Executive Summary: Trade Union And Labour Relations & Industrial Tribunal And Trade Disputes Bills

First Published: 2000-05-08

Proposed Trade Union And Labour Relations Act & Industrial Tribunal And Trade Disputes Act Submitted by:

The Coalition of Private Sector Organisations
    Bahamas Employers Confederation
    Bahamas Chamber of Commerce
    Bahamas Contractors Association
    Bahamas General Insurance Association
    Bahamas Hotel Employers Association
    Bahamas Manufacturers Representatives
    Bahamas Motor Dealers Association
    Bahamas Petroleum Retailers Association
    Bahamas Professional Engineers Association
    Bahamas Professional Photographers Association
    Bahamas Real Estate Association
    Bahamas Ship Owners Association
    Bahamas Soft Drink Bottlers Association
    Bahamas Wholesale Association
    Grand Bahama Chamber of Commerce
    Institute for Economic Freedom
    Nassau Tourism & Development Board

Overview

Since 1992 the economy of The Bahamas has undergone significant transformation due in large measure to the introduction of sound economic policies by the Government of The Bahamas. The improvement in our country-s economy also coincided with sustained growth in the Western economy over an unprecedented period of time.

In this free enterprise environment the results are evident:

  • Investments, foreign and Bahamian, in local businesses have exceeded expectations
  • Despite growth in the labour pool, unemployment is at its lowest level in three decades
  • More Bahamians are owners of businesses than ever before
  • Generally, employees in the private sector are earning more, receiving better benefits and enjoying greater job security than ever before.

In the face of a buoyant and expanding economy the labour-related legislation being proposed by The Government raises serious concerns by the business community about the future economic well-being of our nation. We represent over 1,000 private sector employers and with so much at stake, we strongly believe that should these Bills be legislated in their present form, this will produce serious consequences within the private sector business community. Our sole interest in presenting our views is to ensure that we do not place the economic and social stability of our nation at risk.

A number of areas of concern specific to the two proposed Bills are outlined in detail in two extended papers which are attached to this Executive Summary. These include a review of omissions, corrections and areas requiring clarification. This Executive Summary provides an overview of key areas of concern.

PROPOSED TRADE UNION AND LABOUR RELATIONS ACT, 2000

Key Areas of Concern

1. Recognition of Trade Unions (Part III, Clause 67)
This reduces the threshold for the recognition of a union in a bargaining unit from 50% of employees in the unit to 40%.

We strongly oppose these proposed changes for the following reasons:

  • A 40% rule would allow a minority to impose its will upon the majority of workers in a bargaining unit.
  • The basic principles of democratic rule are violated.
  • Chaos will occur should two opposing unions seek recognition from the same employer.
  • 60% of a bargaining unit who have no interest in being represented by a union should not be forced into such an uncompromising position.
  • Implementation of such a rule will discourage expansion of small and mid-sized businesses, many of which are family owned, because there will be greater vulnerability to organized labour through a minority of workers.

Position: The current requirement of 50% plus one of the bargaining unit for recognition should remain.

2. Information Disclosure Requirements (Part IV, Clause 79 (2)(a); Clause 85)
This requires the employer to disclose all information without which the union would be materially “impeded in carrying on collective bargaining”.

The provision is so vague and so broad as to apply to virtually all financial, cost and operating information that an enterprise manager and shareholders use. This is an infringement on the right to confidentiality of the employer and in many cases to the employer-employee relationship. Furthermore, market forces determine the comparative value of wages and benefits and that information is accessible equally to union, employers and government. The general financial health of the company should determine its ability to compensate above and beyond what the market commands and that information should be confidential. Likewise, while Clause 85 would require trade unions to make a copy of their rules available upon request, it is not clear if this applies to the union-s constitution. Attempts by employers to secure this in the past have been unsuccessful. This document is often critical to an examination process.

Position: The law should state that: (1) information required from an employer should be restricted to the compensation paid in the most recent year to union members in the bargaining unit and the most recently publicly published annual financial statements; (2) unions should be required to provide a copy of their constitution upon request by the employer and; (3) a reasonable level of fine or penalty should be applicable to both the union and the employer for failure to comply.

