A High Court judge has ruled that industrial action taken by doctors in August was unlawful and has prohibited them from engaging in any form of industrial action over the payment of outstanding holiday pay.
Justice Ian Winder, in a written ruling, also ruled that the Bahamas Doctors Union (BDU) its officers, servants and agents are now restrained from “organising or procuring its members to strike or to refuse to report to work when scheduled to do so”.
The judge ruled that union members are also prohibited from leaving their place of employment, or otherwise participating “in any other form of industrial action” going forward.
He also found that the BDU “contravened” Section 76 of the Industrial Relations Act (IRA) when it continued to strike despite its obligation to discontinue once Labour Minister Dion Foulkes had referred the dispute to the Industrial Tribunal because the strike had “threatened the public interest” in August.
Justice Winder said as a result, the government was “entitled” to injunctive relief.
On September 25, last year, the BDU filed a trade dispute seeking to have the matter resolved and on December 17 the union members took a strike vote that was supervised by the Department of Labour. On August 21 this year, the BDU summoned its members to withdraw their labour in most, but not all of the areas of the various hospitals and clinics throughout the Bahamas.
But the government claimed that its ability to provide health care services was severely impacted, and complained that even that limited level of healthcare was unsustainable.
Labour Minister Dion Foulke in a statement on August 25, said that the strike action had “threatened the public interest” and consequently referred the matter to the Industrial Tribunal in accordance to Section 76 of the IRA.
Section 76 mandates that when a strike is in progress and the Minister considers that the public interest is affected or threatened he may refer the dispute that gave rise to the strike to the tribunal. Once notified of the referral, persons engaged in the strike are required to discontinue. Failure to do so would constitute a criminal offence.
In his ruling the judge said the provisions of that section are “clear and unambiguous”, but nonetheless, despite receipt of the notification, the BDU “continued with the withdrawal of their labour and did not return to work”.
The government subsequently obtained an injunction from Justice Winder blocking the union from taking any further industrial action and to return to work.
“It is not seriously disputed that the union and its members remained on strike, notwithstanding the matter had been referred to the tribunal by the minister of labour. The union therefore contravened the provisions of the IRA entitling the (government) to injunctive relief,” the judge ruled.
In an immediate reaction, President of the Trade Union Congress (TUC) Obie Ferguson, said Justice Winder’s ruling was “regressive” and implies that until or unless it is overturned, none of the 30 plus unions in The Bahamas will be able to go on strike for any length of time.
“So this would have serious effects because if the minister can refer a trade dispute that came out of a strike and by referring it, it automatically means that you must discontinue your strike, where is the mechanism in place for the resolution of that dispute once it is referred wherever it is being referred?
Ferguson said that ‘because what it means now, the 30-something unions that are registered in the Bahamas, as soon as they take a strike vote and they decide to go on strike, the minister says it’s not in the best interest or whatever have you…and I’m going to refer it to the Tribunal.
Ferguson said Justice Winder’s ruling “conflicts” with what has been repeatedly said by the Court of Appeal concerning labour disputes.
“The Court of Appeal has ruled consistently that the tribunal has no powers to impose terms and conditions where there is a bargaining impasse. That must be resolved around the negotiating table.
“This is a general dispute. A general dispute is a dispute involving the creation of new terms and conditions of employment. The workers are entitled to US$10 million. They were negotiating where they made an offer of five million dollars and there were some additional attachments to the settlement of five million dollars,” he said, adding “so on what basis could the tribunal resolve a bargaining impasse when the tribunal’s jurisdiction does not permit that to happen?
“The five million in (holiday pay) is still outstanding. There’s no payment date or nothing. There’s no agreement. Could the tribunal impose on the government a US$10 million overtime pay, public holiday pay? The answer is no.”