Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Bahamas (Ratification: 2001)

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. Noting that the Industrial Relations Act, 2012 (IRA) does not apply to the prison service (section 3), the Committee had previously requested the Government to specify the manner in which prison staff and the relevant organizations enjoy the rights and guarantees enshrined in the Convention. The Committee notes that the Government reiterates that the Bahamas Prison Staff Association allows for prison staff (denominated correctional officers under the national legislation) to have a public platform to address any concern that its members may have, yet also acknowledges that unfortunately prison and correctional officers do not benefit from all the rights and guarantees enshrined within Convention 87 based on their substantial employment position. The Committee recalls that it had previously expressed its concerns with regard to sections 39 and 40 of the Correctional Officers (Code of Conduct) Rules 2014, which limit the rights of association and representation to approved staff organizations on matters related to the conditions and welfare of the officers as a group. The Committee must emphasize that all workers and employers, without distinction whatsoever, have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization, and that these organizations should enjoy all guarantees under the Convention. Recalling that the only exceptions from the application of the Convention concern the armed forces and the police, the Committee requests the Government to take the necessary measures – including by revising section 3 of the IRA and the Correctional Officers (Code of Conduct) Rules, 2014 – with a view to ensuring that prison staff enjoy all rights and guarantees under the Convention. The Committee requests the Government to provide information on any developments in this regard.

Right of workers and employers to establish organizations without previous authorization. In its previous comments the Committee noted that under section 8(1)(e) of the IRA, beyond consideration of the specific requirements for registration, the Registrar shall refuse to register a trade union if she/he considers, after applying the rules for the registration of trade unions, that the trade union should not be registered; and that according to section 1 of the First Schedule of the IRA, in applying the rules for the registration of trade unions, the Registrar shall exercise his/her discretion. Thus, the Committee had requested the Government to take the necessary measures to limit the Registrar’s powers in relation to the registration of trade unions and employers’ organizations. In this respect, the Committee recalls that conferring upon the competent authority a discretionary power to accept or refuse an application for registration can be tantamount in practice to imposing “previous authorization”, which is incompatible with Article 2 of the Convention. Noting with regret that the Government has provided no information in this regard, the Committee once again requests the Government to revise section 8(1)(e) and the First Schedule of the IRA to ensure that, beyond the verification of formalities, the Registrar has no discretionary powers to refuse the registration of trade unions and employers’ organizations.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules and to elect their representatives in full freedom. In its previous comments, the Committee had noted that section 20(2) of the IRA – which provides that the secret ballot for election or removal of trade union officers and for amendment of the constitution of trade unions shall be held under the supervision of the Registrar or a designated officer – is contrary to the Convention. The Committee had thus expressed the hope that specific measures would be taken for the amendment of said provision. Noting the Government’s indication that section 20(2) of the IRA is presently under review by the National Tripartite Council, and recalling that the amendment of the above-mentioned provision is a long-standing issue, the Committee urges the Government to take all the necessary measures to amend section 20(2) of the IRA in the near future with a view to ensuring that trade unions can conduct ballots without interference from the authorities, and requests the Government to provide information on any progress achieved in this regard.

Right of organizations to freely organize their activities and to formulate their programmes. The Committee had previously noted that, when a strike is organized or continued in violation of the provisions concerning the trade disputes procedure, the IRA provides for excessive sanctions, including imprisonment for up to two years (sections 74(3), 75(3), 76(2)(b) and 77(2)). On that occasion it recalled that no penal sanctions should be imposed against a worker for having carried out peaceful strikes and that such sanctions could be envisaged only where, during a strike, violence against persons or property or other serious infringements of rights have been committed. Noting that the Government did not provide its observations thereon, the Committee urges the Government to amend the above-mentioned sections of the IRA to ensure that no penal sanctions may be imposed for having carried out a peaceful strike.

Article 5. Right to affiliate to an international federation or confederation. The Committee had previously noted that, under the terms of section 39 of the IRA, it is not lawful for a trade union to be a member of any body constituted or organized outside the Bahamas without a licence from the minister, who has discretionary power in this regard. While having further noted the Government’s indication that these approvals are generally granted and do not represent a challenge, the Committee had requested the Government to take measures to align national legislation with such practice and to repeal section 39 of the IRA in order to give full effect to the right of workers’ and employers’ organizations to affiliate with international organizations of workers and employers. In this respect, the Committee recalls that international solidarity of workers and employers also requires that their national federations and confederations be able to group together and act freely at the international level (see the 2012 General Survey on the fundamental Conventions, paragraph 163). Noting the Government’s indication that section 39 of the IRA is under review by the National Tripartite Council and recalling that the Committee has been requesting the Government to address this matter since 2006, the Committee firmly expects that the Government will take all the necessary measures to ensure that this section will be repealed in the near future and requests the Government to provide information on any developments in this regard.

The Committee reminds the Government that it may avail itself of the technical assistance of the Office and hopes that it will be able to observe progress in the near future.

[The Government is asked to reply in full to the present comments in 2021.]