GAP ANALYSIS MATRIX THE BAHAMAS - International … · 2017-09-26 · ILO of the term ^essential Section 6of the Ministry of Foreign Affairs Act, ... amended to gurantee the right

Fundamental ConventionsGAP ANALYSIS MATRIX

THE BAHAMAS

FOREWORD

In May 2015, the Caribbean Employers’ Confederation (CEC) and the Caribbean Congress of

Labour (CCL) entered into a Memorandum of Understanding on joint efforts with respect to the

legislative and regulatory framework within CARIFORUM countries. CEC and CCL also agreed

that it was necessary to undertake joint efforts to support the understanding, application and

implementation of regulatory requirements focusing on the EPA Social Chapter which is in

keeping with their commitments under the Project1 funded by the European Union. In this regard,

they agreed to jointly uphold and advocate for the rights and principles enshrined in ILO

Conventions addressing the issues of the elimination of child labour, forced labour, discrimination

and the right to freedom of association and to bargain collectively.

Most countries of CARIFORUM have ratified all eight of the ILO Fundamental Conventions

covering this platform of human rights considered foundational for the realization of Decent Work.

Against this backdrop, it was decided to undertake a review of national legislation in force in the

region to understand to what extent current legislation was compliant with the obligations

undertaken by member States by their ratification of these Conventions.

The gap analyses have been completed on an individual country basis and carried out between

March 2016 and March 2017. They will provide the affiliates of the CCL and the CEC with a

resource to develop bipartite advocacy and action to reform national legislation where it has been

found not to be in strict compliance with the provisions of the respective Conventions. In addition,

the gap analyses will provide the CEC and the CCL with a baseline to monitor, assess and

advocate for the evolution of legislation within CARICOM and the CARIFORUM countries.

Caribbean Congress of Labour (CCL)

September 2017

1 The full name of the Project is: Challenges to CARIFORUM Labour, Private Sector and Employers to fulfil their EPA Obligations: Caribbean Employers’ Confederation and the Caribbean Congress of Labour Component of the Support to Facilitate Participation of CAIFORUM Civil Society in Regional Development and Integration Process

Caribbean Employers’ Confederation (CEC)

September 2017

1

FUNDAMENTAL CONVENTIONS - GAP ANALYSIS MATRIX

Name of the country analized: The Bahamas

Disclaimer This gap analysis is based on the information publicly available at the time of preparation. The information therefore may not reflect the current situation, and may not have taken into consideration all relevant legislation and practice. In addition, this analysis covers only laws and regulations (mainly Acts), and does not cover decisions or judgments of court(s) or tribunal(s) which may impact the way in which the laws are interpreted or implemented. The results of analysis are not validated by the government.

This analysis should therefore be considered a starting point for consultations and joint action.

Main provisions of the fundamental Conventions (Not all Articles of the Conventions are mentioned)

Questions for analysis to consider gaps between the Convention and the existing national legislation and/or practice

Current situation:

- National laws or regulations (Please include name of the law and section number)

- National policies

- National practices etc.

Gaps identified:

- Description of gaps etc.

Recommended solutions in national law and/or practice

Part I. Freedom of association and the effective recognition of the right to collective bargaining

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)

Article 2 Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.

[For Articles 2-5 and 7] Q1. Which legislation provides for the rights provided for under Articles 2, 3, 4, 5 and 7 of the Convention?

General provisions The Bahamas Constitution, 1973 (the Constitution) in Article 15 (b) provides that every person in The Bahamas has the fundamental right to freedom of conscience, of expression and of assembly and association. This right is subject only to respect for the rights of others. The right to freedom of association is more clearly

Constitution and general provisions The Ministry of Foreign Affairs Act, 2014restricts a category of public servants access to freedom of association and collective bargaining. In relation to sections 72 and 74 of the IRA concerning essential services, while there is no specific definition of the ILO of the term “essential

Section 6of the Ministry of Foreign Affairs Act, 2014 should be removed from the Act. (See Digest of the CFA, para.230. See also para. 583 on the definition of the term “essencial service”.) Based on the examples of essential services indicated in the Digest

2



Current situation:


- National policies


Gaps identified:



described in Article 24 which provides for a person’s right to form and belong to a trade union or other association for the protection of his interests. However, members of the discipline force are excluded from this entitlement. Members of the ‘disciplined force’ are, by virtue of Article 31 (1) of the Constitution, (a) a naval, military or air force; (b) the Police Service of the Bahamas; (c) the Prison Service of the Bahamas; and (d) any other force or service specified by an Act of Parliament to be a disciplined force. In this connection, the Ministry of Foreign Affairs Act 2014 provides in section 6 that the ‘foreign service’ is a disciplined force for the purposes ot Chapter III and Article 31 of the Constitution. The ‘foreign service’ in the Act refers to those public servants who

services”, the Committee on Freedom of Associaiton has indicated: “The following may be considered to be essential services: – the hospital sector; – electricity services – water supply services – the telephone service – the police and the armed forces – the fire-fighting services – public or private prison services – the provision of food to pupils of school age and the cleaning of schools – air traffic control” (Para 585. Digest of decisions of the CFA). In light of this, the sewage or waste disposal service may not be considered as one of the essential services. Public sector

of decisions of the CFA, cosideration may be given to the removal of “the disposal of sewage or of any other waste product dangerous” from the list of essential services. The IRA should be amended to gurantee the right to organize for prison staff, in line with the comments of the CEACR.

3



Current situation:


- National policies


Gaps identified:



Q2. How is this Article applied in practice? Are there any administrative or other practical elements that may make the application of this Article difficult?

work in the Ministry, both locally and abroad, for which the Minister of Foreign Affairs has responsibility. Private Sector: The definition of ‘employee’ stated in Section 2 in the IRA is wide and means “any person who has entered into or works under (or, in the case of a contract which has been terminated, worked under) a contract with an employer, whether the contract is for manual labour, clerical work or otherwise, is expressed or implied, oral or in writing, and whether it is a contract of service or apprenticeship, and “employer” and any reference to employment shall be construed accordingly;” No distinctions are made with respect to employees in the private sector and so the provisions of the IRA apply to all workers in the private sector without exception. There is also no distinction made with respect to domestic workers and so as

The Industrial Relations Act, 1971 of the Bahamas, Chapter 321 (IRA) does not apply to Prison staff by virtue of Section 3, and so Prison staff do not enjoy the rights provided thereunder, including the right to form and belong to a trade union. In this connection, the Committee of Experts on the Application of Conventions and Recommendations (CEACR) in its observation published in 2017, stated that the IRA should be amended to recognise the right of Prison staff to organize. (See http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:3301195) With respect to the police, sections 27 and 28 of the Polic

4



Current situation:


- National policies


Gaps identified:



they fall within the definition of ‘employee’ in the IRA they derive the rights and responsibilities contained therein. Public Sector: See under “General provisions” concerning the Ministry of Foreign Affairs Act 2014 which designates the foreign service as one of the disciplined forces for whom the Constitution excludes its guarantee of the freedom of association. Sections 72 and 74 of the IRA refer to disputes in the “essential service” which means any service declared by the Governor-General by order to be an essential service and related to: (a) the supply of electricity or water to the inhabitants of any town, village or place; (b) the disposal of sewage or of any other waste product dangerous to the health of the community; (c) the provision of any hospital service; (d) any service essential to the safety of aircraft; (e) the

Act, 2009 sets out the same prohibitions for officers as those provided in sections 63-65 of the Polica Act, 1965. It is, however, uncertain whether the 2009 Act is in force since it requires a gazetted notice, which is not found, and bears only an assented date.

5



Current situation:


- National policies


Gaps identified:



fire service, the telecommunications service, or the prison service. While in Part VI of the IRA makes a distinction is made between essential and non-essential services, there is no difference in how disputes arising in each sector is dealt with, both are subject to reporting requirements and the Minister has the same powers in respect of each. The Public Service Commission General Orders of the Bahamas, 1971 provides in Chapter 16, paragraph 1625 that public officers who are officials of a trade union may be granted leave of up to 6 days to attend to trade union business. At para 945 the Government cautions public servants from breaking the conduct rules while participating in trade union activities. Employees in the public sector:

6



Current situation:


- National policies


Gaps identified:



The definition of ‘employee’ as stated in section 2 of the IRA includes all employees, whether on contract or in pensionable positions, and so the provisions of the IRA apply to employees in state enterprises. Education Act, 1962, Ch. 46 provides that teachers are considered teachers in the public service and are governed by the Regulations in that regard, with respect to appointment, general administration, financial and disciplinary purposes. Their freedom of association is regulated under the IRA by virtue of the definition of ‘employee’ provided for in section 2 of the Actas there are no provisions in the Education Act which deal with the terms and conditions of employment of teachers. The Police Act, 1965, Ch. 205 defines in section 63 a ‘prohibited association’ as any trade union or body or association the object of which is to control or influence

7



Current situation:


- National policies


Gaps identified:



conditions of employment including pay and pensions, other than an association established under section 105. Section 105 deals with an association sanctioned by the Governor General. By section 64 it is unlawful for a police officer to be a member of a prohibited association and contravention of this is punishable by a fine upon summary conviction of the officer, the association and any complicit officer of the association. By virtue of section 65 it is also an offence for an officer to receive a benefit, financial or otherwise from a prohibited association. Police officers may be members of the association formed under the Royal Bahamas Police Staff Associtaion Act, 1997, Ch, 206 and as members they can bring to the attention of the Commissioner of Police by virtue of section 4 matters affecting their welfare and efficiency, conditions of service including

8



Current situation:


- National policies


Gaps identified:



pay and pensions, but not matters relating to discipline or promotion of individual members.

Article 3 1. Workers' and employers' organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes. 2. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.

