Bahamas Hotel Managerial Association v High Point Development Company Ltd {d.b.a.5 “Comfort Suites”}

• Jurisdiction: Bahamas
• Court: Industrial Court (Bahamas)
• Judgment Date: 13 August 2004
• Docket Number: No.81 of 1997

In the matter of the Industrial Relations Act

Bahamas Hotel Managerial Association

Applicant

and

High Point Development Company Limited {d.b.a.5 “Comfort Suites”}

Respondent

No.81 of 1997

INDUSTRIAL TRIBUNAL

NASSAU

Counsel for the Applicant — Obie Ferguson Jr. Esq.; with him Mr. Errol Mckinney.

Counsel for the Respondent — Ferron J. M. Bethell Esq.; with him Ms. Paula Adderley

DECISION AND REASONS

The Facts:

1 By Notice in writing dated 3rd April, 1995, pursuant to section 42(6) of the Industrial Relations Act, Chapter 296 (now section 42(7) of the Industrial Relations Act, Chapter 321), the Minister responsible for Industrial Relations (“the Minister”) notified the parties of his Determination that the Applicant is entitled to be recognised as the bargaining agent for all persons employed in managerial positions at the Respondent.

2 By Originating Summons dated 5th March, 1997, certain alleged members of the bargaining unit determined by the Minister as aforesaid commenced action in the Supreme Court on its Equity Side, viz., Derek Smith et. al. v. Minister Of State For The Public Service & Labour & The Attorney General & Bahamas Hotel Managerial Association — Supreme Court action No.218 of 1997, for the following declarations:

• i. A declaration by the Court that on a proper construction of section 43(1) of the Industrial Relations Act that the First, Second, Third and Fourth Plaintiffs, viz., Derek Smith, Philippe Sahnoune, John Rahming and Andrew Dean, were entitled to make an application for revocation of the Determination of entitlement to Recognition, irrespective of the fact that no other union was seeking recognition as bargaining agent in respect of the subject bargaining unit or category of employees;

• ii. A declaration by the Court that the Minister's decision promulgated by letter dated September 20, 1996, not to entertain the applications by the said Plaintiffs is void in that the Minister erred in law and took irrelevant matters into consideration as manifested on the face of his decision;

• iii. In the event (i) and (ii) are answered in the affirmative, a declaration by the Court that the Minister is obliged to consider the applications by the said Plaintiffs;

• iv. A declaration by the Court that Bahamas Hotel Managerial Association is disentitled in law to continue to treat and negotiate with the Plaintiffs' employer, ostensibly on behalf of the Plaintiffs, when it knew that it no longer had the support of the majority of the persons comprising the subject bargaining unit;

• v. A declaration by the Court that Bahamas Managerial Association acted mala fide and improperly in continuing and/or attempting to continue to treat and negotiate with the Plaintiffs' employer knowing that it no longer commanded the support of the majority of the employees comprising the subject bargaining unit.

3 By Originating Application dated May 14, 1997, together with Brief in support thereof the Applicant commenced action at the Industrial Tribunal, and alleged that the parties “reached a tentative Industrial Agreement but the Respondent has refused to execute it.”

4 The Applicant further alleged inter alia in its Brief (see paragraph 12), “that the Respondent is in breach of the Industrial Relations (Amendment) Act, 1996, by failing to negotiate in good faith.”

5 The said Originating Application together with supporting Brief was duly served by the Tribunal on the Respondent by letter dated May 16, 1997, notifying the Respondent that it was required within seven (7) days (of the receipt of the Originating Application) to enter an Appearance to the Dispute by Notice Of Appearance in the prescribed form.

6 The Tribunal then received the following letter dated May 27, 1997, from Respondent's counsel enclosing a copy of a Consent Order issued by the Supreme Court in the aforesaid action:

“The Secretary

Bahamas Industrial Tribunal

Monument Building

Thompson Boulevard

Oakes Field

Nassau, Bahamas

Attention: Mr. Leslie Dean

Dear Sir:

Re: Bahamas Hotel Managerial Association v. High Point Development Company Limited Trading as Comfort Suites.

The attached Appearance is entered by my firm in response to an Originating Application filed against High Point Development Company Limited by the Bahamas Hotel Managerial Association (“BHMA”).

I have tried to resolve a dilemma which 1 face in a way which attempts to observe the rules of procedure and also observes the dignity of the Bahamas Supreme Court.

