Caswell Franklyn,  Unity Workers Union

The Caswell Franklyn Column – Lawmaker vs Lawbreaker

tonimoore

The inordinately long dormant Barbados Workers’ Union has finally awoken from its years of slumber and has stood up to Government, on behalf of the long-suffering workers of the Barbados Water Authority. No sensible person takes delights in strike action but the Barbados Workers’ Union has shown that it is prepared to use the union’s ultimate weapon, when it is forced by an employer who refuses to see reason.

I congratulate the General Secretary and her Executive Council for its action in support of these workers, but more importantly for rekindling the spirit of trade unionism in this country. Good Job!

That said, I would like to address a number of other niggling, intractable issues that have been plaguing workers for several years that regularly cross my desk. These issues might not evoke widespread anger to generate industrial action but they are causing disquiet among workers.

The Public Service Act (PSA) was passed in the dying days of the Arthur administration. Some aspects are very desirable which appear as though they were designed to woo the public-service vote. Unfortunately for Arthur his last-ditch efforts did not capture the imagination of the Public Service for whatever reason. But it now appears that the benefits that he placed on the books that were intended to apply to all eligible workers are being applied selectively.

Section 13.(7) of the Public Service Act provides that any person who: is not appointed; has been employed for not less than three years prior to December 31, 2007; and have the necessary qualifications for appointment, shall be entitled to be appointed with effect from December 31, 2007; and shall be treated as being so appointed. So far over three thousand workers, who met the criteria, have been permanently appointed in the Public Service.

Eight years and three months after persons became eligible for automatic appointment, there are still pockets of workers who qualify but have not been appointed, in accordance with the law. Whenever the appointing authority is challenged on the non appointment of officer in this category, they invariably reply that they were not enough established posts to accommodate everyone who qualified.

That response does not make sense in light of section 13.(5) of the PSA, which states:

(5) Subject to subsection (6), all temporary offices in the Public Service that
(a) were created as temporary offices; and
(b) have been in existence for 3 or more years at 31st December, 2007,

are hereby established as public offices in the Service.

The only reasonable explanation for the surplus of persons over post would be that some persons, who did not qualify in accordance with the PSA, were appointed in preference to those who qualified.

To deny these workers their right to automatic appointment for such an extended period is bad enough but now some of them are now being asked to apply and be interviewed for jobs that they have been performing satisfactorily for more than a decade. In some instances, these workers are being denied their appointments on the pretext that they did poorly at interview. When all is said and done, it needs to be explained how workers who have an automatic entitlement to be appointed do not eventually get their jobs.

Section 13.(8) of the PSA makes provision for officers, who are already appointed but had been acting in higher, vacant posts for the same three-year period, to be appointed with effect from December 31, 2007. Regrettably, when the appointing authority decide to make the appointments, they do so without regard to the rights that have been acquired by officers. The most recent appointments in the Customs and Excise Department followed that trend.

Constraints of space would only allow me to deal with one other area where Government refuses to comply with the law. Section 13 of the Employment Rights Act requires employers, including statutory boards , to give the employee a written statement of the particulars of the employment, prior to or forthwith upon the commencement of the contract. Among other things the statement must contain a description of the work for which the person is employed.

Two years after it started employing staff the Barbados Revenue Authority has not complied with this mandatory provision, and are only now seeking to put terms and conditions in place in collaboration with the National Union of Public Workers.

It goes without asking but I will ask nonetheless: What example is Government setting by being the lawmaker and a major lawbreaker?

 

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17 Comments on “The Caswell Franklyn Column – Lawmaker vs Lawbreaker”

  1. David April 3, 2016 at 6:00 AM #

    This is an unedited version of Caswell’s column.

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  2. David April 3, 2016 at 7:18 AM #

    @Caswell

    Do you want to discuss the part of the article left on the editorial floor?

