Definitive Report - REPORT_NO239, June 1985

1. 138. The Commonwealth of the Bahamas Trade Union Congress (TUC) presented a complaint of alleged violations of trade union rights in the Bahamas in a communication dated 18 July 1983. The TUC provided additional information in support of its complaint on 5 August 1983. The World Confederation of Organisations of the Teaching Profession (WCOTP) associated itself with this complaint in a letter of 10 August 1983, and provided additional information relating to the complaint in communications dated 20 October 1983 and 8 February 1984. In a letter dated 10 January 1984 the Government stated that a report on the complaint was being prepared and would soon be dispatched.
2. 139. At its meeting in November 1984 the Committee addressed an urgent appeal to the Government for its observations. (236th Report,para. 11, approved by the Governing Body at its 228th Session, November 1984.) On 4 February 1985 the Government sent a communication stating that its observations would be sent shortly. (See 218th Report, para. 15, approved by the Governing Body at its 229th Session, February-March 1985.) No further communications have been received from the Government.
3. 140. The Bahamas has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87);it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 141. In its letter of 18 July 1983 the TUC alleged that the Government was attempting to force into early retirement (one year before he was due to retire) the TUC's General Secretary, Mr. A. Leonard Archer, in an effort to curb his right to speak publicly on issues of national importance. On 5 August 1983 the TUC supplied a copy of the letter sent by the Department of Public Personnel to Mr. Archer informing him of his retirement as of 31 July following a recommendation to this effect by the Public Service Commission.
2. 142. In a letter of 20 October 1983 the WCOTP outlined the background to Mr. Archer's forced retirement: in January 1981 teachers undertook a 3-week strike over conditions of work, the General Secretary (later President) of the Teachers' Union being Mr. Archer; thereafter the TUC (including the Teachers' Union) discontinued a Memorandum of Understanding with the governing party which led to strong personal attacks on Mr. Archer in the press; on 13 April 1983 a small delegation of students representing the student council of a senior high school approached their principal, Mr. Archer, and asked for permission to leave school and present a petition, with representatives of other high schools, to the Government on the matter of unemployment; Mr. Archer told students that while he could not give them permission to go he would take no action against them if they went; out of a student body of 1,700, some 150 students left the school to present the petition; Mr. Archer refused to supply the Department of Education with a list of the participating students and spoke in support of them at a meeting organised by his union on 21 April 1983; on 2 May Mr. Archer received a notification from the Ministry of Education containing certain sections of the General Orders concerning the Public Service to the effect that, as a public servant, Mr. Archer had no right to speak out or to make statements to the press concerning the students; the letter also stated that if Mr. Archer had indeed made any statements then he had violated the General Orders, rendering him subject to immediate dismissal; Mr. Archer responded that any statements made by him were made in his capacity as union president/trade union leader and not as the principal of any school; on 1 June 1983 he was advised that disciplinary action was being initiated against him and was provided with a copy of a report by the Ministry of Education; he submitted a written reply on 7 June; upon Mr. Archer's compulsory retirement the Teachers' Union held peaceful demonstrations outside Parliament and on 17 August eight members of the union were arrested on charges of idle assembly, obstruction and resisting arrest and were released on bail the following day.
3. 143. The complainants are convinced that the disciplinary action was taken against Mr. Archer as a result of his trade union activities and not merely as a result of the 13 April 1983 incident.
4. 144. In its further communication of 8 February 1984 the WCOTP pursues the above allegation, stating that the choice of the Department of Public Personnel of procedures applicable to cases of "public interest" (under Regulation 45 of the Public Service Commission Regulations), rather than those applicable to specific breaches of discipline, suggests that the professed reason for Mr. Archer's dismissal, namely insubordination, was not the real reason for action against him. The WCOTP argues that, since specific charges of breach of General Orders were made against Mr. Archer, Regulation 45 is inapplicable. Regulation 45 reads as follows: "If a Permanent Secretary or Head of Department considers that it is desirable in the public interest that a public officer serving in his department should be required to retire from the public service on grounds which cannot suitably be dealt with under any other regulation, he shall report the matter to the Establishment Secretary".

B. The Committee's conclusions

1. 145. The Committee deplores the fact that, in spite of the allegations made in this complaint and the various requests made to the Government for its observations, the Government has not replied thereto. In the circumstances, before examining the substance of the case, the Committee considers it necessary to recall that the purpose of the procedure for the examination of allegations of violations of freedom of association is to promote respect for trade union rights in law and in fact, and that, if the procedure protects governments against unreasonable accusations, governments should in turn recognise the importance of formulating, for objective examination, detailed replies to the allegations brought against them.
2. 146. This case concerns the forced retirement - one year before he was due to retire - of the General Secretary of the TUC and President of the Bahamas Teachers' Union, Mr. A.L. Archer. The Committee notes that the complainants allege that this constituted an act of anti-union discrimination since, it is claimed, the real reason for his forced retirement was that he had supported student action in his capacity as a trade union leader. On the other hand, it appears from the documentation attached to the complaint that the employer - the Public Service Commission - decided on Mr. Archer's early retirement because his activities during and after the student protest conflicted with his role as high school principal and it was therefore desirable in the public interest to remove him from service.
3. 147. Although it is difficult, in the absence of the Government's reply, to assess the real nature of Mr. Archer's reaction to the student protest, the Committee observes that - as is pointed out by the complainants - the choice of disciplinary procedures by the employer reveals that specific employment-related charges, such as insubordination, do not appear to have been the basis for the decision to remove Mr. Archer from service. In many cases (See, for example, 197th Report, Case No. 920 (UK/Antigua), para. 132.) the Committee has stressed that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they must have the guarantee that they will not be prejudiced on account of the mandate which they hold from their unions. The Committee has also considered that compulsory retirement would be contrary to this principle if the activities in respect of which action was taken against certain workers were in fact lawful trade union activities. (See, for example, 6th Report, Case No. 47 (India), para. 728.)
4. 148. In the present case, from the information available, it would appear that the compulsory retirement of this trade union leader "in the public interest" - public interest not being defined in the Public Service Commission Regulations - was partly based on his trade union activities. In expressing its regret at such action, the Committee would draw the Government's attention to the principles stated above and in particular to the provisions of Article 1 of Convention No.98, ratified by the Bahamas, under which workers should enjoy adequate protection against acts of anti-union discrimination in respect of their employment.