Judge rules legislation restricts freedom of association enshrined in Constitution

The right of prison officers to join trade unions in Barbados has been restored following a landmark High Court ruling that erased legislative amendments made 40 years ago.

Justice Cecil McCarthy, in a written judgement released on Friday, struck down as “unconstitutional” Sections 23 and 24 of the Prison Amendment Act of 1982.

He found that the “substantial intent” of the amendment act was to significantly restrict prison officers’ freedom of association enshrined in Section 21(1) of the Constitution.

The controversial legislation enacted under the former Prime Minister Tom Adams made it unlawful for prison officers to join, associate with or benefit financially from trade unions. It also prevented the Prison Officers’ Association from representing prison officers on matters relating to their conditions of service or their ability to bargain collectively.

“Since I have found the restrictive provisions to be unconstitutional I have concluded that on a ‘fair view of the whole matter’ that the legislature would be disinclined to enact what has survived,” said Justice McCarthy.

“I therefore hold that the invalid provisions of the Act are inserverable and I declare that the entire amendment act is unconstitutional, null and void,” he concluded in a judgment that has rendered the Prison Officers’ Association defunct.

The claimants in the matter, prison officers Paul Outram, Dave Best and former president of the Prison Officers’ Association Trevor Browne were represented by Attorney-at-Law Gregory Nicholls in the matter. The Attorney General, the defendant in the matter, was ordered to cover costs for the plaintiffs.

Browne in particular has faced tremendous scrutiny during his tenure, including a charge of inciting mutiny and sedition from which he was later acquitted.

General Secretary of the Unity Workers’ Union Caswell Franklyn has been defending the prison officers’ cause for decades. In recent years, the veteran trade unionist served as a consultant to the Prison Officers’ Association given that ordinary union membership had been forbidden by law.

Franklyn said prison officers are already reaching out to join his trade union, but he stressed that they are under no pressure to do so.

“That is their choice. I have opened the way for them and opened their eyes to see that they have those rights. If they choose to go elsewhere, that is a concern for them, but it was Caswell Franklyn and no one else who pushed this matter,” Franklyn told Barbados TODAY.

“I have been representing them for years as a consultant because that is the only way that I could have done it and if they come to me, I will continue to represent them. If they don’t, well, good for them.

“I can assure you some have already approached me and said that they are willing as soon as the decision is written,” he added.

Franklyn said over a decade ago, he had engaged former Prime Minister Freundel Stuart, who was the Attorney General at the time, to discuss amendments to the controversial act. However, when Stuart was appointed Prime Minister in October 2010, the matter was apparently not been taken up by his successor.

As a result, the union leader approached a lawyer, intent to have the matter fully ventilated in court.

“You cannot take away a person’s constitutional right by ordinary legislation. You have to amend the constitution. The prison officers were already members of the NUPW when that Act was passed in 1982 to stop them from associating and all back then I was saying it was wrong but it was only when I became a consultant to the prison officers that I started pushing it,” said Franklyn.

“Prison officers enjoyed trade union rights prior to 1982 and when they amended the Prison Act to provide for the Prison Officers’ Association that association just took away every right that they had. They couldn’t even bargain for their own salaries, they couldn’t use the association for disciplinary matters or anything. It was just like a key club,” the union leader added.

Under the previous legislation, prison officers could be fined or lose their pensions and gratuities if they even signed onto the medical insurance plan of the NUPW. According to Franklyn, the law imposed restrictions akin to a form of modern-day slavery.

The UWU General Secretary lamented that members of the Barbados Police Service and the Barbados Fire Service are bound by similar provisions.

However, their prohibition from trade union membership was enacted prior to independence and is protected through a mechanism in the constitution called the Savings Law Clause.

“This has only unlocked the door for prison officers, the police and the fire service. The legislation that governs them, is pre 1966. That legislation is saved, even though it would be unconstitutional to pass now. People enjoy that kind of power, but I don’t see why police and fire officers don’t have similar rights,” said Franklyn. kareemsmith@barbadostoday.bb