Industrial Dispute Tribunal

Industrial relations had its roots in the industrial revolution which created the modern employment relationship by initiating free labor markets and large-scale industrial organizations with thousands of wage workers. As society wrestled with these massive economic and social changes, labor problems arose. Low wages, long working hours, monotonous and dangerous work, and abusive supervisory practices led to high employee turnover, violent strikes, and the threat of social instability.

In Jamaica 1938 the frustration of the working class which had built up over the years, became explosive. A wave of industrial unrest swept the country, with workers on the waterfront, in the sugar industry, transportation sector and the government service taking industrial action. Between January and June of 1938, there were several outbreaks of disturbances, beginning with a strike by cane cutters on the Serge Island Sugar Estate in St. Thomas. Other riots included the general strikes on the Kingston waterfront on May 21st and the strike by street cleaners on May 23rd.

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There were also other general strikes by dock and transport workers, municipal employees, as well as food and tobacco workers. However, one of the major industrial action that took place during this time was the Frome Riot of 1938. This riot had left six dead, fifty wounded and 89 charged with rioting. Frome was the breaking point in the seething unrest island wide over pay and conditions of work and massive unemployment. It was also the start of a series of strikes, demonstrations and disturbances in which Sir Alexander Bustamante played a major role.

The riots which occurred throughout this period proved to be very significant as they were the catalysts for the improvement of working conditions for the working class. This was achieved through the formation of trade unions and political parties which lobbied for increased workers’ benefits and rights which eventually led to the granting of Universal Adult Suffrage in 1944, which was the right of all adults, regardless of class, sex, race, religion, etc. to vote. With all this labour unrest taking place there became a need for some sort of regulation that would govern the working condition and treatment of workers. As a result a law was instituted that govern labour relations in Jamaica. Industrial disputes in Jamaica were now settled through the route of Arbitration, provided for under the Public Utility Undertaking and Public Services Arbitration (PUUPSA) Law and the Trade Disputes Arbitration and Enquiry Law.

The PUUPSA law established that it was illegal for workers to strike or for employers to declare a lockout in connection with any trade dispute. Unless the dispute had been properly reported to the Labour Minister and the Minister had failed to act within the time specified in the law. However, there were certain deficiencies in the law. One of these was the possibility of a strike occurring where there was no industrial dispute as defined and such action would not be illegal. Another was the absence of penalties written into law for the enforcement of awards.

Also the arbitrator acting under the Arbitration Act did not have the power to reinstate a worker. It was even difficult to select an arbitrator by parties and this sometimes result in a very long process. Perhaps one of the major deficiencies is that Arbitrations only took place in the essential service under the PUUPSA, and in the event where the workers were represented by a union and the grievance procedure allowed for arbitration. The workers became very discontented with the manner in which grievances were handled by Arbitrators.

The Government now felt that it was necessary to have a modern and permanent State machinery to determine and settle disputes expeditiously. In 1975 the PUUPSA law was repealed and incorporated into Labour Relations and Industrial Dispute Ac that sought to correct the omissions. This Act was passed in 1975 after much discussion and debate, the Act gave strength to companion Laws, which have generally assisted in improving living standards and giving more justice to workers as active participants in the Industrial relations process in the country.

Under the Labour Relations and Industrial Dispute Act an employer is required to grant bargaining rights to a trade Union which secures a simple majority of the votes of employees eligible to vote in representational ballot. The Ministry of Labour conducts the ballot provided that is it satisfied with the claimant union has made out a prima facie case of representation following a comparison of the audited list submitted by the union or its membership in the establishment with the list of employees submitted by the employer.

The LRIDA provided principally for the establishment of an Industrial Disputes Tribunal (IDT) as a final arbiter of disputes; compulsory recognition and protection against discrimination in respect of union membership; recognition of trade unions; settlement of disputes in the essential services; the setting up of a Board of Enquiry; a Labour Relations Code; and vesting the Minister of Labour with authority to declare a dispute to be one which is likely to gravely endanger the national interest and give him power to have the dispute put to compulsory arbitration.

The Tribunal was also established to determine and settle industrial disputes and to promote industrial harmony. The industrial Dispute Tribunal consist of a Chairman and two deputy Chairmen and not less than two members representing employers and two representing workers and such special members as may from time to time be appointed to form a Special Division of the Tribunal.

