International General Enterprises Limited v The Attorney General et al

'·.''" . THE EASTERN CARIBBEAN SUPREME COURT ANTIGUA AND BARBUDA IN THE HIGH COURT OF JUSTICE CLAIM NO ANUHCV 2014/0053 In the matter of an Application by International General Enterprises limited for an Order for Certiorari and other relief -and· In the Matter of a Decision of the Acting Labour Commissioner .. dated the 30th day of October 2013 · -and· In the matter of Sections J3, J4 and J12 of the Antigua and Barbuda Labour Code Cap. 27 of the Laws of Antigua and Barbuda BETWEEN: INTERNATIONAL GENERAL ENTERPRISES LIMITED Claimant AND THE ATTORNEY GENERAL . , THE LABOUR COMMISSIONER Defendants Appearances: Arthur Thomas, Loy Weste ?nd Lisa Weste of Thomas, John & Associates for the Claimant RoseAnn Kim and Carla Brooks Harris of the Attorney General's Chambers for the Defendants 2016: April 8

[1]JUDGMENT HENRY, J.: International General Enterprises Limited (International General) challenges the . certification issued by the Labour Commis$ioner on the 30th October 2013 wherein she certified the Antigua and Barbuda Free Trade Union ;(the Union) as the sole bargaining agent of the Line Staff ,• ' 'r', · Employees of International General. International General contends that the Union was not selected by a majority of the employees in the unit as required by the· Labour Code and therefore ought not to have been so certified. For the reasons set out below the court agrees and finds in ... favour of International General.

[2]The facts leading to certification are not iri dispute. Briefly, there was an. agreed list of 60 persons who comprised the bargafning unit. A secret ballot was held on the 22nd October 2013 .. The result of the poll showed that of the 60 employees only 23 participated. Twenty-bne (21) votes were cast in favour of the Union and two (2) against. By letter dated 23rd October 2013, International General . sought a certificate from the Labour Commissioner that no trade union had received a majority of the valid votes cast by the employees in the bargaining unit and therefore no union is entitled to be their sole bargaining agent. ·However, the Labour Commissioner iss_ued a certificate dated 30th . October 20t3 wherein it wa~ ce·rtified th~lin accordance with sections J4 and J12 of the Antigua and Barbuda labour Code (the Labour Code) the Union, having been elected by the majority of the Line Staff Employees is the sole bargaining Agent. ,. ·,. • . • l • ,·· "

[3]By Fixed Date Claim filed on 27th February 2014, the claimant seeks the following orders: ' (1) An order for certiorari t6 remove into this Honourable Court and quash the decision of the second·defendarit as contained in the Certificate issued on the 30th October 2013 that the Antigua and Barbuda Free Trade Union is the sole bargaining agent of the Line Staff Employees of the Applicant. (2) An order of Prohibition preventing the second defendant from recognizing the Antigua and . Barbuda Free Trade Union as the Certified Sole Bargaining agent of the Line Staff Employees of International General Enterprises Limited until the determination of these proceedings; (3) A DeGJaration that.the decision to·certify the Antigua and, Barbuda free Trade Union as the Certified Sole Bargaining agenLof the line Staff Employees of International General . Enterprises Limited:is: wrong and ultra vires the Antigua Labour Code, and that the current finding. ought to :have been thaMhere was no clear winner according to the Antigua and Barbuda Labour Code; ' (4) An Order for Mandamus to oblige the Second Respondent to reconsider her decision and certify that no trad.e union has. received the majority of the valid votes cast by the Employees in the involved bargaining unit and that therefore no union is entitled to be their sole bargaining agent, pursuant to section J12(iii) of the Antigua Labour Code; (5) Further or other relief as this Court deems fit; and (6) Costs.

