Informe provisional - Informe núm. 226, Junio 1983

Caso núm. 1158 (Jamaica) - Fecha de presentación de la queja:: 10-SEP-82 - Cerrado

1. 303. In a communication dated 10 September 1982, the Union of Schools, Agricultural and Allied workers submitted a complaint of infringement of trade union rights in Jamaica.
2. 304. The Government supplied its observations in a letter dated 3 February 1983.
3. 305. Jamaica has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 306. In its letter of 10 September 1982, the complainant alleges that, in August 1981, 45 workers employed by the Forestry Industries Development Company Limited (FIDCC) applied for union membership. After an intensive recruitment campaign among the other workers, on 31 August 1981 the union served a claim on the company for recognition of its representation rights and to commence voluntary negotiation for all the workers mentioned in the claim.
2. 307. In view of the refusal of the FIDCC company to accede to its claim, the union, in a communication dated 22 September 1981, reported to the Ministry of Labour that a dispute existed between it and the company and informed the Ministry that more than 50 construction and plantation workers on the Mount Airy project had taken part in a work stoppage. According to the union, a copy of the claim dated 31 August 1981 was then sent to the Ministry of Labour.
3. 308. Subsequently, on 15 October 1981, in accordance with section 3 of the Regulations issued under the Labour Relations and Industrial Disputes Act, 1975, the union sent an official claim to the FIDCC company for representation and bargaining rights on behalf of construction, plantation and security workers and, in a letter to the Minister of Labour dated 28 October 1981, requested the organising of a ballot to determine union recognition. Included in the letter was the certificate required by law and authenticated by Messrs. N.A.D. Tapping and Company, chartered accountants, stating that 170 members were employed by the FIDCC company.
4. 309. The union then alleges that in November 1981 the FIDCC company unilaterally charged the employment status of some of the workers, particularly in the plantation and engineering departments, from hourly, daily or weekly paid workers to that of contract workers. This manoeuvre which was carried out, according to the union, to deny these workers their union representation, reduced the number of workers belonging to the union and resulted in he ministry's refusal to organise a ballot since the union did not represent 40 per cent of the membership of the unit in question as required by section 3 of the Regulations. According to the union, this refusal was decided upon on the basis of erroneous information communicated by the FIDCC company to the Ministry of Labour who was thus prevented from carrying out an impartial inquiry.
5. 310. The union approached the Ministry of Labour once again to renew its request for a ballot and to condemn the behaviour of the FIDCC company. According to the union, 34 pay slips were sent to the Ministry of Labour showing that the workers in question were either hourly, daily or weekly paid workers both before and after the date when the claim for trade union recognition was served on the FIDCC company, but that their employment status was had been subsequently changed to that of contract workers.
6. 311. Matters came to a head on 3 May 1982 with a work stoppage which, according to the union, was followed by dismissals, in particular among the engineering road crew and transport operators, who have not been reinstated.
7. 312. The complainant alleges that this situation amounts to a violation of the Constitution of Jamaica, of the Labour Relations and Industrial Disputes Act, 1975, and of ILO Conventions. The Minister of Finance, who is now the Prime Minister, and to whom the FIDCO company is answerable, was informed of the situation by the union. According to the latter, no comment has since been received.

B. The Government's reply

1. 313. In its communication of 3 February 1983, the Government regrets that the complainant union did not specify which ILO Conventions have been breached. As to the allegations of violation of the Constitution of Jamaica and of the Labour Relations and Industrial Disputes Act, 1975, the Government points out that every union may appeal to the courts of law in Jamaica in the event of infringement of recognised trade union rights by an employer.
2. 314. With regard to the refusal of the Ministry of Labour to organise a ballot, as requested by the complainant union, the Government states that this decision was taken in accordance with the Act of 1975 which requires at least 40 per cent of workers in a bargaining unit to be members of the union, which condition has not been met by the complainant union.

