Labour Clause
Under section 4(1)(a) of the Labour Clauses (Concessions) Act 2024 (LC(C)A) - the Government may suspend or revoke a concession (e.g. a tax exemption) that has been granted to an employer - if the employer has failed to comply with a labour clause - in the 2nd Schedule of the LC(C)A) 2024. For example, the 6th labour clause states that -
"6. An employer shall recognize the freedom of their employees to be members of a registered trade union and recognize their right to bargain collectively."
If, e.g. an employer recognises the trade union, ABC, for the purposes of collective bargaining. And 60% and 35% of the employees in the bargaining unit are members of the trade unions ABC and XYZ respectively. Does the 6th labour clause mean that the employer must also recognise the trade union, XYZ, for the purposes of collective bargaining? (See the below comments dated May 2024.)
The 6th labour clause is not complemented by trade union recognition/derecognition legislation1.
Labour Law
The Government may also suspend or revoke a concession (e.g. a tax exemption) that has been granted to an employer - if the employer has failed to comply with a labour law, e.g. the Employment Rights Act 2012 (ERA). See section 4(1)(b) and the 3rd Schedule of the LC(C)A 2024.
The definition of a concession can be found in section 2 of the LC(C)A 2024.
Out-of-Court Settlements
The LC(C)A 2024 may provide an incentive for an employer to reach an out-of-court settlement for a labour clause/law claim. If one assumes, e.g. in the case of an unfair dismissal claim (UDC), that a Court must rule that the employer has failed to comply with the ERA 2012 - in order for a concession to be suspended or revoked. See section 2.4.2 Litigation or Out-of-Court Settlement? in the topic entitled Disciplinary Procedures (Barbados).
An employer may argue that the Government's suspension or revocation of a concession is an abuse of power - if the suspension or revocation is not based on a Court's ruling. Because only a Court has the legal authority to determine - whether or not an employer has failed to comply with the ERA 2012, e.g. whether a dismissal is unfair.
How will the LC(C)A 2024 Operate in Practice?
It is unknown how the LC(C)A 2024 will operate in practice. For example, if one assumes that a Court must rule that an employer has failed to comply with the ERA 2012 - in order for a concession to be suspended or revoked. Will the Government suspend or revoke a concession -
It is unknown how the LC(C)A 2024 will operate in practice. For example, if one assumes that a Court must rule that an employer has failed to comply with the ERA 2012 - in order for a concession to be suspended or revoked. Will the Government suspend or revoke a concession -
- After the Employment Rights Tribunal (or as the case may be after the Court of Appeal or the Caribbean Court of Justice) has ruled that an employer has failed to comply with the ERA 2012?
- Within a certain time-limit (e.g. one year) after a Court has ruled that an employer has failed to comply with the ERA 2012?
- By considering factors such as the size and resources of an employer - if the employer has failed to comply with the ERA 2012?
Hopefully, the practical operation of the LC(C)A 2024 will be explained by regulations made under section 6 of the LC(C)A 2024.
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1. Further information about trade union recognition can be found on the Ministry of Labour's website.
Please note that it is automatically unfair to dismiss an employee for a trade union membership reason: section 30(1)(c) of the Employment Rights Act 2012. And it is unlawful to discriminate against a person (e.g. a job applicant or an employee) on the grounds of their trade union affiliation: section 3(2)(d) of the Employment (Prevention of Discrimination) Act 2020.
13 comments:
Surely, a Minister does not have to wait for a court ruling if it is obvious that an employer has failed to comply with the disciplinary procedures?
Unlike a Court - the Government may not know all of the facts of the case. For example, there may be dispute about whether the claimant is an employee for the purposes of an unfair dismissal claim. Only a Court has the legal authority to resolve such a dispute. And the Court must do so as per the 1st Schedule of the ERA 2012.
In my opinion, the majority of the employees belong to ABC. Therefore, the employer does not need to recognize XYZ if it already recognizes ABC
The 6th labour clause is a legal right. The clause (or any other legislation) does not state that a trade union must have a majority of employees in order to be recognised by an employer. And it is arguable that the 6th labour clause supersedes or overrides any custom/tradition of voluntary trade union recognition.
It is also arguable that the 6th labour clause provides the right to employees to choose the trade union that they wish to negotiate on their behalf.
I believe that there must a certain level of trade union membership (e.g. at least 51%) for a trade union to be recognised by an employer.
The 6th labour clause must be complemented by trade union (TU) recognition/derecognition legislation. And such legislation, e.g. should clearly spell out the criteria and procedure for TU recognition, e.g. the level of TU membership required for recognition.
I think that the labour clause is aimed at non-unionized workplaces and not employers who already recognize a trade union. However, the labour clause could open the door for multi-unionized workplaces.
Does the labour clause apply to public sector employers? It is unlikely that a concession would be given or taken away from a public sector employer.
Section 2 of the LC(C)A 2024 does not draw any distinction between private and public sector employers or employees. And the Act does not expressly exclude public sector employers from its application.
It seems to be a double standard – if the 6th labour clause (or a minimum labour standard) applied to private sector employers – but not public sector employers.
The Act does not apply to public sector employers because the Act states that it is “An Act to make provision for conditions applicable to concessions granted to employers”. That is, private sector employers and not public sector employers. However, I agree with Tony’s points about a possible double standard and need for trade union recognition laws to quickly resolve any disputes.
The LCCA is a licence to treat employees badly if an employer can live without a concession and it is possible that a concession will not be withdrawn even if an employer breaches the LCCA.
The current dispute between the BRA and UWU proves that there is a need for union recognition laws.
I think that the LCCA will be ineffective if the cost of new minimum labour standards outweighs the value of a concession.
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