Claimant's Submissions

[4]International General submits that the decision of the Labour Commissioner to certify the Union as the sole bargaining agent is ultra vires the provisions of sections J3, J4 and J12 of the Labour . .. .. .··' .', ., .. . :·' Code. International General contends that.the definition of the word "majority" in section J12 must be interpreted in the context of sections J3 and J4; that.those section~ taken together mean that the Union can only be ce~ified as sole bargaining agent if it is selected by a majority of the. employees in a unit; that the Union did not obtain such a majority vote of the employees in the unit; that the . Union only ·received 21 votes out of 60 employees; and therefore the Labour Commissioner was not entitled to declare the Union as the winner of the secret ballot. Her decision was therefore ultra.vires.

[5]Further, International General submits that it was unreasonable and an abuse of discretion for the Labour Commissioner to certify the Union as the sole bargaining agent. Its position is that the reasons set out in the Labour Commissioner's letter dated 20th November 2013 as the reasons for certifying the Union illustrate that the Labour Commissioner was unreasonable and abused her discretion in issuing the said Certificate.· The Labour Commissioner; claimant contends, ignored the provisions of J4 and J3 which clearly define how a trade union can be certified as a sole bargaining agent. Accordi~gly, lnternation~I General submits it is entitled to have the decision of the LabourC6mmissionerqu'ashed. · ·, , · · 1'

[6]·international General refers)he court to several cases, including, The Sussex Peerage Case1; Savarin v John Williams2; Jalousie (1996) Ltd v Labour Comniissioner3 and Liberty Club Ltd . . v The Attorm~y General et .al4 Defendants Submissions . .

[7]The defendants submit that notwithstanding that section J 12 refers back to section J4, section J 12 which addresses certification by the Labour Commission is the section which provides guidance to the Labour Commissioner on the criteria necessary for the issuance of the Certificate and not section J4. The defendants . contend that the drafter's intention is clear and unambiguous. Notwithstanding the reference to a majority in the unit as set out in section J4, it is clear that a Certificate Q~n ;0nly be is~ued based . on . the employees who have cast valid ballots. The defendants.·r~ject the clai~ant's positiorj:~;:it the sole bargaining agent must be determined by a majority vote' o(all employ.~~~ In the uni( The defendants submit that; section J12 (a}, (b} and (c} provides that .the Labour Commissioner having assessed the votes casts will certify, decertify or refuse to certify a trade unjon as the sole bargaining .agent and these steps must be taken in . l,·.· accordance with the results of the poll depending on the majority of the employees.who have cast · valid ballots; -:Further, the defendants refer to the national policy set out in section J2 and submit that it is clear that the majority decision of a group of employees participating in a poll will be accepted as the decision of the entire group. ,3 ··~. . ,:··

[8]The defend~n~s also refer.t9-the above mentioned cases. Analysis aiid:O.iscussio~ '.·c ,.

[9]Division J of the Labour Code deals with resolution of E1fnployee representation questions. The national policy is set out in s~Ction J2. It provides: . J2.(1) The following jsthe national policy underlying this Division: . . (a) whereas the failure to resolve questions as to the existence, and the extent, of the desire of employees for bargaining representation is a cause of concern, unrest, and industrial strife; (b) whereas, in the interests of equalizing the bargaining power of employer and employees,,· ;:i fundamental principle of industrial life_ is that the choice of a majority of a . · · group of employees should be the sole bargaining representative of the entire group; and ' ·: . ' :. ~ ,, .;' (c) whereas;it is equally important that, if there is no majority choice, no trade union ... , :_.should be ~tl~sole bargaining representative of the entire grqup. " , ...... . ·:· (2) It now becomes· necessarY to create a machinery whereunder questions concerning representation can t>ecresolved, machinery under whicfi~ ... . (a) a unit of employees appropriate for collective bargaining purposes can be fixed; (b) there sh~lf .be a secret ballot in which the uncoerced desires of the employees in an appropriate bargaining unit can be ascertained; and, (iii) in the interests of industrial stability, the choice of said employees thus demonstrated shall be effective for a reasonable period thereafter; but, (iv) after a reasonable period has passed, there shall be the opportunity for said employees,t9 ~xpress themselves anew in a secret ballot. ;·· . ·.,·,. . . . '· r (3)·The choice oith~majority o(~n appropriate unit of employees, having the obligation to repre~ent ~II emplo~eEfS ·in said unit'for bargaining purposes, may receive remuneration for its · .... : ... : . .'.\;. . . . . . . l~:: ;'.,. . ; .·: . \! . . ·; services. ·. · :·· · · · · [10) In interpreting ·the variou~t. sections in Division J, it must be assumed that the intent of the draftsman wa~:to reflect th~'·national policy in the vari~us provisions, and certainly in seeking to .. resolve any apparent conflict between the sections, consideration must be given not only to specific sections but to the Qivision as a whole, including the national policy.

