Jeff_column

The Jeff Cumberbatch Column–The Dispute: Source and Aftermath

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.

The dispute: source and aftermath
7/26/2015
As most of my readers may have surmised, I am fascinated by the seemingly intractable industrial relations dispute between the Barbados Industrial Development Corporation [BIDC] and the National Union of Public Workers [NUPW]. At least these were the original parties, although it should be clear to all by now that the current governing administration has unsurprisingly intervened into the dispute as a party for the Corporation, inevitably bringing with it a heightening of the sorry political partisanship that bedevils most public conversation in Barbados.

Thus, rather than discussion being focussed on the morality and/or legality of the issue of the terminations of employment of the workers for the stated reason, and the appropriateness of the NUPW’s response, many opinions are apparently based on whether the contributor supports the governing party or not. We ought to hang our heads in shame. This, in my humble view, is not the way a self-proclaimed “educated” society should respond to social issues. I do concede that the horse may already be long out of the stable on this point however.

In consequence perhaps, the matter is swiftly degenerating into farce, with a shoddy undocumented and hence useless settlement of the dispute that might or might not have been; the amazing spectacle of the chairperson of the conciliation proceedings publicly chastening one of the parties; the overnight generation of scores of experts on employment relations law not shy to offer their views; plainly contradictory media reports concerning the intentions of the workers to return to BIDC even if the letters of termination are withdrawn.

There has been, in addition, the sight of the Prime Minister, despite the current configuration of the Lower House, hinting at the use of parliamentary constitutional powers of legislation to restore “peace, order and good government” to the nation, and recent news of a court action for injunctive judicial review having been filed by a number of the workers.

A recent statement by the Honourable Minister of Finance, Mr Chris Sinckler, published in another section of the press, might have revealed the root cause of the dispute. According to the Minister, “If the organisation is not bringing in enough money to be able to supplement what Government gives it in terms of a transfer to be able to carry out their function, then they have to make some changes so that they will be able to continue to be, at least, at a minimum (sic), viable…”

From this, one may gather that at the basis of the terminations was the need to cut the costs of employment, the Board perhaps having considered that the other option, that of increasing income, was a non-starter in the existing economic conditions. This basis fits snugly into the statutory definition of redundancy- “where the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where the employee was so employed, have ceased or diminished or are expected to cease or diminish…”

For some reason, at which I may surmise only, it was decided that this was not the more or most viable option of restructuring in the circumstances. Perhaps it was a recognition of the costs of such an exercise; perhaps it was born out of a reluctance to engage the unions; most likely it was the discovery of the existence of section 8(1) of the Statutory Boards Pensions Act, Cap 384 that permits the Board to “require an officer to retire at any time after he attains the age of 60 years…”

Here was the veritable “deus ex machina” for the BIDC. Apparently, there would be no need to engage in nettlesome and dilatory social dialogue with the union as to the aptest mode of selection for termination; no need to incur the costs of redundancy; no need to justify on any other ground the objectively alarming spectacle of putting relatively young people out to pasture in contradistinction to the prevailing local norm of compulsory retirement at 67 years. The provision in the statute was clear.

As I have already written in this space, this view failed to take into account subsequent legislation affecting the termination of employment of those in statutory corporations, and I need not comment further on this particular point. However, a number of other legal issues have now arisen as sequelae of this dispute that provide a fertile source for detached commentary.

Among these are, not in any order of significance, the notion of payment of wages for those workers of the Sanitation Service Authority who are alleged to have withheld their labour in solidarity with their comrades in the NUPW; the allied question of the legality of secondary or sympathy industrial action; the distinction, if any, between a forced retirement and a dismissal; the fairest method of selection for redundancy; the extent of parliamentary power under section 48 of the Constitution; the issue of the designation of the sanitation services as an essential service; and whether the “go-slow” may be categorised as identical to strike action.

Payment of wages
The law is clear that a worker is entitled to be paid his or her wages so long as he or she is ready and willing to work only. This is to be taken as stated, so that even if the employer is unable to provide work for the worker, the ready and willing worker is entitled to be paid his or her wages, unless he or she is dismissed, laid off, put on short time or the employer is able to establish that the contract has otherwise come to a end or has been suspended.

