Jeff_column

The Jeff Cumberbatch Column – Labour’s Pains

Jeff Cumberbatch - Columnist, Barbados Advocate

Jeff Cumberbatch – Columnist, Barbados Advocate

BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate since 2000 and BU commenter – see full bio.

 

MUSINGS:Labour’s pains
7/19/2015

“…I will make your pains in childbearing very severe; with painful labour you will give birth to children…” -Genesis 3:16 (NIV)

To the more perceptive among us, it should be clear by now that, given the events of recent weeks, in many respects the old order of things in industrial relations is rapidly giving way to a new dispensation. And last week’s earth tremors might just have provided a stark reminder for those with a less fatalistic view of such matters.

I suppose that it was ever thus, but for a people such as we are, culturally averse or so it would seem to even the thought of change, the shock must be especially severe. Suddenly, the old shibboleths by which we once lived and had our being by are becoming irrelevant in this brave new world and although many of a certain age still clamour for the comfort of a familiar existence, younger generations are demanding fundamental change in the way things are. In a poignant reminder of Robert Kennedy’s words of nearly half a century ago, the youth are not merely looking at things the way they are and asking “Why?” They are rather dreaming of things that never were and asking “Why not?”

For those inured to the old way of doing things, this conduct may be perceived as impudence, sassiness or worse on the part of those who would purport to ignore established convention and to chart a new path. The as-yet-unresolved industrial action in the BIDC/NUPW matter is a case in point. Some, either unfailingly loyal to one political party or the other or, more likely, lacking the proper analytical tools, chose to view it through the narrow jaundiced lens of partisan politics as a naked assault on the governing administration. Without more persuasion, I do not agree with this perception.

It is true that the institution of industrial action is essentially a political initiative, although I use the word “political” here in the broader sense as merely the adjectival form of “policy”, and not in the popular and narrower local sense of seeking to gain prospective electoral advantage through mass support of one’s views. In other words, I understood the NUPW as objecting fundamentally to the apparent policy of the BIDC, and perhaps other statutory corporations as well, to reduce their staff complement by terminations through the means of involuntary retirement by employing (no pun) the provisions of the statute on which the BIDC claims to have relied.

Of course, I am not in a position to know whether the union disagreed elementally with the policy of public sector retrenchment, given that the “conversation” never reached that level. This would also have been a political disagreement in the wider sense. However, the fact that it insisted eventually upon consultation with the BIDC before any terminations of the employment of its members should take place would seem to give the lie to any such inference. Consultation may possibly involve a total reversal of the decision to dismiss, but this is rare. More likely, good faith consultative discussions between the parties will centre on the arguable reduction of the number of employees to be terminated and the criterion or criteria for their selection.

I am aware of the populist view that the matter was not one of law, but I find this difficult to understand, given that the challenge to the policy by the union has always been clearly stated as “the BIDC had no legal right to do what it did” rather than “we want regime change in order to preserve the jobs of our members”. In this regard, I am a trifle disappointed that the legal issue will not immediately be resolved in the courts since, unless there is a dramatic change in the economic climate, it will probably recur elsewhere.

It is more the pity too that after the noble effort on the part of the Social Partnership to have the parties engage in structured social dialogue, a putative settlement may have been scuppered through the mindless failure on the part of someone or other to have the points of agreement reduced to writing for the consideration and signature of the parties’ representatives. In consequence, there is now a further dispute as to precisely what, if anything, has been agreed.
It might have been the general de-emphasis of the legal solution too that emboldened some of the workers of the Sanitation Service Authority to demand remuneration even for those days on which they did not work through industrial action. The law is clear that they are not so entitled, since a worker is entitled to be paid wages when he or she is ready and willing to work only. And the international labour law is, at best, ambivalent on the matter. According to the Committee on Freedom of Association of the International Labour Organisation, the non-payment of, or deductions from, the wages of workers for days of strike “gives rise to no objection from the point of view of freedom of association principles”.

