One hundred years of labour law prof rose marie belle antoine, caricom perspective, no 69, june 1999

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One Hundred Yearc

of Labour Law he very nomenclature 'Master and Servant Act' betrays the obsolete, class stratified, narrowly capitalistic identity of a labour law system. Yet, sadly, such archaic legislation is still evident on Commonwealth Caribbean statute books.

But, 100 years is a long time, and labour law relations is much changed

from yesteryear.

We seldom now see the militancy of the formative years, the 1930s period, where valiant heroes, the Bustamantes, Butlers and Walcotts, walking the thin line between political, social advancement and labour law reform, led multitudes in battle.

O

always known, that much interests is about rigltts.

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Rose-Morie Belle Antoine

I

thankfully, today, the climate of

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I

supplemented by model CARICOM labour laws which are based on contemporary labour law ideals. compatible with ILO Conventions.z A closer look at individual areas of labour law demonstrates the progress or lack of progress within the time period.

Yet, it is an exciting time for labour law and ultimately, workers.

Increasingly, governments, employers and even international financial institutions are beginning to recognise what workers and their unions have

of labour As such,

workers are entitled to them. This can be the only safety net to democracy.

Nevertheless, the many advances have been matched by various setbacks, often coming from our judgments in the law courts.

The goal of achieving progress in labour relations is an ambitious one.

The original model of our labour law was the common law, inherited from an industrial Britain during colonialism, a time immortalised by Dickens for the cruelties to its workers. Contemporary Caribbean labour law and policy is a unique mixture of custom, statute, common law and policy. In addition, no other area of law is so

cemented in ideology, economics and politics, and is so shaped by cultural and historical elements. The historical continuum and cultural paradigm also

Industrial relations Industrial relations is perhaps the area of labour law which touches most

intimately the lives of Caribbean peoples. There has been much activity in

help to explain the inconsistencies in labour law, both within a particular country and across the region. This operates against the backdrop of a

this area during the last 100 years. The initial struggles of the early labour movement have been well document-

labour legal infrastructure which is

ed.

often ad hoc, although touching many areas from child labour to social security. This is one reason for the new

These struggles enabled those who came after, to begin to enjoy the body of law which today we call basic

approach

of

consolidating relevant

legislation into Codes or holistic statutes, exemplified in Grenada in the Employment Act 1997 and the Antigua ktbour Code.

The CARICOM Secretariat itself has played a prominent role in labour law progress. This was as a result of

the CARICOM Harmonisation Prolect.l This project signalled the intent of CARICOM countries to harmonise

their legislation to facilitate better industrial and trade relations between countries, and to update those laws in keeping within a forward looking and

relevant industrial relations context.

In fact, the CARICOM project has since served as a reference point not

only to international organisations such as the IDB, the ILO and the World Bank, but also as the impetus for labour law reform. This has been

labour law rights and freedoms. If today we accept that trade unions have a legitimate place in society, and

that workers have basic rights and expectations to just wages and working conditions, it is because of the early unionists.

Their work also formed part of the political movement of the day, leading to social progress and greater autonomy for Caribbean peoples in their own

affairs, culminating in Independence.

This link with the political life of the

country

is a factor which is

often

ignored in labour law theories and case law, but it is of particular relevance to us in the region.

The 100 years therefore saw legal liability being removed from legitimate trade union activity. in particular, their strike activities. Previously, the objects

of unions were viewed as JUNE 1999

ing, the difficulties expen-

illegal, their activity viewed as criminal. or civil conspiracy, to prevent or restrain the

enced demonstrate that despite the achievements

employer's trade.

by the local labour move-

Today,

Caribbean law has abolished by statute this view of the union to a large extent. The

law has recognised

ment, the legal framework of labour has not kept up to date with the new employment sphere. with its

eted ledgem

trade

unions and their objects by way of conferring on unions immunities from such liabili-

'

emphasis on foreign

rlg hts i

investment, as discussed later. It demonstrates the vulnerability of consensus

t*eR$.

ties. This was a significant development. Not only are unions today, as opposed to 100 years ago, allowed to

and custom models inherited from an industrial rela-

mwQvGr,

tions sphere over 100 years ago, in a new hostile envi-

tiens s d s'ueh r

hold property and make contracts which enable them to be independent and forceful entities in the industrial rela-

tions context, but it means that we have witnessed an

ronment.

