Bahamas Communications and Public Officers Union et Al v Bahamas Telecommunications Corporation et Al
|11 May 2011
|BS 2011 CA 35
|SCCivApp & CAIS No. 21 of 2011
|Court of Appeal (Bahamas)
|11 May 2011
Court of Appeal
Allen, P.; Blackman, J.A.; Conteh, J.A.
SCCivApp & CAIS No. 21 of 2011
Mr. Maurice Glinton, with Mr. Paul Moss, counsel for appellant/applicant.
Mr. Loren Klein, with Ms Deidre Clarke-Maycock, counsel for first and fourth respondents.
Mr. Philip Dunkley, QC, with Ms Tara Burnside-Cooper counsel for second and third respondents.
Industrial Law - Trade Unions — Legal capacity to sue.
At the conclusion of the hearing of the appeal in this matter the Court dismissed the appeal and promised to give reasons for its decision later.
This we now do by this judgment.
The appeal itself arose out of the decision of Adderley, J. dated 14th February, 2011, in which, after the trial of a preliminary issue, pursuant to two separate summonses taken out by the first and fourth respondents and the second and third respondents respectively, he struck out the appellants' writ and dismissed their action with costs to be paid by the appellants to the respondents to be taxed if not agreed.
It is convenient to refer to the appellants collectively as the Unions in this judgment, unless the context otherwise requires.
The respondents are: The Bahamas Telecommunication Corporation (the first respondent); The Bahamas Telecommunications Company Ltd. (the second respondent); Julian W. Francis, (the third respondent sued in his capacity as Executive Chairman of The Bahamas Telecommunications Corporation and also of The Bahamas Telecommunications Company Limited and also in a representative capacity on behalf of himself and the other Members of the first respondent and of the Other Directors of the second respondent); and The Attorney General (the fourth respondent sued in a representative capacity).
The first respondent in this appeal shall be referred to in this judgment as BATELCO and the second respondent as BTC.
in relation to the Unions, BATELCO and BTC, the learned judge helpfully provides in pares. 4, 5 and 6 of his decision a sketch of these parties which is gratefully adopted for the purposes of this appeal and reproduced here:
“4. BTC is a company limited by shares owned by the Government of The Bahamas which has monopoly franchise for providing telecommunications services throughout The Bahamas. The Bahamas Telecommunications Corporation (“BATELCO”), its predecessor in title, at all material times was a government controlled statutory state owned corporation which also had a monopoly from the time of its creation by statute in 1966 by The Bahamas Telecommunications Corporation Act (“the 1966 Act.). Cable and Wireless which operates in the Caribbean region under the name of LIME the acronym for “Landline, Internet, Mobile, Entertainment” is an affiliate of a publically traded United Kingdom based international telecommunications company which provides telecommunications services throughout various parts of the world.
5. The BCPOU is a trade Union duly certified and registered under the Industrial Relations Act 1970 (“IRA') and was the duly recognized sole Bargaining Agent for all the then employees of BATELCO consisting of the Bargaining Unit. That includes “all full-time employees of Batelco, excluding contract officers and employees of management status”. It is likewise now the sole 0Bargaining Agent of BTC
6. The BCPMU is a trade Union duly certified and registered under the IRA and was the cagy recognized sole Bargaining Agent for all the then employees of BATELCO consisting of the Bargaining Unit. That includes “ail persons who are regularly employed in the field of communications or who are otherwise employed in any Public Corporation, who are designated management. It is likewise now the sole Bargaining Agent of BTC.”
