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NWU TO PICKET RECOGNITION BOARD

posted 21 Aug 2013, 19:08 by Gerry Kangalee
On Tuesday August 13th 2013, the Trinidad and Tobago Unified Teachers Association (TTUTA) led a picket by School Supervisors, Curriculum Officers and Guidance Officers of the office of the Chief Personnel Officer.

The picket highlighted the anomaly that while the previously mentioned officers are supposed to be in a higher range than teachers, their salaries have been outstripped by the negotiated salaries of teachers. But the real villain of the piece is the Registration, Recognition and Certification Board (RRCB). How so?

In 2005, these officers were removed from the public service and brought into the teaching service but remained in the Public Service salary ranges pending the finalisation of the process of them being legally represented by a majority union. For purposes of negotiations (interest matters) workers need to be members of a recognised majority union.

DECREASING CLAIMS = INCREASING DETERMINATION TIME

In 1972, the year the IRA was enacted there were 169 applications for recognition and the average time it took to determine those applications was 6.94 months. By 1995 when only 6 applications were made it took an average time of 43.25 months to have the applications determined.

No study has been done since then on the average time it takes to determine an application, but it certainly is as bad as it ever was. The OWTU’s recognition bid for workers at what was then Amoco dragged on for more than ten years.

What seems clear is that as the volume of claims decreased, the secretariat of the board ensured that the time for determination stretched out like a rubber band so that their role in the bureaucratic structure would seem indispensable
TTUTA applied to the RRCB for recognition as the majority union in 2010 for these officers, but up to now the Board has failed to make a determination. If you think that three years is a long time for the RRCB to determine whether an application for recognition is successful you would be right, but compared to the length of time it took to determine other applications three years may seem like the blink of an eye.

The RRCB was established in 1972 as a provision of the Industrial Relations Act (IRA). This Act is the overarching law governing industrial relations and was enacted by the PNM government during a state of emergency with some trade unionists in detention.

What is clear is that in the early days when there were many applications before the board the average time taken to determine an application for recognition was much shorter than it is today when much fewer applications for recognition are being made.

The funny/strange thing is that the government is going out of its way to establish a one stop shop for capitalists who want to set up companies in T&T. They want to make sure that it wouldn’t take more than two or three days for that to happen; yet when workers attempt to exercise their constitutionally guaranteed right to freedom of association, rather than efforts being made to facilitate them, the state actually throws up hindrances in their way. Such are the ways of a society based on the suppression of the working class!

The Amoco recognition claim by the OWTU also fed into the culture of delay. High priced lawyers, including future Chief Justice, Michael De La Bastide, developed all kinds of ruses and mechanisms that delayed, frustrated and made a mockery of a process that was already tainted and thus opened the way for other companies to follow suit.

Although Section 32. (1) of the IRA states: “The Board shall expeditiously determine all applications for certification brought before it…” what, in fact, happens is that while the Board dilly dallies (the opposite of acting expeditiously) in determining applications, employers dismiss organisers and intimidate workers from joining a union. 
 
Even the Industrial Relations Advisory Committee (IRAC) has been less than complimentary in describing the operations of the Board. In its final draft submission to the Minister of Labour, it stated: “
For the past two to three decades there have been numerous complaints about the efficiency and timeliness of the process of recognition…The RRCB has been called various negative names, the most telling is ‘the cold storage’. Its human resource quality and quantity have been brought into question so too has been its structure.” 

WHAT ARE THE POWERS OF THE BOARD?

What is it that takes the Board so long to make a simple determination? Let’s look at what the IRA mandates the Board to do. Under the law the Board is supposed to determine whether a union that is making a recognition claim has more than 50% of the workers for whom the claim is being made as its members.

The Board has to determine whether the workers for whom the claim is being made are members in good standing in the union, meaning that they have to be members of the union for at least eight weeks. The Board also determines the shape of the bargaining units. What is so difficult about this?

The law talks about members being “in good standing”. The criteria can be summarised thus: the union has to follow sound accounting procedures and practices (Section 34 (3) (a)); the worker must have paid an entrance fee and at least eight weeks contributions (Section 34 (3) (b) (i)), or contributions for not less than two years (Section 34 (3) (b) (i)); the funds of the union have not been used to pay the members contributions (Section 34 (3) (c); the question of membership in good standing must be determined “having regard to good industrial relations practice” (Section 34 (3) (d))

 
PRACTICE NOTES

The Board has issued two Practice Notes that are used in applying Section 34: Practice Note No. 1 and Practice Note No. 2.

