Rapport définitif - Rapport No. 89, 1966

1. 56. The complaint of the St. Kitts Employers' Consultative Federation is contained in a communication addressed to the I.L.O on 22 May 1965. On 13 December 1965 the Government of the United Kingdom forwarded observations on the matter prepared by the Government of St. Christopher-Nevis-Anguilla.
2. 57. 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 the provisions of these Conventions to be applicable without modification to St. Christopher-Nevis-Anguilla (otherwise known as St. Kitts-Nevis-Anguilla), of which the island of St. Kitts is an integral part.

A. A. The complainants' allegations

1. 58. The complainants state that there are annual negotiations between the St. Christopher Sugar Producers' Association (an employers' trade union belonging to the complaining federation) and the St. Kitts-Nevis Trades and Labour Union, generally scheduled by the union to take place shortly before harvest time.
2. 59. Early in 1965 negotiations were still unfinished after several weeks because the union was demanding a general wage increase in the sugar industry which the Association considered it could not give. The union refused to start reaping the crop, on which the economy of the island depends. The Association's attitude was that reaping should begin while the dispute went to arbitration, but the union refused. The union, it is alleged, proposed that the Price Stabilisation Fund should be used to pay a special 3 per cent bonus to the sugar workers at the end of 1965; the Association refused on the ground that this was not justified and would be an improper use of the Fund.
3. 60. On 13 March 1965, without first consulting or even notifying the Association, it is alleged, " the Chief Minister (who is also the Vice-President of the St. Kitts-Nevis Trades and Labour Union) introduced into the Legislative Council a Bill designed to achieve exactly what the union had failed to gain by negotiation ", and the Bill was enacted on the same day.
4. 61. The complainants explain that the system of payments by the industry which produced the Price Stabilisation Fund originated in voluntary agreement but was regularised by statute in 1947, since when annual contributions based on the number of tons of sugar produced have been paid by the producers to the Fund. The Fund represents a portion of the price of sugar reserved for the purpose of cushioning the industry in the event of a serious drop in prices in the sugar market. In the normal way, according to contract, the Fund would have been divided in such circumstances so as to give 65 1/8 per cent to the estates, 22 1/2 per cent to the factories and 12 3/8 per cent as a bonus to the estate workers. The new ordinance, it is alleged, diverts the entire contribution to the Fund by the employers in 1965 and 1966 for the purpose of paying a 3 per cent bonus to the sugar workers.
5. 62. In the view of the complainants these events constitute a violation of the Conventions applicable to St. Christopher-Nevis-Anguilla and, in particular, of Articles 3 and 4 of the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), and of Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
6. 63. The complainants state that they are deeply perturbed by " a situation in which any terms or conditions of employment which are demanded by a trade union, however unreasonable, can be forced upon the employers by resort to legislation-a situation which is always imminent when the Ministers of the Government are leading officials of the trade union ". They fear, from pronouncements made by Ministers, that the use of legislation in this way will become a pattern for the future, collective bargaining being replaced by process of law, contrary to the said Convention No. 98. In support of this argument, the complainants allege that the President of the union-also a Minister of the Government-has declared that in future the union will not risk exposing its demands to inspection by a Board of Arbitration.
7. 64. The Government of St. Christopher-Nevis-Anguilla states that the annual negotiations in the sugar industry in 1965 followed the usual pattern, agreement being reached on most points, until the last item on the list of proposals-a wage increase-was reached. There was a deadlock on the issue of a bonus for factory workers, and intervention by the Labour Commissioner and the Minister of Agriculture and Labour proved unsuccessful. At the same time discussions took place before the Labour Commissioner on the union's demand for a general wage increase in the sugar industry. According to the Government the union then agreed to limit its proposal for a wage increase to estate workers only, but the Association maintained that it was financially impossible.
8. 65. After several weeks of deadlock the Chief Minister proposed to both sides that the Stabilisation Fund should be used to pay a 3 per cent bonus to sugar estate workers only and said that, if both sides agreed to this, he would approach the Secretary of State for the necessary authority to use the Fund for this purpose. The union agreed, but the Association said that this would be an improper use of the Fund. At this point the Administrator proposed that, if this course were taken, an equal amount might be drawn from the Fund by the employers, but the Association refused.
