saint kitts and nevis review · annual return ... • equal remuneration ... from a purely...

REVIEW AND ANALYSIS OF COMPLIANCE OF THE

NATIONAL LABOUR LEGISLATION OF SAINT KITTS AND NEVIS

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 Kitts and Nevis ................................................................................................................... 4 Legal Obligations of Saint Kitts and Nevis ........................................................ 6 Applicable Legislation of Saint Kitts and Nevis................................................. 6

II. Termination of Employment........................................................................... 7 Scope of Application........................................................................................... 7 Contract of employment ..................................................................................... 8 Continuity of employment .................................................................................. 8 Protection of employment................................................................................... 8 Termination of employment ............................................................................... 9 Constructive dismissal ...................................................................................... 10 Summary dismissal ........................................................................................... 10 Remedies........................................................................................................... 10 Redundancy and Severance Pay ....................................................................... 10 Winding up........................................................................................................ 11

III. Registration, Status and Recognition of Trade Unions and Employers’ Organizations ........................................................................................................ 12

Introduction................................................................................................... 12 Scope of Application..................................................................................... 12 Basic employee rights ................................................................................... 12 Protection of trade union from employer interference.................................. 13 Registrar........................................................................................................ 13 Registration................................................................................................... 13 Constitution................................................................................................... 14 Annual return ................................................................................................ 14 Legal status ................................................................................................... 14 Amalgamation............................................................................................... 14 Federation ..................................................................................................... 15 Safeguards for Members of Organisations ................................................... 15 Compliance with constitution and improper elections.................................. 15 Deposit and safeguard of funds..................................................................... 15 Recognition of Trade Unions........................................................................ 15

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

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IV. Equality of Opportunity and Treatment in Employment and Occupation 16 Objectives ......................................................................................................... 16 Status of ILO Conventions................................................................................ 16 Principles........................................................................................................... 16 Status of obligation in Saint Kitts and Nevis .................................................... 17 Gaps in legislative framework .......................................................................... 18

V. Occupational Safety and Health and the Working Environment.................. 20 Content of CARICOM Model Law .................................................................. 20 Scope of Application......................................................................................... 20 Registration of Industrial Establishments and Mines ....................................... 20 Administration .................................................................................................. 21 General Occupational Safety and Health Requirements................................... 21 Duties of occupiers, workers and other persons ............................................... 22 OSH Committees .............................................................................................. 23 Notices .............................................................................................................. 23 Enforcement...................................................................................................... 23

VI. Recommendations..................................................................................... 24 Termination of Employment............................................................................. 24 Registration, Status and Recognition of Trade Unions and Employers’ Organizations .................................................................................................... 24 Equality of Opportunity and Treatment in Employment and Occupation........ 25 Occupational Safety and Health and the Working Environment...................... 25


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I. Introduction This study undertakes a detailed audit and assessment of the extent to which existing national legislation of Saint Kitts and Nevis 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 Kitts and Nevis with the CARICOM model labour laws, comparisons are made with the applicable ILO Conventions. This approach has practical value in the light of Saint Kitts and Nevis’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 Kitts and Nevis’s obligation to comply with ratified ILO Conventions and core fundamental labour standards has greater legal force within Saint Kitts and Nevis 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 Kitts and Nevis. The intention is to ensure that the legislation in Saint Kitts and Nevis 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 Kitts and Nevis, 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 Kitts and Nevis.

Recommendations are made regarding amendments required to address gaps and inconsistencies in Saint Kitts and Nevis’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 of Saint Kitts and Nevis 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 by the Government of Saint Kitts and Nevis 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 Kitts and Nevis 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 Kitts and Nevis.

