Repetition

The Committee recalls that for a number of years it has been requesting the Government to amend the Industrial Relations Act (IRA), and other texts, so as to bring the national legislation into conformity with the Convention. In particular, the Committee referred to the need to amend the following provisions:

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations without previous authorization.

• Section 3 of the IRA and sections 39 and 40 of the Correctional Officers (Code of Conduct) Rules, 2014, so as to ensure that prison staff enjoy all rights and guarantees under the Convention; and
• Section 8 (1) (a) and the First Schedule of the IRA, so as to ensure that, beyond the verification of formalities, the Registrar has no discretionary powers to refuse the registration of trade unions and employers’ organizations.

Article 3. Right of workers’ organizations to draw up their constitutions and rules and to elect their representatives in full freedom and to freely organize their activities and to formulate their programmes. 

• Section 20(2) of the IRA, so as to ensure that trade unions can conduct ballots for election or removal of trade union officers and for amendment of the constitution of trade unions without interference from the authorities;
• Section 20 (3) of the IRA, so as to ensure that trade unions can conduct strike ballot without supervision by the authorities;
• Sections 73, 76(1) and 77 (1) of the IRA providing for compulsory arbitration to bring an end to a collective labour dispute and a strike, so as to not excessively restrict the right of organizations to formulate their programmes and organize their activities;
• Sections 74(3), 75(3), 76(2)(b) and 77(2) of the IRA, so as to ensure that no penal sanctions may be imposed for having carried out a peaceful strike; and
• Section 75, so as to allow organizations responsible for defending socio-economic and occupational interests to use strike action or protest 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.

Article 5. Right to affiliate to an international federation or confederation.

• Section 39 of the IRA, so as to ensure the right of workers’ and employers’ organizations to affiliate with international organizations of workers and employers.

The Committee notes the Government’s indication that the National Tripartite Council is continuing to review the IRA and that no amendments have yet been made to any of the abovementioned sections, or to article 31 of the Constitution (which, among others, defines prison services as “disciplined force” along with the police and military). The Government indicates that priority has been given to sections 20(2), 74(3), 75(3), 76(2)(b) and 77(2) of the IRA in the reviewing exercise and that it is examining the possibility of repealing section 39 of the IRA. The Committee welcomes the Government’s indication that it will request ILO technical assistance to finalize any relevant pieces of legislation. The Committee urges the Government to take all necessary measures, in consultation with the social partners, to amend its legislation in the near future, so as to ensure its full conformity with the Convention without further delay, and requests the Government to provide information on all developments in this respect.

Repetition

Article 3 of the Convention. Right of organizations to elect their representatives in full freedom. In its previous comments, the Committee had requested the Government to clarify whether section 9(4)(1) of Schedule I of the Industrial Relations Act (IRA) – which provides that executive committees and officers of trade unions should be elected at intervals not exceeding three years - implies that union officials cannot be re-elected for a consecutive term. The Committee takes due note that the Government indicates that section 9(4)(1) of Schedule I of the IRA does not prevent members of trade unions from being re-elected for a consecutive term.

Right of organizations to freely organize their activities and to formulate their programmes. The Committee had previously noted that under section 20(3) of the IRA, the failure to conduct a strike ballot under the supervision of an officer of the ministry renders the strike unlawful. The Committee had observed 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, and therefore had requested the Government to revise the abovementioned provision. Noting the Government’s indication that the entire IRA is under review, the Committee expects that, during the upcoming amendment of the IRA, full account will be given of the Committee’s comments regarding the need to amend section 20(3) of the IRA. It further requests the Government to provide information on any developments in this regard.

