Temporary Public Employees and their Right to Strike

There is a school of thought which argues that temporary public employees have limited rights, and particularly that they do not have the right to strike.  We are here to tell you that both statements could not be further from the truth. We therefore start by looking at the definitions of a temporary pubic employee, and what constitutes a strike before examining the many protocols that support the tenure of temporary employees in the Public Service.

A temporary public employee can be:-

(a) A substitute who works for a specific period in a temporary or established post, in place employees who are on vacation, study, sick or any kind of leave.

(b) A person who does not hold a permanent appointment but occupies a temporary post that was created for a specific purpose eg; a project post.

(c) An employee who is not yet appointed, but whose appointment will be retroactive to 2007/12/31 when a supernumerary post is created in accordance with Section 13 (7) of the Public Service Act which states: “Any person who, at the commence of this act, (a) is not appointed to the Public Service; (b) has been employed (i) in a temporary office; (ii) in an established office; or (iii) in a combination of a temporary and an established office for not less than three years immediately before the commencement of this act, and (c) has the qualifications required by the Civil Establishment (Qualifications) Order for appointment to that office or to an office in a similar grade, shall be entitled to be appointed to that office or an office of a similar grade with effect from the date of the commencement of this act; and shall be treated as being so appointed.” That act came into being on December 31, 2007.

There are many people who qualify for automatic appointment under that part of the Public Service Act, and the Union continues to pursue the cause of employees who are automatically entitled to be so appointed.

A strike, in simple terms, is a temporary withdrawal of labour by a group, usually with the support of the Union, in an effort to bring a resolution to some work related matter, or to gain improved conditions of service. A strike is usually the last course of action, when all attempts at resolving issues in a more consensual manner, fails. The Union commits to wherever possible, resolving differences between employers and the employees representatives , without resorting to the option of striking.

The Public Service Act applies to both public officers and temporary employees as stated in section 3 (i) of the Act.  Therefore, if there is an attempt to sanction an employee for engaging in strike action, outside of the provisions of the paragraph 20(1) to (20(5) of the Code of Conduct and Ethics, that employee is protected by the grievance handling procedure in its Fourth Schedule which provides for the following chain of recourse: (1) the immediate supervisor; (2) the Permanent Secretary of the relevant ministry; (3) the Permanent Secretary of the Ministry of the Civil Service or the Chief Personnel Officer; (4) the Head of the Public Service and; (5) then, if all else fails, the representative trade union of the aggrieved employee/public officer may declare that a dispute exists.

The relevant paragraphs of the Code of Conduct and Ethics provides some useful information in relation to ‘strikes’ as set out below:

 . (2) Officers shall not be paid for any day or portion of a day during which they are on strike.

  1. 20. (2) Officers shall not be paid for any day or portion of a day during which they are on strike.

(3) Officers who are not on strike and who report for duty as usual but are unable to work because of the prevailing circumstances shall be paid.

So what about statutory boards?

Statutory boards fall under the Employments Rights Act, and similarly to the Public Service Act it applies both to appointed and temporary employees. Section 9 (1) (iii) (iv) states:-

The continuous employment of a worker shall not be deemed to have been interrupted –

(iii) by reason of participation in a strike which is lawful under the Employment Relations Act 2008; or

(iv) with the consent of his employer;

The Employment Relations Act 2008 defines a strike as

any action taken by a group of workers whether or not in furtherance of a labour dispute, and whether or not they are parties to the dispute, which consists in –

(a)  a concerted stoppage of work; or

(b)  a concerted course of conduct, including going slow or working to rule, which is carried on –

(i)  with the intention of preventing, reducing or otherwise interfering with the production or distribution of goods, or the provision of services; and

(ii)  in the case of some or all of the workers involved, in breach of their obligations to their employer or in disregard of the normal arrangements between them and their employer;

There are also many legal frameworks buttressed by protocols that support the right to strike

The Barbados Constitution, which, under s. 21 (1), embodies the right of freedom of assembly and association. Similar clauses are found within other Commonwealth Caribbean constitutions, and the Canadian constitution. Our constitution is based on the Canadian constitution model.

 The Social Partnership Agreement of Barbados states in clause 6.1:

            The Social Partners acknowledge that fundamental to the preservation of industrial harmony is an understanding of the nature of the relationship which must exist between the parties, particularly their collective responsibility to protect workers and employers in all aspects of the exercise of their constitutional rights including the right to freedom of association.

 Clause 6.1 continues:

            The Social Partners agree that the maintenance of industrial harmony depends upon the exercise of mutual respect for, and protection of, the rights and entitlements of both employers and workers.

 It is noted that the above found in the Social Partnership Agreement, essentially crystallizes what is found in the Barbados Constitution.

 

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