Informe definitivo - Informe núm. 187, Noviembre 1978

Caso núm. 796 (Bahamas) - Fecha de presentación de la queja:: 21-JUN-74 - Cerrado

142. In a communication dated 21 June 1974 the Bahamas Workers' Council and the Engineering, Fuel, Service and Allied Workers' Union (EGU) presented to the ILO a complaint containing allegations of infringements of trade union rights in the Bahamas. Additional information was transmitted by the complainants in a communication of 21 September 1974.

1. 142. In a communication dated 21 June 1974 the Bahamas Workers' Council and the Engineering, Fuel, Service and Allied Workers' Union (EGU) presented to the ILO a complaint containing allegations of infringements of trade union rights in the Bahamas. Additional information was transmitted by the complainants in a communication of 21 September 1974.
2. 143. The Freedom of Association and Protection of the Right to Organise Convention, 1946 (No. 87) (with modifications), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), had been declared applicable to the Bahamas while it was a non-metropolitan territory of the United Kingdom. The Bahamas had not become a member of the ILO at the time the complaint was received.

A. A. The complainants' allegations

1. 144. During its examination of the case at its November 1974 Session, the Committee noted that, according to the procedure for the examination of complaints of alleged infringements of trade union rights agreed upon between the United Nations and the International Labour Organisation, before the Governing Body refers to the Fact-Finding and Conciliation Commission on Freedom of Association an allegation which it has received against a Member of the United Nations which is not a Member of the ILO, such allegation should be referred to the Economic and Social Council for its consideration.
2. 145. In these circumstances, the Governing Body, on the recommendation of the Committee, decided:
   • (a) to refer to the Economic and Social Council for consideration, in accordance with Resolution No. 277 (X) of 17 February 1950, the complaint presented by the Engineering, Fuel, Service and Allied workers' Union against the Government of the Bahamas, which is not a Member of the ILO;
   • (b) to note that, in accordance with Economic and Social Council Resolution No. 277 (X) of 17 February 1950, it is for the Economic and Social Council to decide what further action it proposes to take in the matter by seeking the consent of the Government of the Bahamas to the case being referred to the Fact-Finding and Conciliation Commission on Freedom of Association or being dealt with in any other manner.
3. 146. The complaint having been referred to the Economic and Social Council, the Secretary-General of the United Nations, in a note of 27 November 1974, requested the consent of the Government of the Bahamas to the referral of the case to the Fact-Finding and Conciliation Commission on Freedom of Association of the ILO, in accordance with the procedure set forth in Resolution No. 227 (X). This request was followed by an exchange of correspondence between the Government and the Secretary-General, and by the transmission to the latter by the Bahamas Workers, Council of a further communication dated 1 September 1976 containing additional information in support of the complaint.
4. 147. On 13 May 1977, during its 62nd Session, the Economic and Social Council noted that the Bahamas had become a member of the ILO on 25 May 1976 and accordingly requested the Secretary-General to transmit the information in its possession to the ILO on its behalf with a view to appropriate action being taken. The Government subsequently sent its observations on the complaints in a communication to the ILO dated 14 June 1978.
5. 148. Since joining the ILO the Bahamas has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), confirming the declaration of application of this Convention made at the time when it was a non-metropolitan territory. It has not, however, ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
   • II. Allegations of the complainants
6. 149. In their communication of 21 June 1914 the complainants alleged that, since independence, the EGU had attempted to organise workers of Radio Bahamas and Bahamasair (both government corporations) and those of Catalytic Nest Indies Limited, a United States company at the Bahamas Oil Refining Company at Freeport. Although the EGU allegedly had a majority, the Government was stated to have refused to hold a ballot to certify the EGU as bargaining agent in respect of the workers of these corporations. The Government also allegedly threatened to deregister the EGU.
7. 150. Further, it was stated by the complainants that the EGU was prohibited from affiliating with any International Labour movement without a special licence, the issuance of which was entirely at the Government's discretion and which could be withdrawn at any time without right of appeal (section 38 of the Industrial Relations Act, 1970).
