BSTU’s say on teachers’ salary deduction
It is with great consternation the BSTU was made aware of the contents of a letter to the various secretary-treasurers from the Permanent Secretary in the Ministry of Education, dated May 6, 2016, and captioned Salary Deductions. This correspondence constituted an instruction that the salaries “of those officers, who attended without permission, the Barbados Union of Teachers meetings held on April 29 and May 4, 2016, respectively should be proportionately abated for the month of May, 2016” –– the authority quoted for such action being based on General Orders, Section 3.3.2.
This section states that “the pay of an officer or employee may be proportionately abated for any part of a day or period of absence from the job without permission or without satisfactory explanation for such absence”. It is my understanding that today, 26th May, 2016 some teachers in the system received pay cheques reflecting one day’s deduction with the second deduction to occur in June, 2016.
The operative word in the section quoted above from General Orders is “may”. The section attempts to provide the employer with certain powers. However, there is no compulsion for the exercise of this power to take place. In any event there is a primary responsibility on the employer, including the Government, to provide each worker with an explanation for any intended alteration to their reasonable and legitimate expectations of payment of the salary upon which their contract is founded, prior to any such action being taken.
One reason is obvious: an employer is capable of error, and the Government is no exception. No attempt has been made to avoid this possible error. In addition, no attempt has been made to communicate any reasoning to the BUT for this intended action against its members, when any “absence” from duty is being, in effect, blamed upon the prior behaviour of that union.
The reasons stated in the letter as being “a lack of permission” or “the lack of satisfactory explanation” are, in the opinion of the BSTU, flawed.
On the dates stated above, the BUT observed custom and practice by having followed the identical procedures of written notification of the Ministry of Education and principals, and with the names of those attending such meetings being recorded at the school and at the meetings as they have always done, and in the same way. The BUT also held the meetings within the working day of teachers, as it had done on many prior occasions.
Permission was not needed, and the “explanation” would have been the necessity of a meeting with its membership. The present modus operandi in the organization and execution of the two referenced meetings have in no way deviated from what obtained in more than one instance when the present Minister of Education and Chief Education Officer led the same union.
There was then neither reference to General Orders nor an execution of salary abatement. In short, the discretionary powers, not to mention the industrial relations considerations, present in the word “may” in the section quoted were given due and proper weight.
In using the General Orders to achieve its ends, albeit unstated to workers or their trade unions, the actions of the Ministry of Education raise a number of questions:
1. Does a trade union need permission to hold a meeting during a working day, a working day that in some cases now spans 24 hours? That has never been the case, even if courtesy and convention have ensured notification.
In this regard, neither will a change in the status quo be accepted nor any precedent allowed to be set by any self-respecting trade union.
The ILO Conventions 87 and 98 which have been ratified by the Barbados Government are, so far as the BSTU is concerned, applicable.
The principles of Convention 87 have been incorporated into domestic law in the guarantee of freedom of association in our Constitution. Convention 98, which gives the right to organize and bargain collectively, is inextricably linked to 87, and is reflected in our Trade Unions Act.
That specific point was made by the relevant minister when Section 40 of the Trade Unions Act was amended in September, 1974. These two conventions allow the right of a trade union to call its members to a meeting without suffering any sanction.
Any attempt to impose a sanction, even if such a right and power existed, would therefore have to be undertaken within the context of an observance of the principles of those conventions. A fundamental requirement in this would be dialogue and consultation since the sanction would represent an alteration of an established status quo. The facts show their absence.
The Government, as employer, was informed in the normal manner that there would be a meeting. The viability of the enterprise, in this case the schools, was not threatened. The matter of “permission” does not arise in this instance as it never has before and no further “explanation” was necessary.
2. The meetings did not constitute industrial action of any sort, including strike action.
On both occasions, the teachers returned to school and resumed normal classes by the end of lunch. In the absence of strike action, with the accepted norm of no necessity for permission to be granted for a union to hold meetings, and with the right of freedom of the members of the union to associate by attending such meetings, then a trade union is entitled to query the motivation of the ministry in seeking to have deductions made from the salary of teachers.
A trade union, given the absence of explanation, is also entitled to query, from a practical standpoint whether the deductions have been accurately computed.
3. Boards of management have, under the Education Act, to follow the broad policy of the ministry. The taking out of money from a salary in the above circumstances does not, in the opinion of the BSTU, fit into any such policy. The policy, if there is one in instances other than strike, would have to come from another minister/Cabinet. Certainly, such a policy would have to be expressed in such a way that it would not run counter to the policy position adopted in ratifying ILO Conventions 87 and 98. While it is true that fundamental constitutional freedoms are not absolute, there is nothing that limits the holding of a meeting in working hours to situations of salary sanction.
Any policy of reducing salary in this manner therefore strikes at the very heart of the principles underlying the ratification of ILO conventions as a Government and at its commitment to those fundamental principles as employer, especially to its commitment to holding itself up to the status of Model Employer under Protocol 6.
