Fundamental Conventions GAP ANALYSIS MATRIX THE BAHAMAS

Transcription

1 Fundamental Conventions GAP ANALYSIS MATRIX THE BAHAMAS

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3 FOREWORD In May 2015, the Caribbean Employers Confederation (CEC) and the Caribbean Congress of Labour (CCL) entered into a Memorandum of Understanding on joint efforts with respect to the legislative and regulatory framework within CARIFORUM countries. CEC and CCL also agreed that it was necessary to undertake joint efforts to support the understanding, application and implementation of regulatory requirements focusing on the EPA Social Chapter which is in keeping with their commitments under the Project 1 funded by the European Union. In this regard, they agreed to jointly uphold and advocate for the rights and principles enshrined in ILO Conventions addressing the issues of the elimination of child labour, forced labour, discrimination and the right to freedom of association and to bargain collectively. Most countries of CARIFORUM have ratified all eight of the ILO Fundamental Conventions covering this platform of human rights considered foundational for the realization of Decent Work. Against this backdrop, it was decided to undertake a review of national legislation in force in the region to understand to what extent current legislation was compliant with the obligations undertaken by member States by their ratification of these Conventions. The gap analyses have been completed on an individual country basis and carried out between March 2016 and March They will provide the affiliates of the CCL and the CEC with a resource to develop bipartite advocacy and action to reform national legislation where it has been found not to be in strict compliance with the provisions of the respective Conventions. In addition, the gap analyses will provide the CEC and the CCL with a baseline to monitor, assess and advocate for the evolution of legislation within CARICOM and the CARIFORUM countries. Caribbean Employers Confederation (CEC) September 2017 Caribbean Congress of Labour (CCL) September The full name of the Project is: Challenges to CARIFORUM Labour, Private Sector and Employers to fulfil their EPA Obligations: Caribbean Employers Confederation and the Caribbean Congress of Labour Component of the Support to Facilitate Participation of CAIFORUM Civil Society in Regional Development and Integration Process

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5 FUNDAMENTAL CONVENTIONS - GAP ANALYSIS MATRIX Name of the country analized: The Bahamas Disclaimer This gap analysis is based on the information publicly available at the time of preparation. The information therefore may not reflect the current situation, and may not have taken into consideration all relevant legislation and. In addition, this analysis covers only laws and regulations (mainly Acts), and does not cover decisions or judgments of court(s) or tribunal(s) which may impact the way in which the laws are interpreted or implemented. The results of analysis are not validated by the government. This analysis should therefore be considered a starting point for consultations and joint action. Main provisions of the The right to freedom of association is more clearly 1 Part I. Freedom of association and the effective recognition of the right to collective bargaining Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) Article 2 Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation. [For Articles 2-5 and 7] Q1. Which legislation provides for the rights provided for under Articles 2, 3, 4, 5 and 7 of the Convention? General provisions The Bahamas Constitution, 1973 (the Constitution) in Article 15 (b) provides that every person in The Bahamas has the fundamental right to freedom of conscience, of expression and of assembly and association. This right is subject only to respect for the rights of others. Constitution and general provisions The Ministry of Foreign Affairs Act, 2014restricts a category of public servants access to freedom of association and collective bargaining. In relation to sections 72 and 74 of the IRA concerning essential services, while there is no specific definition of the ILO of the term essential law and/or Section 6of the Ministry of Foreign Affairs Act, 2014 should be removed from the Act. (See Digest of the CFA, para.230. See also para. 583 on the definition of the term essencial service.) Based on the examples of essential services indicated in the Digest

6 described in Article 24 which provides for a person s right to form and belong to a trade union or other association for the protection of his interests. However, members of the discipline force are excluded from this entitlement. Members of the disciplined force are, by virtue of Article 31 (1) of the Constitution, (a) a naval, military or air force; (b) the Police Service of the Bahamas; (c) the Prison Service of the Bahamas; and (d) any other force or service specified by an Act of Parliament to be a disciplined force. In this connection, the Ministry of Foreign Affairs Act 2014 provides in section 6 that the foreign service is a disciplined force for the purposes ot Chapter III and Article 31 of the Constitution. The foreign service in the Act refers to those public servants who services, the Committee on Freedom of Associaiton has indicated: The following may be considered to be essential services: the hospital sector; electricity services water supply services the telephone service the police and the armed forces the fire-fighting services public or private prison services the provision of food to pupils of school age and the cleaning of schools air traffic control (Para 585. Digest of decisions of the CFA). In light of this, the sewage or waste disposal service may not be considered as one of the essential services. Public sector law and/or of decisions of the CFA, cosideration may be given to the removal of the disposal of sewage or of any other waste product dangerous from the list of essential services. The IRA should be amended to gurantee the right to organize for prison staff, in line with the comments of the CEACR. 2

