Trade Union Amendment Act 1998

Link to law: http://www.bermudalaws.bm/Laws/Annual%20Laws/1998/Acts/Trade%20Union%20Amendment%20Act%201998.pdf

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Trade Union Amendment Act 1998
TRADE UNION AMENDMENT ACT 1998

1

BERMUDA
1998 : 41

TRADE UNION AMENDMENT ACT 1998

[Date of Assent 7 October 1998]

[Operative Date 1 May 2000]

WHEREAS it is expedient to amend the Trade Union Act 1965:

Be it enacted by The Queen's Most Excellent Majesty, by and
with the advice and consent of the Senate and the House of Assembly of
Bermuda, and by the authority of the same, as follows:

Short title
1 This Act may be cited as the Trade Union Amendment Act 1998.

General amendment of Act No 171 of 1965
2 The Trade Union Act 1965 ("the Act") is amended generally by
deleting the words "workman", "workman's", "workmen" and "workmen's"
wherever they occur and substituting the words "worker", "worker's",
"workers" and "workers' " respectively.

Insertion of new provisions in Act
3 The following provisions are inserted in the Act next after section
30—

"Regulation of bargaining rights of certain trade unions
30A (1) This section and sections 30B to 30S shall have
effect for the purpose of regulating the recognition of collective
bargaining rights.

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(2) In sections 30B to 30S—

"ballot" means a secret ballot;

"bargaining agent" means a union that acts on
behalf of workers;

"bargaining unit" means, except in section 30F(3)
and (4)(b), a group of two or more workers (all
being non-management persons) in an
undertaking, on behalf of whom collective
bargaining may take place;

"to certify", in relation to a union, means to certify
that union under section 30F or 30G, as the
case may require, as the exclusive bargaining
agent in respect of a bargaining unit; and
"certification" and other cognates of "certify"
have corresponding meanings;

"management person" means a person who in the
course of his employment in an undertaking—

(a) is responsible for the direction and
management of the undertaking; or

(b) has authority to appoint or dismiss or
exercise disciplinary control over workers in
the undertaking;

"non-management person" means a person who is
not a management person;

"this Part" means this section and sections 30B to
30S, including the First and Second Schedules;

"the Tribunal" means the Tribunal for which
provision is made in section 30R;

"union" means a trade union whose principal
purposes are the representation and promotion
of workers' interests and the regulation of
relations between workers and employers, and
includes a federation of trade unions but not an
organization or association that is dominated by
an employer or by an employers' organization.

Application for certification
30B (1) A union claiming to have as members in good
standing 35 per cent or more of the workers in a proposed

TRADE UNION AMENDMENT ACT 1998

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bargaining unit may, subject to the provisions of this Part, make
application to the Labour Relations Officer to be certified in
respect of that proposed bargaining unit.

(2) Where there is no union certified as mentioned in
subsection (1), the application may be made at any time.

(3) Where there is a union certified as mentioned in
subsection (1), the application shall not be made before the
expiry of 24 months beginning on the date of that certification.

(4) Where a union has made an application under
subsection (1) and has failed for whatever reason to gain
certification in respect of a bargaining unit, that union may not
make another application to be certified before the expiry of 12
months beginning on the date of the previous application.

Application procedure
30C An application under section 30B shall—

(a) be in writing;

(b) include—

(i) a description of the proposed bargaining
unit; and

(ii) a statement of the facts upon which the
union relies as showing that 35 per cent
or more of the workers in that unit wish
to have the union as their exclusive
bargaining agent; and

(c) be served on the employer.

The bargaining unit
30D (1) On receipt of an application under section 30B, the
Labour Relations Officer shall assist the union and the employer
to determine the bargaining unit that is appropriate in the
circumstances ("the appropriate bargaining unit"), having regard
to the following factors—

(a) the community of interest among the workers in
the proposed bargaining unit;

(b) the nature and scope of the duties of those
workers;

(c) the views of the employer and of the union as to
the appropriateness of the proposed bargaining
unit;

TRADE UNION AMENDMENT ACT 1998

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(d) the historical development, if any, of collective
bargaining in the undertaking.

(2) If the union and the employer are not able to agree
on the determination of the appropriate bargaining unit within
such reasonable period as the Labour Relations Officer may
allow, the Labour Relations Officer shall so advise the Minister
and the Minister shall refer the issue to the Tribunal for
determination; and the order of the Tribunal determining the
issue shall be final and shall not be subject to any appeal.