8. 151. According to the complainants, the Government refused to hear grievances filed by the EGU on behalf of its members. They also alleged that the Industrial Relations Act, 1970, violated not only international standards on freedom of association but even the provisions of the Constitution of the Bahamas which guaranteed this right. Attached to the communication was a memorandum in which the EGU pointed to the provisions of the Act which it considered to be in violation of the principles of freedom of association.
9. 152. In its communication dated 21 September 1974 the complainant organisations transmitted a copy of the Industrial Relations Act, 1970, and copies of four letters addressed by the Registrar of Trade Unions to the EGU. In the first of these letters (dated 14 July 1972) the Registrar confirmed having registered the Constitution of the EGU. In the second (dated 17 November 1972) he stated that he was considering invoking the Industrial Relations Act to cancel the registration of the Union on the grounds that the amended Constitution of the EGU contravened the rules contained in the Act for the registration of trade unions. In particular, he noted that, under article 18 of its amended Constitution, the EGU claimed to have jurisdiction to register a wide category of workers, many of whom were already members of, or eligible for membership of, lawfully registered and long-established unions. The Registrar considered that this provision contravened the rules for the registration of trade unions and that the trades included in the amended Constitution should be precluded from membership. Before any further action was taken he requested the EGU to give consideration to the amendment of its existing Constitution to bring it into conformity with the law. In the third letter (dated 9 August 1973) the Registrar informed the EGU that he would look into the matter concerning recognition of the EGU by Catalytic West Indies Limited and the Freeport Power Company Limited, after having received information regarding the amendments which the Union had been requested to make in its Constitution. In the fourth letter (dated 4 September 1973) the Registrar pointed out that the EGU had proceeded to move into the fields of broadcasting and civil aviation, for which its Constitution made no provision, and again called upon the EGU to comply with his letter of 17 November 1972.
10. 153. In the communication dated 1 December 1976 from the Bahamas Workers' Council to the Secretary-General of the United Nations, the complainants again referred to the refusal to conduct ballots or to certify the EGU as bargaining agent at Radio Bahamas and Bahamasair. They alleged that the workers of these two public undertakings had approached the EGU, to which they wished to become affiliated. Consequently, the EGU, in accordance with section 40, subsection 1, of the industrial Relations Act, 1970, applied to the managements of the two companies for recognition, in both cases serving copies upon the Minister of Labour.
11. 154. According to the complainants, the employers were required, under section 40, subsection 2, of the industrial Relations Act, to accept or reject the application within 14 days, also serving a copy upon the Minister. Failure to reply amounted to rejection. Although the employers did respond, this was merely to acknowledge the letter and to say that the matter was entirely in the hands of the Minister of Labour.
12. 155. The EGU then wrote to the Minister, under section 40, subsections 3 and 4, of the industrial Relations Act, asking him to conduct a secret ballot among the two groups of workers. According to the complainants, the Minister never replied and the ballots were never held. Thus, continued the complainants, the Government had infringed the Industrial Relations Act, the Constitution of the Bahamas and Convention No. 87.
13. 156. As regards the refusal of the Government to hold a ballot to determine the recognition of the Union in Catalytic Nest Indies Limited, the complainants pointed out that this company had in the meantime gone out of business in the case of the Freeport Power Company the complainants stated that the Government had enlarged the bargaining unit for the purpose of preventing an EGU victory.
14. 157. The complainants also stated that the 1969 Constitution of the EGU had been amended to widen the possibilities of membership. The amendments had been approved by the members, and were recorded by the Registrar of Trade Unions on 14 July 1972. According to the complainants, the amended Constitution entitled workers from Radio Bahamas and Bahamasair to become members of the Union. On 17 November, however, the Registrar demanded that the EGU revert to its 1969 Constitution and threatened to deregister it by 23 November 1972 under section 15 of the Industrial Relations Act (deregistration of trade unions).
15. 158. On 4 September 1973, continued the complainants, the Permanent Secretary of the Ministry of Labour again threatened to deregister the EGU, this time by 10 September 1973. The complainants enclosed copies of a letter of protest sent to the Ministry of Labour.
