SAINT LUCIA REVIEW - International Labour … · particular, the ILO adopted in 2002 a Protocol to...

REVIEW AND ANALYSIS OF COMPLIANCE

OF THE NATIONAL LABOUR LEGISLATION OF SAINT LUCIA

WITH CARICOM MODEL LABOUR LAWS

May, 2007

By: Clive Pegus

Table of Contents I. Introduction..................................................................................................... 3

Legal status of CARICOM Model Law and ILO Conventions in Saint Lucia... 4 Legal Obligations of Saint Lucia ........................................................................ 6 Applicable Legislation of Saint Lucia ................................................................ 6

II. Termination of Employment........................................................................... 7 Scope of Application........................................................................................... 7 Contracts of employment.................................................................................... 7 Continuity of employment .................................................................................. 8 Protection of employment................................................................................... 8 Termination of employment ............................................................................... 8 Constructive dismissal ........................................................................................ 9 Burden of proof and remedies............................................................................. 9 Unfair dismissal .................................................................................................. 9 Redundancy and Severance Pay ......................................................................... 9

III. Registration, Status and Recognition of Trade Unions and Employers’ Organizations ........................................................................................................ 10

Introduction................................................................................................... 10 Scope of Application..................................................................................... 10

Freedom of association ..................................................................................... 11 Basic employee rights ................................................................................... 11

Freedom of association protection for employees ............................................ 11 Protection of trade union from employer interference.................................. 12 Basic employer rights ................................................................................... 12 No compulsion to join or not to join an organisation ................................... 13 Membership .................................................................................................. 13 Federation ..................................................................................................... 13 Remedies....................................................................................................... 13

Registration and Status ..................................................................................... 14 Registrar........................................................................................................ 14 Registration................................................................................................... 14 Annual returns............................................................................................... 16 Legal status ................................................................................................... 16

Review and Analysis of Compliance of the National Labour Legislation of Saint Lucia with CARICOM Model Labour Laws

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Safeguard for Members of Organisations ..................................................... 16 Application procedures ................................................................................. 16 Appropriateness of bargaining unit............................................................... 17 Employer recognition.................................................................................... 17 Poll ................................................................................................................ 17 Duty of fair representation ............................................................................ 17

IV. Equality of Opportunity and Treatment in Employment and Occupation 20 Objectives ......................................................................................................... 20 Status of ILO Conventions................................................................................ 20 Principles........................................................................................................... 20 Status of obligation in Saint Lucia.................................................................... 21

V. Occupational Safety and Health and the Working Environment.................. 23 Content of CARICOM Model Labour Law...................................................... 23 Scope of Application......................................................................................... 23 Registration of Industrial Establishments and Mines ....................................... 23 Administration .................................................................................................. 23 General Occupational Safety and Health Requirements................................... 24 Duties of employer, workers and other persons................................................ 25 Duties of Workers ............................................................................................. 25 Hazardous Chemicals, Physical Agents and Biological Agents....................... 26 OSH Committees .............................................................................................. 26 Notices .............................................................................................................. 26 Enforcement...................................................................................................... 26

VI. Recommendations..................................................................................... 27 Termination of Employment............................................................................. 27 Registration, Status and Recognition of Trade Unions and Employers’ Organizations .................................................................................................... 27 Equality of Opportunity and Treatment in Employment and Occupation........ 28 Occupational Safety and Health and the Working Environment...................... 28


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I. Introduction This study undertakes a detailed audit and assessment of the extent to which existing national legislation of Saint Lucia complies with the CARICOM model labour harmonization legislation 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 Conventions.

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 Labour Laws. While the primary focus of the study is concerned with compliance of Saint Lucia with the CARICOM model labour laws, comparisons are made with the applicable ILO Conventions. This approach has practical value in the light of Saint Lucia’s obligation under international law and ILO jurisprudence to comply with treaties that it has ratified and with core international labour standards and to submit periodic reports on such compliance to the Committee of Experts on the Application of Conventions and Recommendations. In fact, Saint Lucia’s obligation to comply with ratified ILO Conventions and core fundamental labour standards has greater legal force within Saint Lucia than that of its obligation with respect to the model legislation.


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This 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 Saint Lucia. The intention is to ensure that the legislation in Saint Lucia becomes fully compliant with the CARICOM model legislation and its 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 Saint Lucia, 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 Saint Lucia.

Recommendations are made regarding amendments required to address gaps and inconsistencies in Saint Lucia’s 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 purely technical assessment of the legislation against the benchmark of the CARICOM model legislation and relevant ILO Conventions. It is recognised that the soundness and practicability of the proposed amendments are matters to be determined the Government of Saint Lucia 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 Saint Lucia 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 Saint Lucia.

