Jeff_Cumberbatch

The Jeff Cumberbatch Column – Current Issues in Local Employment Relations II

Jeff Cumberbatch - Columnist, Barbados Advocate

Jeff Cumberbatch – Columnist, Barbados Advocate

Last week, among the issues treated in this extended essay were the official assertion of employer non-compliance with applicable employment protection legislation; the decision of the Barbados Union of Teachers to eschew recourse to court action and to rely instead on effective industrial action to press its case for the reimbursement of those of its members whose wages had been abated by the Ministry of Education earlier in the year; the commercial morality of the repeated use of fixed term contracts to avoid the employee attaining a continuous period of employment by some employers in the context of limited legislative protection for the local worker in this area; and the employer’s entitlement to use an employee’s social media posts as a relevant consideration in effecting disciplinary action against that employee.

There are others besides. One burning issue that has already led to threats of possible industrial action if there is no satisfactory resolution, is the reversion of the president of the National Union of Public Workers, Mr Akanni McDowell, to his substantive post after a period of acting at a higher level. While, ostensibly, there is nothing unlawful about this reversion in public service law, unless the reversion was otherwise in breach of some contractual entitlement of Mr McDowall to remain in the acting post for an agreed period, the actuality is that the principles of international labour law afford special protection to the security of tenure of the leaders of workers’ organization or its representatives in the workplace.

One of the provisions of the Right to Organize and Collective Bargaining Convention 1949 (No.98) of the International Labour Organization is that workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.

And while this may most overtly be infringed by a prejudicial act against the organization itself, it also includes the prohibition of such acts as those calculated to making the employment of a worker subject to the condition that he or she shall not join a union or shall relinquish trade union membership; causing the dismissal of or otherwise prejudicing a worker by reason of union membership or because of legally permissible participation in union activities.

In both respects, local law is compliant (see Trade Unions Act, Cap. 361; s. 40A) although, as is the case in some other regional jurisdictions, this has been made into a criminal offence, although there may arguably be the availability of a personal remedy to the employee for breach of statutory duty. In any event, section 30 (1) (c)(i) and (ii) of the Employment Rights Act 2012 categorize as automatically unfair a dismissal for either of these reasons.

As mentioned above, the international labour jurisprudence is to the effect that individual protection from anti-union discrimination “is particularly desirable in the case of union officials because in order to be able to perform their duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their unions”. This tenet is based on the fundamental principle of freedom of association that workers’ organizations should have the right to elect their representatives in full freedom.

Of course, as has been stated by the Committee on Freedom of Association in its observations, this does not imply of necessity that a trade union office confers impunity against dismissal irrespective of the circumstances, and it has noted that “one way of ensuring the protection of trade union officials is to provide that these officials may not be dismissed, either during their period of office or for a certain time thereafter except, of course, for serious misconduct”. [Emphasis added]

So that the Committee has opined that the dismissal of a trade unionist for absence from work without the employer’s permission, for example, to attend a workers education course did not appear, in itself, to constitute an infringement of freedom of association. The trade unionist would then have to establish, on a balance of probabilities, that such permission was unreasonably withheld.

However, the Committee has gone even further and has advocated that “protection against acts of anti-union discrimination should cover not only hiring and ]dismissal but also any discriminatory measures during employment, in particular transfers, downgrading and any other acts that are prejudicial to the worker”. [Emphasis in original].

Moreover, the Workers’ Representative Recommendation 1971 recommends as one of the measures that should be taken to end sure the effective protection of workers’ representatives, the adoption of provisions for placing upon the employer, in the case of any alleged unfavourable change in his or her conditions of employment of a workers’ representative, the burden of proving that such action was justified.

The conclusions of the Committee in the instant matter would be of interest. However, from all indications, resort to industrial action, the ultimate weapon of the workers’ organization under its untrammeled right to organize its activities and to formulate its programmes, or conciliation, will serve to resolve the matter locally.

To revert finally to the issue of occupational health and safety interrogated by the social media protest of the partly made-up employee of the establishment at Sheraton, employees should be made aware that the relevant legislation appears to treat rather seriously the disobedience (not alleged in this specific case) of reasonable lawful instructions issued by the employer to ensure the safety of the workplace. It does so to the extent of making such non-cooperation a criminal offence in section 9 (1)(b)and 9 (2) of the Safety and Health at Work Act 2005-

It shall be the duty of every employee

……..

