Tag Archives: #CaswellFranklyn

The Caswell Franklyn Column – Trade Union Misrepresentation | Where the BWU failed a Member

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Caswell Franklyn, Unity Workers Union

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.

A Caswell Franklyn Column – Donville Inniss and Stealing Postage

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This evening (December 19, 2017) I opened my mail box and found an “ON SERVICE” envelope addressed to me from the Minister of Industry , International Business, Commerce & Small Business Development.  It turned out to be card offering me Seasons Greetings from my parliamentary representative, “The Hon. Donville Inniss, MP, JP.

I am concerned that my parliamentary representative might not be aware that posting such communication in an “ON SERVICE” envelope is contrary to section 6 of the Post Office Act.  Subsection 6.(1) states:

There shall be exempt from the payment of inland postage all letters and communications transmitted by post from –

(a)     any Ministry or department of the Government;
(b)     such other bodies or officials as the minister may from time to time by notice published in the Official Gazette declare to be approved bodies and officials for the purposes of this section.

Subsection 6.(2) goes on to say:

Every letter of communication mentioned in subsection (1) shall –

(a)     be on official business of the Ministry or department, or, as the case may be, of the other body or official from which or whom the same is forwarded;
(b)     be marked “On service” and bear legibly inserted on the bottom left hand corner of the envelope under the address the designation of the Ministry or department, or, as the case may be, of the other body or official, and the official title of the sender.

I have not seen the notice in the Official Gazette which designated Ministers of the Crown as being eligible for free postage.  I am therefore asking my parliamentary representative to point me to the rule that allows him free postage for his personal mail.  If he can’t, I would appreciate anyone else to enlighten me.

Right now my mind is saying – abuse of office.  I sincerely hope that I am wrong, not for the sake of the Minister but for the rule of law.  This type of behaviour tends to make Barbados look like a banana republic.

I would be satisfied if the Postmaster General would take steps to recover this money.

The Caswell Franklyn Column – Frontier Justice in Barbados

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Caswell Franklyn, Unity Workers Union

Caswell Franklyn, Unity Workers Union

It was heartening to read the Daily Nation of November 22, 2016 to see that some lawyers had expressed concern about a number of antiquated laws that should be removed from the statute books. They reasoned that the removal of these laws would reduce the number of nuisance cases that helps to clog up the courts.

I am also concerned about some of these laws but for different reasons. My view is that the laws in question serve no useful purpose and their use only criminalises mostly young men. The result is that many of them end up with criminal records that, in some cases, prevent them from moving on in life.

One of the offences specifically mentioned was “the 1970s act that makes it a criminal offence to wear something as innocuous as a camouflage swimsuit”. Prosecuting persons for wearing or possession of camouflage happens to be one of my pet peeves. I do not believe that wearing of all types of camouflage clothing is illegal. My view is that overzealous enforcement and misinterpretation of the statute by the authorities, including magistrates, is responsible for many persons being convicted for wearing camouflage clothing, in some circumstances where it is not an offence.

In 1984 the Defence Act was amended to outlaw the wearing and possession of specific types of camouflage clothing or material. Section 188.(1) of the Defence Act states, in part:

188.(1) A person is guilty of an offence who

(b) wears without authority

(i) any uniform or part thereof, or any article of clothing made from any of the disruptive pattern materials used for making the military uniform commonly called “camouflage uniform” or from any other material so nearly resembling any of those materials as is likely to deceive, or

(ii) any uniform or part thereof worn by any military organisation of any country, whether in being or disbanded;

(c) has in his possession without authority

(i) any uniform or part thereof, article of clothing or material mentioned in sub-paragraph (1) or (ii) of paragraph (b).

To my mind the statute is clear. It is an offence to wear clothing made from the type of camouflage material used by the Barbados Defence Force or any material that closely resembles BDF issue. It is therefore inconceivable that the Police would charge someone for wearing pink camouflage and, for me, incredulous to accept that a learned magistrate would convict an accused in such a case.

Since pink camouflage is not worn by the BDF, if a prosecutor wants to assert that it is worn by military of some other country, evidence must be adduced from an accredited representative of the particular country. Failing that, the court would have convicted a person based solely on an unsubstantiated allegation.

Maybe, the lawyers, who expressed concern about these laws, should have gone on to suggest that no accused person should be convicted of any offence without having a defence attorney, unless he opts to represent himself. To my mind, it is unfair to have a trained, professional prosecutor pitted against an accused person, who does not have the skills to represent himself. I am convinced that Dodds prison would have far less occupants if accused persons had a right to an attorney-at-law. There is no shortage of lawyers in this country and because of conditions similar to what can best be described as frontier justice, time is ripe for Government to establish a public defenders department.

At present, Government grudgingly provides lawyers to persons who are accused of serious offences like murder, manslaughter and rape. That is all well and good but what about persons who are accused of lesser offences which attract terms of imprisonment. The liberty of a person is far too serious to be treated in such a cavalier manner in the twenty-first century and definitely not in this fiftieth year of this country’s Independence.

