Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 211, Noviembre 1981

1. 292. The complaint of the National Workers Union (NWU) is contained in communications dated 12 February and 3 July 1981. The Government sent its reply in letters dated 15 April and 4 August 1981.
2. 293. 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. 294. The complainant alleges that after the present Government came to power on 30 October 1960, it disbanded the Board of Directors of the Government-owned Jamaica Broadcasting Station and, when constituting an interim Board, refused to re-appoint the two worker representatives Messrs. Brian Meeks and Pat Riley despite the fact that there were no legal barriers to having workers on the Board and despite the Government's statement that it was committed to worker participation and despite the appointment of workers to the boards of other Government-owned bodies. According to the complainant, in spite of numerous attempts on its part, the Corporation refused to appoint the worker representatives, or any other two workers, to the Board and the matter was referred to the Ministry of Labour for conciliation. After two meetings had been held, the Director of Industrial Relations informed the NWU that it was the view of the Ministry that this particular issue did not qualify as an industrial dispute and consequently would not be further pursued by the Ministry.
2. 295. The complainant states that the Corporation then disbanded the Current Affairs Department of the Broadcasting Station making Messrs. Meeks and Bogues redundant. After unsuccessful discussion with the Corporation, the matter was referred to the Ministry for conciliation which also failed; the NWU asked for the matter to be referred to the Industrial Disputes Tribunal in accordance with section 6 of the Labour Relations and Industrial Disputes Act, 1975, and with the grievance procedure clause of the collective agreement in force between the NWU and the Corporation, but the Corporation refused to join in the referral. The grievance paragraph 37(e) reads "failing settlement of such mediation the dispute shall be referred to arbitration and the decision thereon shall be binding on both parties". The complainant further claims that the Minister refused to intervene in a positive manner as he is entitled under section 10 of the Act (discretion to refer an industrial dispute, other than those in an essential service, to the Tribunal for settlement) in a definite attempt to abrogate from the rights of the union. The NWU also claims that this action contravened Part VI, paragraph 21, of the Labour Relations Code of 1976 which sets out the steps to be included and followed in a collective agreement, steps which were included in the agreement in force between the union and the Corporation.
3. 296. Lastly, the NWU alleges that 13 more unionised members of another department of the Corporation were dismissed on the pretext that their posts were being made redundant whereas the identical posts (as ascertained from the job descriptions) were then advertised to the public under different names. The dismissed persons included Mr. Carl Campbell, Chief Delegate for the NWU, whose dismissal, according to the complainant, not only drives fear into the hearts of other prospective delegates and the workers in general, but also contravenes the disciplinary procedures set out in Part VI(e) of the Labour Relations Code i.e. "no disciplinary action should normally be taken against a delegate until the circumstances of the case have been discussed with a full-time official of the union concerned". According to the complainant, discussion of this action with the Corporation was unsuccessful; the matter was taken to the Ministry for conciliation but this again proved futile as the Corporation refused to allow the dispute to go to arbitration. The complainant submits that this victimisation is contrary to section 24(3) of the Constitution which states that no individual should be discriminated against in any manner whether by reason of his race, place of origin, political opinions, colour or any such criteria. It successfully sought an injunction before the High Court to prevent the Corporation from filling the 13 posts and states that a final ruling should be forthcoming shortly on the final aspect of the injunction hearing.
4. 297. The complainant sees this action on the part of the Government as part of a broader attack upon the rights of trade unions as they serve as encouragement to management as a whole to ignore collective agreements and slowly erode the hard-earned rights of workers. It submits that if the Corporation is allowed to openly ignore the existing collective agreement, this will encourage other management to break unilaterally and arbitrarily these agreements.

B. The Government's reply

1. 298. The Government states that the NWU did make complaints to the Ministry of Labour on two separate but similar issues. With regard to the first, the Government explains that the Minister of Labour, acting on the advice of the Law Officers of the Crown, ruled that there was no dispute referable to the Industrial Disputes Tribunal; the law governing dismissals by reason of redundancy sets out the procedure to be followed with regard to the second issue involving dismissal of some Broadcasting Station workers, the NWU's request for a meeting at the Ministry was duly accommodated, according to the Government, but the meeting ended inconclusively. It states that the next development was not another meeting to conciliate and settle, but the NWU took its case to the Supreme Court where it is still awaiting a ruling.
2. 299. In its second communication, the Government explains that although the Ministry of Labour does not determine the policies of the other ministries, it can say that one of the basic policies of the Government is the encouragement of worker representation on boards of management, a policy which is having very effective and positive results.