7 Q2. How is this Article applied in? Are there any administrative or other practical elements that may make the application of this Article difficult? work in the Ministry, both locally and abroad, for which the Minister of Foreign Affairs has responsibility. Private Sector: The definition of employee stated in Section 2 in the IRA is wide and means any person who has entered into or works under (or, in the case of a contract which has been terminated, worked under) a contract with an employer, whether the contract is for manual labour, clerical work or otherwise, is expressed or implied, oral or in writing, and whether it is a contract of service or apprenticeship, and employer and any reference to employment shall be construed accordingly; No distinctions are made with respect to employees in the private sector and so the provisions of the IRA apply to all workers in the private sector without exception. There is also no distinction made with respect to domestic workers and so as The Industrial Relations Act, 1971 of the Bahamas, Chapter 321 (IRA) does not apply to Prison staff by virtue of Section 3, and so Prison staff do not enjoy the rights provided thereunder, including the right to form and belong to a trade union. In this connection, the Committee of Experts on the Application of Conventions and Recommendations (CEACR) in its observation published in 2017, stated that the IRA should be amended to recognise the right of Prison staff to organize. (See normlex/en/f?p=1000:1 3100:0::NO:13100:P131 00_COMMENT_ID: ) With respect to the police, sections 27 and 28 of the Polic law and/or 3

8 they fall within the definition of employee in the IRA they derive the rights and responsibilities contained therein. Public Sector: See under General provisions concerning the Ministry of Foreign Affairs Act 2014 which designates the foreign service as one of the disciplined forces for whom the Constitution excludes its guarantee of the freedom of association. Act, 2009 sets out the same prohibitions for officers as those provided in sections of the Polica Act, It is, however, uncertain whether the 2009 Act is in force since it requires a gazetted notice, which is not found, and bears only an assented date. law and/or Sections 72 and 74 of the IRA refer to disputes in the essential service which means any service declared by the Governor- General by order to be an essential service and related to: (a) the supply of electricity or water to the inhabitants of any town, village or place; (b) the disposal of sewage or of any other waste product dangerous to the health of the community; (c) the provision of any hospital service; (d) any service essential to the safety of aircraft; (e) the 4

9 fire service, the telecommunications service, or the prison service. law and/or While in Part VI of the IRA makes a distinction is made between essential and non-essential services, there is no difference in how disputes arising in each sector is dealt with, both are subject to reporting requirements and the Minister has the same powers in respect of each. The Public Service Commission General Orders of the Bahamas, 1971 provides in Chapter 16, paragraph 1625 that public officers who are officials of a trade union may be granted leave of up to 6 days to attend to trade union business. At para 945 the Government cautions public servants from breaking the conduct rules while participating in trade union activities. Employees in the public sector: 5

10 The definition of employee as stated in section 2 of the IRA includes all employees, whether on contract or in pensionable positions, and so the provisions of the IRA apply to employees in state enterprises. law and/or Education Act, 1962, Ch. 46 provides that teachers are considered teachers in the public service and are governed by the Regulations in that regard, with respect to appointment, general administration, financial and disciplinary purposes. Their freedom of association is regulated under the IRA by virtue of the definition of employee provided for in section 2 of the Actas there are no provisions in the Education Act which deal with the terms and conditions of employment of teachers. The Police Act, 1965, Ch. 205 defines in section 63 a prohibited association as any trade union or body or association the object of which is to control or influence 6

11 conditions of employment including pay and pensions, other than an association established under section 105. Section 105 deals with an association sanctioned by the Governor General. By section 64 it is unlawful for a police officer to be a member of a prohibited association and contravention of this is punishable by a fine upon summary conviction of the officer, the association and any complicit officer of the association. By virtue of section 65 it is also an offence for an officer to receive a benefit, financial or otherwise from a prohibited association. law and/or Police officers may be members of the association formed under the Royal Bahamas Police Staff Associtaion Act, 1997, Ch, 206 and as members they can bring to the attention of the Commissioner of Police by virtue of section 4 matters affecting their welfare and efficiency, conditions of service including 7

