Emerging Employment and Labour Law Issues in the Commonwealth Caribbean

• Pages: 340-374

CHAPTER 9

EMERGING EMPLOYMENT AND LABOUR LAW

ISSUES IN THE COMMONWEALTH CARIBBEAN

THE POLEMIC

The world of work continues to evolve in several areas, with the attendant challenges which

surround these developments becoming increasingly visible. Many Commonwealth Caribbean

countries, having courted and facilitated the establishment of businesses by foreign investors,

are now faced with a variety of unfamiliar employment, labour, human resource and industrial

relations practices which have been imported by the new entrants. Not to be outdone, indig-

enous employers have also moved to adopt some of these novel employment principles into a

labour market regime which was previously largely operated on the basis of the common law,

limited legislation and customs, which were nurtured by the parties themselves. These changes

have now begun to affect the employment relationship, with some being caught fl at-footed

and ill-prepared to deal with these somewhat unexpected occurrences. Workers are also

progressively being faced with various acts of violence, on and off the worksite, which some-

times adversely affect their ability to provide a fair day’s work for a fair day’s pay. Here again,

employers may or may not recognise the importance or impact of a developing issue capable

of having debilitating effects on their operations.

With the advent of globalisation, the term ‘global village’ is no longer to be considered

a cliché. In the employment and labour law context, ILO standards are being included in

trade agreements negotiated between sovereign nations, possibly making them enforceable

on the international stage.

1 The ‘Decent Work Agenda’

2 is promoted as an integral part of

economic development, thereby purposefully bringing to the fore hitherto little-recognised

labour rights, such as the protection of worker’s privacy and personal wellbeing, in addi-

tion to the bedrock principles of the right to representation, collective bargaining and

protection from dismissal. Whilst the developed world has (for the most part) formally

confronted and attempted to deal with the former concerns, in many instances the de jure

position in the Commonwealth Caribbean continues to lag behind de facto actualisation.

The results of these untenable positions range from full-blown labour unrest to individual

worker apathy, with consequential negative effects on the enterprise particularly and the

economy at large.

It is instructive to examine the possible effects of recent technological developments

which have expanded the scope of the employer’s capabilities to exercise managerial prerog-

ative while affecting the worker’s right to privacy. Examples of these include monitoring and

surveillance on and off the worksite. Certain aspects of workplace violence, such as sexual

harassment and bullying, will also be highlighted. As is to be expected in an area which

is developing, there are few decided cases and little legislation surrounding the topics. The

intent is therefore to alert the reader to the issues’ existence and, where necessary, outline

the legal principles existing in other jurisdictions. Legal themes will then be isolated, and

the implications for the growth of employment and labour law in the Commonwealth

Caribbean will be discussed.

1 Davies, A.C.L. (2004) Perspectives on Labour Law (1 st Ed., Cambridge University Press) p. 240.

2 See www.ilo.org/global/topics/decent-work/lang--en/index.htm .

Chapter 9: Emerging Employment and Labour Law Issues 341

WORKER PRIVACY AND THE PUBLIC INTEREST VERSUS

EMPLOYER RIGHTS

The modern workplace is an environment fraught with many challenges quite different from

those previously known. The exponential growth in technology is being utilised not just in

conventional business operation processes, but it extends to the interactions between employ-

ers and employees in hitherto unimagined ways. Thus, an employee may be invited to disclose

personal data

3 (in various forms) by the employer for a number of purposes related to their

employment. The genesis of such requests often lies in the employers’ desire to ensure, as far

as possible, that they engage fi t and proper persons in their organisations and thereafter to

protect workplace investments, promote productivity and provide for the safety of their

employees.

4 Indeed, employers do have a legitimate interest in this regard but this must be

juxtaposed against the employee’s own right to privacy, particularly in light of the fact that all

Commonwealth Caribbean Constitutions

5 provide this as a fundamental right to all citizens

within certain parameters.

Unfortunately, regional employment and labour law, no doubt affected by its ignoble

antecedents, has been for the most part slow on the uptake. Consequently, there is a dearth of

positive legal provisions prescribing specifi c rights and duties for the parties in employment

relationships. This inevitably leads to a heavy reliance on the common law, to assist in deter-

mining such issues when they arise, with varying consequences. Notwithstanding this general

state of affairs, some states have begun to address this unhealthy situation by introducing

diverse statutes, while concurrently the stakeholders in the employment relationship have also

attacked the problem through inserting appropriate provisions in workplace policies, collective

labour agreements and employment contracts.