Legal status of CARICOM Model Law and ILO Conventions in Saint Kitts and Nevis 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 laws 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


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justification for its failure to perform an obligation under the treaty. 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 Kitts and Nevis, 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:

(a) freedom of association and the effective recognition of the right to collective bargaining;

(b) the elimination of all forms of forced and compulsory labour; (c) the effective abolition of child labour; and (d) 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 Kitts and Nevis to be consistent with its international legal obligations. The question arises as to how a treaty or convention ratified by Saint Kitts and Nevis becomes domestic law within the jurisdiction of Saint Kitts and Nevis. Saint Kitts and Nevis 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 Kitts and Nevis, as is the case of all Parliamentary systems of democracy, is a time-consuming and cumbersome process. Saint Kitts and Nevis 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 treaty 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 Kitts and Nevis Saint Kitts and Nevis 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); • Equal Remuneration Convention, 1951 (No. 100); • Discrimination (Employment and Occupation) Convention, 1958 (No.

111). It should be noted that Saint Kitts and Nevis has not ratified the Termination of Employment Convention, 1982 (No. 158) or any of the 18 core Occupational Safety and Health (OSH). In 2005 Saint Kitts and Nevis ratified the Occupational Safety and Health (Dock Work) Convention, 1979 (No. 152).

Applicable Legislation of Saint Kitts and Nevis The statutes of Saint Kitts and Nevis which seek to incorporate provisions relevant to the CARICOM Model Laws and the applicable ILO Conventions are:

Saint Kitts and Nevis Employment (Termination and Redundancy Payments) Act

Trade Unions Act, 1959 as amended the Labour Relations and Industrial Disputes Act, 1975 as amended Factories Act 1943 as amended


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II. Termination of Employment The stated objectives of the CARICOM Model Law 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 Kitts and Nevis has not ratified the ILO Convention No. 158. Its Protection of Employment Act, 1986 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. 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. Section 3 of the Protection of Employment Act excludes from the application of the Act:

(a) employees of the Crown and statutory corporations in respect of whom special provisions apply both to termination notice and retiring benefits;

(b) directors of companies and members of partnerships; (c) an employee who is either the husband, wife, father, mother, brother,

sister or child of the employer living in the employer’s household; (d) a master or a member of a fishing vessel, if payment is made in respect

of the employment by way of a share in the profit of the vessel; (e) a temporary worker except in respect of maternity leave qualification;

and (f) a casual worker, except in respect of maternity leave qualifications.


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Contract of employment Saint Kitts and Nevis The Protection of Employment (Written Terms and Conditions of Employment) Regulations, 1986 requires an employer to provide to each employee within fourteen days of employment written terms and conditions of employment which shall include:

(i) name and address of the employer; (ii) the name and address of the business or establishment at which the

employee is to be assigned; (iii) the name and address of the employee; (iv) the commencing date of employment; (v) the post or position in which the employee is to be engaged; (vi) a brief description of the duties and responsibilities of the position; (vii) the rate of pay and the intervals at which payment will be made; (viii) the hours of work and the times for completing such hours; (ix) the rate of overtime and premium pay (if any); (x) the duration of the probationary period; (xi) the length of notice which either party must give to the other to

terminate the contract (if different from the provisions of the Act); (xii) leave entitlement.

The probationary period means a period not exceeding one month in the case of household employment and three months in other employment. These provisions comply with the CARICOM Model Labour Law. Continuity of employment Section 10 of the Protection of Employment Act, 1986 provides that cessation of employment of an employee for the following reasons shall not constitute a break in the continuity of employment because of -

(a) a trade dispute; (b) accident, sickness, injury, maternity leave certified by a medical

practitioner; (c) operation of any other law; (d) an Act of God; (e) any agreement with the employer; (f) absence permitted or condoned by the employer; and (g) suspension or temporary lay-off without severance pay.

Protection of employment Section 11 prohibits an employer from terminating the employment on any of the following grounds:

(a) union membership or participation outside hours or with the consent of the employer during working hours;

(b) seeking office as or acting in the capacity of a worker’s representative; (c) making a complaint or participating in proceedings against employer

involving violation of law or regulations; (d) race, place of origin, birth out of wedlock, political opinion or

affiliations, colour, sex or creed, marital status or family responsibilities;


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(e) certified maternity leave; (f) illness or injury certified; (g) jury service or national service in sports or other activity.

