Hon. Minister of Labour and Immigration, distinguished guests, ladies and gentlemen:
We are happy to have you with us to mark the Tribunal's seventh anniversary.
We are not happy however to report that nothing has yet been done to remedy the inhospitable conditions under which we work.
Members of the Tribunal have to go home to relieve themselves whenever nature calls; let me be plain speaking for a moment to drive home the point: We have to go home to use the toilet sometimes; and of course this causes considerable downtime that could otherwise be spent in the performance of our duties and obligations.
As we said on numerous occasions, the bathroom facilities are unsatisfactory and unsanitary, and to add insult to injury, members suffer the indignity of having to share these facilities with members of the public and even with witnesses during Hearings. We are not aware of any other jurisdictions in the Caribbean under which industrial tribunals or courts suffer such demeaning circumstances.
Promises upon promises have been made to rectify this situation, but nothing has been done.
A young architect, quantity surveyor and an engineer were dispatched by the Ministry of Works, met with us several months ago, toured the facilities or lack thereof, and we were told that a report would be submitted relative to the cost of prospective renovations and reconfiguration of these premises to include a bathroom each for the President and Vice President.
Nary a report has been submitted to us.
In the interim, I have decided to keep a potty in my chambers in order to ensure that I don't suffer the embarrassment of an involuntary natural accident just in case I can't make the 50-metre dash in time to the forlorn toilet facilities up yonder.
For these past seven years we have had to sit at plywood benches, hear counsel address us at folding party tables before an audience sitting in folding party chairs. These fittings and furnishings are no more than props that can be used in plays at the Dundas Centre For The Performing Arts.
Vice President Cunningham, who can't be with us this morning due to illness, has been with the Tribunal in Nassau since July of last year, having completed her tour of duty in Freeport.
Mrs. Cunningham is without a court or chambers in these premises. The premises are entirely inadequate to accommodate three judges. There is simply no space!
Presently Mrs. Cunningham occupies chambers at the Norfolk House on Frederick St. She has the use of my court on Wednesdays and Thursdays and I sit on Mondays and Tuesdays. This is an entirely unsatisfactory and counterproductive situation.
It is one thing to have to put up with the physical decentralization of the courts as in the case of the magistrates' courts which are in several locations; but it is quite another matter for a member of the Tribunal to be located in chambers in another part of town and to have to commute to the Tribunal to hear matters.
Apart from the Tribunal's lack of amenities, we are in dire need of reference material, and our diligent Secretary, Ms. Patrenda Russell, has been pursuing this on our behalf, but with little success to date.
In particular we are attempting to obtain a subscription to the British Employment Law Journal online. As far as the Internet is concerned, we had been on line briefly but for administrative and/or budgetary reasons our subscription was interrupted. Hopefully this situation will soon be remedied, and by the time of our next anniversary we shall be able to report that the kinks have been worked out. In fact hopefully, we are either out of these premises by next year, or that they have been significantly improved by then.
Members of the Tribunal are also concerned that our remuneration has not been reviewed since our commencement in February of 1997. Salaries of the judiciary have been reviewed at least twice during that period; but for some reason the Tribunal has either been the subject of benign neglect, or we have simply been forgotten.
Members of the Tribunal are required to have the same qualifications as judges of the Supreme Court, i.e. 10 years practice at the Bahamas Bar; and needless to say, we are further disheartened because in addition to having to work under such deplorable conditions, we have received no incentives by way of increase in remuneration and benefits over our seven year period of existence.
I must point out that members of this Tribunal are all senior members of the Bar: I have 28 years tenure; Vice President Dean – 21 years; Vice President Cunningham – 22 years and Vice President Burrows – 15 years.
We are aware that the Hon. Chief Justice has proposed inter alia that the Industrial Tribunal be metamorphosed into an Industrial Side of the Supreme Court, and it is our understanding that his proposal was submitted to Government since October of 2002. To date we are not aware as to whether the proposal was favourably considered or otherwise.
If such a proposal were effectuated all of the Tribunal's concerns relative to its lack of authority/jurisdiction in certain areas would fall away.
