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JUDICIARY SHIFTS INDUSTRIAL RELATIONS IN FAVOUR OF EMPLOYERS by Ken Howell

posted 1 Dec 2015, 13:10 by Gerry Kangalee   [ updated 1 Dec 2015, 13:16 ]

Justice Carol Gobin
On October 9, 2015 the right of the workers employed at the Desalination Company of Trinidad and Tobago (Desalcott) to join a trade union of their choice was shot down by Justice Carol Gobin. She delivered a judgement in the matter of a judicial review (CV 2013-00039) filed by the Company against the decision by the Registration Recognition and Certification Board (RRCB) to deem the Oilfields Workers Trade Union (OWTU) the recognised majority union for the workers of Desalcott.

The Company, having raised a preliminary objection that the Board had no jurisdiction to treat with the application of the OWTU having regard to S 38 (4) of the Industrial Relations Act (IRA), proceeded to file for review on the grounds that the Board had no jurisdiction to receive, process and /or determine the application of the OWTU.

The Company also amended its application, thereby raising the question of the separation of powers. The case was decided in favour of the Company on five (5) points. 

1) Whether the determination of the Board on the preliminary point is re-viewable by the Court in light of the provisions of S 23 (6) and 23 (7) of the IRA.

 2) Whether the Board in failing to provide the claimant with notice of the submissions of the union, before it came to a determination of the preliminary objection, breached the rule of natural justice thereby rendering the decision open to challenge, the ouster clause notwithstanding. 

3) In any case even if the claimant is entitled to review, should the Court exercise its discretion to grant relief if S 31 provides an alternative remedy.

4) The separation of powers

5) Whether Desalcott's employees are workers comprised in a category of Essential Industry under the Act. 

DENIAL OF FREEDOM OF ASSOCIATION

Two issues immediately come to the minds of persons engaged in this uphill struggle for working class democracy. These are: the subtlety with which the rights of workers to join a trade union of their choice is denied by the IRA, while it purports to be protecting that right, even when it skilfully leaves a door open through which the employer can enter to stand in the way of workers seeking to exercise that right.

The other is this question of the separation of powers.

Persons familiar with the history of how Schedules one and two of the IRA came to be the obstacle they have been and continue to be, will tell you that it was the PNM, with the support of the PSA, the NUGFW, the SWWTU, CWU of the Carl Tull era, and the UCIW, which brought that amendment to parliament to protect unions whose members were on the verge of leaving the pro-employer unions. So anti-worker behaviour in the labour movement is nothing new; it has happened before on more than one occasion.

In that particular instance it was a conspiracy between the PNM and those five unions to deny their members the right to freedom of association.  It is ironic that the OWTU, who fought against the passage of that amendment to the Act, has found itself once again confronted with the results of a bad piece of law.

In my view, the Judge did not have much work to do, by way of determining whether the Board had jurisdiction, having regard to  S 23 (6) and 23 (7) of the IRA which  is the ouster clause which seeks to protect decisions of the Board from scrutiny by any Court. Section 38 (4) lists the industries the law deems essential where political and economic security is concerned and therefore, in furtherance of national security, workers rights have been abrogated.

The Act does not specifically mention the political intention behind the passage of the IRA and the subsequent amendments but the intention is clear. The Essential Industry Schedule is the door which is closed in the face of workers employed in an industry which is deemed to be essential and are seeking to join a union already certified in another industry deemed essential. It is not our intention here to protect the Board from scrutiny by any Court. In fact, decisions should be open to scrutiny where such decisions raise questions in the minds of parties with interest in a matter before it.

We are not in a position to conclude, whether the person in charge of the day to day administration of the matters that come before the Board, fell into error, as the lawyers would say, and as a result, unsound directions were given to the Board, or whether it was calculated to provide an opening for decisions of the Board to be challenged.

SEPARATION OF POWERS

What we do know is that the act provides for the Board to be constituted into a Tribunal for the purpose of hearing certain matters and Desalcott was one such matter. Had it done so, the question of the separation of powers would not have arisen. Our concern now is that this judgement provides big business interests with the opportunity to seek additional ways to whittle away the few rights which the IRA grudgingly provides for workers.

Had the Board not ignored the fact that S 38 (4) of the IRA placed a wall around certain industries deemed to be essential, there would have been no objection raised by the Company.  However, this matter of the right of a union to seek recognition in an essential industry, when it is already recognised in another essential industry, is a matter which the trade unions that are affected should consider for judicial review. It would seem to me, that while the employers may wish to keep that door closed, it is in the interest of the unions to use every means available to break that door down.