(3) The date of an application under section 30B is the
relevant date in respect of which the appropriateness of the
bargaining unit shall be considered.

Response by the employer
30E (1) Within fourteen days after receipt of service of an
application under section 30B, the employer shall give notice
either—

(a) that he agrees to the application, in which event
the Labour Relations Officer shall, subject to
section 30F, certify the union; or

(b) that he opposes it, in which event the Labour
Relations Officer shall conduct a ballot under
section 30G.

(2) A notice under subsection (1) shall be in writing
addressed to the Labour Relations Officer and, where it is given
under paragraph (b) of that subsection, shall specify the
employer's reasons.

(3) If an employer on whom an application under
section 30B has been served does not give notice under
subsection (1) within the fourteen days allowed by that
subsection, he shall be deemed to have agreed to the application.

Certification where there is agreement
30F (1) This section applies where one union only has
made application under section 30B and the employer has
agreed to the application.

(2) If the Labour Relations Officer is satisfied that more
than 50 per cent of the workers in the bargaining unit support
the union, he shall certify that union as the exclusive bargaining
agent in respect of that unit.

TRADE UNION AMENDMENT ACT 1998

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(3) A union party to an agreement to which subsection
(4) applies shall be deemed to have been certified under this
section, on the date of commencement of the Trade Union
Amendment Act 1998, as the exclusive bargaining agent in
respect of any bargaining unit of workers in respect of which the
agreement designates that union as the exclusive agent for
collective bargaining purposes.

(4) This subsection applies to any agreement between
a union and an employer—

(a) which was in existence immediately before the
date of commencement of the Trade Union
Amendment Act 1998;

(b) which designates a union for collective
bargaining purposes as the exclusive agent of
workers in a bargaining unit in that employer's
undertaking, whether or not that bargaining
unit includes management persons; and

(c) a copy of which immediately before that date
was held by the Minister in a register of such
agreements.

Certification in other cases
30G (1) This section applies where either—

(a) one union only has made application under
section 30B and the employer has opposed the
application; or

(b) more than one union has made such an
application.

(2) In a case to which subsection (1)(a) applies, the
Labour Relations Officer shall conduct a ballot among the
workers in the bargaining unit and, if the ballot shows that more
than 50 per cent of the workers voting in the ballot support that
union, he shall certify the union as the exclusive bargaining
agent in respect of that bargaining unit.

(3) In a case to which subsection (1)(b) applies, the
Labour Relations Officer shall conduct a ballot among the
workers in the bargaining unit and if the ballot shows that none
of the unions in question is supported by more than 50 per cent
of the workers voting in the ballot, the Labour Relations Officer
shall conduct a second ballot.

(4) If, in a case to which subsections (1)(b) and (3)
apply, there are only two unions competing in the second ballot,

TRADE UNION AMENDMENT ACT 1998

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the Labour Relations Officer shall certify as the exclusive
bargaining agent in respect of the bargaining unit that union
which is shown by that ballot as having the support of more
than 50 per cent of the workers voting in that ballot.

(5) If, in a case to which subsections (1)(b) and (3)
apply, there are more than two unions competing in the second
ballot and none of those unions is supported by more than 50
per cent of the workers voting in the ballot, then the Labour
Relations Officer shall conduct a third ballot, in which the only
union in support of which votes may be cast shall be the union
which obtained the highest number of votes in the second ballot;
and in that third ballot that union shall be certified as the
exclusive bargaining agent in respect of the bargaining unit if,
but only if, that ballot shows that more than 50 per cent of the
workers voting in that ballot support that union.

Duties of employer in relation to conduct of ballot
30H In relation to the conduct of such a ballot, the
employer—

(a) shall take all necessary steps to ensure that every
worker who is eligible to vote in the ballot has the
opportunity to do so; and

(b) shall permit every such worker to be absent from
work, for a reasonable time and without deduction of
pay, for the purpose of so voting.

