The law is not always about morality

Feb 21, 2019 Features / Columnists, Peeping Tom

---

The Constitution of Guyana does not provide an enforceable right to strike. This, despite the fact that for the past 50 years, the country has been governed by parties, which branded themselves as socialists and pro-workers’ political parties.
The Constitution does not provide for an enforceable right to strike. And since Ronald Reagan and Margaret Thatcher came to power almost forty years ago, the strike weapon has lost its efficacy worldwide, and not just in Guyana.
Workers therefore take strike action at their own risk. The unions, which represent these workers are weak and cannot provide strike relief. And as the unions got weaker, the employers got stronger, to the extent that they can now more easily engage in union-busting and union de-recognition.
In such a work environment, the strike weapon has to be employed carefully. Unless workers are assured that the entire workforce will be withdrawn or sufficient numbers to cause the workplace to be shutdown, they should be wary of proceeding on strike.
Unless there is solidarity among all the workers, it is suicidal for workers to proceed with strike action. Unless all workers hold a common position and refuse to return to break ranks, those who strike will find themselves being made into sacrificial lambs.
More than sixty workers employed by the Bauxite Company of Guyana Incorporated (BCGI) have had their services terminated after they took precipitate action in withdrawing their labour. These workers are now on the breadline and their union cannot demonstrate any show of force, but has been reduced to begging for government intervention.
The vast majority of those who have been publicly commenting on the dismissal of these workers claim that the dismissals were wrong and unlawful. They, in the main, are demanding that the workers be reinstated and that the government put pressure on the BCGI to comply with Guyana’s labour laws. But they have not pointed out which labour laws were breached
Guyana’s labour laws, drafted by our socialist parties, have a neo-liberal bias. For example, the Termination of Employment and Severance Pay Act obligates employers to pay dismissed workers their severance pay benefits. But those benefits are chicken feed – one week’s pay for each year of service up to five years; two weeks’ pay for each year of service between five to ten years and three weeks’ pay for every year up to fifteen years of service.
Guyana’s labour laws, adopted by our socialist and pro-worker parties, allow for workers to be dismissed for just cause or though the provision of notice. It does not deem dismissals resulting from wildcat strikes as constituting unfair dismissals.
And under the common law, where someone is wrongfully dismissed, the courts cannot force an employer to rehire an employee, which that employer does not wish to reemploy. The only exception is for those employers who enjoy statutory protection.
It is one thing therefore to take the moral high ground and demand that the dismissed bauxite workers be reinstated. But there is no legal limb on which the right to reinstatement can rest.
Workers therefore need to appreciate their legal rights before they take precipitate action. And they must not assume that they can simply walk-off the job and expect not to be dismissed. Not anymore.
The bauxite workers of the BCGI withdrew their labour because they were not pleased with the salary increases they received. These increases were imposed by their employers and were not negotiated by their union.
The BCGI says that it does not recognize the union. And there is no court order compelling the company to do so.
There also is no indication that in taking industrial action, the workers of the BCGI followed any grievance procedure. If you are going to call a strike, then a grievance procedure has to be followed. You cannot simply withdraw your labour. No company operating in a country with neo-liberal labour laws is going to risk their profitability by being held to ransom by wildcat strikes.
The BCGI may have acted harshly in dismissing those workers – that is a moral call, and the law is not always about morality. The company is saying that the workers breached their contract of employment. In the sight of the company, this constitutes just cause.
Even if the workers want to assert an enforceable right to withdraw their labour, this has to be preceded by enforcing the grievance procedure, not by downing tools. This is not the pre-1970 era when such tactics would have worked.
The dismissed workers only hope is workers’ solidarity. Unless the remaining workers decide that they will not work until their dismissed buddies are reinstated, I am afraid we will have more than sixty persons added to the breadline.

---

---