Definitive Report - Report No 187, November 1978

Case No 857 (United Kingdom of Great Britain and Northern Ireland) - Complaint date: 01-JUL-76 - Closed

187. The complaint of the Antigua Workers' Union (AWU) was contained in a communication dated 1 July 1976. The complaint, along with the additional information transmitted by the AWU, was communicated to the Government of the United Kingdom which, in a communication dated 14 December 1976, transmitted the observations of the Government of Antigua.

1. 187. The complaint of the Antigua Workers' Union (AWU) was contained in a communication dated 1 July 1976. The complaint, along with the additional information transmitted by the AWU, was communicated to the Government of the United Kingdom which, in a communication dated 14 December 1976, transmitted the observations of the Government of Antigua.
2. 188. At its meeting in February 1977 the Committee, on the basis of the information then available to it, examined the case and submitted to the Governing Body an interim report which is contained in paragraphs 151-179 of its 165th Report (approved by the Governing Body at its 202nd Session, February-March 1977).
3. 189. At its meeting in May 1976 the Committee, having received additional information from the complainant organisation as well as the observations thereon transmitted by the Government of Antigua, submitted to the Governing Body a further report, containing certain conclusions, which appears in paragraphs 58-105 of the Committee's 181st Report (approved by the Governing Body at its 206th Session (May-June 1978)).