If the local sanitation workers are aware of this, then their claim must be based on the frequently invoked [in recent times] “custom-and-practice” that is touted as being of equal force to law in industrial relations. This argument would be to the effect that the state authorities are not usually given on these occasions to making such deductions from workers’ wages, no matter what the law may say. They may argue therefore that they had a legitimate expectation not to be treated any differently on this occasion. Might there now be a fair reliance by the employer on what the law strictly provides and a denial of the allegedly customary practice?

Perhaps our current “labour pains” are merely a precursor of the birth of a new industrial relation. The Right Honourable Prime Minister in his exposition last week hinted as much, so far as the relevant law might be concerned. Let us hope for the sake of social peace that it is one characterised by increased social dialogue, more formalised rules and a ready recourse to justice for the parties rather than a mimicry of the patently anti-union provisions that entered into force in Britain last Wednesday.

Oh yes, and will someone remember to bring a writing instrument and paper next time there is a dialogue between disputants with a view to settlement?

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52 Comments on “The Jeff Cumberbatch Column – Labour’s Pains”

  1. David July 19, 2015 at 6:30 AM #

    The question to be answered by those pushing the political line: is the union solely to blame for the communication blunder coming out of the meeting with the social partnership?

    Like

  2. are-we-there-yet July 19, 2015 at 6:48 AM #

    The other questions might be:

    Is the Union partially to blame for the so called miscommunication?
    Is the Government totally to blame for the miscommunication?
    Is the Government partially to blame ….?
    Did the experienced Government side guide the new people on the block and insist on a joint communication?

    I suspect a lot of this matter is spin from the Government side!

    Like

  3. johnnu July 19, 2015 at 6:50 AM #

    david did you the article on Barbados Today attributed to the President of NUPW where he is purported to have said I told my members bot to elect a fool on the union’s executive, well the members did the opposite and elected a fool. The guy simply does not listen to people and he is the one to blame , the press will make you and break you. I have no doubt that his executive is being schooled by the blp, watch who attended the demonstration, almost all the elected blp members.

    Like

  4. David July 19, 2015 at 6:51 AM #

    How effective is the Social Partnership at a time when the government must be hellbent on retrenchment in the public service?

    Like

  5. David July 19, 2015 at 6:53 AM #

    @johnnu

    Have you therefore absolved the NUPW Executive Council in final decisions made?

    Like

  6. ac July 19, 2015 at 7:10 AM #

    dr. byer use of diplomacy when asked who is to blame and her response being ‘both sides” was refreshing and fair ((enough) given the hostile economic environment and the toxic political divide during these past weeks of strike action her response was a welcomed (one) which was meant to take us away from the bitterness and infusion of politics and” act” as a catalyst moving both sides forward to reopen fresh and new dialogue beyond politics

    Like

  7. Zoe July 19, 2015 at 7:39 AM #

    “Oh yes, and will someone remember to bring a writing instrument and paper next time there is a dialogue between disputants with a view to settlement?”

    Jeff, Language, presupposes logical distinctions, especially when there is a Legal (Law) reference involved!! Not so!

    Like

  8. Zoe July 19, 2015 at 7:45 AM #

    “To say of what IS* that it IS*, or of what is NOT* that it is NOT* is TRUE”
    (Aristotle, Metaphysics 1077b 26) emphasis added.

    Like

  9. Bush Tea July 19, 2015 at 7:57 AM #

    This so-called communications breakdown coming out of the meeting is just a lotta shiite…

    Here we have a meeting between two sides that BOTH have independent lines drawn in the sand, but who are faced with a battle situation (strike action) that only one side can win…. The Union.

    The other side then agrees to a meeting ..and in the meeting, agrees to the terms (withdrawal of the letters) – NOT BECAUSE THEY HAVE A CHANGE OF MIND, but because they are about to get their asses cut…

    Wuh umm is only obvious that the union will come out of the meeting telling its members that it has won…and that their sacrifices were not in vain.
    …and umm is only obvious that the BIDC will come out with its tail between its legs…
    …and umm is only obvious that the Minister would come out with egg all over her face..
    ..and umm is only obvious that Donville would feel like a little poodle – like Estwick.