Legal status of CARICOM Model Law and ILO Conventions in Saint Lucia 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 model law 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 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 on the Law of Treaties prevents a party from invoking the provisions of its domestic law as justification for its failure to perform an obligation under the treaty. It should be noted that Saint Lucia has not ratified the Termination of Employment


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Convention, 1982 (No. 158) or any of the 18 core Occupational Safety and Health (OSH). In 2005 Saint Lucia ratified the Occupational Safety and Health (Dock Work) Convention, 1979 (No. 152). It should be noted also that the International Labour Conference at its Eighty-eight Session declared that all Members of the ILO, which includes Saint Lucia, 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, the principles concerning the fundamental rights which are subject to those Conventions, namely:

• freedom of association and the effective recognition of the right to collective bargaining;

• the elimination of all forms of forced and compulsory labour; • the effective abolition of child labour; and • the elimination of discrimination in respect of employment and

occupation. Thus, it is important from an international law perspective for the domestic law of Saint Lucia to be consistent with its international legal obligations. The question arises as to how a treaty or convention ratified by Saint Lucia becomes domestic law within the jurisdiction of Saint Lucia. Saint Lucia has a dualist and not a 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 or not a part of existing domestic law, requires the enactment of legislation. The process of legislation in Saint Lucia, as is the case of all Parliamentary systems of democracy, is at times time-consuming and cumbersome process. Saint Lucia may wish therefore to consider the adoption of the good practice of Belize, which provides through its International Labour Organization Conventions Act, Chapter 304:011 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 ILO Convention into domestic law. Of course, the automatic incorporation is subject to democratic and Parliamentary safeguards in that the treaty is laid before Parliament subject to negative resolution procedure. Parliament must have a say as to 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.

1 www.belizelaw.org


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Legal Obligations of Saint Lucia Saint Lucia therefore 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); • Right to Organise and Collective Bargaining Convention, 1949 (No. 98); • Discrimination (Employment and Occupation) Convention, 1958 (No.

111); • Equal Remuneration Convention, 1951 (No. 100);

Therefore one can argue that the provisions of these Conventions, which are relevant to this study, are not only international treaty law but also peremptory norms of international labour law. It should be noted that Saint Lucia has not ratified any of the core ILO Occupational Safety and Health Conventions. Applicable Legislation of Saint Lucia The statutes of Saint Lucia which seek to incorporate provisions relevant to the CARICOM Model Laws and the applicable ILO Conventions are:

Contracts of Service Act (1970) Registration, Status and Recognition of Trade Unions and Employers’

Organisations Act No. 42 of 1999 Equality of Opportunity and Treatment in Employment and

Occupation Act No. 9 of 2000 Employees (Occupational Health and Safety) Act No. 10 of 1985.


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II. Termination of Employment The stated objectives of the CARICOM model legislation on termination of employment 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 Saint Lucia is one of two CARICOM countries that have ratified the ILO Convention No. 158. Saint Lucia’s Contracts of Service Act No. 14 of 1970 addresses in a substantial manner the scope of issues contained in the CARICOM Model Labour Law or the ILO Convention No. 158, including terms and conditions of employment, continuity of employment, termination of employment, unfair dismissal, redundancy and severance pay, burden of proof and remedies. The relevant statute in Saint Lucia that seeks to give effect to the CARICOM Model Labour Law and ILO Convention No. 158 is the Contracts of Service Act, 1970. 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. The Contracts of Service Act, 1970 applies to all employees except a member of an employer’s family who is wholly or mainly maintained by and resides with the employer. Contracts of employment Section 5 of the Contracts of Service Act, 1970 requires an employer to provide a written contract with the following particulars:

(i) the names of the parties;


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(ii) the commencing date of employment; (iii) the scale or rate of remuneration and the method of calculating which

remuneration is to be paid; (iv) the intervals at which remuneration is to be paid; (v) any terms and conditions relating to hours of work; and (vi) length of notice which the employee is obliged to give and entitled to

receive to determine his/her contract of service. While Section 5 does not specify that the contract should have a provision for termination of the contract as specified in the CARICOM Model Law, the Act provides for termination of employment. Section 6 provides for a probationary period of twelve weeks, which falls within the scope of the CARICOM Model Labour Law. Continuity of employment Section 14 provides that for the purposes of retrenchment benefits, a worker is not treated as having been dismissed by reason of a renewal or re-engagement taking effect after an interval and his period of service shall be deemed to be continuous. Section 15 also makes provision for continuity of employment in the case of a change of ownership in the business. The only gap in the legislation regarding continuity of employment provision concerns the treatment of absences from work due to leave, suspension, and inability to work on account of occupational disease or accident. Protection of employment Section 6 (3) requires an employer to provide notice of termination of employment to an employee. The notice periods in the Act are slightly different from those in the CARICOM Model Labour Law and will require an amendment to achieve compliance. Termination of employment Section 7 provides for termination of employment. An employer may terminate a contract of service without giving due notice in the following circumstances:

(i) where an employee is guilty of misconduct whether in the course of his duties or not inconsistent with the fulfilment of the express or implied conditions of his contract of service;

(ii) for wilful disobedience of lawful orders given by the employer; (iii) for repeated substantial neglect of his/her duties; (iv) for absence from work without the permission of the employer or

without reasonable excuse; (v) for lack of skill which the employee expressly or by implication

warrants himself/herself to possess; (vi) abandonment of employment by employee; (vii) by agreement of the parties; (viii) by expiry of term of contract of service.