[See under Article 2] Part II of the IRA deals with the registration and control of trade unions and essentially provides the registration requirements for the lawful operation of trade unions. The Registrar, an officer of the Ministry, is responsible for the registration of trade unions. No trade union can operate lawfully, on pain of summary conviction of persons involved, unless such a union is registered in accordance with the IRA. Section 8 of the IRA gives the Registrar the power to refuse registration of a trade union if he is satisfied that:

the principal objects are not statutory objects;

any one or more of the union’s objects are unlawful;

the name of the trade union applying is too

The CEACR in its Observation published in 2017 noted the discretionary power of the Registrar to refuse to register a trade union if he considers that the union should not be registered. It also noted that section 20 (2) of the IRA, under the terms of which a secret ballot for election or removal of trade union officers and for the amendment of the constitution of trade unions shall be held under the supervision of the Registrar or a designated officer, is contrary to the Convention. The Committee also requested the Government to amend sections 74(3), 75(3), 76(2)(b) and 77(2) of the IRA which provides that when a strike is organized or continued in

The IRA should be amended in line with the suggestion made by the CEACR, that is, to amend section 8(1) (e) of the IRA so as to ensure that broad discretionary power is no longer conferred upon the Registrar in relation to the registration of trade unions or employers’ organizations. Section 20(2) of the IRA should be amended in line with the recommendation of the CEACR to ensure that trade unions can conduct ballots without interference from the authorities.

9



Current situation:


- National policies


Gaps identified:



similar to an existing union;

the constitution fails to comply with the Act; or

after applying the rules, the union should not be registered.

There are additional requirements to satisfy, more specifically laid out in the First Schedule of the IRA. Part I of the First Schedule, specifically Clauses 1 and 2 also grant the Registrar discretionary power in determining whether a trade union has satisfied the requirement for registration. Section 13 of the IRA provides that appeals against decisions of the Registrar are to be made to the Minister, who possesses discretionary power to reverse or confirm the decision of the Registrar. Section 9 of the IRA requires that the constitution of every registered trade union contain

violation of the provisions concerning trade dispute procedure, excessive sanctions, including imprisonment for up to two years are provided. (See http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:3301195) The CEACR in its Direct Request published in 2017 states that compulsory arbitration to end a collective labour dispute and a strike is acceptable only if it is at the request of both parties involved in the dispute, or if the strike in question may be restricted, even banned in the case of public servants exercising authority in the name of the State, or in a national cricis or essential service in the strict sense of the term. (See http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:

Sections 20(3) of the IRA should also be amended according to the principle of the right of organizations to freely organize their activities and formulate their programmes. Sections 74(3), 75(3), 76(2)(b) and 77(2) of the IRA should be amended in line with the recommendation of the CEACR. Sections 73, 76 and 77 of the IR should amended in line with the recoomendaiton of the CEACR concerning compulsory artibtration.

10



Current situation:


- National policies


Gaps identified:



the provisions as prescribed in Part II and III of the First Schedule. Section 20 of the IRA mandates that the constitution of every registered trade union provides for the taking of a secret ballot when (a) electing or removing an officer (b) amending its constitution or (c) in the case of employees, taking strike action. Where a trade union proposes to take a ballot with respect to (a) or (b) notice must be given to the Registrar and the ballot must be taken under the supervision of the Registrar or an officer designated by the Minister and the ballot must be certified proper or declared void. In the case of a ballot in determining strike action, section 20 (3) requires an officer of the Ministry be present to supervise the ballot to determine whether it is properly taken or the determination can be deemed to be not in accordance with the provision.

13100:P13100_COMMENT_ID:3301014)

11



Current situation:


- National policies


Gaps identified:



Section 74(3) of the IRA provides that any person, being an individual, who acts incontravention of any of the provisions of this section shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding one hundred and fifty dollars or to imprisonment for a term not exceeding three months, or to both such fine and imprisonment. Section 75(3) provides that If any person declares, instigates, incites others to take part in or otherwise acts in furtherance of, a strike or lock-out declared by this section to be illegal, he shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding one hundred and fifty dollars or to imprisonment for a term not exceeding three months or, on conviction on information, to imprisonment for a term not exceeding two years: Provided that no person shall be deemed to have committed an

12



Current situation:


- National policies


Gaps identified:



offence under this section or at common law by reason only of his having ceased work or refused to continue to work or to accept employment. Section 76(2)(b) provides that If within twenty-four hours of receipt of a notification under subsection (1) any person fails to discontinue his participation in a strike or lock-out, he shall be guilty of an offence and liable, on summary conviction…to a fine not exceeding two hundred dollars or to imprisonment for a term not exceeding three months or to both such fine and imprisonment. Section 77(2) provides that any person who contravenes the provisions of subsection (1) shall be guilty of an offence and liable, on summary conviction — (a) in the case of an employee, to a fine not exceeding two hundred dollars or to imprisonment for a term not exceeding three months

13



Current situation:


- National policies


Gaps identified:



or to both such fine and imprisonment; (b) in the case of a union or a member of the executive committee or other governing body of a union, or an employer, to a fine not exceeding ten thousand dollars or to imprisonment for a term not exceeding two years or to both such fine and imprisonment. [Provisions concerning compulsory arbitration] Section 72 of the IRA provides that the Minister may, after the expiration of the 16 day period or any agreed period thereafter for the purpose of conciliation, refer an unresolved trade dispute in an essential service to the Industrial Tribunal. See under Article 2 above on the definition of ‘essential services’. Section 74 of the IRA provides that after the expiration of any extra period of conciliation of a dispute in a non-essential service

14



Current situation:


- National policies


Gaps identified:



the Minister is of the opinion that the public interest will be served, he may refer the matter to the Tribunal for settlement. The difference between the treatment of the dispute by the Minister in the essential and non-essential services exists only in the ability of the Minister in section 73 (which relates to the non essential services), to ‘refer the dispute back to the parties for further consideration’. Under section 73 of the IRA the Minister shall refer a dispute in a non-essential service to the Tribunal if the parties have failed to reach a settlement. It is unlawful to engage in strike or lock out action once the dispute has been referred to the Tribunal (section 77(1)). According to section 76(1) a strike which in the opinion of the Minister affects or threatens the public interest may be referred to the Tribunal for settlement.

15



Current situation:


- National policies


Gaps identified:



Article 4 Workers' and employers' organisations shall not be liable to be dissolved or suspended by administrative authority.

[See under Article 2] Section 8 of the IRA gives the Registrar the power to refuse registration of a trade union if he is satisfied that:

the principal objects are not statutory objects;

any one or more of the union’s objects are unlawful;

the name of the trade union applying is too similar to an existing union;

the constitution fails to comply with the Act; or

after applying the rules, the union should not be registered.

There are additional requirements to satisfy, more specifically laid out in the First Schedule of the IRA. Part I of the First Schedule, specifically Clauses 1 and 2 also grant the Registrar discretionary power in determining whether a trade union has satisfied the requirement for registration.

Gap identified. The IRA appears to give the registrar discretion to decide whether the union violated the IRA or objects of the union are statutory (Section 15), as, for instance, it is the Registrar who would determine whether the registration was obtained for violation of the IRA. (See also the CEACR’s observation published in 2017 (http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:3301195)) The Minister’s exercise of his discretionary power in deciding appeals against decisions of the Registrar does not represent an independent and impartial arbiter of grievances arising out of the registration process, especially as the Registrar is designated by the Minister, section 5 refers.

The discretionary power of the Registrar should be limited. In this respect, consideration may be given to defining clearly in the legislation the precise conditions which trade unions must fulfi l in order to be entitled to registration and on the basis of which the registrar may refuse or cancel registration, and of prescribing specific statutory criteria for the purpose of deciding whether such conditions are fulfi lled or not. (See paragraph 302 of “Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO” available at:http://www.ilo.org/

16



Current situation:


- National policies


Gaps identified:



Section 13 of the IRA provides that any person aggrieved by any decision of the Registrar, including a decision not to register or cancel the registration of a trade union, and refusal to register an amendement to a trade union’s name or constitution, may appeal against such decision to the Minister. The Minister possesses discretionary power to reverse or confirm the decision of the Registrar. Section 14 states that the registration of a trade union shall be void once any of its objects is unlawful. Section 15 gives the Registrar the power to cancel the registration of a trade union in certain circumstances, such as; where the registration was obtained by fraud or mistake, for violation of the provisions of the IRA, or where the objects of the trade union are not statutory objects.

This structure for the cancellation of the registration of a trade union provided for in the IRA is contrary to Article 4 of C.87 and according to paragraph 687 of the Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, 5th Edition (CFA Digest of decisions), which states that cancellation of a trade union’s registration should only be possible through judicial channels. Paragraphs 182-185, General Survey of 1994 on Freedom of Association and Collective Bargaining, 81st Session, 1994.

wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_090632.pdf) The determination of appeals against decisions made in the registration process should be removed from the jurisdiction of the Minister and placed before an independent tribunal or Court.

17



Current situation:


- National policies


Gaps identified:



Article 5 Workers' and employers' organisations shall have the right to establish and join federations and confederations and any such organisation, federation or confederation shall have the right to affiliate with international organisations of workers and employers.

[See under Article 2]

Section 39 of the IRA restricts the ability of trade unions to become members of bodies or federations outside The Bahamas. The discretion rests solely in the Minister to grant a licence to a trade union to attain such membership. Contravention of this provision makes the officer or member of the executive committee or governing body of the union or combination or association, liable to a fine upon summary conviction. Clause 4 of the First Schedule (made pursuant to s.8(2) of the IRA prohibits the Registrar from registering as a trade union an association, federation or congress of trade unions, or body which under its constitution offers membership to trade unions. There is no distinction in the law with respect to the application of section 39 to any particular sector, Private, Public or Public enterprise.

The provisions of section 39 and clause 4 of the First Schedule are contrary to the right of workers’ and employers’ organisations to establish and join federations and confederations and affiliate with international organisations. The CEACR, in Observation published in 2017 requested the Government to take measures to repeal section 39 on the control of foreign connections of trade unions and federations. (See http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:3301195) John Pinder, President of the Bahamas Public Service Union noted that while their involvement with the Caribbean Congress of Labour, a regional trade union federation, has not been challenged, the restrictive

Section 39 of the IRA should be repealed in line with the recommendation of the CEACR.

18



Current situation:


- National policies


Gaps identified:



Some Trade Unions in The Bahamas: Commonwealth of the Bahamas Trade Union Congress; National Congress of Trade Unions (Bahamas); Bahamas Airline Pilots Association; Bahamas Hotel, Catering and Allied Workers Union; Bahamas Taxi Cab Union; Bahamas Public Services Union; Bahamas Utility Service & Allied Workers Union; Bahamas Union of Teachers; Bahamas Maritime Port & Allied Workers Union.

provisions in the IRA continue to exist and may be applied in the future. (See http://www.thenassauguardian.com/bahamas-business/40-bahamas-business/58687-minister-must-sanction-local-union-ties-with-intl-organizations-uttermost-nonsense-says-unionist)

Article 7 The acquisition of legal personality by workers' and employers' organisations, federations and confederations shall not be made subject to conditions of such a character as to restrict the application of the provisions of Articles 2, 3 and 4 hereof.

