University of Technology Faculty of Law

Course: Assignment:

Labour Law Long Essay The most important terms in the employees contract derive for the majority of workers [are] not from an individual bargain with his

employer but from a collective agreement entered into by a union recognized for this purpose at his place of work, John Bowers By reference to decided cases and opinion writers, discuss the collective bargaining agreement, its processes, legislative or normative and judicial functions within the context of the Industrial Relations Regime in Jamaica.

Lecturer/Tutor:

Dr. K. Miller

Name: ID#: Date:

Tudy-Ann Green 1005687 December 14, 2012

1005687

Introduction John Bowers posits that the most important terms of an employees contract of employment are derived from a collective agreement entered into by a union recognized for this purpose at his place of work There are two important concepts that are introduced here - the collective agreement, and the (trade) union. From Bowers position, we can deduce that an employee is dependent upon the work of the trade union to effect the terms of their employment. Thus, one cannot exist without the other, they share a symbiotic relationship. In the proceeding paragraphs, we will seek to determine what collective bargaining entails; the role of trade unions in the process; the purpose of the process; and the normative and judicial functions of collective bargaining. The Jamaica Constitution Order 1962 states in section 23 (1) that no person shall be hindered in the enjoyment of his freedom of association, that is to say, his right to associate with other persons and in particular form or belong to trade unions or other associations for the protection of his interests. Additionally, section 4 (1) of the Labour Relations and Industrial Disputes Act of Jamaica 2003 (hereinafter referred to as the LRIDA) provides that every worker shall, as between himself and his employer, have the right(a) (b) to be a member of such trade union as he may choose; to take part, at any appropriate time, in the activities of any trade union of which he is a member; (c) not to be a member of a trade union.

In Banton and others v Alcoa Minerals Jamaica Incorporated and others1 we see these very provisions being questioned. The first named defendant Alcoa Minerals of Jamaica Incorporated, a bauxite mining company, undertook the construction of a bauxite and alumina plant in Clarendon. The company engaged a number of construction workers who were members of one or the other or both of the two major unions, the Bustamante Industrial Trade Union (hereinafter referred to as the BITU) and the National Workers Union (hereinafter referred to as the NWU).
1

[1971] 17 W.I.R. 275

1005687

The company and the two unions agreed that a poll should be taken to determine the question of representational rights. As a result of this poll the company recognised the BITU as the sole bargaining agent of all its workers and commenced negotiations with this union with a view to settling wages, conditions of work, and so on. The plaintiffs Fabian Banton, Devon Grant, Cecil Lewis and Joseph Wright claimed to be entitled to be represented by the NWU, the union of their choice, in any negotiations with the company and that, inter alia, the company's decision to recognise and treat with the BITU as the exclusive bargaining agent of all the workers created a situation in which they were being hindered in the enjoyment of their right of freedom of association in violation of the provisions of the Constitution of Jamaica. The plaintiffs submitted the following sections of the Jamaica Constitution: "13. Whereas every person in Jamaica is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely (a) life, liberty, security of the person, the enjoyment of property and the protection of the law; (b) freedom of conscience, of expression and of peaceful assembly and association; and (c) respect for his private and family life, The subsequent provisions of this chapter shall have effect for the purpose of affording protection to the aforesaid rights and freedoms, subject to such limitations of that protection as are contained in those provisions being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest." "23. (1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of peaceful assembly and association, that is to say, his
2

1005687

right peacefully to assemble freely and associate with other persons and in particular to form or belong to trade unions or other associations for the protection of his interests." "25. (1) Subject to the provisions of sub-s (4) of this section, if any person alleges that any of the provisions of ss 14 to 24 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for redress." The court held that the plaintiffs constitutional right to association was not infringed as (i) the right of freedom of association guaranteed under the Constitution of Jamaica insofar as trade unions are concerned involves no more than the right of a worker to join or to belong to a union of his choice; (ii) the right of a worker to join or to belong to a trade union of his choice does not include a right as against an employer to be represented by that union in negotiations with that employer; and (iii) there is no duty cast on an employer to recognise and treat with the union of an employee's choice. Thus, we see that there is synergy between the common law and statutes as it relates to trade union rights. Prior to the codification of the Constitution or the LRIDA, the Trade Union Act of Jamaica 1919 defined a trade union as, any combination whether temporary or permanent, for regulating the relations between workmen and workmen, or between masters and masters, or of imposing restrictive conditions on the conduct of any trade or business as would if this Law had not been passed, have been deemed to have been in restraint of trade. Thus, the main objective of a trade union is to define, promote and implement the collective interests and rights of workers in relation to employers. It is submitted that they also work in relation to the state and as a part of the wider society. Trade unions have many functions, all geared towards representing the interests of its members. It is submitted however that the most important function of the trade union is the process of collective bargaining. The LRIDA in section 3 defines collective bargaining as
3

