Jeff_Cumberbatch

The Jeff Cumberbatch Column – An Uncomfortable Unionism

Jeff Cumberbatch - Columnist, Barbados Advocate

Jeff Cumberbatch – Columnist, Barbados Advocate

The right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests –ILO Committee on Freedom of Association (1985)

Truth to tell, despite its inarguable significance for freedom of association for trade union purposes, no one likes a strike. Not the employer who sees the smooth operation of its business frustrated; not the general public whose lives are invariably disrupted; and not even the workers themselves who might lose valuable income as a consequence of their not being ready and willing to provide service as contracted –the sine qua non (essential condition) of their entitlement to wages. Too besides, if the employer is the state, strike action and the inevitable disruption to public services might be perceived as being to the electoral disadvantage of the governing administration and a partisan attempt by the workers’ organization involved to ensure its demise.

Despite, or perhaps because of, its ability to disrupt normal existence, the right to strike is jealously guarded by the labour union and is further protected, though not expressly, both by ratified international Convention and by local law which confers certain immunities and privileges on workers’ organizations that engage in industrial action if effected in contemplation or furtherance of an industrial dispute.

For example, a business owner cannot maintain an action in tort, as he may against other entities, against a union for interference with that trade or business. Indeed, section 7 (1) of the Trade Unions Act, Cap. 361 is clear in its provision-

An action against a trade union, whether of workmen or employers, or against any members or officials thereof on behalf of themselves and all other members of the trade union in respect of any tortious act alleged to have been committed by or on behalf of the trade union, shall not be entertained by any court”.

Of course, the right to strike is not an absolute right, as both the principles of international labour law and some regional statutes have recognized. Hence, with certain established safeguards, the right may be limited in the essential services –those services whose interruption would endanger the life, personal safety or health of the whole or part of the population; in the public service -for those public servants exercising authority in the name of the state and in the event of an acute national emergency.

And some regional jurisdictions have established industrial courts or tribunals to resolve industrial disputes according to principles of law and thus to pre-empt the probability of strike action. In this regard, it does not require a rocket scientist or a law scholar to reason that the honourable Prime Minister, Mr Freundel Stuart, must have been contemplating a recourse along similar lines when he suggested last week that perhaps the time had come for us to reconsider our voluntarist system of industrial relations and, although he did not say it expressly, to imagine the juridification of the local employment relation.

The current disquiet on the local scene resulting from the action by the National Union of Public Workers clearly has the governing administration, to use an expression from the US, “more nervous than a long-tailed cat in a room full of rocking chairs”. With an increase in visitor arrivals anticipated for the celebration of our golden jubilee of Independence in less than a fortnight, any dislocation at Customs and Immigration engendered by the National Union of Public Workers [NUPW] should impact severely on the comfort of these individuals and is likely to have a dispiriting effect on their holiday experience. One Cabinet member has labeled the conduct of the NUPW as reckless and irresponsible” while the Prime Minister has condemned the organization’s instinctive resort to strike action without first attempting to engage in social dialogue on the matter.

The real issue has been however most clearly articulated by the General Secretary of the Barbados Workers’ Union, Ms Toni Moore, who stated yesterday that she had sought the reason for the decision to revert Mr McDowell and “to ascertain if there had been a breach of the ILO’s Convention which protects union leaders”. This identifies precisely the bone of contention between the parties that seems to be lost on most commentators on the issue.

It is not whether it is within the managerial prerogative of the employer to revert Mr McDowell. This is beyond dispute so long as there is no conflict with a contractual provision to the contrary. Rather, as I wrote two columns ago, it is whether the actions of the employer in this instance amount to an act of anti-union discrimination prohibited by Article 1 of the Right to Organize and Collective Bargaining Convention 1949, an instrument that Barbados ratified on May 8 1967. According the ILO’s Committee on Freedom of Association –

“One of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full confidence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom”

The dispute has not so far been joined in the public domain on this narrow issue. I submit, however, that this is the heart of the matter and that while some are content to exercise their partisan preconceptions as to the patriotism, moral legitimacy or otherwise of the NUPW action and its likely consequences for the governing administration, a more focused debate should be on whether the reversion of Mr McDowell did in fact constitute an act of anti-union discrimination.