[See under Article 2] The IRA provides as follows; Section 24 – a registered trade union may in the names of its trustees purchase, lease, sell, let or mortgage land. Section 25 – all real property vests in the trustees and members existing at the time and upon the death or removal of a trustee, the property will vest in the remaining trustees.

No gap identified Acquisition of legal personality is not required for registration or operation as a trade union.

19



Current situation:


- National policies


Gaps identified:



Section 27 – the trustees of a registered trade union or any officer duly authorised have the right to sue and be sued in dealings with the property of the trade union. Damaes, costs and awards to be paid into or out of the trade union shall be paid into or out of the funds of the trade union. Section 28 – no person under the age of 16 may be a member of a trade union. No person under the age of 18 may be a trustee, officer or committee member of a trade union.

Article 9 1. The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations.

Q. How does the national legislation regulate freedom of association with respect to the armed forces and the police?

Article 24 (2) of the Constitution restricts the application of the right to freedom of association to members of a discipline force and so these persons are not allowed to form or join trade unions. Persons serving or employed in a disciplined force are excluded from the IRA by virtue of section 3. A ‘disciplined force’ is defined in Article 3 (1) of the Constitution and relates to; (a) a naval, military or air force;

With the exception of the Prison staff, no gap is identified. However, while Convention No. 87 leaves it to each State to decide on the extent to which it was desirable to grant members of the armed forces the rights covered by the Convention (see Paragraph 224 of “Digest of decisions and principles of the Freedom of Association Committee of the

With respect to the prison staff, the IRA should be amended (see under Article 2 above). Though the Convention does not require, consideration may be given to the possibility of legisiating the right to freedom of association to cilivan members of

20



Current situation:


- National policies


Gaps identified:



(b) the Police Service of the Bahamas; (c) the Prison Service of the Bahamas; and (d) any other force or service specified by an Act of Parliament to be a disciplined force. While the Police Force may avail themselves of the provisions of the Royal Bahamas Police Staff Associtaion Act, 1997, Ch, 206, there appears to be no corresponding arrangement for the members of the Defence Force or other military personnel.

Governing Body of the ILO” available at:http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_090632.pdf), consideration may be given to the possibilty of legislating the right to freedom of associaiton to civilian members of the armed forces.

the armed forces, with a view to limiting the exemption. (See Paragraphs 227-229 of the Digest)

Article 11 Each Member of the International Labour Organisation for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise.

Q. Does the national legislation guarantee the right to organize without any distinction, including managerial and executive staff and employers?

Section 53 of the IRA provides that factors which should be taken into account in defining a bargaining unit include, among others, whether separate bargaining arrangements are needed for particular categories of employees, such as supervisors or employees who represent management in negotiation.

No gap identified.

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) Article 1 Q1. Are there any

provisions in the The IRA, Part V which provides for the maintenance of Law and

No gap identified

21



Current situation:


- National policies


Gaps identified:



1. Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment. 2. Such protection shall apply more particularly in respect of acts calculated to-- (a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership; (b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours.

national legislation that would prohibit denial or cancellation of employment due to trade union membership of a worker? Q2. Does the national legislation provide for protection from any other types of anti-union practices?

Order and the Protection of Private Rights provides as follows; Section 78 states that no employer shall make it a term of a contract of employment that an employee shall be or not be a member of any trade union and any such term in a contract is deemed void. Any employer in contravention of this provision is liable upon summary conviction to a fine. Section 79 provides that any person refusing to take part in action which is not in compliance with the IRA shall not be expelled from any registered union, removed from office in a union, be liable for any fine or penalty, or the depravation of any right or benefit or disadvantage or disability. Section 82 imposes sanctions against any person who seeks to compel or prevent any person from doing or not doing something that he or she has a

22



Current situation:


- National policies


Gaps identified:



Q3. How is this Article of the Convention applied in practice? Are there any administrave or other practical elements that may make the application of this Article difficult?

legal right to do or not do, by way of intimidation, annoyance by violence or otherwise. The Employment Act, Ch. 321 A of The Bahamas (the Employment Act) applies to any employee, with the exception of the disciplined forces as defined in Article 31 of the Constitution (see under Article 2 of Convention No. 87 for the definition of ‘disciplined forces’). Section 36 of the Employment Act makes dismissal of an employee for trade union membership, taking part in trade union activities or for failing to be a member or refusing to join a particular trade union unfair dismissal which may be dealt with as a complaint by the Industrial Tribunal. The Tribunal may order re-engagement, re- instatemtent or an award of damages to a successful complainant.

23



Current situation:


- National policies


Gaps identified:



Section 40 also deals with unfair dismissal in connection with a lockout, strike or othere industrial action. Section 72 makes provision for the substitution of a new employer for the continuation of a complaint lodged by an employee or a trade union before the Tribunal where there is a change of ownership of the business.

Article 2 1. Workers' and employers' organisations shall enjoy adequate protection against any acts of interference by each other or each other's agents or members in their establishment, functioning or administration. 2. In particular, acts which are designed to promote the establishment of workers' organisations under the

Q1. How does the national legislation ensure that workers’ and employers’ organization do not interfere each other, by, among others, prohibiting any measures that would limit independence in finance or operation? Q2. How is this Article of the Convention

There appears no legal provision specifically applying this Article of the Convention.

The CEACR in Observation published in 2014 noted that the Government was requested previously to adopt legislative provisions to protect workers’ and employers’ organizations against acts of interference by each other or each other’s agents, accompanied by effective or sufficiently dissuasive sanction. The Committee requested the Government to take the

The national legislation should be amended in line with the recommendation of the CEACR.

24



Current situation:


- National policies


Gaps identified:



domination of employers or employers' organisations, or to support workers' organisations by financial or other means, with the object of placing such organisations under the control of employers or employers' organisations, shall be deemed to constitute acts of interference within the meaning of this Article.

applied in practice? Are there any administrave or other practical elements that may make the application of this Article difficult?

necessary measures for the adoption of such legislative provisions without further delay, either through the amendment of the IRA or the adoption of the Trade Unions and Industrial Relations Bill, 2000. (See http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:3143231)

Article 3 Machinery appropriate to national conditions shall be established, where necessary, for the purpose of ensuring respect for the right to organise as defined in the preceding Articles.

Q1. Are there any bodies that would discuss and promote the right to organize? Are they tripartite? Q2. What are the measures envisaged under the national legislation that would be taken if the right to organize is violated?

Section 4 of the IRA provides for the establishment of a Joint Advisory Committee which will give advice to the Minister on labour relations matters as may be referred to it by the Minister.

No gap identified.

Article 4 Measures appropriate to national conditions shall be taken, where necessary, to

Q. How, through legal or other means, voluntary negotiation between emplyoers and

Section 41(3) of the IRA imposes a fine not exceeding $5,000 or imprisonment not exceeding 2 years, or both on an employer

The CEACR in its Observation published in 2014 has considered that the threshold of the requirement of 50% of

The IRA should be amended in line with the recommendation of the CEACR.

25



Current situation:


- National policies


Gaps identified:



encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.

workers is encouraged and promoted?

who fails to negotiates with a recognized trade union. Section 41 of the IRA states that every employer must recognise as the bargaining agent, for the purpose of collective bargaining, a trade union which has as its members (in good standing) more than 50% of the workers in his employ or the bargaining unit. Where there is more than one union claiming recongnition status the Minister decides which union will be awarded recognition status. Section 69 provides that where the Minister receives a report of a dispute pursuant to the Disputes Procedure in Part VI, and he is of the opinion that suitable machinery for settling the dispute exists in any agreement between the parties he may refer the dispute back to them to work out a settlement until same in his opinion is exhausted. By virtue of section 70, after the period of bilateral interaction,

the workers in a bargaining unit for a union to acquire recognition is excessive and that if no union represented the abovementioned percentage, collective bargaining rights should be granted to all the unions in the unit, at least on behalf of their own members. (See http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:3143231)

26



Current situation:


- National policies


Gaps identified:



there is a period of conciliation called by the Minister (16 days) or such longer period as the parties may agree.

Article 5 1. The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations.

Q. How does the national legislation regulate the issues of the right to organize and to collective bargaining with respect to the armed forces and the police?

See under Article 2 of Convention No. 87 on the right to collective bargaining of the disciplined forces. With respect to prison officers, the Bahamas Prison Officers Association (BOPA) is located on Yamacraw Road, Nassau in the Bahamas, however there is no information available which advises as to the purpose or scope of the Association and there is no mention of it in the Prison Act.

See under Article 2 of the Convention concerning the right to collective bargaining of the disciplined forces.

It should be ensured through legislative or administrative measures that the BOPA enjoys the right to the collective bargaining rights under the Convention.

Article 6 This Convention does not deal with the position of public servants engaged in the administration of the State, nor shall it be construed as prejudicing their rights or status in any way.

Q1. How does the national legislation regulate the issues of the right to organize and to collective bargaining with respect to civil servants employed in government ministries and other comparable bodies?

See under Article 2 of Convention No. 87. The disciplined forces (the military, the police, prison service and other forces or services desgfnated by law), by virtue of the limitation on their ability to join or form trade unions as prescribed under Article 24 (2) (b) of the Constitution of the Bahamas, are restricted in their right to collective bargaining.



27



Current situation:


- National policies


Gaps identified:



Q2. How is this provision of the Convention applied in practice? Are there any administrave or other practical elements that may make the application of this Article difficult?

Part II. Elimination of all forms of forced or compulsory labour

Forced Labour Convention, 1930 (No. 29)

Article 1 1. Each Member of the International Labour Organisation which ratifies this Convention undertakes to suppress the use of forced or compulsory labour in all its forms within the shortest possible period.