The Caswell Franklyn Column – Akanni McDowall Punished for NOT Toeing the Party Line

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Akanni McDowall, President, NUPW

Akanni McDowall, President, NUPW

Akanni McDowall is substantively appointed to a junior post in the Public Service and until recently, he had been acting in senior posts in excess of two years. He also happens to be the duly elected president of the National Union of Public Workers (NUPW). His unceremonious reversion to his substantive post has generated a great deal of public comment, and rightly so, but much of it has been ill-informed or tainted with partisan political bias.

I came across two comments, posted by readers of the Barbados Today, that epitomises the ignorance that surrounds this issue:

1. “Why them don’t strike for the workers in Government that suffered the same fate as this gentleman”.

2. “He was acting. He is not entitled to a damn thing”.

Both of those comments betray a serious lack of knowledge of the institution called the “Public Service”. Firstly, I am aware that countless persons have been reverted to their substantive posts or even dismissed before the expiration of their contracted periods and only now is there any threatened industrial action. But, to my mind, Akanni’s case is unique and deserving of a response from all trade unions in Barbados not only NUPW. Unions must regard Akanni’s reversion as an attack on all unions. They must band together and not allow government to get away unscathed after this assault on a trade union leader or this episode could very well be the beginning of the end of the trade union movement in Barbados.

It is my understanding that he was appointed, by the Governor-General, to act in a higher office for a specific period. If that is indeed the case, his acting appointment could only come to an end by the effluxion of time or earlier, if he has been removed from office by the Governor-General. As far as I am aware, neither of those two conditions was satisfied to effect his reversion. Section 94. (1) of the Constitution of Barbados states:

Subject to the provisions of this Constitution, power to make appointments to public offices and to remove and to exercise disciplinary control over persons holding or acting in such offices is hereby vested in the Governor-General, acting in accordance with the advice of the Public Service Commission.

So far, I have heard many excuses but I am yet to hear anyone say that he was removed from his acting position by the Governor-General, who is the only lawful authority that can do so.

While we lament the attack specifically on Akanni but generally on the trade union movement, I believe that some good can still come out of this affair. It can serve to draw attention to the non-observance of public service rules and procedures that are required by law. The procedure for employing public officers are set out in the Recruitment and Employment Code – the First Schedule to the Public Service Act. It might surprise many to learn that the Public Service Commission only has the power to place persons to act in short term vacancies for a maximum period of twelve months. Yet still there are persons, including a permanent secretary, who have been acting in vacant posts for ten or more years. That restriction can be found at paragraph 9 of the code.

Further, Note 7 of the code directs the service commissions to fill vacancies immediately, “If there is any possibility that staff may be needed for more than 12 months”. Despite that, persons are given seemingly unending series of three-month authorities. They only serve as a means to ensure that the acting officers continue to toe the line. Akanni did not toe the line.

I hold the view and will continue of that mind until someone convinces me that Akanni’s removal had nothing to do with his youthful exuberant activity as a trade union leader seeking to represent his members. I have been asked on more than one occasion why am I fighting for my opponent. My response is always that there is a bigger picture; I must put out the fire at my neighbour’s house before it spreads to mine.

The Caswell Franklyn Column – Government Making Illegal Deductions From Salaries

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Caswell Franklyn, Head of Unity Workers Union

Caswell Franklyn, Head of Unity Workers Union

The finances of this country appear to be so bad that Government seems to be scrounging around to collect money, that in some cases, is not owed. Over the last several months, I have been inundated by calls from public officers about Government unilaterally deducting money from their salaries. In a majority of these cases, it is my view that these officers owe nothing.

On a regular basis, officers have been confronted with letters informing them that their extensions of sick leave on full pay were granted in error, and that they were only entitled to half pay and in a few cases no pay. The letters would then go on to say that the overdrawn salary would be deducted in set amounts over a period.

Even if the officers owed the money, and I contend that they do not, there would have been no prior consultation to determine how much they could comfortably pay back. At times officers find it impossible to make ends meet with what’s left. In one case, an officer was left with a net salary of $182 for the month.

In the private sector there is specific legislation that regulates how much money an employer can deduct from the wages of workers. Section 9 of the Protection of Wages Act, Chapter 351 of the Laws of Barbados states:

9.(1) An employer may deduct or stop from the wages payable to a worker under any contract of employment in respect of the following –

(a) the actual or estimated cost to the employer of any materials, tools and implements supplied by the employer to the worker at the latter’s request to be employed by him in his occupation; or

(b) any money advanced by way of loan by the employer to the worker, whether paid to the worker himself or to another person at the worker’s request in anticipation of the regular period of payment of his wages.

(2) A worker may assign a part of the wages payable to him under any contract of employment.

(3) The total amount which may be –

(a) deducted or stopped from the wages of a worker under subsection (1);

(b) assigned by a worker out of his wages under any contract of employment pursuant to subsection (2); and

(c) attached under any law,

shall not, in any pay period, exceed one-third of the wages of the worker in that pay period.

Some may be quick to say that the act does not bind the Crown, (that is a fancy way of saying that the legislation does not apply to Government). But for as long as I can remember, it has been Government policy that public workers would be treated no less favourably than their counterparts in the private sector.

Even so, Government became a signatory on May 8, 1967 to the Protection of Wages Convention of the International Labour Organization. And clearly that convention applies to Government workers. Article 2 paragraph 1 of the convention states:

This convention applies to all persons to whom wages are paid or payable.

