Rapport intérimaire - Rapport No. 132, 1972

1. 84. The complaint of the Democratic Independent Union is contained in a communication dated 21 October 1971 addressed direct to the Director-General. Additional information in support of the complaint was supplied in three further communications addressed direct to the Director-General dated 17 and 26 January and 17 February 1972.
2. 85. These communications were transmitted to the Government, which sent its observations thereon to the Director-General in a communication dated 5 March 1972.
3. 86. The Government of 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), and has declared these Conventions to be applicable without modification to British Honduras.

A. A. The complainants' allegations

1. 87. In its communication dated 21 October 1971, the Democratic Independent Union states that the Government of British Honduras has been guilty of grossly unfair labour practices which are calculated to lead to industrial strife. The complainants allege that the Government has been interfering in the negotiations of a collective agreement with workers in the citrus industry in the Stann Creek district of British Honduras in that it has taken certain action which was intended to interfere with the freedom of the workers to join a union of their own choosing, contrary to the freedom of association Conventions.
2. 88. The complainants annexed to their communication an affidavit signed by the President of the Democratic Independent Union and by a notary public and dated 21 October 1971, together with copies of the correspondence referred to in this affidavit also signed by a notary. The text of this affidavit is as follows:
   • I, CYRIL GEORGE DAVIS of 16 Iguana Street, Belize City, British Honduras, MAKE OATH AND SAY as follows:
3. 1. That I am the President of the Democratic Independent Union.
4. 2. That on the 20th November, 1970, I wrote to the Citrus Company of British Honduras claiming representational rights on behalf of the workers in the citrus industry employed by that company. This letter was copied to the Labour Commissioner. I exhibit hereto a copy of the said letter marked CGD 1.
5. 3. That I again wrote the said company on the 14th January, 1971, 1st April, 1971, 28th April, 1971 and 1st July, 1971, concerning the calling of a poll at the expiration of the then existing collective agreement. Copies of these letters are exhibited hereto and marked CGD 2, CGD 2A, CGD 2B, and CGD 20.
6. 4. That at the dates of these letters the majority of workers employed by the said company were members of the Democratic Independent Union and they had expressed the desire to be represented by the said Democratic Independent Union.
7. 5. That on the 4th day of May 1971, the said company suggested in writing that the agreement with the Southern Christian Union be allowed to run its course and at the expiration thereof the poll could be held. A copy of that letter is exhibited hereto and marked CGD 3.
8. 6. On the 6th September 1971, I again wrote the company demanding representation by the Democratic Independent Union of the majority of the workers of the said company. Inter alia, I suggested the calling of a poll at the expiration of the subsisting contract. This letter was copied to the Labour Commissioner. A copy of that letter is exhibited hereto and marked CGD 4.
9. 7. That the said collective agreement referred to in paragraph 5 herein expired on the 17 September 1971.
10. 8. That on the 18th September 1971, the General Manager, Mr. David McKay, in the company's office in Pomona, Stann Creek, verbally agreed on behalf of the company to the calling of a poll.
11. 9. That on the 4th October 1971, the company replied to the Democratic Independent Union's letter dated the 6th September 1971. The company stated, inter alia, that they had been advised and instructed by the Ministry of Labour to negotiate with the Southern Christian Union aforementioned. A copy of this letter is exhibited hereto and marked CGD 5.
12. 10. That on the 4th October 1971, at 12.00 p.m. I read to the workers at the company's plant the letter referred to at paragraph 9 hereof. I informed the workers that because of the contents of the said letter the only manner in which they would be able to preserve their rights under the International Labour Organisation Conventions was to take immediate strike action.
13. 11. That the workers struck immediately.
14. 12. That the 1,500 workers employed by the said company have been since that time, and still are, on strike.
15. 13. From all the information I have received I verily believe that it was as a result of the intervention and instructions of the Ministry of Labour that the said company retracted its undertaking to hold a poll.
16. 14. That the Honourable Florencio Marin, Parliamentary Secretary to the Ministry of Labour, has publicly taken side with the Southern Christian Union. In this connection I exhibit hereto and mark CDG 6 pages 1 and 12 of the newspaper " The Reporter " dated the 8th October 1971, which contains a report on the situation herein described.
17. 15. I verily believe that the actions of the said Florencio Marin herein are in contravention of the ILO Conventions, especially those pertaining to the right of association of workers, that his duty and interests are in conflict and that his actions are calculated to lead to industrial strife rather than to the promotion of industrial harmony.
18. 16. That the Minister of Communications and Power, the Permanent Secretary to the Ministry of Agriculture and Lands and one-time Minister of Labour, and Senator Allan Castillo, all members of the People's United Party, the party in Government, have been actively campaigning against the interests and declared wishes of the overwhelming majority of the said citrus workers, numbering approximately 1,500.
19. 17. I verily believe that their actions in connection with this matter are in contravention of the international Labour Organisation Conventions, especially those pertaining to the freedom of association.
20. 18. I verily believe that the said citrus workers are presently without representation because of the political interference of these agents of Government and that the basic rights of the workers have been thereby violated.
