CARICOM Single Market and Economy website of Trinidad and Tobago | Complexities, Benefits and Challenges for Employers

Presentation by Clarence Rambharat at the Breakfast Seminar

CSME: Complexities, Benefits and Challenges for Employers held on 20 January 2005
I wish to express my sincere gratitude to my colleagues at the Employers’ Consultative Association (ECA) for the opportunity to speak on behalf of employers on the topic "the impact of Labour legislation on the Free Movement of People and how these are to be integrated".

From the outset I would emphasise that Free Movement of People and the success of regional integration are inextricably bound and a most convenient starting point is to refer to the lecture delivered by the Right Honourable Owen Arthur, Prime Minister of Barbados, to the 15th. Triennial Congress of the Caribbean Congress of Labour (CCL) on 19 October 2004. Prime Minister Arthur stressed that:

“The most viable course open to any and all Caribbean economies is to have our resources effectively pooled, and our approaches to their uses efficiently coordinated and harmonized so as to widen the scope and options for development available to any constituent member of the community and to invest the community with an economic potential that is greater than the sum of its constituent parts”

In the view of employers that is essentially what Free Movement of People means to us and more than rhetoric and philosophical posturing we consider Free Movement of People to be one of the primary pillars of our mandate to become regionally strong and globally competitive. Prime Minister Arthur’s views will readily find a place among our employer members because the consistent approach of the E.C.A has been to pool resources and base our national development efforts on the quality of our human resources and social capital.

It is worth recalling that at its first meeting held on 17 December 1958, 21 members were admitted to the newly formed ECA. These members represented interests in:

Petroleum/chemicals
Sugar
Manufacturing
Trading

Today these interests have expanded as the ECA has expanded its membership beyond 400, covering diverse business and operating areas and interests including:

Agriculture
Petroleum/Chemicals
Light and Heavy manufacturing
Printing and publishing
Sugar
Electricity and water
Finance/Insurance
Government
Entertainment/hospitality

Bound up with all these interests is the conviction among employers that the programme of economic liberalization upon which the Caricom Single Market and Economy (CSME) is built is vital to the evolution of the new class of Caribbean businessman and commercial enterprise which must stand up to the exacting and unforgiving standards of global business.

Employers also accept, with equal fervor, that meaningful regional integration may be the most effective means for the long term growth and survival of individual economies and their successful integration in the new global economic system created by trading blocs, treaties, bilateral arrangements and new institutional arrangements.

For employers Free Movement of People and by extension the movement and/or the Migration of Labour is neither new or unknown as a phenomenon. The International Labour Organisation (ILO) estimates that the number of migrant workers in search of employment and human security is eighty six (86) million and that number is expected to increase rapidly in the coming decades due to the reduction in job opportunities where people are born and prefer to live.

The ILO report on “A Fair Deal for Migrant Workers in the Global Economy” notes that:

“ In practically every region the rising mobility of people in their search for decent work and human security has been commanding the attention of policy makers and prompting dialogues for multilateral cooperation on how to:

Better manage the flows in the interest of protecting human rights
Maximizing migration’s contribution to growth and development
Preventing clandestine flows and trafficking’’

In our region the philosophy which underpins the Free Movement of People is best expressed by Prime Minister Arthur in his lecture to the Caribbean Congress of Labour. He says:

“Many of the member States of Caricom have based their own national development efforts on the quality of their human resources and social capital.

It goes therefore without saying that the opportunity to have access to a regional pool of human resources greatly enhances the prospects of all participating eonomies in the CSME in their endeavour to build new, more compatible enterprises to world standards”

It is the understanding of employers that the core task to cause the CSME to function effectively is the creation of the single internal market. According to Caricom this involves the removal of restrictions to enable the free exercise of national treatment rights and give effect to the delivery of market access commitments, particularly in the following areas, namely:

Free Movement of and Trade in Goods
Movement of and Trade in Services
Free Movement of Persons
Free Movement of Capital; and
Rights of Establishment

In relation to the recent thinking behind the concept of the Free Movement of People we recall that following the decision of the Conference of Heads of Government at its Special Meeting in Port of Spain in October 1992, an Inter Governmental Task Force (IGTF) was established to supervise the revision of the Treaty of Chaguaramas.

This IGTF agreed to conduct the Treaty revision process by a series of Protocols and on that basis draft Protocols were prepared.

Protocol II provided the basis for the existing provisions relating to the Rights of Establishment, Provision of Services and Movement of Capital.

In particular Article 35 (d) of Protocol II required Member States to:

“Establish measures to ensure the removal of restrictions……..as they relate to….the conditions governing the entry of managerial, technical or supervisory personnel in such agencies, branches and subdivisions [ belonging to an economic enterprise as defined by Article 35 b (5) (b) ]”.

The provisions relating to the Free Movement of People are now found in the Revised Treaty of Chaguaramas.