    So now that the licks in their tail have been averted, they start talking shiite bout communication problem….looking to appear to be ‘running things again…’

    If Bushie had his way, the Government would be called on to pay the Sanitation workers by FRIDAY coming, …AND to PUBLICLY withdraw the BIDC letters by FRIDAY coming….
    OR face a TOTAL and COMPLETE shutdown until elections are called…..

    Skippa….if you face a battle that you CANNOT win, the sensible thing to do is to surrender and COMPROMISE and involve the other side…..else prepare your ass for some LICKS…

    Like

  10. David July 19, 2015 at 8:15 AM #

    Here is another question where the rubber meets the road, how is Barbados able to improve national productivity in an increasingly fractious IR climate?

    Like

  11. Observing July 19, 2015 at 8:29 AM #

    @awty / David
    The government continues to use its position and leverage to outfox / outbox the individual unions. Plain and simple. One should not make a gentleman’s agreement with someone who have proven that they cannot be trusted and has already acted in bad faith.

    @jeff
    “I am aware of the populist view that the matter was not one of law, but I find this difficult to understand, given that the challenge to the policy by the union has always been clearly stated as “the BIDC had no legal right to do what it did” rather than “we want regime change in order to preserve the jobs of our members”.

    Totally agreed and perfectly stated. I too am saddened that the real substantive matter will not be conclusively decided and just left to hang from a legal/procedural perspective.

    @David
    “How effective is the Social Partnership
    Can I presume that this is a rhetorical-sarcastic-ironic question?

    just observing

    Like

  12. are-we-there-yet July 19, 2015 at 8:48 AM #

    Observing;

    Masterful use of english to say things that could have two diametrically opposite meanings. I had only skimmed through your earlier posts and did not realise this.

    Yuh got tuh be at least a QC!

    Yuh gud den!

    Like

  13. Gabriel July 19, 2015 at 9:38 AM #

    As my Mum would have said..’after all is said and done’ there is a major meeting of the Social Partnership and nobody thought to issue a press release agreed to by all 3 parties present so that there is no confusion as now exists.This is a poor reflection on the Minister,the GS’s and President of the Unions and in particular the real referees,the Private Sector Employers Watchdog which seem to think they should not rock the boat by giving the public they serve,at a price,its take on what transpired.

    Like

  14. David July 19, 2015 at 10:36 AM #

    @Gabriel

    In fairness to the MOL she was apparently labouring under the position the unions would have gotten back to her next day.

    Like

  15. Gabriel July 19, 2015 at 12:38 PM #

    Evidently the impression of the MoL was not in sync with the Unions’.They,within minutes of the meeting stated publicly that their conditions were met,that is that everything was off the table and a meeting was to be held to update their constituents. In the interim,the MoL cried foul and the players have gone back into their pavilions.We await the next press statement of the contending parties,although the NUPW,supported by the BWU is adamant that they are not retreating from their original position.Given that stand,the only next move is for BIDC and NUPW to meet and start afresh,which is what should have occurred in the first place.Negotiate an acceptable outcome.Bullying is unacceptable.

    Like

  16. Caswell Franklyn July 19, 2015 at 2:47 PM #

    The writer of this column has a superior intellect. If he coupled that intellect with a little courage, he would be a force to be reckoned with. His style is to identify the issues but not to recommend a solution.

    Like

  17. Caswell Franklyn July 19, 2015 at 2:59 PM #

    Gabriel

    There is no need to go back to the table in the NUPW/BIDC dispute. The BIDC is well aware that it is wrong but wants to take the matter to court to benefit from the chronic delays that court system is infamous for.

    If Government wants to send home 60 year olds, they should start with the 60 year old in Government House. Oops, he is no 60, he is old enough to be the father of those 60 year olds. Then the next stop would be Government Headquarters in a move to lead by example.

    Like

  18. rennydiokno2015 July 19, 2015 at 3:31 PM #

    Reblogged this on My Blog News.

    Like

  19. Prodigal Son July 19, 2015 at 4:04 PM #

    The unions have learnt a lesson………….you CANNOT trust any of the government ministers.

