The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A top trade unionist yesterday backed the Court of Appeal’s decision to overturn a verdict granting every Bahamian worker an extra week’s paid vacation annually, as the “great expense” would have forced many businesses to close.

John Pinder, the newly-elected National Congress of Trade Unions (NCTU) president, told Tribune Business that the initial Industrial Tribunal ruling was “a bit too stiff” and “misinformed” in terms of its understanding of industrial agreements.

He added that the verdict, if it had been allowed to stand, would have dramatically increased private sector costs and put the Government in a “worse financial position”, given that its 20,000-25,000 strong workforce makes it the Bahamas’ largest employer.

Mr Pinder, who is also the Bahamas Public Services Union’s (BPSU) head, may surprise many trade unionists and labour movement members with his reaction, as he said the initial ruling could have made “a huge impact” on company profits.

“I support that ruling,” Mr Pinder said of the Court of Appeal’s decision, exclusively revealed by Tribune Business yesterday. “I was of the view that the Industrial Tribunal ruling was a bit too stiff and misinformed as it relates to industrial agreements.”

The NCTU president said Bahamian industrial agreements, and industrial relations language generally, typically spoke to terms such as ‘work weeks’, ‘work days’, ‘days off’ and ‘hours off’, clearly - and specifically - defining the working week and vacation entitlements.

“I was not surprised. It was a good way to settle the matter,” Mr Pinder said of the Court of Appeal decision. “I believe this is a reasonable conclusion, and am satisfied both sides can live with it.

“It would have been a great expense to a number of businesses, caused some of them to shut down. It would have been a huge impact on their profits, and would have put the Government in a worse financial position by making them retroactively pay workers for an extra week’s holiday over a number of years.”

For once, the business community and trade unions appear to be on the same side - a rarity in the Bahamas.

Dionisio D’Aguilar, the outspoken Superwash president, yesterday agreed that the Court of Appeal’s move to quash that part of the Industrial Tribunal’s verdict was no surprise.

He added that an affirmation of the original ruling would have been “devastating” for the Bahamian economy and private sector, adding that there was “no way the country could have afforded it”.

Mr D’Aguilar, a former Chamber of Commerce president, said the Court of Appeal had essentially reaffirmed the Employment Act’s definition of the week (really the working week), which everyone had understood to be five days.

“I don’t think anybody thought it would go any other way,” he told Tribune Business. “Mr Lockhart [the Tribunal president] brought up something everybody understood to be correct, that the working week was five days, and if there was some confusion in the Act, it was brought to light. The court reaffirmed it, and that is now dead.”

Asked about the implications if the Court of Appeal had ruled the other way, Mr D’Aguilar said: “There was no way the country could have afforded to pay what it would have to pay should the court have revised the definition of a week to be seven days rather than five days.

“The person that would have had to pay the most would have been the biggest employer by far, the Bahamas government, which would have had to give 20,000-25,000 workers an extra week off.

“If you take the private sector, which makes up 150,000-170,000 workers, it would have been devastating. The biggest problem was the unknown - was it retroactive, could it go back to 2001 when the Employment Act came in? It would have been a huge liability for most companies.”

Mr D’Aguilar said that if the ruling had stood, the Government - as the entity with “most to lose” - would likely have rushed back to Parliament with an amendment to the Employment Act fully defining what a ‘week’ is.

“There’s lots of uncertainties out there in the marketplace, and this puts to bed one that we do not have to worry about any more,” he added of the Court of Appeal verdict.

In his August 28 decision, Mr Lockhart had ruled that the term “two weeks” in the Employment Act as it related to vacation pay really meant 14 working days, and ‘three weeks’ meant 21 working days.

As a result, Mr Lockhart found that workers entitled to a minimum of two weeks paid vacation per year were really allowed a minimum of ‘14 working days’ off, and those workers eligible for three weeks paid vacation, under his determination, were really entitled to 21 working days off.

To-date, all Bahamian employers and workers have operated on the basis that the ‘two week’ and ‘three week’ paid vacation legal minimums include the ‘48 hours of rest’. As a result, staff have received only 14 and 21 consecutive days off, respectively.

Mr Lockhart’s came in a ruling over a disputed industrial agreement between the Central Bank of the Bahamas and the Union of Central Bankers.

But Justice Anita Allen, the Appeal Court president, noted that while the Industrial Tribunal had been asked to make a determination on one question, its president “went on to determine something that was not before him”, and “enlarged the issue”.

“There was no reason for him to determine the interpretation of a week in the Employment Act; Article 25 is very clear. Why the president decided to go to the Employment Act and determine what a week is, we don’t know,” said Justice Allen.

Her fellow Justice, Christopher Blackman, said the ruling had generated much concern in the business community.

“There would be no need for concern if he stuck to what he was asked to do,” added Justice Blackman of the Industrial Tribunal president.