In its previous comments, the Committee had noted that: (i) under the terms of section 73 of the IRA, the minister shall refer a dispute to the tribunal if the parties to the dispute, within non-essential services, failed to reach a settlement, and that, under section 77(1), it is unlawful to have recourse to strike action once the dispute is referred to the tribunal; and (ii) according to section 76(1) of the IRA, 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 had therefore recalled that recourse to compulsory arbitration to bring an end to a collective labour dispute and a strike is only acceptable: (i) in the case of disputes concerning public servants exercising authority in the name of the State; (ii) in conflicts in essential services in the strict sense of the term (that is services the interruption of which would endanger the life, personal safety or health of the whole or part of the population); or (iii) in situations of acute national crisis. The Committee had thus requested the Government to take the necessary measures to revise sections 73, 76 and 77, so as to not excessively restrict the right of organizations to formulate their programmes and organize their activities. Noting the absence of information provided in this regard, the Committee reiterates its previous request, and further requests the Government to provide information on any developments in this regard.

The Committee had previously noted that section 75 of the IRA provides that any strike is illegal if: (i) it has any object other than, or in addition to, the furtherance of a trade dispute within the trade or industry in which the strikers are engaged; or ii) it is designed or calculated to coerce the Government either directly or by inflicting hardship upon the community; and had requested the Government to clarify whether workers’ organizations are 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 with regards to employment, social protection and standards of living. The Committee notes the Government’s indication that the IRA provides that trade unions can exercise the right to strike only in the context of collective labour disputes; however, this does not prevent trade unions from demonstrating peacefully or from issuing statements and presenting their views on social issues. The Committee recalls that trade unions and employers’ organizations responsible for defending socio-economic and occupational interest should be able to use, respectively, strike action or protest 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 (see the 2012 General Survey on the fundamental Conventions, paragraph 124). In view of the above, the Committee requests the Government, in consultation with social partners, to take the necessary measures to amend its legislation accordingly and to provide information on any developments in this regard.

Repetition

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. Noting that the Industrial Relations Act, 2012 (IRA) does not apply to the prison service (section 3), the Committee had previously requested the Government to specify the manner in which prison staff and the relevant organizations enjoy the rights and guarantees enshrined in the Convention. The Committee notes that the Government reiterates that the Bahamas Prison Staff Association allows for prison staff (denominated correctional officers under the national legislation) to have a public platform to address any concern that its members may have, yet also acknowledges that unfortunately prison and correctional officers do not benefit from all the rights and guarantees enshrined within Convention 87 based on their substantial employment position. The Committee recalls that it had previously expressed its concerns with regard to sections 39 and 40 of the Correctional Officers (Code of Conduct) Rules 2014, which limit the rights of association and representation to approved staff organizations on matters related to the conditions and welfare of the officers as a group. The Committee must emphasize that all workers and employers, without distinction whatsoever, have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization, and that these organizations should enjoy all guarantees under the Convention. Recalling that the only exceptions from the application of the Convention concern the armed forces and the police, the Committee requests the Government to take the necessary measures – including by revising section 3 of the IRA and the Correctional Officers (Code of Conduct) Rules, 2014 – with a view to ensuring that prison staff enjoy all rights and guarantees under the Convention. The Committee requests the Government to provide information on any developments in this regard.

Right of workers and employers to establish organizations without previous authorization. In its previous comments the Committee noted that under section 8(1)(e) of the IRA, beyond consideration of the specific requirements for registration, the Registrar shall refuse to register a trade union if she/he considers, after applying the rules for the registration of trade unions, that the trade union should not be registered; and that according to section 1 of the First Schedule of the IRA, in applying the rules for the registration of trade unions, the Registrar shall exercise his/her discretion. Thus, the Committee had requested the Government to take the necessary measures to limit the Registrar’s powers in relation to the registration of trade unions and employers’ organizations. In this respect, the Committee recalls that conferring upon the competent authority a discretionary power to accept or refuse an application for registration can be tantamount in practice to imposing “previous authorization”, which is incompatible with Article 2 of the Convention. Noting with regret that the Government has provided no information in this regard, the Committee once again requests the Government to revise section 8(1)(e) and the First Schedule of the IRA to ensure that, beyond the verification of formalities, the Registrar has no discretionary powers to refuse the registration of trade unions and employers’ organizations.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules and to elect their representatives in full freedom. In its previous comments, the Committee had noted that section 20(2) of the IRA – which provides that the secret ballot for election or removal of trade union officers and for amendment of the constitution of trade unions shall be held under the supervision of the Registrar or a designated officer – is contrary to the Convention. The Committee had thus expressed the hope that specific measures would be taken for the amendment of said provision. Noting the Government’s indication that section 20(2) of the IRA is presently under review by the National Tripartite Council, and recalling that the amendment of the above-mentioned provision is a long-standing issue, the Committee urges the Government to take all the necessary measures to amend section 20(2) of the IRA in the near future with a view to ensuring that trade unions can conduct ballots without interference from the authorities, and requests the Government to provide information on any progress achieved in this regard.

