Informe definitivo - Informe núm. 138, 1973

Caso núm. 728 (Jamaica) - Fecha de presentación de la queja:: 24-OCT-72 - Cerrado

1. 36. The Independent Trade Unions Advisory Council of Jamaica (ITAC) submitted its complaint in a communication dated 24 October 1972 addressed to the ILO. By a further communication dated 15 November 1972 the ITAC submitted additional information in support of its complaint. By a communication dated 21 November 1972 addressed to the ILO the World Confederation of Labour submitted a complaint relating to the case.
2. 37. The above-mentioned complaints and additional information were transmitted to the Government of Jamaica which submitted its observations thereon in a communication dated 24 January 1973.
3. 38. Jamaica has ratified both 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).

A. A. The complainants' allegations

1. 39. In its communication dated 24 October 1972 the ITAC states that its complaint concerns unfair labour practices by the Government and employers against its affiliates, the Jamaica Congress of Labour (JCL) and the Electrical and Construction Workers' Union (ECWU). In this connection, the ITAC states that on 19 October 1972 it addressed a letter to the Prime Minister requesting an audience with him in order to outline the unfair labour practices which, it stated, its affiliates had been experiencing over some months. In an appendix to the aforesaid letter the complainants set out in chronological order the chain of events which they claimed had been experienced by their affiliates. The complainants also drew the Prime Minister's attention to a 12 week strike which had been in progress at Kelly's Group of Companies, in which, they state, the Prime Minister's intervention had been earlier requested; they added that the matter had not yet been resolved. In the aforesaid letter the complainants further requested the Prime Minister to amend the Direction of the Ministry of Labour in taking of Representation Poll which, the complainants stated, could be used by politicians and civil servants to destroy any trade union. The text of the appendix to the complainants' letter to the Prime Minister is reproduced as follows:
2. 40. "CONSISTENT CHAIN OF EVENTS OF EMPLOYERS' DENIAL OF REPRESENTATIONAL RIGHTS OR RECOGNITION OF THE UNIONS OF THE WORKERS'' CHOICE SET OUT BELOW
   • "Conditioned Air and Associate Contractors
3. "1. On 12 April 1972, the ITAC, on behalf of its affiliate the ECWU, served a claim on the management of Conditioned Air and Associate Contractors, for representational rights.
4. "2. 18 April 1972 the Permanent Secretary of the Ministry of Labour and Employment was addressed, and asked that a meeting be convened between representatives of the ECWU and representatives of the employer.
5. "3. 21 April 1972 an audited certificate of workers who are members of the ECWU was submitted to the Ministry of Labour and requested the Ministry's conciliatory assistance on behalf of the workers to resolve the question of representational rights.
6. "4. 21 June 1972 the Ministry of Labour replied that the company was advised to furnish a list of their employees who enjoyed trade union representation.
7. "5. 11 July the ITAC sent a telegram of reminder to the Ministry of Labour and followed up same by a letter dated 13 July 1972 requesting a meeting between both parties for arranging a representational rights poll in respect of workers employed by the company. The Ministry replied on 21 July 1972; the management was asked to furnish a list of their employees.
8. "6. 28 June 1972, forty-five (45) workers employed in this company were dismissed. On the same date, ITAC reported to the Ministry of Labour these wanton dismissals and requested their assistance in convening a meeting between the union and management to discuss the matter which had now developed into a strike affecting the total work force of the company.
9. "7. 11 July 1972 the company and representatives of the ECWU agreed to a work resumption formula for work to resume on the 12 July 1972, on the following conditions:
   • (a) full reinstatement of all dismissed workers;
   • (b) no victimisation of workers involved in the strike or recrimination of any kind to be carried out by the management against the workers;
   • (c) the holding of a poll immediately among workers upon resumption under the supervision of the ministry of Labour to determine final union representation.
10. "8. The company's personnel officer furnished the Ministry of Labour with the list of their employees on 12 July 1972.