C. The conclusions of the Committee

1. 300. This case involves three issues: the non-appointment of two worker representatives to the Board of the Government-owned Broadcasting Station, the dismissal on grounds of redundancy of two unionised station employees and the retrenchment of 13 unionised station employees, including the chief delegate to the NWU. The two latter actions were allegedly excluded from hearing by the Industrial Disputes Tribunal because of the Government's stance.
2. 301. The Committee notes that the complainant does not allege that the non-appointment of workers' representatives to the Board was due to anti-union discrimination, nor does it stipulate which laws the Government was breaking by not appointing workers to the Board; it in fact admits that workers have been appointed to the boards of other Government-owned bodies. The Committee, while generally recalling the importance of consultation and co-operation between public authorities and employers' and workers' organisations regarding matters of mutual concern, as stressed in the Consultation (industrial and National Levels) Recommendation, 1960 (No. 113), considers that there are no grounds for examining the first issue and decides that this aspect of the case does not call for further examination.
3. 302. Regarding the dismissal on grounds of redundancy of two unionised Broadcasting Station employees, the Committee notes that the complainant does not allege that this action was due to antiunion discrimination, nor does it clearly state how the handling of this action violated the procedure governing such situations. The Labour Relations code - paragraph 21 of which is cited by the complainant - only sets out guidelines helpful for the purpose of promoting good labour relations, and the collective agreement in force - paragraph 37(e) of which is cited by the complainant - does not specify that both parties to a dispute shall refer it to arbitration in the case of failure to settle it by mediation but states that "the dispute shall be referred to arbitration " Section 10 of the Labour Relations and Industrial Disputes Act, 1975, also cited by the complainant, merely sets out a ministerial discretion to intervene. Lastly, presumably because the collective agreement is not explicit in this respect, the complainant cites section 6 of the Act which reads as follows:
4. 6. Collective agreements. (1) Every collective agreement which is made in writing after the commencement of this Act shall, if it does not contain express procedure for the settlement, without stoppage of work, of industrial disputes between the parties, be deemed to contain the procedure specified in subsection (2) (in this section referred to as the implied procedure).
5. (2) The implied procedure shall be:
   • (a) the parties shall first endeavour to settle any dispute or difference between them by negotiation; and
   • (b) where the parties have tried, but failed, to settle a dispute or difference in the manner referred to in paragraph (a) any or all of them may request the minister in writing to assist in settling it by means of conciliation; and
   • (c) all the parties may request the Minister in writing to refer to the Tribunal for settlement any dispute or difference which they tried, but failed, to settle by following the procedure specified in paragraphs (a) and (b).
     • This section appears to be silent as to what happens when the Minister refuses to refer the request for settlement to the Tribunal under subsection (c), but the Committee notes the Government's statement that he acted "on the advice of the Law Officers of the Crown" in refusing to do so in this dispute. The Committee also notes that neither the two persons involved nor the complainant organisation challenged the Minister's omission before other forums. In this respect, it would point out, as it has done in the past, that where a worker feels that he is the subject of anti-union practices, he should be able to appeal to a court or to some other authority independent of the parties concerned. Nevertheless, in view of the lack of detailed information before the Committee, it is of the opinion that this aspect of the case does not call for further examination.
   • 303. As concerns the retrenchment of 13 unionised workers at the Station, including the chief delegate to the NWU, the Committee notes that the complainant sees this action on the part of the Government as part of a broader attack on trade unions and that the Government answers this allegation by referring to the fact that the matter is pending before the Supreme Court. Although the Committee has recognised that it would be extremely difficult for a worker who was dismissed by an employer invoking, for example "neglect of duty", to prove that the real motive for his dismissal was to be found in his trade union activities, it considers that the fact that the 13 allegedly redundant posts were re-advertised to the public is hardly indicative of good faith on the part of the employer. The Committee would accordingly point out to the Government that one of the basic principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment such as dismissal, transfer, demotion and other prejudicial measures - and that this protection is particularly desirable in the case of trade union officials because, in order to perform their trade union duties in full independence, they must have the guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers' organisations should have the right to elect their representatives in full freedom. It would like to be informed of the outcome of the Supreme Court action in the hope that the 13 unionised workers will be reinstated in their posts or, if this is not possible, at least compensated for the discrimination shown them.