The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Bahamas needs “a complete overhaul” of its labour dispute resolution processes, a top union leader has argued, while backing US government concerns over weak enforcement of solutions to these matters.

Obie Ferguson, president of the Trades Union Congress (TUC) and a well-known labour attorney, also agreed with a US State Department assessment that cases before the Industrial Tribunal were suffering from a “three-year backlog”.

Arguing that such delays were causing “uneasiness” and disharmony in the workplace, Mr Ferguson urged the Government to make convert the Industrial Tribunal from a standalone body into “the industrial arm of the Supreme Court”, thus enabling its judgments to be enforced.

“The major problem we have with these matters is the timing,” Mr Ferguson told Tribune Business. “A labour dispute cycle should not take more than three-four months to have the problem conciliated, have the matter heard, and have the matter determined.

“But it is taking anywhere from one to three years. It creates a serious problem between the workers, the employers and the unions.

“It as bad for the employers as it is for the employee, as both want to know the matter is disposed of so they can get on with whatever they are doing.”

Protracted labour disputes, and the associated uncertainty, meant it was difficult for Bahamian companies to make budgetary provisions for any dispute-related compensation they may have to pay, Mr Ferguson added.

He was speaking after the US State Department, in its annual assessment of workers’ rights in the Bahamas, found that “enforcement of government remedies and penalties was weak” in relation to labour disputes.

“During the year the Ministry of Labour and Social Development received more than 1,000 labour violation complaints, and the ministry’s 11 officers resolved the majority of these cases in a timely manner,” the US report said.

Noting that labour disputes were only transferred to the Industrial Tribunal if the Labour Department failed to resolve them, the US report added: “The Tribunal’s decision is final and can be appealed in court only on a strict question of law.

“Authorities reported a backlog of cases up to three years at the Tribunal.”

Mr Ferguson confirmed the backlog length to Tribune Business, saying it stemmed from administrative flaws.

Some 14 days were granted from the filing of a labour dispute for it to be resolved at the Department of Labour, the TUC president added. If this did not happen, the parties could agree to give it another 14 days.

If no progress was made here, the Minister of Labour can then refer the matter to the Industrial Tribunal.

The problem, Mr Ferguson said, was the time taken at all these stages. “The process takes six months, sometimes a year, sometimes even longer before it goes to the Industrial Tribunal,” he told Tribune Business.

“It creates uneasiness in the workplace, and that’s simply because there is no process in place to cause the parties to negotiate in good faith.

“There needs to be a complete overhaul of the labour conciliation, mediation and resolution process.”

Mr Ferguson said the Bahamas’ labour dispute resolution process was ill-matched to the expectations of major international investors, such as the likes of Baha Mar, and what they were accustomed to dealing with in other countries.

“What I have also asked the Government to do is amend the law so that the Industrial Tribunal becomes the industrial side of the Supreme Court,” he told Tribune Business.

“There are standard rules of procedure required in the Supreme Court. Those rules would be applied to the Industrial Tribunal and, if that is done, that would have a lot to do, in my humble opinion, with the efficiency of how disputes are handled.”

The TUC president said the Industrial Tribunal currently had “no means of enforcing judgments which, in my view, defeats the whole purpose.

“It’s a deficiency, and unless we come to grips with it, we will have these unnecessary strikes. When people are frustrated, they’ll resort to things you don’t want them to resort to,” Mr Ferguson added.

As for the inability to enforce sanctions and penalties relating to labour disputes, Mr Ferguson said Section 41 of the Industrial Relations treated as a criminal offence an employer’s failure to negotiate an industrial agreement with a trade union when it was “abundantly clear” that the majority of workers wanted to be represented by it.

He said this situation had arisen at Sandals Royal Bahamian, and with the Customs and Education Managers’ unions.

“I had to go to court to get recognition, even though the majority of workers are members of the bargaining unit,” Mr Ferguson said.

“It is a criminal offence if an employer fails to treat with the union. There is the provision, but there is no enforcement of it, and consequently what you have is what happened with Sandals, and we had to go all the way to the Privy Council.”

Meanwhile, the US State Department also said the Bahamas failed to “consistently enforce the law” with regard to compulsory, or forced, labour.

While no forced labour cases were reported in 2012, the report added that non-governmental organisations (NGOs) were arguing that “exploited workers often did not report their circumstances to government officials for fear of deportation and lack of education about available resources”.

The US State Department added: “Undocumented migrants were vulnerable to forced labour, especially in domestic servitude and in the agriculture sector.

“There were reports that non-citizen labourers, most often of Haitian origin, were vulnerable to forced labour and suffered abuses at the hands of their employers, who were responsible for endorsing their work permits on an annual basis.

“Specifically, local sources indicated that employers reportedly obtained $1,000 work permits for non-citizen employees, and then required them to “work off” the permit fee over the course of their employment or otherwise risk losing the permit and their ability to work legally within the country.”