Preliminary document for discussion
CASE STUDIES: A COMPARISON BETWEEN JAMAICA AND BARBADOS
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- Comparative Statement on Freedom of Association
- 4.1.2. Forced Labour
- 4.1.3. Freedom from Discrimination
- Eradication of Child Labour
- 4.1.5. Termination of Employment
4. CASE STUDIES: A COMPARISON BETWEEN JAMAICA AND BARBADOS:4.1. Fundamental rights and their application in Barbados and Jamaica4.1.1. Freedom of AssociationJamaica Under Section 13 and 23 of the Constitution the right of freedom of association is enshrined. Under Chapter III labelled ‘Fundamental Rights and Freedoms’ subsection 13 (b) guarantees to the individual “freedom of conscience, of expression and of peaceful assembly and association...” Section 23 is more explicit in that it points directly to trade union membership. Its text is as follows, “Except with his own consent, no person shall be hindered in the enjoyment of his freedom of peaceful assembly and association, that is to say, his right peacefully to assemble freely and to associate with other persons and in particular to form or belong to trade unions or other associations for the protection of his interests.”23 Section 4 of the Labour Relations and Industrial Disputes Act LRIDA puts in place penalties for anyone who attempts to compromise this right. It supports the Constitutional provision and goes a step further. As indicated earlier there are two Caribbean cases that demarcate these rights, Collymore v.the Attorney General and Banton v. Alcoa Minerals. In the former it was held that the right of freedom of association was not equivalent to a right to strike. It was simply a personal right to associate. In the latter, it was held that membership in a union was not the same as the right to have a trade union bargaining on one’s behalf. Nonetheless, Jamaica has statute which deals with the right to collective bargaining. Section 5 (3) of the LRIDA, empowers the Minister of labour to conduct a ballot to determine a unions’ claim for bargaining rights. The Regulations under the Act specify a procedure which if when followed, normally ends in a ballot being conducted. When this occurs, any result that demonstrates a majority of workers wishing to be represented by the union, gives it an inalienable right to bargain on behalf of the workers claimed for (not only those who voted). Under Section 6 of the LRIDA there is an assumed procedure for the settlement of industrial disputes without recourse to industrial action. It involves negotiation or free collective bargaining at the local level, conciliation at the Ministry of Labour, and binding arbitration at the Industrial Disputes Tribunal (IDT). The IDT has powers to reinstate workers who have been dismissed unjustifiably, order the cessation of industrial action, or order that it not take place. Its awards are final, conclusive and binding on all parties. There is no right to strike although there is a freedom to do so. This merely means that if it takes place then normally workers or employers who carry out this behaviour are not subject to penalties from the state. In the essential services there is no such freedom. The Ministry has the power to refer a matter to the Tribunal in the absence of consent from the disputants or it being in the essential services as defined narrowly by the ILO. Barbados Section 11 of the Barbadian Constitution has similar provisions to those of Section 13 of its Jamaican equivalent. Under subsection (d) it addresses “freedom of conscience, of expression and of assembly and association”.24 It has no equivalent section to Jamaica's section 23 as it does not speak specifically to the right to belong to trade unions, although it is interpreted to be so. As a member of the Commonwealth Caribbean Barbados’ jurisprudence is based on the same case law as all the other English-speaking countries. Thus, the judgements in the abovementioned cases have binding effect there as well. Nothing in statute exists to give workers the right to choose a union for the purposes of collective bargaining as is found under Jamaica’s LRIDA and regulations. However, in practice the Department of Labour plays a pivotal role, and as is described below, the de facto situation is that workers and their unions have this right. It is of note that more than 60% of the Barbadian workforce is unionized as compared to 20% in Jamaica. As in Jamaica there is no right to strike. The Better Security Act makes work stoppages in the water, gas and electricity sectors unlawful. Nonetheless, there is no provision for compulsory arbitration in any sector or industry. Yet, despite this apparent impotence in the resolution of disputes neither government, employers nor trade unions have indicated that this has led to an unmanageable situation as virtually all disputes and work stoppages are settled by conciliation/mediation. Comparative Statement on Freedom of AssociationClearly Jamaica has done more to give effect to the Convention and the Declaration via its statutes than Barbados. However, in practice, Barbadian workers have more access to the process of collective bargaining than their Jamaican counterparts. With a higher level of unionization, they have a greater degree of protection from arbitrary dismissal and other acts of discrimination which unprotected workers may be subject to. Still, Jamaica has more protection of the rights of freedom of association in principle. 4.1.2. Forced LabourJamaica Jamaica has no constitutional provision which addresses this. Neither is there any other statute to the effect. In practice there is no tradition in the post-colonial period in the Caribbean where forced labour is an issue. Notwithstanding this, the ILO’s Committee of Experts (CEACR) has raised the question of compulsory labour being part of the punishment for disciplinary breaches on merchant ships. This pattern is based on an old colonial statute applicable to former British colonies, the United Kingdom’s Merchant Shipping Act. Though not practiced, no legislation has been enacted to nullify this legislation. Barbados Section 14 of the Barbadian Constitution guarantees the right to protection from slavery and forced labour. It states in subsections (1) and (2), “No person shall be held in slavery or servitude. [and] No person may be required to perform forced labour.” (Barbados Constitution: 17). No other statute deals directly with the issue and there is no indication from the ILO’s Committee of Experts that it has any problem with the way in which the statutes and practices in this country have given effect to the Conventions. Nonetheless, the abovementioned statute is also relevant to Barbados. 