The Jeff Cumberbatch Column – Suspension, Extinction or What?
“People might not get all they work for in this world, but they must certainly work for all that they get…” Frederick Douglass The Barbadian industrial relations culture is relatively unsophisticated. Here, there is no formalized process of the recognition of a workers’ organization as the certified agent of a bargaining unit, an issue that…
“People might not get all they work for in this world, but they must certainly work for all that they get…” Frederick Douglass
The Barbadian industrial relations culture is relatively unsophisticated. Here, there is no formalized process of the recognition of a workers’ organization as the certified agent of a bargaining unit, an issue that that has arisen on at least two occasions in recent times; there is no industrial tribunal or court to resolve rights disputes according to law; the collective agreement does not create a binding legal relation; and while there has been an attempt to preempt these and other issues by the establishment of a form of social partnership comprising representatives of labour, government and the private sector, there is at least some dispute as to whether this arrangement is as functional as it should be. At the same time, there is no essential services legislation.
Hence, industrial disputes are generally resolved by “force of industrial arms” and prime ministerial mediation rather than by judicial reasoning, even if the issue is one that cries out for a legal resolution. Of course, there may be nothing wrong with this method once all sides are on board with it, but my training compels me to see the legal recourse as the more effective option, especially where the issue is essentially one of legal principle.
Take, for instance, the on-going dispute between the local public sector union, the National Union of Public Workers and GAIA Inc., the concern that manages the island’s lone airport. From what I can gather, this dispute, which has already engendered one round of protest action, and some perfunctory “sabre rattling” from both sides of the divide, involves the deceptively simple issue of whether the workers are entitled to a further 3.5% as part of an overall 7.5% wage increase that had been agreed to between the parties in 2010. I say “deceptively simple” here, because, as I will argue later, the legal issues are indeed rather complex.
As is usual in these matters, those facts that are in the public domain are regrettably vague, but it seems that after this seven point five percent increase was agreed, and four percent of it had been paid to workers, there was an official directive that there should be no further increases in wages at that time owing to the existing economic climate. It is also reported that the NUPW initially objected to this but, at a meeting at the Prime Minister’s office in late December 2010, a “compromise” was reached between the parties. This understanding appears to have entailed that the outstanding 3.5% would be “taken off the table” (the quotation marks are not meant to indicate that these were the actual words used). It is alleged, in addition, that the workers at a meeting in early January 2011 endorsed this compromise. That endorsement was communicated to the relevant parties in writing.
However, according to the NUPW, that same correspondence included a condition that “should the economy improve” between then and June of that same year, the union would want “to revisit the moratorium placed on year 2011 increases”. It appears to be a bone of contention whether this condition subsequent as to an improvement in the economy was ever fulfilled.
It is, for me, a pity that this dispute will not be resolved in a legal forum, mainly because it does present some intriguing legal issues. For one, would the initial promise by NUPW to forgo the 3.5% be contractually binding, given that the other side had supplied no consideration for this promise? Or should it be treated rather as a waiver extinctive of the rights of the workers?
For another, what is the effect of the subsequently notified condition that this concession was to be read subject to there being no improvement in the economy in the next six months? Did this effect a mere suspension of the workers’ rights or was it an unseasonable (too late) qualification of their original concession? Had it been stated from the outset of the compromise?
Finally, if the condition was applicable, was there indeed a measurable improvement in the economy during the stipulated period? Or is that stipulation too vague to be legally enforceable? Would it now be inequitable for the NUPW to assert its claim to the 3.5%?
While such issues would clearly be matters for urgent consideration in the industrial courts of Trinidad & Tobago or Antigua & Barbuda or in the Industrial Disputes Tribunal of Jamaica, they will have to be resolved here eventually on the uncertain basis of apparent moral legitimacy and perceived right. Unfortunately, in Barbados, that frequently translates at the populist level into the partisan political agenda with opinion evenly divided between the views of those in support of the apparent position of the governing administration and those opposed thereto. This is almost laughable, especially in a circumstance where the dispute is between two independent entities…but that is the way it is. As I have noted on more occasions than a few prior, we subsist in a theatre of the absurd.
As it is, the current dispute is situated in the heart of the main port of entry in the middle of the tourist season -the lifeblood of our economy. Ordinarily, this should concentrate the national mind to immediate action, but not here. It will work itself out in the end, I can hear. It always does.
