IMBERT CANNOT COMPEL ANY EMPLOYER TO BREAK THE LAW
By Gerry Kangalee
Post date: Apr 15, 2021 11:35:15 PM
Finance Minister Imbert has tried to mislead citizens of this country when he made his infamous statement about the negotiations between the Public Services Association and the National Insurance Board. The statement was made in the Senate on March 9th 2021.
Let us deconstruct what he said? He said “The collective agreement in question was not authorised by the ministerial committee established to monitor the conduct of wage and salary negotiations. This committee is now entitled the human resource advisory committee of cabinet which took over from the ministerial committee established under the previous administration.”
The collective agreement to which the Minister referred covers the period January 1st 2014 to December 31st 2016. By memorandum dated July 31st 2018, management informed the workers, members of the recognised majority union, that their review and compilation of their proposals for the negotiations were receiving the consideration of the Board. There is a Human Resource sub-committee of the Board that deals with industrial relations and that monitors negotiations and acts as the principals for the National Insurnce Board’s negotiating team and who are fully aware of the back and forth that takes place during negotiations.
By letter dated November 5th 2018, management received PSA’s proposals and informed the workers that they intended to submit their amended proposals, having received the union’s, to the Board of Directors in early 2019. Negotiations commenced on May 8th 2019 and were settled in October 2020. Following industrial relations procedure as set out in the Industrial Relations Act, the Minister of Labour forwarded the new collective agreement to the Industrial Court for registration without any objection whatsoever.
On February 10th 2021, the collective agreement was registered by the President of the Industrial Court. On registration, it became a legally binding document, a court order, so to speak. Nowhere in the legally mandated provisions of the Industrial Relations Act does it call for authorisation of any negotiated collective agreement between statutory authorities and recognised majority unions by any sub-committee of cabinet, whatever it chooses to call itself. For argument sake even if there was such a role laid out in the law, it was the Minister of Labour, a member of the cabinet who you would expect would be a member of this human resource advisory committee, who forwarded the agreement to the Industrial Court for registration as he is legally required to do. Anyway, let us look at the thinking of the Industrial Court on this issue.
On the 20th August 1987, the then President of the Industrial Court, Justice Brathwaite sitting in Coram with Justices Awang and Khan on a matter involving thirteen matters heard together involving three unions, eleven bargaining units, the employer of which is the government, and three statutory authorities stated: “no Minister, whether or not expressly empowered by statute to give special or general directions, can give directions which, in effect, amend the Act by absolving any particular employer in any particular circumstance from his obligations under s 40 (1)."The statement is clear. The minister is not empowered to “give directions, which, in effect amend the act…”
Minister Imbert is not above the law and cannot instruct anyone to break the law. Yet he gets all hot and sweaty and spews a lot of hot air about a letter which was issued to the Board in 2011 which purports to give instructions relating to negotiations and which he implies brings an order of the court into question. This letter does not alter the fact that the collective agreement between NIB and the PSA is a legally binding document that is not subject to the Minister’s whims and fancies.
Let us look at another example of the court’s thinking. In IRO 16 of 1987 and 10 of 1988, in a matter between Communication Workers Union and Trinidad and Tobago External Telecommunication, delivered on July 1st 1992, Justice Riley-Hayes, sitting in Coram with Justice Ashby stated: “the evidence adduced by the company reveals nothing short of disregard by the government not only for the industrial relations process but also for the consequences that flow therefrom…. they cannot by their actions or inactions occasion breaches of the provisions of the Act or indeed any other statute. In this case there is no statutory provision for the issuing of Ministerial directives with respect to negotiations. Even where statute makes such express provisions, as is the case with the Minister of Finance with respect to public sector bargaining, Ministers are statute bound to issue directives in time so as to facilitate smooth running of the industrial relations processes instituted inter alia by the relevant legislation.”
The Minister, then charges the management of the NIB with withholding information from the Board with reference to the letter of March 25th 2011 and has initiated an investigation. This seems to be the modus operandi of this government. Petrotrin – blame the Board and management; National Petroleum – blame the Industrial Court; WASA – blame the management and the union; NIB – blame the management.
Let us move away from the technical to the political. It is mind boggling that the Minister can claim that the Board was unaware of this so-called directive. Of course, as was stated before, he implied that management concealed the letter from the board for some unstated reason.
According to the National Insurance Act Section 3 (2) The Board shall consist of eleven members designated Directors, who shall be appointed by the Minister, as follows: (a) three members nominated by the Government (b) three members nominated by the associations most representative of Business; (c) three members nominated by the associations most representative of Labour; (d) a person, who in the opinion of the Minister, is independent of the Government, Business and Labour, who shall be the Chairman; (e) the Executive Director as ex officio member. The Chairman of the Board is Ms. Helen Drayton and the executive director is Ms. Niala Persad-Poliah.
Helen Drayton, Chairman of NIB
Niala Persad-Poliah, Executive Director of the NIB
Is the Minister accusing Ms. Perad-Poliah of withholding information from Ms. Drayton, a respected professional, and other members of the Board? Is the minister suggesting that the government members of the board are just along for the ride and have no clue what management is doing? Imbert is unbelievable! The practice over the years has been that all board minutes go to the Permanent Secretary and the Minister of Finance. At the end of each month the Chairman of the Board and the Executive Director report to the Minister of Finance.
If this practice, which seems to be an eminently, sensible one has not changed, how can the minister claim ignorance of the substance of the collective agreement, which his cabinet colleague, the Minister of Labour, forwarded to the court for registration without any objection whatsoever; which his representatives on the Board presided over the period during which it was being negotiated and which the Chairman and executive director, would surely, one would expect, have reported on to him during their monthly meetings. In closing, it must be stated, that the workers of the National Insurance Board are not public servants and are not subject to the public service commission and the Chief Personnel Officer, so all this ole talk from Imbert about the effect of the wage increase on government finances is just a distraction and an attempt to, once more, blame working people for the gross incompetence of the Rowley administration.
His investigation seems designed to scapegoat the board and management of the NIB, because he knows full well that no minister of government can compel any employer to break the law or in the words of the Late Judge Riley-Hayes “they cannot by their actions or inactions occasion breaches of the provisions of the Act or indeed any other statute.”