It should be noted that section 11 does not include termination of employment on the grounds of disability or HIV status and to this extent does not comply with the CARICOM Model Law. Termination of employment Section 5 provides that except as provided by (f) employment may be terminated in the following circumstances:

(a) without notice during probationary period except otherwise provided in writing in contract;

(b) without notice where the employee is guilty of serious misconduct in relation to his/her employment;

(c) without notice where employee is guilty of misconduct in relation to his/her employment or the employee is no longer performing his/her duties satisfactorily: provided employee has been warned in writing on at least two occasions within a period of six months indicating the nature of the misconduct or unsatisfactory performance and in the case of the last warning, employer stated his/her intention to dismiss the employee for a repeat offence or continued unsatisfactory performance.

(d) Where medical practitioner certifies infirmity of mind or body likely to be permanent, provided infirmity lasted for a period of three months;

(e) Where employee redundant for reason that – (i) employer has discontinued or ceased to carry on all or part of

business; (ii) employer has modernised, automated or mechanised all or part

business; (iii) employer has reorganised business to improve efficiency; (iv) employer finds it impossible to carry on business at the usual

rate or level due to shortage of material or a mechanical breakdown or for any cause beyond his control;

(v) employer is forced to reduce business due to lack of market or change in market;

(f) where employer dies and business ceases to exist; (g) where business is liquidated by bankruptcy or otherwise.

Section 7 provides for termination of employment. Subsection (1) states that subject to Section 5, notice by employer should be as follows:

(a) three months and less than a year’s continuous service, one week notice (b) one year and less than three years, two week’s notice; (c) three years and less than five years, three week’s notice; (d) Five and less than seven years, four weeks (e) Seven and less than ten years, five weeks (f) Ten and less than fifteen years and more, six weeks (g) Fifteen and more, ten weeks


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(h) monthly paid with three months and less than five years continuous service, one month; and

(i) monthly paid with five and less than ten years, two months; (j) ten and more years, three months. (k) wages and benefits may be paid in lieu of notice. (l) where employer contemplates terminating employment of ten or more

employees or ten per cent or more employees on grounds of section 5 (e), he shall notify Commissioner not less than one month before the proposed terminations, the number and categories affected, the period over which the terminations are intended to be carried out, and summarising the results of the consultations with any trade unions representing employees.

An employee is required to give similar notice to an employer of his/her intention except that where the contract is not in writing; notice shall not to exceed four weeks. These provisions vary slightly from the CARICOM Model Labour Law, which provides for two months notice in the case of an employee with more than five years service. Constructive dismissal An employee may by virtue of section 7 (3) terminate his/her employment without notice if conduct of employer of such nature that employee cannot reasonably be expected to continue employment and such termination shall be deemed to be termination by employer. In this regard, the burden of proof is on the employer. This is different from the CARICOM Model Labour Law, which as an exception provides that the burden of proof in a matter of constructive dismissal lies with the employee. Summary dismissal

The Act makes no provision for summary dismissal. Remedies Trade Disputes (Arbitration and Inquiry) Act provides in section 5 that the award of the Tribunal shall not be inconsistent with the provisions of any applicable Act or Ordinance. The remedies are similar to those provided by the CARICOM Model Labour Law. Redundancy and Severance Pay Section 12 provides for the establishment of a Severance Payments Fund under control and management of the Labour Commissioner. All claims for severance pay are to be met out of the Fund. Employers are required to contribute one per cent of normal wage to the Fund. Section 25 provides that an employee may be paid severance benefits for period not less than one year employed with the predecessor employer provided no severance payment was paid by the previous employer.