11. "9. This list was lost at the Ministry of Labour, and to each reminder we sent them they consistently informed ITAC that the management had not submitted the list. These excuses conflict with the position declared by the personnel officer of Conditioned Air and Associate Contractors who told ITAC's General Secretary Bro. Chris. Lawrence on 13 October 1972 in the presence of Mr. J. Sinclair, Official of the Ministry of Labour, that he had furnished the list of names to the Ministry of Labour on 12 July 1972. This matter has not yet been resolved nor has the Ministry of Labour done anything to resolve same.
    • "Jamaica Industrial Development Corporation
12. "10. On 12 April 1972 the Jamaica Congress of Labour submitted a claim to the Secretary of the JIDC informing him that the construction sites at Paradise, Savanna-La-Mar, employed members of the JCL, and as such, the union was requesting bargaining and representational rights on behalf of these workers to be accorded to the union.
13. "11. 17 April 1972 the Secretary of the JIDC acknowledged receipt of the claim and stated: It is our policy to deal with any labour union which has been chosen by the majority of the workers to represent them. We would therefore suggest that you take appropriate steps to have a poll taken in accordance with the regulations laid down by the Ministry of Labour and Employment. Should the poll reveal that you have been chosen to represent the workers, we will be happy to discuss the matter further with you.
14. "12. 24 April 1972, an Audited Certificate of Membership was submitted to the Ministry of Labour with a request for an early meeting to discuss a poll arrangement.
15. "13. Because of the failure of the Ministry to convene a meeting of the parties concerned, the workers on the sites withdrew their labour on 4 July, as a protest against the management's refusal to begin negotiation with the union. On 6 July a dispute was reported to the Ministry of Labour and a request was made that a meeting be held to find a formula for resumption.
16. "14. 10 July, the Ministry acknowledged the letter of 6 July 1972 reporting the stoppage of work. In paragraphs 2 and 3 of said letter, the Ministry initiated a meeting with the representatives of the employer for Thursday 13 July 1972, at 2 p.m.
17. "15. 13 July, a meeting was convened under the chairmanship of Mr. N. Nugent of the Ministry. The JIDC's representative, Mr. Chinloy, expressed his company's willingness to take a poll to determine representational rights and that the arrangements for said poll should be discussed at this meeting. On the advice of the chairman that resumption should be the first step before discussing the poll arrangements, Mr. Chinloy stated that his mandate was to discuss the poll arrangements and as such he could not depart from his instructions. However, both parties agreed to meet again on Saturday, 15 July 1972, to discuss the poll agreement. On Friday, 14 July, by phone call from Mr. Nugent the Ministry informed the union that the meeting as scheduled was called off since he had been informed on instant date by Mr. Chinloy that the JIDC will not recognise the JCL, and will not have any further discussion with the union.
18. "16. 14 July 1972, the union addressed the Minister of Labour, protesting Unfair Labour Practices' against the JCL and invited his intervention into the matter.
19. "17. 11 August 1972, the union addressed Mr. R.A. Carey, Secretary of the JIDC, protesting his anti-trade union behaviour in down-pressing workers' rights to join the union of their choice.
20. "18. 11 July, the Hon. P.J. Patterson, Minister of Trade and Tourism was informed of the behaviour of the JIDC, and requested his investigation into the matter.
21. "19. Because of the pressure brought to bear on the JIDC by the Canadian Company, Carib Safety Ltd. for the handing over of the factory, the JIDC, after several efforts to recruit strike-breakers had failed, was forced to call upon the ministry of Labour to invite the union to discuss the dispute. The Ministry, therefore, invited both parties to a meeting, which was held on 1 September 1972, and which resulted in sole bargaining and representational rights being conceded to the JCL. A formula for work resumption was instantly signed by both parties, which brought about the settling of the dispute, and the resumption of work on 11 September 1972.
