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Tiffany Grant

Administrative law

Lecturer: Miss Fflolkes Abrahams

Date: April 2011

Topic The historical history of the Industrial Tribunal, Jurisdiction and the statutory basis of the
tribunal in Jamaica:

In order to understand the industrial tribunal in Jamaica it is important to know the historical
history behind it and what it entails. The Industrial Dispute Tribunal was established under s.7
(1) of the Labour Relations and Industrial Dispute Act 1995. Failure to comply with the
decisions of the tribunal can result in prosecution by the Resident Magistrate Court. In the case
of disputes concerning equal pay, an officer conducting preliminary investigation into, and
medication of, the complaint can require employers to finish him/her with wage sheets, records
of remuneration or occupation. On conviction for contravening the equal pay clause, the
employer is liable to either a fine or imprisonment with or without hard labour.

The industrial dispute tribunal in Jamaica consists of the water tribunal and the transportation
tribunal, settle disputes regards to areas, many claims and disputes not settled by the courts are
done by tribunals each specializing in a particular area land, water etc. Tribunals were in
existence long ago as ‘1799’ and have grown rapidly during the Second World War.

The Tribunals and Inquiries Act 1992 requires reasons for decisions to be given by tribunals, and
allows for appeals to the High Court from most tribunals. The Council on Tribunals, which is
appointed by the Lord Chancellor, and has 15 members including, ex-officio, the Parliamentary
Commissioner for Administration, was established by the 1958 Act (and followed a
recommendation of the Franks Committee in 1957). It requested more powers in 1980, but was
refused. It was designed to "keep under review tribunals" and "report on matters referred to it by
the Lord Chancellor". It has consultative and advisory powers, but no administrative powers,
which the Franks Report recommended.

The Labour Relations And Industrial Dispute Act s 4 states that failure on the part of any person
to observe any provision of a labour relations code which is for the time being in operation shall
not of itself render him liable to any proceedings; but in any proceedings before the Tribunal or a
Board any provision of such code which appears to the Tribunal or a Board to be relevant to any
question arising in the proceedings shall be taken into account by the Tribunal or Board in
determining that question. 4.-(I) Every worker shall, as between himself and his employer, have
the right- (a) to be a member of such trade union as he may choose; (b) 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. (2) Any person who- (a) prevents or deters a worker from exercising
any of the rights conferred on him by subsection (1); or (b) dismisses, penalizes or otherwise
discriminates against a worker by reason of his exercising any such right, shall be guilty of an
offence and shall be liable on summary conviction before a Resident Magistrate to a fine not
exceeding five hundred thousand dollars. (3) Where an employer offers a benefit of any kind to

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any workers as an inducement to refrain from exercising a right conferred on them by subsection
(1) and the employer- (a) confers that benefit on one or more of those workers who agree to
refrain from exercising that right; and withholds it from one or more of them who do not agree to
do so, the employer shall for the purposes of this section be regarded, in relation to any such
worker as is mentioned in paragraph (h),as having thereby discriminated against him by reason
of his exercising that right.

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.

It is important to note that 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

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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 proceed 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.

The power of the industrial tribunal is to 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.

It is important to note that a tribunal will normally compromise a legally qualified chairman and
two members able to represent a range of relevant interest. For example, as is the case with
industrial tribunal or Employment Tribunal, the interest of trade unions on the one hand and