C. The Committee's conclusions

1. 315. The Committee notes that the present case involves the refusal of the Ministry of Labour to organise a ballot in respect of trade union recognition. The decision is said to have been taken on the grounds of erroneous information from the FIDCO company which is said to have changed the employment status of certain workers, employing them as contract workers in order to deprive them of the right to be members of the complainant union.
2. 316. In view of the lack of information at its disposal the Committee considers that it would be useful if the Government and the complainant were to transmit further information concerning the allegation of bias regarding the inquiry carried out by the Ministry of Labour, and on the allegation that the employment status of certain workers was changed in order to deprive them of the right to form an association.
3. 317. However, a study of the relevant provisions of the regulations issued under the 1975 Act shows that where an employer refuses to recognise a union as bargaining agent, the union must apply to the employer for recognition of bargaining rights, ask the Minister of Labour to organise a ballot and send him a certificate testifying to the number of its members. Upon receiving these documents the Minister may then decide to organise a ballot if certain conditions have been met, and in particular if he considers that 40 per cent of the workers in the bargaining unit are members of the union; in order to ensure that the latter condition is met he must take the measures he deems appropriate in respect both of the employer and of the union. If a ballot is held, the union receiving the majority of the votes will be recognised as having bargaining rights and may force the employer to enter into negotiations.
4. 318. It has to be recognised that the legal system in force, under section 5 of the Act of 1975 and section 3 of the Regulations, gives the Minister of Labour discretionary power to decide whether to organise a ballot without any possibility of appeal against his decision by the party affected thereby. The Committee notes, moreover, that a union may be deprived of the right to promote and defend its members' interests either because these members do not represent 40 per cent of the bargaining unit - which, according to the law, means that a ballot cannot be held - or because, following a ballot, it has not obtained the majority of votes.
5. 319. In many cases in which recognition of a union as bargaining agent in an undertaking has been at issue, the Committee has 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. Nevertheless, before organising such polls, the authorities should proceed to an objective verification of the claim of a union to represent the majority of workers.
6. 320. Furthermore, the Committee wishes to recall the position adopted by the Committee of Experts on the Application of Conventions and Recommendations where, under a system for nominating an exclusive bargaining agent, there is no union representing the required percentage to be so designated. Under such systems, according to the Committee of Experts, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members.
7. 321. The Committee therefore draws the attention of the Committee of Experts to the legal system in force which, in its view, does not provide for a procedure enabling the Minister of Labour to base his decision whether or not to organise a ballot on objective information, thus entailing the risk of bias and abuse. The Committee also draws attention to the present situation in which the workers, although represented by a lawfully constituted trade union, may not promote and defend their interests through collective bargaining.
8. 322. Noting that the dispute continues and that there have been work stoppages, the Committee trusts, on the grounds of the Government's statement that it would not stand idly by while the constitutional right of any union is infringed, that the Minister of Labour will be able to review the situation, availing himself of the procedure for which provision is made in the 1975 Act, according to which the Minister may refer any dispute to the Industrial Disputes Tribunal. It requests the Government to keep it informed of all measures adopted in this respect.

The Committee's recommendations

1. 323. In these circumstances, the Committee recommends the Governing Body to approve the present interim report, and in particular the following conclusions:
   • (a) In view of the lack of information at its disposal, the Committee requests the Government and the complainant to supply further information on the allegation of bias with regard to the inquiry undertaken by the Minister of Labour, and on the allegation according to which the employment status of certain workers was changed in order to deprive them of their right to form an association.
   • (b) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legal system now in farce which confers upon the Minister of Labour discretionary powers to decide whether to organise a ballot without the possibility of appeal against his decision, which entails the risk of bias and abuse and to the present situation in which the workers, although represented by a lawfully constituted union, may not promote and defend their interests through collective bargaining.
   • (c) The Committee requests the Government to consider reviewing the situation, in particular by referring the dispute to the Industrial Disputes Tribunal, as it is entitled to do under the Labour Relations and Industrial Disputes Act. It requests the Government to inform it of all measures adopted to this effect.