Supreme Court

Bahamas

Equity Side No. 105 of 1985

Smith et al
and
Bahamas Hotel Catering and Allied Workers Union et al
June 5, 1983

Malone, Snr J.

Constitutional Law - Constitution of the Bahamas Article 15 — Industrial Relations Act, 1970, No. 14, s.
43A — Industrial Agreement — Agency fee provided for by Clause 31 of the agreement — Whether
valid — Whether agency fee is in violation of the applicant's right to protection of property against
deprivation without payment of compensation.

Appearances:

Mr. M. Glinton with Mr. K. Shurland for plaintiffs.

Mr. H. Tynes for 1st defendant.

Mr. F. Smith for 2nd defendant and for the 1st of the 3rd defendants.

Mr. H. Longley for 2nd and 3rd of the 3rd defendants.

M. Hamilton with Mr. Thompson for the Attorney General.

Malone, Snr., J.
The plaintiffs are all employees of one or other of the third defendants. The employment of the first
plaintiff began with the Atlantik Beach Hotel about June 1979 that of the second plaintiff began, with the
Princess Casinos in about December 1968 and that of the third plaintiff began with the Princess Tower
Hotel in about September 1982. They are not now and were not at the commencement of their employment
members of the first defendant union, but at each of their places of employment the first defendant union is
the bargaining agent of the bargaining unit of which they are members. Their respective employers are
members of the second defendant association.

On the 9th August 1982 an industrial agreement, (hereinafter referred to as “the agreement”) was made
between the first and second defendants. By clause 31 of the agreement, a weekly deduction described as
an agency fee is provided for and from the weekly wages of the plaintiffs their respective employers have
made deductions. In the case of the first plaintiff, the deduction began about the 20th December 1984 and
is in the amount of $4.50. It represents about 2% of her gross weekly earnings. In the case of the second
plaintiff, the deductions began about the 29th August 1982 and was then $2.25. Later it was increased to
$4.50 and represents about 4% of her gross weekly wages. In the case of the third plaintiff, the deduction
began about the 5th November 1982 and is in the amount of $4.50. It represents 2% of his gross weekly
wages. The plaintiffs' understanding that the deductions have been paid over to the first defendant pursuant
to clause 31 of the agreement is not questioned. Nor do the defendants question the plaintiffs' apprehension
that the deductions will be increased and will continue to be made from their wages. The proceedings have
been conducted by all parties on the footing that the facts are not in dispute and that the outcome depends
on the answers found to two questions posed as alternative to each other by the originating summons. The
two questions have this in common that both are directed at the validity of the agency fee. The first does so
by querying whether upon a true construction of section 43A of the Industrial Relations Act, 1970, No. 14,
as amended (hereinafter referred to as “the Act”), the agency fee provided by clause 31 of the agreement is
a contribution within the meaning of that section. The second does so by querying the constitutional
validity of section 43A in relation to Articles 15 and 24; 15 and 26 and 15 and 27 of the Constitution. In
each instance, Article 15 is linked to another as it is Article 15, which, acknowledges the existence of the
fundamental rights and freedoms of the individual, whilst the Article to which it is linked delimits the
extent to which protection of a particular right and freedom is afforded. The rights and freedoms here in
question and acknowledged by Article 15 are:

The relief sought in the event that the first question is answered in the negative is for:

(a) a declaration that section 31 of the Agreement is ultra vires the Act (as amended), void and of no
effect;
(b) an injunction restraining the first defendant Union and the second defendant Association, their and
each of their servants and agents from enforcing or taking steps to enforce the payment of the agency
Fee, pursuant to the Agreement;
(c) an injunction restraining the third defendants and each of them, as employers of the plaintiffs and
each of them, from deducting from the emoluments of the plaintiffs and each of them, the Agency Fees
payable there from under the Agreement in respect of their employment with the third defendants;
(d) an order that the union do pay to the third defendants and each of them or to each of the plaintiffs,
any payments made by the third defendants and each of them, to the Union under the Agreement; and
(e) an order that the third defendants and each of them do pay to the plaintiffs any deductions made by
the third defendants from each of their emoluments under the Agreement which the third defendants
have received bark from the first defendant Union.
The relief sought in the event that in answer to the second question, section 43A is found to be
unconstitutional is for:

