REVIEW AND ANALYSIS OF COMPLIANCE OF THE NATIONAL LABOUR LEGISLATION OF BARBADOS WITH CARICOM MODEL LABOUR LEGISLATION May, 2007

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1 REVIEW AND ANALYSIS OF COMPLIANCE OF THE NATIONAL LABOUR LEGISLATION OF BARBADOS WITH CARICOM MODEL LABOUR LEGISLATION May, 2007 Table of Contents By: Clive Pegus Table of Contents... 1 I. Introduction...3 Legal status of CARICOM Model Law and ILO Conventions in Barbados... 4 Legal Obligations of Barbados... 5 Applicable Legislation of Barbados... 6 II. Termination of Employment... 7 Scope of Application... 7 Contracts of Employment... 8 Continuity of Employment... 9 Termination of Employment (IV)... 9 Probationary period Unfair dismissal Constructive dismissal Termination due to redundancy Winding up Notice Periods Burden of proof Remedies Severance Pay III. Registration, Status and Recognition of Trade Unions and Employers Organizations Freedom of association Recognition of bargaining rights IV. Equality of Opportunity and Treatment in Employment and Occupation Objectives Status of ILO Conventions Principles Legal framework Gaps in legislative framework V. Occupational Safety and Health and the Working Environment CARICOM Model Labour Law Status of OSH legislation in Barbados Definition Registration of Industrial Establishments and Mines Administration

2 General Occupational Safety and Health Requirements Duties of employer, workers and other persons Duties of Workers Hazardous Chemicals, Physical Agents and Biological Agents OSH Committees Notices Enforcement ILO Convention VI. Recommendations Termination of Employment Registration, Status and Recognition of Trade Unions and Employers Organizations25 Equality of Opportunity and Treatment in Employment and Occupation Occupational Safety and Health and the Working Environment

3 I. Introduction This study undertakes a detailed audit and assessment of the extent to which existing national legislation of Barbados complies with the CARICOM model labour harmonization legislation (CARICOM Model Labour Laws) in the areas of: Termination of employment; Registration, status and recognition of trade unions and employers organizations; Equality of opportunity and non-discrimination in employment; and Occupational safety and health and the working environment. These model laws, which were adopted by the CARICOM Standing Committee of Ministers responsible for Labour in 1995 and 1997 for implementation by Member States, are based on the core labour standards of the ILO and seek to mirror relevant ILO Conventions, namely: Termination of Employment Convention, 1982 (No. 158); Freedom of Association Convention, 1948 (No. 87); Right to Organise and Collective Bargaining Convention, 1949 (No. 98); Equal Remuneration Convention, 1951 (No. 100); Discrimination (Employment and Occupation) Convention, 1958 (No. 111); Occupational Safety and Health Convention, 1981 (No. 155). In fact, among the stated objectives of the first three named CARICOM Model Labour Laws is to give effect to the related ILO Conventions. The other CARICOM Model Labour Law appears compatible with the standards established in core ILO Occupational Safety and Health (OSH) Conventions and Recommendations. It should be noted however that the ILO has adopted several OSH instruments since the approval of the CARICOM OSH Model Law. In particular, the ILO adopted in 2002 a Protocol to Convention No. 155 to regulate further the recording and notification of occupational accidents and diseases, which should be considered by all CARICOM Member States in their efforts to implement the CARICOM Model Laws. While the primary focus of the study is concerned with compliance of Barbados with the CARICOM Model Labour Laws, comparisons are made with the applicable ILO Conventions. This approach has practical value in the light of Barbados obligation under international law and ILO jurisprudence to comply with ILO Conventions that it has ratified and with core international labour standards. In fact, its obligation to comply with the core ILO labour standards and ratified Conventions has greater legal force than that of the model legislation. The study is based essentially on legislative compliance. Its remit does not include other sources of law such as the common law or case law. It also does not focus on what may be accepted and practised as good industrial relations principles within 3

