Rapport définitif - Rapport No. 243, Mars 1986

1. 262. The International Union of Food and Allied Workers' Associations (IUFAWA) presented a complaint of alleged violations of trade union rights in a communication dated 14 August 1984.
2. 263. The Government stated in a letter dated 24 September 1984 that the matter was before the Industrial Court. On 12 July 1985 the Government advised that no further developments had taken place in the matter which is still before the Industrial Court. In a further communication dated 16 December 1985 the Government stated that, since the matter is before the Industrial Court, it is not in a position to send any observations on the matter.
3. 264. The Committee adjourned this case at its meetings in November 1984, February and May 1985. At its meeting in November 1985, the Committee addressed an urgent appeal to the Government for its observations and stated that it would examine the case at its next meeting even if the reply had not been received (see 241st Report, para. 8, approved by the Governing Body at its 231st Session, November 1985). No reply has been received from the Government.
   • Government. 265. Antigua and Barbuda have 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. 266. In its communication of 14 August 1984, the IUFAWA alleges that over 100 hotel workers in Antigua were dismissed following a strike which conformed with the legal texts and local regulations. It and the Antigua Workers' Union consider that this jeopardises the freedom of association of the hotel workers. It calls for the re-establishment of a normal situation for the dismissed hotel workers.
2. 267. The IUFAWA gives the following background to the case. The collective agreement concluded between the employers (Antigua Hotels and Tourism Association) and the legally authorised trade union organisation (Antigua Workers' Union) for the hotel sector was due to expire on 31 December 1983. Since the parties could not come to an agreement, the Minister of Labour met the two negotiators on 11, 13 and 22 December 1983, following which the Minister made certain recommendations. The union accepted and the employers' organisation rejected the proposals, so the Minister amended them. The union again agreed and the employers' organisation rejected the amended proposals. On 22 December 1983, the union informed the Antigua Hotel and Tourism Association that, if agreement could not be reached before midday 23 December, a strike would be announced.
3. 268. In the absence of any reaction from the employers, the workers in the Jolly Beach and Hawksbill Beach hotels went on strike at midday 23 December and were followed on 24 December by the workers of three other hotels. At the same time the Minister of Labour instituted proceedings before the competent judicial body, the Industrial Court. The Antigua Workers' Union received no official notification from the Court about this measure. Since these judicial proceedings rendered the strike illegal for the employers, the hoteliers made it known that any wage earner who had not recommenced work by 7 am 25 December would be considered as having abandoned his work. The union called for a return to work on 26 December.
4. 269. All wage earners who had not recommenced work by 7 am 25 December were informed that they were deemed to have resigned and that they had to sign a new recruitment contract relinquishing their seniority entitlements if they wished to obtain work. Most of the workers - who had an average of 12 years' service - refused to sign such a contract.
5. 270. On 30 January 1984, the Civil Court, in proceedings instituted by the trade union, held that the case brought by the Minister before the Industrial Court was founded and thus, by virtue of s. 20(1) of the Industrial Court Act 1976, any participation in strike action after midday 23 December was prohibited. However, the Court also stated that participation in such action did not mean that the strikers had abandoned their work and there were no grounds for deeming the employment contracts to be broken; the employers were consequently prohibited from unilaterally breaking the employment contracts by using the pretext of participation in the strike of 23, 24 and 25 December 1983. According to the IUFAWA, the employers paid no heed to this and continued to insist upon the signing of a new contract, failing which the wage earner is deprived of employment without compensation.
6. 271. In conclusion, the complainant stresses that the strike was called after recourse was had to all negotiation, conciliation and arbitration methods, including mediation through the Minister of Labour, and was in accordance with the legal texts in force in Antigua. The strike became illegal after the hasty institution of proceedings before the Industrial Court at midday 23 December. The employers made their own ultimatum (the morning of 25 December) and paid no heed to the appeal made by the trade union that evening for a return to work for the following day. Furthermore, the sanctions (break of employment contract without compensation) apply to strikers, thus only to unionised workers.

B. The Government's reply

1. 272. Apart from the brief communications of 24 September 1984 and 12 July and 16 December 1985 repeating that the matter was before the Industrial Court, there has been no reply received from the Government.

C. The Committee's conclusions

1. 273. The present complaint concerns allegations of unjustified dismissal of over 100 members of the Antigua Workers' Union and the non-reinstatement of these hotel workers despite a civil court judgement on the matter declaring the dismissals illegal.
2. 274. First of all, the Committee regrets that the Government - apart from repeating that the matter is before the Industrial Court - has failed to supply observations on this case despite the time that has elapsed since the complaint was presented and despite the numerous requests made to it.
3. 275. The Committee considers it necessary to draw the Government's attention to the fact that the purpose of the whole procedure concerning allegations of infringements of freedom of association is to ensure respect for freedom of association both in law and in fact. The Committee recalls that while this procedure protects governments against unreasonable accusations, the governments should in turn recognise the importance of supplying, for objective examination, detailed replies to the allegations made against them.
4. 276. The Committee recalls that strike action is one of the means of action which should be available to workers' organisations to defend the social and economic interests of their members. The dismissal of workers because of a legitimate strike therefore constitutes discrimination in employment, and is contrary to Convention No. 98, ratified by Antigua and Barbuda. Given that the national civil courts have already decided in this sense, the Committee regrets that the employers concerned have not implemented this judgement which held that the striking workers' contracts of employment had not been broken.
5. 277. The Committee notes with surprise that the Industrial Court has been seized of this matter since 23 December 1983 apparently without rendering a decision. It also notes that this Court has been able to deal with the original dispute parallel to the civil court's examination of the dismissals (whose decision was rendered on 30 January 1984) under s. 19 of the Industrial Court Act, 1976 and that an appeal to the Court of Appeal is possible under s. 17 of the Act on points of law. It accordingly hopes that the Industrial Court will deliver its award without any further delay and requests the Government to send it a copy of the award on the matter.
6. 278. The Committee observes that the Committee of Experts on the Application of Conventions and Recommendations had been requesting information on the practical effects of ss. 19, 20 and 21 of the Industrial Court Act in comments on Convention No. 87 when Antigua was a non-metropolitan territory of the United Kingdom (most recently in 1981). It accordingly refers this case for information to the Committee of Experts to follow up in the context of Convention No. 87, ratified by Antigua and Barbuda after independence.