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HIGH COURT SLAMS RRCB PROCEDURE by Dave Smith

posted 17 Nov 2015, 08:00 by Gerry Kangalee   [ updated 17 Nov 2015, 08:31 ]
A recent High Court judgement (CV 2013-00039; see attachment at end of article) delivered by Justice Carol Gobin has caused a firestorm of discussion in the trade union movement and I dare say in employers’ circles.

The matter involved an application for leave to make a claim for judicial review by the Desalination Company of Trinidad and Tobago of a decision made by the Registration Recognition and Certification Board.

The Oilfields Workers Trade Union (OWTU) had organised workers at the Desalination Company and made a claim for recognition to the Recognition Registration and Certification Board (RRCB). The recognition process required by the Board is, firstly, to determine the bargaining unit and then do a check of records to see if the union has more than 50% of the workers in “good standing”.

The Desalination Company argued that it was an essential industry, and this was the preliminary issue that had to be determined by the Board. In the event, the Board concluded that the Desalination Company was not an essential industry which opened the door for the OWTU to get recognition. The Desalination Company sought a Judicial Review which produced this case.

THE ISSUES

The court identified five (5) issues to be determined:

1. whether the court had the authority to review the decision of the Board in view of Section 23(6) and Section 23(7) of the Industrial Relations Act (IRA) which says that decisions of the Board cannot be challenged;

2. whether the Board followed natural justice in its  dealings with both the Company and the OWTU in the “clarification” stage which is used as part of the process of determining the bargaining unit;

3. can the High Court review a decision of the Board when Section 31 of the IRA says that the Industrial Court is the route for the RRCB to clarify interpretations of the IRA;

4. the separation of powers;

5. whether Desalcott workers are workers in an essential industry.

The ouster clause in the IRA basically says that no decision of the Board can be challenged “save in relation to the alleged breach of the rule of natural justice”. The separation of powers requires the separation of the legislature, executive and judiciary. The judgment said that because the IRA allowed the Board to interpret the IRA, and therefore determine the limits of its own jurisdiction, there was not a separation of powers.

The key extract from the judgment is:

“… in exercising its supervisory jurisdiction, the court must be left to construe legislation. It is fundamental to a determination as to whether an inferior court or tribunal is acting within its jurisdiction. If that function is removed or purportedly removed by statute, however comprehensively drafted, what comes under attack is the supervisory jurisdiction of the Supreme Court.”

The Court argued that because there has been no proper separation of powers, the ouster clause was deemed to be unconstitutional.

FAIR HEARING

Section 20 of the Judicial Review Act imposes a duty of the Board to act in accordance with the principles of natural justice. The judgment concludes that it did not do so in this case. More broadly, the judgment was critical of the general procedural approach adopted by the Board.

The procedure of the Board, when determining the bargaining unit is to hold “closed” clarification meetings separately with the union and the employer. Any documentation submitted by either party is supposed to be supplied to the other side, but verbal submissions rely on the Examiner from the Board to accurately record the position of the each party and supply it to the other.

The judgment says:

“It appears from that affidavit of Mr. Taitt that it has become the practice in recognition applications, to receive submissions and representations in meetings with one party to the exclusion of the party. Persons designated by the Board hold “clarification meetings” with each party, receive information, prepare a report for submission to the Board, which then considers it and comes to a decision.

By adopting this practice the Board has ignored the rule of procedure made the Act which, while they allow a fairly wide discretion as to how to deal with certain matters, clearly contemplate proper service, notifications and substantive inter parties hearings where necessary before the Board. The rules notwithstanding, private communications between each side and the Board's representatives appear to have become the order of the day.

It appears that, even now, the Board does not believe that it is under a duty to notify the absent party as to what transpired in its absence, so as to afford that party the opportunity to make appropriate representations. If “Clarifications meetings” which are closed, have become to be the only actual hearings that are afforded the parties, and that is the impression that I got, I do not think this is what the legislation contemplated.”

The judgment then goes on to reject that Board's rationale for “closed meetings” which were predicated on the need to avoid victimisation of workers.

ALTERNATIVE REMEDY

Section 31 of the IRA provides for the Industrial Court to provide an opinion to the Board on any interpretation of the law in respect of the Board. This was rejected in the judgement as a viable alternative for claimants as the access to the Industrial Court was at the discretion of the Board.

ESSENTIAL INDUSTRY

The Board had determined that Desalcott was not an essential industry. There was an implicit criticism of the Board in that they give no reason for their decisions. In this case, the IRA describes an essential industry as being “Water and Sewerage”. The discussion was whether this should be read as “Water and Sewerage or “Water or Sewerage”.

The judgment took a broad approach and concluded that Desalcott was in the water industry and so was an essential industry. In doing so it took a reasoned approach that would avoid Blue Waters, for instance, being designated as an essential industry. The judgment does not seem to help at all in determining the distinction between “hospital services” and “health services”.

IMPLICATIONS

The determination that the ouster clause is unconstitutional is clearly of significance as it removes the “star chamber” qualities of a secret organisation from the Board. Whether this might have some implications for the ouster clause on Industrial Court matters might be a possibility, although the ouster clause there is not as comprehensive as that applying to the Board.

The judgement gives a pointer on how definitions of what is an essential industry might be determined, given that the IRA gives no precise definitions. It does not help in the hospital/health issue though. The key implication seems to be an attack on the fundamental approach historically taken by the Board in dealing with recognition claims, in particular by:

• using “closed” clarification meetings;

• no opportunity to put a case to the Board;

• not giving reasons for its decisions.

The position adopted by the NWU in its submissions to the Board on what procedures should apply has, in a sense, been vindicated by this judgement. While there may an opportunity to press for a completely new procedure based on direct negotiations between the unions and the employers and a transparent approach by the Board, really and truly, the whole concept of essential industry and the Industrial Relations Act, itself, should be scrapped.

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Gerry Kangalee,
17 Nov 2015, 08:02
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