When a march is a strike
On Wednesday, the Barbados Secondary Teachers’ Union (BSTU) held a March for Respect. The members of the BSTU are teachers. The march was scheduled during the school term and during school working hours.
The General Secretary of the Barbados Workers Union, Toni Moore, stated that “…this is not a strike. If this was a strike, then we would want to make sure that we choose a date and time that aligns with a strike. The action here today is action that is telling people to take note.”
Black’s Law Dictionary, 7th Edition defines “strike” as “an organised cessation or slowdown of work by employees to compel the employer to meet the employees’ demands.” It has been reported in all areas of the press, both paraphrased and in direct quotations, that BSTU President, Mary Redman, outlined teachers’ demands for payment for marking School Based Assessments (SBAs), dialogue with the Ministry of Education on violence in schools and a whole laundry list of other things.
Enter the Ministry of Education with a memo requesting the names of those absent as a result of industrial action so that their salaries may be appropriately docked. The General Orders for the Public Service (of which teachers form a part), under the rubric Conduct of Officers and Employees, states that:
“3.2 An officer or employee may not absent himself from duty during work hours without the permission of the Head of Department in which he works or such other officer as may be deputed by him.”
3.3.1 An officer or employee who absents himself from duty without permission, except in the case of illness or other unavoidable circumstances, shall render himself liable to disciplinary action.
3.3.2 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.
3.29 The salaries and wages of officers and employees who go on strike will not be paid for any day or portion of a day during which they are on strike. Thus, if an officer or employee merely reports for work on any day of a strike but does not work for the day, he will not receive pay in respect of that day; if he works only for a part of any day of a strike, he will not be paid for that period of the day during which his services are withheld.
3.30 . . . However, salaries and wages may be paid to persons who are absent on grounds of illness or maternity leave where the entire period of absence is supported by a satisfactory medical certificate.”
Here are a few questions. Was this march a protest action? According to the BSTU President, yes it was. Was it organised? According to the BSTU President, it was and was inclusive of speeches by other union leaders, placards and all the other hallmarks of a strike. Permission would also have been sought under section 9 of the Public Order Act, Cap. 168 from the Commissioner of Police well in advance of the day’s proceedings. Organising, leading or participating in such a march or picketing in the absence of the permission of the Commissioner is a criminal offence.
Are these people employees? Presumably they were members of the BSTU and therefore teachers in the public service. Did work cease or slowdown? If you are in Bridgetown protesting and absent from the school to which you are assigned, then you cannot be doing your contractually obligated work. So yes, their work ceased. Are they trying to compel their employer, the Ministry of Education, to do something? As outlined earlier, yes.
If all the answers are in the affirmative, then the BWU General Secretary is airing a lot of nonsense talk. This is a strike, however you look at it, and the Ministry is well within its rights as an employer to abate their salaries as any private employer would also be entitled to do. Even the International Labour Organization (ILO), a United Nations agency which establishes and oversees international labour standards, has set out a number of principles guiding the right of workers to strike which indicate that legal provisions regarding wage deductions for days of strike give rise to no objection.
The right to freedom of assembly and association guaranteed by section 21 of the Constitution is the bedrock on which trade unionism is founded and can be a serious tool to agitate for workers’ legitimate rights. Union leaders should really avoid undermining it by uttering inanities.
(Alicia Archer is an attorney-at-law in private practice)