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Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Bermuda

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Legislative developments. The Committee notes that the Government reports that the Trade Union Act was repealed and consolidated into the Trade Union and Labour Relations (Consolidation) Act, and that Trade Union and Labour Relations (Transitional) Regulations, as well as Procedural Guidelines for Cancellation of Certification, were also adopted. It takes note of the Government’s indication that the new legislation came into effect on 1 June 2021. The Committee will examine its conformity with the Convention at its next session.

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Article 2 of the Convention. Protection against acts of employer interference. In its previous comments, the Committee had requested the Government to indicate any measures taken by the Labour Advisory Council to further protect against any possible employer intimidation or interference in respect of union certification or decertification. The Committee notes that the Government indicates that the Labour Law Reform Committee (LLRC) – a subcommittee of the Labour Advisory Council under the direction of the Minister of Home Affairs – concluded in February 2018 its review of all labour legislation (the Employment Act, the Labour Relations Act, the Labour Disputes Act and the Trade union Act) and considered that all Bermuda labour laws should be codified into one piece of legislation to be known as the Labour Law Act, in order to simplify the laws and avoid any conflicting provisions. A policy document containing the recommendations of the LLRC was submitted to the Minister of Home Affairs for consideration. The Committee notes that the Government does not indicate whether these recommendations address its previous comments. The Committee requests the Government to provide a copy of the policy document referred to and expresses the firm hope that it will be in a position to note progress in the near future concerning the adoption of measures to further protect against any possible employer intimidation or interference in respect of union certification or decertification.

Article 4. Collective bargaining by management personnel. In its previous comments, the Committee had taken note of a 2014 Supreme Court decision according to which: (i) section 30A of the Trade Union Act hinders management personnel from engaging in collective bargaining with their employers under the statutory framework of compulsory recognition of collective bargaining agents; and (ii) management personnel are nevertheless free to engage in voluntary collective bargaining with their employers outside the statutory framework. The Committee had recalled that the Committee on Freedom of Association had noted in this regard that, while it was clear that management personnel could not be represented by a union certified as an exclusive bargaining agent under the Trade Union Act, the exclusion only concerned the statutory system of compulsory recognition of collective bargaining agents and did not call into question the rights of management personnel to engage in negotiations existing under the voluntary system, nor their right to organize generally as workers under the Trade Union Act. The Committee notes that the Government indicates that the LLRC has reviewed the labour law in force, including the Trade Union Act and the case law pertaining to the exercise of collective bargaining by management personnel and drafted a policy document with recommendations in light of the 2014 Supreme Court decision – document which is before the Minister of Home Affairs for consideration. Recalling once again that only the police, the armed forces and public servants engaged in the administration of the State may be excluded from the obligation to promote the full development and utilization of machinery for voluntary collective negotiation set out in Article 4 of the Convention, the Committee trusts that the Government will ensure that the right to collective bargaining of management personnel will be fully respected by the legislative measures currently being envisaged and requests it to provide information on any developments on this matter, including a copy of the recommendations referred to.

Promotion of collective bargaining in practice. The Committee requests the Government to provide information on the number of collective agreements concluded and in force, the sectors concerned and the number of workers covered by these agreements.

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The Committee takes note of the observations of the Bermuda Public Service Union (BPSU) annexed to the Government’s report.

Article 2 of the Convention. Protection against acts of employer interference. In its previous comments, the Committee noted that the Government had indicated in its report that the Labour Advisory Council was in the process of being consulted regarding the upgrading of a policy which was aimed to assist the certification process mandated by the Trade Union Act 1965. The Committee notes that the Government indicates in its report that the Minister of Home Affairs has composed a committee derived from members of the Labour Advisory Council to consult and recommend changes to the current Labour Laws of Bermuda. This committee has reviewed the Trade Union Act 1965, the Labour Relations Act 1975 and the Labour Disputes Act 1992 and discussion is scheduled to continue to determine the best legal framework for the development of labour practices in Bermuda. The Committee observes that it has been decided that the three Acts will be replaced by one statute and that a unified Tribunal system will replace the Employment Tribunal, Permanent Arbitration Tribunal, Labour Disputes Tribunal and the Essential Industries Disputes Board. The Committee requests the Government to provide information on any developments in this regard and expresses the firm hope that it will be in a position to note progress in the near future.

