Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 181, Junio 1978

1. 58. The Committee already examined this case at its session in February 1977 when it submitted to the Governing Body an interim report, contained in paragraphs 151-179 of its 165th Report.
2. 59. The Government of the United Kingdom has ratified the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and has declared these Conventions to be applicable without modification to Antigua.
   • Direct contacts procedure
3. 60. The Committee notes that, on 16 January 1978, the Government of Antigua addressed directly to the ILO a communication in which it indicated that it was most anxious that an on-the-spot investigation into the situation be carried out at the earliest convenient time. The complainant organisation has made similar requests for the establishment of the procedure of direct contacts whereby a fact-finding mission would carry out an inquiry, in Antigua, into the facts of the case and report thereon to the Committee. The Committee notes, however, that the Government of the United Kingdom has not yet stated its position with regard to this matter.
4. 61. In the meantime the Committee has received from the Government its written observations, contained in two communications dated respectively 26 April 1977 and 16 February 1978. The Committee, has accordingly, decided to proceed with the examination of the case in substance on the basis of the information at its disposal.

A. A. The complainants' allegations

• Previous examination of the case
  62. 62 When it previously examined this case the Committee noted that the complaint essentially related to alleged acts of anti-union discrimination committed by the Government in that it had dismissed a large number of public servants and other workers in government-owned enterprises after it came to power on 20 February 1976. The dismissed workers were all said to have been members of the complainant union and, in any case, they were said to have been replaced by members of the opposing union, the Antigua Trades and Labour Union. Allegations had also been made that labour disputes involving the Government were not processed by the Labour Commissioner. The labour legislation introduced by the Government in 1976, namely the Industrial Court Act, 1976 and the Antigua Labour Code (Amendment) Act, 1976 had also been criticised by the complainants as being an attempt to destroy effective trade unionism in that, by abolishing the agency shop, it prevented the complainant union from being able to collect dues, and that, by re-establishing an industrial court, it prevented free collective negotiation and substituted legal and court measures therefor.
  63. 63 The Committee had noted that in reply to the allegations the Government had admitted that, in some ministries, there had been some layoffs and dismissals where there were large surpluses of labour. The Government denied, however, the specific allegation that 57 members of the AWU were dismissed and others victimised.
  64. 64 The complainants had also supplied the names of over 300 workers who were members of the AWU and who, they stated, had been dismissed by the Government in specific enterprises that had been acquired by the Government. From the reply supplied by the Government it appeared that, in some cases, these workers had been dismissed by the previous owners and that, in other cases, dismissal had been ordered by the new management.
  65. 65 As regards the allegation relating to the dismissal of workers the Committee, pointing out that it is a generally accepted principle that no person should be prejudiced in his employment by reason of his trade union membership or activities, considered that, in view of the lack of available information, it was difficult in the present case to reach a conclusion as to whether this principle had been breached. The Committee considered, in particular, that the Government had not provided adequate information to explain why all the persons specifically named by the complainants happened to be members of the complainant union.
  66. 66 In this connection the Committee also noted that the Industrial Court Act, 1976 contains procedures for the settlement of trade disputes. In particular, section 19(2) of that Act provides that if, within ten days after the existence of a trade dispute has come to the attention of the Labour Commissioner, he has failed to achieve a voluntary adjustment or settlement of that dispute, a party to the dispute may refer it to the Industrial Court.
  67. 67 The Committee, in these circumstances, recommended the Governing Body to transmit the substance of the Government's observations on this question to the complainant organisation for any comments they might wish to make thereon and to request the complainants to indicate whether recourse had been had to the Industrial Court in connection with the dismissals.