12 Article 3 1. Workers' and employers' organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes. 2. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof. [See under Article 2] pay and pensions, but not matters relating to discipline or promotion of individual members. Part II of the IRA deals with the registration and control of trade unions and essentially provides the registration requirements for the lawful operation of trade unions. The Registrar, an officer of the Ministry, is responsible for the registration of trade unions. No trade union can operate lawfully, on pain of summary conviction of persons involved, unless such a union is registered in accordance with the IRA. Section 8 of the IRA gives the Registrar the power to refuse registration of a trade union if he is satisfied that: the principal objects are not statutory objects; any one or more of the union s objects are unlawful; the name of the trade union applying is too The CEACR in its Observation published in 2017 noted the discretionary power of the Registrar to refuse to register a trade union if he considers that the union should not be registered. It also noted that section 20 (2) of the IRA, under the terms of which a secret ballot for election or removal of trade union officers and for the amendment of the constitution of trade unions shall be held under the supervision of the Registrar or a designated officer, is contrary to the Convention. The Committee also requested the Government to amend sections 74(3), 75(3), 76(2)(b) and 77(2) of the IRA which provides that when a strike is organized or continued in law and/or The IRA should be amended in line with the suggestion made by the CEACR, that is, to amend section 8(1) (e) of the IRA so as to ensure that broad discretionary power is no longer conferred upon the Registrar in relation to the registration of trade unions or employers organizations. Section 20(2) of the IRA should be amended in line with the recommendation of the CEACR to ensure that trade unions can conduct ballots without interference from the authorities. 8

13 similar to an existing union; the constitution fails to comply with the Act; or after applying the rules, the union should not be registered. There are additional requirements to satisfy, more specifically laid out in the First Schedule of the IRA. Part I of the First Schedule, specifically Clauses 1 and 2 also grant the Registrar discretionary power in determining whether a trade union has satisfied the requirement for registration. Section 13 of the IRA provides that appeals against decisions of the Registrar are to be made to the Minister, who possesses discretionary power to reverse or confirm the decision of the Registrar. Section 9 of the IRA requires that the constitution of every registered trade union contain violation of the provisions concerning trade dispute procedure, excessive sanctions, including imprisonment for up to two years are provided. (See ex/en/f?p=1000:13100:0::no: 13100:P13100_COMMENT_ID: ) The CEACR in its Direct Request published in 2017 states that compulsory arbitration to end a collective labour dispute and a strike is acceptable only if it is at the request of both parties involved in the dispute, or if the strike in question may be restricted, even banned in the case of public servants exercising authority in the name of the State, or in a national cricis or essential service in the strict sense of the term. (See ex/en/f?p=1000:13100:0::no: law and/or Sections 20(3) of the IRA should also be amended according to the principle of the right of organizations to freely organize their activities and formulate their programmes. Sections 74(3), 75(3), 76(2)(b) and 77(2) of the IRA should be amended in line with the recommendation of the CEACR. Sections 73, 76 and 77 of the IR should amended in line with the recoomendaiton of the CEACR concerning compulsory artibtration. 9

14 the provisions as prescribed in Part II and III of the First Schedule :P13100_COMMENT_ID: ) law and/or Section 20 of the IRA mandates that the constitution of every registered trade union provides for the taking of a secret ballot when (a) electing or removing an officer (b) amending its constitution or (c) in the case of employees, taking strike action. Where a trade union proposes to take a ballot with respect to (a) or (b) notice must be given to the Registrar and the ballot must be taken under the supervision of the Registrar or an officer designated by the Minister and the ballot must be certified proper or declared void. In the case of a ballot in determining strike action, section 20 (3) requires an officer of the Ministry be present to supervise the ballot to determine whether it is properly taken or the determination can be deemed to be not in accordance with the provision. 10

15 law and/or Section 74(3) of the IRA provides that any person, being an individual, who acts incontravention of any of the provisions of this section shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding one hundred and fifty dollars or to imprisonment for a term not exceeding three months, or to both such fine and imprisonment. Section 75(3) provides that If any person declares, instigates, incites others to take part in or otherwise acts in furtherance of, a strike or lock-out declared by this section to be illegal, he shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding one hundred and fifty dollars or to imprisonment for a term not exceeding three months or, on conviction on information, to imprisonment for a term not exceeding two years: Provided that no person shall be deemed to have committed an 11

16 offence under this section or at common law by reason only of his having ceased work or refused to continue to work or to accept employment. law and/or Section 76(2)(b) provides that If within twenty-four hours of receipt of a notification under subsection (1) any person fails to discontinue his participation in a strike or lock-out, he shall be guilty of an offence and liable, on summary conviction to a fine not exceeding two hundred dollars or to imprisonment for a term not exceeding three months or to both such fine and imprisonment. Section 77(2) provides that any person who contravenes the provisions of subsection (1) shall be guilty of an offence and liable, on summary conviction (a) in the case of an employee, to a fine not exceeding two hundred dollars or to imprisonment for a term not exceeding three months 12