In this section, we will examine the particular issues of data protection, fi ngerprinting and

biometrics, polygraph testing, internet usage and electronic monitoring, and their possible effect

on employment relationships. We will also explore the principles surrounding whistleblowing,

which typically involves the workers disclosing confi dential information relating to their employ-

er’s business.

International considerations

An appropriate point of departure, in an examination of these issues, is the ILO Code of

Practice on Protection of Workers’ Personal Data issued in 1996. Although this instrument is

non-binding

6 in the national sphere, it nonetheless represents a noteworthy international

standard which can be generally adhered to as a guide, especially in jurisdictions where no

legislation has been enacted to address the issue. The Code operates on the premise that

employers may need to collect certain information from employees for various purposes. These

could include: compliance with statutory or other legal obligations; to aid in making employ-

ment decisions; as well as the protection or safety of staff and property.

7 While acknowledging

this necessity, the Code also recognises the workers’ entitlement to their dignity and privacy as

3 For example, fi ngerprints, health records, other bio-data.

4 Bales, R. A. et al. (2000) ‘Workplace Investigations in Kentucky’ 27 Northern Kentucky Law Review 201.

5 For example, Section 17 Barbados Constitution; Section 13(3)(j)(ii) Jamaica Constitution; Section 4(c);

Republic of Trinidad and Tobago Constitution Section 4(c).

6 See discussion in Chapter 2 p. 33.

7 Preamble of the Code.

342 Commonwealth Caribbean Employment and Labour Law

individuals, by seeking to safeguard their fundamental right to decide who obtains access to

their personal data and for what purposes it may be used.

The Code provides an expansive defi nition of ‘personal data’ as ‘… any information

related to an identifi ed or identifi able worker’

8 and encompasses prospective, current and

former workers as persons who warrant protection.

9 It also deems collection, storage, commu-

nication, or any other use of such data as ‘processing’

10 and defi nes ‘monitoring’ of workers as

including the use of computers, cameras, video and sound devices or other surveillance meth-

odologies, telephones and other communication equipment and other methods of establishing

a person’s identity and location.

11 The Code then goes on to delineate general principles under-

lying its existence. Firstly, it prescribes that personal data received should be lawfully and fairly

processed and should be directly relevant to the worker’s employment.

12 Thus, the employer

must show absolute necessity as a conditio sine qua non for access to the employee’s information

which, more often than not, is linked to the nature of the employment; thus, there is no ‘one

size fi ts all’. Additionally, any information so received must only be used for the specifi c purpose

for which it was collected

13 and, as such, employers should not assume they have carte blanche

permission to indiscriminately utilise their employees’ data.

Where electronic monitoring of workers is utilised, it should not be used as a factor in

evaluating their performance,

14 as the sole basis for decisions concerning their employment;

15

neither should any information gleaned be used to control the workers’ behaviour.

16 An

employee should not be discriminated against by virtue of the processing of any personal

data.

17 Employers are under an express duty to keep their processing practices relevant,

18

thereby protecting and reducing the amount of data gathered, ensuring that their agents act in

accordance with the Code’s principles

19 and, above all, that information collected and collated

is safeguarded

20 and kept confi dential within the boundaries of the law.

21 Since privacy is an

intrinsic component of human dignity, the workers may not waive their rights,

22 should be kept

informed of any data collection processing

23 and must also be allowed access to all their

personal data.

24 The worker should also have the power to demand rectifi cation of any infor-

mation found to be inaccurate or incomplete.

25

A cardinal principle enunciated by the Code is that, as far as possible, workers themselves

must be the primary source of personal data.

26 This does not preclude employers from procuring

data from other sources, but the worker’s explicit permission should be obtained and the

purpose for which the information is sought should also be disclosed to the affected worker and

8 Paragraph 3.1; it therefore excludes juristic persons.

9 Paragraph 3.4.

10 Paragraph 3.2.

11 Paragraph 3.3.

12 Paragraph 5.1.

13 Paragraph 5.2.

14 Paragraph 5.6.

15 Paragraph 5.5.

16 Paragraph 5.4.

17 Paragraph 5.10.

18 Paragraph 5.7.

19 Paragraph 5.9.

20 Paragraphs 7 and 8.1.

21 Paragraph 5.12; if any other legislation requires the disclosure of the information, the employer is

obliged to do so.

22 Paragraph 5.13; see interesting discussion on the issue of ‘contracting out’ of these rights in Oliver, H. (2002)

‘Email and Internet monitoring in the Workplace: Information Privacy and Contracting Out’ 31 ILJ 321.

23 Paragraph 5.8.

24 Paragraph 11.2.

25 Paragraphs 11.9 to 11.11.

26 Paragraph 6.1.