BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate since 2000 and BU commenter – see full bio.

MUSINGS:Labour’s pains
7/19/2015

“…I will make your pains in childbearing very severe; with painful labour you will give birth to children…” -Genesis 3:16 (NIV)

To the more perceptive among us, it should be clear by now that, given the events of recent weeks, in many respects the old order of things in industrial relations is rapidly giving way to a new dispensation. And last week’s earth tremors might just have provided a stark reminder for those with a less fatalistic view of such matters.

I suppose that it was ever thus, but for a people such as we are, culturally averse or so it would seem to even the thought of change, the shock must be especially severe. Suddenly, the old shibboleths by which we once lived and had our being by are becoming irrelevant in this brave new world and although many of a certain age still clamour for the comfort of a familiar existence, younger generations are demanding fundamental change in the way things are. In a poignant reminder of Robert Kennedy’s words of nearly half a century ago, the youth are not merely looking at things the way they are and asking “Why?” They are rather dreaming of things that never were and asking “Why not?”

For those inured to the old way of doing things, this conduct may be perceived as impudence, sassiness or worse on the part of those who would purport to ignore established convention and to chart a new path. The as-yet-unresolved industrial action in the BIDC/NUPW matter is a case in point. Some, either unfailingly loyal to one political party or the other or, more likely, lacking the proper analytical tools, chose to view it through the narrow jaundiced lens of partisan politics as a naked assault on the governing administration. Without more persuasion, I do not agree with this perception.

It is true that the institution of industrial action is essentially a political initiative, although I use the word “political” here in the broader sense as merely the adjectival form of “policy”, and not in the popular and narrower local sense of seeking to gain prospective electoral advantage through mass support of one’s views. In other words, I understood the NUPW as objecting fundamentally to the apparent policy of the BIDC, and perhaps other statutory corporations as well, to reduce their staff complement by terminations through the means of involuntary retirement by employing (no pun) the provisions of the statute on which the BIDC claims to have relied.

Of course, I am not in a position to know whether the union disagreed elementally with the policy of public sector retrenchment, given that the “conversation” never reached that level. This would also have been a political disagreement in the wider sense. However, the fact that it insisted eventually upon consultation with the BIDC before any terminations of the employment of its members should take place would seem to give the lie to any such inference. Consultation may possibly involve a total reversal of the decision to dismiss, but this is rare. More likely, good faith consultative discussions between the parties will centre on the arguable reduction of the number of employees to be terminated and the criterion or criteria for their selection.

I am aware of the populist view that the matter was not one of law, but I find this difficult to understand, given that the challenge to the policy by the union has always been clearly stated as “the BIDC had no legal right to do what it did” rather than “we want regime change in order to preserve the jobs of our members”. In this regard, I am a trifle disappointed that the legal issue will not immediately be resolved in the courts since, unless there is a dramatic change in the economic climate, it will probably recur elsewhere.

It is more the pity too that after the noble effort on the part of the Social Partnership to have the parties engage in structured social dialogue, a putative settlement may have been scuppered through the mindless failure on the part of someone or other to have the points of agreement reduced to writing for the consideration and signature of the parties’ representatives. In consequence, there is now a further dispute as to precisely what, if anything, has been agreed.
It might have been the general de-emphasis of the legal solution too that emboldened some of the workers of the Sanitation Service Authority to demand remuneration even for those days on which they did not work through industrial action. The law is clear that they are not so entitled, since a worker is entitled to be paid wages when he or she is ready and willing to work only. And the international labour law is, at best, ambivalent on the matter. According to the Committee on Freedom of Association of the International Labour Organisation, the non-payment of, or deductions from, the wages of workers for days of strike “gives rise to no objection from the point of view of freedom of association principles”.

If the local sanitation workers are aware of this, then their claim must be based on the frequently invoked [in recent times] “custom-and-practice” that is touted as being of equal force to law in industrial relations. This argument would be to the effect that the state authorities are not usually given on these occasions to making such deductions from workers’ wages, no matter what the law may say. They may argue therefore that they had a legitimate expectation not to be treated any differently on this occasion. Might there now be a fair reliance by the employer on what the law strictly provides and a denial of the allegedly customary practice?

Perhaps our current “labour pains” are merely a precursor of the birth of a new industrial relation. The Right Honourable Prime Minister in his exposition last week hinted as much, so far as the relevant law might be concerned. Let us hope for the sake of social peace that it is one characterised by increased social dialogue, more formalised rules and a ready recourse to justice for the parties rather than a mimicry of the patently anti-union provisions that entered into force in Britain last Wednesday.

Oh yes, and will someone remember to bring a writing instrument and paper next time there is a dialogue between disputants with a view to settlement?