The System of Dispute Resolutions in Barbados’ Industrial Relations
A system of conflict resolution in Industrial Relations (IR) is but a sub-system of the total IR system. As such, and perhaps particularly so in Barbados, the system of conflict resolution is best understood in the context of the total IR system. Barbados’ IR system it self, is generally best understood in the context of an appreciation for the historical developments that gave rise to the customs and practice, the law, or absence of law relating to the essential elements of the system. These elements include the:
organisation of trade unions,
right to freedom of Association,
freedom to bargain collectively,
processes of trade union recognition, and
freedom to engage in peaceful picketing.
Calling to mind the assertion that major developments in industrial relations occur at times of economic and social conflict, it is worthy of note that 100 years after the emancipation of slavery, the Barbadian society of the late 1930’s retained the characteristic features of Caribbean plantation society. Both control of economic and state power rested with the planter/merchant class. Deplorable living and working conditions, low wages and high unemployment, characterised social conditions.
In that period, throughout the Caribbean, there were civil expressions of discontent that gave rise to the establishment of Royal Commissions of Enquiry into social conditions in the West Indies. The recommendations of these Commissions have shaped the framework for the voluntarist IR that is practised in Barbados to this day.
Another critical moment in the IR system of Barbados was the economic crisis of the early 1990’s that gave rise to an institutionalised system of social dialogue and national Protocols that establish the macro policy frame work in which industrial relations function. There can be distinguished then, two periods in the modern industrial relations of Barbados.
From the early 1990s to the current time voluntarism is practised in the context of concertation and social compact.
The latter in it self contributes to the processes of dispute resolution, to the extent that it effectively serves to contain the range and breadth of issues up for negotiation and dispute in the processes of collective bargaining:
Modern Industrial Relations
Two principal pieces of legislation emerging out of the social unrest of the late 1930s, were the Trade Union Act and the Labour Department Act. Up to that time trade unions were regarded at common law as unlawful combinations. Any actions taken by trade unions in restraint of trade, would have been subject to civil and criminal liability. The Trade Union Act relieved trade unions from the likelihood of civil and criminal action, it allowed for their registration as legal entities and provided for the right to peacefully obtain or communicate information or peacefully to persuade any person to work or to abstain from working where this is done in contemplation or furtherance of a trade dispute.
It had been the dominant position in Britain at that time, and up to the mid 1970s, that reliance on the industrial and political power dynamic, rather than reliance on the law in securing trade union recognition and in the enforcement of collective bargaining, was the preferred approach. Trade unions found contact with judicial institutions to be difficult, expensive and usually disadvantageous to them. Trade unions and employers tended to be comfortable with the “abstentionist” legal approach to work regulation. With “abstentionism” trade unions are provided with statutory immunities from common law civil and criminal liabilities, thus freeing them to engage industrial power in pursuit of their objectives.
Barbados’ industrial relations system adopted that approach. With that approach, legal enactment is accorded a necessary but secondary role. The alternative would have been an “interventionist” approach involving the enactment of a more comprehensive labour code with positive legal rights and obligations.
In Barbados legal regulation covers a number of issues in labour administration: Minimum wage for shop assistants, occupational safety and health, Public Holidays, Annual Holiday with Pay, Maternity Leave, minimum age in employment, provisions with regard to working at night in industrial undertakings and Protection of Wages are prominent among these.
Despite these, legal regulation in Barbados seek merely to provide certain minimum social conditions in employment and to protect vulnerable segments of the working population that may find trade union organisation and so collective bargaining virtually impossible.
In the system free collective bargaining has remained the primary method of job regulation. The central authority’s role in the system of collective bargaining and dispute settlement up to the early 1990’s and continuing through to the present time, has been through the Labour Department. The Department has responsibility for the administration and enforcement of such labour legislation as exists. It is mandated to provide advisory and conciliation services – to “receive and investigate all representations of employers and employees concerning any business trade or occupation with a view to the settlement of dispute and grievances and to conciliation”.
Over the years the Labour Department has played a role as auxiliary to the process of voluntarist industrial relations: The workers and their organisations inter-acting with the employers and their organisations, are free to determine the terms and conditions of their relationship with state intervention kept to the minimum. Contracts formed are binding in honour only. They are not enforceable by law. There are no legally defined processes and procedures or issues for negotiation. The resulting collective agreement tend to cover four main areas: wages, hours and standard of work, contract implementation procedures and a grievance and disciplinary procedure.
By custom and practice conciliation is stipulated in the agreement as the method to be used for the resolution of dispute. The agreed process does not negate the use of collective power and the threat of strike to help in facilitating a settlement. There tend however to be unwritten rules governing the process of official strike action. These should generally apply regardless of the type of dispute, be it interest or rights. The conciliation process is applied to disputes involving private sector organisations or para-state entities. Disputes involving the Civil Service/Central Government remain outside the purview of the Chief Labour Officer.
