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.