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26 Comments on “The Jeff Cumberbatch Column – An Uncomfortable Unionism”

  1. Caswell Franklyn November 20, 2016 at 7:28 AM #

    Jeff

    In my view the reversion of McDowall amounted to a criminal offence under section 40A of the Trade Union Act.

    Like

  2. Dompey November 20, 2016 at 7:49 AM #

    You’re absolute right regarding the fact that the right to strike isn’t an absolute right because as a governmental/ state worker there is a clause in our binding-agreement which prevents us from striking, but the private entity which provides the same services as we do has that same right to strike.

    Like

  3. ac November 20, 2016 at 8:39 AM #

    Caswell states that the govt committed a criminal offense . i that be the case the law courts is where such matters are taken to seek resolution not in the streets

    The Unions have crossed the line between traditional Union activism and bullying , Govt and Unions have not always see eye to eye on various issues.
    The ILO rules and regulations were not formalized to give Union rights to stampede against a country interest but as guidelines which can develop and find a balance between the rule of law and Union activism
    This past week endevours by the Union which has seek to divide and conquer by all means to assert and to threaten the country vulnerabilities is a act upon which most would frown and find to be a despicable course of action seeking resolution
    If we say we are a nation of laws then why bypass the legalities o the law which in effect give seriousness and concerns to those challenges which we as a nation find hard to resolve
    For indeed what has taken place in the past week cries out for a sense of easement and comprise and legal discernment
    Very disheartening to say the least

    Like

  4. Hal Austin November 20, 2016 at 9:08 AM #

    There are US states where employees are not allowed to strike. Police, military and prison officers are not allowed to strike. If a proper negotiating system is in place, there will be no need for civil servants to strike.
    Trade unionists cannot use strike action, or the threat of action, as a weapon against the state. As I have said before, workers in Barbados live in fear of falling back in to abject poverty – two or three pay days away.
    The union becomes their bulwark against the threat of the sack, or threat of the sack. Unions should stop concentrating on taking industrial action and plan for the medium and long term in terms of the future of work.
    They need to look at post-capitalist technologies rater than focus on the stagnant and out of date practices of the trade unionism of another age.
    I suggest you read Nick Srnicek’s book, Inventing the Future for new ideas. Globalised Capitalism is in intensive care, the growth that we have had off and on for 300 years is now in one of its stagnating phases and tourism will not rescue us.
    In a society that claims to have a high standard of education, we should be manufacturing and exporting ideas, rather than turning our young workers in to domestics.
    The shot gun marriage between constitutional independence and post-colonial capitalism is not working; we need new ideas and new agencies.
    Caricom has failed, the so-called Social Partnership is a myth and small family-owned businesses, mainly hotels, are in desperate survival mode.
    Clientilism, which we have now adopted, certainly in relation to China, has no answers to our crisis.
    Our factories should be knowledge factories manufacturing ideas applicable all over the world.
    Get Stuart/Jones to spend a reasonable 12 per cent of GDP on education, stop the decline in which the brightest and best of every generation want to be lawyers – a waste.
    Turn the best of our schools in to centres of excellence; fast track bright young kids as JO Morris did at St Giles back in the dark 1950s. We also need to reform our national scholarships, from first degrees to post-graduate studies. Instead of being known the world over for cricket, let us be known for our education like Singapore and Finland.
    Where are our labour economists during this much needed debate, our labour lawyers, our sociologists, our political parties? Who is going to lead the public debate.
    Barbados is in serious crisis.

