Bahamas Hotel Maintenance & Allied Workers Union v Bahamas Hotel Catering & Allied Workers Union and Others
| Jurisdiction | UK Non-devolved |
| Judge | LORD WALKER |
| Judgment Date | 23 February 2011 |
| Neutral Citation | [2011] UKPC 4 |
| Date | 23 February 2011 |
| Docket Number | Appeal No 0031 of 2010 |
| Court | Privy Council |
[2011] UKPC 4
Lord Hope
Lord Rodger
Lord Walker
Lord Brown
Lord Clarke
Privy Council
Appellant
Obie Ferguson
(Instructed by Obie Ferguson & Co)
1 st and 2 nd Respondents
Harvey O Tynes QC
Tanisha Tynes
Ferron J M Bethell
Paula Adderley
(Instructed by Blake Lapthorn)
3 rd Respondent
James Guthrie QC
(Instructed by Charles Russell LLP)
Introductory
This appeal is concerned with a dispute between two trade unions with similar names, the Bahamas Hotel Catering and Allied Workers Union ("Catering") and Bahamas Hotel Maintenance and Allied Workers Union ("Maintenance"). The membership of both unions consisted (and no doubt still consists) of non-managerial employees working in hotels and similar or allied businesses in the Bahamas. Both unions wished to be recognised by the owners of the Sandals Royal Bahamian resort at Cable Beach, Nassau, namely West Bay Management Ltd ("Sandals"), as a bargaining agent for the purposes of Part III of the Industrial Relations Act 1970, Ch 321 ("the 1970 Act"). The differences between the unions might, had all parties shown some degree of common sense and goodwill, have been resolved without resort to litigation. Unfortunately, however, they have led to protracted, contentious and no doubt expensive litigation.
The legislation
Before addressing the facts it may be helpful to summarise the relevant provisions of the 1970 Act. Part I of the Act is preliminary. Part II (sections 5 to 40) deals with registration and control of trade unions. Part III (sections 41 to 45) deals with recognition of trade unions. Part IV (sections 46 to 53) deals with industrial agreements. Parts V, VI, VII and VIII do not call for further mention.
The most relevant sections in Part II are sections 5, 8, 10, 12, 13, 15 and 18. Section 5 provides for a register of trade unions to be kept and maintained by the Registrar of Trade Unions, an officer designated by the Minister (at the material time, the Minister for Immigration, Labour and Training). The register is to be open for public inspection. By section 8 the Registrar must refuse to register a union if satisfied that it is objectionable on one of several specified grounds, including (section 8(1)(c)) "that the union is seeking registration under a name identical with that under which an existing union has been registered or so nearly resembling that name as to be likely to deceive members of the public".
Section 10 provides as follows:
"(1) The Registrar shall not register any trade union under any name which, in his opinion -
(a) is deceptive or objectionable in that it contains a reference, direct or indirect, to any personage, practice or institution (whether imperial, national or of any other kind);
(b) is otherwise unsuitable as a name for a trade union.
"(2) Before registering any trade union, the Registrar shall publish a notice in the Gazette stating the name by which he proposes to register the union, and if, within such time (not being less than one month) as may be limited by such notice, any person files an objection to that name on any of the grounds mentioned in subsection (1), the Registrar shall take the same into consideration and, if he considers the objection to be well founded, he shall refuse to register the union under that name."
Section 12 provides as follows:
"The Registrar, upon registering a trade union under this Act, shall issue to the union a certificate of registration, which certificate, unless the registration of the union is proved to have been cancelled and subject to the provisions of section 13, shall be conclusive evidence that the provisions of this Act and of any regulations made thereunder with respect to registration have been complied with."
Section 13 provides as follows:
"Any person aggrieved-
(a) by any decision of the Registrar -
(i) not to register a trade union under this Act; or
(ii) to cancel the registration of a union; or
(iii) not to register an amendment of the constitution, or a change of name, of a trade union; or
(b) by the refusal of an officer of the Ministry to certify any ballot as having been properly taken,
may appeal in respect thereof to the Minister, who may, with effect from the date of the determination of the appeal, reverse the decision of the Registrar or officer or confirm it."