The Conciliation Process
The conciliation process in Barbados is applied at two levels; the individual and the collective. Through custom and practice, the conciliation machinery is put in motion at the collective level by way of an invitation from either party involved, to the Chief Labour Officer to conciliate in a dispute. the process is as follows:
The matter is addressed first at the level of the enterprise. If a matter is not resolved at that level between the shop steward and management, the worker makes a complaint to his union official. The union official then meets management at the bipartite level to discuss the issue;
Failure to reach a resolution, the matter is referred to the employers’ organisation to be resolved between the union and the Barbados Employers’ Confederation; (where a company is not a member of the BEC, this step will be omitted).
Where there is failure at that level, a formal request is made to the Chief Labour Officer inviting him to conciliate in the dispute.
Parties have not been known to refuse an offer of conciliation, even where there is no subsisting agreement.
On receipt of this request, the Chief Labour Officer contacts both parties and arranges meetings for the conciliation process to begin.
The existing practices allow for the settlement of disputes at the level of the Minister of Labour or the Prime Minister in the event that the matter is not resolved after the intervention of the Chief Labour Officer. The intervention of the Minister is rare however, and limited to disputes which are perceived to be having or likely to have an adverse economic and social impact on the country.
The process of conciliation is one whereby a third-party with the consent of disputing parties, brings them together in order to assists them to solve their differences voluntarily. The ultimate goal is to assist the parties to arrive at their own agreement. The conciliators’ primary role is to keep the parties together, reduce inflammatory rhetoric and tension, open channels of communication and facilitate continued negotiations. Ideally parties should emerge from the process feeling satisfied that their needs and interests have been taken into account, that they have achieved the best possible outcome, and that they are ready to re-enter the process the next time a problem comes up.
Among the advantages of the process are that the proceedings are off the record and therefore, none of the parties will seek to use anything that is said in the conciliation in any future proceedings. This also means that the parties may revert back to their original positions if the process fails.
Trade Union Recognition
Barbados has ratified ILO Convention 87, Concerning Freedom of Association and Protection of the Right to Organise. A trade union in seeking to give effect to these rights, acts in accordance with custom and practice: Being satisfied it has organised a majority of the workers within an organisation, the union approaches the organisation in writing, seeking recognition as the accredited bargaining agent for the workers in the unit/s identified.
Where a dispute arises, the Chief Labour Officer is invited to assist the parties. The Labour Department conducts a survey to verify the validity of the union’s claim. The findings are reported to the parties. The employer usually grants recognition where the Chief Labour Officer confirms that the union’s membership from the unit/s identified, represents 50% + 1.
While 50% + 1 is the deciding factor where a survey is conducted, there is nothing to prevent recognition with fewer members. This depends on the willingness of the employer to treat with the union. Further, once the Union has been recognised, there is no process for de-recognition.
Unions are free to demand recognition where there is not the 50% + 1 majority membership. The conciliation process may be engaged. In that event, the dynamic of power may be decisive. As examples, two cases may be examined:
In 1997, in a matter of recognition between the Barbados Workers’ Union and Royal Westmoreland Ltd, the company denied the union recognition on the grounds that the union did not have the majority membership. The matter of recognition was resolved through the intervention of a private citizen, after nine days of union action. Neither party had called on the Chief Labour Officer to offer conciliation. The company agreed to reinstate terminated workers and to recognise the Union as the bargaining agent for the workers.
In the case of Offshore Keyboarding, the company refused to recognise the Barbados Workers’ Union. They challenged the survey method that has been entrenched as custom and practice in Barbados. The company wanted the use of a secret ballot. All elements of the Social Partners in Barbados affirmed the custom and practice as exists and admonished the company to comply. The company refused and eventually withdrew from Barbados.
Any system of dispute resolution in industrial relations is perhaps best understood with an understanding of the entire system of industrial relations. In Barbados, industrial relations have been characterised by abstentionist legal policies that provide certain immunities to trade unions thus freeing them to manipulate the power dynamic in establishing job regulation.
The Labour Department is in place to serve an auxiliary role in facilitating and assisting parties in narrowing the differences between them to a point where they meet agreement. This is a free and voluntary process. Indeed there are occasions where the parties have used other mechanisms in seeking dispute resolution. There has been much debate about the system’s ability to meet current challenges. However, it cannot be said that laissez-faire Industrial Relations before the early 1990s and concertation in industrial relations since that period; both practiced in the context of an abstentionist legal framework have served Barbados badly.
Long before this quote attributed to the Office of Legal Policy of the United States Department of Justice was made (in 1984), Barbados in the area of its industrial relations had recognised and continues to recognise that:
“Society cannot and should not rely exclusively on the Courts for the resolution of disputes; other mechanisms may be superior in a variety of controversies. They may be less expensive, faster, less intimidating, more sensitive to the disputants’ concerns and more responsive to underlying problems. They may dispense better justice, result in less alienation, produce a feeling that a dispute was actually heard, and fulfil a need to retain control by not handing the dispute over to Lawyers, Judges and the intricacies of the legal system”.