Detailed Review: Trade Union And Labour Relations Bill

First Published: 2000-05-08

Submitted by The Coalition of Private Sector Organisations

 

PART 1 — Preliminary

Clause 1 – Short title and commencement.

No comment.

Clause 2 (1) – Interpretation

We would suggest amending the definition of “bargaining agent” to mean a trade union that is entitled to act on behalf of employees by virtue of having obtained more than fifty (50%) percent of all the employees of a bargaining unit in a secret ballot participated in by the employees comprising the bargaining unit

  1. in collective bargaining; or
  2. in connection with an industrial agreement with their employer.

PART II – Registration and Control of Trade Unions

Clause 7 (2) – Provisions relating to registration

In the seventh line of Sub-clause (2) certain words appear to have been left out. They are “that the Constitution has been registered and return that copy”. The missing words appear in the current Industrial Relations Act and there should be no harm in supplying those missing words.

Clause 8 (1) (d) – Grounds of refusal to register

Similarly, this has been drafted by the removal of certain words following in the body of the paragraphs Clause 9, Clause 10 and Clause 20. The missing words are those which appear in parenthesis below:

  1. of Clause 9 (which relates to the matters to be provided for in such constitution);
  2. of Clause 10 (which relates to misleading names);
  3. of Clause 20 (which relates to the taking of secret ballots).

Clause 25 (2) – Property to be vested in trustees

In the third line of Sub-clause (2) there appears the word “diligence”; this appears to be inappropriate and we would suggest that that word be deleted and the appropriate word inserted in its place. The whole of Sub-clause (2) is said in Sub-clause (3) to have effect subject to Clause 31.

Clause 31(2) (a) and (b) – Restriction on enforcement

We believe that the wording used in those paragraphs are capable of causing some confusion as to what is actually meant. If our interpretation is correct, we think that the problem arises because of the word “otherwise” and the consequent amendment should be to delete from both paragraphs “otherwise than” and substitute therefor the word “not”.

Clause 35 – Annual return

This Clause contains little in the way of punitive measures for failure to comply with rules of disclosure and in the absence of such measures we doubt whether the hoped for improvements will in fact materialize.

Clause 35 (iii) (b)

We would suggest the following addition of words after the word “salary” be inserted, “and other emoluments and benefits”.

Clause 47 (6) – Investigations by inspectors

We have one reservation which we would like to record and that is the possible unconstitutionality of Sub-clause 6. We applaud the government-s apparent intention to pursue diligently the duty of disclosure in respect of trade unions and their leaders. While these matters are strictly speaking not the direct concern of employers, we feel that as corporate citizens and as individual citizens of our country we have a legitimate interest in seeing that such transparency is effected and most of all is effective; we also feel that as employers we have duties toward our employees both union members and non-union members, both those who contribute union dues to unions and those who are compelled by law to pay agency shop fees even though they are not union members to see that their hard earned money is used properly as well as wisely and lawfully.

Clause 62(2) – Repudiation by union of certain acts

This is in our view sufficiently compelling given the importance of the subject matter. The duties of a trade union we believe in circumstances where a repudiation of industrial action is being promulgated or effected should not be left for the union to give notice to the employer as is stated in paragraph (b) “the union must do its best…. without delay”. The duty of the union should be more compelling than that. It should be that they must immediately, concurrently with the requirement of paragraph (a), be given to the employer; that is to say, “without delay”. We would therefore ask for that amendment to be made.

Clause 62 (6)(a)

We see no reason why the only type of contract which should be protected from unlawful union interference should be so-called “commercial” contracts. Excluded from this definition would be contracts of employment or contracts under which a person agrees to perform personal services. This is wrong and must be corrected for the reason that if there is any one specie of contract which is likely to be interfered with by unlawful industrial action it must be industrial agreements and contracts of employment and therefore to exclude them is wrong in principle and wrong as a practical measure. We ask for those contracts to be included in the term “commercial contract”.

Clause 65 – Control of foreign connections of unions and federations

We welcome the retention of the prohibition which presently exists against trade unions entering into associations with foreign trade unions unless the Minister-s license is first obtained.

PART III – Recognition of Trade Unions

Clause 67 (1) – Duty of employers to recognize and treat with unions.

In this clause the “recognition” threshold has been reduced from more than fifty (50%) percent to more than forty (40%) percent of members in good standing of a bargaining unit. Also along these lines is a raising of the number of employees required to apply for revocation for termination of a bargaining agent from twenty-five (25%) percent to forty (40%) percent of the members of a bargaining unit and the reduction for a successful vote for agency shop fees from more than sixty (60%) percent to fifty (50%) percent is also provided for. The latter two points are in Clause 69 and Clause 73 respectively.

