Barbara Gayle, Staff Reporter

Holiday Inn Sunspree Resort is appealing against a Supreme Court ruling which has upheld an Industrial Disputes Tribunal's (IDT) decision as to the categories of workers eligible to vote in the National Workers' Union's (NWU) claim for bargaining rights.

Senior Puisne Judge Justice Marva McIntosh made the ruling this month and the effect of her ruling is that former contract workers of Holiday Inn are eligible to vote in the ballot to determine the union's claim for bargaining rights they are no longer employed to the hotel.

Holiday Inn contended that it had taken a policy decision in 2004 to discontinue its practice of using contract workers after Hurricane Ivan damaged the hotel in 2004. The contract workers had their contracts terminated, or those which expired were not renewed.

The contracts were terminated after the union had served its claim for bargaining rights for contract workers.

A dispute arose in December 2004 between Holiday Inn and the NWU regarding the categories of workers for whom ballots should be taken.The Ministry of Labour referred the dispute to the IDT for settlement. The terms of reference to the IDT were to determine and settle the dispute with regard to the categories of workers for whom a ballot should be taken, or persons who should be eligible to vote in the ballot to determine the union's claim for bargaining rights.

Entitled to vote

On May 30, 2005, the IDT made an award providing the list of workers employed by Holiday Inn who were entitled to vote. Holiday Inn took the issue to the Supreme Court, contending that the IDT erred when it decided that the workers in Exhibit 18 (which was a list of the workers employed by Holiday Inn and members of the NWU at the date of service of the Union's claim) were entitled to vote.

Attorneys-at-law Julie Thompson and Tasha Manley from the Attorney-General's Department represented the IDT and the Ministry and they argued that the IDT had the jurisdiction to determine either the category of workers of whom a ballot should be taken or the persons entitled to vote in the ballot. They submitted further that the workers' right to vote on a ballot to determine bargaining rights was preserved even where a worker was dismissed (under a contract) or was no longer employed to Holiday Inn subsequent to the service of the claim. They argued that the issue between the parties was with the status of the workers (that was whether they were temporary, short term, part-time casual workers, probationers) and not with the categories of workers of whom a ballot should be taken. They submitted that it was therefore within the IDT's jurisdiction to have decided on the persons eligible to vote without first deciding the categories of workers of whom a ballot should be taken.

They argued that the only evidence before the IDT during the hearing of the dispute was Exhibit 18 and Holiday Inn did not adduce any evidence in relation to a list of workers at the hearing before the IDT. They said the IDT made an award based on the evidence before it and the court should not disturb the tribunal's ruling. Attorney-at-law, Candis Craig, who represented the NWU adopted the submissions made by the government lawyers.

Holiday Inn, in challenging the IDT's ruling, claimed that the IDT erred in deciding that the workers in Exhibit 18 were entitled to vote. Holiday Inn also contended that if the ballot was taken on the basis of the IDT's award, it would deny numerous former employees of Holiday Inn the right to vote on the ballot.

Attorneys-at-law Lowel Smith, Gregory Reid, Sr., and Gregory Reid, Jr., instructed by Ziadie Reid and Co., represented the hotel and argued that the IDT endorsed the list of union members as the voter's list to be used in the poll rather than all of the contract workers employed to the hotel. They submitted that as a consequence, only workers who were already members of the union at the time the claim for representation was made would have been eligible to vote in the poll, and therefore more than half of the contract workers employed to the hotel would have been disenfranchised.

Manifestly unjust

Holiday Inn maintained that it would be manifestly unjust to deny more than half the workers for whom claims were being made by the union, the opportunity to vote. The lawyers stressed that if a poll was to be conducted it must, as in an election, be fair and be based on the correct and proper voters' list, which represented all the workers eligible to vote, and not simply those whose names were already on the union's list of members.

The lawyers submitted that in the hotel's view, contract workers were by law entitled to union representation, if they so desired. They said the only objection that the hotel had to unionising contract workers was whether it was practical and feasible to unionise a worker whose employment was intended to be for only a temporary fixed period.

Holiday Inn also asked the court to determine whether the award of the tribunal was proper given the fact that at the time the award was made, the hotel no longer had any workers in thecategory being claimed for by the union. It was further argued that if the poll was to go forward and the workers who were employed to the hotel prior to Hurricane Ivan turned up and voted for the union, the result would be a phantom bargaining unit representing a category of workers that no longer existed at the hotel.

Justice McIntosh upheld the submissions by the government lawyers and ruled that the IDT acted lawfully and based its decision on the evidence before it.