottawa), Vol. XLVIII, No. 8, September 1948,
p. 965.
* Idem, Vol. XLVIII, No. 4, May 1948, p. 425.

LABOUR COURTS IN LATIN AMERICA

The new measure, in general principle, follows the pattern of
the Wartime Labour Relations Regulations (P.C. 1003) 1 which
have been in force by virtue of an Order-in-Council. The new
Act, like the old Regulations, distinguishes between economic
disputes and legal disputes. Under the new Act, the settlement
of economic disputes depends, in the final analysis, on the voluntary
action of the parties. As regards legal disputes, the parties are
under statutory compulsion to make provision for their amicable
and final settlement.
The Industrial Relations and Disputes Investigation Act
stipulates, as did the Wartime Labour Relations Regulations,
t h a t every collective agreement must contain an appropriate
procedure to provide for the final settlement, by arbitration or
otherwise, of any disputes concerning its interpretation or violation.
If the agreement does not contain such a provision, appropriate
procedure for this purpose is prescribed by the Labour Relations
Board upon application by either party to the agreement and,
when prescribed, is deemed to be a term of the agreement. The
parties to and every person bound by the agreement are required
to comply with the provisions for final settlement contained in the
agreement. Failure to so comply constitutes a violation of the
Act. Strikes and lockouts are prohibited throughout the period
during which a collective agreement is in force, subject to the one
exception t h a t if the parties have agreed to re-negotiate any provision of the agreement during the life of the agreement, the provisions
of the Act applicable to the negotiation of an agreement in the first
instance apply to such re-negotiation. 2
The provincial legislation conforms generally to the pattern of
the Wartime Labour Relations Regulations, the principles of which
are incorporated in the Industrial Relations and Disputes Investigation Act. In presenting this Act to the House of Commons, the
Minister of Labour briefly reviewed the situation of provincial
legislation in the following terms :
Nova Scotia passed a new Trade Union Act in the spring of 1947,
which was almost identical in its provisions with Bill No. 338 of last
session and with the legislation now being brought down. The Manitoba
Government has within the last few days brought down before the
Legislature a new Labour Relations Act, the provisions of which are
almost identical with the Bill I am now introducing. The Minister of
Labour of Ontario announced in February of this year that, following
1
2

L.S. 1944, Can. 1.
The Labour Gazette (Ottawa), Vol. X LVII, No. 7, July 1947, pp. 923940; Vol. XLVIII, No. 4, May 1948, pp. 425-428.

GRIEVANCE PROCEDURE IN THE U.S.A. AND CANADA

a study of the proposed Dominion legislation, the Ontario Government,
in the interests of uniform and simplified labour laws, had decided to
adopt the proposed Dominion legislation. I understand that the
Province of New Brunswick is studying the Dominion legislation before
bringing down its own labour legislation. The British Columbia legislation is largely the same as ours with some slight differences. I think
it can be fairly said that fundamentally the legislation in existence in
Alberta at the moment follows along the same line.1
In Saskatchewan the Trade Union Act of 1944 applied the
Dominion Wartime Regulations to disputes in the province and
provided for an agreement with the Dominion for this purpose.
The Act has been applied since its passage. The same subjectmatter is covered in Quebec by statutes enacted in 1944. I n
this province provision is made for the setting up of joint industrial
committees for supervising the enforcement of collective agreements. 2

I t appears that in both the United States and Canada legal
disputes are settled through procedure established by mutual
agreement between the parties and embodied in the contracts.
I n the United States, the formulation of this procedure depends
entirely upon the voluntary agreement of the parties. Recent
surveys indicate t h a t the vast majority of the agreements in
existence contain grievance procedure. I n Canada the parties are
under statutory compulsion to establish the procedure. I t can
therefore be assumed t h a t all collective agreements in Canada, and
especially those subject to Dominion jurisdiction, contain such
provisions. Under this method the main responsibility for the
settlement of legal disputes in the United States and Canada is
left with the parties themselves.

1
"Statement of Minister of Labour", The Labour Gazette (Ottawa),
Vol.2 XLVIII, No. 4, May 1948, pp. 425-426.
Idem, Vol. XLVII, No. 7, July 1947, pp. 940-943.

CHAPTER III

SETTLEMENT OF LEGAL DISPUTES IN LATIN-AMERICAN
COUNTRIES
As an alternative to the method of settlement of legal disputes
by the grievance procedure followed in the United States and
Canada, a large number of Latin-American countries have established a different system, based en legislation rather than on
mutual agreement—a system of judicial settlement administered
by labour courts or by other machinery performing functions
very similar to those of labour courts.
In the following pages a survey is made, first, of how far such
a system now exists in the Latin-American countries, secondly,
of the basis on which the labour courts or similar machinery are
organised, thirdly, of the matters for which they are competent,

and fourthly, of the manner in which they function and of the
procedure which they follow. Finally, the report contains a brief
resume of the way in which the labour court system helps to ensure
the protection of the worker.
Survey of Existing Systems of Labour Courts
At the present time, labour courts, or boards exercising the
functions of labour courts, are established in Argentina, Bolivia,
Brazil, Chile, Colombia, Costa Rica, Ecuador, Guatemala, Mexico,
Nicaragua, Panama, Peru and Venezuela.
No special labour court system has been set up in Cuba,
the Dominican Republic, El Salvador, Haiti, Honduras, Paraguay, or Uruguay, although the Constitution of Haiti, dated
22 November 1946, provides for the eventual establishment of
labour courts.
It may be mentioned, however, that in the case of some of these
latter countries, machinery has been established which, as one of
its functions, may deal with legal disputes to a certain extent,
although there is no general line of demarcation between economic
and legal disputes. For instance, the Cuban Conciliation Act of

SETTLEMENT OF LEGAL DISPUTES IN LATIN AMERICA

1924 l established Conciliation Boards, in ports where workers were
employed in the maritime industry or commerce, competent to
deal within the limits of their territorial and industrial jurisdiction
with legal or economic disputes, individual or collective; in El
Salvador 2, ad hoc joint conciliation boards may deal with collective
disputes, whether legal or economic; and in Uruguay, where a
wage board is established for a particular industry it has a general
authority not only to fix wages but to settle industrial disputes
t h a t may arise within the industry. But in none of these cases
is the system both general and permanent at the same time. I t is
not proposed to examine these particular systems in detail, although
reference will be made to them where appropriate.
The degree to which Latin-American countries have been able to
evolve a special system for the hearing of legal labour disputes has
been influenced by both the speed and extent of their industrial
development, the size of the country, the distribution of population
and the difficulty of communications. This means, in the first place,
t h a t some countries possess labour courts dealing only with legal disputes, economic disputes being settled by other means, while some
others have machinery which deals at the same time with economic
and legal disputes; secondly, t h a t the courts or other machinery
may be established for the purpose of settling either individual or
collective legal disputes or both; thirdly, t h a t the system may
provide for labour courts of only one instance or, alternatively,
the hierarchy of labour courts may be complete in themselves;
fourthly, t h a t the system may cover either part only or the whole
of the territory of a given country; and finally, that it may cover
all industries or t h a t some may be excluded.
When considering how the various labour courts are organised,
therefore, account will have to be taken not only of those courts
which deal solely with legal disputes, but also, so far as legal
disputes are concerned, of those courts or boards which deal with
both legal and economic disputes. Account will not be taken,
however, of machinery which is concerned only with the settlement
of economic disputes.
LABOUR COURTS FOR B O T H LEGAL AND ECONOMIC D I S P U T E S

I n Brazil, El Salvador and Mexico, the boards or courts which
are competent to deal with economic disputes are also competent
1
2

L . S . 1924, C u b a 1.
L . S . 1946, Sal. 2.

LABOUR COURTS IN LATIN AMERICA

to deal with legal disputes, but no board or court, either of first or
second instance, deals with legal disputes alone, although the
steps in the procedure may sometimes vary according to the nature
of the dispute.
LABOUR COURTS FOR LEGAL DISPUTES

On the other hand, the labour courts in Argentina, Bolivia,
Chile, Colombia, Costa Rica, Guatemala, Nicaragua, Panama,
Peru and Venezuela, and the labour commissaries in Ecuador, are
based on the principle of having a distinct and separate system
for the settlement of legal disputes, though this general statement
is subject to certain qualifications.
First, the labour courts of first instance in Costa Rica, Guatemala and Panama constitute in their normal form machinery
which deals exclusively with legal disputes. But when conciliation
and arbitration boards sit to deal with economic disputes, it is the
labour judge who presides, accompanied in this case by representatives of employers and workers. The relationship between the
two systems at this level is, however, rather a personal one through
the medium of the judge, the actual machinery and procedure
remaining distinct.
Secondly, it should be remembered that, while the lower court
exercises a separate jurisdiction as a court for dealing with legal
disputes, the labour courts of second or final instance in Argentina,
Costa Rica, Guatemala, Nicaragua and Panama hear appeals
against, or review arbitration awards made in economic disputes
in addition to exercising their jurisdiction as appellate courts in
respect of decisions by the labour courts of first instance given with
regard to legal disputes.
JURISDICTION AS REGARDS INDIVIDUAL AND/OR

COLLECTIVE

LEGAL DISPUTES

The competence of the various labour courts with regard to
individual and/or collective legal disputes will be considered in
greater detail at a later stage in this report. For the moment, only
certain brief indications are given in order to explain the general
scope of the systems in force.
The labour courts of Argentina and Peru and the labour commissaries of Ecuador are concerned only with individual disputes.

SETTLEMENT? OE LEGAL DISPUTES IN LATEST AMERICA

I n these countries there are no labour courts dealing with collective
legal disputes.
The ad hoc conciliation boards in El Salvador have jurisdiction
in collective legal disputes but are not set up for the settlement of
individual disputes.
Most usually the labour courts, or boards exercising judicial
functions, are competent to hear both individual and collective
legal disputes, e.g., the labour courts of Bolivia, Brazil, Chile,
Colombia, Costa Rica, Guatemala, Nicaragua, Panama and Venezuela, and the conciliation and arbitration boards of Mexico.

E X T E N T TO WHICH EXISTING LABOUR COURTS CONSTITUTE
COMPLETE JUDICIAL SYSTEMS

The labour courts at present existing in Latin-American
countries may constitute complete or incomplete judicial systems
in themselves according as they do or do not (a) consist of courts
of one instance only or of lower and higher courts, (b) extend over
the whole national territory or only part of it, or (c) cover the
whole structure of industry, etc., or only certain branches of it.
Courts of One or More Instances
Systems Consisting of Courts of One Instance

only.

I n a few Latin-American countries, the system consists of courts
of first instance only, the authority of second or final instance
being the appropriate ordinary court, as, for example, in Ecuador
and, in certain cases, in Peru.
I n Ecuador the system consists of labour commissaries who
sit as labour judges, from whom appeals lie to the superior district
court, while in Peru, so far as concerns the courts set up under the
Act of 1930 l to deal with individual disputes affecting salaried
employees, appeals lie from the labour court of first instance to the
ordinary courts.
I n Mexico also, the central conciliation and arbitration boards
and the Federal Conciliation and Arbitration Board, each operating
within its respective area of jurisdiction, constitute, in effect, courts
not merely of first but of sole instance. I t is true t h a t in Mexico
cases may come in the first place before municipal and federal
1

L.S. 1930, Peru 1.

LABOUR COURTS IN LATIN AMERICA

conciliation boards, but these bodies cannot be considered as
courts of first instance as they are not competent to give decisions.
Systems Consisting of Courts of First and Second
(or Final) Instance.
In the majority of the Latin-American States the system of
labour courts comprises lower courts and a superior court, e.g.,
in Argentina, Bolivia, Costa Rica, Guatemala, Nicaragua, Panama,
Peru (as regards the courts which deal with disputes affecting
wage-earning employees) and Venezuela. I n Chile there are,
besides the lower courts, four appeal courts of equal jurisdiction.
The lower courts consist of labour judges in Argentina,
Bolivia, Chile, Costa Rica, Nicaragua, Peru and Venezuela, of
divisional labour courts in Panama, and of labour and social
security magistrates in Guatemala.
The higher courts are the Superior Labour Court in Costa
Rica, Nicaragua, Panama and Venezuela, the Labour Court of
Appeal in Argentina and Peru, the National Labour Court in
Bolivia, the Chamber of Appeals in Guatemala, and special labour
appeal courts in Chile.
Systems Consisting of Courts of First, Second
and Third Instance.
Systems consisting of courts of first, second and third instance
have as yet been established only in Brazil and Colombia, but the
legislation of some of the other Latin-American countries makes
provision for the present systems to be extended by the eventual
setting up of additional appeal courts or of a court which would be
superior to those at present in existence.
Thus, in Chile, the law of 1943 1 which specifies the jurisdiction
of the four special labour appeal courts provides t h a t there shall
be courts of third instance ; the Labour Code of Panama 2 refers
to the eventual setting up of additional superior labour courts
and also of a Supreme Labour Court. In Brazil the courts of first
instance are the conciliation and arbitration boards, presided over
by a labour judge. There are regional courts exercising an intermediate jurisdiction, and a Superior Labour Court, the court of
!a L . S . 1943, Chile 1.
L . S . 1947, Pan. 1.

SETTLEMENT OF LEGAL DISPUTES IN LATIN AMERICA

final instance. I n Colombia there are labour courts of first instance,
sectional courts of second instance, and a Superior Labour Court as
the final authority.
Territorial Extent of Labour Court Systems
In a few cases it was not intended that the labour courts as
constituted should cover the whole national territory. This is
the case particularly in Argentina and Peru.
The labour courts of Argentina* are confined to Buenos
Aires, although other provinces have now reached agreement
regarding the establishment of labour courts on the same model.
The Peruvian Labour Courts Act of 1930 specified that labour
courts for dealing with disputes affecting salaried employees
should be set up in Lima and Callao. A few other provinces have
been added since that time. The courts set up in 1941 to deal
with disputes affecting wage-earning employees likewise have
only a limited area of operation. The conciliation boards in Cuba
were set up only in ports where there were workers employed in
maritime industry and commerce.
In the case of Bolivia a, Brazil 3 , Chile 4 , Colombia 6, Costa
Rica 6, Ecuador ', Guatemala 8, Mexico 9, Nicaragua 10, Panama "
and Venezuela 12, the intent of the legislature appears to be to
establish a general system of labour courts or conciliation and
arbitration boards competent to deal with legal disputes.
I n Bolivia the labour court districts comprise the four areas
into which the country was divided for the purposes of the Labour
Department Act of 1927 13 ; the central conciliation and arbitration
boards in Mexico sit in the State capitals and the Federal Board
in Mexico City ; labour judges are appointed in the judicial districts
1

Decree No. 32347/44 of 13 January 1945 (Boletín Oficial, No. 15093,
13 January 1945); International Labour Review, Vol. LI, No. 6, June 1945,
p. 765.
2
L.S. 1940, Bol. 1.
8
L.S. 1943, Braz. 1; 1946, Braz. 1.
«L.S.
1931, Chile 1.
8
L.S. 1945, Col. 1, amended by Decree No. 2158/1948 (República de
Colombia,
Diario Oficial, 26 June 1948).
6
L.S. 1943, C R . 1.
' L . S . 1938, Ec. 1.
8
L.S. 1947, Guat. 1.
9
L.S. 1931, Mex. 1.
10
L.S. 1945, Nie. 1.
11
L.S. 1947, Pan. 1.
18
Gaceta Oficial, 16 August 1940; International Labour Review, Vol.
X L I I I , No. 5, May 1941, p. 562.
» L.S. 1927, Bol. 1.

LABOUR COURTS EST LATEST AMERICA

in Costa Rica, in the cantons in Ecuador, in specified economic
zones in Guatemala, in such towns as are specified in Nicaragua,
and in such departments and localities as may be prescribed in
Venezuela and in Chile (where an important town may have more
than one labour court). I n Panama, the divisional courts are
established in each of five divisions of the country corresponding
to large provinces or groups of smaller provinces. I n Brazil, the
courts of first instance are appointed for judicial districts ; for t h e
purpose of the regional courts the country is divided into eight
regions, two being designated "first category" by reason of their
industrial importance and population, and the others "second
category". The labour courts of first instance and the sectional
courts in Colombia are established in such districts as the authorities
may decide upon. In all these cases the courts of final instance,
exercising a general territorial jurisdiction, are set up in the capital
cities ; in Chile, in three other cities besides.
But the extent to which such systems can in practice apply
to the whole national territory is influenced by the fact t h a t in
most Latin-American countries, owing to geographical reasons,
communications are often comparatively difficult and the population and industry are not evenly distributed but tend to be
concentrated in particular areas. I n the case of nearly all these
countries, therefore, the legislative provision t h a t labour courts
shall be established "in such districts as may be prescribed" and
similar provisions must usually be taken to imply t h a t courts will
not necessarily be set up, at least at first, in remote provinces
possessing only a scattered population and little industrial activity.
These considerations are expressly referred to in the Labour Code
of Guatemala in the provision t h a t labour magistrates will be
appointed in economic zones established by the Supreme Court of
Justice, bearing in mind the concentration of workers, the degree of
industrialisation and the number of industrial associations, although
the Chamber of Appeals has jurisdiction over the whole country.
Consequently, as regards those districts in which it is not yet
feasible to establish labour courts for the reasons given above, and
also in respect of those localities in which labour courts will be set
u p as soon as it is administratively possible, it is necessary to make
provision for dealing with such legal disputes as may arise.
Practically all those Latin-American countries which have
set up a labour court system have laid down specific regulations
as to the judicial authority which shall have competence to hear
legal disputes in districts where there is no labour judge.

SETTLEMENT OP LEGAL DISPUTES EST LATIN AMERICA

Hence, in Chile, Colombia, Panama and Venezuela, the judges
of the ordinary courts act where there is no labour court of first
instance ; in Brazil, justices of the peace exercise the functions of a
labour court in localities not included within the area of jurisdiction
of a conciliation and arbitration board (i.e., labour court of first
instance); in Ecuador, the competent commissioner of police may
act in a canton where there is no labour commissary. I n Costa
Rica, Guatemala and Nicaragua, the supplementary jurisdiction
of the ordinary courts is rather more narrowly defined : in Costa
Rica, the judge of the ordinary court will act only in the absence
of the labour judge through disqualification, illness, etc. ; in Guatemala and Nicaragua, ordinary judges will act pending the appointment of the first labour judges. Nicaragua, too, affords the only
example of the ordinary courts supplementing the work of the
superior labour court, since the district civil judge in the capital
of the Republic may replace the Superior Labour Judge if he is
unavoidably absent.
This replacement of labour judges by judges of the ordinary
courts in certain cases is always subject to the provision t h a t
where there is a labour court of second instance in existence it
will hear all appeals in labour cases tried by the ordinary courts
of first instance in such circumstances. In Colombia and Panama,
the law further specifically provides t h a t where a judge of the
ordinary courts hears a labour case in the absence of a labour
court he must give notice of the case to the nearest labour judge
or court.
Extent to which Industry as a Whole is Covered
by the Labour Courts
Except for the case of Cuba, where the conciliation boards
function only with regard to workers employed in maritime industry
and commerce, the labour courts and conciliation and arbitration
boards have been organised to cover industry in general, e.g., in
Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador,
Guatemala, Mexico, Nicaragua, Panama, Peru and Venezuela.
However, in some of these countries certain specified industries
are excluded or partially excluded from the otherwise general
jurisdiction of the labour courts. The most important of these
industries are the agricultural, maritime and transport industries.

LABOUR COURTS IN LATEST AMERICA

Agriculture.
Notwithstanding the industrialisation being undertaken in
Latin-American countries, agriculture is still a large and vital
part of many national economies, and consequently, any provision
excluding workers in agriculture from the jurisdiction of the labour
courts would exclude a large proportion of the working population.
Agriculture is in most cases included within the sphere of the
labour court, but there are certain exceptions. I n Brazil, for
example, the only persons engaged in agriculture who come within
the jurisdiction of the labeur courts are those who can be classified
as commercial or industrial employees. I n Panama and Costa
Rica, on the other hand, employees in all but the very small
agricultural undertakings are within the jurisdiction of the labour
courts.
Maritime

Industry.

As regards the maritime industry, the provisions of the commercial or shipping codes apply in conjunction with those of the labour
codes which establish labour courts. Specific reference to the
position of maritime employees in relation to the labour courts
is, however, rare. In Chile the labour court appears to be given
jurisdiction with regard to disputes arising out of seamen's agreements, without prejudice to the Commercial Code and Shipping
Regulations, while in Panama persons engaged in the coasting
trade are clearly within the jurisdiction of the labour courts,
whereas, in relation to employees in the international trade, the
Commercial Code applies in so far as their relations are not governed
by the Labour Code which regulates the labour courts. In Mexico,
disputes arising out of seamen's agreements are within the competence of conciliation and arbitration boards, which will apply
thereto the general provisions of the Labour Code, subject to
certain special provisions relating to such agreements which are
also laid down by the Code.
In Cuba conciliation boards were set up in the ports for the
specific purpose of dealing with disputes affecting workers employed
in maritime industry and commerce.
Transport

Industry.

With regard to transport and other essential services, employees' disputes are not specifically excluded from the labour

SETTLEMENT OF LEGAL DISPUTES IN LATIN AMERICA

courts if the employees in question are employed under contracts
of employment. In the case of Mexico, for example, the contracts
of railway workers come within the competence of conciliation
and arbitration boards in the same way as do those of seamen,
mentioned above. But where persons engaged in such services
are employed under statutory rules, they are generally assimilated
to public officials, and legal disputes arising out of their employment will not come before the labour courts.