66 responses to “The Jeff Cumberbatch Column – Suspension, Extinction or What?”
Jeff Cumberbatch
Not much significance to it, David. Probably some long-held animus between them…who knows for sure?
You know, of course, that Mitch is the senior member of the Bar by the number of years call.
The simple issue is the procedural one of whether the union was consulted on the terminations as the Act requires, not the substantive one of whether the the NCC’s method of selection was a fair one.
Of course there is the animus BUT the time wasting!
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NorthernObserver
Mr.Franklyn your entire argument is based on the belief Mr.Clarke made the decision to forego the subsequent wage increase without consulting the membership. I will guess this information emanates from employees who have told you “nuhbuddy en axe or tell we we nuttin”? Is it possible in the NUPW minutes one will find record of a meeting where this information was conveyed [slipped in?], possibly in a manner the average person may not understand?
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Gabriel
Balance
I am being guided by the letter signed by Clarke and addressed to the CEO of GAIA Inc.,
Clarke says he met with the PM and met with the staff of GAIA Inc.,The 2011 increase was foregone but with a caveat.
I would tend to agree Clarke was supported by the lack of an immediate follow up by the staff in 2011,who,if they were not aware of the “sellout”,should have been raising cane with the accounts dept of GAIA Inc and the NUPW shop steward.In other words this matter should have been in the public domain in 2011 or soon after.
I too am wondering what caswell damaging allegation against Denis Clarke is based on. I hope it is not simply hearsay but facts sufficient to support his allegations
Are letters sent to the workers during the negotiations process detailing .Are the workers allow to vote on the final outcome of the negotiations
If Denise Clarke opt the member/ workers as full participants or negotiators then he indeed committed a grevious act and should be held responsible for any
financial or physchological damages brought about because of poor or misleading transactions to the workers.
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Caswell Franklyn
NorthernObserver
The workers were not consulted and even if they were the agreement would have to be approved by the National Council. Therein lies the problem: Clarke met with the Prime Minister on December 28, 2010 where they hatched the agreement to forgo the 3.5% increase in 2011. He then claimed that he met with the workers on January 3, 2011, and thereafter he informed GAIA Inc of the decision on January 4, 2011. In order to inform the airport of the decision, the National Council would have to be summoned and given seven days notice of the meeting before the agreement was approved. That seven days would have to pass between January 3 and 4, 2011. An impossibility.
The only reasonable explanation is that Clarke deceived the workers. He did not have the authority to act as he did, but his actions would bind the union.
If there was not adequate notice period to call a meeting of the Council then there is a good case for both parties to remove this matter from the public domain. Needless to say minister Sealy’s inflammatory public utterance on the matter was uncalled for.
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Caswell Franklyn
Minister Sealy’s problems is with Akanni, but that is what happens when Dems fall out. Sealy should have been aware of the dealings with Clarke and he ought to have known that the workers were not consulted. His righteous indignation did not impress me.
Sent from my iPad
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Artaxerxes
Caswell Franklyn February 7, 2016 at 8:50 PM #
“Minister Sealy’s problems is with Akanni, but that is what happens when Dems fall out.”
@ Caswell
It seems the entire DLP and their supporters’ “problem is with Akanni.”
In my opinion, many of those commenting on this situation are failing to understand the significant point, which is, according to Caswell, Dennis Clarke conducted negotiations on behalf of the GAIA employees unbeknownst to them.
I have to agree with Caswell that Clarke is a sellout. There was a situation where, after the 1986 general elections the DEMS terminated the services of several employees of the National Assistance Board and hired DEMS supporters.
The NAB under the Chairmanship of Farley Brathwaite and comprised of Richard Sealy (MoT), Derek Alleyne of UDC, Astor B. Watts, Rev. Errington Massiah and Reggie Hunte as Board members, appointed the DEMS and made such appointments retroactive to 1990. The employees who were employed prior to 1986 and remained at NAB were not appointed.
Those employees sought the services of NUPW and Dennis Clarke was supposed to deal with the issue. Clarke did not do anything to address the workers’ concerns. It was only when the government changed in 1994 that Delcina Burke of the NUPW was able to assist those employees in being appointed.
