Document Type : Original Article
Highlights
Assessing the desirability and legal possibility of including arbitration in employment contracts in the Iranian legal system
Abstract
The increase in the volume of cases raised in labor dispute resolution authorities has led to the development of alternative dispute resolution methods. Accordingly, considerable emphasis has been placed on resolving disputes arising from labor relations in international instruments and the laws of some countries. Despite the Iranian legislature's efforts to provide for some alternative methods of resolving labor disputes, arbitration has not been specified. Using a descriptive-analytical method, this study seeks to answer the questions of whether the inclusion of an arbitration clause in the employment contract is necessary and whether such a clause is allowed in the Iranian legal system? According to the findings of the present study, although the Iranian legal system has taken a positive approach to alternative dispute resolution methods, but the inclusion of arbitration in employment contracts in the Iranian legal system, for the reasons that will be addressed in this study, including It can be pointed out that the benefits of arbitration are unfavorable compared to the current method of handling labor disputes, as well as the numerous challenges of referring these disputes to arbitration, especially for workers, without the necessary justification and desirability.
The labor justice system in Iran, despite the legislator's efforts to comply with international principles and standards of labor justice and attention to alternative methods of resolving disputes such as negotiation, compromise and mediation, faces important challenges, the most important of which are We can point to the inappropriate application of the conciliation stage in the labor process, the non-observance of the principles of fair trial in resolving labor disputes by labor dispute resolution and resolution boards, and the length of the proceedings, each of which can be a kind of inefficiency of the judicial system. Provide work and distance from the desired situation. From one point of view, prescribing an arbitration clause in the employment contract, if the necessary conditions are met to achieve this, can facilitate international investment and the parties to the dispute can enjoy the benefits of arbitration.
The system of resolving labor and employer disputes, as part of labor law regulations, is influenced by the conditions of the economic, social and legal system. Disputes between workers and employers are related to both individual and collective relations between the parties to the employment relationship and have different effects and consequences. The complexity, political, social, and economic implications of labor and employer disputes, and the need to deal with them promptly and specifically, make it difficult to resolve these disputes through the judiciary. The superior power of the employer and the fragility of the worker's position, due to the possibility of dismissal by the employer and the dependence of the worker's livelihood on the wage he receives from the employer, require that the dispute between the parties be first settled and decided. , To be done quickly and away from the usual formalities and procedures in judicial authorities; Second, consideration should be given to the participation of government representatives to protect the interests of society and social order, and representatives of the parties to the dispute (workers and employers) to take into account union realities and considerations related to labor relations.
Due to the development of non-judicial methods of resolving disputes, especially arbitration, the use of this mechanism in employment contracts as an important issue has become the basis for leading the writing of the article. The legislator's silence in the Iranian legal system regarding the possibility of referring disputes arising from labor relations to arbitration has raised doubts about the possibility of including the arbitration clause in the employment contract.
The fact is that there are significant similarities between arbitration and litigation by quasi-judicial authorities (the subject of Article 157 of the Labor Code), including the lack of judicial office and immunity of arbitrators and such authorities. , Non-observance of detailed court procedures, speed of proceedings, not being limited to the reasons expressed by the parties and entering into the depth of the dispute in order to resolve it definitively, paying attention to the interests of the parties and considering social and economic considerations and fair approach to cases and It is a vote. Also, the difference in the origin of creation and composition, the lack of a special procedure and the lack of obligation to observe the general rules and principles of the procedure in arbitration are different from the aspects of arbitration and review by quasi-judicial authorities.
There is no explicit prohibition in the Iranian legal system regarding the inclusion of an arbitration clause in an employment contract. Despite the undeniable benefits that arbitration enjoys in resolving disputes, while acknowledging the challenges, it is important to consider the requirements and principles governing labor law in this area. The principle of speed and non-formality of labor proceedings reinforces the referral of disputes arising from labor relations to arbitration. On the other hand, the principle of protectionism and the rule of law, the principle of free labor proceedings and the principle of tripartism in resolving labor disputes are the most important considerations that pose challenges to the provision of the condition of referral. Creates judgment. The principle of freedom of contract alone cannot be a document to justify the legal possibility of including the condition of arbitration; Because in the employment contract (unlike other contracts) due to the weaker position of the worker, in practice it is possible to accept the conditions imposed by the employer and consequently deviate from the provisions of the labor law. Obviously, any condition of referring to an arbitrator, according to which the worker has no role in appointing the relevant arbitrator, is contrary to the basic principles governing labor rights. There is no problem; Practicing it, however, can significantly reduce the progress of recognizing arbitration in employment contracts. Another important consideration in referring labor dispute disputes to arbitration is the payment of arbitration fees. Given the poor economic situation of the workers, the imposition of this cost on them is in conflict with the principle of free handling of labor disputes.
However, despite the movement of the Iranian legal system towards the identification and application of non-judicial methods of resolving disputes, it must be acknowledged that at present there are no conditions for the development of the use of these methods in all cases. Given the numerous challenges that exist in the field of the possibility of including the condition of arbitration in labor disputes, and in view of the creative philosophy of labor law, it seems that the validity of this condition in the current situation is questionable. In terms of the desirability of the possibility of referring to arbitration, it should be acknowledged that there are major aspects of the desirability of arbitration in dealing with labor disputes by quasi-judicial authorities, and in this regard, predicting the possibility of referring to arbitration in such disputes is not particularly preferred. . On this basis, it seems that resolving the problems of handling labor lawsuits in the Boards of Recognition and resolving labor disputes, especially in terms of training the members of the said boards, developing access to them, increasing the speed and quality of the said proceedings, is an appropriate solution. (At least in the current state of the Iranian legal system).
In the present article, in the form of three discourses, we first examine the aspects of the desirability of arbitration compared to other methods of resolving labor disputes. In the following, the approach of the Iranian legal system to other methods of non-judicial settlement of labor disputes will be examined and finally, the legal possibility of including the arbitration clause in labor contracts in the Iranian legal system will be specifically analyzed.
KEYWORDS: Possibility of Arbitration, International Labor Law, Employee, employer, Labor Law
