Orville Taylor | Police ‘sickurity’: striking a balance
"Firemen strike ... up to the police dem too ... wooooiii ... oh oh ... ." The year was 1968 and the Ethiopians released the song Everything Crash. It was unthinkable that members of the constabulary should withdraw their labour and thus breach their contracts. Almost 50 years later, there is reason to believe that the police have once again taken industrial action after scores of officers did not report for duty last week, with some divisions indicating that as many as 50 per cent of their complement were absent at times.
Expectedly, chairman of the Jamaica Police Federation Sergeant Raymond Wilson pleaded ignorance of any kind of 'sickout', and with good reason. Sickouts and other modes of industrial action are outlawed for police officers. Industrial action, including strikes, lockouts and work-to-rules, is composed of three elements under the Labour Relations and Industrial Disputes Act (LRIDA) and at common law. First, there must be an existing industrial dispute. Second, the action must be consciously taken in pursuance of the dispute. Third, there must be the intention to reduce or cease production.
Never mind the fact that Section 4.20 of the police Book of Rules gives the right to sick leave. Police officers have to produce medical certificates to validate their claim to be ill. However, be not mistaken: There is legal precedent right here in Jamaica that unless there is some obvious epidemic or environmental hazard, the concerted absence of large numbers of workers, who have an extant industrial dispute, is to be inferred that there is industrial action.
Yet, even outside of the police force, industrial action is a breach of contract and runs the risk of the striking workers being dismissed. Of course, it might not be defensible before the Industrial Dispute Tribunal (IDT) as a justifiable reason for termination, but public officers' dismissal cases cannot be taken there. Therefore, taking industrial action in the public service is risky business, unless one has lots of clout. Still, we must understand that there is no right to strike. Were there a right to breach one's contract in this fashion, the issue of dismissals would never arise. What obtains is a 'freedom to strike', which essentially means that the worker can drop arms without triggering an arrest or other action in law.
Most workers in Jamaica have a freedom to strike, with the exception of a few industries and occupations. The First Schedule of the LRIDA lists "water, electricity, health, hospital, sanitary, firefighting, correctional, overseas telecommunication services," as well as the ports, and transportation to and from the petroleum trade and civil aviation. Any industrial action taken in these sectors is illegal unless, under Section 9 of the act, the dispute was reported to the Ministry of Labour, and either the minister fails to act within 10 days or the IDT does not deliver its award within 21 days, subject to a number of other conditions.
Outside of the 'essential services', there are other industries, listed in the Fifth Schedule, where it is unlawful, unless a 72-hour 'strike notice' is given. These include air and ground passenger transport, banana, banking and finance, bauxite and alumina, and tourism. Sugar adds the final sweetener to the list. In all this roll-calling under the act, the police have not been made to fall in. It seems as if the police have also withdrawn their services from the legislation.
I am still baffled as to why the police are not categorised as essential services. By the way, the International Labour Organization (ILO) uses a narrow definition of this category, and it is those industries where "the interruption of which would endanger the life, personal safety or health of the whole or part of the population". So, Digicel and FLOW are essential, but the police get no credit? And the companies that dig out the bauxite are in the Fifth Schedule, but the cops cannot conceivably take strike action?
FISH OR FOWL
Nevertheless, Government must, once and for all, make a determination as to whether police officers are fish or fowl. They are not soldiers. Thus, they are bound by different norms and are motivated differently. They are subject to civilian laws and are civilians who do not keep their titles or privileges when they retire. Like other workers, they are subject to the same rules of motivation and respond to 'decent work'.
I have always found it strange that police officers are barred from the constitutional right of freedom of association, although there is nothing in that supreme statute that says they should be. True, ILO conventions on freedom of association do not insist on this for the armed forces, but our LRIDA is applicable to every worker. Thus, Section 4 (1) reads, "Every worker shall, as between himself and his employer, have the right (a) to be a member of such trade union as he may choose; (b) to take part, at any appropriate time, in the activities of any trade union of which he is a member." The LRIDA was passed in 1975, while the Constabulary Force Act (CFA) was passed 30 years earlier.
Section 67 of the CFA prevents the federation from dealing with "any question of discipline, promotion, transfer, leave, or any other matter, unless some question of principle is involved", or being affiliated to any external organisation, while Section 68 blocks membership in any trade union or "any association having for its objects, or one of its objects, to control or influence the pay, pensions, or conditions of service of any rank of the force". This doubtless is confusing because unless I live in another universe, the federation is doing precisely that. Nevertheless, read my lips: My considered opinion is that the section is unconstitutional.
Notwithstanding that, Section 69 makes it a misdemeanour if any person "causes, or attempts to ... or does any act calculated to cause disaffection ... or ... attempts to induce ... any act calculated to induce any member of the force to withhold his services". This proviso goes to the heart of the freedom to strike. For this reason, Raymond Wilson and his police colleagues can only give lip service to Section 69, although their actions might suggest otherwise.
Nevertheless, we know the adage about cock mouth, and I don't want anyone to say that I am inducing this disaffection.
- Dr Orville Taylor is senior lecturer in sociology at the UWI, a radio talk-show host, and author of 'Broken Promises, Hearts and Pockets'.