Proposal to Establish an Industrial Tribunal

May 12, 2017 Letters

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Dear Editor,
After reviewing the labour legislation on Industrial Tribunals in CARICOM Member States, I wish to share some thoughts on the essential content of any legislation for an Industrial Tribunal to determine individual disputes of rights, based on statutory and or contractual entitlements.
1. An Industrial Tribunal Act
The enactment of a new Law is required for establishing an Industrial Tribunal with jurisdiction to hear and determine any unresolved individual labour dispute or complaint which constitutes an individual rights dispute relating to statutory entitlements, or entitlements flowing from individual contracts of employment.
Such an Industrial Tribunal, as in other CARICOM jurisdictions, shall not be subject to any other person or authority, in the exercise of its powers. The Orders, decisions and awards of the Industrial Tribunal shall be enforced by the High Court as though they were orders or judgements of that Court. Awards are final and binding on all the parties involved, except on a point of law which can be appealed at the High Court.
2. Composition and Appointment of the Industrial Tribunal
Labour Tribunals are tripartite in composition, comprising of an independent the Chair and representatives of ILO recognised Employers’ Organization on labour, and representatives of the trade unions based on consultation with national trade union bodies. The Chair and Members of the Industrial Tribunal shall be appointed by the Minister for a period not exceeding three years and may be reappointed after the three years.
The Minister may remove the Chair or any member of the Industrial Tribunal for good and sufficient cause, natural justice taken into account before any removal action.
3. Procedures for the Functions of the Industrial Tribunal
The Minister may make regulations, and provide the required resources to enable the Industrial Tribunal to function effectively. In the absence of such regulations, the Industrial Tribunal regulates its own procedures and proceedings. Procedures are designed to enable the Industrial Tribunal to obtain the facts of any case before it, and determine its merits in terms of statutory and contract obligations for the appropriate award(s).
4. Reference to the Industrial Tribunal by Department of Labour
Any unresolved individual dispute or complaint (disputes of rights) at the Department of Labour shall be referred to the Industrial Tribunal for determination within two months of receiving the complaint by the Chief Labour Officer or Acting Chief Labour Officer.
The Chief Labour Officer (CLO) or a Senior Labour Administrator designated by the CLO shall present the case for an aggrieved employee or complainant to the Industrial Tribunal.
5. Hearings by the Industrial Tribunal
The Industrial Tribunal hears and determines complaints, representations, and submission for the concerned parties under oath. The Industrial Tribunal may act without regard to technicalities and legal forms, and is not bound to follow the rules of evidence, having regards to its own regulations.
In cases of dismissals for valid reasons or for good and sufficient cause, the burden of proof rests with the employer. In cases of constructive dismissal, the employee must establish that the continuation of the employment relationship is unreasonable and makes it difficult to continue to function.
6. Binding Order and Appeal only on a Point of Law
Any determination or order by the Industrial Tribunal is binding on all concerned parties. An appeal, only on a point of law, may be made to the High Court within 21 days following the notification by the Industrial Tribunal of its decision to the concerned parties.

7. Remedies.
In relation to any individual dispute or complaint before it, Industrial Tribunal is required to make such orders or awards as it considers fair and just, and the substantial merits of the case. The Industrial Tribunal may order an employer to take such action as may constitute full compliance, or to pay to an employee such amounts as may be determined by the Industrial Tribunal.
Except for personal services by an employee, including such as domestic help, care givers, personal chauffer, and personal security, the Industrial Tribunal may award or order re-instatement or re-employment without loss of status or benefit in comparable or other suitable work or a compensation order in terms of loss of earning and benefits
8. Offences and Penalties
The contemplated Industrial Tribunal Act must provide for penalty on refusal to accept and implement the award of the Industrial Tribunal to a fine representing not less than twice the award of the Industrial Tribunal, on summary conviction in a Court of Law.
9. Staffing of the Industrial Tribunal and Remuneration
The Industrial Tribunal must be staffed with suitably qualified persons with reasonable and comparable remuneration to be determined by the competent authority.
Samuel J. Goolsarran

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