(a) “a declaration that section 43A of the Act (as amended) and consequently section 10 of the
Amendment Act, are repugnant to Articles 15, 24, 26 and 27 (or either of them) of the Constitution, ultra
vires the Legislature and therefore void”; and
(b) the injunctions and orders applied for under (b), (c), (d) and (e) in relation to the first question.
I shall consider the second question first, for if the answer to that question favours the plaintiffs, it will
encompass all of the reliefs sought by them. Mr. Glinton's submissions in relation to that question rest
upon two basic propositions. They are:

In my opinion those propositions are not open to question. Article 2 of the Constitution declares the
Constitution to be the supreme law and subject to its provisions provides that:

if any other law is inconsistent with this Constitution, this Constitution, shall prevail and the other shall, to
the extent of the inconsistency, be void.

The effect of that Article, to adopt the language of Frazer, J. A., in Collymore v Attorney General, (1967),
12 W.I.R., 5 at p 35, is that:

“No one not even Parliament can disobey the Constitution with impunity”.
If the requirements of the Constitution are fulfilled, a law enacted by Parliament will stand. But if those
requirements are not fulfilled and a contravention of the provisions of the Constitution results from a law
enacted by Parliament, then without prejudice to any other action with respect to the same matter lawfully
available to him, any person who alleges that he has been, or that he is, or that he is likely to be prejudiced
may, under Article 28(1), apply to the Supreme Court for redress. Because of the language of Article 2,
and as redress lies with the Supreme Court, that court, as Wooding, C. J., stated in the Collymore case,
(ibid), at p 9:

“has been constituted, and is, the guardian of the Constitution, so it is not only
within its competence but also its right and duty to make binding declarations, if
and whenever warranted, that an enactment, passed by Parliament is ultra vires
and therefore void and of no effect…….”
In the performance of its function as the guardian of the Constitution, the court is not to have regard to the
propriety or expediency of the law impugned. It is concerned solely with whether the provisions of that
law conflict with an entrenched provision. I think that was plainly stated by Lord Diplock in Hinds and
Others v R, [1976], 1 All E.R., 353. His Lordship's statement at p 361 requires only the substitution of
“The Bahamas” for “Jamaica” to be applicable here. That statement is as follows:

“So, in deciding whether any provisions of a law passed by the Parliament of

Jamaica as an ordinary law are inconsistent with the Constitution of Jamaica,
neither the Courts of Jamaica nor their Lordships' Board are concerned with the
propriety or expediency of the law impugned. They are concerned solely with
whether those provisions, however reasonable and expedient, are of such a
character that they conflict with an entrenched provision of the Constitution and
so can be validly passed only after the Constitution has been amended by the
method laid down by it for altering that entrenched position.”
Consequently, I agree with Mr. Glinton that notwithstanding that section 43A of the Act may further
promote collective bargaining, and that past experience may show that practice to have been of benefit to
the work force as a whole, I am not to take that factor into consideration in construing the section. There is,
however, a rebuttable presumption of constitutionality in favour of an impugned law enacted by
Parliament. That rebuttable presumption was recognised by Jackson, J. A., in Inland Revenue
Commissioner and A/G v Lilleyman and Others, [1964], 7 W.I.R., 496 at p 506, when having observed
that the Attorney General had submitted there was a presumption of constitutionality he said:

“There is indeed much substance in that submission which is supported by

decided cases. This however is not all; the presumption is not irrebuttable.”
Its application is illustrated in Hinds and Others v. R, (ibid), where at p 368, Lord Diplock said:

“In considering the constitutionality of the provisions of section 13(1) of the 1979
Act” (i.e. those provisions of the Act requiring in camera hearings)” a court
should start with the presumption that the circumstances existing in Jamaica are
such that hearings in camera are reasonably required in the interest of public
safety, public order or the protection of the private lives of persons concerned in
the proceedings. The presumption is rebuttable.”
Lord Diplock. at p 368 stated as the reason why the presumption was rebuttable that:

‘Parliament cannot evade a constitutional restriction by a colourable device:

Ladore v Bennett [1939] A.C. 468 at p 482.”
It is clear also from the decision in Hinds and Others v. R, (ibid) that the burden is on the party who attacks
the impugned law to rebut the presumption. The burden is a heavy one as can be seen from the test applied
by their Lordships in Hinds' case, (ibid), when at p 369, Lord Diplock said it had to be shown:

“that Parliament in so declaring was either acting in bad faith or had

misinterpreted fine provisions of section 20(4) of the Constitution under which it
purported to act.”
To my mind, the meaning conveyed by those words is that a positive finding is required. That is to say, the
presumption must, be clearly shown to have been rebutted. That is the standard, which was followed it
seems to me, in the Eireann case of In Re Act 26 of the Constitution, (1940) I.R., 470. That case is one of
many cited from various jurisdictions by Hyatali, C. J., in Attorney General of Trinidad ‘and Tobago v
Ramesh Dipraj Kuma Mootoo, (1976), 28 W.I.R., 304 at pp 311 - 314. In several of those cases the
standard of proof is expressed in terms associated with the criminal law. Namely, beyond a reasonable
doubt. To my mind, in the context of the construction of a statute or enactment, the language of the
criminal law, with all respect to those who prefer it, adds nothing to the word “clearly” (which in that
context is equivalent to “unequivocal”) and may be a source of confusion.

Section 43A of the Act was enacted after the 10th July, 1973, (Independence Day) and is as follows:

“43A(1) Notwithstanding anything in this Act contained, every industrial agreement shall, subject to the
prior agreement of not less than sixty per centum of the employees comprised in the bargaining unit to
whom the agreement relates, also contain provisions(a) for the payment by every employee in the
employment of the employer with whom the agreement is made, and on whose behalf the agreement is
made, comprised in the bargaining unit, of a contribution to the bargaining agent concerned;(b)
specifying the amount payable as contribution by an employee which amount shall be agreed on
between the employer and the bargaining agent but shall, in the case of an employee who is a member
of the union recognised as bargaining agent, be equivalent to the dues payable from time to time by
such member in respect of his membership, and in the case of an employee who is not such a member
ninety per centum of such dues, the times at which the contribution is payable by an employee, the
procedure for the collection of the contribution from an employee and for the payment over of the
contributions by the employer to the bargaining agent and for all other matters related thereto.
(2) The Minister shall take a representational count by secret ballot in order to determine whether not
less than sixty per centum of the employees concerned agree to the inclusion in the agreement of the
provisions set out in subsection (1) and shall notify the result of the ballot to the employer and the
bargaining agent.
(3) Notwithstanding anything in this Act contained, where the provisions set out in subsection (1) have
been included in the agreement, not less than twenty-five per centum of the employees concerned may
make written application to the Minister for a representational count by secret ballot to determine
whether the agreement should not be amended by the removal of the provisions:
Provided that no application shall be made until after the expiration of twelve months from the date of
the commencement of the agreement.
(4) The Minister shall, on an application being made under subsection (3), take a representational count
by secret ballot of employees comprised in the bargaining unit on the question whether the agreement
should not be amended by the removal of the provisions.
(5) The Minister shall notify in writing the result of the ballot to the employees who made fine
application for a ballot, the employer and the bargaining agent.
(6) If, on a ballot taken order subsection (4), less than sixty per centum of the employees comprised in
the bargaining unit vote in favour of the amendment of the agreement by the removal of the provisions,
the Minister shall make an order accordingly and that order shall have effect on the last day of the
month in which the ballot was taken”.
Section 10 of the amending Act has not to be setout as it is merely the measure by which section 43A
became a part of the principal Act. When provisions of the kind to be found in section 43A are embodied
in a collective bargaining agreement, they are known, at least in the U.S.A., as a “shop agency” clause.
They are a form of union security device. Such devices describe the obligations of employees to support
the union. (See “Labour Law” by Professor Leslie of the University of Virginia, U.S.A., at p 338).

