By NEIL HARTNELL
Tribune Business Editor
nhartnell@tribunemedia.net
Sandals’ refusal to let “the fat lady sing” has “rendered academic” a Court of Appeal verdict that reinstated its legal bid to eradicate its union adversary.
Appeal Court president, Dame Anita Allen, said Sandals Royal Bahamian’s termination of its former 600-strong workforce in mid-August had made their 2-1 majority verdict unnecessary and irrelevant.
In diplomatic language, Dame Anita effectively said the resort and its holding company, West Bay Management, had effectively achieved via the terminations what it was seeking to do with its Judicial Review action.
That goal was to keep the Bahamas Hotel, Maintenance and Allied Workers Union (BHMAWU) out of Sandals Royal Bahamian, and avoid industrial negotiations with it, at all costs.
In delivering the Court of Appeal’s written reasons for restoring the Judicial Review application, Dame Anita implied that Sandals had removed the union by re-hiring just one-third of its terminated workforce.
This ensures that the BHMAWU no longer has the 50 per cent plus one membership among Royal Bahamian’s line staff to ensure it can maintain its status as the recognised bargaining agent.
Acknowledging that it had taken the Court of Appeal more than 18 months to render its written reasons, Dame Anita wrote: “On 15 August 2016..... it was reported that Sandals made more than 600 of its staff members redundant; they cited the resort’s closure for renovations as its reason for the redundancies.
“As at the end of September 2016, it has been reported that nearly 200 of Sandals’ former staff members have been rehired. By virtue of those subsequent events this decision has now been rendered academic.”
While some, especially the trade union movement, view Sandals’ actions as ‘union busting’, the resort did not break Bahamian law via the terminations. It now has a fresh, non-unionised workforce that potentially could be more productive.
However, Appeal Justice Neville Adderley, in his dissenting judgment that rejected Sandals’ appeal, found that while the resort “may have had sufficient motive” to seek the BHMAWU’s annulment, it did not have “sufficient interest” to interfere in union business.
In particular, and giving an insight into the present state of affairs between Sandals and the union, Justice Adderley quoted a September 19, 2006, letter from the resort, which said: “It would be difficult, if not impossible, to have a constructive working relationship with the Maintenance [the union].”
“That proved to be a prophetic statement by [Sandals],” Justice Adderley said wryly, implying that the resort chain had done everything possible in its power to avoid treating with the BHMAWU.
This was despite the Privy Council ruling in 2011, which affirmed the union as the recognised bargaining agent for Royal Bahamian’s line staff.
“Yet, to date, because of various events apparently initiated by the appellant [Sandals], the appellant has yet to treat in good faith with the union as required by section 42 of the Industrial Relations Ac,” Justice Adderley said.
“The industrial agreement [with the other hotel union] expired in 2013, and it is overdue to treat in good faith. It was on the verge of commencing meetings to treat with the union in 2012 when it raised this application for Judicial Review.”
Justice Adderley continued: “If the appellant [Sandals] were to be successful in its Judicial Review, it would will never have to treat with the union.... Nor would they have to contend with a strike vote that was pending.
“It seems to me that if the appellant is acting in good faith and wishes to treat with the union, it cannot be said to be in its interest, and in the interest of good administration, to have the union’s registration cancelled at this stage.”
Justice Adderley said that for the three years prior to launching the Judicial Review action, Sandals had “acquiesced” in the union’s status by deducting dues from members’ salaries, and paying them to the BHMAWU.
Summing up, he added: “The appellant [Sandals] must face the reality that the fat lady has sung. It must live with the reality, which it has for one reason or other avoided since the decision of the Privy Council almost six years ago, that it has to treat in good faith with the union.”
Sandals, though, was not listening to Justice Adderley, and achieved its goals through other means.
The Court of Appeal’s ruling, which follows its oral verdict on April 1, 2015, restores the Sandals’ Judicial Review application - now rendered “academic” - that was originally dismissed by then-Chief Justice Sir Michael Barnett.
The case revolved around whether Sandals could effectively ‘poke its nose’ into the BHMAWU’s business, and if the union had complied with its own constitution and the provisions of the Industrial Relations Act.
It had its genesis in a conciliation meeting between Sandals and the union on February 8, 2012, where those union officers in attendance did not correspond with the list of names provided by the Registrar of Trade Unions.
The dispute over the union’s officers provoked further claims that the union had never held proper elections for its officers, in breach of the BHMAWU’s constitution, and failed to file annual returns as mandated by the Industrial Relations Act.
The Registrar of Trade Unions (director of labour) had previously written to the BHMAWU asking it to correct these deficiencies on March 6, 2009. However, Sandals was unable to gain confirmation from the Registrar that the union had complied in correspondence sent after the February 8, 2012, meeting.
As a result, the resort initiated Judicial Review proceedings, seeking an Order requiring the Registrar to cancel the BHMAWU’s certificate of registration on the grounds of its non-compliance.
Sir Michael, though, dismissed the action on the grounds that Sandals had failed to initiate the Judicial Review within six months of the events complained of, as stipulated by Supreme Court rules.
And he also found that Sandals lacked “sufficient interest” in the matter, as it was an issue for the union, its members and the Registrar of Trade Unions to deal with.
The Court of Appeal made no finding on the delay in bringing the Judicial Review, with the Registrar of Trade Unions arguing that Sandals was ‘out of time’, since it had been aware of the union non-compliance since 2009.
The court, though, suggested that Sir Michael had “erred” by not assessing whether Sandals had only become aware of the union’s alleged failure to comply with the Registrar’s requirements in 2012.
As for “sufficiency of interest”, the BHMAWU argued that Sandals had none since it was not a member, thus ensuring it had “no stand” to bring the Judicial Review.
And the Registrar of Trade Unions alleged that the resort had no right to interfere in internal union business, especially given that it had failed to show how the matter would “negatively” impact it.
However, Dame Anita found that it was impossible for Sandals to “turn a blind eye” to possible illegality involving the union seeking to represent its line staff, and with whom it may have to negotiate an industrial agreement.
Finding in favour of Sandals’ appeal, she wrote: “Bearing in mind that West Bay [Sandals] was the employer of all those represented by the union, and the other party to the negotiation of an industrial agreement, and also, that following those negotiations, West Bay would be required to enter into an industrial agreement with the union.....
“Could it be said, in these circumstances, that West Bay did not have an interest in the compliance of the Union with the laws of the land and in the Registrar’s decision not to cancel its registration pursuant? “Could the courts require West Bay to turn a blind eye to the possible patent illegality, and to negotiate with a union which possibly should not legally exist?”
Answering ‘no’, Dame Anita and fellow Appeal Justice, Jon Isaacs, found in favour of Sandals/West Bay Management and allowed the appeal.
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