Rapport définitif - Rapport No. 102, 1968

1. 36. The complaint was presented directly to the I.L.O by the Bermuda Industrial Union (B.I.U.) in a communication dated 7 June 1967. Further information was supplied by the complainants in a communication dated 21 July 1967. The International Confederation of Free Trade Unions indicated its support for the complaint in a communication dated 4 July 1967.
2. 37. The allegations relate to certain acts of the Government of Bermuda and of the Public Works Department (P.W.D.), which is run by a statutory government board (the Public Works Board), with regard to control of and partiality towards the Union of Government Industrial Employees (U.G.I.E.), and with regard to undue influence exerted by the Government and the P.W.D in connection with a secret ballot held among employees of the P.W.D.
3. 38. The Government submitted its observations by a communication dated 5 September 1967.
4. 39. The United Kingdom has ratified the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), 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), all of which are applicable without modification to Bermuda.

A. A. The complainants' allegations

1. 40. The complainants allege that, before December 1966, a number of employees of the P.W.D were members of the B.I.U, despite the anti-union attitude of employers in general and the resulting timidity of employees. In that month another union, the U.G.I.E, was secretly formed, it is alleged, and, within two days of being formed and before it was even registered, it was officially recognised by the Public Works Board as sole bargaining agent. The Government, it is alleged, allowed the use of its premises during working hours and at its expense for the organising meeting for the formation of the U.G.I.E.; assistance was also given in transporting workers to the meeting and in recruiting generally. All these activities were kept secret at the time from known B.I.U supporters. It is claimed that many of the employees were not even aware of the proposed formation of the union, and a declaration to this effect signed by six such employees accompanies the complaint. Many more employees joined the U.G.I.E out of fear, since, it is claimed, they considered that their jobs would be in jeopardy were they not to join. The complainants refer to three sources of this fear. Firstly, they state that the working man in Bermuda has been living in a paternalistic environment for 350 years, and a fear of victimisation and intimidation by employers is widely felt among employees. In particular, foremen, it is claimed, are almost always referred to and looked upon by those under them as " boss ", an extension of top management. The complainants claim that since the inception of the U.G.I.E a majority of its leaders have been foremen. Secondly, the complainants refer to the use by the U.G.I.E of government premises as its registered address and of government stationery as contributory sources of fear among the P.W.D employees with regard to the U.G.I.E. Thirdly, it is alleged, in 1963 two P.W.D employees who were also B.L.U. leaders were dismissed for " inadequate reasons ".
2. 41. When the B.I.U, considering that the U.G.I.E did not have the mandate of the employees in question, requested a secret ballot among the employees to decide which union had more support and thus the better claim to sole bargaining rights, the P.W.D refused, and proceeded to negotiate with the U.G.I.E. After the B.I.U had made representations concerning the refusal of a secret ballot, its members at the P.W.D went on strike and were joined in sympathy strikes by numerous other workers in the island. On 3 May 1967, as a result of this mounting pressure, the House of Assembly recommended to the Public Works Board, which approved the recommendation, that a secret ballot should be held among P.W.D employees. After a joint meeting under the chairmanship of the Government Labour Relations Officer, details concerning the ballot were agreed upon and 19 May 1967 was fixed as the date for the ballot.
3. 42. The complainants allege that by 9 May 1967 both the House of Assembly and the Legislative Council had passed a Bill to implement an agreement between the P.W.D and the U.G.I.E and involving an increase in pay. The B.I.U states that it considered that the implementation of this agreement so shortly before the ballot would unduly influence the result of the ballot, and accordingly it requested the Governor to delay his assent to the Bill until after the ballot. The Governor refused to accede to this request. On Thursday, 18 May, the day before the ballot, it is claimed, the employees of the P.W.D received the back pay resulting from the agreement between the P.W.D and the U.G.I.E, as well as certain bonuses. These payments were accompanied by a slip which recalled the agreement concluded with the U.G.I.E. The B.I.U states that Friday, not Thursday, is the usual pay day and that the decision to make the payments of back pay and bonuses on Thursday, 18 May rather than on Friday, 19 May, after the ballot would have taken place, is a flagrant example of an attempt unduly to influence the ballot.
4. 43. The complainants go on to make certain allegations relating to specific irregularities surrounding the ballot, referring in particular to attempts by certain employees in responsible positions to influence other employees as to how they should vote. The B.I.U states that it does not complain about the conduct of the ballot itself, which, under the surveillance of the Government Labour Relations Officer, is believed to have proceeded impartially and properly.
5. 44. The ballot was won by the U.G.I.E, which obtained 116 votes, while the B.I.U received 106.
6. 45. The B.I.U lodged protests with the Governor of Bermuda concerning the alleged malpractices surrounding the ballot and the facts outlined in paragraph 42 above, but it was unable to receive satisfaction.
7. 46. On the basis of the facts set out in their communications, the complainants allege that the Government of Bermuda, both in its capacity as employer, through the Public Works Board, a statutory government body controlling the P.W.D, and, particularly with regard to the allegations in paragraph 42, in its role as Government, through the Legislature and the Governor, has violated the principles of Article 2 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
