The most recent dispute between the West Indies Cricket Board (WICB) and the West Indies Players’ Association (WIPA) provides a convenient opportunity to discuss some legal issues that I have not dealt with before in this column.
The embarrassing episode in West Indies cricket has lessons beyond strict law and legal rules, and the relationship between law, justice and morality in the context of the dispute is worth examining.
The need to always place law in the context of the facts and circumstances of the case is another lesson to be learnt. Sometimes, to insist on one’s strict legal rights is short-sighted, especially where they collide with the rights of others or where an insistence on your rights inevitably leads to a breach of your obligations to other parties.
These issues will be explored in another article. Today, I propose to briefly consider how the law in Barbados treats collective agreements.
A collective agreement may be defined as one between a union and an employer or employers’ organisation which deals mainly with terms and conditions of employment with respect to employees. It will also cover issues related to the relationships between the union and the employer.
Under the English common law, collective agreements are binding in honour only. They are not enforceable unless the parties so stipulate. In relation to employees, they are not legally effective unless they are incorporated into the contract of employment.
The memorandum of understanding (MOU) or collective bargaining agreement (CBA) between WIPA and the WICB would have been negotiated between WIPA as agent for the players and the WICB.
In the context of the player dispute, it is interesting to note that Marlon Samuels is not a member of WIPA and has not been a member for the past two years.
In relation to him, in the absence of a signed player contract, what is his contract of employment with WICB? Is he bound by the agreement signed by WIPA? Having regard to the fact, it appears to be now accepted that there were fundamental alterations of the pay structure of the players, resulting in reduced payments. Does this fact affect the enforceability of the agreement?
There are two aspects to a collective agreement. First, there is the agreement between the contracting parties, the union and the employer. Secondly, to the extent that it deals with terms and conditions of employment, the agreement can also have an impact on employees.
Since the agreement is not entered into with the individual employee, it is necessary to incorporate the agreement into the employee’s contract of employment.
One method is by expressed incorporation. This is achieved by providing, in the individual contract of employment, that the terms of the agreement with the union shall form part of the employee’s contract. If this has been done, then there is express incorporation and the agreement becomes part of the employee’s contract of employment.
For example, in the English case of National Coal Board And Galley (1958), the employee’s contract of employment contained a provision which stated that it should be regulated by national agreements then in force.
Sometime later, the employer and the union agreed to a revised national term of agreement which required the employee to work “such days and part days in each week as may reasonably be required”.
The Court of Appeal held that the term was incorporated into the employee’s contract because of the provision in his contract referencing the collective agreement.
Another method by which a collective agreement may be incorporated is by implied incorporation. For this to occur, there must be evidence that both parties have accepted the agreement as binding.
A third method of incorporation is by agency. However, an agency will not be formed merely from the fact that a person is a member of a union. It must be established on the facts that an agency has been created.