16. 159. The complainants also referred to section 33 of the Industrial Relations Act, under which no union may become affiliated to an overseas trade union movement without the authorisation of the Minister. The Minister enjoys "absolute discretion" to grant or withhold the authorisation, which he may cancel at any time. These provisions, in the view of the complainants, infringed the Constitution of the Bahamas and Article 5 of Convention No. 87.
17. 160. Finally, the complainants alleged that the Government had in a number of instances refused to appoint a representative to conduct strike ballots.
    • III. Reply of the Government
18. 161. In its communication of 14 June 1978 the Government confirms that the EGU requested recognition as the bargaining agent for the workers of Radio Bahamas and Bahamasair. In accordance with the normal procedure, the Ministry of Labour requested from the management of Radio Bahamas a list of all its employees. This list was supplied on 22 November 1972. However, the Ministry's request to EGU to supply a list of its members who were employed at Radio Bahamas remained unanswered. It was therefore impossible to determine the question of that Union's claim to recognition.
19. 162. In the case of Bahamasair the management had, on 23 November 1973, supplied a list of its employees as requested by the ministry of Labour. The EGU was also requested to supply a list of its members who were employed at Bahamasair. Since this list was not supplied it was not possible to determine the question of that Union's claim to recognition. The reason for this, continues the Government, is that in accordance with section 39, subsection 1, of the Industrial Relations Act, 1970, a trade union is entitled to be recognised by the employer only if it represents more than 50 per cent of the employees of an establishment.
20. 163. The Government rejects the allegation that it refuses to allow freedom of association. At no time, it says, has it stated that workers were not free to join an organisation of their choice. The Government explains that section 40, subsection 5, of the Industrial Relations Act guarantees workers' rights and freedom of association. It also quotes section 75, subsection 1, of the Act, which protects workers against acts of anti-trade union discrimination.
21. 164. As regards recognition of the EGU in Catalytic West Indies Limited, the Government states that investigations have shown that two unions, the Grand Bahamas Construction, Refinery and Maintenance workers' Union, and the EGU, had sought recognition as bargaining agents. The Ministry of Labour had requested both unions to substantiate their claims. The Grand Bahamas Construction, Refinery and Maintenance Workers' Union complied with the Ministry's request and was subsequently certified as the bargaining agent. To date the EGU had not supplied the information sought by the Ministry of Labour.
22. 165. Regarding the allegation concerning the Freeport Power Company, the necessary information had not been supplied by the EGU and consequently no determination as to recognition had been made.
23. 166. As regards the allegations concerning the threat by the Government to deregister the EGU, the Government states that on 14 July 1972 the Registrar of Trade Unions registered an amendment to the Constitution of the EGU. This amendment purported to give the Union powers in contravention of the Industrial Relations Act, according to which the Registrar shall not register as a trade union any body, association, federation or congress, which under its Constitution offers membership to any other trade union, body or association. Accordingly, continues the Government, the amendment should not have been registered. By letter dated 17 November 1972 the Registrar informed the Chairman of the EGU that the amendment had been registered in error and requested that the necessary steps be taken to bring the Union's Constitution into conformity with the Industrial Relations Act. The EGU did not comply. On 4 September 1973 the Registrar again informed the EGU that in order for the Union to continue its legal existence its Constitution must be brought into conformity with the Act. Failing this consideration would be given to invoking section 15 of the Act, which allows the Registrar to deregister a trade union. Nevertheless, states the Government no official action has so far been taken to cancel the registration of EGU.
24. 167. In conclusion the Government states that the Industrial Relations Act is the only legislation providing for the registration and regulation of trade union activities in the Bahamas, and that all trade unions can exist only in accordance with that Act.
25. 168. As regards the allegations relating to refusal to conduct a strike ballot, the Government observes that there is no instance of non-compliance with a request from the EGU for the conduct of such a ballot in accordance with the requirements of the Industrial Relations Act.