[11]Section J (2) declares it the intention of the section to create a machinery under which questions concerning representation can be resolved; a machinery under which a unit of employees appropriate for collective bargaining purposes can be fixed. The section further provides that there should be a secret ballot in which the uncoerced desires. of the employees in an appropriate bargaining unit can be asc~~.ained. Section 2 (1) (b) establishes the fundamental principle that the · choice of a m,ajority of a group of employ~es should be the sole bargaining representative of the entire group: Thewords ;1participating in a poll" are not found in the section and ought not to be imported into the section·. The plain meaning of the stated words is that the sole bargaining representative of the group" .is the choice .made by the majority of the employees of the entire group. If there is no majority choice, no trade union should be the sole bargaining representative of the entire group.

[12]Frequently modern statutes contain a set of prov1s1ons labelled "Interpretation". When an interpretation section states that a word or phrase "means ... ", any other meaning is usually excludeds. The main purpose for having a word or phrase defined in a statute is to have consistency so that the word or phrase will have the same meaning whenever it is used in the legislation. Division J contains its own interpretation section. It is found in section J3. ·

[13]Section J3, provides that 's9le bargaining. agent' means the representative of a bargaining unit of employees asdescribed in s13otion J4.

[14]Section J4 ~rovides as follo~s: "J4. Despite the general . rule laid down in section K3 that an employee may be represented for bargaining purposes by an agent bl his own choice or by no such agent, a registered trade union designated or selected for such purposes by a majority of the employees in a unit appropriate for collective bargaining purposes shall be the sole representative of all the employees in employment in said unit for the purposes of collective bargaining purposes in respect of the working conditions therein."

[15]In section J4 the word "majority" is qualified by the words "of employees in a unit appropriate for collective bargaining purposes". As noted by Byron J.A. (as he then was) in the Liberty Club case, those words cannot be said to show an intention to allow the certification of a union representing no more than a majority of those members actually voting6. The court is required to ensure that in its interpretation of statutes, effect is given to the intention of Parliament. Here, the · i~tention is clearly and un~mbiguously expressed. To qualify as the sole bargaining agent, a registered· trad~ .union mu sf be. designated or selected by a· majority• pf the employees in a unit appropriate for the collective bargaining purposes. This is consistent with the meaning expressed in the national policy.

[16]There is no ·issue between -the parties thatthe bargaining unit in this matter comprised an agreed list of 60 persons. The result of the secret ballot is also not in contention. The Tally of Votes issued by the Labour Commissioner sets out the following: No. of eligible voters at time of election No. of votes cast No. voted Antigua and Barb'~dafree Trade<Union . No. voted "N9 Union" .·· .. ·· ·. . .·. '· .