A. A. The complainants' allegations

• Direct contacts procedure
  190. 190 When it last examined this case the Committee noted that, on 16 January 1978, the Government of Antigua had addressed directly to the ILO a communication in which it indicated that it was most anxious that an on-the-spot investigation be carried out with regard to the complaint at the earliest convenient time. The Committee also noted that the complainant organisation had made similar requests for the establishment of the procedure of direct contacts whereby a fact-finding mission would carry out, in Antigua, an inquiry into the facts of the case and submit a report thereon to the Committee. Since the Government of the United Kingdom had not, at that time, indicated its position regarding such a mission, the Committee proceeded to examine the case and to present a report thereon to the Governing Body (see para. 3 above).
  191. 191 The Government of the United Kingdom, in a letter dated 30 May 1978, confirmed the formal request made by the Government of Antigua for an assessment of the facts of the case to be carried out in Antigua. The Director-General, accordingly, appointed William R. Simpson of the Freedom of Association Branch of the International Labour Standards Department to carry out the mission. The representative of the Director-General, carried out the mission in Antigua from 25 July to 2 August 1978 (inclusive) and submitted a report thereon to the Committee.
  192. 192 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 Antigua.
• Summary of the complaints and reports of the Committee
  193. 193 When it examined the case the Committee noted that the complaint essentially related to acts of Anti-union discrimination committed by the Government in that it had allegedly dismissed a large number of public servants and other workers in enterprises taken over by the Government after it came to power on 18 February 1976. The specific enterprises mentioned by the Antigua Workers' Union (AWU) were the Hyatt Halcyon Cove Hotel, the Holiday Inn Hotel and the West Indies Oil Company Limited. The dismissed workers were all said to have been members of the complainant union. Their dismissal, the complainants had alleged, was followed by their replacement by other workers who all belonged to the opposing union, the Antigua Trades and Labour Union.
  194. 194 Allegations had also been made by the AWU that the Labour Commissioner refused to process disputes involving the Government and that legislative measures taken by the Government shortly after it came to power in February 1976 were in violation of trade union rights. The legislative measures referred to were the Antigua Labour Code (Amendment) Act, 1976, and the Industrial Court Act, also of 1976. The former, the AWU had alleged, was an attempt to destroy effective trade unionism in that, by abolishing the agency shop, it prevented the AWU from being able to collect dues; the latter, it was alleged, by re-establishing an industrial court, prevented free collective negotiation and substituted legal and court measures therefor. In addition, the complainants had stated that since the members of the Court were all supporters of the Government, it would be fatal if disputes in which they were involved were referred to such a Court.
  195. 195 When it examined the case in May 1978 the Committee noted that in all the cases concerning the alleged dismissal of workers, the Government, although not denying that these dismissals took place, had not answered specifically the allegation that these workers had been replaced by others who were not members of the AWU. The Committee considered that the 1976 amendment to the Labour Code by which the existing agency shop system was abolished and replaced by a new system involving the payment of a negotiation fee of E.C.$6 by non-members of the bargaining agent was closely bound up with the dismissal and replacement of workers. The Committee stated that it understood that the result of the introduction of the new system, coupled with the dismissal of AWU members, had been that the AWU, having been thus deprived of its majority, had ceased to be bargaining agent and that in those enterprises where it might still be bargaining agent, the AWU, instead of being able to collect the usual contributions from non-members, could only collect E.C.$6 from each of them to cover the period of each collective agreement (usually three years).
  196. 196 In pointing out that it has always declined to examine allegations involving forms of union security arrangements, the Committee stated in this connection that, whatever the aim of the provision in question, it seemed clear that it could only operate to the serious financial disadvantage of a union which was the bargaining agent in an enterprise comprising non-unionists or members of another union. In other words, it appeared to the Committee that the AWU had been placed at a serious financial disadvantage in those enterprises in which it was the bargaining agent.
  197. 197 As regards the reintroduction of the Industrial Court, the Committee noted that this was a body in which the complainants had little confidence. In this connection, it emphasised that complaints against anti-union practices should normally be examined by national machinery which, in addition to being speedy, should not only be impartial but also appear to be such to the parties concerned who should participate in the procedure in an appropriate and constructive manner. As regards the allegations that the Industrial Court Act placed restrictions on free collective bargaining, the Committee noted that the complainants had submitted no additional information on the practical application and effects of this legislation.
  198. 198 The Committee has examined the report of the representative of the Director-General on the mission which he undertook in Antigua from 25 July to 2 August 1978 inclusive. It notes that in the course of this mission the representative of the Director-General had discussions, in particular, with the Minister of Barbuda Affairs, Labour and Sanitation, the Attorney-General and Minister of Legal Affairs, the Chairman of the Industrial Court, the Labour Commissioner, and representatives of the Employers' Federation, the Antigua Workers' Union and the Antigua Trades and Labour Union. The Committee notes with satisfaction that the representative of the Director-General enjoyed the fullest cooperation of all the parties concerned and that the Government provided all the facilities necessary to enable him to carry out the mandate entrusted to him as effectively and as expeditiously as possible.
• Background information
  199. 199 The representative of the Director-General considered that, in order to permit a clearer understanding of the trade union situation in Antigua and the context in which the complaints had been presented against the Government by the Antigua Workers' Union it was necessary to look briefly at the history of the trade union movement in that country and, in particular, the background against which the Antigua Workers' Union had been formed.
  200. 200 the report of the representative of the Director-General states that trade unionism commenced in Antigua in 1939 with the formation of the Antigua Trades and Labour Union, which remained the sole labour and political force in the country until 1967 when internal self-government was attained from Britain. The sole political party on the island during this period was the Antigua Labour Party (ALP) which was formed from within the ranks of the Antigua Trades and Labour Union, and government ministers and other elected officials in Parliament were executive officers of that union. In 1967, when full internal self-government was attained, the head of the Government of Antigua, Mr. V.C. Bird, who became the island's first Premier, continued to occupy his position as President of the Antigua Trades and Labour Union. The report continues that, in May 1967, disagreement within the executive of the ATLU on a number of issues led to the expulsion of several of its executive officers, including Malcolm Daniel, Donald Halstead, George Walter, Keithlyn Smith and Maurice Christian, who, on 16 May 1967, formed the Antigua Workers' Union which was registered on 31 May 1967. Significantly, the newly formed AWU rapidly gained in strength and within a very short space of time had a membership greater than that of the ATLU.
  201. 201 According to the report the bitter struggle of the AWU for recognition led to strikes and demonstrations and eventually, on 18 March 1968, to the declaration by the Government of a state of emergency. Negotiations led to a settlement being reached which gave the AWU recognition of its right to represent its members, as well as calling for bye-elections for four additional seats in the island's legislature, all of which, in August 1968, were won by the new Progressive Labour Movement (PLM) which was formed from within the ranks of the AWU.
  202. 202 Vigorous opposition to the AWU continued. In 1970, when the AWU won bargaining rights in the fast-expanding hotel industry, the introduction of an agency shop clause in the collective agreement was resisted by the Government. It was only after an independent arbitration tribunal ruled, by a majority decision, in favour of the agency shop that this was introduced. Only a few weeks later, however, the Government retaliated by passing the wages Protection Act, 1970, which effectively nullified the arbitration tribunal's ruling and made illegal any deduction from wages.
  203. 203 In 1971, the closely fought general election was won by the Progressive Labour Movement, with Mr. George Walter and Mr. Donald Halstead, executive members of the AWU, becoming Premier and Minister of Labour respectively. It was during the PLM's single term of office (1971-76) that the Antigua Labour Code was enacted, which permitted an agency shop system and which repealed the Trade Disputes (Arbitration and Settlement) Acts, under which an industrial court existed for the settlement of disputes. The court was replaced by other disputes settlement machinery.
  204. 204 In February 1976 Mr. V.C. Bird and his Antigua Labour Party returned to power and proceeded almost immediately to implement two of the promises contained in the ALP's election manifesto, viz. the abolition of the agency shop and the reintroduction of the Industrial Court. The legislative enactments whereby these promises were implemented were the Antigua Labour Code (Amendment) Act and the Industrial Court Act, both of 1976. It was against this legislation, as well as certain other acts alleged to have been committed by the Government, that the complaint in the present case was brought.
  205. 205 In his report the representative of the Director-General points out that it is important to bear in mind that it is the personalities who were involved in the struggle of 1968 who are prominent on the trade union and political scene today, although in some cases their roles have changed. For example, the present Minister of Barbuda Affairs, Labour and Sanitation, the Rt. Hon. Adolphus Freeland, was former Secretary-General of the Antigua Trades and Labour Union. The former Premier (1971-76), Mr. George Walter, is now leader of the opposition Party, the Progressive Labour Movement, and the former Minister of Labour, Mr. Donald Halstead, is now industrial adviser to the Antigua Workers' Union.
• The general situation
  206. 206 The Committee notes from the report of the representative of the Director-General that the total workforce of Antigua - which is an Associated State of the United Kingdom - comprises approximately 23,000 out of a population of 72,000. From the information gathered, it appears that about 15,000 workers are unionised. The Antigua Workers' Union claims to have a book membership of approximately 10,000, whereas the Antigua Trades and Labour union claims a membership of about half this figure.
  207. 207 The representative of the Director-General points out that there can be little doubt that, apart from its numerical strength, the AWU is generally regarded as comprising within its ranks people who have greater negotiating ability and experience than its rival, the ATLU. Both the ATLU and the AWU, however, being the respective power bases of the Antigua Labour Party (ALP) and the Progressive Labour Movement (PLM), are so closely identified with these political parties as to be virtually synonymous with them, and membership of one of these unions means loyalty to the party which it supports. Since 1968, a worker has made his political choice (and therefore his choice of union) not on the basis of any ideological differences between the two factions but mainly on the basis of strong personal allegiance to the leadership of the respective parties. The report adds that it is also clear that, at least to some extent, this choice has depended on whichever of the two parties is in power at the time, since many people consider that loyalty to the party in power in Antigua provides a greater degree of security of employment.
  208. 208 The representative of the Director-General states in his report that, since it came into existence in 1868, the AWU's strength and effectiveness have been far superior to those of the ATLU. Especially during the period 1971-76 when the Progressive Labour Movement was in power, the ATLU's membership and income were negligible, and even since the return to power of the Antigua Labour Party in 1976, the AWU has remained by far the more powerful of the two unions. Of the 48 or so collective agreements that are presently in force the AWU is bargaining agent for some 35 of these, the ATLU being bargaining agent for the others. There has, since 1976, been some increase in the membership of the ATLU and evidence of a falling off, particularly in recent months, in the membership of the AWU and, although this situation has not as yet had any serious effects on the bargaining strength of the AWU, the ATLU has nevertheless managed to emerge as bargaining agent in a number of smaller enterprises where a poll has been taken. According to the report of the representative of the Director-General, there would appear to be several reasons for this: first, the ATLU is the power base of the present Government and, as indicated earlier, membership of it could mean increased employment security; secondly, although the ATLU is a weaker and less experienced union, it has, according to members of the Employers' Federation, adopted a constructive and responsible approach to collective bargaining; thirdly, according to the same source a number of AWU members, disillusioned by what they consider to be the union's excessive involvement in politics and the lack of attention to the defence of their interests through the collective bargaining process, have left the AWU and joined the ATLU, or given up any kind of trade union affiliation. For example, the representative of the Director-General states in his report that he was told by the Employers' Federation that, between August 1977 and April 1978, nine collective agreements had expired without any steps being taken by the AWU for their renegotiation. No satisfactory explanation was given by the AWU for this state of affairs. Again, in one enterprise (Antigua Catering) all the workers had become members of the ATLU, and in another, British Airways, all the workers had left the AWU and had negotiated an agreement themselves directly with the company. It was the view of the Employers' Federation that both the AWU and the ATLU were over-politicised, but that the ATLU was more objective and responsible in negotiations, while negotiations with the AWU were becoming increasingly difficult owing to the excessive nature of the claims made as well as the manner in which negotiations were being conducted. It was becoming increasingly common, for example, for the AWU negotiating team to be accompanied by numerous members of the rank and file whose interjections often made discussion impossible and led to negotiations being abandoned.

