FUNDAMENTAL PRINCIPLES AND RIGHTS AT WORK AND THEIR EFFECT IN CARICOM

3. FUNDAMENTAL PRINCIPLES AND RIGHTS AT WORK AND THEIR EFFECT IN CARICOM

Across the region there is a reasonably consistent pattern of ratification of the ILO’s Conventions. Ranging from eight in St. Kitts to 46 in Guyana, the mean number of conventions ratified by the countries is 25. As regards the fundamental human rights conventions, there is almost unanimous ratification. All nations have ratified Conventions N° 87 and N° 98, which deal with freedom of association and the right to collective bargaining and Conventions N° 29 and N° 105, concerning forced labour. Concerning Convention N°100, which addresses equal remuneration, only one country, (Surinam), has not ratified it. Grenada has not ratified Convention N° 111, which relates to discrimination in employment and occupation. Conventions N° 138 and N° 182, which relate to minimum age to enter the work force, and the eradication of the worst forms of child labour, the former has not been ratified by Granada, Haiti, Saint Kitts and Nevis, Saint Vincent and the Grenadines, Saint Lucia, Surinam, and Trinidad and Tobago. The latter has not been ratified by Haiti, Jamaica, Saint Kitts and Nevis and Surinam (Annex 1).

1. Regional Standards Regarding Core Principles

3.1.1. Freedom of Association and the Right to Collective Bargaining

Apart from the fact that all CARICOM countries -except one- have ratified both Conventions N° 87 and N° 98, there is an explicit commitment to the principles enshrined within them in regional accords. Most noteworthy is the CARICOM Declaration of 1995. Chapter II speaks specifically to Freedom of Association. Article 3 of that chapter directly declares that “Workers and employers, without distinction whatsoever, shall have the right to establish and subject only to the rules of the organisation concerned, to join organisations of their choosing.”⁷

3.1.2. Elimination of Forced Labour

Article 16 of the Declaration explicitly states that Member States

“…shall not impose nor permit to be imposed, forced or compulsory labour for the benefit of private individuals, companies or associations. No concession granted to private individuals, companies or associations shall involve any form of forced or compulsory labour for the production or collection of products which such private individuals, companies or associations utilise or in which they trade.”¹¹
Again this section of the Declaration is clearly congruent with Convention N° 29 as it is an almost verbatim version of paragraph 1 of Article 4 and paragraph 1 of Article 5 combined. Doubtless this is a solid basis upon which to begin the standardization process of regional norms in this regard.
However, a definition of forced labour ought to have been included in the document similar to that contained in Article 2 of the Convention, which reads “ ‘forced or compulsory labour’ shall mean work or service which is exacted from any person under the menace of any penalty for which the said person has not offered himself [herself] voluntarily.” Without this definition the various countries in the region could possibly enact legislation based on notions of forced labour that do not necessarily conform to the convention.
At the national levels there are varying degrees of compliance with this principle, with few serious breaches. Most noteworthy is Haiti with its problem of children suspected of being ‘sold’ into slavery type arrangements. In the Anglophone countries there has been little in the area of complaint from the ILO’s Committee of Experts. Some of the infrequent questions raised by the Committee have surrounded the terms and conditions of workers on merchant ships. Notwithstanding this, only Haiti has had regular comments on the subject.

3.1.3. Elimination of Discrimination in Employment and Occupation

The CARICOM Declaration speaks explicitly on the subject of the elimination of unequal treatment in the labour market on the basis of sex or other demographical characteristics. Chapter IV, entitled ‘Non-Discrimination in Employment and Occupation’, begins with Article 11, which deals with ‘Equality of Opportunity and Treatment’. It reads:

“Subject to Articles 12, (2), 13 and 14 of this Chapter, the Member States undertake to adopt and pursue national policies designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation with a view to eliminating any discrimination on the basis of race, color, sex, religion, political opinion, national extraction or social origin.”¹²
Article 12 is virtually the same as the provisions of Convention N° 100 on equal remuneration. In its captioned ‘Equal Remuneration for Work of Equal Value’, it declares that
“The Member States shall, by means appropriate to the methods in operation for determining rates of remuneration, promote and ensure the application to all workers of the principle of equal remuneration for men and women workers for work of equal value.”¹³
Nonetheless, “differences as determined by objective appraisal in the work to be performed shall not be considered as being contrary to the principle of equal remuneration for men and women workers for work of equal value.”¹⁴ It is this provision that is of critical importance in the elimination of discrimination in the labour force.
In some of the Member States where there is equal pay legislation, the emphasis is on equal pay for equal work. An example of this is Jamaica’s Employment (Equal Pay for Men and Women) Act. While in spirit this principle appears to address unequal treatment in the economic rewards for labour it generally obscures differentials based on the value imputed to work. Thus, where there is equal pay legislation, which does not at the same time address work of equal value, gendered biases in the way work is valued and recompensed can abound. The usual result is that female-dominated occupations are remunerated at lower rates than male-dominated ones, even where they are of equal or greater economic value to the employers. However, in other countries such as St. Lucia and the Bahamas, where the legislation was enacted more recently there is a greater degree of conformity with the convention and Declaration.
CARICOM’s draft statute on the subject is compatible with these provisions in the Declaration. If these principles are enshrined in national legislation in the region, then there will be close to perfect conformity with the core conventions on the topic.

3.1.4. The Eradication of Child Labour

Perhaps due to the view especially in the English-speaking Caribbean that there is not a serious child labour problem in the region, there is no regional draft legislation on the subject. Rather, the only mention of the phenomenon is in Article 16.2 which states “The Member States undertake to prohibit the employment of children of less than fifteen (15) years.”¹⁵

While the Declaration recovers Article 2 of Convention N° 138 which specifies that no person below the age of 15 should be employed it does not capture the dimensions of the entire convention nor does it fully match Convention N° 182. For example, there is nothing that indicates that an individual needs to be at least 18 years of age in order to engage in work of a hazardous nature. Article 3 of Convention N° 138 reads inter alia…
“The minimum age for admission to any type of employment or work which by its nature or the circumstances in which it is carried out is likely to jeopardize the health, safety or morals of young persons shall not be less than 18 years.”¹⁶
The Declaration is thus inadequate in this regard.
Of significance also is that the draft statute on occupational health and safety sets a minimum age of 18 years for employment in hazardous work.
Understandably, given that the Declaration was passed four years before Convention N° 182 was adopted, it would not have been guided by its provisions. It is of note however, that the Declaration subsumes child labour under the heading ‘Prohibition of Forced Labour’. The subject of forced labour overlaps with the phenomenon of the worst forms of child labour as comprised in Article 3 of Convention N° 182. This article defines the worst forms of child labour to include not only forced labour, such as slavery, debt bondage and conscription in armed conflict, but also pornography, prostitution, drug production and trafficking as well as the aforementioned dangerous work.
At present no comprehensive document in the region addresses the subject. Nonetheless, it must be recognized that the regional governments have been engaging the issue and have all but three ratified Convention N° 182.

3.1.5. The Protection and Termination of Employment

Although it is not a fundamental principle, the protection from arbitrary dismissal is as important as any of the core concepts. This is because, however protected a worker is, in regard to his/her right to form or belong to trade unions, to engage in collective bargaining, or to be treated equally and fairly, or not to be forced to work, if there is no guarantee that his/her job cannot be frivolously be taken away, then all of the other core labour standards are meaningless. CARICOM has gone a far way in establishing community norms on this principle.

Anchored on Convention N° 158, the Declaration addresses the subject in Article 22, captioned, ‘Termination of Employment’. It states that the employment of a worker “shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service subject to due process.”¹⁷ Furthermore, Article 23 entitled ‘Natural Justice’, states that workers have the right to be given an opportunity to challenge the reasons for termination and to appeal to an impartial body.
The draft regional statute on the Termination of Employment declares that its objectives are:

1. 
   to give effect to the provisions of the ILO Convention concerning Termination of Employment N° 158 (1981);
   
2. 
   to confer upon employees the right to continuity of employment and protection against unfair dismissals;
   
3. 
   to establish procedures for employees and employers to follow to terminate an employment relationship in a fair and equitable manner.”¹⁸
   

Community standards on this topic are as important as those that exist regarding industrial relations, which comprise not only the settlement of disputes but also the matters of freedom of association. The largest number of disputes and complaints reported to the various labour departments and ministries surround the termination or protection of employment. Furthermore, as will be discussed this is one of the areas in which there is significant divergence among Member States.

Community Standards
For the purposes of the present paper, one of the most important is the drafting of model laws on the following topics; Termination of Employment; The Recognition of Trade Unions; Occupational Safety and Health and Equality of Opportunity and Treatment. Issues covered in these models include sexual harassment as well.
This underlines the commitment to harmonize the labour standards across the region. Arising out of the St. Lucia Meeting in 1993, a project began to draft common statutes, giving effect to the accord. The abovementioned model legislation has been in existence since the mid 1990s.
On the whole, the regionally established and accepted labour standards are very closely aligned to the fundamental rights and principles at work demarcated by the ILO. On the subject of freedom of association the Declaration and the draft legislation match the provisions of the conventions. The work on equality of treatment has virtually been done and awaits national implementation, while that on forced labour, though not a large issue in the region still requires more attention. More focus needs to be paid to child labour in the sense that a community document is needed.
There are some gaps regarding each principle, however the general observation is that on the whole CARICOM’s community labour standards are rather high as regards their congruence with the core labour standards of the ILO. On the subject of the termination of employment its standards are good (Annex 3).

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