[17]In support of i,ts position,,,tb~· defendants refer to section J12 as the section which addresses . '·.1. ' certification by.the Labour. Commissioner and which they say provide: guidance on the criteria for issuance of the certificate .... ·

[18]Section J12 provides: "After all objections or challenges are disposed of, the Labour Commissioner shall issue a ·certificate in accordance with the latest revised Tally of Votes; depending upon the votes of a majority of the employees who have cast valid ballots, which for the purposes of this Act shall, constitute a "majority" as used in section J4, he shall, as the case may be, either .· .• (a) Certify ~'.-~egistered tr.ade union as the sole bargaining agent of the employees · .' .,>in the invqlwe,d bargaining: unit; .. . ·, .. ··('•' ,. :::. l: ";_ · (b) Dece~ify a trade unlon·currently recognized as sole bargaining agent; or · (c) Certify J~af no trade union has receiv~d a majority of the valid votes cast by the · ,.. employees·in. the involved bargaining unit and that therefore no union is entitled to be their sole bargaining agent."

[19]Before examining the provisions of section J 12, it is important to note that section J 11 sets out the detailed procedures for conducting the secret ballot. Section J11 (9) provides for the filing of objections to the conduct of the secret ballot within 5 days of the issuance of the Tally of Votes.· If the Labour Commissioner is of the opinion that the objections raise relevant issues, the objections are referred to a Hearing Officer.

[20]When the hearing of the objections have been concluded, and after the procedure set out for determining .th~ validity of th'e ballots has·:~een followed; the Hearing Officer issues his decision on the validity •· 'ot the chafleMged ballots:: "The Hearing Officer recommends to the Labour Commissio~erwhich oft_h~,~~,allenged b~l!ots, if any, sh()uld be counted and added to the Tally of . .. , . . ... . .... ·. .. . , I Vqtes and .·which should Jemain uncounled. Thereafter, the Labour· Commissioner conducts a recount, including any challenged ballots declared by )he Hearing Officer to be valid, and thereupon the.labour Comrrli~sioner issues a revised Tally of Votes. . .. ··, ' .. . '

[21]It is in this context that jri provides that after all objections or challenges are disposed of, the Labour Comrriisioner shall issue a certificate in accordance with the latest revised Tally of Votes. The section provides that the valid ballots cast (as opposed to those ballots which remain invalid after the hearings are concluded) •. are the votes to be counted in arriving at a decision as to whether the Union has received a "majority" as used in J4. In this matter there is no allegation of any objections or challenges made after the secret ballot was conducted. In any event, J12 does not propose a new and different standard for qualification as sole bargaining agent. By referring to J4, the section re-affirms thqtthe definitidn of sole bargaining agent as described in J4. Only the Valid ballots cast shall be cohsidered (counted) in determining whether the Union has received a majority of th~ votes of th~'employees in the unit To hold otherwise Would not be in harmony with the mean ill~ bf the other sections in the Division or with the expressed national policy.

[22]The defendants refer to two other sections: section J6 and section 1:1(4). These sections do not alter the definition in section J4. Section J6 provides the requirements for initiation of proceedings. It does not purport to address certification. Section 11 (4) addresses the content of the Notice of Elections required to be posted at or near the work place. It refers to the majority of the valid votes cast. This section cannot be read in isolation, but must be interpreted in light of the other provisions of the Division . .

[23]The court is of the view that Section J 12 when read. in conjunction with sections J3 and J4 require the Labour Commissioner to certify a registered Union as the sole bargaining agent of the unit only where that Union has been selected by the majority of the employees in the unit. The Union did not receive a majority of the v~l.id votes in the unit and therefore ought not to have been certified as the sole bargaining· agent for the unit. . . i .

[24]Accordingly, judgment is grarlted in favour of the claimant as follows: ., 1. An· Order of certiorari r~moving into this Honourable 'Court and quashing the decision of the second defendant as contained in the certificate issued on the 30th October 2013 that the Antigua and Barbuda.free Trade Union is the sole bargaining agent of the Line Staff Employees of the Applicant. 2. A Declaration that the decision to certify the Antigua and Barbuda Free Trade Union as the certified Sole Bargaining Agent of the Line Staff Employees of the claimant is wrong and ultra vires the Antigua and Barbuda Labour Code. 3. An Order of Mandamus requiring the second defendant to reconsider her decision and certify that no trade union has received the majority of the valid votes cast by the employees in the unit and therefore no union is entitledJo be their sole bargaining agent. 4. Cost to the claimant in the sum $5,000.00. I '' .. · • . ',_/'" Antigua & Barbuda

