Rapport définitif - Rapport No. 145, 1974

1. 33. The complaint of the Independent Trade Unions Action Council (ITAC), the Jamaica Congress of Labour, the Dockers' and Marine workers' Union, the University and Allied Workers' Union, the Municipal and Parish Council Workers' Union, the Jamaica Union of Public Officers and Public Employees, the Port Supervisory Union, and the Union of Technical Administrative and Supervisory Personnel is contained in a communication dated 15 December 1973. The ITAC sent further information on 20 March 1974. The complaint was forwarded to the Government, which sent replies on 20 February and 14 May 1974.
2. 34. Jamaica has ratified both 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. A. The complainants' allegations

1. 35. In the communication of 15 December 1973, the complainants allege that the Government of Jamaica has drawn up two Bills, the Industrial Relations Bill and the Public Service Relations Bill, without giving enough time to the independent unions not represented on the Labour Advisory Council to formulate their comments and study the drafts.
2. 36. The complainants object in particular to certain provisions of these Bills which introduce fines and possible imprisonment for refusal to obey certain ministerial orders in labour matters, the wide discretion given to the Minister of Labour to qualify any activity as an "essential service" and hence prohibit strikes or other industrial action in that sector, the exclusion of the Government (though the largest employer in the country) from the obligation of submitting labour disputes with their employees to an arbitration tribunal, and the discretion given to the Minister in ordering the taking of polls for the determination of the majority union in an undertaking.
3. 37. In its letter of 20 March 1974, the ITAC encloses a copy of the modified Bill, entitled "Labour Relations and Industrial Disputes Bill, 1974". The Committee notes from this text and from a copy of a letter from the Prime Minister to the General Secretary of the ITAC, enclosed by the complainant in its communication, that certain of the original provisions concerning imprisonment for disobedience to ministerial orders have disappeared and, although provisions for fines remain they will be treated, according to the Prime Minister's letter, as judgement debts due to the Crown and thus would not entail imprisonment for non-payment.
4. 38. In its communication of 14 May 1974, the Government states that it supports the principle of freedom of association and the right of workers to bargain collectively but that, while it accepts that freedom in collective bargaining is an ideal method for the adjustment of trade disputes, it feels that in view of the cur rent pattern and frequency of industrial disputes, the stage has been reached for the setting up of procedures for assisting in the containment of those disputes which, if unresolved, could well jeopardise its national efforts. It therefore intends to introduce legislation designed to provide for the development and maintenance of more orderly industrial relations and more effective machinery for the settlement of industrial disputes.
5. 39. The Government adds that the first drafts of the proposed legislation were discussed in the Labour Advisory Council (in which employers' and workers' organisations are equally represented) and that drafts were also circulated to the organisations not represented on that Council, and in particular to the complainants in the present case. The Government transmits the text of the Bill which was tabled in Parliament on 28 February 1974 and states that the Bill has since been referred to a Select Committee of the House for consideration and that the comments of the public have been invited and will be studied in that Committee. The Government declares itself willing to make amendments to the Bill if they should be considered necessary.
6. 40. According to section 9 of the Bill, any "industrial action" (which is defined as including lockouts, strikes and any course of conduct which is carried on with the intent of preventing, reducing or otherwise adversely affecting the production of goods or the provision of services) in essential services is prohibited unless the Minister or the Industrial Disputes Tribunal has not complied with the provisions requiring them to take certain action within relatively brief time limits. Machinery is provided whereby the parties can choose their own method for the settlement of disputes but, should this fail, the dispute shall be referred to a tripartite Industrial Disputes Tribunal.