21. 19. I exhibit hereto and mark CGD 7 Directions by the Ministry of Labour governing the conditions of taking of polls in representational disputes between trade unions. I invite the International Labour Organisation to examine these Directions.
22. 20. I am informed and verily believe that the Directions referred to in paragraph 19 hereof violate International Labour Organisation Convention 84 inasmuch as the Minister has wrongly arrogated to himself the authority to decide when a poll should be held.
23. 21. I am informed and verily believe that the decision as to the taking of a poll should be the responsibility of an independent and impartial agency such as the Labour Department. I verily believe that this principle is governed by Article 6 of the International Labour Convention 84.
24. 89. In a further communication dated 17 January 1972 the complainants add that many of the workers who had participated in the strike were dismissed by the company. Many of these, state the complainants, were people with many years of service and did not receive severance payments, despite intervention by the Democratic Independent Union on their behalf. The workers decided not to pay union dues to the Southern Christian Union and, as a result, are without any representation. Representations were made to the Minister and to other members of the Government by the Democratic Independent Union, but without success. The complainants add that when they drew attention to the Conventions relating to freedom of association, the Permanent Secretary to the Minister of Labour, Mr. Michael Hulse, in the presence of the Minister, stated that since ILO Conventions were not law they need not be respected.
25. 90. In their communication dated 26 January 1972, the complainants transmitted further copies of correspondence sent by them to the Minister of Labour and to the company concerning their request for a poll, the deduction of union dues from workers for the purpose of paying these over to the Southern Christian Union, and the termination of jobs without payment of severance benefits.
26. 91. With its communication dated 17 February 1972, the complainant organisation transmitted the original of a letter dated 7 February 1972 addressed to the Democratic Independent Union by the General Manager of the Citrus Company, Mr. D. H. McKay, in which it was stated that the union was not in a position to discuss claims with the company since the workers were represented by the Southern Christian Union and that the workers, if dissatisfied, should refer any complaints to the Minister of Labour. The complainants also transmitted a copy of a letter from the Labour Commissioner to the company dated 29 September 1971, which had been sent to the complainants by the Labour Commissioner, in which the Labour Commissioner indicated that be had checked the Register of Membership of the Democratic Independent Union and, accordingly, he could certify that some 1,035 names were registered of whom 476 appeared to have paid their union dues, 288 had signed the check-off slip and 271 had petitioned the union to grant them membership.
27. 92. The first of these letters, allege the complainants, shows that workers who want to become members of the Democratic Independent Union are not free to do so, and that those who are members are regarded as enemies of the Government and are being urged by the Premier personally to withdraw from this union and become members of his union, the Christian Workers' Union. With regard to the second letter mentioned in the previous Paragraph, the complainants explain that this letter was sent after consultation with all the parties concerned. After the letter was sent, a date was arranged for the company and both unions to meet in the office of the Labour Commissioner in Belmopan to settle the date and other arrangements for the conducting of the poll. However, allege the complainants, Mr. Michael Hulse, Permanent Secretary to the Minister of Labour, " conspired " with Messrs. Florencio Marin, Parliamentary Secretary to the Ministry of Labour, David Mackoy, Parliamentary Secretary to the Ministry of Lands, and former Minister of Labour, Senator Allan Castillo, President of the Southern Christian Union, Desmond Vaughan and Allan Arthers, Minister of Power, and overruled the Labour Commissioner's decision, ordering that no further action be taken by him in the matter.
28. 93. In its communication dated 3 March 1972, the Government states that the Southern Christian Union had a contract with the Citrus Company of British Honduras and that this contract expired on 17 September 1971. Negotiations then took place for the renewal of this contract and a new contract was signed on 2 November 1971. The Government contends that the company denied any commitment, either verbal or in writing, to the setting up of a representation poll, and that the letter of the acting General Manager, dated 4 May 1971, suggested that a poll was a possibility only when the current agreement had expired. The Government adds that the Democratic Independent Union at no time, least of all in its letters to the company, showed any evidence to substantiate its claim that the majority of workers employed by the company were members of that union.
29. 94. The Government adds that, while it is true that there was an interruption of work, it is questionable whether it could properly be referred to as a strike. The Labour Commissioner, explains the Government, is an officer of the Ministry of Labour and, like any public officer, is under the direction and control of the Minister in the exercise of his official duties. This, states the Government, is provided for in the Labour Ordinance and in the Letters Patent. According to the Government, the Labour Commissioner was unable to find evidence which disclosed that a prima facie case existed for the calling of a representation poll. The wording of the letter by a director of the company dated 4 October 1971 was unfortunate and misleading since, in its discussions with the Ministry, the company had stated that it did not want a poll, that it saw no evidence for the necessity of a poll, and that it would not agree to one being held. The Government adds that the 1,500 workers referred to in the affidavit mentioned above are employed under the new agreement negotiated between the company and the Southern Christian Union.