8. 47. In its communication of 5 September 1967 the Government recalls, by way of general comment, that the P.W.D was one of the first government departments to recognise the importance of good labour relations.
9. 48. The Government then proceeds to examine critically each of the specific allegations made by the complainant.
10. 49. The Government denies that the U.G.I.E was formed secretly. It indicates that the question of the possible formation of a new union had been raised by the workers' side of the P.W.D. Labour Relations Committee, but that the employees were advised by the management to discuss the matter with the Government Labour Relations Officer. It was suggested by the Labour Relations Officer that a survey be conducted to decide whether a need for a new union was felt. As a result of this survey, which suggested that such a need was felt, the P.W.D agreed that if a new union were formed and had a membership of 51 per cent of the employees, it would be recognised for bargaining purposes. The Government states that since the matter had been under discussion for about four months, ever since the question had first been raised at the P.W.D. Labour Relations Committee, it is very doubtful whether any employees were not aware of the proposed formation of the new union.
11. 50. With regard to the allegations of government assistance in the formation of the U.G.I.E, the Government acknowledges that the P.W.D gave its employees an opportunity to meet together in government time and on government premises and that it provided transport to assist the workers in attending the meeting. It states that no executive or administrative officer of the P.W.D was present at the meeting. It does not consider that there is anything objectionable in this assistance.
12. 51. The Government states that only on one occasion was government stationery or machinery used by the U.G.I.E, which was for the printing of a notice outside working hours. As for the allegation that the U.G.I.E's registered office is on government premises, it states that by law an address is necessary in order for a union to be registered, and that when the U.G.I.E was preparing its application for registration the Public Works Board granted its request for permission to use the Government Quarry as an accommodation address. The Government states that there is another instance of a union catering for civil servants using a government address for registration purposes and that there was thus nothing abnormal in this action of the Board.
13. 52. As for the allegation that two B.I.U leaders were dismissed from their jobs by the P.W.D on account of trade union activity, the Government states that one of them was dismissed for violence against his foreman, and that the other was a driver who was dismissed for failing to report an accident in which he was involved. The Government further denies that there was, among P.W.D employees, any fear of victimisation as a result of organising.
14. 53. The Government states that the decision to recognise the U.G.I.E as sole bargaining agent was based on an examination of the U.G.I.E records, which showed that 69 per cent of the P.W.D work force belonged to that union. It further states that the B.I.U refused to produce its books to the Public Works Board to enable an assessment of its strength in the P.W.D to be made. The refusal to accord a secret ballot was, according to the Government, an instance of its policy in these matters, pursuant to which, " where there was no doubt of a union's claim to represent a substantial majority of employees in a department, recognition should be granted without the need of a secret ballot ". The Government further indicates that this policy was applied in October 1966 with regard to postal workers, as a result of which the B.I.U was recognised in that branch.
15. 54. The Government next gives an explanation of the facts surrounding the decision to pay P.W.D employees their back pay and bonuses on Thursday, 18 May 1967, rather than on the following day. The usual practice, it states, is to pay arrears of wages as soon as the necessary funds are approved by the Legislature and assented to by the Governor. It was purely coincidental that the funds became available on the day before the secret ballot. The Director of Public Works, it is stated, suggested that the payments be deferred until the next day, but he was instructed to make the payments on the Thursday. The Governor, when approached by the B.I.U, similarly considered that it would not be proper to interfere with the normal procedure at the instance of the B.I.U. The Government further points out that the B.LU. itself was responsible for the ballot being delayed until 19 May 1967. The Government says that it could have taken place before the Bill was even introduced into the Legislature, had the B.I.U so desired.
16. 55. The detailed allegations of irregularities and undue influence surrounding the ballot itself are rejected by the Government. It states that it has had them all investigated and that they are all without foundation. The Government replies to each of the allegations separately and in detail. With respect to one of the more serious of these allegations, the Government states that after a " protest had been made locally, the Chairman of the Board of Works invited any employee to come forward without fear of discrimination or recrimination and give evidence on oath that the Mechanical Engineer attempted to influence him how to vote. There was no response to this invitation ".
17. 56. The Government finally states that it does not accept that there has been any undue influence or malpractice on its part, and that no question of violation of Convention No. 98 arises.

B. B. The Committee's conclusions

1. 57. While recognising that the complainants were able to provide certain information from which it might appear that the Government had given certain facilities to one of the unions concerned, the Committee nevertheless considers that the complainants have not supplied sufficient evidence to show that there was in fact an infringement of trade union rights.