Submitted by Former Senator and Head of Unity Workers Union Caswell Franklyn
The Daily Nation of March 22, 2022 reported that Senator Gregory Nicholls, speaking from the Senate, claimed that the the legislation (Employment Rights Act) has no ability to compel the award made by the tribunal (Employment Rights Tribunal). I am certain that even though not intended, that statement coming from a renown lawyer, who claims to specialise in employment law, and from the floor of the Honourable the Senate would only serve to give aid and comfort to recalcitrant employers. Even if he were correct, and he is not, what was he thinking? Whose interest was he seeking to serve? Surely not workers that were unfairly dismissed.
Quite frankly, I am surprised by his ill-advised call, in light of the fact that section 47.(1) of the Employment Rights Act makes provision for the exact thing that he complains is lacking. It states:
(a) the tribunal makes an order or award in respect of the payment of a sum; and
(b) The Chairman or Deputy Chairman of the Tribunal certifies that the order or award has been so made, and specifies the terms of the order or award in the certificate,
the order or award is enforceable as if it were an order made by a magistrate’s court in civil proceedings.
I am not making this up. The legislation is there for Senator Nicholls and all other employment law specialist to see. I am aware that there have been attempts to enforce judgements of the employment rights tribunal in the magistrates’ court but those attempts have failed to get off the ground because there is no set procedure to guide the process.
It would have been more appropriate for Senator Nicholls to call on the Chief Justice to issue a practice direction to enable the magistrates’ court to deal with that section of the Employment Rights Act that the good senator claims to be non-existent. (Practice directions are merely procedures issued by the court setting out how matters would be dealt with).
See Nation Newspaper Article referenced:
Nicholls: Put bite in ERT law
NEW GOVERNMENT SENATOR Gregory Nicholls is calling for legislation governing the Employment Rights Tribunal (ERT) to be strengthened as it cannot compel employers to pay monetary awards.
Delivering his maiden speech in the Senate yesterday a few hours after being sworn in, Nicholls, a lawyer who specialises in employment law, said the COVID-19 pandemic had brought to the fore the weaknesses in the ERT.
“The tribunal to my mind needs to have some institutional teeth to enforce its judgement and awards, because we have employers, particularly those employers in the construction sector, that do not honour the awards of the Employment Rights Tribunal and there is no enforcement mechanism to enforce the awards made by the tribunal,” he said.
He said in a recent case the employer did not even show up.
“What Government should do, in my respectful submission, is discuss a framework where Government redresses that issue because employers feel that they don’t have to appear before the tribunal at all. They don’t have to file no documents, send no witnesses, make no submissions and when judgement is given, they
laugh and the legislation has no ability to compel the award made by the tribunal.”
He also charged that employers had taken advantage of the pandemic.
“Businesses have shed workers at an alarming rate and as economic activity has returned to the country, the employment is not coming back with the same rate in which it went. I believe the pandemic has shown that the resources that we allocate to the Employment Rights Tribunal are not as adequate as they should be.”
He added: “Within the context of what we have seen in the pandemic, certainly the tribunal does not have the capacity in a timely fashion to deal with all of the matters that are brought before it. I would like to see the Employment Rights Tribunal strengthen its capacity,” he said, adding the ERT should have its own “home”.
“We need to move to a stage where that tribunal is a full-time tribunal not necessarily functioning like a court but we must respect that in all respects it is a court,” he said.
Pointing out he was available to assist the Ministry of Labour and Government on how to rectify these anomalies, Nicholls suggested Government penalise the recalcitrant employers. (MB)