By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

THE Bahamas Doctors Union has been prohibited from engaging in any form of industrial action over millions in outstanding holiday pay, after a Supreme Court judge ruled yesterday that the group’s recent strike action was unlawful.

Justice Ian Winder, in a written ruling, ordered that the union, 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”.

Justice Winder further ruled that union members are prohibited from leaving their place of employment, or otherwise participating “in any other form of industrial action” going forward.

The judge said 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.

Thus, Justice Winder said the government was “entitled” to injunctive relief.

However, Trade Union Congress (TUC) President Obie Ferguson, who represents the BDU, 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,” he said. “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?

“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.

“So when you go to the tribunal, what do you get? What is the result? Zero. And that cannot be in the best interest of the country; that cannot be in the best interest of industrial relations in the Bahamas.

“In other words, it’s regressive.”

Mr 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,” he explained. “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 $10m. They were negotiating where they made an offer of $5m, and there were some additional attachments to the settlement of $5m.

“So on what basis could the tribunal resolve a bargaining impasse when the tribunal’s jurisdiction does not permit that to happen?

He added: “The $5m (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 $10m overtime pay, public holiday pay? The answer is no.”

When asked if he plans to appeal the ruling, Mr Ferguson said: “That’s what it smell’s like. It smells that way. But I have to discuss with my client and take instructions.”

The Minister of Health, the Public Hospitals Authority (PHA) and the BDU had previously entered into an industrial agreement governing the terms and conditions of employment of the junior doctors in the public health system. The agreement provided for the payment of holiday pay to members of the bargaining unit.

However, a dispute arose as to the payment of the outstanding holiday pay under the agreement, owed to them over the past decade.

On September 25, 2018, the BDU filed a trade dispute under the provisions of the IRA seeking to have the matter resolved. On December 17 of that year, BDU’s members took a strike vote that was supervised by the Department of Labour. Two days later, the minister of labour issued a strike certificate certifying the results of the poll in favour of the union engaging in strike action.

On August 21 of 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.

Senior doctors and consultants were thus required to work around the clock, limiting care to only the critically ill. 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.

Meanwhile, the BDU claimed that on August 21, its executives met with Prime Minister Dr Hubert Minnis, as well as Mr Ferguson and Minister of Labour Dion Foulkes. At that meeting, Dr Minnis agreed that his administration was prepared to pay $5m owed to the junior doctors in three instalments. However, the prime minister said he was not prepared to discuss the “non-monetary” aspect of compensation as he needed more time to peruse the proposal.

Despite those assurances, the BDU continued strike action.

As a result, Mr Foulkes, in a press statement on August 25, noted that the union’s strike action had “threatened the public interest” and consequently referred the matter to the Industrial Tribunal in accordance to Section 76 of the IRA. At the time, Mr Foulkes said he notified all parties to the dispute in writing.

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.

Justice Winder noted in his ruling that the provisions of that section are “clear and unambiguous”. 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. At that point, the only issue for determination was whether the BDU breached the relevant portions of the IRA.

Justice Winder found as much, noting: “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.”