4. Let us not forget too that the BUT was forced to call meetings because of Government’s action or, more accurately, inaction. The employer was directly responsible for forcing such meetings, and cannot now hold others to sanction for its failure. Therefore, an attempt to reduce salary in this way is a total divergence from those aforementioned principles and best practice in industrial relations.
This held true for the BSTU when it was forced to call a series of similar meetings during its dispute over the situation at The Alexandra School. The then permanent secretary, having sent a letter to the union reminding us that moneys “may” be deducted from our salaries, accepted the position in our response that those meetings were called because of the ministry’s refusal to deal with the issues at the school, as well as its refusal to sanction the then principal for adamantly refusing to attend two meetings summoned by the then chief education officer and one by the then permanent secretary to address matters at the school, because the BSTU would also be in attendance.
The then permanent secretary obviously accepted the culpability of the ministry, and no moneys were deducted for those many meetings held during the workday or any of the cumulative 23 days of strike action that followed.
The BSTU is satisfied that decision, whether at the level of the permanent secretary or beyond, was taken in recognition of the industrial relations imperatives. The same should apply to this case.
5. The BSTU registers another flaw in the Permanent Secretary’s letter. Section 15(1) of the Second Schedule of the Public Service Act provides both the Permanent Secretary (PS) and the head of department, in this instance, the principal, with powers to reduce pay appropriately for breaches of the code –– that is not being at work except in cases of illness or unavoidable circumstances.
Section 15 (2) states that the absence from work because of illness/unavoidable circumstances shall be reported as soon as possible on the day on which the officer is not on duty. Those reports are made to a school, not to the PS.
The power of the PS, in the BSTU’s view, relates entirely to officers within the ministry. The PS cannot use this section to intrude upon the powers of the principal. The PS may attempt to influence the exercise of those powers –– there is nothing to suggest in the section that if the principal cannot use the powers or, if frustrated in the use of the powers, the PS is required in law to intervene in the interest of good governance. However, if the principal gives permission for absence, as the president of the BUT states in relation to his members, then there is nothing that principal or PS can then subsequently do to dock pay.
The PS may –– I repeat, may –– tell or remind a principal or board of management what he/she thinks is expected in the circumstances, but the BSTU does not see that the PS can, in law, instruct those in a school to dock the pay of others in that school.
The exercise of that power resides in the school itself. It is the secretary-treasurer who will submit the sheets to the SmartStream personnel –– and any advice on submission for a change of status quo would have to come from the principal. Those who concoct those sheets for the computerized payment go by what is submitted from a school.
The BSTU again asks: can the ministry, in law, instruct an employee of a board of management in this way, especially when it has not specifically sought to engage either worker of trade union?
The PS, in the opinion of the BSTU, cannot substitute other salary numbers, or instruct what pay should be there, because the PS would not be privy to the details
of information from each school.
6. There is also now a specific example of discriminatory treatment allowed by the Ministry of Education for years, where the trade union for secondary school principals (BAPPSS) and primary school principals (APPS) meet during school time, at least one day each month for the entire day. They, as registered trade unions, no more than the BSTU or the BUT, can separate professional concerns from trade union ones.
Have these principals not always extended permission to themselves to be absent from duty? Have they not done so with the knowledge and agreement of the Ministry of Education? Will they now have salaries deducted for doing what they have always been accustomed to, even if granting permission to themselves?
In conclusion, the issue comes back to the industrial relations response to the notion of a localized permission in the context of the overarching position of the law relating to constitutional rights and trade union activities, in Government’s solemn commitment as employer under successive protocols since 1998. The business of education/the school was not compromised by the holding of two relatively short meetings. These were duly and properly announced and the reason for the holding of the meetings was that the employer was to blame because it did not satisfy the union and hence forced the calling of said meetings.
The BSTU certainly sees legal implications re the actions of the ministry in this regard. The BSTU earlier advised the BUT to file an injunction in this matter. That apart, the BSTU must continue to question why would an employer, already in a position of disfavour, seek to start a battle of this sort which will merely inflame unfortunate circumstances even more?
Why too did the ministry seek to do this in a secretive manner by not copying its letter to the secretary-treasurers of the teachers’ unions?
Such actions display nothing but bad faith. Why the repeated displays of disdain, disrespect and disregard for the people performing one of the most important functions in this society?
This whole incident, yet again, underscores the disconnect evident among certain senior officers in the Ministry of Education from the realities and needs of our educational system. It emphasizes their lack of appreciation for the effort and the tremendous goodwill from teachers that go daily into the work of the school, while concomitantly deepening the chasms and eroding that same goodwill necessary for the type of relationships essential to the encouragement of deeper collaboration, consultation and cooperation between the ministry, the teachers and their agents, the teachers’ unions.
A final word of caution to the Ministry of Education. Money can buy none of that goodwill or effort, but if a cent of one of our members is touched in such circumstances,
then the BSTU will be, once again, forced to do what it has to do to protect the rights and interests of its membership.