  68. 68 As regards the allegations made in connection with the legislation introduced by the Government in 1976, the Committee first examined the provisions of the Antigua Labour Code, 1975 and the Industrial Court Act, 1976 in so far as these relate to collective bargaining and disputes settlement procedures. The Committee noted that the Labour Code (Divisions G.20 and K.25-28) appear to guarantee the right to trade unions to negotiate freely and conclude collective agreements with employers and to determine by agreement the extent to which such collective agreements shall be legally enforceable. However, the Committee observed that, under section 19 of the Industrial Court Act, 1976, any trade dispute, in case of failure of negotiations, may be referred by the minister, or any party to the dispute, to the Industrial Court which is empowered to issue a binding award. In these circumstances, the Committee noted, strike action is precluded.
  69. 69 The Committee, noting the Government's statement that voluntary adjustment and settlement of disputes still takes precedence in the disposal of all issues reported as trade disputes, pointed out that the right to strike by workers and their organisations is generally recognised as a legitimate means of defending their occupational interests. This right, the Committee indicated, could be affected where a minister, or the employers, are permitted by law to submit in every case for compulsory arbitration a dispute resulting from failure to reach agreement during collective bargaining and so prevent recourse to strike action. The Committee further pointed out that a general prohibition of strikes would constitute a considerable restriction of the opportunities open to trade unions for furthering and defending the interests of their members (Article 10 of Convention No. 87) and of the right of trade unions to organise their activities (Article 3). The Committee recommended the Governing Body to draw the attention of the Government to those principles and to refer this aspect of the case to the Committee of Experts on the Application of Conventions and Recommendations.
  70. 70 As regards the allegation that the Antigua Labour Code (Amendment) Act, 1976, in abolishing the agency shop, prevented the complainants from collecting union dues, the Committee, noting that this amendment Act introduced a new system of union security arrangement, recommended the Governing Body to request the complainants to supply further and more detailed information as to the practical application of the new system.
• Additional information received from the complainants
  71. 71 In a communication dated 7 April 1977 the complainants contested the Government's statement that the layoffs and dismissals were the result of the heavy employment programme embarked upon by the previous administration. The complainants pointed out that the 57 employees who had been dismissed had been in the employment of the Government for many years, most of them prior to the Progressive Labour Movement taking office in 1971
  72. 72 The complainants continued that the Halcyon Cove Hotel had been purchased by the Government out of funds borrowed from the Social Security Department. The Government then proceeded to dismiss workers knowing that the AWU had support and representational rights under the Antigua Labour Code. This matter, added the complainants, was reported to the Labour Department and should have been heard within ten days. The Labour Commissioner, however, did not process the matter and, according to the complainants, after a long time, he replied stating that the Minister of Home Affairs and Labour had advised that there was no trade dispute and that the matter should be considered as closed. The complainants transmitted the text of a letter to this effect addressed to them by the Labour Commissioner on 7 July 1976.
  73. 73 As regards the Hyatt Hotel, the complainants stated that it was incorrect for the Government to state that the employees were laid off so that the new management could institute a new programme of work evaluation. The complainants pointed out that, in fact, the new management Hyatt International, took over well after the workers were terminated. They were dismissed in May and June 1976 and the new management took over at the end of August 1976. Hyatt International, stated the complainants, was not free to implement its own employment policy since two Government ministers, Senators Lloydston Jacobs and Hugh Marshall, both of the Ministry of Economic Development, did the recruiting of labour. The complainants added that 95 per cent of the workers dismissed were replaced by entirely new people.
  74. 74 As for the Government's denial that the dismissals had anything to do with political beliefs and trade union affiliation, the complainants pointed out that the ALP Government had declared, as a matter of policy, that only its supporters would be allowed to work on projects where the Government had direct control or some degree of influence. There was in addition, no lack of finance, continued the complainants. All employees dismissed since the ALP took office had been replaced and a series of tax measures had been introduced to increase Government finances. There had been no case of redundancy, discontinuance of projects or cessation of temporary employment to justify the dismissal of workers who were members and supporters of the AWU.