Right of organizations to freely organize their activities and to formulate their programmes. The Committee had previously noted that, when a strike is organized or continued in violation of the provisions concerning the trade disputes procedure, the IRA provides for excessive sanctions, including imprisonment for up to two years (sections 74(3), 75(3), 76(2)(b) and 77(2)). On that occasion it recalled that no penal sanctions should be imposed against a worker for having carried out peaceful strikes and that such sanctions could be envisaged only where, during a strike, violence against persons or property or other serious infringements of rights have been committed. Noting that the Government did not provide its observations thereon, the Committee urges the Government to amend the above-mentioned sections of the IRA to ensure that no penal sanctions may be imposed for having carried out a peaceful strike.

Article 5. Right to affiliate to an international federation or confederation. The Committee had previously noted that, under the terms of section 39 of the IRA, it is not 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 in this regard. While having further noted the Government’s indication that these approvals are generally granted and do not represent a challenge, the Committee had requested the Government to take measures to align national legislation with such practice and to repeal section 39 of the IRA in order to give full effect to the right of workers’ and employers’ organizations to affiliate with international organizations of workers and employers. In this respect, the Committee recalls that international solidarity of workers and employers also requires that their national federations and confederations be able to group together and act freely at the international level (see the 2012 General Survey on the fundamental Conventions, paragraph 163). Noting the Government’s indication that section 39 of the IRA is under review by the National Tripartite Council and recalling that the Committee has been requesting the Government to address this matter since 2006, the Committee firmly expects that the Government will take all the necessary measures to ensure that this section will be repealed in the near future and requests the Government to provide information on any developments in this regard.

The Committee reminds the Government that it may avail itself of the technical assistance of the Office and hopes that it will be able to observe progress in the near future.

Repetition

The Committee notes the Government’s indication that the most recent amendment to the 2001 Industrial Relations Act (IRA) occurred in 2012. It observes with regret that the Industrial Relations (Amendment) Act, 2012, did not address the concerns raised in its previous direct request and notes the Government’s statement that discussions to this end continue.

Article 3 of the Convention. Right of organizations to elect their representatives in full freedom. The Committee had previously noted 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 of the IRA). The Committee requests the Government once again to clarify whether this section implies that union officials cannot be re-elected for a consecutive term.

Right of organizations freely to organize their activities and to formulate their programmes. The Committee had previously noted that section 20(3) of the IRA requires a strike ballot to be taken under supervision by an officer of the ministry, and that, if this section is not complied with, a strike is unlawful. The Committee requests the Government once again to review section 20(3) 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.

In its previous comments, the Committee had noted that: (i) under the terms of section 73 of the IRA, the minister shall refer a dispute to the tribunal if the parties to the dispute, within non-essential services, failed to reach a settlement, and that, pursuant to section 77(1), it is unlawful to have recourse to strike action once the dispute is referred to the tribunal; and (ii) according to section 76(1) of the IRA, 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 reiterates that, in order not to excessively restrict the right of organizations to formulate their programmes and organize their activities, recourse to compulsory arbitration to bring an end to a collective labour dispute and a strike is only acceptable when the strike in question may be restricted, or even prohibited, that is: (i) in the case of disputes concerning public servants exercising authority in the name of the State; (ii) in conflicts in essential services in the strict sense of the term (that is services the interruption of which would endanger the life, personal safety or health of the whole or part of the population); or (iii) in situations of acute national or local crisis. The Committee therefore requests the Government once again to take the necessary measures to review sections 73, 76 and 77, in order not to excessively restrict the right of organizations to formulate their programmes and organize their activities.