Q. Are there any national legislation, policy and/or programme to suppress the use of forced or compulsory labour?

The Bahamas Constitution, Part III provides for the protection of fundamental rights and freedoms. Section 18 states as follows; (1) No person shall be held in slavery or servitude. (2) No person shall be required to perform forced labour. (3) For the purposes of this Article, "forced labour" does not include- (a) any labour required in consequence of the sentence or order of a court; (b) any labour required of a member of a disciplined force in

No gap identified.

28



Current situation:


- National policies


Gaps identified:



pursuance of his duties as such or, in the case of a person who has conscientious objections to service in a naval, military or air force, any labour which that person is required by law to perform in place of such service; (c) labour required of any person while he is lawfully detained which, though not required in consequence of the sentence or order of a court, is reasonably necessary in the interests of hygiene or for the maintenance of the place in which he is detained; or (d) any labour required during a period of public emergency (that is to say, a period to which Article 29 of this Constitution applies) or in the event of any other emergency or calamity that threatens the life or well-being of the community, to the extent that the requiring of such labour is reasonably justifiable, in the circumstances of any situation arising or existing during that period or as a result of that other emergency or calamity, for the

29



Current situation:


- National policies


Gaps identified:



purpose of dealing with that situation.

Article 2 1. For the purposes of this Convention the term forced or compulsory labour shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily. 2. Nevertheless, for the purposes of this Convention, the term forced or compulsory labour shall not include-- (a) any work or service exacted in virtue of compulsory military service laws for work of a purely military character; (b) any work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country; (c) any work or service exacted from any person as a

Q1. If a national legislation, policy and/or programme to suppress the use of forced or compulsory labour exist, how do they define the term “forced or compulsory labour”? Q2. Does the national legislation contain any exemption in this regard?

The Trafficking in Persons (Prevention and Suppresssion) Act, Ch. 106, section 2 defines “forced labour” as labour or services obtained or maintained through force, threat of force, or other means of coercion or physical restraint. The term ‘slavery’ is also defined as the status or condition of a person over whom any or all the powers attaching to the right of ownership are exercised; The exemptions to ‘forced labour’ as contained in section 18 (3) of the Constitution of the Bahamas and outlined under Article 1 refer. The Prison’s Act, section 29 provides for the extra-mural employment of prisoners. It

While the term “forced labour” is defined in a law, it concerns specifically human trafficking. Other relevant provisions are found in various laws including the Constitution and the Prison’s Act and the Defense Act.

Provisions comprehensively dealing with matters related to forced labour should be developed either as a separate law or as a part of an existing law.

30



Current situation:


- National policies


Gaps identified:



consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations; (d) any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population; (e) minor communal services of a kind which, being performed by the members of the community in the direct interest of the said

states that the Superintendent may grant a licence to a prisoner allowing that prisoner to be outside the prison for certain hours during which time he is employed by an employer so approved by the Visiting Committee and the Superintendent. Section 29(6) goes on to provide that the earnings of a prisoner under extra mural employment are to be paid by the employer to the Superintendent who is allowed to deduct sums for clothing and transport of the prisoner. 29(6) (iii) also allows the Superintendent to deduct sums for the “daily cost of board and accommodation” of the prisoner in the prison. Also, section 19 of the Defence Act, Ch. 211 provides that any marine of the regular Force whose service expires during a state of war, insurrection, hostilities or public emergency may be retained in that Force and his service prolonged for such

31



Current situation:


- National policies


Gaps identified:



community, can therefore be considered as normal civic obligations incumbent upon the members of the community, provided that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services.

further period as the Security Council may direct.

Protocol of 2014 to the Forced Labour Convention, 1930

Article 1 1. In giving effect to its obligations under the Convention to suppress forced or compulsory labour, each Member shall take effective measures to prevent and eliminate its use, to provide to victims protection and access to appropriate and effective remedies, such as compensation, and to sanction the perpetrators of forced or compulsory labour. 2. Each Member shall develop a national policy and plan of action for the effective and sustained suppression of

[For Articles 1-3] Q1. If a national legislation, policy and/or programme to suppress the use of forced or compulsory labour exist, do they contain measures to: (i) prevent and eliminate its use;

Q1. (i) and (iii) Trafficking in Persons (Prevention and Suppression) Act, Ch. 106 is the main piece of legislation dealing with forced labour in the Bahamas; Section 3 stipulates the penalities for trafficking in persons which include imprisonment for 3-5 years on summary conviction and ‘on information’ 5 years to life, restitution to the victim under section 6 and forfeiture of property under section 7. Section 8 provides guidelines for sentencing where there is an conviction on information relating to certain facts.

The general problem with the national lesiglation is that the relevant existing legislation is only on human trafficking. See under Article 2 of Convention No. 29. The Trafficking in Persons (Pervention and Suppression) Act appears not to address: (iv) (education and information for vulnerable people), (v) (education and information for employers), (vii)(protection of vulnerable persons), and (ix)(study causes).

See under Article 2 of Convention No. 29. There should be an entity for prevention of forced labour and responding to specific incidents reported. There should be an obligation on the relevant authority to collect statistics on incidences of trafficking. Continuous education programmes should be developed and implemented for the

32



Current situation:


- National policies


Gaps identified:



forced or compulsory labour in consultation with employers’ and workers’ organizations, which shall involve systematic action by the competent authorities and, as appropriate, in coordination with employers’ and workers’ organizations, as well as with other groups concerned.

(ii) provide to victims protection and access to remedies (e.g. compensation-also relevant to Article 4 of the Convention); and (iii) sanction the perpetrators (iv) educate and inform people who may become victims of forced or compulsory labour;

The Government of The Bahamas, Ministry of Foreign Affairs website refers to “The Government of the Commonwealth of The Bahams National Anti-Trafficking in Persons Strategy 2014- 2018 which is intended to promote coordinated action among stakeholders and financial support of donors. See http://mofa.gov.bs/trafficing-in-persons/general-information/ The U.S. Department of State 2015 Trafficking in Persons Report for The Bahamas (https://www.state.gov/j/tip/rls/tiprpt/countries/2015/243390.htm) mentions a 4 year national anti-traffickning strategy and action plan, but no copy was located at the time of preparation of this analysis. (ii) Part III of the Trafficking in Persons (Prevention and Suppression) Act seeks to provide

benefit of employers, employees and members of the public in general, in particular vulnerable persons who may become victims.

http://mofa.gov.bs/trafficing-in-persons/general-information/

http://mofa.gov.bs/trafficing-in-persons/general-information/

https://www.state.gov/j/tip/rls/tiprpt/countries/2015/243390.htm



33



Current situation:


- National policies


Gaps identified:



(v) educate and inform employers about forced or compulsory labour practices; (vi) ensuring that legislation relevant to the prevention of forced or compulsory labour is applied to all workers and all economic sectors, and that its application is enforced through labour inspection; (vii) protecting persons particularly volunerable to forced or compulsory labour, partciulary migrant workers;

assistance and protection for the victims of trafficking. Section 12 provides that the authorities shall take measures to identify victim of trafficking and prevent their recapture and protect the victim and the victim’s family from threats, reprisals or intimidation by the traffickers and develop a safety plan. Section 13 allows victims who are witnesses to be considered for entry into witness protection programmes. Section 14 states that where the victim does not have the right to remain in the Bahamas arrangements are to be made to allow the victim to remain for the purpose of prosecuting offenders. Section 15 simply allows for proceedings to be held in camera, however press can be present but have limitations on what can be published. Section 16 of the Trafficking in Persons (Prevention and Suppression) Act simply makes

34



Current situation:


- National policies


Gaps identified:



(viii) establishing and enforcing procedures and mechanisms necessary to prevent and respond to forced or compulsory labour; and (ix) studyng the root causes of forced or compulsory labour and relecting the results to legislation, national policies or programmes. Q2. What are the progress and results achieved by these measures? Q3. Are employers’ and workers’ organization involved in implementing measures mentioned under Q1

the Minister responsible for national security obligated to inform victims of trafficking of their legal rights and the processes involved in their management while in the Bahamas. (iv) See under Article 2. (vi) Section 18 requires, where there is suspicion that an offence under the Act has been committed, that information on oath be brought before a magistrate and a warrant may be issued for entry, search and seizure by an officer. The warrant is required to be very detailed under section 18(4). The Trafficking in Persons (Prevention and Suppression) Act defines “trafficking in persons” in section 2 and applies to persons in general, with no distinctions for employees, and vulnerable groups such as migrant workers. (viii) See under Article 3.

35



Current situation:


- National policies


Gaps identified:



above? If so, how are they involved?

Q2. The United States Department of State’s 2016 Trafficking in Persons Report for the Bahamas, http://www.state.gov/j/tip/rls/tiprpt/countries/2016/258719.htm noted that the government arrested and prosecuted five alleged traffickers during the reporting period, sent letters to employees with work permits explaining the definition of trafficking and advising employers of the prohibition against document retention, tasked labor inspectors to screen for trafficking indicators when inspecting labor sites, and developed a referral process for immigration officers to screen for trafficking indicators. The government faced challenges in identifying victims, but continued efforts to implement its victim identification and referral protocol and provided training on trafficking in persons for 157 government officials responsible

36



Current situation:


- National policies


Gaps identified:



for identifying and assisting trafficking victims.

Article 2 The measures to be taken for the prevention of forced or compulsory labour shall include: (a) educating and informing people, especially those considered to be particularly vulnerable, in order to prevent their becoming victims of forced or compulsory labour; (b) educating and informing employers, in order to prevent their becoming involved in forced or compulsory labour practices; (c) undertaking efforts to ensure that: (i) the coverage and enforcement of legislation relevant to the prevention of forced or compulsory labour, including labour law as appropriate, apply to all workers and all sectors of the economy; and

The U.S. Department of State’s Report also states that the government continued to conduct a nationwide public awareness campaign to educate students about human trafficking, disseminated 2,700 anti-trafficking pamphlets to inform potential victims of their rights and available resources, conducted outreach in vulnerable communities to inform people about trafficking, and continued to air public service announcements on television and radio throughout the country. The government partnered with NGOs to implement its 2014-2018 national anti-trafficking strategy and detailed action plan that outlines efforts related to government infrastructure, prevention, victim and witness protection, investigation and prosecution, and partnerships. NGOs reported the government actively solicited their participation and feedback,

The Report noted that the government did not have standard operating procedures for data collection and victim care or terms of reference for research, and case management.

See under Article 1.

