Tue | Jan 16, 2018

Orville Taylor | Strike two; and you are (sick) out

Published:Sunday | December 31, 2017 | 12:00 AM
File Police clear a road block at Poor Man's Corner, St Thomas in November.
The Twitter icon on a mobile phone.
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And they did it again. Popular lore is that lightning does not strike in the same place twice, but that is just a complete falsehood. In any event, on the brink of the celebrations of the de-paganised festival, Officer Dibble and around 1,000 of his squaddies and 'squadettes' were missing in action. What is amazing is not that the cops were so 'ignarant' as we so say in Jamaica. Rather, it was that there was so much ignorance, in the English sense of the word, that one would be inclined to wonder if reading is a lost art.

On Twitter, Member of Parliament (MP), Attorney General (AG), former parish court judge Marlene Malahoo Forte, QC, appeared to solicit advice as regards how the suspected industrial action by the police should be handled. Her tweet - "What should be done to members of the JCF who have taken industrial action?" - started a firestorm. Indeed, a colleague of mine, a lawyer herself, although, admittedly, not of the same stature as the AG, seemed to look askance at the question as she retweeted it.

Perhaps being old school, I cannot conceive of Twitter, eponymised by a twit, a small bird, as being the place for serious intellectual discourse. The twit is a small bird of the finch species, and Twitter is the series of melodious sounds that some birds make. Moreover, in common British parlance, on which my generation grew up, a twit is a derogatory term meaning idiot or stupid person. Thus, at the back of my mind is the constant image of tweets being birdbrained.

Perhaps the AG was simply using social media to solicit the views of the public. After all, she is an elected official, and, therefore, she must want to keep her finger on the pulse of public opinion as Jamaica decides whether to line up on the side of Government or the police.

Scholars of Jamaica's political history are mindful of the fact that in recent decades, governments that have pushed police to the brink of marginality or attempted to have inordinate control over their professional lives, have typically, lost the next general election. In the 1970s, despite the Government appointing a black commissioner and legislating maternity leave for female police officers, ultimate law and order were 'under manners' from the political directorate and very influential political thugs. That did not change under the next administration. On the contrary, there were areas that were 'unpoliceable', not because of the logistics, but because of political dictates. Furthermore, Government crushed the trade union movement and passed a repugnant and unconstitutional Fire Brigade Act in 1988.

During that period, it destroyed the attempts of the Special Constabulary Force Association (SCFA), and if the current federation researches the work of Joseph Maynard, who lost everything in standing up for the rights of the 'Blue bags', they would honour him with a memorial. A smarter and shrewd government of the 1990s gave significant improvements to the lot of the Federation, and the SCFA gained full status. However, it must be recalled that after Sergeant Raymond Wilson was strangely replaced by a relatively untested Franz Morrison, the pendulum swung and the incumbent party suffered a shocking loss the next time it faced the electorate.

 

CONSTITUTION TREATS POLICE OFFICERS DIFFERENTLY

 

Therefore, whoever was thinking that Malahoo Forte wanted to create a stink might have misunderstood her motive. One should also note that her status as an MP takes precedence over her other positions, and she might have been asking for procedural advice from the public, her constituents, and not legal instructions. But even if she were asking for legal advice, she is not an expert in labour law. Lawyers do not necessarily know the law; they know where to find it. As regards to labour laws and the police, there is not as much clarity as one thinks.

For starters, although The International Labour Organisation (ILO) Convention 87 allows for national laws to deal with the police and armed forces separately, our Constitution in 1962 did not do so. Therefore, the Convention and the later Convention 98, both of which deal with freedom of association and the right to collective bargaining, respectively, do not exclude the cops from all the rights that other workers have. Indeed, nothing in the original S.13 and the repealed S.23 of the Constitution treats police officers differently.

The Constabulary Force Act (CFA) was promulgated in 1938. However, S.67 to 69, which address the federation and its activities in industrial relations, were enacted in 1964. Therefore, there can be no doubt that the legislators, in their wisdom, meant for the existing Constitution to have overarching influence over this statute.

The now repealed S.23 explicitly provided for not only the right of freedom of association, but, in particular, to form and join trade unions. Thus, although the less elaborate and myopic Charter of Rights does guarantee freedom of association, it cannot be deduced that the charter abrogated this freedom when the CFA was being amended.

So police officers and their federation can be associated with trade unions and do the things that other similar organisations do. Now, let me make it clear, as I said two columns ago: there is no right to strike for any worker and there is no freedom to strike for workers in the essential services. Interestingly, police officers fell into a legislative chasm when the Labour Relations and Industrial Disputes Act was passed in 1975 and amended in 2002. Nonetheless, none of the trade unionists in Parliament realised that cops are not essential service and thus not addressed. Therefore, their taking any form of industrial action is not illegal unless the Industrial Dispute Tribunal orders them not to or to cease.

Yet, there is no question that police officers, who withdraw their labour without leave, breach their contracts and the Police Book of Rules. However, let me caution the AG and not the parliamentarian. There is precedent, including a Grand Lido case, about which Clinton Davis and I have written and which has been cited in at least two law books. Government has the 'right' to dismiss the police office officers, if it can be proven (in a court of law), for being absent without leave. However, it could very well be an unjustified dismissal.

So here is my advice. Do not do anything 'to' the police officers. Do some creative, respectful, and purposeful negotiation 'with' them. Trade unionist Ruddy Spencer knew Hugh Shearer well; he knows this.

- Dr Orville Taylor, senior lecturer in sociology at the UWI and a radio talk-show host, is the author of 'Broken Promises, Hearts and Pockets'. Email feedback to columns@gleanerjm.com and tayloronblackline@hotmail.com.