The Caswell Franklyn Column – Trade Union Misrepresentation | Where the BWU failed a Member
In 1939 Parliament, by way of the Trade Disputes (Arbitration and Enquiry) Act, put a mechanism in place to deal with trade disputes. The act defines a trade dispute as, “any dispute or difference between employers and workmen, or between workmen and workmen, connected with the employment or non-employment, or the terms of the employment, or with the conditions of labour, of any person”.
It provides that any party to a dispute could report the matter to the Governor-General, who is empowered to appoint one or more arbitrators to hear and determine the matter, provided that both parties agree. The decision of the arbitrator would then be binding on both parties. Unfortunately for Barbados, trade unions have refused to utilise this method of dispute resolution for a number of reasons, but mainly because it would have deprived them of the opportunity to demonstrate their power to instil fear in the hearts of employers. That legislation remains in force and unused to this day.
Rather than use the law to promote dispute resolution, The Barbados Workers’ Union devised an alternative method, where disputes would be referred to the Chief Labour Officer for conciliation. If there is no resolution at that level, the matter would then be referred to the Minister of Labour, and ultimately to the Prime Minister, where no settlement is reached by the Labour Minster. Bear in mind that this system is voluntaristic and not binding on either party, but it really made successive Ministers of Labour feel as though they were being useful.
Mind you, from my experience, the union would only refer the matter to the Prime Minister when it found itself in an untenable position and needed to climb down and save face in the process. Of course, the climb-down would be accompanied by the the usual refrain – we settled out of respect for the office of Prime Minister.
With the coming into force of the Employment Rights Act, a new regime has replaced the voluntaristic approach for dealing with unfair dismissals. It has preserved a role for the Chief Labour Officer, as a conciliator only, but has made no provisions for the intervention of either the Minister of Labour or the Prime Minister.
Unfortunately, this nonsense of appealing to the Chief Labour Officer, in accordance with collective agreements still persist. Apparently, this is a case of old habits dying hard. Thankfully, a panel of the Employment Rights Tribunal, consisting of Kathy-A. Hamblin, Frederick Forde and Edward Bushell, has now put this misconception to rest, by what will only be a seminal ruling in the case involving Nicole Layne and G4S Security Solutions (Barbados) Limited.
In the first ground of appeal, the union alleged that the company “deliberately delayed processing [her] appeal as a consequence of which she was denied due process”. In dismissing that ground the tribunal observed:
“Later in his closing statement, Sir Roy also noted that the “Collective Agreement calls on us to meet without delay and resolve any differences.” If he was there suggesting that the disciplinary process should have proceeded from the outset in accordance with the terms of the Collective Agreement, rather than in accordance with the provisions of the Act, then he would have misconstrued the hierarchical position of the legislation in relation to that Agreement. Neither custom nor a private contractual arrangement takes precedence over the Act. The appeals process is the same whether an employee is unionised or not”.
The tribunal found in favour of the company but was constrained to note:
“This Claimant relied to her detriment on her Trade Union, which laboured under the misconception that an appeal lies as of right to the Chief Labour Officer in accordance with the terms of the parties’ Collective Agreement. The Union also based its “right” to appeal to the Chief Labour Officer on the Claimant’s behalf on custom or practice, disregarding the Act altogether”.
I can sympathise with some workers if they are not familiar with the provisions of the Employment Rights Act but I extend no such sympathy to persons who hold themselves out as workers’ or employers’ representatives.