MUSINGS: Current issues in local employment relations I

THE Barbadian employee, and, in some cases, his or her representative union, might agree with the second part of the opening couplet of Charles Dickens’ ‘A Tale of Two Cities’, that these are indeed “the worst of times”, or, if they are not, they do come pretty close.

Last week, we heard from no less a personality than the Honourable Labour Minister, that some local employers are ignoring the applicable labour laws, especially those pertaining to the rights of the employee under the relatively recently enacted Employment Rights Act and, perhaps more chilling, some of the provisions under the Safety And Health at Work Act.  

And that is not all. On the collective front, the Barbados Union of Teachers is clearly in a quandary, as to the appropriate strategy to be employed in order to establish its claim for some of its members to be reimbursed those wages that were abated by the employer, the Ministry of Education, earlier this year, in response to the absence of those teachers from their duties while engaging in union activity.

Having persuaded itself that it had the law on its side, since it was not at the time engaging in industrial action, the BUT has, seemingly, now been disabused of that idea, and has chosen rather to resort to the tried and tested method, enabled by its freedom of association, of industrial action, so as to press its suit. I suppose that this initiative is consonant with the famous advice once given to lawyers by Carl Sandburg, a US poet and prize-winning editor, to the following effect: “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.”

The union’s chosen recourse in this instance is clear.

The Barbados Workers Union, on the other hand, has publicly avowed its displeasure with the use by some local employers of fixed term contracts, so as to avoid their statutory obligations to those employees who might otherwise acquire certain rights by a period of continuous service. Of course, there is nothing inherently wrong with the concept of the fixed term contract, and its use may be legitimately required in those cases where the worker is merely replacing an employee who is temporarily absent from work, or where there is a temporary surge in work volume, though not expected to last beyond a foreseeable period, thus engendering a need for the non-permanent engagement of workers.

The rub comes, however, where the employee is consistently rehired on a fixed-term contract, seemingly in perpetuity, thus enabling the employer to avoid, or even evade in some cases, its statutory obligations, while the employee suffers the consequent insecurity of tenure and is unable to claim the continuity of employment necessary to become entitled to basic statutory entitlements.

It bears reminder that the International Labour Organisation frowns on this practice, and, in its Recommendation 166, it stipulates that “adequate safeguards should be provided against recourse to contracts of employment for a specified period of time, the aim of which is to avoid the protection resulting from the Termination of Employment Convention, 1982, and this Recommendation”.

One of the safeguards recommended is limiting recourse to the circumstances in which employers may utilise fixed term contracts; and that of deeming contracts for a specified period to be contracts of indefinite duration, especially when renewed on more occasions than one for other than prescribed reasons.

As I note in a piece I have prepared for future publication, Montserrat, only of the regional jurisdictions, has legislated in accordance with this provision. The point to be made here is that since the use of the fixed term contracts may be legitimate and even obligatory in some scenarios, common sense may warrant a concentration on the prevention of abuse of these contracts rather than their complete prohibition.

Again, the popularity of social media, wherein participants are not at all reluctant to share the details of their meals, their views as to the intellectual capacity or, more frequently, incapacity of  public figures, and even their fidelity to religious doctrine, was destined eventually to intersect with the workplace. It did so recently in the notorious dismissal of an employee miffed at the requirement to participate in a safety drill, and who, we suspect, would scarcely be consoled by the fact that her post quickly went viral, thereby transforming her into a poster girl for all those workers who might be afraid of sharing publicly their disaffection  with the conditions at their workplaces.

This matter cries out for the mandatory drafting of a workplace social media policy by the employer – reasonable notice of which should be provided to each employee. This would serve to clarify what does or does not constitute acceptable conduct in this context, and should provide for progressive discipline in the event of an infraction. It would also include matters such as Internet and social media access on work computers, and at work in general; restrictions as to the content of any posts by the employee  and prohibitions on the identification  of the organisation with the personal views of the worker, on socially sensitive issues such as partisan politics and religion.

Enough for one day. I propose to continue this discourse next week with an examination of the response of the local workers organisations to the official outsourcing of work traditionally performed by public employees to private contractors, and of the international labour law perspective on the reversion to his substantive post in the public service of the current president of the National Union of Public Workers.