(b) as regards any duty or requirement imposed on his employer or any other person by or under any of the relevant statutory provisions, to co-operate with his employer so far as is necessary to enable that duty or requirement to be performed or complied with…”

(2) A person who contravenes subsection (1) is guilty of an offence and is liable on summary conviction to a fine of $500 or to imprisonment for 1 month or to both.

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28 Comments on “The Jeff Cumberbatch Column – Current Issues in Local Employment Relations II”

  1. Caswell Franklyn November 6, 2016 at 7:25 AM #

    Last week I did not comment on the first part of this essay because I was invited to participate in a panel discussion on Industrial Relations at UWI and I wanted what I had to say to be fresh.

    I think a lot of our troubles would be avoided if Jeff Cumberbatch’s weekly columns were compulsory reading for all senior managers in both the private and public sectors. That would include the Cabinet but then again I don’t think that many of them can read and understand.

    Like

  2. Jeff Cumberbatch November 6, 2016 at 7:46 AM #

    “That would include the Cabinet but then again I don’t think that many of them can read and understand”.

    Brrrr! Cold, Caswell! Thanks for the kind comment. Much appreciated.

    Like

  3. ac November 6, 2016 at 8:02 AM #

    well of course the labour laws are solely defined and rightfully so to protect the employee
    However labour laws did not stop Ronald Reagan and Margaret Thatcher actions in a pivotal moment to disregard the Union laws in order to take control of a country interest and do what is best in the national interest.

    Like

  4. Well Well & Consequences November 6, 2016 at 8:05 AM #

    I made a comment regarding that same sentiment on one of the blogs last week.

    …….do any of the ministers read and bother to educate themselves and update their knowledge re the changing world around them.

    Are they or their assistants, public/civil servants skilled at research.

    So far there is no evidence that they read and/or do research on anything that is progressive to island or people, they definitely do no research on those foreign people they love to rush and contract with, which leads to the question, do they read the contracts and fully understand what they sign off on….

    …..the Cahill scam says no….and it was Fruendel, prime minister and other ministers were the ones signed off on that piece of Cahill foolishness. ..lol

    Caswell…i think ya right.

    Like

  5. David November 6, 2016 at 8:30 AM #

    The issue as you know is that all decisions swirling in Barbados must be distilled through a political lense.

    Two examples come to mind.

    1. The NCC matter – famous Stuart words

    2. The Akanni McDowell matter – not so astute intervention from Labour Minister Byer-Suckoo.

    The point: we educate, we have process, we have procedures BUT all is TRUMPED by the political filter.

    Like

  6. David November 6, 2016 at 8:34 AM #

    Have you not heard/read the NUPW’s response?

    According to them all the environmental officers working with McDowell have the same academic qualifications. It will be up to the PAD to refute the ‘leaked’ story carried by VOB.

    BU notes there is a meeting called for NUPW members tomorrow BEFORE the scheduled meeting with government.

    Like

  7. Bush Tea November 6, 2016 at 9:06 AM #

    @ Caswell & Jeff
    When wunna say one thing, fairness demands that wunna say the other….

    Even if EMPLOYERS choose to be ignorant of the law that constrains their vindictive intent towards union officials, please explain how …or why… UNION officials themselves would be so ignorant of their RIGHTS …. which were enshrined precisely to empower them to represent workers effectively?
    Why would the union top brass be engaged is shiite talks about ‘qualifications’ with PAD when this is so OBVIOUSLY a red herring…?

    …and when, as CLEARLY STATED by Jeff, (and as common sense dictated to Bushie) the Government were so OBVIOUSLY being just nasty and vindictive?

    The CORRECT response should have been an IMMEDIATE strike of CRITICAL departments until the stupidness was reversed….. and THEN talks about ‘qualifications’ or even about process could be entertained.

    How could qualifications be an issue when it is the SAME damn government that allowed him to be appointed to act in the first place?

    …and how can the President and Secretary General NOT be aware of their rights not to be picked on….?