A. Allegations relating to dismissals in the civil service and other public bodies

1. 209. The complainant organisation had already supplied with its original complaint a list of 130 workers who were alleged to have been dismissed from employment in the Premier's office and various other government offices and in such bodies as the Public Utilities Authority, the Post Office, Public Works and the Central Board of Health. These persons were stated to have been dismissed because of their membership of the AWU. They were, according to the complainants, replaced by members of the opposing union, the ATLU. The Government, for its part, had admitted that there had been some layoffs and dismissals in some ministries where there were large surpluses of labour it denied however, that members of the AWU had been victimised.
2. 210. In his report the representative of the Director-General points out that, in Antigua, the AWU provided a more up-to-date list including the names of 334 persons who were alleged to have been dismissed from the aforesaid government offices. The persons on this list, the complainants had explained, had occupied civil service posts at all levels ranging from senior executive positions to domestic work, and their dismissal had resulted from their membership of the AWU or their known sympathies towards the Progressive Labour Movement.
3. 211. The representative of the Director-General describes in his report the interviews he had with several former civil servants of varying grades who had been dismissed or forced to take early retirement shortly after the Antigua Labour Party came to power in 1976. The Committee notes that some of these persons had over 20 years' service in various government departments. All were members of the AWU and none was in any doubt that it was as a result of his trade union affiliation that he had been dismissed. The Committee also notes that, although in some cases payment was received for accumulated and untaken leave, gratuities - sometimes involving considerable amounts - had not been paid, nor had the pensions to which these persons became entitled on leaving the service.
4. 212. According to the information obtained by the Director-General's representative in some cases involving the discontinuance of employment of civil servants the AWU raised disputes under the Labour Code of 1975. Meetings were held with the Labour Commissioner in accordance with the procedure laid down in section B5 (2) of the Act and the matters were subsequently referred to the Minister. In some cases the matter was referred back to the parties by the Minister with the recommendation that, since the issue was one of redundancy caused by the reorganisation of the divisions in certain ministries, and the workers concerned having received all their entitlements, the matter be regarded as closed.
5. 213. The Committee notes from the report of the representative of the Director-General that as regards the whole question of loss of employment in the civil service the government officials interviewed did not deny that dismissals had taken place or that a number of persons had been forced to take early retirement. Their explanations, however, were general in character and confined to describing the unnecessarily large surplus of labour that had been engaged in the civil service by the previous administration. The Minister of Labour, for example, explained that the reorganisation of the civil service following the change of Government in 1976 had led naturally to a number of persons being laid off, especially in cases where they were found to be redundant. He pointed out, in addition, that when the Progressive Labour Movement had won the elections in 1971 there had been a large number of dismissals of civil servants who were known supporters of the ALP, and the reorganisation of the civil service in 1976 was in some ways an attempt to redress the situation. The financial situation had also made it essential to cut back on staff, especially in these areas where there was obvious over-manning, but the Minister emphasised that in no case were the political beliefs and trade union affiliation of those affected taken into consideration.