My first approach to the second question will be through Article 27. It is common ground between the
parties that section 43A does not meet any of the conditions stipulated in paragraphs (a), (b), (c) and (d) of
Article 27(1) and does not fall within any of the provisions of Articles 27(2), (3) and (4). The only part of
Article 27, which, is of concern, is the first few lines thereof. Namely:

“No property of any description shall be compulsorily taken possession of, and no
 interest in or right over property of any description shall be compulsorily
acquired….”
It should, however, I think, be said that despite the concessions of counsel for the first defendant and for
the Attorney-General, paragraphs (a), (b), (c) and (d) of Article 27(1) and Articles 27(2), (3) and (4), were
considered by the court and the conclusions reached were the same as those of the two counsel.

The common ground between the parties is further widened by the acknowledgement on both sides that
“property” within the meaning of Article 27 includes money and there is authority for that interpretation in
the decisions in the Lilleyman case, (ibid) and in Harry v Thom, (1967), 19 W.I.R., 348

In summary, Mr. Glinton's abjection to section 43A is that it effects, he submits, a compulsory taking of a
portion of a non-union employee's wages by the employer and the handing over by the employer of the
portion so taken to the union for its private purposes. In brief, it is his case that the impugned law is a
colourable device, as by it Parliament is seeking to do indirectly through, the employer something which it
could not do directly without infringing Article 27, save by complying with the requirements of the
Constitution and with those requirements it has not complied. As a modification of his submission, Mr.
Glinton submits that properly interpreted section 43A only applies to the 60% or more who voted in favour
of the deduction. Consequently, he claims that as on that interpretation the section does not apply to the
plaintiffs, there is no authority for the deduction in their case and that if clause 31 of the agreement seems
to authorise a deduction from them, it is to that extent ultra vires section 43A. These submissions were
adopted by Mr. Smith and Mr. Longley. It will be convenient to dispose of the modification of the first
stated submission before considering the submissions of Mr. Hamilton and Mr. Types in response to the
latter. Mr. Glinton submits that the words:

“not less than sixty per centum of the employees comprised in the bargaining unit
to whom the agreement relates”
of section 43A must apply to all employees in the bargaining unit whether they are or are not members of
the union. It is because the 60% or more may comprise both union and non-union employees that, he
submits, provision is made in section 43A (1)(b), to quantify the contribution in terms of union and
nonunion employees. But he submits that in paragraph 43A(1)(a) the words: “comprised in the bargaining
unit” must, in the context of: “every employee in the employment of the employer with whom the
agreement is made, and on whose behalf the agreement is made” limit the employees in the bargaining unit
to the 60% or more who voted in favour as otherwise they are otiose.

To my mind that interpretation of the section makes nonsense of it. The purpose of the section is to provide
means whereby contributions nay be collected from those benefiting from an industrial agreement to
defray the expenses incurred by the union in the negotiation of that agreement. It would be a mockery of
that purpose if, as Mr. Glinton submits, the law compulsorily exacted a contribution from those willing to
contribute and was silent as to the remainder. Further, as the vote is by secret ballot, then except by breach
of the provision requiring a secret ballot or by those who voted in favour disclosing their identity, it would
not be possible to identify individually the 60% or more. Accordingly, it would not be possible to
determine from whom the deduction was to be collected. It is a recognised canon of construction that an
enactment is to be saved wherever possible. I, therefore, do not consider that words: “comprised in the
bargaining unit”, in section 43A(1) should be given the interpretation for which Mr. Glinton contends. I
think that the words are not strictly necessary but it cannot be said that they serve no purpose as on an
interpretation of the section, which gives effect to the purpose of the section, the words in question further
identify the employees in question. Accordingly, I reject Mr. Glinton's interpretation and do not accept that
on that account clause 31 of the agreement is ultra vires the section.

In response to Mr. Glinton, Mr. Hamilton submits that the deduction is not a compulsory taking or
acquisition of property. Whilst adopting that submission Mr. Tynes seemed also to suggest that the
deduction was compulsory but was saved because effected by an existing law.
Relevant to a consideration of these several submissions is the nature and effect of an industrial agreement
when, as in this instance, it is the product of collective bargaining between two trade unions. Namely the
first defendant and the second defendant. The fact that clause 1(g) of the agreement states that the
agreement is made on behalf of the employers listed in its Appendix “B” and that they have authorised the
second defendant to enter into the agreement on their behalf, does not, to my mind, detract from its being
an agreement between one trade union and another. That position is merely a disclosure by one of the
parties of the bodies it represents.