In particular Article 5 (2) (a) provides that:

“A person shall be regarded as a national of a Member State if such person (i) is a citizen of that State (ii) has a connection with that State of a kind which entitles him to be regarded as belonging to or, if it be so expressed, as being a native or resident of the State for the purposes of the laws thereof relating to immigration”

Article 34 of the Revised Treaty of Chaguaramas provides that the Council for Trade and Economic Development (COTED) shall:

“Require all the Member States to remove all restrictions on the movement of managerial, technical and supervisory staff of economic enterprises and on establishing agencies, branches and subsidiaries of companies and other entities established in the Community”

Article 35 of the Revised Treaty of Chaguaramas provides that the Council for Trade and Economic Development (COHSOD) shall:

“Establish common standards and measures for accreditation or when necessary for the mutual recognition of diplomas, certificates and other evidence of qualifications of the nationals of Member States in order to facilitate access to and engagement in, employment and non wage earning activities in the Community”

Article 35 states further that:

“The Member States shall establish or employ….appropriate mechanisms to establish common standards to determine equivalency or accord accreditation to diplomas, certificates and other evidence of qualifications secured by nationals of other Member States”

Finally, Article 46 of the Revised Treaty of Chaguaramas states that:

“….as a first step towards achieving the goal set out in Article 45 to accord to the following categories of Community nationals the right to seek employment in their jurisdictions:

(a)    University Graduates
(b)    Media Workers
(c)    Sportpersons
(d)    Artistes
(e)    Musicians

On the basis of Caricom’s Status Report, at this time Montserrat and Suriname must still enact legislation to implement the Free Movement of People. All other CARICOM Member States have enacted legislation geared towards facilitating free movement of university graduates while on the other hand eight (8) Member States have enacted legislation to implement the Free Movement of artistes, media workers, musicians and sportpersons and have also established the administrative and procedural framework for giving effect to the legislation.

Notwithstanding the integration of the legislative will with the philosophy of the Free Movement of People, there still remains serious practical difficulties in giving life to the

Free Movement of People in the process of integration.

I have read a Preliminary Draft of a paper on “Movement of Professionals and Mutual Recognition Issues in the Caribbean Community” prepared by Ramesh Chaitoo, the Services Trade Specialist at the Caribbean Regional Negotiating Machinery (CRNM).

The Draft notes that the practice of law in the English-speaking Caribbean is regulated by the Council of Legal Education (CLE) and the CLE was established in 1970 by a Mutual Agreement. The following countries are party to the Mutual Agreement: Antigua and Barbuda, Barbados, Bahamas, Belize, British Virgin Islands, Cayman Islands, Dominica, Grenada, Guyana, Jamaica, St Kitts and Nevis, St Lucia, St Vincent and the Grenadines, and Trinidad and Tobago.

Notwithstanding the spirit and intention of the integration of labour and other legislation with the philosophy of the Free Movement of People, it is clear that given the existing structure governing Legal Education, the application of the legislation governing the Free Movement of University Graduates to the Free Movement of law graduates can and does in fact pose serious practical difficulties. Some of the various scenarios which may arise include:

Scenario One:

An individual from a CARICOM state who has completed a UWI law degree and the Legal Education Certificate from one of the regional law schools can practice as an Attorney at Law in the region once he has been admitted to practice in the particular territory.

Scenario Two:

In general, an individual who has completed a UWI law degree and Bar examinations outside the region would be required to complete a six month programme at a regional law school, before he can practice as an Attorney at Law in the region. He would also be required to be admitted to practice in the particular territory. It should be noted that in the case of St Lucia and St Vincent and the Grenadines (until 2006), there is no requirement to complete the six month programme in order to practice in these jurisdictions. However, the call to the Bar in these two territories does not preclude the necessity to complete the 6 month programme if a lawyer called in any of these two territories subsequently seeks admission in any of the CARICOM territories.

Scenario Three:

In general, an individual who has completed a non-UWI law degree and Bar examinations outside the region would be required to complete a six month programme at a regional law school, before he can practice as an Attorney at Law in the region. He would also be required to be admitted to practice in the particular territory. Again this does not apply to St Lucia and St Vincent and the Grenadines for the time being.

Scenario Four:

In general, an individual who has completed a non-UWI law degree and wishes to pursue a Legal Education Certificate at one of the regional Law Schools would be required to pass an entrance examination and if successful would have to wait on a place at the Law School. Upon completion of the LEC that person can practice as an Attorney at Law in the region. He would also be required to be admitted to practice in the particular territory.

Scenario Five:

For any individual who wishes to act as a legal consultant and does not intend to appear as an advocate in Court there is no requirement that the individual must be admitted to the Bar. It should be noted that such an individual would not be able to execute documents which under Statute – for example land conveyances in Trinidad and Tobago- which are to be executed by an Attorney at Law.

Scenario Six:

The requirements in Scenario three do not apply to Queen’s Counsels; but generally such an individual would still be required to be admitted to the Bar of the particular country.