THE EASTERN CARIBBEAN SUPREME COURT ANTIGUA AND BARBUDA IN THE HIGH COURT OF JUSTICE CLAIM NO ANUHCV 2014/0053 In the matter of an Application by International General Enterprises limited for an Order for Certiorari and other relief -and· In the Matter of Decision of the Acting Labour Commissioner dated the 30th day of October 2013 -and· In the matter of Sections J3, J4 and J12 of the Antigua and Barbuda Labour Code Cap. 27 of the Laws of Antigua and Barbuda BETWEEN: INTERNATIONAL GENERAL ENTERPRISES LIMITED Claimant AND THE ATTORNEY GENERAL THE LABOUR COMMISSIONER Defendants Appearances: Arthur Thomas, Loy Weste ?nd Lisa Weste of Thomas, John & Associates for the Claimant RoseAnn Kim and Carla Brooks Harris of the Attorney General’s Chambers for the Defendants 2016: April 8 JUDGMENT

[1]HENRY, J.: International General Enterprises Limited (International General) challenges the certification issued by the Labour Commis ioner on the 30th October 2013 wherein she certified the Antigua and Barbuda Free Trade Union ;(the Union) as the sole bargaining agent of the Line Staff Employees of International General. International General contends that the Union was not selected by a majority of the employees in the unit as required by the,Labour Code and therefore ought not to have been so certified. For the reasons set out below the court agrees and finds in … favour of International General.

[2]The facts leading to certification are not in dispute. Briefly, there was an.agreed list of 60 persons who comprised the bargaining unit. A secret ballot was held on the 22nd October 2013 The result of the poll showed that of the 60 employees only 23 participated. Twenty-one (21) votes were cast in favour of the Union and two (2) against. By letter dated 23rd October 2013, International General sought a certificate from the Labour Commissioner that no trade union had received a majority of the valid votes cast by the employees in the bargaining unit and therefore no union is entitled to be their sole bargaining agent. ·However, the Labour Commissioner iss.ued a certificate dated 30th October 201’3 wherein it wa~ certified thatin accordance with sections J4 and J12 of the Antigua and Barbudalabour Code (the Labour Code) the Union, having been elected by the majority of the Line Staff Employees is the sole bargaining Agent.

[3]By Fixed Date Claim filed on 27th February 2014, the claimant seeks the following orders: (1) An order for certiorari to remove into this Honourable Court and quash the decision of the second defendant as contained in the Certificate issued on the 30th October 2013 that the Antigua and Barbuda Free Trade Union is the sole bargaining agent of the Line Staff Employees of the Applicant. (2) An order of Prohibition preventing the second defendant from recognizing the Antigua and Barbuda Free Trade Union as the Certified Sole Bargaining agent of the Line Staff Employees of International General Enterprises Limited until the determination of these proceedings; (3) A Declaration tha.tthe decision to certify the Antigua and, Barbuda free Trade Union as the Certified Sole Bargaining agenLof the line Staff Employees of International General Enterprises Limited is wrong and ultra vires the Antigua Labour Code, and that the current finding. ought to :have been thaMhere was no clear winner according to the Antigua and Barbuda Labour Code; (4) An Order for Mandamus to oblige the Second Re’spondent to reconsider her decision and certify that no trad union has. received the majority of the valid votes cast by the Employees in the.involved bargaining unit and that therefore no union is entitled to be their sole bargaining agent, pursuant to section J12(iii) of the Antigua Labour Code; (5) Further or other relief as this Court deems fit; and (6) Costs. Claimant’s Submissions

[4]International General submits that the decision of the Labour Commissioner to certify the Union as the sole bargaining agent is ultra vires the provisions of sections J3, J4 and J12 of the Labour : ; , ,, · Code. International General contends that.the definition of the word “majority” in section J12 must be interpreted in the context of sections j3 and J4; tha· t those sections taken together mean that the Union can only be ce ified as sole bargaining agent if it is selected by a majority of the employees in a unit; that the Union did not obtain such a majority vote of the employees in the unit; that the .Union only received 21 votes out of 60 employees; and therefore the Labour Commissioner was not entitled to declare the Union as the winner of the secret ballot. Her decision was therefore ultra vires.