These proposed changes would suggest that in the face of unions being unable to capture the support of employees in the workplace, particularly in the private sector, the Government is attempting to lower its barrier to acceptance so that a trade union can now succeed where it could not do so before.

We strongly oppose the reduction of the -recognition- threshold from more than fifty percent (50%) to more than forty percent (40%) of members in good standing of a bargaining unit. Here are the reasons for such opposition:

  • 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.

In addition to our opposition to this Clause as stated above, difficulty may arise when there are two unions contending for recognition as bargaining agent where the 40% rule is in effect. It seems to us quite possible that in a ballot, the two contending unions can each obtain more than forty percent (40%) of the votes and under the present language of the Bill they must both be recognized because there is no provision which would allow the Minister in such a case to select one of the two unions as bargaining agent. We would therefore suggest that such power be given to the Minister to declare as the winner the union which in those circumstances obtains the larger number of votes.

Clause 67 (3)

With regard to this section, we find this proposition oppressive and offensive. This sub-clause provides that any employer who fails or refuses to treat or enter into negotiations in good faith within two (2) months from receipt of the certificate of recognition issued by the Minister and after being invited by the bargaining agent to do so is to be guilty of an offence and upon conviction can be fined fifty-thousand dollars ($50,000).

We do not accept that there should be any penalty but in this clause the penalty is directed only at employers. This cannot be fair. In this regard the union should be treated identically to the employer.

For example, when a union makes a claim for recognition which cannot be maintained but in the process puts an employer to a great deal of expanse and disrupts his business, should not that union be penalized for making a false claim. In this way the Government will clearly be seen to be dealing with the parties in an even-handed manner. The threat of penalty may also prevent some unions from making false or not well-founded claims which they now appear to make. We object to a penalty being imposed and suggest that a mechanism for equal accountability be established.

Furthermore, the penalty for 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.

Clause 67(4)

The language in this subclause appears in the current law but there has been the addition of a provision which states that any decision by the Minister as to whether someone is a member of a bargaining unit or not is final and shall not be appealed against and if the decision is questioned in any court it shall remain in force until a contrary determination is made.

One difficulty with this provision is that under Sub-clause (3) once the Minister has decided the question of recognition, an employer will be required to enter into negotiations as set out there and if he fails to do so he opens himself up to prosecution which can result in fine being levied of Fifty thousand ($50,000) dollars. it is quite unlikely that any court will decide an issue of this type which an employer may bring in less than two months and therefore the employer is being placed in a dilemma where he is damned if he does and damned if he does not. This is not good business and this legislation should not be passed so as to put any party in a dilemma of that type; it has the potential in effect to deny a person with a legitimate grievance due access to the courts.

Clause 68 – Claims for recognition as bargaining agent

This Clause contains a number of steps which the Minister may employ to make a determination on the question of the bargaining agent. The first of these is that the Minister is specifically authorised “to determine the appropriate bargaining unit”.

We would suggest that the wording in this paragraph be slightly re-drafted in order to make it very clear that the Minister-s duty is not to accept without supportable evidence the bargaining unit claimed by the union but that the Minister is expected to exercise a discretion to determine the “appropriate” bargaining unit upon hearing representations by both parties as to what the appropriate bargaining unit should be.

This is and can well be a very important function of the Minister. In many cases, questions often arise concerning whether security staff of an undertaking should be included in the bargaining unit and questions arise as well regarding other members of the bargaining unit such as persons who hold confidential positions such as managers- confidential secretaries, administrative assistants, accounting staff and so on. These questions are now left open and there is of course a certain practice among the more experienced trade unions to exclude some of these positions by agreement with the employer but many unions do not do so.

We do not believe that important questions such as these should be left to practise or even good intentions but should rather be spelled out in clear statutory language.

We believe unquestionably that the majority position in a claim for recognition need be retained. We therefore urge Government to adopt the only safe and democratic way in determining the questions of recognition and that is to allow all employees in the bargaining unit to decide by secret ballot whether or not they wish to be represented by the union seeking recognition. We are in effect, proposing that the present system of determining questions of recognition be scrapped and let the issue be decided by the affected employees.

Clause 68 (8)

In Clause 68 (8) another offensive penalty is prescribed against employers only and this should as a matter of principle be removed.

