Editorial: On ‘docking’ teachers’ pay
On a second occasion in fewer than perhaps six months, we are driven to comment on the legal entitlement of the Ministry of Education to dock the pay of teachers who choose to participate in union activity during working hours without the consent of the Ministry or its delegate. As if it had learned nothing from the failure, to date, of its sister union, the Barbados Union of Teachers [BUT], to persuade the Ministry of the unlawfulness of its identical action with regard to its own members, the Barbados Secondary Teachers Union [BSTU] chose to have its members engage in an identical form of conduct in the form of a “March for Respect”, and now finds itself in the identical circumstance of having to confront the legality of the Ministry’s threatened action and its accordance with the principles of good industrial relations practice. The plain truth is that the law is quite clear and that it does not favour the position of either union.
The contract of employment between the worker and the employer contemplates the payment of a wage to the worker in return for the worker’s willingness and readiness to work. If the worker is not so willing and ready to carry out the assigned tasks, then the employer is under no obligation to pay wages to him or her. There exists a quaint, though mistaken, belief that such a situation obtains on the occasion of a strike or other industrial action only, but although this may provide the most frequent and clearest evidence of unwillingness and lack of readiness to work, it is not a necessary precondition to the employer’s right to abate the wages of the employee. As the dicta from one leading case make clear –
“If an employee offers partial performance, as he does in some types of industrial conflict falling short of a strike, the employer has a choice. He may decline to accept the partial performance that is offered, in which case the employee is entitled to no remuneration for his unwanted services, even if they are performed…” [Emphasis added]
Nor is the argument that docking the salary of the worker by an employer amounts to an unconstitutional deprivation of their property since it is accepted that the wages do not become the property of the worker until they are lawfully earned. The further suggestion by the BSTU that the reason for its action in the form of the organised march of its members should be examined for rationality before any docking of wages takes place is an argument that may find comfort in the arena of industrial relations, but not in a court of law that has already eschewed jurisdiction over such matters:
“The courts are not competent to determine and are not concerned to determine whether a strike or other form of industrial action is justified or malicious, wise or foolish, provoked or exploited, beneficial or damaging; history has proved that any such determination is speculative and liable to be unsound...”
We are not even inclined to think that the argument based on the principles of good industrial relations practice is a surety for the union. The tenets of international labour law that provide best evidence of these provide that salary deductions for days of strike action give rise to no objection on freedom of association principles, although they also counsel that such deductions should not be higher than the amount corresponding to the period of the strike. If this ultimate form of industrial action should merit no higher claim to protection of wages, then it is highly unlikely that the refusal to perform one’s side of the work bargain would deserve greater consideration.