It is the application of the Practices Notes, and in particular Practice Note 2, that is the cause of most problems. It is worth examining this because Practice Notes, whilst having their roots in the IRA, are very much the product of the Board and can therefore be amended by the Board without recourse to amending the legislation.

Section 34 (3) (a) does not determine precisely what “sound accounting procedures and practices” are and it is in an attempt to address this that, presumably, the Board has issued Practice Note 2.

Amongst the problems raised are: a massive intrusion into the internal administration and affairs of the union; the incredible level of detail required; the requirement to have a manual accounting system when unions ought to be computerising their accounts; the imposition of financial procedures that are determined, not by the Union but by a State agency; the ability of Board examiners, who are not qualified accountants, to determine what are “sound accounting procedures”

The Practice Notes issued by the Board, particularly Practice Note 2, have the effect of interfering in the internal financial administration of unions and impedes to process of developing collective bargaining.

NO TRANSPARENCY

Section 23 (2) of the IRA says: “Every party to a matter before the Board shall be entitled to appear at the hearing thereof, if any, and may be represented by an attorney at law or by a duly authorised representative”

Despite this, when matters affecting a union come before the Board, unions are not even advised, let alone have the opportunity to appear or be represented.

The process is not transparent. Unions don’t know the nature of the reports being presented to the Board or have an opportunity to challenge, query or correct them or have the right to representation at the hearing where their matters are being determined.

This is particularly worrisome, because according to Section 23 (6) and (7) of the IRA:

(6) No decision, order, direction, declaration, ruling or other determination of the Board shall be challenged, appealed against, reviewed, quashed or called in question in any Court on any account whatever; and no order shall be made or process entered or proceeding taken by or in any Court,… to question, review, prohibit, restrain or otherwise interfere with the Board or any proceedings before it.

(7) … the Board shall be the sole authority competent to expound upon any matter touching the interpretation and application of this Act relating to functions and responsibilities with which the Board is charged by the Act or any other written law; and accordingly, no cause, application, action, suit or other proceeding shall lie in any Court of law concerning any matter touching the interpretation or application of this Act.” The Board is therefore a power unto itself!

The Practice Notes, as they currently stand, therefore undermine freedom of association and are contrary to both the stated objectives of the Industrial Relations Act and ILO Conventions 87 and 98.
 
An additional problem is that unions are totally in the dark about what is going on. Although there is an examination process where unions are called in, the final report and its contents are never revealed.
 
Unions are simply advised of the outcome of an application without knowing why it might have failed. There is no way that a union can challenge possible inaccuracies in a report that they cannot see.


The preamble to the Industrial Relations Act is supposed to encourage good industrial relations. It says:
“An Act to repeal and replace the Industrial Stabilisation Act 1965, and to make better provision for the stabilisation, improvement and promotion of industrial relations.” 
 
Industrial relations cannot be effectively promoted without workers having the right to trade union representation, and to be effective this means union recognition. The ILO Conventions 87 and 98, which the government has ratified, provided for union recognition to be encouraged. 

Convention 98 says in Article 4: “Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.” This means that the RRCB should be taking a proactive role in assisting in the expansion of union recognition. 

WHAT DOES NWU SAY?

The National Workers Union proposes that the recognition process should include:

joint meetings with the union, employer and board to discuss and agree to the composition of bargaining units;

time limits on employers: requiring them to respond to Board enquiries or the matter will proceed on the basis of the Union's application (the Industrial Court operates on this basis);

an interpretation of the community of interests to allow for unions to organise departments or small units within an employer. Trying to organise an employer with many outlets and turnover of workers is virtually impossible (Rituals, Catwalk, KFC, etc. fall into this category);

granting of interim recognition certificates as provided for in Section 37(3) of the Act;

recognition claims should be determined within three (3) months at the most.


 
The RRCB needs to separate those activities that it is required to carry out by law (and which it cannot change) from those where it has the authority to determine how it applies the Act. The former it cannot change, the latter it has control over. 

The actual work of the RRCB is not carried out by members of the Board, but by the secretariat which seems more concerned with building a more and more opaque bureaucracy than in expeditiously settling recognition claims. 

It seems more concerned with protecting its turf than carrying out its function. It seems more concerned with “mek wuk” than in ensuring that workers rights are implemented.
 
What use is it having the right to join a union of your choice and when you do so you are frustrated and delayed by the very agencies of the state that pose as facilitators but are in fact obstacles to exercising those rights? 
 
Based on the above analysis, the executive committee of the National Workers Union (NWU) took a decision on August 11th 2013 to launch a picket campaign of the Recognition, Registration and Certification Board to draw attention to the injustices being carried out against workers who exercise their right to join a trade union of their choice.
 
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