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Industrial Disputes Tribunal

 

ARBITRATION AND THE INDUSTRIAL DISPUTE TRIBUNAL IN JAMAICA


  • Historically, the concept of arbitration is not new to industrial relations in Jamaica. Before the enactment of the Labour Relations and Industrial Disputes act (LRIDA) in 1975, the conduct of industrial relations was subject to agreement and voluntary action, except in areas regarded as essential. The Public Services Arbitration (PUUPSA) law dealt with services that were deemed essential. In addition, the Trades Disputes Arbitration and Enquiry Law provided for the appointment of arbitrators in both the public and private sectors. Arbitration Tribunals were ad hoc and appointed for each dispute.


  • 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. The law applied to certain essential services such as:-

    • Water

    • Gas

    • Health and

    • Transportation.


  • 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. The PUUPSA law was repealed and incorporated into LRIDA that sought to correct the omissions.


  • There was also a law known as the Disputes (Arbitration and Enquiry) Act that allowed for the appointment of an arbitrator(s) and a board of enquiry into disputes.


  • The recommendations of the Board were not binding on the parties.


  • This law also provides for the appointment of an Arbitration Tribunal by the Governor to settle disputes.


  • This law was also repealed and incorporated in the LRIDA.


  • Therefore, the Industrial Disputes Tribunal had its genesis in the LRIDA that provided for its establishment.


  • Most of the laws that were passed at this time (1970s) were in response to the increase in industrial disputes and disharmony that occurred in 1983.


  • A royal commission was appointed and it was reported by Major Orde Brown in “Labour conditions in the West Indies” (1939), that the evidence taken by the commission tended to show that the labour movement was aggravated by the absence of good labour laws and tribunals suited for the easy settlement of labour disputes.


  • As such, the LRIDA was later passed and other laws including the Employment (Termination and Redundancy Payments) Act, 1974.


  • The Minister of Labour may refer disputes to the Tribunal under the following circumstances:-


    • If he is satisfied that attempts were made, without success, to settle the disputes by other means available.


    • If all circumstances surrounding the dispute constitute such an urgent situation that it would be expedient so to do.

    • If it is an essential service and unlawful industrial action is occurring.


    • Where parties request that the matter be referred to the Tribunal after exhaustion of other procedures.


A fundamental principle underlying the action of the arbitrator is that he must act fairly.


  • The procedures for dealing with an industrial dispute referred for arbitration to the IDT are as follows:-


    • The Secretary of the IDT advises the parties that a matter with a stated terms of reference has been referred to it by the Minister of Labour.


    • Parties are summoned to a preliminary hearing where industrial action is taking place or threatened (usually a mutually agreed date).


    • A division of the Tribunal constituting the Chairman and two other members conducts the hearing. A secretary and one or two recording steno typists are also required to be present.


    • Undertakings from both parties are given to supply written briefs within a specified time. If parties are unable to supply briefs, by the deadline, parties must request an extension of time in writing.


    • The company and/or union may wish to be represented at the hearing by an Attorney-at-Law or Consultant.


  • Once briefs are submitted the Tribunal will schedule a meeting. Opening submissions are usually taken from the aggrieved side, usually the union, who will begin the hearing. Where the dispute relates to the collective agreement, the union usually speaks first and the employer speaks first on disciplinary matters.


  • Witnesses are summoned, documents presented and all relevant evidence submitted in support of the case.

  • Upon completion of the hearing, an award is handed down. At least two members of the division (a simple majority) must sign the award to make it binding. Where all three members disagree, the Chairman hands down the Award. An Award may be retroactive but it must not precede the date when the dispute first arose.


  • The award is to be made within 21 days after reference or if it is impracticable to make the award within that time, it is to be made as soon as may be practicable with the agreement of the parties.


  • The Minister or the parties may seek interpretation of the award.


  • 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 will parties furnish the Tribunal with a copy of the signed agreement and also a letter of request to the Minister to withdraw the dispute.


  • Awards: arbitrators are governed by the Terms of reference. The Tribunal must ensure that awards are capable of being implemented. E.g. fringe benefits like vacation leave should be made effective from the date of the award or subsequently, as they cannot be implemented retroactively.


  • A minority report may be submitted if there is a disagreement among members of the Tribunal about the terms of the award. If all three disagree, then the award may be handed down by the chairman. The member 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 may be damaged or where the arbitrator feels it necessary to set out his reasons. His disagreement is recorded on the award document.



POWERS OF THE TRIBUNAL:


  • Make awards that are binding and final. These awards can only be overturned on a point of law.


  • 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.


  • It has the power to summon any person before it to give evidence or produce papers and records in control of that person.


  • It may administer an oath/take affirmation of any witness appearing before it.


  • It may conduct its hearings in private for the purposes of hearing evidence.


  • No action may be taken against members of the Tribunal in respect of action done during the course of operations.


  • It can conduct its hearings with the presence of one party if the occasion arises (exparte hearings).


  • IDT is not required by law to give reasons for its awards but it may do so where it is deemed necessary.


HOWEVER, the Tribunal cannot:


  • Make an award that is inconsistent with any law involving wages, conditions of employment and hours of work.

  • Make an award that is inconsistent with the national interest.



 
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