Bahamas Utilities Services and Allied Workers Union v Water and Sewerage Corporation

• Jurisdiction: Bahamas
• Judge: Hilton, J.
• Judgment Date: 09 September 2016
• Court: Supreme Court (Bahamas)
• Date: 09 September 2016
• Docket Number: Cle/gen/00225/2016

Supreme Court

Hilton, J. (Ag.)

Cle/gen/00225/2016

Bahamas Utilities Services and Allied Workers Union

and

Water and Sewerage Corporation

Appearances:

Fedner Dorestal for the plaintiff

Sidney Campbell along with Cyril Ebong for the defendant

Employment Law - Application for interlocutory injunction — Defendant's decision to deduct certain repayments from the salary of its employees — Whether the circumstances of the case warranted the grant of the interlocutory injunction — Whether there was a unilateral variation by the defendant of the Industrial Agreement and contract of employment of the members of the plaintiff Bargaining Unit — Court's considerations in granting an interlocutory injunction — Whether sections 34 (1) and 39 (1) of the National Insurance (Benefits and Assistance) Regulations, empowers the defendant to deduct the payments from the salary of the employees — Section 51 (1) of the Industrial Relations Act — Section 4 of the Employment Act — Article 32.07 of the Industrial Agreement — Section 21 of the Supreme Court Act — Order 29 rule 1 of the Rules of the Supreme Court — American Cyanamid Co. Ltd. v. Ethicon Ltd [1976] A — C. 396.

Hilton, J. (ACTG):

This is an application for an interlocutory injunction by the plaintiff (which is the bargaining unit for employees of the defendant) with respect to the decision by the defendant to deduct certain repayments form the salary of employees of the defendant.

1 The substantive action was commenced by Writ of Summons Filed 10th March 2016 which sought the following relief/claims:

• (i) A Declaration and or Order that the plaintiff as agent of the Bargaining Unit who are employees of the defendant are entitled to the sickness and Maternity benefit Claim and the defendant's act of deducting the same is wrong and Ultra Vires;

• (ii) A Declaration and or Order that the plaintiff as the agent of the Bargaining Unit are entitled to be reimbursed and or refunded the said deductions taken from their salaries in connection with sickness and Maternity Benefit Claims by the defendant;

• (iii) The plaintiff seeks an Order that the defendant its servants or agents be restrained from continuing and further deducting monies from the members of the Bargaining Unit who have made claims relative to sickness and Maternity benefit Claims;

• (iv) An Order pursuant to Order 29 of the Rules of the Supreme Court and or under the inherent jurisdiction of the court, damages and Costs;

• (v) The plaintiff as agent for the members of the Bargaining Unit who are employees of the defendant are also entitled to and claim interest on the sum found to be due to them for such period and at such rate as the court shall deem just.

2 The plaintiff has applied by Summons filed 22nd March 2016 for an interlocutory injunction which is settled in the following terms:

LET ALL PARTIES concerned attend Before _____________ Lordship the Honorable _______________ Justice ____________, Justice of the Supreme Court of the Commonwealth of the Bahamas in the Supreme Court, Bank Lane East Street North, in the City of Nassau, on the island of New Providence, one of the Islands of the Commonwealth of the Bahamas on _____ the ________ day of _____ A.D. 2016, at _____ o' clock in the __________ noon or so soon thereafter as Counsel may be heard on an application on behalf of the plaintiff for an injunction that:

• 1 The defendant and their servants and or agents do immediately, be RESTRAINED by themselves their servants and or agents or otherwise from continuing to and further deducting monies from the salaries of members of the Bargaining Unit of the plaintiff who have made claims relative to sickness and Maternity Benefit Claims at the National Insurance Board, and an Order pursuant to Order 29 of the Rules of the Supreme Court and or under the inherent jurisdiction of the court.

3 The injunction application is supported by the Affidavit of Dwayne Woods filed the 8th April 2016.

4 The defendant filed an Appearance on 27th June 2016 and a Defence on 20th July 2016.

FACTUAL BACKGROUND

5 The plaintiff and the defendant entered into an Industrial Agreement which was duly registered on 10th June 1980 and renegotiated and renewed on 25th August 2015 covering the period of 1st July 2013 to 30th June 2018.

6 By a letter dated 27th October 2014 the defendant notified the plaintiff that it would be implementing a policy with respect to National Insurance Sick leave and Maternity Benefits. The letter was settled in the following terms:

Our Ref.: BUSAWU

October 27, 2014

Mr. Dwayne Woods

President

BUSAWU

Nassau, Bahamas

RE: NIB SICKNESS AND MATERNITY BENEFIT CLAIMS

This communication serves to advise you, in advance, of our change in Policy regarding the captioned.

Please note that the Corporation has secured approval to discontinue the practice of certifying,...