While this rule may be altered by agreement of the parties, as has occurred previously, there still remains the vexed question of who bears the burden of establishing that the worker was indeed ready and willing to work. On the accepted principle that he who affirms must prove, it would seem that in the present situation where the Sanitation Service Authority has declared an intention “not to pay one red cent”, that the workers will have to show that they presented themselves for work on the disputed occasion and were forced, through no fault of their own, from undertaking the assigned tasks or that there was a valid excuse for them not to present themselves for work at those times.
The sympathy or secondary strike

This has been defined as the phenomenon “where workers come out in support of another strike”. There is no existing local legislation governing this matter, so that a workers’ organisation that is either the bargaining agent for, or allied to the bargaining agent for a body of workers for whose functioning is critical to the welfare of the society is all the stronger for its ability to call these workers out or have them called out in solidarity with their comrades in another field. Although some jurisdictions have enacted legislation that proscribes this form of industrial action, the international labour law that Barbados has ratified is less rigid, pointing out that a general prohibition of these strikes may lead to abuse and that workers should be able to take such action providing that the initial strike that they are supporting is itself lawful.

To be continued…

Tags: , , , ,

14 Comments on “The Jeff Cumberbatch Column–The Dispute: Source and Aftermath”

  1. David July 26, 2015 at 5:58 AM #

    @Jeff

    Not sure you are aware but the ‘Musing” does show online or ‘by author’ so that readers know you are the author.

    Strange.

    Like

  2. balance July 26, 2015 at 6:15 AM #

    EXCELLENT ANALYTICAL. COMMENTARY PROVIDING MUCH FOOD FOR THOUGHT. SHOULD BE REQUIRED READING. SHADES OF GLADSTONE HOLDER IN THIS MASTERFUL PRESENTATION.

    Like

  3. David July 26, 2015 at 9:00 AM #

    The part about the fate of SSA workers and having to prove they were not part of the strike action is interesting. The role of the bargaining unit comes into play and the willingness of government to be conciliatory in an IR climate obviously punctured.

    Like

  4. Bush Tea July 26, 2015 at 10:30 AM #

    @ David
    Look Boss!
    The sanitation workers are one of the VERY FEW government departments that ACTUALLY WORK. What possible benefit can there be for government to upset them …when all they were doing is supporting their Union?

    Only a j(AC)kass would now pick a fight with the SSA over three days shiite pay…

    This is NO DAMN LEGAL issue….. it is SIMPLE common sense.
    But of course we would expect someone who’s solution to a thief in Parliament was to ‘get a lawyer’ to make a legal issue of this simple matter…

    Like

  5. David July 26, 2015 at 10:35 AM #

    @Bush Tea

    Did you see minister Lowe on your TV8 last night? He pronounced words to the effect the SSA will come under a review shortly. Something about it is a unit operating with old systems based on collecting 500 tones now 1400 tones. These guys are so predictable, any opportunity to pour oil on trouble waters.

    JA

    Like

  6. Bush Tea July 26, 2015 at 10:45 AM #

    @ David
    …that man is a female rabbit of the AC kind….
    That he is allowed to continue to hold public office is a pox on our collective asses.

    Wunna think this shiite is a joke….But there ARE irrefutable SPIRITUAL LAWS which dictate that “to every shiite action, there is an equal and appropriate reaction”.

    While Froon pisses around, …allowing, and even encouraging such NATIONALLY shameful scoundrels to dictate policy in Barbados, you can expect ‘appropriate reactions’…

    The Sargassum, the Quakes, the Kickem Jenny, the financial tailspin should therefore not be surprising……and the hurricane season ain’t even kick in yet…

    Since we Bajans are happy to accept these shiite people doing CRAP….Bushie hopes that we are ALSO prepared for the ‘appropriate equal reactions…’

    Like

  7. de Ingrunt Word July 26, 2015 at 10:45 AM #

    Masterful indeed. Previously, the writer was described by his fellow Sunday scribe here today as intelligent and bright, and clearly to that can be added insightful and very analytical.

    In my small corner, I am also very impressed that Mr Cumberbatch as an appointee to the chair of the FTC displays a strident, unbiased voice so well on these national issues.

    Not suggesting for a moment that there is any required personal political disposition for his appointment but rather that Cumberbatch is clearly a man of integrity and also clearly does not give any favor to political masters in order to gain acceptance.

    Refreshing. He continues to call it based on the law and the facts and lets the chips fall where they may.

    Excellent.

    Like

  8. David July 26, 2015 at 10:51 AM #

    The 64k question is this: why is it we have legal academic who probably understands the laws better than those sitting yet we have so much confusion with translation by so called learned individuals? Note armchair critics are not included.

