Jeff Cumberbatch – Chairman of the FTC and Deputy Dean, Law Faculty, UWI, Cave Hill

Permit me, dear reader, at the outset of this week’s essay, readily to concede that I am, to date, unschooled in the finer intricacies of the art of collective bargaining. Nevertheless, it appears to me that an opening gambit of seeking to secure a pay increase in the order of 23% from a notoriously cash-strapped employer appears at first blush to be either an initiative that would have evoked the query from a former colleague of “What have you been smoking?” or an infringement of the concept of good faith bargaining, an integral aspect of the industrial relations process.

It should be clear by now that I am referring to the publicly declared intention of the National Union of Public Workers [NUPW], the most representative public sector union, to seek that level of increase for public servants in the current negotiations.

It might be hazarded that the technique here might be that favoured by some students of “aiming-for-the-stars-so-that-you-might-still-fall-short in-the-clouds” and, to be fair to the NUPW, it has not been made publicly clear over what period this increase should obtain. Nor has the precise division of any annual increases been published. To treat the demand as a claim for an immediate 23% increase in 2017 therefore, is thus at least tendentious, even though the prospect of an increase of that nature over a triennium remains an awesome contemplation, given the state of the nation’s finances.

In any case, the international labour law on freedom of association for trade union purposes, as contained in Article 3(1) of Convention No. 87 of the ILO entitles the workers’ organization to “draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes”. Its bargaining strategy is entirely of its own making.

These entitlements are further concretized by article 3 (2) that stipulates-

“The public authorities shall refrain from any interference that would restrict this right (sic) or impede the lawful exercise thereof”

And while no one can fairly accuse the local public authorities of interference to such an extent as to restrict or impede these rights or indeed any of them, there appears to be extant a partisan rhetoric that would suggest that the union is politically opposed to the current administration and perhaps even allied to the Opposition in parliament. And that this stance is somehow improper.

Last week in this space I mentioned our quaint custom of using words, as Humpty Dumpty did, to mean precisely what we want them to mean, no more no less. On that occasion, I referred to the phrase “the silly season” that, contrastingly, refers here to a period of intense electoral activity. It might be argued too that locally, political opposition means having a different position from the governing administration, even if the industrial dispute such as it is in this case is really between the state, qua employer and the union, qua recognized bargaining agent for most public servants.

This misidentification of the state with the governing administration is all too prevalent in local discourse, and while the adversarial industrial relation is unquestioningly accepted as natural in the private sector, the public sector workers’ organization is forced to contend with the local shibboleth that you either support the administration in political authority or you are to be treated as opposed to it.

While such a convergence of views between the union’s executive and the government may quite likely portend a smoother or less contentious public sector industrial relation, it might also implicate negatively the bargaining power of the public workers, who are entitled to look to their elected representatives not only to negotiate increases in remuneration, but also to have those representatives advance an objective, informed view on governmental policy on the union’s behalf.

According to the ILO’s Committee on Freedom of Association –

“It was pointed out during the preliminary work on Convention No. 87 that trade union activities cannot be restricted solely to occupational matters since a government’s choice of a general policy is usually bound to have an impact on workers (remuneration, leave, working conditions, functioning of the enterprise, social security, etc.) This relationship is obvious in the case of national economic policy (for example the impact of budgetary austerity programmes or price and wage restrictions, structural adjustment policies, etc.) although for workers in particular it may also appear in the form of broader political or economic options (for example, bilateral or multilateral free trade agreements; the application of directives on international financial institutions, etc.)…”

Given the traditional and historical links between the workers’ organization and the political party both locally and regionally, it might be a little late in the day to advocate for the total independence of a union from partisan politics, although the Committee does counsel that “such political relations should not be of such a nature as to compromise the continuance of the trade union movement or its social and economic functions irrespective of political changes in the country…”

The unvarnished truth is that by its very nature the workers’ organization is a political institution to the extent that it will advocate and support economic policies that might lead to the advancement of its members’ interests and, conversely, will oppose those that it may perceive will not do so.

Much of the current partisan criticism against the NUPW appears to be premised on the notion that its youthful leadership, or at least most of it, is perceived as being allied to the current Opposition. Yet, given the highly polarized and politicized state of the nation, such a state of affairs would seem to be inevitable. Indeed, though it might merely be owed to pure happenstance, the Constitutional guarantee of freedom of association expressly stipulates membership of two organizations only; the trade union and the political party.

According to section 21 (1)-

“Except with his own consent, no person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say , his right to assemble freely and associate with other persons and in particular to form or belong to political parties or to form or belong to trade unions or other associations for the protection of his interests…”

In light of this, the political orientation of the workers’ organization is plainly a matter for its membership and, although I am unaware of his partisan political leanings, if any, I welcome the challenge to the current leadership mounted by my secondary school classmate, Mr. Roy “Gosh” Greenidge, who owes his sobriquet to a solitary expression of exasperation by our Mathematics teacher, Mr. U G Crick, one afternoon nearly fifty years ago. But that is literally bringing tales out of school. The membership of the NUPW will decide, in due course and in full freedom, precisely who their elected representatives shall be.