By section 15(1)(b)(i) the Registrar is required to cancel a registration on proof to his satisfaction "that the registration was obtained by fraud or mistake." Section 15(2) requires the Registrar to give not less than two months' written notice to a union before exercising any of his powers under section 15(1)(b). Section 18 provides that a union may change its name, subject to the provisions of subsections (3) and (4), which reproduce the effect of section 8(1)(c) and apply section 10 in relation to any change of name.
Part III begins with a general duty imposed on employers by section 41(1) to "recognise, as the bargaining agent for employees employed by him, a trade union of which more than 50 per centum of the employees in his employment, or in a bargaining unit [a category] of such employees, are members in good standing." Section 41(1) then refers to the provisions of section 42(5) and (6), under which a claim or rival claims to recognition are to be resolved (these are of central importance to the appeal and are considered in detail in the following paragraphs). The employer is bound to treat and enter into negotiations with a recognised trade union for the purposes of collective bargaining (subsection (1)) and the settlement of limited disputes (subsection (2)).
Section 42 contains a detailed code relating to the procedure for recognition. It imposes quite short time limits. By subsection (1) a union seeking recognition is to send a written claim to the employer, and serve a copy on the Minister. By subsection (2) the employer is to accept or reject the claim within 14 days, giving reasons for a rejection, and sending a copy of the notice of acceptance or rejection to the Minister. By subsection (3) a failure to accept a claim within 14 days is treated as a rejection. By subsection (4) the union, on an actual or deemed rejection, may within 14 days submit the matter to the Minister for determination. Subsection (5) provides for the Minister to determine the matter if there is only one union claiming recognition.
Section 42(6) deals with the determination of rival claims. It provides, so far as relevant, as follows:
"In the event of there being more than one union claiming to have as members in good standing more than 50 per centum of the employees concerned, then the Minister shall determine, as soon as may be after the receipt of a submission under subsection (4), whether the union making the claim or any other union is entitled to recognition as the bargaining agent for the employees concerned, and for that purpose the Minister shall have the following powers, that is to say–
…
(c) to determine whether more than 50 per centum of the employees concerned desire the union making the claim or any other union to be their bargaining agent; and, for the purpose of so determining, the Minister-
(i) may require the union to submit the names of all the members of the union in good standing, employed by the employer concerned at the date of the union's application for recognition as a bargaining agent; and
(ii) shall take a representational count by secret ballot in order to determine what union the employees desire to be their bargaining agent, and in the taking of such count the Minister may place on the ballot paper, in addition to the names of the unions making the claim, the name of the union recognised as the bargaining agent, if any."
Sections 43 and 44 contain detailed provisions as to when claims to recognition, or to the alteration or withdrawal of recognition, can be made. They depend on three factors: whether or not a union is for the time being enjoying recognition; if there is a union enjoying recognition, whether the union achieved it under section 42 (5) or (6) or simply by the employer's acceptance of its claim; and whether the recognised union had entered into an industrial agreement (a framework agreement for industrial relations provided for in Part IV of the 1970 Act); Mr. Ferguson (for Maintenance) made some submissions on sections 43 and 44 in the course of his reply, but it is not necessary to set out their provisions in detail.
The facts
Catering was registered as a trade union on 1 December 1958, long before the enactment of the 1970 Act. It was registered under Part III of the Trade Union and Industrial Conciliation Act 1958 (No 30 of 1958), the provisions of which were similar to the corresponding provisions in Part III of the 1970 Act except that the register was to be kept by the chief industrial officer. Counsel were unable to draw the Board's attention to any transitional provisions equating registration under the 1958 Act with registration under the 1970 Act, but it was common ground in the courts below that Catering was a registered trade union. The Board declined to hear submissions on an entirely new point, contradicting this common ground, that Mr. Ferguson attempted to raise in limine.
Maintenance was registered as a trade union on 22 November 2001. On the following day its certificate of registration was sent to Mr. Shavon Bethel, its acting President, by Mr. Leslie Dean, who then held the office of Registrar. It is accepted that he had not complied with section 10(2) of the 1970 Act in that no notice of the proposed...
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