The Caswell Franklyn Column – A Travesty Called the Employment Rights Tribunal
Next month will mark four years that the Employment Rights Act has been enforced as part of the Laws of Barbados. This piece of legislation took more than a decade to make it from first draft to passage in parliament, mainly because of half-hearted support from major unions and opposition from employers’ representatives.
The unions feared the prospects of having a tribunal that would be empowered to make binding decisions thereby diminishing the unions’ ability to bully their way in disputes. On the other hand, the employers treasured an environment where employees had few rights and they were prepared to do everything to delay implementation.
Despite opposition and delaying tactics, Government went ahead and passed the legislation which gave workers a new set of rights that have proven so far to be mostly elusive. It is taking too long for workers to have their matters adjudicated by the Employment Rights Tribunal (ERT) which leads to unnecessary hardship.
As far as I am aware, over 200 cases have been referred to the ERT but to date fewer than ten decisions have been handed down by the three panels that constitute the tribunal. The reasons for this unsavoury state of affairs are varied but stems from Government’s lack of commitment to provide adequate resources, including competent staff, to the Chief Labour Officer and the ERT.
The ERT has nine members and is divided into three panels each consisting of a chairman, who must be a lawyer, and two laymen; one nominated by the labour movement and the other nominated by the employers’ representative. At first blush, it would appear that three cases could be heard simultaneously but unfortunately, that is not the case since the secretariat is only equipped to service one hearing at a time.
When a case gets going before one of the panels, it is fraught with delay as a result of tactics of lawyers or the unavailability of the chairman. It would appear that the Government underestimated the number of cases that would have been coming before the ERT, since the burden of chairing the panels falls on lawyers who are already fully employed, whose service must compete with other engagements particularly High Court appearances that take priority. In my view nothing short of a full time ERT would suffice. Anything less would only serve to frustrate applicants and increase the final cost to employers through no fault of their own.
Even before a matter can reach the tribunal, the legislation requires the Chief Labour Officer to “use his best endeavours to achieve, by means of conciliation, a settlement of the matters raised by the complaint”. Section 42 of Employment Rights Act anticipates that this process would take a maximum of 42 days. However, for the first three years, Government failed to provide the already overburdened Labour Department with additional staff to handle the upsurge of complaints.
At the end of last year, Government finally appointed a number of labour officers but like everything else, the authorities managed to get that wrong as well. Paragraph 3 of the Employment and Recruitment Code of the Public Service states, in part:
“Every individual to be appointed to an office in the Public Service shall be selected on merit …”
The notes to the code go on to explain:
“Merit is to be interpreted so as to ensure that
(i) persons are not appointed to offices unless they are competent to perform the duties of those offices”.
Nonetheless, the authorities overlooked experienced temporary labour officers for permanent appointment, in favour of persons who now have to be trained, which actually guarantees that there would be further delays in the system.
The Employment Rights Act is a good idea that has gone awfully wrong. Workers have been given new rights on paper but it is well nigh impossible to access those rights in a timely manner. For example, I referred a matter, involving 23 workers from the National Housing Corporation, in 2014 and the conciliation process is still not completed so that the case can go on to the Employment Rights Tribunal.
From where I sit, it would appear that workers rights ceased being a priority for Government since the time of Grantley Adams.