By section 46, the Act declares that an industrial agreement shall not take effect until registered in
accordance with section 45. When so registered, section 47 provides that the industrial agreement shall be
binding on the employer, his successors to the ownership of the business, the union with which the
employer negotiated the agreement, any successor union and the employees within the bargaining unit to
which the agreement relates. As by section 49, however, nothing in the Act shall enable a court to entertain
legal proceedings instituted by one trade union against another with the object of directly enforcing or
recovering damages for breach of the industrial agreement, the question is in what sense is the agreement
in this case binding?

The common law position with respect to agreements of this nature was stated, I think, by Lord Russell of
Killowen in Young v. Canadian Northern Railway Company, [1931] A.C., 83, when at p 89 he said:

“It” (the collective agreement) “appears to their Lordships to be intended merely

to operate as an agreement between a body of employers and a labour
organisation by which the employers undertake that as regards their workmen,
certain rules beneficial to the workmen shall be observed. By itself it constitutes
no contract between an individual employee and fine company, which employs
him. If an employer refused to observe the rules, the effective sequel would be,
not an action by any employee…but the calling of a strike until the grievance was
remedied.”
The undertaking by the employers to observe rules beneficial to the workmen was described by Lane, J., in
Ford Motor Company Limited v A. E. F. [1969] 2 Q.B., 303 at p 331 as: “undertakings binding in
honour”. The learned judge, however, suggested that if by clear and express provisions making them
amenable to legal action, the parties show an intention to be legally bound and then the agreement may be
legally enforceable. That qualification is not of relevance to the agreement in this case, as it is not
suggested that the agreement is intended to be legally enforceable. Accordingly, it seems to me that in
relation to the instant agreement, the language of section 47 must be interpreted as creating obligations
binding in honour only. Being without legal effect, the section cannot compel the deduction. I must then
reject Mr. Tynes' seeming suggestion that the deduction, although compelled by section 47, is not an
infringement of Article 27 since section 47 was enacted before Independence Day and is saved as an
existing law by Article 30 of the Constitution. If even section 47 compelled the deduction, it would have
required, in this instance, the performance of an executive act in the holding of a secret ballot on the
direction of the Minister to determine whether 60% or more of the employees favoured the deduction to
bring the section into play and such an act is not saved by Article 30 because of the provisions of Article
30(3).

In answer to Mr. Glinton's submission, Mr. Hamilton submits that the consent of the employees is required
as to become effective the provisions of section 43A must become terms of the individual contracts of
employment. Such being the nature of the contract of employment, however, and because of the presence
of clause 31 that consent can readily be inferred. Thus Mr. Hamilton suggested that in the case of an
employee employed in the bargaining unit when an industrial agreement is under negotiation, there will
come a point in time when that employee has the choice to remain in employment or to give it up because
either he does not object to the deduction or does object to it. If he chooses to remain he will, by his
conduct, indicate his acceptance of the deduction. In the case of an employee who applies for a job after an
industrial agreement incorporating the provisions of section 43A is in effect, there is also, Mr. Hamilton
suggests, a choice. If he accepts employment he takes it on the understanding that he accepts the
deduction. If he does not want to accept the deduction he turns down the job. Mr. Hamilton's argument
might be stated in another way. Namely that section 43A is in terms mandatory, but only in so far as it
demands that provisions shall be contained in an industrial agreement once approval of 60% or more of the
employees has been obtained. The fact that the section opens with the words: ‘Notwithstanding anything in
this Act contained…” and that its language as to payments, collection and handing over of the contribution
is commanding, does not carry its mandate beyond the point of inclusion of acts provisions in an industrial
agreement. It does not demand that its provisions contained in the industrial agreement shall be implied
terms of the individual contracts of employment. In that respect it is not like the order in Hulland v
William Sanders & Son, [1945] 1 K.B., 78. No legal penalty is imposed by the Act upon any employer for
not giving effect to the provisions of the section contained in the industrial agreement. In brief, the
common law status of a term of the agreement as not being legally enforceable unless incorporated as a
term of an employee's individual contract of employment is not affected. Since the common law is not
clearly shown to have been overridden, it survives. As the provisions of the section contained in the
agreement are of no legal force without something more and so lie dormant, as it were, they cannot
constitute in that condition a compulsory taking of possession or acquisition of property. If, to awaken
them, compulsion was required, it might be argued, that proceedings could be instituted under Article
28(1) on the ground of the likelihood of being prejudiced. The awakening, however, is not by compulsion
but can only be by the consent of the individual employee. That consent will be inferred from conduct, but
because it will be, that does not detract from its’ constituting consent. Accordingly, as the section acquires
legal force by the consent of the employee, the taking or acquisition of the employee's property is not by
compulsion and cannot then be an infringement of the provisions of Article 27.

