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THE QUESTION IS WHO IS A WORKER By Ken Howell

posted 10 Jul 2015, 04:25 by Gerry Kangalee

There was a very interesting article in the Express Newspaper of July 1, 2015, written by Mr. Theodore Lewis, Professor Emeritus of the University of Minnesota, entitled “Discriminatory effects of the Industrial Relations Act.”

The main thrust of his piece, was what he described as discrimination against “white-collar workers.” There is no question as to whether the act discriminates. In fact is does so in many ways. For example, while it was forced to recognize the right of trade unions to organise and to do collective bargaining, it placed restrictions on the right to strike, and through the Registration Recognition and Certification Board, the process by which recognition is granted is tedious and frustrating and could take years for Unions to know whether they are certified as recognised majority unions.

In dealing with this question which is of grave concern to the Professor, it is necessary to enquire into the mischief- as the Lawyers would say- that the law was enacted to prevent. In the thinking of the law makers at the time, the newly independent colonial capitalist economy had to be protected from the growing strength of the Trade Unions. So there were national security concerns as well as political and economic ones. 

If one should read the act objectively, it would not be difficult to see the intent of the drafters. The Act established an infrastructure within which the relations between employer and employee are regulated. In that regard, the question as to who has access to the Court falls within the definition of who is a worker and who is not a worker.

There are certain categories of employment which fall within the definition of who is not a worker. This can be found in subsection 

“For the purpose of this Act, no person shall be regarded as a worker, if he is--(a) a public officer, as defined by section 3 of the Constitution; (b) a member of the Defence Force or any ancillary force or service thereof, or of the Police, Fire or Prison Service or of the Police Service of any Municipality or a person who is employed as a rural constable or estate constable; (c) a member of the Teaching Service as defined in the Education Act, or is employed in a teaching capacity by a university or other teaching institution of higher learning;

(d)  a member of staff and an employee of the Central Bank established under the Central Bank Act; (e) a person who in the opinion of the Board -- (i) is responsible for the formulation of policy in any undertaking or business or the effective control of the whole or any department of any undertaking or business; or (ii) has an effective voice in the formulation of policy  in any undertaking  or business; (f) employed in any capacity  of a domestic nature, including that of a chauffeur, gardener, or handy-man in or about a private dwelling house and is paid by the house holder; (g) an apprentice within the meaning of the Industrial Training Act.”

(3) which is headed Preliminary. (See sidebar).  

So that while employers of unionised workers and the unions representing them have access to the Court, certain categories of workers described by Professor Lewis as white-collar, appear not to have the same right. It is in the understanding of these discriminatory definitions that one will discover the national security concerns which is part of the mischief that the law makers believe that they have prevented. The Trinidad and Tobago Police Social and Welfare Association seem to have refuted that belief. 

You will observe that within the definitions at (e) (i)  with respect to undertakings or businesses, persons who have responsibility for the formulation of policy or one who has an effective voice, is not deemed to be a worker. However, persons who hold low level management positions at sub- departmental and supervisory levels i.e. with no authority to hire and fire employees are workers within the meaning of the Act. Such persons can join a union and can be represented by a union and unions have represented such persons. 

In the case of the category of persons employed in the Public Service and deemed to be public officers, in the case of disciplinary matters, these are dealt with in the Public Service Disciplinary Tribunal. In the case of Teachers, the Education Act provides the mechanism through which disciplinary matters are processed. All matters concerning collective bargaining which affect the remuneration of Teachers, Police, Prison Officers, Fire Officers and Public Officers employed in the Public Service, must first go through the Chief Personnel Officer and failing a settlement at that level they are then referred to the Essential Services Division of the Industrial Court.

In the case of white collar workers, who are employed in positions such as Chief Executive Officers, Finance Managers and so on, if the situation prior to and at the time of the dismissal of such persons, reveals evidence which indicate beyond a doubt that something occurred which led to the demotion of such persons, then the new conditions of the person’s employment create the possibilities which may be utilised to argue a case that such persons are workers, within the meaning of the Act.

It must be borne in mind, however, that it is well known that persons who hold such high positions in the private sector do not see themselves as workers, but as professionals. In most instances, a few of them may have a stake in the establishment in which they are employed, but their so-called middle class status blinds them into believing that they are far superior to blue collar workers And many of them choose not to join unions.

In the case of the powers of the Registration Recognition and Certification Board, the Act does not allow for the challenge of any decision of the Board. As a consequence, where the Act says that matters coming before it shall be dealt with expeditiously, the interpretation is stretched to mean years.

So that while the Professor's concern is valid there are Unions in this country to which white-collar workers belong. Therefore, it is not entirely correct to say this category of worker does not have access to the Industrial Court. 

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