Photo: Darrel Bradley, Attorney for second to seventh defendant
A landmark ruling delivered by Justice Chabot today in the PBL v CWU declares that statutory immunities for unions and their members to protect them from civil liability under the Trade Union Act were implicated repealed by the Trade Unions and Employers Organization (Registration, Recognition, and Status) Act
by Marco Lopez
BELIZE CITY, Mon. May 29, 2023
An attempt by the attorneys involved in the Port of Belize v Christian Workers Union et al claim to answer purely legal questions has made this controversial case even murkier. A landmark ruling on those preliminary questions of law handed down by Justice Genevieve Chabot today declares for the first time by the domestic courts an express right to strike enshrined within the Belize Constitution. In another breath, Justice Chabot however declared that the rights to statutory immunity afforded trade unions and its members under the Trade Union Act is not extended to those unions registered under a subsequent piece of legislation – the Trade Unions and Employers Organization (Registration, Recognition, and Status) Act (TUEORRS Act).
The ruling outlined that section 33 and 34(1) of the Trade Unions Act were impliedly repealed by subsection 16(2) of the TUEORRS Act. Citing case law which states as a principle of statutory construction “where the provisions of an Act are inconsistent with the provision of an earlier Act the earlier provisions may be impliedly repealed by the latter.”
Darrell Bradley, attorney for former Christian Workers Union (CWU) president, Evan “Mose” Hyde, said in an interview today that that is a decision that should be left up to the legislative branch of government, in keeping with the Principles of Separation of Powers, and outlines that it is not the courts place to change laws.
“If there is to be any kind of repeal, including the repeal that came down which is an implied repeal, if there is to any kind of repeal of those immunities that is something that should be done by the legislative branch of government,” Bradley said.
He expressed that the question of whether or not the statutory immunities were repealed in the new legislation is not a judicial one and points to the significant policy implication that can arise from such a declaration.
“Essentially what we are saying is that if we can sue a trade union for tortious liability, that fundamentally undermines the ability of the trade union to effectively engage in trade negotiations,” Bradley explained.
The Trade Union Act was legislated in the 1940s before the Belize Constitution was enacted, and sections 33 and 34(1), provided near-absolute protection for trade unions and their members when engaged in industrial action. The provision protected strikers from civil actions, preventing lawsuits from employers to act as deterrents to industrial action. The new TUEORRS Act does not explicitly provide statutory immunity for unions, and as described by the court – legislates a narrower “qualified immunity”. The Claimants argue that the CWU would have had to be registered under the Trade Union Act to benefit from the immunity provided under that law.
Bradley, however, pointed out that this creates two regimes for trade unions in the country, one that governs those registered under the Trade Union Act and are protected with near absolute immunity, and another registered under the TUEORRES, with narrow immunity and less protection. He explained that that creates an apparent inequality, and also breaches constitutional rights.
The ruling states that section 33 and 34(1) of the Trade Union Act cannot be reconciled with section 16(2) TUEORRS Act since that latter provision “clearly evidenced a legislative intent to move away from a near absolution to a qualified immunity.”
Bradley explained section 16(2), “We went from one immunity to the other, but this one immunity made the trade unions immunity and the other immunity only made the members of the trade union immune, and not the trade union itself, but the entity that you would want to make immune is the actual trade union. Because you are involved in collective bargaining.”
“In this particular case you are talking about stevedores; these are people are working for 30, 40 years. It’s kind of a family trade, a profession that has developed over many years, and these are not people who are wealthy; these are people who are hardworking people, and you are saying if they want to agitate for their rights, and if they want to agitate in a confrontational manner – now we’re are not talking about breaking up anything, or we’re not talking about burning down any building, but we’re talking about activities that may involve trespass, going on to the employer’s premises, picketing, maybe shouting slogans – these kinds of activities are not to be punished by civil liability. Especially within the context of a case that says you have the right to strike,” Bradley expressed.
He said that the ruling presents a dichotomy, expressing a constitutional right to strike, but allowing for civil liability to arise from such strike action. This is one impact that the implied repeal of sections 33 and 34(1) of the Trade Union Act declared in this ruling present. Another impact, Bradley believes, is that this interpretation of the law may very well open the full gates of employer vs employee litigation in cases in which strike actions are seen as tortious by employers. In the case of CWU, the employers of its members, PBL, sued the leaders, and the members involved in the negotiating team.
“What does the right to strike mean if I can sue you, and interestingly again, I did not sue the individual stevedores. I sued the president of the trade union, and I sued the members of the negotiating team who were all conducting lawful negotiations. So that you are, in a sense, and this is what we are saying respectfully, it is our opinion, that in this manner you can open the full gates for employers to use ligation in an oppressive tactical manner to stifle legitimate trade and industrial action,” Bradley pointed out.
Justice Chabot relied on the minutes from the parliamentary debate on the TUEORRS Act and found that the legislation was largely to bring the Belize Constitution in line with ILO Conventions. The ruling states it was not meant to restrict the freedom of association. Importantly, at the time, members of the parliament made no mention of immunities in section 16(2) of the TUEORRS.
Bradley believes this interpretation of the law which strips trade unions and its members of protection from litigation arising from their industrial action should be scrutinized at appeal, and if the upper courts find that this ruling is binding, then it should be taken to the political level.
This case will be finally decided at trial, as is the desire of the judge who deferred her decision on the legality of the strike until then. Whether or not the defendant acted in good or bad faith will also be determined at trial.
About 15 witnesses are to be called in this trial. Darrell Bradley represents the second to the seventh defendants – Evan “Mose” Hyde, Guy Neal, Winfield Dennison, Kenton Blanco, James Neal, and Wendell Whitaker. The CWU is represented by Magalie Perdomo, and Port of Belize is represented by Godfrey Smith SC and Hector Guerra. No date for the trial was set in this ruling.