The paradox of freedom of association

Back in the late 1700s-early 1800s there was a wise writer called Charles Colton who commented: “Man is an embodied Paradox, a bundle of contradictions.”

I cannot think of a better description of Trini personality, culture, way of life, or institutions. As a closet cultural anthropologist I have been quietly observing with great affection and hidden admiration, the deep-rooted philosophy of paradox as it plays out in our daily lives.

Mathematicians may be positive that something cannot be X and not-X at the same time, that is logic, and as a child that gave me a great sense of comfort, as did the certainty of Pythagoras’s theorem about the hypotenuse on a right-angled triangle, on which Euclid’s geometry is based.

Then I grew up and my tiny brain encountered non-Euclidean geometry, which shattered that certainty, and Trinidad Carnival, in which the sacred and the profane, paradoxically, were not separate, but jumped with incarnate singularity across the stage in Peter Minshall’s mas by Peter Samuel.

Our industrial relations embodies international standards such as the sacred principle of freedom of association set out in articles 22 and 23 of the International Declaration of Human Rights, in the ILO Convention number 87 on freedom of association and the protection of the right to organise, in sections 4 and 5 of our own Constitution and stoutly supported by our equally sacred constitutional right of freedom of expression and freedom of the press.

Workers’ rights are protected by trade unions, the Ministry of Labour and by the Industrial Court.

Freedom of expression has been challenged over the years, repeatedly, by those who do not want anyone, much less the public, to know, consider and discuss certain matters in their purview, and so use whatever powers they have to ensure those who disagree with them are stifled, censored and sometimes destroyed just to shut them up.

Dana Seetahal was one of them, as were many others, readers will recall silently. There are those who support that freedom when it applies to themselves and sometimes, paradoxically, try to limit or destroy that freedom in other people, always in the conviction that what they are doing is in the interests of “the community.”

For all I know, they may be right. I am just an observer. Similarly with freedom of association.

This week I was given a copy of one of the honestly best written awards of the Industrial Court I have ever read – and I have awards going back to the first year the court was in operation under the famous Sir Isaac Hyatali. This one, No 90 of 2019, dealt with, among other things, freedom of association.

As you will no doubt be aware, freedom of association carries with it the concomitant freedom not to associate. See what I mean by paradox?

The freedom not to associate liberates people from slavery, from indentureship, from unhappy marriages and dysfunctional and abusive families. It liberates people from employment by bullies and harassers political, religious, sexual and racial.

Some employers, of course, have from time to time, tried to circumvent this by forcing those they wish to dominate and control by making them sign a contract, individual and sometimes collectively, that binds them, and in many instances of dire poverty, their children, to service.

That is how the very lucrative business of human trafficking works. Those bound usually do not know, and are prevented from knowing, that there is a hierarchy of laws and that the Constitution of Trinidad and Tobago trumps mere employment contracts.

The dispute covered by the award in question has to do with the age of retirement and coverage of the company’s pension scheme. Since there has been much discussion by government officials about the intention to change the statutory age of retirement in the NIS from 60 to 63, as in other Caribbean countries, and eventually to 65, this is a legitimate concern of workers and their representative unions.

Some workers want the retirement age to go on till 65, and some want to retire at 60 with the same pension benefits. Others want to keep the option open. Since most pension schemes are contributory by both worker and employer, both have legitimate property rights in those plans.

In the collective agreement the retirement age is 60. In the pension scheme, the employer wanted to move the retirement age to 65 and had drafted a clause making the change, after consultation, but without the union’s consent. As the union is legally the representative of the workers, the employer acknowledged that it could not do this unilaterally for existing workers in the bargaining unit, but wanted to make it a condition of work for new entrants who will be coming henceforth into the workforce.

They were following the formula enunciated by Deborah Thomas-Felix, president of the court, in relation to who should be required, as a condition of work, to get the anti-covid19 vaccination.

Her guidance was that an employer cannot unilaterally insist on the vaccination of existing workers if that condition is not already in their terms and conditions of employment, but can make it a condition of employment for new people joining the workforce.

So what has this got to do with freedom of association?

Well, in the award, in Trade Dispute No 90 of 2019, the court ruled that if the employer has granted recognition to a recognised bargaining unit on behalf of one segment of its workforce, its monthly-paid workers in this case, and they have a retirement age (in this case 60) negotiated with the union, then any new person joining at the monthly-paid level will have to accept that retirement age as well, even if they are not a member of the recognised union and do not want to be a member of that or any union.

Surprising as it may be, I have observed there are such people, just as there are people who do not want to be vaccinated.

One young man with a new law degree angrily expostulated when this was pointed out to him, “But what about my right to associate or not associate? Didn’t you tell me that was my constitutional right? Doesn’t that take precedence over a mere contract?”

Paradox rules again.