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These provisions are consistent with the CARICOM Model Legislation. Constructive dismissal Section 21 of the Act provides for constructive dismissal in terms consistent with the CARICOM Model Labour Law. Burden of proof and remedies The only provision on burden of proof and remedies is contained in Section 11 of the Registration, Status and Recognition of Trade Unions and Employers’ Organisation Act, and applies to the dismissal of an employee on account of his/her pursuit of lawful trade unions activities. Unfair dismissal There are provisions relating to unfair dismissal and remedies in Sections 5 and 11 of the Registration, Status and Recognition of Trade Unions and Employers’ Organisation Act. Redundancy and Severance Pay The Act makes adequate provision for redundancy and severance and change of ownership of business consistent with the CARICOM Model Labour Law.


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III. Registration, Status and Recognition of Trade Unions and Employers’ Organizations

Introduction 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 Legislation”) are:

(a) to give effect to the provisions of National Constitutions on freedom of association, the ILO Conventions on Freedom of Association, No. 87 (1948) and on the Right to Organise and to Collective Bargaining, No. 98 (1949);

(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), Saint and Nevis, together with all other CARICOM Member States 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 faith2. Saint Lucia has a modern Act on the registration and status of trade unions and employers’ organisations, which is patterned closely after the CARICOM Model Legislation. The Act is the Registration, Status and Recognition of Trade Unions And Employers’ Organisations Act No. 42 of 1999 (hereinafter referred to in this section on Saint Lucia as “the Act”). The Act has provisions on: (i) freedom of association; (ii) registration and status of trade unions and employers’ organisations; (iii) safeguard for members of organisations; (iv) recognition of bargaining rights; and (v) collective agreements. Scope of Application Section 3 of the Act limits exemption from its provisions of the Act to the protective services. Protective services is defined in the Act as including the Royal St. Lucia Police Force, the Port Police, the Fire Service and Her Majesty’s Prisons. The Act however does not prescribe that national regulations should

2 ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, Paragraph 2


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make provision for rights of association of police, fire and prison forces, as is required by Section 3 of the CARICOM Model Legislation. Freedom of association The Act in Part 11 on Freedom of Association makes provision for basic employee rights, freedom of association for employees, protection of trade unions from employer interference, basic employer rights, membership of trade unions and employers’ organisations, federations and remedies in terms consistent with the CARICOM Model Legislation. Basic employee rights Section 4 of the Act contains all the basic employee rights prescribed by the CARICOM Model Legislation. The Act provides that every employee has the right to:

(a) take part in the formation of any trade union; (b) be or not to be a member of any trade union; (c) take part in lawful trade union activities; (d) hold office in any trade union or federation of trade unions; (e) take part in the election of shop stewards; (f) be elected a shop steward or be a candidate for such election; (g) act in the capacity of a shop steward; (h) exercise any right conferred or recognised by this Act or any national

law and assist any employee, shop steward, safety representative or trade union in the exercise of such rights.

The only deficiency in the Act is that Saint Lucia laws contain no right of an employee to be a safety representative. There is no obligation in the Occupation Safety and Health Act 1985 imposed on an employer to make arrangements with employees and their organisations for the appointment of an employees’ safety representative within the workplace. Freedom of association protection for employees Section 5 of the Act extends on the relevant section of the CARICOM Model Legislation regarding freedom of association protection for employees. Not only does it make contain all the prohibitions and restrictions on employers’ conduct in relation to the basic rights of employers. It includes a provision (section 5 (2)) which is not contained in the CARICOM Model Labour Law which states that any contractual term which purports to exert any restraint referred to in subsection (1) is void, whether agreed to before or after the coming into force of the Act. Subsection (1) contains similar provisions as those prescribed in the CARCIOM Model Labour Law. Section 5 of the Act states as follows:


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(1) An employer or employers' organisation, and person acting on behalf of an employer or an employers' organisation, shall not with respect to any employee or any person seeking employment -

(a) require that he or she not join a trade union or relinquish trade union membership;

(b) discriminate or take any prejudicial action, including discipline or dismissal against such employee or person by reason of trade union membership or because of participation in lawful trade union activities;

(c) discriminate or take any prejudicial action, including discipline or dismissal, against such employee or person because of his or her exercise or anticipated exercise of any right conferred or recognised under this Act or under any national law on employment or labour relations;

(d) threaten such employee or person that he or she will suffer any disadvantage from exercising any right conferred or recognised under this Act or under any national law or under any collective agreement;

(e) promise such employee or person any benefit or advantage for not exercising any right conferred or recognised under this Act or under any law in force in Saint Lucia or under any collective agreement;

