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Union Challenge Dismissed Over Variation Of Overtime

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

THE Court of Appeal has dismissed a union’s challenge to the government’s unilateral variation of its members’ overtime rate in 2010, after concurring with a Supreme Court judge that the union’s existence as the relevant bargaining agent was not valid at that time.

Former appellate President Dame Anita Allen, along with Justices Jon Isaacs and Roy Jones, dismissed the Bahamas Customs Immigration & Allied Workers Union’s legal challenge of Justice Ian Winder’s ruling against its bid to contest the government’s March 5, 2010, order to pay customs and immigration officers a flat rate of overtime.

And in doing so, the appellate judges also affirmed Justice Winder’s finding that at the relevant time, there was an agreement between the government and the Bahamas Public Services Union — the former bargaining agent for the customs and immigration officers – on the issue.

According to the Court of Appeal ruling, the BCIAWU and its president Shandokan Wilson, along with former union president Sloane Smith and nine other appellants, had previously taken legal action over what was termed a “unilateral variation of salaries” by the government stemming from the implementation of a new shift system that was agreed to by the BPSU and the government in 2005.

At the time, the BPSU and the government agreed to the implementation of the shift system upon completion of a compensation study to determine whether remuneration of customs and immigration officers was commensurate with duties being performed by them.

The compensation study was to commence in 2006; however, there was no evidence to suggest if it was ever completed.

On March 5, 2010, the minister of finance gazetted an order that provided for the payment of a flat rate of overtime pay for customs and immigration officers placed at various ports of entry.

The flat rate to be applied was to be based upon the seniority of the officer involved.

The appellants charged that as a result of the new arrangements in 2010 and the appointment of approximately 175 new customs and immigration officers, the amount of overtime paid to them was significantly reduced.

They were placed in three shifts and required to work 40 hours a week and any time worked thereafter would not be overtime but would be considered an additional scheduled shift.

According to the ruling, on October 20, 2010, the BCIAWU was formed and on July 25, 2011, was formally recognised as the bargaining agent for employees in the Customs and Immigration Departments.

At some time in 2012, negotiations began between the government of The Bahamas and the BCIAWU. During the course of those negotiations, differences developed between the parties over what was termed a “unilateral variation of salaries” by the government arising from the implementation of the new shift system.

The union took the view that the proposed salary increase should include the amount lost in overtime pay. This was objected to by the government.

The issue was consequently taken up in the Supreme Court — initiated by the union – for a determination as to whether overtime formed part of the worker’s wages.

However, Justice Winder ultimately found that the BCIAWU, although formed in 2010, was not recognised to represent the customs and immigration officers pursuant to Section 42 of the Industrial Relations Act, and as such could not legally, in 2010, be considered the bargaining agent for those employees.

The evidence before Justice Winder was that the BCIAWU was only recognised as the bargaining agent for immigration and customs officers in 2011.

The BCIAWU and the 11 other appellants filed a notice of appeal on April 18, 2016 containing several grounds of appeal, asking the appellate court to set aside Justice Winder’s findings.

However, the appellate justices said the union’s appeal can be “conveniently reduced” to a single issue: was the BCIAWU a valid, registered bargaining agent for immigration and customs officers on March 5, 2010 when the orders relating to overtime were made?

“The undisputed evidence before (Justice Winder), was that the BCIAWU was only recognised as the bargaining agent for immigration and customs officers in 2011,” the ruling said. “In my view the reference by (Justice Winder), to the union’s existence relates to the BCIAWU’s recognition by the minister as the bargaining agent for the customs and immigration officers and not the fact of their registration as a union.

“The answer to the question raised must be a resounding no, with the result that the appellants fail on this issue.

“For the above reasons the appellants’ appeal must be dismissed and the judgement of (Justice Winder), affirmed with cost to the respondents to be taxed if not agreed.”

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