Article 10 paragraphs (1) and (2) are also relevant in this case. They state:

(1) Wages may be attached or assigned only in a manner and within limits prescribed by national laws or regulations.

(2) Wages shall be protected against attachment or assignment to the extent deemed necessary for the maintenance of the worker and his family.

When Government deducts this so called overdrawn salary leaving a worker with a mere $182 to maintain that worker for a month; it is a clear violation of the solemn international commitment it has made.

Further, as discussed in a previous column, there is nothing in the law that allows Government to grant an extension of sick leave on anything other than full pay.

I would like to extend condolences to the family of the late Volta Lowe. I attended her funeral service and was heartened by the numbers from all walks of life who took time out to pay their final respects. Hers was a life dedicated to serving others. She was a tireless community worker who gave faithful service in everything that she did. Rest in peace my friend.

The Caswell Franklyn Column – Student Revolving Loan Fund: Guarantors Left Holding the Bag

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Caswell Franklyn, Head of Unity Workers Union

Caswell Franklyn, Head of Unity Workers Union

In an effort to recover monies owed to the Student Revolving Loan Fund by delinquent borrowers, the Student Revolving Loan Fund Management Committee (Committee) has resorted to naming and shaming delinquents by publishing their names in the print media. I wish the Committee well in its efforts but I am afraid that it is going to be difficult to shame persons who seem to be devoid of any conscience. They made use of the funds and now have no compunction about not repaying so that others can benefit, as they did.

Many of these heartless defaulters had asked friends and family members to be guarantors. Now that the loans are in arrears, these kind-hearted souls are left holding the bag and are required to repay the debt. Unfortunately, in many cases, the guarantors are retired public officers who rely solely on their pensions to keep body and soul together. And now without showing any mercy, the Committee has issued instructions to the Accountant General to garnish their pensions.

I do not know if the Accountant General has acted upon those instruction but the Committee will soon find out, if they have not already done so, that it has no authority to issue those instructions.

Pensions granted to retired public officers are intended to maintain the pensioners’ quality of life, and can only be levied upon in very limited circumstances. Regrettably, satisfying another person’s commitments to the Student Revolving Loan Fund does not qualify. Section 15 of the Pensions Act states:

15. A pension, gratuity or other allowance granted under this Act shall not be assignable or transferable except for the purpose of satisfying

(1) a debt due to the Crown or a debt due to the Housing Authority under the Public Officers Housing Loan Fund Rules, 1958;

(2) an order of any court for the periodical payment of sums of money towards the maintenance of the wife or former wife or minor child of the officer to whom the pension, gratuity or other allowance has been granted, and shall not be liable to be attached, sequestered or levied upon for or in respect of any debt or claim whatever except a debt due to the Crown or a debt due to the Housing Authority under the Public Officers Housing Loan Fund Rules, 1958.

The Student Revolving Loan Fund is not the wife or minor child of any of the guarantors and it is certainly not the Crown. It is a statutory board established by section 3 of the Student Revolving Loan Fund Act. Section 4 established the Student Revolving Loan Fund Management Committee, and goes on to say at subsection (2):

“The Committee shall be a body corporate and section 21 of the Interpretation Act, Cap. 1 applies thereto”.

For the purposes of this article, part of subsection (1) is relevant, it states:

21. (1) Where an Act passed after the 16th June 1966, contains words establishing, or providing for the establishment of, a body corporate and applying this section to that body those words shall operate-

(a) to vest in that body when established-

(i) the power to sue in its corporate name;

(ii) the power to enter into contracts in its corporate name, and to do so that, in relation to third parties, the body shall be deemed to have the same power to make contracts as an individual has;…

This does not mean that a guarantor, who is a government pensioner, does not have to repay the loan in the event that the borrower fails to honour his/her commitments to the fund. It means that the Committee would have to take those pensioners/guarantors to court to see if they have any means to pay, other than their pensions.

While I condemn, in the strongest terms, those borrowers who refuse to repay their debt to the Student Revolving Loan Fund, the Committee must share in the blame for accepting men of straw to be guarantors.

The Caswell Franklyn Column – Unfair Dismissal by NCC, Unfair Decision by Employment Rights Tribunal

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Hal Gollop, Chairman f the ERT

Hal Gollop, Chairman of the ERT

The long-awaited decision in the case of the National Conservation Commission (NCC) workers, who were unceremoniously dismissed on April 30, 2014, was handed down by the Employment Rights Tribunal (ERT) on July 15, 2016. That is a day that will go down in infamy in the local labour movement, even if some of the major players don’t realise it as yet.

The fact that this matter has taken over two years to complete does not speak well for the reputation of the ERT. The displaced workers experienced untold and unnecessary hardship while the matter languished as though no one cared if they suffered or not.

The Prime Minister was quoted in the press as saying that he regretted the amount of time it has taken but given the quality of the decision, he thought that it was well worth the wait – spoken by someone who has been able to pay his bills and had not missed any meals. I was able to obtain a copy of the decision, and after reading it twice, I am of the distinct impression that the PM and I read two different documents.