Extent to which all Categories of Employees are Covered
by the Labour Courts
Certain categories of workers or employees, notably public
employees, are deemed in many countries to have a special position
of responsibility to the State which makes it necessary for their
employment and, therefore, disputes as to the terms of such
employment, to be regulated by special legislation. Further, in
certain cases countries have given consideration to the question
whether legal disputes affecting salaried and wage-earning employees
should be brought before the labour courts without any distinction
being made. Finally, there is the question of how far it is feasible
to include within the jurisdiction of labour courts legal disputes
arising out of the employment relations of such classes of workers
as homeworkers, handicraft workers and domestic employees,
who do not always have specific contracts and whose precise status
is not always easy to define. These three particular cases will be
considered separately.
Public Officials and

Employees.

Public officials of the State, provinces and municipalities are
usually excluded from the jurisdiction of labour courts, their
disputes being governed as a rule by Civil Service Acts or administrative or statutory regulations. I t is equally true that, as a
general rule, industrial employees of the State and of State undertakings, etc., are within the jurisdiction of labour courts. The
test usually applied is whether the person is employed under a
contract of employment or whether his post is one created by
statute. Persons in the latter category are as a rule excluded
from the jurisdiction of the labour court by virtue of a general
provision t h a t the labour code which includes the regulations
regarding the labour courts shall not apply.

LABOUR COURTS IN LATEST AMERICA

However, in one or two cases, these provisions are modified.
On the one hand, in Brazil, for instance, persons other than public
officials strictly speaking may be excluded from the labour courts.
The Labour Code which creates the labour courts does not apply
to those employees of industrial undertakings owned by the Union,
a State or a municipality who can be classified as public employees.
I n Costa Rica and Guatemala, on the other hand, the jurisdiction
of the labour courts in this respect would appear to be comparatively
wide. The only persons excluded are those public officials who
are elected by Congress or popularly elected, and even these
persons are included in Guatemala, so far as is compatible with
their d u t y to the State and with national security, until such
time as special laws are passed relating to them.
Wage-Earning

and Salaried

Employees.

I n general there is no differentiation between wage-earning
and salaried employees, e.g., in Argentina, Chile, Colombia, Costa
Rica, Cuba, Ecuador, Guatemala, Mexico, Nicaragua, Panama
and Venezuela. The former legislation in Bolivia differentiating
between disputes affecting workers and salaried employees has
been repealed.
However, in some of these countries the definition of salaried
employees may tend to exclude from the jurisdiction of the labour
courts certain categories which might otherwise be deemed to be
salaried employees.
Thus, in Costa Rica, Guatemala, Mexico and Nicaragua,
directors, managers, etc., are deemed to be representatives of
employers. I n Panama, directors, managers and officials of
undertakings who are deemed to be independent in their work
because of advanced technical skill or because they represent
the undertaking come within the Labour Code (and, therefore,
disputes affecting them come before the labour courts) only as
regards matters concerning dismissal, holidays and occupational
injuries.
In Panama and Colombia, the definition of salaried employees
is broad enough to cover categories which might otherwise be
excluded. Thus, in Panama, salaried employees include a person
employed on commission if he works continuously for one employer,
and, in Colombia, agents are included if the employment is continuous, e.g., insurance agents engaged exclusively in selling the
policies of particular companies.

SETTLEMENT OF LEGAL DISPUTES IN LATIN AMERICA

But in Peru a clear distinction, though not a discrimination,
is made. Individual legal disputes affecting salaried employees
come before the labour courts established in 1930, with appeals
lying to the ordinary courts, while those affecting wage-earning
employees come before the separate system of labour judges and
labour appeal courts set up in 1941.
Jurisdiction of the Labour Courts with regard to Certain
Categories of Workers.

Special

I t is not always easy to determine how far the labour courts
are competent to deal with legal disputes affecting certain categories
of workers, for example, domestic employees, homeworkers and
craftsmen, whose status is not so clearly defined as that of the
manual worker or salaried employee engaged in an undertaking
under a contract of employment. Sometimes, however, labour
legislation contains provisions specifically including or excluding
their disputes from the jurisdiction of the labour courts.
Domestic employees are persons performing services under a
contract of employment regarding which special provisions are
laid down in the labour legislation of most Latin-American countries. Subject to any specific provision to the contrary, therefore,
the labour courts generally have jurisdiction with regard to the
disputes of such employees. In Brazil, however, domestic
employees who perform services of a non-profit-making character
may not come before the labour courts. I n Panama, persons
engaged in work of a purely family character are not covered by
the provisions of the Labour Code, and their legal disputes are
outside the scope of the labour courts.
Homeworkers or craftsmen have a status which is less easy
to define. The jurisdiction of the lahour courts will generally
depend on legislation extending the general definition of "worker"
or "employee" to cover such classes of persons, or specifically
providing t h a t legal disputes arising out of their contracts shall
come before the labour courts.
I n Mexico, the duty of labour inspectors, who supervise the
application of the Labour Code in respect of homeworkers and
report thereon as necessary to the conciliation and arbitration
boards, makes it clear t h a t the boards are competent in disputes
involving such persons.
In Panama, a contract of employment is deemed to exist between
anyone who performs a service or carries out a piece of work and

LABOUR COURTS EST LATIN AMERICA

the person who receives the benefit of such work. This definition
is wide, and it must be assumed therefore t h a t the labour court is
competent for the legal disputes of homeworkers and craftsmen
who may be assimilated to employees.
I t is specifically laid down in the Brazilian code t h a t no distinction is to be made between work performed in the undertaking
and in the home, provided that the employment relationship is
established, and the definition of a contract of employment includes
contracts of work for a job where the contractor is a wage-earning
employee or handicraft worker.
The Labour Code of Chile defines a "worker" (whose legal
disputes are within the jurisdiction of the labour court) as including
any person not covered by the definition of "salaried employee"
who works for another "in a trade or handicraft" or performs
specified manual services.
Reference may finally be made to the relevant provisions in
the Labour Code of Ecuador, because some of those provisions
express specific criteria with regard to craftsmen in particular.
There is a general provision to the effect t h a t a labour commissary
has competence in cases arising not only out of contracts of employment but out of employment relations generally. Homeworkers
come within t h a t competence. But the position of the craftsman
is defined with particular care. No distinction is made between
the craftsman who is personally performing services and other
employees, including homeworkers. A master craftsman is defined
as an employee in relation to the person ordering the work and as
an employer in relation to his own journeymen. I n either event
legal disputes arising out of the contract are within the competence
of the labour commissary.
Organisation oí Labour Courts
I n this chapter it is proposed to consider, first, the legal position
of labour courts, t h a t is to say, whether they are established in
the various countries in such a way t h a t they may be regarded as
true judicial courts, in the same sense as the ordinary courts, or
in such a manner t h a t they have more the character of arbitration
machinery, having a close relationship with those administrative
departments generally responsible for labour matters even though
their independent and impartial functioning may be ensured.
Secondly, consideration will be given to the actual composition
of existing labour courts, or of those conciliation and arbitration

SETTLEMENT OF LEGAL DISPUTES IN LATIN AMEBICA

boards which exercise judicial functions with regard to legal
disputes, with particular reference to the question how far these
bodies are constituted on a tripartite basis. Finally, a brief
survey will be made of the qualifications and methods of appointment of labour judges or chairmen of such boards and, as regards
those countries which provide for tripartite representation, of the
qualifications and mode of appointment of the members who
represent occupational interests.
T H E LEGAL POSITION OP LABOUR COURTS

In Latin-American, as in other States, the legislatures, when
establishing labour courts, have had to decide, in the light of the
circumstances of their particular countries, which of two main
considerations should influence the manner in which those courts
shall be constituted. Should the labour court be considered not
so much as a component of the judicial system but rather as a
kind of specialised arbitration tribunal whose mission of settling
legal disputes necessarily implies a certain amount of relationship
or co-ordination of its work with that of the administrative or
executive authorities responsible for labour matters generally?
Or should the labour court be a strictly legal tribunal occupying
in the national structure a position precisely similar to t h a t of the
ordinary law court, either as a specialised division of the general
judicial system or as a completely independent judicial system?
When attempting to assess how far effect has been given to
one or the other of these considerations in the Latin-American
systems, it is important to remember that the actual name given
to the court or tribunal is not necessarily an indication of its precise
status. At this juncture, one example will suffice as an illustration.
I n Brazil, the labour court of first instance is termed a conciliation
and arbitration board. Nevertheless, it is a true law court,
exercising purely judicial functions in a manner very similar to
t h a t followed in the ordinary courts of law. I t has none of the
characteristics of an ordinary arbitration board or tribunal, which
conducts more or less informal proceedings and arrives at an award
which in many cases may be unenforceable or subject to review by
administrative authority. The answer to the question how the
courts are constituted can only be found by examining the legal
provisions by which they are instituted and by which their method
of functioning is governed.
In certain cases, e.g., Ecuador, Bolivia, Peru and Mexico, the

LABOUR COURTS IN LATIN AMERICA

relationship of the labour courts, or the persons or bodies acting
as labour courts, with the system of labour administration rather
than with the general judicial system is very apparent.
I n Ecuador, for instance, while appeals from their decisions
lie to the ordinary courts, the labour commissaries are subject to
the General Labour Directorate for administrative purposes. When
a labour commissary is absent it is the police commissioner and not
the ordinary judge who acts as his substitute. The labour commissary sits as an independent court, but his line of jurisdiction is
drawn so t h a t 'his work may be co-ordinated with t h a t of other
authorities, e.g., the labour inspectors, forming part of the general
system of labour administration. Thus it is that in certain matters,
for example, applications for leave to terminate employment
contracts in certain cases, the labour commissary may act as a
substitute for the labour inspector. The labour commissary as a
judge of legal disputes exercises a d u t y which is co-ordinated with
t h a t of the labour inspectorate with regard to economic disputes,
although his court functions as a court of law.
I n Bolivia and Peru the labour courts are rather more closely
related to the labour administration. Although appeals lie from the
labour judges in Bolivia to the National Labour Court, which has
replaced the National Labour Department, and may lie further to
the ordinary courts, those judges, unlike the judges of the ordinary
courts, are appointed by the Ministry oí Labour. The Peruvian
system of labour courts for hearing legal disputes affecting wageearning employees is directly under the authority of the Ministry
of Labour.
The Mexican system is quite different from t h a t established
in any other Latin-American country. Mexico does not possess
both arbitration boards for settling economic disputes and labour
courts for dealing with legal disputes. The conciliation and
arbitration boards constitute machinery for performing a dual
role and this is apparent in their constitution, functioning and
procedures. They have the normal composition of ordinary
arbitration boards—a chairman appointed by the executive or
administrative authority sitting with members freely elected by
employers' and workers' organisations. There is a close relationship
with the genera] system of labour administration. I t is not the
judicial authority but the administrative authority which decides
where the boards shall be established and what industries shall be
represented on them. The labour solicitors whose duty it is
to ensure that the boards perform their duties in an expeditious

SETTLEMENT OP LEGAL DISPUTES IN LATIN AMEBICA

manner are appointed by the administrative authorities, and it
is those authorities which impose disciplinary penalties on members
of the boards who misconduct themselves in their office. The
boards are in no way connected with or co-ordinated with the
ordinary judicial system. On the other hand, they are not left,
as in the case of ordinary arbitration boards, to formulate their
own procedure. On the contrary, extremely detailed regulations
are laid down by the Labour Code regarding procedure ; in addition
to their functions as arbitrators they exercise functions of a purely
judicial nature, their awards are final and are not reviewable by
the administrative authorities and they may be enforced directly
by the chairmen of the boards by means of distraint, as in the case
of the ordinary courts.
The labour courts of Argentina, Brazil, Costa Rica, Chile,
Colombia, Guatemala, Nicaragua, Panama and Venezuela, on the
other hand, are far more closely connected with or assimilated to
the ordinary judicial system. This is reflected throughout their
organisation and procedure. The Brazilian Constitution of 1946,
moreover, expressly states that the labour courts form an integral
part of the general judicial system.
In the first place, all these courts, at least as regards the courts
of first instance, have competence only in legal disputes. Except
in the case of Brazil and Venezuela, the courts of first instance all
consist of a labour judge, who sits alone and is generally a specialist
in labour legislation. If he is absent or not appointed it is the
judge of the ordinary court or the justice of the peace who acts
in his stead.
The procedure before these courts is a purely judicial procedure.
Subject to the spirit of the legal provisions which prescribe methods
by which the labour court procedure may be simplified or expedited,
the rules of ordinary law generally apply to proceedings in the
labour court.
Such labour courts are in no way dependent on the administrative authority. In Chile, Colombia and Venezuela they may be
said to constitute a separate judicial system. In Costa Rica,
Guatemala, Nicaragua and Panama they may be said more truly
to constitute a distinct division of the ordinary judicial system,
being appointed by or to a varying degree under the supervision
of the Supreme Court of Justice. Their decisions are judgments,
and enforceable as judgments, and, where the decision of the
Superior Labour Court is not final, any appeal will lie to the
Supreme Court of Justice, with the one exception t h a t in Brazil

LABOUR COURTS IN LATIK AMERICA

decisions of the Superior Labour Court in social welfare matters
may be reviewed by the competent Minister.
This conception of the labour court as a court of justice in the
strict sense of the term is emphasised most particularly by the
provision contained in the Labour Code of Panama—reminiscent
of the oath of office of the judges of the ordinary courts in many
countries—that the labour judges shall be independent in the
exercise of their duties and shall not be subject to any authority
except the Constitution and the law.

COMPOSITION OF LABOUR COURTS : THE P R I N C I P L E OF TRIPARTITE
REPRESENTATION

Courts of Sole or First

Instance

I n the majority of Latin-American systems, the labour courts
of first or sole instance consist of a judge sitting alone, without any
representatives of employers and workers, e.g., the labour judges
in Argentina, Chile, Colombia, Costa Rica, Nicaragua, Panama
and Peru, the labour magistrates in Guatemala, the labour commissaries in Ecuador, and the heads of the district offices of the National
Labour Department in Bolivia. But the labour judges of first
instance in Colombia and Panama are appointed by higher labour
courts which, as will be seen subsequently, are themselves established
to a certain degree on a tripartite basis.
I t is to be noted that in all these cases the courts concerned deal
only with legal disputes. Hence, in Costa Rica, Guatemala and
Panama, the court is reconstituted as a conciliation and arbitration
board, consisting of the labour judge and representatives of
employers and workers, in order to deal with economic disputes.
However, in the case of the labour courts of first instance in
Brazil and Venezuela, which also deal only with legal disputes,
effect is given to the tripartite principle. I n Venezuela, each of
the parties has the right to select one assessor to sit with the
judge. I n Brazil, the conciliation and arbitration boards, t h a t
is to say, the labour courts of first instance dealing only with
individual disputes, consist of a labour judge, one member representing the employers and one member representing the workers.
On the other hand, the Cuban conciliation boards, set u p in
ports under the Act of 1924, and the Mexican central conciliation
and arbitration boards and Federal Conciliation and Arbitration

SETTLEMENT OF LEGAI, DISPUTES IK LATIN AMEBICA

Board, all of which deal with both legal and economic disputes,
are constituted on a tripartite basis.
The Cuban boards consist of not more than five representatives
of employers and an equal number of workers, under the chairmanship of a judgeIn Mexico, the tripartite constitution of boards is defined in
considerable detail. The municipal and Federal conciliation
boards, which do no more than conciliate disputes, are themselves
appointed ad hoc on a tripartite basis. Sometimes they may be
established as permanent bodies, in which case they are constituted
in the same way as the central conciliation and arbitration boards
and the Federal Conciliation and Arbitration Board. The central
boards and the Federal Board, the courts of sole instance in labour
matters, consist of a chairman appointed by the State or Federal
authority, and one employers' representative and one workers'
representative for each separate industry or group of occupations
which is to be represented on the boards. But when a board is
hearing a case, only those members will sit who are representative
of the industry or industries concerned in the dispute. Alternatively,
if the development of industry in a State is not sufficient to warrant
the separate representation of each industry or group of occupations,
the central board will include not more than three employers'
representatives and an equal number of workers' representatives.

Courts of Second or Final

Instance

In the case of courts of second or final instance, on the other
hand, most Latin-American countries possessing such courts have
seen fit to adopt the principle of tripartite representation, e.g.,
Brazil, Chile, Colombia, Costa Rica, Nicaragua, Panama and
Venezuela.
The Brazilian regional courts of the first category each consist
of seven labour judges, of whom one represents employers and one
represents workers. Those of the second category consist of five
judges, two of whom again represent occupational interests. The
eleven judges of the Superior Labour Court include two representing
the interests of employers and two representing those of the
workers.
Each special labour appeal court in Chile consists of three
judges and three other members, representing respectively employers, salaried employees and wage-earning employees.
In Colombia, of the three judges constituting each sectional

LABOUR COURTS IN LATIN AMERICA

court and also the Supreme Labour Court, two are appointed on
the basis of proposals made by employers' and workers' organisations.
Each superior labour cor.rt of Costa Rica, Nicaragua and Panama
consists of an independent judge and two other members, one
representing employers' interests and one workers' interests.
Finally, in Venezuela, each party may appoint one assessor
to sit with the three permanent judges.
On the other hand, in Argentina, Bolivia, Guatemala and Peru
(as regards the labour cour: which hears appeals in cases affecting
wage-earning employees), the superior labour courts, like t h e
lower courts, are not constituted on a tripartite basis. The
Labour Court of Appeal in Argentina consists of seven judges,
t h a t of Peru of a judge and three other members, while the National
Labour Court of Bolivia and the Chamber of Appeals in Guatemala
both consist of three members. All these persons are independent
of occupational interests.

QUALIFICATIONS AND

METHODS

OF APPOINTMENT

OF MEMBERS

O F LABOTJB. COXJKTS

Qualifications of Labour

Judges

Almost invariably, judges either of labour courts of first instance
or of higher labour courts are required to have technical legal
qualifications.
Thus, in Bolivia, while the labour judges who have replaced
the district heads of the National Labour Department need not
necessarily be lawyers, although they will be experienced in
labour matters and legislation, the President and members
of the National Labour Court in the capital must have practised
as lawyers for at least eight years or have been labour judges for
a t least four years. I n Brazil t h e labour judges, chairmen of
conciliation and arbitration boards, must have a legal degree,
while the judges of regional labour courts are appointed by promotion from the ranks of the labour fudges, and, of the seven independent judges of the Superior Labour Court, all must have a thorough
knowledge of law and at least five must have a law degree.
The divisional labour judges of Panama must be advocates
and the judges of the Superior Labour Court must have practised
as advocates for at least five years or been circuit or municipal
judges in the capital for at least five years. Labour magistrates

SETTLEMENT OF LEGAL DISPUTES BT LATIN AMEBICA

in Guatemala must be advocates. Labour judges in Nicaragua
must have the same qualifications as are required by law in the
case of local judges of the ordinary courts, and in towns which
are chief towns of departments they must be advocates, while a
superior labour judge must have qualifications equal to those of an
appeal court magistrate. All members of labour courts in Colombia
must be qualified lawyers. The chairmen of the Cuban conciliation
boards are judges of the ordinary courts. I n Chile special labour
judges and chairmen and judges of special labour appeal courts
must be advocates. I n Venezuela the judges of the labour courts
of first instance must be lawyers and officials of the Federal judiciary
and possess the qualifications prescribed by the Civil Procedure
Code, while the three judges and also the two assessors of the
labour court of appeal must be trained in the law and fulfil the
requirements of the Civil Procedure Code.
I n Mexico the chairmen of central conciliation and arbitration
boards and of the Federal Conciliation and Arbitration Board must
be barristers or specialists in industrial law. I n Costa Rica a
labour judge of first instance must be an advocate or a bachelor
of laws, while a superior labour judge must have practised as an
advocate for not less than five years. The labour court of appeal
in Peru in respect of individual legal disputes affecting wageearning employees must include an ex-civil judge and one of the
other three members must be an attorney. Finally, in Argentina,
not only must judges of the labour courts be lawyers, but the
conciliation boards which try to conciliate individual legal disputes
before the court hearing must have advocates as their chairmen and
vice-chairmen.
I n many cases emphasis is laid on the need for judges not only
t o have general legal qualifications, but also to have had special
experience in labour matters and labour legislation. Thus, the
President and members of the National Labour Court in Bolivia
are required to have practised as lawyers for eight years, or as
labour judges for four years. I n Brazil, besides the legal qualifications already mentioned, labour judges (and, therefore, judges
of the regional courts also) must have had specialised experience
of social legislation, and the thorough knowledge of law required
in the case of superior labour court judges must include especially
social legislation. I n Panama and Costa Rica, both labour judges
of first instance and superior labour court judges, like the labour
magistrates of Guatemala, should "preferably" be specialists in
labour law. I n Colombia, members of labour courts should be

LABOUR COURTS IN LATIN AMERICA

"as far as possible specialists in labour law". In Mexico, being a
specialist in industrial law is considered as an alternative to being a
barrister for the qualification for chairmen of central conciliation
and arbitration boards and of the Federal. Conciliation and Arbitration Board. And in Argentina, the labour judges of first instance
and of the appeal court must be expert in labour matters.
I n several cases, too, stipulations that judges must be of a
certain age are intended to ensure that there shall be maturity
of judgment. For example, in Bolivia the President and members
of the National Labour Court must be over thirty years of age;
sectional labour court judges in Colombia must be over twentyfive and those of the Superior Labour Court over thirty; in Costa
Rica judges of the courts of first instance and of the superior
court must be over twenty-five years of age ; in Guatemala, on the
other hand, the minimum age-limit is only twenty-one years.
I n Chile, Costa Rica, Guatemala, Mexico and one or two other
cases, it is further provided that the clerks or secretaries of labour
courts shall also have legal qualifications. The secretaries of
both labour courts and special labour appeal courts in Chile must
be advocates ; in Costa Rica the clerk of every labour court must be
an advocate or a bachelor of laws ; the clerks of the courts of first
instance in Guatemala should preferably be, and the clerk of the
Chamber of Appeals must be, an advocate or student of the law;
in Mexico the secretaries of central conciliation and arbitration
boards and of the Federal Conciliation and Arbitration Board must be
barristers or graduates in economics, with a preference for those
who have made a special study of labour law.
Thus, labour judges in almost every Latin-American country
possessing labour courts must have legal qualifications, and in
the majority of those countries they are required or preferred to
have had specialised experience of labour legislation.
Methods of Appointment

of Labour

Judges

The method of appointment of labour judges varies considerably,
as this function may be exercised on the one hand by the Government or President of the Republic or, on the other hand, by the
ordinary judiciary. The first alternative is adopted in Argentina,
Bolivia, Brazil, Chile and Mexico, and, so far as the higher courts
are concerned, in Colombia and Panama. The second method is
followed in Costa Rica and Nicaragua. In Guatemala both
methods of appointment are employed.

