Rapport définitif - Rapport No. 119, 1970

1. 64. The complaint of the Independent Trade Unions Advisory Council is contained in two communications addressed to the ILO on 1 August and 16 September 1969 respectively. The original complaint and the later communication in substantiation thereof were forwarded by a letter dated 28 August 1969 to the Government, which furnished its observations thereon in a communication dated 26 November 1969.
2. 65. Jamaica has ratified both 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).

A. A. The complainants' allegations

1. 66. It is alleged that the Service Station Attendants' Union, which is a registered trade union under Jamaican law, not having been recognised by a large number of employers in the petroleum retail trade, requested the Ministry of Labour to intervene on its behalf and in particular to carry out a number of fact-finding polls to ascertain, as is provided for by national law and practice, the representative character of the Union. In response to its request the Union was asked by the Ministry to supply certificates of membership of the various stations; these were supplied to a total of forty-three certificates up to 25 May 1969. To date, it is alleged, not one of these polls has been taken.
2. 67. The complainants state that the failure of the Ministry to set in motion the machinery established for this purpose constitutes an infringement of trade union rights provided for under a number of Conventions, and, in particular, under Convention No. 98.
3. 68. The complainants further state that on 9 July 1969 the Ministry of Labour announced that a New Minimum Wage Board governing the petroleum retail trade had been set up composed of representatives of the employers, the workers and of independent bodies, together with the Chairman and Secretary of the Board, and that, despite the fact that the Service Station Attendants' Union is the only organisation truly representative of the workers in the trade, it was not granted a single seat on the Board.
4. 69. As a preface to its observations the Government states that it not only supports the principles of freedom of association and the right of workers to bargain collectively but encourages, on a voluntary basis, autonomy in industry, and that to this end the Ministry of Labour and National Insurance provides machinery for the determination of representational issues arising out of claims by trade unions.
5. 70. With regard to the complaint itself the Government states that the Union asked the Ministry of Labour to intervene first in twelve and later in more cases of claims for representational rights and that, following a meeting held at the Ministry of Labour and National Insurance one employer did, in fact, grant representational rights to the Union. The Government claims, moreover, that the Ministry has not been in a position to ascertain whether the Union has made out a prima facie case for representation and, indeed, denies that the Union ever asked for the taking of fact-finding polls.
6. 71. The Government further states that the claims of the Union for representational rights have met with a great deal of resistance from the Petroleum Retailers' Association on the grounds, inter alia, that for economic reasons the employers in the trade will not be in a position to bargain with the Union until such time as the Minimum Wages Advisory Board for the Petrol Trade has completed its findings. In addition, the Association felt that the Union, by its action in certain establishments, was " undermining all discipline, creating abuse to customers and generally leaving the employees with the impression that they were immune to any discipline."
7. 72. The Government explains that in keeping with the Minimum Wage-Fixing Machinery Convention, 1928 (No. 26), it has been its policy to fix minimum wages in those trades where wages are unreasonably low, where there is little or no union organisation or where it is difficult to organise the workers and that in the present case, although provision exists for the full expression of all the parties concerned before the Board, the Minister has decided to enlarge its membership and has appointed a representative of the Service Station Attendants' Union thereto.

B. B. The Committee's conclusions

1. 73. According to information available to the Committee, there exists in Jamaica a system whereby the Ministry of Labour may intervene in cases where a union claims to be representative of workers in a particular industry or undertaking with a view to ascertaining the representative character of the organisation in question. There are two possible courses of action: where the agreement of both sides is obtained the Ministry may conduct an industrial poll, the results of which invariably settle the bargaining position of the union vis-à-vis the employer; where the agreement of the employer is not obtained, the claimant union may, subject to certain conditions being met, request the Ministry to conduct a fact-finding poll, the results of which, however, merely determine the wishes of the workers in respect of the claimant union. Moreover, in its observations in the present case the Government states that in order to take a fact-finding poll the Ministry must receive the co-operation of the employer, who is required to provide a list of his workers and permit the Ministry to enter and conduct the poll on his premises during working hours.
2. 74. The Committee notes that in the present case the complainants affirm and the Government denies that the taking of fact-finding polls was requested.
3. 75. The Committee has often drawn attention to the principle expressed in Article 4 of Convention No. 98, ratified by Jamaica, whereby governments should take measures appropriate to national conditions to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements. The Committee has also attached considerable importance to the principle whereby employers should recognise organisations that are representative of workers in a particular industry for the purposes of collective bargaining.