B. Allegations relating to dismissals in the hotel industry

1. 214. Dismissals of workers because of their membership of the AWU were alleged to have taken place in the Hyatt Halcyon Cove Hotel and the Holiday Inn Hotel, both of which had been acquired by the Government in 1976. According to the AWU, these workers had been replaced subsequently by others who were all said to be members of the Antigua Trades and Labour Union. These allegations had been rejected by the Government which denied that trade union membership or political beliefs had anything to do with the dismissals.
   • (i) The Hyatt Halcyon Cove Hotel
2. 215. According to the information obtained by the representative of the Director-General this hotel was opened in 1973 and had a staff in 1976 of approximately 200. Already in 1974 the proprietary company Halcyon Hotels (Antigua) Ltd. was experiencing serious financial difficulties and went into voluntary liquidation. Tourism being an industry of major importance in Antigua, the ALP Government, when it came to power in 1976, decided to purchase the hotel and the sale effectively took place on 10 May 1976. Since August 1976 the hotel has been managed by Hyatt International.
3. 216. The liquidator assumed full responsibility for severance and holiday pay up to the week ending 9 May 1976, and undertook that such payments would be calculated and paid not later than 31 May 1976. Correspondence to which the representative of the Director-General had access showed that the liquidator had also been told by the Government that each employee would be informed that his employment would be continued after 10 May on the same basis but for the normal period of probation to which a new owner is entitled, during which period a new agreement would be finalised. The probationary period to which the liquidator referred was strongly contested by the AWU in its capacity as bargaining agent for the entire hotel industry. The liquidator, however, pointed out, that employment as from 10 May 1976 was entirely a matter for the new owners and suggested that the question be raised with them.
4. 217. In this connection the representative of the Director General states in his report:
   • From all the information I was able to gather concerning subsequent developments at this hotel it appears that the majority of the personnel were either not recalled for service after 10 May or were recalled and dismissed shortly afterwards. The Minister of Labour explained to me that, in view of the bankruptcy situation, some of the hotel's facilities had been closed and staffing levels had necessarily to be immediately reduced. Practically the entire staff, he added, were members of the AWU, and dismissals therefore necessarily involved AWU members, but it was not, he emphasised, because of their trade union affiliation that they were dismissed. According to the factual information and other evidence gathered on the spot. At the time of the sale of this hotel there were about 70 workers who were members of the Antigua Trades and Labour Union, all of whom had been paying trade union contributions and contributions to the welfare fund of the AWU under the agency shop arrangement. As far as I was able to ascertain not one of these workers was affected by loss of employment following the sale of the hotel to the Government. On the other hand, the AWU provided a list of 129 of its members whose employment at the hotel had been terminated in one way or another. I spoke with a number of persons who had been so affected and each gave me his or her personal account of the circumstances in which their employment had been terminated. I found these witnesses reliable and intelligent and saw no reason to doubt the credibility of their evidence. Most of them stated that they had been informed by the management that they would have to sign a form for the check-off of an entrance fee and union dues to the ATLU. On refusal to do so they had been dismissed. In other words, security of employment at the hotel seems to have been dependent upon membership of the ATLU.
   • Confirmation of this situation is reinforced by the present employment position at the hotel. The ATLU informed me that they have 100 per cent membership amongst the staff at the hotel. This was confirmed by the AWU who claimed that, although some employees were still members of the AWU, they had been obliged, through fear of loss of employment, to sign forms authorising the deduction of union dues in favour of the ATLU.
5. 218. The report of the representative of the Director-General continues:
   • On the question of these dismissals, the AWU had raised a dispute with the Labour Commissioner on 9 June 1976 and conciliation was attempted, but without success. On 19 June 1976 the matter was reported to the Minister of Labour who, acting under the powers conferred upon him by section 86(2)(a) of the Labour Code, referred the matter back to the parties on 7 July 1976. On this point the Minister explained that, in his view, there was no question of a dispute. All the workers had been severed by the company in liquidation and paid their entitlements, and their re-engagement was a matter for decision by the new owner (the Government). He could not, therefore, decide that this was a dispute in the strict sense of the term.
     • (ii) The Holiday Inn
   • 219. According to the complainant organisation, the entire staff of this hotel had been dismissed following its purchase by the Government in the latter part of 1976 and, as in the case of the Hyatt Halcyon Cove Hotel, they were replaced by members of the ATLU.
6. 220. According to the representative of the Director-General the following facts emerged from his discussions with the AWU and the ATLU until 1976 the AWU was bargaining agent for the hotel, having narrowly won a poll in July 1972. Approximately 150 members of staff were involved in the ballot. In 1973, legislation was enacted permitting union security arrangements in the form of the agency shop system which those employees within the bargaining unit (in this case the Holiday Inn) were required to pay to the AWU an agency fee equivalent to the normal annual membership of the AWU whether or not they were members of the recognised bargaining union (i.e. the AWU).
7. 221. The opposition by the ATLU to the introduction of the agency shop was particularly bitter at the Holiday Inn where membership of both unions was virtually equal. According to the ATLU the refusal of its members to pay not only the normal agency contribution but also a contribution amounting to 5 per cent of a worker's wage to the welfare fund of the AWU was met with threats of dismissal, and eventually the ATLU was successful in obtaining a court injunction which prevented the AWU from seeking payment of these sums. It appears that no final pronouncement was ever made by the court on the legality of these payments but, according to the ATLU, for as long as the injunction remained in force their members received no wage increases.
8. 222. In 1976, just prior to the Government's purchase of the hotel, the entire staff had been severed and the Government's rehiring policy followed the same pattern as that followed in the case of the Hyatt Halcyon Cove Hotel. Of the 85 or so members of staff presently working in the hotel the vast majority are members of the ATLU. According to the representative of the Director-General the AWU stated that it had, in fact, no members at the Holiday inn, whereas the ATLU claimed that nine workers there were members of the AWU.
   • (iii) West Indies Oil Company Ltd.
9. 223. This company was purchased by the Government on 1 September 1976 and, according to the complainant organisation, all its known members and supporters - 42 in number - were terminated and replaced by members of the ATLU. The complainants had also stated that assurances given by the Government to the employees concerning their security of employment after the Government's purchase were not respected.
10. 224. According to the report of the representative of the Director-General, from the various discussions held, in particular with the managing director of the company in question, it appeared that the previous owners of the company, Natomas, for reasons related to the energy crisis at the time, ceased its refining and trading operations in January 1976. The reduction of operations obliged the company to lay off staff in January 1976 and about half of the total workforce of 180 was affected. Redundant personnel were not, however, individually released. Such employees were asked to exhaust their holiday entitlement and thereafter to remain on holiday, on full pay, on a call-back basis. These persons received full pay until 31 March when they received full severance entitlement and compensation for outstanding leave. At the time of the sale to the Government (1 September 1976) the entire remaining staff (including the managing director) was severed and paid the benefits to which they were entitled. Out of a total of about 60 workers hired by the Government about 40 were chosen from amongst those who had been laid off.
11. 225. The Committee has carefully examined all the information before it concerning the question of dismissals of workers in civil service departments and authorities and in a number of enterprises purchased by the Government after it took office at the beginning of 1976. As far as the civil service is concerned, it has not been denied that a large number of persons were dismissed or forced to take early retirement in 1976 and 1977. What is rejected by the Government is the allegation that it was because of their membership of the Antigua Workers' Union that these persons were dismissed.
12. 226. The evidence gathered on the spot would indicate that when the Government took office in 1976 it immediately set out to expel from the civil service any elements on which it could not rely for full support or loyalty. Particularly in government departments this policy was aimed at members or supporters of the AWU which is the power base of the opposition Progressive Labour Movement. The Government's argument that there was overstaffing in certain departments, a lack of sufficient resources, etc., may well have some merit, but, in the view of the Committee, it does not explain the dismissal of persons who had many years of service, nor the fact that dismissed persons were replaced by others who were known supporters of the Government. The Committee also notes with concern that persons dismissed or forced to take early retirement have been paid neither the gratuities nor the pensions to which they are entitled in respect of their years of service.
13. 227. As regards the two hotels that were purchased by the Government, viz. the Hyatt Halcyon Cove Hotel and the Holiday Inn, the Committee can only conclude from all the information placed at its disposal that there can be little doubt that workers who continued to support the AWU following the purchase of the hotels by the Government found it practically impossible to maintain their employment, on where they were laid off, to secure re-employment when workers were eventually rehired. In the view of the Committee, a comparison between the trade union membership situation in these hotels prior to and following the Government's purchase demonstrates that membership or support of the opposing Antigua Trades and Labour Union was important, if not essential, in maintaining or securing employment.
14. 228. As regards the West Indies Oil Company Limited the Committee notes that the reduction of staff was necessitated mainly by a reduction in operations. Eventually, the entire staff was laid off, but some 60 workers later rehired, including about 40 who had previously worked for the company. The Committee understands that there are only two or three members of the AWU on the present staff of the company. Here again, it would appear from the present situation in the company that, whatever the rehiring policy of the Government may have been, care was taken to ensure that only in exceptional cases were AWU members re-employed.
15. 229. The Committee would point but that it is a fundamental principle of freedom of association that workers should have the right, without distinction whatsoever - in particular without discrimination of any kind on the basis of political opinion - to join the union of their choice and no person should be discriminated against in his employment by reason of his trade union activities or membership; not merely dismissal but also compulsory retirement or termination of services would be contrary to the principle that there should be no anti-union discrimination in respect of employment if the activities in respect of which action was taken against an employee were in fact lawful trade union activities.,

