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.
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Musings: ‘Party of the year’
8/2/2015
By Jeff Cumberbatch
Of course, as my loyal and few but, nevertheless, exceedingly clever and attractive readers should have quickly surmised, the title of today’s essay has nothing to do with politics, and all to do with this being the last weekend of the annual Crop Over celebrations, where the popular emphasis is less on the “overing” of the crop itself and more about the carnival of it; a word whose origins, I am instructed, lie in the Latin for “farewell to the flesh” which is at once intriguingly ironic, given what tomorrow’s street parade portends.
Consequently, I must express my regrets to those who might have been attracted to this column by the title and its faint promise of a salaciously comparative assessment of the policies and members of the two major local political/electoral groupings and, at the same time, my appreciation to Mr Edwin Yearwood for having first coined the title of today’s effort as his
winning piece in Last Sunday’s Party Monarch competition.
I am mindful that I had promised last week to continue discussion of some of the legal issues relating to the recent spate of industrial dislocation in the quango and state sector, but there will be time enough to return to these in future.
And I think that there are few who could be bothered on a weekend such as this to digest the quiddities of the law relating to employment relations in a jurisdiction that is gingerly balanced, at present, between nostalgic loyalty to a seemingly-inadequate-for-these-times voluntarist tradition of industrial relations and a more modern commitment to a juridical construct where matters are conclusively determined by the judicial interpretation of enacted legislation.
Hence, this week’s effort is more in the nature of a generic “fireside chat”, with no single theme but the rambling thought patterns of a so-called legal scholar with a contractual commitment to the better Sunday publication in Barbados and a rare hour or so on his hands this (Saturday) morning into afternoon.
Amend the ERA? Seriously?
Not for the first time since its enactment in 2012, there have been newspaper reports of an official intention to amend the Employment Rights Act. Unhelpfully, these reports never venture into the specific failings of the statute in its current form or the precise proposed amendments.
It may be hazarded only that some influential party to the employment relation finds something in the legislation elementally unaccommodating to its immediate interests.
Not that the Act is perfect in all its provision. To mention a few failings, its exceptional perpetuation of the notion that the natural expiry of a fixed term contract constitutes a form of dismissal requires further explanation; the creation of a parallel concept of wrongful dismissal with its own new terms, forms of recourse and mode of redress unnecessarily blurs a formerly plain employment right; the right to priority in rehiring could do with some tightening of its procedures and there are more drafting infelicities than one.
Nonetheless, these sentiments are entirely personal and have not been pronounced upon definitively by the Employment Rights Tribunal itself or, indeed, by any appeal court. Further, the amendment of a statute so soon after its enactment and with scarcely any judicial or scholarly analysis of it smacks of an unbecoming panic and a rushed agenda on the part of someone or other.
Might it be the employers who may have wanted to restructure the employment contracts of their workers under the guise of providing the written statement of particulars but were stymied by the clear words of the provision that such a statement needed to be issued only where an employment contract was being contemplated and not where one already existed?
Could it have been the workers’ organisations that, under the Act, are now destined to play mainly a derivative, rather than primary role in the resolution of disputes involving the legality of the termination of a worker’s employment [except in cases of the redundancy of a significant number of them], or other contravention of his or her statutory rights?
Or is it the state apparatus that is clearly straining at the leash, if you will forgive the expression, to play an even more significant role in industrial relations disputes other than merely through the administrative auspices of the office of the Chief Labour Officer.
It does seem as if, similar to M. Jourdain in Moliere’s “Le Bourgeois Gentilhomme” the legislature “spoke prose without knowing it” by enacting the statute in a form that it so quickly needs to change. As it is so often put in these scenarios…film at eleven!
Reformation of the Social Partnership
A report in another section of today’s printed press hints at a probable extension of the membership of the existing Social Partnership.
According to the Prime Minister, “There are many other social groups, like the church, the co-operative movement and NGOs that have been knocking on the door, wanting to become members of the Social Partnership. It has been a closed shop and the stage is going to be have to be reached when we look back at its composition to see how best we can make it more inclusive so that the national discourse is broadened on issues that touch and concern people across the society…”
In language slightly reminiscent of his recent comment on the conduct of the union executive in the BIDC/NUPW industrial dispute by reference to the Biblical allegory of “new wine in old wineskins”, Mr Stuart was seemingly more appreciative of the value of a new dispensation this time around – “If we are going to move to a new platform, we cannot do so within old arrangements…Institutions are not a static and we have to respond to change…”
Arguably, as to which grouping should constitute the extension to the membership of the local Social partnership is a matter that ought to be determined by the people themselves, rather than by the dominant party to that very arrangement. One may therefore assume that the Prime Minister is impliedly inviting a national conversation on the reformed composition of the Partnership.
Limitations of space do not permit any extensive analysis of this matter today, but on the basis of the sector’s interest in societal and economic arrangements and the relevance of its likely contribution to the discussion, I would be prepared to argue for the priority of the inclusion of the consumer sector as it is defined in the relevant statutes over that of the Church, as controversial as this might appear.
Postscript
I extend sincerest sentiments of condolence to the family, friends and colleagues of Mr Gilmore Rocheford who recently shuffled off this mortal coil. Although my senior by quite a number of years, Mr Rocheford was nevertheless unfailingly kind to me whenever our paths crossed in earlier years. He was a great teacher who marked well. May he rest in peace.
I also wish an enjoyable day on what was last year’s Bacchanal Road to all of you readers who may participate in tomorrow’s revelry.
The blogmaster invites you to join the discussion.