Sources and Institutions of Employment and Labour Law

• Pages: 17-87

CHAPTER 2

SOURCES AND INSTITUTIONS OF

EMPLOYMENT AND LABOUR LAW

OVERVIEW

The vestiges of pre-colonial legal systems that have infl uenced the Commonwealth Caribbean

set the stage for the examination of how employment and labour laws in the region have

evolved in order to seize opportunities for political and economic independence. As will be seen

throughout this chapter and indeed the whole book, mirroring the United Kingdom position,

‘… the nature and extent of labour law in the Caribbean is characterized by an eclectic mix of

common law principles, legislation, customs, practices and policies’,

1 which creates a unique

synergy. This is not a strange occurrence in common law jurisdictions since much of what now

constitutes the legal framework for the identifi cation and resolution of employment and labour

issues of necessity derives from ad hoc systems that were created to match situations as the need

arose. Thus the interaction between a multiplicity of norms coupled with the intervention of

strict legal tenets provide what could be regarded as a convoluted base of operations in the fi eld.

To begin, we will examine the ‘formal’

2 sources encompassing the common law and legisla-

tion to establish the stricto senso legal backdrop of relationships within the labour and employment

arena. However, these must be juxtaposed with a consideration of their ‘informal’ or voluntary

counterparts of customs and practice, collective agreements and workplace policies that,

although not necessarily possessing the classically formulated legal confi guration, represent a

signifi cant component of the law’s underlying structure. This conglomeration of sources requires

stakeholders in any employment relationship to be aware not only of their individual existence

but also the inevitable, and sometimes intricate, interaction between them.

Thus an employment contract executed by an employer and a worker – an averred creature

of the common law – may not contain all the terms that will guide their dealings. The contract

could very well be subject to the provisions of the minimum legislative standards for employ-

ment rights such as vacation or maternity leave, along with additional voluntary benefi ts

negotiated under a collective labour agreement for a bargaining unit of which the worker is a

part. Acting in ignorance of any such provisions will no doubt put the artless employer on a

collision course with a number of institutions who may be petitioned on the worker’s behalf.

Another example is presented by the operations of unions within an organisation that is subject

not only to its formal recognition by the employer but also traditional procedures pertaining

to an industry and sometimes even within the specifi c enterprise. This could infl uence the

manner in which it conducts its affairs, thereby having legal implications for the continuing

relationship between the parties. It is therefore quite clear that both genres carry substantial

weight in the domain of employment and labour relations.

In light of the commitment made by the governments of the Commonwealth Caribbean

towards regional integration and also their membership in several international institutions with

the consequent accession to various treaties, important regional and international instruments

will also be explored as possible sources of employment and labour law. There is an inescap-

able inference that the phenomenon of globalisation and the attendant free movement of

1 Downes, A. S. et al . (2004) ‘Labour Market Regulation and Employment in the Caribbean’ pp. 517–552

at 520 in Heckman, J. and Pages, C. (Eds) Law and Employment Lessons from Latin America and the Caribbean ,

Chicago, Il: University of Chicago Press.

2 A formulation adopted from Deakin, S. and Morris, G. (2012) Labour Law (6 th Ed.), London: Hart

Publishing, p. 58.

18 Commonwealth Caribbean Employment and Labour Law

workers, capital and goods greatly impact the operations of the region’s open labour market

rendering it fragile and unpredictable. Importantly, CARICOM’s quest to further collective

economic development leading to execution of trade agreements that incorporate labour

clauses, presents a situation where international standards could become not just applicable in

principle but also as enforceable trade sanctions with possible deleterious consequences where

member states cannot comply. These possibilities should also be viewed along with the

constant jostling of individual countries seeking to secure the most advantageous position both

intra-regionally and externally. This could lead to the watering down

3 of domestic employment

and labour rights in the name of fi scal progress. Therefore the signifi cance of such arrangements

and their implications should not be underestimated.

There is widespread acknowledgement that the nature of the legal rights and duties associ-

ated with employment and labour law necessitates the operation of specialised institutions

tasked with the responsibility of their interpretation and enforcement. As such we will examine

the bodies within the Commonwealth Caribbean that were clearly designed to promote the

harmonious existence of all stakeholders in the fi eld, ranging from strict judicial bodies such as

the various courts paying particular reference to specialised industrial courts to quasi-judicial

tribunals that also exercise some jurisdiction over employment and labour matters. We will also

look at some non-judicial bodies which play a vital role in the administration of the area espe-

cially in regard to the operations of unions in workplaces and signifi cant government agencies

which address aspects of employment and labour policy affecting the labour market.

FORMAL SOURCES OF LAW

Common law

One of the most celebrated legal minds, Blackstone, defi nes the common law as ‘general legal

customs and rules which receive their binding power and the force of law by long and immemo-

rial usage over time and universal acceptance throughout the [British Empire]’.

4 Broadly speak-

ing, the term ‘common law’ encompasses these early customs as well as legislative enactments and

the judicial decisions interpreting their application. Countries in the Commonwealth Caribbean

operate a common law legal system inherited from England by whom most were colonised, with

the partial exception of Guyana and St. Lucia, both of which utilise a mixed common law and

civil legal system.

5 The common law or case law consequently commands a pivotal role in both

the individual and collective spheres of employment and labour law. This is typifi ed by the exten-

sive use of contract and tort principles in determining various fundamental aspects of employ-

ment relationships.

