Interim Report - Report No 327, March 2002

Case No 2127 (Bahamas) - Complaint date: 07-MAY-01 - Closed

Allegations: Lack of protection against anti-union discrimination and employer interference, violation of the right of employees to be represented by a union, unfair dismissals and suspensions during a labour dispute

1. 174. The Commonwealth of the Bahamas Trade Union Congress (CBTUC) and the National Congress of Trade Unions (NCTU) presented a complaint of violations of freedom of association against the Government of the Bahamas in a communication dated 7 May 2001, on behalf of the Bahamas Air Traffic Controllers’ Union (BATCU). In a communication dated 26 June 2001 the International Confederation of Free Trade Unions (ICFTU) associated itself with the complaint.
2. 175. The Government forwarded its observations in communications from the Ministry of Labour (1 October 2001), and from the Ministry of Transport (14 November 2001, received on 15 January 2002).
3. 176. The Bahamas has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98); it has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

A. The complainants' allegations

1. 177. The Bahamas Air Traffic Controllers’ Union (BATCU) was registered on 12 January 1988 and concluded an official recognition agreement on 31 March 1995; since then, it has been recognized as the bargaining agent for all employees, including air traffic controllers, of the Air Traffic Division of the Department of Civil Aviation (the “Department”) whose duties and responsibilities do not entail managerial functions.
2. 178. BATCU and the Department commenced negotiating a collective agreement on 6 May 2000. In a communication dated 20 December 2000 addressed to the Minister of Tourism (the “Minister”) BATCU threatened industrial action because negotiations were being stalled, and requested that a date be set for the conclusion of a collective agreement. The communication also addressed certain matters regarding remuneration, determination of the bargaining unit and public holiday leave compensation. In a communication dated the same day, the Minister requested BATCU to withhold industrial action and assured it that the issues raised in its letter would be concluded on or before 15 January 2001.
3. 179. Between 12 January and 20 March 2001, there were a series of consultations and negotiations held between BATCU, the Prime Minister, the Minister of Tourism, the Minister of Public Service, government officials and other senior public officers, the salient points of which are as follows:
   • – on 12 January 2001, the Government made a proposal under which all monies owing to controllers would be paid, a final offer of 20 per cent salary increase was made, which might be augmented with allowances;
   • – by February/March 2001, 95 per cent of the proposed agreement had been accepted by the parties, the outstanding issues being salaries and the payment of the responsibility and training allowances;
   • – on 5 March 2001, with the help of a mediator, the parties signed a “gentlemen’s agreement” outlining terms for continued negotiations;
   • – on 20 March 2001, the parties agreed on the distribution of the 20 per cent salary increase to be paid to the members of the bargaining unit, including operations officers; however, the Minister indicated that the issue of outstanding holiday pay would be referred to the Attorney?General’s office, which BATCU considered as a breach of the agreement of 5 March 2001.
4. 180. As a result, on 21 March 2001, BATCU engaged in work-to-rule activity by applying strictly civil aviation regulations regarding flow control, after which the following measures were taken by the Government:
   • – on 23 March 2001, 27 air traffic controllers were placed on administrative leave, and the vice-president and operations officer of BATCU were suspended;
   • – on 24 March 2001, four air traffic controllers were suspended;
   • – on 6 April 2001, the Secretary-General of BATCU, who had just returned from vacation leave, was suspended;
   • – on 8 April 2001, the treasurer of BATCU, who had also just returned from vacation leave, was suspended;
   • – on 5 May 2001, the assistant secretary-general of BATCU, who had just returned from maternal leave, was suspended and letters threatening termination were issued to seven union members;
   • – only two air traffic controllers have been allowed to return to work (on 27 March and 12 April 2001, respectively).
5. 181. On 18 April 2001, the Supreme Court ruled, at BATCU’s request, that the Government’s actions were unlawful and that the air traffic controllers should be allowed to return to work. On 19 April 2001, the Director of Civil Aviation wrote a letter to BATCU, inviting suspended controllers to report to work that same day. However, when they did, they were issued new letters removing them from duty pending investigation in the flight delays at Nassau airport and “granting” them three months’ leave with pay and benefits, effective 23 March 2001. On 23 April 2001, the Government appealed the Supreme Court’s ruling to the Court of Appeal, which overturned the decision, concluding that the Government’s actions were not unlawful or unreasonable.
6. 182. The complainants allege that the Government acted in violation of ILO Conventions Nos. 87 and 98, in that it violated the right of employees to be represented by a union and engaged in acts of anti-union discrimination, unlawfully denying them the right to work. The complainants also allege a lack of protection against acts of anti-union discrimination and employer interference, and raise serious concerns regarding the Government’s refusal to respect national legislation and international aviation safety standards. The complainants emphasize the urgency of the situation, as the workers put on administrative leave are denied access to their place of work and, as a result, will lose their certification.
7. 183. The complainants submit other allegations concerning various issues, unrelated to the air traffic dispute, which have arisen in the hotel, tourism and casino business sectors, that they consider as evidence of a systematic union?busting attitude by the Government, which has allegedly escalated in the last five years. They submit that organized labour in the Bahamas is under significant strain; this lockout of an entire legally recognized union is the latest incidence in a series of infractions and violations that the trade union movement has recently experienced at the hands of their employer, the Government of the Bahamas.

