Informe provisional - Informe núm. 272, Junio 1990

1. 475. The National Union of Public Workers (NUPW) presented a complaint of violations of trade union rights against the Government of Barbados in a letter of 23 June 1989; it presented further information in a letter of 4 August 1989. The Government sent its observations on the case in a communication of 3 January 1990.
2. 476. Barbados has ratified 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). It has not ratified the Promotion of Collective Bargaining Convention, 1981 (No. 154).

A. The complainant's allegations

1. 477. In its letter of 23 June 1989, the NUPW alleges that it has been endeavouring - where awarded recognition as the bargaining agent - to negotiate separate and distinct collective agreements aimed at reflecting the disparities between conditions of service in the various branches of the Barbados public sector (civil service, teaching, disciplined services, statutory bodies).
2. 478. It explains that collective bargaining is conducted between the NUPW and the Government for employees in the general public service. However, notwithstanding the Union's efforts to negotiate directly improvements for its members in the various statutory bodies, the Government as employer, is insisting on linking them with the central Government for the purpose of salaries and wages. The complainant holds the view that the employer's attitude to collective bargaining in particular areas of the public sector is autocratic, dictatorial, unrealistic and is contrary to the raison d'être of awarding recognition to a trade union to represent particular groups of workers.
3. 479. It states that within months, it will be submitting proposals to the Government and the various statutory bodies to which it is accredited as the basis for negotiations for increased salaries and wages and improved conditions of employment for the general public service workers and for those employees in statutory bodies where it has accreditation. As stated earlier, these proposals will be aimed at reflecting the differing conditions and concerns of the respective bargaining units. Yet the complainant believes that the Government, as has been the practice in the past, will refuse to engage in meaningful negotiations in respect of employees in the statutory bodies. Based on this untenable record, the National Union of Public Workers alleges that the Government is infringing the trade union rights of parastatal employees at:
   • (a) the Barbados Development Bank (BDB);
   • (b) the National Petroleum Corporation (NPC);
   • (c) the Industrial Development Corporation (IDC);
   • (d) the Barbados Agricultural Development Corporation (BADC); and
   • (e) the Sanitation Service Authority (SSA).
4. 480. In its letter of 4 August 1989, the complainant confirms that the Government has issued directives or taken other measures that have prevented statutory bodies from engaging in meaningful negotiations with it. Examples over the years 1988, 1986, 1984 cover the bodies listed above and specific examples include the following.
5. 481. In the BADC an agreement was reached in 1987 at the enterprise level for the payment, on an across-the-board basis, of $3.00 per month more than that reached between the Union and central Government. To date, despite repeated efforts on the part of the Union, the Cabinet has refused to ratify the agreement and the arrears have not been paid.
6. 482. With reference to the BDB, the complainant states that it is a small entity resulting in relatively restricted promotional opportunities. Additionally, the duties and responsibilities of certain key staff, though carrying a title similar to those in the general public service, are substantially and fundamentally more demanding. The staff of the bank pay a higher level of social security contributions that result in a lower net pay, all things being equal. The duration of the agreement is three months different. Efforts on the part of the NUPW to obtain a pay increase reflecting these factors have been effectively thwarted, not by the bank, but allegedly on the instructions of the central Government.
7. 483. Similar difficulties have been experienced by the NUPW in the NPC, the IDC and the SSA. To date, despite recognition of the NUPW as bargaining agent, collective agreements are not in place at the IDC, NPC, BDB or SSA.
8. 484. The NUPW expects to submit proposals to these bodies around December 1989 or January 1990, but is concerned that there will be a repetition on the past acts of the Government that will undermine the Union and frustrate its members.

