The following letter to members of the ‘PLP Family’ was released for publication last night (June 10) by the Minister of Labour, Jason Hayward…
Dear PLP Family,
I would like to take this opportunity to address the membership of the Progressive Labour Party regarding the decertification procedure pursuant to the Trade Union and Labour Relations (Consolidation) Act 2021. Over the last few weeks there has been substantial discussion on the topic of decertification.
As a Trade Unionist, former President of the Bermuda Public Services Union and the Bermuda Trade Union Congress it is unconscionable for anyone to believe that I, as the Minister of Labour, would do anything that would weaken or destroy the country’s trade unions. The Trade Union and Labour Relations (Consolidation) Act 2021, that I ushered through the House of Assembly on behalf of the PLP Government, undeniably increased the rights of workers and strengthened the country’s unions. The new labour code is the most pro-worker legislation that has been progressed by any government in Bermuda’s history.
Despite the many amendments that have been made to strengthen the benefits to workers and strengthen the country’s unions, the Government of Bermuda and the Bermuda Industrial Union differ on one section of the Act, and that is the cancelation of certification the process that determines whether workers within a bargaining unit continue with a union being an exclusive bargaining agent for the workers of that unit. On this matter the Government of Bermuda is acting from the principles of reasonableness and fairness and will continue to remain fair and reasonable as it seeks to balance the interests of all workers in the bargaining unit.
It must be noted that the Government did not change the legislation as it pertains to the cancellation of union certification. The language that exists in the current legislation mirrors the language that existed in the old Trade Union Act and the amendments for the cancellation of union certification were brought into force in May 2000, under a PLP Government. The BIU is aggrieved that the Government did not strip away rights of non-unionized workers in a bargaining unit during a Government administered workplace cancellation of certification ballot where an agency shop agreement exists.
The Government did introduce an amendments for automatic certification and decertification. However it must be noted the composition of workers who are eligible to vote in a bargaining unit did not change from the old legislation brought into force under the PLP Government in 2000 and the new legislation brought into force last week. I must repeat, in any organised workplace, the same workers who could participate in a ballot to cancel a union’s certification last year, are the same workers who can participate in the ballot this year. There is no change!
The BIU’s position, as expressed to the Government is that:
i. Only current union members should have the ability to trigger a decertification ballot/form part of the 35% needed to make a decertification application;
ii. Only current union members should have the ability to participate in the decertification ballot irrespective of the existence of an agency shop; and
iii. The Act should be amended to increase the threshold for decertification from more than 50% to 60% and to increase the threshold for automatic decertification from 60% to 65%.
The Government’s position on these matters are as follows:
i. The decertification ballot is a workplace ballot administered by the Government in the interest of workers and is not a union administered ballot. As such, the Government must consider the rights of all workers within the bargaining unit.
ii. Any worker that falls under an Agency Shop has the right to participate in a decertification ballot, whether he is a member of a trade union or not, as he has equal contributions deducted from his wages on a regular basis.
iii. Workers who do not fall under an Agency Shop and are not members of a trade union will not be considered a part of the appropriate bargaining unit eligible to vote in a decertification ballot.
iv. Although all members of the bargaining unit, whether they are union members or agency shop, shall participate in a decertification ballot, it is only persons who are members of the union or former members of the union who make up the 35% to trigger a decertification ballot.
v. The Government does not support the proposed legislative shifting of the percentages from a simple majority to 60% for a decertification ballot, or the shift from 60% to 65% for automatic decertification as this is not equitable and is inconsistent with the percentages required for the certification and automatic certification processes which are a simple majority and 60%, respectively.
After reviewing trade union legislation in other jurisdictions, it is typical for all persons within a bargaining unit, to participate in the decertification ballot irrespective of trade union membership. This is also consistent with a Court of Appeal ruling in Bermuda which confirmed that all members of a bargaining unit have the right to participate in workplace ballots irrespective on union membership.
The Government’s view is that there should be parity in the approach taken for certification and decertification and that this Act is a balanced, well thought out and fair piece of legislation. The Act positively impacts unions by placing restrictions on the persons who can trigger the decertification process and by making it easier for a union to advance an automatic certification.
These amendments will not negatively impact the current status of unions or erode the rights of union members as the persons currently eligible to vote in a decertification ballot did not change after 1 June 2021.
It is most unfortunate that we find ourselves in an impasse when workers and the country can least afford it. Over the last year the Government has worked diligently to combat the healthcare crisis and move Bermuda towards economic recovery. We have supported families and business in their times of need and we are committed to ensuring a better quality of life for all in this country.
It is my aim that reason will prevail and we can progress pass this current matter. However, as a Labour Government who have demonstrated our commitment to labour with this landmark legislation, it would be negligent of us to strip away existing worker’s workplace rights because it is politically expedient. It is fair and it is just that workers who surrender deductions from their wages should have the right to participate in a Government administered workplace ballot pertaining to their bargaining rights.
Jason P. Hayward – Your Minister of Labour