  75. 75 The complainants stated that it was true, regarding the West Indies Oil Co. Ltd., that the parent company, Natomas, had dismissed the workers in accordance with the agreement between the AWU and the West Indies Oil Co. Ltd. However, stated the complainants, it had been agreed and understood that one of the conditions of the change of ownership was that a stipulated number of employees would maintain their jobs with the new owners. This assurance had been confirmed by the Deputy Premier and Minister of Economic Development and Tourism, Lester Bird, when he addressed the employees concerning the Government's purchase of the WIOC. This assurance had been given in the presence of Natomas representative Mr. Bill Scally and others. The complainants alleged that, in an attempt to allay any fears, the Minister had emphatically stated that no worker would be dismissed or victimised by the new Government. However, added the complainants, within days of this assurance, all known supporters of the AWU were dismissed and replaced by Government (ALP) supporters. Some 42 workers were affected by this action.
  76. 76 As for the situation at the Holiday Inn Hotel, the complainants alleged that the hotel had resumed full operations prior to 14 December 1976 The Minister of Finance, Mr. Reuben Harris, did not allow the former owners to pay the severance payments to the employees. Instead, continued the complainants, Mr. Harris paid the workers himself so that he could question every member of the AWU and, in re-engaging staff, he made certain that no AWU member was employed. The amount of severance pay, added the complainants, was not in accordance with the provisions of the collective agreement between the AWU and the hotel, but attempts to have the matter redressed were flouted by the Government.
  77. 77 At the above-mentioned workplaces, stated the complainants, the Government had introduced the check-off system on behalf of the Government-controlled Antigua Trades and Labour Union, which, at most of these workplaces, had no bargaining or representational rights. According to the complainants, this was contrary to the Antigua Labour Code. The matter was drawn to the attention of the Ministry of Labour but it was ignored.
  78. 78 As regards the Industrial Court Act, 1976, the complainants alleged that this law denied strikes or other industrial action and compelled the parties to submit the dispute to the Court. It also gave the Minister wide powers to do so (s.19). Section 18 also gave the Attorney-General power to intervene in any dispute on behalf of the Government and give his own views. Under section 17, an appeal could only be made on a point of law. In addition, continued the complainants, the Court had wide powers to impose fines and penalties on trade unions and their officials. The Act as a whole, stated the complainants, had removed the right of parties to seek their own settlements to industrial disputes as well as effectively removing the right to strike.
  79. 79 In addition, the complainants alleged that, as for the composition of the Industrial Court, the Governor in terms of s.4 (4) (a) (b) and (c) of the Industrial Court Act, acted on the advice of the Cabinet and had appointed known supporters of the Government. The complainants gave details of the names of the members of the Court. The complainants stated that it would be fatal if disputes in which they were involved were referred to such a Court.
  80. 80 The Antigua Labour Code (Amendment) Act, 1976, continued the complainants, had two effects, viz.: (a) it made illegal all authorisations that had been signed by workers under the previous provisions of the law for payment of funds to the union, and (b) it replaced the previous monies collected from workers by a fixed levy of $6 for a three-year agreement. The complainants explained that there were difficulties for the workers in paying their dues freely to a union. In Antigua the payment of union dues was linked to the right of a union to be the bargaining agent provided the procedures were in accordance with the Labour Code. The complainants stated that unless the right freely to collect union dues and fees out of the wages of workers was maintained it was impracticable for the union to exist. The clear intention of the Government was to put the union out of business. By fixing a levy of $6 as the maximum that can be paid to the union meant that the union would not have sufficient funds with which to function.
• Reply of the Government
  81. 81 The Government transmitted its observations in two communications dated respectively 26 April 1977 and 16 February 1978. In the first of these communications the Government asserts that the rights of freedom of assembly, expression and association are entrenched in the Constitution and are secured in the political life of Antigua. Ever since the accession to political office of the Antigua Labour Party in February 1977, explains the Government, the Antigua workers' Union and its sister organisation, the Progressive Labour Movement, have been bent on seeking a confrontation with the Government and these organisations have in no way attempted to conceal their intention to create civil strife and to overturn the Government and society by having recourse, if necessary, to violent methods. Despite this, adds the Government, there has been no attempt by the Government to abrogate the Constitutional rights of these organisations to freedom of expression, assembly and association.
