XIII Inter-American Conference of Ministers of XIII Inter-American Conference of Ministers of Labour:Labour:

Meeting of Working Group 2: Washington Meeting of Working Group 2: Washington D.C.D.C.

13th & 14th May, 200413th & 14th May, 2004

Conciliation: Barbados’ System of Conciliation: Barbados’ System of Dispute Resolution in Industrial Dispute Resolution in Industrial

Relations Relations

By: By: Victor FelixVictor Felix Asst. Chief Labour Officer, BarbadosAsst. Chief Labour Officer, Barbados

The system of conflict resolution in any industrial The system of conflict resolution in any industrial relations (IR) system is but a sub-system of the total IR relations (IR) system is but a sub-system of the total IR system. Other important elements of an IR systems could system. Other important elements of an IR systems could be: be:

The system of trade unions organisation The system of trade unions organisation The process of trade union recognitionThe process of trade union recognition The processes of giving expression to the The processes of giving expression to the

right to: right to: - freedom of association- freedom of association- bargain collectively- bargain collectively- engage in peaceful picketing- engage in peaceful picketing

100 years after the emancipation of slavery, 100 years after the emancipation of slavery, the Barbadian society of the late 1930’s the Barbadian society of the late 1930’s retained the characteristic features of C’bean retained the characteristic features of C’bean plantation society.plantation society.

Planter/merchant class control of Planter/merchant class control of economic and state power.economic and state power.

Deplorable social conditions.Deplorable social conditions. Low wages and Low wages and High unemployment.High unemployment.

Throughout the Anglophon C’bean Throughout the Anglophon C’bean there were: Riots in the land!there were: Riots in the land!

Riots in de land!Riots in de land!

Riots in de land, Riots in de land,

“and de people and dem say, “and de people and dem say, today is a funny night”today is a funny night”

This lead to the set up ofThis lead to the set up of

Royal Commissions of Royal Commissions of

EnquiryEnquiry

“major developments in IR occur at times “major developments in IR occur at times of economic and social conflict”of economic and social conflict”

Two events mark two discernable periods in Two events mark two discernable periods in modern Barbados Industrial Relations: modern Barbados Industrial Relations:

Riots of late 1930s ushered in Riots of late 1930s ushered in Voluntaristic liaises-faire –Voluntaristic liaises-faire –late 1930s to early 1990slate 1930s to early 1990s

Economic Crisis of early 1990s ushered in Economic Crisis of early 1990s ushered in social dialogue/compact within the context of social dialogue/compact within the context of

voluntarismvoluntarismearly 1990s - - - - - - early 1990s - - - - - -

(In IR) Out of the recommendations of (In IR) Out of the recommendations of the Royal Commissions the late 1930’s:the Royal Commissions the late 1930’s:

Trade Union Act. Trade Union Act. Labour Department Act.Labour Department Act.

Up to that time trade unions were Up to that time trade unions were regarded as unlawful combinations regarded as unlawful combinations acting in restraint of tradeacting in restraint of trade..

The Trade Union Act: Relieved TUs from the possibility of civil and

criminal action when acting in contempla- tion or furtherance of a trade dispute.

It provided for the registration of TUs as legal entities; it provided for their right to peacefully assemble to obtain or communicate information; and peacefully to persuade any person to work or

to abstain from working.

At that time, and up to the mid 1970’s in At that time, and up to the mid 1970’s in Britain, the dominant view was that Britain, the dominant view was that reliance be placed on the dynamic of reliance be placed on the dynamic of industrial and political power counter-industrial and political power counter-balancing economic power in ensuring balancing economic power in ensuring job regulation. job regulation.

Trade unions found contact with judicial Trade unions found contact with judicial institutions difficult, expensive and institutions difficult, expensive and usually to their disadvantageusually to their disadvantage . .

