The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A trade union leader yesterday argued it was “a tragic mistake” for the government to reject making the Industrial Tribunal part of the Supreme Court so it could gain more enforcement “teeth”.

Obie Ferguson, the Trades Union Congress (TUC) leader and a labour attorney, told Tribune Business it was “a travesty” for the Attorney General’s Office to resist what had been a long-established proposal that was backed by both Bahamian employers and employees.

Reiterating that “most, if not all unions”, firmly supported this reform, Mr Ferguson said he and the TUC held “strong views” over the need to make the Tribunal the industrial side of the Supreme Court so that it can enforce verdicts against employers.

He spoke out after a paper on Industrial Tribunal reform, produced by a Legal Advisory Committee (LAC) appointed by the National Tripartite Council, revealed that the Attorney General’s Office had firmly rejected the proposal even though the Free National Movement’s (FNM) 2017 general election manifesto had promised to enact such changes.

The Attorney General’s Office in a November 24, 2020, letter, told the Council: “One of the main reasons for the establishment of the Industrial Tribunal was to provide swift and informal investigations and resolutions into trade disputes with essential and non-essential services.

“In particular, we note section 57(1) of the Industrial Relations Act (Chapter 321). It states that, so far as is possible, the Tribunal should avoid formality in the proceedings. Moreover, the Tribunal is not bound by any laws relating to admissibility of evidence in proceedings before the courts.

“The transfer of these proceedings to a formal division of the Supreme Court would, in our view, impair the accessibility of the Tribunal to the average citizen and therefore run counter to the very reason for its establishment.”

Faced with this rejection, the LAC committee and its members drawn from the private sector, trade unions and legal profession, have proposed two alternative options for strengthening the Industrial Tribunal’s enforcement powers so it can fulfill its mandate to provide swift, inexpensive justice for labour-related disputes and, in so doing, maintain workplace and industrial relations harmony.

These involve either changing the Industrial Relations Act to give the Tribunal the necessary authority or, alternatively, enabling the Tribunal’s verdicts to be registered with the Supreme Court so that victorious employees would not incur the extra time and expense of hiring an attorney to help them enforce the award.

The committee’s paper noted that such costs can often exceed sums awarded to employees by the Industrial Tribunal, which has resulted in numerous employers exploiting its inability to enforce judgments by refusing to pay out awards in the hope/expectation that workers cannot afford to hire an attorney and take the matter to the Supreme Court.

“I think that’s a tragic mistake,” Mr Ferguson told this newspaper of the position taken by the Attorney General’s Office. “The purpose of the Industrial Tribunal was to be cost effective. swift and quick, and to expose the employer and employee to a reasonable cost while bringing finality to the matter... It’s a travesty to say they don’t support it.

“The TUC is on record as supporting it. We have a strong view on that. We support the Industrial Tribunal becoming the industrial side of the Supreme Court. Most unions, if not all unions, support that. The problem we’re having is that matters are referred to the Tribunal, the Tribunal makes a ruling, and it does not have the authority to enforce it or impose conditions on the employer.

“We are not in agreement with the attorney general. We don’t agree with him at all.” Meanwhile, Peter Goudie, the Bahamas Chamber of Commerce and Employers Confederation’s (BCCEC) labour division head, and the National Tripartite Council’s vice-chair, said there were “ways around” the Attorney General’s Office’s rejection in a nod to the report’s alternatives.

Indicating that employers are united with the trade unions/labour on the need for the Industrial Tribunal to have greater authority, he told this newspaper “it makes no sense” for it to be unable to enforce its judgments.

“We’re all in favour,” Mr Goudie said. “We think whatever the Tribunal does should be enforceable. There’s good and bad on both sides, but to me what’s the point of going from the Department of Labour to the Industrial Tribunal if the Tribunal cannot enforce its judgments? It makes no sense to me at all.

“If the Attorney General’s Office is not in favour of them becoming part of the Supreme Court we have ways around that, and at the end of the day they should be able to enforce their rules and judgments. If it’s not enforceable, why waste time going? For employees and most employers, why waste time going to the Industrial Tribunal unless it’s a big settlement?

“To me we’re just creating a big step when the Industrial Tribunal was set up for the likes of the little guy who cannot afford a lawyer. My view is that the Chamber fully supports whatever the National Tripartite Council is trying to do. People have got other things to do other than waste time going somewhere it is not worth it.”

Mr Goudie said the Industrial Tribunal’s elimination of much of its case backlog had also strengthened the Chamber’s desire to support reform. “They used to be years behind, but now they’ve caught up. Let’s get on with justice. That’s the way I feel,” he added.