    This Minister of Labour has proven time and time again that she is out of her league in politics……….she has been the only minister that has been shifted and shifted in every reshuffle. (By the way, what ever became of the reshuffle the sleeping “giant” promised his cabinet at the last cabinet meeting last December/)

    She knows nothing about negotiations………….does she not appear out of touch in every press conference or news clip? She did the same thing to LIME workers a while ago when Sir Roy was threatening to shut down the country………..she agreed one thing with the workers and another with the company and then denied she did…………

    So this current impasse is her modus operandi…..standard dlp operation. You cannot trust this government period. If the dems had kept their election promise of no layoffs……….this would not be happening………….

    But going back to the refrain…………..you cannot trust this dlp government!

    Like

  20. St George's Dragon July 19, 2015 at 7:19 PM #

    The Guyson Mayers column in the Advocate strikes a very different note.
    He talks about legislation in other countries which “bring(s) a more certain level of regulation to (the) industrial environment”.
    I quote the last paragraph:
    “Timid tinkering will not help. Government should be proactive and move legislatively to protect the country and itself.”
    On the basis that he seems to speak for the DLP, is that what is coming?

    Like

  21. David July 19, 2015 at 7:26 PM #

    A legislative framework contradicts the highly touted Social Partnership.

    Like

  22. Bush Tea July 19, 2015 at 8:15 PM #

    @ Dragon
    …you ever had cause to talk to Guyson….?
    Obviously not, ..cause you seem surprised that he writes shiite….

    Like

  23. David July 19, 2015 at 9:09 PM #

    The Prime Minister was quoted in the news tonight defending government’s policy of forcing 60 year olds to retire. He said something t the effect of the early retirees are walking with benefits tagged to the job what is the problem.

    Like

  24. Hants July 19, 2015 at 9:32 PM #

    There is nothing wrong with forcing 60 year olds to retire……

    if you pay them their salaries and maintain their benefits until 65 or 67.

    Like

  25. David July 19, 2015 at 9:36 PM #

    @Hants

    The PM indicated the retirees are being paid based on law which brings us back to Jeff’s point. The court will have to decide.

    Like

  26. Caswell Franklyn July 19, 2015 at 9:50 PM #

    David

    The Prime Minister fancies himself as some sort of historian but fails to appreciate the history of the punishment called “compulsory retirement”. Statutory boards are patterned after the Public Service that is a basic fact.

    Compulsory retirement is a device that is used in the Public Service to remove a person, who has been found guilty of a major offence, from office. As a matter of fact, it is a punishment that is set out in the Code of Discipline in the Public Service. If an employee commits an offence that merits dismissal and is found guilty, and the punishment is dismissal, he loses his pension and gratuity. If that person is nearing retirement, they have the option of compulsorily retiring him which would allow him to keep his pension. It is a punishment which is more humane than outright dismissal, but it is a punishment nonetheless.

    Even then, the public officer can appeal the imposition of that punishment to the Privy Council. At statutory boards, they seem to have copied form but not substance and somehow these boards that are constituted for the most part by yardfowls seem to think that they can retire people without more.

    It would therefore seem that these people are being punished for reaching the age of 60 years.

    I do not expect that the PM would know everything, but he should allow himself to be briefed by someone who knows what he/she is talking about. He is being misled.

    Sent from my iPad

    >

    Like

  27. Bush Tea July 19, 2015 at 9:52 PM #

    @ David
    It is obvious that the PM is being advised by AC. No one else in Barbados is so idiotic, -although alvin cummins has been bidding for the position…..however he may have suffered some brain damage during his recent ordeal….and can be excused.

    The LAW is the bare minimum position of resort. It is what one relies on where common sense has failed…. Shiite man!!! even the damn Judges advise persons who appear to be sensible, to go back and see if they can resolve issues instead if coming to court….

    When does ANY kind of politician offer such advice?
    What did Dipper suggest about courts? and going to court…?

    This man is even more hopeless than we feared….
    It would indeed be well worth the risk of a radical surgical procedure to rid ourselves of this cancer. EAGER 11 …where the hell wunna gone nuh?

    shiite man ….at worst we would end up like alvin – with the cancer gone, …but with a little brain damaged…

    Like

  28. Caswell Franklyn July 19, 2015 at 9:57 PM #

    Bushie

    I am sorry but do not for one moment think that Alvin had little brain damage. I believe it would be appropriate to say with his little brain damaged.

