The Tribune

By NEIL HARTNELL

Tribune Business Editor

BAHAMASAIR'S US-based middle management staff cannot be included in the Public Managers Union's (PMU) bargaining unit because the Industrial Relations Act does not have "extra-territorial effect", the Chief Justice has ruled.

Sir Michael Barnett, in his verdict on the dispute between the national flag carrier and the union over which employees could be included in the PMU's bargaining unit, found that Bahamasair's Florida-based middle management staff could be denied "rights" they were entitled to under that state's - and US federal laws - if they were treated thus.

His February 24, 2012, ruling detailed the long-running dispute between the PMU and the airline, which stemmed from then-minister of labour and immigration, Vincent Peet's, decision on October 15, 2004, to recognise the union as the bargaining agent for Bahamasair's middle management employees based on New Providence.

Sir Michael said it appeared "to be a conscious decision of the ministers to impose the geographical location", and no mention was made of the categories of workers to be included in the PMU bargaining unit.

The PMU sought on February 17, 2005, to have the "New Providence" restriction via a letter to the director of labour, who on March 1, 2005, duly amended the Certificate of Recognition by eliminating the reference to New Providence. This was not appealed by Bahamasair.

Bahamasair then wrote to Mr Peet on June 22, 2005, saying it had "reached an impasse" with the PMU over which management positions were to be excluded from the bargaining unit. The airline said that while mid-level managers could participate in the unit, senior managers who reported to the Board or its senior executives should not be included, and specified who these 'senior managers' were.

The minister largely acceded to Bahamasair's request on specific job categories that should be excluded from the PMU bargaining unit. Nothing else arose until March 8, 2007, when the PMU informed Mr Peet of the trade dispute with Bahamasair, and told him that the airline was insisting that Florida-based middle managers could not be part of the bargaining unit.

The letter said: "Minister Peet, there is only one Bahamasair Holding that employs Bahamians and other nationals; it is our submission that as long as they fall within our bargaining unit we are entitled to represent them......

"Our members in Florida are being marginalised and discriminated against by the same employer, and thus must be afforded the same work conditions and compensation (contractual). After all, they are all managers, albeit in different geographical locations. The same Human Resources Department in Nassau disciplines and compensates them in Florida. They answer to the same management as that in Nassau."

No reply was received from the minister, and shortly afterwards the Free National Movement (FNM) was elected to office. The PMU thus sought declarations that the Florida-based middle managers be included in the bargaining unit; that Bahamasair must enter into industrial negotiations with the PMU "within a reasonable time"; and that failing to do so would be a criminal offence.

While refusing Bahamasair's attempt to strike out the union's action, Sir Michael declined to declare that Florida-based middle managers should be included in the bargaining unit, finding that the Industrial Relations Act's scope was limited to the Bahamas and persons within this country.

"There is nothing in the Act which suggests that it was intended to have extra-territorial effect," Sir Michael ruled. "Unless a statute is expressed to have extra-territorial effect, a court would be loathe to find that Parliament intended it to have an effect on persons outside its jurisdiction.

"The determination of a union as the bargaining agent for employees has significant legal consequences under the Act. To hold that such a determination affected employees outside the Bahamas may operate to their prejudice, as it may well curtail rights given to employees by the laws of the jurisdiction where they reside, and to whose laws they are subject and to which they have the benefit.

"There is nothing which compels me to the conclusion that the Act intended to apply outside the Bahamas, and I am not prepared to hold that a determination made under the Act was intended to affect persons outside the Bahamas."

Sir Michael said it was unnecessary to make a declaration in relation to the PMU's second issue, as it was dealt with by the Industrial Relations Act.

And he refused to make the final declaration sought, too, saying: "It would be dangerous for a court in a civil action brought by Originating Summons to declare that a person has committed a criminal offence. The standard of proof is completely different."