Labour Law and Statutory Arbitration in the Caribbean

• Author: Carl Rattray
• Pages: 387-402

387

THE LAW AND WORKPLACE GOVERNANCE

Labour Law and Statutory Arbitration

in the Caribbean

In order to understand properly the present state of the law in any jurisdiction,

it is necessary to examine the social, economic and political influences that

have shaped the development of the law. This is particularly so in the case of

Caribbean labour law and in the case of regional practices for resolving disputes

between employers and employees.

The history of slavery, the relationships between the owners and the owned,

the bitter struggles which led to emancipation, the post abolition interface

between the former slaves (the workers) and their former owners (the employers)

all provide a background for the emergence of labour laws and employment

practices in the Caribbean. Together these forces have had a strong negative

impact on relationships between employers and employees. The change of

status from owner and slave to that of master and servant did little to alter the

fundamental characteristics of the employment relations that existed under

slavery. As a result, our history is replete with strikes and uprisings reaching

their high point in Jamaica in the Morant Bay Rebellion in 1865; and later

on, in the labour disturbances of 1938 (Post, 1978)

To understand worker/employer relations in the Caribbean today,

therefore, a historical perspective is necessary, commencing with the institution

of slavery, the apprenticeship period before abolition, the status of the worker

after abolition, the colonial period, and the struggle for national independence

resulting in its eventual achievement less than forty years ago (Chase, 1964;

Williams, 1970; Post, 1978; Eaton, 1983; Hart, 1989). It is also necessary to

remember that the colonial power did not provide much legal support for

workers (legislatively and otherwise) in their relationships with employers.

Indeed, prior to 1871, organisations formed by British workers to obtain

increases of wages or improvements of their working conditions were illegal,

being viewed as combinations in restraint of trade. In 1871, trade unions were

made lawful in Britain, but remained illegal in every other part of the Empire.

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388 HUMAN RESOURCE DEVELOPMENT

The turbulent history of trade unions in the Caribbean attests to the hostile

environment in which the rights of workers have emerged and developed in

our own jurisdictions (Hart, 1978; Post, 1978). Eventually, the struggle for

workers' rights became inextricably bound up with the struggle for national

independence, and the trade union movement became, especially in certain

territories, virtually indistinguishable from the political parties as they emerged.

Up to the close of the second decade of the twentieth century, the combination

of workers for the purpose of the protection and advancement at the workplace

was categorised as a criminal conspiracy.

It was only with the passing of the Trade Union Act of 1919 that this

situation began to change in the Caribbean. While this gave legitimacy to the

right of workers to combine and form trade unions, it retained severe restrictions

on the ability of workers to give effect to their right to organise (Phelps, 1960).

Accordingly, trade unionism did not advance and as, tension built up in the

relationships between employers and workers, the Caribbean was overtaken

by a series of rebellions taking place between 1934 and 1938 (Bolland, 1995).

In the case of Jamaica, the situation came to a head in 1938 with bloody

strikes on the sugar estates and the waterfront. The upshot was the emergence

of our modern trade unions, the first of which was the Bustamante Industrial

Trade Union (BITU) led by the late Sir Alexander Bustamante who was later

to become the island's first Prime Minister in Independence (Eaton, 1983).

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After the period of rebellions, labour law became a very important factor

in shaping Caribbean industrial relations. Generally speaking, the experience

has been similar in all the former British Caribbean territories. What evolved

was a body of law designed to bring order and achieve fairness in the field of

industrial relations. This body of law has emerged from two sources: (i)

legislation; (ii) the decisions of the Courts of our several territories.

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Historically, the common law attitude towards employer/employee

relationships has been laissez-faire. It was none of the law's business to deal

with industrial disputes (Okpaluba, 1975). The development of labour law in

the Caribbean has therefore had to rely heavily on legislative initiatives which

have covered a wide spectrum, including the support for trade union

recognition and the establishment of other collective bargaining apparatus,

the encouragement of what may be regarded as good industrial practices by