  82. 82 The Government supplies correspondence indicating that permission has been granted on a large number of occasions by the Commissioner of Police to the Antigua Workers' Union to hold public meetings. However, continues the Government, during the months of September and October 1976 a Commission of Inquiry had been set up to inquire into charges of corruption by Ministers of the PLM administration (i.e. the former Government) while they were in office. At the beginning of the inquiry, states the Government, permission was granted to the Antigua Workers' Union and the Progressive Labour Movement to hold political meetings. In view of the threats made at these meetings against the members of the Commission permission to hold further meetings was refused to these organisations. In addition, adds the Government, the General Secretary of the AWU threatened to disrupt the national carnival festival, held in July each year, which has proved to be a great boom to the tourist industry.
  83. 83 As regards the allegations made concerning the legislation passed in 1976, the Government points out that these represent a difference of political philosophy and not trade unionism. No law had been passed, adds the Government, which in any way adversely affects the advancement of the traditional objectives of the trade unions.
  84. 84 In its communication, transmitted on 16 February 1978, the Government replied to the allegations contained in the complainants' communication of 7 April 1977.1 As regards the allegations relating to those employees who are said to have been dismissed by the Government for political beliefs and trade union affiliation, the Government states that it maintains its previous stand on these matters and notes that the complainants persist in the employment of mere allegations.
  85. 85 As for the Halcyon Cove Hotel, the Government explains that this changed hands on 10 May 1976, coming under the management of Resorts Management Incorporated, agent for the new owners, Antigua Isle Company Limited. On 4 June 1976, the new management informed the workforce by letter that, in order to provide an opportunity for the evaluation of staffing levels and staff performance, some of the hotel's facilities would be temporarily, but immediately, closed. Bearing in mind that the workers had all been dismissed by the liquidator, the new management paid notice and all other payments due since 10 May 1976. The Government states that a complaint on this matter was received by the Labour Commissioner on 9 June 1976 and an attempt was made to arrange a conciliation meeting on 10 June 1976 but, owing to the fact that the management did not appear, no meeting was held. On 19 June 1976 the matter was reported to the Minister of Labour who, having conducted personal investigations, and acting under the powers conferred upon him by section 86(2)(a) of the Labour Code, referred the matter back to the parties on 7 July 1976.
  86. 86 As regards the Hyatt Hotel, the Government states that Hyatt International are in no way connected with this matter, having taken over the management of the hotel at the end of August 1976.
  87. 87 As regards the West Indies Oil Company Ltd., the Government states that, in 1975, that company initiated a redundancy programme which culminated in a complete cessation of operations in January 1976. At the time of the sale of the refinery all workers were completely severed and only a skeleton staff, consisting mainly of supervisory and management personnel, was kept on the payroll. The Government states that the AWU have registered no complaint with the appropriate authorities on any matter concerning the unfair dismissal and replacement of any group of workers.
  88. 88 With regard to the allegations concerning the Holiday Inn Hotel the Government states that it is impossible that it flouted attempts to secure redress of any industrial disputes which may have arisen at the hotel, since no complaints have been registered with the Labour Commissioner in connection with any unfair labour practices at the hotel. The Government adds that the Antigua Trades and Labour Union, having satisfied the requirements of Division 7 of the Antigua Labour Code, is the sole certified bargaining agent for the employees at the Holiday Inn. According to the Government the allegations of the complainants are incomprehensible.
