The Changing Paradigm of Employment in the Public Sector - An Impetus for a New Approach
In recent years, labour law has faced many challenges, not least of which is the much talked about process of globalization, which has resulted in different types of trade relations and attitudes toward work.
Market-centred strategies have also been at the front of these new initiatives and indeed in new visions of development. Out of this emerged a workforce with enhanced mobility but at the same time, more informal. Such informalization or casualization meant that de-regulation was increased, given that the regulatory field of labour law depends ultimately on formal structures of work. Workers were thus rendered more vulnerable. Further, the welfare state and a labour movement which emphasized workers rights have slowly been undermined by this new economy. As such, the tools which labour law traditionally employed to find balance in the labour environment have become less effective.The need to confront these new work paradigms by putting forward labour law models which are more sensitively attuned to the new labour environment was the subject of another paper by the writer in this Faculty Workshop Series.[284] The need to rethink labour law is not, however, restricted to the private employment sphere. In the public sector, market forces’ ideals have also impacted the sacrosanct public service, resulting in increased privatization of the sector and employment arrangements modelled on contracts of employment typical of the private sector. These have been established in the name of commercial and administrative expediency. Indeed, a hybrid sector has now been created in which there are �new blends of public and private power.’[285]
The important issues surrounding employment by the state also include the question of employment in statutory, public, or private state- owned authorities. This is a subject which is relatively undeveloped in Commonwealth Caribbean jurisprudence.
Where the courts have addressed the issue, the answers have not been consistent. Further, it involves the interlinking of public law and private employment law. As with traditional models of labour law in the private domain, the orthodox principles of public service law do not sit easily with this new labour environment. It is therefore necessary to posit new ideas which can adequately address these contemporary arrangements.The framers of Commonwealth Caribbean Constitutions envisaged a sphere of protection against arbitrariness and in particular, political interference, for those employed by the state. This protection was secured through the mechanism of independent, constitutionally-enshrined Public Service Commissions with responsibility for appointments, discipline and the dismissal of employees. However, only the persons identified as public servants and certain other specifically named public officials were granted this specific constitutional protection.
The courts recognized the largesse of the constitutional protection and in time, formulated appropriate new principles for democratic governance. In Thomas v AG,[286] for example, the well established principle of dismissal at pleasure of the Crown or state was rejected by the Privy Council, because of the constitutional protection of public servants enshrined under the then new Trinidad and Tobago constitution.
Persons employed by the state, but who fall outside of the rather strict definition of a �public servant,’ or other specifically named public officials, are not mentioned in these constitutional provisions and are therefore not directly protected under the purview of constitutional law or public service commission regulations. One can speculate that one reason for this exclusion was that, at the time, the Commonwealth Caribbean had not yet witnessed the burgeoning of state sector institutions involved in the operation of governance that we see in contemporary times. Nevertheless, today, a large body of persons are employed by such public authorities.
The argument may be posited that the framers of the constitution adopted a paternalistic attitude toward the former colonial young nations and put excessively bureaucratic and limiting institutions and mechanisms in place to counter legitimate state power because they doubted, unjustly, the capacity of these new executive authorities to govern themselves in a democratic fashion. As these states have matured since independence, these burdensome bureaucracies serve only to fetter the legislative exercise of state power and moreover, constrain the efficiency of the public sector. Private contracts and models of operation enable state authorities to be run much more efficiently and with greater flexibility, in accordance with established market principles.
While this is a legitimate argument, it ignores the reality of the labour law environment as a whole. Labour law has moved steadily away from a â€?hands off,’ ad hoc notion of employment at will, to an approach centred on checks and balances, curtailing the use of arbitrary power by the employer and imposing expanding social and rights obligations upon him or her. Such ideas are readily seen, for example, in the development of unfair dismissal law, redundancy protection and the doctrine of implied terms, the latter of which today has grown to include even issues of antiÂdiscrimination.
It is therefore somewhat incongruous that at the point at which private labour law is becoming more interventionist, the public sphere should be embracing private law arrangements without the responsibilities attached to them.
The recent trend of the increasing privatization of hitherto public law functions adds another dimension to this complex issue. Cases such as Perch,[287] which examined the legal implications for employees who were previously public servants and were metamorphosed into employees in a private postal corporation, thereby losing their constitutional protection, examine one aspect of this pervading problem.
A common thread, however, is the large body of employees left totally unprotected by law. This occurs where employment decisions made by the state as employer are determined to fall within the purview of private employment law and that law is in itself inadequate to offer appropriate causes of action and remedies. The lacuna in the law underscores the need for the issue to be resolved Jurisprudentially.The broader question arises as to whether such persons, whom we may label as �private, public sector employees,’ are to be treated under ordinary principles of private employment law (i.e., the pure contract of employment approach). Alternatively, should these employees be viewed more broadly within the lens of public law, since they do, in fact, perform important public law functions? With the development of administrative law and the tendency of the courts to include more and more functions and functionaries within Judicial review principles, good arguments can be made for the latter approach. Such a treatment will place employees of public authorities on a more equal footing with public servants. A powerful justification for this approach is that private, public sector employees are equally subject to political arbitrariness and interference. Yet, their terms and conditions of service are not governed by the constitution.
More broadly, the general principle that the exercise of public power, in all its forms, must be accountable to the public, should not be overlooked. Indeed, as other writers suggest, there is a �democracy deficit’[288] in the way in which employment in the public sector is today organized.
The desire to impose adequate checks and balances on state power, in the face of its ever-increasing power over the citizenry, has been a forceful impetus for the expansion of the principles of judicial review of administrative action. Where that power involves the state’s own employees, the motive can be no less justified.
In South Africa, constitutional reform ensued in order to enshrine the protection of employees of the state, without having to go the longwinded route ofjudicial review.
The decision of Chirwa v Transnet Ltd, explained this rationale of the law:As pointed out earlier, the line of cases which hold the power to dismiss amounts to administrative action rely on Zenzile. This case and its progeny must be understood in the light of our history. Historically, recourse was had to administrative law in order to protect employees who did not enjoy the protection that private sector employees enjoyed. Since the advent of the new constitutional order, all that has changed. Section 23 of the Constitution guarantees to every employee, including public sector employees, the right to fair labour practices. The LRA, the Employment Equity Act and the Basic Conditions of Employment Act (â€?BCEA’) have codified labour and employment rights. The purpose of the LRA and the BCEA is to give effect to and regulate the fundamental right to fair labour practices conferred by section 23 of the Constitution. Both the LRA and the BCEA, enacted to give effect to section 23, now govern the public sector employees, except those who are specifically excluded from its provisions. Labour and employment rights such as the right to a fair hearing, substantive fairness and remedies for nonÂcompliance are now codified in the LRA. It is no longer necessary, therefore, to treat public sector employees differently and subject them to the protection of administrative law.[289]
This is a recognition of the principle of democratic governance in which government is made accountable, a principle which the Commonwealth Caribbean will do well to emulate.
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