The Tribune

By NATARIO McKENZIE

Tribune Business Reporter

nmckenzie@tribunemedia.net

A trade union leader said yesterday that “the jury is still out” on whether the Government’s recent union-saving had truly “cured the mischief”, as one attorney confirmed he had filed for a Judicial Review over the issue.

Keod Smith told Tribune Business that he had filed the action on behalf of six members of the Bahamas Hotel, Catering & Allied Workers Union (BHCAWU).

“They work in the industry, are vested with pension rights and other benefits, and when it was mentioned that the union was not registered they became very concerned,” Mr Smith said.

“The Registrar of Trade Unions had a statutory duty to ensure that unions are registered under the Act and are issued certificate of registrations. The Bahamas Hotel, Catering and Workers Union, which existed prior to 1971, is not the body that we know as the Bahamas Hotel, Catering and Allied Workers Union today.”

Mr Smith added: “The legislation just passed has no time period in it, nor does it indicate which circumstances it is supposed to affect. We don’t know if it includes industrial agreements based on some of the words it has in it.

“There are a lot of questions that must be answered coming out of this Act. We are saying that the BHCAWU, for the purposes of the Act, does not exist. It was not issued a certificate of registration, so when and until that is done, all actions of the union as we know it today should cease.

“The Registrar should compel that body to go through the registration process and do other things such as an audit. THE BHCAWU must show a certificate of registration under the old repealed Act to be captured by these amendments,” Mr Smith argued.

“Notwithstanding the passage of this Act, there is a huge question as to whether it can fix what it intends to fix. We are saying that it does not. The recent amendments do not hit the mark. The BHCAWU and the BHEA, neither of the two parties exist, but my clients do exist and they pay real money every week. This is not about the union; it’s about the people.” The Judicial Review is set for this Friday before acting Justice Ian Winder.

Meanwhile, Trade Union Congress (TUC) president, Obie Ferguson, told Tribune Business he was aware of the action.

“I maintain the position that I hope that the mischief that the Government intended to cure was done. For the sake of the Government and the union, I hope so,” said Mr Ferguson.

“The jury is out on it. I had warned the previous government and the present one about this issue. They didn’t take my advice, but last month they were singing a different tune.

“I saw the Minister mention 11 unions being affected by this issue. I hope that the defect was cured for the sake of the members. I am aware that there is another matter that has been filed in court in relation to the issue of registration.”

“I’m very hopeful,” said Mr Ferguson, “So many workers would be affected. It is my sincere hope that the the mischief they intended to cure was done. The unions want to ensure that the documents they are relying on have legal effect, and that it’s not the case where they are not worth the paper they are written on. It is extremely important that Bahamian workers are protected.”

 The issue of union registration was at the centre of a dispute over the recognition of the Bahamas Hotel, Catering and Allied Workers Union (BHCAWU) as the bargaining agent for non-managerial workers at the Coral Sands Resort on Harbour Island.

Its parent, CMK Holdings, had filed a Judicial Review alleging that the union had never amended its constitution to comply with the Industrial Relations Act 1971, thus rendering it as an entity that ceased to exist.  

Justice Christopher Blackman, in a majority decision agreed to by Court of Appeal president, Anita Allen, said: “In all the circumstances I am ineluctably compelled to conclude that the union failed to comply with the transitional provisions of the Industrial Relations Act (IRA), and in the premises, I would set aside the judgment of the learned Chief Justice and quash the determination by the first respondent made on February 21, 2012, granting recognition to the second respondent (BHCAWU).”

He added: “Subsequent to the hearing of the appeal, and as a direct consequence of certain observations made to the court during the hearing of the appeal, legislation was enacted by Parliament validating the non-compliance by unions with the requirements of the Industrial Relations Act. In the circumstances, I am obliged to take judicial notice of the passage of such legislation and consequently decline to grant the declarations sought.”

Labour Minister Shane Gibson told Parliament last month that the Industrial Relations (Validation of Trade Unions) 2014 Amendment Bill was “absolutely necessary” and had been brought to “protect the rights of thousands of Bahamian workers and the trade unions that represent their interests and welfare”.

Mr Gibson said the Government  had moved to ensure that a significant number of trade union workers, who may have not followed specific procedural requirements from as far back as 1970, some 45 years ago, were not disenfranchised, and their terms and conditions of employment not negatively impacted.

He added that prior to the Industrial Relations Act, all existing unions were required by law to amend their constitutions to make them compliant with the new Act, and be certified as having become compliant by the chief industrial officer (who later became the director of labour).    

Other unions affected by the issue included the Bahamas Musicians & Entertainers Union (BMEU); the Bahamas Electrical Workers Union (BEWU); Airport Airline & Allied Workers Union (AAAWU; Bahamas Union of Teachers (BUT); Bahamas Public Services Union (BPSU); Bahamas Islands Airline Pilots Association, now Bahamas Professional Pilots Association (BPAPA); Bahamas Construction & Building Trade Union; The United Brotherhood of Longshoremen; Bahamas Photographers Association; Hotel Employers’ Association of the Bahamas, now Bahamas Hotel Employers’ Associations (BHEA); and the Bahamas Contractors Association.