4 Barbados. The intention is to ensure that the legislation in Barbados becomes fully compliant with the CARICOM Model Labour Laws and its related ILO obligations. While this assessment seeks to address the salient provisions of the CARICOM Model Labour Laws and related ILO Conventions and in particular gaps and inconsistencies in the legislation of Barbados, it does not address every single provision. Consequently, absence of comment on any particular provision of the CARICOM Model Labour Laws should not be construed as an acknowledgement of compliance by Barbados. Recommendations are made regarding amendments required to address gaps and inconsistencies in Barbados legislation with a view to achieving compliance with the CARICOM model laws and applicable ILO Conventions. It must be noted that these recommendations emanate from a technical assessment of the legislation against the benchmark of the CARICOM Model Labour Laws and relevant ILO Conventions. In addition, where relevant, references are made to the observations and comments of the ILO supervisory bodies, in particular the Committee of Experts on the Application of Conventions and Recommendations (CEACR). It is recognised that the soundness and practicability of the proposed amendments are matters to be determined by the Government of Barbados through the consultative process with the social partners in the labour movement and the employers federation. The final determination of the practical value and soundness of the recommendations must be that of the people of Barbados in general and the social partners in particular. It is therefore anticipated that the findings and recommendations of the study will be subject to review by the social partners of Barbados. Legal status of CARICOM Model Law and ILO Conventions in Barbados The CARICOM Model Labour Laws were adopted by the CARICOM Ministers of Labour for implementation by Member States. While Members States are expected to implement the CARICOM Model Labour Laws as an important requirement of the CARICOM Single Market and Economy, there is no legal obligation to ensure compliance; they are precatory and non-binding; and non-compliance does not invite any sanctions. The non-binding nature of the CARICOM Model Labour Law contrasts with the binding nature of a ratified ILO Convention. One fundamental principle of international law is that treaties are binding upon the parties to them and must be performed in good faith. This rule known as pacta sunt servanda is one of the oldest principle of international law now re-affirmed in Article 26 of the Vienna Convention on the Law of Treaties. Moreover, Article 27 of the Vienna Convention prevents a party from invoking the provisions of its domestic law as justification for its failure to perform a treaty. It should be noted also that the International Labour Conference at its Eighty-eight Session declared that all Members of the ILO, which 4

5 includes Barbados, have an obligation, arising from the very fact of membership in the Organization, to respect, to promote and to realize, in good faith and in accordance with the Constitution of the ILO, the principles concerning the fundamental rights which are subject to those Conventions, namely: a) freedom of association and the effective recognition of the right to collective bargaining; b) the elimination of all forms of forced and compulsory labour; c) the effective abolition of child labour; and d) the elimination of discrimination in respect of employment and occupation. Thus it is important from a legal perspective that the domestic law of Barbados complies with its international legal obligations arising from its ratification of ILO Conventions. The question arises as to how a treaty or convention ratified by Barbados becomes domestic law within the jurisdiction of Barbados. Barbados has a dualist and not monist legal tradition. In a dualist legal system, unlike a monist system, treaties when ratified are not automatically incorporated into the domestic law of the ratifying State. The process of incorporation of the provisions of an international treaty, where not consistent with existing domestic law, requires the enactment of legislation. The process of legislation in Barbados is at times a time-consuming and cumbersome process. Barbados may wish therefore to consider the adoption of the good practice of Belize, which provides through its ILO Conventions Act, Chapter 304:01 1 to provide for the automatic incorporation in domestic law of ILO Conventions ratified by Belize, regardless of any conflicting law. In fact, where the ratified ILO Convention conflicts with an existing law in Belize, the provision of the ILO Convention prevails. This procedure is an efficient method of incorporating a ratified treaty into domestic law. Of course, the automatic incorporation should be subject to democratic and Parliamentary safeguards in that, prior to ratification, the treaty should be laid before Parliament, subject to the negative resolution procedure. Parliament should have an opportunity to determine whether the treaty should be ratified in the first place. For the system of automatic incorporation of a treaty to be effective within the democratic framework, the ratification process must not be seen as an exclusive executive act. It must be subject to Parliamentary scrutiny. Legal Obligations of Barbados Barbados has a legal obligation under international law and ILO jurisdiction to comply with the following ILO Conventions that it has ratified or acceded to and that are subject of this study: Freedom of Association Convention, 1948 (No. 87); 1 5

6 Right to Organise and Collective Bargaining Convention, 1949 (No. 98); Equal Remuneration Convention, 1951 (No. 100); Discrimination (Employment and Occupation) Convention, 1958 (No. 111); Barbados has not ratified the Termination of Employment Convention, 1982 (No. 158) and among the 18 core Occupational Safety and Health (OSH) Conventions, only the Radiation Protection Convention, 1960 (No. 115) has been ratified. The two most important OSH Conventions, namely Conventions No. 155 and 161 are not ratified to date. Barbados is required to submit periodic reports on its application of those core ILO Conventions that it has ratified for examination of the Committee of Experts on the Application of Conventions and Recommendations (CEACR). Applicable Legislation of Barbados The statutes of Barbados that are relevant to the CARICOM Model Laws are: Severance Payments Act, Chapter 355A Domestic Employees Act Chapter 344 Shops Act Chapter 356A Sugar Workers (Minimum Wage and Guaranteed Employment) Act Chapter 359 Trade Unions Act, Chapter 361 Occupational Safety and Health Act, Attention is now turned to the extent that these Acts comply with the fundamental provisions of the CARICOM Model Law and related ILO Conventions. 6