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Section 27 states that where lay off is for twelve weeks, employee may request employer treat employment as terminated and have severance pay made. Severance pay is calculated on the following basis

(a) two weeks per year in respect of the first five years of employment with the employer;

(b) three weeks in respect of five to ten years of employment with the employer;

(c) four weeks in respect of any period in excess of ten years. Period of half a year or more is counted as a full year for purposes of severance pay. There is a maximum payment of no more than fifty-two weeks pay. Section 6 (1) provides that the sale or other disposition of business or part shall not affect the rights of an employee and the obligations accruing to any employee at the time of the sale or disposition shall be met by the buyer or the person acquiring the business. (2) The rights of employees and obligations accruing to each employee shall be recorded at the time of sale or disposition with the Commissioner Section 42 provides a duty on the part of an employer to give preference in any future recruitment to the former employee whose service has been terminated. These provisions on severance pay are in accord with the CARICOM Model Labour Law, except for the requirement for the employer to give notice and have prior consultations with the recognised trade union. Winding up Protection of Wages Ordinance section 12 specifies that in the event of bankruptcy or judicial liquidation of an undertaking, the employees shall be treated as privileged creditors either as regards wages due to them or to a prescribed amount as may be ordered by a Court. There is no mention of other payments due to the employee.


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

Introduction The 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. Within Saint Kitts and Nevis, the Trade Unions Act, Chapter 353 establishes procedures for the registration and status of trade unions and employers’ organisations. Scope of Application The CARICOM Model Legislation applies to both trade unions and employers’ organisations. The Trade Union Act of Saint Kitts defines a trade union as inclusive of an employers’ organisation. Section 3 of the CARICOM Model Legislation limits exemption from the provisions of the Act to the disciplined forces states. The Act prescribes that national regulations should make provision for rights of association of police, fire and prison forces, the only exception being the defence force. There is no exclusion contained in the Saint Kitts and Nevis Trade Unions Act. Basic employee rights Constitutional protection is given to basic employee rights. Section 13 of the Constitution provides that except with his own consent, a person shall not be hindered in the enjoyment of his freedom of assembly and association, that is to 2 ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, Paragraph 2


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say, his right to assembly freely and associate with other persons and in particular to form or belong to trade unions or other associations for the protection of his interests or to form or belong to political parties or other political associations. Under section 18 of the Constitution a person alleging that his right to form or belong to a trade union is infringed may apply to the High Court for redress. The High Court may make such declarations and orders as it may consider appropriate in the matter. There is no provision in the Trade Unions Act concerning basic employee rights. However, section 11 of the Protection of Employment Act, 1986 prohibits an employer from terminating the contract of an employee on any of the following grounds:

(a) union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours;

(b) seeking office as, or acting or having acted in the capacity of a workers’ representative;

(c) making a complaint or participating in proceedings against an employer involving an alleged violation of laws or regulations.

There are no dissuasive sanctions on the employer for these forms of anti-union discrimination. In order to comply with the CARICOM Model Labour Law and ILO Convention No. 87, the Protection of Employment Act, 1986 will need to be amended to provide for sufficiently dissuasive sanctions on the employer for breaches of section 11. Protection of trade union from employer interference There is no statutory provision in the Trade Unions Act concerning the protection of trade unions from employer interference which is provided for in the CARICOM Model Law and the ILO Convention on Freedom of Association. Registrar There is no statutory requirement for the competent authority to have consultations with representatives of trade unions and employers’ organisations in the appointment of the Registrar Registration Within thirty days of the establishment of a trade union, the committee of management or trustee acting of their behalf is required to make an application for the registration of such trade union3. Failure to comply with this requirement makes every member of the trade union guilty of an offence. There is no statutory minimum membership threshold for the registration of a trade union. Section 14 of the Trade Unions Act provides that an application must include a list of the titles and names of the officers of the trade union.

3 Trade Unions Act section 13.


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The Registrar has the power to withdraw or cancel the registration of a trade union at the request of the trade union, on proof that registration was obtained by fraud or mistake or if the constitution of the trade union has been altered in such manner that the principal objects no longer comply with the statutory requirements. There is no provision in the Act for an appeal by an aggrieved person against the decision of the Registrar to withdraw or cancel or failure to register a trade union. Constitution The second schedule to the Trade Unions Act provides guidelines regarding the rules of trade unions. These are:

(1) The name of the trade union and place of meeting. (2) The whole of the objects for which the trade union is to be established,

the purpose for which its funds shall be applicable and the conditions under which any member may become entitled to any benefit assured thereby and the fines and forfeitures to be imposed on any member of the trade union.

