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The Jeff Cumberbatch Column–Unprotected Practices

Jeff Cumberbatch - New Chairman of the FTC

Jeff Cumberbatch – New Chairman of the FTC

On this, the first Sunday of the new year, I wish a happy, bountiful and productive 2016 to all readers. I recall, from my ever-receding youth, a politician who would take out a newspaper ad at this time of the year. It went, “To all those who wish me well, and to all those who lend me hell, A happy Christmas and a prosperous New Year”. I should be so minded now to repeat these sentiments.

As we neared the end of the year just past, there seemed to be in the news a litany of plaints from various individuals and organizations, all of whom were of the considered opinion that they were not getting their just deserts from officialdom; in fine, that they were being denied their elemental rights to dignity and autonomy -to be recognized as human beings or entities with the capacity for self-determination.

For instance, one individual, identified in another section of the local press as “a Muslim woman” only, protested that compliance with the requested removal of her hijab in order to be photographed for a Barbadian identification card would entail an infringement of the practice of her religion that requires women to cover their head in public. Almost immediately thereafter, a spokesman from the Rastafarian House of Nyabinghi made the identical objection on behalf of that group’s female members.

While the basis of these objections was more hinted at than expressed, the stated intention of the parties to seek legal counsel suggested a claim of the infringement of their right to freedom of conscience guaranteed by section 19 of the Constitution. This includes, among other things, the right to “manifest and propagate his (or her) religion or belief in worship, teaching, practice or observance…”

Increasingly, as the Western world becomes more secular in outlook, these types of conflicts between religious freedoms and state requirements are likely to proliferate. We recall the brouhaha in the US last August when Ms Kim Davis, a Kentucky county clerk, sought to defy a federal court order that she issue marriage licences to same-sex couples, claiming to be acting “under God’s authority” even though the Supreme Court had adjudged that the right to such marriages is guaranteed under the US Constitution.

However, in a less notorious matter on a similar point in India last February, the Indian Supreme Court upheld the termination of a government employee for reasons of his bigamy, ruling that the fundamental right to religion in their Constitution did not include practices which ran counter to public order, health and morality.

Refuting his argument that the rule prohibiting bigamy by public servants violated his right freely to practice his religion, the Court stated that a sharp distinction had to be drawn between religious faith and belief and religious practices –

“What the State protects is religious faith and belief. If religious practice run counter to public order, morality or health, or a policy of social welfare upon which the State has embarked, then the religious practices must give way before the good of the people of the state as a whole…”

Given the threatened litigation, it would be imprudent of me to write further. Nevertheless, in light of the reported claim of a member of the local Police Force to the right to wear her hair in “locks” in defiance of the relevant dress code; a claim which, though not based on reasons of religious practice, might very well have been -the issue may soon arise in other contexts.

Intimate partner violence and the same sex relation

A report in last Monday’s issue of the Barbados Advocate informed that China had passed its first domestic violence law that will criminalize both physical and psychological abuse in the family. However, while this law will apply to heterosexual partners in conventional unions as well as to those who cohabit [here, “unions other than marriage”], it will not apply to those in same sex relationships.

Some may recall that this identical matter flickered for a while at some stage last year when Barbados was contemplating the reform of its similar statute. The chief protagonists of the dispute then were the rivals for a southern constituency. While one argument was based on the ostensible reality that there is violence between such couples, the antithesis appeared to be a reluctance to proscribe such conduct in that context for fear of giving sanction to same-sex marriage.

It is at least intellectually pleasing that this amazing leap of logic does not attend the Chinese reasoning, although the reason reportedly offered, that this form of violence have not yet been discovered among homosexuals does seem incredible. What makes it even more so is that China does not appear to be as legally hostile to homosexuality as some other jurisdictions, although as the report sates, it is nor likely to legalize same sex marriage anytime soon.

I suppose that it comes down to a matter of whether we are prepared to accept that the intendment of the statute is decidedly to proscribe violence between partners in all intimate relationships and not merely to protect those in the relationships that we might consider palatable, leaving all others to hold their corner. For the uninitiated, it is not legally possible to recognize the institution of same sex marriage by the side wind of domestic violence protection.

Freedom of association and anti-union discrimination

The third matter concerns a rather unusual circumstance whereby the Guyana Trades Union Congress [GUTC] is expressing dissatisfaction with the fact that the governing administration there announced bonuses for public servants without having consultations with their workers’ representatives. According to the GUTC, this action constitutes a breach of the law.

While the Minister of Governance has asked to see the specific area of law that made consultation with the GUTC mandatory, the federation has cited Article 147 of the Guyana Constitution and section 23(1) of the Trade Union Recognition Law (sic) in support of its position.

While section 147 of the Constitution does speak to the state guarantee of freedom of association including the freedom to belong to a trade union for the protection of the person’s interests, I am not persuaded that this is the freedom of association to which the GTUC intends to lay claim. Section 23(1) of the Trade union Recognition Act 1997, however, does provide for obligatory compulsive bargaining with unions that have been granted a certificate of recognition and, as the GTUC asserts, criminalizes a refusal to do so in subsection (3).