7 II. Termination of Employment The stated objectives of the CARICOM Model Law on termination of employment (referred to in this section as CARICOM Model Labour Law) are: a) to give effect to the provisions of the ILO Convention concerning Termination of Employment, 1981 (No. 158); b) to confer upon employees the right to continuity of employment and protection against unfair dismissals; and c) to establish procedures for employers to follow to terminate an employment relationship in a fair and equitable manner. It should be noted that Barbados has not ratified the ILO Convention No In fact, only two CARICOM Member States (Saint Lucia and Antigua and Barbuda) have ratified this Convention. Since one of the stated objectives of the CARICOM Model Law is to give effect to the provisions of this Convention, it is only logical that active consideration should be given by Barbados as well as the other CARICOM States to ratify this Convention simultaneously with implementation of the CARICOM Model Law. Scope of Application The provisions of Part 11 of the model legislation (contracts of employment) apply to all contracts of employment with certain categories of exemption listed in section 10 (fixed term or fixed task contracts of less than six weeks, employee of a family member and employees with collective agreements). ILO s Convention 158 applies to all branches of economic activities and to all employed persons except fixed term or specific task workers, workers during their probationary period and workers engaged on a casual basis for short terms. The Convention also provides for Governments after consultation with workers and employers representative organizations to exclude categories of workers whose terms and conditions are governed by special arrangements, which facilitate protection equivalent to the Convention. Barbados employment relations are generally not as comprehensively covered by statutory provisions as other Caribbean countries. Barbados employment law is largely based on the common law voluntary system of employment relations. With respect to termination of employment, there are statutory provisions relating to retrenchment, and statutory protection against termination of employment due to pregnancy and trade union membership and activities. The Employment Rights Bill, 2001, yet to be enacted, makes provision for continuity of employment, protection of employment, termination of employment, unfair dismissal, priority claims of employees on insolvency of employers and remedies for unfair dismissal that if enacted will comply with the provision of the 7

8 CARICOM Model Labour Law except there is no express provision relating to burden of proof. Contracts of Employment Part 11 of the Model Harmonization Legislation on Termination of Employment on minimum compulsory standards for contracts of employment is applicable to any contract whether expressed or implied, written or oral, except for contracts of less than six weeks, contracts by employer to employ a family member and those regulated by a collective agreement. This part deals inter alia with notice of termination, probationary period, contents of contract. Employers are required to prepare and deliver to every person employed a written contract of employment within fourteen days of that person s assumption of duty. The contract shall state the names of the parties, date of commencement of the contract, description of duties, rate of remuneration or method of calculation, intervals at which remuneration is paid, normal hours of work, leave entitlement, including maternity leave and pay, any provision for the termination of the contract, and any other term or condition agreed upon. (i) probationary period not to exceed 6 months. (ii) (iii) Contract in writing not later than 14 days on which employment commences Contents (parties, date, duties, pay rate, pay period, hours of work, leave, termination ) Barbados does not have any legislative provision relating to the provision of CARICOM Model Law on contracts of employment. Legislative conditions of employment are prescribed for domestic workers, shop assistants and sugar workers but not of the scope required by the CARICOM model legislation. The Domestic Employees Act Chapter 344 provides for the Minister of Labour to prescribe minimum wages payable to domestic employees and the maximum number of hours to be worked per week. It also requires employers to keep a record of the hours of overtime worked by each domestic employee. The Shops Act Chapter 356A prescribes conditions of employment for shop assistants relating to hours and time of employment, rest periods and basic facilities to be provided. The Sugar Workers (Minimum Wage and Guaranteed Employment) Act Chapter 359 is self-explanatory. The Barbados legislative framework lacks provisions relating to probationary periods to be served by employees and the requirement for employers to provide their employees with written contracts that have certain specified minimum provisions. It should be noted that Barbados has an Employment Rights Bill not yet enacted into law. The Bill provides for certain rights of workers, including the right at the commencement of the contract to a written statement of particulars of the employment. It also includes provision for notice of termination and a certificate of termination. However, the Bill is silent on the issue of probationary period. 8

9 Continuity of Employment The CARICOM Model Legislation in Part 111 provides that there shall be rebuttable presumption of continuity of employment of an employee from the first day he/she begins to work. In addition, an employee s continuous employment shall not be treated as interrupted for periods of absences from duty due to annual leave, maternity leave, sick leave or any other lawful leave, suspension, temporary lay off, occupational disease or accident, lawful strike. It should be noted that acceptance of severance pay terminates continuous period. This Part also provides that where business or part sold, leased, transferred or otherwise disposed of, periods of employment deemed a single period of continuous employment if employment not terminated and severance paid 2. The Severance Payments Act, Chapter 355A provides in section 17 for continuity of employment for purposes of severance in cases of short-term lay-offs. The Employment Rights Bill, 2001 Clause 3 provides for continuity of employment in terms similar to that of the CARICOM Model Labour Law in cases other than retrenchment. With respect to successor employer, the Severance Payments Act, Chapter 355A provides in Section 9 for the continuity of employment where the successor employer in cases of renewal or re-engagement of contracts of employment from the predecessor employer. Termination of Employment (IV) Part 1V of the Model Legislation deals with grounds and proper procedures for discipline and termination of employment, including termination during probationary period, unfair dismissal, constructive dismissal, summary dismissal for serious misconduct, termination due to redundancy, preference to former employee, winding up, notice periods, burden of proof and remedies. The CARICOM Model Labour Law and ILO Convention No. 158 establish the principle that the employment of an employee for an unspecified period of time shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the employee or based on the operational requirements of the enterprise. This principle also applies to the employment of an employee for a specified period of time during the contract prior to the date of the specified expiry of the contract. The Employment Rights Bill, 2001 in Cause 20 establishes the analogous principle of the right not to be unfairly dismissed. Clause 23 incorporates the valid grounds for termination of employment enshrined in the CARICOM Model Labour Law and 2 Section 13 of CARICOM Model Harmonization Act regarding Termination of Employment 9