The Committee had previously noted that section 75 of the IRA provides that any strike is illegal if: (i) it has any object other than, or in addition to, the furtherance of a trade dispute within the trade or industry in which the strikers are engaged; or (ii) it is designed or calculated to coerce the Government either directly or by inflicting hardship upon the community. In this respect, the Committee requests the Government once again to clarify whether workers’ organizations are 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.

Repetition

The Committee notes the observations received on 1 September 2014 and on 1 September 2016 from the International Organisation of Employers (IOE), which are of a general nature.

The Committee notes the Government’s indication that the most recent amendment to the 2001 Industrial Relations Act (IRA) occurred in 2012. The Committee observes with regret that the Industrial Relations (Amendment) Act, 2012, did not address the concerns raised in its previous observation and notes the Government’s statement that discussions to this end continue.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee had previously noted that the IRA does not apply to the prison service (section 3). In this respect, the Committee notes the Government’s reference to the Correctional Officers (Code of Conduct) Rules 2014, which allowed for the establishment of the Bahamas Prison Officers Association (BPOA). Noting the limited scope of sections 39 and 40 of the abovementioned Rules, the Committee requests the Government to specify the manner in which prison staff and the relevant organization(s) enjoy the rights and guarantees enshrined in the Convention.

Right of workers and employers to establish organizations without previous authorization. In its previous comments, the Committee noted that, under section 8(1)(e) of the IRA, beyond consideration of the specific requirements for registration, the Registrar shall refuse to register a trade union if he/she considers that the union should not be registered. Moreover, according to section 1 of the Schedule of the IRA, in applying the rules for the registration of trade unions, the Registrar shall exercise his/her discretion. The Committee requests the Government once again to take the necessary measures to review section 8(1)(e) of the IRA so as to limit the discretionary power conferred upon the Registrar in relation to the registration of trade unions or employers’ organizations.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules and to elect their representatives in full freedom. In its previous comments, the Committee noted that section 20(2) of the IRA, under the terms of which a secret ballot for election or removal of trade union officers and for the amendment of the constitution of trade unions shall be held under the supervision of the Registrar or a designated officer, is contrary to the Convention. The Committee once again expresses the hope that specific measures will be taken for the amendment of section 20(2) of the IRA with a view to ensuring that trade unions can conduct ballots without interference from the authorities.

Right of organizations freely to organize their activities and to formulate their programmes. In its previous comments, the Committee had noted that, when a strike is organized or continued in violation of the provisions concerning trade dispute procedure, excessive sanctions, including imprisonment for up to two years are provided (sections 74(3), 75(3), 76(2)(b) and 77(2) of the IRA). The Committee recalls once again that no penal sanction should be imposed against a worker for having carried out a peaceful strike and that 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 these sanctions are imposed pursuant to legislation punishing such acts. Therefore, the Committee once again requests the Government to amend the abovementioned sections of the IRA to ensure that no penal sanctions may be imposed for having carried out a peaceful strike.

Article 5. Right to affiliate to an international federation or confederation. The Committee had previously noted that, under the terms of section 39 of the IRA, 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 in this regard. In this respect, the Committee notes the Government’s indication that although the process requires ministerial approval, these approvals are generally granted and do not represent a challenge. The Committee requests the Government to take measures to align national legislation with the current practice and repeal section 39 of the IRA in order to give full effect to the right of workers’ and employers’ organizations to affiliate with international organizations of workers and employers.

The Committee reminds the Government that, if it so wishes, it may avail itself of the technical assistance of the Office.

Repetition

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.

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.

Repetition

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.

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.