COLUMN – So dead wrong legally!
Yet again, another strike has been called off. Given the gusto with which speeches and positions on this matter had been delivered by politicians in the media, I would never have believed they would have caved in on the one occasion when the law was on their side.
We addressed the legalities of the pensions question in last week’s column.
Of interest, from a legal perspective, was that in the lead-up the Prime Minister cited Section 25 of the Constitution in relation to reining in the rampaging trade unions and their “bullying” tactics. I hate quoting legislation verbatim, but sometimes it is necessary for the public to read and judge for themselves, instead of being told by someone else how they should interpret something. The section states:
(1) In this chapter, “period of public emergency” means any period during which
(a) Barbados is engaged in any war; or (b) there is in force a proclamation by the Governor General declaring that a state of public emergency exists; or
(c) there is in force a resolution of each House supported by the votes of not less than two-thirds of all the members of that House declaring that democratic institutions in Barbados are threatened by subversion.
(2) A proclamation made by the Governor General shall not be effective for the purposes of Subsection (1) unless it is declared therein that the Governor General is satisfied
(a) that a public emergency has arisen as a result of the imminence of a state of war between Barbados and another state or as a result of the occurrence of any earthquake, hurricane, flood, fire, outbreak of pestilence, outbreak of infectious disease or other calamity, whether similar to the foregoing or not; or
(b) that action has been taken or is immediately threatened by any person of such a nature and on so extensive a scale as to be likely to endanger the public safety or to deprive the community, or any substantial portion of the community, of supplies or services essential to life.
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”.
It is also subject to the declaration of the period of emergency in Section 25 on the grounds outlined above.
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”.
Coincidentally, Britain’s prime minister is reported in the British media as launching a “crackdown on the trade unions” there. He proposes:
1. Outlawing bullying on social media and on picket lines;
2. Forcing unions to secure a 50 per cent turnout of their membership before a strike can be authorized;
3. Banning unions from automatically signing up members to contribute to their political funds;
4. Requiring unions to give more notice of strikes so that employers can draft in emergency workers.
Prime Minister David Cameron’s rationale is that such reforms would “balance the right to strike with the right of millions of people to go about their daily lives without last-minute disruption”.
Prime Minister Cameron has no written constitution with fundamental rights provisions to worry about. On the other hand, we most certainly do. The fundamental mistake the Government has made is to agree not to have this matter referred to the court.
Obviously, the unions didn’t want that because they are legally dead wrong.
There were strikes all over France with the attendant disruption to services, but that didn’t stop tourists going to see the Eiffel Tower and whatever else France has to offer. Tourism in this instance was a lame duck excuse.
(Alicia A. Archer is an attorney-at-law.)