I have been invited to comment on a letter which appeared in another section of the Press in which it was asserted that by order of the Minister pursuant to the Education Act Cap 41 – “the Boards of Management became the employers of principals and teachers of public secondary schools. And [. . .] today, that order or law has not changed”.
It is true that teachers of the “grammar schools” (the older secondary schools) used to be employed by governing bodies prior to the passage of the Education Act cap. 41.
However, it is not correct now, and it never was correct, to say that boards of management became the employers of principals and teachers of public secondary schools.
The original provisions of the Education Act 1981-25, which effected a change in the employer of the teachers formerly employed by the governing bodies, read as follows:
Public officers “65 (1) Teachers who, immediately before the commencement of this Act, are employed by the governing bodies of the schools specified in the Third Schedule shall, with effect from the commencement of this Act, be deemed to have been appointed in accordance with the provisions of the Constitution relating to the appointment of public officers.
(2) Teachers referred to in subsection (1) will continue to be employed on terms and conditions that are as favourable as or no less favourable than those on which they were employed immediately before the commencement of this Act.
(3) Teachers referred to in subsection (1) may not, without their consent in writing, be transferred from the school to which they were appointed before the commencement of this Act; but may at their request be transferred to another school.”
This section of the Act came into force on May 31, 1983 though the Act commenced on January 1, 1983.
Section 65 above was amended by section 8 of the Education (Amendment) Act 1984 which substituted the provisions that are now captured in section 65 of the Education Act cap. 41.
That section now reads: “65
(1) Where teachers who, immediately before 1st January, 1983 were employed by Governing Bodies, become public officers they shall continue to be employed on terms and conditions that are as favourable as or no less favourable than those on which they were employed before 31st May, 1983.
(2) Teachers referred to in subsection (1) may not, without their consent in writing, be transferred from the school to which they were appointed before 1st January, 1983; but may at their request be transferred to another school.”
The effect of the changes brought about by the Education Act was that teachers became public officers. However, in doing so, their terms of employment effectively could not be altered to their disadvantage. Put another way, the terms and conditions of their employment as public officers must be no less favourable than they were under the governing bodies.
Transfer view wrong Specifically, such teachers cannot be transferred from the school to which they were appointed before the commencement of the Education Act unless requested by them or consented to by them in writing.
The view expressed elsewhere that the Ministry of Education has the option of transferring all the teachers at the Alexandra School is therefore, in my view, incorrect.
It is my understanding that at least four teachers at that school fall under the provisions of section 65 of the Education Act.
Although the Public Service Act 2007 does affect teachers and principals in public secondary schools it does not in my judgment alter the provisions of the memorandum of understanding between the Barbados Secondary?Teachers Union (BSTU) and the Government which does not permit a transfer without the written consent or the request of the teachers to whom it applies.
Next week, I shall consider the function of the boards of management vis-à-vis the principals and teachers in the public secondary schools.
• Cecil McCarthy is a Queen’s Counsel. Send your letters to: Everyday Law, Nation House, Fontabelle, St Michael. Send your email to [email protected]
