Informe provisional - Informe núm. 165, Junio 1977

1. 151. The complaint of the Antigua Workers' Union (AWU) is contained in a communication dated 1 July 1976 addressed directly to the ILO. The complainant organisation transmitted further information in connection with the complaint in a communication dated 24 September 1976. The complaint and additional information were communicated to the Government of the United Kingdom which, in a communication dated 14 December 1976, transmitted the observations of the Government of Antigua on the complaint.
2. 152. The Government of the United Kingdom has ratified the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), 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), and has declared these Conventions to be applicable without modification to Antigua.

A. A. The complainants' allegations

1. 153. In its communication dated 1 July 1976, the complainant organisation stated that, on 18 February 1976, the Antigua Labour Party (ALP) had won the general election in Antigua. On 19 February 1976, stated the complainants, the day on which the Government officially took office, 57 workers belonging to the complainant union were dismissed. Since that date, continued the complainants, the Government had embarked upon a weekly programme of victimisation and the dismissal of members belonging to the complainant union.
2. 154. The complainants continued that a worker could not get a job unless he was a member of the ALP or of the Antigua Trades and Labour Union, its industrial arm. The Party headquarters were being used as a hiring hall. For example, stated the complainants, no worker was allowed to work on the Willikies School, a project financed by British aid, unless he was an ALP supporter. The ALP was also selecting employees for the construction of a new administration building Which was also being financed by British aid. The Government had also acquired the Halcyon Cove Hotel and had dismissed a total of 127 workers out of a total workforce of 196. The workers dismissed were members of the complainant union and were being replaced by members and supporters of the ALP, some of whom now held two or more jobs. The complainants attached to their complaint a list showing the names of the workers who are alleged to have been dismissed by the Government on account of their political beliefs or their trade union affiliation.
3. 155. The complainants continued that attempts at getting some of these matters processed through the machinery set up by the Government to deal with labour disputes had been frustrated and the Labour Commissioner had refused to handle any dispute involving the Government.
4. 156. The Government, stated the complainants, was bent on doing everything possible to destroy effective trade unionism on the island within weeks of taking office, the Government had passed repressive labour legislation, namely the Industrial Court Act and the amendment to the Antigua Labour Code which abolishes the agency shop. Protests which had been made by various organisations, including the Caribbean Congress of Labour, had been ignored by the Antigua Government.
5. 157. In their further communication dated 24 September 1976, the complainants again referred to the Act (No. 3 of 1976) to amend the Antigua Labour Code which they stated was designed to prevent the complainant union from being able to collect union dues under the agency shop, thereby crippling the union. The complainants enclosed a copy of this amendment Act and also a copy of the Industrial Court Act, 1976, the provisions of which, according to the complainants, were to frustrate the efforts of free collective bargaining and to remove the right to negotiate and to substitute negotiation by legal and court measures.
6. 158. The complainants also referred again to the purchase, by the Government, of the Halcyon Cove Hotel, the dismissal of some 145 workers who were known members and supporters of the complainant union, and the compulsory introduction of a check-off or closed shop system at the hotel without following the provisions laid down in the Labour Code. The complainants added that the Holiday Inn Hotel had also been purchased and that all the employees thereof had been dismissed with the intention of introducing a similar policy and practice as for the Halcyon Cove Hotel. The West Indies Oil Company Limited, a company carrying on the business of manufacturing and sale of petroleum products, had also been purchased and all known members and supporters of the complainant union terminated and replaced by supporters of the Government Party.
7. 159. The complainants added that shift work had been introduced at the Government-owned Public Utilities Authority without due negotiation with the union, despite the fact that there had been in force at the time a collective agreement between the Authority and the complainant union. The complainants also stated that there had been reintroduced at the Government-owned Public Works Department a compulsory deduction of union dues system in respect of the Government-controlled union without following the provisions of the Labour Code as to representation rights.