[5]Further, International General submits that it was unreasonable and an abuse of discretion for the Labour Commissioner to certify the Union as the sole bargaining agent. Its position is that the reasons set out in the Labour Commissioner’s letter dated 20th November 2013 as the reasons for certifying the Union illustrate that the Labour Commissioner was unreasonable and abused her discretion in issuing the said Certificate.· The Labour Commissioner; claimant contends, ignored the provisions of J4 and J3 which clearly define how a trade union can be certified as a sole bargaining agent. Accordingly, International General submits it is entitled to have the decision of the Labour Commissioner tju shed. . . ::

[6]·international General refersJhe court to several cases, including, The Sussex Peerage Case ; Savarin v John Williams ; Jalousie (1996) Ltd v Labour Commissioner and Liberty Club Ltd v Th e Attorne y General et.al Defendants Submissions ··•

[7]The defendants submit that notwithstanding that section J12 refers back to section J4, section J12 which addresses certification by the Labour Commission is the section which provides guidance to the Labour Commissioner on the criteria necessary for the issuance of the Certificate and not section J4. The defendants contend that the drafter’s intention is clear and unambiguous. Notwithstanding the reference to a majority in the unit as set out in section J4, it is clear that a Certificate only be issued based on the employees who have cast valid ballots. The defendan·tsr ject the clai ant’s positior;rthat the sole bargaining agent must be determined by a majority vote' clall employe s In the unit/ t he defendants submit tha;t section J12 (a}, (b} and (c} provides that .the Labour Co rnissioner having assessed the votes casts will certify, decertify or refuse to certify a trade unipn as the sole bargaining .agent and these steps must be taken in – . accordance with the results of the poll depending on the majority of the employees who have cast valid ballots; -:Further, the defendants refer to the national policy set out in section J2 and submit that it is clear that the majority decision of a group of employees participating in a poll will be accepted as the decision of the entire group. (1844) 11 Cl & FN 85 (1995) 51 WIR 75 Claim No SLUHCV2004/0498, Edwards J . Grenada Civil Appeal !NP 8 of 1995, J6dgment delivered January 29, 2006 . ,3 . ” I .•,, .•

[8]The defendan!s also refer i the above entioned cases. :· .• “> \. i :.:·.··._.·’ Analysis andDiscussio·n·’• .

[9]· Division J of the Labour Code deals with resolution of employee representation questions. The national policy is set out ins dion J2. It provides: J2.(1) The following is.the national policy underlying this Division: (a) whereas the failure to resolve questions as to the existence, and the extent, of the desire of employees for bargaining representation is a cause of concern, unrest, and industrial strife; . -: (2) I·t (b) whereas, in the interests of equalizing the bargaining power of employer and employees,,· a fundamental principle of industrial life_is that the choice of a majority of a group of employees should befhe sole bargaining representative of the entire group; and (c) where_as it is equally imp_ortant that, if there is no majority choice, no trade union :_.should be the sole bargaining representative of the entire grqup. ‘ now becomes· necessarY to create a machinery whereunder questions concerning representation can oefresolved, machinery under whicn: (a) a unitof employees appropriate for collective bargaining purposes can be fixed; ,·. (b) there shalf .be a secret ballot in which the uncoerced desires of the employees in an appropriate bargaining unit can be ascertained; and, (iii) in the interests of industrial stability, the choice of said employees thus demonstrated shall be effective for a reasonable period thereafter; but, (iv) after a reasonable period has passed, there shall be the opportunity for said employees..t..ci E:ixpress themselves anew in a secret ballot. (3) ·T he choice of fh majority of an appropriate unit of employees, having the obligation to repre ent all employ,e’es ·in said unit for bargaining purposes, m_ay receive remuneration for its services. . . ” . ‘i

