R et Al v ex parte Island Construction Company Ltd

• Jurisdiction: Bahamas
• Judge: Moore, J.
• Judgment Date: 12 March 2003
• Court: Supreme Court (Bahamas)
• Docket Number: FP/39 of 2001
• Date: 12 March 2003

Supreme Court

Moore, J.

FP/39 of 2001

R. et al

and

Ex Parte Island Construction Company Limited

Appearances:

Mr. Frederick R.M. Smith for the applicant.

Mr. Alonzo Lopez for the First and Second respondents.

Mr. Obie Ferguson for the Third respondent

Constitutional law - Entitlement to due process guaranteed by Articles 15 and 20(8) of the Constitution of the Bahamas — Whether power of Minister to refer a trade dispute to the Industrial Tribunal under s. 76 of the Industrial Relations Act contravened the due process Articles of the Constitution — Whether the Industrial Court was a Supreme Court within the meaning of the Constitution

Moore, J. :

The Claim

1 In an Originating Notice of Motion the applicant claimed:

• 1. “A declaration that the exercise of the powers vested in the Minister (which the Minister is obliged to exercise) under section 76 of the Industrial Relations Act Ch. 296 as amended (“The Act”) to refer a trade dispute to the Industrial Tribunal to make an award dealing with an alleged trade dispute between The Union and Island contravenes or is likely to contravene Island's rights under Articles 15 and 20 (8) of the Constitution of The Bahamas to be entitled to due process under Article 15 to have the extent of its civil rights and obligations determined by an independent and impartial tribunal established by law under Article 20(8).

• 2. A declaration that the Industrial Tribunal, as constituted by The Act is not a Supreme Court within the meaning of the Constitution and cannot lawfully exercise the jurisdiction and powers purportedly conferred upon it by The Act; and or alternatively.

• 3. A declaration that the matter before the Industrial Tribunal having originated in 1983, the exercise of a jurisdiction (if such jurisdiction lawfully exists) by the Minister and or the Industrial Tribunal to seek to determine the trade dispute herein contravenes or is likely to contravene Island's rights under Articles 15 and 20 (8) to have the issues determined within a reasonable time and without being subject to penal and punitive retrospective legislation.

  securing the enforcement of Articles 15 and 20 (8) to the protection of which the applicant is entitled.

• 8. An Order that Mr. Hamilton be dismissed from proceedings before the Tribunal he being an improper and unnecessary party thereto.

  • 1. Costs.

  • 2. Such further or other relief as to the court may seem just.”

The Background

2 The background facts are set out in the Affidavit of Mr. Donald Malone the Plant Manger of Island Construction Company Limited hereinafter “Island” filed on March 7, 2001 and in that of Mr. Harcourt V. Brown, Senior Deputy Director in the Department of Labour.

3 On April 9, 1975 a Recognition Agreement was signed by Island and the Grand Bahama Construction Refinery & Maintenance Workers Union. However, on July 25, 1983 the Commonwealth Wholesale Retail & Allied Workers Trade Union hereinafter “The Union” wrote to Mr. Michael Hamilton, owner, Island, Freeport, Grand Bahama “applying to the bargaining agent for all of the employees in your property.” The Union claimed to have “figures 50 plus 1 percent of your employees in that property.” It set August 3, 1983 as a date for a meeting. This letter marked the commencement of contacts between the employer company and The Union representing the employees.

4 By a letter dated August 2, 1983, the company wrote accepting The Union's claim subject to its existing agreement with the Grand Bahama Construction Refinery & Maintenance Workers Union, the Minister's determination as to which union should be recognized, and the establishment of The Union's claim to “50 plus 1 % of the employees as required by section 39 (1) of The industrial Relations Act.” This encouraging letter bode well for the conduct of future relations between the parties. But alas, that was not to be. However, correspondence between the parties and between the parties and the Ministry of Labour continued.

5 The next significant event, was the Minister's determination that The Union had “70% seventy percent of the non-management employees at the company as members in good standing”. Thereafter the company's strategy changed abruptly to one of subterfuge and evasion which it has practiced unswervingly right up to the filing of the present proceedings.