Legal regulation sought merely to Legal regulation sought merely to provide:provide:

certain minimum social conditions in certain minimum social conditions in employment employment

a floor/base to protect vulnerable a floor/base to protect vulnerable segments of the working population; segments of the working population; and and

legal immunities from civil and legal immunities from civil and criminal liabilities.criminal liabilities.

Described as an Described as an abstentionistabstentionist legal legal approach; legal enactment is accorded a approach; legal enactment is accorded a necessary but secondary role; providing necessary but secondary role; providing protection from criminal and civil protection from criminal and civil liabilities, leaving the processes of job liabilities, leaving the processes of job regulation to the IR power dynamic. regulation to the IR power dynamic.

The alternative is an The alternative is an “interventionist”“interventionist” approach. This involves the enactment of a approach. This involves the enactment of a more comprehensive labour code with more comprehensive labour code with positive rights and obligations.positive rights and obligations.

In B’dos, Central Authority’s role is throughIn B’dos, Central Authority’s role is through thethe

Labour Department.Labour Department.That Department Administers/enforces the basic legislation: That Department Administers/enforces the basic legislation:

- Factories Act- Factories Act - Night work - Night work

- Maternity leave- Maternity leave - Shops Act - Shops Act

- Minimum age in employment- Minimum age in employment

- Protection of wages; and is - Protection of wages; and is

mandated to receive and investigate all repre- mandated to receive and investigate all repre- sentations of employers or of employees with a sentations of employers or of employees with a view to the settlement of dispute, grievances and to view to the settlement of dispute, grievances and to

conciliation.conciliation.

ConciliationConciliation

Parties are free to:Parties are free to: accept or refuse an offer to conciliate; accept or refuse an offer to conciliate; refuse Labour Department refuse Labour Department

conciliation; conciliation; determine the terms and conditions of determine the terms and conditions of

their relationship;their relationship; contracts formed are binding in contracts formed are binding in

honour only.honour only.

•There are no legally defined processes, There are no legally defined processes, procedures or issuesprocedures or issues

The process is applied to disputes in the The process is applied to disputes in the private sector and para-state entities only. private sector and para-state entities only. (Public officers – CPO)(Public officers – CPO)

•Steps in Conciliation:

-Matter discussed at enterprise level -

between shop steward & management

-Matter discussed at enterprise level-

union official, shop steward and mgt.

-Matter discussed at the central domestic level-

shop steward, union official –mgt.,Employers’ Confederation (BEC) officials.

•The Chief Labour Officer (CLO) is asked to The Chief Labour Officer (CLO) is asked to conciliateconciliate

Shop stewards, Union officials - mgt., BEC Shop stewards, Union officials - mgt., BEC

CLO refers matter to Minister of LabourCLO refers matter to Minister of Labour

Shop steward - mgt. - CLOShop steward - mgt. - CLO Union official - BEC - Ministry officials Union official - BEC - Ministry officials (by this time the matter has become a major news item)(by this time the matter has become a major news item)

vi.vi. Matter referred to Prime Minister.Matter referred to Prime Minister.P.MP.M

Shop stewardShop steward ManagementManagement CLOCLOUnion OfficialUnion Official BECBEC MinisterMinister

Ministry Ministry OfficialsOfficials

Min. of Labour refers matter to the Prime Minister

Shop steward - mgt. - Min of Labour, CLO Union official - BEC - Min. officials

(Matter is now the major news item of the day)

In conciliation, a third party brings the disputing In conciliation, a third party brings the disputing parties together voluntarily to assist them to parties together voluntarily to assist them to arrive at their own agreement. The concilia- arrive at their own agreement. The concilia- tors’ primary role is to keep the parties toge- tors’ primary role is to keep the parties toge- ther, reduce and sanitize inflammatory rheto- ther, reduce and sanitize inflammatory rheto- ric and reduce tension. Parties should emerge ric and reduce tension. Parties should emerge feeling satisfied that their needs and interests feeling satisfied that their needs and interests have been taken into account, that they have have been taken into account, that they have achieved the best outcome possible, and that achieved the best outcome possible, and that they would enter the process again the next they would enter the process again the next time a problem arises. Among the advantages time a problem arises. Among the advantages are that the proceedings are “off record” and are that the proceedings are “off record” and the parties may revert to their original the parties may revert to their original positions if the process fails. positions if the process fails.

