Report in which the committee requests to be kept informed of development - Report No 320, March 2000

1. 784. The Committee already examined this case at its March 1999 meeting when it submitted an interim report to the Governing Body (see 313th Report, paras. 198-219, approved by the Governing Body at its 274th Session).
2. 785. The Government sent additional information in a communication dated 2 November 1999.
3. 786. The United Kingdom 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), both of which have been declared applicable without modification to Bermuda.

A. Previous examination of the case

1. 787. In its previous examination of this case in March 1999, the Committee noted from the Government's latest communication that the Trade Union Amendment Act which was the subject of the complaint had been referred to the tripartite Labour Advisory Council for full consideration of the issues raised by the complainant and that the Act was not to come into operation until such consultation had been completed and any resulting amendments were incorporated into the Act. In light of these circumstances, the following recommendations of the Committee were approved by the Governing Body:
   • -- As concerns the exclusion of managerial staff from the Trade Union Amendment Bill, the Committee requests the Government to take the necessary measures to ensure that, in its final form, this Bill is not drafted in such a way as to permit a broad exclusion of workers who do not genuinely represent the interests of employers from being represented by a certified collective bargaining agent.
   • -- The Committee requests the Government to provide information in reply to the allegations of government failure to secure the rights of middle-management employees to join independent trade unions and its refusal to intervene to ensure employer recognition for collective bargaining purposes of the unions duly chosen by the employees of the Bermuda Telephone Company, Southampton Princess Hotel and Hamilton Val Cleaners.
   • -- The Committee requests the Government to keep it informed of any amendments which may be made following the review by the Labour Advisory Council of the Trade Union Amendment Bill to further protect against any eventual employer intimidation or interference in respect of the procedures for union certification or de-certification.

B. The Government's reply

1. 788. In a communication dated 2 November 1999, the Government indicated that the Trade Union Amendment Act 1998, which was tabled in the House of Assembly by the previous administration, was passed by both Houses of the Legislature. It subsequently received formal assent but was never brought into operation. Thus although it forms the body of Bermuda law it has no practical effect at present.
2. 789. Following the General Election in November 1998 the new Government undertook to review the Act with a view to including management persons in its statutory certification and de-certification provisions. At the meeting of the Labour Advisory Council in February 1999 the Minister of Labour, Home Affairs and Public Safety invited the tripartite partners to forward their respective positions on the Act with particular reference to whether management persons should be covered by its provisions. All parties submitted their views in writing and these were studied carefully by the Minister.
3. 790. At a meeting of the Labour Advisory Council in June 1999, the Minister thanked members for their submissions and informed them that, having carefully weighed the merits of the various arguments, she now intended to proceed with an amendment to the Trade Union Act of 1965 to include management persons in its statutory certification and de-certification provisions, as provided for by the 1998 amendment.
4. 791. A Bill entitled the Trade Union Amendment Act 1999, which gave effect to that decision, was passed by the House of Assembly in August 1999 but was subsequently defeated in the Senate. The Government of Bermuda is now considering, in consultation with the social partners, the options now available and remains committed to the objective of including management persons within the scope of these provisions. The Government will keep the Committee informed as to any action taken in due course.
5. 792. As to the allegation of government failure to secure the rights of middle-management employees to join independent trade unions and its refusal to intervene to ensure employer recognition for collective bargaining purposes of the unions duly chosen by union employees of the Bermuda Telephone Company, Southampton Princess Hotel and Hamilton Val Cleaners, the Government states that it can only speculate on the motives of the previous administration which formed the government at the time the Trade Union Amendment Act 1998 was passed by the Legislature. However, it is incorrect to say that the Government failed to secure the rights of middle-management employees to join independent trade unions given that the Bermuda Constitution guarantees the right of association and the freedom of individuals to belong to a trade union and that, similarly, section 30(1)(a) of the Trade Union Act, 1965, provides workers with the right to be a member of a union of their choice, and section 30(2) makes it an offence for an employer to prevent a worker from exercising that right.
6. 793. As for the allegations that the then Government refused to intervene to ensure employer recognition for collective bargaining purposes, the Government was actually unable to intervene because there was at that time no provision in law to permit it to do so. It can be deduced that it was for this reason that the Government thus chose to enact the 1998 amendment to the Act to set down in law the right of workers to choose a particular union to represent them for collective bargaining purposes and for that union to be recognized as such by the employer.
7. 794. As for the Committee's request to be kept informed of any measures adopted to protect further against any acts of employer intimidation or interference in respect of the procedures for union certification or de-certification, the Government maintains that sections 30(I) and (J) of the 1965 Trade Union Act provide protection against employer intimidation or interference in this respect. Workers' rights with respect to trade union membership are further protected by sections 30 and 40 of the Trade Union Act. In the circumstances, therefore, the Government is satisfied that the legislation provides sufficient protection against interference of the kind described. However, the current Government has indicated that there still remains a need for further protection since the Senate defeat of the Trade Union Amendment Act and for ongoing dialogue with the parties.
8. 795. Submissions have been received from affected stakeholders with a view to trying to move beyond the impasse and from a position of entrenched view to a more constructive position which provides scope for compromise. This dialogue is welcomed by the Government as it strives to encourage and promote a healthier labour relations climate. To that end, the Government is in the preparatory stages of drafting new, more progressive labour legislation. The final form of the document will be a product of dialogue and discussions which reflect a consensus.