SETTLEMENT OF LEGAL DISPUTES IN LATIN AMERICA

In Argentina the labour judges of the higher and lower courts
are appointed by the executive authorities in accordance with
nominations proposed by the Department of Labour and Social
Welfare and approved by the Senate. The President and members
of the National Labour Court of Bolivia are appointed by the
Government. The judges of all the labour courts in Brazil are
appointed by the President of the Republic, as are the chairmen of
special labour appeal 'courts in Chile. In Mexico the chairmen
of municipal conciliation boards are appointed by town councils,
while those of Federal conciliation boards are labour inspectors;
the chairmen of central conciliation and arbitration boards are
appointed by the Governor of the State or Territory or head of the
Department for the Federal District and the chairman of the
Federal Conciliation and Arbitration Board by the Ministry of
Industry, Commerce and Labour.
I n Colombia, the Chamber of Representatives elects the members of the Supreme Labour Court from three lists of candidates
submitted by the President (two of these lists are based on lists
presented by representative organisations, as will be seen later,
but the third is drawn up by the President himself) ; the Supreme
Labour Court appoints the members of the sectional labour courts
from lists submitted by the Government and employers' and
workers' organisations, and, finally, the sectional courts appoint
t h e labour judges of first instance within their jurisdiction. I n
Panama the President of the Republic appoints the chairman
of the Superior Labour Court from a list of candidates prepared
by the Government, but t h a t court itself appoints the labour
judges of first instance.
In Guatemala, while the labour magistrates of first instance
are appointed by the Supreme Court of Justice, the magistrates
of the Chamber of Appeals are elected by Congress. In Costa
Rica and Nicaragua, on the other hand, the labour judges of the
higher courts as well as those of first instance are appointed by the
Supreme Court of Justice.
Hence, while in the last two cases the appointment of all
labour judges is made by the ordinary judicial authority, it is
more usual in Latin-American countries for all labour judges to
be appointed by the Government or President, although in two
cases such method of appointment is confined to the establishment
of the Superior Labour Court, which is then left to make the
appointments to the lower courts under its authority.

40
Qualifications

LABOUR COURTS IN LATIN AMERICA

of Employers' and Workers' Members of
Labour Courts

Tripartite

I t has been mentioned, t h a t the tripartite system prevails in
respect of the constitution of courts o£ second or final instance in
Chile, Colombia, Costa Rica r Nicaragua and Panama, while in
Brazil, Mexico and Venezuela all the courts or boards acting as
courts are constituted on this basis.
Many varying qualifications such as age, character, literacy,
nationality, etc., are laid down. The most important qualification
in most cases takes one of two forms—it may be a legal qualification
similar to or less stringent than t h a t concerning the judges independent of occupational interest or, alternatively, emphasis may be
laid on the industrial or representative capacity of the persons
concerned.
Thus, in Panama, the two members of the Superior Labour
Court representing class interests must be advocates; in Costa
Rica they must be advocates and preferably specialists in labour
law; in Colombia, the employers' and workers' members of the
sectional labour courts and Supreme Labour Court must have the
same legal qualifications as the other judges ; the assessors appointed
by the parties to disputes before the labour courts of Venezuela
must be lawyers or special attorneys of the legal advice office or
citizens capable of exercising judicial functions.
In Brazil, Nicaragua, Chile and Mexico no legal qualifications
are laid down but certain occupational relationships are stipulated.
In Brazil the four judges of the Superior Labour Court representing the interests of employers and workers are required to have
followed their occupations for two years or to be acting as representatives of the organisations concerned in accordance with law;
the two members representing employers and workers respectively
on conciliation and arbitration boards, like those similarly appointed
to regional labour courts, must have been engaged in the occupation
for more than two years and be members of industrial associations.
I n Nicaragua it is simply provided t h a t such members of the
court must be of known occupation or profession, while in Chile the
members of the special labour appeal courts must not actually be
officials of the organisations concerned (i.e., those incorporated
within the jurisdiction of the particular courts).
In Mexico, as will be clear when examining the methods of
appointment of workers' and employers' members, such members
must of necessity have intimate relationship with, if not member-

SETTLEMENT OF LEGAL DISPUTES IN LATIN AMEBICA

ship of, industrial associations. But it is expressly stipulated
t h a t in the case of municipal conciliation boards and Federal
conciliation boards they must not be chairmen or general secretaries
of the industrial associations concerned or persons in charge of the
undertakings concerned.
A brief reference may be made in this connection to the position
in Argentina and Peru. Neither of those countries has tripartite
labour courts. But in Argentina, in the case of a legal dispute relating to lowering of wages or changes in conditions of work, the parties
by mutual agreement may choose to refer the case to an arbitration
board instead of the labour court. This board will include one
member representing each party to the dispute and they must
belong to the same categories of employers and workers as those
they represent. I n Peru a collective legal dispute goes not to the
labour court but to the Permanent Arbitration Tribunal. The
two workers' members and the two employers' members are
representatives nominated by thp central organisations.
Practice and legislation are therefore fairly evenly divided on
the question whether the workers' and employers' members of
labour courts or bodies acting in place of labour courts should
primarily be legal experts like the other judges or whether their
industrial background and relationships should be the determining
factor.
Methods of Appointment

of Employers' and Workers'
of Labour Courts

Members

The method by which workers and employers or their organisations propose or appoint the members to represent them in labour
courts is not decided by any consideration as to whether their
qualifications are primarily legal or industrial or organisational.
Two methods are mainly followed in the Latin-American
countries. I n the first place, organisations may make nominations
from which the final selection is made by a court, Government or
administrative authority, as, for example, in Brazil, Chile, Colombia,
Costa Rica, Nicaragua, Panama and Peru (as regards the arbitration
tribunal dealing with collective legal disputes); secondly, workers
and employers and their organisations may not only nominate b u t
elect the actual representatives to be selected, as in Cuba and
Mexico; or, again, the parties to a dispute may appoint them ad
hoc, as in Venezuela and Argentina (with respect to special arbitration boards for certain cases), and also in Mexico as regards those

LABOUR COURTS IN LATIN AMERICA

municipal and Federal conciliation boards which are not established
as permanent bodies.
I n Brazil, lists of three names are drawn up by the central organisations in respect of the four representative judges of the Superior
Labour Court, and are submitted to the Ministry of Labour; as
regards the two representative members of the regional courts,
similar lists are submitted to the chairman of the Superior Labour
Court by industrial associations of higher rank having their head
offices within the regions concerned ; the two representative members for the conciliation and arbitration boards, i.e., the labour
courts of first instance, are appointed from lists submitted to the
chairman of the competent regional court b y employers' and
workers' social organisations having their head offices within the
jurisdictional areas of the boards.
I n Panama, lists of candidates for the Superior Labour Court
are submitted by employers' and workers' organisations to the
President ; in Costa Rica and Nicaragua, the principal organisations
submit their lists to the Supreme Court of Justice. I n Colombia,
the two representative members of the Supreme Labour Court
are appointed from lists which the organisations of employers and
workers submit to the President, while similar lists are submitted
to the Supreme Labour Court for the appointments to the sectional
courts. The three members of each special labour appeal court
in Chile, representing respectively employers, salaried employees
and wage-earning employees, are appointed from lists submitted
by the respective organisations incorporated within the areas of
jurisdiction of the courts concerned. Finally, in Peru, in respect
of the two employers' and two workers' members of the permanent
arbitration tribunal which hears collective legal disputes, nominations are made to the Ministry of Labour by the workers' central
confederation as regards tjieir two members, and lists are received
from the employers' central organisation and the chamber of
commerce respectively as regards the two employers' members.
The final selection and appointment from these lists is made by
the President of the Republic in Brazil (i.e., as regards regional
courts and the Superior Labour Court, the appointments to the
courts of first instance being made by the chairman of the competent
regional court), Panama (subject to approval by the National
Assembly) and Chile; by the Ministry of Labour in Peru; by the
Supreme Court of Justice in Costa Rica and Nicaragua. I n
Colombia the President submits the lists of employers' and workers'
candidates for the Supreme Labour Court to the Chamber of

SETTLEMENT OF LEGAL DISPUTES IN LATIN AMEBICA

Representatives, while the Supreme Labour Court itself makes the
appointments to the sectional courts.
I n Mexico, where the work of the tribunals is not confined to
legal disputes, the procedure is quite different. Provision is made
for employees and employers to hold meetings for the purpose of
electing representatives—i.e., as regards all boards other than
ad hoc conciliation boards. Meetings are held in respect of the
various industries or groups of occupations to be separately represented. The persons or bodies entitled to take part in the workers'
elections are employees' organisations whose members perform
services under contracts of employment, employees not conforming
to this provision but who have been employed for more than six of
the twelve months preceding the election, and non-union employees
where workers are not organised. Employers' associations or
independent employers may take part in employers' elections if
they employ organised employees performing services under
contracts of employment. The administrative authorities draw
up registers of those organisations and persons entitled to vote in
accordance with the above provisions, the voting power of employers
depending on the number of workers employed by them and t h a t
of workers' organisations on the number of workers they have
organised as members. The persons elected take office for two
years.
In the case of the ad hoc appointments to arbitration boards
in Argentina, each litigant simply chooses a member of the same
industrial category as himself. I n Venezuela each party to a
dispute submits to the court a list of three proposed assessors, and
it is for the other party to make the final choice from the list put
forward by his opponent. In Mexico, each party—or, in case of
default, the administrative authorities—appoints his own representative on ad hoc municipal or Federal conciliation boards.
I n the majority of those Latin-American States, therefore,
which make provision for their labour courts to be constituted on a
tripartite basis, the more usual practice is for lists of candidates
to be submitted by the representative organisations of workers and
employers, the final selection and appointment being made by
governmental or, less frequently, by judicial authority.
Competence of the Labour Courts
Earlier in this report, reference was made to the fundamental
differences in the nature of legal and economic disputes which

LABOUR COURTS IN LATEST AMERICA

have led many Latin-American and other countries to establish
special labour courts competent to deal with legal disputes. These
legal disputes themselves may take several different forms, according to the circumstances from which they originate. I t will be
necessary to consider how far the labour courts of the different
countries are made competent to dsal with these different forms
of legal dispute, as it is only in certam cases t h a t their jurisdiction
extends to all of them.
Before making this analysis, however, it would be desirable
to consider how far the parties themselves are entitled to exclude
the jurisdiction of the labour courts in certain matters for which
they are otherwise competent by referring their legal disputes to
other machinery established by mutual agreement.
ARBITRATION MACHINERY REPLACING THE LABOUR

COURTS

Reference has already been made to the method of settling
disputes in the United States and Canada by grievance procedure
instead of by the institution of labour courts.
I n certain of the Latin-American countries which actually have
labour courts or arbitration boards competent for dealing with
legal disputes, however, provision is still made for methods of
settlement by machinery mutually established or agreed upon by
the parties to exclude the jurisdiction of the labour courts in certam
cases, e.g., in Argentina, Colombia a:id Mexico.
I n Colombia, permanent arbitration boards established before
the enactment of the Labour Code of 1945 were permitted to
continue to function despite the establishment of the labour courts,
in those cases in which the parties had agreed to maintain them.
TJnder the Decree of June 1948 respecting labour courts procedure,
employers and workers may agree to submit to arbitration legal
disputes arising out of their labour relations, in pursuance of a
clause to this effect written into the individual or collective contract
of employment, collective agreement or other joint undertaking.
The Decree lays down a certain procedure for such arbitration,
but this will not apply where a collective agreement providing
for permanent arbitration machinery of this kind also prescribes
the procedure to be followed. The arbitral awards may be appealed
against only by way of extraordinary appeal to the sectional
labour court on the ground that they are contrary to the terms of
the arbitration undertaking, or infringe rights or freedoms recognised
by the Constitution or by legislation or in agreements made between

SETTLEMENT OF LEGAL DISPUTES EST LATIN AMEBICA

the parties. If any of these grounds are proved to be justified,
the Court will revoke the award in question and render a new
decision to replace it. Otherwise the Court will confirm the
award.
The possibility of the jurisdiction of the labour courts in Argentina being replaced by that of other machinery is limited to the
case of legal disputes of a particular kind. Where a legal dispute
arises out of a lowering of wages or a change in conditions of work,
and not otherwise, the matter may be referred to a tripartite
special arbitration board instead of to the labour court, if both
the parties so agree, but the award will still be subject to review
by the Labour Court of Appeal.
The jurisdiction of the conciliation and arbitration boards set
up under the Mexican Labour Code is subject to a general provision
in that Code to the effect t h a t employers and workers may by
mutual agreement provide for the organisation of joint boards
having such economic and social duties as the parties see fit to
give them.
MATTERS WITHIN THE COMPETENCE OE LABOUR COURTS

Many of the Latin-American labour codes, when defining the
various kinds of legal dispute for which the labour courts are
competent, draw a broad distinction between individual legal
disputes and collective legal disputes. I t is not always easy to
determine exactly which disputes a given country regards as
coming under one or the other of these respective heads. I n
practice, the individual legal dispute is considered in general terms
as being one which arises out of a contract of employment or t h e
legislation concerning individual employment relations, and a
collective legal dispute as one arising out of the interpretation or
application of a collective agreement or relevant labour legislation.
Although this distinction might occasion theoretical discussion
into which it is not proposed to enter in this report, it does provide
a practical basis on which to survey the existing legislation. I n
the following pages, therefore, individual disputes will be treated
as including disputes involving one person or a group of persons
which arise out of a contract of employment or the application
of labour legislation to such person or persons. Such matters as
payment of wages or dismissal, two of the most common causes
of disputes, will also be discussed under this head, because the
legal provisions to which reference will be made are drafted mainly

LABOUR COURTS IN LATIN AMERICA

with regard to their application to the individual. Collective
disputes will be treated as including all disputes based on the
application or interpretation of collective agreements, whether an
individual or an organisation has tbe right to appear before the
courts in this connection, and those cases involving the application
of labour legislation which must, by their nature, involve persons
collectively rather t h a n individually, e.g., cases in which the court
is called upon to declare a strike or lockout lawful or unlawful
or to hear an application for the winding-up of a social organisation.
Although for the sake of convenience in presentation, therefore,
the competence of the labour courts as regards questions of application or interpretation of labour legislation is thus considered in
connection with their competence in individual and collective
disputes, it should be emphasised that it is attributed to them by
law as a general competence and is not actually dependent on their
competence in such disputes.
Following these main parts of the survey, a brief reference will
be made to certain other matters which do not fall under the two
principal heads, but which the law of several countries brings
within the jurisdiction of the labour courts, for example, questions
relating to occupational injuries and social security or the imposition of penalties for contraventions of labour legislation.
Competence with regard to Individual Legal Disputes
The labour courts of Argentina, Bolivia, Brazil, Chile, Colombia,
Costa Rica, Ecuador, Guatemala, Nicaragua, Panama, Peru and
Venezuela are all competent to deal with disputes arising out of"
individual contracts of employment, as are the conciliation and
arbitration boards of Mexico and the conciliation boards in Cuba.
This statement is, of course, subject to the qualifications mentioned
earher in this report with regard to certain industries or categories
of persons excluded from the jurisdiction of the labour courts
because they do not fall within the scope of the labour codes or
other legislation under which those courts are established.
This does not mean t h a t the labour courts when adjudging
such disputes are limited to considerations arising directly out of
the express or implied terms of such contracts.
The labour legislation of these countries generally lays down
regulations with which contracts of employment must comply.
I n particular, the labour codes prescribe measures by which
minimum wage standards may be fixed by minimum wage fixing

SETTLEMENT OF LEGAL DISPUTES IN LATIN AMERICA

machinery or by collective agreement. The codes also contain
rules regarding hours of work, holidays, notice of termination
of contract, etc., to protect the worker. These standards will
apply as a rule unless conditions more favourable to the worker
are laid down under collective agreement or by the worker's
individual contract. The effectiveness of these regulations is
generally ensured by a provision that where the terms of an individual contract prescribe wages or conditions of employment less
favourable to the worker than those stipulated by labour legislation
or relevant collective agreements, such stipulations are deemed to
replace the corresponding inferior terms in a contract of employment or to apply where no provision is made at all in the contract.
Consequently, when a case is brought before the labour court based
on a contract of employment, the court will consider all such
stipulations as incorporated in the contract.
That, however, would be the most t h a t the labour court could
do if all individual legal disputes for which they were competent
had to be based on a contract of employment. But legislation
has given to the labour courts of most of the Latin-American
countries a much wider competence than this—a general competence to apply labour legislation to all legal disputes arising out of
employment relations, or a specific competence with regard to
some of the most important aspects of those relations.
The labour courts in Argentina deal generally with disputes
based on labour law; the Bolivian courts are competent to administer labour, welfare and social legislation generally; in Brazil
they are competent as regards disputes arising out of employment
relations governed by social legislation; in Colombia and Panama
with regard to the interpretation or application of labour legislation ;
for disputes arising out of the application of the labour code in
Costa Rica and Nicaragua; as regards labour and social security
legislation in Guatemala, and as to employment relations generally
in Ecuador; for disputes based on labour law and any disputes
not adjustable by conciliation and arbitration in Venezuela. I n
Mexico, and also in Cuba so far as the maritime industry is concerned,
the machinery dealing with both legal and economic disputes also
has a general competence to apply relevant labour legislation.
This general competence of the labour courts with regard to
the application of labour legislation is further defined in many
cases by special provisions relating to particular questions, for
instance, those respecting the payment of wages and dismissal
from employment.

LABOUR COURTS IN LATIN AMERICA

With regard to payment of wages, the Labour Code of Brazil
refers specifically to the competence of the labour courts in such
cases as disputes with respect to wages in the event of cancellation
of individual contracts. The courts of Colombia and Panama are
declared competent with regard to disputes as to premiums, bonuses
and other benefits payable under administrative decrees, municipal
orders or private regulations (in Panama) or under departmental
ordinances, decrees and resolutions (in Colombia), provided in
both cases t h a t the procedure prescribed by the said measures
has been exhausted. I n Colombia, too, with regard to wage
claims, there are specific provisions enabling the court to do more
than merely to take account of the substitution of clauses relating
to wages prescribed by legislation or collective agreement for less
favourable clauses in a contract of employment—if the case reveals
that a claimant is entitled to remuneration for other services or to
other relief than is claimed, the court can go beyond the actual
claim and, in effect, add fresh points of claim, in order t h a t justice
m a y be done.
Similarly, detailed provisions are sometimes laid down with
regard to the question of dismissal and matters related thereto.
I n Brazil, the labour courts are competent more specifically
with regard to cases of compensation for breach of contract,
dismissal, right to reinstatement and recognition of security of
tenure. Applications for permission to dismiss permanent employees
may be approved either by an industrial association, the Minister
of Labour or a labour court. The labour courts of Colombia are
competent to award wages or compensation in a case of dismissal,
but an action for damages for breach of a contract of employment
comes before the ordinary courts. I n Chile, the permission of a
labour judge is necessary for the dismissal from an undertaking
of a member of the committee of management of a trade union.
I n the Labour Code of Ecuador the respective competence of
the labour court and the labour inspector with regard to dismissal
is very clearly defined. Application for leave to terminate a
contract for such reasons as dishonesty, insubordination or insulting
behaviour are made to the labour inspector, with a right of appeal
to the labour commissary. The actual notice to leave is then
given by the labour inspector. But in a case of dismissal without
approval having been sought and without notice to leave having
been given as duly provided any claim for compensation will be
brought before the labour commissary.

SETTLEMENT OF LEGAL DISPUTES IN LATIN AMERICA

Competence with regard to Collective Legal

Disputes

The labour courts are competent to deal with legal disputes
arising out of collective contracts or agreements in Bolivia, Brazil,
Chile, Colombia, Costa Rica, Guatemala, Nicaragua, Panama
and Venezuela, as are the conciliation and arbitration boards in
Mexico and the conciliation boards in Cuba.
I n Brazil, the regional court is the court of first instance in
such cases.
In Mexico only the Federal Conciliation and Arbitration Board
(and not the central boards) has jurisdiction in a legal dispute
arising out of a collective agreement declared to be generally
binding if it applies to more than one Federal State or territory.
On the other hand, in Argentina, Ecuador and Peru the labour
courts competent in the case of individual legal disputes are not
competent to hear collective legal disputes. I n Argentina a
special arbitration procedure is provided for such disputes; in
Ecuador and Peru they come before the arbitration machinery
competent for economic disputes.
I t may also be mentioned t h a t in El Salvador collective legal
disputes may be dealt with by ad hoc conciliation boards in the
same way as economic disputes.
In the case of those countries whose labour courts are competent
for collective legal disputes, all such disputes need not necessarily
be founded on a collective agreement, because, as indicated when
referring to individual disputes, the labour courts have a general
competence regarding the application and interpretation of legislation concerning collective industrial relations.
The most important example of the application of such legislation by the labour courts is the function accorded to them in
several countries of pronouncing as to the legality of strikes or
lockouts. The matter occasioning a strike or lockout may be a
purely economic one, and the court competent for legal disputes
only will give no judgment on the merits of the claims for advancement of interests. The decision as to the legality of a strike or
lockout involves such a court in the purely legal question of interpreting and applying the relevant legislation which must be
complied with if a strike or lockout is to be declared lawful. I t
still leaves the main issues which caused the strike or lockout to
be dealt with according to the prescribed procedure for the settlement of economic disputes.