37



Current situation:


- National policies


Gaps identified:



(ii) labour inspection services and other services responsible for the implementation of this legislation are strengthened; (d) protecting persons, particularly migrant workers, from possible abusive and fraudulent practices during the recruitment and placement process; (e) supporting due diligence by both the public and private sectors to prevent and respond to risks of forced or compulsory labour; and (f) addressing the root causes and factors that heighten the risks of forced or compulsory labour.

including in outreach to vulnerable communities.

Article 3 Each Member shall take effective measures for the identification, release, protection, recovery and rehabilitation of all victims of forced or compulsory labour, as well as the provision of

(See under Article 1) Section 20 of the Trafficking in Persons (Prevention and Suppression) Act places on the Minister responsible for national security and social services to consult with other appropriate organizations and provide appropriate services for victims of trafficking including housing,

See under Article 1. See under Article 1.

38



Current situation:


- National policies


Gaps identified:



other forms of assistance and support.

counselling, medical assistance, employment and legal assistance. Subsection (3) of section 20 states that victims shall not be housed in any prision or detention facility. The Report of the U.S. Department of State of 2016 on Trafficking in Persons states that in response to previous concerns about the small number of foreign trafficking victims formally identified among those foreign nationals detained at the migrant detention center, the government developed a process for law enforcement officers to screen for trafficking indicators and refer potential victims to service providers for assistance, including legal and interpretation assistance, as well as appropriate immigration relief.

Article 5 Members shall cooperate with each other to ensure the prevention and elimination of all forms of forced or compulsory labour.

Q1. If a national legislation, policy and/or programme to suppress the use of forced or compulsory labour exist, do they

Section 11 of the Trafficking in Persons (Prevention and Suppression) Act provides, (1) The offence of trafficking in persons shall constitute an extraditable offence for the

No gap identified.

39



Current situation:


- National policies


Gaps identified:



provide for cooperation with other countries or with other relevant regional and international organizations? Q2. What are the progress and results achieved by these measures?

purposes of the Extradition Act and in that respect any party to the Protocol shall be deemed a “treaty State” within the meaning of that Act. (2) In this Act “Protocol” means the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime. Consent

Abolition of Forced Labour Convention, 1957 (No. 105)

Article 1 Each Member of the International Labour Organisation which ratifies this Convention undertakes to suppress and not to make use of any form of forced or compulsory labour-- (a) as a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system;

Q1. What national legislation provides for prohibition of the use of forced or compulsory labour as means as provided for in this Article of the Convention? Q2. How is this provision of the Convention applied in practice?

The Merchant Shipping Act of the Bahamas, CH. 268 sections 129 (b) and (c), 131 (a) and (b) and 135 all provide for penalities for seafarers in certain circumstances, such as for wilful disobedience, desertion and absence without leave and deserters from foreign ships. The penalities could ultimately amount to fines and imprisonment or both. Imprisonment may involve compulsory labour under R.217 to and R.221of the Prison Rules.

Provisions which punish seafarers who are found to be disobedient, deserters and absent without leave with imprisonment with labour are contrary to the Convention. The CEACR also considered that these provisions of the IRA were not in fonformity with the Convention and requested that these be amended so that no sanctions involving compulsory labour could be imposed for the

The Merchant Shipping Act and the Industrial Relations Act should be amended in line with the recommendation of the CEACR.

40



Current situation:


- National policies


Gaps identified:



(b) as a method of mobilising and using labour for purposes of economic development; (c) as a means of labour discipline; (d) as a punishment for having participated in strikes; (e) as a means of racial, social, national or religious discrimination.

Under section 73 of the IRA the Minister may refer a dispute in the non-essential services to the Tribunal for settlement if he deems such necessary in the public interest, once this is done industrial action is prohibited and is punishable by imprisonment, sections 74(3) and 77(2)(a) of the IRA refer. Section 76(1) and (2)(b) has the same effect of prohibiting strike action when a referral has been made to the Tribunal.

mere fact of peaceful participation in a strike. (See http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:3082285)

Part III. Effective abolition of child labour Minimum Age Convention, 1973 (No. 138)

Article 2 1. Each Member which ratifies this Convention shall specify, in a declaration appended to its ratification, a minimum age for admission to employment or work within its territory and on means of transport registered in its territory; subject to Articles 4 to 8 of this Convention, no one under that age shall be admitted to

Q1. What is the legal minimum age for admission to employment? What provisions of the national legislation provide for it? Q2. If the minimum age is 14, was there a consultation with employers’ and workers’ organization in

The Employment Act of the Bahamas CH. 321A (the Employment Act) defines in section 49 a ‘child’ as any person under the age of fourteen and ‘young person’ as a person who is fourteen years of age and upwards and under the age of eighteen years. The Employment Act provides as follows:

The national legislation provides for the following:

- National minimum age for employment: 14 years (s. 50 of the Employment Act)

- Minimum age for employment provided for in a child protection law: 16 years (s. 7(2) of the Child Protection Act)

- Recruitment for overseas employment: 18 years (s. 5

The national minimum age for employment should be raised to 16 years so that the Employment Act would be in line with the Convention and in accordance with the relevant provisions of the Child Protection Act and the Education Act.

41



Current situation:


- National policies


Gaps identified:



employment or work in any occupation. 3. The minimum age specified in pursuance of paragraph 1 of this Article shall not be less than the age of completion of compulsory schooling and, in any case, shall not be less than 15 years. 4. Notwithstanding the provisions of paragraph 3 of this Article, a Member whose economy and educational facilities are insufficiently developed may, after consultation with the organisations of employers and workers concerned, where such exist, initially specify a minimum age of 14 years.

accordance with Article 2, paragraph 4 of the Convention?

Section 50 provides that a child shall not be employed in any undertaking. Section 51 prohibits the

employment of a child or young

person during school hours.

Section 52 prescribes the

sanctions for employing a child or

young person contrary to the

provisions of the Act, and include

a fine of up to $1,000 and parents

or guardians who are involved in

the offence are subject to a fine of

up to $1,500.

Section 7(2) of the Child

Protection Act provides that no

child under the age of 16 shall be

employed, save as is provided by

subsection (3), which provides

that a child under the age of 16

may be employed in any

occupation in which his/her

employment is sanctioned by any

other law or prescribed under this

Act.

of the Recruiting of Workers Act)

- Compulsory schooling age: 16 years (s. 22 of the Education Act)

There is a discrepancy between the Employment Act and the Child Proteciton Act in what is to be applied as the minimum age for the admission to employment in The Bahamas. In Observation of the CEACR published in 2016, the Committee requested to consider raising the minimum wage for employment of 14 years to 16 years in accordance with the Child Protection Act. It also requested to take measures to increase the school enrolment rate and completion rate.

42



Current situation:


- National policies


Gaps identified:



Q3. What is the age of completion of compulsory schooling? What provisions of the national legislation provide for it?

The Recruiting of Workers Act,

CH.318 which provides for the

licensing of recruiters of workers

to work outside the Bahamas

states in section 5 that no person

under the age of 18 is to be

recuited and section 9 stipulates a

fine of $400 or imprisonment for

12 months or both for

contravention.

The Education Act CH. 46-2

defines in section 2 ‘child’ as a

person who is not over

compulsory school age. Section 22

states that compulsory school age

means any age between 5 and 16

years.

Article 3 1. The minimum age for admission to any type of employment or work which by its nature or the circumstances in which it is carried out is likely to jeopardise the health, safety or morals of young persons shall not be less than 18 years.

Q1. Does the national legislation provides for a higher minimum age for admission to any employment which likely to be hazardous to young persons? If so, what is that minimum age?

The Child Protection Act, CH 132 defines ‘child’ as unless provided otherwise in this Act, as a person below the age of eighteen years. Section 7 (1) of this Act states that no child shall be employed or engaged in any activity that may be detrimental to his health, education or mental, physical or moral development. Section 7

The Defence Act and the Employment Act prescribe higher minimum age for certain types of work, but they are considered exceptions to the minimum age (see under Article 4). The Child Protection Act provides for the principle related to this Article of the Convention, but does not

A list of types of hazardous work to which young persons under 18 years of age must not be admitted should be adopted in line with the recommendation of the CEACR.

43



Current situation:


- National policies


Gaps identified:



2. The types of employment or work to which paragraph 1 of this Article applies shall be determined by national laws or regulations or by the competent authority, after consultation with the organisations of employers and workers concerned, where such exist. 3. Notwithstanding the provisions of paragraph 1 of this Article, national laws or regulations or the competent authority may, after consultation with the organisations of employers and workers concerned, where such exist, authorise employment or work as from the age of 16 years on condition that the health, safety and morals of the young persons concerned are fully protected and that the young persons have received adequate specific instruction

Q2. If the higher minimum age is 16, was there a consultation with employers’ and workers’ organization with specific reference to Article 3, paragraph 3 of the Convention?

subsections (2) and (3) provide that a child under the age of 16 may be employed- (a) by the child's parents or guardian in light domestic, agricultural or horticultural work; (b) in any occupation in which his employment is sanctioned by any other law or prescribed under this Act, provided that no child under 16 shall be employed in night work for an industrial undertaking.

specify types of work that would fall under this principle. The CEACR in its comment published in 2016 requested the Government to adopt a list of hazardous work in accordance with this Article of the Convention. (See http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:3251476)

44



Current situation:


- National policies


Gaps identified:



or vocational training in the relevant branch of activity.

Article 4 1. In so far as necessary, the competent authority, after consultation with the organisations of employers and workers concerned, where such exist, may exclude from the application of this Convention limited categories of employment or work in respect of which special and substantial problems of application arise.

[For Articles 4-6 and 8] Q. Does the national legislation exclude: (i) any categories of workers and/or (ii) certain industries from the scope of application of the minimum age legislation, in particular young persons engaged in vocational educational training programmes approved by the competent authority, or young persons participating in artistic performances? If so, what are the excluded categories of workers and industries?

The Defence Act, CH 211 stipulates under section 16 (2) that no person under 18 years old shall be recruited to the regular Force. The Employment Act provides as follows: Section 56 prohibits the employment of persons under the age of 16 aboard any ship except a ship where only members of the same family are employed or a ship within the Bahamas. Section 57 deals with the employment of children and young persons at night work. Section 49 defines “night work” as work in an industrial undertaking during any time between the hours of eight o’clock in the evening and six o’clock in the morning. Children are prohibited from night work however a young person (i.e. aged above 14, but

No gap identified.