This much is common ground between the parties. We shall later set out in this judgment, if only in outline, the statutory underpinning of both BATELCO and BTC
In a writ first filed on 11th January, 2011 and amended on 21st January, the Unions claimed the following relief from the Supreme Court in the indorsement on their writ:
(1) A declaration that The Bahamas Telecommunications Corporation (“the Corporation”) as then established pursuant to the provisions of The Bahamas Telecommunications Corporations Act (“the 1966 Act') is the Corporation deemed upon commencement of the 1966 Act to which was transferred and was vested with “all public undertakings” that immediately before the commencement of that said Act was the telecommunications system owned and operated by the Government of The Bahamas, notwithstanding the provisions of the Act, Chap. 303 of the 2000 Revised Edition of The Statute Law of The Bahamas;
(2) A declaration that the provisions of the current 1966 Act (including sect. 79(1) introduced by amendment, by Act No. 11 of 1994) and of The Telecommunications Act, 1999 (“the 1999 Act”), notwithstanding, the Corporation having paid compensation pursuant to the provisions of the 1966 Act as originally enacted was upon commencement of that Act owner of all of Me transferred undertaking described as extending “to the whole of such undertakings and shall include all plant, lands, works and other property, moveable or immovable, assets, powers, rights and privileges held or enjoyed in connection therewith or appertaining thereto,”
(3) A declaration that the Corporation having been established as a body corporate with perpetual succession and with the capacity “to acquire, hold and dispose of property, to enter into contracts, to sue and be sued in its said name, and to do all things necessary for the purpose of this Act”, was and is entitled to all of the protections at common law and under the Constitution of The Bahamas as regard protection of its property and the right of access to the Court to seek such protection.
(4) A declaration that notwithstanding that the Corporation established as body corporate pursuant to the provisions of the 1996 Act upon the commencement of the Act, so long as it exists as such body corporate is required to consist of such number of members not exceeding nine or less than five “as the Governor f:erieral may appoint by notice in the Gazette”, failure to appoint the requisite number of members of the Corporation does not dissolve it as a body corporate or deprive it of any of the capacities with which it was established or that it thereafter acquired under the Common law or by virtue of the said Constitution.
(5) A declaration that insofar as the effect of the 1966 Act subsequently altered in the 2000 Revised Edition of The Bahamas Statute Law is to alter or deprive employees of the Corporation in the Bargaining Unit or nullify the employment status and protection of economic benefits that went with employment with the Corporation consequent upon its establishment pursuant to the provisions of the 1966 Act, in particular of protection of security of employment afforded by relevant statute law to persons who continue to be employed without interruption, “where a change occurs (whether by virtue of a sale or other disposition or by operation of law) in the ownership of any business for the purposes of which an employee is employed.” Such alteration and/or deprivation? and/or nullification constitute a breach of contract and an III eta taking of property in contravention of the said Constitution.
(6) A declaration that any property acquired of the Corporation by any means in purported exercise of governmental powers other than by its voluntary disposition whether for value or not, is a compulsory taking or acquisition thereof which, if it is to be a lawful acquisition, must be strictly in accordance with provisions of the Acquisition of Land Act (chap. 252 of the 2000 Revised Edition of The Bahamas Statute Law).
(7) A declaration that sect. 19(1) of the 1966 Act imposes a tax on the Corporation in the guise of a franchise fee and as such the provision enables and facilitates the expropriation of the Corporation's property contrary to law, in contravention of 11, t. 27 of the said Constitution.
(8) A declaration that sects. 22, 23, 24, and 26 under Part VII of the 1999 Act and pares. 1, 2, 3, and 4 in the First Schedule of the Act operated individually and collectively to enable or facilitate and/or to otherwise effect an expropriation of the Corporation's property by the compulsory acquisition thereof, contrary to law, in contravention of Art 27 of the Constitution.
(9) A declaration that the Minister's powers and authority pursuant to sects. 24(1) and 26 of the 1999 Act, to divest the Corporation of, and vest in “The Bahamas Telecommunications Company” (BTC”) or any other person or entity, any of all of its property, rights and liabilities to which it was entitled or subject immediately before the date of the vesting order concerned, if and when exercised (and notwithstanding sect. 24(3) of the said Act), is an unlawful abrogation of the 1966 Act, and, in relation to the Corporation, it contravenes Art 27 of the said Constitution.
(10) A declaration that any or all such property, rights and liabilities of the Corporation of which it was divested by the Minister whether acting pursuant to sects. 24(1) and 26 of the 1999 Act or some other provision thereof, continue to be the Corporation's notwithstanding sect. 24(3) of that Act, or that the Minister may have acted with the prior approval of the House of Assembly required by sect. 22(4) of that Act or may have, after consultation with the Commission and the Corporation, made an order purporting to dissolve the Corporation.
(11) A declaration that all assets of which the Corporation was divested pursuant to provisions of the 1999 Act by the Minister in purported exercise of the powers and authority under sects. 24(1) and 26 thereof or by...
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