When one rule exists for Medes and another for Persians
What a dramatic week it has been on the industrial relations front! And, unless there is real progress towards resolution of the central grievance that triggered this week’s protest by the National Union of Public Workers (NUPW), the industrial relations climate seems poised for even further deterioration next week.
In a strong show of unity, against the backdrop of a lingering fracture in the island’s labour movement, the NUPW joined forces on Monday with the Barbados Workers Union (BWU), the island’s other major trade union, to launch a five-pronged plan of industrial action. The protest is over what the unions regard as the increasing marginalization of workers by employers, including Government, within recent years.
The protest began with a mid-morning march from Queen’s Park, through the centre of the city, and ending at the NUPW’s Dalkeith headquarters. The march, which attracted an estimated 3,000 plus workers, was the first phase. Phase two, which took effect on Wednesday, saw an immediate cessation of garbage collection and burials at public cemeteries by Sanitation Service Authority (SSA) workers. Garbage is building up across the island.
The NUPW, which has the support of the island’s other unions, has made it clear the protest will escalate into a national strike if the central issue is not resolved to its satisfaction. Namely, the reinstatement of Barbados Investment and Development Corporation (BIDC) employees, sent into retirement after they had reached the age of 60, or an agreement by the state corporation to pay them until they reach the new national retirement age of 67.
Despite the intervention of Minister of Labour, Senator Dr Esther Byer, who brought the NUPW and BIDC back to the negotiating table for a marathon discussion yesterday, no resolution was achieved. BIDC is sticking to its position that terminating the workers was lawful under the provisions of the Statutory Boards (Pensions) Act which allows statutory boards to retire employees after they reach the age of 60.
Given the deadlock, the NUPW signaled after yesterday’s meeting that its next step is to move on to phase three of the industrial action. The impasse throws up an interesting issue because, on one hand, civil servants can work until the age of 67 while, on the other, employees of statutory boards who are also Government employees, can be made to retire at 60.
What we clearly have here is one rule for the Medes and another for the Persians. The difference in treatment speaks to discrimination and raises an interesting constitutional question. Though age is not specifically mentioned, Section 23 of the Barbados Constitution, which is the supreme law of the land, is quite explicit on the issue of discrimination. Section 23: 1 (b) states the following which seems applicable in this particular case.
“No person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.” Considering the facts of the BIDC issue, it does seem that a basis exists to challenge the BIDC’s decision on constitutional grounds. However, that decision is a matter for the NUPW.
Further, the Constitution goes on to explain in Section 23: 2 that “‘discriminatory’ means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, place of origin, political opinions, colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not afforded to persons of another such description”.
Applying the argument of Section 23: 2, what we have is a case where one set of Government employees can retire at age 67 while another set can be asked to do so at 60. As constitutions are considered “living documents”, the absence of any mention of “age” in the Barbados Constitution, as it was crafted back in 1966 at Independence, does not mean a Court may not entertain the issue. Rulings are usually made on the basis of interpretation of the spirit of the Constitution, as we see so often in the United States and other jurisdictions.
If the NUPW does decide to pursue litigation, it will be an interesting test case. Meanwhile, with the prospect of intensified industrial action next week, it is hoped that cooler heads will prevail and that there will be a meeting of minds in the national interest so that Barbados is spared from the effects of major dislocation which it can do without at this time.