(f) restrain or seek to restrain such an employee or person, by a contract of employment or otherwise, from exercising any right conferred or recognised under this Act or under any national law on employment or labour relations, and any such contractual term which purports to exert any such restraint shall be void, whether agreed to before or after the coming into force of this Act;

Subsection (3) provides that nothing in this section shall be interpreted as preventing an employer from dismissing or otherwise disciplining an employee for a valid reason, in accordance with any law in force in Saint Lucia. Protection of trade union from employer interference The Act makes provision for the protection of trade union from employer interference on terms similar to that of the CARICOM Model Legislation. Section 6 of the Act prohibits any person from committing an act, which is designed to promote the establishment of an employees' organisation under the domination of an employer or employers' organisation, or to support employees' organisations by financial or other means with the object of placing such organisations under the control of employers or employers' organisations. Basic employer rights The basic employer rights guaranteed under the Act are similar to those contained in the CARICOM Model Legislation. The only difference is that the Act does not expressly provide that an employer is free from any obligation to employ members of a trade union. Section 7 of the Act confers on every employer the right to:


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(a) or labour relations, and assist any employer or employers' take part in the formation of any employers' organisation or association;

(b) be a member of any such organisation or association, and take part in its lawful activities;

(c) hold office in any such organisation or association; (d) exercise any and all rights conferred or recognised by this Act or

national law on employment association in the exercise of such rights. No compulsion to join or not to join an organisation Section 8 of the Act prohibits a person from seeking by the use of any threat or intimidation, compelling or coercing any other person to join or not to join, or to support or not to support any trade union or employers’ organisation. Membership The provision in the Act guaranteeing the right to every eligible person to membership of a trade union or employers’ organisation without discrimination is identical to that of the CARICOM Model Legislation. Section 8 of the Act provides:

(1) Any person eligible for membership in a trade union or employers' organisation or federation under its constitution has the right to membership in that organisation if he or she pays any fees that are properly payable to it, and such person has the right to remain a member as long as he or she complies with the rules of the organisation.

(2) No trade union or employers' organisation shall discriminate in its constitution or through its actions against any person on the grounds of race, sex, religion, ethnic origin, national extraction, colour, indigenous population, social origin, political opinion, disability, age, pregnancy, marital status or family responsibilities.

Federation Section 10 of the Act grants the right to a trade union or employers’ organisation to join, participate in, be affiliated to, contribute to or join any national or international federation of trade unions or employers’ organisations. Remedies The Act provides for remedies on terms similar to those contained in the CARICOM Model Legislation. Section 11 provides for the burden of proof in complaints relating to the violation of freedom of association measures for workers to be upon the employer to show that the dismissal or denial had no connection to the trade union membership or activities of the employee. Also, the Tribunal has the power to order reinstatement of an employee, if requested and deemed appropriate and the restoration of any benefit, entitlement, or advantage and an order for the payment of compensation.


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Registration and Status Registrar The Act requires for the appointment by the Public Service Commission of a person or body to be the Registrar of Trade Unions and Employers’ Organisation. However, the Act falls short in that it does not require the Public Service Commission to consult with the representatives of trade unions and employers’ organisation in the making of such appointment. Registration The registration requirements contained in the Act are similar to those of the CARICOM Model Legislation. It should be noted here that the membership requirement under the Act is thirty members for trade unions and ten members for employers’ organisations in contrast with seven and three respectively in the CARICOM Model Legislation. However the CARICOM Model Legislation gives the discretion of each country to determine the requisite minimum number of members for registration. It should be compliance with ILO Convention No. 87 would require an amendment of the membership level requirements to twenty for trade unions and six for employers’ organisation. Section 13 of the Act provides that:

(1) Every trade union and employers' organisation to which this Act applies shall be registered in accordance with this Act.

(2) The rights and benefits conferred by this Act upon trade unions and employers' organisations and their members may be exercised only if those organisations are registered in accordance with the provisions of this Part.

(3) Any thirty members or more of a trade union or ten members or more of an employers' organisation may by subscribing their names to the rules of the union or organisation and otherwise complying with the provisions of this Act, apply to the registrar for registration as a trade union or employers' organisation.

(4) Three copies of the constitution of the trade union or employers' organisation, duly authenticated by signature of the president or chairperson and secretary shall be submitted to the Registrar along with the application for registration.

(5) If the Registrar is satisfied in respect of an application under sub-section (3) that -

(a) the requirements of this section have been met; (b) the constitution is consistent with this Act and the Constitution of

Saint Lucia does not contain provisions, which are contrary to any law of Saint Lucia;

(c) the name of the trade union or organisation is not identical to that of any existing trade union organisation or so closely resembling such name as to be likely to deceive its own members or the members of the public,


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the Registrar shall forthwith register the trade union or employers' organisation and furnish it with a certificate of registration.

(6) Any person aggrieved by any refusal or failure to register the trade union or employers' organisation shall be entitled to apply to the Tribunal within thirty days for a determination by the Tribunal, which is a tripartite body appointed by the Minister of Labour.