10 ILO Convention 158, namely, capability of the employee, conduct of the employee and operations of the enterprise. Probationary period There is no statutory provision relating to probationary period. The Employment Rights Bill, 2001 is also silent on the period of probationary period or the right to dismiss an employee during the probationary period. It should be noted here that in the section on notice termination to be given by an employer to an employee provides periods of notice to be given in respect of a minimum period of employment of six months. Unfair dismissal Clause 24 of the Bill incorporates all the grounds for unfair dismissal contained in both the CARICOM Model Law and ILO Convention No. 158, namely: (a) an employee s race, sex, religion, ethnic origin, national extraction, indigenous population, social origin, political opinion, disability, family responsibilities or marital status; (b) an employee s age, subject to national law or collective bargaining provisions regarding retirement; (c) a female s employee s pregnancy or a reason connected with her pregnancy; (d) an employee s exercise of any of the rights specified in Part 11 of the Model Harmonization Act on Registration, Status and Recognition of Trade Unions and Employers Organizations; (e) an employee s temporary absence from work because of sickness or injury unless it occurs frequently and exceeds allocated leave entitlement; (f) an employee is diagnosed with the HIV virus unless the employee is engaged in health care work; (g) an employee s absence from work due to compulsory military service or other civic obligation in accordance with national law; (h) an employee s exercise or proposed exercise of the right to remove himself or herself from a work situation which he or she reasonably believes presents an imminent or serious danger to life or health; (i) an employee s participation or proposed participation in industrial action which takes place including strikes in conformity with the provisions of national labour relations law; (j) the filing of a complaint or the participation in proceedings against an employer involving alleged violations of laws or regulations. Constructive dismissal The Severance Payments Act, Chapter 355A in section 19 provides within the context of the Act for implied or constructive termination of contract. It states that where any act of the employer or any event affecting the employer operates so as to terminate an employee s, that act would be treated as a termination of the contract by the employer and not the employee. 10

11 One lacuna in the Employment Rights Bill is that it does not contain any express provision relating to constructive dismissal. Termination due to redundancy The Severance Payments Act, Chapter 355A makes provision for redundancy. However this Act limits redundancy to (a) discontinuance or intention to discontinue business in the place where the employee was so employed and (b) reduction in business operations. It does not include termination of employment on grounds of natural disaster or force majeure as retrenchment 3. The Act provides for notice of termination of employment by the employer to be given to the employee. There are no statutory provisions relating to notice to be given to, or the right of consultation with, the recognised trade union or priority treatment in subsequent recruitment. These matters are generally covered in collective agreements. The Employment Rights Bill provides for termination due to redundancy. It seeks to improve on the Severance Payments Act, Chapter 355 A by making provision for prior notice and consultation with the recognised trade union and for priority treatment to be given to a retrenched worker in subsequent recruitment by the employer. It however falls short of the CARICOM Model Labour Law and the ILO Convention No. 158 in that it fails to include termination due to force majeure or an act of God as redundancy. Winding up The Employment Rights Bill, 2001 makes provision that complies with CARICOM Model Labour Law and ILO Convention No. 158 relating to priority to be given to wages and other payments due to workers on the winding up or appointment of a receiver 4. Notice Periods The notice period for termination of employment in the Severance Payments Act, Chapter 355 A does not comply fully with the CARICOM Model Labour Law. The Employment Rights Bill in Clause 17(1) seeks to bridge the gap and is fully compliant with the CARICOM Model Labour Law. The Bill also provides for a certificate of termination to be given by an employer to an employee, if requested. Burden of proof There is no statutory provision, which imposes on the employer the burden of proving the reason for the dismissal. This gap also exists in the Employment Rights Bill, Section 3, Severance Payment Act, Chapter 355 A 4 Clause 29, Employment Rights Bill,