17 or to both such fine and imprisonment; (b) in the case of a union or a member of the executive committee or other governing body of a union, or an employer, to a fine not exceeding ten thousand dollars or to imprisonment for a term not exceeding two years or to both such fine and imprisonment. law and/or [Provisions concerning compulsory arbitration] Section 72 of the IRA provides that the Minister may, after the expiration of the 16 day period or any agreed period thereafter for the purpose of conciliation, refer an unresolved trade dispute in an essential service to the Industrial Tribunal. See under Article 2 above on the definition of essential services. Section 74 of the IRA provides that after the expiration of any extra period of conciliation of a dispute in a non-essential service 13

18 the Minister is of the opinion that the public interest will be served, he may refer the matter to the Tribunal for settlement. law and/or The difference treatment of the dispute by the Minister in the essential and nonessential services exists only in the ability of the Minister in section 73 (which relates to the non essential services), to refer the dispute back to the parties for further consideration. Under section 73 of the IRA the Minister shall refer a dispute in a non-essential service to the Tribunal if the parties have failed to reach a settlement. It is unlawful to engage in strike or lock out action once the dispute has been referred to the Tribunal (section 77(1)). According to section 76(1) a strike which in the opinion of the Minister affects or threatens the public interest may be referred to the Tribunal for settlement. 14

19 Article 4 Workers' and employers' organisations shall not be liable to be dissolved or suspended by administrative authority. [See under Article 2] Section 8 of the IRA gives the Registrar the power to refuse registration of a trade union if he is satisfied that: the principal objects are not statutory objects; any one or more of the union s objects are unlawful; the name of the trade union applying is too similar to an existing union; the constitution fails to comply with the Act; or after applying the rules, the union should not be registered. There are additional requirements to satisfy, more specifically laid out in the First Schedule of the IRA. Part I of the First Schedule, specifically Clauses 1 and 2 also grant the Registrar discretionary power in determining whether a trade union has satisfied the requirement for registration. Gap identified. The IRA appears to give the registrar discretion to decide whether the union violated the IRA or objects of the union are statutory (Section 15), as, for instance, it is the Registrar who would determine whether the registration was obtained for violation of the IRA. (See also the CEACR s observation published in 2017 ( lex/en/f?p=1000:13100:0::no: 13100:P13100_COMMENT_ID: )) The Minister s exercise of his discretionary power in deciding appeals against decisions of the Registrar does not represent an independent and impartial arbiter of grievances arising out of the registration process, especially as the Registrar is designated by the Minister, section 5 refers. law and/or The discretionary power of the Registrar should be limited. In this respect, consideration may be given to defining clearly in the legislation the precise conditions which trade unions must fulfi l in order to be entitled to registration and on the basis of which the registrar may refuse or cancel registration, and of prescribing specific statutory criteria for the purpose of deciding whether such conditions are fulfi lled or not. (See paragraph 302 of Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO available at: 15

20 Section 13 of the IRA provides that any person aggrieved by any decision of the Registrar, including a decision not to register or cancel the registration of a trade union, and refusal to register an amendement to a trade union s name or constitution, may appeal against such decision to the Minister. The Minister possesses discretionary power to reverse or confirm the decision of the Registrar. Section 14 states that the registration of a trade union shall be void once any of its objects is unlawful. Section 15 gives the Registrar the power to cancel the registration of a trade union in certain circumstances, such as; where the registration was obtained by fraud or mistake, for violation of the provisions of the IRA, or where the objects of the trade union are not statutory objects. This structure for the cancellation of the registration of a trade union provided for in the IRA is contrary to Article 4 of C.87 and according to paragraph 687 of the Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, 5 th Edition (CFA Digest of decisions), which states that cancellation of a trade union s registration should only be possible through judicial channels. Paragraphs , General Survey of 1994 on Freedom of Association and Collective Bargaining, 81 st Session, law and/or wcmsp5/groups/public /---ed_norm/--- normes/documents/p ublication/wcms_ pdf) The determination of appeals against decisions made in the registration process should be removed from the jurisdiction of the Minister and placed before an independent tribunal or Court. 16