At the other end of

the

scale, some countries have moved even further away

from voluntarism to

evolution, or even a revolution, in the attitudes which the law, and inevitably the public has. toward unions.

This evolution in employment relations has progressed from a legal position which saw the role of law and the State as one of total abstention

(the voluntaristic or laissez faire model), to one in which the Legislature has intervened into the industrial relations context to further promote trade union and worker interests.

formal recognition is not in place, the role of the trade union itself is recognised since all countries in the region have Trade Union Acts. In addition, the law or practice has procedures for

embrace systems of compulsory arbi-

tration. Here, industrial relations

is

severely regulated. This system, intro-

duced in Trinidad and Tobago, is

a

governmental authorities to determine whether a union has the majority of workers and could serve as the bar-

controversial development.

We can accept that the voluntaristic model perpetuated a myth that the parties started from equal bargaining

gaining agent. Legal custom also

positions. Particularly in

plays an important part in those countries where there is no statutory recognition of the union. In practice, once the relevant authority has declared that a particular union has a majority

the Caribbean, workers were not only disenfranchised in the workplace, but also politically and socially.

parties, the trade union and the

of

often

There was need for intervention by the State to attempt to address the inequities in the employer/worker

employer, sought to achieve a balance of power without any assistance or

recognise them as the lawful bargain-

relationship. However, the highly

ing agent.

restrictive model that is compulsory

Industrial relations was originally seen as a process where the relevant

workers, employers

will

Ironically, recent events

restriction from the State.

The party with the most power would win the battle. Under the /ais-

in

St.

Lucia and Barbados, where employers refused to recognise such unions,

employer could choose to refuse to

actually reinforce the point made about an evolution in the attitudes

if it has the majority of workers within its

without this change, there could not

sez

faire model, for example,

an

recognise a trade union, even

toward the union.

I say this because

have been the huge uproar that such

arbitration has been accused of being weighted in favour of the employer by

severely limiting the power

of the

union to strike and ultimately, undermining the union and workers'rights.

Human Rights, the Gonstitution and Labour

fold. Similarly, collective agreements were considered to be mere "gentlemen's agreements" which could not be enforced because the law did not

actual laws in place to secure recognition. It is instructive that those

gressed

view the trade union as a legal entity.

Most Caribbean countries have changed these traditional patterns of voluntarism. In those countries where

employers were foreign employers who were, in effect, out of touch with the current social mores of the industrial relations context. Notwithstand-

"immunities approach," which we adopted, has meant that the law has never fullY

JUNE 1999

refusals, given that there were no

While our legal system has proto the point where we now accept trade unions as legitimate

social entities, the

acknowledged that such entities have

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Young Barbadian women ginning cotton in a turn of the century photo from the Barbados Museum and Historical Society. Such tasks demanded much from, and paid little to, the workers.

full legal

status and are entitled to rights. This is an important point as it addresses the raison d'etre of unionism and consequently, the acceptable level of power to be granted to the worker in society. Thus, the question as to the extent to which our labour law recognises fundamental rights of workers, is an emotive one.

During the past 100 years, most Caribbean countries gained indepen-

dence from

Britain and saw the

advent of written Constitutions, with accompanying Bills of Rights. Given

the struggles of labour mentioned above, Caribbean peoples would have

expected some acknowledgement of workers' rights in their Constitutions.

To date, howeveq few Constitutions specifically uphold such rights. The Guyanese Constitution is a notable

exception with its provision on the "right to work" and the right to form and join a trade union is proclaimed

by some Constitutions. What remains

highly literal. If the Constitution does

is for Caribbean people to evoke trade

not protect the most

union rights from more general con-

activity of an union, the strike, is not

stitutional rights, such as the Freedom of Association.

In addition, constitutional protections, with few exceptions, such as the Bahamas, are available only against the State. This is of little use to the majority of workers whose rights are often violated not by the State, but by a private employer.

Case law has demonstrated that any such constitutional protection is largely illusory. The infamous case of Collymore v. A.G.3 put to rest the

the freedom to associate with

fundamental the

union an empty, meaningless right?