12 Remedies Current statutes do not provide for remedies for unfair dismissal as envisaged in the CARICOM Model Labour Law and the ILO Convention No The Employment Rights Bill, 2001 in the Third Schedule makes provision for remedies consistent with the CARICOM Model Labour Law and ILO Convention No Severance Pay Barbados has a contributory Severance Fund that is administered by the National Insurance Board. Payments are based on the contributions to the Fund. To comply with the provisions of the CARICOM Model Labour Law, the Severance Payments Act, Chapter 355 A will require an amendment to ensure that a retrenched worker receives the level of severance pay in accordance with the CARICOM Model Labour Law and that the employer will be required to pay the differential. The amount of severance pay due should be: (a) 2.5 weeks pay for each year up to ten years; (b) 3 weeks basic pay for each year of service in excess of ten years and 20 years; and (c) 3.5 weeks basic pay for each year of service in excess of 33 years 5. The employer of a pensioned employee may by notice given to him reduce severance pay to the extent of pension benefits due to the employee 6. 5 Barbados Severance Payments Act Chapter 355A Schedule section 2. 6 Barbados Severance Payment (Pensions) Regulations section 5 12

13 III. Registration, Status and Recognition of Trade Unions and Employers Organizations The stated objectives of CARICOM Harmonization Act Regarding Registration, Status and Recognition of Trade Unions and Employers Organisations (referred to in this section as CARICOM Model Labour Law ) are: a) to give effect to the provisions of National Constitutions on freedom of association, the ILO Conventions on Freedom of Association, 1948 (No. 87) and on the Right to Organise and to Collective Bargaining, 1949 (No. 98); b) to establish procedures for the registration and status of trade unions and employers organisations; c) to promote and protect the recognition of trade unions; and d) to encourage orderly and effective collective bargaining. Unlike the ILO Convention on Termination of Employment, No. 158 (1981), all CARICOM Member States, including Barbados, have ratified the ILO Conventions on Freedom of Association, No. 87 (1948) and on the Right to Organise and to Collective Bargaining, No. 98(1949). In addition, the principles and standards inherent in ILO Conventions No. 87 and 98 are fundamental principles of international labour law, which all ILO Members, even if they have not ratified the Conventions in question, have an obligation, arising from the very fact of membership in the ILO, to respect, to promote and to realise in good faith 7. Barbados legislative framework relating to registration, status and recognition of trade unions is limited in scope to the registration procedures. Its system of recognition and collective bargaining is voluntary and free from statutory regulation. The primary legislation is the Trade Unions Act Chapter 361 enacted in 1964 and last amended in 1988 prior to the approval of CARICOM Model Law. Scope of Application Section 3 of the CARICOM Model Law limits exemption from the provisions of the Act to the disciplined forces states. The definition of trade unions in the Trade Unions Act includes employers organisations. Section 44 limits the non-application or exclusion of the provisions of the Act to persons in the naval, military or air services of the Crown or in the Police Force. Basic employee rights Every employee, subject to the exclusion in section 44, has the basic rights contained in the CARICOM Model Legislation. He/she has the right to: (a) to take part in the formation of any trade union or federation of trade unions; (b) be or not be a member of any trade union or federation of trade unions; (c) take part in lawful trade union activities; (d) hold office in any trade union or federation; (e) take part in the election of shop stewards or safety representative; 7 ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, Paragraph 2 13

14 (f) be elected a shop steward or safety representative or be a candidate for such election; (g) act in the capacity of a shop steward or safety representative; (h) exercise any right conferred by law. Freedom of association It is an offence for any employer to take action to adversely affect an employee on account of trade union activities. Section 40A of the Trade Unions Act, Chapter 361 makes it an offence for an employer to dismiss or threaten to dismiss a workman or to adversely affect the employment or alter the position of a workman to his prejudice because that workman is or proposes to become an officer, delegate or member of a trade union or has absented himself from work without leave after he/she has made an application for leave for the purpose of carrying out his/her duties and exercising his/her rights as an officer or delegate of a trade union and leave has been unreasonably refused or withheld or takes part in trade union activities outside or, with consent of the employer, within working hours. An employer guilty of an offence of anti-union discrimination as set out in Section 40 A is liable on summary conviction of a fine not exceeding one thousand dollars or to imprisonment of a term not exceeding six months or both. The social partners may wish to consider whether this penalty is sufficiently dissuasive given the sanctity and importance of the principle of freedom of association. Protection of trade union from employer interference There is no statutory provision, which prohibits an act designed to promote the establishment of a trade union under the domination of an employer or employers organisation or to support employee s organisations by financial or other means with the object of placing such organisations under the control of employers or employers organisations. There is therefore the need to introduce both legislative protection of trade unions from employer interference coupled with corresponding sanctions for infringements. Registration and status There is no statutory requirement for the competent authority to consult with representatives of trade unions and employers organisations in the appointment of the Registrar. Barbados has a compulsory system of registration of trade unions. Section 12 (1) of the Trade Union Act makes it mandatory for every trade union to be registered within three months of the date of its formation. Failure to do so is an offence punishable by a fine. Section 12 (2) prescribes the requirements for registration. Any seven or more members of a trade union may by subscribing their names to the rules of the trade union, and otherwise complying with the provisions of the Act with respect to 14