C. Allegations relating to the Labour Commissioner and the processing of labour disputes

1. 230. The AWU had alleged that disputes referred to the Labour commissioner were not properly processed by him and gave, as an example, the case concerning the Hyatt Halcyon Cove Hotel where the minister had referred a matter back to the parties after deciding that no dispute existed (see paragraph 32 above). This allegation was denied by the Government.
2. 231. In his report the representative of the Director-General states the following:
   • The information obtained on the spot did not substantiate this allegation. On the contrary, the AWU admitted that they had no hesitation - particularly in view of their opposition to the Industrial Court - in referring any type of dispute to the Labour Commissioner in whose office they had considerable confidence. The obviously efficient office of the Labour Commissioner, in exercise of the powers conferred upon the Labour Commissioner under the Labour Code for the mediation, conciliation or voluntary settlement of disputes, is instrumental in settling a large proportion of the disputes referred to it. In a number of cases the Minister himself - again under the powers conferred upon him under the Labour Code - is successful in achieving the voluntary adjustment or settlement of disputes.
   • The statistics available showed that, in 1975, the Labour Commissioner had dealt with 116 disputes that had been referred to him and had held 103 conciliation meetings with the parties. Of these 116 disputes, 59 had been settled, 24 had been referred to a hearing officer (Labour Code, part B.9) and the remainder withdrawn; in 1976, there were 141 conciliation cases, 41 of which were settled, 22 determined by a hearing officer or Board of Review, 12 cases unsettled and the remainder withdrawn. No figures were available for 197778 but the Labour Commissioner informed me that his office was now dealing with an average of 300 cases per year. According to the Labour Commissioner, the AWU was involved in most of the disputes referred to him for conciliation and he indicated that the AWU co-operated fully and responsibly with the procedures laid down in the Labour Code for the settlement of disputes.
3. 232. In view of the information obtained on the spot by the representative of the Director-General the Committee can only conclude that the services provided by the Labour Commissioner and his office under the Labour Code for the settlement of disputes are adequate and that there would appear to be no doubt that they enjoy the confidence of all the parties. The Committee accordingly recommends that this aspect of the case does not call for further examination.

D. Allegations relating to the Antigua Labour Code (Amendment) Act, 1976

1. 233. According to the AWU the main intention behind the amendment introduced by the Government shortly after it came to power in 1976 was to cripple the AWU financially by abolishing the agency shop system.
2. 234. The Government, for its part, had explained that the legislation adopted in 1976 represented a difference of political philosophy and that it was in no way designed to adversely affect the advancement of the traditional objectives of the trade unions.
3. 235. The Committee notes from the information obtained by the representative of the Director-General that the relevant amendment to the Labour Code of 1975 came into force in June 1976, barely four months after the return to office of the Antigua Labour Party. The effects of the Amendment Act were: (i) to abolish the agency shop system under which all employees in any bargaining unit paid the regular union contribution to the bargaining agent whether or not they were members of that union; (ii) to replace this system by another under which a negotiating fee of $6 (East Caribbean) would be paid to the bargaining agent by every employee in the bargaining unit in respect of each collective agreement negotiated by it; and (iii) it rendered null and void all existing authorisations given by any employee for the deduction of any money from his wages.
4. 236. The Committee recalls that the AWU, which was bargaining agent in most of the industries in the country when the Antigua Labour Party came to power, saw this legislation as being designed to place difficulties in its way as regards the collection of union dues and, more importantly, to render it financially incapable of pursuing its activities as a trade union.
5. 237. The report of the representative of the Director-General continues:
   • Like the Government, the Antigua Trades and Labour Union is strongly opposed to any form of union security arrangement which, in their view, is contrary to the principle that a worker should be free to join the union of his choice. This, however, was not always the view of the ATLU which, as far back as 1962 - before the AWU came into existence - sought to introduce the agency shop in certain industries and were successful, at least in one case (Antigua Sugar Factory), in doing so.
   • The AWU, on the other hand, has fought persistently since its foundation for the introduction of the agency shop. Having always been the stronger union, with bargaining rights in most industries, it was clearly in its interests to do so. Mention has already been made of the majority arbitral award of 1969 whereby the AWU was successful in having an agency shop in the hotel industry in which it was bargaining agent. During the period in which the Progressive Labour Movement formed the Government (1971-76), the AWU was also able to operate the agency shop freely in every industry in which it was bargaining agent. This provided it with very considerable resources, particularly in view of the fact that not only were trade union dues payable by all the workers concerned but also contributions to the AWU welfare fund, which could range in amount from 1 per cent to 5 per cent of a worker's wages.
   • In the view of the Antigua Labour Party, the exploitation of the agency shop by the AWU and the resentment thereof on the part of non-AWU members justified an election promise being made in 1976 to abolish this system. The Minister of Labour explained that it was his Government's antipathy towards "free riders" that led to the introduction of the negotiating fee, although he admitted that the amount (E.C.$6) was a token sum. He did not think that there would be any difficulty in increasing this amount. The employers also considered the sum to be low and said they would support any representations by the workers for a substantial increase. When the amendment was introduced, they said, their great fear was that the AWU would only agree to negotiate annual instead of triennial agreements since the negotiating fee covers the duration of the agreement. Since the Minister, in terms of section 7 of the Amendment Act, can by order vary the amount of the negotiating fee, any increase could be effected quickly and without any additional legislation being passed. While employers were bound by law to collect the negotiating fee from the workers concerned and pay sums so collected over to the bargaining agent this, according to the employers, was not done systematically. The unions, for their part, were unwilling to pursue the matter owing to the insignificance of the amounts involved.
   • One problem which was of concern to the AWU in this connection was that members, rather than pay the usual union contribution, were leaving the union knowing that by paying $6 they would derive the same benefits under the collective agreement as those workers who were members of the bargaining union. The Employers' Federation confirmed that they knew of cases where this had happened.
6. 238. The Committee notes that, according to the inquiries made by the representative of the Director-General, there can be no doubt that the abolition of the agency shop has dealt a severe blow to the financial resources of the AWU. An examination of the audited accounts of the union revealed a drop in the income of the union of approximately EC$50,000 for the six months to December 1976. Despite this the Committee notes from the report of the representative of the Director-General that the AWU continues to have a substantial income from check-off and welfare contributions from its own members.
7. 239. As the Committee has already pointed out it has always declined to examine allegations involving forms of union security arrangements basing its reasoning on the statement of the Committee on industrial Relations appointed by the international Labour Conference in 1949 according to which Convention No. 98 can in no way be interpreted as authorising or prohibiting union security arrangements. The Committee has considered, however, that the situation is very different when the law imposes union security - either in the form of making union membership compulsory or by making union contributions payable in such circumstances as to amount to the same thing.
8. 240. The information now available to the Committee confirms its previous view that the law, in fixing a negotiating fee of $6 payable by non-members to the bargaining unit in respect of each collective agreement (normally 3 years), does not seek to make union membership compulsory. On the other hand, the fixing of the negotiation fee at such a low figure could have the effect of discouraging non-union members from joining the union which is the bargaining agent. In addition, the Committee notes the AWU's contention that it is losing some members who, by paying the negotiation fee instead of normal contributions, can enjoy the same benefits as members of the bargaining agent.
9. 241. The Committee considers that, since, in accordance with the principles mentioned above, union security questions are matters for arrangement at the national level, the Government's action in abolishing the agency shop system was not in violation of freedom of association, even if the income of the AWU - which had greatly benefited from the system for some years - was seriously reduced as a result.
10. 242. Referring to the new system introduced by the Amendment Act the Committee would point out that, in a situation under which the bargaining agent legally enjoys the right of exclusive representation of all the workers in a unit, the compulsory payment to the bargaining agent of a fixed sum of money by non-members of the bargaining agent in return for the benefits enjoyed by them under the collective agreement would not appear to be incompatible with the principles of freedom of association. The Committee would, however, add that the sum fixed by law should not be so low as to encourage withdrawal from membership of the bargaining agent or so high as to place an excessive financial burden on workers who pay contributions to another union of their choice.
11. 243. The Committee would suggest that the sum of $6 fixed by the Amendment Act be revised periodically in order to ensure that the quality of representation which the trade unions can provide for their members is in no way impaired, and in particular to ensure that a union designated by the majority of the workers in a unit as sole bargaining agent does not suffer prejudice under the new system.

