caswell

The Caswell Franklyn – Poor Representation by Union

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

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8 Comments on “The Caswell Franklyn – Poor Representation by Union”

  1. Jeff Cumberbatch February 21, 2016 at 8:59 AM #

    @Caswell,

    I do not understand the thrust of your argument re the workers having a legally enforceable claim under the legally unenforceable collective agreement. Are you saying that once GAIA started to perform as agreed in the collective agreement, that agreement became binding in law even though it was not so binding before?

    It may very well be and is probably true that the agreement as to the increase became incorporated in the individual contract of each worker from its creation, but equally it was possible for each of them to forgo a future part of his or her entitlement as may occur under any contract, by a subsequent collective or individual agreement to that effect.

    Even though it is rare for a union to negotiate negative benefits for its members, there is nothing in legal theory that would prevent this, as has occurred in some cases where it is viewed as “consideration” for greater benefits elsewhere.

    For example, instead of 50 uncertified sick days a year, we will agree to 40, provided you increase the rate pf severance payment payable on redundancy. One relevant question therefore might be, was any consideration provided for this relinquishment of full entitlement?

    But, in the absence of legal enforceability of the collective agreement, this is of no consequence.

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  2. Artax February 21, 2016 at 9:05 AM #

    It seems as though the ALL Trade Unions in Barbados select certain employee concerns at particular points in time, which may perhaps suit their agendas, whether it be political or otherwise.

    Recall on May 6, 2015, workers of the Transport Board took industrial action in protest of, (as described by President of the Transport Board Division of the BWU, Neville Kirton), the Board’s hiring practices. In addressing the workers, BWU General Secretary Toni Moore, said the “BWU was standing firmly behind its members and she encouraged the drivers to remain off the job, pending the outcome of a meeting with the Board’s management to discuss their grouses.” [Barbados Today, May 6, 2015]

    Barbadians subsequently learnt that one of the main reasons for the “strike” was “the hiring of a person with political connections to fill a vacancy that could have been filled by one of the persons who were made redundant.” It was alleged that Michael Lashley sought to employ one of his relatives at TB through the “back door” even though the Board and BWU agreed that should there be any vacancies, the retrenched workers would be entitled to first consideration for the post.

    On May 7, 2015, Caswell Franklyn of Unity Trade Union submitted an article to BU entitled: “Transport Board Strike: Conspiracy to Deceive,” in which he stated: “The workers were complaining for all to hear or for all who wanted to hear that the Transport Board hired the niece of the Minister to do work that could have been done by one of the retrenched workers. Why did the media, BWU and BLP omit that very pertinent detail?”

    In a previous post, based on information received, I mentioned the Transport Board will soon be recruiting drivers. Over the past few weeks TB has employed a number of NEW DRIVERS, many of whom are from LASHLEY’S CONSTITUENCY. The Mercedes Benz Marcopolo GV bus registration BM542, has been seen with the trademark red “L” that denotes “learner driver,” being used to “take in people to get their license.”

    As one driver mentioned, these new drivers have to go through the process of learning to operate the bus and availing themselves to all the various routes. In his opinion, it would have been better to RE-EMPLOY some of the RETRENCHED FORMER DRIVERS or those who are currently employed on CONTRACTUAL BASIS to operate charters, since they already know the routes. It would be just a matter of assigning them to a bus.

    Has Neville Kirton and the BWU agreed to this new employment practice, which has breached the previous agreement of giving retrenched workers first option?

    Caswell, are TB employees also represented by Unity Trade Union, and if so, how is the union going to address this new development?

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  3. Caswell Franklyn February 21, 2016 at 10:34 AM #

    Jeff

    My argument is simply that the increase was incorporated into the contracts of the individual workers once GAIA Inc. paid the new salary and the workers accepted. They could have refused and say that I don’t want the increase. It was therefore up to the individual worker to decline the increase not the union.

    The collective agreement was not legally enforceable. I am suggesting that the new term in their individual contracts, arising out of the collective agreement, is legally enforceable.