Conciliation in trade union Conciliation in trade union recognition issuesrecognition issues

Barbados has ratified ILO Barbados has ratified ILO Convention 87 Concerning Convention 87 Concerning Freedom of Association and Protection of the Right to Freedom of Association and Protection of the Right to Organise.Organise.

In seeking to give effect to those rights TUs organise In seeking to give effect to those rights TUs organise workers. Where an issue over recognition arises the CLO workers. Where an issue over recognition arises the CLO is asked tois asked toconduct a survey of union membership among employees conduct a survey of union membership among employees of the bargaining unit identified.of the bargaining unit identified.

Recognition is usually granted where the CLO confirms there is a 50% + 1 membership.

There is nothing to prevent a demand for recognition where the 50% + 1 is not met.

Recognition depends on the willingness of the employer to treat with the union.

Once recognition is achieved there is no process of de-recognition.

A look at two examples may be instructive:

In In Barbados Workers’ Union vs Off-shore Barbados Workers’ Union vs Off-shore KeyboardingKeyboarding::

- The company rejected the survey system long in use - The company rejected the survey system long in use through custom and practice. They proposed a secret through custom and practice. They proposed a secret ballot of employees.ballot of employees.

-This was rejected by all actors in the IR system and -This was rejected by all actors in the IR system and the company admonished to comply.the company admonished to comply.

-The company rejected this and eventually withdrew -The company rejected this and eventually withdrew from Barbados.from Barbados.

In Barbados Workers’ Union vs Royal In Barbados Workers’ Union vs Royal WestmorelandWestmoreland::

-The-The BWU claimed recognition despite not BWU claimed recognition despite not having the 50% + 1. having the 50% + 1. (the union may have (the union may have been concerned about union busting tactics)been concerned about union busting tactics)

-The company resisted. -The company resisted.

-Nine days of industrial action ensued-Nine days of industrial action ensued

-Arising out of a process of private concilia- -Arising out of a process of private concilia- tion the Company recognised the BWU & tion the Company recognised the BWU & re-instated the dismissed workers.re-instated the dismissed workers.

There is freedom to use or not to use the There is freedom to use or not to use the mechanism of conciliation through the Labour mechanism of conciliation through the Labour Department. Department.

There are times other mechanisms There are times other mechanisms have been used.have been used.

Industrial might counter-balancing Industrial might counter-balancing economic might work to determine economic might work to determine “right”.“right”.

B’dos’ system of conflict resolution B’dos’ system of conflict resolution in IR has from its inception reconised in IR has from its inception reconised thus: thus:

““Society cannot and should not rely exclusively Society cannot and should not rely exclusively on the Courts for the resolution of disputes; on the Courts for the resolution of disputes; other mechanisms maybe superior in a variety other mechanisms maybe superior in a variety of controversies. They may be of controversies. They may be less expensiveless expensive, , fasterfaster, , less intimidatingless intimidating, , more sensitive to the more sensitive to the disputants’ concernsdisputants’ concerns and and more responsive to more responsive to underlying problemsunderlying problems. They . They may dispense may dispense better justicebetter justice, , result in less alienationresult in less alienation, , produce a feeling that a dispute was actually produce a feeling that a dispute was actually heardheard, and , and fulfill a need to retain controlfulfill a need to retain control by by not handing the dispute over to Lawyers, not handing the dispute over to Lawyers, judgesjudges, , and the intricacies of the legal and the intricacies of the legal system”system” (US Department of Justice 1984)(US Department of Justice 1984)

Let Us Shake On Our AgreementLet Us Shake On Our Agreement