The Tribune

By YOURI KEMP

Tribune Business Reporter

ykemp@tribunemedia.net

A trade union leader yesterday gave his “101 percent” backing to a Supreme Court judge’s call to modernise the Industrial Relations Act and take the government out of union elections.

Obie Ferguson, the Trades Union Congress (TUC) president and prominent labour attorney, responding to Justice Loren Klein’s verdict on the Bahamas Public Services Union (BPSU) presidential poll agreed that the Department of Labour should not have responsibility for supervising trade union elections and certifying the vote.

He said: “The government, or a government department, ought not be involved in the internal workings of the union. That’s a matter for the union members; they decide whether or not there has been a wrong done, and if there has been a wrong done then there is a mechanism in the constitution for them to seek a remedy, or whatever relief they’re looking for, but that should not be left to the registrar of trade unions or the minister of labour.

“I don’t know why the government continues to do this as this can become very expensive if you have union elections all over our archipelago. That means you would have to send a designated representative to Acklins or Inagua just to supervise an election that the government need not be involved in.”

Justice Klein, in rejecting the Judicial Review challenge to the BPSU results, called for Parliament to upgrade the laws and “eclectic mix of rules” that govern such polls to prevent the courts from becoming overwhelmed by the frequent challenges to trade union elections.

He also urged Parliament (and the Government) to consider laws permitting “a more direct method of challenging union elections” than Judicial Review. He argued that the latter’s narrow focus on the registrar’s decision to certify the results could magnify “minor irregularities or breaches” to such an extent that results are declared invalid even though the outcome has not been affected.

“It is also fitting, in the circumstances of the frequent challenges to union elections which besiege the courts, to append to this judgment a few observations which may have a bearing on these matters,” Justice Klein wrote.

“The first is that the provisions of the Industrial Relations Act have clearly not kept pace with the developments in international law dealing with the rights of unions and their members, nor has it evolved to keep pace with the burgeoning governance requirements of unions in the active labour and industrial law context of The Bahamas.

“As illustrated by this case, and the referenced authorities, it seems that union elections are conducted according to an eclectic mix of rules derived from the unions’ constitutions, principles interposed from the Parliamentary Elections Act, common law principles, and sometimes the edicts of the Registrar.”

Justice Klein said “much litigation and dissension” could be avoided if trade unions developed their own elections rules in compliance with the Industrial Relations Act, setting out the procedures to be followed on nominations, balloting and voting processes.

He added that this could be benchmarked against international laws such as the UK’s Trade Union and Labour Relations (Consolidation) Act 1992, or treaties that The Bahamas has signed such as the International Labour Organisation’s (ILO) Convention 87.

The judge also described Judicial Review as “a rather blunt instrument” for challenging election results because it does not scrutinise votes to determine if there are irregularities. As a result, Justice Klein warned that small breaches could result in an election result being overturned even if they have no material impact on the outcome.

“It might therefore be appropriate for Parliament to give consideration to providing for a more direct method of challenging union elections, which allows the court to uphold the results unless the irregularities or omissions would affect the outcome or overall fairness of the election, and not be straitjacketed into nullifying elections for procedural errors which do not have this effect,” he wrote.

Mr Ferguson, meanwhile, said: “I have insisted that the Industrial Tribunal be made an industrial side of the Supreme Court. Because if you succeed, and the tribunal and the employer refuses to pay, then there is a lengthy process to recover judgments granted and owed to employees that is cost prohibitive.”

He gave an example of an employee seeking to have the Industrial Tribunal enforce a $500 judgment. As it stands now, if the employer refuses to pay, the worker has to go to the Supreme Court to make a case to have that $500 judgment enforced or “converted.” This can cost them up to $2,500 just to recover $500 in a “regressive” process.