The Judge went into a process by which she gave an interpretation of words such as “and” and “or” describing how these words are used, either in the conjunctive or disjunctive context. Judgements of the Privy Council were quoted for emphasis.  The purpose was to disprove the argument of the Board and perhaps that of the union, both of whom, it would appear, held that Desalcott was not in the business of providing sewerage services, therefore, in their view, Desalcott did not fall within the scope of the definition in Schedule 1.

As a consequence of this monumental blunder by the Board, Sections 32 (6) and 32 (7), which insulated it against the inquiring eyes of the Judiciary has opened up decisions of the Board to challenge. In that regard, what unions must be aware of is the fact that the challenges are likely to be over matters pertaining to critical applications concerning major companies.

No longer, therefore, can the Board which is established as a tripartite body, with responsibility under the IRA to receive applications for certification of recognition from unions hide behind that section of the Act. It would appear that what was overlooked by the Court, however, was that because of the way the Board is structured, the employers' representative, who is also a member of the Board, can take issue with attempts of the board to go on excursions into areas covered by the IRA where it does not have jurisdiction; and the representative will be recused only in instances where such application is directly concerned with workers in a company with which he/she is associated. 

TRIPARTITE NATURE OF BOARD

It is not clear whether the Board argued that point in its defence. But even if it did, it would have had to justify its reasons for not giving the Company the opportunity to respond to submissions made by the union which was the basis on which it arrived at the decision to determine the bargaining unit. In coming up against the challenge of Desalcott, it could have emphasised the point that the tripartite nature of the Board is one of the justifications for the ouster clause, although that point by itself would not have explained the failure of the board to observe the rules of natural justice.

I would suggest that since it was an issue in this instance, it should be an important point to be considered by unions where submissions either written or oral are given by the company or union, treating with an application that is before the board.  There is a nexus between the rules of natural justice and the principle of good industrial relations practices which is a major plank of the tripartite principle which has its roots in Conventions of the I.L.O. This country is a signatory to quite a few of those Conventions 

Therefore, by raising the question of the separation of powers, Desalcott has struck a major blow for the employers to which the state must respond since it amounts to a challenge to the powers of Parliament to enact legislation which the judge believes can be obstacles in the path of the judiciary whose remit it is to examine any law or section of a law when called upon to do so.

I believe that there is this question of the tripartite principle which represented the recognition of the reality of the strength of labour following the end of the Second World War which must be examined in light of the neo-liberal policies which successive governments have been mandated to pursue by the international lending agencies. Clearly, tri-partitism is no longer compatible with the neo-liberal doctrine and in the view of big business is long overdue for removal from the vocabulary of industrial relations.

It is important for those who choose to examine the intention behind the insulation of the Board from scrutiny that it was because of the composition and particular interests represented on the Board that it was imperative that its decisions, having been arrived at by mutual agreement, no purpose deemed to be useful should be served by looking behind its decisions. However, it is clear now that given the perception that the balance of forces is now in favour of the ruling class, tripartite principles should take a back seat. That is my analysis of the thinking then and now.

BALANCE OF FORCES

The question is whether those reasons were valid then and whether they still are now. I raise this point for the leaders of labour to recognise that the industrial relations climate is always conditioned by how the balance of forces appears to be lining up whenever major policy shifts are likely to be initiated in a country, whether by external or internal forces, against the working class.

In order to understand the mischief which Section 32 (6) and (7) sought to prevent, one must also have an understanding of the balance of forces existing prior to 1965 and, subsequently, leading up to 1972 at the time when the flag of labour flew high, led by the OWTU and the Transport and Industrial Workers Union.

It was a time when progressive forces existed within the labour movement and the struggle for improvement in the quality of life of the citizenry was at a high point. Clearly, this question of good industrial relations principles and practices occupied the consciousness of those who represented business, government and labour, because workers were becoming increasingly conscious of the poor conditions under which they were employed and they were joining unions in large numbers. Therefore, the workers movement was growing in strength, because they realised that they had to broaden the democracy at the industrial level of the economy.

This was happening while a struggle was raging between the progressive unions and the pro- employer unions who had the PNM government in their corner.  But even in the face of those obstacles the progressive unions succeeded in recruiting thousands of workers. As the power of the movement grew, the contending forces were forced to recognise the value of labour in the production process and therefore certain principles were given life.

What has occurred as a result of this judgement is that Desalcott did not only challenge the principle of the separation of powers, it also challenged successfully, the principle of tripartitism which is woven into the fabric of the IRA.  That is how the Industrial Court, itself, is structured. But in recent times we are witnessing that things are now balanced heavily in favour of the more lawyer-driven thinking in industrial relations. 

The action of Desalcott, therefore, has signalled the death of the RRCB by destroying the value of the principle of tripartitism, because if future decisions of the Board are open to challenges of the employers, then the rights of workers to trade union representation will be trampled on by them with impunity.  

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