The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A BAHAMIAN trade union's industrial grievances against Morton Salt have been dismissed as "not tenable" by the Court of Appeal.

The Bahamas Industrial, Manufacturing and Allied Workers Union initially took the Inagua-based salt harvester and manufacturer to the Industrial Tribunal, and the appellate court in a unanimous verdict upheld the latter's ruling that the company had no case to answer. Acting appeal justice, Sir Michael Barnett, in a written February 28, 2018, ruling said the union pounced on two issues relating to the 2002-2005 industrial agreement between the two parties.

It challenged Morton Salt's adjustment of the work schedule for 29 maintenance technicians in July 2002, on the grounds this represented a "unilateral variation" of these workers' employment contracts and was "therefore unenforceable".

And, in 2008, the union queried overtime payments earned by its members when the industrial agreement was in force. It alleged that Morton Salt staff should be paid 'double time', or twice the rate of pay, if they were required to work on either Saturday or Sunday.

"The union was in a trade dispute with Morton over a number of issues," Sir Michael recalled. "However, the union and Morton agreed to submit only two issues to the Tribunal for determination, namely the payment of overtime and the ability of Morton to unilaterally change the schedule of workers."

The Tribunal ruled in favour of the company on both matters, finding against the union that is the recognised bargaining agent for Morton Salt's line staff.

The union, in its appeal, argued that the Employment Act's section 10 a), which stipulates that employees be paid twice their regular rate for working on public holidays or days off, meant Morton Salt staff were entitled to this compensation if required to work at the weekend.

"It was the position of the union that where employees are scheduled to work on a five-day work week, Monday through Friday, they are entitled to overtime pay equivalent to twice the rate of pay for any time that they were required to work on either the Saturday or Sunday," Sir Michael noted.

The Industrial Tribunal, though, found that the 'double' wage rate only applied to the 24 hours of consecutive rest identified as a 'day off' in the Employment Act's section 9, a ruling the Court of Appeal agreed with.

"Under section 10 of the Employment Act, double time is only required to be paid where an employee is required to work on a public holiday or his statutory day off under section 9," Sir Michael wrote.

"If an employee is otherwise required to work over the standard hours, that employee is only entitled to be paid at the rate of one and a half times his rate of pay." He added that this had also been cleared up in the Court of Appeal's recent ruling on a case brought by multiple Freeport Container Port employees, who had also argued that they were entitled to 'double time' if they worked at any time during their 48 hours of rest.

Sir Michael said the Morton Salt union also sought to rely on the industrial agreement, which called for 'day and shift workers' to be paid 'double time' for working on Sunday. This, though, meant they were not entitled to such compensation for Saturday.

As for the 'unilateral' schedule change, Sir Michael said this was provided for in the industrial agreement. "This is not tenable," he added of the union's arguments.

"This provision expressly gives Morton the right to alter or extend existing shift arrangements. All Morton was required to do was to consult with the union prior to implementing such a change. The Tribunal has found that Morton did consult with the union, and that finding by the Tribunal has not been challenged on this appeal.

"It is our view that Article 32.3 [in the industrial agreement] clearly reserves to Morton this right to unilaterally 'alter or extend existing shift working arrangements'. Article 4.8 does not in any way modify this contractual right given to Morton.

"In any event, there is no evidence that existing terms were better than the altered terms. The fact that they may be altered or modified does not without more make them less favourable than the terms that existed before alteration. For those reasons ground two is also rejected."

The Court of Appeal also rejected the union's claim that ministerial intervention was required before Morton Salt could change the standard hours of work from eight to 12.

"An industrial agreement is a contract. It is an employment contract," Sir Michael wrote. "The Tribunal is entitled, nay obliged, to construe it in accordance with common law principles of contract law. The fact that it is given force by statute does not affect the way that the Tribunal must construe it. It is still an agreement. It is still a contract."