What is more unfortunate is that Wooding J. based his reasoning on the adopted, colonial, common law. He therefore not only ignored the ideals and values of the new Constitution, but also the changed labour law norms which had occurred during the years

leading

to that dynamic vehicle of

independence and liberty which

is

a

association

Constitution. The courts have also found that there is no right to collective bargaining. This says little for the

included the right of unions to strike.

In a very narrow judgment, Wooding J felt that while the Constitution protected the right to form and join the union, it did not protect the union's activities, such as a strike. Many readers may rightly view this as being

recognition of workers' progress during the 100 year period.

Further, such myopic decisions are incompatible with the modern philosophy of the ILO, which views certain of its Conventions as promoting basic human rights. These include ratified

notion that freedom

of

JUNE 1999

Conventions, such as No.87 on the freedom of association, Convention

bilities.

No.

29

course originating in India sees eco-

discrimination.

nomic or social rights as logical extensions ofcivil and political rights.

against forced labour and Convention No. I 11 on freedom from

Paradoxically, such decisions come at a time when Caribbean 'rights' jurisprudence, in other areas, has blossomed. Many new Constitutional rights have been created, even new rights for convicted murderers, as illustrated in the infamots Pratt and Morgan case on cruel and inhumane punishment for Death Row prisoners.

Thus, rights in the labour law con-

text have been less prioritised than other areas of Constitutional law.

While the Caribbean man thinks in terms of labour law rlglrrs, this is not upheld by the supreme law of our land, the Constitution.

One of the difficulties with labour rights is that they are essentially economic or social rights. We are more familiar with civil and political rights,

such as the right to life or privacy.

Economic

or social (ECONSOC)

rights are rights which are usually of a collective nature ( given to a group

rather than an individual) and have some kind of cost attached to them.

The existence of a progressive rights jurisprudence which seeks to locate economic and social interests firmly in the sphere of enforceable rights, is lacking. Traditionally, Constitutional

rights.

However, recent 'rights' dis-

This route overcomes the difficulties

raised by their justiciability. For example, the right to education was

Givil Servants and workers' rights During the 100 years, the freedom servants to strike has been progressively curtailed in the interest

of civil

of public order and efficiency.

Yet,

found justiciable through viewing it as an inextricable aspect of the right to liberty.4 Using this elasticity in interpreting civil and political rights, the right to life could incorporate the right to health, including healthy and safe

despite such restrictions, public servants may enjoy more labour law rights than the average worker. The

conditions at work. The right to be free from slavery could include the right to a decent wage and leave, while the right to human dignity could encompass humane working conditions. The list is not exhaustive.

from the British common law that

In an enlightened decision

by

Massiah, J. of the Guyanese court, the Indian line of cases was specifically referred to and approved. The court in A.G. v. Mohammed AL;,5 tretA that the right to work and the right of trade unions to consultation, as enshrined in the Guyanese Constitution were justi-

ciable. This was a radical judgment, again recording the progress of workers'rights in our Region. The fact that the dicta was short-lived, and was sus-

ceptible to subsequent law reform, does not rob it of its importance. It signals that Caribbean courts in the

future may give a more generous

radical constitutional decision of Thomas v. A.G. quashed the more than 100 year old principle inherited

public servants could be dismissed at pleasure. Such workers now enjoy security of employment because their terms and conditions of service are enshrined in the Constitution. Today,

or civil servants may only be disciplined, or dismissed,

Caribbean public

if

natural justice principles are heed-

ed, in particular, the right to a fair

hearing by the constitutionally

appointed Public Service Commission.

The rights of women

workefs

Women have special concerns in

the workplace which today, international Conventions such as those of the ILO and CEDAW recognise.

Nevertheless, in the Caribbean, the legal structure has not kept pace with the changing social mores relating to women. This is perhaps a paradox,

law has viewed these rights, even when encompassed in Constitutions,

interpretation of such rights.

as unenforceable and non-justiciable.

This means that the individual cannot go to the court for a remedy if such a right is violated. Such rights are also thought of as intangible, which adds to the difficulty in enforcement. Does the right to work, for example, mean

Conventions which treat such rights as justiciable, such as the UN Convention on the Elimination of Discrimination Against Women (CEDAW) and various ILO Conven-

given the proud history of working women in the region, from times of

tions. For example, the "right

to

the Caribbean is made up of women.o

work," i.e. job security, is an "inalienable right." At minimum, we have a responsibility to implement compati-

Such endemic poverty is largely due to inequities in employment remuneration and access to emPloYment.