15 registration, register such trade union. The trade union will not be registered if its objects are unlawful. The first schedule to the Trade Unions Act provides guidelines regarding the rules of trade unions. These are: (1) The name of the trade union and place of meeting. (2) The whole of the objects for which the trade union is to be established, the purpose for which its funds shall be applicable and the conditions under which any member may become entitled to any benefit assured thereby and the fines and forfeitures to be imposed on any member of the trade union. (3) The manner of making, altering, amending and rescinding rules. (4) A provision for the appointment and removal of a general committee of management, of a trustee, treasurer and other officers. (5) A provision for the investment of funds and for an annual or periodical audit of accounts. (6) The inspection of the books and names of members of the trade union by every person with an interest in its funds. (7) The manner of dissolution. Annual Return The requirement of the CARICOM Model Legislation regarding the annual return is complied with. Section 32 of the Trade Unions Act imposes a duty of each trade union to submit to the Registrar by 1 st June each year a balance sheet, income and expenditure account and any other particulars that the Registrar may from time to time require. Legal Status Trade unions in Barbados are not bodies corporate as prescribed in the CARICOM Mode Legislation. They are unincorporated entities and do not have the capacity to contract or hold property or to sue or be sued in their own names. Their legal capacity is exercised by their trustees on their behalf. Amalgamation Any two or more trade unions may, by consent of not less than two-thirds of the members of each of those trade unions, become amalgamated together as one trade union, with or without any dissolution or division of the funds. However no amalgamation shall prejudice the right of a creditor of either trade union that is party to such amalgamation 8. Federation There is no statutory provision for the right of trade unions and employers organisations to join and be affiliated to international federations. This should not be interpreted to mean that such a right does not exist in practice. 8 Barbados Trade Unions Act CAP. 361 section 28 15

16 Safeguards for Members of Organisations There is no provision in the Trade Unions Act which addresses the issue of improper election practices. With regard to the deposit and safeguard of funds, the treasurer and trustees have a duty under section 18 of the Trade Unions Act to render a just and true account, which shall be audited by some fit and proper person appointed by the Registrar, of all moneys received and paid. Where the treasurer fails to do so, the trustees may sue him/her in court for all monies received by him/her that cannot be accounted for. Recognition of bargaining rights Barbados has a voluntary system of recognition of trade union by the employer. There is no legislative provision relating to certification of recognised unions, application procedures, appropriateness of bargaining unit, and duty to negotiate in good faith. Collective Agreements There is also no legislative provision relating to collective agreements, the enforceability of collective agreements and successor rights and obligations in relation to a collective agreement. 16

17 IV. Equality of Opportunity and Treatment in Employment and Occupation Objectives The stated objectives of the CARICOM Model Harmonisation Act regarding Equality of Opportunity and Treatment in Employment and Occupation (hereinafter referred to in this chapter as CARICOM Model Labour Law ) are: (a) to give effect to the provisions of the National Constitution; to the ILO Convention concerning Discrimination In Employment and Occupation, no 111 (1958) and ILO Convention concerning Equal Remuneration, No. 100 (1951); and to certain provisions in the UN Convention on the Elimination of All Forms of Discrimination Against Women; (b) to eliminate, as far as possible, discrimination in employment and occupation against persons on the grounds of race, sex, religion, colour, ethnic origin, national extraction, social origin, political opinion, disability, family responsibilities, pregnancy or marital status; (c) to promote recognition and acceptance of the principle of equal opportunity and treatment on the above grounds in employment, occupation and other related activities including education, vocational training, employment services, provision of goods and services, partnerships and professional trade organisations. Status of ILO Conventions All thirteen CARICOM Member States, whose laws are reviewed in this study, except Suriname have ratified ILO Convention concerning Discrimination in Employment and Occupation, No. 111 (1958) and ILO Convention concerning Equal Remuneration, No. 100 (1951). All thirteen CARICOM Member States have ratified or acceded to the UN Convention on the Elimination of All Forms of Discrimination against Women. Principles The fundamental principles underlying the CARICOM Model Labour Law insofar as protection against unlawful discrimination is concerned are: (i) any discrimination in employment or occupation based on race, sex, religion, colour, ethnic origin, indigenous population, national extraction, social origin, political opinion, disability, family responsibilities, pregnancy, marital status or age except for purposes of retirement and restrictions on work and employment of minors shall be unlawful; (ii) the scope of application of the principles shall include all workers in the public and private sectors, professional partnerships, professional or trade organisations, qualifying bodies, vocational training bodies and employment agencies; 17

