Back to the subject of the interpretation of the Industrial Relations Act for stakeholders: while I wait in anticipation for someone else to ask for an interpretation variation of some of the ambiguous sections of the act, let me bring attention to two of the words that are vital in addressing grievances in the workplace, but which curiously, like the interpretation of the word “manager,” do not actually appear in the act itself. Practitioners are just expected to know about them, like you are expected to know which side of the street is left and which is on the right, even if there are no signs to tell you which is which.
These have to do with the nature of the disputes that arise at work and how they are dealt with.
There are two kinds of disputes which arise out of the interpretation of common law, namely “disputes of right” and “disputes of interest.” The distinction between the two and particularly between how they can be dealt with, and the historical background from which they arose rests on the maxim that there must be a difference in handling disputes based on the distinction between the two.
Disputes of right arise when a person is denied something they have been given as a right arising out of the law, out of their employment, or out of their membership in a recognised trade union that has negotiated a benefit in their behalf and which is recorded in a collective agreement during its currency and which in turn has been registered in the Industrial Court.
It is important to understand that once a collective agreement has been registered in the Industrial Court, it has the force of law. This is not so in Barbados, or in the same way in England or Wales, but it is in TT, and arose out of the refusal of colonial employers to give their employees the benefits they had agreed to, such as payment during illness (the correct interpretation of the term “sick leave”) or payment during absence during bereavement to provide a civilised burial for family members or co-workers who had perished in tragic accidents or criminal violence.
I recall an instance before this became law in TT when a manager refused a man time off to attend his wife’s funeral, demanding that he delay it for two days because the manager had a project to complete. Managers can be unreasonable.
There are consequences when the right to take such leave has been denied, even after it has been recorded in writing in a collective agreement, although this is, admittedly, rare.
What people forget is that when one manager refuses to pay a worker who legitimately cannot work and earn a living for his (and just as often, her) family, in a small community such as ours it becomes known rapidly in the community, and those working for other companies become determined that they are not going to allow the inhumanity of that to happen in their company.
And industrial unrest ensues, anger against what is rightly perceived as injustice erupts and violence ensues which may be remembered and resented for decades, not just against that manager, but against managers as a class. The memory can be passed on for generations.
The Industrial Relations Act recognises this, and to keep the society together and stable, has provided a procedure in matters of right whereby such disputes will be settled by members of the Industrial Court, which can order a company to provide compensation or specific performance or any other reward it considers appropriate in the circumstances.
And its judgment cannot be challenged in any other court or tribunal in the world. Not the Appeal Court or the Caribbean Court of Appeal or the Privy Council. If it was obtained by fraud, it may have to be re-tried by the Industrial Court, but will not be overturned on those rounds alone.
But the law does not allow strikes in disputes over matters of right. That is what the Industrial Court, probably the most powerful court in the country, is for.
The other category of dispute is a dispute over interests, and that is not a dispute over what is yours by right. It is a dispute over what you are interested in getting. Strikes are perfectly lawful over interest disputes once the correct procedures (negotiating, reporting to the Ministry of Labour , giving strike notice to the other party etc….) are followed.
Many years ago, I was a member of the tripartite group that drew up the Industrial Relations Act, and, being new to the discipline, I could not understand why the trade unions were willing to make strikes illegal for matters of right but legal for matters of interest.
So I asked Nathaniel Crichlow, the president of the National Union of Government and Federated Workers, what the thinking was behind that decision. Why not just demand the right to strike for everything?
A true professional, he very patiently explained to me that just as managers could be unreasonable at times, workers could as well. If one worker was fired from his job wrongfully, perhaps because he took the day off but his supervisor said he was falsely claiming to be sick when he was seen at the beach with a woman not his wife, for example, if he were a popular guy, the others would come out on strike to support him.
But if he was not a popular guy, they simply would not.
Do not forget, no employer is required to pay any worker for time not spent at work as a result of going on strike, even if it is a legal strike (Section 63(2)).
The movement knew its people and said it would rather the members of the court made the decision on objectivity and principle. He noted that court decisions must be made on the basis of fairness, not emotion. I learned a lot from Nathaniel Crichlow.