B. B. The Committee's conclusions

1. 95. The Committee has emphasised the importance which it attaches to the principle whereby employers should recognise, for collective bargaining purposes, organisations that are representative of workers in a particular industry." The Committee has also taken the view that if there is a change in the relative strength of unions competing for a preferential right or the power to represent workers exclusively for collective bargaining purposes, then it is desirable that there should be the possibility of a review of the factual basis on which that right or power was granted. In the absence of such a possibility, a majority of the workers concerned might be represented by a union which, for an unduly long period, could be prevented, either in fact or in law, from organising its administration and activities with a view to fully furthering and defending the interests of its members.
2. 96. In the present case the Democratic Independent Union, claiming that it represented the majority of the workers in the Citrus Company of British Honduras, had submitted a request to the management of the company that, on the expiry of the three-year agreement between the company and the Southern Christian Union on 17 September 1971, a poll should be held to determine which union should be recognised for collective bargaining purposes. In this connection, the Committee has taken note of the terms of the directions issued by the Ministry of Labour on the taking of polls in representation disputes between trade unions, in which the general principle is stated that workers should be allowed to negotiate through the union of their choice. To this end, the Labour Commissioner is prepared to take a poll when he is satisfied that a considerable proportion of the workers concerned want this. The directions state that, subject to the approval of the Minister, the Labour Commissioner may take such a poll if (a) there is agreement between all the parties to the dispute; or (b) the employer and one or more of the unions concerned agree to a poll; or (c) where two or more unions agree to a poll. Where such consent as is required in (a), (b) of (c) above cannot be obtained, the directions authorise the Labour Commissioner, with the consent of the Minister, to take a poll if he is satisfied that a prima facie case is made out by the claimant union.
3. 97. According to the Government, the Citrus Company denied any commitment, either verbal or in writing, to the setting up of a representation poll, and the letter from the company to the Democratic Independent Union dated 4 May 1971 only suggested that the holding of a poll was a possibility when the current agreement expired. The Government also contends that the company, in its discussions with the Ministry, stated that it did not want a poll, and that it saw no evidence for the necessity of a poll. Furthermore, the Labour Commissioner was unable to find any evidence disclosing that a prime facie case existed for the holding of such a poll, and the Democratic Independent Union had at no time produced evidence that the majority of the workers employed by the company were members of that union.
4. 98. The Committee notes the terms of the letter, dated 4 May 1971 addressed to the Democratic Independent Union by the company, and signed by the acting General Manager, in which it is clearly stated that the company had taken up with the Labour Commissioner the union's request for approval and that, on the expiration of the agreement, a poll could be held as suggested by the union. In the opinion of the Committee the terms of this communication are unequivocal and show that there was a genuine willingness on the part of the company to co-operate with the request of the union for the holding of a poll. The Committee also notes that, subsequently, in the letter dated 4 October 1971 from the company to the Democratic Independent Union, the company states that as a result of lengthy discussions with the officers of the Ministry concerning the representation question, it was " advised by the Ministry that it was not necessary to set up machinery required for a change in representation to take place ". The company adds that it was " instructed to continue negotiations with the Southern Christian Union " and that it was in the process of these negotiations.
5. 99. With regard to the Government's statement that the Democratic Independent Union had not produced evidence that the majority of the workers employed by the company were members of that union, the Committee refers to the letter dated 29 September 1971 from the Labour Commissioner to the company in which he certifies that some 1,035 names were on the register of the union, of whom 476 appeared to have paid their union dues, 288 had signed the check-off slip, and 271 workers had petitioned the union for membership. In view of this, the Committee considers that a prima facie case seemed to have existed for the holding of a poll.
6. 100. In this connection, the Committee wishes to recall that in another case concerning the United Kingdom (British Honduras) " the question of representation of workers for collective bargaining purposes had arisen. In that case, the Committee noted that the opportunity had not been afforded to the workers concerned to make a clear decision concerning the union which should represent them for collective bargaining purposes. The Committee took the view that, in cases where the authorities have the power to hold polls for determining the majority union which is to represent the workers for the purposes of collective bargaining, such polls should always be held in cases where there are doubts as to which union the workers wish to represent them.
7. 101. In the present case, the Committee must note, once again, that the workers were not afforded the opportunity of choosing the union which should represent them in the collective bargaining process.