The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A union leader yesterday conceded that a Court of Appeal ruling affirmed that workers could not strike if their dispute was before the Industrial Tribunal - even if proceedings were not active.

Obie Ferguson, the Trades Union Congress’s (TUC) president, said the appellate court had rejected the argument of three TUC affiliate unions that their cases were “not properly in front of the Tribunal”, thus allowing them to take strike action.

Appeal Court president, Justice Anita Allen, in a ruling backed by her two fellow justices, upheld the Supreme Court ruling that barred three trade unions - all of whom represented government employees - from taking strike/industrial action.

Justice Allen found that the decisions by Shane Gibson, minister of labour and national insurance, to refer the disputes involving the Bahamas Nurses Union (BNU), Bahamas Immigration, Customs and Allied Workers Union (BICAWU) and Bahamas Educators Managerial Union (BEMU) to the Industrial Tribunal were “proper”.

As a result, the Industrial Relations Act’s legal block on strike action related to a dispute before the Industrial Tribunal automatically kicked-in with respect to all three unions.

The Court of Appeal thus backed the initial Supreme Court ruling by Justice Ian Winder, with president Allen concluding: “I am of the view that there was a reasonable basis for apprehending that the [unions] would call a strike, and that their members would go out on strike while the disputes were pending before the Tribunal.”

Mr Ferguson, who represented the three TUC affiliated unions before the Court of Appeal, told Tribune Business it was unlikely his clients would appeal yesterday’s verdict to the London-based Privy Council.

“The Appeal Court found that the lower court had reason to believe the matter was in front of the Industrial Tribunal, and once the matter is in front of the Industrial Tribunal, that was sufficient for the trial judge to make the finding that a strike was, in effect, illegal,” Mr Ferguson said.

“We were of the view that the matter was not properly in front of the Tribunal, because no proceedings were being conducted in front of the Tribunal at the time.

“The letter that was sent to the Tribunal from the Minister, confirming the matter was in front of the Tribunal, weighed very heavily in the court’s decision.”

Analysing the ruling’s impact, Mr Ferguson said it would help employers, workers and unions in understanding how to proceed with the taking of strike votes and strike action.

“In the scheme of things, that works for unions, workers and employers of the land,” the TUC president said. “We now know that if that situation comes up again, we can properly advise clients not to proceed with a strike if the matter is in front of the Industrial Tribunal.”

Justice Winder’s initial September 11, 2014, declaration and injunction, barring any industrial action by the three TUC member unions, came one day after members from two conducted ‘a collaborative strike”.

Some 47 per cent of nurses who were scheduled to work at public health facilities in New Providence, and 14 per cent in the Family Islands, “withdrew their labour” and did not report for work.

And “a considerable amount of Customs officers and Immigration officers” also withdrew their labour, while the BEMU had threatened to do so,

The Government, though, succeeded in persuading Justice Winder to declare the following day that the three unions would be breaching the Industrial Relations Act if they and their members continued strike action while their respective disputes were before the Industrial Tribunal. He reaffirmed his decision via a judgment on October 3 last year.

Mr Ferguson argued that because all three disputes were ‘general disputes’, relating to the creation of new employment terms and conditions, the Industrial Tribunal had no jurisdiction to hear them.

He argued that the “failure or refusal to negotiate in good faith” was a criminal offence under the Industrial Relations Act, and was something the Tribunal and Minister did not have the authority to deal with.

However, Justice Allen found: “There was no evidence before the learned judge that any party to the disputes had failed or refused to conciliate in good faith, or refused to attend a meeting when required to do so by the Minister.

“There was also no evidence of a referral of any such conduct to the Attorney General for criminal prosecution under section 70 of the Act.”

The three unions also claimed that there had been “breaches and instances of non-compliance” with specific trade dispute procedures, and that the legal mechanism for settling the issues had not been exhausted.

However, Justice Allen ruled that Mr Gibson sought to settle each of the disputes “by means of conciliation”.

She added: “There need not be a report of failure by the party reporting the dispute, or a request by such party for referral to the Tribunal.

“It is the sole discretion of the Minister to refer the dispute of there is no settlement within the time allowed, or within any longer time which may be agreed, and in his opinion the public interest requires.

“There is also no obligation on him to refer the matter back to the parties for further negotiations.....”

Justice Allen said the evidence from the Government’s labour consultants/negotiators, Keith Archer and Frank Carter, showed “there was evidence of failure of conciliation”, and that “the referral to the Tribunal was proper” in all three cases.