The nation’s largest teachers trade union on Tuesday scored a significant victory in the High Court on the contentious issue of paid term’s leave, based on a change in policy made more than five years ago.
In a judgment handed down by Justice Shona Griffith, the court upheld the right of the Barbados Union of Teachers (BUT) to be properly consulted about fundamental changes to terms and conditions of members’ employment.
The court upheld the Ministry’s right to make the change but tossed out the decision because it was made unilaterally.
The BUT is now preparing to engage Minister of Education Santia Bradshaw on the matter that initially arose under the then minister Ronald Jones in the Freundel Stuart administration.
In 2016, teachers were stripped of their entitlement to leave with full pay after 15 years, and after that, once every five years until retirement. Without consulting teachers or their representatives, the Government determined that teachers would receive term’s leave only once after 15 years and again prior to retirement.
Attorneys-at-law Gregory Nicholls and Jeriah Rock, who were representing nine claimants, including BUT President Pedro Shepherd, argued the Ministry’s action was unlawful, on the ground that it was a significant change to the longstanding General Orders of the Civil Service that are now set out in Section 33 of the Public Service Act.
As they asked the High Court for judicial review of the Ministry’s decision, counsel for the educators and their representatives argued that their clients had a legitimate expectation of consultation with their employer regarding fundamental changes to the terms of their employment.
In an extensive judgment, Justice Griffith ruled in favour of the Ministry of Education’s right to make the change without a statutory instrument, as the General Order in question was based on an administrative policy as opposed to an Act of Parliament.
But she declared that the manner in which the changes were made was unlawful and that the Ministry had a duty to consult with teachers before making the fundamental change.
Many educators are said to be still unclear about the details of the ‘term’s leave’ policy, and the courts declared that an identifiable criteria ought to be established for the acceptance or refusal of term’s leave.
“It is a significant decision to the extent that it clarifies what the General Orders are in relation to the setting of terms and conditions for public officers in Barbados and it also affirms that the Government cannot unilaterally alter the terms and conditions of public officers, particularly teachers, without any consultation,” Nicholls told Barbados TODAY moments after the judgment was read.
“[Teachers] learnt about this change of policy after the Government had implemented it, so the court is now affirming that they have the right to be consulted, they have the right to know what the policy is and they have a right to know what considerations are taken into account when granting or refusing applications made by teachers, so that the Barbados Union of Teachers has prevailed in a large extent in securing the right to be consulted on matters that are important, such as the change in terms and conditions teachers.”
The teachers also challenged the abatement of their salaries for attending trade union meetings, but this was conceded by the Government more than a year ago and some affected teachers are said to have been reimbursed already.
The issues all arose under the Stuart administration of 2013 to 2018 when veteran educator Jones was Minister of Education.
When contacted later in the afternoon, Shepherd said the BUT was “somewhat satisfied” with the judgment and would be seeking the court-mandated consultation on term’s leave in short order.
“Of course we did not win outright, because we did not get the full reinstatement of the leave after 15 years and every five, and we are quite aware now that the Ministry has to engage us in consultation on the matter, so we will write the Ministry on the matter so that we can have consultation and arrive at some decent conclusion going forward,” Shepherd told Barbados TODAY.
“But we are aware now, more so than before, about the legality of the General Orders in relation to the Constitution and so on. So, from our end, whilst we did not get what we wanted outright, we are still comfortable with the decision and we will confer with our attorney should there be any areas that we can seek further guidance or clarity on.”
(kareemsmith@barbadostoday.bb)