Protection of voting in ballot
30I (1) In relation to the conduct of such a ballot, a
person—

(a) shall not offer or receive, or agree to offer or
receive, any money, loan, reward, office or place
of employment for voting, or agreeing to vote, or
for refraining or agreeing to refrain from voting,
for a union;

(b) shall not offer to any person, or accept or take
from any person, any food or drink or provision
as an inducement to vote or refrain from voting,
or as a reward for having voted or refrained from
voting; or

(c) shall not threaten, intimidate, restrain, or use
any physical force upon, any person to induce or

TRADE UNION AMENDMENT ACT 1998

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compel that person to vote or refrain from
voting.

(2) A person who contravenes subsection (1) commits
an offence.

Duties of persons generally in relation to conduct of ballot
30J (1) In relation to the conduct of such a ballot, a person
shall not—

(a) in or at the premises on which the ballot is held
on the day of the ballot, seek to influence a
worker affected by the ballot to vote, or refrain
from voting, for a union; or

(b) wilfully obstruct or hinder any person in the
course of voting by that person or the carrying
out by him of any other function that he has
under this Part.

(2) A person who contravenes subsection (1) commits
an offence.

Grant or refusal of certification
30K (1) Within a reasonable period (which however shall
not exceed 3 months or such longer time as the union and the
employer may agree) after receipt of an application under section
30B, the Labour Relations Officer shall determine either—

(a) that he certifies the union as the exclusive
bargaining agent in respect of the bargaining
unit; or

(b) that he refuses to do so.

(2) A refusal by the Labour Relations Officer under
paragraph (b) of subsection (1) shall be expressed to have been
made on the ground that he is not satisfied that more than 50
per cent of the workers in the bargaining unit support the
certification of the union.

(3) A determination by the Labour Relations Officer
under this section shall be made by order; and section 30R shall
have effect as respects service and the time of taking effect of the
order and any appeal from the order, and otherwise in relation to
the order.

Compulsory recognition and duty to treat
30L Where a union has obtained certification in respect of a
bargaining unit and the certification remains in force, the

TRADE UNION AMENDMENT ACT 1998

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employer shall deal with that union accordingly; and the union
and the employer shall, subject to this Part, in good faith treat
and enter into negotiations with each other for the purposes of
collective bargaining.

Closing of undertaking
30M (1) Where, in relation to an employer, a union either—

(a) has made an application under section 30B
which has not been determined; or

(b) has been certified in respect of a bargaining unit
in his undertaking and the certification remains
in force,

the employer, if he decides to discontinue the undertaking, shall
give to the Labour Relations Officer and to the union notice in
writing of—

(c) the time when the undertaking is to be
discontinued (being a reasonable time after the
giving of the notice);

(d) the reasons why the undertaking is being
discontinued; and

(e) the number and categories of workers that will
be affected.

(2) An employer who contravenes subsection (1)
commits an offence.

(3) In proceedings for an offence of contravening
subsection (1) it is for the employer to prove that any notice
given by him was reasonable within paragraph (c) of that
subsection.

Effect of certification
30N Where a union gains certification in respect of a
bargaining unit—

(a) that union replaces any other union that had
previously been so certified in respect of that
unit, and has exclusive authority to bargain
collectively on behalf of that unit; and

(b) the certification of that other union is deemed to
be cancelled.

TRADE UNION AMENDMENT ACT 1998

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Access to employer's premises
30O (1) An employer shall not deny to an authorized
representative of a union that is certified in respect of a
bargaining unit in that employer's undertaking such access to
the employer's premises as is reasonable and necessary for the
purposes of the activities of the union, being lawful activities of
the union arising out of its certification.

(2) A grant of access complies with subsection (1)
notwithstanding that it may be subjected to restrictions as to
time or place which are necessary or reasonable in the interest of
safety or of avoiding undue disruption of the employer's
business.

(3) An employer may, by notice in writing addressed to
a union that is certified in respect of a bargaining unit in that
employer's undertaking, require that a representative of the
union shall not engage in activities of the union which are to
take place on the employer's premises except with the
permission of the employer; and, where such a requirement has
been made of a union, a representative of the union shall not
engage in any such activities except in accordance with the
requirement.

(4) If a person—

(a) contravenes subsection (1); or

(b) engages in activities on premises in
contravention of a requirement under
subsection (3) applying to him,

he commits an offence.

Cancellation of certification
30P (1) A worker in a bargaining unit ("the existing unit")
may, at any time after the expiration of one year after a union
has been certified in respect of that unit, make application in
writing to the Labour Relations Officer for the cancellation of the
certification on the ground that 35 per cent or more of the
workers in that unit no longer support the union.