  89. 89 In reply to the allegations concerning the legislation, the Government explains that the reintroduction of the Industrial Court was in implementation of one of its election promises. The Government states that, under the Labour Code, strikes, lockouts and other forms of industrial action are prohibited immediately reference is made by the Minister to an arbitral officer, and after the determination of the question, industrial action in connection therewith is prohibited. This precise formula, adds the Government, has been used in connection with the Industrial Court Act. Parliament, recognising that there are cases where two parties are engaged in a dispute and yet the implications go beyond mere sectoral interests and involve the community as a whole, gives the Court a discretion to permit the Government, through the Attorney-General, to intervene and take part if the Court is of the opinion that the public interest is substantially affected. On the subject of appeals the Government points out that the Court consisted of a panel of lawyers, economists and persons experienced in industrial relations. It was thought that the object of keeping legalism to a minimum would be defeated if, on findings of facts, a Court of Appeal consisting only of lawyers could reverse them.
  90. 90 As for the composition of the Court the Government provides details and qualifications regarding each member and points out that none is or has ever been a member of the Governing Party. The manner of appointment and tenure of office are both matters which, according to the Government, the complainants have taken to the High Court which is the body constitutionally seized with jurisdiction in such matters.
  91. 91 Regarding the Labour Code (Amendment) Act, 1976 the Government explains that it was again part of its election manifesto to repeal the provisions of the Labour Code which permitted a wide range of deductions which the employer had to make from wages. In repealing the relevant provisions, however, care was taken, states the Government, to preserve acceptable deductions such as union dues, provided the employee authorised such deduction. It is worthy of comment, adds the Government, that the Antigua Trades and Labour Union, in existence for more than 39 years, has never supported or relied upon the agency shop requirement for its existence.

B. B. The Committee's conclusions

• Conclusions of the Committee
  92. 92 The Committee has examined all the additional information supplied by the AWU, the complainant organisation, as well as the observations thereon transmitted by the Government. The allegations, it recalls, concern acts of anti-union discrimination committed by the Government in dismissing a large number of public servants and other workers who were members of the AWU, particularly in government-owned enterprises, after it came into office on 20 February 1976. The complainants also allege that labour disputes referred to the authorities are not processed by the Labour Commissioner. The complaint also concerns the new legislation introduced by the Government in 1976, namely, the industrial Court Act and the Antigua Labour Code (Amendment) Act. It is alleged that the former Act, in re-establishing the Industrial Court, prevents free collective bargaining and substitutes legal and court measures therefor. The Labour Code (Amendment) Act, according to the complainants, is an attempt to destroy effective trade unionism in that, by abolishing the agency shop, it prevents the complainant union from being able to collect dues.
  93. 93 Concerning the question of the dismissals, the Committee had previously pointed out that it is a generally accepted principle that no person should be prejudiced in his employment by reason of his trade union membership or activities. The complainants have provided details of over 300 cases where persons who were members of the AWU were dismissed from Government departments and government owned enterprises. It is also alleged that these workers were replaced by others who were members of the opposing union, the Antigua Trades and Labour Union, which supports the present Government. The Government does not deny that these dismissals took place but states that these were based on overstaffing, lack of finance, redundancy, discontinuance of projects, etc., and not on account of political beliefs or trade union affiliation.
  94. 94 As regards the Halcyon Cove Hotel where 127 members of the AWU, out of a total workforce of 196, were dismissed, the Government has provided certain explanations which seem to relate to the circumstances surrounding the change of ownership of the hotel. No explanations are, however, given by the Government as to the precise reasons for the dismissal for the 127 workers who were AWU members. The Committee also notes that the complaint lodged with the Labour Commissioner regarding these dismissals was finally, after conciliation failed, disposed of by the Minister himself who decided that no labour dispute existed.
  95. 95 The Committee notes that a similar situation existed at the Hyatt Hotel where a number of, workers, again members of the AWU, were dismissed in May and June 1976, and according to the complainants, replaced almost entirely by non-AWU workers. In this connection, the Government confines its remarks to stating that Hyatt International, the new management, was not connected with the dismissals, having taken over only in August 1976.
