Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 397, Mars 2022

Cas no 3393 (Bahamas) - Date de la plainte: 12-AOÛT -20 - Clos

Allegations: The complainant organizations allege that the Government employer in the hospital sector has not complied with its collective agreement nor engaged with the union to resolve the matter, in violation of the right to collective bargaining

1. 55. The complaint is contained in a communication dated 12 August 2020 submitted by the Commonwealth of the Bahamas Trade Union Congress (CBTUC) and the Bahamas Nurses Union (BNU).
2. 56. The Government of the Bahamas transmitted its observations on the allegations in a communication dated 28 January 2022.
3. 57. The Bahamas has ratified the Freedom of Association and Protection of 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. The complainants’ allegations

1. 58. In their communication dated 12 August 2020, the complainant organizations allege that the Government of the Bahamas failed to follow fully the terms and conditions of a collective agreement which was concluded with the BNU on 21 July 2016 and refuses to engage with the latter to resolve the matter.
2. 59. The complainant organizations indicate that the BNU, which is a duly registered trade union in the Bahamas and an affiliate of the CBTUC, is the bargaining agent for all nurses attached to the Public Hospital Authority and the Department of Public Health of the Ministry of Health. The complainants report that the BNU and the Ministry of Health are parties to successive registered collective agreements, including the agreement dated 21 July 2016.
3. 60. The complainants state that the Government: (i) breached sections 10.01 to 10.04 of the agreement of 21 July 2016, which contain provisions regarding occupational health and safety in accordance with section 4 of the Health and Safety at Work Act; (ii) breached section 25.01 of the abovementioned agreement, which recognizes the importance of maintaining the highest levels of efficiency and provides that current employees shall be given first consideration when an opportunity for advancement occurs; and (iii) failed to communicate with the BNU regarding changes to policies and procedures that govern its members.
4. 61. The complainant organizations indicate that the BNU and the Ministry of Health have been embroiled in this dispute since 2016. According to the documents submitted with the complaint: (i) on 28 September 2016, the BNU filed a trade dispute with the Ministry of Labour; and (ii) on 21 December 2016, the Ministry of Labour referred the matter to the Bahamas Industrial Tribunal for final resolution.
5. 62. The complainants also indicate that the BNU applied for a strike poll on 28 September 2016 and on 16 May 2018 but that these requests were denied by the Ministry of Labour. After the union applied again, a strike poll was conducted on 4 December 2018 and resulted in a majority vote in favour of a strike. The complainants inform that a strike certificate was granted to the BNU on 6 December 2018.
6. 63. The complainants state that the BNU went before the Industrial Tribunal but that the matter was adjourned on numerous occasions with no advancement, as the Ministry of Health did not attend. They indicate that communications continued during the waiting period and included a meeting between the parties and the Prime Minister of the Bahamas, in which it was agreed that the outstanding matters should be resolved. However, despite a request from the Prime Minister that the parties work out the terms with the Director of Labour, no results ensued.
7. 64. The complainants indicate that, as a result of the impasse between the parties, the BNU requested that the matter be proceeded with and went to the Industrial Tribunal for a hearing on 10 March 2020. They state that both sides ultimately agreed that the Industrial Tribunal had no jurisdiction in the matter, pursuant to the applicable case law. The complainants inform that on 12 March 2020, the court determined that the matter could not be continued before the Industrial Tribunal and therefore dismissed the originating application.
8. 65. The complainants indicate that the BNU has continued to request meetings with the Government without success. They denounce the failure by the Government to observe the principle of collective bargaining embodied in Convention No. 98.

