Labour disputes and certification/decertification process
First Published in The Bermuda Chamber Of Commerce Newsletter (Chamber Insider), September 2021.
There has been much discussion in the news recently about labour disputes between different unionised employee groups and the Government of Bermuda. This article discusses the law around those disputes, generally, and specifically considers the process by which employees become unionised (known as the ‘certification’ process) and the process by which unionised employees de-unionise (known as ‘decertification’).
What is a Labour Dispute and how are they referred to a Tribunal?
The Trade Union and Labour Relations (Consolidation) Act 2021 (Act) defines a labour dispute, in summary, as follows: a dispute between an employer and an employee (or a trade union acting on the employee’s behalf) or between workers and other workers, concerning one or more of the following:
(a) The terms and conditions of employment or the conditions at the workplace;
(b) Hiring and firing;
(c) Allocation of work between workers or groups of workers;
(d) A collective bargaining agreement;
(e) A contravention of certain parts of the Act where a civil penalty may be imposed; or
(f) Such other matter as the Minister may declare by order published in the Gazette.
Note: Labour disputes do not include a matter that has been the subject of a complaint that has already been settled by an inspector or determined under the Employment Act provisions concerning enforcement.
The newly-amalgamated Employment and Labour Relations Tribunal (Tribunal) now has jurisdiction over labour disputes. In order for a labour dispute to be referred to the Tribunal, the matter must first have been referred to the Manager of Labour Relations (Manager). The Manager must consider the dispute and determine whether it is capable of resolution. If it is, then the Manager must attempt a resolution between the parties. If the Manager fails to effect a resolution or determines that the dispute is not one amenable to resolution, he must refer the matter to the Minister of Labour.
Once the dispute is referred to the Minister, the Minister is required to take steps to promote a settlement between the parties. If those steps prove unsuccessful, the Minister must refer the dispute to the Tribunal for determination or settlement.
Recent examples of this process being carried out include the recent dispute between Government and the bus drivers and the earlier dispute between the Bermuda Industrial Union and the Government concerning the amendment to Bermuda’s labour law in relation to voting rights in the decertification process.
The Certification and Decertification Processes
As noted above, certification is the process by which a group of employees obtain recognition as a unionised body of employees. Decertification (also referred to as the cancelation of a union’s certification) is the process by which unionised employees revert back to non-unionised status: i.e. their respective union will no longer have the rights to collectively negotiate and act on their behalf. However, decertification does not necessarily mean that the workplace becomes non-unionised. A group of unionised employees could, for example, use the decertification process to achieve their objective of being represented by a different union or by a new stand-alone union of their own creation. In order to accomplish such an outcome, they would first have to decertify, then seek certification of the new union.
Certification or decertification can occur in two ways: either by agreement between a union and the employer or by anonymous ballot of the workforce. The threshold for success is no less than 50% of the votes cast.
Recent Amendments to the Labour/Employment Legislation
In earlier articles we have covered various changes to Bermuda Employment and Labour legislation that have come into effect this year. For the purposes of this article we focus on the changes in respect to voting rights on certification and decertification ballots.
The key change is that under the previous regime, only members of the certified union had a right to vote on a decertification ballot. In practical terms, this meant that any employee who formed part of that unionised group of employees who elected to donate their union dues to charity (in lieu of being members of the union) would not be able to vote on decertification. Under the recent legislative changes, those non-union members now have a right to vote on decertification.
Without expressing a view on the merits of the dispute between the Government and the unions, it is not surprising that this change has proven to be contentious, as the practical effect is likely to be that it will be easier for a decertification ballot to pass, as those non-union members who are now able to vote are likely to be less in favour of the union.
Summary
Labour relations is a sensitive and emotive issue and the recent changes to the law have caused much debate. Managing labour relationships effectively and in compliance with the law is no simple task. When a labour dispute arises, care must be exercised to ensure appropriate steps are taken to manage the process. Groups of employees who wish to either unionise or decertify should seek advice on that process at an early stage to ensure it is carried out to the letter of the law. Likewise, employers faced with a ballot in their workplace should consider taking legal advice on the implications for them.
If you would like to discuss the topics addressed in this article, please contact a member of the Employment team, Jordan Knight ([email protected]) or Bradley Houlston ([email protected]).