    Liked by 1 person

  5. ac November 20, 2016 at 9:13 AM #

    please note my key board is having a problem with lower case “f” for pure reading content the following can be applied to “i” in the first sentence and “o” in the second to last paragraph my apologies

    Like

  6. Gabriel November 20, 2016 at 9:42 AM #

    I take my hat of to the little lady of the NUPW Ms Delcina Burke,who in response to the threat from the big man who thinks he made himself,reminded him and all his confounded associates and hangers on ……”remember who put you all where you are”.In short,the little lady told the big man…shut your azz and show respect,fool,for tonight thy soul may be demanded of thee…..

    Liked by 1 person

  7. Pachamama November 20, 2016 at 9:50 AM #

    David

    Your man Hal Austin seems to be learning a few things about the state of capitalism et al, globally!

    Better late than never.

    We spent five years trying to school him, but to no avail.

    Finally and now, that this scenario has entered mainstream discourses we has abandoned the trite he wrote to misguide the BU family for over 5 years.

    When you have the mentality of a slave and the door of real freedom opens. That door could hardly be taken by the likes of him.

    Liked by 1 person

  8. Pachamama November 20, 2016 at 10:33 AM #

    Organizations in Barbados formally known as ‘Trade Unions’ seem genetically predisposed to seminal strike actions located around one member.

    That member always seems to be near to its leadership.

    We recall that the Telephone Company strike of the 1970’s revolved around a Barbados Workers Union member, can’t remember his name just now, but it was about the rights of that individual. David Giles, we seem to recall.

    And there could be others.

    Now we have a similar circumstance.

    As though the individual, depending degrees of reparation from leadership is more important than workers rights more generally.

    These trade unions are still led by people who joined with capitalists and shut the country down, under another DLP regimes, while surrendering union rights for their leaderships closeness to capital and for the receipt of knighthoods etc. A ‘dame’ will soon follow.

    Are we to see, again, a misguided union leadership now come back to ‘rights’ abandoned in order to suggest current institutional relevance?

    How are these unions to account for the missed opportunity to make a grande bargain for ownership in enterprises, by workers, in exchange for ‘rights’ surrendered for pottage?

    The historical ‘mistakes’ of trade union leaderships during the period of 1990’s (circa) and prior have now sealed their fates.

    We have elsewhere determined their involvement in the Social Partnership as no less than a wholesale surrender of all workers’ rights

    Capitalism can no longer be continually responsive to the traditional demands of labour. That was why vision was required for workers to own all organizations in which they worked.

    The irony was that this treachery by the leaderships of workers’ unions in Barbados occurred at a time when there was an enabling ‘economic democracy’ discourse rife in the country.

    That discourse had galvanized the whole country, for four years, but the Grande Ole Duke of York could not be made so interested in this issue as essentially a workers’ issue.

    The Social Partnership has therefore deemed all workers’ ‘rights’ as quaint. There can be no going back to the position ante.

    Like

  9. Alvin Cummins November 20, 2016 at 10:52 AM #

    But Hal, we are indeed known the world over for the quality of our education. Being 11th in the world; a little 166 square mile dot, is a great achievement. But the Bajan mentality and low self esteem, would still have him negating the achievements even if we were no. 1.

    Pacha, it is time you try to direct your thoughts away from its concentration on slavery and things associated therewith.Also when the Central Bank is accused of “Printing money” they don’t have a little printing press in the Bank that is rolling off bills. It is the other instruments it is offering so that they can increase their money supply

    Heather,
    If Mrs Riley- Fox was evicted, what was the state of her finances? What was the level of her debt, what was her income, what were her liabilities? How long was her indebtedness unpaid?How much discussion took place between herself and the financial institution? There are so many questions, and no answer provided by you. the statement you made is just designed for the emotive feelings to intrude on the harsh realities. Barbados has had many Black owned banking institutions, which we no longer have for various reasons. Following; or at least parallel to the Civic and the Symmonds “Penny Bank”;( isn’t Kerry Simmonds, member of Parliament and the BLP, a relative of the same principals of that Bank?,) was the Barbados Agricultural Bank, into which sugar workers and other agricultural persons; mostly poor, put their savings. It expanded and later became the Barbados Government Savings Bank, and later the Barbados National Bank Inc. Shares were offered to the public. Some years ago the then Government decided to sell more shares to the public. enough of these were not taken up by the populace; the same populace you are accusing of not supporting their own, and the shares were acquired By Republic Bank ofTrinidad. Who is to blame for this lack of enthusiasm, and loyalty, on the part of Bajans who had millions of dollars in savings in the same bank. Bajans have to learn to turn the billions they have in savings, into investments in Bonds, treasury Bills, Government Debentures, businesses, companies, or anything that brings them bigger returns than the interest on their savings.