    • "Kelly's Group of Companies
22. "20. On 12 June 1972 the JCL submitted a claim to Mr. Joe Kelly, Managing Director of the Kelly's Group of Companies: Jamaica Office Equipments Ltd., Gas Cylinder Metal Products Ltd., and Kelly's Enterprise Ltd., requesting representational and bargaining rights on behalf of all workers employed by the above companies.
23. "21. 14 June 1972, the JCL submitted a Certificate of membership to the Ministry of Labour in support of its claim and requested the Ministry to convene a meeting to discuss the taking of a poll among workers of these companies to determine the claim made by the union.
24. "22. The Ministry acknowledged the receipt of this letter on 15 June 197"2, and further informed the union that the matter was being communicated to the management of the companies and would advise further as soon as a reply was received.
25. "23. 27 June the union received the following letter from the Ministry: Management of the companies are invited to attend a meeting on 10 July, further communication will be sent to you as soon as this has been confirmed.
26. "24. 10 July 1972, the union received a copy of a letter from the Ministry, signed by Kelly addressed to the Ministry advising that representatives from three companies would be attending the meeting and which set out four awkward questions relating to workers' representatives at the meeting inferring those that he would not sit with. This was treated with utter contempt by the union.
27. "25. Workers hearing Kelly's letter read to them at a meeting held on 10 July became restless and voted unanimously to withdraw their labour on 11 July as a protest against Kelly's unwillingness to co-operate and recognise the union.
28. "26. On 11 July 1972 the workers went on strike and the JCL reported to the Ministry of Labour that a dispute existed between the workers and the management of Kelly's Group of Companies, and requested a meeting between both parties with a view to having normalcy restored.
29. "27. On the said 11 July, the Ministry invited the union and representatives of the companies to attend a meeting on Thursday, 13 July, at 2.30 p.m. to hear the dispute with a view to finding a formula for resumption of work. This meeting came off resulting in a formula being agreed upon and signed by representatives of both the union and the companies, and that another meeting would be convened on 18 July to discuss and sign a poll agreement.
30. "28. At the meeting on 18 July the management brought their legal representative Mr. Peter Mais who introduced a legal technicality regarding representation affecting one of Kelly's companies, which caused the discussion to be postponed for 24 July.
31. "29. On 24 July, only the union's representatives attended the meeting at the Ministry. At about 3.15 p.m. the Chairman for the meeting received a letter from the legal firm of Livingston Alexander and Levy, signed by Mr. Peter Mais, informing the Ministry that his client had reported three incidents to him that had taken place at the plant, leaving an atmosphere of excitement and unrest, and that until the situation returned to normal his client would be having no further negotiation with the Jamaica Congress of Labour and would, therefore, not be attending the meeting.
32. "30. On the evening of 24 July, a meeting of workers was held and the letter of the management's stand was read. Workers unanimously agreed that there was no other way out, and voted to withdraw their labour on the following day, 25 July 1972.
33. "31. 25 July 1972 the Ministry of Labour was notified that a dispute existed at Kelly's Group of Companies, 14 South Camp Road, and that their conciliatory assistance was, therefore, requested to resolve the dispute. This letter was acknowledged by the Ministry in writing on the said 25 July 1972.
34. "32. 31 July 1972 the Prime Minister was addressed by the President of the JCL setting out the events of the resistance being experienced from the various employers. A copy of this letter was sent to the Minister of Labour. On 11 August the union received a note from the Prime Minister dated 3 August 1972, informing him of his acknowledgment of our letter and stating that he had promised to ask the Minister of Labour to investigate, and his comment on said letter.
35. "33. 16 August, as a result of police and employer provocations and harassment of pickets, a telegram was sent to the Prime Minister protesting against police behaviour, and further requesting his investigation into the matter. A reply to this telegram dated 30 August informed us that he was investigating the matter concerning Kelly.