(3) The manner of making, altering, amending and rescinding rules. (4) Provisions for the appointment and removal of a general committee of

management, of a trustee, treasurer and other officers. (5) Provisions for the keeping of full and accurate accounts by the treasurer. (6) Provisions for the investment of funds of the trade union, and for an

annual or periodic audit of accounts. (7) The inspection of the books and names of members of the trade union by

every person with an interest in its funds. (8) The manner of dissolution.

Annual return The treasurer is required to submit to the Registrar of Trade Unions in the prescribed form an annual return for the preceding twelve months showing all additions and amendments to the rules and all changes to the officers and trustees of the trade union during the preceding year4. Legal status A trade union is not considered to be a body corporate. It is an unincorporated association. It can only acquire or hold property or take legal action in the name of its trustees. Amalgamation By virtue of section 29 of the Trade Unions Act, two or more trade unions may with at least two-thirds consent of each of the trade unions become amalgamated together as one trade union with or without any dissolution or division of the funds subject to the rights of any creditor.

4 Trade Unions Act section 33


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Federation There is no statutory provision in the Trade Unions Act regarding the right of a trade union or employers’ organisation to join or be affiliated to an international federation. This should not be interpreted to mean that such right does not exist. Safeguards for Members of Organisations Compliance with constitution and improper elections The provisions of the CARICOM Model Legislation concerning compliance with the constitution and improper elections are not addressed in the Trade Unions Act. Deposit and safeguard of funds The treasurer and officers of a trade union have a duty to render a just and true account of all monies paid and received and a statement of assets and liabilities during an accounting year. The accounts are required to be audited by some fit and proper person to be appointed5. Officers and members of a trade union are to be held liable for any misapplication of the union’s money or other property6. In addition the treasurer of every trade union has a statutory duty to deliver before 1st August each year to the Registrar of Trade Unions a statement of revenue and expenditure and the audit certificate verifying that such statement has been audited in accordance with legal requirements. Recognition of Trade Unions There are no legislative provisions regarding the recognition and certification of trade unions or collective agreement or successor rights and obligations.

5 Trade Unions Act section 21 6 Trade Unions Act section 22


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


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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;

(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 Kitts and Nevis Saint Christopher and Nevis has provisions in its Protection of Employment Act and its Constitution relating to non-discrimination in employment. Section 11 (d) of its Protection of Employment Act, 1986 prohibits termination of employment by an employer of an employee on grounds of race, place of origin, birth out of wedlock, political opinions or affiliations, colour, sex or creed, marital status or family responsibilities. No mention is made of discrimination on grounds of disability or pregnancy, age, social status, ethnic origin, national extraction or social origin. Moreover, the prohibition of discrimination appears to be limited to termination of employment and not to recruitment and terms and conditions of employment. Section 15 of its Constitution provides that subject to subsections (4), (5) and (7), no law shall make any provision that is discriminatory.

(2) Subject to subsections (6), (7), (8) and (9), a person shall not be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.

(3) In this section the expression "discriminatory" means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, place or origin, birth out of wedlock, political opinions or affiliations, colour, sex or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded


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privileges or advantages that are not accorded to persons of another such descriptions.

(4) Subsection (1) shall not apply to any law so far as that law makes provision- (a) for the appropriation of public revenues or other public funds; (b) with respect to persons who are not citizens; (c) for the application, in the case of persons of any such description

as is mentioned in subsection (3) (or of persons connected with such persons) of the law with respect to adoption, marriage, divorce, burial, devolution of property on death or other like matters that is the personal law of persons of that description; or

(d) whereby persons of any such description as is mentioned in subsection (3) may be subjected to any disability or restriction or may be accorded any privilege or advantage that, having regard to its nature and to special circumstances pertaining to those persons or to persons of any other such description, is reasonably justifiable in a democratic society.