21 Article 5 Workers' and employers' organisations shall have the right to establish and join federations and confederations and any such organisation, federation or confederation shall have the right to affiliate with international organisations of workers and employers. [See under Article 2] Section 39 of the IRA restricts the ability of trade unions to become members of bodies or federations outside The Bahamas. The discretion rests solely in the Minister to grant a licence to a trade union to attain such membership. Contravention of this provision makes the officer or member of the executive committee or governing body of the union or combination or association, liable to a fine upon summary conviction. Clause 4 of the First Schedule (made pursuant to s.8(2) of the IRA prohibits the Registrar from registering as a trade union an association, federation or congress of trade unions, or body which under its constitution offers membership to trade unions. There is no distinction in the law with respect to the application of section 39 to any particular sector, Private, Public or Public enterprise. The provisions of section 39 and clause 4 of the First Schedule are contrary to the right of workers and employers organisations to establish and join federations and confederations and affiliate with international organisations. The CEACR, in Observation published in 2017 requested the Government to take measures to repeal section 39 on the control of foreign connections of trade unions and federations. (See ex/en/f?p=1000:13100:0::no: 13100:P13100_COMMENT_ID: ) John Pinder, President of the Bahamas Public Service Union noted that while their involvement with the Caribbean Congress of Labour, a regional trade union federation, has not been challenged, the restrictive law and/or Section 39 of the IRA should be repealed in line with the recommendation of the CEACR. 17

22 Article 7 The acquisition of legal personality by workers' and employers' organisations, federations and confederations shall not be made subject to conditions of such a character as to restrict the application of the provisions of Articles 2, 3 and 4 hereof. [See under Article 2] Some Trade Unions in The Bahamas: Commonwealth of the Bahamas Trade Union Congress; National Congress of Trade Unions (Bahamas); Bahamas Airline Pilots Association; Bahamas Hotel, Catering and Allied Workers Union; Bahamas Taxi Cab Union; Bahamas Public Services Union; Bahamas Utility Service & Allied Workers Union; Bahamas Union of Teachers; Bahamas Maritime Port & Allied Workers Union. The IRA provides as follows; Section 24 a registered trade union may in the names of its trustees purchase, lease, sell, let or mortgage land. Section 25 all real property vests in the trustees and members existing at the time and upon the death or removal of a trustee, the property will vest in the remaining trustees. provisions in the IRA continue to exist and may be applied in the future. (See n.com/bahamas-business/40- bahamas-business/ minister-must-sanction-localunion-ties-with-intlorganizations-uttermostnonsense-says-unionist) No gap identified Acquisition of legal personality is not required for registration or operation as a trade union. law and/or 18

23 Article 9 1. The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations. Q. How does the national legislation regulate freedom of association with respect to the armed forces and the police? Section 27 the trustees of a registered trade union or any officer duly authorised have the right to sue and be sued in dealings with the property of the trade union. Damaes, costs and awards to be paid into or out of the trade union shall be paid into or out of the funds of the trade union. Section 28 no person under the age of 16 may be a member of a trade union. No person under the age of 18 may be a trustee, officer or committee member of a trade union. Article 24 (2) of the Constitution restricts the application of the right to freedom of association to members of a discipline force and so these persons are not allowed to form or join trade unions. Persons serving or employed in a disciplined force are excluded from the IRA by virtue of section 3. A disciplined force is defined in Article 3 (1) of the Constitution and relates to; (a) a naval, military or air force; With the exception of the Prison staff, no gap is identified. However, while Convention No. 87 leaves it to each State to decide on the extent to which it was desirable to grant members of the armed forces the rights covered by the Convention (see Paragraph 224 of Digest of decisions and principles of the Freedom of Association Committee of the law and/or With respect to the prison staff, the IRA should be amended (see under Article 2 above). Though the Convention does not require, consideration may be given to the possibility of legisiating the right to freedom of association to cilivan members of 19

24 Article 11 Each Member of the International Labour Organisation for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise. Q. Does the national legislation guarantee the right to organize without any distinction, including managerial and executive staff and employers? (b) the Police Service of the Bahamas; (c) the Prison Service of the Bahamas; and (d) any other force or service specified by an Act of Parliament to be a disciplined force. While the Police Force may avail themselves of the provisions of the Royal Bahamas Police Staff Associtaion Act, 1997, Ch, 206, there appears to be no corresponding arrangement for the members of the Defence Force or other military personnel. Section 53 of the IRA provides that factors which should be taken into account in defining a bargaining unit include, among others, whether separate bargaining arrangements are needed for particular categories of employees, such as supervisors or employees who represent management in negotiation. Right to Organise and Collective Bargaining Convention, 1949 (No. 98) Article 1 Q1. Are there any provisions in the The IRA, Part V which provides for the maintenance of Law and 20 Governing Body of the ILO available at: 5/groups/public/---ed_norm/- -- normes/documents/publicatio n/wcms_ pdf), consideration may be given to the possibilty of legislating the right to freedom of associaiton to civilian members of the armed forces. No gap identified. No gap identified law and/or the armed forces, with a view to limiting the exemption. (See Paragraphs of the Digest)

