Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Bahamas (Ratification: 2001)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) dated 30 September 2009, concerning issues already raised by the Committee.

The Committee notes that the Government repeats the information sent in its previous report. It must therefore repeat its previous observation which read as follows:

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee recalls that in its previous direct request it noted that the Labour Relations Act does not apply to the prison service (section 3) and requested the Government to guarantee these workers the right to organize. The Committee noted the Government’s statement that it was currently reviewing the provisions of the Industrial Relations Act (IRA) with a view to address the right of prison staff to organize. The Committee expresses the hope that the IRA will be amended in the near future so as to formally and expressly recognize the right to organize to prison staff and asks the Government to provide a copy of the amended text as soon as it has been adopted.

Right of workers and employers to establish organizations without previous authorization. In its previous direct request, the Committee noted that, according to section 8(1)(e) of the IRA, the registrar shall refuse to register a trade union if he considers, after applying the rules for the registration of trade unions, that the union should not be registered. The rules for registration are provided in Schedule I. According to section 1 of the Schedule, in applying the rules of the registration of trade unions, the registrar shall exercise his discretion. The Committee noted the Government’s statement that this provision is intended to ensure that there is no confusion or ambiguity regarding the rights of workers to certain information (finances and related matters) and that trade unions do not adopt names that are similar in nature and thereby confusing to the bargaining unit. As already stated, it is the Committee’s view that provisions which confer on the competent authority a genuinely discretionary power to grant or reject a registration request, or to grant or withhold the approval required for the establishment and functioning of an organization, are tantamount to a requirement for previous authorization which is not compatible with Article 2 of the Convention [see General Survey of 1994 on freedom of association and collective bargaining, paragraph 74]. The Committee therefore asks the Government once again to take the necessary measures to ensure that no discretionary power is conferred to the registrar to refuse the registration of trade unions or employers’ organizations and to provide information on any measures taken or envisaged in this respect.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules and to elect their representatives freely. The Committee noted, in its previous direct request, that section 20(2) of the IRA, according to which the secret ballot for election or removal of trade union officers and for amendment of the constitution of trade unions should be taken under the supervision of the registrar or a designated officer, was contrary to the principles of freedom of association. The Committee noted the Government’s statement to the effect that it concurs with the Committee’s view regarding this section and that recommendation for its amendment is in the process of being submitted to Cabinet for consideration. The Committee expresses the hope that concrete measures will be taken to amend section 20(2) of the IRA so as to ensure that trade unions could conduct a ballot without interference from the authorities. It requests the Government to indicate in its next report the measures taken or envisaged in this regard.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules and to elect their representatives freely. The Committee notes that the constitution of every trade union should provide that executive committees and officers of trade unions should be elected at intervals not exceeding three years (section 9(4)(1) of Schedule I). The Committee requests the Government to indicate whether this section implies that trade union officers cannot be re-elected for a consecutive term.

The Committee notes that, according to section 9(4)(3) of Schedule I, the constitution of a trade union should include a provision to the effect that every officer must be a person who is legally entitled to be employed in the Bahamas in the industry, or as a member of the craft or category of employees, which the union represents. The Committee requests the Government to clarify the meaning of this provision and, in particular, to indicate whether only nationals of the Bahamas can be elected to the posts of trade union officers.

Right to strike. The Committee notes section 20(3) requiring a strike ballot to be taken under supervision by an officer of the ministry. If this section is not complied with, a strike is unlawful. The Committee considers that, with a view to ensuring freedom from any influence or pressure by the authorities, which might affect the exercise of the right to strike in practice, the legislation should not provide for supervision of a ballot by the authorities. The Committee requests the Government to amend section 20(3) accordingly to the above principle and to indict any measures taken or envisaged in this respect.

The Committee notes that, under the terms of section 73, the minister shall refer the dispute to the tribunal if the parties to the dispute, within non-essential services, failed to reach a settlement. It is unlawful to have recourse to strike action once the dispute is referred to the tribunal (section 77(1)). Furthermore, according to section 76(1), a strike which, in the opinion of the minister, affects or threatens the public interest, might be referred to the tribunal for settlement. The Committee recalls that compulsory arbitration to end a collective labour dispute and a strike is acceptable only if it is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, i.e. in the case of a dispute in the public service involving public servants exercising authority in the name of the State, in the event of an acute national emergency, or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committee therefore requests the Government to take the necessary measures to amend its legislation so as to bring it into conformity with the Convention and to indicate any measures taken or envisaged in this respect.

The Committee notes that section 75 restricts the objective of a strike. It appears to the Committee that protest and sympathy strikes are illegal under the terms of section 75. In the view of the Committee, organizations responsible for defending workers’ socio-economic and occupational interests should, in principle, be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and the standard of living. Furthermore, the Committee considers that a general prohibition on sympathy strikes could lead to abuse and that workers should be able to take such action, provided the initial strike they are supporting is itself lawful (see General Survey, op. cit., paragraphs 165 and 168). The Committee requests the Government to ensure the right of workers’ organizations to recourse to this type of strike and to indicate any measures taken or envisaged in this respect.

The Committee notes that, when a strike is organized or continued in violation of the abovementioned provisions, excessive sanctions, including imprisonment for up to two years are provided (sections 74(3), 75(3), 76(2)(b) and 77(2)). The Committee recalls that no penal sanction should be imposed against a worker for having carried out a peaceful strike and therefore measures of imprisonment should not be imposed on any account. Such sanctions could be envisaged only where during a strike, violence against persons or property or other serious infringements of rights have been committed, and can be imposed pursuant to legislation punishing such acts. Nevertheless, even in the absence of violence, if the strike modalities had the effect of making the strike illegitimate, proportionate disciplinary sanctions may be imposed against strikers. Therefore, the Committee requests the Government to amend the Labour Relations Act so as to bring it into conformity with freedom of association principles on this point.

Article 5. Right of organizations to establish federations and confederations and to affiliate with international organizations. The Committee notes section 4 of Schedule I concerning the registration of federations, etc. The Committee asks the Government to explain how this provision is applied in practice.

The Committee notes section 39 concerning control of foreign connections of unions and federations. Under the terms of this section, it shall not be lawful for a trade union to be a member of any body constituted or organized outside the Bahamas without a licence from the minister, who has discretionary power to grant or refuse it and/or to accompany it with certain conditions. The Committee recalls that Article 5 of the Convention stipulates that first-level organizations, as well as federations and confederations, have the right to affiliate with international organizations of workers and employers. Legislation which restricts the right of international affiliation by requiring prior authorization by the public authorities, or by permitting it only in certain conditions established by law, poses serious difficulties with regard to the Convention. The Committee therefore requests the Government to take the necessary measures to amend its legislation so as to bring it into conformity with the Convention.

Finally, with reference to its previous direct request, the Committee once again requests the Government to provide information on the situation with regard to the draft Trade Union and Labour Relations Act and the draft Industrial Tribunal and Trade Disputes Act.

The Committee requests the Government to provide its comments on the issues raised above in its next report.