LABOUR COURTS IN LATEST AMERICA

The giving of such decisions is spesifically within the competence
of the labour courts of Colombia, Costa Rica, Guatemala, Nicaragua
and Panama, and also of the conciliation and arbitration boards
in Mexico and the ad hoc conciliation boards of El Salvador.
The labour magistrate in Guatemala, when giving his decision,
may order an employer who has not complied with the law relating
to lockouts to pay wages during the stoppage. I n a proper case,
he may order workers striking wrongfully t o pay damages.
In Costa Rica, Nicaragua and Panama, the court can place
the blame on an employer in the event of a lawful strike and
order him to pay wages. I n the event of a lockout being declared
unlawful, they can order payment of wages without prejudice to
the liability of the employer to fines or other penalties. In the
case of an unlawful strike the employer may terminate the workers'
contracts.
I n Mexico, the conciliation and arbitration boards, being
competent in economic as well as in legal disputes, may, when
declaring as to the legality of a strike or lockout, base their decision
not only on the fact t h a t the workers or employers concerned have
or have not complied with the relevant legal provisions, but also
on considerations which involve at least a degree of examination
of the merits of the interests concerned. Thus, not only can they
declare contracts terminated in the case of an unlawful strike or
make an employer pay wages in the case of an unlawful lockout,
but, for instance, when declaring a strike to be lawful they can so
far examine the merits of the dispute, going beyond the mere
consideration of whether the law has been complied with, as to
decide whether the actions of the employer have been such as to
contribute materially to the strike, and, if so, may order him to
pay wages during the stoppage. However, they cannot do this
where the lawful strike is only a sympathetic strike.
Reference may also be made to the competence of some labour
courts with regard to cases brought for the winding-up of a social
organisation, t h a t is to say, an industrial association or a cooperative society.
I n some of the Latin-American countries, Chile, for example,
the compulsory winding-up of a social organisation may be decreed
under the circumstances prescribed in the Code. I n Costa Rica,
Guatemala and Panama, on the other hand, the authority competent to institute proceedings for the winding-up of a social organisation must do so before the labour court. This refers only to an
involuntary dissolution, the organisations themselves being able

SETTLEMENT OF LEGAL DISPUTES IN LATIN AMEBICA

Öl

to make arrangements as to a voluntary winding-up, according
to the rules laid down by law, without recourse to a court.
Competence in Certain Special Matters
In many countries, questions regarding the interpretation or
application of social insurance legislation, claims for compensation
for occupational injuries and other special aspects of social legislation are submitted to specialised tribunals or authorities.
In the case of some of the Latin-American countries, however,
the labour codes contain express provisions according competence
in certain of such matters to the labour courts.
Thus, competence with regard to claims in respect of occupational injuries is accorded to the labour courts in Chile, Costa Rica
(although here jurisdiction is shared to a certain extent with the
ordinary courts), Ecuador, Nicaragua, Panama, etc. In Brazil,
on the other hand, industrial accident cases must be brought
before the ordinary courts.
Labour courts are made competent in questions relating to the
application of the Social Insurance Act, 1941, in Costa Rica, and
the Social Security Act, 1946, in Guatemala, and in respect of the
administration of the Compulsory Insurance Act, 1924, in Chile.

Penal Jurisdiction

in Certain Cases

In addition to their civil jurisdiction, a specific penal jurisdiction
is accorded to the labour courts in Bolivia, Brazil, Chile, Colombia,
Costa Rica, Ecuador, Guatemala, Nicaragua and Panama.
Thus, the labour courts of Costa Rica, Guatemala, Nicaragua
and Panama hear cases of contraventions of labour and social
welfare legislation with power to impose the appropriate penalties ;
in Bolivia the courts deal with breaches of social legislation; in
Brazil and Chile the different labour courts may impose fines and
penalties with regard to matters within their jurisdiction; the
labour courts of Colombia and the labour commissaries in Ecuador
may impose fines in cases of contravention of the Labour Code.
In Mexico, on the other hand, penal sanctions in respect of
contraventions of the Labour Code are imposed by the administrative authorities and not by the conciliation and arbitration
boards.

LABOTTB COURTS IN LATES' AMERICA

Functioning of the Labour Courts
I n the following pages a survey is made of the manner in which
labour courts actually operate, consideration being given, first,
to questions relating to the parties to cases before the courts and,
secondly, to the main points and features of the procedure which
is followed.

PARTIES I N CASES BEFORE THE LABOUR COURTS

The main problems to be examined are (a) the capacity in
which persons may sue and be sued before the labour courts,
(b) the role of industrial associations in labour court proceedings,
and (c) the role of the State, in respect of its duty to furnish legal
aid and representation and of its function of direct intervention
in proceedings in certain circumstances.
Capacity in which Persons may Sue and be Su-ed before
the Labour Courts
Individuals, subject to the laws regarding infancy, lunacy and
other disabilities, and bodies, subject to their being legally constituted, are legal persons capable of suing or being sued in courts
of law.
Before the labour courts, however, legal persons may be parties
to cases only in their capacity as workers or employers or organisations of workers or employers.
Although in principle employers and workers in general have
the right to sue before the labour court, their ability to maintain
an action will further depend on whether the court is competent
in respect of the particular subject in dispute and of the industry
or category to which the persons concerned in a dispute may
belong.
The last consideration is of especial importance with reference
to the State in the role of employer. When discussing the question
of competence it was found that, broadly speaking, the scope of
general labour legislation and the competence of the labour courts
extended to the industrial employees of the State, but not to
public officials, whose employment relations are normally governed
by special legislation and procedure. The possibility of the State

SETTLEMENT OF LEGAL DISPUTES EST LATIN AMERICA

appearing as an employer before the labour court was governed by
the definition of "employee" for the purpose of the labour laws
under which the courts are established. This definition was
somewhat narrowed in the case of Brazil b y reason of certain
categories of industrial employees being assimilated to public
officials ; in the case of Costa Rica and Guatemala, it was sufficiently
wide to include even public officials, other than those elected to
their office. The Labour Code of Chile, however, defines "employer",
for the purpose of t h a t Code and of the labour court, as including,
without prejudice to the provisions of special Acts, the State,
municipal authorities and public undertakings, with reference to
their wage-earning and salaried employees.
Individuals may generally appear in person or be represented
by an advocate, although in Chile, Mexico, etc., they may be
obliged' to appear in person without advisers at that stage in the
proceedings when an attempt is made to settle the dispute by
conciliation.
The question how far persons may be advised and represented
by their industrial associations or by State legal aid services is
considered subsequently.

The Bole of Industrial

Associations

I n Latin America, e.g., in Bolivia, Brazil, Chile, Colombia,
Costa Rica, Ecuador, Guatemala, Mexico, Nicaragua, Panama,
Peru, Venezuela, etc., industrial associations have a corporate
status, making them legal persons under general law, and, in
consequence, capable of suing or being sued.
For example, once an association is lawfully constituted in
Brazil and Costa Rica, duly authorised and registered in Guatemala,
formed according to the labour code in Colombia, registered in
Mexico, etc., it automatically has corporate status. I n Chile
corporate status requires to be specifically granted to the works
union or trade union.
I n Argentina all industrial associations do not necessarily have
corporate status, and not all associations having legal personality
may litigate in regard to matters arising out of industrial relations.
The union which is "recognised" because it is representative and
complies in its constitution with the Industrial Associations
Decree of 1945 1 has a special corporate status, may conclude
1

L . S . 1945, Arg. 3.

LABOUR COURTS LN LATIN AMERICA

collective agreements and may represent the general or individual
interests of its members before the judicial authorities. Nonrecognised associations may still apply for legal personality but,
except where no recognised association exists for a given occupation,
may not bargain collectively or litigate with regard to employment
relations matters—thus they cannot maintain actions before any
authority to safeguard the interests of their members in legal
disputes.
Subject to what has been stated above, a trade union of workers
or employers may appear as a party in collective legal disputes
in the labour courts or, in Argentina, Ecuador and Peru, where
only individual legal disputes are dealt with by the labour courts,
before the other agencies competent for collective legal disputes.
The industrial association is generally competent also to
represent the interests of individual members before the labour
courts.
I n certain cases the law specifically provides t h a t a duly
accredited official or member of the association may appear as an
advocate for the individual member party to a legal dispute. I n
Nicaragua, a member of a union may be represented by any member
of the union duly authorised to argue his case for him, and he may
also be represented by his union in the role of advocate in Brazil.
In Bolivia, Chile and Panama, at least, the relevant provisions are
in such general terms as to make it appear t h a t a similar right of
representation exists. I n Brazil and Colombia, moreover, trade
unions are required to maintain legal aid services for the benefit
of their members.
Especially important are the provisions which enable associations to appear before the labour courts not merely as advocates
for the individual member but as parties taking proceedings in
respect of his personal rights. Recognised associations in Argentina,
industrial associations in Brazil, Costa Rica, Guatemala, Mexico,
Nicaragua, Panama and Venezuela, etc., both industrial associations
and works unions or committees in Chile, Colombia and Ecuador
may bring actions and exercise rights belonging to individual
employees. In order to proceed in this way the association requires
the express consent of the member in Costa Rica and a formal
mandate or request from him in Chile and Venezuela, but no request
or consent is necessary in Ecuador and Mexico. I n Ecuador, the
association exercises such right without prejudice to the right of
the employee to maintain a personal action, while the individual
may intervene in the case in Panama. In Mexico, if the member

SETTLEMENT OF LEGAI, DISPUTES EST LATEST AMEBICA

decides in such a case to appear himself, the intervention of the
union must cease in so far as his personal action is concerned.
I n no case may the action of the association deprive the member
of his right to litigate personally with regard to the individual
legal dispute in which he is directly concerned.
Associations may also intervene in many cases in actions
instituted by other parties, on the ground t h a t they have a contingent interest because the interests of their members are affected.
I n Costa Rica, Guatemala and Panama, for example, if an association or individual sues under a collective agreement, other associations (and persons also in Panama) which are affected may intervene.
I n Mexico, not only may associations parties to a collective agreement intervene when an action is brought thereon by another
association or individual, but any association or person affected
by reason of a collective agreement being declared generally
binding may intervene in any action based on such agreement.

The Role of the State
Quite apart from the question of its appearing as a party in
legal disputes in its capacity as an employer, the State, especially
through its labour department, plays a very important part in the
functioning of the labour courts in many Latin-American countries.
On the one hand, it may intervene in cases before the labour
courts in order to protect persons under a legal disability or otherwise in need of special protection, or on more general grounds.
Secondly, it may provide free legal aid services to advise the
parties and in many cases to provide them with representation
before the courts.
Intervention in cases before the courts is authorised most
frequently with regard to matters in which minors are concerned,
or which relate to the claim of statutory benefits designed to
protect maternity.
I n Costa Rica, the National Child Welfare Board, and, in
Panama, the Child Supervision and Welfare Institute, intervene
in these types of case. I n Guatemala, the General Labour Inspectorate is party to all cases concerning minors, and it or the Social
Security Institute intervenes where benefits for the protection
of maternity are involved.
In Mexico and Panama also, the authorities may intervene
on more general grounds. The solicitor's office for the protection

LABOUR COURTS XN LATE? AMERICA

of labour in Mexico has the duty of taking all ordinary and extraordinary proceedings necessary for the protection of employees,
and the labour inspectors in Panama may intervene whenever the
General Labour Inspectorate considers it necessary in the interest
of justice.
I n many cases, quite apart from actual intervention, there is
provision for the competent authorities at least to hold a watching
brief when matters are being heard by the labour courts. Thus
in Costa Rica, Guatemala, etc., the labour inspectors are instructed
at all times to co-operate closely with the labour courts. On
behalf of their department they keep close contact with all cases
arising within their areas of jurisdiction, and may even t r y to
conciliate the parties. In Chile, Costa Rica, Guatemala, Mexico,
etc., the labour inspectors may be employed by the labour
judge to supplement the evidence before the court by inspecting
the locus of a dispute. The labour inspectors often assist the
courts in the service of proceedings and are sometimes asked to
take witness statements from persons living in remote districts.
I n several Latin-American countries free services are made
available by the Government for the purpose of advising employees
and, in certain cases, employers, as to their legal rights and the
extent to which they may be affected by collective agreements or
labour legislation. Such services, under one form or another, are
provided in Bolivia, Costa Rica, Ecuador, Mexico, Panama, Peru,
Venezuela, etc.
I n Bolivia, Panama and Peru, the free legal advice service
is attached to the Ministry of Labour; the General Labour
Inspectorate in Costa Rica and the Labour Directorate in Ecuador
advise employers and employees on all matters connected with
labour and social legislation; the attorneys of the labour legal
advice office in Venezuela give free advice to workers with regard
to cases coming before the courts and with regard to the interpretation of labour laws, rules or regulations and questions concerning
individual contracts of employment, collective agreements and
other matters affecting the workers' interests. The solicitor's
office for the protection of labour in Mexico gives free advice to
employees or their organisations with regard to any cases arising
out of individual or collective contracts of employment and labour
legislation generally.
I t is of interest to note that, in Haiti, also, although there are
no labour courts, legal disputes arising out of a contract of employment being treated as urgent cases before the ordinary courts,

SETTLEMENT OF LEGAL DISPUTES IST LATIN AMEBICA

employees may apply to the free legal aid service established as a
division of the Labour Office.1
In many of these countries the legal aid service not only provides
free advice but affords free representation to the workers in cases
before the labour courts, for example, in Mexico, Panama, Peru
and Venezuela. I n Venezuela it is the duty of the labour inspectors
to keep the legal advice office informed of pending cases in which
such assistance may be required. Finally, in Brazil, not only
may the labour court's law officer represent young persons having
no legal representative, but the courts may grant free counsel
to persons who prove poor circumstances or whose remuneration
is not more than twice the statutory minimum wage.
Guarantees of the Exercise of the Workers' Bight to Avail
of the Labour Courts

Themselves

In the Latin-American countries the law generally makes
provision in various ways to ensure t h a t the workers shall not be
prevented from enforcing their rights in the labour courts.
In a general way, in Argentina, Brazil, Chile, Colombia, Costa
Rica, Ecuador, Guatemala, Mexico, Nicaragua, Panama and
Venezuela, the individual who is a member of a union is protected
by the legal provisions referred to earlier which enable the union
to enforce his rights on his behalf or to represent him in actions
which he institutes himself. These provisions are rendered all
the more effective by the fact t h a t in most of these countries, the
worker's exercise of the right to join an industrial association is
guaranteed in law. 2
But, in the absence of further specific protection, a worker
who is not a member of a union or a union member who desires
to litigate on his own initiative might still be prevented by his
employer from exercising his rights or be subjected to discrimination for having done so. Such protection is given in two ways.
In the first case, in almost all the countries listed above, the
laws establishing and governing the labour courts form part of the
labour codes or related legislation, which lay down t h a t any
waiver by an employee of rights, benefits or protection granted
thereunder (including his lawful right of action in the labour court)
shall be null and void—except in those specific instances already
1
2

L.S. 1946, Haiti 1.
See Report IV : Industrial Relations, op. cit., pp. 24-26.

LABOUR COURTS IN LATEST AMERICA

referred to in which the law sanctions the settlement of legal
disputes by alternative machinery to the labour courts.
Secondly, in certain cases, there are provisions more specifically
penalising any attempt to infringe the workers' rights. For
example, in Costa Rica, Mexico and Nicaragua an employer may
not, under pain of a fine, perform any act in restraint of rights
granted to employees by law, and the Costa Rican Labour Code
further provides t h a t an employer shall not dismiss or exercise
other reprisals against his employees to prevent them applying
for assistance to the authorities responsible for the administration
of the Labour Code.
Protection may be given not only to the worker as a litigant,
b u t also t o t h e worker who is summoned to give evidence. I n
Costa Rica, Guatemala, Nicaragua, Panama, etc., an employer
is bound, under pain of a penalty, to allow a worker who is summoned
to give evidence the necessary time to attend court without any
deduction from his pay. The employer in Mexico is also bound
to give an employee leave'of absence for this purpose, although
the time lost may be deducted from his work unless he makes it
up. I n Brazil, an employer is liable to a fine, without prejudice
to any claim for compensation which may be open to the worker,
if he prevents or endeavours to prevent an employee from giving
evidence before a labour court or if he dismisses an employee for
having done so. These provisions, of course, may be further
supplemented by the general rules of ordinary law and procedure
with regard to the attendance of witnesses who are subpoenaed
to give evidence.
Finally, in the case more specifically of Brazil and Mexico,
where employees act as members of labour courts or conciliation
and arbitration boards, there are specific legal provisions to protect
the employee in the fulfilment of such duties.
I n Brazil the same provision as has been mentioned above
with regard to employees appearing as witnesses also extends to
workers acting as members of labour courts.
In Mexico, the duty of the worker to act as a member of a
conciliation and arbitration board falls within the article of the
Labour Code under which an employer must allow employees
leave of absence to perform an incidental or permanent duty
for their industrial association or the State. Where the duty is
of a permanent character, or if the employees hold a public elective
office (which includes office as a member of a conciliation and
arbitration board), such employees may afterwards return to the

SETTLEMENT OE LEGAL DISPUTES I N LATIN AMERICA

position which they formerly held and retain all rights arising out
of the relevant contract, provided that they return to their employment within a time-limit of four years (members of conciliation
and arbitration boards are elected for two years).
PROCEDURE

BEFORE

THE LABOUR

COURTS

I t would not be possible here to examine all the different types
of special procedure which may be followed by the labour courts
when dealing with different kinds of cases. For example, when
the case is one arising out of occupational injury the procedure
is generally quite different from that followed in a legal dispute
arising out of contract. And such matters as the winding-up of a
social organisation, or cases brought on the ground of contravention
of labour legislation before labour courts exercising a penal jurisdiction, also involve special rules of procedure.
I t is therefore proposed to consider briefly the main characteristics of the procedure of the labour courts in such matters as legal
disputes arising out of a collective agreement or individual contract
of employment, with special reference to those features which render
the labour courts a more expeditious medium than the ordinary
courts for the purpose of settling such disputes and ensuring the
protection of the persons appearing before them.
General Considerations Governing Labour Court Procedure
The legislation under which the labour courts are established
lays down a number of principles and rules constituting the basis
of the procedure to be followed, with the general proviso that the
rules of ordinary procedure are to apply in order to supplement
the labour court procedure in so far as they are not contrary to
the letter or spirit of the legislation regarding labour courts. There
are specific provisions to this effect in the case of Costa Rica,
Ecuador, Guatemala, Nicaragua, Panama, etc.
Instances will be given, when briefly analysing the different
stages of the procedure, of the various provisions regarding, for
example, the times allowed for filing documents, giving decisions,
etc., so as to show how the express provisions of the labour court
procedure are designed to expedite the hearing in a manner not
possible before the ordinary courts. Clearly, therefore, in such
cases, there can be no question of ordinary procedure being applic-

LABOTTB, COfTETS IN LATIN AMERICA

able. But the exclusion of ordinary procedure from the labour
courts is more complete than might appear from such specific
provisions. The labour judge in Brazil, Colombia, Costa Rica,
Guatemala, Panama, etc., has a general d u t y to expedite the
proceedings and, as will be seen, is allowed much more freedom
than the judge of the ordinary court in assembling the evidence,
summing u p the case and giving judgment. He must take f u l
account of principles of equity, n e t only in giving grounds for his
judgment, but also in his general conduct of the proceedings.
The specific provision in the Labour Cede of Panama t h a t the rules
of the Judicial Code apply only in se far as they are not contrary
to the principles of labour law and equity is a fair statement of the
situation prevailing in almost all those Latin-American countries
which have established labour courts.
I t is necessary, therefore, to consider the different stages in
labour court procedure as taking place in an atmosphere of no
less dignity but of much greater freedom than is possible in the
ordinary courts. Where the labour court rules are specific they
exclude the ordinary court rules. Where they are not specific
the general mandate of the labour judge and his application of
equity will still prevail in preference to the strict rules of ordinary
procedure. I t is only when equity is satisfied and the expeditious
transaction of business by the labour court will-be ensured, t h a t
ordinary procedure can supplement any omissions there may be
in the procedure laid down for the labour courts. I t will be seen
how these general precepts are reflected at each stage of the proceedings.
Institution

of Proceedings

The application to the court may be oral or written, as in
Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador,
Guatemala, Nicaragua, Panama and Venezuela. I n principle the
oral application is favoured. If the application is in writing, the
p a r t y is often liable to be penalised by having to make good formal
defects specified b y the judge. On the other hand, the p a r t y
making oral application to the court is assisted by the clerk of the
court, who sees t h a t all necessary particulars are entered by him
on the file. In Bolivia the initial claim may be lodged with the
police authorities, who perform the administrative duty of bringing
it to the notice of the labour court. B u t in Mexico proceedings,
which begin with a preliminary conciliation hearing before the
municipal or Federal conciliation board, must be initiated by