(7) Any trade union or employers' organisation, which was registered prior to the commencement of this Act under a law in force in Saint Lucia at the time of registration, shall automatically be deemed registered under this Act and shall be furnished by the registrar with a certificate of registration.

The constitution of every trade union and employers’ organisation shall incorporate the same requisite information as contained in the CARICOM Model Legislation. The information is as follows:

(1) the name of the trade union or organisation; (2) the objects of the trade union or organisation; (3) the qualifications for membership; (4) provision for the office-bearers in the trade union or organisation among

whom shall be the president or chairperson, a secretary or general secretary and treasurer;

(5) provision for periodic elections to all offices and for the appointment of a temporary replacement if an office-holder becomes disqualified or incapacitated from holding office;

(6) provision for a general meeting open to all members, at least once every two years;

(7) a provision that any member or delegate may propose a resolution at a general meeting;

(8) the fees and other subscriptions payable, and the maximum period of arrears permitted before a member loses his or her good standing;

(9) the grounds on which an officer or member may be suspended or expelled from office or from membership, each ground being specified;

(10) the procedure for suspension or expulsion from office or from membership, including provision that the affected officer or member be fully informed in writing of the allegations against him or her, that he or she shall have a reasonable opportunity to meet those allegations and shall have the right of appeal;

(11) provision for the keeping of full and accurate records by the treasurer or other appropriate officer, for the annual audit of those accounts by an auditor appointed by the trade union or organisation who shall not be a member of that trade union or organisation, and for the availability to all members on request of full, audited annual statements of account;

(12) provision for the banking and investment of the trade union's or organisation's funds;


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(13) provision for the paying out of the trade union's or organisation's funds, including the authority to sign cheques;

(14) the conditions under which a member may become entitled to any financial benefit provided by the organisation;

(15) provision for the amending of the constitution; (16) the duration of its financial year; (17) the inspection of the register of members and other books of the trade

union or organisation by its members; (18) the manner of amalgamating with other trade unions or organisations; (19) the manner of dissolving the trade union or organisation.

Annual returns A trade union or employers’ federation has an obligation to submit an annual return in terms and conditions similar to those contained in the CARICOM Model Legislation. The return must include an audited annual financial statement. Legal status Consistent with the CARICOM Model Law, a registered trade union and employers’ organisation shall be deemed to be a body corporate with the capacity to contract and to hold property and to sue and be sued in its own name3. Safeguard for Members of Organisations The Act makes provision for compliance with constitution, improper election practices and deposit and safeguard of funds on terms similar to those contained in the CARICOM Model Law. Recognition of Bargaining Rights Application procedures The Act does not make provision for a tripartite body for certification. The Labour Commissioner has the authority to receive and determine applications for recognition as the exclusive bargaining agent of employees in a bargaining unit. This is not consistent with the CARICOM Model Law. All existing trade unions, which were recognised as bargaining agents immediately before the entry into force of the Act, are deemed to be recognised. Where there is no collective agreement in force and no trade union has been recognised for the bargaining unit, the application may be made at any time. The application must be in writing and include a description of the bargaining unit and facts upon which the trade union relies to demonstrate that the majority of employees in the bargaining unit wish to have the trade union recognised as their exclusive bargaining agent. An application is required to be determined as soon as

3 Section 18


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possible and not later than two months from the date of receipt by the Labour Commissioner. Appropriateness of bargaining unit The Labour Commissioner is required to determine the bargaining unit in accordance with the criteria outlined in the CARICOM Model Legislation. Section 26 lists these criteria, namely:

(a) the community of interest among the employees in the proposed bargaining unit;

(b) the nature and scope of the duties of the employees in the proposed unit; (c) the views of the employer and the trade unions concerned as to the

appropriateness of the bargaining unit; and (d) the historical development, if any, of collective bargaining in the

employer's undertaking. Employer recognition There are similar provisions in the Act for employers’ recognition of the trade union as the bargaining agent and certification that follows employer certification. Poll The Act provides similar provisions relating to the determination of the majority trade union by poll, employer duties in the conduct of the poll, and procedures following recognition relating to revocation of exclusive bargaining rights, substitution of the extant trade union party to existing collective agreements, right of appeal and access to employers’ premises. Section 28 provides that where one trade union has applied for recognition and the employer has communicated his or her agreement to recognise that trade union as the bargaining agent, the Labour Commissioner shall recognise the trade union. Section 29 provides that where two or more trade unions have applied in relation to the same bargaining unit, or where one trade union has applied and the employer has doubted entitlement, the Labour Commissioner shall carry out a secret poll among employees in the bargaining unit and shall recognise as the bargaining agent the trade union which is shown by secret poll to have the greatest support among the employees. This provision is more in accordance with ILO jurisprudence than the CARICOM Model Law, which has a proviso that the trade union with the greatest support must have received no less than 50% of the votes. Duty of fair representation There is no express duty in the Act requiring a trade union certified as the exclusive bargaining agent for a bargaining unit to provide full and proper representation of the interest of all its members in the bargaining unit with respect