    Finally … Since Caswell will NOT BUP….. pray tell Bushie why he is not operating at least in some more meaningful capacity instead of the inept jokers we have…? How do we expect to progress when our talents are in the background …quarterbacking?

    Steupsss..
    Brass bowls to the right of us…
    Brass bowls to the left
    Brass bowls in front of us…
    and a pack of bullers bringing up the rear.

    Like

  8. Heather November 6, 2016 at 9:20 AM #

    @ Jeff, I agree whole heartedly. Industrial action will resolve this matter. The perfect time is all that is required.

    Like

  9. Pachamama November 6, 2016 at 10:24 AM #

    People here continue to make sense. Yeah?

    But sense or law is of little value when they constantly, consistently, avoid fundamental issues, as forces within the environment change relative positions.

    For example, there is a melee about workers rights, when in praxis there are NO workers’ rights.

    We cannot understand how it can still be posited that workers have any rights, regardless of what the law may say when the unions and workers themselves have so acted, over several decades, to make whatever ‘rights’ may have existed prior merely nullities.

    To us this is how the law and the use of law is. So because nobody has bothered to update the law it should not mean that former ‘rights’ are still operative.

    This argumentation is buttressed by libraries of laws which are still on the books but have gone out of usage over decades or centuries.

    For example, there are still laws in Barbados about the use of African drums in public places. The lack of enforcement may deem them inoperative but they are still laws nonetheless.

    This same legal inertia characterizes the regimes most still want to cite as the labour law of the land.

    We say that labour practices have rendered all these inert.

    The unions themselves have formally joined forces with employers and government.

    What were these people thinking when these ‘social partnerships’ were being forged?

    Like

  10. Hal Austin November 6, 2016 at 10:43 AM #

    An environmental officer is not a senior position; an MA in public health, although to be respected, is an everyday qualification.
    Competence must come in to it and Mr McDowall has acted in the position. What about his performance reports?
    It seems as if this silly issue will grind the nation to a halt. Wake up people. Move on. Government should introduce new legislation forcing the unions to give seven days notice before taking industrial action.n

    Like

  11. Caswell Franklyn November 6, 2016 at 10:49 AM #

    Hal

    Did Government give seven days’ notice before they kicked Akanni to the kerb.

    Sent from my iPad

    Like

  12. Pachamama November 6, 2016 at 10:52 AM #

    In essence, a war has been fought and workers made good headway but when called to the war conference table to negotiate the terms of the peace the workers surrenders all rights to employers, government and their international neo-liberal masters.

    And everybody understands this except those whose brains are located in a bygone era. What an anachronism.

    If we had our way military science would be taught in every school from primary to university because as educated as the Bajan people are, we still do not understand where we are located with the wars being fought around us for resources.

    Like

  13. abajanhowe November 6, 2016 at 11:10 AM #

    Attempting to call a strike anytime soon will prove futile since most of the key establishments are stacked with political lackeys who will stubbornly persuade otherwise, but I side with David. We should have been on strike from the beginning and everything else will fall into place. Forget Gollop and his bunch also.

    Like

  14. chad99999 November 6, 2016 at 11:14 AM #

    In this post, several of Jeff’s ponderous sentences exceed 50 words. Some exceed 75, which is as far as I can count.

    Paragraph-long sentences exhaust the reader, because by the time you have made it to the end of a sentence, you have already forgotten the beginning.

    Memo to Jeff: The hallmarks of good writing are (a) clarity, (b) pithiness, and (c) sentence variety.

    Like

  15. Jeff Cumberbatch November 6, 2016 at 11:18 AM #

    @ Chad, are you a good writer?

    Like

  16. Well Well & Consequences November 6, 2016 at 11:30 AM #

    The question you should ask Chad…is he a good reader, he obviously has problems reading retaining and digesting information.

    Some people are skilled in that area, some are not, there are programs, as I have said on here 3 or 4 years ago, that helps with the inability to speed read and digest, analyze information etc among other issues and deficiencies some may have…… complaining does not help.

    Like

  17. Hants November 6, 2016 at 11:53 AM #

    @ Jeff,

    You could assign someone else to write a DDV of your column. lol

    Dumb Down Version.