It seems to me that Caswell is correct. Furthermore, what research was done before the NUPW took the drastic step to attempt to shut down the airport. I must say that the public relations arm of the NUPW is in need of serious attention. We have their leaders declaring their political intentions , in an industrial climate that is highly polarised. Without credibility nothing would be achieved
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NorthernObserver
I feel like I am focusing a manual SLR camera on an object which keeps moving.
The issue is now procedural?
What if “time is of the essence” can’t a union, like a corporation, schedule an emergency gathering?
To me, the true essence of the matter is did the NUPW meet with its membership to discuss the matter. And did that membership, having a quorum, render a decision. I am unsure precisely what the blessing of the National Council becomes, or if they can reject the will of the membership?
Thus, not claims, but confirming if Mr.Carke (NUPW) met with the GAIA employees represented, was the matter clearly explained and was a decision rendered, are key to the scenario.
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Artaxerxes
William Skinner February 8, 2016 at 12:53 AM #
“We have their leaders declaring their political intentions, in an industrial climate that is highly polarised. Without credibility nothing would be achieved.”
@ Skinner
As far as I read and heard, the press implied that the president and treasurer maybe considering entering the political fray. When asked both individuals in question said that they were thinking about it at the time.
So what if they did actually declared “their political intentions?” Perhaps you are being purposely selective with your criticism. The Barbadian political system was basically conceived in the union movement.
There was a time in Barbados when cabinet ministers and senators were members of the BWU. Derek Alleyne who contested the St. Michael West Central seat for the DLP, worked at the NUPW. O’Brien Trotman was a past NUPW president who subsequently won the Christ Church West Central seat on behalf of the BLP and was appointed the Minister of Health and Social Security in the Bernard St. John administration.
In my opinion the industrial climate was not any different to what pertains now. However, the NUPW under known DEMS Dennis Clarke and Walter Maloney was dormant during their tenure as General Secretary and President respectively. People pay union subscriptions for the service of representation when the need arises. Both the NUPW and BWU have moved in a different direction, which in the past labeled these unions as pro-DLP. Because of recent protest actions, the critics are now saying the leadership is political and aligned with the BLP.
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Frustrated Businessman aka Republic my ass.
David February 7, 2016 at 8:11 AM #
Of course not Jeff, persons like you must put forth the logic of your training. Just stating the obvious given the flawed judicial system. The mismanagement that has led to the problem of inefficient delivery of justice in Barbados is one of the drivers feeding the same ‘ethos’ behind a lot of wha we do.
In fact, said delays have been used as a legal and business tactic in Bim for many years. Justice delayed is justice denied. Hence, our current banana republic status.
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balance
“millertheanunnaki February 7, 2016 at 1:00 PM #
@ balance February 7, 2016 at 12:47 PM
You are a man in the know when it comes to the Civil Service operations.
Do you know when last the posts of top civil servants were ‘reevaluated’ and salary scales adjusted to reflect any upward ‘re-grading’?”
To the best of my knowledge; increases in pay to public servants arising out of regrading/reclassification exercises took place in 1988, 2005, 2011. The one in 1988 is credited with contributing to our economic problems from 1991. The one in 2011 was supposed to correct anomalies arising out of the 2005 exercise.
Bro cas can correct me if I am wrong.
@David and Caswell,
Can you help me? some members of the NUPW (airport workers) left the NUPW and sought refuge in Caswell’s union. If the NUPW negotiates with GAIA and gets an increase, are the workers in Caswell’s union entitled to those increases also? Which of the two unions are the “legal” and, or, recognized bargaining agent for all the workers? Can the members of Caswell’s union strike without penalty? If Caswell decides to take GAIA to court, would that be only on behalf of those workers who have joined his union?Can he legally take the GAIA to court on behalf of only the workers in his union, or on behalf of ALL the workers?
I think Jeff should jump in this because I see some technical legal questions that need to be answered here. Example, is Caswell’s union recognized by GAIA as a bona fide representative of the Airport workers? Can both unions sit at the bargaining table?
However, according to the NUPW, that same correspondence included a condition that “should the economy improve” between then and June of that same year, the union would want “to revisit the moratorium placed on year 2011 increases”. It appears to be a bone of contention whether this condition subsequent as to an improvement in the economy was ever fulfilled.
The blogmaster invites you to join the discussion.