Article 4. Collective bargaining by management personnel. The Committee takes note of a 2014 Supreme Court decision submitted with the Government’s report, according to which: (i) section 30A of the Trade Union Act hinders management personnel from engaging in collective bargaining with their employers under the statutory framework of compulsory recognition of collective bargaining agents; and (ii) management personnel are nevertheless free to engage in voluntary collective bargaining with their employers outside the statutory framework. The Committee recalls that itself and the Committee on Freedom of Association had previously examined the issue concerning the right to collective bargaining of management personnel in Bermuda. In this regard, the Committee on Freedom of Association had noted that, while it was clear that management personnel could not be represented by a union certified as an exclusive bargaining agent under the Trade Union Act, the exclusion only concerned the statutory system of compulsory recognition of collective bargaining agents and did not call into question the rights of management personnel to engage in negotiations existing under the voluntary system, nor their right to organize generally as workers under the Trade Union Act. The Committee further notes that the BPSU in its observations refers to the preparation by an ad hoc tripartite committee of recommendations to the Minister of Labour for legislative amendments to safeguard the collective bargaining rights of management personnel – the BPSU alludes to such process as the reason why it did not appeal the 2014 Supreme Court ruling. Recalling that only the police, the armed forces and public servants engaged in the administration of the State may be excluded from the obligation to promote the full development and utilization of machinery for voluntary collective negotiation set out in Article 4 of the Convention, the Committee requests the Government to provide information on any developments on this matter, including as to the impact of the Supreme Court ruling on the exercise of collective bargaining by management personnel and any legislative amendments being considered.

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Article 2 of the Convention. Protection against employer interference. In its previous comments, the Committee requested the Government to indicate any measures taken by the Labour Advisory Council to further protect against any possible employer intimidation or interference in respect of union certification or decertification. The Committee notes that the Government indicates in its report that: (1) the Labour Advisory Council is in the process of being consulted regarding the upgrading of policy which is aimed to assist the certification process mandated by the Trade Union Act 1965; (2) the issues being addressed involve the disclosure of information which is required in the application for certification for a given employer and the opportunity for possible intimidation by an employer of those workers supporting union certification; (3) the alternative being explored is to have sworn affidavits to replace the need to produce receipts indicating union dues or a list of names of persons in support; and (4) another aspect being explored is to speed up the process of certification which will assist with maintaining a sense of security. The Committee also notes that, according to the Government, the various parties are proving feedback and the process will continue and hopefully be concluded at the next quarterly meeting of the Council. The Committee requests the Government to provide information on any development in this regard.

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Article 2 of the Convention. Protection against employer’s interference. In its previous comments, the Committee requested the Government to indicate any measures taken or envisaged to protect against any possible employer intimidation or interference in respect of union certification or decertification. The Committee notes that the Government indicates in its report that in addition to doubling the number of Labour Relations Officers, the Department of Labour and Training continues to work with all of its social partners to proactively protect against employer intimidation and/or interference in respect of union certification and decertification. In addition, the Labour Advisory Council, which is chaired by the minister responsible for labour, meets quarterly and provides an opportunity and a forum for the Labour Relations Officers, the unions and/or the employers to discuss any concerns or issues. The Committee requests the Government to indicate any measures taken by the Labour Advisory Council to further protect against any possible employer intimidation or interference in respect of union certification or decertification.

Article 4. Coverage of management personnel. In its previous comments, the Committee requested the Government to indicate any measures taken or envisaged to include management personnel within the scope of the Trade Union Act so as to guarantee them the rights established by the Convention, in particular the right to collective bargaining. The Committee observes that according to the Government: (i) every worker has a right to belong to a union as prescribed by article 10(1) of the Constitution, therefore including management personnel; (ii) management personnel can be placed within a specific bargaining unit if there is agreement between the parties that collective bargaining agreement representation be installed; (iii) if a union has historically represented management personnel in an organization, then unless there are exceptional circumstances why recognition should be denied, then the Department of Labour and Training should use the weight of their department to facilitate the employer recognizing the union; (iv) the Labour Advisory Council agreed to this way forward, wherein the Department of Labour and Training will “cause” employers to recognize unions where it is appropriate to do so; and (v) the Department of Labour and Training will facilitate the process already in place for rights to recognition, in a way that is inclusive of management personnel. The Committee takes due note of this information.

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The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

Coverage of management personnel. In its previous comments, the Committee requested the Government to indicate any measures taken or envisaged to include management personnel within the scope of the Trade Union Act so as to guarantee them the rights established by the Convention. The Government had indicated that the Labour Advisory Council is in the process of finalizing a process of consideration of specific amendments to the Act which will help to protect employees generally and, specifically, will include management personnel within the scope of the Trade Union Act. The Committee requests the Government to transmit, with its next report, the amended Trade Union Act.

The Committee hoped that it would soon be able to note progress on these two issues.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

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Protection against employer interference. In its previous comments, the Committee requested the Government to indicate any measures taken or envisaged to further protect against any possible employer intimidation or interference in respect of union certification or decertification. The Committee notes the information provided by the Government that the number of Labour Relations Officers has been doubled from two to four, a measure which it believes will assist the labour relations environment and play some part in protecting against any possible employer intimidation or interference in respect of union certification or decertification. The Committee requests the Government to provide information, in its next report, in this regard and to consider other ways of ensuring protection against acts of interference.

Coverage of management personnel. In its previous comments, the Committee requested the Government to indicate any measures taken or envisaged to include management personnel within the scope of the Trade Union Act so as to guarantee them the rights established by the Convention. In this regard, the Committee notes that the Government indicates that the Labour Advisory Council is in the process of finalizing a process of consideration of specific amendments to the Act which will help to protect employees generally and, specifically, will include management personnel within the scope of the Trade Union Act. The Committee requests the Government to transmit, with its next report, the amended Trade Union Act.