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to their rights under the collective agreement whether they are fully paid-up members of the organisation. Collective Agreements The Act has provisions similar to those contained in the CARICOM Model Legislation relating to collective agreements, enforceability of collective agreements and successor rights and obligations. Section 42 of the Act provides as follows:

(a) A collective agreement shall – (a) be committed to writing and signed by the parties to the agreement; (b) contain the date on which it is to become effective; (c) contain effective procedures for the avoidance and settlement of rights and interests disputes which procedures may include a reference of any dispute to conciliation, mediation or arbitration;

(b) contain provisions for the settlement of all differences arising out of the interpretation, application and administration of the agreement;

(c) provide for such other matters as may be agreed between the parties to the agreement;

(d) be lodged with the Minister or his or her designate. Subsection (2) provides that nothing in this section shall affect the validity of a collective agreement, which is valid and existing immediately before the coming into force of this Act, and such agreement shall remain in force until it expires or is replaced by another collective agreement. With respect to the enforceability of collective agreements, section 43 of the Act provides as follows:

(1) A collective agreement is legally enforceable on a trade union and an employer that have entered into it and on every member of the recognised trade union or member of the bargaining unit for whom that trade union has been recognised, if the collective agreement is in writing and provides that the parties intend it to be a legally enforceable contract in its entirety.

(2) Where a collective agreement which is in writing contains a provision stating that the parties intend one or more parts, but not the whole of the collective agreement is a legally enforceable contract, then the specified part or parts shall be legally enforceable and the remainder shall not be legally enforceable.

(3) Any party to a binding collective agreement may apply to the Tribunal to enforce the provisions of the agreement.

There is no express provision which state that the provisions of an enforceable collective agreement are deemed to be incorporated into the employment contract


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of each employee who is a member of the signatory trade union or a member of the bargaining unit for whom that trade union has been certified. With respect to successor rights and obligations, section 44 of the Act provides that:

(1) If a business or a part of it is sold, leased, transferred, or otherwise disposed or – a. the purchaser, lessee or transferee is bound by all the proceedings

under this Act that were commenced before the date of the disposition and the proceedings shall continue as if no change had occurred; and

b. if a collective agreement is in force, it continues to bind the purchaser, lessee, or transferee to the same extent as if it had been signed by the purchaser, lessee or transferee.

(2) Where a dispute arises regarding the applicability of this section, an affected party may apply to the national court for a determination of the matter in accordance with this Act.

This section is in conformity with the CARICOM Model Labour Law.


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IV. Equality of Opportunity and Treatment in Employment and Occupation

Objectives The 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 Legislation”) 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 Equal Remuneration, No. 100 (1951) and ILO Convention concerning Discrimination in Employment and Occupation, No. 111 (1958). 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 Legislation 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;

(iii) the principles of unlawful discrimination and equality of opportunity shall also apply to the provision of goods, services and facilities, advertisements and application forms;


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(iv) the prohibition against unlawful discrimination applies both to workers and to persons seeking employment;

(v) 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;

(vi) measures to promote equality of opportunity of a temporary nature shall not be deemed unlawful discrimination;

(vii) employers have a duty to ensure equal pay 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.

Status of obligation in Saint Lucia Saint Lucia has an Equality of Opportunity and Treatment in Employment and Occupation Act, 2000, which complies fully with the CARICOM Model Legislation. It prohibits discrimination against employees and applicants in both the public and private sectors. The grounds of discrimination are race, sex, religion, colour, ethnic origin, social origin, political opinion, disability, family responsibility, pregnant state, marital status or age except for the purposes of retirement and restrictions on work and employment of minors or for the protection of minors. Section 4 provides that it is unlawful for any person who is an employer or any person acting or purporting to act on behalf of a person who is an employer, in relation to recruitment, selection or employment of any other person for purposes of training, apprenticeship or employment of any other person for purposes of training, apprenticeship or employment, to discriminate against that other person on the grounds listed in section 3(2) –

(a) in the advertisement of the job; (b) in the arrangements made for the purpose of determining who should be

offered that employment; (c) in determining who should be offered employment; (d) in the terms or conditions on which employment is offered; (e) the creation, classification or abolition of jobs.

It is also unlawful for an employer to discriminate against an employee on the grounds listed in section in section 3(2) –

(a) in terms or conditions of employment afforded to that employee by the employer;

(b) in conditions of work or occupational safety and health measures; (c) in the provision of facilities related to or connected with employment;


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(d) by denying access, or limiting access to opportunities for advancement, promotion, transfer or training, or to any other benefits, facilities or services associated with employment;

(e) by retrenching or dismissing the employee; (f) by subjecting the employee to any other disadvantage;

There are exceptions to section 3 for bona fide occupational qualifications consistent with the CARICOM Model Legislation. There are also provisions similar to CARICOM Model Legislation relating to temporary measures to promote equality, sexual harassment, professional partnerships, professional trade or other organisations, qualifying bodies, vocational training bodies, employment agencies, discrimination by subterfuge, advertisement and application forms. It should be noted however that there are two statutory provisions of other legislation that conflicts with the intent of the Equality of Opportunity and Treatment in Employment and Occupation Act, 2000. The Agricultural Workers (Minimum Wage) (Amendment) Order of 1977 stipulates different wage rates for men and women and the Contracts of Service Act, 1970 provides in section 11 (1) (a) for differential maximum age for men and women for the eligibility of severance pay.