(5) Nothing contained in any law shall be held to be inconsistent with or in contravention of subsection (1) to the extent that it makes provision with respect to standards or qualifications (not being standards or qualifications specifically relating to race, place of origin, birth out of wedlock, political opinions or affiliations, colour, creed or sex) to be required of any person who is appointed to or to act in any office under the Crown, any office in the service of a local government authority of any office in a body corporate established by law for public purposes.

Gaps in legislative framework The legislative framework does not include any provision relating to discrimination on grounds of disability or pregnancy, age, social status, ethnic origin, national extraction and social origin. The scope of application of the principles does not include professional partnerships, professional or trade organisations, qualifying bodies, vocational training bodies and employment agencies. The principles of unlawful discrimination and equality of opportunity do not apply to the provision of goods, services and facilities, advertisements and application forms. The prohibition against unlawful discrimination does not apply to persons seeking employment. In addition, there is no provision that deems that an act of sexual harassment committed by an employer, a managerial employer or co-worker against an employee to constitute discrimination based on sex. There appears to be no provision to the effect that measures to promote equality of opportunity of a temporary nature shall not be deemed unlawful discrimination.


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There also appears to be no provision requiring employers to observe the principle of equal remuneration for work of equal value.


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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 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 Kitts and Nevis has not ratified any of the 18 core OSH Conventions nor the Protocol to Convention No. 155. Scope of Application The Acts and Regulations of Saint Kitts and Nevis relating to occupational safety and health are the Factories Act Chapter 330 (Act No. 11 of 1955 as amended) (hereinafter referred to in this section on Saint Kitts and Nevis as “the Act”), the Fatal Accidents Act Chapter 27 (act No. 4 of 1924 as amended) and Accidents and Occupational Diseases (Notification) Act Chapter 330. These laws apply to factories, including those belonging to or in occupation of the Government and to building operations and works of engineering construction7. They do not apply all industrial establishments and other branches of economic activity and to all employers and workers in all branches of economic activity as contained in the CARICOM Model Legislation. Registration of Industrial Establishments and Mines Section 12 of the Act imposes an obligation upon every person who wishes to occupy or uses premises as a factory to serve on the inspector within one month before occupation a written notice of occupation. The particulars of the notice 7 The Factories Act Chapter 339 section 5


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shall include the names and addresses of the occupier, address and location of the factory, the nature and object of the process to be carried out, the number of employees, whether mechanical power is used or intended to be used and, if so, its nature, and whether steam boilers are used and, if so, the type, description and distinctive number, country and year of manufacture, date of last examination and permissible working pressure. There is no statutory requirement for a list of hazardous chemicals and hazardous physical agents present in the factory or to indicate whether the factory is a major hazardous installation. Administration Section 17 of the Factories Act provides for the appointment of a Factory Inspector to administer and enforce the Act and regulations. The Factory Inspector is to ensure that employers and other relevant persons are provided with information and advice concerning the Act and the protection of the occupational safety and health of workers generally. There is no statutory provision 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 The provisions in this section relates to work at dangerous machines, protective clothing devices, emergency drills and exits, cleanliness and sanitary conveniences, disposal of waste, noise and vibrations, overcrowding, ventilation, suitable lighting, adequate supply of drinking water, washing and change facilities, first-aid provisions and restrooms. Section 8 of the Act gives the Administrator in Council the power to make orders prohibiting the employment of any young person under the age of eighteen years in a factory. Section 18 (3) gives an inspector the power to serve a notice upon the occupier of a factory to discontinue the employment of a young person where the kind of work in the factory is prejudicial to the health of the young person or the health of other persons. There is no statutory provision requiring 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 devices of an approved standard and adequate instruction in the use of such protective clothing or device.


