Preliminary document for discussion
Labour Principles at CARICOM and the Caribbean countries
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- Navigate this page:
- Recognition Processes for Trade Unions
- Commentary: ILO Convention N° 98
- 3.2.2. The Elimination of All Forms of Compulsory Labour
- 3.2.3. The Elimination of Discrimination in Employment and Occupation
- Deviations from the Convention
- 3.2.4. The Effective Abolition of Child Labour
3.2. Labour Principles at CARICOM and the Caribbean countries3.2.1. Freedom of Association and the Right to Collective BargainingConvention N° 87: Freedom of Association and the Protection of the Right to Organize 1948 This Convention provides explicitly that workers and employers without distinction shall have the right to establish and join organizations of their choice without previous authorization. This includes the right to establish rules and systems of governance within these organizations. Articles 2 and 3 of the Convention expressly enjoin a government from “any interference which would restrict or impede the lawful exercise thereof”, and these organizations “shall not be liable to be dissolved by administrative authority.” 19 Article 11 commits the government to “take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organize.” In all the Constitutions of the region, there is the guarantee of this basic right of freedom of association. For example, Sections 13 and 23 of the Jamaican Constitution establishes the “right peacefully to assembly freely with others and in particular, to form or belong to trade unions or other associations.” There is no penalty provided in the Constitution for its breach. However, the Labour Relations and Industrial Disputes Act (LRIDA) of 1975, provides in Section 4, that persons who prevent individuals from freely associating may be fined or imprisoned. Antigua and Barbuda’s Constitution also guarantees these rights. It also includes the freedom from forced labour. Haiti’s Constitution also has these guarantees. It actually goes beyond most of the Anglophone Constitutions by including the right to an education and the freedom to work. Notwithstanding the similarities in the constitutional provisions across the nations, there is some degree of unevenness regarding subsidiary legislation, which along with the principal statute Constitutions, are intended to give effect to the Convention. Much of this is evident from a primary examination of the various statutes as well as a secondary reviewing of the annual Report of the Committee of Experts on the Application of Conventions and Recommendations. Given the standardized set of rules and procedural guidelines, the Report is seen as very instructive for the purposes of this study. Deviations from the Convention Barbados The Better Security Act of 1920 provides that where an individual induces another to breach a contract of employment, where this breach may present a danger to real or personal property, such person may be liable to a fine or imprisonment up to three months. For in excess of a decade and a half, the Committee has being impressing on the government to make the necessary amendments since, in the event of a strike, in the non-essential services -narrowly defined by the ILO- this contravenes the convention. Belize Under The Settlement of Disputes (Essential Services) Act, there is an effective prevention of the right to strike in a number of key industrial sectors. This statute defines essential services to include industries which are not within the ILO’s standard definition. In effect this gives to the government the right to intervene in the process of free collective bargaining by giving to itself the right to end a strike. Dominica Given that more than 80 percent of GDP is produced from agriculture, with Banana being the key industry, it is not surprising that the essential services under Dominica’s Industrial Relations Act of 1986 include the Banana, Citrus and Coconut Industries. Needless to say, this is inconsistent with the ILO’s standards. Grenada Grenada’s Labour Relations Act (LRA) of 1999 marks a point of departure from the Convention. Like most of the other statutes across the region it guarantees the right to form and freely belong to any organization. However, Section 43 of the LRA provides that workers in a bargaining unit, where there is a recognized majority union must pay to the union, a sum equivalent to union dues, if they are not members of the union. This effectively forces workers to associate, thus running counter to the Convention. It is to be noted that this Section of the Act also contradicts and contravenes the Grenadian Constitution. Section 11 of the principal statute enshrines the principles of freedom of association as all Constitutions across the region. It should be noted however, that Grenada has one of the newest pieces of labour legislation. The LRA and the Employment Act, both of 1999, were designed with the significant input of the ILO Caribbean office. It is noted that the Grenadian government has a Bill before Parliament which is attempting to amend the Act to allow for the Minister of Labour to send a dispute to arbitration if conciliation and mediation fail to resolve it. This initiative is inconsistent with the ILO’s