B. B. The Committee's conclusions

• IV. Conclusions of the Committee
  169. 169 The Committee notes that the present case contains several series of allegations: refusal of the Government to conduct ballots to determine the recognition of the EGU as bargaining agent in a number of enterprises, threats to deregister the EGU, refusal to allow a union to become affiliated to an international organisation without the authorisation of the Minister, refusal by the Government to conduct strike ballots, and the incompatibility of certain provisions of the Industrial Relations Act with the principles of freedom of association.
  170. 170 In its examination of the allegations relating to the refusal of the Government to conduct ballots to determine the recognition of the EGU as bargaining agent in a number of undertakings, the Committee has taken note of the relevant provision of the Industrial Relations Act, 1970 (sections 39 to 41). Under these provisions every employer shall recognise as the bargaining agent for all employees in a bargaining unit a trade union of which more than 50 per cent of such employees are members. In the event of there being more than one trade union claiming to have as members more than 50 per cent of such employees, the employer must recognise the trade union determined by the Minister. The Minister enjoys various powers, in particular: (a) to determine whether the union making the claim for recognition or any other union has as members more than 50 per cent of the employees concerned; (b) to organise a secret ballot in order to determine what union the employees desire to be their bargaining agent. Where the Minister has determined whether any union (and, if so, which) is entitled to be recognised as bargaining agent he shall notify in writing the parties concerned of his determination, and such determination shall be final. A trade union other than the bargaining agent may apply for recognition after the expiration of 12 months from the date when the present bargaining agent was recognised, provided that there is no collective agreement in force, or two years from the signing of the agreement, if a collective agreement is in force. An application for recognition may be submitted at any time if the union has been voluntarily recognised by the employer without the status of bargaining agent having been determined by the Minister.
  171. 171 The Committee notes that the legal system in force in the Bahamas makes it compulsory for the employer to recognise the majority union, which possesses the status of bargaining agent. The Minister may determine the organisation to be recognised as bargaining agent on the basis of the number of members of a trade union on if several unions are involved, on the basis of the results of a secret ballot held for the purpose.
  172. 172 In the case of Catalytic West Indies Limited the Grand Bahamas Construction, Refinery and Maintenance Workers' Union appears to have provided evidence that its membership comprises over 50 per cent of the workers concerned and has accordingly been recognised as bargaining agent, whereas the complainant supplied no information on the numbers of its members. In the case of the other undertakings, the Government also requested details of the number of members of the complainant organisation, but obtained no reply. The complainant organisation, for its part, requested the holding of a ballot in these undertakings, but the Government did not comply with this request. It would thus appear that there were a number of other trade union organisations representing some of the workers concerned and that the complainant considered that it enjoyed the support of the majority of the workers in these undertakings.
  173. 173 In a number of-cases in which the Committee has examined allegations relating to certification of the most representative union in a given unit as the exclusive bargaining agent for that unit, it has considered that this system is not necessarily incompatible with the principles of freedom of association. It has, however, considered that a number of safeguards should be provided, in particular the choice of the representative organisation by a majority vote of the workers concerned. In a recent case the Committee has also considered that if the authorities have the power to hold polls for determining the majority union which is to represent the Workers for the purposes of collective bargaining, such polls should always be held in cases where there are doubts as to which union the workers wish to represent them. It is nevertheless important that, before organising such polls, the authorities should proceed to an objective verification of the claim of a union to represent the majority of workers. In the present case the Committee notes that the complainant union supplied no information on the number of its members, despite requests to this effect by the Government.
  174. 174 It would further appear that the question of recognition of the EGU as bargaining agent in a number of undertakings was also connected with problems concerning the sectors of activity covered by the EGU. Allegations were made concerning threats to deregister this trade union. This aspect of the case originates in an amendment made to the EGU Constitution for the purpose of widening the sectors of activity covered by the Organisation. The Registrar of Trade Unions had originally registered this amendment but subsequently considered that the EGU claimed to have jurisdiction under its amended Constitution for a wide category of workers, many of whom were already members of, or eligible for membership of, lawfully registered and long-established unions. The Registrar accordingly considered that the new Constitution contravened the Industrial Relations Act and requested the EGU to amend it to enable the Union to continue its legal existence. The Committee notes, however, that no action has since been taken to cancel the registration of the EGU.
