Rapport définitif - Rapport No. 121, 1971

Cas no 624 (Royaume-Uni de Grande-Bretagne et d'Irlande du Nord) - Date de la plainte: 13-MARS -70 - Clos

1. 23. The complaint of the Democratic Independent Union is contained in four communications addressed direct to the ILO on 13 March, 4 April, 17 April and 8 July 1970 respectively.
2. 24. Observations on the first three communications were supplied by the Government in a letter dated 5 August 1970. The Government, by letter dated 14 October 1970, firmly refutes the allegations contained in the complainant's letter of 8 July 1970 without, however, adding to its detailed observations on the earlier allegations.
3. 25. 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 the provisions of these Conventions to be applicable without modification to British Honduras.

A. A. The complainants' allegations

1. 26. In their communication of 13 March 1970 the complainants state that a contract concluded in 1966 between the Government of British Honduras and Pauling and Company (a civil engineering company) for the construction of a new capital contained a clause providing that only members of the Christian Workers' Union were to be employed.
2. 27. The complainants further state that when many workers were laid off without reasonable cause, the union which had been imposed on them (the Christian Workers' Union) failed to obtain any redress for wrongful dismissal because instead of representing the interests of the workers, it represented those of the Company and the Government. On 6 June 1969, when the workers could no longer tolerate their situation, they went on strike, demanding representation by the complainant union (the Democratic Independent Union). When the Democratic Independent Union (DIU) attempted to intervene it was rebuffed by both the Government and the Company on the grounds that it had no right to represent the workers on the site.
3. 28. After the strike had been in progress for two weeks the Labour Commissioner opened an inquiry and decided to hold a poll to determine which union should have the right to represent the workers on the site. However, the Minister of Labour acting on instructions from the Attorney-General prevented the holding of a poll.
4. 29. The strike was broken after twenty-seven days as a result of direct pressure exerted by the Government against the workers and on behalf of the Company. Soon thereafter the strike leaders (D. Lewis, A. McKoy, D. Gillett et al.) were perfunctorily dismissed. The Democratic Independent Union reported these unwarranted dismissals to the Labour Commissioner but direct orders in writing from the Minister of Labour prevented him from taking action.
5. 30. Lastly, the complainants allege that their President, Cyril G. Davis, was twice arrested and charged with trespassing on government land when he went to the site to insist on the right of the workers to organise and bargain collectively.
6. 31. The complainants, in a signed and witnessed affidavit dated 17 April 1970, recapitulate in somewhat greater detail the allegations contained in their communication of 13 March 1970 while at the same time setting out a number of further allegations. They state that one of the conditions on which the workers had resumed work following the twenty-seven day strike, which formed part of the agreement between the workers, Pauling and Company, the DIU, the Government and the Christian Workers' Union, was that a poll would be held before the end of December 1969 to determine which union should represent them and that, despite frequent reminders sent by the President of the DIU to the Minister, no poll has so far been held.
7. 32. The complainants further allege that the Company and the Christian Workers' Union put pressure on the workers to sign check-offs, that some of the workers signed for fear of being dismissed and that a number of others who refused to sign were, in fact, fired. Again on 24 March 1970 twelve members of the DIU who had been working with the Public Works Department for between four and nine years were dismissed. The complainants maintain that these dismissals represent an attempt by the Government to sabotage the efforts of the DIU to organise the workers effectively.
8. 33. The complainants moreover allege that since the agreement referred to in paragraph 32 above expired on 31 December 1969, there has no longer been any agreement between the Company and the workers with the result that the workers are unrepresented.
9. 34. Lastly, the complainants state that members of the DIU working at the Government Agricultural Station at Central Farm, Cayo District, have signed check-off forms but that the Government has refused to collect the dues pertaining thereto, even though obliged by law to do so.
10. 35. In their communication dated 8 July 1970 the complainants state that the case of trespass brought against the President of the DIU was not heard until 4 June 1970, when the magistrate dismissed all the charges against him. However, during the time that the President of the Union had been debarred from entering the New Capital Site, i.e. while the case of trespass was still pending, an attempt was made to force the workers to join the Christian Workers' Union. When the majority of the workers refused to associate themselves in any way with this Union, they were dismissed from their posts and new workers were taken on.
11. 36. The complainants further allege that in an attempt to deceive the workers the Christian Workers' Union changed its name to the National Federation of Workers. The complainants claim that the NFW is an illegal organisation but that despite this fact a group of its executive officers was allowed on the New Capital Site to sign an illegal agreement with Pauling and Company which was to bind the workers, without their consent, for a further three-year period. When, four days after the signing of the agreement, Pauling began laying off workers by the hundred, the workers had no possibility of redress since the NFW as an illegal entity was incapable of defending their interests. Later, as a result of ILO intervention the agreement was declared null and void. The workers, however, were led to believe that the agreement was still in force.
