The way forward in the next 50 years of industrial relations

Over the past 50 years our Industrial Relations Act has been amended 14 times. Within that time, in my mind, the only meaningful amendment has been the inclusion of the provision for worker reinstatement by the Industrial Court. Everything else has been non-consequential.

Two weeks ago, I examined the effectiveness of the Ministry of Labour in the dispute resolution process. This week I will highlight other parts of the act that urgently require amendment.

The question is, is this version of the act best for improving our productivity and economic growth based on the principles of fairness, inclusion and cooperation? The answer is clearly no and this is evident alone from some of the gaps discussed in my last article.

Within the past 50 years we have had new legislation like the Occupational Safety, Health and Administration Act, Equal Opportunity Act and even the Maternity Protection Act, all with the intent to give protection to workers. We are, however, yet to formally address workplace harassment and bullying in legislation not only to keep up with the times but to address practical workplace issues employees are often confronted with.

Under section 51 – reports of disputes – the act requires a worker to report a dispute to the minister of labour within six months, counted from the date of the issue that gave rise to the dispute. I would like to suggest that the time frame should be increased to 12 months. There are legitimate circumstances that may arise which can cause a worker to miss such a relatively short statutory deadline, particularly in a non-unionised environment. A good example is that of an unscrupulous employer pretending to engage in good faith bilateral discussions with the worker, when in fact he is really running down the time. Additionally, the worker just may not know his/her right and by the time they seek help or professional advice, it is too late.

When compared to the timeframe of four years applicable for civil matters relating to a breach of contract, the proposed 12-month period is indeed reasonable. Any additional strain on ministry resources due to a longer reporting timeframe, can be balanced by both the consequential reduction in applications for time extensions as well as by the new powers of dismissal proposed in my last column.

I am convinced that we need to consider an expansion of the definition of worker or conversely, reduce the areas of exceptions as set out in clause 2(3)e of the act.

The current exception clause in my view, excludes a significant class of employees simply on the basis that they make recommendations for policy adoption within the organisation. This class of employees is therefore virtually defenceless against tyrannical, harsh and unfair management decisions. I see no reason why a sales manager for example, who recommends the amendment of a credit policy cannot have access to the court or be protected by the provisions of the act.

Since the ruling of the Court of Appeal and the judgement by His Honour De La Bastide, Chief Justice as he then was, in the matter Claude Albert and Alstons Building Enterprises Ltd CA No 37 of 2000 it has been generally accepted that the Registration Recognition and Certification Board (RRCB) is the sole body responsible for determining the issue of worker status.

I have however always had my doubts on the validity of this principle given an objective interpretation of section 31 of the act. This clause empowers the RRCB to submit any matter to the Industrial Court for a conclusive opinion with respect to the application of any written law or rule of law. It is my view therefore, that based on an application from the board, the court is empowered to decide on worker status, subject of course to the law as well as the merits of the matter.

It would be in the best interest of all parties to include a new clause in the act where under limited and special circumstances the court can make determinations on worker status raised before it as a "point in limine" at open trial. This will not only save judicial time but would be beneficial to the aggrieved employee who will get his day in court much sooner.

It is without argument that the penalties identified under sections 63 and 41 should be increased. Fines of $4,000 and $25,000 for industrial relations offences are clearly no longer relevant to modern times and are not deterrents. I suggest that the $4,000 should be increased to $75,000, the $10,000, to $100,000 and the $25,000 to $250,000. All other fines should be increased by a minimum of 100 per cent. I need say no more.

It is my strong view that the continued criminalisation of certain offences for example is not only foolish and utterly useless, but it places the handling of industrial relations matters at the mercy of common law adjudicators. This was never the intention of the act. In my view all matters that touch on and pertain to the provisions of the act should be the exclusive jurisdiction of the Industrial Court and ultimately the Court of Appeal. No magistrate should have the power to imprison a manager for a pure industrial relations issue like a dismissal. These provisions should be excised from the legislation altogether.