(2) An application under subsection (1) shall be
accompanied by evidence substantiating the ground mentioned
in that subsection.

(3) On receipt of an application under subsection (1),
the Labour Relations Officer shall enquire into the
appropriateness of the existing unit in light of the following
factors—

TRADE UNION AMENDMENT ACT 1998

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(a) the community of interest among the workers in
the existing unit;

(b) the nature and scope of the duties of those
workers;

(c) the views of the employer and of the union as to
any changes that ought to be made in the
existing unit,

and shall assist the union and the employer to determine the
bargaining unit that is appropriate in the circumstances.

(4) If the union and the employer are not able to agree
on the determination of the appropriate bargaining unit within
such reasonable period as the Labour Relations Officer may
allow, the Labour Relations Officer shall so advise the Minister
and the Minister shall refer the issue to the Tribunal for
determination; and the order of the Tribunal determining the
issue shall be final and shall not be subject to any appeal.

(5) Within 30 days after receiving notice of a
determination of the appropriate bargaining unit, the Labour
Relations Officer shall conduct a ballot of the workers in the
bargaining unit as reconstituted (if the circumstances require)
pursuant to subsections (3) and (4).

(6) If on such a ballot it is shown that more than 50
per cent of the workers voting in the ballot do not support the
union, the Labour Relations Officer shall cancel the certification
of the union; and, subject to subsection (7), the union shall
cease to be the exclusive bargaining agent in respect of that unit
in accordance with the order.

(7) Cancellation of the certification of a union by the
Labour Relations Officer under subsection (6) shall be made by
order; and section 30R shall have effect as respects service and
the time of taking effect of the order and any appeal from the
order, and otherwise in relation to the order.

(8) Where the certification of a union is cancelled, that
union may not make application under section 30B in respect of
the bargaining unit in question until a period of 12 months has
expired.

(9) If on a ballot under subsection (5) it is shown that
more than 50 per cent of the workers voting in the ballot support
the union, the Labour Relations Officer shall by order reject the
application under subsection (1); and section 30R shall have

TRADE UNION AMENDMENT ACT 1998

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effect as respects service and the time of taking effect of the
order and any appeal from the order, and otherwise in relation to
the order.

(10) Where an application under subsection (1) is
rejected under subsection (9), another such application shall not
be made until a period of 12 months has expired.

Procedure on a ballot
30Q The First Schedule shall have effect as to the procedure
to be followed in the conduct of a ballot pursuant to section 30G
or section 30P(5).

Orders of the Labour Relations Officer and appeals
30R (1) This section applies to an order made by the
Labour Relations Officer under section 30K(3) or 30P(7) or (9).

(2) The order shall be in writing, signed by the Labour
Relations Officer and dated, and addressed to the union and the
employer.

(3) A copy of the order shall be delivered to the union
and the employer on the day of the date of the order and, subject
to this section, the order shall take effect on the fourteenth day
next following the day of delivery or such later day, if any, as is
specified in the order.

(4) The union or the employer may appeal to the
Minister by notice in writing—

(a) addressed to the Minister and delivered to him
before the day on which the order would take
effect under subsection (3); and

(b) stating the appellant's grounds of appeal.

(5) Where the Minister receives a notice of appeal
within the time allowed by subsection (4)—

(a) the Minister shall cause an appeal to be
conducted pursuant to the provisions of
subsection (7); and

(b) the order is suspended pending the
determination of the appeal.

(6) If the Minister does not receive a notice of appeal
within the time allowed by subsection (4), the order takes effect
on the day provided for in subsection (3).

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(7) The provisions referred to in paragraph (a) of
subsection (5) are as follows—

(a) the Minister shall in writing refer the issue or
issues raised by the notice of appeal to the
Tribunal;

(b) the Tribunal shall as soon as may be determine
the issue or issues in question and by order
either confirm the order the subject of the
appeal or modify that latter order as the
Tribunal sees fit;

(c) the order of the Tribunal shall be final and shall
not be subject to any appeal, and shall have
effect in substitution for the order the subject of
the appeal.

(8) The Second Schedule shall have effect as to the
constitution and procedures of the Tribunal, and otherwise as to
the operation of the Tribunal.