4.1.3. Freedom from DiscriminationJamaica Jamaica’s Constitution underlines the principles of freedom from discrimination. Section 24 declares that persons shall not be treated in a discriminatory manner, and it goes on to define discrimination to mean, “affording different treatment to different persons … by race, place of origin, political opinions, colour or creed…”.25 One noted omission is any reference to sex. This appears to be intentional since subsection 4 (b) make exception “with respect to adoption, marriage, divorce, burial … or other matters of personal law.”26 This is not surprising since the Maintenance Act in that country puts the burden on the male parent or spouse for the maintenance of spouse and offspring. Thus there is discrimination in family law. As regards employment law, there is an Employment (Equal Pay for Men and Women) Act, which provides for the payment of equal pay for equal work. Though well intentioned, it does not provide for equal payment for work of equal value. This is a gap which the Committee of Experts has been seeking to have corrected for more than a decade. Barbados Similar provisions exist in Barbados’ Constitution. Nevertheless, no other statute has been enacted to eliminate discrimination in the labour market. The social partners all suggest in the interviews that in practice there is a clear position against differential treatment in the labour market based on sex. However, in the absence of statute it is difficult to believe that the sexual discrimination in employment and occupation will not exist. What is of consequence is Barbados’ large percentage of workers who are covered under collective agreement. With a high degree on consensus there is reason to feel that there is a conscious effort to reduce the potential for this type of discrimination. Yet, without the necessary guidance of statute this is a clear opening in the local labour standards.
Jamaica On the whole there is not a serious problem with child labour in CARICOM, especially among the Anglophone countries. In this regard Jamaica is no exception. Nonetheless it needs to bring its legislation in concert with the provisions of the ILO’s conventions on the subject. Up to the time of writing it had not yet ratified Convention N° 182. Interviews with officials of the Ministry of Labour suggest that rather than moving to ratification immediately it was considered more prudent to enact the necessary legislation to give effect to it. At present there are some gaps in the existing legislative framework. Several pieces of legislation address minimum age for employment. Of note is the Juvenile Act, which permits work only for individuals 16 years and above. On the other hand there is statute which allows for work by children 12 years and above in family undertakings. An Incorporative Child Care and Protection Act is being discussed. If passed, this Act will bring the laws and practices in line with the ILO Conventions. Barbados Like Jamaica Barbados has a number of conflicting provisions in its various statutes, thereby presenting a number of difficulties in the application of Convention N° 182. The Factories Act sets a minimum age at 15 years, while the Employment (Miscellaneous Provisions) Act sets a limit of 16 years. In contrast, the Education Act permits employment for children ‘of school age’ outside of school hours. However, this last statute does not limit the number of hours for which the child is allowed to work. As with Jamaica, legislative changes on the subject are in process. 4.1.5. Termination of EmploymentIt is here that there is a significant difference between the two countries. There is a bit of a paradox in that in each country there is a higher degree of protection in one area and a clear gap in another. Jamaica The principal piece of legislation that deals with the subject is the Employment (Termination and Redundancy Payment) Act (ETRPA). It covers the subject of statutory notice, lay-offs and redundancy payments. It does not address reinstatement. The aforementioned LRIDA gives to the IDT the power to reinstate a worker if s/he has been unjustifiably terminated. While on the surface it may appear that there is more protection to the aggrieved worker it should be noted that in the absence of organized labour a dispute cannot be sent to the Tribunal without the consent of both parties. Simply put the Minister may independently send a dispute to the IDT for settlement for compulsory arbitration only if there is the likelihood that industrial action will result and that the national or public interest will be affected. In the case of a single non-unionized worker there is no such probability. The net result is that workers who are not unionized, that is 80 per cent of workers in Jamaica, do not access to the mechanisms of justice. Since only the IDT has the power to reinstate, when an individual takes a matter to court all that can occur is that s/he is awarded compensation usually equivalent to notice pay. Jamaican workers who are terminated frivolously are not normally entitled to severance/redundancy pay unless they can establish that their dismissal was due to either the employer closing the enterprise or reducing the requirements for labour; the worker developing a work related illness; or the worker getting injured on the job. Apart from this serious exclusion another gap lies in the ETRPA. Under the Act an individual can be laid off for up to 120 days before the worker can claim to be made redundant. There is no ceiling on the number of times that the employer can lay-off and recall an employee. Thus, an employer can simply lay-off and recall workers indefinitely. Barbados Nothing in Barbados’ statutes gives a worker access to the right of reinstatement. This is a disadvantage as compared with Jamaican workers. However, it must be also be observed that in Barbados workers who are not terminated for the purposes of redundancy/severance but are unfairly dismissed are entitled to the same compensation by the courts as if they were made redundant. Furthermore workers in Barbados cannot be laid off indefinitely. Under the Severance Payment Act (SPA) if the period of lay off is 13 or more consecutive weeks, or a total of 16 weeks in a 26 week period, then severance is applicable. In real terms then, since all workers in Barbados have access to the same amount of compensation as opposed to 20 per cent in Jamaica, it would appear that workers in the former, except for the inability to be reinstated, are more protected, on the whole. Download 475.12 Kb. Share with your friends:
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