18 (iii) (iv) (v) (vi) (vii) the principles of unlawful discrimination and equality of opportunity shall also apply to the provision of goods, services and facilities, and in relation to advertisements and application forms; the prohibition against unlawful discrimination applies both to workers and to persons seeking employment; the prohibition against unlawful discrimination extends to terms and conditions of employment, including conditions of work or occupational safety and health measures, workplace facilities, and career development opportunities; measures to promote equality of opportunity of a temporary nature shall not be deemed unlawful discrimination; employers have a duty to ensure equal remuneration for work of equal value; (viii) except where otherwise provided, the person alleging a violation shall bear the evidential burden of presenting a prima facie case of discrimination and thereafter the burden shall shift to the respondent to disprove the allegation. Legal framework Section 23 of the Constitution of Barbados provides that no law shall make any provision that is discriminatory either of itself or in its effect and no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority. In this section the expression "discriminatory" means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, place of origin, political opinions, colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which person of another such description are not made subject or are accorded privileges or advantages which are not afforded to persons of another such description. The constitutional protection does not apply to any law so far as that law makes provision with respect to persons who are not citizens of Barbados. Gaps in legislative framework There is no legislative framework to address issues concerning equality of opportunity and treatment in employment or occupation in the non-state or private sector or in respect of employees in the state sector who are not citizens of Barbados. Also, the constitutional provisions relating to the state sector does not include as grounds of discrimination sex, religion, national extraction, social origin, marital status, pregnancy, family responsibilities, age or disability. In addition, the Constitution does not provide that an act of sexual harassment against an employee committed by an employer, managerial employee or co-worker shall constitute unlawful discrimination based on sex. The Employment Rights Bill, 2001 provides that the termination of employment of an employee on any of the grounds associated with discriminatory treatment 18

19 identified in the CARICOM Model Labour Law and the relevant ILO Conventions would be deemed to be an unfair dismissal. However, the Bill does not provide that: a) the scope of application of the principles shall include all workers in the public and private sectors, professional partnerships, professional or trade organisations, qualifying bodies, vocational training bodies and employment agencies; b) the principles of unlawful discrimination and equality of opportunity shall also apply to the provision of goods, services and facilities, and in relation to advertisements and application forms; c) the prohibition against unlawful discrimination applies to persons seeking employment; d) the prohibition against unlawful discrimination extends to terms and conditions of employment, including conditions of work or occupational safety and health measures, workplace facilities, and career development opportunities; e) employers have a duty to ensure equal remuneration for work of equal value; f) the person alleging a violation shall bear the evidential burden of presenting a prima facie case of discrimination and thereafter the burden shall shift to the respondent to disprove the allegation. 19

20 V. Occupational Safety and Health and the Working Environment Unlike the other model laws, CARICOM Model Law on Occupational Safety and Health and the Working Environment (hereinafter referred to in this Chapter as the CARICOM Model Labour Laws ) does not have among its stated objectives the incorporation of any ILO Conventions. It is an Act to provide for the occupational safety and health of workers in the working environment. Among the 18 core OSH Conventions and the Protocol to Convention No. 155, Barbados has only ratified the Radiation Protection Convention, 1960 (No. 115). Barbados has recently enacted its Occupational Safety and Health Act, CARICOM Model Labour Law The CARICOM Model Law provides for: (i) registration of industrial establishments and mines; (ii) administration; (iii) general occupational safety and health requirements; (iv) duties of employers, workers and other persons; (v) hazardous chemicals, physical agents and biological agents; (vi) enterprise safety and health representatives and committees; (vii) notices of injury, accidents and explosions; (viii) enforcement ; and (ix) offences and penalties. Status of OSH legislation in Barbados Barbados has a new Occupational Safety and Health Act 2005 (hereinafter referred to in this section on Barbados as the Act ), which was proclaimed by the Governor General in June However, the Regulations to the Act are still under consideration. The Act applies to the State and all branches of economic activity and to all employers and workers in all branches of economic activity. Definition Consistent with the CARICOM Model Legislation, the term employer is given an all-embracive definition. It includes any person who employs persons for the purpose of carrying out any trade, business, profession, office, vocation or apprenticeship. Registration of Industrial Establishments and Mines The Act requires any person who desires to occupy or use any premises as a factory serve on the Chief Labour Officer, within 30 days before he/she does so, a notice containing the names and addresses of the occupier or the title of the business, address and location of the factory, the number of persons likely to be employed, the nature of the work to be carried out, whether mechanical power is to be used 20

21 and if so, the nature of that power, a flow chart of the manufacturing process, and any additional particulars the Chief Labour Officer may require. Administration The Act provides for the appointment of inspectors to administer and enforce the Act and regulations. They are to ensure that employers and other relevant persons are provided with information and advice concerning the Act and the protection of the occupational safety and health of workers generally. There is no provision in the Act for the appointment of a tripartite National Advisory Council on Occupational Safety and Health with technical or professional persons with expert knowledge to advise and make recommendations to the Minister and to promote awareness, including enforcement and the implementation of a national policy on occupational safety and health. General Occupational Safety and Health Requirements There are provisions in the Act that relate to work at dangerous machines, protective clothing devices, emergency drills and exits, cleanliness and sanitary conveniences, disposal of waste, noise and vibrations, overcrowding, ventilation, availability of drinking water, washing and change facilities, first-aid provisions and restrooms. The Act gives the power to the Chief Labour Officer to prohibit a person under the age of 18 from operating machines or doing any work in a factory, which in the opinion o fan inspector is injurious to his/her health or the health of other persons 9. A person under the age of eighteen years is also prohibited from working in certain processes connected with lead manufacture 10. All persons entering an area in an establishment where they are likely to be exposed to the risk of head or bodily injury, or injury from air contaminants or any other bodily injury must be provided with suitable protective clothing or devices of an approved standard and adequate instruction in the use of such protective clothing or device. Duties of employer, workers and other persons Section 6 of the Act provides for the general duties of an occupier or employer. These include: (a) a duty to undertake a risk assessment in respect of the design, importation or manufacture for use at work with a view to the elimination or minimisation of any such risks; (b) a duty to take steps to eliminate or minimise any risk arising from the use of any equipment, material, article or substance in a workplace; 9 Barbados Occupational Safety and Health Act, 2005 section Barbados Occupational Safety and Health Act, 2005 section 73 21

