#BTColumn – A just society, says the Charter

Disclaimer: The views and opinions expressed by the author(s) do not represent the official position of Barbados TODAY.

by Steve Prescott

Having considered the background I must stand with all those who support the nurses and offer my two cents. There’s a legal and a moral dimension to all this.

It’s not in dispute that any employee who experiences poor working conditions and no pay has a legitimate right to raise those concerns before a competent employer. A look back in history will put this strike into context. It spans several years during which the nursing profession has been raising grievances about pay and working conditions.

As far as I can tell these grievances are not vexatious, frivolous or manifestly unfounded. Mr Bostic appears to believe they are legitimate. But what is an employee to do if those grievances go unresolved over any length of time? Any right-thinking employer would know, there will appear a bright line in the sand – the point at which employees say ‘thus far and no more’. In legal parlance it would be cited as the straw that breaks the camel’s back.

The point of a grievance process is to act on and resolve the issues it raises in a timely manner.
Hence, I come to this “crisis” with some expertise in labour law. Well drafted employment law should create balance in the relationship between employer and employee.

Any detrimental action against an employee must be considered objectively against the back drop of reasonableness.

It is trite to say that an employee’s right to strike is a lawful and essential part of developing an organisation’s mind around the concepts of justice and fairness.

I take my starting point at s2 & s40A of the Trade Unions Act 1964. Since this is available to be read, I paraphrase it: Section2, “For the purposes of this Act, the expression “employer” means “the Crown”, with respect to any person employed in a civil capacity thereunder.

The title to section 40A; Adversely affecting employee or employer on account of trade union activities. s40A.

An employer who – (a) adversely affects the employment or alters the position of a workman to his prejudice because that workman – ss(ii) being a member of a trade union, which is seeking better labour conditions, is dissatisfied with his conditions; is guilty of an offence”.

It’s clear their complaints have gone unresolved over several years. The extent to which this inaction has adversely affected the nurse’s employment is a question of fact and degree.

Assuming resolution of the grievances in favour of the nurses is objectively necessary, then failure to resolve them has prejudiced the nurses to the extent that it hastens strike action – which then causes the PM to adopt a legal footing.

Is it reasonable to reduce the pay of a worker who does not turn up to work? Objectively? Yes. The bargain struck between employer and employee must be a fair bargain.

I doubt any employer anywhere in the world would pay a person to deliberately not turn up for work. But, that’s only one side of the employment coin.

A fair question to ask is; is it reasonable or even lawful for employees to suffer hazardous working conditions that may adversely affect their safety and health? Is it reasonable or even lawful to pay employees sporadically? Objectively, the answer must be no.

Part of the problem here is, this legislation is at odds with the Public Service Act 2007 – the section the government relies on, s20. This presents a conundrum that needs to be resolved in the courts – since withholding pay adversely affects employees.

Moreover, if the reports about freezing bank accounts are true then, ladies and gentlemen of the Republic of Barbados, you don’t need me to tell you that is an absolute violation of the Constitution, and action within the gift only of lawful authority in pursuit of the proceeds of a crime.

The action taken by the Government toward nurses appears high-handed and politically charged. Why? Because there is still the moral dimension in which it’s worth asking the question; within a landscape which shows some years of under pay, sometimes no or late pay, poor working conditions, long hours, increased risk to personal health, and no sign from any

Government of positive action to remedy these matters, is it reasonable to dock their pay and freeze bank accounts? Now that things have got this far, it seems somewhat churlish that opponents of the strike besmirch the nurse’s professional integrity for the position they take.

The Government appears to have made its moral responsibility toward its employees subservient to the moral responsibility of nurses toward their patients and thereby make State action far less unconscionable; this is wholly unjust and manifestly unfair.

To be clear, striking nurses do not, by their strike action, say, imply or infer that they care less about their patients or the State. That is a step too far.

No one asked for this pandemic and nurses have been on the front line fighting it for months – in less than favourable working conditions. Had their grievances been properly resolved, pre-pandemic, perhaps this action would never have arisen. Contractual performance cuts both ways. But for any Government’s inactivity to remedy the nurse’s grievances, this action would not have happened.

It is neither just nor fair to hold nurses over the moral ‘barrel’ whilst deliberately, or otherwise, failing to act upon their own legal and moral obligations.
Correct me if I’m wrong.

Steve Prescott LLB (Hons) is an Employment Law Consultant & Advocate steve@lr-and-p.com