SETTLEMENT OF LEGAL DISPUTES m

LATEST AMERICA

written application to the chairman of the municipal council or
the Federal labour inspector, as the case may be.
The initial application to the court, whether written or oral
and drawn u p by the clerk, must contain certain essential particulars, such as the names and addresses of the persons concerned, the
facts on which the plaintiff bases his claim, and the names of the
witnesses who can give evidence to support him. Subject to this
requirement, no strictly prescribed form is laid down for the application, nor indeed for other documents and instruments necessary
in the case.
Further time and expense are saved by the manner in which
the application is dealt with once it has been lodged. Contrary
to the procedure in ordinary courts, the court itself prepares the
necessary copies of the summons and serves it on the defendant,
instead of this being left to the plaintiff and his advisers.
Thus, in Costa Rica and Guatemala, the judge fixes a hearing
within three days of the issue of the summons, and in Chile within
five days. But in all cases the period between application and
hearing is much shorter than is the case in the ordinary courts,
and may be still more reduced if the case is urgent. Within the
short interval allowed, the court has to see t h a t the defendant is
duly summoned to attend. I n Mexico, the municipal council
chairman or labour inspector who has received the application
calls upon the parties to nominate their representatives on a
conciliation board within twenty-four hours, and an early date is
arranged for the preliminary hearing. In Panama the defendant
is required to file his defence within the three days following the
application (in other countries he generally does this at the preliminary hearing), and the judge then specifies the facts requiring proof
and a hearing is arranged to take place within a further three to
five days.
Preliminary Hearing and Conciliation
At the first hearing the proceedings usually begin with the
defendant stating his grounds of defence, if he does not admit the
facts alleged in the application or the right of the plaintiff to the
relief which is claimed ; this is the procedure in Brazil, Chile, Colombia, Costa Rica, Ecuador, Guatemala, Nicaragua and Venezuela. At
the same time the defendant may state a counter claim. In Panama,
defence and counterclaim are already filed before this hearing.
At this point in the proceedings the judge calls upon the parties
to t r y to settle their dispute by agreement. I n all the countries

LABOUR COURTS IN LATES" AMERICA

mentioned above the judge has this specific duty to attempt to
persuade the parties to settle their dispute by conciliation. If
conciliation is successful, the agreement reached will be incorporated
in the award with the force of res judicata.
I n Argentina, the conciliation procedure is somewhat different,
the parties being required to seek conciliation before a special
conciliation board before ever the case is brought before the
labour court.
I t is important to note, however, t h a t this is not the only stage
in the proceedings at which the parties may settle their dispute
by agreement. In all cases of dispute, and at any stage of the
proceedings, the parties concerned may reach an agreement which
will terminate the hearing, and it is clear that, quite apart from the
specific provisions mentioned aboya, the labour judges must
always facilitate such an amicable settlement if the opportumty
should arise. I n Brazil the importance of conciliation is emphasised
by further provisions that the higher courts also shall attempt
conciliation in certain cases, and t h a t the labour court of first
instance, besides making the conciliation attempt after the defence
has been stated, shall, if such attempt fails, make a iurther effort
a t the close of the hearing before judgment is given.
I n Mexico, the municipal and Federal conciliation boards have
no judicial function, being competent only to conciliate the dispute
and not to give any decision. The hearing properly speaking only
takes place after the conciliation board, having failed to effect
a settlement, has referred the matter to the competent central
or Federal conciliation and arbitration board. These latter
boards, before embarking on the actual hearing, must make an
attempt to seek a settlement by way of conciliation. The solicitor's
office for the protection of labour may also put forward proposals
for an agreed settlement. If all these attempts fail, the case
proceeds to actual hearing as it does in the labour courts already
mentioned.
The Hearing after Conciliation has Failed
I t is not proposed here to examine either the often detailed and
sometimes complicated rules regarding challenges and disqualification of judges or members of labeur courts or of conciliation
and arbitration boards, or the rules regarding demurrers, sequestration, etc., which, while important, vary considerably from country
t o country and do not illustrate the principles of the procedure so
clearly as do such considerations as the method of taking evidence

SETTLEMENT OF LEGAL DISPUTES IN LATIN AMERICA

expeditiously, and the powers of the judges to elicit evidence in
ways not always open to the ordinary judiciary.
The pleadings having been filed or stated, the judges are still
bound by the overriding provision t h a t they must shorten the
procedure as far as is consistent with the dispensation of justice.
Hearings before the labour courts of first instance are generally
public hearings, although the conciliation attempt has generally
been made in private. This follows the usual rule in the ordinary
courts—public hearing in the open court, while any discussions
between the parties are held in private with or without the judge.
Equally consistent is the provision in Colombia and Mexico, etc.,
enabling a hearing to be held in private in the interests of morality
or public decency.
But it is in the actual taking of the evidence and in the rules
regarding witnesses and in the brief time-limits prescribed for
adjournments, where any are allowed, and for the rendering of the
judgment after the close of the proceedings, that the contrast
between the procedure of the labour courts and that of the ordinary
courts is most clearly marked.
I n almost all cases it is provided t h a t evidence shall be taken
orally, t h a t witnesses may be examined and cross-examined
by the parties or their representatives, as may the parties themselves, and t h a t brief minutes shall be taken of the evidence. The
time spent on the proceedings is limited in a variety of ways, e.g.,
by the strict exclusion of irrelevant evidence, the limitation of
the number of witnesses, the taking of evidence by interview
when the witness lives in a remote district, the power given to the
judge of taking steps to procure further evidence, and the provision
t h a t proceedings may go by default in the absence of a party
without requiring an adjournment. The whole object is to take
the evidence so far as possible at the one hearing; if that is not
possible, adjourned hearings take place as quickly as possible
and are not, as in the case of the ordinary courts, often liable to
lengthy delays. Some instances may with advantage be given of
how these various objects are achieved.
Witnesses are subpoenaed by the court, and the fact t h a t the
parties are required at an early stage in the proceedings to inform
the court of the witnesses they propose to call greatly facilitates
the speedy service of the necessary witness summonses. Employers,
too, are generally obliged expressly to allow their employees to
attend court to give evidence during working hours without loss
of wages.

LABOUR COURTS IN LATIN AMERICA

The evidence is generally shortened by limiting the number of
witnesses whom the parties may call with respect to each separate
point. This process is further facilitated in Chile, Costa Rica, etc.,
by the judge having specified the particular points on which
evidence must be taken. Four witnesses are allowed for the
purpose of proving each particular point in Costa Rica, Guatemala
and Panama, two in Chüe, three in Brazil (with provision for six
in certain cases). These are maximum figures which may generally
be reduced by the judge if he thinks fit. I n Chile, Costa Rica,
Nicaragua, Panama, etc., the judge may appoint either one or
two experts if necessary and it is normally arranged t h a t their
reports shall be available for the first full hearing. I n Brazil
each party may call one expert only.
Further time and expense are saved in several countries by the
practice of not requiring witnesses living in remote areas to make
the journey to the labour court. I n Costa Rica, Guatemala,
Panama, etc., provision is made for the evidence of such persons
to be taken by other judicial or labour authorities.
Not being bound by the more formal rules in eliciting the
evidence, the judge has a wide discretion in the measures he may
adopt to secure the truth. Not only may he question the witnesses
on points not necessarily arising out of their answers to counsel,
but he may inspect the locus of the dispute or, for example, in
Chile, Guatemala, etc., he may request the labour inspector to do
so. In Mexico the members of conciliation and arbitration boards
have an especially wide authorisation to make any inspections or
take any other action necessary to arrive at a full knowledge of
t h e facts at issue.
All these provisions tend towards the realisation of one object—
to obtain all the evidence and to enable the court so far as possible
to complete the hearing at one sitting. If this is not possible, the
adjournment is extremely short. I n urgent cases, moreover, the
courts of Brazil, Chile, Colombia, Costa Rica, Guatemala, Mexico,
Nicaragua, Panama, Venezuela, etc., may sit on a dies non or outside
normal court hours. I n certain circumstances it may not be
reasonable for a party to be expected to produce all his evidence
at one hearing—for instance, where points are raised in counterclaim or reply which require evidence in rebuttal to be brought.
I n such cases, however, the time allowed for furnishing such
evidence is very short—in Costa Rica, Guatemala and Panama,
for example, it is only twenty-four hours.
If a party fails to attend the hearing, and has no reasonable

SETTLEMENT OF LEGAL DISPUTES EST LATIN AMEBICA

excuse, such, as illness, the proceedings may generally go by default
without the need for an adjournment. Most usually a defendant
who does not appear is deemed to admit the claim, but sometimes
the court may appoint someone to represent him in his absence.
For instance, in Nicaragua, in such a case, the court may appoint
the labour inspector to do so. I n Brazil, if an employee is ill or has a
similar good reason for not attending, he may be represented
by his industrial association or by any employee of the same
occupation as himself.
All the witnesses having been examined, and such other measures to obtain evidence having been taken as the court thinks fit,
the hearing is declared closed. But very often it is still open to
the court, in the interval between the hearing and judgment, to
take steps to obtain further evidence, if necessary, as, for example,
in Chile, Ecuador, Mexico, etc. This informal method of completing
the evidence is in striking contrast to the normal rules of ordinary
law, under which evidence could not be procured in this way,
but would need to be produced at a further hearing, where the
witnesses thereon would be again cross-examined.
The period prescribed within which judgment must be given
is as brief as is consistent with a due appreciation of the evidence.
This period often varies according as the essential facts were
admitted or disputed. A few specific examples may be of
assistance
I n principle, if the facts were agreed, the judge gives his award
at the close of the hearing, but is allowed a few days to consider
it if necessary. I n Costa Rica, Guatemala and Panama, for instance,
the award in such a case must be given within three days.
If the case was not admitted, the time allowed for rendering
judgment is generally somewhat longer, but still strictly limited.
I n Costa Rica, Guatemala, Nicaragua and Panama the limit is
five days, in Chile two weeks in cases concerning wage-earning
employees and ten days in cases concerning salaried employees.
I n Mexico the situation is a little more involved, owing to the need
for the various members of the special groups of the arbitration
boards to study the opinion of the assistant chairman, which is
then sent with their attesting signatures or their dissenting opinions,
as the case may be, to the chairman of the full board. Here again,
however, firm time-limits are laid down.
I t should be remembered t h a t in cases where the court seeks
further evidence after the hearing at which the witnesses were
examined, these time-limits only begin to run from the date when

LABOUR COURTS IN LATIN AMERICA

such further evidence is complete. This does not mean t h a t the
period becomes indefinite, as the time for taking such further
evidence is itself prescribed; in Panama, for instance, not more
than ten days are allowed for this purpose.
Judgment
The judgments of the labour courts are, like those of the ordinary courts, decisions binding on the parties and having the force
of res judicata, subject only to such rights of appeal as may be
prescribed. This is equally true where the case is settled by
conciliation before the court and the agreement incorporated in
the award, although here there is generally no appeal to a higher
court. In the countries under review the verdicts of the labour
courts are variously referred to as judgments, decisions or awards,
but whatever the terminology employed those verdicts are
invariably binding judgments in the ordinary sense of the word.
Compared with the judge of the ordinary court, however, the
labour judge has far more freedom in the manner in which he
appreciates the evidence and formulates his decision. He has,
for example, been able to admit much evidence which might have
been excluded in an ordinary court on technical grounds, and he
has been able to procure further evidence if necessary, under the
flexible rules of procedure examined above, which a judge of the
ordinary court would probably have been unable to obtain if the
parties did not choose to make it available.
This flexibility of labour court procedure is reflected in the
provisions laid down in the legislation governing these courts with
regard to the rules which shall guide the judge when formulating
his decisions. A few specific instances will illustrate this point.
First, as in Costa Rica, etc., if there is a conflict of law as
between labour and other legislation, the provisions of labour
legislation are to prevail.
Secondly, the judges have great freedom in weighing the
evidence and applying rules of equity. I n Mexico the award
is pronounced without legal formalities, and the facts are considered
in accordance with their conscientious evaluation by the members
of the boards ; in Costa Rica, Colombia, Guatemala, Nicaragua and
Panama, the judge is to estimate the value of the evidence freely
without being bound by rules of ordinary law; in Chile he is instructed specifically to exercise his discretion in estimating the
value of the evidence ; in Brazil the ccurts are given full discretion

SETTLEMENT OF LEGAI, DISPUTES IN LATEST AMERICA

in the conduct of the proceedings, including the manner in which
they reach their judgments, which must, moreover, take account
of the interests of the public as well as those of the parties.
Thirdly, the drafting of the judgment, when it has been reached,
is much less formalised than is the case with judgments of the
ordinary courts. Instead of laying down detailed forms and
precedents, the rules merely prescribe the matters which must be
included in the judgments. Thus, it is generally provided t h a t the
judgment shall contain a summary of the points of the claim and
defence and of the evidence adduced, the opinions of the court on
the merits of the evidence, and the principles of law and equity
and other considerations on which the finding is based.
I n certain cases the judge, with his wide discretion, may apply
law and equity in such a way as to grant greater relief than was
actually claimed. Thus, in Colombia, if a claim for wages reveals
that an employee, by virtue of the application of labour legislation,
has in fact a right to a larger sum than he has sought to recover,
the judge may give full effect to that right in his judgment. And in
Costa Rica, in cases concerned with wrongful dismissal, a judge
may order the payment not only of wages claimed in lieu of notice,
but also of wages calculated from the date of the termination of
the contract of employment until the date of the final judgment.
Finally, if the judgment when rendered is still not clear to the
parties, either of them has the right in many cases, usually within
a period of twenty-four hours, to request the court to make additions
to the award or to append explanations to elucidate certain points
in the award.
Appeals
Appeals from the Labour Court of First

Instance.

In none of the Latin-American countries is the labour court
of first instance precluded from dealing with a case because of the
high amount of money involved in the dispute. The value of the
subject matter in dispute is only of importance in deciding whether
the lower court acts as a court of first instance or of sole instance.
Labour courts sit as courts of sole instance if the value of the
subject matter in dispute does not exceed 1,000 pesos in Argentina
and Chile, 500 to 3,000 cruzeiros, according to the locality, in
Brazil, 300 pesos in Colombia, 100 colones in Costa Rica, 1,000
sucres in Ecuador, 100 quetzals in Guatemala, 100 córdobas in
Nicaragua or 50 balboas in Panama. The Mexican conciliation

LABOUR COtTRTS EST LATIN" AMERICA

and arbitration boards always act &s courts of sole instance irrespective of the amount involved.
In these countries, therefore, there is generally no right of
appeal on the facts if the value of the case does not exceed these
respective amounts. However, in Ecuador, the plaintiff may
appeal, irrespective of the amount involved, if the verdict is wholly
or partially adverse to his claim. In Mexico an award may be
reviewed by the ordinary courts if it infringes constitutional
rights. The Colombian Labour Code of 1945 provided for a right
of appeal in cases of no matter how small a value if the award
involved a fundamental question of principle in labour law, but
the Labour Courts Decree oí June 1948, which declares all legislation
contrary to t h a t Decree to be suspended, makes no reference to
such a provision. In Guatemala, an appeal will lie in any case
against a refusal by the court of a party's request to have additions
or explanations added to the award. I n Brazil, although no
appeal lies in cases of less value than is specified above, an objection
lies in such cases to the court of first instance within five days of
its issuing the award in an individual dispute relating to wages,
holidays or compensation for the cancellation of a contract of
employment, and the court in question must examine the objection
within a further five days. No provision is made, however, for
any appeal against the decision made with regard to the objection.
There is no appeal against agreements reached by conciliation
during the labour court procedure which are incorporated in the
award of the court of first instance, irrespective of the amount
involved. Nor, as a rule, even in cases in which the lower court
is a court of first instance, do appeals lie against interlocutory
orders or decisions as to procedure, bu j only against final judgments
or decisions which make the continuation of the case impossible.
Subject to the limitations mentioned in the preceding paragraphs, appeals will lie in those cases in which the value of the
subject matter exceeds the amounts specified or cannot by its
nature be ascertained. Appeals from the labour courts of first
instance he to the superior labour courts in Costa Rica, Nicaragua
and Panama, to the regional courts in Brazil, to the Labour Court
of Appeal in Argentina and Venezuela, to the special labour appeal
courts in Chile, to the Chamber of Appeals in Guatemala, to the
National Labour Court in Bolivia, and to the superior district
court in Ecuador. I n Peru appeals lie to a labour court of appeal
with regard to disputes affecting wage-earning employees, and to
the ordinary courts in the case of salaried employees. I n Colombia

SETTLEMENT OF LEGAL DISPUTES IN LATEST AMEBICA

the appeal will normally lie to the sectional court, but, where the
subject matter in dispute amounts to more than 10,000 pesos, and
both parties consent to such a course, an appeal may lie direct to
the Supreme Labour Court, if it is alleged t h a t the verdict is
contrary to or involves a misinterpretation of law.
An appeal must generally be lodged within a very short period
of time compared with t h a t usually allowed in the ordinary courts.
Appeals must be lodged, for instance, within three days of the
issue or service of the award in Bolivia, Chile, Costa Rica, Guatemala, Nicaragua and Panama, and within ten days in Brazil.
Procedure where no Appeal is Lodged.
I n principle, the judgment of the labour court of first instance
becomes definitive and enforceable once the time-limit has expired
without an appeal being lodged. This rule is modified, however,
in certain Latin-American countries by the requirement t h a t
decisions in certain cases still require to be reviewed or confirmed
by a court of higher authority before they may be enforced.
Thus, in Costa Rica and Nicaragua, where a case is of unascertainable value or involves a sum exceeding 2,500 colones (Costa
Rica) or 500 córdobas (Nicaragua), the Superior Labour Court
must review the case and give its opinion before the judgment
becomes operative. In Colombia, even in the absence of any
appeal, the verdict of the court of first instance must be reviewed
by the sectional court if it is completely adverse to the worker or
is contrary to the interests of the nation, a department or a municipality.
Bight of Appeal from Labour Courts
of Intermediate
Jurisdiction.
I n Brazil and Colombia, where the labour court hierarchy
consists of courts of three separate instances, there may be appeals
in certain cases from the courts of second instance to those of third
instance.
I n Colombia there is a right of appeal from the sectional court
to the Supreme Labour Court in a case the subject matter of which
has a value of over 3,000 pesos, provided t h a t the verdict is contrary
to or involves a misinterpretation of law, or in any case where the
verdict of the sectional court on an appeal from the court of first
instance has worsened the position of the appellant. A provision

LABOUR COURTS IN LATIN AMERICA,

in the Labour Code of 1945, which is not repeated in the Decree
of June 1948, gave a right of final appeal to the Supreme Labour
Court in any case where the appellant was a union or federation
of unions of employers or employees which was a party to the case
and of which the persons concerned were members.
In Brazil, an appeal lies from the regional court to the Superior
Labour Court in cases where the regional court has acted as a court
of first instance (e.g., in any collective legal dispute arising out of
the interpretation or application of a collective agreement). I t
is necessary to mention also the provisions regarding extraordinary
appeals which may in some cases lie against decisions of the regional
court which are given by that court as a court of final instance
(i.e., when it has heard an appeal from a conciliation and arbitration board in an individual legal dispute). Such an appeal may
be lodged not later than fifteen days after judgment with the
regional court concerned, on the ground t h a t a given rule of law
has been interpreted in a manner differing from t h a t in which it is
interpreted by a regional court or by the Superior Labour Court,
or t h a t the decision is contrary to the express letter of the law.
If the regional court dismisses the extraordinary appeal against
its own decision, the appellant may enter an appeal by instrument
to the Superior Labour Court within a time-limit of five days.
Right of Appeal from Superior Labeur
in Certain Cases.

