Wed | Aug 15, 2018

JCC, Bar association want a more detailed labour code

Published:Friday | July 20, 2018 | 12:00 AM
Ian Allen/Photographer Emile Leiba, attorney at law and partner at DunnCox consults with Carla-Anne Harris-Roper, attorney at law and member of the Jam-Bar Sub-Committee, at the Jamaican Chamber of Commerce seminar on the Labour Relations Code on Wednesday, July 18, 2018 at Knutsford Court Hotel in Kingston.

One of Jamaica's premier business groups is pushing for a change in the Labour Relations Code, saying it lacks detail and offers insufficient guidance to companies on resolving workplace disputes.

The Jamaica Chamber of Commerce has partnered with The Jamaican Bar Association on a series of consultations, one of which was held on Wednesday, that it will use to formulate a position paper on the labour code.

In the meantime, the groups have been reaching out to the Ministry of Labour & Social Security, hoping to start a dialogue.

The Jamaica Chamber is pushing for current labour relations practices, reflected in the decisions of the Industrial Dispute Tribunal, IDT, to be properly codified so that employers can be properly guided on how to deal with disputes and other labour issues.

The theme stamped on their first seminar - 'A new labour relations code; a search for natural justice' - was a signal to the authorities that employers feel underserved by the current labour code.

Emile Leiba, a partner at the law firm DunnCox, said at the forum that current labour relations standards were largely based on the interpretation of the 42-year-old Labour Relations Code by the IDT, which itself is rarely defeated in court when challenged.

It would be beneficial for employers, he added, to have access to a new code that reflects the actual practice and interpretation of the labour code.

"Time and again, the court has said that the IDT has discretion on how the labour code is applied. If we want to have change, it is not going to be effected by challenging the IDT through the courts," the attorney said.

The labour code was enacted on November 1, 1976. Subsequently, a sole amendment in 2010 stipulated that non-unionised workers could also seek redress through the IDT. But the Jamaica Chamber and the Bar association are insisting that much more needs to be changed.

Carla-Anne Harris-Roper, attorney and member of the Jam-Bar subcommittee on labour law, said that over time there have been technical changes impacting the workplace; changes in union representation, which is down from 40 per cent of the total work force in 1972 to less than 20 per cent now; and new modes of employment, including fixed-term contracts - all of which need to be reflected in a revised Labour Relations Code.

Leiba said there were only three court cases in which the IDT was overturned - one of which involved an employer who had diplomatic immunity. Consequently, he said, Jam-Bar had reached the conclusion that the best approach was to modify the Blue Book - as the Labour Relations Code is known.

Riddled with vagueness

A major difficulty often encountered, he said, was Section 22 of the existing code, which addresses failure to follow disciplinary procedures, but does not set out the procedure for a disciplinary hearing. The code, Leiba said, is riddled with vagueness.

"In more than one instance, the IDT has found unjustifiable dismissal even though a hearing has taken place," he said, while noting that the decisions usually rested on procedure.

"Even when [the employee ] is caught in the cookie jar, if correct procedures are not followed, the dismissal can be found unjustifiable," he said.

In addition, even if an employer acted on the advice of their lawyer or even the Ministry of Labour to deal with a workplace issue, it cannot use that as a defence in an IDT case or a court case, Leiba noted.

One question often asked by the IDT, he said, is whether the person delivering the charge letter outlining the offence also participated in the decision to terminate. "You cannot be prosecutor and judge, but it is not stated in the code," Leiba commented.

Further, he said, if the employee is not provided with all documents relevant to the hearing before it occurs, that is another infraction not stated in the existing code.

Jam-Bar and the Jamaica Chamber want the code revised to capture best practices, including special provisions for small employers; and are recommending a cap on monetary awards.

"The IDT has no limit on what can be awarded it can be one cent or $500 million," Leiba said, while charging that some awards have led to near bankruptcy.

The attorney said the Jamaica Chamber and the Bar association have written jointly to the Minister of Labour and Social Security on the matter, and were hoping to secure a meeting soon to discuss the way forward.

The Financial Gleaner reached out to the office of the permanent secretary in the labour ministry for a comment on their receptivity to a revised Labour Relations Code, but none was immediately forthcoming.

avia.colliner@gleanerjm.com