See ERT Decision –Employment Rights Tribunal 2014 064 Cutie Lynch and NCC Decision, with document

Around the middle of 2013 Government embarked on a major retrenchment exercise in order to bring its expenditure to a manageable level. By the time that exercise was over the following year, the Government’s workforce was reduced by approximately 6,000 persons. To this day, however, the Government is only prepared to admit that 3,000 persons were released from its service. Mind you, this was after solemnly promising, during their election campaign a few months earlier, that there would be no job losses in the Government service.

Thereafter, Cabinet approved a policy that set out the criteria for the release of staff. Most importantly, Government directed that the retrenchment exercise should generally be done on the basis of “last-in-first-out” (LIFO). Despite that clearly articulated policy, several statutory corporations, including NCC, carried out the exercise in defiance of the Cabinet’s instructions.

Workers at NCC, through their unions, challenged their dismissals as being unfair, before the ERT, on the grounds that the statutory corporation did not follow Cabinet’s policy of LIFO; and that they breached the Employment Rights Act by not consulting with the workers or their accredited representatives, prior to making the workers redundant.

To my mind, after considering the evidence, in its extremely prolix decision the ERT came to the only logical conclusion that the workers were unfairly dismissed. Remarkably, after setting out the reasons why the workers should not have been terminated, the ERT refused to order their reinstatement or re-engagement. Instead, the tribunal strayed from its mandate and invaded the realm of Government policy. It said at page 35 of the decision:

“It was clearly demonstrated from the evidence taken in this matter that the practicability of reinstatement or re-engagement of the complainants at this time is too remote given the reason for the implementation of the redundancy measures in the first place; it is our view that there would have to be an adjustment to the policy articulated by the Government through the Circular No. 1/2014, M.P. 6205 vol. 1T3 for re-instatement (sic) or re-engagement to be practicable”.

That is not the tribunal’s business and to my mind, it is an irrelevant consideration. The ERT went on to state that an order for reinstatement or re-engagement would be nugatory (useless). Useless for whom? Certainly not the workers! An order for reinstatement would mean that the employer would have to pay the wages of the workers from the date of their dismissal until the reinstatement took effect, in accordance with section 34 of the Employment Rights Act. In this case, it would mean that the NCC would have to pay the workers their wages for two years.

No wonder the Prime Minister is singing the ERT’s praises; if reinstatement were ordered government would have to look for double the amount that it is now required to pay under this flawed award.

The Caswell Franklyn Column – Does Government Even Care?

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The Nation Newspaper clipped the last sentence of Caswell’s column, here is the unedited version.
Stephen Lashley, Minister of Culture
Chris Sinckler, Minister of Finance
Prime Minister Mia Mottley, acted as lawyer for the project before being elected to government

On Tuesday May 10, 2016 debate on the Opposition motion of no-confidence against the Government started in the House of Assembly. I must confess that I did not listen. However from reports in the media, except CBC, it is my understanding that the Leader of the Opposition, Mia Mottley, levelled a wide-ranging set of charges to justify her call for the removal of the Government.

She was on her feet for five hours outlining her case which in my view was overkill. To my mind, there was one allegation that if proven to be correct would more than justify the Government’s removal from office. She revealed that the Government proposed to increase the salaries and allowances paid to parliamentarians by ten percent.

The following day, I heard a news item on Starcom Network news quoting Minister Stephen Lashley as saying that they did not get an increase in salary. My first reaction, to those seemingly contradictory reports, was that they cannot both be telling the truth. At this stage, I was not prepared to allow anyone to prove anything to me. I had to find out for myself. I logged onto Parliament’s website only to find out that both were correct.

The website revealed that there are resolutions before the House of Assembly seeking approval of two orders made on April 15, 2016 by the Minister of Finance to change the salaries of parliamentarians. So far, Miss Mottley is truthful in this regard.

Section 5.(1) of the Ministers and Parliamentary Secretaries (Remuneration and Allowances) Act, Chapter 8 of the Laws of Barbados, empowers the Minister of Finance to make an order to increase or decrease those salaries. Section 5.(2) states, among other things that the order is subject to affirmative resolution. That simply means that before the order can take effect it must be approved by both Houses of Parliament and assented to by the Governor-General.

In our system of governance, a member of Cabinet must support anything that the Government brings to the House or resign. So unless there are resignations from Cabinet in the offing, the thirteen members of the House who sit in Cabinet must vote “yes”. In order to defeat these resolutions both Mara Thompson and James Paul would have to vote with the members who do not support the Government. It can happen but that is hardly likely.

The next step in the process would be Senate approval. Government holds twelve of the twenty-one seats in the Senate. I therefore do not forsee a rebellion among Democratic Labour Party members in the Senate to defeat these resolutions.

Since the resolutions have not been approved in the House and Senate and assented to by the Governor-General, MPs would be unable to draw their new salaries. So in effect, Minister Lashley is also telling the truth.

Since 2013 Government has reduced its workforce by approximately 6,000. To date many of those workers have not seen one red cent in severance pay. In addition, Government has not seen it fit to even give vacation pay to former workers of Beautify Barbados. Mind you, if those workers were in the Private Sector, the Chief Labour Officer would have brought the employers before the court for failing to pay holiday pay. Incidentally, legal proceedings in such matters must be filed within a year of the holiday pay becoming due.

