By Barbara Gayle, Staff ReporterTHE JAMAICAN Court of Appeal has ruled that there is no legal authority for employers to inform or consult trade unions representing workers, when there are impending redundancies - in what is being described by some legal minds as an 'explosive ruling'.
It was the court's finding that the Ministry of Labour did not have the power either under the Labour Relations and Industrial Disputes Act (LRIDA), or its companion Act, the Employ-ment (Termination and Redundancy Payments) Act, to make provision in the Labour Relations Code for the employers to have consultations with the unions.
The disclosure was made by the court this month when it upheld an appeal brought by the Institute of Jamaica. The institute had contended that the Judicial Review Court erred when it upheld a ruling of the Industrial Disputes Tribunal (IDT), that a temporary worker was unjustifiably dismissed and should be reinstated.
Section 11 of the code has placed an onus on employers to consult with the unions when there are going to be redundancies.
This latest ruling of the Court of Appeal has contradicted other rulings made by the court over the years, including that of the Jamaica Flour Mills Ltd., which was handed down last year.
The point of law is likely to be decided by the Judicial Committee of the Privy Council of the United Kingdom as similar issues were raised in the case involving the Jamaica Flour Mills Ltd., (JFM), and the National Workers' Union and the IDT and the workers who were made redundant in 1999. In the JFM's case another panel of the Court of Appeal held in June last year that the JFM had breached the code because it did not have consultation with the union before the redundancy took place. The JFM is taking the case to the UK Privy Council.
A panel composed of Mr. Justice Henderson Downer, Mr. Justice Donald Bingham and Mr. Justice Seymour Panton, heard the institute's appeal. Mr. Justice Downer, in handing down the unanimous decision on April 2, 2004, said that "although there is a presumption of validity with respect to subsidiary legislation, the ultra vires principle is applicable to the provision of the code. There are statutes and authorities pertaining to labour relations that cannot be expanded or curtailed by the code if section 3 of the Act (LRIDA) did not specifically or by necessary intendment, so authorise. For example, there is a companion Act dealing with redundancy - The Employment (Termination and Redundancy Payments) Act, and it is questionable whether paragraph 11 of the code dealing with redundancy is within the scope of section 3 of the Act."
