Correction: Strike at Morton Bahamas Limited Was Legal

Although it was reported in our last two News Bulletins that the strike at Morton Bahamas Limited was illegal, information recently revealed shows that the strike was in fact legal. The strike action was not technically based on the recent trade dispute that was referred to the Industrial Tribunal thereby preventing strike action on that recent matter. Instead the strike action was technically based on a successful strike vote that was taken over two years ago on issues that were not officially resolved. We regret the error.

As reported in our 13th of August 2008 News Bulletin strike votes can only take place on outstanding trade disputes that are filed at the Department of Labour. If the trade dispute is referred to the Industrial Tribunal strike action is barred and the matter is resolved by the ruling of the Industrial Tribunal, or if the ruling is appealed, the ruling of the Court of Appeal.

Most trade disputes do not end up at the Industrial Tribunal, instead the matter(s) are resolved through a conciliation process carried out by the Department of Labour. Unlike a Court that can make rulings, conciliations cannot force or require either party to do anything that they do not want to do. Resolution of trade disputes through conciliation is through mutual agreement by both parties. In conciliation matters the trade dispute is legally concluded when both parties sign the Resolution of a Trade Dispute form.

Strike votes do not have a time limit. The only way to legally quash a strike vote is by resolving the trade dispute that predicated the vote. Although the 2005/2006 trade dispute filed against Morton Bahamas Limited was essentially resolved, it was not legally resolved as the Resolution of a Trade Dispute form was not signed by both parties. This oversight is a union tactic of "having one in the bag", meaning that they have the future ability to strike at any time they choose.

Awareness of Existing Labour Legislation - Part I

The Bahamas Decent Work Country Programme sponsored by the International Labour Organization (ILO) was signed on the 10th of April, 2008. This broad and comprehensive tripartite program provides for the Social Partners of workers, employers and government to work together in providing decent and productive work through institutional strengthening, social dialog, labour legislation, and respect for the rights of both employers and employees at work. One of the mandates of the program is for employer representatives to organize sectoral dialog to raise awareness of existing legislation and disseminate information through print, electronic media and websites.

The four Statutes that are commonly referred to as "Labour Legislation" are the Employment Act, the Minimum Wages Act, the Health and Safety at Work Act, and the Industrial Relations Act. Other Statutes that affect "labour" to some degree or another are the National Insurance Act, the Parliamentary Elections (Symbols and Time Off) Regulations, and the Juries (Amendment) Act. In addition Case Law or Common Law affects labour as well as the specific policies, terms and conditions of individual employers.

Policies, terms and conditions of individual employers should treat all employees of a particular class in a fair and equitable manner. Failure to do so may result in charges of discrimination. The Employment Act provides for non-discrimination and equal pay for equal work regardless of an employee or applicant's race, creed, sex, marital status, political opinion, age or HIV/AIDS.

Case Law provides for salaried employees to be paid for Public Holidays when they do not work. Although this point was explicit in the repealed Fair Labour Standards Act, the replacement Employment Act makes no mention of this. Case Law also provides for recovery in the event of Wrongful Dismissal which is completely different from Unfair Dismissal as specified in the Employment Act. This shows that knowledge of Statute Laws only is not sufficient; knowledge of Case Law is also necessary to ensure that employers do not find themselves in hot water due to legal transgressions. Another important element of Case Law is its interpretation of Statute Law. When it comes to Case Law (and Statute Law as well) an ounce of prevention is worth a pound of cure so BECon highly recommends that you seek the advice of an Attorney whenever something new or unusual comes up.

The Parliamentary Elections (Symbols and Time Off) Regulations provides for paid leave to employees, depending upon their normal hours of work, for voting during national elections while the Juries (Amendment) Act provides for employees to be paid during time spent away from the job for the purposes of jury duty. The way the Juries (Amendment) Act is written indicates that an employer can deduct from the employee's regular pay whatever stipend is paid him or her by the Court for jury duty service.

The National Insurance Act provides that contributions from both employees and employers be paid to The National Insurance Board (NIB) for the purposes of workman's compensation insurance and social security benefits. Unfortunately there are many employers (and self-employed individuals) who do not make contributions to NIB. Not only can this result in criminal prosecution, it also leaves the employer open to liability in the event of an industrial accident. Even worse are employers who deduct NIB payments from an employee without making contributions to the National Insurance Board.

Part II on "Awareness of Existing Labour Legislation" will appear in our next newsletter.

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