    Like

  18. Caswell Franklyn November 6, 2016 at 12:48 PM #

    Chad99999

    Every week you seem to attack Jeff for some sort of irrelevancy; it seems personal. Tell us what is the problem. Jeff ever horned you?

    Sent from my iPad

    Liked by 1 person

  19. William Skinner November 6, 2016 at 1:35 PM #

    I have long considered Jeff’s offerings to be
    of public service. It shows that our
    academics can be of great help to public
    discourse if they so choose.

    Like

  20. David November 6, 2016 at 1:42 PM #

    It is not enough to be an academic if he or she wants their interventions into public discourse to resonate.

    Like

  21. Dompey November 6, 2016 at 1:44 PM #

    Chad9999

    Leave the man alone bbecause in my humble opinion he is a cut above the rest because he has been able to maintain his dignity, decency and decorum since he has been on this blog. The truth definitely does hold true for the majority here.

    Like

  22. FearPlay November 6, 2016 at 4:23 PM #

    The Art of War – choose when and where you will attack your enemy! Maybe the NUPW will choose a date nearer to Independence Celebrations on which to call a strike. All eyes on the nation, overseas Berbadians coming home and maybe bringing friends; what a time to embarrass the government – airport, seaport, sanitation, water authority (oops, sorry. I forgot the last too are already an embarrassment). Should that happen, they have to make sure they aren’t outmaneuvered by and agreement to negotiate and promises of rectifying the situation at a later date. Be reminded that this group cannot be trusted and their word is worthless.

    Like

  23. David November 6, 2016 at 4:28 PM #

    @Fearplay

    Let us hope it does not come to a strike. Many ordinary Bajans have saved to visit from overseas to participate whether we want to or not.

    Like

  24. FearPlay November 6, 2016 at 7:18 PM #

    I believe that a call to arms rests solely in the hands of government at this point. To be or not to be.
    On another point, no, more as a question: Are the numerous Barbados flags in front of The Caribbean Broadcasting Corporation in breach of protocol after 6:00pm by remaining at full mast.

    Like

  25. ndtewarie November 6, 2016 at 8:14 PM #

    ALL LIVES MATTER

    All lives matter
    You can’t say that!
    Why not?
    It’s not politically correct
    But isn’t it morally correct?
    Well, well! blah blah!
    But you can say black lives matter!
    There’s sorrow there’s death
    The pang of a farewell indefinite
    What about white lives
    There’s peace and joy
    What about brown lives
    And the stars keep smiling
    What about yellow lives
    From the pull of my song you can’t stay far
    What about green lives
    My song sprawls down like a bird in a stormy night
    What about blue lives
    The temple bells will be chiming
    What about pink lives
    The stars will light up one by one
    What about lives of sharks
    My worship with pain is not over
    What about lives of whales
    Let your touch be there all through my life
    What about lives of animals
    Aching for your embrace all else is forsworn
    What about lives of refugees
    My mind has lost its rack
    What about lives of the homeless
    Always sign of want
    What about lives of the poor
    There’s no decay, there is no ending
    What about lives of the down trodden
    Let my eyes’ light drown in thy beauty forever
    What about lives of criminals
    Breaking the lock, I look within my core
    What about lives of babies
    When pain pull my strings, my notes shiver
    What about the lives of women
    The waves vanishing and rising

    THANKS
    NORMAN

    Like

  26. Jackson Weekes November 10, 2016 at 1:16 PM #

    Jeff Cumberbatch asks: “Chad, are you a good writer?”

    Chad seems disinclined to respond, so as a reader let me offer an opinion.
    P
    Chad is definitely a decent writer. He writes clean, clear, cogent and uncluttered prose that is way beyond the average BU commenter. He’s also, obviously, a woman-hating troglodyte who should not be taken seriously. His prose style, though, is much less cumbersome than yours, Mr Cumberbatch.

    Like

  27. Robert Meyers November 10, 2016 at 3:42 PM #

    As a [randomly capitalized] Creative, I must agree that Creatives agree on this.

    Like

  28. Robert Meyers November 10, 2016 at 3:56 PM #

    Still curious, however. What, just what, is a randomly capitalized “Creative”?

    Like

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