What I mean by that is this: an Action is now partly heard by the Bahamas Supreme Court which calls into question an earlier Ruling made by the Minister in this matter. My client is not a party to this action but is necessarily affected by it. The Action has been brought by a number of employees of my client to challenge the Ruling of the Minister on an earlier petition by them that the recognition accorded to the BHMA be revoked. The Minister did not accede to that petition on the ground that under the provisions of the Industrial Relations (Amendment) Act, he had no power to do so. This is the matter which is now before the Supreme Court. The first hearing on this case was held yesterday, Monday, May 26th, 1997, but the matter was adjourned for further hearing and until the matter is resolved, the Supreme Court judge has required the parties to take no further action on the Industrial Agreement until a final decision is made by the Courts.

For these reasons, I think you will appreciate the seriousness of the dilemma which I face today. Should I not enter an Appearance, then my client would be in breach of your Rules of Procedure: yet, if I enter a Conditional Appearance, I may run afoul of the wishes of the Supreme Court.

In these circumstances and in order to attempt to pay due respect to the requirements of both Tribunals, I am entering what I have described as a Conditional Appearance conditioned only upon proceeding in accordance with any Ruling which the Supreme Court may ultimately make.

I hope that what I have written will enable you to appreciate the difficulties which my client faces and that you appreciate as well my good faith attempt to do the right thing by everyone.

Should you have any questions please call me and I shall try to assist you further.

Yours faithfully,

LOBOSKY & LOBOSKY Reginald H. Lobosky”

7 The said Consent Order read as follows:

“UPON APPLICATION by the Plaintiffs by Originating Summons filed herein on the 5th day of March, A.D., 1997.

AND UPON HEARING Mr. Edgar Seligman, Esquire of counsel for the Plaintiffs and Mr. Patrick Hanna, Esquire of Counsel for the Third Defendant.

AND UPON the Third Defendant undertaking by its Counsel to refrain from attempting to negotiate with the Plaintiffs' employer for the purpose of securing an industrial agreement regarding the terms and conditions of employment of the bargaining unit of employees' at Comfort Suites comprising “managerial, supervisory, and schedule “B” employees”, pending the decision of the First Defendant pursuant to section 43(1) of the Industrial Relations (Amendment) Act, 1996 as to whether the determination entitling the Third Defendant to be recognized as bargaining agent in respect of the said bargaining unit ought to be revoked.

AND UPON the Third Defendant further undertaking to notify the Secretary of the Bahamas Industrial Tribunal of its undertakings to this Court and to request forthwith that application No.81 of 1997 to the said Tribunal and any proceedings in connection therewith be placed in abeyance pending the First Defendant's decision pursuant to section 43(1) of the Industrial Relations (Amendment) Act, 1996 as aforesaid.

AND BY CONSENT

IT IS HEREBY COWERED that

• (i) this action be stayed pending the First Defendant's decision pursuant to section 43(1) of the Industrial Relations (Amendment) Act, 1996 as aforesaid.

• (ii) there be no order as to costs.

BY ORDER OF THE COURT

REGISTRAR”

8 In compliance with and pursuant to the terms of the said Consent Order of the Supreme Court, the Industrial Tribunal stayed the proceedings herein, and notified the parties accordingly by letter dated July 31, 1997.

9 By letter dated September 28, 1998, the Minister of Labour wrote to the Plaintiffs in the said Supreme Court action requesting certain information from them in order for her to make a Determination as to whether she should revoke the Determination that the Applicant is the bargaining agent for managerial and supervisory employees of the Respondent. The letter read as follows:

“ Mr. Derek Smith et. al.,

Comfort Suites

Paradise Island

Nassau Bahamas

Dear Sirs,

Re: Revocation of The Bahamas Hotel Managerial Association as Bargaining Agent for the Middle Managerial Personnel at Comfort Suites.

In correspondence dated August 28, 1996, you were requested by the Minister of Labour to provide the Ministry of Labour with a list that contained ‘the printed full names as well as the signatures of all persons concerned’. These would be the persons that signed the correspondence dated 22nd August, 1996 seeking revocation of the Bargaining Agent status of Bahamas Hotel Managerial Association. (copies attached for ease of reference). Reminders were sent to you on June 25, 1997 and September 11, 1991. (copies attached for ease of reference).

You are once again requested to supply my office with this information. If my office is not in receipt of the requested information within fourteen (14) days of your receipt of this correspondence, I would have no other alternative but to conclude that the application of August 22, 1996 does not satisfy section 43(1) (d) Industrial Relations Act Chapter 296, amended 1996 and therefore is not a proper one to determine.

Yours Sincerely,

Honourable Theresa Moxey-Ingraham Minister of Labour, Immigration and Training.”

10 Not having received a response to...