President of the Industrial Court Heather Seale believes that changes in T&T’s labour laws must reflect the changes in the economy and other social and technological trends.
Speaking at a seminar entitled “Beyond Bargaining: Building Sustainable Workplaces in T&T” at the Arthur Lok Jack School of Business, Mt Hope on June 18, Seale said some of the recent trends in labour law reform in other jurisdictions indicate a greater focus on inclusivity, non-discrimination and diversity in the workplace.
“Both legislative reforms as well as judicial interpretations have sought to fortify the rights of marginalised groups, encompassing gender, race, sexual orientation and disability. Teleworking or remote work and the gig economy are changes in how work is performed that have prompted legislative change in other jurisdictions. They are areas that we may wish to consider and provide for in any legislative reform of our labour laws,” Seale said.
She added that modern labour laws and policies must address the challenges of ensuring a safe work environment for remote workers, encompassing ergonomic considerations, mental health and the right to disconnect.
“Remote work requires special attention to ensure that the obligations of parties are clear.
“For example, how do we define a workplace? When is a worker on active duty? What is a workplace accident? Whose obligation is it to provide a safe place of work, when the work is being performed at the worker’s home? These may sound as trite and simple questions but similar questions have engaged the minds of judges in other jurisdictions. I would suggest that in the absence of legislation, these and similar questions should be in the contemplation of employers, unions and employees when settling Management Policies or when negotiating collective agreements. This approach may well minimise disputes in these areas and would go some way in filling the gap until our labour laws are updated.”
She said gig workers, whom society would refer to generally as independent contractors, face hurdles in organising and bargaining collectively.
“Some jurisdictions are exploring innovative solutions, such as sectoral bargaining or platform cooperatives, to address the collective bargaining rights of gig workers. Our approach has been to exclude such workers from the definition of ‘worker’ under the IRA, but this has been used in the past by some employers to surreptitiously avoid their obligations to persons who are really workers but whom may unwittingly agree to sign a contract for service. “
She also referred to Artificial Intelligence (AI) and said organisations are increasingly adopting AI and automation technologies.
“These technologies have substantial implications for the workforce and may be even more severe in economies such as ours. While AI systems can analyse vast amounts of data to streamline decision-making processes, automate routine tasks, and enhance overall productivity, these advancements may prove costly in terms of job displacement. AI also raises a number of ethical and similar considerations, such as potential biases in algorithmic decision-making, and privacy concerns.”
She added that AI seems certain to be a part of the future of the world of work and industrial relations in T&T.
“Until our laws provide specifically for the use of AI, employers and unions would be well advised to have policies and collective agreements which govern its use at work.”
Seale said striking a balance between ensuring productivity and respecting employees’ right to privacy becomes a key challenge for modern labour law.
“The use of biometric data, such as fingerprints or facial recognition, and wearable technology in the workplace is becoming more prevalent. Use of biometrics for access control, attendance tracking, or monitoring employee health. The collection and storage of such biometric data raise privacy issues, as this data is often sensitive and requires robust protections to prevent misuse. Our labour laws must confront all of these issues to ensure workers’ rights are protected while at the same time not tying the hands of employers in their quest to increase productivity and become more competitive.”
She believes that globalisation which has facilitated the movement of labour across borders, brings with it cross-border employment arrangements, which pose their own peculiar challenge in the form of complex cross border employment dynamics.
“These arrangements may lead to diverse workforces, which involve remote work across borders, challenging traditional notions of employment, and raising jurisdictional issues and can result in a lack of protection for workers. The answer may lie in cross-border litigation.”
In conclusion, Seale said that the future of T&T’s industrial relations climate, requires a concerted and honest effort by all stakeholders to confront the present reality, tackle the areas of shortcoming in the laws, workplace policies and collective bargaining, that have not adequately kept pace with issues arising out of the use of technological changes and climate changes etc.
“Commitment to a tripartite approach should not depend on personalities but on principles because we all are really in this together. We can learn from the experiences of others and draw upon them in reforming our own laws and policies and tailoring them to suit our specific circumstances.”
Labour law reform
Seale referred to the International Labour Organisation (ILO) which in a Subregional Labour Law Training Workshop in 2023 addressed the reasons for labour law reform and what they recommend as the best approach.
Some of the reasons they posited for labour law reform which she agrees with, include:
a) Labour laws may be failing to achieve their objectives because they do not “fit” well with labour market conditions. This may be because they were inherited or borrowed;
b) To address concerns/problems that have emerged in the labour market because of changes to employment practices (e.g., growth in indirect, temporary employment) and that need to be addressed through law reform;
c) To reflect changes in societal values (e.g., discrimination at work, work/ family balance);
d) To address deficiencies in the law that have been highlighted by legal cases or practices; and
e) To improve compliance with fundamental and ratified ILO Conventions.
She also said the ILO in the same session indicated that in its experience labour law reforms that have been crafted through an effective process of tripartite consultation prove more sustainable because this approach allows for consideration the complex set of interests at play in the labour market. In addition, they can ensure a balance between the requirements of economic development and the social needs.
Impact of globalisation
Labour specialist and assistant general secretary of the Joint Trade Union Movement (JTUM) Trevor Johnson, who also spoke during the seminar ,said in this era of employment relations, companies and organisations have to reconcile a number of factors from an inexhaustible list of considerations which include:
-Organisations are encouraged to think global rather than local;
-Global corporations appear to have virtual rather than local offices. HR direction is often resident in a global office;
-Artificial Intelligence, automation, digitalisation and an increasing number of technological advances are impacting the workspace not to mention considerations like remote work, platform work etc;
-Outsourcing becomes prevalent, i.e. non-core services and jobs performed in third countries. e.g. call centres;
-Considerations for climate change and the consequent just transitions cannot be ignored;
-Employment issues etc. decided elsewhere;
Johnson said all of the above means that the nature of the workplace is evolving but some fundamental principles must be part of the platform upon which to navigate the way forward.
He added that Government, employers and trade unions will continue to exist in the foreseeable future though each will engage in various stages of evolution to adapt to a changing global environment.
“Employers need to spend more time learning how to engage trade unions rather than invest in union busting techniques and legal paparazzi seeking to evade their obligations to have work environments that promote and are aligned with the ILO principles of decent work.”