Currently the Tribunal cannot award costs in any circumstances; we cannot enforce our own decisions; we cannot cite parties for contempt and we cannot grant injunctions. If we became an Industrial Side of the Supreme Court we would ipso facto possess all of the inherent powers of the court including those enumerated.
It is envisioned by the Chief Justice that the Industrial Side of the Supreme Court would have its own procedural rules and that matters would proceed along a special track commencing at a magisterial level with appeals lying to the District Court and High court respectively. Informality in proceedings now currently before the Industrial Tribunal could be preserved in the context of the rules of the Industrial Side of the Supreme Court. Indeed it might be argued that this proposal makes everyone a winner:
(a) Applicants might still appear before the Industrial Side of the Supreme Court either by themselves or by counsel without being concerned that they may have to take extra steps at extra expense to enforce its rulings in another forum.
(b) The Industrial Side would enjoy the inherent authority to act preemptively in emergencies by having the jurisdiction to award injunctions as appropriate in the circumstances.
(c) As circumstances dictate the Industrial Side of the Supreme Court would have jurisdiction and authority to award costs in appropriate cases.
Speaking of costs, the Tribunal has been reliably informed that many counsel are now advising clients to pursue industrial claims at the Supreme Court because the Tribunal is unable to award costs. Should applicants continue to select this option, the Tribunal would no doubt be marginalized.
So in our view the suggestion that there be an Industrial Side of the Supreme Court merits serious consideration by the Government.
Lastly, we feel that we need to address certain recent comments appearing in or aired by the news media relative to the performance of the Industrial Tribunal:
For the reasons aforementioned, we agree entirely with the sentiment reported to have been expressed by the Trade Union Congress in the Saturday, January 24, 2004 edition of The Tribune, that serious consideration ought to be given to replacing the Industrial Tribunal with an Industrial Side of the Supreme Court.
We do not agree however with the view reportedly expressed that the Tribunal was established to benefit the average man and the T.U.C.
The Tribunal's terms of reference as provided by section 55 of the Industrial Relations Act Chapter 321 are:
"(a) to hear and determine trade disputes within an essential service or a non-essential service;
(b) to register industrial agreements relating to an essential service or a non-essential service and to hear and determine matters relating to the registration of such agreements; and
(c) to hear and determine any other matter brought before the Tribunal in accordance with this Act."
Section 58(2) of the Act purports to delimit what perhaps can be aptly described as the conscience of the Tribunal in providing that:
"(2) The Tribunal in making its awards in trade disputes shall be guided by the following considerations, that is to say -
(a) the necessity to maintain a high level of employment
throughout the Bahamas;
(b) the necessity to increase production and to assure to employees a fair share of any increases in productivity in any enterprise;
(c) the necessity to preserve and promote the competitive position of Bahamian products in the domestic market as well as in export markets;
(d) generally, the requirements of the public interest. "
In other words when the Tribunal hears a trade dispute we are to be mindful of the foregoing considerations insofar as any or all of them might be relevant to that dispute.
These imperatives are also reflected in the Code of Industrial Relations Practice, and members of the Tribunal are well aware of their import.
Contrary to the alleged assertions appearing in the said newspaper article however, we hold no brief for the average man or the T.U.C.; neither do we hold any brief for any employers or employers' organizations. We have a duty to hear cases fairly, fully and impartially and pursuant to our judicial oath without fear, favour, affection or ill-will to anyone.
We act in accordance with the law as it currently exists; truth be told that many amendments might be in order, and to that end we have made suggestions on invitation by this and the previous administration. Changes in the law are matters for the legislators and inasmuch as the law is our taskmaster we are bound by it until it changes.
Contrary to popular belief, trade disputes do not commence at the Industrial Tribunal.
Under section 68(3) of the Industrial Relations Act, trade disputes are required to be reported in writing to the Minister (in effect to the conciliation staff at the Department of Labour), and the claimant is required to specify:
(a) the parties to the dispute;
(b) the person or persons on behalf of whom the report is made;
(c) the authority to act on behalf of the person desiring the dispute to be reported which the party reporting the dispute claims to have;
(d) every issue relevant to the dispute.