    Like

  10. Pachamama November 20, 2016 at 11:09 AM #

    @ Alvin Cummins

    F**k off!

    You really think that you are in any position to question anything we say

    Like

  11. Vincent Haynes November 20, 2016 at 3:35 PM #

    Alvin Cummins November 20, 2016 at 10:52 AM #

    You are talking to Heather on the wrong thread…..

    With banks crashing,govts defaulting,companies collapsing…….you want bajans to lose their hard earned money.

    Like

  12. Vincent Haynes November 20, 2016 at 3:39 PM #

    Why would govt place Toni Moore in this situation by virtue of their actions.

    It boggles the mind based on Caswells statement,why govt took the action it did at this time of all times just befor the 50th and xmas…..total lack of vision.

    Like

  13. millertheanunnaki November 20, 2016 at 4:17 PM #

    @ Alvin Cummins November 20, 2016 at 10:52 AM
    “But Hal, we are indeed known the world over for the quality of our education. Being 11th in the world; a little 166 square mile dot, is a great achievement. But the Bajan mentality and low self esteem, would still have him negating the achievements even if we were no. 1.”

    And this was known long before your so-called Independence. Educated Bajans were going abroad to teach and man the civil services of many territories especially in the English-speaking Caribbean long before the introduction of universal free secondary education in Barbados.

    Aren’t both you and Hal who entered Combermere before 1966 testimony to that?
    Prior to 1966 Barbados was probably in the top 5 in the world when it came to its education system.

    BTW, AC, Rawle Parkinson and Charles F Broomes would not have been too impressed with your arrogance and deceit.

    Like

  14. Hal Austin November 20, 2016 at 4:27 PM #

    Our education used to be the envy of the Caribbean. But all you have to do now is look at the CXC results. Last time I checked not a single Barbadian school had won the school of the year.
    By the way, I was told by a top educationist that one teacher at Lodge told a parent whose boy was failing his exams that he could provide private lessons (tutorials|) to get him through his exams. What was the teacher being paid for? This was a clear perverse incentive bordering on criminality.

    Like

  15. Hal Austin November 20, 2016 at 4:38 PM #

    Pachama,
    The day I learn anything about capitalism and how it works from you – apart from being uncouth, foul-mouthed and rude – I will jump off Waterloo Bridge.
    I knew more about radical politics before you could write your name.
    Your negativity is poisonous. We also have to live in the real world and not just pontificate from behind a mask. You live in a cesspit of envy and ignorance.

    Like

  16. Annonymouse - TheGazer November 21, 2016 at 2:41 AM #

    @ac
    It would be interesting to see what goes into theses rankings. Where were we in 2014 and 2015?
    Let me stop before some question my motives and not the data.

    Like

  17. charles skeete November 21, 2016 at 11:46 PM #

    “It is not whether it is within the managerial prerogative of the employer to revert Mr McDowell. This is beyond dispute so long as there is no conflict with a contractual provision to the contrary. Rather, as I wrote two columns ago, it is whether the actions of the employer in this instance amount to an act of anti-union discrimination prohibited by Article 1 of the Right to Organize and Collective Bargaining Convention 1949, an instrument that Barbados ratified on May 8 1967. According the ILO’s Committee on Freedom of Association –

    “One of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full confidence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom”

    The dispute has not so far been joined in the public domain on this narrow issue. I submit, however, that this is the heart of the matter and that while some are content to exercise their partisan preconceptions as to the patriotism, moral legitimacy or otherwise of the NUPW action and its likely consequences for the governing administration, a more focused debate should be on whether the reversion of Mr McDowell did in fact constitute an act of anti-union discrimination”

