Trade Union Law - 1

Quite distinct from those rights and protections legally accorded to them directly as individuals, workers are provided rights and protections indirectly, as members of associations and organisations of workers. Such rights and protections are collective rights. They are enshrined in Section 11 (1) of our Constitution where it is stipulated as follows: "Except with his own consent, a person shall not be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to trade unions or other associations for the protection of his interests."

Needless to say, this right to freely associate and assemble is not absolute. You are not allowed to exercise them in three main situations. One is where to do so would not be in the interest of the defence of our country or of public safety, public order, public morality or public health. Another is where to exercise these rights would prevent other persons from enjoying their own rights to freely associate and assemble. The third is where exercising this right would prevent public officers from properly carrying out their functions.

This right of persons to form or belong to a trade union, so as to protect their interests, is given teeth in legislation such as the Industrial Relations Act, Chap. 89:01 and the Trade Unions and Trade Disputes Act, Chap. 89:03. The following provisions of both statutes should be of special importance to any and all unionized workers.

•No trade union is authorized to do any act in pursuit of its mission unless it has first been registered under the law. If the trade union fails to register, it will be dissolved within three months of the date of its formation.

•The phrase, "Registered trade unions" does not include the Dominica Association of Industry and Commerce (DAIC) or the Dominica Employees' Federation (D.E.F).

•Not all workers are "employees" of an employer. An employee is, so to speak, an ordinary worker. A "managerial employee" is at a higher level. He or she is a worker with authority from the employer to take action, including to hire employees, to dismiss them and to suspend them without pay. Such a worker is expected to know what the financial position of his or her employer is. A third category of employee is, so to speak, a maker of policy. He or she is a person who is either responsible for making policy in the employer's business, or one whose advice is listened to by the employer when policy is being made.

•"Business" includes a trade, an undertaking, an operation, and an establishment like the Public Service.

•"Bargaining unit" means the group of employees that is recognized by the employer as being represented by a particular trade union in matters between these employees and their employer.

•"Bargaining agent" means the particular trade union representing either a bargaining unit or a managerial employee employed by the employer.

RIGHTS OF TRADE UNIONS

•Normally three main categories of matters come up for negotiation between the bargaining agent and the employer: one, making an industrial agreement; two, renewing or revising such an agreement; and, three, resolving any dispute or difference that may arise between the parties.

•Where it is not clear whether a person is an "employee" or a "managerial employee", the question must be referred to the Industrial Relations Tribunal hearing the matter. And the Tribunal shall decide. But its decision may be appealed to the High Court within seven days of the making of the decision.

•An employer has no authority under the law to prevent any of his or her workers from forming or joining a trade union. Neither does an employer have authority to force a bargaining agent upon its workers. This means that employees have a right to a bargaining agent of their own choosing.

•A trade union has a right to make a claim to an employer that it represents a majority of employees in a bargaining unit and, on that basis, should be recognized as the bargaining agent for that bargaining unit.

•If there is no industrial Agreement in force, and there is no recognized bargaining agent for the particular bargaining unit, a claim for recognition may be made at any time.

•Where an industrial Agreement is in force, such a claim may not be made earlier than four months before the agreement is due to expire. Nor may it be made later than three months from the expiration date of that Agreement.

•It is not unusual for a trade union to be recognized as the bargaining agent for the bargaining unit, but, twelve months after the date of such recognition, the parties have not agreed upon an industrial Agreement. In that case a competing trade union may claim recognition for that bargaining unit at any time between the end of that twelve-month period and the date when an industrial Agreement is concluded.

•And where an industrial Agreement in respect of a bargaining unit has come to an end, and no new Agreement in respect of that bargaining unit has been made, a claim for recognition may be made by another trade union after the passage of six months from the date on which the industrial Agreement expired. But, most importantly, if the trade union makes application to the Industrial Relations Tribunal, the Tribunal has authority to entertain the claim before the end of that six-month period.

CHOOSING YOUR UNION

•Where a trade union makes a claim for recognition, and there is no bargaining agent for the bargaining unit in question, the employer within fourteen days after receiving the claim must exercise one of two options. The employer either recognizes that trade union as the bargaining agent for that bargaining unit. Or, the employer serves the trade union and the Minister Responsible with notice in writing doubting the trade union's claim to be so recognized. Such notice must specify the facts on which the employer's doubts are based. Where this happens, the matter must be resolved by holding a poll of workers in the particular bargaining unit.

•If the employer fails to give such notice within fourteen days of receipt of the claim, the employer will be taken to have given recognition to the trade union claiming recognition.

•Quite often a claim for recognition is made, while another trade union is recognized as the bargaining agent for the particular set of employees. When this happens, the employer must, not within fourteen days but, immediately give notice to the trade union claiming recognition, as well as to the Minister Responsible, that he or she will not grant recognition to the new trade union unless required to do so as a result of a poll.

•It may also be the case that no trade union is recognized as the bargaining agent for a bargaining unit, and two or more trade unions make claims upon an employer for recognition. In that eventuality, the employer must also immediately give notice of these claims to the trade unions claiming recognition, as well as to the Minister Responsible, that recognition will not be given to any claimant until the results of a poll clear the way.

•Most importantly, the Minister Responsible, in determining the competing claims of trade unions, may order separate polls. Where that is done, "the union whose claim was first received shall be entitled to have its claim determined first".

•Take the case of a poll held in respect of claims made by two or more trade unions pertaining to a bargaining unit without a recognized bargaining agent. It is possible that none of the trade unions receive majority support of the employees. But if, where that happens, the ballots cast in favour of all the trade unions involved in the poll amount to more than 50 per cent of the number of employees eligible to vote in the poll, a second poll must be taken.

•In that second poll the employees must be given a choice as to "whether they wish the trade union for which the largest number of votes was cast in the first poll to be their bargaining agent."

And, finally, where a poll of employees is to take place, the employer must take "all necessary steps" to ensure that all employees eligible to vote are given "an opportunity to vote". More particularly, they must be given time off to do so. Further, an employee's absence from work for the purpose of taking part in a poll cannot be cause for his or her employer to deduct anything from the employee's pay. Neither can such absence from work be reason for the employer to impose any "financial or other penalty" on that employee.

(Dr William Para Riviere is an Attorney-at-Law)

Copyright © William Para Riviere, June 2014