It is my view that the freedom of association to which the GTUC perhaps intended to refer is that to be found in the jurisprudence of the International Labour Organisation; freedom of association for trade union purposes. This is located principally in Conventions 87 and 98 of the ILO. And while anti-union discrimination may usually be found in actions detrimental to the interests of union members such as dismissal, demotions or other such prejudicial acts based on their union membership or activity, it may also be found generally in a refusal by an employer to bargain collectively or to consult on matters relevant to terms and conditions of work. A unilateral increase in an employee’s salary may implicate this holding.

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24 Comments on “The Jeff Cumberbatch Column–Unprotected Practices”

  1. Vincent Haynes January 3, 2016 at 8:31 AM #

    http://tgr.ph/1OAlDgd

    Like

  2. ac January 3, 2016 at 9:05 AM #

    However since there are no laws passed giving permission the rights of marriage to same sex couples in Barbados, how then would it be lawful for homosexual couples to be given or receive the same protection of law governing heterosexual couples against domestic violence ?
    one would believe that same sex couple has a basic humanitarian right governed by laws protecting every citizen in society against acts of violence inflicted on them and to seek legal recourse through the justice system

    Like

  3. Caswell Franklyn January 3, 2016 at 9:33 AM #

    Jeff

    I genuinely do not understand the fuss about the unilateral one-off payment to Guyanse Government workers. I wish that the Government of Barbados would do likewise instead of wasting money on a yearlong independence celebration. I am sure that those NCC workers would be happy for their money rather than it being wasted on these foolish feel-good celebrations.

    I could understand the commotion if the Government were paying the money only to non unionised workers. GTUC feels slighted that’s all. GTUC would have preferred if the Government had made the payment after consultation with them so that they could have claim credit for the payout. I am sure that there are more weighty things in Guyana that the GTUC could concern itself with. The workers did not suffer any detriment, so what’s the problem.

    Like

  4. Caswell Franklyn January 3, 2016 at 9:42 AM #

    I will temporarily lift my ban on responding to ac only to say that the Domestic Violence (Protection Orders) Act of Barbados is gender neutral. It applies to everyone who lives in a household. The act protects partners, children or even if you had cousins living under the same roof. That act has nothing to to do with sex, homosexual or heterosexual or if there is any other kind.

    The ban is back on.

    Like

  5. David January 3, 2016 at 10:02 AM #

    @Jeff

    The recent foray to the Courts of Barbados by a Pakistani (or was he Bangladeshi) to challenge the stay period by Immigration Authority would have interlaced nicely with your review covered in this week’s column. One can only wonder the implication given global events.

    Like

  6. Sargeant January 3, 2016 at 11:58 AM #

    The Sikhs (Canada) seemed to have overcome this objection to wearing of religious symbols quite easily, they pointed out that they fought on the sides of the Allies in WW11 wearing their turbans so they wondered why it would be unacceptable today. The provinces also realized that if they wanted to attract a diverse Police/Military which represented all elements of the Canadian population that they had to relax their rules. The Minister of Defense is a Sikh and is never seen without his turban, but I wonder how they get around flying on Commercial airlines with a Kirpan?

    Like

  7. Jeff Cumberbatch January 3, 2016 at 1:29 PM #

    @Caswell, agreed that the GTUC sounds odd protesting a benefit to their members, but you cannot blame them for wanting tO have been consulted to share in the credit. And for what it is worth, they are legally right. They might want to argue that what matters is the principle of the thing!

    Like

  8. Jeff Cumberbatch January 3, 2016 at 1:38 PM #

    @ David, it would have been legally intriguing, although you notice that for reasons of litigation, they. Spent a longer period here than that which they had been granted initially!

    @ Sarge, this is a recurrent problem. The courts seem to make a distinction between what is a obligatory precept of the religion and what is merely a modern practice. The Sikh turban seems to be one of the former… I am not certain about the hijab…

    Like

  9. ac January 3, 2016 at 2:32 PM #

    @caswell. You have misread or misunderstood my comment…which is in agreement with what you said
    In order to do so simply read the last few sentences of my comment

    Like

  10. Caswell Franklyn January 3, 2016 at 8:55 PM #

    The one-off payment of Guyana $500,000 to each government worker amounts to US$2,500.

    The way the Guyana Government handled the payout is instructive. They paid each worker. On the other hand, the Government of Barbados did a more cost effective payout; they gave duty free concessions on vehicles for each of the new general secretaries of BWU and NUPW. Toni got a Mercedes and Roslyn is getting a BMW. The government workers are getting zilch.

    Like

  11. David January 3, 2016 at 9:01 PM #

    Caswell does the duty free concession extend to Unity?