  96. 96 In the West Indies Oil Company Ltd., some 42 workers were dismissed. According to the complainants this action was taken in spite of assurances given to the contrary by the Minister himself. The complainants add that these workers were replaced by supporters of the Government. For its part, the Government explains that there was a complete cessation of operations in January 1976 and, following the change of ownership, only a skeleton staff was maintained. The Committee notes the Government's statement that no complaint was submitted in respect of the dismissal or replacement of any group of workers.
  97. 97 As regards the Holiday Inn Hotel where a number of AWU members were also dismissed, the complainants allege, in addition, that severance payments were improperly calculated and that every worker was questioned by the Minister of Finance so that no one having AWU affiliation would be re-engaged. The Government does not reply specifically to these allegations but points out that no complaint in this connection was formally registered.
  98. 98 The Committee notes that in all of the above cases the Government has not answered the allegation that the dismissed workers were replaced by others who were not members of the AWU.
  99. 99 The Committee considers that, closely bound up with the question of the dismissals and replacements of workers, are the amendments introduced in 1976 concerning the abolition of the then existing agency shop system and the introduction of a new system whereby a negotiating fee (fixed by the new Act at $6) for each collective agreement is paid to the bargaining agent by employees in the bargaining unit who are not its members. The Committee understands that the result of the introduction of the new system, coupled with the dismissal of AWU members, has been that, in the enterprises mentioned in the complaint, the AWU, having lost its majority, has ceased to be bargaining agent and in those other enterprises where it may remain bargaining agent the AWU, instead of being able to collect the usual contributions from non-members can now only collect $6 from each non-member, and that for the period of a collective agreement.
  100. 100 The Committee has always declined to examine allegations involving forms of union security arrangements basing its reasoning on the statement of the Committee on Industrial Relations appointed by the International Labour Conference in 1949 according to which Convention No. 98 can in no way be interpreted as authorising or prohibiting union security arrangements. The Committee has considered, however, that the situation is very different when the law imposes union security - either in the form of making union membership compulsory or by making union contributions payable in such circumstances as to amount to the same thing.
  101. 101 In the present case the Committee does not consider that the law, in fixing a negotiating fee as described above (para. 99), seeks to make union membership compulsory. On the contrary the fixing of a negotiation fee payable by non-union members at such a low figure could have the effect of discouraging non-union members from seeking membership of the union which is the bargaining agent, thus enabling them to remain non-unionists or members of another union. Whatever the aim of the provision in question, it seems clear that it can only operate to the serious financial disadvantage of a union which is the bargaining agent in an enterprise which comprises non-unionists or members of another union. In other words, it appears that the AWU has been adversely affected from a financial point of view in those enterprises where it is the bargaining agent. On the other hand, if in those enterprises mentioned in the complaint it is the case that AWU members have been dismissed and replaced by other workers, the rival union, the Antigua Trades and Labour Union, will clearly emerge as the most representative union and the question of payment of the negotiation fee will scarcely arise.
  102. 102 The Committee notes the Government's contention that the complainant organisation has not, in a number of the cases mentioned, raised a dispute with the Labour Commissioner. However, the Committee observes that in the one case in which a dispute was raised, viz. that concerning the dismissals in the Halcyon Cove Hotel, the Minister decided that there were no grounds for dispute and remitted the complaint back to the parties. In addition, the Committee has noted that the Industrial Court, to which disputes may, in certain circumstances, be referred, is a body in which the complainants have little confidence. According to the Government, the complainants have questioned the Constitutionality of the appointment and tenure of office of the members of the Court.
  103. 103 The Committee has, on a number of occasions in the past, emphasised that complaints against anti-union practices should normally be examined by national machinery which, in addition to being speedy, should not only be impartial but also seem to be such by the parties concerned, who should participate in the procedure in an appropriate and constructive manner.
  104. 104 As regards the allegations made concerning compulsory arbitration and the restrictions on collective bargaining, the Committee notes that the complainants have submitted no additional information on the practical application and effects of the Industrial Court Act. The Committee has already referred this aspect of the case to the Committee of Experts on the Application of Conventions and Recommendations.