This simply serves to illustrate the view of our employer members, that apart from seeking to integrate legislation with the philosophy of the Free Movement of People, full implementation of Protocol II must be expedited if we are to benefit from all that the Free Movement of People has to offer. It is clear that unless we have full implementation through the integration of labour and other relevant legislation commitments for preferential treatment regionally are in danger of being superceded by commitments that may arise under GATS negotiations.

One of the compelling shortcomings of our current efforts to make the Free Movement of People a practical reality is the fact that Caricom was conceived to be a Community of Sovereign States. This model envisages that the individual territories should retain this sovereign status and with it their individual sovereign power, including the power to legislate on the basis of national needs. In an effort to create harmony and consistency, Caricom has created model legislation to move the process forward but ultimately the quest for Free Movement of our People – as well as the quest for all that is required to integrate the region – is hindered by the absence of supranational institutions and structures, including supranational legislation which can form part of the CSME superstructure.

Employers are therefore of the view that:

Caricom should take immediate steps to deal with the outstanding mutual recognition issues
Caricom should focus on establishing common standards and measures for accreditation or mutual recognition of diplomas/certificates and other evidence of qualification
Free movement should be extended across the board to persons with skills other than academic qualification
Caricom should remove restrictions on establishment of services and movement of natural persons
National legislation should be modeled on the basis that as a principle, national treatment is conferred on persons who are certified by another Caricom member State

Employers wish to emphasise that the Free Movement of People and Decent Work must be conceptualized as an integrated policy platform. In our view wherever the pillar of the Free Movement of People is placed in the creation of the CSME’s hallowed halls it must rest on the foundation of social justice.

This should not be new to Caricom Member States who are all members of the ILO.

According to the 1998 “ILO Declaration on Fundamental Principles and Rights at Work and its Follow Up”, all ILO Member States have an obligation to respect:

Freedom of Association and the effective recognition of the right to collective bargaining
The elimination of all forms of forced or compulsory labour
The effective abolition of child labour
The elimination of discrimination in respect of employment and occupation

Employers are therefore clear in their minds that as we seek to integrate labour and other legislation with the concept of the Free Movement of People,we are also entrusted with the responsibility to look after the most vulnerable – including women and those other persons who are likely to find themselves in irregular situations which can make them vulnerable.

Taking the construction sector as an example, unless legislation – and we do not only mean labour legislation- is carefully crafted, the Free Movement of People may lead to a race to the bottom, making jobs in construction in some Caricom member States unattractive and underpaid for nationals and calling on regional labour to fill those gaps. This can have a negative impact on safety standards, wages, and basic working conditions in the industry.

In this context, one of the critical issues which employers believe has not been dealt with in the integration of labour and other legislation with the Free Movement of People is the portability of social benefits. It is well recognized globally [20]that migrant workers are confronted with particular difficulty in this area simply because in most national systems and certainly in those in our region, benefits are related to employment, contributions and residency.

In our view it is a double edged sword which cuts to the heart of the Free Movement of People, the effects of which only the political will and legislative enactments can blunt. Workers run the risk of losing their entitlements in their country of origin because of their absence and at the same time they may encounter restrictive conditions in the host country because of the local legislative framework for social benefits.

In conclusion, in the view of the employers the major issues in the integration of labour legislation and the Free Movement of People are:

The need for cooperation among Caricom member States in expediting the full implementation of Protocol II
The need for the development of a set of principles of good governance which take into account the fundamentals of the ILO
The need for legislation and administrative and technical support mechanisms for dealing with labour market regulation
The enactment of legislation governing issues directly related to social justice in the workplace(for example the issue subcontractor liability) and the enforcement of those laws
The effective mobilization of the social partners

For more information on the Employers’ Consultative Association see: www.ecatt.org

Source: www.caricom.org at page 11 of Lecture
Source: www.ecatt.org

For more information on the International Labour Organisation (ILO) see: www.ilo.org

Towards a fair deal for migrant workers in the global economy

Source: www.caricom.org at page 11 of Lecture

Work Programme to complete establishment of the Caricom Single Market and Economy, page 4.

See: www.caricom.org

For the full text of the Protocols see: www.caricom.org Protocol II amending the Treaty establishing the Caribbean Community. Full text available at www.caricom.org

For the full text of the Revised Treaty of Chaguaramas see: www.caricom.org

Article 5 (2) (a) of the Revised Treaty of Chaguaramas, the full text of which can be found at www.caricom.org

Article 34 of the Revised Treaty of Chaguaramas, the full text of which can be found at www.caricom.org

Article 35 of the Revised Treaty of Chaguaramas, the full text of which can be found at www.caricom.org

Status of the Full Operationalisation of the Free Movement of University Graduates, Artistes, Media Workers, Musicians and Sports Persons available at www.caricom.org

These are Belize, Dominica, Grenada, Guyana, Jamaica, St. Lucia,St. Vincent and Trinidad and Tobago

For more information on the CRNM see: www.crnm.org

See: www.ilo.org

See discussions on ILO Convention No. 157 – Maintenance of Social Security Rights Convention at www.ilo.org