B. The Government’s replies

1. 184. In its communication of 1 October 2001, the Ministry of Labour states that the Government never prevented BATCU members from enjoying the protection of their union, nor exercised discrimination in respect of their employment and their right to work.
2. 185. During the bargaining process, BATCU engaged in various forms of industrial action (work-to-rule, go-slow, sick-out) which contributed to the slow progress of their negotiations. These actions heavily affected flights in and out of the airport, causing grave inconvenience to the travelling public and severe economic losses to domestic and international airlines. On several occasions, the airport was at a standstill for periods varying from two to four hours, and the flow-control invariably ranged from 45 to 90 minutes. The ensuing extensive delays in flight arrivals and departures led to management’s decision to cancel the security passes of all employees participating in the industrial action. The Department of Civil Aviation did not violate any regulations; rather it sought to protect the domestic and international travelling public and the economy of the Bahamas from being held hostage by 30 individuals. BATCU was engaged in intimidating the public and seeking to coerce the Government by setting unreasonable and non-negotiable demands, including the payment of overtime hours and holiday pay for 27 years.
3. 186. There were no violations of the Industrial Relations Act. The trade union failed to follow its own established procedure, as established in its recognition agreement with the Civil Aviation Department (clause VIII, paragraphs 1 and 2) and chose instead to refer the dispute to the Supreme Court, rather than registering it for conciliation at the Labour Department. The air traffic controllers were placed on administrative leave with pay (the so-called “garden leave”) to allow investigations into the irregularities by controllers, which impeded the flow of air traffic. The controllers who were placed on administrative leave were not carrying out their duties; rather they were engaging in actions that threatened the safety and economic well-being of the country.
4. 187. As regards the judicial process, the Government points out that it did not violate the ruling of the Supreme Court, which had decided that three months’ suspension was excessive and might lead to de?certification of the controllers, but did not order their reinstatement. The Court of Appeal ruled for its part that the Government had acted reasonably and with proper regard for the law. That decision has been appealed to the Privy Council, where it is pending.
5. 188. In its communication of 14 November 2001, the Ministry of Transport, Aviation and Local Government essentially repeats the information provided by the Ministry of Labour on the chronology of events. It adds some information concerning the actions taken against employees after the investigation was completed:
   • (a) six officers were interdicted and placed on half pay;
   • (b) three officers and five controllers, who were not amongst those placed on leave, failed to return to work in the face of direct instructions to do so, and have been subjected to disciplinary action for insubordination;
   • (c) seven controllers have been reassigned to man the Aeronautical Information Service;
   • (d) three controllers have been reassigned to the sections in charge of training and licensing of aircrafts; and
   • (e) three controllers have been administratively redeployed within the Ministry.
     • It has been recommended that the annual increments of all controllers involved in the disruptions be withheld for one year. All other non-interdicted officers will be back on active duty once medical requirements are met.
   • 189. Regarding the security situation, certified management personnel, assisted by a cadre of newly trained certified controllers, were assigned to perform these duties and air traffic returned to normal. At no time did the Government’s actions cause threats of danger or an unsafe environment to the travelling public.

