Rapport définitif - Rapport No. 153, Mars 1976

1. 31. The Committee already examined this case in February 1975, when it presented the definitive conclusions set out in paragraphs 56 to 76 of its 150th Report. As the Government had submitted further information before the examination of that report by the Governing Body at its 196th Session (May 1975), the Governing Body decided to postpone its examination of the case.
2. 32. The complaint by the Jamaican Union of Bank Employees was submitted by a letter of 13 May 1974. Additional information was provided by a communication of 22 June 1974. The Government submitted its observations in communications of 10 June and 10 October 1974 and further information by a communication of 14 May 1975.
3. 33. 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. A. The complainants' allegations

1. 34. In its first communication, the complainant union described various infringements of trade union rights alleged to have been committed in connection with the refusal of the Jamaica Citizens Bank to recognise it. According to the complainants, this Bank had committed acts of anti-union discrimination since 18 December 1973 in order to prevent its staff from organising in the union of their choice. The acts consisted of threats of dismissal, refusal of salary increases, attempts at infiltration and "subversion" of the complainant union. In February 1974, the Union submitted a claim for representational rights and an audited list of its members to the Ministry of Labour. Although the Union established a prima facie case based on the fact that a considerable proportion of the staff was unionised, the Bank refused to attend the meeting to agree to a poll.
2. 35. The complainants added that during this period the Ministry of Labour acted merely as a channel for the transmission of the employers' views, instead of seeking rather to find an effective solution to the dispute. The Bank increased its opposition to the union and took action which included the dismissal of a union leader, demotion of the President of the Union, continual transferral of staff without due notice, destruction of union documents and open threats of victimisation. It also sought to refuse certain categories of workers, defined as supervisors and confidential staff, the right to representation by the union, without any legal grounds whatsoever.
3. 36. The complainant union then called a strike which, it stated, stopped the "subversion" but did not succeed in closing down the operations of the Bank. The Bank maintained its refusal to negotiate and took action to place the Bank's staff club under the control of the management. The Ministry of Labour was said not only to have failed to set up the necessary machinery to deal with the dispute, but also to have collaborated with the employer and to be the first to supply strike breakers. It conducted an investigation in which only managers of the Bank were interviewed, thus providing itself with a false basis on which to refuse to act against the Bank and to justify its reluctance to make full use of the collective bargaining machinery. According to the complainants, the police also collaborated with the Bank: on 26 April 1974, 12 members of the Union were arrested for lying down in the street; four days later, the General Secretary of the Union was assaulted by four police officers while demonstrating in front of the Bank's head office; the same day, a high-level meeting was held between the management of the Bank and senior police officers; two days later, eight strike pickets were arrested and remanded in custody following a telephone call from the management.
4. 37. The complainants added that supporters of the union were threatened - both before and during the strike and in collusion with other banks - with the closure of loan accounts and banking facilities. The Minister of Labour was said to have admitted to being almost powerless to do anything because no national laws existed to give him effective authority to settle the dispute.
5. 38. In their second communication, the complainants stated that the Bank had drafted lists of strikers and sent them to all the commercial banks on the island so that none of these workers would ever again be employed in a bank. The Bank was also said to have attempted to have members of the Union dismissed from their jobs in other industries such as insurance and tourism, and to have informed various businesses, particularly supermarkets, not to accept the cheques of strikers. The Ministry of Labour had not set up a commission of inquiry, despite requests to do so submitted to it since 25 April 1974.
6. 39. The Government, in its letter of 10 June 1974, refutes entirely the accusations made against it. It states that a Bill to provide for the development and maintenance of more orderly industrial relations and more effective machinery for the settlement of industrial disputes has been tabled in the House of Representatives.
7. 40. The Government supplied more detailed information in its letter of 10 October 1974. It states that it encourages autonomy in industry and that to this end the Ministry of Labour and Employment provides machinery for the settlement of issues involving trade union representation. With the agreement of the parties concerned, the Ministry may take a poll by secret ballot to determine the wishes of the workers concerned; the agreement usually provides that the outcome of the poll will determine the bargaining position of the parties. A poll may also be taken by the Ministry to determine the number of members of a union in a particular establishment, but no poll can be conducted without the co-operation of the employer. The latter must provide a list of the workers involved and permit ministry officials to enter its premises and conduct such a poll during working hours. The Government stated that the Bill mentioned contains provisions for the compulsory recognition of a trade union which wins a poll. The Government appended to its communication a series of documents concerning its role in the dispute.
8. 41. The Government submitted with a communication of 14 May 1975 a copy of Act No. 14 of 8 April 1975 in respect of labour relations and occupational disputes. Section 4 of this Act provides for court action and a fine not exceeding $2,000 for any person guilty of anti-trade union discrimination. With respect to the representation of workers by one or more trade unions, section 5 provides that the Minister may, in the event of doubt or dispute, order a poll in order to determine the workers' organisation(s) entitled to negotiate with the employer. If the majority of the workers vote in favour of a union, the employer must recognise its bargaining rights or lay himself open to severe penalties. Several unions may acquire this right in relation to an employer if each receives at least 30 per cent of the votes. An employer who impedes a vote is punishable with a fine not exceeding $1,000. If the Minister is unable to settle a dispute regarding the determination of the category of workers concerned by the vote, he must refer the dispute to a court.

B. B. The Committee's conclusions

1. 42. The case thus relates basically to refusal by a bank to recognise the complainant union as representing its staff, despite intervention by the Government. According to the complainant, the employer was guilty of anti-trade union practices before and during the subsequent strike. In addition, strike pickets were arrested.
2. 43. Regarding these arrests, the Committee notes that, according to the Government, the workers are authorised to place peaceful strike pickets, but that in the case under discussion the pickets had blocked the entrance to the bank and traffic in the street, had refused to go away and had used threatening and insulting language towards the police. The Committee also notes that they were found guilty by the courts and then released.
3. 44. The Committee also notes that the Government's reply contains no specific information on the anti-trade union acts by the Bank, particularly prior to the strike. The Committee has already pointed out, in another case relating to Jamaica, that complaints concerning anti-union practices should normally be examined by appropriate machinery. The Committee notes that the new Act of 8 April 1975 provides for recourse to a court and severe sanctions in the event of anti-union activities. The Committee considers that this new Act can be expected to prevent the practices which the complainants allege have been used by the employer.
4. 45. Regarding refusal by the Bank to recognise the complainant union, the Committee recalls that it has on several occasions examined similar complaints relating to Jamaica. The information available in these cases, as confirmed by the first information communicated by the Government in the present case, shows that in any case the Ministry could not organise a poll in order to determine the representative union(s) entitled to conduct collective bargaining, without the collaboration of the employer. In the case under discussion the employer refused his collaboration and thus prevented a poll being organised.
5. 46. The Committee has pointed out, in similar cases concerning Jamaica, the importance which it attaches to the principle that employers should recognise the organisations representative of their staffs for the purposes of collective bargaining. The Committee has also pointed out 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 that such a claim appears to be plausible.
6. 47. Under the Act recently adopted, the Minister may, in the event of doubt or dispute, order a poll in order to determine the union(s) which the employer must recognise for the purposes of collective bargaining if the workers vote to that effect. The Committee considers that, provided the Minister makes effective use of his powers to order a poll, these provisions should ensure that the type of dispute under consideration in the present case will not arise, and thus help to promote collective bargaining.