Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 325, Juin 2001

lack of consultation concerning legislation

1. 97. The National Congress of Trade Unions and the Bahamas Trade Union Congress presented a complaint of violations of freedom of association against the Government of the Bahamas in a communication dated 24 September 2000. Further information in support of the complaint was forwarded by the complainants in a communication of 5 October 2000.
2. 98. In a communication dated 28 November 2000, the Government responded to the allegations.
3. 99. The Bahamas has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98); it has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

A. The complainants’ allegations

1. 100. The complainants state that they are the two umbrella organizations representing virtually all the registered trade unions in the Bahamas. The complaint concerns five Bills which were tabled in Parliament in 2000: the Employment Bill, the Minimum Wages Bill, the Industrial Tribunal and Trade Disputes Bill, the Health and Safety at Work Bill, and the Trade Union and Labour Relations Bill. The complainants contend that these Bills violate Conventions Nos. 87 and 98, and express concern that provisions of the current laws that protect the development of trade unions will be repealed. The complainants also indicate that there has been a lack of adequate consultation in the preparation of the legislation, and that the Government intends to continue to push for the passing of the Bills regardless of the complainants’ objections.
2. 101. The complainants state that the country’s workers are currently in limbo regarding redress for violations of the current labour laws and practice since the Court of Appeal has found the Industrial Tribunal to be unconstitutional and “designed to create confusion”. The proposed and tabled Industrial Tribunal and Trade Disputes Bill remains unconstitutional as drafted. Having communicated to the Government their deep concern in this regard, the complainants have been informed that a sixth Bill is being envisaged to establish a court to deal with industrial matters. Though this sixth Bill is referenced in the other Bills, the complainants have not yet seen it, and are being asked to accept the Bill without having had an opportunity to review it.
3. 102. The complainants describe the Trade Union and Labour Relations Bill as “lethal” for trade unions and workers. In the view of the complainants, the Bill has been designed to restrict severely the activities and freedom of the labour movement, and in some instances to do away with trade unions completely. The complainants then list some of their major concerns regarding the Bill:
   • n the requirements, regulations and rules governing the responsibilities of trustees are excessively intrusive and are in fact more stringent than any of the rules, regulations and responsibilities in any legislation in the country governing officers of a company, NGO, church or government corporation;
   • n the financial reporting process proposed is excessive, violates principles of free trade unionism, and is an invasion in the administration of any independent organization. This represents new and increased governmental interference in constitutionally recognized organizations;
   • n the relationship with the auditors has been changed, creating excessive legally binding obligations. It also creates a situation where the auditor becomes more of an investigator than an auditor. Further, the obligation of the auditor to report information listed in the Bill is not applied in respect of any other organization in the country;
   • n the current law exempts trade unions and their leaders from criminal and civil liability. The new law proposes that trade unions and trade union members can be sued for trade union activities. This represents a major departure from what is currently the law by introducing tort liability for trade unions. History tells us that progress is often only made when action is taken to “force” change in order to better the terms and conditions of employment for workers. Should this aspect of the Bill become law, it is clear that it will be used by employers to systematically and lawfully rid the workplace of trade unions;
   • n the Bill will take away the fundamental right to strike in furtherance of a trade dispute which workers enjoy at present, as well as the right to work to rule or to go slow. Denying workers the right to withhold their labour is unacceptable. The loss of this right, along with the threat of tort liability will serve to destroy unions;
   • n the maximum penalty for trade unions and workers is up to $100,000, while the maximum penalty for employers is $5,000;
   • n there is no language in the Bill to ensure that industrial agreements will be legally binding, as is currently the case. This is regressive, and rather than strengthening trade unions as social partners, it will enable their demise;
   • n the issue of recognition is not solved by the Bill (section 67(5)). The wording of the Bill will need to be changed if the intention is to have mandatory recognition of trade unions, with the Minister’s determination being final. As the provision is currently drafted, it is unconstitutional and can be challenged, which will be another lawful way of deterring and destroying trade unions.
4. 103. The complainants also point to provisions in the other Bills concerning basic wages, minimum wages, and severance payments, as well as the creation of a new category of temporary workers who are not entitled to maternity benefits or vacation pay.
5. 104. For a number of months, the complainants registered their strong objection to the Bills, making numerous appeals in person and in writing, organizing a march, and burning the Bills. The complainants have also provided the Government with directions and amendments to the Bills, concrete evidence of the regressive nature of the Bills, and have asked that they not be adopted. With their communication of 5 October 2000, the complainants enclose a lengthy critique of the Trade Union and Labour Relations Bill, and the Employment Bill, with suggested amendments. The complainants state that they have not been heard, and characterize the manner in which the Government is proceeding with its agenda as “frightening”.

B. The Government’s reply

1. 105. In its communication of 28 November 2000, the Government informs the Committee that the complainants refer to earlier drafts of the Bills, which have since been amended following dialogue with the social partners and consultation with the International Labour Office. In the view of the Government, the amendments addressed most of the concerns that had been raised by the workers’ representatives; however, after the most recent tabling of the Bills in Parliament, the trade unions adopted the position that they were regressive and accused the Government of rushing the Bills through Parliament. The Government responded to this criticism by establishing a working committee to review the concerns of the trade unions.
2. 106. The Government states that it is currently engaged in ongoing dialogue with the complainants with a view to refining further the proposed legislation. The complainants have been participating in agreed working groups since October 2000. It is envisaged that a “happy medium” will be reached concerning the unpalatable provisions of the Bills. According to the Government, the consultations have focused on specific areas of concern raised by the workers’ representatives. The Government states that it will forward to the Committee the conclusions arising out of the working groups and the final texts once the process is concluded.

C. The Committee’s conclusions

1. 107. The Committee notes that the allegations of violations of freedom of association arise from the introduction into Parliament of five Bills concerning labour and employment: the Employment Bill, 2000; the Minimum Wages Bill, 2000; the Industrial Tribunal and Trade Disputes Bill, 2000; the Health and Safety at Work Bill, 2000; and the Trade Union and Labour Relations Bill, 2000. The complainants contend that these Bills violate Conventions Nos. 87 and 98, and that there had been inadequate consultation with the trade unions concerned prior to the legislation being presented to Parliament.
2. 108. The Committee notes that, according to the Government, the complainants refer to draft Bills that have since been amended following consultation with the social partners and with the International Labour Office. Since the Bills as amended continued to attract considerable criticism from the trade union movement, the Government states that a working committee to review the Bills has been established, and that working groups set up by consensus, and in which the complainants have been participating, have been reviewing the Bills since October 2000 with a view to reaching a compromise. The Committee notes the Government’s commitment to forward the conclusions arising out of the working groups and the final texts.
3. 109. Given the Government’s statement that consultations are taking place at present in an attempt to address the concerns raised by the complainants with respect to the draft Bills, the Committee expresses the firm hope that full consultations with the social partners will take place in good faith, and that the further amended Bills will comply with freedom of association principles. The Committee requests the Government and the complainants to keep it informed of the results of the working groups and to forward the final draft of the Bills prior to their adoption by Parliament so that the Committee may examine the conformity of the Bills with freedom of association principles. The Committee also draws the Government's attention to the continued availability of ILO technical assistance in bringing the legislation into conformity with the principles of freedom of association and Convention No. 98, which has been ratified by the Bahamas.