Jeffrey Wilson v Super Value Food Stores Ltd

• Jurisdiction: Bahamas
• Judgment Date: 07 July 1997
• Docket Number: No. 36 of 1997
• Court: Industrial Court (Bahamas)

In the matter of the Industrial Relations Act

Jeffrey Wilson

Applicant

and

Super Value Food Stores Limited

Respondent

No. 36 of 1997

INDUSTRIAL TRIBUNAL

NASSAU

Representative for Applicant: Mr. Obie Ferguson Jr.

Counsel for Respondent: Mrs. Rionda Y. Godet

RULING ON RESPONDENT'S WRITTEN SUBMISSIONS IN LIMINE:

We have considered the Respondent's written submissions in limine tendered on 23rd June, 1997, and have deliberated as follows:

1 In order to determine whether the above matter is statute barred it is in our view necessary to consider the raison d'etre of the Industrial Tribunal.

2 It is virtually coimmon knowledge that the Industrial Tribunal was established in the wake of the decision in Princess Casino Limited v. The Attorney General of The Commonwealth of The Bahamas and Minister Of Labour and Human Resources No.1250 of 1992 {Common Law Side} in which the Supreme Court held inter alia that referrals of trade disputes to arbitration tribunals {under the law as it then was} must of necessity be with the consent of both parties. In other words, unless both parties submitted/agreed to arbitration, there could be none.

3 As a result of this decision, the ‘old’ arbitration process was stymied because no one was obliged to submit thereto.

4 In order to rectify this situation, the Government on several occasions publicized its intention to establish an Industrial Tribunal which would have jurisdiction inter alia to hear and determine all disputes relative to both essential and non-essential services, and under which process a Respondent would be obliged to submit after due process has been served upon him, under pain of having decisions rendered against him in his absence or other default.

5 The Industrial Relations {Amendment} Act, 1996 {hereinafter called “the Amendment”} was then passed, and it is clear from the language thereof pro tanto, that it was intended to replace the ‘old’ arbitration process, and indeed provide in its stead a much improved system for the resolution of disputes under the principal statute, the Industrial Relations Act, Chapter 296 {hereinafter called “the Act”}.

6 We feel that in all the circumstances, it was the clear intention of Parliament that the Amendment be retrospective in one respect, viz., that it has jurisdiction to hear and determine matters which had been referred by the Minister to arbitration tribunals under the ‘old’ law; it is also clear that it was the intention of Parliament to provide for the resolution of disputes referred by the Minister to the Industrial Tribunal in which the parties had already entered conciliation proceedings pursuant to section 73 of the Act.

7 The intention of Parliament with respect to retrospectivity, and with respect to providing for continuity of the ‘old’ process, is to be derived not only from the circumstances giving rise to the passage of the Amendment, but also from the specific language used therein; viz., paragraph 21(1)(c) and (d) of the Fourth Schedule to the Amendment which provides:

“The amendments effected by this Act in respect of the Industrial Relations Act, apply… to any trade dispute arising on or after that date; {the commencement date of the Act} and to any trade dispute which arose and was reported to the Minister prior to that date but in respect of which a settlement had not been reached at that date.”

8 In our view, it is clear that the latter provision encompasses unsettled matters about which parties have already entered conciliation, as well as unsettled matters already referred to the ‘old’ arbitration tribunals (bearing in mind that it was still open to the parties to settle matters during the ‘old’ arbitration process).

9 The case of L'Office Cherifien des Phosphates v. Yamashita Shinnihon Steamship Co. Ltd. [1994] 1 All ER 20, HL, is particularly instructive as regards the retrospective effect of statutes. The House Of Lords was critical of an approach for ascertaining the retrospective effect of statutes which depends upon a distinction between accrued substantive rights on the one hand {where the presumption against retroactivity applies} and procedural rights on the other (where the presumption does not apply). The House Of Lords viewed this distinction as both misleading {since some procedural rights are more valuable than some substantive rights} and difficult to apply in practice {since it proceeds on the assumption that every right is capable of classification as either substantive or procedural}.

While reaffirming the existence of the presumption against retroactivity {the basis of which Was described as ‘simple fairness’}, the House was concerned that the...