Informe definitivo - Informe núm. 150, Noviembre 1975

Caso núm. 790 (Jamaica) - Fecha de presentación de la queja:: 13-MAY-74 - Cerrado

1. 56. The Jamaica Union of Bank Employees presented a complaint in a communication dated 13 May 1974, and supplied additional information in a letter dated 22 June 1974. The Government furnished its observations in communications dated 10 June and 10 October 1974.
2. 57. 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. 58. The complainant union describes in its first communication various infringements of trade union rights alleged to have been committed in connection with the refusal of the Jamaica Citizens' Bank to recognise it. According to the complainants, since 18 December 1973 this bank has been engaging in acts of antiunion discrimination in order to prevent its staff from joining the union of their choice: threats of dismissal, denial of salary increases and attempts at infiltration and "subversion" of the complainant union. In February 1974 the union submitted a claim for representational rights and an audited list of its members to the Ministry of Labour. Although the union established a prima facie case based on the fact that a considerable proportion of the staff were unionised, the Bank refused to attend a meeting to agree to a poll.
2. 59. The complainants add that during this period the Ministry of Labour acted merely as an avenue for the transmission of the views of the employer rather than as an effective vehicle for the solution of the dispute. The Bank increased its opposition to the union and took action which included the dismissal of a union official, the demotion of the president of the union, continual transferral of staff without due notice, the destruction of union documents and open threats of victimisation. It also sought to refuse certain categories of workers, defined as supervisors and confidential staff, the right to representation by the union, without any legal grounds whatsoever.
3. 60. The complainant union then called a strike, which, it states, arrested the state of "subversion", but did not succeed in closing down the operations of the Bank. The Bank continued to refuse to negotiate, and took action to place the Bank's staff club under the control of the management. The Ministry of Labour, for its part, is said not only to have failed to set up the necessary machinery to deal with the dispute but to have collaborated with the employer and was the first to supply strike-breakers. It conducted an investigation in which only managers of the Bank were interviewed, thus providing itself with a false basis on which to refuse to act against the Bank and to justify its reluctance to utilise fully the machinery for collective bargaining. According to the complainants, the police also collaborated with the Bank: on 26 April 1974, twelve members of the union were arrested for lying down in the street; four days later, the general secretary of the union was physically assaulted by four police officers while demonstrating at the Bank's head office; the same day a high-level meeting was held between the management of the Bank and senior officers of the Jamaica constabulary force; two days later, eight strike pickets were arrested and remanded in custody, following a telephone call from the management.
4. 61. The complainants add that supporters of the union were threatened - both before and during the strike, and in collusion with other banks - with closure of loan accounts and banking facilities. The Minister of Labour is said to have admitted to being almost powerless to do anything because no national laws existed to give him effective authority to settle the dispute.
5. 62. In their second communication the complainants state that the Bank has drafted lists of strikers and sent them to all the commercial banks in the island so that none of these workers will ever again be employed in a bank. The Bank is also said to have attempted to have members of the union dismissed from their jobs in other industries such as the insurance and tourist industries, and to have informed various businesses, particularly supermarkets, not to accept the cheques of strikers. The Ministry of Labour, for its part, has not set up a Commission of Inquiry, although it has been requested to do so since 25 April 1974.
6. 63. The Government, in its letter of 10 June 1974, refutes entirely the accusations made against it. It states that a Bill to provide for the development and maintenance of more orderly industrial relations and more effective machinery for the settlement of industrial disputes has been tabled in the House of Representatives.
7. 64. The Government supplies more detailed information in its letter of 10 October 1974. It declares that it encourages autonomy in industry, and that to this end the Ministry of Labour and Employment provides machinery for the determination of representational issues involving trade unions. By agreement with the parties concerned, the Ministry may take a poll by secret ballot to determine the wishes of the workers concerned; the agreement usually provides for a determination of the bargaining position based upon the outcome of the poll. A poll may also be taken by the Ministry to determine the extent of the membership of a union in a particular establishment. But no poll can be conducted without the co-operation of the employer, who must provide a list of the workers involved and permit Ministry officials to enter its premises and conduct such a poll during working hours. According to the Government, the Bill mentioned above, which is expected to become law shortly, contains provisions for the compulsory recognition of a trade union which wins a poll. In addition the National Constitution specifically guarantees to workers the right to belong to the trade union of their choice.
8. 65. The Government appends to its communication a series of documents concerning its role in the dispute. It is stated therein that the two parties requested the intervention of the Ministry, which asked the union to supply an audited certificate of membership (which it did) and the Bank to indicate whether any other union represented or was claiming to represent the workers, and to supply a list of its employees. The union informed the Ministry that the Bank refused to allow it to represent the supervisory staff, and the Bank requested the Ministry to intervene on this issue. Meetings were held separately with both parties, following which the Bank submitted a list of its employees. A comparison of this list with the union's certificate of membership showed that the union had established a prima facie case for representational rights. Both parties were accordingly invited to suggest convenient dates for a meeting to finalise arrangements for the taking of a poll, but the Bank announced that its legal representative was not available to attend such a meeting.
9. 66. On 8 April 1974 the Bank informed the Ministry that a demonstration had started because of the dismissal of a worker. The union insisted that it was a strike and that the Ministry should intervene. An investigation was made on 16 April, continues the Government, and branch managers and union members were interviewed; union officers were not available. The information compiled indicated that the action had affected only two branches of the Bank (including the one where the dismissed worker was employed) and that only twenty-three workers out of one hundred and sixty-four had participated in it, assisted by a few outsiders holding office in the union. The Bank declared that its operations were not affected and refused to attend any meeting with the union because of alleged damage to cars and threats to management personnel and other employees who had remained on the job. The union again asked the Minister to intervene and reported that the Government Employment Services had provided a driver for the Bank during the strike. In fact, according to the Government, this person had been supplied by a private employment agency, like all the other workers recruited by the Bank.
10. 67. The Government goes on to state that the Minister had several further meetings with both parties, but despite all his efforts the Bank still refused to attend any meeting with the union. The strike petered out due to the small number of participants and the fact that some of the strikers sought and obtained reinstatement while others obtained alternative employment. As concerns the refusal to set up a board of inquiry, the Government states that this procedure is reserved for use in major issues involving the national interest or issues in which public opinion is likely to lend weight to any recommendations made, such recommendations not being binding on the parties. This case was not considered to involve such issues. The Government likewise refutes the accusations of collaboration between the police and the employer and points out that workers are allowed to engage in peaceful picketing. However, continues the Government, on 26 April and 2 May 1974 employees of the Bank who were union members and other union officers blocked the entrance to the Bank and blocked traffic in the street. They defied an order to move and used threatening and insulting language to the police. They were arrested, tried during the first week of September, found guilty, admonished and discharged.

