Introduction and Background to Commonwealth Caribbean Employment and Labour Law

• Pages: 1-16

CHAPTER 1

INTRODUCTION AND BACKGROUND

TO COMMONWEALTH CARIBBEAN

EMPLOYMENT AND LABOUR LAW

INTRODUCTION

Employment and labour law in the Commonwealth Caribbean, as in any other jurisdiction,

constitutes a major part of its jurisprudence. The importance of the area should not be under-

estimated since it is an accepted fact that upwards of 40 per cent of an individual’s adult life is

spent in some type of employment relationship.

1 It is therefore unsurprising that a specifi c legal

framework is required to regulate and administer various aspects of the employment relationship

however described.

The terminology ‘employment law’ and ‘labour law’ have been used interchangeably in

some jurisdictions and by authors of legal literature within the fi eld. In the purist English/British

law tradition the lexis ‘labour law’ is said to ‘… extend from the individual to the collective, from

the contract of employment to relations between the institutions of organised labour and capital

and the conduct and resolution of confl icts between them’.

2 However, increasingly it appears

that the nomenclature ‘employment law’ has found more favour in the modern era and its usage

in similar confi nes has become more extensive.

3 This is possibly attributable to the fact that the

former tends to conjure up the spectre of servitude and a labour market system thought best

forgotten, especially from the Caribbean perspective with its antecedents of slavery.

However, it is noteworthy that the terms have also been used in unitary contexts thereby

being ascribed differing meanings in many countries. Thus ‘… in the American parlance the

term “labor law” typically refers to the legal regulation of collective bargaining and the term

“employment law” refers to work-related legal regulation regarding individual employees’.

4

The rationale for this dichotomy could be the idea that the philosophy of labour law is inex-

tricably linked to the collective representation of workers for the purpose of addressing the

perceived disparate imbalances of power between themselves and the controllers of capital.

5

As such it placed greater emphasis on regulating the relationship between unions and employ-

ers, with references to the individual relationship being, for the most part, relegated to the law

of contract. On the converse, employment law could be viewed as a more neutral term, being

more evenly balanced and addressing legal issues relating to all the factors of production.

For the purpose of convenience in this work, the two terms will be used to delineate separate

and generally distinct spheres of the law. Labour law will connote the collective sphere, which

1 Bell, A. (2006) Employment Law (2 nd Ed.) London: Sweet and Maxwell, p. 2.

2 Deakin, S. and Morris, G. (2012) Labour Law (6 th Ed.) Hart Publishing, p. 1; see also Antoine, R.-M. B.

(2010-2011) ‘Rethinking Labor Law in the New Commonwealth Caribbean Economy: A Framework

for Change’, 32 Comp. Labour Law and Policy Journal 343, where she defi nes the term in a similar fashion.

3 Smith, I. et al . (2010) Smith and Woods Employment Law (10 th Ed.) Oxford: Oxford University Press p. 3

opines that for all intents and purposes employment law is split into three areas: industrial safety law,

individual employment law and employment (industrial) relations.

4 See Roehling, M. et al . (2008) ‘Foundations for Understanding the Legal Environment of HRM in a

Global Context’ p. 72 in The Routledge Companion to Strategic Human Resource Management ; see also Meiners,

R. et al . (2012) The Legal Environment of Business (11 th Ed.) South Western: Cengage Learning, p. 481 ‘In

legal circles the term “labour law” relates to laws dealing with unions while “employment law’” refers

to laws governing all employees or just non union employees’.

5 See the general views of Lord Wedderburn (1986) The Worker and the Law (3 rd Ed.) Pelican Books,

p. 8; Kahn Freund, O. (1954) ‘Legal Framework’ p. 49 in The System of Industrial Relations In Britain

Flanders, A. and Clegg, H.A. (Eds) Blackwell Publishing, ‘...the relation between employer and employee

is one of subordination’.

2Commonwealth Caribbean Employment and Labour Law

is sometimes otherwise described as ‘industrial relations law’,

6 which principally regulates the

relationship between trade unions, their members, employers and governmentally-instituted

systems which touch and concern their operations. Employment law on the other hand will be

used to denote the legal aspects of the individual relationship between workers/employees and

their employers, which are hinged on the existence of a contract of employment and to the

extent that the collective sphere impacts this narrow construct. Critically also, governmental

intervention in these contracts, typifi ed by minimum standard setting legislation

7 such as

redundancy, unfair dismissal and maternity protection, exemplifying changes that have incre-

mentally been imputed (thereby providing positive rights to individual workers), will also be

explored in this realm.

The fact that this modality is utilised should not by any means suggest that the two catego-

risations are far removed from each other, operating in blissful oblivion of either’s existence.

There would be nothing further from the truth as, by necessity, many of the benefi ts derived from

the agitation and advocacy of actors on the labour law stage are (for the most part) unenforceable

within this remit. Rather the role of the collective representative is to act for the benefi t of indi-

viduals who are then empowered to pursue the advantages so gained within the employment law

arena.

8 The exception occurs in jurisdictions where collective agreements are directly legitimised

and made enforceable through statutory prescription. Outside of these provisions employment

law is inescapable if an individual is to receive any palpable benefi ts.

RATIONALE AND ORGANISATION OF THIS BOOK

This book examines labour and employment law from the vantage point of the jurisprudence

of the Commonwealth Caribbean. By this we mean the former colonies of the United

Kingdom (UK) that are now independent nations and members of the Caribbean Community

(CARICOM).

9 In certain specifi c subject matter, greater emphasis will be placed on those

countries having more developed adjudicatory and administrative structures, which therefore

provide substantial jurisprudential material amenable to discourse and analysis.

10 Additionally,

where particular territories operate a distinctive system or appear to be on the cusp of ground-

breaking developments, they will be explored to provide comparative views for discussion.

11

Where appropriate, references will also be made to the remaining British dependencies that

are Associate members

12 of CARICOM because of their common heritage and somewhat

integrated legal systems achieved via the utilisation of the same appellate courts. We take this

approach since the governments of all these countries have in principle committed themselves

to the ideal of an economic union through the progressive realisation of the CARICOM single

market and economy, which should ultimately result in the full integration of the region’s

6 See Barrow, C. (2002) Industrial Relations Law (2 nd Ed.) Cavendish Publishing, Chapter 1 for further

discussion of this term.

7 This intervention has been termed the ‘fl oor of rights’ by Lord Wedderburn (1986) The Worker and the

Law (3 rd Ed.) Pelican Books, pp. 6 & 13.

8 See dicta of the court in BITU v Johnson (1961) 4 WIR 351 which confi rmed this concept.

9 Antigua and Barbuda, The Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, St. Kitts

and Nevis, St. Lucia, St. Vincent and the Grenadines, Trinidad and Tobago. Although not an inde-

pendent state Montserrat is a full member of CARICOM. We exclude Haiti and Suriname from this

work as the legal systems and experiences there are substantially different from those under review and

comparisons, though important, are outside the scope of this work.

10 Specifi cally Antigua and Barbuda, the Bahamas, Jamaica, and Trinidad and Tobago.

11 Particularly St. Lucia and Barbados.

12 Anguilla, Bermuda, British Virgin Islands, Turks and Caicos Islands.