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  3. Caswell Franklyn April 3, 2016 at 7:30 AM #

    The online version has the uncut version but the version in the newspaper left out sections, apparently to make it fit in the available space. Section 13.(5) of the Public Service Act was deleted and the follow on does not make sense. Also the reference to Owen Arthur attempting to influence public-service workers was also omitted.

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  4. Bush Tea April 3, 2016 at 7:32 AM #

    But Caswell…
    If yuh go and make foolish laws, it is only obvious that when the shit hits the fan …and reality sets in, yuh going end up breaking the stupid laws…
    You need to stop mimicking Jeff and those other Cave Hill gurus ..who seem to operate under the clear misconception that because some shiite is written down by the clowns in Parliament it is somehow sacrosanct.
    Arthur passed these laws in an effort to win some political support. The business of running a government should be insulated from such idiotic lawmaking approaches….

    This is where a ‘National Supervisory Committee’ could play a role in reviewing the long term intent and the constitutional legality of some of the shiite that those political jackasses do from time to time…
    Wuh look at the shiite ‘Laws’ they recently passed related to solid waste management in St Thomas….

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  5. David April 3, 2016 at 7:33 AM #

    Why make a cut and change the context? Why do we pay editors again?

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  6. Caswell Franklyn April 3, 2016 at 7:35 AM #

    Apparently to make it fit.

    Sent from my iPad

    >

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  7. Well Well & Consequences April 3, 2016 at 8:01 AM #

    That is what happens when governments do everything assbackwards.

    The unions need to stay in the news, all day, every day to remind governments of their existence and power to shut a country down…I am glad this female understands her role.

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  8. Jeff Cumberbatch April 3, 2016 at 8:11 AM #

    Trouble is, especially with regard to the issuance of the written statement of particulars under the ERA201, the sole recourse is to make a complaint to the Employment Rights Tribunal through the Chief Labour Officer and we know how that goes.

    Even worse is that for the non-compliance with the Public Service Act, the matter has to be fought in the traditional courts! Yet the rule of law persists, “Where there is a right, there is a remedy”!

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  9. Caswell Franklyn April 3, 2016 at 8:16 AM #

    My union took one of these cases to court, and on the first day Government conceded the case and promised the court to appoint the person. There was then no need for the judge to rule on the matter. We therefore have no precedent to force them to comply.

    Sent from my iPad

    >

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  10. Jeff Cumberbatch April 3, 2016 at 8:22 AM #

    Caswell,

    Was the individual in fact appointed?

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  11. Caswell Franklyn April 3, 2016 at 8:29 AM #

    Yes, two weeks later the appointment was gazetted.

    Sent from my iPad

    >

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  12. David April 3, 2016 at 8:41 AM #

    A concern with the ERT setup is the opportunity for counsel to frustrate the process as we have seen with Mitch Codrington and the NCC matter. It also appears to be a concern of Chairman Gollop. Do we need lawyers and should this be addressed asap. We have the conclusion of the NUPW NCC matter and it appears we have to wait for a similar hearing presented by the BWU. The efficiency of any system is the acuity to amend quickly based on obvious pain points.

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  13. Prodigal Son April 3, 2016 at 7:21 PM #

    Off topic……………….

    ell when you think the WICB could not get any worse, they just did,

    Dave Cameron had the gall to issue a statement saying he apolodgies to the world for Sammy’s post match interview and promised to look into the comments.

    What a goat…………..you send a team to an international competition and refused to provide it with the basic gear…………..what an a…hole!

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  14. Frustrated Businessman aka Republic my ass. April 4, 2016 at 7:31 AM #

    Regardless of how you sugar-coat it, the Barbados Civil Service is the largest impediment to progress in this country and an international embarrassment.

    The only solution any bureaucrat ever has is more bureaucracy.

    No-one in the business community can foresee any solution to this problem other than cabinet heavy-handedness to break through the bureaucratic stonewalls. Which is exactly how cabinet ministers are able to extort bribes. In order for someone to pay for a service it must otherwise be impossible to acquire.