36. "34. During this period an audience was sought with the Minister of Labour and Employment, Mr. Earnest Peart. This was granted on 19 August 1972, and was attended by Chris. Lawrence, President of JCL, Roderick Francis, President of ITAC and Stanley Miller, member of the JCL, and also by a member of Kelly's staff. The Minister was brought up to date regarding the difficulties that the JCL was experiencing with the various employers on the question of recognition. The Minister promised his assistance with a view to intervening in these matters, while at the same time making it clear that he had no legal power to force employers to recognise and to deal with unions. The union's struggle continued and the Minister's public declaration awaited in the absence of legal power or the use of moral power.
    • "Jamaica Laminates, Steelcrete and Precast Jamaica Ltd.
37. "35. The above companies are owned by Maurice Facey and Company, and operate at 167 Bay Farm Road, Kingston II. On 26 June 1972, the JCL submitted to the management of the above companies a claim for bargaining and representational rights on behalf of their employees. A copy of this claim was sent to the Ministry of Labour on the same date for their guidance.
38. "36. On 6 July 1972, a letter was received from Steelcrete Structures Ltd. in reply to our letter of 26 June 1972: Management willing to meet union at a convenient time to discuss the claim. The writer of the letter, Mr. R.A. O'Brien, suggested that Wednesday, 26 July, for such a meeting. This letter was sent through the post and did not reach the union until 19 July. However another letter was sent by hand and received on the instant date, requesting a meeting at the JCL's office on Saturday, 15 July at 1 p.m. This meeting came off but was held at the company's office 167 Bay Farm Road. It was conducted and concluded in a most healthy atmosphere.
39. "37. On 6 July, the union supplied the Ministry of Labour with an Audited Certificate of membership of workers employed to the companies. This was acknowledged by the Ministry by letter dated 11 July 1972.
40. "38. By a telephone message from Mr. Pat Martin, Conciliatory Officer of the Ministry of Labour, we were invited to attend a meeting with representatives of the companies on 4 August 1972.
41. "39. On 25 August 1972, we received a copy of a letter addressed to the Ministry by Mr. O'Brien, expressing his regret that they would not be attending the meeting, since they realised after confirming the date of the meeting, that the JCL is not a member of the Joint Industrial Council for the Building and Construction Industry, which excludes them from dealing with a union that is not a member of the council.
42. "40. On 4 August 1972, the representatives of the company did not turn up at the meeting which was set by the Ministry of Labour, and which workers looked towards with great expectations.
43. "41. On 1 August 1972, we replied to Mr. O'Brien protesting his anti-union actions and demanded that bargaining and representational rights be conceded the union by 8 August Workers were able to sense management's strike-breaking tactics and so a vote was taken among workers who voted instantaneously to go on strike against the management's action. The strike was called on 4 August instead of 8, to counter management's plans. The Ministry was immediately informed that a dispute existed at the compound of 167 Bay Farm Road, and its intervention was requested. To date the Ministry has not been able to resolve the matter.
44. "42. On 8 September 1972, a temporary formula for resumption was worked out between workers and management in consultation with the union. The union still remained unrecognised by management, though workers' loyalty still remains very strong to the union.
    • "Sinclair's Garage
45. "43. The JCL is anticipating a very grim struggle at Sinclair's Garage, 11 Lower Elleston Road, Kingston, over the said question of recognition of the JCL. This employer has been written to on 17 August 1972, informing them that the union represents the majority of their employees and as such representational rights were requested via a poll among their workers to determine same. The relevant particulars were furnished to the Ministry of Labour on 21 August 1972. The management did not acknowledge the union's letter until 23 September. To date no meeting has been called to discuss a poll agreement, but it has been hinted by Mr. Sinclair, Managing Director, that workers can join any of the other existing unions; but he will not recognise the JCL, the present union that the workers have joined.
    • "N.B. On 24 July, at one of the meetings scheduled between Kelly's and the JCL, the employer's representatives did not turn up. But during the time of waiting the JCL's representatives were given the following iniquitous document by the chairman of the meeting, from which we quote the headings and first paragraph:
    • 'Directions by the Minister of Labour on the taking of polls in representational disputes between Trade Unions.