In light of all the suffering and deprivation that Government has inflicted on the most vulnerable in this society; How can they muster enough gall to even consider a proposal to increase the salaries of parliamentarians? This administration has deprived 6,000 public workers of 100% of their salaries and then made a token sacrifice of 10% of theirs. They are now seeking to reclaim the 10% that they lost. What about the 6,000 who went home? Does this Government even care?

Barbados Union of Teachers has Lost its Way

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The following is an unedited version of the article which appeared in the press last weekend.
Karen Best, Chief Education Officer and former president of the BUT
Pedro Shepherd, Barbados Union of Teachers (BUT)

As a practicing trade unionist, I find the stance taken by the Barbados Union of Teachers (BUT), with respect to its call to have a meeting with the Minister of Education, Ronald Jones, to be troubling and can only be summed up as “familiarity breeds contempt”.

President of BUT, Pedro Shepherd, publicly announced that his union would take industrial action if Minister Jones failed to meet with teachers on a particular date. Mr. Jones was a teacher and also a longstanding president of BUT. It would appear that his former union somehow believes that it should have no respect for the office of Minister of Education because the incumbent was one of them.

Mr. Jones has admitted that, as Minister, he has met with teachers in the past and in response to the union, he offered to meet after settling an agenda. That being the case, Mr. Jones has no one to blame but himself for the way teachers are now treating him.

As a former public-service trade union leader, Mr. Jones must know or ought to have known that, as a member of parliament, he has no right meeting with public officers to discuss any representations made by them, to deal with any matters related to their public office. That responsibility rest squarely on the shoulders of the Head of Department, who in this case is the Chief Education Officer (CEO).

Again the matter of familiarity breeding contempt has raised its ugly head. The current CEO, Karen Best, happens to be the immediate past president of the BUT. Any representations made by teachers or their representatives, including complaints against the Minister, should first be directed to her. Instead, teachers had been mixing business with friendship and have been bypassing all avenues open to them and improperly referring their concerns directly to the Minister.

Ministers, particularly the Education Minister, have routinely met with public officers even though such meetings are contrary to the “General Orders for the Public Service of Barbados 1970”. General Order 3.17 states:

Officers and employees who wish to make representations regarding promotion, transfer, increased emoluments or other matters related to their public office should do so through the Head of their Department or their accredited representatives and should not directly or indirectly approach a Member of Parliament. The Head of Department shall forward such representation to the appropriate authority within seven working days.

The General Orders that were previously unenforceable have been given the force of law by section 33.(2) of the Public Service Act 2007. The meeting that was proposed by BUT, where the Minister would sit down with teachers, would be highly improper as it would conflict with the General Orders. In essence, the union has ordered a strike to facilitate them breaking the rules.

The major problems in the Public Service have their genesis in politicians overreaching into areas that are outside of their responsibility, either by operation of the law or constitutional convention. Unfortunately, the lines separating politicians from civil servants have been blurred to the extent that unlawful political interference is now accepted as being the norm.

It is bad enough when BUT could mislead its membership to strike in order to force a Minister of the Crown to do the wrong thing. It is even worse when the general secretary of this country’s major union could flay Minister Donville Inniss for being completely in the right for a change.

There is no place in a modern Barbados for union leaders to call a strike at the mere drop of a hat because they know that they have it in their power to disrupt. The Public Service of Barbados would be a whole better place if those who seek to represent workers would first ground themselves in the relevant rules and procedures that directly impact on them, rather than relying on the art of bluster or mindless sabre-rattling.

Teachers by the very nature of their profession must be role models for their students. How can they explain their behaviour to their charges in this regard?

The Caswell Franklyn Column – A Word to the Wise, Donville Inniss

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donvilleinnissBARBADOS HAS REACHED a stage where the words and actions of politicians must be carefully analysed, and not taken at face value.

Without attempting to cast aspersions, politicians seem to be guided by what would get them re-elected. In that context, I would like to posit my views on Minister Donville Inniss’ recent critical remarks of customs officers.

If you ask anyone who follows politics to identify who is the most forthright among our local politicians, the answer would invariably be Inniss. However, when his overall remarks are critically analysed, a worrying trend seems to emerge.  It would appear that he has concluded that his party would most likely lose the next elections; and with that in mind, he is positioning himself to lead the Democratic Labour Party after the elections that are constitutionally due in 2018. That eventuality would put him in a position to become the Prime Minister in 2023.

His defeatist attitude, in relation to the next elections, has resulted in an attempt to show the public that he is an expert in all areas. In order to boost his profile, he has taken to being highly critical of public officers, who are barred by the rules of the Public Service from responding. He then gets favourable media coverage for attacking and putting telling blows on victims, who would be subject to disciplinary penalties if they responded to defend themselves.

At the official opening of a store in Bridgetown recently, Inniss weighed in on the matter of the transition of the Customs and Excise Department into the fledgling Barbados Revenue Authority (BRA). He bemoaned the time that the transition is taking and became extremely critical of customs officers.

Appointed customs officers are public officers and, like all other workers in that category, their terms and conditions of service give them a measure of constitutional protection, which theoretically insulates them from political interference in their hiring and dismissal procedures. (Politicians have already circumvented the Constitution in the hiring practices of the Public Service).