  175. 175 In its reply the Government gives explanations which differ somewhat from the EGU's allegations as regards the threat to cancel its registration. In this connection it quotes paragraph 4(2) of the First Schedule to the Industrial Relations Act, 1970, which provides as follows: "the Registrar shall have regard to the difference between the proper functions of a trade union on the one hand, and of an association, federation or congress of trade unions on the other hand, and shall not register as a trade union any body, association, federation or congress which under its Constitution offers membership to any other trade union, body or association". This provision would not appear to be clearly applicable in the case of the EGU since it seems that this union did not offer membership to other organisations under its Constitution, but only to workers.
  176. 176 On the other hand, the Committee notes that under paragraph 2(1) of the First Schedule to the industrial Relations Act the Registrar of Trade Unions shall encourage the formation and registration of trade unions each representing a particular industry, wherever practicable. Where it seems to him to be in the interest of the employees concerned he shall encourage the formation and registration of trade unions each representing a particular craft.
  177. 177 This provision seems to give the Registrar wide powers of judgement as regards the desirability of forming unions of members of the same craft belonging to different industries. The Committee considers that such powers, if exercised widely, may result in restrictions on the right of workers to form organisations of their own choosing. The Committee also considers that any legislation restricting the field of activity of a trade union to a specific industry or occupation would be contrary to the principles of freedom of association if it implied the existence of a single trade union covering that industry or occupation, since it is important for workers to be able to join different trade unions if they so wish. The Committee also considers that such legislation should provide for the freedom of trade unions comprising workers in different occupations and sectors of activity to set up federations and Confederations.
  178. 178 As regards the allegations concerning threats to cancel the registration of the EGU following the amendment to its Constitution, the Committee is obliged to recall that approval of trade union rules by the competent authority should not be left to the discretionary powers of such authority. In particular, in order to avoid the risk of abuse which might result from a system whereby administrative or other authorities are granted powers of decision in respect of the registration of a trade union or the approval of its rules, provision should be made for the right of appeal to the courts against any administrative decision of this nature. In addition, the judges examining a refusal to register trade union rules should have access to all information relating to the substance of the case. In the case of the Bahamas it would seem that such safeguards are not provided under the legislation, since under section 13 of the Industrial Relations Act the right of appeal against decisions by the Registrar to cancel the registration of a trade union or not to register an amendment of its Constitution apparently lies only to the Minister.
  179. 179 As regards the prohibition on joining an international organisation without the authorisation of the Minister, the Committee wishes to recall that international trade union solidarity is one of the basic objectives of any trade union movement and that subordination of the right of a union to affiliate with an international organisation to the authorisation of the Government is not compatible with the principle of free and voluntary affiliation of trade unions to international organisations.
  180. 180 As regards the allegations relating to refusals to organise strike ballots, the Committee notes the contradictory nature of the statements made by the complainants and the Government. According to the latter there have been no cases of refusal of such requests by the EGU. Since the complainants have not specified the circumstances in which their requests were allegedly refused or the names of the undertakings concerned, the Committee considers that they have failed to supply evidence that the Government's action in this connection has infringed the principles of freedom of association.
  181. 181 As regards the allegations relating to incompatibility between certain provisions of the Industrial Relations Act and the principles of freedom of association the Committee wishes to examine the allegations which might raise problems in the light of these principles. The allegations in question relate to the following points: restrictions on freedom to elect trade union officers (paragraphs 3(1) and 4(2) of Part II of the First Schedule to the Act); the right to strike and the settlement of labour disputes (sections 67 to 74) and prohibition of the use of trade union funds for political purposes (section 77).
