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Our trade union legislation takes a strong stand against unfair practices. This applies to all the parties, whether employers, trade unions or workers in bargaining units. It also applies to persons on the outside seeking to influence the outcome of matters of interest to the parties. And persons are penalized for engaging in such practices. For example,

• Where a party believes that a poll has not been conducted according to law, and its results do not reflect the true wishes of the eligible voters, that party is entitled to apply to the Industrial Relations Tribunal to void the poll, that is to say, to disregard the results. In that event, the Tribunal may void the poll and advise the Minister to cause another poll to be held.

• Persons are prohibited from influencing or trying to influence the results of a poll. As to persons not part of the bargaining unit, such prohibitions include seeking to find out how an employee has voted or intends to vote; giving or promising money to an employee to get him or her to vote or refrain from voting; giving or promising money as a result of an employee having voted or refrained from voting; accepting any money or gift as a reward for getting any employee to vote or not vote; giving food, drink, entertainment or such thing to an employee so as to get him or her to vote or not vote; doing so because an employee voted or did not vote; removing or otherwise tampering with any notice required to be posted in connection with a poll; willfully obstructing any person in the execution of any function or duty relating to the conduct of a poll.

• As to employees involved in a poll, they are prohibited from accepting any manner of bribery. They are specifically prohibited from receiving or agreeing to receive any "money, gift, loan, reward, office or place of employment," either for themselves or for other persons, for voting or agreeing not to vote.

• Further, employees are prohibited from accepting or taking any food, drink, entertainment or the like from any person where the intent of that person is, on one hand, to induce the employee to vote or not vote or, on the other, to reward the employee for having voted or not voted.

RECOGNITION OF BARGAINING AGENT

• As to managerial employees, a trade union may make a claim to be recognized as the bargaining agent for a managerial employee. But where a union is recognized by an employer as the bargaining agent for a bargaining unit of that employer, and that bargaining unit comprises or includes employees of that employer, that trade union cannot make such a claim. Nor can the employer recognize such a trade union as bargaining agent for that managerial employee.

• Unlike the case of employees, a claim for recognition in respect of a managerial employee may be made at any time.

• Where an employer receives a claim in respect of a managerial employee, the employer has no option but to recognize that trade union as the managerial employee's bargaining agent.

•Two or more trade unions may make a joint claim to be recognized as joint bargaining agent for a managerial employee. In that case, the trade unions are to be treated "as though they were a single trade union."

• Any employee in a bargaining unit may apply to the Minister to cause a poll to be taken among the employees in that bargaining unit to determine whether or not they wish the recognized trade union to continue to be their bargaining agent.

• Where such an application is made the trade union, within seven days of receipt of the application by the Minister, may relinquish its recognition as bargaining agent for the employees in question.

• A managerial employee may at any time terminate the recognition of a trade union (singularly) or trade unions (jointly) as his or her bargaining agent. This is done by giving the employer and trade union(s) notice to that effect.

• Negotiations between a recognized bargaining unit and an employer must be "in good faith".

• It is not uncommon that while a trade union is recognized as the bargaining agent for a bargaining unit, another trade union makes a claim to be recognized in respect of the same bargaining unit. In such a situation, so long as the new claim is pending, the employer and the bargaining agent cannot go ahead and conclude an industrial Agreement.

• An industrial Agreement must be for a term of not more than three years, that is to say, thirty-six months, from the date on which it came into effect.

• An industrial Agreement is binding on (a) the bargaining agent, (b) every employee in the bargaining unit or the managerial employee, as the case may be, and (c) the employer.

UNFAIR PRACTICES

• It is unlawful for a trade union to declare or authorize a strike unless (a) the strike has to do with a trade dispute to which that trade union is a party; (b) the dispute was reported to the Minister and fourteen days have since passed; and (c) the Minister has failed to refer the dispute to the Tribunal for arbitration.

• An employer may not lawfully declare or authorize a lockout, that is to say, shut out its employees, except as in the case of a lawful strike.

• It is against the law for an employee to participate in a strike unless (a) the strike is in respect of a trade dispute that directly involves the employee's bargaining unit, and (b) the circumstances under which a trade union may lawfully call or authorize strike action have been met.

• An employee does not have a right to receive pay while on an unlawful strike.

• It is against the law for an employer, or a person acting on his or her behalf, to engage in behaviour such as employing a person on condition that he or she not join, or discontinue membership of, a trade union. Or, to refuse to employ a person, or continue that person's employment, or otherwise discriminate against that person, because he or she is a member or officer or representative or delegate of a trade union.

• An employer is not entitled to refuse to employ, or continue to employ, or discriminate against, any person for taking part in union activities outside working hours. Or, if during working hours, with the employer's express or implied consent.

• Further, it is against the law for an employer to intimidate or threaten any employee, including with dismissal, so as to prevent that employee (a) from becoming, or ceasing to be, a member, officer, representative or delegate of a trade union; (b) from freely exercising his or her right to take part in a poll for union recognition; (c) from giving evidence before a Tribunal; or (d) from making an application to the Tribunal.

• In the same vein, a trade union or a person acting on its behalf is prohibited from (a) taking part in, or interfering with, the formation or management of an employers' organization; or (b) intimidating or coercing a person because that person has either given evidence before a Tribunal or has made an application to the Tribunal.

PEACEFUL PICKETING

• But, peaceful picketing is lawful. The aim of such industrial action is to use non-violent means to persuade a person or persons to work or not work. Section 22 of the Trade Unions and Trade Disputes Act puts it this way: Peaceful picketing is "in contemplation or furtherance of a trade dispute, to attend at or near a house or place where a person resides or works or carries on business or happens to be, if (one or more persons) so attend merely for the purpose of peacefully obtaining or communicating information or of peacefully persuading any person to work or abstain from working." For an employer or trade union, the fine is $500.00. for any other person it is $300.00. OFFENCES

There are two categories of offences: one, particular offences and, two, general offences. As to particular offences:

• An employer who declares or participates in an unlawful lockout is liable to a fine of $5,000.00 in a Magistrate's Court and any person who declares or authorizes such action on behalf of an employer faces a fine of $2,000.00.

• By the same token a trade Union which declares or authorizes an unlawful strike is liable to a fine of not more than $5,000.00, and any person doing so on behalf of a trade union, or on his or her own behalf faces a $2,000.00 fine.

• Every employer or trade union or individual found to have failed to comply with any person of the Industrial Relations Act is liable to a fine. For an employer or trade union, the fine is $500.00; for any other person it is $300.00.

• Further, an employer or managerial employee who takes part in an unlawful strike faces a fine of $500.00.

• Any person who fails to pay the fine imposed for any such offence is liable to imprisonment for six months.

• Where the offence is committed by a company, "every director, manager, secretary or other office of the company" will be held liable, unless the officer in question proves that the act or omission which gave rise to the offence took place without his or her knowledge or consent.

As to general offences, anything done or not done by any person in violation of the trade union legislation is classified as a general offence, if the act or omission is not stated to be a particular offence.

Most importantly, no employer or officer of a company, and no trade union, employee, managerial employee or any other person will be prosecuted unless the Director of Public Prosecutions (D.P.P.) gives her or his consent.

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

Copyright © William Para Riviere, June 2014


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