    Like

  29. David July 19, 2015 at 9:58 PM #

    @Caswell & Bush Tea

    Do we blame the Prime Minister alone? What about the parliamentary group?

    Like

  30. ac July 19, 2015 at 9:59 PM #

    Every body is an idiot who does not agree with Deputy Dawg alias bush sh.it pronouncements. HAIL to The Chief As,,hole BUSH SHtit the one who knows all about dribble but cannot manage his own website,,

    Like

  31. Caswell Franklyn July 19, 2015 at 10:06 PM #

    The PM is totally to blame for his mouthing. He should check the facts before he runs off talking nonsense. He is wrong and is too lazy to be bothered.

    Like

  32. Bush Tea July 19, 2015 at 10:23 PM #

    @ AC
    The ONLY reason for Bushie’s website was to understand what information a blog master collects ….and what information YOU would submit to a blog master..

    Matter fixed!!

    Bushie has renewed respect for David(BU)🙂
    If you were wise, you too would have respect…..
    LOL
    ha ha ha

    But we all know that you are not wise…..so carry on smartly..

    Like

  33. David July 20, 2015 at 9:57 AM #

    Looks like Caswell is kicking dust with the Customs/BRA issue. The MoL will do well to play the ball with Caswell and not the man.

    Like

  34. David July 20, 2015 at 6:25 PM #

    @Caswell

    It appears the MoF has a problem mentioning your union by name. Representing 72 employees you are a significant enough player to be treated accordingly. How do you respond to his claim customs retain the right not to sign the option form. He appears to have time for appointing officers but it will take time. What is your position, we know the MoF and his acolytes read BU.

    Like

  35. David July 20, 2015 at 6:27 PM #

    The government must know the unions have seized the opportunity to flex ‘muscles’. The issue is bigger than the BIDC or option forms. Hopefully the MoF et al possess the commonsense to understand the play.

    Like

  36. Hants July 20, 2015 at 6:41 PM #

    @ David,

    Has the garbage been picked up yet or sanitation workers still on strike ?

    Like

  37. David July 20, 2015 at 6:56 PM #

    @Hants

    The have not made a visible dent yet.

    On 20 July 2015 at 22:41, Barbados Underground wrote:

    >

    Like

  38. Hants July 20, 2015 at 8:09 PM #

    @David,

    One of the most memorable things for visitors will be the nasty stinking piles of garbage.

    Like

  39. David July 20, 2015 at 9:44 PM #

    @Hants

    Let us be positive and hope they get it cleaned up in the next two or three weeks.

    Like

  40. David July 21, 2015 at 7:13 PM #

    Didn’t BSTU have a strike fund as well and were they not paid by the government? Let us see how the SSA/NUPW responds. We are at a dark and dangerous place.

    Like

  41. Caswell Franklyn July 21, 2015 at 7:55 PM #

    David

    The BSTU has a very healthy strike fund but they can afford one since the major work of the union is done by volunteers. The NUPW on the other hand, has a large staff and even if the were able to accumulate any sizeable strike fund, it would be diverted to make somebody rich just like what they did with Medicare.

    Sent from my iPad

    >

    Like

  42. David July 21, 2015 at 8:04 PM #

    @Caswell

    Why would the strike fund not be a segregated?

    Like

  43. Fractured BLP July 21, 2015 at 8:16 PM #

    Mia Mottley has been caught lying again.

    She claims that the Government of Barbados defaulted on its loan payment.

    Old gizzert that she is…….!

    Like

  44. balance July 25, 2015 at 8:14 AM #

    “Caswell Franklyn July 19, 2015 at 2:47 PM #

    The writer of this column has a superior intellect. If he coupled that intellect with a little courage, he would be a force to be reckoned with. His style is to identify the issues but not to recommend a solution.”