    When unions and gov’t employers come up with a way to indoctrinate civil servants into the role of facilitators and not frustraters, we would be on the path to recovery. Until then, business investment will go somewhere less corrupt and easier to do business.

    There will be no economic recovery under Fumble’s Fools.

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  15. Caswell Franklyn April 4, 2016 at 8:53 AM #

    You might sound good but you really don’t know what you are talking about.

    The local civil service was relatively clean up to independence and probably up till 1974 when the politicians installed themselves as the bosses. Thereafter, the politicians ensured that their supporters held positions of power in the service which allowed them to steal while their political civil servants did all in their power to hide the corruption of their political friends. Eventually, some of the civil servants saw how easy it was to be corrupt and followed suit.

    Prior to Independence, if the politicians and civil service were corrupt there was always the possibility that the British Government would have disbanded the local government, as they did in Turks and Caicos, and jail some politicians.

    The major thing that Independence did for this country is that it allowed politicians to be corrupt without having to look over their shoulders. There is no one to bring them to justice, even though all the structures for doing so exist. Unfortunately, the politicians are firmly in control of the persons who are in place to bring them to justice.

    Let me give you an example: There was a vacancy for the post of Chief Marshal; the choice of the politicians did not have the qualifications for the job and the politicians changed the Qualification Order so that Adrian Lovell would be appointed to the post. Sometime after that the Chief Marshal was called upon, by a senior politician, not to serve a warrant of arrest on a man from Bay Land. The Chief Marshal took possession of the warrant and swore an affidavit that the man could not be found. As luck would have it, there was also a summons to serve on the man which was served by the marshal for the district. When he turned up to court, some junior marshals arrested him and took him to Dodds.

    An acting Marshal I, Shane Wiseman, reported the perjury to the Registrar and the Public Service Commission as was required of him by the 2007 Public Service Act. For his troubles, he was removed as an acting supervisor.

    Speak to what you know sir. The politicians are the source of the corruption in the Public Service. In effect, you are calling upon Satan to punish evil.

    Oh, by the way, I have a copy of the warrant with the perjured affidavit stored in a safe place.

    Sent from my iPad

    >

    Liked by 1 person

  16. Frustrated Businessman aka Republic my ass. April 4, 2016 at 9:51 AM #

    Caswell, I most certainly know what I am speaking about and live it every day. Your rebuttal has only served to prove my point, not disprove it. You have provided reasons for the corruption, not evidence of the absence of it. Further, I agree with your points entirely.

    The fundamental issue is one of consequences or, more specifically, lack of same. In every court case I’ve won against the civil service where ineptitude and gross misconduct was clearly identified in the ruling (all of them), there has been ZERO consequences for the offending civil servant. It is easily dismissed as a consequence of there being ZERO consequences for corrupt and inept ministers who are meant to oversee and direct them but still a very poor excuse. As you rightly imply, ‘who guards the guards?’.

    Without consequences there can be no discipline. If we crack that nut we might be on our way to turning this ship around. Let’s say, for instance, that a similar body to the FTC was set up to hear civil service complaints and that all decisions made by the tribunal had to be acted on by the relevant ministry. That might be the beginning of the re-enfranchisement of Bajan taxpayers.

    Until then, we are all farting at thunder by constantly venting our disgust at a system we pay for to hold us down.

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  17. Bush Tea April 4, 2016 at 10:13 AM #

    You and Caswell are saying the same thing Frustrated B.
    He will never say that the civil servants are piss poor, inept and that they suffer NO consequences for their ongoing shiite – because they are HIS potential Union members….
    BUT HE KNOWS IT.

    What HE is saying …is that you cannot expect the crooked politicians – who are responsible for the mess in the Public Service, …AND whose graft is facilitated by their ineptness…. to be the ones to clamp down on the shiite…

    Passing strange that Caswell knows this so well …
    ….and STILL refuses to BUP…

    He is behaving more and more like Jonah ..who was called to help the people of Nineveh… but who sneaked off instead in a little shiite boat called ‘Unity’….
    …yuh betta watch out fuh whales….

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