45



Current situation:


- National policies


Gaps identified:



under 18) may be employed in the following undertakings as set out in Schedule 2 — (a) hotels; (b) restaurants; (c) food stores; (d) general merchandise stores; (e) gas stations. This Schedule may be amended by the Minister after consultation with bodies most representative of workers and employers. Section 58 allows the Minister after consultation with employers and employees to subject to affirmative resolution, suspend the prohibition of night work for children and young persons in industrial undertakings. Section 59 states that a young person may work outside of school hours in the following conditions; (a) in a school day, for not more than three hours; (b) in a school week, for not more than twenty-four hours; (c) in a non-school day, for not more than eight hours;(d) in a non-school, week for more than forty hours.

46



Current situation:


- National policies


Gaps identified:



Article 5 1. A Member whose economy and administrative facilities are insufficiently developed may, after consultation with the organisations of employers and workers concerned, where such exist, initially limit the scope of application of this Convention. 3. The provisions of the Convention shall be applicable as a minimum to the following: mining and quarrying; manufacturing; construction; electricity, gas and water; sanitary services; transport, storage and communication; and plantations and other agricultural undertakings mainly producing for commercial purposes, but excluding family and small-scale holdings producing for local consumption and not regularly employing hired workers.

(See under Article 4) Optional clause of the Convention – The national legislation does not make use of this.

47



Current situation:


- National policies


Gaps identified:



Article 6 This Convention does not apply to work done by children and young persons in schools for general, vocational or technical education or in other training institutions, or to work done by persons at least 14 years of age in undertakings, where such work is carried out in accordance with conditions prescribed by the competent authority, after consultation with the organisations of employers and workers concerned, where such exist, and is an integral part of-- (a) a course of education or training for which a school or training institution is primarily responsible; (b) a programme of training mainly or entirely in an undertaking, which programme has been approved by the competent authority; or (c) a programme of guidance or orientation

(See under Article 4) No provisions were found in the legislation which deal specifically with vocational or technical education or work done in training institutions. Section 2 of the Employmment Act includes apprenticeship as a form of contract of employment and apprentices as employees.

No specific provisions on vocational or technical education or work done in training institutions.

For legal certainty, the Employment Act should be amended to include provisions on vocational or technical education or work done in training institutions.

48



Current situation:


- National policies


Gaps identified:



designed to facilitate the choice of an occupation or of a line of training.

Article 7 1. National laws or regulations may permit the employment or work of persons 13 to 15 years of age on light work which is-- (a) not likely to be harmful to their health or development; and (b) not such as to prejudice their attendance at school, their participation in vocational orientation or training programmes approved by the competent authority or their capacity to benefit from the instruction received. 2. National laws or regulations may also permit the employment or work of persons who are at least 15 years of age but have not yet completed their compulsory schooling on work which meets the requirements set

Q1. Does the national legislation allow light work for persons of 13 to 15 years of age? If so, which provisions of the national legislation provide for it? Q2. Does the national legislation permit the employment of persons who are at least 15 years of age but have not yet completed their compulsory schooling? If so, which provisions of the national legislation provide for it? Q3. In cases mentioned under Q1 and Q2 above, has the competent authority adopted a list of permitted activities and working conditions

Section 7 subsections (2) and (3) of the Child Proteciton Act provide that a child under the age of 16 may be employed- (a) by the child's parents or guardian in light domestic, agricultural or horticultural work; (b) in any occupation in which his employment is sanctioned by any other law or prescribed under this Act, provided that no child under 16 shall be employed in night work for an industrial undertaking. Q2 and Q 3 See under Article 4 with reference to section 59. No provisions were found which list permitted activities for the work allowed under section 59.

In Observation of the CEACR published in 2016, the Committee noted the Government’s indication that it would undertake to provide information on the measures taken in respect of provisions or regulations which would determine the light work activities and the conditions in which such employment may be undertaken by young persons from the age of 12. (See http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:3251476)

The Government is urged to identify what constitutes light work and the conditions under which these may be undertaken, as recommended by the CEACR.

49



Current situation:


- National policies


Gaps identified:



forth in sub-paragraphs (a) and (b) of paragraph 1 of this Article. 3. The competent authority shall determine the activities in which employment or work may be permitted under paragraphs 1 and 2 of this Article and shall prescribe the number of hours during which and the conditions in which such employment or work may be undertaken. 4. Notwithstanding the provisions of paragraphs 1 and 2 of this Article, a Member which has availed itself of the provisions of paragraph 4 of Article 2 may, for as long as it continues to do so, substitute the ages 12 and 14 for the ages 13 and 15 in paragraph 1 and the age 14 for the age 15 in paragraph 2 of this Article.

including hours of work? Q4. Are the options provided for under Article 7, paragraph 4 of the Convention used in the national minimum age legislation?

Article 8 1. After consultation with the organisations of employers

(See under Article 4) Optional clause of the Convention – The national legislation does not make use of this option.

N/A N/A

50



Current situation:


- National policies


Gaps identified:



and workers concerned, where such exist, the competent authority may, by permits granted in individual cases, allow exceptions to the prohibition of employment or work provided for in Article 2 of this Convention, for such purposes as participation in artistic performances. 2. Permits so granted shall limit the number of hours during which and prescribe the conditions in which employment or work is allowed.

Article 9 1. All necessary measures, including the provision of appropriate penalties, shall be taken by the competent authority to ensure the effective enforcement of the provisions of this Convention. 2. National laws or regulations or the competent authority shall define the persons responsible for compliance

Q1. What penalties (fines, imprisonment, etc.) does the national legislation provide for in case of failure to apply the minimum age legislation? Q2. Are contraventions of the minimum age regulations often reported by the labour inspectorate? Any

The Employment Act provides; Section 52 – any person who employs a child or young person contrary to the provision of Part X that person is liable to a fine of $1,000 (Approximately 1,000 USD). This fine applies to a parent or guardian who consents to the commission of the offence. Section 54 prescribes a fine of $1,500 for the production of a false certificate for the representation of age for

The Child Protection Act does not provide a penalty for contravention of section 7 which relates to the employment of children. In its Observation published in 2016, the CEACR urged the Government to ensure that legislation provides for penalties for

The Child Protection Act and the Employment Act should be amended in line with the recommendation of the CEACR.

51



Current situation:


- National policies


Gaps identified:



with the provisions giving effect to the Convention. 3. National laws or regulations or the competent authority shall prescribe the registers or other documents which shall be kept and made available by the employer; such registers or documents shall contain the names and ages or dates of birth, duly certified wherever possible, of persons whom he employs or who work for him and who are less than 18 years of age.

statistical information available, including any sanctions imposed?

employment in contravention of the Act. Section 61(1) of the Act prescribes that every employer shall keep a register of wage payments and accounts in respect of each employee for a period of 3 years. Section 71 provides for records to be kept by the employer concerning details of its workers, work performed, hours worked, leave taken by them, and other conditions of work. Such records may be made to the Minister of Labour upon request. Q.2 Mr. Clive Pegus in his Report entitled ‘A Review of Child Labour Laws in the Bahamas – a Guide to Legislative Reform (2005), noted that the Bahamas Labour Inspectorate Unit does not have the human resource capacity or the administrative framework to conduct the requisite inspections of workplaces for child labour and recommends that the Unit be

violation of section 7 of the Child Protection Act. The CEACR requested in Observation published in 2016 to keep it informed on the progress of amending section 71 of the Employment Act so that the records kept by the employer required under that section would be made available upon request by the worker or his/her union representative. (See http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:3251476)

52



Current situation:


- National policies


Gaps identified:



given the mandate and resources to target child labour in its inspections. http://www.ilo.org/wcmsp5/groups/public/---americas/---ro-lima/---sro-port_of_spain/documents/publication/wcms_308211.pdf

Worst Forms of Child Labour Convention, 1999 (No. 182)

Article 2 For the purposes of this Convention, the term child shall apply to all persons under the age of 18.

Q. How does the national legislation define the term “child”? Could there be different, or even conflictual definitions in different laws and regulations?

The Employment Act of the Bahamas CH. 321A (the Employment Act) defines in section 49 a ‘child’ as any person under the age of fourteen and ‘young person’ as a person who is fourteen years of age and upwards and under the age of eighteen years. The Education Act CH. 46-2 defines in section 2 ‘child’ as a person who is not over compulsory school age. Section 22 states that compulsory school age means any age between 5 and 16 years. The Child Protection Act, CH 132 defines ‘child’ as unless provided otherwise in this Act, as a person below the age of eighteen years.

There exists a discrepancy in what is the minimum age for the admission to employment in the various pieces of legislation.

The necessary legislative measures should be taken to bring clarification and consistency to the age for admission to employment in The Bahamas.

53



Current situation:


- National policies


Gaps identified:



The Trafficking in Persons (Prevention and Suppression) Act, CH 106 defines ‘child’ as any person under the age of eighteen and defines ‘child pornography’ in section 2. The Act in section 3 (4) speaks specifically to the trafficking of a child for the purpose of exploitation.

Article 3 For the purposes of this Convention, the term the worst forms of child labour comprises: (a) all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict; (b) the use, procuring or offering of a child for prostitution, for the production of pornography or

[For Articles 3 and 4] Q1. How does the national legislation define the term, “child labour”? Does it specify “worst forms of child labour”? Q2. Does the national legislation contain any exemption in this regard? Q3. Is there a list of hazardous work as defined under Article 3, paragraph (d) of the

The Sexual Offences and Domestic Violence Act, CH.99, section 7 covers only the trafficking of people for the purpose of sexual exploitation. Section 152 (2) (f) of the Child Protection Act allows the Minister responsible for social services to make regulations prohibiting the trafficking of children. Section 152(2) (d) of the Act also allows the Minister to make regulations concerning child porgography.

No defintions of ‘child labour’ or ‘worst forms of child labour’ were found in the legislation. The CEACR, in its comment published in 2016 noted that the provision of the Sexual Offices and Domestic Violence Act is insufficient since the Convention also prohibits the sale and trafficking of children for the purpose of labour exploitation. It

The existing relevant laws, i.e. the Sexual Offences and Domestic Violence Act, Child Protection Act and the Dangerous Drugs Act should be amended in line with the recommendations of the CEACR. More generally, there should be legislation that comprehensively deals with issues regarding the worst forms of child labour which are not

54



Current situation:


- National policies


Gaps identified:



for pornographic performances; (c) the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties; (d) work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.

