Joseph and Antigua Workers Union v A.G. of Antigua

• Jurisdiction: Antigua and Barbuda
• Court: High Court (Antigua)
• Judge: Bishop J.
• Judgment Date: 20 March 1978
• Neutral Citation: AG 1978 HC 3
• Docket Number: (Civil) No. 36 of 1977
• Date: 20 March 1978

High Court

Bishop, J.

(Civil) No. 36 of 1977

Joseph and Antigua Workers Union

and

A.G. of Antigua

Constitutional law - Statutory Interpretation — Antigua Labour Code, 1975.

Labour Law - Statutory Interpretation — Antigua Labour Code, 1975.

Bishop J.

1 The Antigua Labour Code became law in Antigua around the 19 ^th September 1975. Also referred to herein as the Principal Act, it was described as “An Act to bring together, in terms appropriate for the present State of the Antigua economy, all legislation applicable to employment standards, and industrial relations”. Sections C.32 and J.13 with which this case is concerned stated as follows:

“C. 32. An employer may deduct from wages payable to a workman under any contract of employment the following:

• (a) any tax rate, or other deduction imposed by any law;

• (b) any money advanced by the employer by way of loan (whether paid to the workman himself or to some other person at his request) in anticipation of the regular payment of his wages; provided the amount deducted accords with the agreement made between employer and workman at the time of the loan, and provided that no interest, discounts or similar charge may be imposed on such loan;

• (c) the actual or reasonable estimated cost to the employer of any materials, tools and implements which although not obliged to provide the employer has supplied to the workman at the latter's request;

• (d) any initial payment or regular membership subscription or service fee of a registered trade union which an employee has authorised to be deducted under the terms and conditions set forth in section J13: provided however, that the employer transmit to the appropriate trade union the funds thus deducted within thirty days of the deduction; or

• (e) Any payment into the general welfare fund of a trade union which an employee has authorised in writing to be deducted;

• (f) any sum of money which an employee has authorised in writing to be deducted for other purposes, except for the purpose of obtaining or retaining employment (other than as specified in subparagraph (d) or for or in respect of any fine, or for in respect of any fine, or for bad or negligent work or for injury to the materials or other property of the employer (save when the injury is occasioned by the wilful misconduct of the workman).

Provided that the total which may be deducted or stopped in any pay period shall not exceed one-third of the gross wage (excluding, however, the value of any payments in kind) of the workman in the applicable pay period.”

“J 13. (1) As provided by section J4, the certified registered trade union shall be the sole bargaining unit for all the employees in the involved bargaining unit; and, as indicated in section K4(2)(e), it shall have the duty to represent all such employees.

• (2) (a) As of ten days after said certification, an agency shop requirement shall be a condition of the continuation of employment within the bargaining unit. As of that date, a condition of employment therein shall be that each employee either

  • (i) become and remain a member in good standing of the certified trade unions; or

  • (ii) agree to pay and thereafter pay an appropriate service fee to that trade union in lieu of membership therein. Provided, however, that the agency shop requirement has been duly accepted and approved by resolution at an annual convention of said bargaining union.

• (b) The service fee referred to in subparagraph (a)(ii) shall be the cost of the trade union's regular membership subscription.

• (c) Upon written authorization by the employee, irrevocable as long as the agency shop requirement exists, the involved employer may deduct from that employee's wages, for transmission to the trade union, his initial union payment, regular membership subscription, or service fee, whichever is appropriate, within the limitations set by section C 32.

• (d) This agency shop requirement shall expire if and when

  • (i) the involved trade union is no longer registered; or

  • (ii) the involved trade union is no longer entitled to act as the sole bargaining agent of the employees in the unit.”

2 Around 19 ^th June 1976 an Act to amend the Antigua Labour Code Act (No 14 of 1975) was passed. By section 4 of the Antigua Labour Code (Amendment) Act 1976, the words “or service fee” and the words “under the terms and conditions set forth in section J 13” in paragraph (d) of section C 32 of the Principal Act were deleted; also paragraphs (e) and (f) were repealed and the following proviso added:

“Provided further that from and after the coming into force of the Antigua Labour Code (amendment) Act 1976 all existing authorisations given by any employee for the deduction of any money from his wages shall cease to have effect and shall accordingly be null and void.”

