The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The union representing Sandals Royal Bahamian’s line staff would have been “converted into a toothless bulldog” had an injunction preventing it from taking strike action been allowed to persist, the Supreme Court has found.

Acting Justice Ian Winder, in a February 24, 2014, ruling, said that despite the all-inclusive resort’s separate Judicial Review challenge to the Bahamas Hotel, Maintenance and Allied Workers Union’s very existence, the union would be “deprived of legal expectation” should it be prevented from taking lawful industrial action while the allegations against it remained unproven.

However, Acting Justice Winder did grant Sandals Royal Bahamian a temporary 21-day injunction preventing strike action while it appeals his verdict to the Court of Appeal, so the union cannot fully celebrate yet.

Sandals Royal Bahamian and its attorneys, Lennox Paton, had argued that any strike action would breach Section 77 of the Industrial Relations Act. This prevents strike action related to a trade dispute, if the matter is before the Industrial Tribunal or Court of Appeal.

The resort has launched a separate Judicial Review action, which is currently before the Court of Appeal, that challenges the “very basis” for the union’s existence.

It argued that permitting the union to follow through with industrial action, following its January 30, 2014, strike vote would “render nugatory” the Judicial Review matter, something the Industrial Relations Act is designed to prevent.

However, in overturning the initial strike-barring injunction he granted Sandals Royal Bahamian on January 31, 2014, Acting Justice Winder said the resort could not use Section 77 as a basis for its continuance.

This was because the Judicial Review action did not originate from a trade dispute filed with the Industrial Tribunal.

Finding that Sandals Royal Bahamian could only apply for an injunction under the Supreme Court Act, Acting Justice Winder noted the resort’s argument that the ‘leave to appeal’ granted over its Judicial Review action showed its “prospects of success” in that matter were good.

However, the judge said he was “not persuaded” by this, as the Court of Appeal had yet to hear the substantive issues raised by the Judicial Review Action.

“I must weigh the potential harm to the plaintiff [Sandals] against the rights of the defendants [the union] and, by extension, the wishes of the bargaining unit (in overwhelming numbers) to exercise their right to withdraw their labour, in accordance with the provisions of the Industrial Relations Act,” Acting Justice Winder said.

“I find that the balance of convenience lies with the defendants.”

Acting Justice Winder said that among the factors influencing his decision was that Sandals Royal Bahamian had not “impugned in any way the validity” of the January 30, 2014, strike vote which saw 187 out of 193 ballots vote in favour of industrial action. The strike vote has since been certified by the Minister of Labour and National Insurance.

And the judge also said that Sandals’ plan to seek another injunction, if it gains further success at the Court of Appeal, would be “oppressive to the members of the bargaining unit, who obviously support the activity of this union in overwhelming numbers”.

“The workers of the union are working under an expired industrial agreement,” Acting Justice Winder said. “The injunction will effectively paralyse the efforts of the union and, by extension, workers whom it represents, to pursue a new contract for an undeterminable period of time.

“The injunction depriving the union of the power to engage in lawful industrial action converts the union into a toothless bulldog.”

Acting Justice Winder suggested that an injunction blocking the Bahamas Hotel, Maintenance and Allied Workers Union from taking industrial action “opens the doors for other competitor unions to intervene and vie for the support of the union’s members”.

While no explicit link was drawn in the judgment, this could be a reference to an earlier chapter in the Sandals saga, which resulted in workers voting on which union they wanted to represent them - the Bahamas Hotel, Maintenance and Allied Workers Union, or the established Bahamas Hotel, Catering and Allied Workers Union.

The former won that contest, and Acting Justice Winder also dismissed Sandals Royal Bahamian’s arguments related to the content of its Judicial Review application.

In that action, the all-inclusive resort is challenging the “very basis” for the Bahamas Hotel, Maintenance and Allied Workers Union’s existence, and seeking a court order that will force the Registrar of Trade Union’s to cancel its registration.

Sandals Royal Bahamian’s case is that the union has breached the Industrial Relations Act on two counts - failing to hold nominations for its executive positions, and the non-publication of its annual returns.

And it is alleging that the Registrar of Trade Unions (the director of labour), despite discovering these irregularities himself and giving the union two months to correct the problems, has failed to take action over the union’s continued non-compliance.

The other thrust of Sandals Royal Bahamian’s action is that the union’s executives were not elected in accordance with the union’s constitution, and it is therefore seeking a Supreme Court declaration that they have no authority to act on its behalf.

Apart from the union’s entire existence being in question, the resort’s position is that it is impossible to negotiate with persons who may not have been lawfully elected, and thus may have no authority to bind the union in an industrial agreement.

However, Acting Justice Winder said his interpretation of the Industrial Relations Act “suggests that the union remains in existence and valid even beyond the revocation of its license.

“The section 15(3) would suggest that the union ought to be treated as validly existing, notwithstanding any alleged irregularity, until a revocation of its license has been gazzetted,” the judge ruled.

“The grant of an injunction restraining the union deprives the union of this legal expectation, whilst these allegations are being considered any not yet proven.”