Wed | Dec 7, 2016

Workers had a hard road to travel

Published:Tuesday | March 3, 2015 | 12:00 AM
Placard bearing workers protest for better conditions of work.

Below are excerpts of a speech delivered by Bert Samuels, attorney-at-law, during the launch of Orville Taylor's new book, Broken Promises, Hearts and Pockets: A Century of Betrayal of the Jamaican Working Class, held last month at the University of the West Indies, Mona.

I feel honoured to have been called upon to address you at the launch of this well-researched body of work by Dr Taylor, which is a priceless dedication to those on whose shoulders we stand - the Jamaican workers of the past hundred years and before.

On the first of August 1838, some 177 years ago, the physical chains were removed from the entire Jamaican labour force, alongside 100 per cent unemployment. What a starting point for the working class; to walk away from the plantation penniless, propertyless, and all unemployed. Few other regions of the world have had their beginnings paralleled by such abject poverty. Dr Taylor, in analysing a labour force which is almost entirely black, is frontal in his treatment of that reality - that class is inextricably bound up with race in Jamaica.

It must be remembered that those who journeyed here in the 19th century from India, China, Lebanon, and Syria crossed the Atlantic by choice, and in so doing made Jamaica their newly adopted home. They came from far to become petty traders and paid employees. We, the majority, were brought here against our will to till the soil as forced, unpaid workers. This legacy forms the backdrop against which the Jamaican labour force must be understood.

When the British left in 1962, we had a Constitution that was signed off 'At the Court at Buckingham Palace' - so reads the Second Schedule of our Constitution dated July 23, 1962. At this date, 80 per cent of us were unable to read the constitution, 80 per cent of Jamaicans being illiterate at Independence.

In the 1960s, when racial apartheid was still rife here, no black person looking like Dr Taylor or myself would be employed in the banking sector as front-line tellers. Air Jamaica, the national airline, used to require that applicants provide a photograph for shortlisting for interviews! When I applied in 1973, though I got the job; I was placed in the rear of the airport in the cargo section, and that was with eight O'Levels and three A'Levels. NO Air Jamaica ticket counter representative had my qualifications.

In 1963, the year after Independence, my father pulled me close to him and, rubbing my head, said, "Son, if you want to reach anywhere in this country, you have to cut your hair very low, oil it, and brush it." Now, in the modern 21st century, skin lightening has been added to that list of evidence of our racial self-hate. Was my father a backward man or a realist? Or was he simply following the first rule of fatherhood, that of 'son preservation'?

Mutabaruka, in commenting on this reality, asks, "Which line do the ethnic minorities join in Jamaica?" He never sees them in the passport line or the TRN line. Nor do I see them at the penal institutions or the lock-ups! He further observes that even when we join these lines, it is not unexpected that for the simplest of error, we have to 'come back', traversing three to four parishes either way.

It is the story of a majority still not honoured in their own land.

 

LABOUR AND THE LAW

 

The common law of Jamaica is the common law of England. The forces that influenced the anti-union, anti-worker laws in Britain were exported here wholesale. That is why the Trade Union Act of 1919 had to be passed. Prior to its passage 91 years ago, the activities of unions were considered criminal and, where workers were proven to be encouraged to breach their contract of employment by strike action, such action, in itself, made unions liable to pay damages.

The change in the law was not from the benevolence of lawmakers. No, it was because politicians needed the vote of workers at election time. It had become untenable to those workers that their voice - the union - was criminalised for seeking to improve their wages and working conditions, and so, increasingly, governments had to make concessions to labour by legislating more worker-friendly laws.

The common law - except for statutory intervention - has always favoured the business class in preference to workers. That is why Dr Taylor highlights the passage of the 1974 Labour Relations and Industrial Disputes Act as one of the most important pieces of legislation since the Emancipation Act of 1838. So, prior to the establishment of the Labour Tribunal in Jamaica in 1974, the worker had to seek recourse in the courts. The courts frowned upon reinstatement, and would not compel an employer to re-employ a worker, no matter how egregious the unlawful circumstances surrounding his dismissal were. So the worker could only receive damages in lieu of reinstatement.

These damages were usually assessed in favour of the employer. The courts would not give an award above a formula that estimated "the amount of time it would take the unlawfully dismissed worker, with the best of efforts, to find new employment in the job market". Invariably, this would be no more than three months' pay.

Naturally, this approach to an unjustifiable dismissal presented incentive to a shrewd employer to make the calculated decision to - without good cause - dismiss a long-standing worker or an active union delegate, thereby avoiding the payment of severance earned by this long-service employee.

The Labour Relations and Industrial Tribunal revolutionised the remedies open to the worker, wresting labour disputes from the halls of the Supreme Court and taking them to the tribunal, where a member elected by the union, one employer representative, and the third, an independent member, could deliberate on labour disputes.

We should never take the inclusion of a union representative to sit and deliberate on labour disputes as an achievement of any small measure. The judges of the courts have been more closely aligned to the employer class than the working class. Judges themselves have, sometimes, been quite conscious of their particular bias.

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