6 Judicial dynamism (and in some cases lethargy) is therefore responsible for

establishing the law’s foundations and continues to impact its onward development.

For individual workers, many statutory employment rights are only accessible after a

contract of employment is fi rmly established.

7 So, for example, despite attempts made by the

3 This concept is referred to by the ILO as the ‘race to the bottom’. See Singh, A. (2004) Labour

Standards And The Race To The Bottom: Rethinking Globalisation and Workers Rights From

Developmental and Solidaristic Perspectives , 20 Oxford Review of Economic Policy pp. 85-104.

4 Quoted in Chase, A. (1974) Industrial Law , Guyana: Autoprint Guyana Limited, p. 1, fn. 3.

5 See Antoine, R.-M. B. (2009) Commonwealth Caribbean Law and Legal Systems (2 nd Ed.), Abingdon, Oxon:

Routledge Cavendish, Ch. 4, pp. 58-72; Glenn, J. M. (2008) ‘Mixed jurisdictions in the Commonwealth

Caribbean: mixing, unmixing, remixing’, Electronic Journal of Comparative Law , Vol. 12.1 (May).

6 For example, vicarious liability, agency.

7 See Anderman, S. D. (2000) ‘Interpretation of Protective Statutes and Contracts of Employment’, 29

ILJ , p. 223.

Chapter 2: Sources and Institutions of Employment and Labour Law 19

legislature in some Commonwealth Caribbean jurisdictions to distil the notions of who is a

worker/employee,

8 capable of being engaged in an employment contract, this remains a matter

to be properly determined by appropriate adjudicatory bodies using relevant common law

principles.

9 The prevalence of oral contracts in the Caribbean, especially at the lower tiers of

employment, has also promoted the expansive use of the common law concept of implied

terms

10 by courts and industrial tribunals to provide completeness and effi cacy in contracts.

Logically therefore the guidance offered by the common law doctrine of judicial precedent is

routinely prayed in aid. Stare decisis or judicial precedent has long been heralded as providing

certainty, uniformity, and predictability within the law that, in turn, promotes a stable legal

environment. With its genesis in English law, it is therefore understandable that Caribbean

jurisprudence will seek direction from this source. However, there has been much discussion

regarding the need for the development of indigenous jurisprudence that truly refl ects the

unique socio-economic issues faced in the region.

11

The question of whether judicial precedent from other Commonwealth jurisdictions can be

successfully applied in the adjudication of employment and labour law cases in the Caribbean

was addressed by the Barbados Court of Appeal in Waithe v Caribbean Confection Co. (1959) Ltd. 12

The case examined the interpretation of a particular condition of the claimant’s employment

contract that was amended after new owners acquired the business. The employee relied on

Canadian cases to posit that contractual amendments made by the management were unrea-

sonable and thus he was constructively dismissed. The court held that although Canadian

authorities possessed some persuasive authority in Barbadian jurisprudence, each case will

inevitably turn on its own facts and only general legal principles were valuable. Therefore,

cases that may seemingly appear to be on all fours with a factual scenario can nevertheless be

regarded as merely persuasive authority. The recent decision of Industrial Disputes Tribunal, the

University and Allied Workers Union v University of Technology Jamaica 13 also graphically illustrates

the point that reliance on employment case law from England, which was considered by the

Judicial Review court as ‘persuasive authority’, ought not to be accepted wholesale. The Court

of Appeal found that the principles espoused in an English decision (which was heavily relied

on by the judicial review court) was predicated on a ‘statutory regime that is different from that

established under the Labour Relations and Industrial Disputes Act’

14 and therefore irrelevant

in the determination of the issues in the instant case.

15

In the labour law arena, the infl uence of the common law has been no less pervasive. The

existence and operations of trade unions throughout the Commonwealth Caribbean was greatly

constricted by the common law, which viewed such organisations as being illegal conspiracies

16

8 Jamaica Labour Relations and Industrial Disputes Act s 2; Trinidad and Tobago Industrial Relations

Act s 2 (defi nition of worker).

9 For example, the various common law tests of employment fully discussed in Chapter 3.

10 See Smith, I. and Baker, A. (2010) Smith and Woods Employment Law (10 th Ed.), Oxford: Oxford

University Press, p. 120 et seq . Fully discussed in Chapter 4.

11 See Antoine, R.-M.B. (2009) Commonwealth Caribbean Law and Legal Systems (2 nd Ed.) Abingdon, Oxon:

Routledge Cavendish, Ch. 8, p. 118; Leighton, J. (2007-8) “Fi We Law” The Foundations for the Emergence

of Caribbean Jurisprudence: Whether the doctrine of precedent? UWI West Indies Faculty of Law, Faculty

Workshop Series.

12 (2004) 67 WIR 41.

13 2012 JMCA Civil Appeal 46 (unreported) delivered 12 October, 2012.

14 Ibid. para 37.

15 See also Privy Council Appeal No 41 of 2008 Corbette v National Commercial Bank of Dominica (The

Commonwealth of Dominica) , paragraph 23, which shows a court’s error in using incompatible UK legisla-

tion to decide the case below.

16 Henry, Z. (1972) Labour Relations and Industrial Confl ict in Caribbean Countries (1 st Ed.). Trinidad: Columbus

Publishers, p. 33; See R v Journeymen–Tailors of Cambridge (1721) 8 Mod 10; Deakin, S. and Morris, G.

(2009) Labour Law (5 th Ed.), London: Hart Publishing, p. 5.