EDITORIAL - Time for a statutory provision?
The matter has now been finally resolved, although the nature of its resolution is likely to create more headaches than a few for an already cash-strapped and heavily indebted Caribbean Broadcasting Corporation (CBC]). Our immediate concern precedes the outcome of this industrial dispute however, and relates to the front page story in The Barbados Advocate for last Monday, which reported the hopefulness of the Honourable Minister of Labour, Dr Esther Byer Suckoo, that the contending parties would return to the bargaining table so as to “operationalise” the agreement they had purportedly reached.
It is our view that the Barbadian society is far too sophisticated for matters such as this to result in unproductive industrial action by either of the parties, in order to press home its interpretation of what has been agreed between them. In some of our neighbouring jurisdictions, agreements reached between industrial partners are made legally enforceable with the consequence that a disinterested third party is used to resolve matters of the interpretation of the industrial agreement.
Barbados has not as yet moved on from the common law position that such bargains are not legally enforceable since the parties never intended them to be so, and that to make them enforceable requires a clear agreed expression of that intention. To our knowledge, there was a local legislative attempt to treat the collective agreement as legally enforceable some years ago, although a distinct lack of enthusiasm on the part of the most representative workers’ organisation in the private sector appeared to have stymied that effort.
Buoyed by the fact that its opinion of the agreement reached between the parties was upheld in the recent dispute with CBC, the Barbados Workers’ Union, for one, may be now unlikely to accede to any proposal for amendment of the status quo.
To our best recollection, this is not the first time that an apparent agreement has foundered on the shoals of contestation as to what precisely had been agreed, although we seem to remember that in the first iteration, the matter suffered from an absence of recording the agreement itself rather than the issue of what it meant. It is of interest that in the UK, the jurisdictional source of the common law rule applied here, the law has been changed from a regime of unenforceability to one whereby the agreement may be legally enforceable when this is stated in writing. Antigua and Barbuda, for one, has legislated similarly. According to section K29(3) of its Labour Code Act:
Where a collective agreement executed between such parties after the effective date of this Part contains a provision which (however expressed) states that all of the agreement is intended to be legally enforceable, the agreement shall be conclusively presumed to have been intended by the parties thereto to be a legally
The glitch of course is that the enforceability of the agreement is up to the further agreement of the parties so that if one of them should be reluctant, the matter will end there. And we do not know for certain whether any of the parties to the dispute last weekend would have consented to having the details of their agreement subjected to the construction placed upon it by a court or other arbitrator.
Nevertheless, permitting the parties to have the choice is, in our view, an advance on the current position and we would encourage the renewal of the state’s previous attempt to move to this regime. The withdrawal of labour or the initiation of a lockout appears to be such a wasteful and crude, albeit effective, way to settle a dispute as to what words are intended to mean.