  182. 182 As regards the allegations concerning restrictions on freedom to elect trade union officers the Committee notes that the complainants have referred to the exercise of the occupation represented by the trade union as a condition for eligibility as an officer other than the chairman or the secretary in this connection the Committee has examined paragraphs 3(1) and 4(2) of Part II of the First Schedule to the Act. According to these provisions the Constitution of a trade union must provide that no person shall be eligible for membership of the trade union unless he is, or has been, regularly and normally employed in the industry, or as a member of the craft or category of employees which the union represents. Furthermore, all the officers shall be members of the union, with the exception of the chairman or the secretary. It follows from these provisions that, apart from the two posts mentioned, the officers of a trade union must be, or must have been, employed in the industry or the craft which the union represents in view of the fact that these restrictions do not apply to the two most important union offices and that union office is also open to workers who were formerly employed in the industry or the craft concerned, the Committee considers that the legislation offers wide opportunities of access to union office to persons who do not at present belong to the sector covered by the organisation.
  183. 183 As regards the settlement of collective labour disputes the Committee notes that under section 73 of the industrial Relations Act the Minister may, if he considers that a strike affects or may affect the public interest, refer the dispute to the Industrial Relations Board for settlement. Persons participating in the strike must discontinue their participation; if they fail to do so they are liable to a fine not exceeding 200 dollars or to imprisonment for a term not exceeding three months, or to both. The Committee considers that a provision of this kind gives the Minister wide powers to determine whether a strike affects or may affect the public interest, and that it might be applied in such a way as to constitute an important restriction of the potential activities of trade unions which would not be compatible with the principles of freedom of association.
  184. 184 As regards the prohibition of the use of trade union funds for political purposes the Committee has taken note of section 77 of the industrial Relations Act dealing with this question. This provides that the funds of a trade union shall not be applied either directly or indirectly or in conjunction with any other trade union, association, body or person in the furtherance of any political object, including the nomination, election or appointment of any person to membership of the legislature or of any public board, or to any place or office in the service of the Government; the maintenance in office or the removal from office of any person; or the influencing of public opinion to support or to oppose any such nomination, election, appointment or termination.
  185. 185 The Committee has often considered that such a general prohibition of political activities is contrary to the principles of freedom of association, since the interpretation which may be placed on it in practice may change at any time and may considerably restrict the possibilities of action of the trade unions. Nevertheless, it is important that, when trade unions engage in political action, such action should not be "of such a nature as to compromise the Continuance of the trade union movement or its social and economic functions irrespective of political changes in the country" (Resolution of the International Labour Conference concerning the independence of the trade union movement, 1952).

The Committee's recommendations

1. 186. In these circumstances, and as regards the case as a whole, the Committee recommends the Governing Body:
   • (a) as regards the allegations relating to the refusal of the Government to hold ballots to determine the recognition of the EGU as bargaining agent in a number of undertakings, to draw attention to the principles and considerations set forth in paragraphs 170 to 173 above, and in particular to the principle that if the authorities have the power to hold polls for determining the majority union which is to represent the workers for the purposes of collective bargaining, such polls should always be held in cases where there are doubts as to which union the workers wish to represent them;
   • (b) as regards the allegations concerning, threats to cancel the registration of the EGU, to draw attention to the principles and considerations set forth in paragraphs 174 to 178 concerning the right of workers to form organisations of their own choosing and the importance of the right of appeal to the courts against administrative decisions concerning the registration of trade unions;
   • (c) as regards the allegations relating to international affiliation of trade unions, to point out that the subordination of such affiliation to government authorisation is not compatible with the principle of free and voluntary affiliation of trade unions to international organisations;
   • (d) as regards the allegations relating to the refusal of the Government to hold strike ballots, to decide, for the reasons set forth in paragraph 180 above, that this aspect of the case calls for no further examination;
   • (e) as regards the allegations relating to the incompatibility of certain provisions of the Industrial Relations Act with the principles of freedom of association, to draw attention to the principles and considerations set forth in paragraphs 181 to 185 above concerning the free election of trade union officers, the right to strike and the political activities of trade unions; and
   • (f) to urge the Government to take the necessary steps to amend the provisions of the Industrial Relations Act in those areas mentioned in subparagraphs (b), (c) and (e) above in order to bring the Act into conformity with the principles of freedom of association.