The Tribune

By NATARIO McKENZIE

Tribune Business Reporter

nmckenzie@tribunemedia.net

THE Government was yesterday urged to join a Privy Council appeal against Morton Salt, amid fears it will “alter the very existence of collective bargaining agreements in the Bahamas”.

Robert Farquharson, the director of labour, called for the intervention during yesterday’s first National Tripartite Council general assembly, after Obie Ferguson, the Trades Union Congress (TUC) president, said he is preparing to appeal a recent Court of Appeal decision in favour of the Inagua-based salt harvester.

Mr Farquharson told stakeholders: “I strongly recommend that the Government of the Bahamas join Mr Ferguson in that appeal to the Privy Council in the interest of every worker in the Commonwealth of the Bahamas.

“The decision, if not changed, will alter the very existence of collective bargaining agreements in the Bahamas. It will negate the provision of Section 51 of the Industrial Relations Act, which makes collective bargaining agreements binding on all companies if not changed. The ruling has to be tackled now; it can’t wait for legislative change. It must be changed at the highest court.”

Mr Farquharson’s dramatic request came after the Court of Appeal dismissed the industrial grievances against Morton Salt as “not tenable”.

The Bahamas Industrial, Manufacturing and Allied Workers Union, which represents the company’s line staff, initially took the matter 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, 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.

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.

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.

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.”

Mr Ferguson took particular exception to this finding, and asserted that the Tripartite Council should have been working to do whatever was necessary to correct the issue. “I am preparing the documentation to file an appeal to the Privy Council on this matter”, said Mr Ferguson.

“Where do we go as a trade union movement? Who will represent workers? Let’s get it together, let’s do what is right. We are regressing; the workers are going backwards.”