6 Bright and early in the new 1984, the Director of Labour by Notice dated January 3, of that year was inviting the parties to attend a conciliation meeting. But by March 21, 1984, The Union was already showing signs of frustration at what it called the company's refusal to negotiate with itself in good faith. It reported a trade dispute to the Minister in these terms under section 67 (1) (a) (b) (c) and (d) of The Industrial Relations Act 1970. The Director of Labour again summoned the parties on April 27, 1984 to attend a conciliation meeting on May 4, 1984. That meeting evidently did not take place. For on May 22, 1984 counsel for the Company wrote to the Minister of Labour in aggressive tones raising a number of technical legal issues and, though citing illness of its counsel for the Company's failure to attend a scheduled meeting, castigated The Union for failure to attend a meeting which took place one day earlier than the date fixed. As a final thrust, counsel concluded with the intimidating finale: “We hereby advise that we have advised our client not to participate further in this matter and we are instructed to put you upon notice that if this matter should proceed further we shall test it by Prohibition in the Supreme Court.”

Hardly the stuff upon which industrial peace and harmony are built.

7 Again on June 5, 1984, The Union reported a trade dispute alleging that the Company was refusing to negotiate in good faith. It pleaded with the Minister to call a meeting so that the matters could be resolved. The Director of Labour gave the parties notice of a conciliation meeting to be held on June 19, 1984 and again on August 21, 1984. Arbitration was the next resort. The dispute was referred to Arbitration by the Hon. Minister of Labour in accordance with section 70A of The Industrial Relation (Amendment) Act No. 4 of 1979. The Company and its Attorney were both notified. But again, legal action in The Supreme Court to thwart the arbitration was threatened by the Company.

8 By May 26, 1986, notices went out from the Ministry of Labour for arbitration proceedings scheduled for April 17, 1986. Arbitrators were named and everything appeared set to proceed. Promptly on May 28, 1986 counsel for the Company was again writing to raise a number of legal issues and to reiterate the threat of action in the Supreme Court. The ridiculous had now set in. The Secretary to the Arbitration Tribunals Mrs. E.M. Ritchie wrote indicating that she could appoint only one of the several arbitrators nominated by each side. The predictable response came in the Company's letter of June 16 1986. The appointed arbitrator on the Company's side Mr. Counsel, or the reluctant Mr. Gottllieb. But the harassing tactics continued and time was being eaten away. The same objections were regurgitated in a letter from the Company dated August 11, 1986. Meanwhile, The Union prepared its “brief” for the arbitration.

11 Mrs. Ritchie on December 1, 1986 reminded the Company of the Tribunal's decision granting it two weeks from November 1986 to make effort (sic) “to negotiate between yourselves and The Union concerned”. But to no avail. The Company simply refused to tango. Belatedly, by December 5, 1986, the Company appeared to see the light and temporarily sheathed its broadsword of threats of applying to the court for an Order of Prohibition. Re-advising itself correctly, it telegraphed its intention to take objections at the hearing. The cynic might say that that broadsword had by this time been blunted by overuse. But as the present proceedings indicate, it has been de-rusted and re-honed and wielded in the instant case.

12 This seeming willingness to cooperate turned out to be only a divisionary manoeuvre as the Company simply adopted a new tack. It now made requests for tape recordings of previous proceedings, and counsel's busy schedule was prayed in aid of a date for hearing within the broad band between December 16th and February 19th. But there was a new warning that counsel would not be able to appear until he had received the transcript without which he could not be properly briefed.

13 Finally, the Chairman of the Arbitration Tribunal could bear these goadings no longer. The dangling carrot having palpably failed to move the muleish company forward towards good faith negotiation and an earnest addressing of the issues, the Director now brandished the proverbial stick. He quoted that section of the Industrial Relations (Amendment) Act, 1979 which stipulates as follows:–

“Any person who wilfully obstructs or hinders an Arbitration Tribunal in the exercise or performance of its functions under this Act, or who fails to comply with any lawful order shall be guilty of an offence and liable on summary conviction therefor to a fine of five hundred dollars ($500.00) for each offence.”

However, resort to the above provision became unnecessary.

14 Worn down no doubt by the Company's unremitting harassment, The Union finally wilted and withered under the sustained pressure and threw in the towel in these pitiful terms in a letter dated January 11, 1988 to the Arbitration Tribunal:–

“You are hereby been (sic) official (sic) notify (sic) that the Commonwealth Wholesale Retail & Allied Workers Union are (sic) withdrawing its' (sic) matter presently before Arbitration Tribunal with Island Construction Company Limited.

Yours truly yours (sic)

Jennymae Lewis

Executive Consult (sic) Member”

15 Even The Union's grammar had been battered out of sync. It had evidently decided to seek comfort in the maxim, “he who...