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Duties of occupiers, workers and other persons The Act makes provisions for the duties of occupiers and workers in relation to health, safety and welfare. Section 8 of the Factories Act provides that the occupier of every factory shall-

(a) keep the factory in a clean state; (b) not permit the factory to be overcrowded; (c) maintain a reasonable temperature in the factory; (d) secure adequate ventilation in the factory; (e) provide a suitable and sufficient lighting; (f) provide effective means for draining floors; (g) provide suitable and sufficient sanitary conveniences for the use of

employees. Section 9 addresses issues of safety. It imposes a duty on occupiers to ensure:

(a) a safe means of access to every place at any workplace; (b) adequate measures for the prevention of fire in every factory and

adequate fire escape procedures and means; (c) precautions to reduce risk of fire or explosion to a minimum where there

is any explosive or inflammable dust, gas, vapour or substance in any factory;

(d) all machinery used and every part thereof shall be safe to all workers in the factory;

(e) every steam boiler, steam container, steam receiver, air receiver, gas holder or other pressure vessel used in any factory shall be operated and maintained in such a manner as to be safe to persons employed in the factory;

(f) all chains, ropes and lifting tackle, cranes and other lifting devices shall be operated and maintained in a safe manner;

(g) all floors, steps, passages and gangways are of sound construction and properly maintained.

With respect to the duties of workers, section 15 of the Factories Act provides that no person employed in a factory shall wilfully interfere with or misuse any means, appliance, convenience or other thing provided for securing the health, safety or welfare of persons employed in the factory. In addition, no person employed in a factory shall wilfully and without reasonable cause do anything likely to endanger him/her or others. There is no express obligation upon a worker to report to his/her employer or supervisor the absence of or defect in any equipment or protective device and clothing of which he is aware and which may endanger him or herself or another worker or to report any contravention of the Act. There is no statutory requirement for a written occupational safety and health policy to be prepared and reviewed annually in consultation with the Occupational Safety and Health Committee or safety representative. There is no provision under the Act relating to the protection of pregnant women from exposure to chemicals, substances etc.; There is also no provision for


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accurate records of handling storage use and disposal of chemicals etc. and monitor levels.

There is no statutory right of a worker to refuse 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. In this scenario, the worker is deemed to be at work with pay. Also, there is no express prohibition against an employer or representative from dismissing or threatening to dismiss, suspending or imposing any penalty or intimidating or coercing worker because he/she acted in compliance with Act or Regulations OSH Committees There is no statutory requirement for the appointment of a Joint Occupational Safety and Health Committee in factories with or for twenty or more employees, or for the appointment of a safety representative in factories with five or more but less than twenty workers. Notices The employer has an obligation under section 3 of the Accidents and Occupational Diseases (Notification) Act to send forthwith to the Labour Commissioner a written notice of every accident in the prescribed form. Where any accident causing disablement has been notified, and after such notification, the accident results in the death of the person disabled, notice in writing of the death must be sent by the employer to the Labour Commissioner as soon as the fact of the death comes to the knowledge of the employer. In addition, every registered medical practitioner attending on a patient whom he believes to be suffering from any occupational disease contracted in the course of his employment as a worker shall forthwith send to the Labour Commissioner a notice stating the name and address of the work place. Enforcement Inspector are vested with the power to enter, inspect any register, remove any register or article violating the Act, conduct tests, require an employer to conduct tests, make enquiries of any person in the workplace and require any equipment to be tested. The Inspector may also order an employer to comply with Act forthwith or within such time as he/she may specify. Where an Inspector makes an order and finds that the contravention is a danger or hazard to safety and health, he/she may order that the workplace, equipment, machine, device, article or process be not used until the order is complied with. He/she may also order that work be stopped until the danger or hazard is removed.


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VI. Recommendations Termination of Employment In order to comply with the CARICOM Model Labour Law, the following amendments will be required of the Protection of Employment Act: (i) the exemption in Section 3 with respect to employees of the Crown and

statutory corporations, directors of companies and members of partnerships, temporary and casual workers should be repealed.

(ii) section 11 should be amended to prohibit termination of employment on the grounds of disability or HIV status.

(iii) section 7 should be amended to provide for two months notice of termination of employment by the employer to the employee in the case of an employee with more than five years service.

(iv) a new provision should be included to allow for summary dismissal on terms consistent with the CARICOM Model Legislation.

(v) A new provision should be added to require the employer to give notice and have prior consultations with the recognised trade union in the event of retrenchment.