Under section 69(1) of the Act, the Minister is obliged to consider whether suitable machinery already exists between the parties for the resolution of the dispute at issue; e.g. provisions under a relevant contract of employment for the resolution of grievances in which case he may refer the matter for settlement in accordance with those provisions; and where there is a failure to reach a settlement by the parties within seven days after such a reference by him the party reporting the dispute shall notify him of the failure.
Upon receipt of such notification by the party reporting the dispute that the dispute remains unresolved, if the Minister is satisfied that the machinery for settling the dispute has not been exhausted, he is obliged by virtue of section 69(2) to so inform the parties in writing and to refer the matter back to them for further consideration.
If there is a failure to reach a settlement by the parties within seven days upon referral back by the Minister, the party reporting the dispute shall notify the Minister of the failure.
Once a trade dispute has been reported to the Minister, he can take the following course of action:
(a) if it appears to him that no suitable machinery binding
on the parties exists for the settlement of the dispute; or
(b) he does not choose to refer the dispute for settlement under section 69(1) of the Act; or
(c) if he has referred the dispute for settlement under section 69(1) or (2) of the Act and the party reporting the dispute has notified him that the dispute remains unresolved,
he shall attempt by means of conciliation to secure a settlement of the dispute within 16 days after the receipt by him of the report of the trade dispute, or the report by the relevant party that the matter remains unresolved even after reference back by him.
In the case of essential services e.g. B.E.C., Bahamasair, if no settlement is arrived at within the prescribed period of 16 days or such longer period agreed between the parties, section 72 (1) of the Act provides that the Minister may thereupon refer the dispute to the Tribunal if in his opinion the public interest requires.
In the case of non-essential services, section 73 provides that if no settlement is secured within the prescribed period of 16 days or any longer period agreed between the parties, the Minister may if in his opinion the public interest requires, refer the dispute back to the parties for further consideration. If still no settlement is arrived at within a reasonable period thereafter as may be determined by the Minister, the party reporting the dispute shall notify the Minister of such failure to arrive at a settlement, whereupon the Minister is obliged to refer the matter to the Industrial Tribunal.
We chose to paraphrase the relevant provisions of the Act to illustrate that as regards trade dispute procedure, the Industrial Tribunal is the virtual forum of last resort. It is only after the conciliation process has been exhausted that matters are referred to the Tribunal, and it should be pellucidly clear that given the exercise of the Minister’s discretion and the time parameters provided by the Act, and allowing further for delays which are almost inevitable - e.g. difficulty in locating an employer; one party or other gets sick; the employer had an emergency and could not show up for the first meeting, it is not unusual for matters to endure for a few months from the date of the initial report of the trade dispute to the Department of Labour, before finally being referred by the Minister to the Industrial Tribunal.
At this juncture we must also point out that disputes are not automatically referred to the Industrial Tribunal. The law specifically provides that only matters considered by the Minister to be in the public interest should be referred to us.
Once we are presented with the Minister's Certificate of Referral, the Tribunal presumes that such a reference is regular and in accordance with the law; but sometimes we find at the commencement of Hearings on admission of the parties, matters have not been properly conciliated. In those instances we remit the disputes to the Department of Labour because the Tribunal's jurisdiction is predicated upon due conciliation in accordance with the provisions of the Industrial Relations Act.
On occasion it also becomes apparent that a party tries to make substantive claims before the Tribunal which were not hitherto the subject of conciliation; again, the jurisdiction of the Tribunal is called into question, because our jurisdiction is predicated upon due conciliation in accordance with the provisions of the Industrial Relations Act. If a substantial claim has not been duly conciliated by officers at the Department of Labour, it cannot be originated at the Industrial Tribunal.
At this juncture we take this opportunity to suggest to the Department of Labour that Certificates of Referral be accompanied by a synopsis of all substantive issues duly conciliated by conciliation officers in accordance with the provisions of the Industrial Relations Act, in order to ensure that the Tribunal is lawfully seised only of those substantive issues in dispute that were the subject of conciliation pursuant to the provisions of the Act.
Finally, it has been alleged in the said Tribune article that the Tribunal will not deal with certain matters. This is true. The Tribunal only hears matters within its jurisdiction.
As we noted at our opening two years ago, there had been a number of matters purportedly referred to us as general disputes where the principal allegation was that the employer had refused to treat or enter into negotiations with the union contrary to section 41(3) of the Industrial Relations (Amendment) Act, 1996. The section prescribes criminal penalties against the offending employer.