12. 37. The Government in a communication dated 5 August 1970 replies point by point to the allegations submitted by the complainants in their communications of 13 March, 4 April and 17 April 1970.
13. 38. The Government denies that the contract awarded to Pauling and Company contained a clause giving the Christian Workers' Union the right to represent the workers employed on the New Capital Site. Further, the contract was made in 1967, not 1966.
14. 39. Moreover, the Government maintains that while the first workers to go on the site were members of different registered unions they were all members of one family-the Christian Trade Union Movement-and had voluntarily accepted the Christian Workers' Union as their bargaining agent (this understanding having been reached at their federation level). According to the Government and the Northern Christian Union, Southern Christian Union and Christian Workers' Union had come to an agreement whereby the CWU should represent all three in negotiations with the Company. The Government points out that at this time the Democratic Independent Union had not come into being (it was established only on 29 December 1968).
15. 40. With regard to the charges that workers who were laid off without reasonable cause failed to obtain any redress, the Government affirms that there exists, in British Honduras, national machinery and legislation to protect workers' rights. Apart from the guarantees contained in the Labour Ordinance 1959 (No. 59) there exists a Labour Department consisting of one commissioner and eight inspectors entrusted with the enforcement of labour legislation and with investigating workers' complaints, including complaints of wrongful dismissal. Further, as regards the allegations that strike leaders such as D. Lewis, A. McKoy and D. Gillett were summarily dismissed and that the Labour Commissioner was unable to act on complaints of unjustified dismissal because of instructions received from the Minister of Labour, the Government states that complaints concerning the unjustified dismissal of Donatilo Lewis and Henry McKoy were investigated by a senior labour inspector, who concluded that there was insufficient evidence of unjustified dismissal to warrant the Department's presentation of a case. Moreover, both Lewis and McKoy were before the court on charges involving violence; Lewis was acquitted but McKoy was convicted.
16. 41. The Government states that while the CWU leaders were negotiating with Pauling and Company the workers came out on strike with a view to hastening the outcome of the negotiations. When the CWU leaders refused to become party to the strike, the workers sent to Belize City for the leaders of the DIU, who took this opportunity to demand representational rights.
17. 42. The Government agrees that the Labour Commissioner decided to hold a poll. However, following discussions initiated by the Minister of Labour with the leaders of all the unions involved, it was agreed, by all except the leaders of the DIU, that because of the disturbances during the strike and the intervention of political opportunists the poll be deferred until things had returned to normal and that in the interim, each union should enjoy independent check-offs and the right to represent their members. With the conclusion of this agreement and the granting of wage increases averaging 25 per cent and various fringe benefits, the leaders of all unions except the DIU led their workers back to work. Subsequently, these leaders under their new name, the National Federation of Workers, secured additional wage increases and further fringe benefits for the workers which were embodied in a new collective agreement.
18. 43. With respect to the allegations that the arrest of Davis, the President of the DIU, for trespassing prevented him from carrying out his functions as a trade union officer, the Government states that Pauling and Company as occupiers of the Belmopan Site made complaints to the police, who in consequence took routine action against Davis. The Government states that the case came to court and that the magistrate dismissed the charges against him.
19. 44. As concerns the allegations contained in the complainants' letter of 17 April 1970 that the Company and the CWU have been intimidating workers to sign check-offs and that workers who have refused have been fired, the Government states that there has been no official notification of this to warrant investigation.
20. 45. In respect of the allegations that, following the expiry on 31 December 1969 of the original agreement concluded between all parties concerned with the strike, no agreement has subsisted between the workers and the Company and that, in consequence, workers are unrepresented, the Government states that there is a collective bargaining agreement between the Company and the National Federation of Workers which was entered into on 18 April 1970.
21. 46. As regards the allegations that the dismissal on 24 March 1970 of twelve members of the Public Works Department who had been with the Department for between four and nine years represented an attempt to undermine the efforts of the DIU to effectively organise the workers, the Government states that this concerns workers at another site (Rockville Quarry), that the matter is being investigated, that discussions have been held with the Public Works Department and that a decision will soon be forthcoming.
22. 47. As concerns the allegations that members of the DIU working at the Government Agricultural Station at Central Farm, Cayo District, have signed check-off forms but that the Government has refused to collect the corresponding dues, the Government states that all requests so far received by the Department of Agriculture and forwarded to the Ministry of Labour have been approved and that it is understood that deductions are being made.

