Prison officers claimed there was a “narrow-mindedness and short-sightedness” in the Government last night after they won a Supreme Court battle against changes that required them to make health insurance payments.
They added that the legal action, which came after labour negotiations dating back to 2016, could have been avoided if more had been done to tackle problems at Westgate prison for both staff and inmates.
Chief Justice Narinder Hargun ruled yesterday that a Labour Dispute Tribunal acted beyond its powers last August when it said that prison officers would have to start to pay the employee portion of the Government Employee Health Insurance contributions.
Timothy Seon, the chairman of the POA, and Thad Hollis, its lead negotiator, were among a group of office-holders who issued a statement from the association.
It said: “At great expense to the Bermuda taxpayer, this three-year battle has been fuelled by a labour government who say that they put the people of Bermuda first.
“The Government of Bermuda fought vehemently to remove contractual benefits of government employees.
“A determined battle due to the narrow-mindedness and short-sightedness of this present government administration to achieve an unfair outcome by any means necessary.”
The POA statement added: “Had the Government of Bermuda put as much effort into remedying the adverse work and housing conditions of our officers and incarcerated population, as suggested by the POA through the negotiations process, then this court process would not have been necessary.
“The apathy and lack of action for years by senior management and Cabinet exasperated the existing malaise, and low morale, and confirmed the lack of confidence in the ability of senior management and the Cabinet to act expeditiously, fairly, and in ensuring a safe and healthy environment.”
The POA claimed that the Chief Justice’s decision supported its position that members were “exempt from making GEHI contributions, per the contracts, which have been in existence for the last 50 years”.
Mr Justice Hargun’s judgment showed that the tribunal also ordered Bermuda Prison Officers Association members to accept pay increases offered by the Government of 2.5 per cent for the 2017-18 financial year and 2 per cent the next year.
But the Supreme Court made an order yesterday to quash the orders and pay awards made by the tribunal. Mr Justice Hargun noted in his judgment that the POA and the Government had been in negotiations since October 2016 over changes in terms and conditions, particularly related to pay.
The matter of whether officers should contribute to the GEHI scheme was also part of the talks but marked “reserved” to show “it was to be subject to further discussion”.
Mr Justice Hargun said that from May 2019, prison officers decided that they would work to contract and refused offers of voluntary overtime.
He added that this “did not amount to engaging in industrial action”.
Mr Justice Hargun explained that Lovitta Foggo, the Minister of Labour, Community Affairs and Sport, published a notice on June 3, 2019, “declaring a labour dispute between the BPOA and the Government”.
He said she later referred the dispute to the tribunal.
The POA said last night: “The Chief Justice has ruled that the corrections officers, by working to their contracts, in May 2019, did not breach any laws, nor did they engage in any illegal industrial action, which means that the Cabinet acted in haste, and prevented the natural process of negotiations by bullying, harassment, and the abuse of power by forcing arbitration.”
It added that the Mandela Rules, which forbid the use of indefinite or prolonged solitary confinement, “have been consistently ignored by Government and has, in effect, created a hostile environment among those who are incarcerated as well as corrections officers”.
The POA said: “This is a hard-won victory. It is hoped that the Government will accept the decision and will now act fairly and in good faith going forward.”
The association launched its action against the tribunal and the Minister of National Security last October and the case was heard a month later.
Lawyers for the Government told the court that, despite the corrections staff receiving free insurance for decades, their contracts never guaranteed it.
Delroy Duncan, for the POA, said the officers had a “substantial” expectation of free health insurance based on their employment contracts.
He added that, even with the increased salary, the result was a net loss for prison officers.
Mr Hargun said: “In the circumstances, the court accepts the submission, made on behalf of the BPOA, and declares that the orders and awards of the tribunal in its decision are ultra vires and unlawful, insofar as they purport to resolve the disagreement between the BPOA and the Government, about prospective terms and conditions of employment.”
The Chief Justice added: “For the avoidance of doubt, the prospective terms and conditions include the award, in relation to rates of pay and the order in relation to the contributions to be made by the prison officers to the GEHI scheme.”
Wayne Caines, the Minister of National Security, said after the judgment was handed down that he respected the decision and would examine the judgment and its implications.
He added: “For the last two years, our ministry has sought to address any impasses and challenges with the POA head on.
“It is always my desire, as the minister with responsibility for the Department of Corrections, to ensure that we have a strong plan with regard to our corrections facilities, as well as addressing the concerns of all corrections staff and the welfare of the inmates.
“We have had some success in some areas. We have implemented strategic action plans aimed at strengthening security at our facilities, and we have worked towards improving the infrastructure at our facilities. Mr Caines said: “Following today’s court decision, we look forward to working with the POA to resolve the additional outstanding core issues.”