1005687

negotiations between one or more organizations representing workers and either one or more employers, one or more organizations representing employers, or a combination of one or more employers and one or more organizations representing employers. Paragraph 16 (i) of the Labour Relations Code defines collective bargaining as the process whereby workers or their representatives and management negotiate with a view to reach agreement on the terms and conditions of employment of the workers concerned. The LRIDA sets the framework in which a trade union is able to represent the interests of its members. Section 4A states that Where the majority of the workers or a particular category of workers, in the employment of an employer, agree among themselves for a trade union to have bargaining rights in relation to them, the employer may recognize that trade union as having bargaining rights in relation to those workers without a ballot being take for the purpose of determining the matter. Additionally, section 5 provides that if there is any doubt or dispute (a) As to whether the workers, or a particular category of workers, in the employment of an employer wish any, and if so which, trade union to have bargaining rights in relation to them; or (b) As to which of two or more trade unions claiming bargaining rights in relation to such workers or category of workers should be recognized as having such bargaining rights, The Minister shall cause a ballot of such workers or category of workers to be taken for the purpose of determining the matter. We see therefore that every employee has the right under statute to be represented by a trade union. What then is the role of the trade union in the process of securing the terms of the

1005687

employment contract of its members? George Kirkaldy2 gives an accurate outline of the collective bargaining process in Jamaica. He states that a prerequisite for collective bargaining is the recognition of the trade union as the bargaining agent for the employees in the bargaining unit3. In other words, sections 4A and 5 of the LRIDA must be satisfied. He goes further to state that there must be a recognition on the part of both the employer and the union negotiator that moderation and goodwill must be present as well as an intention to conduct the negotiations in a civil manner so that the results may be optimal. Paragraph 16 (i) of the Labour Relations Code states that collective bargaining should be conducted in an atmosphere of reasonableness and good faith, and management and unions should take all steps to ensure that their representatives conduct themselves during negotiations in a manner which will avoid undue acrimony and facilitate the peaceful and orderly conduct of the negotiations. There should be a determination to abide by the terms agreed and due regard should always be paid to the interest of the community. Collective bargaining is a series of negotiations the process through which parties move from their divergent positions to a point where agreement may be reached. This point would be the representation of the best interests of all parties involved. Thus, the process takes time. Workers are kept aware of the negotiations by the workers delegates. Section 16 (ii) of the Labour Relations Code (the Code) provides that: collective bargaining is more meaningful if the parties are informed on the matters being negotiated. The parties should aim to meet all reasonable requests for information which is relevant to the negotiation in hand, and in particular, management should make available information which is supplied to their shareholders or published in annual reports.

At the end of the collective bargaining process, a collective bargaining agreement is arrived at. Paragraph 18 of the Labour Relations Code calls this agreement the major aim of the collective
2

George Kirkaldy, Industrial Relations and Practice In Jamaica (1 edn, Caribbean Law Publishing Company 1998) 15-30 3 See also the judgment of Graham-Perkins J in Banton and others v Alcoa Minerals of Jamaica Incorporated and others [1971] W.I.R. 275 at 283

st

1005687

bargaining process. As John Bowers puts it, the most important terms in the employees contract are derived from a collective agreement entered into by a union. Thus, the terms and conditions laid down in the agreement often contain procedural and substantive provisions4. Procedural provisions include (a) arrangements for negotiating terms and conditions of employment and provision for their re-negotiation; (b) grievance procedures for settling collective disputes and for dealing with disciplinary matters; (c) facilities for trade union activities in the establishment, and the appointment and functions of delegates; (d) provisions for joint permanent or ad hoc consultative committees.

Substantive provisions should state, inter alia, the duration of the agreement, remuneration, overtime, leave and redundancy provisions.

Usually, this agreement is not legally binding unless the parties agree that it should be. Though not judicially binding, the United Kingdom Employment Appeal Tribunal (which is, for all intents and purposes, similar to the Jamaican Industrial Dispute Tribunal) case of Corus UK Ltd v Anderson and Others5 outlines this point very well. In this case, shift workers alleged that they had rights to simplified pay structures incorporated into their employment contracts from a collective agreement. The tribunal sought to determine if the collective agreement was finalised before the employers indicated an unwillingness to apply its terms. Did the employers withdraw the offer before acceptance? The Employment Appeal Tribunal held that it was clear that it was not the plaintiffs intent that these terms would apply to shift workers as well. The offer had been withdrawn and that there was no contractual right to payment. The agreement could therefore not be a legal one.