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employers on the other hand. Unless Statute provides otherwise a tribunal may determine a
question by a majority of decisions. A decision will normally be arrived at by all members
meeting together. Indeed a failure to do so can render a decision a nullity. This can be illustrated
in R v Department of Health ex pate Bhaugeerutty (1998) The Times 1 May Queen’s Bench
Division (Harrison j). The facts are that the applicants were proprietors of a residential home in
Walsall MBC determined to cancel the registration of the applicants’ home under s10 of the
Registered of Homes Act 1984. The applicants appealed against this decision to the Registered
Homes Tribunal. The tribunal comprised judge Harwood QC as a chair, and two lay members.
The chair produced a draft decision, but was prevented from meeting with the two lay members
to discuss it because of an illness from which he subsequently died. In a statement produced
prior to his death he indicated that even if the two lay members of the tribunal determined to
disagree with him his decision would not alter. Notwithstanding that the members of the tribunal
had not met together consider the decision of appeal the Department of Health decided to act
upon the majority decision of the two lay members. The applicants thereupon sought judicial
review to quash the decision. It was held that the applicant would be allowed and the decision to
promulgate the ruling quashed. Given that the evidence revealed a divergence of opinion
between the chair, had he been given the opportunity, would have used his experience and
knowledge to persuade the lay members, around to his point of view. In any event, the court
agreed with counsel for the applicants to the effect that the two lay members acting together did
not constitute a proper tribunal as envisaged by the 1984 Act. In terms of Tribunal procedure
great progress has been made towards a standardization of tribunal procedure.

Although in theory, an Act providing for a tribunal can specify a particular procedure to be
followed (usually as designated in delegated legislation made by the relevant minister or
authority), the trend is towards following a model procedure. The Human Rights Act 1998 s
7(11) further provides that: the minister who has power to make rules in relation to a particular
tribunal may, to the extent he considers it necessary to ensure that the tribunal can provide an
appropriate remedy in relation to an act or (proposed act) of a public authority which is (or
would be) unlawful as a result of section 6(1), by order add to- (a) the relief of remedies which
the tribunal may grant; or (b) the grounds on which it may grant any of them.

In this previous case it clearly explains the role of an employment tribunal. The facts are that a
dance teacher from Bristol has won his case race discrimination against Bristol City Council in a
Judgement of the Bristol Employment Tribunal released today. Ripton Lindsay was banned
from teaching in all Bristol schools after preventing unruly behaviour in his classroom. He was
accused of using excessive force which he has always denied. He was subsequently cleared by
Bristol magistrates who praised his exemplary manner. The head teacher, Ms Susan Eriksson,
who was not present at the time of the incident, told him “This is not how we do it in British
Schools”. Mr. Lindsay is from Jamaica. The tribunal concluded that Ms Eriksson made a snap
judgement that as a Caribbean man he was in the wrong. Mr. Lindsay was severely upset by this
remark and the failure of Bristol city Council to investigate the incident. The tribunal concluded
that the failure to investigate the head teacher's remarks and how he came to be charged with
assault after preventing fighting in the classroom amounted to race discrimination. No other
satisfactory reason was given by the school or the council. The tribunal described this failure by
Bristol City Council as "lamentable and wholly inadequate and frankly quite scandalous". The

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tribunal found that there was insufficient training in the school for dealing with such incidents
and that there was abject failure on the part of the council’s officers.

The common law rules of natural justice apply to tribunals, just as they do any other
administrative body exercising quasi judicial powers. Broadly, the common law would require
adherence to a number of the following basic principles, to a lesser or greater extent depending
on the context of the case. To the extent that these matters are dealt with in the procedural rules
laid down for any particular tribunal they can be assumed to have displaced the common law. A
person appearing before a tribunal should be given proper notice of the scheduling of the
hearing, and where appropriate adequate notice of the case against him.

Tribunals can be criticized as lack of openness- meetings are held in private the facts that some
tribunals are held in private can lead to suspicion about the fairness of their decision.
Unavailability of legal aid- full civil legal aid is available for only few tribunals. And also, the
reason for decisions are not always given does not have to follow strict rules of precedent.
Moreover, a number of significant criticisms can still be aimed at the tribunal system. There is no
standardized procedure before tribunals despite the efforts of the council on Tribunals. Not all
tribunals have an appellate body that can provide for a rehearing. The non – availability of legal
aid must undoubtedly prejudice the less able litigant. Training for, and co-ordination of, tribunal
members could undoubtedly be improved. Finally, concern inevitably persists over the extent to
which some tribunals can truly be said to be independent of government departments, when they
sometimes hold their sittings in the same building as that occupied by the department, and are
staffed by civil servants. Ministers still exercise considerable control over tribunals by
appointing members, and deciding not to re-appoint members when their period of service
expires.