B. The Government's reply

1. 485. In its letter of 3 January 1990, the Government states that there are 59 statutory boards in Barbados which employ staff. The employees of these bodies, like all other persons in Barbados, enjoy the right to associate in the trade union of their choice. That right is guaranteed by the Constitution and by statute. Each board is established by an Act of Parliament which empowers the Minister of the executive ministry under which it falls to give general policy directives to the board. In particular, provision is made that no salary in excess of such sum as the Minister may determine shall be assigned to any post without the prior approval of the Minister. Similarly, no provision shall be made for the payment of any pension, gratuity or other like benefit to officers or servants of a board without the prior approval of the Minister.
2. 486. The Government states that it decided as a matter of policy since 1975 that, in exercising his authority under the law in relation to conditions of service of the staff of statutory boards, a Minister must take due account of the national economic interest and of any guide-lines which the Government might set for the public sector. Within that policy two central agencies of government - the Ministry of the Civil Service and the Ministry of Finance and Economic Affairs - are required to advise and assist boards in their negotiations with trade unions. Further, the outcome of any such negotiations is subject to the prior approval of the Cabinet before implementation. According to the Government, these requirements are necessary because the operations of most statutory boards are either entirely financed or heavily subsidised by the public treasury. The Industrial Development Corporation and the Sanitation Service Authority fall into the first category. The Barbados Development Bank and the Barbados Agricultural Development Corporation fall into the second category. While the National Petroleum Corporation engages in commercial activities of distributing natural gas, its entire capital programme is either financed by or guaranteed by the Government.
3. 487. The Government states that the complaint should be viewed against this background and also considered from an historical perspective. For many years the conditions of service in statutory bodies, including salaries and wages, were far inferior to the conditions applicable to comparable staff levels in the general public service. A gradual improvement in those conditions was entered upon and the stage has now been reached where parity has almost been achieved, partly through trade union pressure and partly on the initiative of the boards or the Government. That parity exists in relation to hours of duty, the qualifications required for appointment to comparable jobs, the system of increments and incremental credit, the provision of pension schemes, the rates of salaries and wages, the classification and grading structure of posts and even the nomenclature of posts.
4. 488. As recently as 1988 the Government initiated a policy to promote and facilitate the development of pension schemes for the staff of those statutory bodies in instances where no such scheme previously existed. The only stipulation made was that the arrangements for pensions existing under the National Insurance and Social Security Scheme should be taken into account so as to avoid duplication of benefits. Any other differences in conditions of service are, in the Government's opinion, really minor, the major exception being the method of appointment to posts. The public service has a constitutional mechanism in a public service commission or other service commission, whilst the staff of statutory boards are appointed by the boards themselves. At the senior levels, appointments are subject to the prior approval of the relevant minister.
5. 489. The Government explains that at one stage the staff of most boards and certainly of the five mentioned by the National Union of Public Workers were represented by the Barbados Workers' Union alone. Because the facility exists for joint or exclusive representation, the NUPW has in recent years secured accreditation from some boards themselves, to represent certain categories of workers. In its quest to establish superior bona fides and, by extension, majority or exclusive membership of the staff of these boards, that union has been challenging the policy of Government in relation to the conduct of negotiations involving statutory boards. Furthermore, it has also been seeking superior conditions of service, especially relating to salaries for the staff of statutory boards, than are applicable to the general civil service.
6. 490. The Government maintains that the NUPW's claim that the Government refuses to engage in meaningful negotiations in respect of employees of statutory boards is contradictory when on the one hand the argument the Union advances is for the boards to exercise their autonomy in the matter. It would therefore seem inappropriate to want to negotiate with the Government.
7. 491. The further claim that the Government is infringing the trade union rights of employees of the five specified statutory boards is rejected as unfounded since the only requirement which the Government stipulates is that the boards conform with national guide-lines and policy. Each board is nevertheless allowed to engage in the bargaining process directly with the unions.
8. 492. The Government concludes that statutory boards are really instruments of policy and that they must be guided by such policy as is considered to be in the best interest of the nation.