In addition, Protection of Wages Ordinance section 12 should be amended to include other payments due to the employee as a preferred debt in the event of bankruptcy or judicial liquidation of an undertaking. Registration, Status and Recognition of Trade Unions and Employers’ Organizations In order to comply with the CARICOM Model Labour Law, the following amendments to the Trade Unions Act are required:

(i) There should be a statutory provision in the Trade Unions Act concerning the protection of trade unions from employer interference along the lines contained in the CARICOM Model Law and the ILO Convention on Freedom of Association.

(ii) In order to comply with the CARICOM Model Labour Law and ILO Convention No. 87, the Protection of Employment Act, 1986 will need to be amended to provide for sufficiently dissuasive sanctions on the employer for breaches of section 11.

(iii) There should be a statutory requirement for the competent authority to have consultations with representatives of trade unions and employers’ organisations in the appointment of the Registrar

(iv) There should be a statutory minimum membership threshold for the registration of a trade union (seven) and employers’ organisation (three).

(v) There should be a provision in the Act for an appeal by an aggrieved person against the decision of the Registrar to withdraw or cancel or failure to register a trade union or employers’ organisation.

(vi) A trade union should be given the legal status of a body corporate.


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(vii) There should be a statutory provision in the Trade Unions Act regarding the right of a trade union or employers’ organisation to join or be affiliated to an international federation.

(viii) There should be a provision in the Trade Unions Act concerning compliance with the constitution and improper elections along the lines contained in the CARICOM Model Labour Law.

In addition, Saint Kitts and Nevis will need to introduce legislation to provide for the recognition and certification of trade unions or collective agreement or successor rights and obligations in accordance with the CARICOM Model Labour Law. Equality of Opportunity and Treatment in Employment and Occupation In order to comply with the CARICOM Model Labour Law, the following amendments are required in the Protection of Employment Act :

(i) Provision should be made to prohibit termination of employment on the grounds of disability or pregnancy, age, social status, ethnic origin, national extraction and social origin. In addition, sexual harassment committed by an employer, managerial employee or co-worker against an employee should be deemed to constitute discrimination based on sex.

(ii) The scope of application of the principles of non-discrimination should include professional partnerships, professional or trade organisations, qualifying bodies, vocational training bodies and employment agencies.

(iii) The principles of unlawful discrimination and equality of opportunity should apply to the provision of goods, services and facilities, advertisements and application forms.

(iv) The prohibition against unlawful discrimination should also apply to persons seeking employment.

(v) Provision should be made to require employers to observe the principle of equal remuneration for work of equal value.

Occupational Safety and Health and the Working Environment The following amendments are required of the Factories Act in order for Saint Kitts and Nevis to comply with the CARICOM Model Labour Law:

(i) The Act should be amended to apply to all industrial establishments and to all employers and workers in all branches of economic activity.

(ii) There should be statutory requirement in the registration of industrial establishments for the employer to provide a list of hazardous chemicals and hazardous physical agents present in the factory and to indicate whether the industrial establishment is a major hazardous installation.

(iii) There should be a statutory provision 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,


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including enforcement and the implementation of a national policy on occupational safety and health.

(iv) There should be a statutory provision requiring 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 devices of an approved standard and adequate instruction in the use of such protective clothing or device.

(v) There should be a statutory requirement for a written occupational safety and health policy to be prepared and reviewed by an employer annually in consultation with the Occupational Safety and Health Committee or safety representative.

(vi) There should be a provision under the Act relating to the protection of pregnant women from exposure to chemicals, substances etc.; There is also no provision for accurate records of handling storage use and disposal of chemicals etc. and monitor levels.

(vii) A worker should be given a statutory right to refuse 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. In this scenario, the worker is deemed to be at work with pay.

(viii) There should be an express prohibition against an employer or his/her representative from dismissing or threatening to dismiss, suspending or imposing any penalty or intimidating or coercing worker because he/she acted in compliance with Act or Regulations

(ix) There should be a statutory requirement for the appointment of a Joint Occupational Safety and Health Committee in factories with or for twenty or more employees, or for the appointment of a safety representative in factories with five or more but less than twenty workers.

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