C. The Committee's conclusions

1. 796. The Committee recalls that the allegations in this case concerned the failure of the Government to ensure the recognition by certain employers of unions duly chosen by employees and the exclusion of middle management from representation by certified collective bargaining agents under the 1998 Trade Union Amendment Bill. The complainant had also referred generally to the possibility under the Bill for employer interference and intimidation in respect of the certification and de-certification process of collective bargaining agents.
2. 797. The Committee further recalls the Government's earlier indication that the amendment Bill in question had been introduced precisely in order to provide a legal framework to guarantee the right of workers to choose a particular union to represent them for collective bargaining purposes and to ensure that such a union would be recognized by the employer in contrast with the previous system of voluntary recognition.
3. 798. The Committee notes with interest the measures taken by the Government to stay the entry into operation of the Trade Union Amendment Act, 1998, until further consultations with the Labour Advisory Council and the resulting proposed amendment of 1999 to include management persons within the statutory certification and de-certification provisions of the 1998 Trade Union Amendment Act. Noting that the Government remains committed to the objective of including management persons within the scope of the provisions of the 1998 Trade Union Amendment Act, despite the defeat of the 1999 amendment in the Senate, the Committee requests the Government to keep it informed of any further developments in this respect and draws this matter to the attention of the Committee of Experts on the Application of Conventions and Recommendations. It also requests the Government to take all necessary measures to ensure that the legislation is applied in practice in a manner so as to protect effectively against acts of employer intimidation and interference.
4. 799. As concerns the allegation of government failure to secure the rights of middle-management employees to join independent trade unions and its refusal to intervene to ensure employer recognition for collective bargaining purposes of the unions duly chosen by employees of the Bermuda Telephone Company, Southampton Princess Hotel and Hamilton Val Cleaners, the Committee notes the Government's indication that the right to organize is guaranteed by the Constitution of Bermuda and the 1965 Trade Union Act. As for government intervention to ensure employer recognition for collective bargaining purposes, the Government indicates that there was no provision in the law permitting such intervention and that it could be deduced that this was precisely the reason the Government chose to enact the 1998 amendment in order to set down in law the right of workers to choose a particular union to represent them for collective bargaining purposes and for that union to be recognized as such by the employer. In the absence of detailed information from the complainants in this respect, the Committee requests the complainants to provide follow-up information concerning the allegations of the Government's refusal to intervene to ensure employer recognition for collective bargaining purposes of the unions duly chosen by employees in the abovementioned enterprises.
5. 800. As concerns the Committee's request to be kept informed of any amendments made to the Act in order to further protect against any eventual employer intimidation or interference in respect of union certification or de-certification, the Committee takes due note of section 30 of the 1998 Trade Union Amendment Act as concerns the protection of voting in ballot and duties of persons generally in relation to conduct of ballot referred to by the Government and cited in the Committee's previous conclusions. The Committee further notes the Government's indication in its latest reply that there still remains a need for further protection and for ongoing dialogue with the parties in this respect. It requests the Government to keep it informed of any further measures which might be taken in this respect and draws this matter to the attention of the Committee of Experts on the Application of Conventions and Recommendations.