8. 160. In its observations communicated on 14 December 1976, the Government of Antigua stated that the allegation that 57 members of the AWU had been dismissed and that other AWU workers had been victimised was incorrect. The Government added that since it was sworn in on 20 February 1976 all disputes which had been referred to the Labour Department had been dealt with and processed in accordance with the law. The Government added that it had no record of any such dismissals nor had the Government embarked upon any programme of victimisation and dismissal of members of the Antigua Workers' Union. The Government explained that there had been some cases of layoffs and dismissals of workers in ministries were there had been large surpluses of labour occasioned by the heavy employment programme launched by the previous administration just prior to the last election.
9. 161. As regards recruitment for the public service, the Government pointed out that Party and trade union affiliation does not debar any applicant from recruitment in the public service if that person is suitably qualified. In particular the Government was unaware of any discrimination practised by the Ministry of Public works in the recruitment of workers for the Willikies School and the administration building. The Antigua Labour Party, added the Government, was not a hiring agency for the Government.
10. 162. As regards the acquisition of the Halcyon Cove Hotel, and the alleged dismissal of the workforce, the Government stated that this matter had been reported to the Labour Department and that it had been handled according to the procedure laid down by law. On investigation, continued the Government, it was discovered that as a result of the change of ownership all employees of the Halcyon Cove Hotel had been terminated by the previous owner but had been kept on by the new owner. During the first month of the new ownership, roughly two-thirds of the employees were laid off in order to permit the new management to institute a programme of work evaluation. The Government stated that it understood that the workforce was to be brought up to strength over a period of time. There was no evidence, the Government pointed out, to support the accusation that vacancies were only being filled by supporters of the ALP or that any worker held more than one job.
11. 163. The Government also added that, as regards the dismissal of workers, political beliefs and trade union affiliation were not considerations Which were taken into account. Dismissals by the Government were based on overstaffing prior to the elections, lack of finance, redundancy, discontinuance of projects, and the cessation of temporary employment.
12. 164. As regards the allegation that the Labour Commissioner had refused to handle disputes which involved the Government, the government emphasised that the Labour commissioner was charged by statute with the responsibility of processing disputes involving all employers including the Government. The Labour Commissioner was in no position whatsoever to refuse to handle any such dispute and had in fact performed his duties to the full extent of the law.
13. 165. As regards the new legislation, the Government pointed out that it did not consider this legislation to be repressive. The Industrial Court Act had been passed in addition to the Labour Code and only suspended the authority of the Labour code in so far as a matter had been referred to the court. The processes of free collective bargaining were still intact under the provisions of the Code. Trade disputes would continue to run their course and to be resolved under the Labour Code. Voluntary adjustment and settlement of disputes continued still to take precedence in the disposal of all issues reported as trade disputes. The Industrial Court Act did not replace the Code; it only added additional machinery for the adjudication of trade disputes. The Government added that the amendment to the Labour code abolishing the agency shop did not in any way interfere with free collective bargaining. It was the view of the Government that the legislation would improve the industrial climate in the State.
14. 166. As regards the further allegations made in connection with the Halcyon Cove Hotel, the Government pointed out that in the light of the existing law it was clear that there could be no closed shop arrangement at this hotel and that a check-off system could only be for the normal payment of union dues by union members and was not compulsory. The Government explained that the hotel was now under the management of Hyatt Hotel International.
15. 167. As regards the allegations concerning the Rest Indies Oil Company Limited, the Government pointed out that at the time of the purchase of this company by the Government all the employees of that company were terminated by the parent company, Natomas, in accordance with a severance pay agreement negotiated with the Antigua Workers' Union. The Government added that the company was not at present manufacturing petroleum products and was being run by a skeleton staff. It was now managed by a Hoard appointed by the Government representing the new ownership.
16. 168. As regards the Holiday Inn, this was purchased by the Government of Antigua. According to the Government, all the workers had been severed by the previous owners and to date the hotel had not gone into full operation. The Government added that the management of the hotel had been contracted out to Holiday Inn International.
17. 169. As regards the allegations concerning the Public Utilities Authority, the Government explained that the principle of shift work formed part of the collective agreement covering employees of the Authority and negotiated between the Authority and the Antigua Workers' Union. Shift work, according to the Government, had always been in force at the Authority, a fact which would be obvious considering the nature of its activities.

