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This article is part 3 of our series on the changes to labor and labor law in Bermuda, which will come into effect on June 1, 2021.
This article specifically focuses on the introduction of the Labor Relations and Trade Unions (Consolidation) Act 2020 (TULRCA) and the following major changes to labor law:
- The changes in the certification and de-certification process of the trade unions
- The introduction of civil penalties
- Establishment of a single tribunal to hear labor and industrial disputes.
Union certification
“Certification” is the formal process by which a group of employees (a “business”) who have collectively determined that they wish to be unionized, becomes a member of a union. The group of workers will tell the employer and the union that they want certification, and a vote will take place where at least 60 percent of eligible workers must vote for certification to be successful.
After certification, workers have the right to be represented by their union and to negotiate the terms of their employment not individually but collectively. Employees who are part of a business receive mandatory deductions from their salary, which are paid either to the appropriate union or to a charity of their choice.
The opposite of certification is decertification. This is the process by which a group of already unionized workers determines that they no longer wish to be unionized.
Some of the key changes TULRCA will introduce to the certification / decertification processes are:
- The ability for all parties to agree on certification / decertification without the need for formal voting.
- In a decertification vote, all members of the business are eligible to vote, not just those who pay union dues. This has been a controversial issue as, under current legislation, those who do not pay union dues – inevitably those who are most likely to vote for decertification – are automatically excluded from voting.
- Employees no longer have the option to pay money to a charity or to the union. Employees can still choose not to be union members, but their union dues are paid to the union in lieu of membership. The government justifies this change by saying that non-union members who are part of a business will continue to benefit from collective bargaining and the union will continue to incur costs on behalf of those non-members.
Civil penalties
Outbound labor law contained statutory offenses for certain behaviors that were criminal offenses. Examples include:
- An employee who takes part in a strike or irregular industrial action shortly before a strike that has been declared illegal.
- Failure to follow the rules at peaceful pickets.
Currently, any commission of these crimes can only be prosecuted as a criminal offense for which a complaint is lodged with the public prosecutor. TULRCA will empower the new tribunal and industrial relations manager to impose civil sanctions for the following offenses:
- Basic Unlawful Workers Strike / Irregular Industrial Action: The industrial relations manager can impose a fine of up to US $ 5,000 and the tribunal can impose a fine of up to US $ 10,000.
- Violation of the peaceful picket rules: The tribunal can impose a civil penalty of up to US $ 10,000 (only).
Labor and Labor Disputes Tribunal
Currently, if an employee is pursuing a complaint of a violation of their employment rights under the Employment Act 2000, they will be referred to the Employment Tribunal for a hearing and decision if it is not resolved in the mediation phase. Under the existing Labor Relations Act of 1975 and the Trade Union Act of 1965, unresolved labor disputes are referred to the Permanent Court of Arbitration for decision.
The new legal framework will change the structure and process of the tribunal in the following ways:
- Legislation will amalgamate the various tribunals;
- All hearings in the combined tribunal will be negotiated in public, unless the tribunal decides that they should be negotiated privately. and
- The tribunal will now have express legal powers to give instructions on the procedure for hearing disputes, for example in relation to document disclosure.
The practical advantage of merging the different tribunals is that there will be a larger pool of panel members who can be convened for hearings and a uniform procedural framework. Currently, the pool of panel members for any tribunal is relatively small and it can be difficult to find enough available members to schedule hearings.]
The shift from private to public hearings will result in legal practitioners and employers receiving public reports on decisions made by the new tribunal. However, employers in particular often saw it as an advantage to have labor disputes decided privately. As part of their litigation strategy, employers, employees and trade unions must consider the possible effects of a public hearing on their reputational and business interests at an early stage.
Summary
Together with the changes discussed in Parts 1 and 2 of this series, the changes discussed above will have a significant impact on labor and labor law. Employers need to carefully consider the new requirements, especially now that breaches of certain legal provisions can result in the imposition of a civil penalty.
Originally published in the Bermuda Chamber of Commerce (Chamber Insider) newsletter, February 2021
The content of this article is intended to provide general guidance on the subject. A professional should be obtained about your particular circumstances.
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