E. Allegations relating to the Industrial Court

1. 244. The complainants had further alleged that the Industrial Court, set up by the Industrial Court Act, 1976, was an instrument which frustrated free collective bargaining and removed the right to negotiate and which substituted negotiation by legal and court measures. The complainants also alleged that the Court consisted of persons who were well-known supporters of the Government, appointed by the Governor acting on the advice of the Cabinet.
2. 245. The Committee notes from the report of the representative of the Director-General that, prior to 1975, an industrial Court existed in Antigua, having been established by the Trade Disputes (Arbitration and Settlement) Ordinance of 1976, an Act repealed by the Labour code, 1975. The reintroduction of an Industrial Court had been an electoral promise of the Antigua Labour Party, and the Industrial Court Act became law in June 1976. The Court consists at present of a panel of three of its originally appointed members. Mr. P.C. Lewis, the Chairman of the Court, is a former judge of the Antigua Court of Appeal and former Chief Justice of the Supreme Court of the Associated States. Two of the members of the court (including the Chairman) are lawyers, and the third an accountant.
3. 246. The Industrial Court has jurisdiction: (a) to hear and determine trade disputes referred to it under the Act; (b) to enjoin a trade union or other organisation of employees or other persons or an employer from taking or continuing industrial action; (c) to hear and determine any complaints brought in accordance with this Act as well as such matters as may from time to time be referred to it under the Act.
4. 247. By virtue of the Act the Minister may at any stage refer a dispute to the Court where the existence of such a dispute has been brought to his attention, or to the attention of the Labour Commissioner under the provisions of the Labour Code. Either party to a dispute may also refer the dispute to the Court if, within ten days after the existence of a dispute has come to the attention of the Labour Commissioner, he has failed to achieve a voluntary adjustment or settlement.
5. 248. According to the report of the representative of the Director-General there was abundant evidence to show that, in the vast majority of cases, the voluntary settlement of disputes, whether large or small, is reached by reference to the Labour Commissioner and the Minister of Labour in accordance with the procedures provided for in the Labour Code and that reference to the Industrial Court is only made in exceptional cases. It also appears to the Committee from the information contained in the report of the representative of the Director-General that, in cases involving the AWU or its members, the industrial adviser of this organisation has appeared in court solely to contest its Constitutionality and has withdrawn without addressing himself to the issues before the court.
6. 249. The Committee notes that an action was brought on behalf of the AWU in the High Court contesting the Constitutional validity of various sections of the Industrial Court Act, especially those relating to the appointment of the members and their tenure of office. In a judgement rendered by the High Court on 14 February 1978 the Court took the view that the jurisdiction enjoyed by the Industrial Court was not such as to render the provisions complained of, or any other sections of the Act Constitutionally invalid.
7. 250. From all the information at its disposal the Committee can find no evidence to support the allegations that the Industrial Court does not exercise its functions impartially and independently or that collective bargaining has been replaced by court orders. The information shows that, of the cases dealt with by the Court in which the AWU has not been involved almost half have been won by workers. As far as collective bargaining is concerned the evidence shows that the process of collective bargaining continues normally and no judgement pronounced by the Court to date has interfered with this process.
8. 251. The complex waterfront issue, described in the report of the representative of the Director-General involving industrial disputes between the AWU and two companies (Joseph Dew Ltd. and Stephen R. Mendes Ltd.) illustrates the attitude of the AWU to the Industrial Court and the manner in which the Court deals with referrals to it. The Committee notes that one of these cases (Stephen R. Mendes Ltd.) was referred to the Industrial Court after several attempts by the Labour Commissioner to conciliate had failed. In this case, notwithstanding the legal requirement that all industrial action should cease while a matter awaits adjudication by the industrial Court, the AWU continued an embargo imposed on cargo consigned to the company concerned. From a procedural point of view the union, it appears, deliberately refused to comply with the rules of court and, again in this case, the union's adviser withdrew from the proceedings without submitting any evidence in support of the union's case.
9. 252. Notwithstanding the union's attitude the Committee notes that the Court did-not pronounce judgement in the case without a lengthy examination of the situation. The Court found that continuation of the industrial action instituted by the AWU against the company was in breach of S.20(1) of the Industrial Court Act which prohibits strike action while proceedings are pending before the Court. The Court, accordingly, enjoined the union from continuing industrial action against the company.
10. 253. The report of the representative of the Director-General continues in this connection:
    • In spite of this judgement the AWU continued its embargo on the cargo consigned to the company - although it is interesting to note that no steps were taken to impose the substantial fines provided for in the Act for breach of its provisions. A bitter correspondence followed between the AWU and the Employers' Federation concerning the resumption of negotiations, and in one latter dated 8 May 1978 the General Secretary of the AWU, writing to S.R. Mendes Ltd., stated that "The Industrial Court, a politically motivated and so appointed tribunal, is not impartial or competent to resolve industrial issues. The validity of that Court is subject to an appeal pending before the Court of Appeal and until that issue is finally settled the dispute with your company remains, unless there is a mutually accepted settlement of the said dispute"
11. 254. As for the procedure of the industrial Court, the Committee notes from the report of the representative of the Director-General that, according to the Chairman of the Court, an attempt is made to be as flexible as possible, especially as regards the workers. The Chairman of the Court also told the Director-General's representative that if he was particularly rigid in cases involving the AWU this was simply because the AWU's representative made every effort to frustrate the proceedings of the Court by making interventions contesting the Constitutionality of the Court and by refusing to submit evidence in support of his case.
12. 255. The Committee also notes, however, that there is fairly widespread feeling that the procedure of the Court is too formal and excessively legalistic in character. In addition the employers as well as the unions seem to consider that the Court would command greater respect if its membership included an industrial relations expert. The Committee notes with interest that the AWU indicated to the Director-General's representative that they would find the Court more acceptable if the proceedings were less legalistic, and particularly if an industrial relations expert were appointed to it.
13. 256. In connection with trade disputes and complaints against anti-union practices, the Committee has previously pointed out that these should be examined by national machinery which, in addition to being speedy, should not only be impartial, but also seen to be such by the parties concerned, who should participate in the procedure in an appropriate and constructive manner. In the present case the Committee has found no evidence to justify the attitude of the AWU in refusing to recognise the Industrial court as an independent, impartial body which has worked speedily and effectively as regards the cases with which it has dealt on the other hand, in view of the various opinions expressed, the Committee considers that the Government should give consideration to the appointment to the Court of an expert in industrial relations questions.