The Committee appreciates the information contained in the Government’s report and hopes that it will soon be able to note progress on these two issues.

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The Committee notes that the Government’s report has not been received. It also notes the comments made by the Bermuda Public Services Union (BPSU).

Protection against employer interference. In its previous comments, the Committee had requested the Government to indicate any measures envisaged to amend the 1998 Trade Union Amendment Act, which took effect on 1 May 2000, so as to further protect against any possible employer intimidation or interference in respect of union certification or decertification. The Committee recalls that this request originated in the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 1959 (320th Report, approved by the Governing Body at its 277th Session in March 2000). Recalling that in its previous report the Government had noted that this matter is still under consideration, the Committee once again requests the Government to indicate any measures taken or envisaged to further protect against any possible employer intimidation or interference in respect of union certification or decertification.

Coverage of management personnel. In its previous comments the Committee, taking note of the conclusions of the Committee on Freedom of Association in Case No. 1959 and the Government’s commitment to the objective of including management personnel within the scope of the provisions of the Trade Union Amendment Act, despite the defeat of an amendment to this effect in the Senate in August 1999, requested the Government to indicate in its next report the measures taken or envisaged in order to include management personnel within the scope of the Act and guarantee to them the rights established by the Convention. The Committee notes the comments made by the BPSU according to which there are no pending amendments to the Trade Union Amendment Act 1998, consolidated under the Trade Union Act, so as to afford management personnel the rights established by the Convention. The BPSU also refers to a case of denial of the right to organize to the middle management staff of a public institution. The Committee once again requests the Government to indicate in its next report the measures taken or envisaged in order to include management personnel within the scope of the Trade Union Act so as to guarantee to them the rights established by the Convention.

The Committee hopes that, in the near future, it will note substantial progress in the application of the Convention.

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The Committee notes the Government’s report.

1. Protection against employer interference. In its report, the Government refers to the need to amend the 1998 Trade Union Amendment Act, which took effect on 1 May 2000, to further protect against any eventual employer intimidation or interference in respect of union certification or decertification. The Government indicates in its report that this matter is still under consideration. The Committee requests the Government to indicate any measures envisaged to further protect against any eventual employer intimidation or interference in respect of union certification or decertification.

2. Coverage of management personnel. In its previous direct request, the Committee took note of the conclusions of the Committee on Freedom of Association in Case No. 1959 (320th Report, approved by the Governing Body at its 277th Session in March 2000) and observed that in the context of this case, the Government had indicated that it remained committed to the objective of including management personnel within the scope of the provisions of the Trade Union Amendment Act, despite the defeat of an amendment to this effect in the Senate in August 1999. The Government reiterates its previous statements in its report, and adds that this issue is still under consideration. The Committee requests the Government to indicate in its next report the measures taken or envisaged in order to include management personnel within the scope of the Act so as to guarantee them the rights established by the Convention.

The Committee hopes that, in the near future, it will note substantial progress in the application of the Convention.

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The Committee notes with regret that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee takes note of the conclusions of the Committee on Freedom of Association in Case No. 1959 (320th Report, approved by the Governing Body at its 277th Session in March 2000).

The Committee notes the entry into force of the Trade Union Amendment Act, 1998, which took effect on 1 May 2000. The Committee observes that in the context of Case No. 1959, the Government has indicated that it remained committed to the objective of including management persons within the scope of the provisions of the 1998 Trade Union Amendment Act, despite the defeat of an amendment to this effect in the Senate in August 1999. In addition, the Government referred to the need to amend the Act to further protect against any eventual employer intimidation or interference in respect of union certification or decertification. The Committee requests the Government to indicate in its next report the measures taken or envisaged in order to include management persons within the scope of the Act, as well as any measures envisaged to further protect against any eventual employer intimidation or interference in respect of union certification or decertification.

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The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee notes the information contained in the Government’s report. It also takes note of the conclusions of the Committee on Freedom of Association in Case No. 1959 (320th Report, approved by the Governing Body at its 277th Session in March 2000).

The Committee notes the entry into force of the Trade Union Amendment Act 1998, which took effect on 1 May 2000. The Committee observes that in the context of Case No. 1959, the Government had indicated that it remained committed to the objective of including management persons within the scope of the provisions of the 1998 Trade Union Amendment Act, despite the defeat of an amendment to this effect in the Senate in August 1999. In addition, the Government referred to the need to amend the Act to further protect against any eventual employer intimidation or interference in respect of union certification or decertification. In its latest report, the Government states that no new development has been made on these issues. The Committee thus requests the Government to indicate in its next report the measures taken or envisaged in order to include management persons within the scope of the Act, as well as any measures envisaged to further protect against any eventual employer intimidation or interference in respect of union certification or decertification.