46. 1. The general principle is restated that workers should be allowed to negotiate through the Onion of their choice. Provided that, in accordance with the Government's instructions, the Labour Adviser shall have no dealings with any union associated with communism or under communist influence.-"
47. 41. In a further communication dated 15 November 1972 the ITAC stated that the Ministry of Labour was still reluctant to hold a representational poll in the case of Sinclair's garage and the workers, who were members of the Jamaica Congress of Labour. The ITAC submits copies of a further request to the Ministry dated 21 August 1972 to conduct such a poll, as well as copies of an appeal made to ministers, Members of Parliament and international bodies soliciting their support.
48. 42. The World Confederation of Labour, in its communication dated 21 November 1972, stated that discriminatory and undemocratic practices had taken place against trade unions.
49. 43. The Government, in its communication dated 24 January 1973, refutes the allegations of the ITAC and states that it would appear that they were influenced by political malice. The Government points out that it not only supports the principles of freedom of association and the right of workers to bargain collectively, but encourages, on a voluntary basis, autonomy in industry, and to this end the Ministry of Labour and Employment provides machinery for the determination of representational issues arising out of claims by trade unions.
50. 44. The Government explains that this machinery provides that, by agreement of the parties, the Ministry may take a poll by secret ballot to determine the wishes of the workers concerned where such a poll is conducted, continues the Government, the agreement usually provides for a determination of the bargaining position based upon the outcome of the poll. A fact-finding poll may be taken by the Ministry to determine the extent of the membership of the union in the particular establishment. The Government adds that in no case can a poll of any kind be conducted by the Ministry without the co-operation of the employer who must provide a list of names of the workers involved in order to permit the Ministry to enter and conduct such a poll on its premises during working hours. The Government attaches to its communication a copy of the "Directions by the Ministry of Labour on the taking of polls in representational disputes between trade unions". The Government states that the principle of allowing workers to negotiate through the union of their choice is clearly expressed in this document. The National Constitution, adds the Government, also specifically guarantees to workers the right to belong to the trade union of their choice.
51. 45. In addition, the Government supplies background information in respect of the five cases referred to by the ITAC. It is to be observed, states the Government, that in all five cases the Ministry of Labour and Employment had taken the necessary measures in accordance with the recognised and accepted practice to have the claims determined and settled, but despite the Ministry's endeavours, the companies concerned have refused to co-operate.
52. 46. The Government explains that where representational disputes are not settled to the satisfaction of either party, it is customary for the aggrieved party to take such action as it wishes within the law to oblige the other party to recognise it. In the majority of the cases the claimant unions have taken strike action, and with the exception of the Jamaica Industrial Development Corporation, the other companies have bluntly refused to recognise the unions or to participate in the taking of a poll. The Government adds that while it strongly supports the principle of trade union recognition in a free enterprise society, as is the case in Jamaica, it is unable to compel employers to recognise any particular union. The Government points out that it is significant that the Jamaica Industrial Development Corporation, which has recognised the union concerned, is a statutory body set up by the Government.

B. B. The Committee's conclusions

1. 47. The Committee notes that the complaints concern attempts by the Jamaica Congress of Labour and, in one case, the Electrical and Construction Workers' Union (both affiliates of the independent Trade Unions Advisory Council) to obtain recognition by the companies mentioned in the complaint as sole bargaining agents on the grounds that they represent the majority of the workers in the respective enterprises.