standard relating to compulsory arbitration. However, if this Bill is enacted, it would bring the practices in Grenada more in concert with those which obtain in a number of the other countries, such as Guyana and Jamaica. At present there is much resistance to the Bill from the labour movement. Guyana Guyana has had a Trade Union Recognition Bill before Parliament for in excess of 20 years. There is no evidence that it has been enacted into law. More significant however, is the fact that it's Public Utilities Undertaking and Public Health Services Administration Act defines essential services to incorporate a number of key industrial sectors, which, though important for the national economy, fall outside of the ILO’s definition. This narrow definition is a sector or service where “the interruption of which would endanger life, personal safety or health or the whole or part of the population.”20 This in effect gives the government too much discretion in the referral of industrial disputes to arbitration, effectively abridging the right to strike. Haiti Despite the constitutional provision, Section 236 of the Haitian Penal Code requires that government approval be given before an association of greater than 20 members can be formed. Furthermore, Section 34 of the 1983 Decree expressly allows government to supervise trade unions. Doubtless, this is contrary to the provisions of the Convention. In particular, it is repugnant to Articles 2, 3, and 4 of the Convention. Jamaica The Committee has been pressing the Jamaica Government for in excess of 14 years to amend the Labour Relations and Industrial Disputes Act (LRIDA). Like Guyana its definition of the industries which constitute essential services is too large, and incorporates services which are outside of the narrow scope of the Convention. As with Belize and Guyana, the overly expansive definition allows the government to have inordinate control over the processes of dispute resolution, and it translates into a restriction of the right to strike. Apart from the definition of essential services under the Act, the Committee has consistently sought to have the government amend the legislation to remove its discretion to send a dispute to arbitration under Section 11A. Here the Minister has the power to refer a matter to legally binding arbitration to the Industrial Disputes Tribunal (IDT) despite the wishes of any or all parties to the dispute. Another gap in the legislative provision regarding Convention N° 87 is evident in Section 2 of the LRIDA as amended by the LRIDA (Amendment) of 2002. This new definition provides for persons who are engaged under conditions which resemble those of an employee, rather than a contractor to be classified as workers. However, there is no mechanism for the determination of such a contract within the Act, neither is there any definition of ‘employee.’ Thus individuals engaged under ‘disguised contracts’ have no recourse and are therefore prevented from exercising this statutory right since they are not considered workers. Trinidad and Tobago The Committee has been requesting the government to amend Section 59 (4) the Industrial Relations Act (TTIRA) to enable a simple majority of workers who voted to call a strike. In the present case, the majority must not only be those who voted, but those who are eligible to do so. This concept of a vote prior to a strike is not a very common one in CARICOM. The recent amendment to the Jamaican LRIDA now incorporates a strike vote. Notwithstanding this, the Committee, as in the case of Belize, Guyana and Jamaica, has sought to have the Act modified to enjoin the government from having the power to call an end to a strike. Commentary: ILO Convention N° 87 There are some significant differences among the nations of CARICOM. However there is far more commonality as regards the application of this convention. What is of note is that most of the nations seem to prefer a system of industrial relations where they have greater control over the processes of dispute resolution, in particular, as regards the rights to strike. In this regard, almost all countries have categories of essential services which are larger than the ILO’s. In fact they are consistent to the extent that they mostly have key industrial sectors included in the definition under their various statutes. The logic of compulsory arbitration is understandable given that on the whole they are small open and fragile economies. While the notion of essential services is tightly defined by the ILO, the impact of unregulated and indefinite industrial action would not only be economically disastrous within a particular industry, but in some cases, the entire economy could be destroyed. It is significant that the CARICOM Declaration of 1995 does not define essential services, though in Article 42 it refers to it. Given the tendency of regional government to put in key industrial sectors in the definition, it is possible that the narrow ILO definition may actually create divisions. This is an area which requires much more attention. ILO Convention N° 98: The Right to Organize and Collective Bargaining. 