The term “collective bargaining” is one that may be well known to the general public; however it is questionable how many persons understand what is its meaning and purpose.
Notwithstanding this, it would seem that collective bargaining has long been accepted throughout the Caribbean region as a mechanism used by employers and trade unions, in which they negotiate to arrive at a collective bargaining agreement.
From time to time there have been cries of “foul” by trade unions, as they questioned the commitment on the part of some employers to the process.
Trade unions have also laid claims of unacceptable behaviour by employers, who sometimes attempt to negotiate through the mass media. Where this occurs, it represents a sign of irresponsibility, and also disrespect for an established process. Those who are eternal optimists would expect to see such callous behaviour becoming a thing of the past.
For the collective bargaining process to be meaningfully engaged, it requires an acceptance and respecting of the principles that negotiations should be free and voluntary, that the employees have a right to freedom of association, and that negotiations are conducted in good faith. With respect to the latter, it requires that honest attempts are directed at resolving the problem or issue at hand.
For this to happen, it is important that the emphasis is placed on finding the best possible solution, and not on immediately finding a compromise. It is important to stress that successful negotiations can be achieved where a sense of goodwill and cooperation prevails. Any departure from this can potentially lead to industrial conflict.
This underlines the importance of subscribing to the principle of good faith. In the absence of good faith it is more than unlikely that effective collective bargaining can or will not take place. Inasmuch that good faith cannot be imposed by law, it is left for the parties to voluntary engage in the collective bargaining exercise.
The ILO Committee of Experts has advanced the position that to negotiate in good faith means that there is a recognition of the trade union organization as the workers’ representative, that every effort is made to reach an agreement, that negotiations are genuine and constructive, there is the avoidance of unjustified delays, mutual respect is shown the parties to the agreement, and that there is compliance with the terms of the agreement that have been reached.
The expected outcomes of the collective bargaining process can best be understood and appreciated by first understanding the purpose of collective bargaining. First and foremost, it is the process that leads to employers and the workers’ representatives arriving at a collective agreement. Then what is a collective agreement?
According to the International Labour Organisation, collective agreement is defined as: “Agreements in writing regarding working conditions and terms of employment concluded between an employer, a group, of employers or one or more employers’ organisations, on the one hand, and one or more workers’ organisations, or in the absence of such organisations, the representatives of the workers duly elected and authorised by them in accordance with national laws and regulations.”
It is beyond a shadow of a doubt that the collective agreement is binding in nature. This ought not to be dismissed or taken lightly, as agreements are often supported by labour legislation, or established custom and practice within a given jurisdiction. The practice of collective bargaining is universally also supported by the ILO Convention No. 154 (1981). This convention is yet to be ratified by the Government of Barbados.
In Barbados as it is elsewhere, some employers choose not to recognise a trade union as the representative of its employees. Where there is no collective bargaining unit in a workplace, this opens the door for employers to exploit this loop hole, as the employees are deemed not to be unionised.
Employers should take cognisance of the fact that the ILO Committee on Freedom of Association has pronounced that “in an instance where a direct settlement is signed between an employer and a group on non-unionised employees, even when a trade union is involved in the undertaking, this does not promote collective bargaining as set out in Article 4 of Convention number 98”.
* Dennis de Peiza is a Labour Management Consultant with Regional Management Services Inc.
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