It is generally accepted that the Caribbean is a matriarchal society, i.e. dominated by the mother figure. Yet, it is documented that Caribbean women still receive less pay for iden-

that the State must guarantee full employment?

Thus, the real problem in Collymore was that strike action was viewed as undermining economic pro-

ductivity. Its underlying thesis is that the State cannot be forced to give up its freedom to regulate economic matters according to its needs and capaJUNE 1999

Interestingly,

we have ratified

ble policies. States may do so progressively but cannot now simply dismiss these rights as Utopian ideals. As yet, over the 100 years we have not adequately demonstrated that our laws and practices have kept uP with the more contemporary notions of such

slavery, when women worked equally

alongside their brothers ( in equally bad conditions). The poorest group in

tical work. Indeed, the

Labour

Research Department of Trinidad and

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Tobago predicts that "women will have to wait until 2025 before they can earn the same pay as men."/ Women are also the first to be laid off

in

of

recession or structural adjustment, despite the fact that they are heads ofhouseholds and the last to

times

be hired.

In addition, hidden problems (de facto discimination) are that women are seldom found in senior positions, and dominate certain 'female type' occupations which are characteristically the lowest paid, such as nursing, teaching and the civil service. This is despite "the fact that the average educational levels of women in the economically active population are higher than those of -.n."8

Caribbean women are also predominant in casual labour positions.

Indeed, this occupational segregation has led to the coining of the term, "the

feminisation of casual labour". This

is significant as work benefits and rights accrue chiefly to non-casual

equality. Our Constitutions sometimes

exclude the notion

of

gender/sex

except in their Preambles.

For example, while discrimination is enshrined in the body of the

Jamaican Constitution under Article 24, it extends only to "race, place of origin, political opinions, colour and creed." Where gender is so excluded, courts have held that the mention of gender in the Preamble is not enforceable, but is only declaratory.

This was one basis for the now infamous decision of Girard v. The St. Lucia Teachers Union. There, the dismissal of a female teacher because of pregnancy was not found to be violative of the Constitution's protection against non-discrimination.

Elsewhere, there have been legal decisions which have revolutionised

the attitude of the law to

gender

inequities in employment. For example, British courts ruled that part-time

workers are entitled

to

dismissal for serious misconduct.

In another similar case with more fortunate results, the Industrial Court

of Trinidad and Tobago, while recognising the cultural implications of the offence, for example, that in "certain types of employment, picong (verbal teasing) can be rough and commonplace" lamented the absence of legis-

lation which could bring

sexual harassment within the broader notion of sexual discrimination and imolied-

ly. correct social mores.l2

Job Security Undoubtedly, employment condi-

tions have generally improved over the 100 years period, as have workers' expectations. This is in line with the increasing development of our societies. Today, sick leave, holidays with

pay, work rests and reasonable work hours are the norm in the Caribbean, notwithstanding the abuses which

redundancy

occur in some workplaces without the

knowledge or attention of the law.

Despite logistic difficulties with

continuous service.

An examination of women's rights in the workplace over the 100 year period illustrates that the labour legal regime has failed to incorporate mod-

benefits which hitherto had only been granted to permanent workers.l0 However, despite the close relationship between Caribbean Law and such jurisprudence, these precedents have not yet found their way into our courts. The court accepted that it was gender discrimination against women. who made up almost exclusively the

ern, feminist ideals and notions of

part-time work force, to deny them

security benefits which meet the

equality.

Most Caribbean countries have no legislation whatsoever on gender equality or non-discrimination.9 Caribbean law still largely views

such benefits.

expectations of relevant ILO standards. All of the countries have some such benefit, usually in the form of National Insurance (NIS) which provide some sort of safety net for the majority of workers in the Region, as maternity or pension benefits. In con-

labour. Severance pay, pension and maternity benefits, for example, are routinely calculated on an amount of

women, at best, as helpless, frail

to be protected, while legislation seeks to preclude females who need

women from night work (and inadvertently, the job market), instead of giving such women an informed choice as modern international standards

require. Ironically, women are not typically protected in the areas where it is most needed, such as from jobs

which can harm their reproductive capacities.

