The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

A Supreme Court judge has ruled against the Water & Sewerage Corporation’s practice of docking the salaries of union members in a bid to end “double-dipping” in relation to sickness and maternity benefit claims, ordering that the corporation reimburse and/or refund all monies taken from union members as a result of the “ultra vires” exercise.

Justice Gregory Hilton, in his January 6, ruling, said WSC’s attempts at eliminating the practice of receiving National Insurance Board (NIB) sick pay benefits and salary while on sick leave by withholding salary payments equivalent to the claims, was “constrained” by Article 32.07 of its industrial agreement with the Bahamas Utilities Services and Allied Workers Union (BUSAWU), which speaks to “enjoyment of better conditions,” as well as Section 4 of the Employment Act (EA).

Furthermore, Justice Hilton noted that Section 51 (1) of the Industrial Relations Act (IRA) makes the industrial agreement “binding” on both the BUSAWU, the plaintiff in the action, and WSC, the defendant, effectively putting an end to the deductions since the corporation started making them in late 2015.

Justice Hilton especially noted that WSC’s submission that “double-dipping” is “contrary to the public interests and against public policy” did not “find favour with the court,” as he said if “this were indeed the case, it should and could have been expressly incorporated” in the industrial agreement signed between the two parties in August 2015.

Justice Hilton also said it is “not in dispute” that it was a “long standing practice and custom” for BUSAWU members to receive full salary in addition to sickness or maternity benefits from NIB, and that it was submitted by BUSAWU, “without challenge” by WSC, that “this was as a result of a negotiated position between the plaintiff and the government many years prior.”

Justice Hilton also said notwithstanding WSC’s previous discussions with the union regarding their intent to put an end to the “double-dipping,” the corporation “must have been aware” of the union’s “objection or disagreement with the proposed change in policy” prior to the industrial agreement’s signing, but “for unspecified reasons did not have this change in policy made a part of the new industrial agreement.”

Proof of the union’s discontent with the proposed changes, Justice Hilton said, was evidenced in a letter signed by BUSAWU President Dwayne Woods on March 13, 2015, in response to a letter from WSC Assistant General Manager of Human Resources Cheri Hanna in October 2014, in which she informed the union of the proposed changes.

The union subsequently commenced the action against WSC via a writ of summons filed on March 10, 2016, asserting that the letter and the change in policy constituted a unilateral variation of the industrial agreement and the contract of employment for BUSAWU members, and in particular the relevant sections of the union’s industrial agreement, IRA, and EA.

WSC filed an appearance on June 27, 2016 and a defence on July 20, 2016, asserting that the deduction of monies from the salaries of BUSAWU members was lawful, relying upon the provisions of Sections 34 (1) and 39 (1) of the NIB Sickness and Maternity Benefit Claim Regulations, which gives WSC the right to change or modify the practice or policy relation to the payment of wages to an employee during sick or maternity leave by withholding such wages to the extent or in the amount received by the employee for sickness or maternity benefit.

“The court acknowledges that the provisions of Section 22 (1) (b) of the National Insurance Act and Sections 34 (1) and 39 (1) of the National Insurance (Benefit and Assistance) Regulations gives the defendant the right to change or modify the practice or policy relating to the payment of wages to an employee during sick or maternity leave by withholding such wages to the extent or in the amount received by the employee for sickness or maternity benefit,” Justice Hilton said.

“The court, however, is of the view that the defendant’s rights to modify or change this policy is constrained by the provisions of Article 32.07 of the industrial agreement signed by the parties and by Section 4 of the Employment Act 2001; and could only be affected by mutual agreement between the parties.

“The defendant’ submission that the practice colloquially known as ‘double dipping’ is contrary to the public interests and against public policy (and as a result the claims of the plaintiff should be dismissed) finds no favour with the court as, if this were indeed the case, it should and could have been expressly incorporated in the new industrial agreement.

“...The result is that I rule that the change in policy implemented by the defendant as reflected in the letter of October 27, 2014 and the subsequent deductions from the salaries of the employees amount to a breach of Article 32.07 of the industrial agreement.”

Justice Hilton subsequently ruled that WSC’s actions were a breach of the union’s industrial agreement, subsequently ordering that BUSAWU members are entitled to not only the NIB sickness and maternity benefit claims, but that the union members are “entitled to be reimbursed and/or refunded the deductions which have been taken from their salaries.”

He also ordered that WSC is “restrained from continuing to make further deductions of salary from members of the plaintiff bargaining unit who have made NIB claims relative to sickness and maternity”.

BUSAWU President Dwayne Woods, when contacted for comment, told The Tribune that Justice Hilton’s ruling effectively exonerated the union from WSC’s accusatory stance that union members were engaging in double-dipping.

“We knew all along that we were correct in the fact that double-dipping doesn’t exist,” Mr Woods said. “And the judge just took the agreement what we brought to the court, and he saw through the same eyes that the union saw through. So it’s definitely a victory for the people, and under no uncertain terms we try not to get some fame out of this, but to return the victory back to the people.”