The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Supreme Court has “really changed the way strike votes are conducted” through a verdict that quashed the 2013 poll involving Sandals Royal Bahamian workers as illegal.

A December 20, 2013, decision by Justice Milton Evans over last year’s poll conducted by the Bahamas Hotel Maintenance and Allied Workers Union (BHMAWU) sets out a clear path for ensuring future votes comply with the Industrial Relations Act’s Section 20.

In particular, sources close to the matter said the implications of Justice Evans’ ruling were that Bahamian trade unions “can’t ignore the employer any longer” when it came to taking strike votes, as they first have to obtain a lost of all employees from them.

The judgment, which has been obtained by Tribune Business, criticises Shane Gibson, minister of labour and national insurance, and the Department of Labour on this very issue, and for a number of other lapses.

In relation to the May 8, 2013, strike vote conducted by the BHMAWU, Justice Evans said: “In my view there was a failure on the part of the Minister and his officers to appreciate that in a strike vote pursuant to Section 20, the employer has a vested interest in the outcome of the poll, and thus also the integrity of the poll.”

The verdict also recorded Sandals Royal Bahamian’s complaints that Mr Gibson issued the Strike Vote certificate before they met with him to voice their complaints about the process.

The western New Providence resort argued that the Minister, based on the replies received from his permanent secretary, Marco Rolle, had considered “irrelevant matters” in making this decision, such as the threat of legal action by the BHMAWU and other legal battles between the union and Sandals.

Noting the “long and troubled” history between Sandals and the BHMAWU, the judgment also discloses the fears of the resort’s general manager, Patrick Drake, that it would “suffer irreparable harm” if strike action took place.

“He cited the obvious effects which the withdrawal of labour would have on the finances and reputation of the resort, both locally and nationally,” Justice Evans noted.

Setting out how strike votes and polls must be conducted in the Bahamas going forward, he said that in accordance with the Industrial Relations Act, they must start with an authorised union officer giving two days’ notice. This must set out the time, date and venue.

Once the poll notice is received, the responsible minister must supervise the poll whether the union asks for this or not. A Ministry of Labour official must be designated in writing to attend and supervise the poll, something Justice Evans said were “mandatory requirements”.

This official, he added, must then obtain a list of union members - something that must involve both employer and union “if fairness is to prevail”.

Once the list is verified, the poll is to then be held in secrecy “without undue influence from either the union or the employer”.

The supervising officer must then certify that the poll has been held, and the results, to the Minister who advises both the union and employer of the results.

Applying this process to the May 8, 2013, vote at which some 266 members of the 364-strong BHMAWU bargaining unit voted in favour of strike action, Justice Evans said there were “some concerns with the conduct of the poll”.

This was because the supervising officer, Teresa Johnson, was not appointed in writing, meaning that the Minister of Labour and National Insurance violated the Industrial Relations Act. And there was “no evidence” that she tried to confirm the accuracy of the voter list with Sandals Royal Bahamian.

“The Director of Labour in his affidavit speaks to the experience of previous requests being ignored by ‘many employers’,” the judge said.

“This, in my view, is an acknowledgement that the Department recognised the need for a request to be made on ‘many’ occasions, but provides no valid excuse for why it was not done in this case.”

Noting that Bahamian law did not prevent Sandals or any employer from sending a scrutineer to observe a strike vote involving their employees, Justice Evans also rejected the director of labour’s suggestion that their presence would amount to “union busting” and worker intimidation.

“The logic of this statement escapes me, and was not in my view a reasonable basis to refuse the request, as the union officials were present,” Justice Evans said.

“Following the director’s trend of thought could have intimidated members who did not support a strike.”

He also expressed concern that Ms Johnson, the supervising officer, did not turn up until 10.30am, despite the strike vote starting at 9am. And she then extended the poll hours unilaterally to 6pm to compensate for this.

“She provides a reason for her tardiness as a simple assertion of ‘circumstances beyond my control’,” Justice Evans said.

“This, in my view, is totally unacceptable as a response for such a serious infraction.”

And while the 6pm extension may have been done “with noble intention”, Ms Johnson did not have the power to do this.

Justice Evans ended up granting virtually everything Sandals Royal Bahamian and its attorney, Lennox Paton’s Simone Fitzcharles, had been seeking.