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Courts turn down bid to block union walkouts

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A move by the Bermuda Government to block unions from staging walkouts has been turned down by the courts.

However, the mass walkout in January last year over the explosive issue of continued furlough days in the public sector has been branded “unlawful” by Ian Kawaley, the Chief Justice.

Dr Justice Kawaley refused to grant a permanent injunction against walkouts, one year on from the mass demonstrations sparked by a standoff over furloughs.

A letter from Bob Richards, the Minister of Finance, called for a swift decision by unions on the issue and kept it as a cost-saving measure, sparking widespread marches and days of occupation by unionised staff of the grounds of the Cabinet Office.

With yesterday's ruling, the Chief Justice effectively cast blame on both sides, noting that the evidence suggested both had “failed to fully appreciate their respective most compelling concerns as the 2014/15 Budget approached”.

Dr Justice Kawaley found that the minister's letter had been “provocative”, while a statement from the Bermuda Trade Union Congress described it as “one of the most explosive pieces of correspondence in the history of industrial relations in Bermuda”. While the Government's demand was received as an insult to the Island's labour movement, the Chief Justice wrote: “It is difficult to avoid the suspicion that the unions were, to some extent at least, secretly delighted to seize on the January 23, 2015, letter as the perfect tool to motivate public officers to display a massive show of impromptu support.

“It was, in once sense, a belated Christmas gift from the Government, which was supplemented by the only marginally less provocative 'no-show' at the January 27, 2015, resumed negotiations.”

He added: “The 'Occupy Cabinet Office' campaign proudly described in the Bermuda Public Services Union pamphlet was doubtless a morally justified triumph in labour terms as regards the narrow issue in question.

“I am, however, bound to find that it was not a lawful response to a provocative letter which merely threatened future, not imminent, wrongful conduct on the Government's part.”

Dr Justice Kawaley also ruled that employers, including the Government, should respect unions and deal with them in good faith, in a “non-provocative manner”.

“Against this background, the January 23, 2015, letter was, on any detached and objective view, a wholly surprising and disproportionately confrontational communication,” he wrote.

He further acknowledged that the BTUC's position must have proved “very frustrating” for a minister charged with reducing costs while saving jobs.

“Having advanced proposals designed to reform the public service and make substantial cuts while protecting workers through creating alternative private employment, he was not only met by a union response which both opposed these essential structural changes,” he said. “The comparatively minor furlough day measure, itself designed to save jobs, was itself under attack.”

The Chief Justice found that both sides were at cross purposes, which ultimately led to the dispute.

While both parties were aware of the urgency, that awareness never translated into a “meaningful meeting of the minds”.

Dr Justice Kawaley concluded that a “generalised risk of future irregular strike action” remained, and that the Government still had the potential to provoke union walkouts.

“There is no credible evidence before this court that the respondents will, without the sort of extreme provocation which occurred on January 23 and January 27, 2015, abandon a consensual negotiation process in favour of unlawful strike action,” he said.

“In my judgment it is impossible to imagine circumstances in which unlawful industrial action could properly be said to be imminent in the requisite legal sense when there is no current or pending dispute which it is clear the parties cannot resolve through negotiations or other forms of consensual dispute resolution.”

The BTUC had vigorously pursued alternatives to furlough days, while the Government had “halfheartedly” collaborated.

“The furlough day battle may have been won, but the war against a public debt crisis which could, if not addressed, ultimately transfer control of the country's finances to its lenders, remained to be fought,” the Chief Justice said, and suggested that the Island work on developing “21st-century labour relations”.

“Because of the unusually strong public interest in the parties to the present litigation making an effective and sustainable fresh start to delicate and difficult negotiations which undoubtable lie ahead, my strong provisional view is that each side should bear its own costs.”

In response, Michael Fahy, the Minister of Home Affairs, said: “The Government agrees that this represents an opportunity to create better relationships with the unions and looks forward to engaging with them to build on previous collaborative efforts in order to deal effectively with our public debt crisis through prudent fiscal measures and sustainable public sector finances.”

To read the Chief Justice's ruling in full, click on the PDF under “Related Media”

Legal ruling: Chief Justice Ian Kawaley (File photograph by Akil Simmons)
Legal ruling: Chief Justice Ian Kawaley (File photograph by Akil Simmons)

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Published January 16, 2016 at 8:00 am (Updated January 16, 2016 at 8:29 am)

Courts turn down bid to block union walkouts

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