Again, the Constitution may be of little use to women in their quest for

Another example of the failure of the law to evolve with social mores is its attitude to sexual harassment. At

worst, Caribbean Labour Law is still sexist, at best, insensitive, inconsistent and unaware. One indication is

that cases on sexual harassment, or sexual discrimination, hardly reach

health and safety legislation, particularly with respect to modern hazards caused by new chemicals, the law has also progressed in this area.

Caribbean peoples, while not pro-

gressing in the 100 years to welfare states, now enjoy a level of social

trast, few countries have created unemployment insurance schemes which seek to cushion workers in times of recession or unemployment,

the law courts. In one Barbadian case, Jones v. Bico,l I the plaintiff consistently peeped at female employees while they were changing, made disrespectful remarks about their private

bility of our economies in the world sphere and high rates of unemploy-

parts and even touched them.

ment, is perhaps more than a luxury.

The magistrate (a female!), found that the 'peeping tom's sexual harassment was merely "ungentlemanly,"' and not sufficient to justify summary

A few countries have introduced unfair dismissal provisions. Such legislation reverses the common law presumption that the employer can dis-

which, given the increasing vulnera-

JUNE 1999

o miss the worker at will. fbr whatever reason. provided he gives him notice of terrnination. Unt'air dismissal le-rislation is fbunded on the notion of "the ri-eht to work" which. translated. means a ri-cht not to be arbitrarily dismissed and a right not to be denied access to employment unjustly. Most

countries now also have Severance Pay or Redundancy schemes for qual-

ifying workers.

Ghanging World Order T<rday, more than ever, the chal-

Beckford's description

of

althou-eh essentially limited to redun-

Caribbean economies as characterised

dancy situations. These are great

by persistent poverty may still hold true today. The inherent factor in this

strides from the original rnodel which saw the employer as the sole decision maker in the ernployrnent arena.

paradigm is production tavouring fbreign entrepreneurs. no longer on plantations. but in factories and hotels.

In contrast. tripartism is now the accepted means to industrial relations harmony. While this has not yet rdvanced lo \ ()rker purticipution on u

large scale, the incidence of share owing by employees has increased.

Trade union consultation also exists

In

recent years, f'ew developing

countries have been able to avoid programs of structural adjustment to their

economies. These programmes have been characterised by wage-fieezes, wage-cuts. retrenchment, the loss of governmental subsidies, devaluation and ultirnately. worsening employment conditions and rights. Public

of labour law are inextricably linked to the economic and political lenges

challenges of our young nations. During the 100 years. the work environment has changed from an agricultural base to largely industrial or service sectors. Increasingly. Caribbean countries har e turned kr foreign invest-

ment

O

o o o a a a o a a o a a a a a a a o o o a o o

sector than

elsewhere. While such industries in the Caribbean are not generally

exempted

fiorn the purview of law and protective

employment

labour laws. in practice. this might be the result.

One reason is the low levels of unionisation. the reason seen fronr the previous discussion on trade union recognition. Workers are particularly vulnerable where the bulk of workers' rights are located, not under legisla-

tion. but through collective

agree-

ments.

In

addition. as elsewhere

in

the

infbrmal sector. because of sporadic and erratic employment patterns. workers may be deprived of certain rights or benefits indirectly, tor example, where these rights are linked to the notion of "continuous employment." Such patterns of employment also explain the difliculty of unions to organise.

JUNE 1999

o a o o o a a

o o

multinational compunies. export processing zones and offshore companies as a viable route to developn.rent. Yet. this model has produced its own ditliculties.

For example. it is well documented that conditions of work and pay are

in this

O

O

in the fbrm of

generally lower

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Albert Marryshow of Grenada, one of the early campaigners for the Begional labour movement.

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o O

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a a O

o o O

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servants are particularly vulnerable to cash-struck governments as the 8 per cent wage cut in Barbados demonstrated. Strucnrral adjustment has also changed negatively the pattems of work, forcing the casualisation of labour.

These are problems which go

beyond the labour law infrastructure.

Indeed, legal rules have shown their inability to cope adequately with the consequences of such situations whether this means the increased incidence of unlawful strike activity by

frustrated public workers or the refusal of employers to obey legal obligations.

