Right to strike
Surprise, surprise! The strike action threatened by the Barbados Workers’ Union has been called off. Yes that was intended to sound as cynical as it did given the current political climate.
The basis for the strike was suspect at best, especially in light of the report that the severed employees were offered a better termination package than that specified in their collective bargaining agreement and most certainly than any employment legislation in force in Barbados.
An employer maintains the right to hire and fire any individual within the bounds of the law, which is a separate and distinct issue from what a trade union can force an employer to do using such tactics.
The right to freedom of assembly and association guaranteed by Section 21 of the Constitution is the bedrock on which trade unionism is founded. Of course such rights are subject as always to the exceptions of “defence, public safety, public order, public morality, public health or … the rights and freedoms of other persons”.
The types of behaviour exhibited by trade unions in pursuance of trade disputes are legitimised by the Trade Unions Act, Cap. 361. Such legislation is a necessary part of the industrial disputes landscape because trade union activities were generally speaking considered to be unlawful and amounted to conspiracy until circa the end of the 19th century.
In that vein, Section 5 of the Trade Unions Act provides that “an agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute shall not be indictable as a conspiracy if such act committed by one person would not be punishable as a crime”.
Such exemption, however, does not affect the law relating to “riot, unlawful assembly, breach of the peace or sedition or any offence against the State or the Crown”. The Public Order Act Cap. 168A continues to hold sway and therefore the permit of the commissioner of police is required pursuant to Section 9 to hold a public march as part of strike action. Organising, leading or participating in such a march or picketing in the absence of the permission of the commissioner is a criminal offence.
From time to time legislation attempts to oust the jurisdiction of the court to hear and determine certain matters. Sections 6 and 7 of the Trade Union Act attempts such ouster and indicate that the court cannot entertain any actions against a trade union either by employers or members of the union in respect of any tortious act committed on behalf of the union.
Action taken in furtherance of a trade dispute under Section 8 cannot be the subject matter of court suit where the claim is that it “induces” another person to breach the contract of employment or interferes with the “trade, business or employment of some other person or with the right of some other person to dispose of his capital or his labour as he wishes”.
Nothing contained in the Act however authorises the harassment, intimidation, persistent following of any person, hiding tools etcetera or laying in wait outside a house or work place with the intention of compelling persons to refrain from working or participate in any industrial action. It goes without saying that the use of actual violence remains a criminal offence no matter how noble the cause.
The employer on the receiving end of the industrial action cannot dismiss workers or negatively alter the terms or conditions of their employment while industrial action is ongoing and doing so constitutes a criminal offence. The employer may not discriminate against union members or officials. Nothing in the act prohibits the employer from instituting a contingency plan, including the hiring of replacement workers.
The International Labour Organisation is a United Nations agency which establishes and oversees international labour standards. The ILO has set out a number of principles guiding the right of workers to strike, which include the following:
“(1) A blanket ban on sympathy strikes could lead to abuse and workers should be able to enjoy the right to take such action when the initial strike they are supporting is itself lawful;
(2) A minimum operational service may be established in the case of strikes in public utility services and in public services of fundamental importance;
(3) The hiring of workers to replace strikers seriously impairs the right to strike and is acceptable only in strikes in an essential service or in situations of acute national crisis;
(4) Legal provisions regarding wage deductions for days of strike give rise to no objection.”