The appointments of the Chairman and Deputy Chairmen must be made by the Minister after consultation with organizations representing employers and employers and workers. The Minister may increase the number of persons comprising the tribunal if work increase and its necessary. The members representing employers and workers are appointed from panels supplied to the Ministry by organization representative of employers and workers, respectively.

If there is no such panel the Minister may constitute a panel as he deems fit. These are now several divisions of the tribunal. In the case of a special Division of the Tribunal to settle disputes affecting the nation interest, the Chairman is appointed by the Minister on the joint recommendation of the parties involved and the other two members are appointed, respectively on the recommendation of the employer organization and the trade union involved.

Reference of disputes to the Tribunal must be made through the Minister including the determination of the entitlement of categories of person to participate in a ballot under the procedure for settlement of representational claims to the Tribunal, when other mean of settlement failed to resolve the issue in disputes. In a reference by the Minister to the Tribunal of representational dispute, it shall be lawful for the Tribunal to determine the bargaining unit in which the workers may be included.

In disputes affecting the Nation Interest the Minister may make an order calling on the parties to refrain from taking or continuing any industrial action for a period of 30 days. If there is no settlement within those 30 days, the Minister shall call upon the parties to select the chairman of a special Arbitration Tribunal with the employers and workers selecting their representative, respectively, which shall sit as a special division of the Tribunal to hear the dispute.

If there is no agreement on the selection of the special Tribunal, the Minister shall refer the dispute to the Tribunal. In other disputes, reference to the Tribunal will be made on request of all the parties to the dispute where the Minister is satisfies that other means of settlement provided by Collective Agreement have failed to resolve the issue in the dispute.

By the amending act of 1978 and a further amendment in 1986, the minister is empowered on his own initiative to refer a dispute to the Tribunal of he consider that the dispute should be settled expeditiously and where he is satisfied that attempts were made without success to settle the dispute or if, in his opinion, all the circumstances surrounding the dispute constitute such an urgent or exceptional situation that it would be expedient to do so. The Tribunal is not empowered to hear disputes relating to the appointment removal of or disciplinary action against any person holding public office.

Disputes over representational rights of government employees are also not referred to the Tribunal. The award of the Industrial Dispute Tribunal are binding, except on a point of law, and shall not be inconsistent with national interest or any enactment regulating or controlling terms and conditions of employment. An award may be made with retrospective effect form a date earlier that the date on which the dispute first arose. Thus is particular so in the case of any claim with respect to a new bargaining unit. Roles & Functions

Industrial Dispute may be defined as a quarrel between a worker and an employer or between a trade union and employer or between groups of unions and employers, relating to terms and condition of employment. Where a dispute has been referred to the Tribunal and the parties reach full agreement before the tribunal begins to deal with the dispute, the parties will have to furnish the Tribunal with a copy of the signed agreement and also a letter of request to the Minister to withdraw the dispute. If both parties did not reach an agreement the IDT will therefore initiate the procedure in settling the dispute.

The secretary of the IDT will advised the parties (union/individual vs. firm) that a matter with stated terms of reference has been referred to it by the Minister of Labour. The parties may be then summoned to a preliminary hearing usually on a mutually agreed date. The hearing is conducted by a panel consisting of a chairman and two other members, as well as a secretary and one or two recording steno typist. Undertakings from both parties are given to provide written briefs in a specified period. Alternatively the IDT may by letter invite the parties to submit briefs within a specified period, written briefs must be concise and accurate.

In the event that either party cannot prepare a brief by the deadline date, an extension of time must be sought in writing from the IDT. When the briefs are prepared by the party the company and/ or the union may wish to be represented at the hearing by an attorney-at- law or industrial relations professional. If so, the parties must supply the representatives with all the pertinent facts to ensure accuracy of detail in preparing briefs, submission maybe elaborated verbally at the hearing. When the briefs have been submitted by both parties, the Tribunal will schedule a meeting.

Opening submission from aggrieved side, usually the union will begin the hearing. Witnesses maybe summoned, documents maybe presented along with all relevant evidence submitted in support of the case. When the hearing is completed an award is handed down. Arbitrators are governed by the term of reference. The Tribunal must ensure that awards are capable of being implemented. If it is, at least two members of the panel a simple majority must sign the award in order for it to be binding; this award from the IDT is binding on all parties.