F. Allegations relating to the Public Order Act, 1972 (as amended)

1. 257. The AWU had also complained that the Public Order Act, 1972, as amended in 1976 and 1977, placed severe limitations on their right to hold trade union meetings and, in particular, that their premises ("Freedom Hall") were now considered to be a public place for the purpose of the Act.
2. 258. The representative of the Director-General, in his report, describes the situation as follows:
   • Prior to the introduction of the 1976 and 1977 amendments, the Public Order Act of 1972 provided that no person could organise, hold, call together or address a meeting in any public place unless a permit had been issued in respect thereof by the Chief of Police. The term public place was defined as "any highway, street, public park or garden, any wharf, pier, beach and any public bridge, road, lane, footway, square, court, alley or passage, whether a thoroughfare or not; it includes any open space and any premises to which, for the time being, the public have, or are permitted to have, access whether on payment or otherwise". The term "meeting" is defined as "any assembly or gathering for the purpose of the transaction of matters of public interest or for the discussion of such matters or for the purpose of the expression of views on such matters". These provisions did not apply to meetings organised by a trade union in furtherance of a specific trade dispute or for the celebration by trade unions of Labour Day.
3. The 1976 amendment laid down penalties for anyone who "in any public place or at any public meeting makes any false statement concerning any public official which is calculated or is likely to bring any such person into ridicule, odium, or contempt, or to undermine public confidence in the conduct of public affairs by such official". The term "public official" was defined as including members of the Industrial Court, members of Parliament and members of commissions.
   • The amendment introduced in 1977 extended the scope of the meaning of "public place" to include any building and brought all meetings organised by a trade union within the scope of the principal Act.
   • Under the miscellaneous provisions of the principal Act (S.28) the use of a loudspeaker in any public place or in any place within public hearing is prohibited unless a permit has been issued by the Chief of Police.
4. 259. The Committee notes from the report of the representative of the Director-General that from all the documentary and oral evidence obtained on the spot concerning the practical application of this legislation there was nothing to show that it was applied in a discriminatory manner. The AWU makes many more applications to hold public meetings than the ATLU and there are correspondingly more refusals. The documentary evidence shows that in most cases permission has been granted, even in cases where the AWU and the Progressive Labour movement has applied jointly to hold a public meeting. According to the authorities permission was refused only in cases where the Chief of Police had serious cause to consider that public order and public safety might not be ensured. Again, according to the authorities, there was no obligation under the law on a union to seek permission to hold meetings in their premises to discuss matters relating strictly to their trade unions.
5. 260. The Committee notes that, under the legislation, permission is required to hold meetings to discuss matters of public concern, and that, according to the Government, this would not preclude a union holding a meeting in its own premises to discuss trade union matters without permission. From an examination of the legislation, however, and in particular section 3 of the Public Order Act, 1972 the Committee notes that "no person may organise, hold or call together or address a meeting in any public place unless a permit has been issued in respect thereof by the chief of Police". This provision would now appear to cover any kind of meeting, whether public or not.
6. 261. The Committee would point out that the right of members of trade unions to meet in their own premises for the discussion of trade union matters without the need for previous authorisation and without control by the public authorities constitutes a fundamental trade union right and that the legal restriction of this right imposed by the Public Order Act is not compatible with the principles contained in Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) which guarantees to workers' and employers' organisations, inter alia, the right to organise their administration and activities and to formulate their programmes without interference by the public authorities. Article 8 of this Convention also provides that the law of the land shall not be such as to impair, nor shall it be so applied as to impair the guarantees provided for in the Convention.
7. 262. In these circumstances the Committee recommends the Governing Body to request the Government to take appropriate steps to remove the restrictions on the right of assembly currently in force in order to ensure compliance with the principles stated above.