C. The Committee's conclusions

1. 190. The Committee notes that this complaint concerns actions taken by the Department of Civil Aviation of the Bahamas against trade union officials and members in the context of a bitter and protracted labour dispute involving air traffic controllers. The sequence of events was as follows:
   • (a) in May 2000, the air traffic controllers engaged in negotiations with their employer, the Government, for all practical purposes;
   • (b) a series of exchanges of communications and bargaining sessions took place between May 2000 and March 2001, during which requests were made and counterproposals tabled;
   • (c) whilst substantial points of agreement could be found, some irreconcilable differences remained, which prompted BATCU members, in March 2001, to engage in various forms of industrial action, short of strike in the traditional sense of the term;
   • (d) most of the workers concerned were then placed on three months’ administrative leave with pay, or locked out, during investigations by the employer; the Government cited mainly, as a basis for such actions, the inconveniences to the public and the economic losses to domestic and international airlines but also cited safety considerations; according to the evidence available at the time of filing of the complaint, only two of the controllers were allowed to return to work, on 27 March and 12 April 2001 respectively;
   • (e) BATCU filed judicial proceedings against this leave imposed by the employer; the Supreme Court upheld the request, having found that the Government’s actions were excessive. That decision was overturned by the Court of Appeal, which concluded that the Government’s actions were neither unlawful nor unreasonable. The case is now pending on appeal before the Privy Council
2. 191. The Committee recalls that air traffic control may be considered an essential service, where the right to strike can be restricted or prohibited [Digest of decisions and principles of the Freedom of Association Committee, 1996, para. 544]. That principle applies to all strikes, whatever their form – go-slow, work-to-rule, sick-out, etc. – as these may be just as dangerous as a regular strike for the life, personal safety or health of the whole or part of the population.
3. 192. The Committee also recalls the corresponding and equally important principle that workers deprived of this right should enjoy adequate protection to compensate them for the limitation placed on their freedom of action with respect to disputes affecting such services. Restrictions on the right to strike should therefore be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties can take part at every stage and in which the awards, once made, are fully and promptly implemented [Digest, op. cit., paras. 546-7]. Based on the evidence available, it does not appear that there exist such impartial procedures in Bahamas legislation to compensate air traffic controllers for the restrictions on the right to strike. The Committee therefore requests the Government rapidly to put into place adequate procedures to that effect and to keep it informed of developments in that respect.
4. 193. As regards the judicial proceedings under way, the Committee notes that one of the main issues, if not the central one, in both the Supreme Court and the Court of Appeal, had to do with the length of administrative leave imposed on the controllers since they were liable to lose their licence, as a result of what amounted to a compulsory suspension of professional activity, under the very strict air navigation regulations. They could in that sense be subject to double jeopardy, firstly by being placed on administrative leave (even with pay), secondly, by losing their certification and consequently being unable to resume working as air traffic controllers without going through the process of re?certification.
5. 194. Related to the above is the issue of sanctions imposed upon the air traffic controllers involved. Neither the complaint, nor the Government’s communication of 1 October 2001 (emanating from the Ministry of Labour), gave precise and final information on this subject. The second Government’s communication (from the Ministry of Transport, Aviation and Local Government), received on 15 January 2002, does provide some information in this respect, but there subsists contradictions and some confusion on the exact nature of the sanctions ultimately imposed on those concerned, for instance: the Government’s first communication mentions that some controllers were placed on garden leave with pay, while the second one says that six officers were “interdicted” (whatever that means, and what consequences this may have for the professional future of those concerned) and placed on half pay; the second communication mentions disciplinary actions, without further details (did these disciplinary actions entail dismissals, suspensions?). Are all these administrative and disciplinary measures permanent? Might the final decision of the Privy Council lead to reversal or modification of these measures? The Committee therefore requests the Government and the complainants to provide updated information on the exact nature of sanctions ultimately imposed upon the workers involved. The Committee also requests the Government to keep it informed of the judgement of the Privy Council in this matter, including its impact in practice for the workers concerned, and to provide a copy of that judgement.
6. 195. As regards the actual bargaining process in this case, the Committee recalls that, whilst the question as to whether parties adopt an amenable or uncompromising attitude towards each other is a matter for negotiation between them, both employers and trade unions should bargain in good faith making every effort to reach an agreement [Digest, op. cit., para. 817]. The Committee notes that the agreement of 5 March 2001 seemed to be a positive step in that direction, which it can only encourage as a basis for resumed negotiations.
7. 196. The Committee cannot find any substance in the allegation of violations of the rights of employees to be represented by a union, as the evidence demonstrates that BATCU is legally recognized and certified, does bargain on behalf of its members and, inter alia, represents them into judicial proceedings. Likewise, the Committee is not competent to make pronouncements on safety issues, including the differences between “certified” and “qualified” air traffic controllers. Finally, the Committee requests the complainants to provide further information on the allegations concerning the trade union situation in the hotel, tourism and related businesses.

The Committee's recommendations

1. 197. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take appropriate measures with a view to putting rapidly into place adequate, impartial and speedy conciliation and arbitration proceedings to compensate air traffic controllers for the restrictions on the right to strike, and to keep it informed of developments in that respect.
   • (b) The Committee requests the Government and the complainants to provide updated information on the exact nature of the sanctions ultimately imposed upon the air traffic controllers involved.
   • (c) The Committee requests the complainants to provide further information on the trade union situation in the hotel, tourism and related businesses.
   • (d) The Committee requests the Government to keep it informed of the judgement of the Privy Council in this matter and provide a copy of same.