B. B. The Committee's conclusions

1. 68. The case essentially concerns the refusal of a bank to agree that the complainant union should represent its staff, despite the intervention of the Government. According to the complainants the employer committed, before and during the resultant strike, acts of anti-union discrimination and interference in the union's activities. Lastly, strike pickets were arrested.
2. 69. As concerns these arrests, the Committee wishes to point out, as it has already done in the past, that while pickets acting in accordance with the law should not be subjected to interference by the authorities, it may be considered legitimate for a legal provision to prohibit pickets from disturbing public order and threatening workers who continue to work. The Committee notes that according to the Government workers are allowed to engage in peaceful picketing during a work stoppage, but in this specific instance they blocked the entrance to the Bank as well as traffic in the street, refused to move and used threatening and insulting language to the police. The Committee further notes that they were found guilty by the courts and discharged.
3. 70. The Committee also observes that the Government's reply gives no information about the acts of anti-union discrimination said to have been committed by the Bank, especially prior to the strike, or about the acts of interference in the union's activities. The Committee has already stressed in another case relating to Jamaica that complaints against anti-union practices should normally be examined by national machinery; although it would be desirable to settle such grievances wherever possible by discussion without treating the process as a form of litigation, in cases where differences of opinion arise resort should be had to impartial bodies or individuals representing the final step of the grievance procedure. The Committee is of the opinion that these considerations and principles are equally valid in the present case as concerns the allegations relating both to anti-union practices and to acts of interference by the employer.
4. 71. With regard to the refusal by the Bank to recognise the complainant union, the Committee recalls that it has several times examined similar complaints concerning Jamaica. It appeared from the information available in those cases - and the present case bears it out - 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, on the other hand, not being based upon an agreement, merely determines the wishes of the workers in respect of the claimant union. In any event, no poll of any kind can be conducted by the Ministry without the co-operation 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.
5. 72. The Committee notes that in the present case, although a claim for recognition supported by an audited certificate of membership was submitted to the Ministry of Labour and Employment the union's claim appeared to be sufficiently well founded to justify the taking of a poll, the employer refused to co-operated and thus made it impossible for the poll to be conducted.
6. 73. The Committee has emphasised in previous cases including similar cases involving Jamaica the importance which it attaches to the principle that employers should recognise for collective bargaining purposes the organisations representing the workers employed by them. The Committee has also stated 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, and that, 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.
7. 74. In this connection the Committee has noted that a Labour Relations and Industrial Disputes Bill is now before the House of Representatives and that it contains provisions for the compulsory recognition of a trade union which wins a poll. The Bill provides that the Minister may, at the request of the employer or of any trade union claiming bargaining rights in relation to a group of workers in the proposed unit, cause a ballot to be taken for the purpose of determining which unions are most representative, and that, if the ballot shows that a majority of workers wish a particular union to represent them, the employer is obliged to recognise that union as bargaining agent or be liable to stringent penalties. The Committee has remarked that, although from the language of the Bill it would appear that the Minister has discretion as to whether to order such a poll or not, the Minister has stated in Parliament that it has been decided to legislate for compulsory recognition of trade unions based on "certification procedures" including compulsory poll-taking.
8. 75. The Committee notes with interest the Government's statement to the effect that this Bill is expected to become law shortly. The Committee is of the opinion that under this new law it should be possible to avoid disputes of this kind and collective bargaining should be facilitated.

The Committee's recommendations

1. 76. In these circumstances, and with regard to the case as a whole, the Committee recommends the Governing Body:
   • (a) as concerns the allegations relating to anti-union practices and acts of interference by employers in the activities of the union, to draw the Government's attention to the considerations and principles set forth in paragraph 70;
   • (b) as concerns the refusal by the Bank to recognise the complaining union:
   • (i) to draw the Government's attention once again to the considerations and principles expressed in paragraphs 73 and 74;
   • (ii) to express the hope that the above-mentioned Bill will soon become law; and
   • (iii) to request the Government to keep it informed of any developments in this connection.
     • Geneva, 27 February 1975. (Signed) Roberto AGO, Chairman.