9. 66. After the deadlock had further continued until the situation was regarded as desperate the Government took the legislative action criticised by the complainants. It considers that, as the use of the Fund was defined in legislation, it was entitled if need be to amend that legislation to meet the prevailing circumstances.
10. 67. The Government states that the proposal to use the Fund came from the Chief Minister in that capacity and was something which neither side had contemplated, and that the suggestion in the complaint that the proposal emanated from the union (see paragraph 59 above) was subsequently admitted by the complainants to be untrue. In this connection the Government has furnished the text of a letter dated 5 July 1965 from the complainants to the Chief Minister containing this admission but maintaining that the source of this inspiration was nevertheless evident.
11. 68. In conclusion the Government states that since the enactment of the law complained of, in 1965, various collective agreements have been concluded, representatives of employers and workers were consulted prior to the establishment of minimum rates for shop assistants, and consultation is in progress on a Bill to restrict the employment of children. Hence, the Government considers, it is implementing the provisions of Article 3 of Convention No. 84 and Article 4 of Convention No. 98.
12. 69. This case raises two issues which, though they have been related to each other, nevertheless involve different questions of principle. One issue relates to the enactment of legislation on a matter which has been the subject of collective bargaining by a government which has ratified I.L.O. Conventions containing undertakings to promote voluntary negotiation. The second issue is a much narrower one and relates to the propriety or otherwise of enacting such legislation when leading officials of the union concerned in such collective bargaining are at the same time government Ministers.
13. 70. The complainants refer especially to Article 3 of the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), which provides that " all practicable measures shall be taken to assure to trade unions which are representative of the workers concerned the right to conclude collective agreements with employers or employers' organisations ", and Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which provides that " measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements ".
14. 71. It is not clear why allusion should have been made to Article 3 of Convention No. 84, which is designed to ensure the bargaining rights only of workers' organisations. This Article does not appear to be relevant to the matters alleged.
15. 72. With regard to the question of Article 4 of Convention No. 98 it is alleged that, because on one occasion when lengthy negotiations had reached a deadlock the Government gave effect to the claims of the union by an enactment, Article 4 has been infringed. If such an argument were valid it would, if carried to its logical conclusion, mean that in nearly every country which prescribed a minimum national wage by law because the workers were not sufficiently strongly organised to enforce a demand for such a standard through negotiation Article 4 of Convention No. 98 would be infringed. Such an argument would clearly be untenable. It is true that the complainants have expressed fears that this will set a pattern for the future. If that fear should in the future be justified by the Government adopting a systematic policy of giving by law what the unions cannot obtain by negotiation, the situation might call for reappraisal. But at this stage it is a supposition only and the Committee cannot regard the one case which has arisen as demonstrating a breach of Article 4 of Convention No. 98.
16. 73. It is also argued by the complainants that money rightfully belonging to the employers under a former enactment has been diverted to paying a bonus to the workers under the new enactment. On the propriety of the course taken in this connection the Committee is not called upon to pronounce.
17. 74. A serious issue is raised by the allegation that the union whose Vice-President is also the Chief Minister proposed that a 3 per cent bonus should be paid to the workers and that, on this being refused, the Chief Minister, in his parliamentary capacity, initiated legislation to give them the bonus. In the subsequent correspondence between the Chief Minister and the complaining organisation, however, it is admitted by the latter that this was not correct and that the proposal first emerged from the Chief Minister, in that capacity.
18. 75. The Committee considers that it is highly desirable that, where any person who is an official of a workers' or employers' organisation is at the same time a Minister of the Government, he should take the greatest care to avoid giving even an impression that in his ministerial capacity he is not acting with the strictest neutrality. It would seem particularly desirable that he should avoid acting in his trade union capacity in any matter in which he may be called upon to act in his ministerial capacity. Having regard, however, to the admission made by the complainants as to the origin of the proposal that a bonus be paid the Committee is unable to conclude that these principles of conduct were infringed in this case.