Courts

The decisions of the Supreme Labour Court of Colombia,
the superior labour courts of Brazil and Nicaragua, the Chamber
of Appeals of Guatemala, and the labour courts of appeal of Argentina, Chile and Venezuela are final decisions and there is no further
appeal on the merits of the cases.
I n Bolivia, Costa Rica and Panama, however, there is a right
of ordinary appeal from the labour court of highest authority.
Appeals lie in Bolivia from the National Labour Court to the
Supreme Court of Justice where the value of the subject matter
exceeds 1,000 bolivianos. I n Costa Rica, in the case of a legal
dispute where the value of the subject matter in dispute cannot
be ascertained or exceeds 2,500 colones, an appeal lies from the
Superior Labour Court to the Supreme Court of Justice, but the
latter court will consider on appeal only those parts of the judgment
which are unfavourable to the appellant. An appeal also lies to
the Supreme Court in Costa Rica in cases relating to the winding-

SETTLEMENT OF LEGAL DISPUTES IN LATIN AMERICA

u p of a social organisation. I n Panama, in any cases relating t o the
winding-up of a social organisation, and also in the case of an
individual or collective legal dispute in which the value of the
subject matter in dispute exceeds 500 balboas, there is a right of
appeal from the Superior Labour Court to the Court of Administrative Disputes, but the jurisdiction of this latter court will be replaced
by t h a t of the Supreme Labour Court when it is appointed.
Procedure in Labour Courts of Appeal.
The principles of procedure in superior labour courts do not
differ materially from those already mentioned when describing
the normal procedure in the labour courts of first instance. The
same overriding need exists to hear the cases with a minimum of
delay, the parties may still take advantage of free legal aid where
such services are provided, and the judges are still to estimate the
evidence freely and apply rules of equity in formulating their
judgments as in the cases heard before the lower courts. A few
specific instances may reveal more clearly how the continuity of
the expeditious and flexible procedure of the labour courts of
first instance is maintained.
If the parties during the appeal come to an agreement, it may
generally, if not contrary to law, be embodied in the award of a
superior labour court just as in the award of a court of first instance.
There is not generally, however, the same specific duty on the part
of superior labour judges to seek to settle cases b y conciliation
before judgment is given. But in Brazil the duty of all labour
courts to settle cases whenever possible by conciliation is very
strongly emphasised, and there may arise cases of collective legal
disputes which, because they affec^more than one Federal province,
come before the Superior Labour Court as a court of sole instance.
I n such cases at least, the superior court would appear to have the
same duty as the court of first instance to seek an agreement by
conciliation before proceeding to judgment.
The question of what action the superior court may take with
regard to the decision of the lower court is not materially affected
by such considerations as whether it has jurisdiction by way of
ordinary appeal or extraordinary appeal or b y review procedure.
Such considerations govern only the right of a party to have his
case reheard at all.
Whatever the means by which the case comes before it, therefore,
the superior court may confirm, amend or revoke the decision of the

LABOUR COURTS IN .LATIN AMERICA

court below. In several cases, as in Costa Rica, Nicaragua and
Panama, for example, instead of issuing an actual verdict the
superior court may, if it observes errors in formality committed
by the lower court, refer the case back with the necessary directives
to ensure that justice shall be dene. Generally, before giving
their verdict, superior courts may call for further evidence if they
think fit, and they have the same latitude as the lower courts
with regard to the way in which such evidence may be obtained.
Their judgments, again, must state the principles of law and
equity on which they are based.
The time-limits within which superior courts must render
their judgments normally allow a little more time for consideration
than is the case in the courts of first instance, but they are still
much shorter than those normally prescribed under ordinary
judicial procedure.
For example, the special labour appeal courts in Chile must
issue their awards within five days from receiving the documents
from the lower courts; the maximum periods are seven days in
Costa Rica, three days in Nicaragua, etc., although additional
periods, varying up to fifteen days, may be allowed where the
courts require to obtain further evidence.
Costs

In principle the use of the labeur courts is free. That is to
say, pleadings and other documents necessary in cases before the
courts are usually exempt from stamp duty and no charge is made
for the making of copies and service of documents by the courts.
This does not mean, however, that a party who engages an advocate
is exempt from paying his fees, or that a losing party may not be
sentenced to pay the costs occasioned to the other party by the
general conduct of his case. But certain other considerations
tend to minimise these general costs.
In the first place, the whole procedure, with its brief timelimits, reduction in the number of possible witnesses and simplification of the manner in which evidence is taken, is designed to limit
the cost of an action in comparisca with the costs of ordinary
judicial procedure. This saving is increased materially by the
provision in many Latin-American countries of free legal aid
services and by the maintenance of legal aid services in certain
cases by the industrial associations.
The heaviest item in litigation is normally the fees paid to

SETTLEMENT OF LEGAL DISPUTES D i LATEST AMERICA

counsel. But in many Latin-American countries, e.g., Mexico,
Panama, Peru, Venezuela, etc., free legal representation before the
labour courts may be afforded by the same agencies as give free
legal advice, and, in Brazil, the court ex officio may grant free legal
representation to persons in poor circumstances, the requirement
in this latter case being much less stringent than t h a t generally
prevailing where a party seeks to appear as a "poor person" before
an ordinary court of law.
The judge does, however, in many cases have the right to
sentence the losing party to pay the costs of the action, for example,
in Brazil, Chile, Costa Rica, Panama, etc. But the obtaining of a
judgment does not, to the same extent as in the ordinary courts,
entitle the successful party necessarily to obtain judgment with
costs. I t is to a large degree in the discretion of the judge whether
his award contains any order at all making one party liable for the
costs of another, although the law of Brazil makes it appear that
a judgment shall always carry a right to costs.
Where costs are ordered, two particular provisions in the
legislation of Latin-American countries still tend to keep them
within reasonable limits.
In the first place, provision is sometimes made that costs shall
be calculated according to a prescribed scale. This, of course, is generally true of the ordinary courts, although some of the heaviest items
(especially counsel's fees) may not be fixed, but, whereas the costs
in an ordinary court, even scale costs, may often amount to several
times the value of the subject matter in dispute, the scales of costs
in the labour courts are drawn on such a basis as to prevent this
situation arising. One of the most detailed examples of scales of
costs in labour courts is afforded by the legislation of Brazil. Here
costs are awarded on a graduated percentage scale; costs are
assessed at 10 per cent, in a case whose subject matter is of no
greater value than 100 cruzeiros, and the percentage progressively
decreases for cases of a greater value to a figure of only 2 per cent.
where the case has a value of more than 10,000 cruzeiros. These
figures are given to demonstrate how a scale of labour court costs
bears no proportion at all to the usual scale prevailing in an ordinary court.
The second provision to which attention may be called refers
once more to counsel's fees. There are cases where a party
engages his own counsel, either because no free legal aid service
is offered or because he prefers to choose his own representative.
The charges of such counsel are limited in the labour courts of

LABOTTB COURTS IK LATEST AMERICA

Chile, Costa Rica, Nicaragua, Panant, etc., by a provision that the
judge in his award shall fix the amount of counsel's fees, despite
any private agreement that may have been made to pay higher
sums.
Thus the labour court legislation of the majority of LatinAmerican countries has gone a long way towards removing the
fear of heavy litigation costs which, in many countries where
there are no labour courts, may prevent a worker from enforcing
his rights before an ordinary court of law.
Enforcement of Decisions
The final stage in any procedure, whether or not there has
been an appeal, is the enforcement of the judgment once it becomes
final and operative.
In the Latin-American countries, steps have been taken to
see that once a labour court judgment becomes final and no further
appeal is possible the successful party may have his judgment
effectively enforced by the court by which it was rendered. Even
in the case of an award by voluntary arbitration, where the parties
have contracted to ae bound by the verdict, it would normally

be necessary to undertake fresh proceedings in another court to
enforce the award. But the party does not, as a rule, have to go
outside the labour court to enforce his award, at least as regards
an award given in a civil legal dispute, although, in a few cases
where a labour court has exercised penal jurisdiction for contravention of labour legislation, other authorities may require to be
invoked before fines are paid. Nor does the successful party have
long to wait before the procedure cf enforcement is initiated—
usually within a much shorter period than prevails in the ordinary
court.
The general method of enforcement of awards of the labour
courts is for those courts to issue distraint or levy execution on
sufficient of the goods of the debtor to meet the sum and costs
awarded; this is the procedure in Brazil, Chile, Colombia, Costa
Rica, Guatemala, Mexico, Nicaragua and Panama. In Ecuador
awards are executed according tc the rules of summary procedure.
Where distraint may be issued, the successful party may make
the necessary application to the court, but in several cases the
court may-order distraint ex officio without the need for an application by the party concerned, as in Brazil, Chile, Costa Rica, Guatemala, Mexico, Panama, etc. In BraziLthe labour courts law office

SETTLEMENT OF LEGAL DISPUTES I N LATIN AMERICA

may also apply for the issue of a distress warrant by the labour
court.
Such distraint is issued within a very short time after the
award becomes final. Thus, in Costa Rica the labour judge must
ex officio order distraint immediately the award becomes final;
in Brazil the court issues a summons to pay the sum awarded
within forty-eight hours or to deposit such sum in court on pain
of distraint, and distraint may likewise be issued in respect of an
award to pay by instalments, being repeated in respect of each
unpaid instalment ; in Panama distraint is issued automatically if an
award is not complied with within three days; in Guatemala
execution is levied if the sum due under the award is not paid
within five days. In Mexico the chairmen of conciliation and
arbitration boards are made specifically responsible for ensuring the
prompt enforcement of awards, including those which embody
conciliation agreements. If the parties are present when the
award is made, the chairman must endeavour to secure their
agreement within 72 hours regarding the means by which the
award shall be carried out, and, in default of or in the event of
non-compliance with such agreement, the chairman initiates
distraint proceedings.
In one or two cases distraint is not the only means of direct
enforcement available to the labour courts. In Guatemala, if an
award ordering the payment of wages has not been complied with
after three days, a fine may be imposed in addition ; in Costa Rica
awards for the payment of wages are specifically to be enforced
if necessary by imprisonment.
Finally, it is generally provided as a further safeguard that in
the event of insolvency, in which case execution alone might not
secure the satisfaction of the judgment, wages or compensation
granted by an award shall rank as debts having priority.
While very short time-limits are prescribed for the issue of
distraint and the consequent sale of property by public auction,
provision is of course made for such sale to be postponed pending
any appeal which may be made against the distraint proceedings
and there is also provision for third parties to take action to protect
their rights in the event of their property being seized.

CHAPTER IV

CONCLUSIONS

The survey of legislation and practice reveals t h a t the large
majority of the countries of the American Continent have established
special procedures for the settlement of legal labour disputes.
I t should be remembered that the term "legal labour disputes"
includes all disputes t h a t may arise as to the application or interpretation of a right already acquired, whatever the source of that
right may be—individual contract of employment, collective
agreement, law, custom, etc.
I t has been deemed necessary to provide for methods of settlement of a type appropriate to this kind of dispute in order t h a t the
persons concerned may thus be able to obtain the prompt enforcement of their rights without requiring to have resort either to the
long and onerous judicial procedure at common law or to a trial
of economic strength.
Accordingly, as was shown in the preceding chapters of this
report, these countries have adopted, in the main, one of the two
following methods :
1. I n a number of countries, especially the United States and
Canada, preference has been given to contractual procedure for
settling disputes arising out of the interpretation of the terms of
an agreement, the rules of procedure being established by the
parties themselves under collective agreements.
2. I n other countries, and particularly in the majority of the
Latin-American Republics, special machinery for dealing with
legal labour disputes, or at least for certain types of such
disputes, has been established by law. The titles which the
legislature has given to these agencies vary from country to country.
Most frequently they are known as "labour courts", but sometimes
as "conciliation and arbitration boards".
I n several countries, labour commissaries or labour inspectors
assume the functions of labour judges.

CONCLUSIONS

But whatever their official title, it is clear, from the powers
which are accorded to them, the rules of procedure which they
must follow and the nature of the decisions which they have to
give, t h a t all these agencies exercise judicial functions. There
is constituted, therefore, a real "labour courts system".
I n the first of the two sections of this chapter which follow,
reference will be made to the main features of the two methods of
settlement under review and, in the second section, to the conditions
which the labour courts must satisfy in order t h a t their
mission may be effectively accomplished.

Methods of Settlement of Legal Labour Disputes
The majority of collective agreements now in force in the
United States and Canada contain provisions concerning the
settlement of individual or collective disputes which may arise
out of the interpretation of an agreement. This system, which
appears to function to the satisfaction of all concerned, presents
certain advantages which may be summed up as follows : the
administration of justice in labour matters is, so to speak, carried
out by the parties concerned, personally and on the spot, and,
therefore, with sufficient rapidity to avoid complications arising
which might be harmful to good labour relations. A preliminary
selection is carried out which enables those disputes which do not
merit further consideration to be laid aside at the beginning. This
system, since it is set up in the various undertakings or occupations, is capable of being adapted to the conditions peculiar to
each locality or industry. The system generally consists of agencies
of lower and higher instance which offer to those concerned all
necessary guarantees for a thorough and impartial consideration
of disputes.
The settlement of legal disputes by contractual methods is,
in effect, a development on another basis of the principle of collective bargaining. But because of its very contractual nature, this
system also has certain weaknesses. I n the first place, it cannot
be p u t into effect except where collective agreements have actually
been concluded. However, even in the absence of any collective
agreement, disputes may arise between employers and workers
which it is equally necessary to settle promptly. Moreover,
collective agreements do not always prescribe measures for the
settlement of legal disputes. A certain amount of experience

LABOUR COURTS IN UlTTN

AMERICA

is required in order to establish such agencies, and technical
knowledge is necessary if the best -ase is to be made of them.
Finally, the carrying out of the decisions depends exclusively on
the good will of the parties. If the parties do not voluntarily
accept the award, there is no other means of enforcing it except
b y taking action before the ordinary courts or b y resorting to
economic pressure.
The object of labour courts is to remedy these weaknesses,
especially in those countries where collective bargaining has so
far made little progress. They afford to those concerned (workers
as well as employers) adequate protection of their rights, such as a
collective agreement cannot always give them. They perform an
even more important role in those countries in which collective
agreements themselves are governed by legal regulations, with
the result t h a t not only is it necessary to interpret the agreements,
b u t also t o consider their validity and legal effects.
Finally, in all those countries in which the role of legislation
in the regulation of labour relations is greater than t h a t played
by collective agreements—as evidenced by the large number of
labour codes at present in force m Latin-American countries—
it is only a labour judiciary which can interpret the legal provisions,
having regard both to their juridical scope and to their social
implications.
However, these two methods of settling disputes, far from
being mutually exclusive, may supplement one another.
The existence of a contractual system does not render labour
courts superfluous, because the latter will always constitute
t h e final authority to which the p a r t y may have recourse in order
t o enforce the recognition of his rights by the opposing party.
Moreover, almost all the laws in force provide t h a t labour courts
must refrain from any intervention whei'e the parties have agreed
t o submit their dispute to a contractual method of settlement.
I n addition, the labour court to which a dispute is referred must
endeavour, under the provisions of all the national regulations,. to
conciliate the parties at each stage of the procedure.
Such provisions reveal clearly t h a t the establishment of
labour courts is not incompatible with the settlement of legal
disputes by methods prescribed under agreements.
From this short analysis of the main features of the two methods
of settling legal labour disputes, the following conclusions may be
drawn :

CONCLUSIONS

1. For the maintenance of good relations between employers
and workers, it is desirable to provide an appropriate method
for the settlement of legal labour disputes.
2. It would be desirable to recommend to employers and
employers' organisations, and to workers' organisations, that they
should include in collective agreements provisions concerning the
conciliation and arbitration of disputes which might arise out of the
application or interpretation of those collective agreements.
3. In the event of it not being possible to settle legal labour
disputes by methods laid down by agreement, it would be desirable
to establish labour courts by law. The labour courts should,
however, refrain from any intervention in a dispute where the
parties have agreed among themselves that the dispute should be
settled by conciliation or arbitration. In any event, where a
dispute comes before a labour court, the court should be obliged
to endeavour to settle the dispute by conciliation rather than by
judgment procedure.
Labour Courts

It was pointed out in the survey of legislation and practice
that legal labour dispules are not distinguishable, by their nature,
from other civil disputes which may, under the provisions of
ordinary law, be brought before the ordinary courts. It was also
explained why Governments have considered it necessary to
entrust the settlement of legal labour disputes to a special procedure
for labour matters which may, more effectively than ordinary
procedure, ensure to all those concerned a prompt and equitable
settlement of such disputes.
In the following pages, reference will be made to the conditions
which labour courts must satisfy if their purpose is to be effectively
fulfilled. These conditions relate especially to the organisation
of labour courts, to their competence and to their functioning.
ORGANISATION OF LABOUR COURTS

The organisation of labour courts raises problems relating
to the independence of the courts, their composition, their
number, their geographical and occupational distribution and
the provision of courts of higher and lower instance.

LABOUR COURTS IN LATIN' AMERICA

Independence of Labour Courts
I t is now recognised in all countries which are organised on a
democratic basis t h a t a judge must be completely independent of
other public authorities. No authority may seek to restrict the
freedom of his decisions. Clearly, this same principle should hold
good with regard to the labour judge who, in his dual capacity as
conciliator and judge, should be accorded the greatest possible
independence.
The organisation of labour courts as permanent agencies,
distinct from the legislative and administrative authorities, enables
the independence of the judges tc be guaranteed. However,
for practical reasons, certain countries have attached the labour
courts to the administration, under the auspices of which they
function. Moreover, the analysis has revealed t h a t in certain
countries conciliation and arbitration boards are endowed with
judicial functions, and, conversely, t h a t labour courts are sometimes
required also to give decisions relating to economic disputes.
I n certain circumstances such a union of functions may be
justified by the fact t h a t labour judges are able to draw upon
the experience they have acquired in other fields of social activity.
Such a union through the person of t i e judge may be inevitable
in a small country not possessing a sufficient number of qualified
persons to fulfil the duties oí labour judges.
Nevertheless, the authority of the judge, and, therefore, the
authority of his decisions, may possibly be diminished if not
compromised, for this reason. I n such conditions the labour
court becomes a quasi-judicial or even pseudo-judicial agency
the decisions of which may not only be reviewed by ordinary
courts but even b y the higher administrative authorities.
I t would appear, therefore, that one may draw the conclusion
t h a t only labour judges who enjoy complete independence of the
public authorities possess the necessary authority to fulfil their
mission in a completely satisfactory iicanner. The establishment
of labour courts incorporated directly Li the national judicial system
appears to offer the safest guarantea from this point of view.
However, if national circumstances do -lot permit of the establishment of labour-courts entirely independent of the administration,
only those judicial tribunals which are completely independent
should have the power to review the decisions of the labour courts.

CONCLUSIONS

Composition of Labour Courts
If they are to be able to give equitable decisions, labour courts
must be inspired by the spirit which is at the very basis of social
legislation. I t is apparent that social legislation, in the same way
as the regulation of conditions of employment by means of collective
agreements, is often based on principles different from those which
underlie the ordinary law. That is why it is necessary to appoint
as labour judges persons who, besides having the necessary legal
qualifications, have had, in addition, a thorough experience of
labour matters.
The majority of the relevant enactments require t h a t the labour
judge shall have had not only legal training, but also a suitable
social training. I n some cases legislators go so far as to consider
the latter condition the more important of the two. The most
characteristic example of this is furnished by the probiviral courts,
which consist exclusively of equal numbers of employers and
employees elected by the parties concerned.
I n the same connection, the question arises whether it is preferable for the labour court to consist of a single judge or of a number
of judges and, in the latter event, whether employers and workers
should be represented.
I n a large number of countries a single judge has the duty
of settling legal labour disputes. This system enables disputes
to be dealt with quickly, either by way of compromise or by a
judgment being given. I t will be noted, however, t h a t this
system, which is found moreover only in those countries which
limit the competence of the labour judge to the settlement of
individual disputes, is adopted only with regard to the courts of
first instance.
A court consisting of several judges, on the other hand, appears
better able than a single judge to settle disputes in an equitable
manner (especially important cases) because such a court is able
to weigh the various possible solutions which may be applied to
the cases in question. Hence, it was noted t h a t those labour
courts competent to deal with collective legal disputes, which
generally concern a large number of persons, normally consist of
a number of judges. The higher labour courts always consist of
a number of judges. Finally—and this advantage is important—.
such a system offers an opportunity for employers' and employees'
representatives to act as members of the tribunal.

LABOUR COURTS Hi LATUT AMERICA

I n this latter connection it is important to emphasise t h a t the
employers' or employees' members of labour courts not merely
hold a mandate from the parties, b u t &re actually judges. However,
because the representatives of the parties are chosen from the
ranks of the employers and workers, they are assumed to have
considerable experience of industrial life. Moreover, as they are
elected by the persons concerned, or chosen from lists submitted
by employers' and workers' organisations, they naturally enjoy
the confidence of such persons. For all these reasons, the participation of the persons concerned as members of the labour courts is
calculated to increase their prestige without a t the same time
raising any doubts as to the impartiality of the labour courts.
Finally, as a general rule, the chairman of the court is a neutral
judge who is able, if necessary, to give a casting vote if the employers'
and workers' representatives disagree.
To sum up, whatever basis of composition is preferred by
different countries, it would appear desirable t h a t labour judges
should be appointed as persons possessing considerable experience
of labour matters in addition to the necessary legal qualifications.
If the court consists of a number of judges, it is desirable t h a t
there should be included among those judges equal numbers of
representatives of employers and workers, either directly elected
by the persons concerned or chosen from lists submitted respectively
by employers' and workers' organisations.
Organisation of the Labour Courts on a Geographical and
Industrial Basis
If the labour courts are to give the services which are expected
of them, everyone must have easy access to them. Hence, national
regulations generally provide t h a t courts shall be set u p in all
important towns or, at least, in the main centres of economic and
industrial activity.
But the laws of several countries take account of the special
nature of certain occupations or branches of the economy in which
particular customs or rules have come to be accepted. This is
the case especially with regard to the merchant marine and work
in dockyards, mines, etc. The settlement of disputes arising in
these occupations and industries requires special knowledge on the
p a r t of the labour judge. For this reason, specialised labour
courts have sometimes been established, as, for instance, in certain
ports, or specialised judges have been called upon to sit as members

CONCLUSIONS

of the courts. Where a court includes among its members representatives of employers and workers, they are chosen from among
persons engaged in the occupation or industry in question.
I t may, therefore, be concluded t h a t labour courts should be
established in sufficient number and distributed over the whole
national territory, account being taken of the particular requirements of certain occupations and industries.

Hierarchy of Labour Courts
I n all countries, the organisation of the ordinary courts takes
the form of a hierarchy of tribunals. With regard to the establishment of labour courts it is, however, a matter for discussion whether
it is preferable to institute labour courts of higher instance or to
make use of the ordinary courts as courts of appeal. The survey
of legislation and practice reveals that some countries have chosen
the first course, while others have given preference to the second.
I t may be argued t h a t with the establishment of a labour
court of first instance several of the objects which it is sought to
attain by the establishment of a labour courts system are effectively
realised. The parties have available a special authority which
can settle, quickly and finally, either by way of compromise or by
giving judgment, the numerous conflicts which arise almost daily
between employers and workers. Because of the small cash value
of the subject matter under dispute, many of these cases cannot be
brought before any court of appeal. While certain cases, nevertheless, may be brought before a court of second or even third
instance, it is for the purpose of obtaining not so much a decision
on the merits of the cases as a decision on certain legal points of
general application. I n the opinion of some legislators, there is
no reason for treating appeals from labour courts differently from
appeals from the ordinary courts. In favour of this hypothesis,
it is argued especially t h a t one and the same supreme court should
be a court of final instance ensuring the uniform applications of all
legislation.
Hence the earliest labour courts, such as probiviral courts,
consisted only of courts of first instance, and the ordinary courts
gave judgment on appeals. But since the establishment of these
earliest courts, a definite trend has been observed in favour of the
establishment of labour courts on a hierarchical basis. The main
reason for this is that, with the growing influence of employers'

LABOUR COURTS IN LATES AMERICA

and workers' trade union movements, industrial relations between
employers and workers are now governed more by collective agreements than by individual contracts.
At the same time, labour legislation has developed to a degree
which could not be foreseen when the first labour courts were
established. The interpretation of collective agreements on the
one hand, and of labour legislation on the other, often gave rise
to problems unknown at common law. In such novel circumstances,
is it desirable to limit the activities of the labour courts, as in the
past, to simple questions of common occurrence, and to reserve
jurisdiction on questions of principle to the ordinary courts? On
the other hand, if labour courts must be competent for all legal
labour disputes, should not courts of higher instance specialising
in such matters be established in order to provide an adequate
solution for all these new problems?
As the survey of legislation and practice has shown, in many
of the modern legal systems the latter course has been followed.
In several countries labour courts of second instance, and sometimes
even a supreme labour court, have been established, while in other
countries a solution of the question has been sought by the establishment of special labour chambers as divisions of the courts of appeal
or of the Supreme Court.
It seems desirable, therefore, to recommend that, wherever
national circumstances permit, superior labour courts should be
set up, or, at least, specialised chambers for labour matters should
be formed as divisions of the courts of appeal, to take cognisance
of legal labour disputes which have net been finallly decided by the
labour courts of first instance.

