The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The National Tripartite Council’s chairman yesterday argued that curing the Industrial Tribunal’s “greatest weaknesses” will help ease workplace tensions throughout The Bahamas.

Robert Farquharson, pictured, speaking as the Council released a discussion paper on proposed reforms designed to make the Tribunal “more effective and efficient”, told Tribune Business it had been forced to seek alternatives after the attorney general rejected longstanding arguments to convert it into the industrial arm of the Supreme Court.

The paper, produced by a Legal Advisory Committee (LAC) appointed by the Council, disclosed that Carl Bethel QC and his ministry opposed such a move on the grounds that it went against the very goal of the Industrial Tribunal’s founding.

The Attorney General’s Office, in a November 24, 2020, reply, told the Council: “One of the main reasons for the establishment of the Industrial Tribunal was to provide swift and informal investigations and resolutions into trade disputes with essential and non-essential services.

“In particular, we note section 57(1) of the Industrial Relations Act (Chapter 321). It states that, so far as is possible, the Tribunal should avoid formality in the proceedings. Moreover, the Tribunal is not bound by any laws relating to admissibility of evidence in proceedings before the courts.

“The transfer of these proceedings to a formal division of the Supreme Court would, in our view, impair the accessibility of the Tribunal to the average citizen and therefore run counter to the very reason for its establishment.”

Faced with this rejection, the Committee, which featured employer, union and legal representatives, is proposing to either change the Industrial Relations Act or enable the Tribunal’s verdicts to be registered with the Supreme Court in a bid to cure its main deficiency - an inability to enforce its own judgments.

“I think that is critical,” Mr Farquharson told this newspaper. “I think that is one of the greatest weaknesses of the Tribunal in that it cannot enforce its own judgments. Employees are significantly disadvantaged. 

“You can win your case at the Industrial Tribunal, and we have examples of employees awarded $3,000, $4,000 but the employer says they’re not paying. Unless you have the resources to hire a lawyer and go to the Supreme Court, that judgment cannot be enforced. You have to find significant sums of money to hire an attorney.”

Those costs sometimes exceed the Industrial Tribunal’s award, making it imprudent financially for a former employee to pursue the matter. The Committee’s report, summing up the situation, said: “Section 61 of the [Industrial Relations] Act specifically states that orders or awards made by the Tribunal are enforced in the Supreme Court.

“If an employer does not comply with orders to satisfy an award made to an employee who was successful in a claim before the Tribunal, then the employee must make an application for enforcement at the Supreme Court. Generally, this additional step can cost upwards from $1,500, which is sometimes more than the amount awarded to the employee.

“Unfortunately, too many employers manipulate this provision by refusing to comply with the order or award with the hopes that the additional expenses required to enforce the award or order would prove too costly for the worker,” the Committee continued.

“In reality then, while the Tribunal can and does provide efficient and quality resolutions to industrial disputes, given its current power structure, and lack of powers to enforce its own judgments, it cannot assure a final, full and satisfactory conclusion to matters.”

The Committee said the Minnis administration recognised the challenges this poses, having promised in its 2017 general election manifesto to enact changes giving the Industrial Tribunal the necessary enforcement powers.

“Workers fully support an amendment to the Act which would enable the winning employee to quickly and easily receive compensation awarded, and without having to incur additional or substantial legal expenses,” the report said.

“Feedback from employers’ representatives considers it a matter of fairness that awards and orders should be enforceable without adding extraordinary costs and time. However, they caution that additional staff and other resources may be required by the Tribunal to manage the process, and thereby forcing the Tribunal to introduce fees for its services.

“An alternative approach would be to enact provisions whereby Tribunal judgments are registered at the registry of the Supreme Court ,giving the same effect as registered judgments emanating from Supreme Court proceedings.”

Mr Farquharson said the latter approach would enable an employee to ask for the Supreme Court to enforce the judgment without having to go through the expense of hiring an attorney. The consultation/feedback period lasts until April 30, with the Council hoping to present the final report to the Government by May and have all necessary reforms enacted before end-2021.