If there is a disagreement among members of the panel about the terms of the award a minority report may be submitted but the members disagreeing with the award should consider whether it is appropriate to write a minority report. This may be necessary where the arbitrator feels that his reputation maybe damage or where he feels that it is essential to set out his reason. His disagreement is recorded on the award document. If all three disagree the award maybe handed down by the chairman.

The chairman of the panel might also seek clarification of the award in doing this he might sit alone or with other members and invite all parties to attend the sitting. Clarification of the awards may also be provided by the panel in writing, but without out a sitting. On the contrary, the awards may be appealed in the Supreme Court if there is a breach of law, insobriety of one or all panelists; or insanity of panelists. The decision made by the Supreme Court on an appeal is binding on all parties, but there are provisions for further appeals through the judicial machinery to the Privy Council in England.

An award may be retroactive but it must not precede the date when the dispute first arose. Tribunals have the function of a civil court to enforce the law but are not restricted by the rules and procedures of an ordinary court. The Industrial Dispute tribunal has the advantage of being quicker, cheaper, and more informal, have great discretionary power and can be staffed by expert in the field. On the other hand, IDT have disadvantages by being less precise than the ordinary court.

All the matter arises in Industrial relations are referred to the TDT because tribunal only deals with civil law. Employee rights such as redundancy payment, discrimination, unfair dismissal and maternity leave are matters that are referred to the tribunal. Often it is the interest of both parties to resolve the situation as quickly and as cheaply as possible. To this end tribunals serve a useful purpose. The Industrial Dispute Tribunal performs its task on its own merit and as such they have the power to make awards that are binding and are deemed to be final.

These awards can only be overturned on a point of law this means only where the decision of the tribunal may be in error can an appeal be made. The tribunal also has the power to summon any person before to give evidence or produce documents and records in control of that person. Another function of the tribunal is that it may also administer an oath or take an affirmation of any witness appearing before it; the tribunal may conduct it hearing in private for the purpose of hearing evidence.

If industrial action is threatened or has begun and the dispute is referred to the tribunal it can order that such industrial action not take place or cease from such time. If the order is disobeyed, offenders may be prosecuted. No action may be taken against members of the tribunal in respect of action done during the course of operations. Where three of the members are selected to constitute a division of the Tribunal and the chairman is one of those members, he shall preside over that division, and where the chairman is not one of those members, a deputy chairman shall preside.

In addition where three members of the Tribunal constitute a division thereof and any one of those members dies or is incapacitated after the division begins to deal with the industrial dispute in relation to which it was constituted but before it has made its award, another person shall be selected in accordance with the provisions to fill the vacancy; thereafter the proceedings of the division shall be begun de novo unless all the parties to the dispute agree in writing that those proceedings may be continued as if they had not been interrupted by reason of such death or incapacity.

A division of the Tribunal may, by agreement between the chairman of the Tribunal and the parties to the dispute with which the division proposes to deal, be assisted by one or more assessors appointed by the employer or an organization representing the employer and an equal number of assessors appointed by the trade union representing the workers.

Where any division of the Tribunal is being assisted by assessors and any vacancy occurs in the number of assessors, that division may, by agreement between the person presiding and the party which appointed the assessor whose place has become vacant, either act not withstanding such vacancy or permit another assessor to be appointed by that party to fill the vacancy.

Any industrial action taken in contemplation or furtherance of an industrial dispute in any undertaking which provides an essential service is an unlawful industrial action unless that dispute was reported to the Minister in accordance and he failed to comply or that dispute was referred to the Tribunal for settlement and the Tribunal failed to make an award within the period specified in. The Minister may, as soon as he is satisfied that any unlawful industrial action in contemplation or furtherance of an industrial dispute in an undertaking which provides an essential service has begun, refer that dispute the Tribunal for settlement.

Where an industrial dispute exists in any undertaking which provides an essential service and the Minister is satisfied that the dispute relates to the appointment of any person to a public office or to removal of, or disciplinary action taken against, any person holding or acting in a public office, the Minister shall not refer the matter of that appointment, or removal or disciplinary action to the Tribunal but shall cause to be served on the parties directions in writing requiring them to follow, in respect of that matter, the procedure provided by or under the Constitution of Jamaica.