    Your enlightened and ‘not afraid to mash corns’ comments on this particular matter is required reading not only for the uninformed but those who should know better like ill-advised persons such as Mr Elsworth Young who from their theoretical comments on the issue can only be described as masquerading as industrial relations experts. I notice that Mr Young in his feeble attempts to shift blame on the Union by inferring that their action was irresponsible having not exhausted use of the relevant alternatives put in place before industrial action should be contemplated was given wide coverage in the media.

    Perhaps Mr Young’s remarks would be more credible and not seen as disingenuous if Mr Young had criticised Government’s intransigence in attempts to settle the BIDC dispute in the interests of both parties when the Government sent home the BIDC workers before their time and rather than negotiate in good faith and return to the status quo by sending back the workers until passions cooled and the relevant procedures were exhausted were rather intent to play hardball by adopting a belligerent approach to the negotiating process even though the positions of both parties were bolstered by legislation which could have been ironed out if Government had adhered honestly to the principles of industrial relations negotiations in the face of the conciliatory approach adopted by the Union -to their detriment- at the social partnership meeting called to inveigle the NUPW to turn off the heat only to be unwittingly outfoxed and left holding an empty bag. The belligerent response by the NUPW and the other unions now might be as a result of having been bitten more than once, they are now twice shy. their time in an effort to cool passions and negotiate in good faith.

    Like

  18. Hal Austin November 22, 2016 at 4:29 AM #

    Wow! Charlie Skeete vs Elsworth Young. Is this a fight which started in the corridors of the University of Waterford?

    Like

  19. David November 22, 2016 at 4:35 AM #

    You have the wrong Charles Skeete not to be confused with the Washington based!

    Like

  20. charles skeete November 22, 2016 at 1:48 PM #

    Now where was the voice of the platitudinous industrial relations expert Mr Young calling for conciliatory action when the N.U.P.W acting in good faith trusted the process of dialogue at the level of the Social Partnership with the expectation that the agreement brokered thereat would not have been circumvented but that the commitment to have the termination letters withdrawn or the workers compensated until the compulsory age of retirement attained would be honourably kept leaving the union management to face the wrath of its membership for suspending industrial action and nothing to show for it. Once again I posit -once bitten twice shy.

    Like

  21. Hal Austin November 22, 2016 at 1:51 PM #

    My apologies. I know the feeling.

    Like

  22. charles skeete November 22, 2016 at 2:20 PM #

    Again I ask where was the conciliatory voice of the expert Mr Young when an agreement to revisit a moratorium placed on 2011 increases for GAIA INC workers should the economy improve between January and June 2011 not honoured although the Minister of Finance and Economic Affairs in his Financial Statement and Budgetary Proposals of 2011 presented to Parliament on Tuesday 16th August, 2011 in a pumping of the chest mood and to the thumping of his colleagues stated thus and I quote

    “Mr. Speaker Sir, behind a properly thought –out and targeted programme as enunciated by me in last November’s budget, together with a light recovery in North Atlantic economies, overall economic growth stood at 2.1% at the end of the first half of 2011. This was a healthy improvement to the 0.5% decline at the end of the second quarter 2010”.

    Must the Union continue to play catch-up to the detriment of the organisation and membership. My contention like that of Mr Stuart’s is that the social partnership is indeed a philosophical absurdity for labour and capital have two different persuasions and cannot mix. The government has their role which is to manage the country as they see fit and the union’s role is to represent the interests of their membership.

    Like

  23. David November 22, 2016 at 2:28 PM #

    Mr. Skeete why don’t you use your contacts to get us those Kellman/NHC responses to the AG’s report?

    Like

  24. erice November 26, 2016 at 1:21 PM #

    Charles balance skeete -has turned the RED side of his shirt to the front and the BLUE now has gone to the back
    can any one trust him ?

    Like

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