Expanding the Purview of Accountability in Employment by the State

AuthorRose-Marie Antoine
Expanding the Purview of
Accountability in Employment
by the State
Rose-Marie Antoine
1. The Changing Paradigm of Employment in the Public
Sector – An Impetus for a New Approach
In recent years, labour law has faced many challenges, not least
of which is the much talked about process of globalization, which has
resulted in different types of trade relations and attitudes toward
work. Market-centred strategies have also been at the front of these
new initiatives and indeed in new visions of development. Out of this
emerged a workforce with enhanced mobility but at the same time, more
informal. Such informalization or casualization meant that de-regulation
          
ultimately on formal structures of work. Workers were thus rendered
more vulnerable. Further, the welfare state and a labour movement
which emphasized workers rights have slowly been undermined by this
new economy. As such, the tools which labour law traditionally employed
The need to confront these new work paradigms by putting forward
labour law models which are more sensitively attuned to the new labour
environment was the subject of another paper by the writer in this
Faculty Workshop Series.1 The need to rethink labour law is not, however,
restricted to the private employment sphere. In the public sector, market
forces’ ideals have also impacted the sacrosanct public service, resulting
in increased privatization of the sector and employment arrangements
modelled on contracts of employment typical of the private sector. These
have been established in the name of commercial and administrative
expediency. Indeed, a hybrid sector has now been created in which there
are ‘new blends of public and private power.’2
1. R-M. B. Antoine, ‘Rethinking Labour Law in the New Caribbean Economy,’ paper presented at the
UWI Faculty of Law Workshop Series. This was a working paper initiated as part in a series of the
McGill Labour and Development Group of which the writer is a member. The paper is soon to be
published by McGill University, Canada. The paper focused on the limited scope of the contract of
employment model for contemporary modes of work.
2. A. Aman, ‘Globalizations, Democracy, and the Need for a New Administrative Law’ (2003) 10
Indiana J Glob Leg Stud 125, 129.
Transitions in Caribbean Law
The important issues surrounding employment by the state also
owned authorities. This is a subject which is relatively undeveloped
in Commonwealth Caribbean jurisprudence. Where the courts have
addressed the issue, the answers have not been consistent. Further, it
involves the interlinking of public law and private employment law. As
with traditional models of labour law in the private domain, the orthodox
principles of public service law do not sit easily with this new labour
environment. It is therefore necessary to posit new ideas which can
The framers of Commonwealth Caribbean Constitutions envisaged
a sphere of protection against arbitrariness and in particular, political
interference, for those employed by the state. This protection was secured
through the mechanism of independent, constitutionally-enshrined
Public Service Commissions with responsibility for appointments,
discipline and the dismissal of employees. However, only the persons
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The courts recognized the largesse of the constitutional protection
and in time, formulated appropriate new principles for democratic
governance. In Thomas v AG,3 for example, the well established principle
of dismissal at pleasure of the Crown or state was rejected by the Privy
Council, because of the constitutional protection of public servants
enshrined under the then new Trinidad and Tobago constitution.
Persons employed by the state, but who fall outside of the rather strict
are not mentioned in these constitutional provisions and are therefore
not directly protected under the purview of constitutional law or public
service commission regulations. One can speculate that one reason for
this exclusion was that, at the time, the Commonwealth Caribbean had
not yet witnessed the burgeoning of state sector institutions involved
in the operation of governance that we see in contemporary times.
Nevertheless, today, a large body of persons are employed by such public
The argument may be posited that the framers of the constitution
adopted a paternalistic attitude toward the former colonial young
nations and put excessively bureaucratic and limiting institutions and
mechanisms in place to counter legitimate state power because they
doubted, unjustly, the capacity of these new executive authorities to
3. [1982] AC 113 (PC T&T).

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