The rule of law
published: Sunday | February 12, 2006

Orville W. Taylor

ROME BURNED as Nero fiddled away! However, I am avoiding the temptation to draw a comparison between the drama with the fabled Roman Emperor and the present situation in Spanish Town because there is another 'burning' issue.

There are very few things towards which I am biased. One of them is workers' rights. I strongly believe in the inviolable rights of workers to protection from arbitrary dismissal, victimisation, and any attempt to prevent them from exercising their right of freedom of association, especially as regards participating in the activities of trade unions.

As trade unionists engage in their diatribe and demagoguery from time to time, they pursue activities, which most often is in the interest of workers but occasionally not. While many trade unionists will not admit it, the interests of the workers are occasionally not those of the unions even when they purport to act on workers' behalf.

'NO RIGHT TO STRIKE'

Recently, I interviewed a trade unionist on air, who with his characteristic arrogance and feeble attempt at condescension, purported to 'teach me' about a subject that we have both studied for more than 20 years. I would have dismissed it as tomfoolery and stage riding since like politicians, (and indeed many of them are) they are inclined to grandstanding.

However, when they disrespect the very system that has given them legal recognition and the capacity to have their workers' rights enforced, I have to expose the hypocrisy.

Workers have no 'right to strike'. In the Commonwealth Caribbean they have a 'freedom to strike.' Simply put, if they take industrial action they are not 'normally' liable to penalties from the state. However, if the employer wishes to dismiss the strikers or engage other workers as locum tenens to break the strike, s/he is legally free to do so.

Still, there are circumstances when workers have no freedom to strike and become liable to penalties under the Labour Relations and Industrial Disputes Act (LRIDA).

First, if workers are employed in the essential services as defined by the act they can only take strike action if a dispute was reported and the Ministry of Labour failed to act within 10 days. To the best of my knowledge this has never occurred. Therefore, all incidents of industrial action in the essential services since 1975 have been unlawful. Thus, the workers can be dismissed as in all other cases and be fined by a Resident Magistrate.

This occurred in the recent cases involving junior doctors and medical technologists. In others such as the JPS workers and firemen in 1985 and the hapless UAWU-represented correctional officers in 2000, they were dismissed. Though repugnant, the employers had a legal right to do so.

Anyway, in the non-essential services, there is normally no restriction on the freedom to strike although the employer can still dismiss the workers for breaching their contracts.

Nonetheless, if a dispute is referred to the Industrial Disputes Tribunal (IDT) and it makes an order that industrial action cease or not take place, any worker or employer who disobeys it is guilty of unlawful industrial action as in the above cases.

However, trade unionists are not parties to contracts of employment and cannot be dismissed by the employer. Similarly, since they do not themselves take industrial action, they are not liable to penalties because they have done nothing. Yet, they sometimes lead workers in the wilderness and allow them to be dismissed because they pushed too far.

As super mediator Tony Irons often said in his monotone, "Know when to hold and when to fold."

In the recent Alpart strike, which is now happily resolved, workers went on strike after a 72-hour notice despite not referring the matter to the Ministry of Labour for settlement. The IDT issued a 'no-strike' order, which the union officer initially said that he was unaware of but heard about. He later admitted knowledge but was unmoved because he would have disobeyed it regardless. Needless to say, the workers under his leadership (unless of course he is following them because he is their leader), remained on strike and received a settlement for which the union officer stroked his ego with narcissistic ecstasy akin to that seen on a prohibited channel.

FULL OF NATURAL BOVINE NITRATES

I listened as he boasted that defying the IDT was best for the workers and ultimately best for the nation. Wow! We have another addition to Black Heroes Week! Not only is the statement presumptuous but it is so full of natural bovine nitrates that one has to tread carefully.

One needs to remember that the IDT is the only 'court' in the country that can reinstate dismissed workers and in the present scenario, only union members. Thus, it is the one recourse that workers have when they are dismissed unfairly by unscrupulous employers. Furthermore, it is democratically constituted with nominees from unions, employers and government. Ironically, the IDT has reinstated workers who were dismissed while on strike.

Therefore, it is my unrepentant view that it is hypocritical and dangerous to 'dis' the IDT and then expect it to protect one's members from the indiscretions of employers later.

Anyway, I wait to see how the matter is being handled because a PNP affiliated union disrespected a PNP Minister of Labour and an IDT, brought into existence under a PNP Prime Minister who was its leader.

As we pay attention to the presidential race where executive members of the NWU support different 'Ps,' and the visually-challenged junior minister in the Labour Ministry is backing Omar, let us see if justice will be 'blind' and the Alpart case gets the same treatment as the med techs, warders and junior doctors.

Dr. Orville Taylor is senior lecturer in the Department of Sociology, Psychology and Social Work at the University of the West Indies, Mona.