COMPETENCE OF LABOUR COURTS

Labour courts have the function of settling legal labour disputes,
whatever their origin. However, the actual extent of their competence varies from country to country.
Under certain legal systems, the courts are competent solely
for the settlement of individual disputes. In other cases they
are competent also for the settlement of collective legal disputes.
Finally, a third group of legal systems makes the labour courts
competent also in respect of disputes arising out of the application
or interpretation of social legislation or, at least, of certain portions
of such legislation.

CONCLUSIONS

The survey of legislation and practice shows t h a t it is particularly
in respect of collective legal disputes t h a t different conceptions
have been held regarding the various tribunals which should be
made competent for their settlement.
I t may be recalled once more that collective legal disputes
are clearly distinguishable from collective economic disputes.
Whereas the latter have as their particular object the establishment
of new regulations governing labour relations, and especially
of a new collective agreement, collective legal disputes relate
exclusively to the application of regulations already existing, and
in particular, to the interpretation of collective agreements.
While recognising, in principle, t h a t this distinction is wellfounded, several legislators have nevertheless considered it
more desirable t h a t all collective disputes should be referred to the
same machinery, whether they are economic or legal disputes. In
some cases their settlement is entrusted to conciliation and arbitration machinery, while in others the labour courts are made responsible. But, as has been emphasised on several occasions in this
report, while the same agency is made competent for the settlement
of all collective disputes, t h a t agency adopts a different procedure
when it is called upon to give decisions in economic disputes from
t h a t which it adopts in the case of legal disputes. In such circumstances, it may be wondered whether, in the interests of the satisfactory administration of justice in labour matters, it is not
preferable to establish separate agencies for dealing with disputes
so clearly different in character from each other—labour courts
for settling collective legal disputes, and conciliation and arbitration
machinery for dealing with collective economic disputes.
I t would appear to be in the interests of all the parties concerned
t h a t collective agreements which, especially in the countries of
Latin America, often apply to all the wage-earners and all the
employers in a given occupation or industry, should be duly
observed, and that, in the event of disputes as to their interpretation, the scope of their provisions should be defined by a specialised
judicial tribunal such as the labour court.
I n conclusion, therefore, it appears desirable to recommend
that labour courts should be competent not only for the settlement
of disputes arising out of individual contracts, but also for the
settlement of disputes arising out of the application or interpretation of collective agreements or social legislation.

LABOUR COURTS IN LATEST AMERICA

FUNCTIONING OF LABOUR COURTS

Labour courts, being judicial bodies, are governed by the same
principles as the ordinary courts, but, as special agencies for the
settlement of labour disputes, their procedure must be adapted
to the particular objects which tiisy pursue. This adaptation
relates particularly to the following points : (1) the parties and their
representation; (2) the principles of procedure; (3) the judgments
and their enforcement; and (4) the guarantees which must be
accorded to the persons concerned who have recourse to the labour
courts. In the following pages the main features of procedure in
labour matters will be briefly considered.
The Parties and their

Representation

I n principle, all employers on the one hand, and all employees
on the other, are capable of suing or being sued before the labour
courts. However, national legislation sometimes extends the
jurisdiction of the labour courts to categories of workers who, in
the strict legal sense of the term, are not "employees", such as, for
instance, craftsmen. On the other hand, the law may exclude
certain categories who are called employees, such as, for instance,
agricultural workers. Generally speaking, however, the legal
systems of the majority of the American countries provide t h a t all
employers and all employees, including agricultural workers and
home workers, have the right to avail themselves of the labour
courts.
National legislation generally provides t h a t the parties must
appear in person before the labour court. This requirement is
explained by the fact t h a t that court must always endeavour to
settle the dispute, if possible, by conciliation rather than by giving
judgment. I t does not, however, follow t h a t the parties must also
plead their cases personally. They may be represented and,
even if their personal appearance is required, they may be accompanied by advisers. On the other hand, they are not bound to be
represented, at least before labour courts of first instance. Whereas
it is provided under certain European systems that advocates are
not admitted before the labour courts of first instance, such a
restriction does not generally exist in the countries of the American
Continent.
A labour dispute does not only concern the employers and
workers who are parties to it, but, because of the social reper-

CONCLUSIONS

eussions which it may have, it concerns also employers' and workers'
organisations, as well as the State itself. Where the labour courts
are competent for the settlement of collective legal disputes, it is
naturally of concern to the trade union t h a t it should be a party
before the court. There is no difficulty in giving effect to this
principle where the trade union possesses legal personality. But
as the accordance of legal personality is often made subject to
conditions of substance and form which might endanger the freedom
of action of the trade unions, they often refuse to acquire legal
personality, and prefer the status of a de facto association (an
association authorised under the Constitution or the general laws
relating to associations) to t h a t of a legally recognised organisation.
But, where the labour court is called upon to settle collective
legal disputes, it cannot effectively fulfil this duty unless the real
parties to such disputes, t h a t is to say employers' and workers'
organisations, have access to the tribunal in the same way as
employers and workers individually. Hence, the majority of
national legal systems have recognised this fact and accord the
right to sue or to be sued to any trade union, whether it possesses
legal personality or not.
I t may also happen that an individual dispute brought before
the labour court may concern not only the actual party to the
dispute, but also an employers' or workers' organisation. This
is the case, for instance, where a dispute arises out of the dismissal
of a worker because of his membership of a trade union or of his
trade union activities. The person concerned, who has the right
to be assisted by an adviser, may obviously choose t h a t adviser
from among the executive or officials of his union. I n the grievance procedure established by agreements in force in the United
States and Canada, regular provision is made for such participation
by the trade union in the settlement of individual disputes. Under
the laws of certain countries, the trade union also has the right
to represent its members, at least in so far as those members do
not expressly oppose such a course. Other systems go further by
admitting that the trade union has the function of representing
not only the interests of its members but of all those engaged in a
given occupation. I t is on this ground t h a t such laws authorise
the direct intervention of the trade union in the labour court
procedure, either as a third party, or, if occupational interests
take precedence over individual interests, as a principal party
replacing the actual party to the dispute.
The State has a general mission to supervise the application of

LABOUR COURTS IN ^ATIN AMERICA

labour legislation, a mission which is formally conferred on the
State by most Constitutions. The administration of justice in
labour matters forms part of this mission. Hence, certain legal
systems provide for the setting up of special agencies, some for the
purpose of giving legal assistance to the workers, others empowered
to intervene in the proceedings in order to protect general interests
in the name of the State (labour cttorneys). While agencies of
the first kind are advisory bodies, those of the second category may
appear to represent minors or workers under a disability, to submit
to the court the opinion of the competent Minister on a question
of legal interpretation, or to appeal against a decision which they
consider to be contrary to the law.
From the above analysis it would appear that the following
conclusions may be drawn :
All employers and employees, whatever their occupations may
be, including homeworkers, should have the right to take action
in the labour courts. They should also have the right to be represented by any person of their own choosing, even though their
personal attendance may be required by the court at every stage
in the procedure.
Employers' and workers' organisations, whatever their legal

status may be, should have the right to sue or to be sued before the
labour courts. They should also have the right to intervene in
the proceedings or to be substituted as parties for the workers or
employers concerned when such a course is justified on the ground
of the defence of occupational interests.

It would be desirable to establish special agencies for the purpose
of giving free legal aid to the workers.
Principles of Procedure
National regulations in most countries make the principal
guarantees prescribed under civil procedure applicable equally to
labour court procedure, as regards, for instance, the right to sue
or to be sued, the equality of rights of plaintiffs and defendants, the
public nature of the proceedings, etc. However, rules of procedure
are adapted to the particular requirements of labour court proceedings.
It is not possible here to examine the procedure in detail, but
reference may be made to certain main principles which are recognised in practice in the majority of countries. Briefly, they are
the following :

CONCLUSIONS

¡Simplification of the Procedure.
Writs, summonses and, generally speaking, all procedural
formalities, are simplified to a very great degree. Oral statements
made before the court may take the place of written pleadings.
Errors of form may be amended without giving rise to formal
pleas or appeals; in short, the legislator seeks to avoid "legal
quibbles" and to ensure t h a t the case is disposed of expeditiously.
Shortening of the Procedure.
There are many legal provisions with this end in view. Procedural time-limits are reduced, hearings are fixed at an early date,
evidence and arguments must be concluded during a minimum
number of sittings, etc.
Gratuitous Procedure.
I t is frequently provided that no charges shall be made in
respect of stamp duty or costs of service of notices, writs and
subpoenas or any secretarial expenses.
Discretionary Powers of the Labour

Judge.

The labour judge, who has the duty of directing and guiding the
proceedings, generally exercises wider discretionary powers than
does the judge of the ordinary court. The parties are no longer in
control of the course of the proceedings. Admittedly, they initiate
the proceedings, present their cases, furnish evidence to substantiate
their claims, and may bring some cases to an end by. coming to
terms with one another, but the disputes which they bring before
the court are not always purely private matters which they may
settle as they wish. Often, the interests of the public are involved
in the decision, which cannot then be based simply on the will of
the parties.
Consequently, it is the function of the judge, although in collaboration with the parties, to control the proceedings in such a
way as to establish the true facts, objectively and completely, and
to base his conclusions thereon in accordance with relevant legislation. I n order to do this the judge must be empowered to take
all steps t h a t may be necessary. Hence, it is frequently provided
t h a t he may consolidate several actions instituted separately but

LABOUR COURTS IN LATEST AMERICA

the subject matter of which is related, or, again, he may sever
points of claim which are better heard as separate actions. He
may call for supplementary evidence if the proper adjudication of
the case so requires. Finally, he may estimate the value of the
evidence freely without being bound by the formal rules of ordinary
procedure and, on the basis of those facts which have been duly
substantiated, he may render his decision, even disregarding in a
proper case actual points in the parties' claims. In short, principles of equity rather than formal rules prevail in labour court
proceedings.
In general terms, these principles may be expressed as follows :
1. The formalities of procedure should be reduced to a strict
minimum.
2. All possible measures should be taken to expedite the
procedure.
3. The services of the labour courts should be available to the
parties free of charge.
4. The labour judge should be accorded discretionary powers
sufficiently wide to enable him tc base his judgment on an
equitable estimation of all the circumstances material to the case.

Judgments and their Enforcement
The decisions of the labour court, being judgments in the true
sense of the word, should contain ell the elements essential to
judicial decisions—particulars as to the parties, findings on
questions of fact and of law, verdict, etc.
As in the case of all other judgments, decisions of the labour
court should be communicated in writing to the parties. It is
particularly important in the case of labour court proceedings that
judgments should be drawn up in clear and simple language easily
understood by those concerned.
The decisions of the labour judge, like any other judgments,
should be directly enforceable. In view of the fact that the very
purpose of a labour courts system is the prompt termination of
disputes, the application of decisions should be under the authority
of the labour judge himself.
To sum up, judgments given by labour courts should be communicated to the parties in writing and should indicate in clear
and simple language the reasons on which they are based.

CONCLUSIONS

The enforcement of judgments within the shortest possible
period should be provided for under the authority of the labour
courts themselves.
Ghiarantees

The labour court, as an agency ensuring social protection,
could not properly fulfil its purpose if the worker were to be prevented from having recourse to it in full freedom. The employer
might restrict the exercise of this right if, for instance, he made
the engagement of a wage-earner conditional on his renouncing the
rights accorded to him by law or, again, if he prejudiced him in the
course of his employment, especially by dismissing him or threatening him with dismissal if he availed himself of those rights.
It would be desirable, therefore, as is done under many national
legal systems, to protect the worker against such acts by providing,
in particular, that no employer shall prejudice or dismiss a worker
for the sole reason t h a t the worker takes proceedings against him

in a labour court, gives evidence before a court as witness or expert,
or acts as a member of a labour court.

CHAPTER V

PROPOSE» TEXT
In the Introduction an explanation was given of the reasons
for which this report relates only to the settlement of disputes
of a legal character concerning labour questions.
I t might be desirable, however, to remind the Fourth Conference
of American States Members of the International Labour Organisation t h a t this question forms a portion of an extensive programme
of international regulation an important part of which has already
been completed by the International Labour Conference and which
concerns problems of paramount importance to Governments,
employers and workers alike, namely, freedom of association and
industrial relations.
The regional conferences of American States Members of the
International Labour Organisation have played a very considerable
part in the preparation and carrying out of this programme.
For example, the First Conference of American States Members
of the International Labour Organisation, which met in Santiago,
Chile (1936), taking as its basis Article 41, paragraph 2, of the
former Constitution of the International Labour Organisation,
which guaranteed "the right of association for all lawful purposes
by the employed as well as- by the employers", requested the
Governing Body of the International Labour Office to appeal to
Governments not to hamper the creation of central organisations
of employers and workers, the existence of which is of vital importance for the successful participation of workers' and employers'
movements in the activities of the International Labour Organisation.
Moreover, the Second Conference of American States Members
of the International Labour Organisation, which met in Havana
(1939), adopted various resolutions urging the necessity of ensuring
effectively the application of the principle of freedom of association
and of establishing agencies of conciliation and arbitration for
the prevention and settlement of labour disputes.
Finally, the Third Conference of American States Members

PBOPOSBD TEXT

of the International Labour Organisation, which met in Mexico
City (1946), adopted, in the form of several resolutions, a whole
code of industrial relations.
These resolutions relate in particular to constitutional provisions for freedom of association, freedom of association, protection
of the right to organise and to bargain collectively, voluntary
conciliation and arbitration, the validity of collective agreements,
the extension of collective agreements, and collaboration between
the public authorities and employers' and workers' organisations. 1
The regional conferences of American States Members of the
International Labour Organisation had thus directly prepared the
way for the international regulation of these questions. I n the
following year all these problems were actually placed on the
agenda of the 30th Session of the International Labour Conference,
which met in Geneva in June-July 1947.
The Geneva Conference unanimously adopted a Resolution
concerning freedom of association and protection of the right to
organise and to bargain collectively, which defined the principles
which should form a basis for the international regulation of freedom
of association. 3 I t should be emphasised, in this connection, t h a t
the Assembly of the United Nations, at its Second Session, endorsed
these principles and requested the International Labour Organisation to continue its efforts in order that one or several international
labour Conventions might be adopted.
At its following session, the International Labour Conference,
meeting in San Francisco (June-July 1948), taking as its basis
the principles defined at the previous session of the Conference
and endorsed b y the Assembly of the United Nations, adopted a
Convention concerning freedom of association and protection of
the right to organise, the text of which is given as an appendix to
this report. 3
This Convention, which has now been submitted to the States
Members for their ratification, was also communicated to the
Assembly of the United Nations, which will be asked at its present
Session to give a decision concerning a proposed Resolution requesting the States Members to take all appropriate steps with a view
to the ratification as early as possible of the Convention.
I t may also be mentioned that, in addition to adopting the
Convention concerning freedom of association and protection of
1
2
3

See Appendix I.
See Appendix I I .
See Appendix I I I .

LABOUE COTJETS IN LATEST AMERICA

the right to organise, the San Francisco Conference took other
important decisions concerning industrial relations.
First, the Conference adopted Proposed Conclusions relating
to the application of the principles of the right to organise and to
bargain collectively which will be submitted to its next session
for final decision.
Secondly, the Conference decided to place on the agenda of
its 32nd Session, to be held in Geneva in 1949, an item dealing
with industrial relations comprising collective agreements, conciliation and arbitration, and co-operation between public authorities
and employers' and workers' organisations.
Finally, the Conference adopted a Resolution concerning
international machinery for safeguarding freedom of association,
requesting the Governing Body of the International Labour Office
to enter into consultations with the competent organs of the
United Nations for the purpose of examining what developments
to existing international machinery may be necessary to ensure
the safeguarding of freedom of association. It may also be mentioned, in this latter connection, that the General Assembly of
the United Nations, at its Third Session, also has before it a Resolution inviting the Economic and Social Council to continue consultations with regard to the possible establishment of international
machinery for the purpose of safeguarding freedom of association
in all its aspects.
The problem of the settlement oí disputes of a legal character
concerning labour questions which now comes before the Fourth
Conference of American States Members of the International
Labour Organisation forms an important supplement to the extensive programme of international regulation the broad outlines of
which have been described in the preceding pages.
There is no doubt that with regard to this question also the
Fourth Conference of American States Members of the International
Labour Organisation will be able to achieve valuable work in
preparing the way for future international regulation of the
problem.
Accordingly, the Office has thought it useful to embody the
principles revealed'by the survey of legislation and practice regarding existing methods of settlement cf disputes of a legal character
concerning labour questions in a proposed Resolution, which might
serve as a basis for discussion by the Conference.

PROPOSED TEXT

PROPOSED RESOLUTION CONCERNING LABOUR
COURTS
Whereas the Conferences of American States Members of the International Labour Organisation which met in Santiago, Chile (1936),
Havana (1939) and Mexico City (1946), have already considered various
aspects of the problem of freedom of association and industrial relations,
Whereas the Santiago Conference emphasised especially the necessity
of ensuring the application of the principle of freedom of association
embodied in the Constitution of the International Labour Organisation
and the desirability of establishing in full freedom central organisations
of employers and workers,
Whereas the Havana Conference stressed the need to establish
and make available to employers and workers agencies of conciliation
and arbitration for the prevention and settlement of labour disputes,
Whereas the Mexico City Conference adopted several resolutions
of particular importance concerning constitutional provisions for
freedom of association, freedom of association, protection of the right
to organise and to bargain collectively, voluntary conciliation and
arbitration, the validity of collective agreements, the extension of
collective agreements, and collaboration between the public authorities
and employers' and workers' organisations,
Whereas the International Labour Conference, at its 30th Session
(Geneva, 1947), unanimously adopted a Resolution defining the principles which should serve as a basis for the international regulation of
freedom of association,
Whereas the General Assembly of the United Nations, at its Second
Session, endorsed these principles and requested the International
Labour Organisation to continue its efforts in order that one or several
international labour Conventions might be adopted,
Whereas the International Labour Conference, at its 31st Session
(San Francisco, 1948), adopted a Convention concerning freedom of
association and protection of the right to organise, which has now
been submitted to the States Members of the International Labour
Organisation for their ratification,
Whereas the Convention concerning freedom of association and
protection of the right to organise proclaims, in particular, the fundamental' right of workers and employers, without distinction whatsoever,
to establish and join organisations of their own choosing without previous
authorisation and, furthermore, places the States Members of the
International Labour Organisation for which the Convention is in force
under an obligation to take all necessary and appropriate measures to
ensure that workers and employers may exercise freely their right to
organise,
Whereas the International Labour Conference, at its 32nd Session
(Geneva, 1949), will be called upon to give a final decision with regard
to a proposed international Instrument concerning the application
of the principles of the right to organise and to bargain collectively,
and to hold a first discussion concerning the questions of collective
agreements, conciliation and arbitration, and co-operation between
public authorities and employers' and workers' organisations,
Whereas it is desirable that the Fourth Conference of American
States Members of the International Labour Organisation should
consider the problem of the settlement of disputes of a legal character

LABOUR COURTS IN LATIN AMEBICA

concerning labour questions, which forais an important supplement to
the programme of international regulation of freedom of association
and industrial relations,
Whereas disputes concerning the interpretation or application of
individual contracts of employment, collective labour agreements and
• labour legislation are disputes of a legal character which lend themselves
to settlement by amicable means without resort to strike or lockout,
Whereas special procedures appropriate for the settlement of such
disputes should be established, and only such procedures offer the
necessary guarantees of a prompt and equitable solution of such disputes
being reached,
Having noted that the majority of ;he countries of the American
Continent have already established special procedures for the settlement
of such disputes, either by means of agreements or by legislation,
The Fourth Conference of the American States Members of the
International Labour Organisation draws the attention of the American
States Members to the following principles :
I. MACHINEBY ESTABLISHED BY AGREEMENT FOB THE SETTLEMENT
OF DISPUTES OF A LEGAL CHARACTER CONCERNING LABOTJB QUESTIONS

1. Employers and employers' organisations and workers' organisations should provide for the inclusion in collective agreements of stipulations concerning the settlement of disputes relating to the application
or interpretation of individual contracts or collective agreements.
2. The parties should have full freedom to make such regulations
as they -wish with regard to the organisation, competence and functioning
of machinery established by agreement for the settlement of disputes
of a legal character concerning labour questions.
II, LABOUR COURTS

Establishment and Organisation of Labour Courts
3. Where satisfactory arrangements for the settlement of disputes
of a legal character concerning labour questions are not established by
agreement, labour courts should be established by legislation.
4. Labour courts should be established on a permanent" basis and
should be completely independent of the executive authorities.
5. Labour judges should be selectee, from persons who have had a
thorough experience of labour questions and fulfil the conditions prescribed for exercising judicial functions.
6. Where the labour court consists of a number of judges, representatives of employers and workers, either directly elected by those concerned
or appointed from lists submitted by employers' and workers' organisations respectively, should be called upon to sit as members of the
labour court.
7. In order that all parties concerned may have easy access to the
labour courts, they should be established in sufficient numbers and be
distributed throughout the national territory.
8. If the particular conditions of tabour in certain industries (for
example, in the mining industry, merchant marine, dockyards, etc.) so
require, special labour courts should be set up for those industries, or,

PROPOSED TEXT

at least, persons having specialised experience of the work in such
industries should be called upon to sit as members of labour courts.
9. Whenever national circumstances permit, labour courts of
higher instance (labour appeal courts and supreme labour courts) should
be established to hear appeals lodged against the decisions of the labour
courts of first instance. In the absence of labour courts of higher
instance, special chambers for labour matters should be attached to
the different appellate courts of the ordinary judicial system.
Competence of Labour Courts
10. Labour courts should be exclusively competent, either ex
officio or on the application of the parties concerned, to take cognisance
of disputes relating to the interpretation or application of individual
contracts of employment, collective agreements and social legislation.
11. Labour courts should not take cognisance of any dispute
concerning the application of a contract until the procedures for settlement laid down by agreements and freely established by the parties
have been fully exhausted.
12. Labour courts should be under an obligation to seek the settlement of disputes concerning the application of agreements on terms
agreed by the parties rather than by adjudication.
Functioning of Labour Courts
13. Employers and workers, whatever the nature of their occupation, should have the right of recourse to the labour courts and the
right to be represented before the courts by any person of their own
choosing.
14. Employers' and workers' organisations, whatever their legal
status, should have the right to sue or be sued in the labour courts if
they are parties to the issue.
15. If occupational interests which it is their mission to defend are
in issue, employers' and workers' organisations should also have the
right to intervene in the labour court proceedings and, if necessary, to
replace the employers and workers who are the actual parties to the
litigation.
16. The guarantees prescribed by civil procedure should apply
in the case of the labour courts, but the formalities of labour court
procedure should be simplified to a maximum degree and all feasible
measures should be taken to expedite the procedure as far as possible.
17. The services of the labour courts should be available to the
parties concerned free of charge.
18. The labour judges should possess discretionary powers sufficiently wide to enable them to base their judgments on an equitable
estimation of all the circumstances in law and in fact.
19. Judgments delivered by the labour courts should be communicated to the parties in writing and should indicate in clear and simple
language the reasons for the decisions.
20. Provision should be made for the enforcement of judgments,
within the shortest possible period, under the authority of the labour
courts.