1949 Among the provisions of this Convention are that workers shall be free from anti-union discrimination especially where acts are designed to make “the employment of a worker subject to the condition that shall not join a union.... or cause the dismissal ...because of participation in union activities” (Article 1). Furthermore, Article 3 provides that machinery to ensure these rights should be put in place, and Article 4 requires governments to “...encourage and promote the full development and utilisation of machinery for voluntary negotiation” Two enduring judicial decisions, which demarcate the distinction between freedom of association and the right to collective bargaining, are the 1964 Trinidadian case of Collymore v. the Attorney General21 and the Jamaican Banton and Others v. Alcoa Minerals22. In the former it was held that there was a difference between the ‘personal’ right of freedom of association, guaranteed by the Constitutions, and Convention N° 87 for that matter, and the ‘collective’ right to strike. In the latter, the difference between the right of association and the more useful right to bargain collectively was outlined. The view, established in the Banton case, was that collective bargaining was predicated on the assumption that a union was recognized as the legitimate bargaining agent of a set of workers. Thus, for there to be the right to bargain collectively, a process of recognition must be established as legitimate. Given the voluntary nature of Caribbean industrial relations, none of the regional constitutions have any provision in place for the recognition of any union or employer organization, as the legitimate bargaining agent for a group of workers or any employer or group of employers. Recognition Processes for Trade UnionsThere is no procedure in any Caribbean statute for the recognition of employer associations. However, in many of the regional legislation one finds elaborate processes for the enfranchisement of workers’ unions. Examples of these are Trinidad and Tobago and St. Lucia. Jamaica’s LRIDA has an attendant set of Regulations which are elaborate. The typical procedure is one where the Ministry of Labour, a Certification Board or equivalent, conducts a ballot which has binding results. This is the case in Jamaica and Trinidad and Tobago. Suriname has in force a Decree on the Recognition of Trade Unions 1981. In virtually all countries, there is a process for the recognition of unions as bargaining agents. Examples of statutes which outline a standard process where the majority union gains bargaining rights are; the Antigua and Barbuda Labour Code, the Belize Trade Union and Employers’ Organisations Recognition, Registration and Status Act, the Grenadian Labour Relations Act, the Bahamas’ Industrial Relations Act, and the Guyanese Trade Union Recognition Act. The procedure varies little from country to country. First, a union makes a claim for bargaining rights and the government’s agent conducts a ballot. Where a simple majority, in excess of 50 percent of the workers eligible to vote -not those who actually voted- indicate a preference for a union, such union has majority representational rights, and is the legal bargaining agent or Recognized Majority Union (RMU). This union is then free to conduct negotiations with the employer and the collective agreement, though not normally binding in law, is enforceable before an industrial court or tribunal. Deviations from the Convention The ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) has taken issue with the governments of Jamaica and Trinidad and Tobago regarding the application of this Convention. In particular, the TTIRA and the LRIDA do not allow for minority representation for the union with the largest number of members where there is no union having more than 50 percent of the bargaining unit. Haiti’s case is perhaps the outlier in CARICOM. Under its Labour Code its Service of Social Organizations has the right to intervene in the preparation of collective agreements. This is significantly different from the provisions in the English-speaking countries where collective bargaining developed more or less without the restriction of government interference. The Committee has consistently asked the government to make the necessary amendments to the statute. Commentary: ILO Convention N° 98This area is one of challenge for the regional agreement. For the Anglophone countries, free collective bargaining has been associated with the rise of political parties and ultimately, the formation of governments. In fact the first collective labour agreements were arrived at before there was the blanket right to vote via Universal Adult Suffrage in 1944. Except for the minor amendments to the statutes in the West Indian nations, there is much consistency. In any event, many of the flaws indicated by the ILO’s Committee occur in a large number of countries. 