    Artax

    Unity has no members at the Transport Board. Mind you, the new general secretary of BWU is driving around in a new, duty free Mercedes Benz. You should be aware that only the Minister of Finance can waive duties. I am getting mixed up: how does that duty free Mercedes connect up with the Transport Board? If I work it out, I will let you know.

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  4. balance February 22, 2016 at 11:40 AM #

    There is some mert in Jeff’s comments which lesds me to wonder if Bro franklyn’s well presented arguments do not conflict with his earlier position in support of the Minister of Tourism tat The GAIA does not owe the GAIA workers the 3.5%. If what Bro Franklyn is saing is true and there was indeed an agrrement which legitimately could not be abrogated by any subsequent negotiations/meetings between the Nupw. GAIA or the Prime Minister then it is reasonable to conclude that the 3.55 is owed to workers by the GAIA irrespective of whether the NUPW acted incompetently or not.

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  5. Ex Hilton Employee February 22, 2016 at 12:06 PM #

    I believe Hilton Barbados Resort needs some level of investigation not only by the trade unions of Barbados,but also by the labour department as well as other government departments such as the immigration department.
    There were two recent incidents at that hotel that ought to be of concern to those responsible for labour matters in Barbados.
    The first incident is with a captain in the Lighthouse restaurant who was recently suspended and his case is still pending because he informed a guest that the restaurant was closed at the time the guest walked in to have breakfast. The executive chef walked through the restaurant the same time and castigated the captain in full view of other team members as well as other guest who were still having breakfast.That incident was highlighted on trip advisor with the guest who witness the incident lamenting the unprofessional and disrespectful way the executive chef treated the captain.
    The captain is still on suspension pending dismissal,while the executive chef is still performing his duties.The captain is facing dismissal for following policy – the restaurant closes at 11.00 am for breakfast.
    Another incident occurred last week where a new employee participated in a dishonest act that led to a guest handbag and contents going missing.The employee was caught and charged and had a court appearance last week where
    the individual pleaded guilty.
    The victim is the wife of senior member of a very large and prestigious group that is presently staying at the hotel.Naturally this incident has adversely affected the image of the hotel and damage control measures are now the order of the day.
    All staff members especially those that are casual are now at risk of being dismiss for any and every reason regardless of the frivolity of the reason.The casual staff at the hotel is extremely fearful at this moment because word is out that management has decided to laid off and terminate the services of all casual staff regardless of the length of tenure at the hotel.It seems Peter is about to pay for Paul at Hilton Barbados Resort. They are casual staff members who are employed at that hotel for more than five years and those employees are about to lose their employment.
    I believe the attitude of some of the senior managers in general manager George from Argentina, director of Operations Sherene from Grenada and food & beverage manager Pradeep from India needs to investigated.They behavior towards the staff is not the best and they might have issues with the people who make up the majority in Barbados.

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  6. Harold Jones February 22, 2016 at 12:21 PM #

    NUPW being incompetent!! How is it that the NUPW is insisting on this outstanding percentage be paid. This won’t listen president and blindly follow as long as I get my BMW general secretary, is going to meetings unprepared and making the organisation seem inept. The general council seems not to be aware of what is going on.

    What about the union itself owing staff increments not salary, for so many years and as is understood the only person who is refusing to pay is the president. The old proverbial saying holds true remove the beam from your eye before trying to remove the grain from mine.

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  7. Artax February 22, 2016 at 12:43 PM #

    The results of an independent poll revealed that should elections be called soon in Barbados, 20% of the respondents will favour the DLP, while 40% are supportive of the BLP. The results also indicate that motley is more favoured than Stuart.

    This news will surely have the consortium shitting grits.

    Liked by 1 person

  8. David February 23, 2016 at 5:36 AM #

    It is a perplexing country or times we are living. Help us to understand. We retrenched 6 to 10 thousand public workers with more to come from the rationalization of statutory corporations yet Cedric Murrell has sounded that a wage increase is expected thus tear for public sector workers?

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