A question that arises out of these arguments is tether Mr. G1inton's submission remains sound because of
the combined effect of sections 43A and 47. That is to say that the combined effect of those sections is to
coerce employees who are not members of the union into abandoning the right protected by Article 27. In
this country an employer, subject to the Fair Labour Standards Act, 1970, No. 13, may stipulate the terms
and conditions of employment and an employee has not, as such, a right to work. Assuming then that
section 43A had not been enacted, an employer would not, I think, be acting unlawfully in refusing
employment to an individual who declined to accept terms of employment like those of clause 31 of the
agreement nor would the be acting unlawfully if he properly terminated the employment of an employee
who refused to abide by such terms.

Coercion, in a legal sense, implies, to my mind, some negation of choice when affected by unlawful
means. The presentation of a choice invariably brings pressure to bear on the individual by whom the
choice must be made. The employer in presenting to the employee the choice of continuing or, as the case
may be, of initial employment subject to a deduction like that of clause 31 or of ending his employment,
or, as the case may be, of rejecting initial employment will be acting lawfully. His action may bring
pressure to bear on the employee and the latter may be said to be coerced into acting in a way in which he
would not have acted but for such pressure. The pressure, however, cannot, to my mind, constitute
coercion in a legal sense since it stems from the employer's right to stipulate terms of employment: I
venture to think that the foregoing analysis accords with the views expressed by Lord Watson in Allen v
Floode [1898] A.C., 1, where at p 98 he said:

“According to my opinion coercion, whatever be its nature, must, in order to infer

the legal liability of the person who employs it, be intrinsically and irrespectively
of its motive a wrongful act”.
In the second edition of “Trade Union Law”, the learned author at p 57 writes as follows in reference to
that passage:

“Similarly, to constitute illegal coercion it is clear that the acts or means

employed must, intrinsically and irrespective of motive involve either a criminal
or civil wrong”.
Here, admittedly, it is not a question of individual legal liability but of alleged conflict between an
enactment and the Constitution. Nevertheless, the same principles that determine what is coercion in a
legal sense must, I think, apply in relation to such conflicts. When those principles are applied to section
43A, I find on the basis of the foregoing analysis that the section does not authorise or facilitate illegal
coercion.

Being of the view that section 43A is not an intervention by Parliament to authorize or facilitate coercion
by legalizing acts directed to that end and that it does not compel the deduction, I find that the impugned
law does not infringe Article 27, either directly or indirectly and I reject Mr. Glinton's submissions to the
contrary. I confess that I am happy to reach that conclusion, as it seems to me that there is, in principle,
nothing that is offensive in a deduction of this nature since it is in essence a payment for services rendered.

I turn next to consider the alleged infringement by the impugned law of Article 24, which protects the
freedom of peaceful assembly and association. That freedom was defined by Wooding, C.J., in the
Collymore case, (ibid), at p 15 as follows:

“…. freedom of association means no more than freedom to enter into consensual
arrangements to promote the common-interest objects of the associating group”.
Correlative to that freedom is the freedom to dissociate. This correlative freedom has been recognised in
several cases of which the Trinidad Island Wide Cane Farmers case, (ibid), is but one example.