B. B. The Committee's conclusions

1. 41. The Committee has always stated in the past that whenever strikes are prohibited in essential services or the civil service this restriction should be accompanied by adequate, impartial and speedy conciliation and arbitration procedures in which the parties can take part at every stage and in which awards are binding in all cases on both parties. In this case, the provision made for tripartite arbitration machinery, which is of wider application in the field of labour disputes, or other procedures agreed upon by the parties and in which the parties to the dispute are equally represented would seem to satisfy the criteria which have guided the Committee in its past considerations, provided, however, that in the case of disputes in an essential service in which the Government or municipal authorities are the employer, the award of this Tribunal is binding upon the Government or municipality. The Bill is not entirely clear on this point.
2. 42. The Bill provides that the following services shall be considered essential: water, electricity, health, hospital, sanitary, public passenger transport, fire-fighting and prison services, and all services connected with the storage and delivery of goods at, or from, docks, wharves and warehouses operated in connection with docks or wharves. In his statement made upon the presentation of this Bill to Parliament (a copy of which was forwarded by the Government), the Minister of Labour and Employment stated that public passenger transport had been included because of the need to transport workers to their jobs, particularly those employed in other essential services and the necessity to curtail the activities of illegal drivers whose passengers are not protected by insurance and whose vehicles may not have been given the necessary road safety certificates. According to section 28 of the Bill, however, the Minister of Labour may at any time amend the list of essential services subject to an affirmative resolution of both Houses of Parliament. Further, the Minister may order compulsory arbitration (and in consequence cessation of industrial action) in relation to any industrial dispute, even if not in an "essential service", if it appears to him that it has caused or would cause an interruption in the supply of goods or in the provisions of services of such a nature or on such a scale as to be likely to be gravely injurious to the national interest. The Minister explained to the House, in his statement referred to above, that the Government felt that the time had come when the Minister, representing the public in general, must be vested with authority under the law to secure resumption of the flow of goods and services while procedures are set in motion to effect a settlement. The Minister added that this power would not be lightly used, but only in cases where the national interest is gravely endangered.
3. 43. The Committee notes that many of the services at present listed in the Bill appear to correspond with those normally considered essential in the strict sense. It recall:, however, that with regard to legislation which leaves a government a good deal of latitude in deciding which activities are to be considered public services and which in certain cases might not coincide with those that come under the heading of "essential services", it has taken the view that its principle regarding the prohibition of strikes in the essential services, referred to in paragraph 40 above, might be set aside if a strike were declared illegal in one or more firms which were not performing an "essential service" in the strict sense of the term.
4. 44. With regard to the procedure for determining the most representative union and its recognition by the employers for the purposes of collective bargaining, the Committee recalls that in relation to Case No. 728 concerning Jamaica, on which the Committee submitted conclusions to the Governing Body in its 138th Report, it considered in particular that the competent authorities should, in all cases, have the power to proceed to an objective verification of any claim by a union that it represents the majority of the workers in an undertaking, provided such a claim appeared plausible. The Committee recommended that the Government should be requested to indicate what steps if any had been taken or were being considered to establish a procedure such as that suggested by the Committee. At paragraph 4 of its 142nd Report, the Committee noted that the Government had reported that it proposed in January 1974 to put before Parliament a Bill which would provide inter alia for compulsory poll-taking to determine trade union claims for recognition and the compulsory recognition of unions in cases where the union had established that it represented a specific proportion of the labour force.
5. 45. Section 5 of the Labour Relations and Industrial Disputes Bill 1974 provides that the Minister may, at the request of the employer or of any trade union claiming bargaining rights in relation to a group of workers in the proposed unit, cause a ballot to be taken for the purpose of determining which unions are most representative and that, if the ballot shows that a majority of workers indicate that they wish a particular union to represent them, the employer is obliged to recognise that union as bargaining agent, and is subject to stringent penalties if he refuses recognition. Although from the language of section 5 it would appear that the Minister has discretion as to whether to order such a poll or not, the Minister, in his statement before Parliament referred to in paragraph 42 above, stated that "it has now been decided to legislate for compulsory recognition of trade unions based on certification procedures including compulsory poll-taking which will not be subject to the Minister's discretion". The Committee notes these developments with interest.