B. B. The Committee's conclusions

1. 48. The Committee notes that the Government has only submitted its detailed observations on the first three communications. None the less, the Committee considers that it has sufficient information before it to enable it to come to conclusions on the case as a whole.
2. 49. The Committee notes the Government's statement according to which the agreement between itself and Paulings contained no clause granting the Christian Workers' Union the exclusive right to represent the workers at Belmopan and that it was as a result of an inter-union agreement that the CWU came to have exclusive bargaining rights on behalf of the workers affiliated to various unions belonging to the Christian trade union movement.
3. 50. The Committee also notes the Government's statement to the effect that there exists in British Honduras a system whereby workers' grievances may be taken up by the officer of the labour inspectorate and, in appropriate cases, brought to court; and that allegations of unjustified dismissal may be dealt with under this procedure. The Committee, moreover, notes the Government's statement according to which this procedure was followed in the cases of Lewis and McKoy but that the senior labour inspector who investigated these cases came to the conclusion that the Department did not have sufficient grounds on which to bring the matter to court. The Committee further notes that, according to the Government, the matter of the dismissal of twelve workers employed by the Public Works Department is being investigated and that a decision will soon be forthcoming.
4. 51. In this connection, the Committee wishes to draw the attention to the standards embodied in Article 1 of Convention No. 98, according to which workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment, and that such protection shall apply more particularly in respect of acts calculated to (a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership; (b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours.
5. 52. As regards the charges brought against Messrs. Lewis, McKoy and Davis, the Committee notes that of the three only McKoy has been convicted; the charges against Lewis and Davis having been dismissed.
6. 53. Again, with regard to the allegations that the Government has failed to collect dues from members of the DIU working at the Government Agricultural Station at Central Farm, Cayo District, who had signed check-off forms, the Committee takes note of the Government's statement according to which such dues are, in fact, being collected.
7. 54. On the other hand, with regard to the question of trade union representation at Belmopan, the Committee notes that the opportunity has not been afforded to the workers to make a clear decision concerning the union which should represent them for collective bargaining purposes. Indeed, the Committee recalls that the workers called upon the DIU to support them in their strike and that after a thorough investigation, the Labour Commissioner came to the conclusion that it would be necessary to hold a poll to determine the wishes of the workers. This suggests that there was considerable doubt as to the representative character of the Christian Workers' Union. This is also borne out by a letter addressed on 7 January 1970 by Pauling and Company to the DIU in which the project manager admits that " there is an element of doubt regarding the representation of workmen on this site ". The reasons advanced by the Government for the postponement of the poll-that during the strike there were disturbances-apparently ceased to be valid before the end of December 1969 (when the poll should have been held according to the agreement entered into by all the parties concerned), as the strike came to an end at the beginning of July 1969.
8. 55. The Committee has considered that it is important for employers to recognise organisations that are representative of workers in a particular industry for the purposes of collective bargaining. Moreover, in cases where the authorities have the power to hold polls for determining the majority union which is to represent the workers for the purposes of collective bargaining, the Committee has taken the view that such polls should always be held in cases where there are doubts as to which union the workers wish to represent them.
9. 56. In this connection the Committee has pointed out that in several countries in which the procedure of certifying unions as exclusive bargaining agents had been established, the following safeguards had been considered essential: (a) certification to be made by an independent body; (b) the representative organisation to be chosen by a majority vote of the employees in the unit concerned; (c) the right of an organisation that failed to secure a sufficiently large number of votes to ask for a new election after a stipulated period; (d) the right of an organisation other than the certified organisation to demand a new election after a fixed period, often twelve months, had elapsed since the previous election.

The Committee's recommendations

1. 57. In these circumstances the Committee recommends the Governing Body to draw the attention of the Government to the considerations set out in paragraphs 54 to 56, for the purpose of ensuring that workers may decide freely and on an objective basis the union which is to represent them for the purposes of collective bargaining.