B. The Government’s reply

1. 66. In a communication dated 28 January 2022, the Government states that the matter which is the subject of the complaint arises from an employer-employee relationship. The Government emphasizes that there has not been a failure on its behalf to bargain collectively and finalize an agreement in its capacity as an employer. It indicates that a legally binding industrial agreement is registered with the Registrar of Trade Unions and that even though this agreement has expired, it will remain in effect until a new agreement has been executed.
2. 67. The Government stresses that, as an employer, it aims to have industrial harmony and always engages in negotiations with the goal to reach an amicable agreement. The Government also informs that a general election held in the country on 16 September 2021 resulted in a change of administration, which led to the creation of a unit that was specifically tasked with negotiating all industrial agreements within the public service.
3. 68. The Government states that any allegations of infringements of trade union rights are misguided and false, insisting that the country has always been on the forefront of decent work. The Government indicates that even though the COVID-19 pandemic has posed new challenges, it is trying to rectify and resolve all outstanding concerns raised by the nurses in its employ.
4. 69. As regards the conflict between the parties, the Government confirms that a trade dispute was filed in September 2016 and referred to the Industrial Tribunal for resolution. It also confirms that there were delays before the matter was heard and that it was ultimately dismissed, as both sides agreed that the abovementioned tribunal had no jurisdiction.
5. 70. The Government states that the country has a robust and sound judiciary system, and that the BNU had and continues to have the opportunity to resort to the courts by initiating an action before the Supreme Court. It informs however that this has not occurred to date.
6. 71. With respect to the BNU’s attempts to obtain a strike certificate as a result of a strike poll, the Government informs that the process to follow is provided by sections 20 and 74 of the Industrial Act, 1971. The Government explains that BNU did not follow the statutorily required procedures, which was why it was not initially successful in obtaining a strike certificate. It also confirms that a strike certificate was obtained by the union once the procedures were followed.
7. 72. The Government concludes by indicating that it is anticipated that the negotiations with the BNU regarding a new collective agreement will be concluded in the coming months, as many of the financial concerns have been addressed. The Government therefore believes that the present case should be closed.

C. The Committee’s conclusions

1. 73. The Committee notes that, in the present case, the complainants allege that the Ministry of Health failed to comply with provisions of a collective agreement concluded with the BNU and did not engage with the union to resolve the matter, thereby violating the right to collective bargaining.
2. 74. The Committee notes the chronology of events provided by the complainant organizations and the Government as follows: on 21 July 2016, a collective agreement was concluded between the Ministry of Health and the BNU. On 28 September 2016, the BNU filed a trade dispute with the Ministry of Labour, alleging the violation of provisions of the abovementioned agreement relating to promotions and occupational health and safety, as well as a failure to communicate with the union by the Ministry of Health. On 21 December 2016, the Ministry of Labour referred the matter to the Bahamas Industrial Tribunal for final resolution. On 6 December 2018, the BNU obtained a strike certificate after conducting a poll which resulted in a majority vote in favour of a strike. Following a meeting with the Prime Minister of the Bahamas, the parties agreed that the dispute should be resolved but no results ensued. After several adjournments, a hearing before the Industrial Tribunal took place on 10 March 2020, during which both sides agreed that the tribunal had no jurisdiction in the matter. On 12 March 2020, the court dismissed the originating application, as it determined that the matter could not be continued before the Industrial Tribunal.
3. 75. The Committee takes note of the diverging opinions expressed by the complainants and the Government regarding the alleged infringement of trade union rights by the Ministry of Health in its capacity as employer. In this regard, the Committee wishes to emphasize that mutual respect for the commitment undertaken in collective agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1336].
4. 76. The Committee notes that the BNU and the Ministry of Health agreed that the Industrial Tribunal had no jurisdiction to resolve the dispute. Observing that the collective agreement of 21 July 2016 does not provide a specific settlement procedure, the Committee considers that the dispute should be resolved through the appropriate national settlement mechanisms or by the competent national judicial authority. Taking due note that the parties are currently negotiating a new collective agreement, and in light of the lack of clarity related to the authority responsible for deciding disputes of interpretation of collective bargaining agreements, the Committee invites the parties to give consideration to indicating in the new agreement the manner in which such disputes should be resolved.
5. 77. The Committee notes the Government’s indication that: (i) pending the conclusion of a new collective agreement, the collective agreement of 21 July 2016 remains in force; and (ii) a new administration was recently elected and it aims to resolve all outstanding concerns raised in the nursing sector. Taking due note of the ongoing negotiations for the conclusion of a new collective agreement between the Ministry of Health and the BNU, the Committee encourages the parties to use this opportunity to address the dispute raised in the present case and reach a mutually satisfactory solution. The Committee requests the Government to keep it informed of any developments in this regard.

The Committee’s recommendations

1. 78. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • Taking due note of the ongoing negotiations for the conclusion of a new collective agreement between the Ministry of Health and the BNU, the Committee encourages the parties to use this opportunity to resolve the dispute raised in the present case and reach a mutually satisfactory solution. The Committee requests the Government to keep it informed of any developments in this regard.