Perhaps the need for Caribbean integration is more urgent today in a changing world order where workers are now threatened with even newer challenges. Recent CARICOM legislation on the movement of skilled

workers recognises this need.

Whether it be for the benefit of banana workers threatened under the

WTO regime, tourism workers or other sectors, the Region only has a voice. in an often uncaring international community, if unified.

Enforcement Laws on a statute book are worthless if they are not enforced. An effective labour regime requires not only political and judicial will, but adequate human and financial resources.

The lack of such resources has often been our downfall. Employers' financial constraints and fear of competition also impact negatively on labour law reform. Our law is policed by

judicial review process in Administra-

law which we had inherited from

tive law is now substantially developed. While mainly concerned with

Britain.

statutory or governmental functionaries and power, contemporary administrative law treats unions and certain work situations as legitimate subjects of public law. The rationale for this is

brought progress!

their great impact on the public.

CARICOM Secretariat.

Workers can now expect the principles of Natural Justice and Reasonableness to apply to them. Similarly,

2.These model laws were actually drafted by the ILO as a result of recommendations and information arising out of the CARICOM Harmonisa-

unions are obligated

to act fairly

toward their members. The advent of the Ombudsman in recent years also means that workers, where no

remedy is forthcoming from the courts, or where such remedy is too

1992,

tion Report.

3.[l970] A.C. s38 (P.C.); (1967) l2 w.I.R. 5.

4. Khara K. Singh v. State of UP,

l SCR 332.

5.t19891 LRC (Const) 474.

(1964)

6."Sustainable

Development,

Poverty and Gender" ECLAC Web-

In the 100 years, while labour relations has evolved in Caribbean societies, in some situations, law and legal policy has not kept pace with these changes. These serve as poignant reminders of the gaps between social reality, political will and law. Giant steps forward are parallelled by two small steps backward.

Nevertheless. we can end on an

site 1998

optimistic note. Perhaps there is no better statement which illustrates the evolution of Labour law in the Commonwealth Caribbean, both in philosophy and enactment than that of Rattray, P in a recent Jamaican .ur..l3 While examining the development of labour law in Jamaica, his words ring

true for the entire Caribbean. He found that the "rigidities of the for-

understaffed. Only two countries.

contributors in the productive process and the creation of wealth in the society." He also saw the creation of a "new regime with new rights, obligations and remedies in a dynamic social environment radically changed

Yet, today, workers have more means of redress at their disposal.

Apart from constitutional rights, the

l.Antoine. R-M.B. The CARICOM Harmonisation Report,

policy for redress.

mer [employment] relationships have been ameliorated by the infusion of a

process.

End notes

expensive, can go to this independent, consensual arbiter of law and legal

governmental Labour Departments, labour inspectorates and quasi judicial tribunals, all of which are typically, Trinidad and Tobago and Antigua and Barbuda, have Industrial Courts (albeit under-resourced), despite the recognition by all that labour relations disputes require a special adjudicatory

The 100 years have indeed

more satisfactory balance between the

... from the pre-industrial context of the common law." The catalyst was the need for justice and humanity to ameliorate the harshness of the labour

T.Trinidad Guardian, Jlune 27, t994

S."Major Changes and Crises

-

The Impact on Women in Latin Amer-

ica and the Caribbean", Economic Commission for Intin America and the Caribbean (ECI,AC) Reporr (UN

Women and Development Unit, 1991.

p.29.

9.Exceptions include Antigua and Barbuda, Guyana, Jamaica, St. Vincent and Grenada.

10.R.

v

Secretary

of State for

Employntent, Ex Parte Equal Oppor-

tunities Commission[1993]

I

WLR

872.

I 1.(Unreported) Magistrate Court, Barbados, decided February 16,1995.

12.Bank Employees Union

v.

Republic Bank Ltd.(Unreported) No. 17 of 1995, decided March 25, 1996, Ind. Ct. T&T, at p. 19.

13.Village Resorts

Ltd v. IDT

(Unreported) No. 66197, decided June 30, 1998, Supreme Court, Jamaica.

I

Rose-Marie Belle Antoine is a lecturer in the Facuhy* of Low, Universin' of the West Indies, Cave Hill, Bar-

bados.

* JUNE 1999