Inniss seems to be expecting customs officers to pull up stakes in the Public Service and relocate to the BRA, without knowing  what they are getting into.  So far the job descriptions have not been communicated to workers, which means that BRA has been employing workers in contravention of the Employment Rights Act for two years. And he wants customs officers to go merrily but blindly into that mess with only an assurance that politicians would somehow do the right thing by them.

It is interesting to note that there is currently no law that would permit the absorption of Customs into the BRA. The Barbados Revenue Authority Act received the Governor General’s assent on February 27, 2014. It was proclaimed and came into force on April 1, 2014.

That act gives the BRA the power to administer ten acts of Parliament along with parts of the Road Traffic Act and its subsidiary legislation in so far as those enactments relate to the collection of taxes, fees and other sums. Nothing in the Barbados Revenue Authority Act empowers the BRA to administer the Customs Act.

How can the minister blame customs workers for Government’s failure to put terms and conditions in place before employing anyone at a statutory board, in accordance with the Employment Rights Act? Further, even if those terms and conditions were in place; how can the minister or anyone else for that matter attribute blame to customs officers for Government’s failure to put the appropriate legislation in place to effect the transition.

You must admit that the minister sounded as though he really knew what he was talking about. However, when the facts are examined in good light, he appears to be just a run-of-the-mill politician trying to make a name for himself.

The Minister needs to be reminded that he is operating under a Westminster type system of government where ministers of the Crown do not publicly criticise public officers. A word to the wise.

Caswell Franklyn is the General Secretary of Unity Workers Union and a social commentator. Email: caswellf@hotmail.com

The Caswell Franklyn Column – Lawmaker vs Lawbreaker

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tonimoore

The inordinately long dormant Barbados Workers’ Union has finally awoken from its years of slumber and has stood up to Government, on behalf of the long-suffering workers of the Barbados Water Authority. No sensible person takes delights in strike action but the Barbados Workers’ Union has shown that it is prepared to use the union’s ultimate weapon, when it is forced by an employer who refuses to see reason.

I congratulate the General Secretary and her Executive Council for its action in support of these workers, but more importantly for rekindling the spirit of trade unionism in this country. Good Job!

That said, I would like to address a number of other niggling, intractable issues that have been plaguing workers for several years that regularly cross my desk. These issues might not evoke widespread anger to generate industrial action but they are causing disquiet among workers.

The Public Service Act (PSA) was passed in the dying days of the Arthur administration. Some aspects are very desirable which appear as though they were designed to woo the public-service vote. Unfortunately for Arthur his last-ditch efforts did not capture the imagination of the Public Service for whatever reason. But it now appears that the benefits that he placed on the books that were intended to apply to all eligible workers are being applied selectively.

Section 13.(7) of the Public Service Act provides that any person who: is not appointed; has been employed for not less than three years prior to December 31, 2007; and have the necessary qualifications for appointment, shall be entitled to be appointed with effect from December 31, 2007; and shall be treated as being so appointed. So far over three thousand workers, who met the criteria, have been permanently appointed in the Public Service.

Eight years and three months after persons became eligible for automatic appointment, there are still pockets of workers who qualify but have not been appointed, in accordance with the law. Whenever the appointing authority is challenged on the non appointment of officer in this category, they invariably reply that they were not enough established posts to accommodate everyone who qualified.

That response does not make sense in light of section 13.(5) of the PSA, which states:

(5) Subject to subsection (6), all temporary offices in the Public Service that
(a) were created as temporary offices; and
(b) have been in existence for 3 or more years at 31st December, 2007,

are hereby established as public offices in the Service.

The only reasonable explanation for the surplus of persons over post would be that some persons, who did not qualify in accordance with the PSA, were appointed in preference to those who qualified.

To deny these workers their right to automatic appointment for such an extended period is bad enough but now some of them are now being asked to apply and be interviewed for jobs that they have been performing satisfactorily for more than a decade. In some instances, these workers are being denied their appointments on the pretext that they did poorly at interview. When all is said and done, it needs to be explained how workers who have an automatic entitlement to be appointed do not eventually get their jobs.

Section 13.(8) of the PSA makes provision for officers, who are already appointed but had been acting in higher, vacant posts for the same three-year period, to be appointed with effect from December 31, 2007. Regrettably, when the appointing authority decide to make the appointments, they do so without regard to the rights that have been acquired by officers. The most recent appointments in the Customs and Excise Department followed that trend.

Constraints of space would only allow me to deal with one other area where Government refuses to comply with the law. Section 13 of the Employment Rights Act requires employers, including statutory boards , to give the employee a written statement of the particulars of the employment, prior to or forthwith upon the commencement of the contract. Among other things the statement must contain a description of the work for which the person is employed.

Two years after it started employing staff the Barbados Revenue Authority has not complied with this mandatory provision, and are only now seeking to put terms and conditions in place in collaboration with the National Union of Public Workers.

It goes without asking but I will ask nonetheless: What example is Government setting by being the lawmaker and a major lawbreaker?

 

The Caswell Franklyn – Poor Representation by Union

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Caswell Franklyn, Head of Unity Workers Union

Caswell Franklyn, Head of Unity Workers Union

THE FACADE OF A PEACEFUL industrial relations environment at the Grantley Adams International Airport was recently shattered by a three-hour work stoppage that was instituted by the National Union of Public Workers (NUPW).

