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FORCED VACATION LEAVE IS ILLEGAL

posted 21 Sep 2020, 18:05 by Gerry Kangalee   [ updated 21 Sep 2020, 18:06 ]
Many employers have forced workers to go on vacation leave, under the guise that the corona pandemic has made it necessary to do so.

Many non-unionised workers who are not aware of what their entitlements are have accepted this as part of management’s right to manage. Other workers, many of them unionised, are not aware of the provisions of their collective agreements, because their unions do not see it as important to educate them.

Many union officials, for instance labour relations officers, are not aware as to the jurisprudence coming out of the industrial court as it relates to vacation leave, much of it due to lack of training in grievance handling, interpretation of collective agreements, conducting negotiations and research.

Unions, frustratingly, instead of training their members, officers and functionaries as their wall of defence against workplace exploitation are turning to lawyers (many of whom have no clue about industrial relations) and fly by night consultants who work for an employer on one day and work for a union on the next. There is even a case, (this eh no joke), where the same consulting firm was representing the employer and the union in a matter before the court.

Let’s look at the scenario. According to widely accepted practice, vacation leave with pay is seen as a human right. Workers must get a minimum degree of rest mental and physical and leisure. International Labor Office (ILO) recommendation 1954 (No. 98) states: “Every person covered by this Recommendation should be entitled to an annual holiday with pay. The duration of the annual holiday with pay should be proportionate to the length of service performed with one or more employers during the year concerned and should be not less than two working weeks for twelve months of service.”

It is clear, then, that vacation leave is an entitlement that all workers, whether covered by collective agreements or not, must enjoy. Even in Minimum wage legislation vacation leave is catered for. But more than that, ILO recommendation 1954 (No.98) states clearly: “there should be consultation between employers and workers regarding the time when the annual holiday with pay is to be taken. In determining this time, the personal wishes of the worker should be taken into consideration as far as possible.”
Union officials, labour relations officers and industrial relations functionaries should consult the following so as to be au courant with the legal reasoning as it applies to forced vacation leave: 

· ESD 5&6 /1980 PSA v WASA 

· ESD No. 7 of 2000 Between the Superintendents’ Association and BWIA international airways limited 

· Trade Dispute No. 122 of 1990 between University of the West Indies and University and Allied Workers Union 

· Trade Dispute No. 55 of 1997 between Seamen and Waterfront Workers’ Trade Union and Port Authority of Trinidad and Tobago 

· IRO 31/2015 SWUTT v ARCELOR MITTAL 


The recommendation also states: “The worker should be notified of the date at which the annual holiday with pay is to begin sufficiently in advance so that he can make use of his holiday in an appropriate manner.”

It goes on to state: “The time at which the holiday is to be taken shall, unless it is fixed by regulation, collective agreement, arbitration award or other means consistent with national practice, be determined by the employer after consultation with the employed person concerned or his representative

Note well that the recommendation stresses consultation and that workers should know their vacation date sufficiently in advance to make appropriate arrangements for vacation. The employer, therefore, cannot legally force a worker to go on vacation.

Some employers have laid off workers for a period of time and forced the workers to take vacation leave as part of the layoff period. This is wrong, illegal and not in keeping with good industrial relations practices and amounts to workers subsidising their employers. Management cannot force a worker to go on vaction leave to facilitate a company’s restructuring which will not be to the worker’s benefit.

Neither can a worker be forced to go on vacation leave during an investigatory suspension. In Trade Dispute No. 122 of 1990 between University of the West Indies and University and Allied Workers Union, the court stated: “The Company contended that the worker refused to obey a lawful order and left the workplace without being relieved by another worker in defiance of her supervisor's order. The worker was verbally remanded for leaving the workplace unmanned, suspended pending an investigation, and sent on ten days vacation”

The court admonished the Company for converting the worker's vacation leave to an investigation into the worker's alleged offence. The Court granted damages for pecuniary loss for the Company's abuse of the vacation leave. The Court ordered the Company to pay the worker $12,000 in damages.

In Trade Dispute No. 55 of 1997 between Seamen and Waterfront Workers’ Trade Union and Port Authority of Trinidad and Tobago, the court stated: in summarily sending a worker on leave without prior consultation with him (and contrary to his wishes) the Port Authority had acted in a manner inconsistent with the principles of good industrial relations practice. The Court ordered the payment of compensation to the worker.

It is quite clear that any attempt to force workers to go on vacation leave is not in keeping with good industrial relations practices, is clearly illegal and should be resisted by workers and unions.

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