It is important to note however that the court has found that even though the collective agreement is not legally binding, but represents a question of honour, the terms of the agreement

4 5

Paragraph 18, Labour Relations Code (2007) UKEAT 0624/06/DM

1005687

are enforceable as a legal contract if they have been incorporated into the employment contract. In National Workers Union & Collington Campbell v Jamaica Broadcasting Corporation a declaration was sought establishing that the dismissal of the employees of the news room department of the Jamaica Broadcasting Corporation be referred to arbitration "by virtue of a true interpretation of the terms of a collective labour agreement" entered into between the firstnamed plaintiff, the union representing the employees, of whom the second-named plaintiff is one, and the Jamaica Broadcasting Corporation. The agreement is in full force and effect. The trial judge stated that there was nothing, in form or content, which is inconsistent with the terms of the collective agreement being legal contracts, enforceable as such. To the contrary, they comply in all respects with the requirements of written legal contracts. He continues to say that ... they would be enforceable, not because the collective agreement is itself enforceable but, because the clauses are incorporated into the contracts of employment of the employees. I fail to see any practical difference. I hold that the collective agreements are prima facie legally enforceable.

In R v Industrial Disputes Tribunal and Shipping Association of Jamaica, the Shipping Association sought to quash an award made by the Industrial Disputes Tribunal. The complaint of the applicants was, that the Tribunal had by the terms of its award, attempted to re-opener vary the collective agreement between the parties, and in so doing, paid scant attention to the sanctity of that contract. They had awarded the port workers incentives and made them retroactive for two years. In making the award retroactive, the Tribunal had acted contrary to the terms of the collective agreement which precluded retroactivity. Additionally, the agreement which was made between the applicants and the Unions representing the port workers, provided in clause 1(a) that in case of termination or amendment of the agreement, not less than 93 nor more than 125 days notice in writing, must be given. The claim made was out of time thus the Shipping Association contended that the agreement was not enforceable.

In making a decision, the court contended that collective agreements have to be considered on their own facts. Where the terms are precisely stated and are certain, there is no reason in law why the intention to be bound by the terms, cannot be imputed to the parties. In fact Campbell J

1005687

in R v Industrial Dispute Tribunal ex parte Half Moon Hotel6 stated that unenforceability will only arise where the terms of the collective agreement were never intended to be enforced by order of Court. In this case the agreement was not justiciable. It was held that in the present collective agreement, there existed precise and certain terms with regard to retroactivity, and a limitation period as regards notice of claims. The Tribunal could not ignore those terms and endeavour to re-write the agreement for the parties. In the same way that a court is not permitted to re-write a contract for parties, by parity of reasoning, the Tribunal will not be permitted to act in this way. By their award, this is what the Tribunal did. Their true role should not be peace at any price, but peace that is just and honourable ... This case again shows that even though the collective agreement is not legally binding, it serves as a guideline, especially if the terms are clear and precise. In the interest of justice the court will give credence to it, as it is a representation of what both parties will, or have, agreed to. In fact, in acting in this capacity, it seems similar to the Labour Relations Code in the sense that it, too, is not legally binding but very instructive in the decisions made by the Industrial disputes Tribunal, whose decisions are legally binding. Thus, like the code, the collective agreement takes on a legal character. John Bowers proposition was an accurate description of the relationship between the employment contract, the trade union and the effect of collective bargaining. The purpose of the process is to provide a framework for peace and good governance within the workplace. Its end result, the collective bargaining agreement takes on a normative function as it outlines the protocol that must be followed to ensure justice to both the employer and employee, and judicial function in that as long as the terms of the collective agreement are clear and precise, they take on the character of a legal contract one that the court cannot rewrite.

(unreported)

1005687

References John Bowers. Bowers on Employment Law (4th edn, Oxford University Press 1997) Patrick Elias, Brian Napier, Peter Wallington. Labour Law: Cases and Materials (Butterworth & Company Publishers 1989) George Kirkaldy. Industrial Relations Law and Practice in Jamaica (1st edn, Caribbean Law Publishing Company 1998) Labour Relations and Industrial Disputes Act of Jamaica 2003 Labour Relations Code of Jamaica 2003