The union is claiming that the Grantley Adams International Airport Inc. (GAIA Inc.) owes the workers an increase of 3.5 per cent on their basic pay going back to January 2011.

GAIA Inc. denies the union’s claim and the matter has now been referred to the Chief Labour Officer. But how did the matter reached this point?

In October 2010 the NUPW and GAIA Inc. concluded negotiations for the two-year period January 1, 2010 to December 31, 2011. The parties settled on a pay increase of four per cent for 2010 and a further increase of 3.5 per cent which should have taken effect on January 1, 2011.

GAIA Inc. admitted in a full page media statement in the SUNDAY SUN of February 14, 2016 that an agreement was reached for an increase of 7.5 per cent over the two-year period. However, when the board of directors submitted the matter to the Cabinet for final approval, the Government instructed GAIA Inc. that there should be no increase in wages and salary for whatever reason.

It should be noted that submitting salary increases to the Government for approval is a statutory requirement for the Public Service and statutory boards.

But GAIA Inc. is a private company that is registered under the Companies Act and there should be no need to submit salary increases to Cabinet. Government is the sole shareholder of GAIA Inc., but that does not make the company a statutory board. In the normal scheme of things, the board of directors of a company is responsible and oversees the operations on behalf of the shareholders. The board does not revert to the shareholders to approve operational decisions of management.

If I am to rely on the media statement, referral to the Cabinet was the first mistake that set the sequence of unorthodox industrial relations procedures rolling. Thereafter, matters got worse; the NUPW, rather than behave like a trade union, went cap in hand to the Prime Minister.

From the documents in the public domain, the Prime Minister met with the parties to the agreement on December 28, 2010 and it was agreed that the 3.5 per cent for 2011 would be “taken off the table”.

Then by letter dated January 4, 2011, the general secretary of NUPW wrote to GAIA Inc. to inform them that the union met with the workers on January 3, and that they “agreed and accepted that there will be no increase for January 2011”. So far not one worker of GAIA Inc can be found that is even aware of the January 3 meeting.

If there were such an agreement by the workers, that agreement would then have to be referred to the union’s national council for approval. It would therefore have been impossible to summon a meeting of the national council in less than one day. It is, therefore, clear to me that the workers at GAIA Inc. had no role in taking the 3.5 per cent increase off the table. Their anger is understandable but in my view, it is misplaced because they were poorly represented by their union.

There was a collective agreement for an increase of 7.5 per cent over two years that should have been honoured since it was concluded with persons who had authority to bind GAIA Inc. At this point, many industrial practitioners would be saying that collective agreements are binding in honour only and that the workers had no legal claim to the increase. However in this case they would be wrong.

While it is true that collective agreements would not normally confer any legal rights on workers, in this case the workers acquired a legally enforceable claim to their new salaries because the employer implemented the agreement by paying back pay on December 28, 2010.

On the very day that the Prime Minister was meeting with the parties to the agreement, with a view to scuttling the pay increase, GAIA Inc. started to pay its workers under the terms of the new arrangements. There was therefore nothing on the table that could have been taken off.

GAIA Inc. might assert that it had an agreement with a person who had ostensible authority to bind the union. Mind you, that argument is liable to fail because having implemented the agreement to increase salaries, each and every worker at GAIA Inc. had a new term in their contracts that could not be altered without their individual consent.

If the company prevails, the workers would still be entitled to their increases from their union because it failed to give its members fair representation.

Caswell Franklyn is the general secretary of the Unity Workers Union and a social commentator. Email: caswellf@hotmail.com

The Caswell Franklyn Column – No Need for New Anti-violence Law

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Caswell Franklyn, Head of Unity Workers Union

Caswell Franklyn, Head of Unity Workers Union

OVER THE LAST TWO WEEKS, I was under almost constant attack from kidney stones. If you have ever suffered from that condition, you would know that those attacks are not a Sunday evening walk in the park. However, whenever there was a lull in hostilities, I would take out my iPad, check email and generally keep up with the news.

The kidney stones were bad enough but it was most disconcerting to receive an average of two or three unsolicited emails per day advertising burial insurance.  If there isn’t, they ought to be a law against that. Luckily, I do not put much stock in omens. Nonetheless, I thought it prudent to confess my sins, which didn’t take long since they weren’t many, and got back to my reading as there was little else that I could have done.

The ads did not cause me as much concern as the reports and comments that were generated by the amendments to the Domestic Violence (Protection Orders) Act.

As a result, I was forced to log on to Parliament’s website to read the bill. Mind you, my concern is not out of personal fear. I am worried about the devastating effects that misuse of its provisions can have on this country.

After reading the reports of the debate, the views of commenters and the bill itself, I tend to believe that most of those persons who commented in support of the amendments, did not even suffer from cursory knowledge of the original 1992 legislation. The amendments seem to be an unnecessary overreaction to some extreme cases of domestic violence, where law enforcement agencies failed to utilise the existing law to protect victims. Rather than study the causes that led perpetrators (men) to take the law into their own hands, Government has allowed itself to be stampeded by well-intentioned do-gooders to throw draconian legislation at the problem.

Neither the Government nor I have done research into the causes of the escalation of these extreme cases of domestic violence, but from anecdotal information, I believe that the manner of the enforcement of the legislation is a major contributing factor into the surge of retributive attacks against women, leading to deaths in some cases.

