Awareness of Existing Labour Legislation - Part II

The first article of this series spoke on terms and conditions of individual employers, Common Law, and various Statue Laws that affect labour. This article will examine the Industrial Relations Act, one of the four Statues that are commonly referred to as "Labour Legislation", the other three being the Employment Act, the Minimum Wages Act, and the Health and Safety at Work Act. These four pieces of legislation are available on BECon's website at:
http://www.bahamasemployers.org/documents/labourlaws/index.shtml

The Industrial Relations Act came into force in March of 1971 and provides for the registration and regulation of trade unions. Many people are not aware of the fact that a trade union can be a union of employers as well, not just a union of workers. The Act also provides for the recognition of worker trade unions by employers; the registration of Industrial Agreements; the establishment of an Industrial Tribunal; the regulation of trade disputes; and related matters. The preliminary part of the Act states that this Act does not apply to a "disciplined force" which prohibits the Police Service, Prison Service, and the Royal Bahamas Defence Force from being unionized.

The part of the Act that provides for the registration and control of trade unions establishes a Registrar who is responsible for maintaining a register of trade unions, similar to the Registrar General's responsibility of maintaining a register of Companies. The current Director of Labour is also the Registrar of Trade Unions. No trade union is considered legal until and unless it has been registered by the Registrar of Trade Unions. An application for the registration of a trade union submitted to the Registrar of Trade Unions must be accompanied by the union's constitution.

According to the Industrial Relations Act a trade union's constitution must provide for representation based on a specific "industry" or "craft". This limitation is anathema to some in the trade union movement since it prevents the formation of "general" unions, unions that would be able to represent any worker in any category of work. The Bahamas has ratified the International Labour Organization's Convention 87, the Freedom of Association and Protection of the Right to Organise Convention, which states "Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorization." In order to fully comply with this ILO Convention Bahamian law would need to be amended to allow the formation of general unions and a segment of the trade union movement is lobbying government to this end.

The constitution of a trade union must also provide for the taking of a secret ballot conducted under the supervision of the Registrar of Trade Unions for the purposes of the election or removal of any officer or member of its executive committee or other governing body; the amendment of its constitution, including any change of name; and, where the union is a union of employees, the taking of strike action.

The part of the Act that deals with recognition of trade unions makes it the duty of employers to recognize and treat with unions. This recognition is contingent on more than 50% of the employees in a bargaining unit being union members in good standing. The determination of which employees comprise the bargaining unit can be agreed between the employer and union, or if no agreement is reached, the Minister of Labour makes the determination. Generally the bargaining unit excludes all management, security personnel and persons who are privy to confidential information such as secretaries to company executives.

Unions seeking recognition from an employer as the bargaining agent for their employees in a bargaining unit do so in writing, with a copy of the request being forwarded to the Minister of Labour. Although these letters state that more than 50% of the employees in the bargaining unit are members of the union in good standing, there is no mechanism available to the employer to verify this claim. Although company information filed at the Registrar General's Office is public record and available to view by all, this is not the case with the Registrar of Trade Unions. Here the information is not available to the general public, only union members or government officials. The employer is unable to confirm that: i) the union constitution allows representation of the employer's category of workers; ii) the names of union members; or iii) whether or not the union members are in good standing. The inability of employers to independently verify that the union can legally represent their workers and that they have the support of their staff results in most employers refusing recognition, or not to respond at all. In cases of non response the employer is deemed to have rejected the request after the expiry of fourteen days.

Upon the refusal of an employer to grant recognition the union has fourteen days to submit the matter to the Minister for determination. The Minister generally requests from the employer the names of their employees and from the union the names of members in good standing. The Minister then determines whether or not more than 50% of the employer's employees are union members in good standing. Upon making a decision the Minister notifies both the employer and union of his determination. If the Minister finds in favour of the union the employer is required to recognize the union as the bargaining agent for their employees. The Act states that "such determination shall be final and shall not be enquired into in any court." Failure of the employer to comply with the Minister's ruling is an offence under the Act punishable by fines and/or imprisonment.

BECon's view is that a secret ballot by the bargaining unit, supervised by the Department of Labour, should be done to determine whether the union be granted recognition. The Minister's determination would then be to decide if the secret ballot should take place.

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