25 1. Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment. 2. Such protection shall apply more particularly in respect of acts calculated to-- (a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership; (b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours. national legislation that would prohibit denial or cancellation of employment due to trade union membership of a worker? Q2. Does the national legislation provide for protection from any other types of antiunion s? Order and the Protection of Private Rights provides as follows; Section 78 states that no employer shall make it a term of a contract of employment that an employee shall be or not be a member of any trade union and any such term in a contract is deemed void. Any employer in contravention of this provision is liable upon summary conviction to a fine. Section 79 provides that any person refusing to take part in action which is not in compliance with the IRA shall not be expelled from any registered union, removed from office in a union, be liable for any fine or penalty, or the depravation of any right or benefit or disadvantage or disability. Section 82 imposes sanctions against any person who seeks to compel or prevent any person from doing or not doing something that he or she has a law and/or 21

26 legal right to do or not do, by way of intimidation, annoyance by violence or otherwise. law and/or Q3. How is this Article of the Convention applied in? Are there any administrave or other practical elements that may make the application of this Article difficult? The Employment Act, Ch. 321 A of The Bahamas (the Employment Act) applies to any employee, with the exception of the disciplined forces as defined in Article 31 of the Constitution (see under Article 2 of Convention No. 87 for the definition of disciplined forces ). Section 36 of the Employment Act makes dismissal of an employee for trade union membership, taking part in trade union activities or for failing to be a member or refusing to join a particular trade union unfair dismissal which may be dealt with as a complaint by the Industrial Tribunal. The Tribunal may order re-engagement, reinstatemtent or an award of damages to a successful complainant. 22

27 Section 40 also deals with unfair dismissal in connection with a lockout, strike or othere industrial action. law and/or Section 72 makes provision for the substitution of a new employer for the continuation of a complaint lodged by an employee or a trade union before the Tribunal where there is a change of ownership of the business. Article 2 1. Workers' and employers' organisations shall enjoy adequate protection against any acts of interference by each other or each other's agents or members in their establishment, functioning or administration. 2. In particular, acts which are designed to promote the establishment of workers' organisations under the Q1. How does the national legislation ensure that workers and employers organization do not interfere each other, by, among others, prohibiting any measures that would limit independence in finance or operation? Q2. How is this Article of the Convention There appears no legal provision specifically applying this Article of the Convention. The CEACR in Observation published in 2014 noted that the Government was requested previously to adopt legislative provisions to protect workers and employers organizations against acts of interference by each other or each other s agents, accompanied by effective or sufficiently dissuasive sanction. The Committee requested the Government to take the The national legislation should be amended in line with the recommendation of the CEACR. 23

28 domination of employers or employers' organisations, or to support workers' organisations by financial or other means, with the object of placing such organisations under the control of employers or employers' organisations, shall be deemed to constitute acts of interference within the meaning of this Article. Article 3 Machinery appropriate to national conditions shall be established, where necessary, for the purpose of ensuring respect for the right to organise as defined in the preceding Articles. Article 4 Measures appropriate to national conditions shall be taken, where necessary, to applied in? Are there any administrave or other practical elements that may make the application of this Article difficult? Q1. Are there any bodies that would discuss and promote the right to organize? Are they tripartite? Q2. What are the measures envisaged under the national legislation that would be taken if the right to organize is violated? Q. How, through legal or other means, voluntary negotiation between emplyoers and Section 4 of the IRA provides for the establishment of a Joint Advisory Committee which will give advice to the Minister on labour relations matters as may be referred to it by the Minister. Section 41(3) of the IRA imposes a fine not exceeding $5,000 or imprisonment not exceeding 2 years, or both on an employer necessary measures for the adoption of such legislative provisions without further delay, either through the amendment of the IRA or the adoption of the Trade Unions and Industrial Relations Bill, (See ex/en/f?p=1000:13100:0::no: 13100:P13100_COMMENT_ID: ) No gap identified. The CEACR in its Observation published in 2014 has considered that the threshold of the requirement of 50% of law and/or The IRA should be amended in line with the recommendation of the CEACR. 24

29 encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements. workers is encouraged and promoted? who fails to negotiates with a recognized trade union. Section 41 of the IRA states that every employer must recognise as the bargaining agent, for the purpose of collective bargaining, a trade union which has as its members (in good standing) more than 50% of the workers in his employ or the bargaining unit. Where there is more than one union claiming recongnition status the Minister decides which union will be awarded recognition status. the workers in a bargaining unit for a union to acquire recognition is excessive and that if no union represented the abovementioned percentage, collective bargaining rights should be granted to all the unions in the unit, at least on behalf of their own members. (See ex/en/f?p=1000:13100:0::no: 13100:P13100_COMMENT_ID: ) law and/or Section 69 provides that where the Minister receives a report of a dispute pursuant to the Disputes Procedure in Part VI, and he is of the opinion that suitable machinery for settling the dispute exists in any agreement between the parties he may refer the dispute back to them to work out a settlement until same in his opinion is exhausted. By virtue of section 70, after the period of bilateral interaction, 25