It is submitted that these two statutory provisions may have to be amended in order to ensure compliance with the CARICOM Model Labour Law and ILO Convention No. 100.


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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 Legislations”) does not have among its 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. Content of CARICOM Model Labour Law There are provisions relating to:

(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.

The CARICOM Model Legislation applies to the State and all branches of economic activity and to all employers and workers in all branches of economic activity. Saint Lucia has not ratified any of the 18 core OSH Conventions nor the Protocol to Convention No. 155. Scope of Application Saint Lucia Employees (Occupational Health and Safety) Act, 1985 applies to all workplaces and to all employers and workers in all branches of economic activity, except for the Royal Saint Lucia Police Force. The Labour Commissioner has the power to grant exemption in writing from any provision of the Act or any Regulation or Order made there under in any case where he/she is satisfied that the provision is in the circumstances, impracticable or unnecessary. Registration of Industrial Establishments and Mines There is no statutory provision regarding the registration of workplaces or industrial establishments and mines with, or any notice to be sent to, the Minister of Labour or Labour Commissioner on the commencement of operations. Administration The Employees (Occupational Health and Safety) Act does not make any express provision for the appointment of inspectors to administer and enforce the Act and regulations. It however acknowledges a statutory role for the Labour Commissioner, the Chief Fire Officer and an Inspector. Section 6 empowers the


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Labour Commissioner to make adequate arrangements for the enforcement of the provisions of the Act and any Regulations, to immediately attend to all fatal accidents, other accidents involving serious injury and all dangerous occurrences and arrange for an investigation. He/she is also required to make recommendations to the Minister as the occasion demands for the prevention of accidents and injury to health in places of employment and the promotion of the safety, health and welfare of persons employed. In addition he/she has to submit an annual report to the Minister on the working of the Act. The only mention made in the Act to an Inspector is in section 55 (6) which empowers the Inspector to require an employer to make any alterations to he/she considers necessary in regard to escape in case of fire in any place of employment. There is no statutory requirement 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 Act relating 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. Section 23 of the Act prohibits a person under the age of eighteen years in the following processes and operations: -

(a) cleaning, lubricating or adjusting any machinery while in motion; (b) work on steam boilers, kilns, ovens (other than bakery ovens) or other

equipment involving exposure to high temperature; (c) work on machine tools and any other high speed machinery; (d) operation of cranes, winches and other lifting appliances; (e) operation of vibratory tools; and (f) work involving responsibility for the safety and health of other persons:

providing that such a person adequately instructed and supervised may be employed in any such process or operation for the purpose of apprenticeship or skill training. Section 32 provides for the adequate training and supervision of any person employed at any machine or plant or in any process. In addition, 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


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devices of an approved standard and adequate instruction in the use of such protective clothing or device. Duties of employer, workers and other persons An employer at any workplace shall ensure that:

(a) a safe, sound, healthy and secure working environment is provided as far as is reasonably practicable;

(b) a safe means of access to and egress from any place of work; (c) risks of accident and injury to health do not arise as a result of the

handling, storage, transport, use and disposal of dangerous substances; (d) employees are provided with information, training and supervision

necessary to ensure that their protection against risk of accident and injury to health;

(e) an adequate provision of first aid facilities in places of employment under his/her control.

There is no statutory requirement for the employer to take every reasonable precaution for the protection of the general public who comes into contact with the worksite. In addition, the employer has no statutory duty to ensure that a written occupational safety and health policy is prepared and reviewed annually in consultation with the Occupational Safety and Health Committee or safety representative. There are also no special provisions relating to the protection of pregnant women. In addition, there are no special provisions relating to the duties of suppliers of machinery, equipment, materials and facilities or duties of owners of workplaces. Duties of Workers Section 4 provides for general duties of workers. Every employee shall -

(a) take reasonable care for his safety and health at all times and also that of any other person who may be affected by his acts or omissions at work;

(b) co-operate with his/her employer in the carrying out of all duties and requirements imposed by the Act;

(c) not deliberately misuse or interfere with the operation of any safety device or other appliance provided for his protection or that of others;

(d) ensure, so far as is within his/her control, that risks to himself/herself, to others and to the environment do not arise as a result of the handling, storage, transport, use and disposal of dangerous substances;

(e) make proper use and take care of personal protective clothing and any other equipment provided for his/her own protection;

(f) report forthwith to his/her immediate superior any defect which he/she may discover and which, in his/her opinion, may be a cause of accident or injury to health; and

(g) report forthwith to his/her superior any accident or injury to health that he/she has suffered.