This sub-clause provides that an employer who is requested by the Minister to provide a list of employees for the purpose of the Minister making a determination and fails to provide it to the Minister on time, shall be subject to a fine not exceeding Ten Thousand ($10,000.00) Dollars and in addition to that fine, there shall be a further fine of One Thousand ($1,000.00) Dollars for each day where the employer fails to comply with the request. We feel strongly that unions should be subject to the same penalty as employers although in our view the penalty outlined in Clause 91 of the Bill would be adequate.

We have no problem advocating appropriate punishment for wrongdoers where it is deserved but we find it repugnant for legislation to single out one party to a transaction and threaten only that party to a penalty.

We know quite well that when letters requesting such information is sent out by the Department of Labour they are sent not only to employers but also to unions; it therefore seems to us that fair treatment would dictate that if in these circumstances a penalty is to be established against an employer an identical penalty should be established against unions. Failure to do so will be seen by many employers as an attempt by Government to protect trade unions at the expense, especially, of the private sector employers, the one sector of the economy which is the true creator of wealth in this and every other free market community.

Clause 69 (1) – Application to Minister in respect of recognition

This Clause deals with applications to the Minister by employees in the bargaining unit to make an application for revocation of a determination in favour of a union as Bargaining agent. In the current law the number of employees who are required to sign an effective application of that type is twenty-five percent of the Bargaining unit but in this clause the figure has been raised to forty percent thus making the job of the employees more difficult to accomplish.

We feel that this is a denial of the right of the workers of this country and can only cause more frustration of working people who may not possess the means to object to this particular provision of the Act. At the very least, the current position of twenty-five percent (25%) requirement should be retained.

Part IV – Industrial Agreements and Other Agreements

Clause 73 (1) – Further provisions to be contained in industrial agreements

This Clause addresses the issue of agency shop. The present law is that for a union to be entitled to receive agency shop fees from non-union employees the union must win a ballot of all members of the bargaining unit by a majority of more than sixty percent. This Bill now reduces that sixty percent (60%) to fifty percent (50%). This is yet another matter which can be seen to be undoubtedly protective of a trade union. It prejudices non-union employees in a Bargaining unit who, if this Bill becomes law, may only be in a bargaining unit in the first place by the will of the minority and not the majority. We feel this is wrong and abusive of the rights of workers and should be increased to at least the sixty percent which is the current position or perhaps higher.

This Clause also requires the employer to deduct dues from the paychecks of workers who are union members and in the case of agency shop ninety percent (90%) of the union dues from non-union employees. Normally an employer cannot make deductions for any non-governmental purposes. We recommend that this deduction only be made with the prior written approval of both the employer and the employee.

Clause 79 – General duty of employers to disclose information

Under the provisions of this Clause, an employer shall for the purposes of collective bargaining be required to disclose all manner of information about his business and its affairs to a union. This Clause, as presently drafted is unacceptable. 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. 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.

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; (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 defined bargaining unit to decide whether or not they wish to be represented by the union.

Part V – Maintenance of Law and Order and Protection of Private Rights

Clause 85 – Duty to supply copy of rules

It is not clear whether a copy of the union rules, as referred to in this Clause, means a copy of the union-s constitution. The first question which an employer should ask when he receives a claim from a union for recognition is: does this union possess the legal right to make the claim it is making? The answer to such a question can only be found in the Union-s constitution so it becomes very important for the employer to have access to such a document. We therefore suggest that this Clause should be amended to include access to the Union-s constitution.

Clause 91 – Offences not otherwise provided for

There are numerous examples throughout the Bill where failure to observe its provisions are stated as offences, but no penalties are prescribed. This Clause provides a general penalty for all such failures and it says that any person guilty of an offence under this Act or regulations for which no penalty is provided shall be liable on summary conviction to a fine of $3,000. We question the need to include the imposition of criminal sanctions for failing to comply with the provisions of the Bill There is a noticeable disparity in the severity between the aforementioned penalty and those which are visited upon employers. This disparity must be remedied.

FIRST SCHEDULE, PART 2
Rules for the Registration of Trade Unions of Employees

This Schedule appears to have been radically altered from the Schedule which appears in the current law. Taken together with Clause 84, the implication is that what is taking place is that the notorious Convention 87 is being enshrined in Bahamian Statutory Law. Among the provisions of Convention 87 is the principle that employees have a right to join or associate with any trade union which they wish. We urge the legislators to give further consideration and conduct a careful study of this Clause which could, in its present form, cause unforeseen and untold problems in the fragile economy of this country.

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