    Like

  12. Caswell Franklyn January 3, 2016 at 9:06 PM #

    David

    How these duty free concessions worked in the past, you had to be prepared to sellout. So I can safely say they won’t be extended to Unity.

    Sent from my iPad

    >

    Like

  13. David January 3, 2016 at 9:13 PM #

    @Caswell

    It should be available across the board as a sector concession. What are we missing?

    Like

  14. Caswell Franklyn January 3, 2016 at 9:20 PM #

    It should not be available at all. Unions should not rely on the employer to reward unions. If you have mauby pockets, drink mauby. A general secretary of a union is merely the CEO, why are CEOs of other businesses in this country not getting duty free cars.

    Sent from my iPad

    >

    Like

  15. David January 3, 2016 at 9:23 PM #

    How has the government rationalized the concession Caswell?

    >

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  16. Caswell Franklyn January 3, 2016 at 9:31 PM #

    They don’t rationalise the concession. They do it in secret. The Duties, Taxes and Other Payments (Exemption) Act requires the Minister to lay the order in the House of Assembly and it can be debated. I do not remember ever seeing any of these bribes being laid in the House.

    Sent from my iPad

    >

    Like

  17. Sargeant January 3, 2016 at 11:32 PM #

    @Jeff C
    The courts seem to make a distinction between what is a obligatory precept of the religion and what is merely a modern practice
    ++++++
    So do some Islamic “scholars” who go on record but are unable to agree on this subject. There is no consensus among them that women covering their faces/hair is a tenet of Islam. Those who insists that it is are unable to decide if that covering should be by hijab, niqab, chador or burka. Most of the public here is willing to accept a hijab, but are uncomfortable with the other clothing choices (the word choices is my editorial decision). Differences in interpretation of religious texts is nothing new, it happened with Christians and it is happening with Muslims.

    The company I worked for had women in both camps some opted for a hijab and others did not, but two of them who previously didn’t wear any hair covering started to wear hijabs and one even went so far to request that a photo on an internal company publication showing her in her non hijab days be removed from circulation.

    Like

  18. de Ingrunt Word January 4, 2016 at 2:40 AM #

    @Jeff, is it being too facetious to suggest that a country which only recently removed it’s own (one can argue) injurious physical and psychological abuse on its citizens with its ‘one child’ policy is ideally not well placed to be trusted to be doing anything other than what satisfies the anointed supreme leaders!

    China is a special place and it would be scandalous beyond repair for those anointed leaders to even consider that there is even a homosexual community it seems.

    Thus you are euphemistically very well-positioned to say that the Chinese have intellectually determined there is any violence between persons in these nonexistent same-sex relationships across their vast land of over 600 million MEN….Mind you, that is TWICE the US TOTAL population !

    Good lawd…imagine if Alfred Kinsey was Chinese and his studies of male homosexual tendencies were validated from research there…and spoke to an incidence of even 5%!

    Like

  19. balance January 4, 2016 at 3:54 AM #

    J”eff Cumberbatch January 3, 2016 at 1:29 PM #

    @Caswell, agreed that the GTUC sounds odd protesting a benefit to their members, but you cannot blame them for wanting tO have been consulted to share in the credit. And for what it is worth, they are legally right. They might want to argue that what matters is the principle of the thing!”

    That mantra by the GTUC is nothing new as Bro Cas should well know. Sir Roy has been singing that kind of tune in recent times as recent as when Emera sought to trim their staff offering pay-outs I understand in excess of requirements by law. I wonder what has been the outcome of that impasse. Seems to have died a silently. When Mr Arthur’s government in what is my view was a far reaching piece of social legislation sought to introduce legislation which would have allowed all public sector workers to enjoy the same pension benefits , the postion taken by the NUPW was somewhat mind boggling as well.

    Like

  20. David January 5, 2016 at 6:37 AM #

    Can anyone explain why the Republicans, more than the Democrats, in the US seems hellbent on fighting gun control by hiding behind 2nd amendment rights?

    Like

  21. Bush Tea January 5, 2016 at 8:15 AM #

    Caswell CANNOT possibly be correct about the two union leaders accepting such a bribe from government as two duty free cars.

    After these unions’ back-down from the forced retirement at the statuary board; the abandonment of the NCC workers; and their general ‘lay-down-and-play-dead’ attitude in the face of the worse onslaught against workers in our recent history….there is NO WAY that these two young leaders would accept these perks and appear to have sold out their members…

    is there…!?

    Like

  22. Donna January 5, 2016 at 4:29 PM #

    Please say it isn’t so! A Mercedes and a BMU afforded through duty free concessions? In exchange for what? If this is true the workers should call for their heads!

    Like

  23. Donna January 5, 2016 at 4:30 PM #

    How cheap they are! Or is there more to come?

    Like

  24. TheGazer January 12, 2016 at 7:58 PM #

    Rum shop
    I would suggest that you ask them not to send any pics. Police agencies have technology that can recover things you deleted from your computer. Better safe than sorry.

    Like

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