3.2.2. The Elimination of All Forms of Compulsory LabourGenerally, there is not an issue of forced labour in CARICOM. From the Report of the ILO Committee of Experts (CEACR) and Interviews of the social partners in the English-speaking countries, there is little in practice which contravenes the norms. ILO Conventions N° 29 (1930) and N° 105 (1957) on Forced Labour Only Haiti has elicited a negative comment from the Committee regarding this. In as much as Haiti has a Labour Code, which expressly prohibits the employment of children under the age of 12 years, there is evidence that many children live in situations openly referred to as akin to slavery. In particular there is the tendency to send children to live with “relatives” for a fee. These children, called ‘restaveks’, from the words ‘rester avec’, meaning to stay with, are often involved in sexually abusive situations. Where they run away, they are forcibly returned to their ‘hosts’. The Haitian government has not provided the ILO with a sufficient response to the inquiries on the subject. This situation though referred to in the Committee’s comments on this Convention, is relevant to the provisions of Conventions N° 138 and N° 182 as well. For Haiti to conform to the norm in CARICOM, it will most definitely have to address this problem. 3.2.3. The Elimination of Discrimination in Employment and OccupationILO Convention N° 100 on Equal Remuneration, 1951 This Convention Provides inter alia that equal remuneration should be paid to persons based on their work “of equal value” and not on their sex. This is the crucial distinction. There is a common belief among the policy administrators that equal pay means simply that men and women should be given the same pay for the same work. While this is true, the Convention is actually addressing this sort of disparity as well as those where the work of persons is undervalued and correspondingly remunerated without regard for the value. In other words, even in the face of equal pay statutes it is possible for occupations which are “gendered”, to be recompensed differentially. In the entire CARICOM, it is unconstitutional to discriminate against any individual based of colour, creed, race or sex. By this token it means that it is unlawful to pay individual at a lower rate that their peers simply due to differences of sex. A great number of countries have equal pay legislation. Jamaica has a 1975 Employment (Equal Pay for Men and Women) Act. The Antigua and Barbuda Labour Code is an incorporative legislation which addresses all forms of discrimination in Chapter 4. Guyana has similar legislation. All of the foregoing does not deal with work of equal value. Grenada’s Employment Act addresses not simply equal pay for equal work, but work of equal value. This in not surprising given that the ILO Caribbean office was instrumental in the drafting of the Act. In the Bahamas, the issue of discrimination is addressed under its Employment Act. The statute is unequalled in CARICOM in that it is also oriented towards the prevention of discrimination based on HIV status. Deviations from the ConventionThe Committee (CEACR) has continued to raise issue with Jamaica’s legislation, which stops short of the Convention’s provision. Wile it deals with equal pay, it does not focus on gender. Thus, female dominated occupations can be compensated at a lower level than their male counterparts, even though the work may be of equal or even higher value. In the last decade most of the Committee’s criticism of the Caribbean legislation has been directed to the Jamaican statute. ILO Convention N° 111 on Discrimination (Employment and Occupation), 1958 The same statutes that apply to the Equal Remuneration Convention address discrimination. Over the past decade, the number of negative comments from the Committee has not been large enough to be significant. 3.2.4. The Effective Abolition of Child LabourThis topic is the subject of an ongoing project in the region. The International Programme for the Eradication of Child Labour (IPEC) is at present attempting to evaluate the dimensions of the phenomenon. There are not many statutes with directly address the topic. However the Juvenile Act of Jamaica and the Employment (Miscellaneous Provisions) Act of Barbados are some of the legislation which addresses minimum age. ILO Convention N° 138 on Minimum Age, 1973 The Convention essentially prescribes a minimum age of 15 years for employment purposes. With the exception of Dominica, the Committee has not raised any questions regarding the effect given to the Convention in the region. While it appears that practices in that country are in concert with the convention the necessary legislative changes were not made in supporting statutes. The comments regarding Haiti under Convention are relevant here as well. ILO Convention N° 182 on Worst Forms of Child Labour, 1999 Inasmuch as this is the newest Convention introduced as part of the fundamental rights at work, it has had a fairly rapid ratification rate. Except for three countries, all have ratified it. There is also evidence that these three have either submitted the convention to the competent authorities or are in the process of doing so. The Convention is too new for any analysis of the Committee’s (CEACR) comments to take place. However, the comments related to Haiti under Convention N° 29 are relevant here as well. In discussions with the social partners there was the recognition that there is a problem which has become more visible. The employment of children is governed by statutes such as those mentioned above. However, statutes are still being discussed on the subject of the worst forms of child labour. Download 475.12 Kb. Share with your friends:
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