The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Supreme Court has delivered a blow to the Government’s plans to prevent civil service ‘double dipping’ by ruling that this would violate an existing industrial agreement.

Justice Ian Winder, in a verdict handed down last Friday, said the Government’s plan to stop public sector workers receiving both their full salary and National Insurance Board (NIB) sickness benefits when ill would breach a recently-registered industrial agreement with a group of educators.

He found that the Government could not arbitrarily, or unilaterally, change the 40-plus year practice of ‘double dipping’ for members of the Bahamas Educators Managerial Union (BEMU) as a result of their July 15, 2015, industrial deal.

This permits the union’s members, middle management and supervisory employees of the Ministry of Education, Science and Technology, to continue enjoying “better conditions” that may have existed prior to the industrial agreement’s signing until both the BEMU and the Government agree to any changes.

These “better conditions” included the ‘double dipping’ on NIB sickness benefits, thus creating an obstacle to the Government’s plans to conserve scarce Bahamian taxpayer resources by eliminating the practice.

Both the Ministry and the Government argued that the latter had yet to ‘give effect’ to the policy change, but Justice Winder said an end to ‘double dipping’ was clearly what it intended to implement.

“The evidence before me clearly demonstrates that this retention of full salary and receipt of the sickness benefit was a practice which persisted with the full knowledge of the Government of the Bahamas,” Justice Winder found.

“The practice, which has been colloquially described as ‘double dipping’, was the state of affairs which had existed in the public service since the establishment of the National Insurance Board (in 1974, some 42 years ago).”

Justice Winder emphasised that the January 19, 2016, circular on NIB sickness benefits clearly “represented a change in policy”.

He acknowledged that neither the National Insurance Act, nor the social security scheme’s various Boards, would have anticipated public sector employees obtaining both sickness benefits and their full regular wage, and that successive governments would turn a ‘blind eye’ to a practice that has cost the Bahamian taxpayers millions of dollars.

The Government, Justice Winder added, continued to pay sick employees their full salary despite having to confirm to NIB that these people were really ill and absent from work.

Pointing out that the Government and the BEMU were covered by their industrial agreement, he ruled: “On the facts, therefore, double dipping was not provided in the industrial agreement, but enjoyed by employees, and was a practice which existed prior to the industrial agreement.”

This, Justice Winder said, meant that ‘double dipping’ was covered by the agreement’s article 8.18, which deal with the continuing “better conditions” that BEMU members are able to enjoy.

He therefore granted a declaration in the BEMU’s favour, that the Government’s plans to eradicate ‘double dipping’ “would amount to a breach” of the BEMU’s industrial agreement unless both parties consented to the change - something that is highly unlikely from the union’s perspective,

Obie Ferguson, the Trades Union Congress’s president, told Tribune Business that Justice Winder’s ruling was significant in terms of showing the extra protection workers/unions have when their industrial agreements are registered by the Registrar of Trade Unions.

He added that it also emphasised that long-standing practices, which are contained in industrial agreements, cannot be changed “arbitrarily” - only with the consent of both parties.

“The message one can derive from that ruling is that where there is a registered industrial agreement, the terms of that agreement must be adhered to by the parties,” said Mr Ferguson, who represented the BEMU.

“With a practice that has been in effect for 40 years, you can change it, but you must change it with the union. You can’t arbitrarily change a practice that has been in effect from when NIB was incorporated.”

Mr Ferguson added that when industrial agreements were registered, any disputes or changes to its terms have to be resolved “within the four corners of that document”.

He explained that, once registered, industrial agreements had the force of statute - rather than common - law, which employers had difficulty in coming to terms with.

Describing the BEMU judgment as “a very significant ruling”, Mr Ferguson said its implications went beyond just this particular union, and could impact all public sector workers - plus those in the private sector that are covered by industrial agreements.

The Christie administration’s move to finally end ‘double dipping’ is likely to have been forced on it by the Government’s strained fiscal position, and at least indicates it is conscious of the need to conserve scarce taxpayer dollars.

The circular triggering the BEMU dispute, sent to its president, Carlton Wildgoose, on January 19, 2016, served notice of the Government’s intent to enforce section 22 (1) (b) of the NIB Act, which allows employers to modify wage payments to workers during sick and maternity leave.

“You will be aware that for years public servants have been receiving both sick benefits and full salary,” Mr Wildgoose was told. “However, in accordance with the Government’s decision this practice now ceases and the following policy will prevail with effect from February 1, 2016.”

Public officers taking more than four consecutive days of sick leave were to be required to submit NIB claims within three months, with salary reductions “equal to the amount of the claim” befalling those who failed to do so.

NIB was also to provide quarterly reports to the Government on claims made by public sector workers, so the Treasury could make the corresponding salary deductions.

It is unclear why the Government has yet to move, given that ‘double dipping’ continues to cost Bahamian taxpayers thousands of dollars.