By NEIL HARTNELL
Tribune Business Editor
nhartnell@tribunemedia.net
A dissenting Court of Appeal judge branded a resort’s argument that the hotel union ceased to exist as “Alice in Wonderland”, adding that common sense would “fly out of the window” if it was accepted.
Justice Abdulai Conteh, who is gaining something of a reputation as a dissenter, having also gone against the majority in the Bimini dredging litigation, said the only evidence to back the Coral Sands resort’s case came from a May 10, 2012, telephone conversation with the hotel union’s former general secretary,
The Harbour Island-based resort’s president, Thomas Sherman, had alleged that in the conversation Leo Douglas had with himself and his attorney, Ferron Bethell, the former Bahamas Hotel, Catering and Allied Workers Union (BHCAWU) executive said he could not recall it complying with the Industrial Relations Act’s transitional provisions.
These required all unions to bring their constitutions into compliance with the new Act within six months of its March 1, 1971, implementation. Failure to do so meant any union would have “ceased to be a union that is registered under this Act”.
This formed the basis for Coral Sands’ Judicial Review action, which challenged the Minister of Labour’s decision to recognise the hotel union as the bargaining agent for its non-managerial employees on February 21, 2012.
The action was predicated on the grounds that non-compliance in 1971 meant the hotel union had ceased to exist, and therefore had no legal standing to act as a bargaining agent for workers at Coral Sands or any other hotel property.
The Coral Sands case was akin to an earthquake in the trade union movement, and last month forced the Government to pass union-saving legislation that saved others - in addition to the hotel union - from being seen as non-existent.
Chief Justice, Sir Michael Barnett, had ruled in favour of the hotel union on October 10, 2013, and Justice Conteh in his dissenting verdict said both sides shared the “burden of proof”.
While Coral Sands and its parent, CMK Holdings, had to prove the union had not amended its constitution and complied with the Act, the union and government had to prove the opposite and show this was registered with the Registrar of Trade Unions.
Justice Conteh, noting that Mr Douglas was not called as a witness or to swear an affidavit, said Coral Sands’ entire case rested on the alleged phone conversation.
Finding it had not met its burden of proof, Justice Conteh said there was a “surfeit of evidence” to back the hotel union from past and former officials, and trade union registrars.
Weighing the two, Justice Conteh said: “It is therefore somewhat incredulous as contended for [Coral Sands] that the union had ceased to exist, and could therefore not be designated a bargaining agent.
“This would fly in the face of uncontroverted evidence of the relevant officials, and would make common sense, like in Alice in Wonderland, fly out of the window when Alice walked through the door.”
Justice Conteh said the phone conversation with Mr Douglas was not “reliable peg on which the appellant could reasonably hang its case with any degree of cogency”.
He added that the union was “alive and kicking”, with a 5,000 membership and acting as bargaining agent for 7,000, with its own laundromat and other facilities.
“It would be grossly inimical to public interest now to question the existence of the union after the lapse of some 40-plus years since the transitional provisions,” Justice Conteh said.
Yet the majority again did not agree with him. In their verdict, written by Justice Christopher Blackman, found that a ruling by then-Chief Justice Dame Joan Sawyer in 1993 left the hotel union in non-compliance with the Industrial Relations Act, and no move was made to act on the constitution changes proposed the previous year.
And, while quashing the bargaining agent recognition granted by the Minister of Labour on February 21, 2012, Justice Blackman said subsequent legislation enacted by Parliament had “validated the non-compliance” by unions with the 1971 Act.
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