The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Supreme Court has paved the way for new elections at the Water & Sewerage Corporation’s line staff union after dismissing a fresh challenge to the decision not to certify the original poll.

Justice Loren Klein, in a February 15, 2022, verdict, rejected the Judicial Review bid by Dwayne Woods, the Bahamas Utilities Services & Allied Workers Union (BUSAWU) president, and his slate of candidates, by backing the reasons given by Dion Foulkes, ex-minister of labour, not to recognise the original poll.

And, in so doing, the judge discharged an injunction that previously prevented the registrar of trade unions, who is also the director of labour, from supervising a new election for the BUSAWU. Noting that Mr Woods and his team had mounted multiple unsuccessful legal bids to have the original vote certified, Justice Klein said there were missed opportunities to resolve the dispute sooner.

In particular, he questioned Mr Foulkes’ assertion that he was prevented by another Judicial Review proceeding from responding earlier to the letter from Mr Woods’ team challenging the decision by then-registrar of trade unions, John Pinder, not to certify the poll.

The letter to the minister kickstarts the statutory appeals process set out by the Industrial Relations Act, but this did not start for more than a year because Mr Foulkes held it in “abeyance” on the grounds that legal proceedings were ongoing. Justice Klein wrote: “I pause at this point to observe that I entertain some doubt as to whether the minister’s apprehension of the legal position was correct.

“An injunction had been granted to prevent the registrar calling elections pending the substantive hearing of the Judicial Review, but there was nothing to prevent the minister forging on with the statutory appeal. As pointed out by both courts, the Industrial Relations Act ordained him the first port of call for any appeal of the registrar’s decision.

“In this regard, there was a two-week window between the submission of the appeal letter of July 30, 2020, apparently tendered after the respondents took the alternative remedy point at the leave hearing, and the hearing set for August 17, 2020, during which the minister was free to consider the appeal and, in fact the applicants (Mr Woods and his team) were urging his intervention.”

Justice Klein said there was also a six-week window between the Supreme Court’s verdict in that case and an appeal being filed. “So there were two missed opportunities for the minister to have dispatched the appeal,” he wrote.

[”Had the minister availed himself of the first opportunity, the Judicial Review proceedings before Justice Winder might have been averted or, at the very least, recast as a review of the minister’s decision - which was the proper decision suitable for Judicial Review in the first place— and the matter might have been put to bed by now..... But this is water under the bridge.”

Mr Woods and his team, in their latest action, this time sought to challenge Mr Foulkes’ decision for not certifying the poll. He backed Mr Pinder’s decision on the basis of two major irregularities.

While the Department of Labour’s Family Island offices had been designated as the only lawful places where the BUSAWU officers’ election could be held, the ballots on Exuma were instead sent to the island administrator’s office on the basis that members preferred to vote there.

Then further concerns over the election’s integrity emerged when it was discovered that the back of all ballot papers had been stamped with the election logo of Mr Woods and his team of candidates for offices that included vice-president, secretary general and treasurer.

Mr Foulkes wrote to Mr Woods: “Firstly, I have seen a sample of the ballot used on the day of the election, and your election team symbol was stamped to the back of the same. This action compromised the fairness of the poll and the ballot was also considered to be influential.

“Secondly, in my capacity as minister of labour, I executed a designation certificate giving Leslie Curtis, a public officer with the Department of Labour’s Exuma office, the power to supervise the election of officers poll. The ballots for the poll were sent to the Exuma administrator’s office and members of the union also voted at that location.

“The Exuma island administrator was not designated with supervision powers and the purported exercise of such powers was not valid, and the ballot could not be certified as being properly taken. It is also my understanding that it was your decision to change the polling station without following the proper statutory procedure.”

Justice Klein dismissed the Judicial Review application by Mr Woods and his team, and paved the way for new elections to be held.