The original 1992 Domestic Violence (Protection Orders) Act was designed as a shield to protect victims of domestic violence. Instead, victims, pretend victims, police and the magistrates’ courts have been using or allowing the law to be used as a sword to belittle and otherwise disadvantage men. I firmly believe that the rise in extreme cases of domestic violence has resulted from men who believe, rightly or wrongly, that they were hard done by the outcome of their cases, and believe they have no recourse available to them.

These amendments suggest that Government does not know how to tackle the problems associated with domestic violence and has brought these amendments to make it appear as though they are doing something. One example would suffice to show that they are just pretending to be doing something. In the definition section of the 1992 act, it states: “child” includes an adopted child, a stepchild or a child who is a member of the household of the complainant and is treated as such by the complainant and the complainant’s spouse.

That definition was more than adequate but it was replaced by: “child” means a person under 18 years of age who is not married and is considered to be in a domestic relationship by virtue of continued residence or a relationship of consanguinity or affinity with the perpetrator or victim of domestic violence and includes an adopted child, a stepchild and a ward.

Gobbledygook if you ask me.

Caswell Franklyn is the general secretary of Unity Workers’ Union and a social commentator. Email caswellf@hotmail.com.

The Caswell Franklyn Column – Concessions to Cost-U-Less Should Raise Hair

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Caswell Franklyn, Head of Unity Workers Union

Caswell Franklyn, Head of Unity Workers Union

Over the years, I have been complaining that the system of governance practiced in Barbados is merely a parody of the Westminster System that obtains in England. In a previous article, I wrote that we have all the trappings of a Westminster type democracy but they do not work as designed.

It is not my intention to disparage or in any way pull down an institution that history records as existing for over 376 years. I am concerned that the present occupants are not doing enough to make Parliament a place of which all Barbadians can be proud. To this end, I am calling on Her Majesty’s Loyal Opposition to do whatever is necessary to halt Parliament’s slide into irrelevance by ensuring that its rules and traditions are observed as intended. But it appears to me as though the Opposition could care less and is just biding its time until this DLP administration crashes and burns. Unfortunately that strategy might fail and it is the people of this country that will continue to suffer.

In my last column, I referred to the Minister of Finance waiving taxes under the Duties, Taxes and Other Payments (Exemption) Act. That act and the Interpretation Act require the minister to lay orders to waive or remit taxes in Parliament, “as soon as may be after they are made”. Only last week, while reading the Official Gazette, I came across one such order that should raise the hair on the back of the necks of all right-thinking members of this society, especially the members of the Opposition.

Official Gazette No. 102 dated December 14, 2015 carried a notice published as S.I. 2015 No. 90. It is an order made by the Minister of Finance designated as the Duties, Taxes and Other Payments (Exemption) (Cost-U-Less (Barbados) Inc.) Order, 2015. By now some of you might be saying that you don’t understand the fuss I’m making since the tax concessions to Cost-U-Less is old news.

Unfortunately, it is not. According to the notice in the Official Gazette, the Minister of Finance only made the order on December 4, 2015. My question therefore is: Under what authority were these tax concessions accessed by that company back in 2011. At best, this whole episode amounts to an insult on the intelligence of Barbadians. Paragraphs 7. (2) and 8 are instructive. They state:

7. (2) The exemptions referred to in paragraphs 3 and 4 are granted on the condition that the project commences on or before June 1st, 2011 and is completed by 30th of November, 2012.

8. This Order shall be deemed to have come into operation on the 1st day of May, 2011.

By regularising these unnecessary, and so far unexplainable, tax give-aways four years after the fact, Government has ensured that parliamentary oversight of the minister’s actions would be an exercise in futility or rather a veritable mockery on the institution called the Parliament of Barbados.

The people of Barbados, through the Opposition, must demand answers from Government explaining why it was necessary to lavish tax concessions on a company to develop a shopping mall to house a supermarket, restaurants and other related amenities at Warrens. I well remember that a shopping complex was constructed at Carlton, Black Rock and I am yet to see any order giving tax concessions to that project.

Further, it would be interesting to see if Government could give credible explanations for paragraph 5 of the order, which states:

5. The Company is exempt from the payment of withholding tax payable under the Income Tax Act, Cap. 73 for a period of 15 years in respect of

(a) the interest and dividends paid by the Company to resident or non-resident shareholders or individuals who have given loans to the Company; and

(b) fees paid to non-residents who were contracted to provide management services, consultancy or technical skills for the construction of the project.

It would also be interesting to find out the identity of these favoured investors.

Government is proposing that this country become a republic, which basically is a government by the people for the people. Unless more information is forthcoming from Government about this deal, it would appear that we have a government by the people for their friends. That scenario is not a republican form of government; it would be corruption if found to be true.

The Caswell Franklyn Column – Why Political Parties Exist

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BU shares the Caswell Franklyn Nation newspaper column – he is the General Secretary of Unity Workers Union and BU Contributor.
Caswell Franklyn, Head of Unity Workers Union

Caswell Franklyn, Head of Unity Workers Union

Recent developments in this country have convinced me beyond a shadow of a doubt […] Continue reading →