[11]Section J (2) declares it the intention of the section to create a machinery under which questions concerning representation can be resolved; a machinery under which a unit of employees appropriate for collective bargaining purposes can be fixed. The section further provides that there should be a secret ballot in which the uncoerced desires. of the employees in an appropriate i . bargaining u Jf can be asc_e ained. Section 2 (1) (b) establishes the fundamental principle that the choice of a m_ajority of a group of employees should be the sole bargaining representative of the ntire grou :jJ,ewords 1’_participating ina poll" are not found in the $ection and ought not to be imported into the section·. The plain meaning of the stated words is that the sole bargaining representative of the grouR, Js the choice .made by the majority of the employees of the entire group. If there is no majority choice, no trade union should be the sole bargaining representative of the entire group.

[12]Frequently modern statutes contain a set of provisions labelled "Interpretation". When an interpretation section states that a word or phrase "means any other meaning is usually excluded5. The main purpose for having a word or phrase defined in a statute is t6 have consistency so that the word or phrase will have the same meaning whenever it is used in the legislation. Division J contains its own interpretation section. It is found in section J3.

[13]Section J3, pmvides that 's9le bargaining. agent' means the representative of a bargaining unit of employees as described.in s ction J4.

[14].· Section J4 pmvldes as follows: ,• "J4. Despite the general rule laid down in section K3 that an employee may be represented for bargaining purposes by an agent ol his own choice or by no such agent, a registered trade union designated or selected for such purposes by a majority of the employees in a unit appropriate for collective bargaining purposes shall be the sole representative of all the employees in employment in said unit for the purposes of collective bargaining purposes in respect of the working conditions therein."

[15]In section J4 the word "majority" is qualified by the words "of employees in a unit appropriate for coliective bargaining purposes". As noted by Byron J.A. (as he then was) in the Liberty Club case, those words cannot be said to show an intention to allow the certification of a union representing no more than a majority of those members actually voting6. The court is required to ensure that in its interpretation of statutes, effect is given to the intention of Parliament. Here, the · intention is clearly and un mbiguously expressed. To qualify as the sole bargaining agent, a registered· trade .union mus{ b,e desigmit d or selected by a· majority• pf the employees in a unit appropria-tefor the collective bargaining purposes. This is consistent with the meaning expressed . . ‘ . . in the national policy.

[16]There is no ·issue between·the parties thatthe bargaining unit in this matter comprised an agreed list of 60 persons. The result of the secret ballot is also not in contention. The Tally of Votes issued by the Labour Commissioner sets out the following: No. of eligible voters at timeof election 60 5 Cross, Statutory Interpretation Third Edition Chap. 5 page 119 6 At page 72 No. of votes cast 23 No. voted Antigua and Barbuda Free TradeUnion 21 No. voted “No Union" 2

[17]In support of its position,. the defendants refer to section J12 as the section which addresses certification by the Labour. Commissioner and which they say provide: guidance on the criteria for issuance of the certificate

[18]Section J12 provides: "After all objections or challenges are disposed of, the Labour Commissioner shall issue a ·certificate in accordance with the latest revised Tally of Votes; depending upon the votes of a majority of the employees who have cast valid ballots, which for the purposes of this Act shall, constitute a "majority" as used in section J4, he shall, , as the case may be, either .. (a) Certify aregistered tr.ade union as the sole bargaining agent of the employees .,>in the involv d bargaining: unit; (b) Decertify a trade union currently recognized as sole bargaining agent; or (c) Certify Jhat no trade union has received a majority of the valid votes cast by the · . employees in. the involved bargaining unit and that the.refore no union is entitled to be their sole bargaining agent."