3. Compulsory Negotiations with Penalty (Part III, Clause 67 (3))
This section states that an employer who fails or refuses to enter into negotiations within two months after a determination by the Minister that a bargaining agent be recognized, is guilty of an offence and liable to a fine of $50,000.

There are two issues involved: (1) The employer and the union should not lose the right to use a strike or lockout as part of the collective bargaining process. The strike or lockout, or the threat of a lockout or strike, tends to narrow the degree of disagreement between employer and union in the collective bargaining process…whereas their absence widens the degree of disagreement. (2) A penalty of $50,000 for a failure to negotiate raises the cost to the employer of exercising his right to appeal an action of the Government that can affect his bargaining strategy. A penalty of such magnitude could destroy a business.

Position: The employer and the union should be free to negotiate collectively and this should include the right to use a lockout or strike as part of the collective bargaining process without penalty.

4. Reducing Agency Shop From 60% to 50% (Clause 73 (1))
This section reduces the percentage of the bargaining unit which can impose agency shop fees upon non-union employees.

The rights of the employee are clearly infringed upon in this instance. Non-union employees in a bargaining unit may only be in a bargaining unit in the first place against their will. This is wrong and abusive. Even though Subclause (3) makes it possible for the agency shop position to be amended or revoked, we still consider it divisive and unfair. This section also requires the employer to deduct dues from the paychecks of workers who are union members and in the case of agency shop 90% of the union dues from non-union employees. Normally an employer cannot make deductions for a non-governmental purpose without prior written consent of the employee.

Position: While we object to the principle of agency shop, which may prove to be unconstitutional, at the minimum the present threshold of 60 percent should remain. Further, union dues should not be deducted from an employee-s wages without the prior consent of both the employee and the employer.

5. Bargaining Unit Composition and the List of Employees (Clause 68 (5)(a)(b), (8))
These clauses contain a number of steps that the Minister may employ to make a determination on the composition of the bargaining unit. In addition, employers who fail to provide the Minister with a list of employees within fourteen days of request may be fined $10,000 and $1,000 for each day in which he fails to comply.

At the present time there may be a disagreement as to who is in the bargaining unit. If there is a disagreement between the employer and the union that is not reconciled by the parties, then the Minister of Labour has the authority to determine this and levy a penalty on the employer for a failure to provide information that he requires. As presented, this section opens up the opportunity for charges by all parties of unfair or politicized decisions by the Minister with regard to the composition and could undermine the negotiation process. With regard to the proposed fines, these are extremely excessive.

Position: We suggest the following: (1) The employer needs to be involved in the selection process to determine the composition of a fair bargaining unit. To that end, the employer should provide a list of employees and their categories of responsibility and be provided an opportunity to present his recommendations to the Minister. (2) Simultaneously, the union should provide a list of all union members in the bargaining unit. (3) The fines need to be reduced to a reasonable level and should be applicable to both the union and employers for failure to provide requested information. In fact, the fines should be limited to the amount prescribed in Clause 91. (4) Once agreement has been reached on the composition of the bargaining unit, the Minister should by supervised secret ballot allow the employees in the bargaining unit to decide whether or not they wish to be represented by the union.

PROPOSED INDUSTRIAL TRIBUNAL AND TRADE DISPUTES ACT, 2000

Key Areas of Concern

1. Limited Appeal from Industrial Tribunal (Part II, Clause 13(1))
Related to a judgment of the Tribunal, the right of appeal to the Court of Appeal is limited to “a point of law alone” and the appeal can be made only if a Justice of that Court certifies that point of law is one of “general public interest”.

This provision very highly restricts the right of appeal and, in affect, makes the judgments of the Tribunal compulsory and binding.

Position: The right of appeal should be no more restricted than would be the case for any dispute not falling within the definition of a “trade dispute”.

2. Directive to Set Wages and Benefits (Part II, Clause 7 (2)(C))
This section requires the Tribunal to make its awards to “assure the employees a fair share of any increases in productivity in any enterprise.”

This requires the Tribunal to determine the level of wages and fringe benefits based on their judgment that the employee is provided with a “fair share”.

Position: Such discretion should not be given to the Tribunal and should be deleted from the Bill.

PLEASE NOTE:
DETAILED ANALYSIS AND REVIEW OF THE PROPOSED LEGISLATION ACCOMPANIES THIS EXECUTIVE SUMMARY.

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