2. 48. The Committee notes that there exists in Jamaica a procedure for the taking of a poll in the event of representational disputes between unions. This procedure is laid down in the "Directions by the Minister of Labour", a copy of which has been supplied by the Government. In terms of these directions the Labour Adviser may take a poll when he is satisfied that a considerable proportion of the workers concerned wish it, but subject to the following conditions: (a) if there is agreement between all the parties to the dispute; (b) if the employer and one or more of the unions concerned agree to the poll; and (c) where two or more unions agree to the taking of a poll. Section 4 of these Directions provides that, where consent as required in (a), (b) and (c) above cannot be obtained the Labour Adviser may, if he is satisfied that a prima facie case is made out by the claimant union, take the poll, subject to a deposit being made by the claimant union.
3. 49. The Committee recalls that it has, on previous occasions, examined cases concerning Jamaica involving complaints of non-recognition of unions claiming to be representative of the workers. According to the information at the disposal of the Committee, it appears that where a poll is conducted on the basis of an agreement between the parties, that agreement usually provides for a determination of the bargaining position based upon the outcome of the poll. A fact-finding poll, not being based upon an agreement, merely determines the wishes of the workers in respect of the claimant union. But, as the Government explains, in any event, no poll of any kind can be conducted by the Ministry without the cooperation of the employer who must provide a list of the names of the workers involved, and permit the Ministry to enter and conduct such a poll on its premises during working hours.
4. 50. In the case of the Jamaica Industrial Development Corporation, the Committee notes that following a claim for recognition submitted by the Jamaica Congress of Labour and meetings between the parties, sole negotiating rights were conceded to the Jamaica Congress of Labour. In the case of the four remaining undertakings, the Committee notes that although claims for recognition have been lodged with the Ministry of Labour and Employment by the unions concerned, along with supporting evidence of membership, no representation polls have yet been taken. In at least two of these cases (viz. Kelly's Group of Companies, and Jamaica Laminates, etc. (now Building Components Ltd.)), the Committee notes from the information supplied by the Government that the union concerned (in each case the Jamaica Congress of Labour) has made out a prima facie case for a representation poll to be taken. According to the information at the disposal of the Committee it would seem that the managements of the various undertakings involved have refused to co-operate in the representation poll procedure either by failing or delaying to communicate necessary information to the Ministry, or by failing to attend meetings called by the Ministry to discuss the question of recognition.
5. 51. While any lack of co-operation by employers in an established procedure for determining the most representative union would be regrettable, nevertheless the Committee is bound to observe, as it has already done in previous cases, that nothing in Article 4 of Convention No. 98 places a duty on the Government to enforce collective bargaining by compulsory means with a given organisation, and a refusal by an employer to bargain with a particular union cannot be regarded as an infringement of freedom of association.
6. 52. Nevertheless, in previous cases where the recognition of a trade union for collective bargaining purposes has been in question, the Committee has emphasised the importance which it attaches to the principle that employers, including governmental authorities in the capacity of employers of wage earners, should recognise for collective bargaining purposes the organisations representative of the wage earners employed by them. The Committee has also taken the view that, if there is a change in the relative strength of unions competing for a preferential right or the power to represent workers exclusively for collective bargaining purposes, then it is desirable that there should be the possibility of a review of the factual bases on which that right or power was granted. In the absence of such a possibility, a majority of the workers concerned might be represented by a union which, for an unduly long period, could be prevented - either in fact or in law - from organising its administration and activities with a view to fully furthering and defending the interests of its members.
7. 53. Having regard to the principles expressed in paragraph 52 above, the Committee considers that the competent authorities should, in all cases, have the power to proceed to an objective verification of any claim by a union that it represents the majority of the workers in an undertaking, provided such a claim appears to be plausible. If the union concerned is found to be the majority union, the authorities should take appropriate conciliatory measures with a view to obtaining the employer's recognition of that union for collective bargaining purposes.

The Committee's recommendations

1. 54. In the circumstances, and with regard to the case as a whole, the Committee recommends the Governing Body to draw the attention of the Government to the principles set forth above, and in particular to the considerations set forth in paragraph 53, and to request the Government to indicate, within a period of six months, what steps, if any, have been taken or are being considered to establish a procedure such as that indicated in paragraph 53 above.