I apprehend Mr. Glinton's submission to be that by being compelled to contribute to the union the
plaintiffs, who are not members of the union, are denied their freedom to dissociate themselves from the
union. The short answer to that submission is, of course, that the impugned law does not compel the
plaintiffs to contribute to the union. They incur a legal obligation to contribute only if they so choose.
Clearly then it is a law which falls without the ambit of Article 24, as the opening words of that Article are:
“Except with his consent no person shall be hindered in the enjoyment of his freedom of peaceful
assembly and association….” There being no compulsion, there can be no foisting of membership of the
union on the plaintiffs and consequently, it cannot be said that they are being denied their correlative right
to dissociate themselves from the union. If even the payment of the contribution was by compulsion it is
not a payment that on the face of it confers membership of the union and so infringes the right to
dissociate. The presumption of constitutionality is not rebutted.

I understand Mr. Glinton's submission with respect to the alleged infringement by the impugned law of
Article 26 the Article of the Constitution that affords protection against discrimination - to be that it selects
the plaintiffs for discrimination on the ground of their political opinion, namely, their objection to
association with the union, and subjects them to disabilities and restrictions to which persons who do not
share their political opinions are not subjected. I do not consider that the bare statements of the plaintiffs
that they are not and were not at the commencement of their employment members of the union constitute
a political opinion and that is the only evidence before me. In any event, the impugned law, to my mind, is
not in any way concerned with political opinion or with any of the other grounds mentioned in Article
26(3). Its concern is to provide a means whereby expenses incurred by the bargaining agent on behalf of
all the employees in the bargaining unit may be recovered. In so far as there is discrimination, it would
seem to be directed against the employees who are union members as their contribution is 10% higher than
the contribution of employees who are not union members. Further, the impugned law subjects no one to
any particular treatment. If there is discrimination it is at the election of those discriminated against.

I agree with Mr. Tynes that “by no stretch of the imagination” can section 43A infringe this Article.

Having reached this point, I think it can properly be said that without construing the relevant Articles of
the Constitution in any narrow and pedantic sense and without stretching or perverting their language in a
manner inconsistent with their plain and unambiguous meaning, it has been found that section 43A does
not on a true understanding of its provisions infringe the Constitution in the circumstances of this case.
Is the agency fee of clause 31 of the agreement a contribution within the provisions of section 43A? That is
the question posed by the first of the two alternative questions of the originating summons. Mr. Tynes
submits that the question is limited to identifying the one with the other. I disagree. The question speaks
for itself.

Clause 31 is as follows:

“31. Union Dues and Agency Fees:1. Each employer hereby agrees to implement the provisions of
Agency Shop which is contained in Section 43A of The Industrial Relations Act, 1970 as amended.2.
The Agency Fee payable by non-members of the Union shall be equivalent to Ninety Percentum (90%)
of the amount paid by union members as union dues.3. All new employees within the Bargaining Unit
shall be required to pay Agency Fees on the receipt of their first pay after employment.4. The Agency
Fee shall be payable at the same frequency at which union dues are payable and shall be based on the
wages or salaries actually received by such employee.5. The Agency Shop provision as contained in
Section 43A of The Industrial Relations Act, 1970 as amended shall be implemented by each Employer
on the first pay day after the execution of this Agreement provided that the union has satisfied all the
requirements of the said Section 43A of The Industrial Relations Act as amended”.
I think it plain from the language of clause 31, that agency fee of the clause is but another name for the
contribution of section 43A. Like section 43A, the language of clause 31 is commanding but, unlike the
section, it carries its mandate beyond the point at which the section stops. The provision that so is sub-
clause (5), which orders the implementation of provisions of section 43A by the employer in relation to
persons already in his employment, on the first pay day after the execution of the agreement, provided the
union has satisfied the requirements of the section. In other words, the employer having learned that 60%
or more of the employees favour the deduction, he must collect the deduction and pay it over to the union
the first pay day after execution of the agreement. The question is, does that provision dispense with the
consent of the employee? It might, I think, do so. On registration the agreement by virtue of section 47
becomes binding in honour on an employee. And by continuing in his employment it can be inferred that
an employee who is not a member of the union has accepted the deduction as a term of his contract of
employment. It, however, seems to me to be stretching it far to hold that an employee's acceptance can be
inferred on the first pay day after the execution of the agreement. He may not even have had time to give
appropriate notice. I venture to think that a provision, which allows to an employee reasonable time in
which to indicate that he is giving up his job, would be more appropriate than the present clause 31(5). I do
not, however, consider it necessary to rule on the point as I think it apparent from the length of time the
three plaintiffs have been accepting their wages, less the deduction, before the commencement of these
proceedings, that it is only reasonable to infer that they have accepted the deduction. In the case of the first
plaintiff, more than four weeks have passed from the time the deduction began to the commencement of
these proceedings. That is more time than she needed to inform her employer that she would be leaving his
employment. In the case of the other plaintiffs, the time is measured in years. In their affidavits the
plaintiffs admittedly claim that the deduction has not been with their consent, but as I understand their
affidavits, their claim not to have consented, is one in law that is based on the legal submissions made on
their behalf as to the constitutionality of section 43A and the vires of clause 31. I have found that section
43A is not unconstitutional. As regards clause 31(5), if even it is ultra vires section 43A, the fact that it is,
is no longer of relevance to the plaintiffs as their consent is to be inferred for the reason stated.