Offences
30S A person who commits an offence against a provision of
this Part is liable on summary conviction to a fine not exceeding
$2,000 or imprisonment for a term not exceeding six months.".

Addition of Schedules to Act
4 (1) The Schedules set forth in the Schedule to this Act are
added to the Act as respectively the First Schedule and the Second
Schedule to the Act.

(2) Consequentially upon subsection (1)—

(a) the expression "the Schedule" in section 48(1)(e) of the
Act is replaced by the expression "the Third Schedule";
and

(b) the word "Third" is inserted next before the word
"Schedule" in the heading to the Schedule to the Act.

Commencement
5 This Act comes into operation on such date as the Minister
responsible for Labour may appoint for the purpose by notice published
in the Gazette.

TRADE UNION AMENDMENT ACT 1998

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THE SCHEDULE (Section 4(1))

"FIRST SCHEDULE (Section 30Q)

Conduct of a Ballot

1. (1) The Labour Relations Officer shall be in charge of
the ballot and have responsibility for its orderly conduct.

(2) Where any matter occurs in relation to the ballot
which is not regulated by this Schedule, the Labour Relations
Officer shall deal with the matter in his discretion.

2. The ballot shall be conducted at a convenient place on
the premises where a majority of workers are employed at such
time as the Labour Relations Officer, after consultation with the
employer and the union, may determine.

3. The Labour Relations Officer shall formulate the
question to be decided on the ballot, shall prepare voting forms,
which shall state that question and make provision for
answering it, and shall give a voting form to each person who in
his opinion is entitled to vote in the ballot.

4. Before any person votes, the Labour Relations Officer
shall explain to him in simple language the purpose of the ballot
and the procedures to be followed.

5. The Labour Relations Officer shall, subject to his
responsibility under sub-paragraph (1) of paragraph 1 for the
orderly conduct of the ballot, allow such representatives of the
union or unions concerned and the employer as the Labour
Relations Officer sees fit to be present in the voting-place to
observe the ballot.

6. The Labour Relations Officer may use such persons as
he sees fit to assist him in the conduct of the ballot.

7. As soon as all persons entitled to vote in the ballot and
who wish to do so have voted, the Labour Relations Officer shall
count the votes and record the result on a standard certification
form.

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8. The decision of the Labour Relations Officer as to the
result of a ballot shall be final and not be subject to any appeal.

SECOND SCHEDULE (Section 30R(8))

The Tribunal

1. In this Schedule

"the issue" means the issue or issues referred by the
Minister to the Tribunal under subsection (2) of
section 30D, subsection (4) of section 30P or
subsection (7) of section 30R;

"the 1992 Act" means the Trade Disputes Act 1992.

2. On receipt of advice of the Labour Relations Officer that
the union and the employer are unable to agree on the
determination of the appropriate bargaining unit or on receipt of
a notice of appeal under subsection (5) of section 30R, the
Minister shall by instrument in writing appoint three persons to
be members of, and to form, the Tribunal, and one of those
members to be its Chairman.

3. Before appointing a member of the Tribunal other than
the Chairman, the Minister shall consult the employer and a
representative of workers.

4. The members of the Tribunal shall hold office until the
Tribunal hands down its order determining the issue.

5. The Minister may appoint such officers and servants to
serve the Tribunal as he may consider necessary.

6. Sections 7 to 10, 12 and 13 of the 1992 Act shall have
effect, with the necessary changes, in relation to the Tribunal as
those sections have effect in relation a Trade Disputes Tribunal
constituted under the 1992 Act.

7. (1) If a question arises as to the interpretation of the
Tribunal's order determining the issue, then the Minister, upon
being notified by any person aggrieved by the order, shall re-
appoint the Tribunal and shall, for that purpose, re-appoint the
original Chairman and members if they are available; and

TRADE UNION AMENDMENT ACT 1998

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paragraphs 1 to 6 of this Schedule shall have effect, with the
ncessary changes, for the purposes of any such re-appointment.

(2) Where a Tribunal is re-appointed under sub-
paragraph (1), subsections (2) to (4) of section 17 of the 1992 Act
shall have effect, with the necessary changes, for the purposes of
sub-paragraph (1) as those subsections have effect for the
purposes of subsection (1) of section 17 of the 1992 Act.".

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