22 (c) a duty to ensure that the erection or installation of any article for use is safe and does not pose any risk to health when properly used; (d) a duty of every occupier to ensure, so far as is reasonably practicable, the health, safety and welfare of all his employees; (e) the provision and maintenance of plant and systems of work that are so far as is reasonably practicable safe and without risks to health; (f) arrangements for ensuring so far as is reasonably practicable safety and the absence of risks to health in connection with the use, handling, storage and transport of articles and substances; (g) a safe access to and egress from any place of work; (h) the non exposure of pregnant women to chemicals, substances etc.; There is no provision for a written occupational safety and health policy is prepared and reviewed annually in consultation with the Occupational Safety and Health Committee or safety representative. Duties of Workers All the duties of workers mentioned in the Model Legislation are included in the Act. Section 9 of the Act provides that a worker shall: (a) work in compliance with the provisions of the Act and regulations; (b) use or wear the equipment, protective devices and clothing required; (c) report to his/her employer or supervisor the absence of or defect in any equipment or protective device and clothing of which he is aware and which may endanger himself, herself or another worker; (d) report to his/her employer or supervisor any contravention of the Act or Regulations of which he or she knows; (e) take care of the personal protective equipment, devices and clothing provided to him or her; and (f) exercise reasonable care as not to cause injury to self and others. Section 104 gives a worker the right to refuse to work where he/she has reasonable justification to believe that (a) equipment, machine, tool or device or (b) physical condition of workplace - presents imminent and serious danger to life or health. In this scenario, the worker is deemed to be at work with pay. In addition, section 102 protects a worker from dismissal by reason only of his requesting an inspection of his/her workplace by an inspector. Hazardous Chemicals, Physical Agents and Biological Agents The Minister may give orders to prohibit, limit or place conditions on use of hazardous chemicals, physical agents and biological agents. An employer is required to maintain an inventory of all hazardous chemical and hazardous physical agents, including hazardous biological agents. The inventory must contain information on the effects of the chemicals or agents. All hazardous materials are to be labelled and there must be adequate information to workers on the handling and disposal thereof so as to eliminate risks. 22

23 OSH Committees Section 103 provides that where an industrial establishment has twenty or more employees, the employer shall make arrangements with the recognised trade union(s) or workers representative for the appointment of a Joint OSH Committee. Where the industrial establishment has less than twenty workers, the employer shall make arrangements with the workers for the appointment of a safety representative from among the workers. The OSH Committee or safety representative shall identify risks and make recommendations and obtain information concerning hazards, materials, processes or equipment, or obtain information on tests of equipment etc. and be consulted and investigate accidents. The OSH Committee shall meet at least once every three months. It should be noted here that ILO jurisprudence requires risk assessment and control to be the responsibility of the employer. Notices The employer has an obligation to notify an inspector, the OSH Committee, safety representative and recognised trade union where a person is killed or critically injured from any cause at the workplace within forty-eight hours of such death or injury. In the case of a non-fatal accident, explosion or fire causing injury, the employer has four days within which to make a report. Enforcement Inspectors are vested with the power to enter, inspect any register, remove any register or article violating the Act, conduct tests, require an employer to conduct tests, make enquiries of any person in the workplace and require any equipment to be tested. An Inspector may also order an employer to comply with Act forthwith or within such time as he or she may specify. Where an Inspector makes an order and finds that the contravention is a danger or hazard to safety and health, he/she may order that the workplace, equipment, machine, device, article or process be not used until the order is complied with. He/she may also order that work be stopped until the danger or hazard is removed. ILO Conventions It should be noted that while the CARICOM Model Labour Law only contains an indirect reference to ionising radiation hazardous physical agents and does not set any limits for exposure, Barbados has an obligation under the ILO Convention that it has ratified to establish a regulatory body to monitor the exposure of workers to ionising radiation. In addition, the Government has to fix maximum permissible dose levels of ionising radiations with legally binding effect in order to guarantee by means of enforceable provisions an effective protection of workers exposed to ionising radiations, in accordance with Articles 3 and 6 of the Convention. 23