    There is no doubt about his intellect but there is substance in your observation. Another thing too is that he appears to ride on the fence rather than give us lesser mortals the benefit of definitive analysis. I felt that in the debate surrounding whether Sir Marston was qualified in all respects to assume the post of Chief Justice; he skirted around the issue.

    Like

  45. balance July 25, 2015 at 8:22 AM #

    “David July 19, 2015 at 10:36 AM #

    @Gabriel

    In fairness to the MOL she was apparently labouring under the position the unions would have gotten back to her next day.”

    For the first time in a long time, union members were prepared for battle which could have shut down the island and the major players both Govt and private sector were aware of this- hence the hastily summoned meeting of the social partnership which Mr Stuart previously labelled a ‘philosophical absurdity’ to quell nervous minds in an attempt to diffuse the situation and to which the union unwittingly attended only to be deceived by an unethical Minister not perhaps schooled in the ways of what a gentleman’s agreement ought to be but rest assured it ain’t over yet.

    Like

  46. balance July 25, 2015 at 8:30 AM #

    Mr Gabriel the Unions were under an obligation to urgently and effectively communicate to their constituents en masse so that planned industrial action for the next day could be halted. Had demonstrations occur after the meeting was held then the Union would have been accused of acting in bad faith. The next day while formulating their response to the Minister, the union’s premises were evacuated on the advice of authorities because of an unknown substance found in the union’s mail.

    Like

  47. Caswell Franklyn July 25, 2015 at 8:57 AM #

    Balance

    It is my understanding that the substance was a pesticide. It is lucky that Mamoney and Clarke were not there or we might have had two deaths.

    Like

  48. David July 25, 2015 at 9:02 AM #

    Actually Jeff provides dispassionate analysis which an intelligent reader should be able to use to inform a position.

    On 25 July 2015 at 12:57, Barbados Underground wrote:

    >

    Like

  49. Dompey July 25, 2015 at 10:54 AM #

    Bush Tea

    There you go again assaulting with a reckless disregard the characters of AC and Alvin Cummins because their do not particularly see things as you do. You surely have a right to, but what benefit is it to the conversation here especially, when viewed by an international audience who regards our little nation as the most progressive in the Caribbean archipelago? Now, my first thoughts or impressions of someone like you Bush Tea would be: this guy is to be avoided at all cost because he is imbecilic and lacks the reasoning skills to hold a productive conversation for any period of time. In any event, any fool can attack the personal character of his opponent, but it would be self-defeating and takes from the conversation of national importance.

    Moreover, Bushie, it would lend some credence to you character if you focus all your efforts on attacking the arguments rather than the personal character of those persons who do not agree with your political world-view, but you think ought to because truth is owed exclusively to you. Do you understand where I am coming from sir? You’re a supreme- egoist in my mind and by common definition and this unfortunately, take from the essence of the discourse here on BU. Now, as I have stated last night and shall state once more today: it seems as though you’re compensating for the attention and care you hadn’t gotten as a child, so in your mind and in my understanding, you believe that by assaulting the characters of those persons who views are of a different political persuasion than your own, that this would somehow compensating for your need of recognition.

    Like

  50. Dompey July 25, 2015 at 11:24 AM #

    Bush Tea

    Bushier says: “If you face a battle you cannot win the sensible thing to do is to surrender and compromise.”
    Here is the psychological equivalent to Bushie argument above; let’s see if it makes any sense?

    Now, if my child continually violates the ascetic house rules and I can see no hope of regain some sense of control over my child. And it is clear that I am fighting an uphill battle with my child; should I then surrender the ascetic house rules to appease my child? Or should I not hold tightly to the ascetic house rules in an effort to teach my child the concept of personal responsibility? Bushie as a former military man, I can tell you that position is the art of gunnery. And at this point in the game the union neither does government holds the high ground totally.

    Like

  51. David July 25, 2015 at 11:31 AM #

    @Bush Tea & Caswell

    After all the hullabaloo it appears the BIDC and NUPW have compromised?

    Like

  52. Caswell Franklyn July 25, 2015 at 11:46 AM #

    David

    I have only heard of a report quoting the General Secretary; I’ll wait until the President speaks before I make a comment.

    >

    Like

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