30 Article 5 1. The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations. Article 6 This Convention does not deal with the position of public servants engaged in the administration of the State, nor shall it be construed as prejudicing their rights or status in any way. Q. How does the national legislation regulate the issues of the right to organize and to collective bargaining with respect to the armed forces and the police? Q1. How does the national legislation regulate the issues of the right to organize and to collective bargaining with respect to civil servants employed in government ministries and other comparable bodies? there is a period of conciliation called by the Minister (16 days) or such longer period as the parties may agree. See under Article 2 of Convention No. 87 on the right to collective bargaining of the disciplined forces. With respect to prison officers, the Bahamas Prison Officers Association (BOPA) is located on Yamacraw Road, Nassau in the Bahamas, however there is no information available which advises as to the purpose or scope of the Association and there is no mention of it in the Prison Act. See under Article 2 of Convention No. 87. The disciplined forces (the military, the police, prison service and other forces or services desgfnated by law), by virtue of the limitation on their ability to join or form trade unions as prescribed under Article 24 (2) (b) of the Constitution of the Bahamas, are restricted in their right to collective bargaining. See under Article 2 of the Convention concerning the right to collective bargaining of the disciplined forces. See under Article 2 of the Convention concerning the right to collective bargaining of the disciplined forces. law and/or It should be ensured through legislative or administrative measures that the BOPA enjoys the right to the collective bargaining rights under the Convention. See under Article 2 of the Convention concerning the right to collective bargaining of the disciplined forces. 26

31 law and/or Q2. How is this provision of the Convention applied in? Are there any administrave or other practical elements that may make the application of this Article difficult? Part II. Elimination of all forms of forced or compulsory labour Forced Labour Convention, 1930 (No. 29) Article 1 Q. Are there any 1. Each Member of the national legislation, International Labour policy and/or Organisation which ratifies programme to suppress this Convention undertakes to the use of forced or suppress the use of forced or compulsory labour? compulsory labour in all its forms within the shortest possible period. The Bahamas Constitution, Part III provides for the protection of fundamental rights and freedoms. Section 18 states as follows; (1) No person shall be held in slavery or servitude. (2) No person shall be required to perform forced labour. (3) For the purposes of this Article, "forced labour" does not include- (a) any labour required in consequence of the sentence or order of a court; (b) any labour required of a member of a disciplined force in 27 No gap identified.

32 pursuance of his duties as such or, in the case of a person who has conscientious objections to service in a naval, military or air force, any labour which that person is required by law to perform in place of such service; (c) labour required of any person while he is lawfully detained which, though not required in consequence of the sentence or order of a court, is reasonably necessary in the interests of hygiene or for the maintenance of the place in which he is detained; or (d) any labour required during a period of public emergency (that is to say, a period to which Article 29 of this Constitution applies) or in the event of any other emergency or calamity that threatens the life or well-being of the community, to the extent that the requiring of such labour is reasonably justifiable, in the circumstances of any situation arising or existing during that period or as a result of that other emergency or calamity, for the law and/or 28

33 purpose of dealing with that situation. law and/or Article 2 1. For the purposes of this Convention the term forced or compulsory labour shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily. 2. Nevertheless, for the purposes of this Convention, the term forced or compulsory labour shall not include-- (a) any work or service exacted in virtue of compulsory military service laws for work of a purely military character; (b) any work or service which forms part of the normal civic obligations of the citizens of a fully selfgoverning country; (c) any work or service exacted from any person as a Q1. If a national legislation, policy and/or programme to suppress the use of forced or compulsory labour exist, how do they define the term forced or compulsory labour? Q2. Does the national legislation contain any exemption in this regard? The Trafficking in Persons (Prevention and Suppresssion) Act, Ch. 106, section 2 defines forced labour as labour or services obtained or maintained through force, threat of force, or other means of coercion or physical restraint. The term slavery is also defined as the status or condition of a person over whom any or all the powers attaching to the right of ownership are exercised; The exemptions to forced labour as contained in section 18 (3) of the Constitution of the Bahamas and outlined under Article 1 refer. The Prison s Act, section 29 provides for the extra-mural employment of prisoners. It While the term forced labour is defined in a law, it concerns specifically human trafficking. Other relevant provisions are found in various laws including the Constitution and the Prison s Act and the Defense Act. Provisions comprehensively dealing with matters related to forced labour should be developed either as a separate law or as a part of an existing law. 29

