The Jeff Cumberbatch Column – An Uncomfortable Unionism
The right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests –ILO Committee on Freedom of Association (1985)
Truth to tell, despite its inarguable significance for freedom of association for trade union purposes, no one likes a strike. Not the employer who sees the smooth operation of its business frustrated; not the general public whose lives are invariably disrupted; and not even the workers themselves who might lose valuable income as a consequence of their not being ready and willing to provide service as contracted –the sine qua non (essential condition) of their entitlement to wages. Too besides, if the employer is the state, strike action and the inevitable disruption to public services might be perceived as being to the electoral disadvantage of the governing administration and a partisan attempt by the workers’ organization involved to ensure its demise.
Despite, or perhaps because of, its ability to disrupt normal existence, the right to strike is jealously guarded by the labour union and is further protected, though not expressly, both by ratified international Convention and by local law which confers certain immunities and privileges on workers’ organizations that engage in industrial action if effected in contemplation or furtherance of an industrial dispute.
For example, a business owner cannot maintain an action in tort, as he may against other entities, against a union for interference with that trade or business. Indeed, section 7 (1) of the Trade Unions Act, Cap. 361 is clear in its provision-
“An action against a trade union, whether of workmen or employers, or against any members or officials thereof on behalf of themselves and all other members of the trade union in respect of any tortious act alleged to have been committed by or on behalf of the trade union, shall not be entertained by any court”.
Of course, the right to strike is not an absolute right, as both the principles of international labour law and some regional statutes have recognized. Hence, with certain established safeguards, the right may be limited in the essential services –those services whose interruption would endanger the life, personal safety or health of the whole or part of the population; in the public service -for those public servants exercising authority in the name of the state and in the event of an acute national emergency.
And some regional jurisdictions have established industrial courts or tribunals to resolve industrial disputes according to principles of law and thus to pre-empt the probability of strike action. In this regard, it does not require a rocket scientist or a law scholar to reason that the honourable Prime Minister, Mr Freundel Stuart, must have been contemplating a recourse along similar lines when he suggested last week that perhaps the time had come for us to reconsider our voluntarist system of industrial relations and, although he did not say it expressly, to imagine the juridification of the local employment relation.
The current disquiet on the local scene resulting from the action by the National Union of Public Workers clearly has the governing administration, to use an expression from the US, “more nervous than a long-tailed cat in a room full of rocking chairs”. With an increase in visitor arrivals anticipated for the celebration of our golden jubilee of Independence in less than a fortnight, any dislocation at Customs and Immigration engendered by the National Union of Public Workers [NUPW] should impact severely on the comfort of these individuals and is likely to have a dispiriting effect on their holiday experience. One Cabinet member has labeled the conduct of the NUPW as reckless and irresponsible” while the Prime Minister has condemned the organization’s instinctive resort to strike action without first attempting to engage in social dialogue on the matter.
The real issue has been however most clearly articulated by the General Secretary of the Barbados Workers’ Union, Ms Toni Moore, who stated yesterday that she had sought the reason for the decision to revert Mr McDowell and “to ascertain if there had been a breach of the ILO’s Convention which protects union leaders”. This identifies precisely the bone of contention between the parties that seems to be lost on most commentators on the issue.
It is not whether it is within the managerial prerogative of the employer to revert Mr McDowell. This is beyond dispute so long as there is no conflict with a contractual provision to the contrary. Rather, as I wrote two columns ago, it is whether the actions of the employer in this instance amount to an act of anti-union discrimination prohibited by Article 1 of the Right to Organize and Collective Bargaining Convention 1949, an instrument that Barbados ratified on May 8 1967. According the ILO’s Committee on Freedom of Association –
“One of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full confidence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom”
The dispute has not so far been joined in the public domain on this narrow issue. I submit, however, that this is the heart of the matter and that while some are content to exercise their partisan preconceptions as to the patriotism, moral legitimacy or otherwise of the NUPW action and its likely consequences for the governing administration, a more focused debate should be on whether the reversion of Mr McDowell did in fact constitute an act of anti-union discrimination.