The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

THE Trades Union Congress (TUC) is seeking permission to appeal a “catastrophic” ruling that takes Bahamian workers “back to pre-1942” to the London-based Privy Council. Obie Ferguson told Tribune Business he had filed the application with the Court of Appeal last week, as the trade union movement unites to appeal a verdict it claims “wipes out” the job security that registered industrial agreements provide for workers. Their concerns centre on the Court of Appeal’s recent dismissal of the Bahamas Industrial, Manufacturing and Allied Workers Union’s case against Morton Salt and, in particular, the finding by acting Appeal Justice, Sir Michael Barnett, that an industrial agreement is an employment contract.

As a result, Sir Michael found that the Industrial Tribunal was “obliged” to apply common law principles relating to contracts when analysing industrial agreements, which the unions argue paves the way for employers to “unilaterally” change the terms and conditions of worker contracts without fear of sanction.

“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.”

That paragraph has created alarm throughout the union movement. Mr Ferguson said the Morton Salt union’s appeal, which has the support of both union umbrella bodies, is asking the Privy Council to determine whether Sir Michael is right in finding an industrial agreement is an employment contract.

He told Tribune Business that an industrial agreement is based on statute, not common, law by virtue of the Industrial Relations Act’s section 2 and sections 46-51.

“In our humble opinion, common law principles cannot apply to industrial agreements. They are creatures of statute,” Mr Ferguson told Tribune Business. “Our contention is there’s a fundamental difference between a contract of employment from that of an industrial agreement.

“An industrial agreement has a technical definition Under section 2 of the Industrial Relations Act, it defines what is an industrial agreement. Sections 46-51 mandates a process you must go through, after which the Registrar of Trade Unions would be the one to vet it and see if it complies prior to registering it. There’s no such thing required under an employment contract.

“All the trade unions that have an industrial agreement are affected. The public sector unions, all the private sector unions, are affected. The employer is free to do what he wants to do. The employer can change the terms and conditions of employees unilaterally, subject only to damages,” Mr Ferguson continued.

“Damages are never an appropriate remedy for trade unions; they’re only an appropriate remedy for individuals. Trade unions are concerned with being allowed to function and carry out the terms and conditions of an industrial agreement, and one that is registered as binding in law.

“It [the Court of Appeal ruling] has wiped out the entire movement. It puts us back technically to pre-1942. There is no job security by virtue of an industrial agreement any more.”

Mr Ferguson said Bahamian workers could either wait for the Government to change the law or seek to appeal the Morton Salt verdict to the Privy Council. The unions had chosen the latter, and Mr Ferguson said the TUC and National Congress of Trade Unions (NCTU) had joined forces in a bid to overturn the ruling via the highest court in the Bahamian judicial system.

“It’s going to be terrible,” the TUC president said of the intervening period. “There’s nothing we can do or will be able to do until the matter is resolved. The employer will have the unilateral power to do what they wish, even if you have an industrial agreement which is registered, giving it legal effect.

“For the time being, there’s nothing the unions can do save for industrial action. Industrial action will not cure that issue. The employer is free to dismiss a worker without following procedure in an industrial agreement..... It’s no longer statute-based. It’s common law. They can fire any way they wish.”

With the Court of Appeal ruling effectively negating previously-binding terms in industrial agreements and collective bargaining agreements, the unions fear employers will be able to exploit the situation by ignoring grievance procedures and a whole host of other provisions.

“The effect is catastrophic,” Mr Ferguson told Tribune Business. “It is very damaging.... The whole purpose of industrial agreements was to maintain good industrial peace and create an atmosphere that reduces the possibility of industrial action.

“There is a procedure in these agreements dealing with matters that arise from disputes in the workforce, but there are no procedures, not right of reinstatement, in common law. You can’t go to the Labour Board and file a dispute. There’s no rights, procedures in common law, as industrial agreements don’t exist. That’s the difficulty this matter has created. We have to do something.”

Robert Farquharson, the director of labour, called for the Government to intervene in the matter and join the Privy Council appeal during last week’s first National Tripartite Council general assembly.

Mr Farquharson said: “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 Ferguson argued that the director of labour’s comments were “not intended to be pro-union, but to be pro-industrial relations”.