Interim Report - REPORT_NO313, March 1999

1. 198. In a communication dated 26 March 1998, the Fraternal Unions of Bermuda (FUB) submitted a complaint of violations of freedom of association against the Government of the United Kingdom (Bermuda). The Trades Union Congress (TUC) associated itself with this complaint in a communication dated 2 April 1998.
2. 199. The Government of the United Kingdom transmitted the observations of the Government of Bermuda in a communication dated 22 October 1998 and provided additional information in a letter dated 3 March 1999.
3. 200. The United Kingdom 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), both of which have been declared applicable without modification to Bermuda.

A. The complainant's allegations

1. 201. In its communication dated 26 March 1998, the Fraternal Unions of Bermuda (FUB) alleges that the Government of Bermuda has failed to secure in law and practice the fundamental right to join an independent trade union to middle management employees. The FUB cites in particular the middle management employees of the Bermuda Telephone Company who wish to join the Bermuda Public Services Association (an affiliate of the FUB) but were told by the Company that, pending reorganization, such representation would not be expedient. The FUB also makes reference to the reluctance of the owners of the Southampton Princess Hotel to recognize the Bermuda Industrial Union (BIU -- also a FUB affiliate) despite a workforce vote to be represented by the BIU for collective bargaining purposes, and also refers to the Government's refusal to intervene on behalf of these workers' rights. Finally, the FUB notes that the Government also failed to ensure the recognition of the BIU by Hamilton Val Cleaners, despite a vote by the employees.
2. 202. The FUB further expresses its concern over the Trade Union Amendment Bill (apparently passed by the House in March 1998, but not yet signed into law) which the complainant considers represents a thinly veiled attack on trade union organizations and on collective bargaining by permitting non-union agents provocateurs to challenge recognition of a union and making it possible for employers to intimidate or bribe employees into voting for the decertification of a union after it has been recognized. In an explanatory document attached to its complaint, the FUB expresses its concern that the requirement under section 30C(b) that an application for certification as a bargaining agent must include "a statement of the facts upon which the union relies as showing that 35 per cent or more of the workers in that unit wish to have the union as the exclusive bargaining agent" and that the application shall be served on the employer may lend itself to intimidation. Furthermore, the FUB refers to an amendment which provides the opportunity for any employee in the bargaining unit, regardless of whether they are a union member, to decertify the union and notes that unscrupulous or recalcitrant employers could encourage such activity through intimidation or bribes. Finally, the complainant alleges that the new Act disenfranchises any future managers from seeking union recognition and representation, contrary to Conventions Nos. 87 and 98.