    Like

  9. de Ingrunt Word July 26, 2015 at 11:40 AM #

    But David that 64K question is loaded for detonation. What exactly do the legal academics have over the ‘so called learned individuals’ who studied in their classes and make a living practicing and advising on the law just as the academics teach and advise on the law!

    If academics had any ‘better’ perspective of the law then they would offer clear and unequivocal wordings that resolved all disputes in the Acts, not so!

    Following Jeff’s commentary above it would seem that any competent lawyer would have cautioned the BIDC that their interpretations were flawed based on a comprehensive reading of ALL pertinent Acts & Amendments.

    So for this armchair critic where does the blame go: to the legal drafts-persons who should have properly consolidated the various amendments to ensure clarity; the BIDC counsel who leaped before he/she looked or the system which perpetuates these types of ‘simple’ disputes in long, drawn out wasteful and expensive legal debates over and over again?

    Jeff said above: “… most likely it was the discovery of the existence of section 8(1) of the Statutory Boards Pensions Act, Cap 384 that permits the Board to “require an officer to retire at any time after he attains the age of 60 years.. this view failed to take into account subsequent legislation affecting the termination of employment of those in statutory corporations…”

    Now according to Jeff’s CV he has been a professor/lecturer at UWI for 25+ years. Good lawd, many of these current attorney’s have sat before the man. As a student had any of the BIDC attorneys presented a paper in his course with this level of analysis I can only surmise – based on Jeff’s remarks on this matter – that it would have been graded accordingly from C to F.

    So David, tell me what is it that the academics can do to save us from this level of basic BS legal folly (read negligence) that seems to be all about generating revenue.

    Like

  10. David July 26, 2015 at 11:48 AM #

    @Dee Word

    This is why it was framed as the 64k question.

    Like

  11. Gabriel July 26, 2015 at 1:29 PM #

    De I word @10.45 July 25
    I endorse your comments.An unbiased exposition of the law.Let the fools and guys read,mark and inwardly digest and hopefully recognize policing and law are 2 different sources of employment.Some people should stick to the beat.In Guyana a police inspector was removed from normal duties and assigned to feeding and generally look after the police dogs.He was found culpable in an incident in which a suspect had his genitals burned while in police custody.Shades of what was appropriate here when an inspector was assigned to provost of the precinct of Central and which the guys overturned when they got their chance.Divine Providence had the final word,you bastards of the DLP.

    Like

  12. Observing July 26, 2015 at 2:58 PM #

    @Jeff
    Don’t know ya, never met ya but keep up the good work. Don’t let the FTC headaches steal your blogging/writing time.

    Then again, Guyson’s right next door to you in the paper and he don’t miss a beat🙂

    Walk good mon!

    Just observing

    Like

  13. balance July 28, 2015 at 4:48 AM #

    “As I have already written in this space, this view failed to take into account subsequent legislation affecting the termination of employment of those in statutory corporations”

    and it also failed to take into consideration the required approach to interpretation as summarised by Lord Bingham in R (Quintavalle) v Secretary of State for Health which states inter alia that

    “the basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the the enactment to be construed,

    Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The court’s task within the permissible bounds of interpretation, is to give effect to Parliament’s purpose.”

    and what was Parliament’s purpose according to the mover of the (Miscellaneous) (Provisions) Act, 2004 (which in essence amended Section 8 of the Statutory Provisions Act Cap384 ) that THE RETIREMENT AGE AT WHICH PENSION BECOMES PAYABLE IN BARBADOS SHOULD BE HARMONISED WITH THE RETIREMENT AGE AT WHICH PENSION IS PAYABLE UNDER THE NATIONAL INSURANCE AND SOCIAL SECURITY SCHEMES OF
    BARBADOS.

    The mover further elaborated thus ” THE REALITY IS, MR SPEAKER, MOST PEOPLE AT 60 ARE CAPABLE OF CONTINUING WORK . THEREFORE IT IS INCUMBENT UPON US TO BE ABLE TO CHANGE THE LEGISLATIVE AND POLICY FRAMEWORK THAT CURRENTLY NOW PROHIBITS THOSE PERSONS FROM BEING ABLE TO CONTINUE IN THE SERVICE.”

    Like

  14. David August 1, 2015 at 5:09 AM #

    Kudos to Judge Cornelius.

    These lawyers.

    bidc

    Like

Join in the discussion, you never know how expressing your view may make a difference.

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: