The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The National Tripartite Council may have breached its own founding Act by failing to get “unanimous” agreement on the controversial labour law reforms before submitting its recommendations to the Government, Tribune Business was told yesterday.

Peter Goudie, one of the private sector’s representatives on the Council, revealed to Tribune Business that the recommendations forwarded to Shane Gibson, minister of labour, had “not been unanimously” agreed.

He agreed that this appeared to violate the National Tripartite Council Act’s section three, sub-section one, clauses a) and b), which mandate that any recommendations it submits to the Government must by “unanimously agreed” by the three stakeholders represented - the Government, private sector and the trade unions (labour) - in a valid quorum.

“All I can tell you is that recommendations have been made to the Minister, but they’re not necessarily unanimous,” Mr Goudie told Tribune Business of the proposed amendments to the Employment Act and Industrial Relations Act. “That’s all I can tell you.”

Despite declining to go into detail on the precise nature of the recommendations submitted to the Government, Mr Goudie agreed under questioning from Tribune Business that the Council may have breached its own Act on the ‘unanimity’ issue.

“That’s true,” he replied. “It should be [unanimous], but it hasn’t happened.”

Mr Goudie’s revelations are likely to be especially concerning for the Bahamian private sector given the implications of the proposed labour law amendments for the way business is conducted, especially when it comes to redundancy pay and associated costs, plus workplace and trade union relations.

The proposed changes to the Employment Act and Industrial Relations Act have already run into strong employer resistance (see other article on Page 1B), given the increased costs and bureaucracy they threaten to impose in a difficult economic environment.

Tribune Business has seen evidence suggesting that the proposed reforms were largely drawn up by the trade unions, in the aftermath of the Sandals terminations and Melia Nassau Beach Resort dispute.

Therefore, the submission of recommendations in the absence of unanimity is likely to heighten fears among employers that the Government and trade unions are determined to ram the reforms through prior to the general election regardless of the consequences.

Concerns that the National Tripartite Council appears to have breached the ‘unanimity’ clause in its own founding Act were also detailed in a December 20, 2016, letter written by Chamber of Commerce (BCCEC) chief executive, Edison Sumner.

The letter, sent to Robert Farquharson, director of labour, in his capacity as chairman of the National Tripartite Council (NTC), expresses concern about a draft December 15, 2016, document that was sent by the Council to Alphaeus Forbes, acting permanent secretary in the Ministry of Labour and National Insurance.

“Based on our review, we note that the recommendations outlined in the letter have not been ratified unanimously by the NTC,” Mr Sumner wrote.

“We fully support that one of the functions of the NTC is to ‘review current labour legislation and make recommendations for amendment or codification of the same’. However, this function must be exercised within the express parameters of the Statute.

Mr Sumner then drew attention to section three in the Act’s schedule, which deals with the issue of a valid ‘quorum’ on the National Tripartite Council.

The Act states that a ‘quorum’ can only be formed on the Council when five members are present, with at least one representing each “social partner” - meaning the Government, trade unions and the private sector.

And the law also requires that all National Tripartite Council decisions “be unanimous decisions of the executive members present and constituting a quorum”.

Setting out the Chamber, and private sector’s, previous concerns, Mr Sumner wrote on December 20: “Accordingly, any decisions from the NTC which are not unanimously agreed by the executive members, constituting a quorum in any meeting, will be ultra vires to the powers derived under the National Tripartite Council Act (the Act).

“The recommendations outlined in the missive forwarded from the NTC were not unanimously agreed, as these were not supported by the private sector representatives.

“Therefore, it is the BCCEC’s position that the NTC will be acting in contravention of the Act, and ultra vires to the express powers contained therein, if the draft letter is submitted as recommendations of the NTC.”

Mr Sumner said the Chamber was obliged to inform Mr Forbes and Mr Gibson, as minister of labour and national insurance, that the recommendations originated from “specific social partners” - likely the trade unions and, possibly, the Government’s Council representatives.

He emphasised that the Chamber and private sector wanted to maintain “a harmonious relationship” with the National Tripartite Council, and called for negotiations between all sides over the proposed labour law reforms to continue.

“To date, the energies spent by all social partners of the NTC have achieved consensus on several matters,” Mr Sumner said. “Accordingly, the private sector representatives are of the view that continued active negotiations among the relevant parties will provide the opportunity to resolve the aforementioned matters.

“Moreover, as the proposed recommendations will have a significant impact on all stakeholders (the employer, the employee and the Government), the process of negotiation must be meticulous and deliberate.”

The Chamber chief executive concluded: “The costs of doing business in the Bahamas, coupled with the continued sluggish economic environment, requires that the NTC structure be carefully guarded and used to bring recommendations and policies that protect the viability of businesses, which provide economic and employment opportunities.

“Policies must balance the protection of rights of employees with the attendant costs of such protections that threaten the going concern of business.”