B. The Government's reply

1. 203. In a communication dated 22 October 1998, the United Kingdom Government forwarded the following observations from the Government of Bermuda.
2. 204. The Government of Bermuda first observes that the complaint stems from the alleged failure of the Government to secure in law and practice the fundamental right to join an independent trade union to employees in positions of middle management of the Bermuda Telephone Company.
3. 205. The Government then asserts that the purpose of the Trade Union Amendment Bill 1998 is reflected in the speech of the Minister of Labour, Home Affairs and Public Safety to the Legislative Assembly on 27 February 1998. The Minister referred to the fact that in the past Bermuda's industrial relations have traditionally relied upon a voluntary system in which both parties, the employer and the trade union, agreed to generally accepted set procedures, customs and practices. While this approach has enjoyed success over the years, it has become apparent that some employers have failed to recognize trade unions. Consequently, labour unrest has followed. The amendment Bill provides a legal framework to guarantee the right of workers under the law to choose a particular union to represent them for collective bargaining purposes and for that union to be recognized as such by the employer. The legislation also provides a legal mechanism for derecognition of trade unions where it no longer enjoys the support of the workers. These amendments provide workers with the ability to choose a union to represent their interests and to terminate that arrangement and either be represented by another union or not to be represented at all.
4. 206. According to the Government this amendment in no way impedes the right of employees of any description from organizing to promote their own interests. Moreover, Bermuda's Constitution guarantees the right of association and the freedom of individuals to belong to a trade union.
5. 207. In respect of Convention No. 98, the Government considers that the amendment goes beyond the promotion of voluntary agreements by providing the machinery to force a reluctant employer to negotiate with a union. While the Convention promotes that opportunities be provided for collective bargaining, the legislation in question provides the mechanism to ensure that collective bargaining occurs and in no way violates the letter or spirit of the Convention.
6. 208. The amendment permits certification where a union claims to have 35 per cent of the workers in a proposed bargaining unit. "Bargaining unit" is defined as referring to non-management persons, i.e. persons who are not management persons, the management being a defined term meaning "a person who in the course of his or her employment is responsible for the direction and management of the undertaking or has authority to appoint or dismiss or exercise disciplinary control over workers in the undertaking". The concept of restricting workers in a certified bargaining unit for collective bargaining purposes to non-management persons is not unusual and in fact exists in most countries. Managers are required to train employees, direct their work and correct them when problems arise. In a unionized industry, managers must also represent the interests of the employer in collective bargaining as well as grievances and other day-to-day dealings with labour. It is simply not possible for management to function properly, if managers have a dual loyalty, serving as members of management while at the same time being subject to union rules and regulations.
7. 209. The Government further notes the absence of any reference in the Conventions to compulsory collective bargaining and considers therefore that the definition of "bargaining unit" in respect to persons who may be certified for mandatory collective bargaining purposes cannot possibly violate those Conventions. Middle managers are still free to form organizations to engage in voluntary negotiations with a view to achieving a collective agreement.
8. 210. In summary, the Government of Bermuda considers that the Trade Union Amendment Bill does not conflict with either the letter or the spirit of Conventions Nos. 87 and 98 and, to the contrary, satisfies the rights and principles enshrined in these Conventions. Finally, the Government emphasizes that this Bill represents a major departure from the existing voluntary approach in the labour legislation and is a major step forward in continuing attempts to safeguard the interests of workers.
9. 211. In a communication dated 3 March 1999, the United Kingdom Government indicates that the Bermuda Government has stated that they have referred the matter of the Trade Union Amendment Act to the tripartite Labour Advisory Council which will give full consideration to all the issues raised by the Fraternal Unions of Bermuda in relation to the proposed legislation. The Act will not come into operation until this tripartite consultation has been completed, and any amendments resulting from this process will be incorporated into the legislation by means of an amending Bill. A full report on the progress of these tripartite consultations will be provided in due course.