[19]Before examining the provisions of section J12, it is important to note that section J11 sets out the detailed procedures for conducting the secret ballot. Section J11 (9) provides for the filing of objections to the conduct of the secret ballot within 5 days of the issuance of the Tally of Votes.· If the Labour Commissioner is of the opinion that the objections raise relevant issues, the objections are referred to a Hearing Officer.

[20]When the hearing of the objections have been concluded, and after the procedure set out for determining .the validity of the ballots has been followed; the Hearing Officer issues his decision on the validity of the challenged ballots:: "The Hearing Officer recommends to the Labour Commissioner·which of therch.allenged b9IIots,if any, should be counte and added to the Tally of Votes and .·which should :remain uncoun’ted. Thereafter, the Labour· Commissioner conducts a recount, including any c alh:mged ballots declared by Jhe Hearing Officer to be valid, and thereupon thelabour Comrnissioner issues a revised Tally of Votes.

[21]It is in this context that J12 provides that after all objections or challenges are disposed of, the Labour Commisioner shall issue a certificate in accordance with the latest revised Tally of Votes. The section provides that the valid ballots cast (as opposed to those ballots which remain invalid after the hearings are concluded) are the votes to be counted in arriving at a decision as to whether the Union has received a "majority" as used in J4. In this matter there is no allegation of any objections or challenges made after the secret ballot was conducted. In any event, J12 does not propose a new and diff rent standard for qualification as sole bargaining agent. By referring to J4, the section·re-affirms thqtthe definition of sole bargaining agent as described in J4. Only the Valid ballots cast shall be:’ti0hs1dered ( oy.nted) in determining whether the Union has received a majority of the votes of th ’employees in]he unit To hold otherwise Would not be in harmony with the meaning of the other sections in theDivision or with the expressed national policy.

[22]The defendants refer to tw69ther sections: section J6 and section 1)(4). These sections do not alter the definition in section J4. Section J6 provides the requirements for initiation of proceedings. It does not purport to address certification. Section 11 (4) addresses the content of the Notice of Elections required to be posted at or near the work place. It refers to the majority of the valid votes cast. This section cannot be read in isolation, but must be interpreted in light of the other provisions of the Division

[23]The court is of the view that Section J12 when read,in conjunction with sections J3 and J4 require the Labour Commissioner to certify a registered Union as the sole bargaining agent of the unit only where that Union has been s.elected by the majority of the employees in the unit. The Union did not receive a majority of the va.lidvotes in the’Lmit and therefore ought not to have been certified as the ole bargainin agent for th:eunit. . ‘ ,. ‘

[24]Accordingly;judgment is granted in favoJr:of the claimant as follows:

[10]In interpreting . the variou ,sections in Division J, it must be assumed that the intent of the • •. · , ; ·,: _,; I draftsman was, to reflect the national policy in the various provisions, and certainly in seeking to resolve any apparent conflict between the sections, consideration must be given not only to specific sections but to the Qivision as a whole, including the national policy.

1.An·Order.of certiorarir moving into this Honourable· c ourt and quashing the decision of the second defendant as contained in the certificate issued on the ·30th October 2013 that the Antigua and Barbuda Free Trade Union is the sole bargaining agent of the Line Staff Employees of the Applicant.

2.A Declaration that the decision to certify the Antigua and Barbuda Free Trade Union as the certified Sole Bargaining Agent of the Line Staff Employees of the claimant is wrong and ultra vires the Antigua and Barbuda Labour Code.

3.An Order of Mandamus requiring the second defendant to reconsider her decision and certify that no trade union has received th-e majority of the valid votes cast by the employees in the unit and therefore no union is entitledto be their sole bargaining agent.

4.Cost to the claimant in the sum $5,000.00. CLARE HENRY High Court Judge < p align=”right”> Antigua & Barbuda