C. The Committee's conclusions

1. 493. The Committee observes that the present complaint raises three distinct issues: the level of collective bargaining; the setting of guide-lines (taking into account the Government's policy and the national economic interest) for the negotiation of conditions of work in statutory bodies; and the Government's approval of negotiated working conditions.
2. 494. Regarding the first issue, the NUPW asserts that the parties should negotiate separate and distinct collective agreements reflecting the disparities between the general public service and the various statutory bodies. The Government considers for its part that the differences in conditions of service are really minor, the major exception being the method of appointment, and that parity has now almost been achieved between those two sectors.
3. 495. The Committee considers that the determination of the bargaining level is a matter best left to the discretion of the parties; they should decide by mutual agreement the level at which bargaining should take place. If they cannot agree, an independent body should then make that decision, as provided for by the legislation of many countries. The important point is that this body should be truly independent and have the confidence of all concerned, particularly where one of the bargaining parties is the Government. However, the Committee will not dwell on this point, since the Government has stated in its reply that statutory boards are allowed to engage in the bargaining process directly with the unions. The crucial question is whether these boards have real and effective bargaining authority, which brings the Committee to the second and more important issue.
4. 496. The Government states that the statutory boards must conform with national guide-lines and policy, as is considered to be in the best interest of the nation. It further submits that it has been decided since 1975, in relation with conditions of service within these boards, that the ministers responsible should take due account of the national economic interest and of any guide-lines which the Government might set for the public sector. In addition, the outcome of negotiations is subject to the prior approval of Cabinet before implementation. It justifies this position by the fact that most boards are entirely or heavily financed by the public treasury.
5. 497. Given the public nature of the boards' financing, the Committee appreciates that the Government might legitimately want to keep the working conditions in statutory boards approximately in line with those prevailing in the general public service. The Committee further understands that the Government feels it has the obligation and the responsibility to offer fair and reasonable wages and other conditions to those employees, while ensuring that no undue burden is being placed on the public purse.
6. 498. In order to achieve this dual objective, the Government might wish to set certain guide-lines, as appears to be the case here. It may participate more directly in the collective bargaining process, through increased presence and a more active role at the bargaining table. It could also, where concluded collective agreements appear to conflict with considerations of national interest, envisage a procedure whereby the attention of the parties could be drawn to these considerations so as to convince them to examine the matter further. Another possibility could be, instead of making the validity of collective agreements subject to governmental approval, to provide that every collective agreement filed with the Ministry of Labour would normally come into force a reasonable length of time after being filed; if the public authority considered that the terms of the proposed agreement were manifestly in conflict with the economic policy objectives recognised as being desirable in the general interest, the case could be submitted for advice and recommendation to an appropriate consultative body. In all these eventualities, however, the final decision in the matter should rest with the parties to the agreement. (See General Survey by the Committee of Experts, 1983, paras. 303-315; Digest of decisions and principles of the Freedom of Association Committee, 1985, third edition, paras. 635-644.)
7. 499. The Committee points out, however, that a distinction must be made between the present situation under review and the kind of situation referred to, for example, in paragraph 313 of the General Survey ("... rather than subject the validity of collective agreements to government approval, steps should be taken to persuade the parties to collective bargaining to have regard voluntarily in their negotiations to major economic and social policy considerations and the general interest invoked by the Government.") which is concerned largely with private sector negotiation. In so far as the Government itself is the source of funds, the Committee emphasises that it is legitimate for the Government to establish reasonable guide-lines for negotiations.
8. 500. In sum, as the Committee has consistently held: "Where intervention by the public authorities is essentially for the purpose of ensuring that the negotiating parties subordinate their interests to the national economic policy pursued by the Government, irrespective of whether they agree with that policy or not, this is not compatible with the generally accepted principles that workers' and employers' organisations should enjoy the right freely to organise their activities and to formulate their programmes, that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof, and that the law of the land should not be such as to impair, or be so applied as to impair the enjoyment of such right" (Digest, para. 636).
9. 501. The various principles concerning the parties' autonomy during collective bargaining can hardly be qualified as new ones since they have been asserted long ago by this Committee (see, for example, 25th Report, Case No. 151 (Dominican Republic), para. 312; 65th Report, Case No. 266 (Portugal), para. 70; 110th Report, Case No. 503 (Argentina), para. 46), just as was established, very early on in the Committee's history, the principle that trade unions should enjoy the right to endeavour to improve, by means of collective bargaining, the conditions of living and of work of their members and that the authorities should abstain from any interference which might limit this right (see, for example, 15th Report, Case No. 102 (Union of South Africa), para. 164). These principles were restated recently in a case somewhat similar to the present one, involving employees in the national insurance and subsidised sectors (265th Report, Case No. 1469, (Netherlands), paras. 195-197).
10. 502. Both the Committee of Experts and the Committee on Freedom of Association have indeed recognised that some degree of government interference in the bargaining process may be justified "for compelling reasons of national economic interest" but, to be acceptable, such interference should be imposed only as an exceptional measure and only to the extent that is necessary, without exceeding a reasonable period, and should be accompanied by adequate safeguards to protect workers' living standards (see Digest, para. 641 and General Survey, para. 315).
11. 503. The Committee observes in this regard that the Government has not provided any official text (act, regulation, order in council or other legislative or executive instrument) from which the above-mentioned restrictions to collective bargaining are said to flow. This makes it difficult for the Committee to assess the legal basis of the Government's position and the precise extent of its power of intervention in the collective bargaining process, or to note the eventual provision of safeguards for the workers' living standards. The Committee therefore requests the Government to provide as soon as possible said texts or instruments.
12. 504. Finally, the complainant organisation mentioned that it intended to submit bargaining proposals to the statutory bodies around December 1989 or January 1990, and expressed its concern that the Government would refuse to engage in meaningful negotiations in respect of employees in statutory bodies. The Committee cannot comment on such hypothetical suggestions and will limit itself to inviting the Government to take the comments made above into consideration during the current and future rounds of negotiations with NUPW.