Two other features in the relationship of clause 31 to section 43A must be noted. The first is that section
43A requires that the industrial agreement shall contain provisions:

“specifying the amount payable as contribution by an employee…..”

It seems to me that by “specifying”, Parliament intended that the amount payable

by the employee should be expressed in $ and cents in the industrial agreement
and not in the same percentage terms in which the contribution is expressed in
section 43A. I do not, however, consider that because clause 31 of the agreement
 does not specify the contribution in $ and cents that it is ultra vires the section.
The second feature concerns the person or persons by whom the contribution shall
be paid. It is clear that clause 31 of the agreement only requires collection of the
agency fee from an employee who is not a member of the union. Is that also true
of the section? Some what ambivalently, Mr. Tynes submits that it is, although he
concedes that section 43A can also be construed as meaning that the contribution
is to be paid both by employees who are members of the union and by employees
who are not members of the union. In my view, the position is this. By waiver of
its members' dues, the union can in fact create a situation in which it treats the
contribution collected from its members' wages as their dues so that the member
does not pay both dues and the contribution. As the union can do so, it seems to
me that as a short-cut to doing so, the agreement need not provide for payment of
the contribution by the employee who is a union member. Because, in my view,
section 43A provides for payment of the contribution by both union and non-
union employees, the fact that clause 31 provides only for payment by the non-
union employee would not make it ultra vires the section as it would be operating
within the terms of the section. I construe section 43A as follows.
A bargaining unit may comprise both union and non-union employees, as by definition neither the term
“bargaining unit”, nor the word “employee”, is limited to either union or non-union employees. Nor is
section 43A so limited. By paragraph (a) of the section, payment of the contribution is to be:

“by every employees in the employment of the employer with whom the
agreement is made, and on whose behalf the agreement is made, comprised in the
bargaining unit …..”
Accordingly, it is clear from the words underlined by me for emphasis, that the contribution is payable by
both union and non-union employees. That interpretation is made the plainer by the language of paragraph
(b) of section 43A which quantifies the contribution as it states that the:

“amount shall……..in the case of an employee who is a member of the union ….

be equivalent to the dues payable from time to time by such member in respect of
his membership, and in the case of an employee who is not such a her ninety
percent of such dues …”
Mr. Tynes submitted that the words “equivalent to” meant that the contribution of the employee who is a
member of the union is the amount paid by him as dues in respect of his membership of the union. That
interpretation overlooks the fact that the subject word “amount”, in the passage cited, is by description:
“the amount payable as contribution”

Hence the amount to be quantified is a contribution that is not the dues. The words “equivalent to”,
quantify that contribution by providing that it shall be an amount which, in the case of the employee who is
a union member, shall be equal to the dues payable by him, and in the case of the employee who is not a
member of the union shall be ninety percent of the contribution paid by an employee who is a member of
the union. In the result, the summons is dismissed.