B. B. The Committee's conclusions

1. 170. The Committee notes that the complaint essentially concerns alleged acts of anti-union discrimination committed by the Government in that it dismissed a large number of public servants and other workers in Government-owned enterprises after it came into power on 20 February 1976. The dismissed workers are all said to have been members of the complainant union and in many cases they are stated to have been replaced by members of the opposing union, the Antigua Trades and Labour Union. Allegations have also been made that labour disputes involving the Government as employer are not processed by the Labour Commissioner. The new labour legislation introduced by the Government in 1976, namely the Industrial Court Act, 1976 and the Antigua Labour Code (Amendment) Act, 1976, is also criticised by the complainants as being an attempt to destroy effective trade unionism in that, by abolishing the agency shop, it prevents the complainant union from being able to collect dues and in that, by the re-establishment of an industrial court it prevents free collective negotiation and substitutes legal and court measures therefor.
2. 171. In reply to these allegations, the Government, although admitting that there have been some layoffs and dismissals in ministries where, it states, there were large surpluses of labour, denies the specific allegation that 57 members belonging to the AWU were dismissed and that others were victimised.
3. 172. The Committee notes in particular the explanations put forward by the Government as regards the dismissal of workers in the specific enterprises that were acquired by the Government. In this connection the complainants supplied the names of more than 300 Workers stated to have been members of the complainant organisation who were dismissed or otherwise victimised. From the reply furnished by the Government, it appears that in some cases these workers were dismissed by the previous owner, but that in others dismissal has been ordered by the new management.
4. 173. The Committee would point out that it is a generally accepted principle that no person should be prejudiced in his employment by reason of his trade union membership or activities, In the present case, however, the Committee considers that it is difficult to reach a conclusion as to whether there was a breach of this principle in view of the lack of sufficient information available. The Committee considers, in particular, that the Government has not provided adequate information to explain why all the persons specifically named by the complainants happened to be members of the complainant organisation. The Committee recommends to the Governing Body that the substance of the Government's reply should be transmitted to the complainants for any comments they may wish to make thereon. The Committee also observes that, under the Industrial Court Act, 1976, procedures exist for the settlement of trade disputes. The Committee notes in particular that, under the terms of section 19(2) of the Industrial Court Act, if within ten days after the existence of a trade dispute has come to the attention of the Labour Commissioner he has failed to achieve voluntary adjustment or settlement of a trade dispute, a party to the dispute may refer it to the industrial Court. The Committee would therefore request the complainants to indicate whether recourse has been had to these procedures in the case of the persons alleged to have been dismissed.
5. 174. As regards the legislation recently introduced in Antigua, namely the industrial Court Act, 1976 and the Antigua Labour Code (Amendment) Act, 1976, the complainants have alleged that the former is designed to frustrate free collective bargaining and the substitution therefor of measures or awards imposed by the court, and that the latter, which abolishes the agency shop, prevents the complainant union from collecting union dues.
6. 175. In view of the nature of the allegations made, the Committee has considered it appropriate to examine the provisions of the Antigua Labour Code, 1975, and the Industrial Court Act, 1976, in so far as these relate to collective bargaining and dispute settlement procedures.
7. 176. The Committee notes that the Antigua Labour Code, in Divisions G.20 and K.25-28, would appear to guarantee the right to trade unions freely to negotiate and conclude collective agreements with employers and to determine by agreement the extent to which such collective agreements shall be legally enforceable. However, under section 19 of the Industrial Court Act, 1976, any trade dispute in case of failure of these negotiations may be referred by the minister or any party to the dispute to the Industrial Court, which is empowered to issue a binding award. Strike action is precluded in these circumstances.
8. 177. The Committee has indicated on numerous occasions that the right to strike by workers and their organisations is generally recognised as a legitimate means of defending their occupational interests. It has considered that this right could be affected where a minister or the employers are permitted by law to submit in every case for compulsory arbitration a dispute resulting from failure to reach agreement during collective bargaining and so prevent recourse to strike action. A general prohibition of strikes would constitute a considerable restriction of the opportunities open to trade unions for furthering and defending the interests of their members (Article 10 of Convention No. 87) and of the right of trade unions to organise their activities (Article 3). The Committee notes the Government's statement that voluntary adjustment and settlement of disputes still takes precedence in the disposal of all issues reported as trade disputes.
9. 178. As regards the allegation that the Antigua Labour Code (Amendment) Act, 1976, in abolishing the agency shop, prevents the complainants from collecting union dues, the Committee notes that the 1976 amendment Act introduces a new system of union security arrangement. In this connection the Committee would request the complainants, in connection with their complaint, to supply further and more detailed information as to the practical application of this new system.