C. The Committee's conclusions

1. 212. The Committee notes that the allegations in this case concern the failure of the Government to ensure generally the recognition by certain employers of unions duly chosen by employees, as well as the exclusion of middle management from being represented by certified collective bargaining agents under the Trade Union Amendment Bill. The complainant also refers to the possibility under the Bill for employer interference and intimidation in respect of the certification and decertification process of collective bargaining agents.
2. 213. The Committee would first note with interest from the Government's latest communication that the Government of Bermuda has now referred the Trade Union Amendment Act to the tripartite Labour Advisory Council for it to consider fully all the issues raised by the complainant in relation to the proposed legislation. It further notes that the Act is not to come into operation until this tripartite consultation has been completed and any amendments resulting from the tripartite process are to be incorporated in the legislation by means of an amending Bill. It is not clear to the Committee from this latest information whether the Trade Union Amendment Bill has been adopted since the Government's initial reply to the complaint. In any event, the Committee will proceed with its examination of the Bill so as to make known its point of view in respect of the matters raised in the complaint.
3. 214. The Committee regrets, however, that the Government has not supplied any information on the allegations concerning the failure of the Government to secure the rights of middle-management employees to join independent trade unions and its refusal to intervene to ensure employer recognition for collective bargaining purposes of the unions duly chosen by the employees in the Bermuda Telephone Company, Southampton Princess Hotel and Hamilton Val Cleaners. It requests the Government to provide further information in this respect so that it may examine these allegations in full knowledge of all the facts.
4. 215. The Committee notes that the Government's reply only refers to the question of compulsory recognition of collective bargaining agents and the exclusion of middle management. In this respect, the Committee notes the explanation given by the Government that, until the introduction of this Bill, the labour relations situation in Bermuda functioned according to a voluntary system of recognition for collective bargaining purposes. While such a system had enjoyed some success, some employers failed to recognize trade unions and labour unrest would follow. The Committee notes the Government's indication that the amendment Bill in question was introduced precisely in order to provide a legal framework to guarantee the right of workers to choose a particular union to represent them for collective bargaining purposes and to ensure that such a union would be recognized by the employer.
5. 216. The Committee notes that the amendments provide for a system of compulsory recognition of an exclusive bargaining agent where more than 50 per cent of the workers in the bargaining unit support the union (section 30F(2)). It further notes that a "bargaining unit" is defined under section 30A(2) as "a group of two or more workers (all being non-management persons) in an undertaking, on behalf of whom collective bargaining may take place" and that "management person" is "a person who in the course of his or her employment in an undertaking has authority to appoint or dismiss or exercise disciplinary control over workers in the undertaking". While it is thus clear that management persons may not be represented by the union certified as the exclusive bargaining agent under these amendments, the Committee notes from both the Government's assertion and the absence of any legislative provision to the contrary that middle managers are still free to form organizations to engage in voluntary negotiations with a view to achieving a collective agreement. In other words, the exclusion of management persons only concerns the newly proposed system of compulsory recognition of collective bargaining agents but does not call into question their rights existing hitherto under the voluntary system, nor their right to organize generally as a worker under the Trade Union Act. Finally, the Committee notes that under section 30F unions recognized prior to the entry into force of the amendment Bill shall be certified as the exclusive bargaining agent in respect of the which the agreement designates that union as the exclusive bargaining agent, whether or not that unit includes management persons.
6. 217. As concerns the complainant's allegation that managerial staff have been deprived of their rights to organize and to bargain collectively through their exclusion from the compulsory recognition system established in the amendment Bill, the Committee must first recall that nothing in Article 4 of Convention No. 98 places a duty on the government to enforce collective bargaining by compulsory means with a given organization (see Digest of decisions and principles of the Committee on Freedom of Association, 1996, para. 846). The absence of such a duty, on the other hand, does not mean that, once a system of compulsory recognition is proposed, arbitrary exclusions can be made. As concerns separate representation for management persons more generally, the Committee has already considered that it is not necessarily incompatible with the requirements of Article 2 of Convention No. 87 to deny managerial or supervisory employees the right to belong to the same trade unions as other workers, on condition that two requirements are met: first, that such workers have the right to form their own associations to defend their interest and second, that the categories of such staff are not defined so broadly as to weaken the organizations of other workers in the enterprise or branch of activity by depriving them of a substantial proportion of their present or potential membership (see Digest, para. 231). It is clear both from the Government's reply and the legislation that managerial staff do, in any event, enjoy the rights to organize and to bargain collectively on behalf of their own occupational interests. As concerns the definition of managerial staff, the Committee considers that limiting such a group to persons who have the authority to appoint or dismiss is sufficiently restrictive to meet the second above-mentioned condition. The Committee must raise, however, some concern over the wording of the definition in respect of the exercise of disciplinary control over workers which, taken by itself, could give rise to an expansive interpretation, excluding large numbers of workers from the negotiating scope of a certified bargaining agent to the eventual detriment both of the interests of the workers concerned and the negotiating power of the CBA. In this respect, the Committee requests the Government to take the necessary measures to ensure that the exclusion of managerial staff from the Trade Union Amendment Bill, in its final form, is not drafted in such a way as to permit a broad exclusion of workers who do not genuinely represent the interests of employers from being represented by a certified collective bargaining agent.
7. 218. As concerns the remaining complaints in respect of the amendment Bill concerning employer intimidation and interference, the Committee first notes that an application by a worker in a bargaining unit for cancellation of certification must be accompanied by evidence that 35 per cent or more of the workers in that unit no longer support the union and is subsequently subjected to a ballot (section 30P). Furthermore, the Committee notes that section 30I concerning protection of voting in ballot makes it an offence to threaten or intimidate any person in order to induce or compel them to vote or refrain from voting, subject to a fine or imprisonment. Noting the Government's most recent indication that the amendment Bill will not come into force until the position of the FUB has been considered by the Labour Advisory Council, the Committee requests the Government to keep it informed of any amendments which may be made to further protect against any eventual employer intimidation or interference in respect of the procedures for union certification or decertification.