The Tribune

By YOURI KEMP

Tribune Business Reporter

ykemp@tribunemedia.net

A labour attorney has called for substantive changes to the Industrial Tribunal that will improve the speed and quality of workplace dispute resolution.

Joan Dilworth, a member of the Bahamas Chamber of Commerce and Employers Confederation’s labour committee, told the National Tripartite Council’s annual assembly that the Industrial Tribunal had not always provided an efficient mechanism for resolving differences between employers and employees.

“The expectations arising from the mandate of the tribunal is that when individuals go to the tribunal, first with the pre-trial session or stage event, that the parties should be able to reduce the issues, narrow the issues between them to maintain a cordial relationship while doing all that and, ideally, to come to an agreed settlement,” she said.

Ms Dilworth said that if this does not happen then the next stage is going to trial with “an expectation that, wherever possible, there should be an agreed early settlement”.

Cindira Bain, secretary-general of the Bahamas Public Service Union (BPSU), said a legal advisory committee appointed by the National Tripartite Council had come up with nine separate recommendations to improve the Industrial Tribunal’s effectiveness.

The first is that it be given powers to “enforce its own judgements”, as the present inability to do so greatly hinders the Industrial Tribunal from adjudicating labour matters effectively and efficiently.

The second recommendation was for the Industrial Tribunal to have powers to impose sanctions if parties do not comply with its judgments. Noting that the informality of the tribunal is something that workers may benefit from, Ms Bain said they “expressed satisfaction with current forms of admissibility of evidence, format for witness statements and supporting documents, and lower costs through engaging advocates rather than paying higher costs to counsels or attorneys-at-law”.

Another recommendation was whether “alternate dispute resolution should be made compulsory pre protocol. The costs of bringing claims can be significantly reduced where parties agree to settle rather than incur expenses of the trial.

“The conciliatory mandate of the Department of Labour is recognised as an important tool for early settlement of disputes. However, this process is useless where parties refuse conciliation to frustrate the process, as the Department of Labour has no powers to mandate that the parties engage in this process”.

Ms Bain said this meant the Industrial Tribunal must be empowered to impose sanctions against non-compliant parties.

She added that there is no statutory provision permitting an originating summons, which launches actions, to be changed and “Parliament needs to urgently implement the necessary legislative changes to allow applicants’ originating application forms to be amended in a way...... necessary at the time leading up to the trial”.

Ms Bain said proper record and note keeping of proceedings needs to be implemented and enforced, and called for digital recording mechanisms to be placed in the Tribunal to record proceedings accurately and clearly.

The Committee’s report, identifying some of the difficulties involved, 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.”