LABOUR COURTS IN LATIN AMERICA

Guarantee
21. Workers should enjoy adequate legal protection against any
acts of discrimination in respect of their employment likely to prevent
them from having recourse to the laboir.* courts, from giving evidence as
witnesses or experts, or from acting as members of labour courts.
22. Special legal aid services should be attached to the labour
courts and their assistance should be nade available without charge
to the parties concerned.

APPENDICES

APPENDIX I
RESOLUTIONS ADOPTED BY THE THIRD CONFERENCE OF
AMERICAN STATES MEMBERS OF THE INTERNATIONAL LABOUR
ORGANISATION (MEXICO CITY, APRIL 1946)
Resolution concerning constitutional provisions for freedom of association.
Whereas the freedom of men and peoples in its various forms is
one of the essential principles of democracy and has been and is one of
the aspirations of the peoples of America;
Whereas the fundamental liberties of man must be included in
the political constitution of each country, and as in the past "Bills of
Rights" were embodied in the different constitutions, so in the future
social rights, among which freedom of association stands in the first
rank, should likewise be secured ;
The Third Conference of the American States Members of the
International Labour Organisation therefore resolves that :
The American States should guarantee freedom of association in
their constitutions.
Resolution concerning freedom of association.
Whereas the Constitution of the International Labour Organisation
affirms the principle of freedom of association; the Declaration of
Philadelphia proclaimed anew that freedom of association is essential
to sustained progress; the regional Conferences of the American States
Members of the International Labour Organisation, meeting at Santiago
and Havana, in several resolutions called the attention of the International Labour Organisation to the necessity of ensuring the application
of the principle of freedom of association; and the recognition of the
right of association is essential to the working of the International
Labour Organisation, which brings together in a common effort the
Governments and the most representative trade organisations of employers and workers ;
Wheieas living standards, the normal functioning of the national
economy, and social and economic stability are dependent on a soundly
organised system of industrial relations in which the interested parties
have placed their trust; and organisations of employers and workers
cannot usefully carry out their tasks unless they are granted the largest
measure of independence from the public authorities; and freedom of
association must be the foundation of a stable system of industrial
relations ;
The Third Conference of the American States Members of the
International Labour Organisation calls the attention of the States

100

LABOUR COURTS IK LATIN AMERICA

Members of the Americas to the following principles which seem to
constitute an adequate definition of freedom of association :
(1) Employers and workers, whether public or private, without
distinction of occupation, sex, colour, re.ce, creed or nationality should
be entitled to form organisations of their own choosing without previous
authorisation;
(2) Organisations of employers and workers should be granted
full autonomy in organising their administration and activity, in drawing
up their constitution and administrative rules, and in framing their
policies ;
(3) Organisations of employers and workers should not be subject
to dissolution by administrative orders; in those countries where forced
dissolution is imposed by way of penalty for certain acts deemed illegal,
the trade unions should be entitled to the full protection of the appropriate procedure;
(4) Organisations should have the right to constitute federations
and confederations of trade organisation; the formation, operation
and dissolution of federations and confederations should not be subject
to formalities other than those prescribed for employers' and workers'
organisations ;
(5) Where the acquisition of special privileges by organisations
is subordinated to certain conditions cf substance and of form, these
conditions should not be such as to imperil freedom of association as
defined above.
Resolution concerning protection oí the right to organise and to bargain
collectively.
Whereas the Declaration of Philadelphia has proclaimed the need
for the effective recognition of the right of collective bargaining;
Whereas it is in the interest of all the parties that conditions of
employment be determined by collective bargaining;
Whereas collective bargaining can only be based on the due observance of the right to organise of all the interested parties and on the
acceptance in good faith of the principle of collective bargaining ;
Whereas it is therefore the duty of the State to safeguard the, exercise
of the right to organise and to facilitate collective bargaining by all
possible means;
The Third Conference of the American States Members of the International Labour Organisation calls the attention of the States Members
of the Americas to the following principles which seem to provide a
suitable basis for the regulation of collective bargaining :
I.

PROTECTION OF THE EXERCISE CE TEE RIGHT TO ORGANISE

(1) In view of the fact that the individual workei's right to organise
may be placed in jeopardy by discriminatory measures directed against
him at the time of hiring or during tenure of employment, the law
should particularly prohibit on the part of the employer or his agents
all acts designed to—
(a) make the hiring of the worker subject to the express condition that
he does not join a certain trade union or withdraws from a trade
union of which he is already a member;

APPENDICES

101

(b) prejudice or injure in any manner whatsoever a worker on account
of his being a member, agent or official of a certain trade union;
(c) dismiss a worker for the sole reason that he is a member, agent or
official of a certain trade union;
(d) in general, exert any kind of pressure upon a worker with the
object of compelling him to join or not to join a certain trade union.
(2) With a view to ensuring that collective bargaining be undertaken in good faith, the law should particularly prohibit on the part of
the employer or of the employers' organisations or their agents all acts
designed to—
(a) promote the formation of trade unions controlled by the employer;
(b) interfere in the formation or administration of a trade union, or
support it by financial means or otherwise except that an employer
should not be prohibited from permitting workers to confer with
him during working hours without loss of time or pay, and further
that nothing in these provisions should prohibit the collection of
dues;
(c) hamper the exercise of the workers' right to form organisations,
conclude collective agreements and take concerted action for the
defence and protection of their interests ;
(d) refuse to recognise trade unions and to negotiate with them with
a view to the conclusion of collective,agreements.
It should however be understood that a clause in a collective agreement requiring compulsory membership in a certain trade union, not
only as a condition precedent to employment but also as a condition of
continued employment, is not barred by this resolution.
(3) Appropriate legislative measures should safeguard in each
country the exercise of labour union rights and the activities of the
labour leaders, particularly during the preparation and the period
of strikes so that labour leaders may not be dismissed, prosecuted or
deprived of their liberties because of their legitimate union activities.
II.

¡^COLLECTIVE BARGAINING MACHINERY

(1) The State should undertake to place at the disposal of the
parties agencies to secure the due observance of the right to organise
as defined above.
(2) These agencies should be given exclusive power, in so far as the
judicial system permits, to take cognisance of and impose penalties for
violations of the exercise of the right to organise.
(3) The agencies should be entrusted with the authority to determine
which labour organisation represents a majority of the workers for
collective bargaining purposes; in case of disagreement they should
hold a secret-ballot election and certify the union which represents the
majority of those voting in the appropriate collective bargaining unit
as the exclusive representative of all the employees in that unit for the
purposes of collective bargaining.
Resolution concerning voluntary conciliation and arbitration.
Whereas the Havana Conference adopted a resolution stressing
the need to establish in all countries conciliation and arbitration agencies

102

LABOUR COURTS IN LATIN AMERICA

and to place them at the disposal of the parties for the prevention and
adjustment of collective labour disputes ;
Whereas conciliation and arbitration machinery set up by agreement of the parties concerned is generally considered to be the most
suitable means of reaching an agreement;
Whereas in the absence of contractual machinery or in the event
of its failure to function successfully the State should place at the
disposal of the parties official machinery for voluntary conciliation
and arbitration ;
The Third Conference of the American States Members of the International Labour Organisation calls the attention of the States Members
of the Americas to the following principles which it considers should
be the basis of any system for the voluntary adjustment of collective
labour disputes :
I.

VOLUNTARY C O N C E J A T I O N

(1) Conciliation agencies should be established on a permanent
basis in all parts of the country and should be in sufficiently large
number to assist the parties whenever a la,bour dispute becomes imminent.
(2) In those countries which have a formal conciliation machinery
and in which the agencies operate on a group basis they should be
tripartite in character; labour organisations concerned in a dispute
should be permitted to intervene in all stages of the proceedings.
(3) Conciliation procedures should be free of charge and expeditious;
the time limits for the appearance of the parties and the hearing of the
evidence should be fixed in advance and reduced to a minimum.
(4) Recourse to conciliation procedures should be voluntary, but
once a dispute has been submitted to a conciliation agency by consent
of all the parties concerned the parties should agree to refrain from
strike or lockout while conciliation is in progress.
(5) The parties should be free to accept or reject the recommendations
of the conciliation agencies; but once a recommendation has been
accepted it should be binding on the parties.
(6) Agreements arrived at by the parties in the course of the proceedings as well as recommendations of the conciliation agencies that are
accepted by the parties should legally have the same force as voluntarily
concluded collective agreements.
II.

VOLUNTARY ARBITRATION

(1) There should be instituted voluntary arbitration machinery
which may be resorted to either before or after conciliation procedures.
(2) Recourse to arbitration should be voluntary; but once a dispute
has been submitted to arbitration by consent of all the parties concerned
the parties should agree to accept the award.
Resolution concerning the validity of collective agreements.
Whereas collective agreements constitute the most appropriate
means for the regulation of wages and other conditions of employment
and the parties to such agreements must be entirely free to determine
their substance, scope and duration;

APPENDICES

103

Whereas machinery should be provided to ensure that the provisions
of a voluntarily concluded collective agreement are duly observed by
all the employers and workers engaged in undertakings, occupations
or industries covered by the collective agreement;
The Third Conference of the American States Members of the International Labour Organisation calls the attention of the States Members
of the Americas to the following principle which should serve as a guide
for the future elaboration of national laws and regulations respecting
the validity of collective agreements :
The provisions of the collective agreement should be applicable
to all the workers in the appropriate collective bargaining unit in
the undertaking or undertakings even though they are not members
of the organisation which concluded the agreement.
Resolution concerning the extension oí collective agreements.
Whereas the employers and workers who accept in good faith the
principle of collective bargaining should be protected against the adverse
effect of unfair competition in regard to the regulation of conditions of
work ;
Whereas the extension of collective agreements to certain minorities
appears to be the most appropriate means to ensure stability in the
regulation of conditions of work as established by collective agreements ;
Whereas the interest of such minorities must be duly safeguarded;
The Third Conference of the American States Members of the International Labour Organisation calls the attention of the States Members
of the Americas in which extension of collective agreements is or may
be provided for by national laws or regulations to the following principles
and conditions which should be at the basis of national laws and regulations :
(1) The collective agreements should be made applicable only to
the employers and workers who operate within the industrial or territorial
scope of the agreement as determined by the contracting parties.
(2) Only those collective agreements which have been voluntarily
agreed to and which bind the majority of the workers and the majority
of the employers (who must also employ the majority of the workers)
may be the subject of the legal extension.
(3) The employers and workers who may be brought under the
provisions of the collective agreement must be previously consulted
and authorised to submit their observations and objections.
(4) The extension of a collective agreement should only be effected
if the competent authority is satisfied that the employers to be brought
under its provisions are in a position to enforce the conditions of employment stipulated in the agreement without endangering the economic
existence of the undertakings.
Resolution concerning collaboration between the public authorities and
the employers' and workers' organisations.
Whereas the New York Conference (1941) recognised the universal
and permanent value for all States of effective collaboration between
the public authorities and the employers' and workers' organisations,
and requested the Governing Body of the International Labour Office

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to place the question of methods of collaboration on the agenda of an
early session of the Conference ;
Whereas, in the Declaration of Philadelphia, the International
Labour Conference recognised the solean obligation of the International
Labour Organisation to further among the nations of the world programmes which will achieve among other objectives :
The co-operation of management and labour in the continuous
improvement of productive efficiency and the collaboration of
workers and employers in the preparation and application of social
and economic measures;
Whereas reconversion from a war economy to a peace economy,
the reconstruction of the countries devastated by the war, and the
industrialisation of the countries which are economically less developed,
require a sustained and concerted effort on the part of the Governments
and the organisations of employers and workers ;
Whereas a large number of States have in fact resorted to co-operation
with employers' and workers' organisations for the furthering of their
programmes of reconversion, industrialisation or reconstruction;
The Third Conference of the American States Members of the
International Labour Organisation r3 quests the Governing Body
to entrust the Office with the task of making an enquiry into the methods
of collaboration in the different countries with a view to placing that
question on the agenda of an early session of the Conference.

APPENDIX II
RESOLUTION CONCERNING FREEDOM OF ASSOCIATION AND
PROTECTION OF THE RIGHT TO ORGANISE AND TO BARGAIN
COLLECTIVELY, ADOPTED BY THE INTERNATIONAL LABOUR
CONFERENCE AT ITS 30th SESSION (GENEVA, 1947)
Whereas the Preamble to the Constitution of the International
Labour Organisation expressly declares "recognition of the principle
of freedom of association" to be a means of improving conditions of
labour and of establishing peace ; and
Whereas the Declaration of Philadelphia reaffirms that "freedom
of expression and of association are essential to sustained progress"
and recognises the solemn obligation of the International Labour
Organisation to further among the nations of the world programmes
which will achieve, among other things : "the effective recognition of
the right of collective bargaining, the co-operation of management and
labour in the continuous improvement of productive efficiency, and the
collaboration of workers and employers in the preparation and application of social and economic measures" ; and
Whereas it also affirms that "the principles set forth in this Declaration are fully applicable to all peoples everywhere and that, while the
manner of their application must be determined with due regard to the
stage of social and economic development reached by each people,
their progressive application to peoples who are still dependent, as well
as to those who have already achieved self-government, is a matter of
concern to the whole civilised world" ; and
Whereas standards of living, normal functioning of national economy
and social and economic stability depend to a considerable degree on a
properly organised system of industrial relations founded on the recognition of freedom of association ; and
Whereas, moreover, in many countries, employers' and workers'
organisations have been associated with the preparation and application
of economic and social measures; and
Whereas the International Labour Conference, the regional conferences of the American States Members of the International Labour
Organisation and the various industrial committees have, in numerous
Resolutions, called the attention of the States Members of the International Labour Organisation to the need for establishing an appropriate
system of industrial relations founded on the guarantee of the principle
of freedom of association;
The General Conference of the International Labour Organisation,
Having been convened at Geneva by the Governing Body of the
International Labour Office, and having met in its Thirtieth Session
on 19 June 1947,

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adopts this eleventh day of July of the year one thousand nine hundred
and forty-seven the following Resolution :
I.

FREEDOM OF ASSOCIATION

1. Employers and workers, without distinction whatsoever, should
have the inviolable right to establish or join organisations of their
own choosing without previous authorisation.
2. Employers' and workers' organisations should have the right
to draw up their constitutions and rules, to organise their administration
and activities and to formulate their programmes ; there should be no
interference on the part of the public authorities which would restrict
this right or impede the organisations in the lawful exercise of this
right.
3. Employers' and workers' organisations should not be liable to
be dissolved or have their activities suspended by administrative
authority.
4. Employers' and workers' organisations should have the right
to establish federations and confederations as well as the right of affiliation with international organisations of employers and workers.
5. The guarantees defined in paragraphs 1, 2 and 3 herein with
regard to the establishment, functioning, dissolution and suspension of
employers' and workers' organisations snould apply to federations and
confederations of such organisations.
6. The acquisition of legal personality by employers' and workers'
organisations should not be made subject :o conditions of such a character
as to restrict freedom of association as hereinbefore defined.
7. The acquisition and exercise o:: the rights as outlined in this
part should not exempt the employers' and workers' organisations from
their full share of responsibilities and obligations.
II.

PROTECTION OF THE RIGHT TO ORGANISE AND TO BARGAIN
COLLECTIVELY

8. There should be agreement between organised employers and
workers mutually to respect the exercise of the right of association.
9. (1) Where full and effective protection is not already afforded,
appropriate measures should be taken to enable guarantees to be
provided for :
(a) the exercise of the right of freedom of association without fear
of intimidation, coercion or restraint from any source with the object of :
(i) making the employment of the worker conditional on his not
joining a trade union or on his withdrawing from a trade union of
which he is a member ;
(ii) prejudicing a worker because he is a member or agent or official
of a trade union;
(iii) dismissing a worker because he is a member or agent or official of a
trade union.
(b) the exercise of the right of association by workers' organisations
in such a way as to prevent any acts on the part of the employer or
employers' organisations or their agents with the object of :

APPENDICES

107

(i) furthering the establishment of trade unions under the domination
of employers ;
(ii) interfering with the formation or administration of a trade union
or contributing financial or other support to it;
(iii) refusing to give practical effect to the principles of trade union
recognition and collective bargaining.
(2) Tt should be understood, however, that a provision in a freely
concluded collective agreement making membership of a certain trade
union a condition precedent to employment or a condition of continued
employment does not fall within the terms of this Resolution.
10. Appropriate agencies should be established, if necessary,
for the purpose of ensuring the protection of the right of association
as defined in paragraph 9 herein.

APPENDIX I I I
CONVENTION (No. 87) CONCERNING FREEDOM OF ASSOCIATION
AND PROTECTION OF THE RIGE? TO ORGANISE, ADOPTED
BY THE INTERNATIONAL LABOUR CONFERENCE AT ITS 31st
SESSION (SAN FRANCISCO, 1948)
The General Conference of the International Labour Organisation,
Having been convened at San Francisco by the Governing Body
of the International Labour Office, and having met in its Thirtyfirst Session on 17 June 1948;
Having decided to adopt, in the form of a Convention, certain
proposals concerning freedom of association and protection
of the right to organise, which is the seventh item on the agenda
of the session;
Considering that the Preamble to the Constitution of the International Labour Organisation declares "recognition of the principle of freedom of association" to be a means of improving
conditions of labour and of establishing peace ;
Considering that the Declaration cf Philadelphia reaffirms that
"freedom of expression and of association are essential to sustained
progress" ;
Considering that the International labour Conference, at its Thirtieth
Session, unanimously adopted the principles which should form
the basis for international regulation ;
Considering that the General Assembly of the United Nations,
at its Second Session, endorsed these principles and requested
the International Labeur Organisation to continue every effort
in order that it may be possible to adopt one or several international Conventions;
adopts this ninth day of July of the yaar one thousand nine hundred
and forty-eight the following Convention, which may be cited as the
Freedom of Association and Protection cf the Right to Organise Convention, 1948 :
PART I.

FEEEDOM or

ASSOCIATION

Articlell
Each Member of the International Labour Organisation for which
this Convention is in force undertakes to give effect to the following
provisions.
Article 2
Workers and employers, without distinction whatsoever, shall
have the right to establish and, subject crly to the rules of the organisation concerned, to join organisations oi their own choosing without
previous authorisation.

APPENDICES

109

Article 3
1. Workers' and employers' organisations shall have the right
to draw up their constitutions and rules, to elect their representatives
in full freedom, to organise their administration and activities and to
formulate their programmes.
2. The public authorities shall refrain from any interference which
would restrict this right or impede the lawful exercise thereof.
Article 4
Workers' and employers' organisations shall not be liable to be
dissolved or suspended by administrative authority.
Article 5
Workers' and employers' organisations shall have the right to
establish and join federations and confederations and any such organisation, federation or confederation shall have the right to affiliate with
international organisations of workers and employers.
Article 6
The provisions of Articles 2, 3 and 4 hereof apply to federations
and confederations of workers' and employers' organisations.
Article 7
The acquisition of legal personality by workers' and employers'
organisations, federations and confederations shall not be made subject
to conditions of such a character as to restrict the application of the
provisions of Articles 2, 3 and 4 hereof.
Article 8
1. In exercising the rights provided for in this Convention workers
and employers and their respective organisations, like other persons or
organised collectivities, shall respect the law of the land.
2. The law of the land shall not be such as to impair, nor shall it
be so applied as to impair, the guarantees provided for in this Convention.
Article 9
1. The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined
by national laws or regulations.
2. In accordance with the principle set forth in paragraph 8 of
Article 19 of the Constitution of the International Labour Organisation
the ratification of this Convention by any Member shall not be deemed
to affect any existing law, award, custom or agreement in virtue of
which members of the armed forces or the police enjoy any right guaranteed by this Convention.
Article 10
In this Convention the term "organisation" means any organisation
of workers or of employers for furthering and defending the interests
of workers or of employers.

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PART II.

PROTECTION OF THE RIGHT TO ORGANISE

Article 11
Each Member of the International Labour Organisation for which
this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise
freely the right to organise.