3 By section 7 of the Amending Act, the whole of section J13 of the Principal Act was repealed, and it was replaced by the following:

“J. I3 (1) As provided by section J4 the certifies trade union shall be the sole bargaining agent for all the employees in the involved bargaining unit; and, as indicated in section K 4 (2)(c), it shall have the duty to represent all such employees in negotiating collective agreements.

(2) (a) Every employee in the involved bargaining unit shall have the right to benefit from any collective agreement negotiated in terms of subsection (1), less a negotiating fee; Provided that where an employee becomes or having become remains a member in good standing of the certified trade union no such fee shall be paid to the certified trade union.

• (b) (i) The negotiating fee referred to in paragraph (a) shall be $6.00. The minister may by order vary the amount of such fee.

• (ii) Any order made under subparagraph (i) shall be laid before the next ensuing session of Parliament and shall remain in force unless cancelled or amended by resolution of both Houses of Parliament, when it shall cease to have effect, or shall have effect in its amendment form but without prejudice to the validity of anything done by virtue of such order prior to such cancellation or amendment.

• (c) (i) The negotiating fee shall be payable by the employer in respect of each benefiting employee who does not satisfy the conditions in the proviso to paragraph (a) and, if not paid within thirty days shall be recoverable as a civil debt from the employer.

• (ii) The negotiating fee referred to in this section shall be paid to the certified sole bargaining agent in respect of each collective agreement negotiated by it.

(d) “Benefiting employee” for the purposes of this subsection means any person who was a member of the sole bargaining unit on the date when the collective agreement was made.”

4 The affidavit of deponent Donald Halstead shows that “there are two principle trade unions in Antigua supported by the Antigua Trades and Labour Union and the opposition Progressive Labour Movement is supported by the Antigua Workers Union”. These assertions were admitted by the deponent Adolphus Freeland, the minister responsible for Home Affairs and Labour who was also “a former General Secretary of the Antigua Trades and Labour Union”. It is also undisputed that when the Antigua Labour Code Act No 14 of 1975 was enacted, the Progressive Labour Movement was the political party in power, and therefore from it was formed the Government of Antigua; the Antigua Labour Code (Amendment) Act 1976 was enacted after the general elections of 1976, at which the Antigua Labour Party seized power and formed the Government of Antigua. To date this political party has retained power and so it may be said that it is opposed by the political party which forms the official opposition in Parliament and, presumably, by the trade union which supports that opposition party.

5 By motion filed on the 4 ^th June 1977, Emery Joseph and the Antigua Workers' Union (also called the A.W.U) applied to this court, pursuant to sections 15 and 102 of The Constitution of Antigua, for the following:

• “(a) a declaration that the Antigua Labour Code (Amendment) Act 1976 and in particular sections 4 and 7 thereof are unconstitutional, null, void and of no effect;

• (b) a declaration that the applicant Emery Joseph is and was at all material times entitled and at liberty to pay union membership subscriptions, fees or other monies to the Antigua Worker's Union voluntarily by authorising deduction of such subscriptions, fees or monies from his wages or earnings by his employer and by further authorising payment of all sums so deducted to the said Union;

• (c) a declaration that the Antigua Labour Code No 14 of 1975 subsists without any amendment effected by the said Act of 1976 or alternatively, with only such amendments as the court may specifically declare;

• (d) a declaration that the authorisation given by the applicant to his employers Caribeach (Antigua) Ltd. prior to 1975, in relation to deduction of membership subscriptions from his earnings for the benefit of the union, was not invalidated by the Antigua Labour Code (Amendment) Act No 3 of 1976 or by any other law and continues to be of full force and effect;

• (e) a declaration that the Antigua Worker's Union a duly registered trade union under the laws of Antigua is entitled to payment of service fees; dues and other monies in such manner as may from time to time be agreed between the Union and its members and the Union and employers including voluntary authorisation by members of deductions of membership subscriptions from earnings by employers for payment to the Union;

• (f) such damages and,/or compensation as may be appropriate redress for the said Union for monies payable to it in respect of membership subscriptions and service fees which have remained unpaid since and by reason of the enactment of the Antigua Labour Code (Amendment) Act No 3 of 1976;

• (g) all appropriate accounts and inquiries;

• (h) such...