T. The Committee's conclusions

• General conclusions
  263. 263 In the present case the Committee has been confronted with a situation involving a number of political aspects. On this question the Committee would first point out that although political matters not involving the exercise of freedom o€ association are outside its competence, nevertheless it has decided that, even though cases may be political in origin or present certain political aspects, they should be examined in substance if they raise questions directly concerning the exercise of trade union rights.
  264. 264 The success of the newly created Progressive Labour Movement in the elections of 1971 and the subsequent return to Government in 1976 of the Antigua Labour Party have all had repercussions on the law and practice relating to freedom of association in Antigua. The AWU has alleged that it has been discriminated against mainly as a result of legislation passed in 1976 after the Antigua Labour Party came into power, and it is accordingly clear that the Committee is competent to examine the allegations brought in this connection.
  265. 265 The Committee has noted that the two principal trade unions in Antigua, the Antigua Workers' Union and the Antigua Trades and Labour Union, because of their extremely close links with the Progressive Labour Movement and the Antigua Labour Party respectively, have found themselves confronted, as a result of these links, with problems concerning the free exercise of their trade union rights when the party in power is not that to which the union owes its allegiance. Having examined the present case it would seem to the Committee that the AWU has at times allowed its occupational demands to assume a clearly political aspect and in so far as it has done so, it cannot legitimately claim that there should be no interference with its activities. On the other hand the Government has also at times taken steps which, in political terms, it may have considered necessary or desirable but which have amounted to interference with the union or its legitimate trade union activities.
  266. 266 The Committee has considered that it is desirable that occupational organisations, on the one hand, should limit the field of their activities, without prejudice to the freedom of opinion of their members, to the occupational and trade union fields, and that the Government, on the other hand, should refrain from interfering in the operation of trade unions, The Committee would also draw attention, in this connection, to the principles enunciated in the resolution on the independence of the trade union movement, adopted by the International Labour Conference at its 35th Session (1952) that the fundamental and permanent mission of the trade union movement is the economic and social advancement of the workers, and that when trade unions, in accordance with the national law and practice of their respective countries and at the decision of their members, decide to establish relations with a political party or to undertake Constitutional political action as a means towards the advancement of their economic and social objectives, such political relations or actions should not be of such a nature as to compromise the continuance of the trade union movement or its social or economic functions, irrespective of political changes in the country. The Committee has also reaffirmed the principle, contained in the same resolution, that governments should not attempt to transform the trade union movement into an instrument for the pursuance of political aims nor should they attempt to interfere with the normal functions of a trade union movement because of its freely established relationship with a political party.
  267. 267 The Committee recommends the Governing Body to draw attention to the principles and considerations set out in the foregoing paragraphs and to express the hope that, in the interests of good industrial relations, it will be the policy of the Government to encourage and promote trade unions without favour or discrimination, and that the unions will respect the existing trade union legislation and the institutions that have been established under it.

The Committee's recommendations

1. 268. In these circumstances, and with regard to the case as a whole, the Committee recommends the Governing Body:
   • (i) with regard to the allegations concerning the dismissals in the civil service, public authorities and in various enterprises purchased by the Government in 1976, to draw the attention of the Government to the considerations and principles set out in paragraphs 226 to 230 above, especially to the principle that workers should have the right, without distinction whatsoever - in particular, without discrimination of any kind on the basis of political opinion - to join the union of their choice, and no person should be discriminated against in his employment by reason of his trade union activities or membership;
   • (ii) to note with concern that persons dismissed or forced to take early retirement from civil service departments have not been paid the gratuities or the pensions to which they are entitled in respect of their years of service, and to urge the Government to give its attention to the payment of the amounts due;
   • (iii) with regard to the allegations concerning the processing of complaints by the Labour Commissioner, to decide, for the reasons set forth in paragraphs 231 and 232 above, that this aspect of the case does not call for further examination;
   • (iv) with regard to the allegations relating to the abolition of the agency shop and the amendments introduced to the Labour Code by the Antigua Labour Code (Amendment) Act, 1976, to draw attention to the principles and considerations expressed in paragraphs 233 to 242 above, and to suggest that the negotiation fee fixed by law should be revised periodically in order to ensure that the quality of representation which the trade unions can provide for their members is in no way impaired, and, in particular, to ensure that a union designated by the majority of the workers in a unit as sole bargaining agent does not suffer prejudice under the new system;
   • (v) as regards the allegations relating to the Industrial Court, to draw attention to the principles and considerations set forth in paragraphs 244 to 256 above, in particular that trade disputes and complaints against anti-union practices should be examined by national machinery which, in addition to being speedy, should not only be impartial, but also seen to be such by the parties concerned, who should participate in the procedure in an appropriate and constructive manner; and to recommend that -the Government give consideration to the appointment to the Industrial Court of an expert in industrial relations;
   • (vi) with regard to the allegations relating to the Public Order Act, 1972 (as amended), to draw the attention of the Government to the principles and considerations set forth in paragraphs 257 to 261 above, and in particular to the principle that the right of members of trade unions to meet in their own premises for the discussion of trade union matters, without the need for previous authorisation and without control by the public authorities, constitutes a fundamental trade union right; to request the Government to take appropriate steps to remove the restrictions on the right of assembly currently in force in order to comply with this principle and the principles contained in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
   • (vii) more generally, to draw attention to the principles and considerations contained in paragraphs 263 to 266 above concerning the independence of the trade union movement and to express the hope that, in the interests of good industrial relations, it will be the policy of the Government to encourage and promote trade unions without favour or discrimination, and that the unions will respect the existing trade union legislation and the institutions that have been established under it; and
     • (viii) to request the Government to keep the Committee informed of progress made in the implementation of the recommendations contained in subparagraphs (ii), (iv), (v) and (vi) above.