Our industrial relations framework was built on national commitment to improve productivity and economic growth, and was based on the principles of fairness, inclusion and cooperation. Several workplace strikes occurred during 1960 to 1964 which affected the economy. As a result, in 1965, the government introduced the Industrial Stabilisation Bill and consequently established the first Industrial Court in the English-speaking Caribbean. This legislation was the predecessor to the existing Industrial Relations Act (IRA).
The purpose of the act is "to provide for the compulsory recognition by employers of trade unions and organisations representative of a majority or workers, for the establishment of an expeditious system for the settlement of trade disputes…”.
Given the act’s intent, it may be time to reassess whether the current process for dispute resolution through the Ministry of Labour and the Industrial Court is still adequate. It is time to either give the minister additional powers or bypass that step altogether.
This is exactly what the Appeal Court facilitated in its judgement in Cv A No 247/98 SWWTU v Caribbean Ispat. The union appealed the decision of the Industrial Court that a trade dispute cannot come before it without an unresolved certificate signed by the minister of labour.
The act states, “where the minister is satisfied that no useful purpose would be served by continuing to conciliate under the section, he may certify that the dispute is an unresolved dispute pursuant to section 59(1)”.
The contention was whether the union had legal authority/consent to go before the Industrial Court without the requisite certificate of an unresolved dispute issued to the parties from the hand of the minister. In other words, did the court have jurisdiction to hear and determine a trade dispute without having this certificate before it.
The union contended that access to the court did not depend on a certificate of an unresolved dispute but on the fact that there is an unresolved dispute. Its arguments therefore were based on the grammatical interpretation of the words “unresolved dispute” used in the act, and it asserted that the intention of the words meant a dispute that remained unresolved after the relevant period has expired or even before the minister had so certified it.
The Court of Appeal accepted this interpretation and further held that in a civilised country with an independent judiciary, the system of justice must allow all citizens unimpeded access to the courts, subject only to those limitations imposed by the law of the land to avoid abuse of the process.
The court also noted the opportunities for mischief exist when the minister fails to issue the certificate in a timely manner, and highlighted that the act’s purpose is to ensure speed and warned all parties must move with alacrity.
It was therefore determined that the Industrial Court has jurisdiction to hear the trade dispute once all the requirements under Section 59 have been satisfied and the dispute remains unresolved. It was further held that the unresolved certificate is merely prima facie evidence that the act has been complied with.
The act gives the minister of labour a 14-day window to complete conciliation between the parties to a dispute, however, in reality it rarely does. This timeframe is clearly too short, particularly for complex issues and given modern day circumstances. Often, the parties are required to sign an extension of time agreement to allow the minister to do what the act intended, which is to resolve disputes, so as to avoid referral to the Industrial Court.
Unfortunately, the actual application of this ruling has almost rendered the intended role of the minister in the dispute resolution process meaningless and impotent.
The unintended consequence of the decision of the Court of Appeal is the unethical behaviour of some unions of deliberately refusing to meaningfully participate in the conciliatory process at the ministry. Accordingly, as soon as the 14-day period has expired they unilaterally refer the unresolved dispute to the Industrial Court. This clearly defeats the intention of the procedures laid out in Section 51 of the act. It converts the conciliation unit of the Ministry of Labour to one of a mere “post office” to which the report of the existence of a trade dispute is first addressed for automatic transmission to the Industrial Court.
To end this abuse of the process, I propose the act should be amended to increase the time allotted to the minister for conciliation from 14 to 30 days. This is reasonable in the circumstances. Further amendments should also include a new procedure that moves an unresolved dispute from the ministry to the Industrial Court. This amendment should fix a time limit for the minister to certify the dispute as unresolved, failing which, either party may refer it to the court without an unresolved certificate. A 21-day period should be more than sufficient for the minister to sign and issue this important document.
Regarding the issue of more power to the minister, I would suggest that he/she should be authorised to dispose of disputes reported to the ministry on the simple basis of the merits of the matter. This will empower the minister’s to determine if a matter is worthy of the attention of the court or whether it is frivolous or ill conceived. Such an amendment will also have the effect of unclogging the existing bottlenecks now expired at the court.
The IRA is more than 50 years old and it is now time to address these important issues. I am convinced that these practical amendments to the act will be beneficial to all parties.