We pointed out then as we do now, that it is our considered opinion supported by the Hon. Justice Boyd Carey who was then consultant inter alia to the Attorney General and the Industrial Tribunal, that such matters are not trade disputes within the meaning of the Industrial Relations Act; hence we have no jurisdiction relative thereto.
We have in fact referred all such matters to the office of the Director of Public Prosecutions.
We took this opportunity to give an overview of the legal process in filing trade disputes, in order to disabuse persons of the notion that the process commences at the Industrial Tribunal.
While we agree that the process deserves some review, we feel that such a review should be conducted comprehensively, objectively and in the interest of all concerned.
In the meantime we reiterate that our taskmaster is the current law, and the bold caption of the said Tribune article,”…industrial tribunal to blame for unrest” and its general tenor, is most unfortunate insofar as it conveys a negative impression as to how we discharge our duties and obligations.
In the circumstances we should therefore be obliged if the Tribune would do the honourable thing, or at the very least publish our comments in full in order to ensure that nothing is taken out of context.
Now to look at our work over the previous year:
We had occasion to sit in Abaco to hear a matter where both parties reside. Under the Industrial Relations Act the Tribunal is empowered to sit anywhere within the Commonwealth of The Bahamas.
Upon learning of the circumstances of both the Applicant and the Respondent in that matter, and determining that it would have been too costly and inconvenient for the parties to travel and be housed in Freeport for the Hearing, we exercised our discretion to travel to Abaco, and the Hon. Vice President, Mrs. Jethlyn Burrows, heard the matter. This marked the first occasion upon which the Tribunal travelled to hear parties to a dispute.
On behalf of the Tribunal Mrs. Burrows also attended a Caribbean Subregional Seminar on industrial disputes settlement machinery, held in Barbados during the period November 17th to 21st 2003. There was a fruitful exchange of ideas concerning industrial disputes resolution, and we are certain that we all can benefit from some of the recommendations which have been passed on to government.
During the past year we had a docket of 378 cases. Of that number we have disposed of 135 ; 31 of which were settled by the parties with the assistance of the Tribunal; 29 cases were withdrawn by the Applicants, 45 Applicants' cases were dismissed, and compensation was awarded to Applicants in 28 cases.
This year in New Providence 98 new cases were referred to the Tribunal compared to 170 during the corresponding period last year. In Grand Bahama 77 new cases were referred to the Tribunal this year as opposed to 34 during the corresponding period last year.
Hon. Minister, distinguished guests, ladies and gentlemen, the foregoing represents the state of the Tribunal, its affairs and major concerns over the past year. We look forward to a fruitful new year and we trust that our physical problems will be remedied as a matter of utmost priority.
I would like to thank my colleagues, Hon. Vice Presidents, Nathaniel Dean, Kelphene Cunningham and Jethlyn Burrows for their dedicated service; and I should also thank our staff including Ms. Patrenda Russell, Secretary, Nassau; Mr. Elkenny Lockhart, Deputy Secretary, Freeport; Mrs. Effie Higgs, Mrs. Ivy Smith, Mrs. Kendra Carter, Mrs. Sandrea Miller, Ms. Patrice Evans, Ms. Maureen Mckenzie, Ms. Andrea Ferguson, Ms. Christine Johnson, Mr. Derek Ferguson, Mr. Rex Miller, Mrs. Louise Mackey, Mrs. Laverne Dean, Ms. Vanessa Stuart, Ms. Ernestine Rigby, Police Constable 2011 James Johnson, and Constable 177 Beulah Johnson.
We would like to extend a special welcome to Mrs. Laverne Dean who has recently returned to the Industrial Tribunal, Northern Region, in a different capacity. She has recently graduated as a professional stenographer, and we are sure that her services to the Tribunal in that capacity will be invaluable. Congratulations to you Mrs. Dean. We are a little bit jealous that we don't have you here in Nassau, but we are happy to have you with us just the same.
We now hereby declare the Tribunal's eighth year officially open, and invite you to court #2 to share with us in light victuals.
HARRISON L. LOCKHART