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There is no specific statutory right of a worker 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. However, section 5 of the Act protects an employee from disciplinary action taken against him/her for any thing done or provided under the Act or any Regulation or Order made under it. 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. 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. OSH Committees There is no statutory requirement for an employer to make arrangements with the recognised trade union(s) or workers’ representative for the appointment of a Joint OSH Committee where the workplace has more than twenty workers or for the appointment of a safety representative from among the workers where the workplace has less than twenty but more than five workers. Notices The employer has an obligation to notify forthwith the Labour Commissioner where a person is killed or critically injured from any cause at the workplace4. Section 19 requires any employer who knows, believes or suspects that a case of occupational disease has occurred among his/her employees shall forthwith send written notice to the Labour Commissioner as soon as he knows it. A similar statutory duty is imposed on any doctor attending a patient known or suspected to be suffering from an occupational disease. Enforcement Under section 22, the Minister of Labour may direct a formal investigation into any work-related accident. The person holding such investigation shall have the power to enter and inspect any place of employment necessary for carrying out the investigation, require the attendance of any person they see fit to examine, require the production of any relevant document and administer an oath. The Minister also has the power to make Regulations for the prevention of accidents and injuries to health in places of employment and for the provision of the safety, health and welfare of persons employed.

4 Saint Lucia Employees (Occupational and Safety) Act, 1985 section 18


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VI. Recommendations

Termination of Employment In order for Saint Lucia’s statutes to comply fully with the CARICOM Model Labour Law, the following amendments will be required with respect to its Contract of Service Act, 1970:

(i) Section 5 should be amended to include a requirement that all contracts of employment should have a provision for termination of the contract.

(ii) Section 6 (3) should be amended to harmonise the periods of notice by an employer to an employee with the relevant provision of the CARICOM Model

(iii) There needs to be amendment to require that the provisions of an enforceable collective agreement are deemed to be incorporated into the employment contract of each employee who is a member of the signatory trade union or a member of the bargaining unit for whom that trade union has been certified.

Registration, Status and Recognition of Trade Unions and Employers’ Organizations In order for Saint Lucia’s statutes to comply with the CARICOM Model Labour Law, the following amendments are required with respect to the Registration, Status and Recognition of Trade Unions and Employers’ Organisation Act:

(i) National regulations should make provision for rights of association of police, fire and prison forces, as is required by Section 3 of the CARICOM Model Legislation.

(ii) There should be a provision, which requires the Public Service Commission to consult with the representatives of trade unions and employers’ organisation in the appointment of the Registrar of Trade Unions and Employers’ Organisations.

(iii) The Act does should repeal the authority of the Labour Commissioner to receive and determine applications for recognition as the exclusive bargaining agent of employees in a bargaining unit and vest such authority in a tripartite body.

(iv) There should be an express duty in the Act requiring a trade union certified as the exclusive bargaining agent for a bargaining unit to provide full and proper representation of the interest of all its members in the bargaining unit with respect to their rights under the collective agreement whether they are fully paid-up members of the organisation.

N.B. Compliance with ILO Convention No. 87 would require an amendment of the membership level requirements to twenty for trade unions and six for employers’ organisation


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Equality of Opportunity and Treatment in Employment and Occupation The Agricultural Workers (Minimum Wage) (Amendment) Order of 1977 stipulates different wage rates for men and women and the Contracts of Service Act, 1970 which provides in section 11 (1) (a) for differential maximum age for men and women for the eligibility of severance pay should be amended to conform with the principle of equal remuneration for work of equal value. Occupational Safety and Health and the Working Environment In order for Saint Lucia’s statues to be fully compliant with CARICOM Model law, the following amendments are required with respect to its Employees (Occupational Health and Safety) Act, 1985:

(i) The exemption granted to the Royal Saint Lucia Police Force should be repealed.

(ii) There should be a statutory provision regarding the registration of workplaces or industrial establishments and mines with the Minister of Labour or Labour Commissioner.

(iii) There should be a statutory requirement 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.

(iv) There should be a statutory requirement for an employer to take every reasonable precaution for the protection of the general public who comes into contact with the worksite.

(v) A statutory duty should be imposed on an employer to ensure that a written occupational safety and health policy is prepared and reviewed annually in consultation with the Occupational Safety and Health Committee or safety representative.

(vi) Special provisions should be made for the protection of pregnant women.

(vii) There should be special provisions relating to the duties of suppliers of machinery, equipment, materials and facilities or duties of owners of workplaces, in line with the CARICOM Model Labour Law.

(viii) There should be a statutory requirement for an employer to make arrangements with the recognised trade union(s) or workers’ representative for the appointment of a Joint OSH Committee where the workplace has more than twenty workers or for the appointment of a safety representative from among the workers where the workplace has less than twenty but more than five workers.

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