34 consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations; (d) any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population; (e) minor communal services of a kind which, being performed by the members of the community in the direct interest of the said states that the Superintendent may grant a licence to a prisoner allowing that prisoner to be outside the prison for certain hours during which time he is employed by an employer so approved by the Visiting Committee and the Superintendent. Section 29(6) goes on to provide that the earnings of a prisoner under extra mural employment are to be paid by the employer to the Superintendent who is allowed to deduct sums for clothing and transport of the prisoner. 29(6) (iii) also allows the Superintendent to deduct sums for the daily cost of board and accommodation of the prisoner in the prison. Also, section 19 of the Defence Act, Ch. 211 provides that any marine of the regular Force whose service expires during a state of war, insurrection, hostilities or public emergency may be retained in that Force and his service prolonged for such law and/or 30

35 community, can therefore be considered as normal civic obligations incumbent upon the members of the community, provided that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services. Protocol of 2014 to the Forced Labour Convention, 1930 Article 1 [For Articles 1-3] 1. In giving effect to its obligations under the Q1. If a national Convention to suppress forced legislation, policy or compulsory labour, each and/or programme to Member shall take effective suppress the use of measures to prevent and forced or compulsory eliminate its use, to provide to labour exist, do they victims protection and access contain measures to: to appropriate and effective (i) prevent and remedies, such as eliminate its use; compensation, and to sanction the perpetrators of forced or compulsory labour. 2. Each Member shall develop a national policy and plan of action for the effective and sustained suppression of further period as the Security Council may direct. Q1. (i) and (iii) Trafficking in Persons (Prevention and Suppression) Act, Ch. 106 is the main piece of legislation dealing with forced labour in the Bahamas; Section 3 stipulates the penalities for trafficking in persons which include imprisonment for 3-5 years on summary conviction and on information 5 years to life, restitution to the victim under section 6 and forfeiture of property under section 7. Section 8 provides guidelines for sentencing where there is an conviction on information relating to certain facts. 31 The general problem with the national lesiglation is that the relevant existing legislation is only on human trafficking. See under Article 2 of Convention No. 29. The Trafficking in Persons (Pervention and Suppression) Act appears not to address: (iv) (education and information for vulnerable people), (v) (education and information for employers), (vii)(protection of vulnerable persons), and (ix)(study causes). law and/or See under Article 2 of Convention No. 29. There should be an entity for prevention of forced labour and responding to specific incidents reported. There should be an obligation on the relevant authority to collect statistics on incidences of trafficking. Continuous education programmes should be developed and implemented for the

36 forced or compulsory labour in consultation with employers and workers organizations, which shall involve systematic action by the competent authorities and, as appropriate, in coordination with employers and workers organizations, as well as with other groups concerned. (ii) provide to victims protection and access to remedies (e.g. compensation-also relevant to Article 4 of the Convention); and (iii) sanction the perpetrators (iv) educate and inform people who may become victims of forced or compulsory labour; The Government of The Bahamas, Ministry of Foreign Affairs website refers to The Government of the Commonwealth of The Bahams National Anti-Trafficking in Persons Strategy which is intended to promote coordinated action among stakeholders and financial support of donors. See The U.S. Department of State 2015 Trafficking in Persons Report for The Bahamas ( iprpt/countries/2015/ ht m) mentions a 4 year national anti-traffickning strategy and action plan, but no copy was located at the time of preparation of this analysis. law and/or benefit of employers, employees and members of the public in general, in particular vulnerable persons who may become victims. (ii) Part III of the Trafficking in Persons (Prevention and Suppression) Act seeks to provide 32

37 (v) educate and inform employers about forced or compulsory labour s; (vi) ensuring that legislation relevant to the prevention of forced or compulsory labour is applied to all workers and all economic sectors, and that its application is enforced through labour inspection; (vii) protecting persons particularly volunerable to forced or compulsory labour, partciulary migrant workers; assistance and protection for the victims of trafficking. Section 12 provides that the authorities shall take measures to identify victim of trafficking and prevent their recapture and protect the victim and the victim s family from threats, reprisals or intimidation by the traffickers and develop a safety plan. Section 13 allows victims who are witnesses to be considered for entry into witness protection programmes. Section 14 states that where the victim does not have the right to remain in the Bahamas arrangements are to be made to allow the victim to remain for the purpose of prosecuting offenders. Section 15 simply allows for proceedings to be held in camera, however press can be present but have limitations on what can be published. Section 16 of the Trafficking in Persons (Prevention and Suppression) Act simply makes law and/or 33