Convention? The list may have been adopted as law or regulations, or as an administrative issuance after consultation with employers’ and workers’ organizations.

The Dangerous Drugs Act CH 228 prohibits the import, export, trade and cultivation of dangerous drugs. Under this Act a child or young person can be found guilty of a drug trafficking offence and be committed to an industrial school or place of detention, Section 22, however there is no offence with respect to the procuring a child for illicit drug activities. Q.3 There is no list of hazardous work nor a mechanism for determination of what constitutes hazardous work in the national legislation, as it relates to children and young persons, the Health and Safety at Work Act, CH 321 of 2002 is deficient in this regard.

urged the Government to take immediate measures in order to include provisions regarding the sale and trafficking of children under 18 for labour exploitation with effective and dissuasive penalities. The Commitee also requested the Government to make regulations to treat with the issues concerning pornography or pornographic performances by a child under the age of 18 years under section 152 (2)(d) of the Child Protection Act. Seeing that there is the Dangerous Drugs Act but that the Act does not specifically establish offences related to the use, procuring or

addressed by the existing legislation.

55



Current situation:


- National policies


Gaps identified:



offering of a child for the production and trafficking of drugs, the CEACR further requested to immediately and effectively prohibit the use, procuring or offering of a child for illicit activities in particular for the production and trafficking of drugs with effective penalties attached. (See http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:3251643)

Article 4 1. The types of work referred to under Article 3(d) shall be determined by national laws or regulations or by the competent authority, after consultation with the organizations of employers and workers concerned, taking

[See under Article 3] Section 86 of the Merchant Shipping Act, CH 268 states (1) No person under the age of sixteen years shall be employed in any Bahamian ship, except — (a) upon work approved by the Director on board a school-ship or training ship; or (b) where the Director certifies that he is

There is no legislation which determines the types of work which are to be considered hazardous and which are to be prohibited for children under the age of 18 years. The CEACR in its comment published in 2016 urged the

See under Article 3. A comprehensive law would be desirable.

56



Current situation:


- National policies


Gaps identified:



into consideration relevant international standards, in particular Paragraphs 3 and 4 of the Worst Forms of Child Labour Recommendation, 1999. 3. The list of the types of work determined under paragraph 1 of this Article shall be periodically examined and revised as necessary, in consultation with the organizations of employers and workers concerned.

satisfied, having due regard to the health and physical condition of the person and to the prospective and immediate benefit to him of the employment, that the employment will be beneficial to him, (2) No person under the age of eighteen years shall be employed in any capacity in any Bahamian ship unless there has been delivered to the master of the ship a certificate granted by a duly qualified medical practitioner certifying that such person is fit to be employed in that capacity. (3) Every medical certificate under subsection (2) of this section — (a) shall be valid for one year from the date of issue, unless earlier revoked; and (b) may at any time be revoked by a duly qualified medical practitioner if he is satisfied that the young person is no longer fit for work. (4) No young person under the age of eighteen years shall be

Government to ensure the adoption of legal provisions determining the types of hazardous work to be prohibited to persons under 18 years of age. (See http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:3251643)

57



Current situation:


- National policies


Gaps identified:



employed on work in the engine-room of any vessel, unless that young person is an apprentice working under supervision. (5) This section shall not apply to a vessel in which only members of one family are employed.

Article 5 Each Member shall, after consultation with employers' and workers' organizations, establish or designate appropriate mechanisms to monitor the implementation of the provisions giving effect to this Convention.

Q1. Is there a tripartite body to deal with matters provided for in the Convention? If so, what legislative or administrative instrument regulates it? What are the body’s core functions? How is the body structured? Q2. Please provide information on the activities of such body. Any results achieved by the body?

Q1 and 2 The CEACR noted in its comment published in 2016 the Government’s report that the Royal Bahamian Police Force had implemented a programme in September 2012 to increase in areas surrounding schools in order to crack down on illicit activities involving children. Also the Urban Renewal Programme, a multi agency initiative was reintroduced to help reduce anti social behaviour including the involvement of children in illicit activities. The website for the Government of the Bahamas, Ministry of Foreign Affairs under “General Information”, refers to the Inter-

While they are relevant, these programmes do not appear to have monitoring function.

National Tripartite Council established under the National Tripartite Council Act, 2015, which has under section 4(b) of the Act, a function to advise the Government on the formulation of national policies and strategies on all aspects of labour, may be empowered to perform the role envisaged under this Article of the Convention.

58



Current situation:


- National policies


Gaps identified:



Ministry Committee on Trafficking In Persons which commenced functions in November 2011 and is the co-ordinating body for policy matters relating to trafficking in persons in the Bahamas. The website also refers to the ‘Trafficking in Persons Task Force established in 2012 which is an operational body to address prevention activities, detection of and assistance to victims. There is also a Special Prosecutorial Unit in the Office of the Attorney General and a Trafficking in Persons Unit of the Royal Bahamas Police Force. See http://mofa.gov.bs/trafficing-in-persons/general-information/ The Bahama Journal newspaper (http://jonesbahamas.com/govt-approves-strategy-to-combat-human-trafficking/) reported on April 21 2015 that the Trafficking Persons Inter-Ministry Committee and National Trafficking in Persons Task Force were successful in completing the

http://jonesbahamas.com/govt-approves-strategy-to-combat-human-trafficking/



59



Current situation:


- National policies


Gaps identified:



“National AntiTrafficking in Persons Strategy for the years 2014-2018 which was approved by the Cabinet. At the time of preparation of this analysis, no copies of these intiatives could be found.

Article 6 1. Each Member shall design and implement programmes of action to eliminate as a priority the worst forms of child labour. 2. Such programmes of action shall be designed and implemented in consultation with relevant government institutions and employers' and workers' organizations, taking into consideration the views of other concerned groups as appropriate.

[For Articles 6; and 7, paragraph 2] Q1. Is there a national policy and programme on child labour? Q2. What is its main content? Does it contain time-bound measures addressing issues mentioned under Article 7, paragraph 2 of the Convention? Q3. Is it adopted and implemented in consultation with employers’ and workers’ orgaizations and other groups, associations and organizations

No policies or programmes on child labour or the worst forms of child labour appears to have been adopted.

The CEACR, in its comment published in 2016 noted that the ILO Rapid Assessment Study of 2002 recommended that the Government establish a national committee composed of all the social partner groups and civil society, to develop an action plan to eliminate the worst forms of child labour.

An action plan to eliminate the worst forms of child labour should be developed .

60



Current situation:


- National policies


Gaps identified:



concerned with child labour? Q4. How is this programme implemented? Are there any results achieved?

Article 7 1. Each Member shall take all necessary measures to ensure the effective implementation and enforcement of the provisions giving effect to this Convention including the provision and application of penal sanctions or, as appropriate, other sanctions. 2. Each Member shall, taking into account the importance of education in eliminating child labour, take effective and time-bound measures to: (a) prevent the engagement of children in the worst forms of child labour; (b) provide the necessary and appropriate direct assistance for the removal of

Q1. What kind of penalties does the national legislation provide for violation of the provisions on child labour? Q2. Is there a public body specifically dedicated to the prevention and eradication of child labour (e.g. a children’s authority)?

See under Articles 2 and 9 of Convention No. 138 above. The Committee has noted, according to the 2008 Education for All UNESCO Report entitled ‘Education for All by 2015, http://unesdoc.unesco.org/images/0015/001547/154743e.pdf, that while progress was made the Bahamas is at risk of not achieving the EFA goal by 2015. There are various Governmental agencies such as the Ministries of Education, Social Services and Labour and Immigration all with responsibility for aspects of the issues of child labour.

In Direct Request published in 2016 considering that education contributes to preventin children from engaging in the worst forms of child labour, the Committee of Experts encouraged the Government to renew its efforts to improve the functioning of the education system, in particular by increasing school enrolment to achieve the Education for All (EFA) goal. (See http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:3251643)

Government efforts to increase school enrolment can be used as a mechanism to reduce the incidence of child labour. The various agencies can be consolidated to develop and give effect to a comprehensive programme to eradicate the worst forms of child labour.

61



Current situation:


- National policies


Gaps identified:



children from the worst forms of child labour and for their rehabilitation and social integration; (c) ensure access to free basic education, and, wherever possible and appropriate, vocational training, for all children removed from the worst forms of child labour; (d) identify and reach out to children at special risk; and (e) take account of the special situation of girls. 3. Each Member shall designate the competent authority responsible for the implementation of the provisions giving effect to this Convention.

Article 8 Members shall take appropriate steps to assist one another in giving effect to the provisions of this Convention through enhanced international cooperation and/or assistance including

Q1. Does the country under review have any agreement or programme for prevention and eradication of child labour with other countries or with

No evidence of programmes or agreements with other countries have been found.

International cooperation should be sought to learn from laws, policies and programmes of other countries.

Co-operation with other countries and regional partners, through CARICOM for example, may be explored in furtherance of the eradication of the

62



Current situation:


- National policies


Gaps identified:



support for social and economic development, poverty eradication programmes and universal education.

regional and international organizations? Q2. If so, has such agreement or programme achieved any results?

worst forms of child labour.

Part IV. Elimination of discrimination in respect of employment and occupation

Equal Remuneration Convention, 1951 (No. 100)

Article 1 For the purpose of this Convention-- (a) the term remuneration includes the ordinary, basic or minimum wage or salary and any additional emoluments whatsoever payable directly or indirectly, whether in cash or in kind, by the employer to the worker and arising out of the worker's employment; (b) the term equal remuneration for men and women workers for work of equal value refers to rates of remuneration established without discrimination based on sex.

Q1. Does the national legislation define the term “equal remuneration for men and women for work of equal value”? Q2. Does the national legislation contain any exemption in this regard?

The Employment Act, CH 321A defines in section 2 “remuneration” includes wages, benefits in kind and allowances” Section 6 of the Employment Act deals with Non-discrimination and equal pay for work of equal value, and states as follows; “No employer or person acting on behalf of an employer shall discriminate against an employee or applicant for employment on the basis of race, creed, sex, marital status, political opinion, age or HIV/Aids by — (b) paying him at a rate of pay less than the rate of pay of another employee, for substantially the same kind of

The national legislation does refer to the principle of equal remuneration for men and women for work of equal value, but its scope is limited as the definitions of “remuneration” and “work of equal value” are limited. The CEACR, in its comment published in 2016 noted that section 6 of the Employment Act does not give full expression to the principle of equal remuneration for men and women for work of equal value as it unduly limits the scope of “work of equal value” because the application of work of equal value to work

The Emplyoment Act of The Bahamas is more in line with the Convention that laws of many other countries in that it does refer to “work of equal value” while laws of other countries may refer merely to “equal work”. However, the scope of application of this principle in the Act is limited as the CEACR indicated. The Employment Act should be amended in line with the

63



Current situation:


- National policies


Gaps identified:



work or for work of equal value performed in the same establishment, the performance of which requires substantially the same skill, effort and responsibility and which is performed under similar working conditions except where such payment is made pursuant to seniority, merit, earnings by quantity or quality of production or a differential based on any factor other than race, creed, sex, marital status, political opinion, age or HIV/Aids”; Section 7 states that the protection provided in section 6 applies to disabled employees, unless the employer can show that to hire the person will result in undue hardship or that hiring the disabled person at a lesser rate is reasonable considering the job requirements.

performed in the same establishment, and requiring substantially the same skill, effort and responsibility, and which is performed under similar working conditions, and the term “remuneration” as defined in the Act has more limited elements than the definition of the term as set out in the Convention. The Commmittee requested the Governmet to amend the Employmane Act to broaden the scope of these terms. (See http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:3252885)

recommendation of the CEACR.

Article 2 1. Each Member shall, by means appropriate to the methods in operation for

Q. Are there any laws, regulations, wage committes or collective agreements that promote and ensure the

See under Article 1. The Employment Act is the principal legislation providing for the principle of equal remuneration

See under Article 1. See under Article 1.

64



Current situation:


- National policies


Gaps identified:



determining rates of remuneration, promote and, in so far as is consistent with such methods, ensure the application to all workers of the principle of equal remuneration for men and women workers for work of equal value. 2. This principle may be applied by means of-- (a) national laws or regulations; (b) legally established or recognised machinery for wage determination; (c) collective agreements between employers and workers; or (d) a combination of these various means.

application of the principle of equal remuneration for men and women workers for work of equal value?

for men and women for work of equal value. The Public Service Act, CH 39 refers to a scale of salary which prescribes the level of remuneration of public officers (which term means holders of any public office) at different levels. There are no provisions which pertain to the principle of equal remuneration for work of equal value for men and women. No other legislative provisions were found which prescribe determination of rates of remuneration for employees. The Persons with Disabilities (Equal Opportunities) Act, 2014 deals with providing opportunites and eliminating discrimination against persons with disabilities and the Commission established thereunder is charged accordingly.

Article 3 1. Where such action will assist in giving effect to the

Q1. Does the national legislation or any administrative

Section 47 of the Industrial Relations Act of the Bahamas deals with the provisions that

Job evaluation provided for in the IRA is for determination of the levels of performance and

Objective job appraisal methods as provided for in this Article of the

65



Current situation:


- National policies


Gaps identified:



provisions of this Convention measures shall be taken to promote objective appraisal of jobs on the basis of the work to be performed. 2. The methods to be followed in this appraisal may be decided upon by the authorities responsible for the determination of rates of remuneration, or, where such rates are determined by collective agreements, by the parties thereto. 3. Differential rates between workers which correspond, without regard to sex, to differences, as determined by such objective appraisal, in the work to be performed shall not be considered as being contrary to the principle of equal remuneration for men and women workers for work of equal value.

instrument provide for objective appraisal of jobs to identify the value of jobs for application of the principle of equal remuneration for men and women workers for work of equal value? If so, are there any manuals or guidelines on the methods for such job appraisal? Q2. How such job appraisal is used in practice?

should be contained in industrial agreements, however this section does not require that collective agreements contain provisions relating to equal remuneration for work of equal value. Clauses 75 to 79 of the Third Schedule made pursuant to section 40 of the IRA sets out some requirements for collective agreements with no reference to equal pay for work of equal value. Clause 78 specifies that agreements may also cover such matters as — ‘(a) techniques for determining levels of performance and job grading, for example, work measurement and job evaluation;’ The CEACR in its comment published in 2016 referred to the Government’s earlier indication that it would provide information on and examples of industrial agreements and company policies providing for job evaluation. (See http://www.ilo.org/dyn/normlex/

job grading, it may be therefore different from the job appraisal method mentioned in the Convention, as it is intended to measure value of jobs across occupational groups, such as machinist and secretary. No job appraisal methods for general use appear to have been developed and implemented.

Convention should be developed and implemented.

66



Current situation:


- National policies


Gaps identified:



en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:3252885)

Article 4 Each Member shall co-operate as appropriate with the employers' and workers' organisations concerned for the purpose of giving effect to the provisions of this Convention.

Q. Is there a tripartite body established and operating for the promotion and implementation of the principle of equal remuneration for men and women workers for work of equal value?

The National Tripartite Council Act, 2015 establishes the National Tripartite Council which consists of the social partners and gives advice to the Government and acts a forum on labour and industrial relations in the Bahamas.

National Tripartite Council does not have specific mandate to promote equal remuneration for women and men for work of equal value.

National Tripartite Council , which has under section 4(b) of the Act, a function to advise the Government on the formulation of national policies and strategies on all aspects of labour, may be empowered to perform the role envisaged under this Article of the Convention.

Discrimination (Employment and Occupation) Convention, 1958 (No. 111)

Article 1 1. For the purpose of this Convention the term discrimination includes-- (a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality

[For Articles 1 and 4] Q1. How does the national legislation define the term “discrimination”? In particular, what are the effects considered “discriminatory” compared to ? What are the grounds on which

Section 6 of the Employment Act provides as follows; “No employer or person acting on behalf of an employer shall discriminate against an employee or applicant for employment on the basis of race, creed, sex, marital status, political opinion, age or HIV/Aids by — (a) refusing to offer employment to an applicant for employment or not affording the employee

The CEACR noted in its comment published in 2016 that Section 6 of the Employment Act has not been amended to include ‘colour’, ‘national extraction’ and ‘social origin’ as prohibited grounds of discrimination. It suggested to amend the Act to include these grounds. (See http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:

The Employment Act should be amended in line with the recommendation of the CEACR.

67



Current situation:


- National policies


Gaps identified:



of opportunity or treatment in employment or occupation; (b) such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employers' and workers' organisations, where such exist, and with other appropriate bodies. 2. Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination.

discrimination is prohibited? Q2. Does the national legislation make any exemtion? In particular, in relation to Article 4 of the Convention, does the national legislation consider not discriminatory measures applied to individuals who are involved in activities intended to safeguard the security of the State?

access to opportunities for promotion, training or other benefits, or by dismissing or subjecting the employee to other detriment solely because of his or her race, creed, sex, marital status, political opinion, age or HIV/Aids; (b) paying him at a rate of pay less than the rate of pay of another employee, for substantially the same kind of work or for work of equal value performed in the same establishment, the performance of which requires substantially the same skill, effort and responsibility and which is performed under similar working conditions except where such payment is made pursuant to seniority, merit, earnings by quantity or quality of production or a differential based on any factor other than race, creed, sex, marital status, political opinion, age or HIV/Aids; (c) pre-screening for HIV status: Provided that this section does not affect any other law or

13100:P13100_COMMENT_ID:3252882)

68



Current situation:


- National policies


Gaps identified:



contract term which stipulates a retirement age.

Article 2 Each Member for which this Convention is in force undertakes to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof.

[For Articles 2 and 3] Q1. Is there a national policy for promotion of equality of opportunity and treatment in respect of employment and occupation? Q2. Does such national policy: (i) seek cooperation of emplyoers’ and workers’ organizations and of other entities concerned ? (ii) identify any new legislation necessary? (iii) identify any existing legislation that needs to be repealed or amended? (iv) cover public sector employment?

There appears to be no policies, programmes specifically to promote equality of opportunity and treatment.

No policies to implement the Convention exists.

National policies or programmes for the purpose of the Convention should be developed.

Article 3 Each Member for which this Convention is in force undertakes, by methods appropriate to national conditions and practice-- (a) to seek the co-operation of employers' and workers' organisations and other appropriate bodies in promoting the acceptance and observance of this policy;

There appears to be no entities, such as an equality commission.

No entity specifically tasked to eliminate discrimination in employment and occupation exists.

A specific body, such as an equality commission, may be envisaged. For the purposes (a), (b), (c), (d) and (f) of this Article, however, theNational Tripartite Council established under the National Tripartite Council Act, 2015 may be empowered to apply

69



Current situation:


- National policies


Gaps identified:



(b) to enact such legislation and to promote such educational programmes as may be calculated to secure the acceptance and observance of the policy; (c) to repeal any statutory provisions and modify any administrative instructions or practices which are inconsistent with the policy; (d) to pursue the policy in respect of employment under the direct control of a national authority; (e) to ensure observance of the policy in the activities of vocational guidance, vocational training and placement services under the direction of a national authority; (f) to indicate in its annual reports on the application of the Convention the action taken in pursuance of the policy and the results secured by such action.

(v) cover vocational education, vocational training and public employment service? Q3. How is such national policy implemented in practice? Please describe activities undertaken and their results achieved.

these parts of this Article of the Convention.

Article 4 [See under Article 1] No provision appears to exist.

No provisions applying this Article appear to exist, but

Not applicable.

70



Current situation:


- National policies


Gaps identified:



Any measures affecting an individual who is justifiably suspected of, or engaged in, activities prejudicial to the security of the State shall not be deemed to be discrimination, provided that the individual concerned shall have the right to appeal to a competent body established in accordance with national practice.

that would mean measures affecting an individual engaged in activities for the security of the State must also respect and implement the principle of non-discrimination.

Documents

GAP ANALYSIS MATRIX THE BAHAMAS - International … · 2017-09-26 · ILO of the term ^essential Section 6of the Ministry of Foreign Affairs Act, ... amended to gurantee the right