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THE STING IN THE TAIL

posted 9 Jun 2015, 06:13 by Gerry Kangalee

The National Workers Union (NWU) has issued a discussion paper called A LOOK AT THE INDUSTRIAL RELATIONS AMENDMENT BILL as a contribution to the discourse raging across the labour movement about the government's attempt to enact  the Bill which the trade union movement views as a an attack on its very survival. The discussion paper is attached at the bottom of this page and can be downloaded.

Because it is a rather long document, this website will publish it in parts over time. This is the third and last in the series of articles.

RESTRICTIONS ON THE RIGHT TO STRIKE

The restrictions on the right to strike have not been tackled at all. Essential service workers are still denied the right. In fact, workers who are considered to be on “short term” projects defined as “a project in the heavy construction industry, which is scheduled to be completed within five years of its commencement.” (Part 111A) are now considered “essential services” workers and are also denied the right to strike. The Essential Industries issue has been completely ignored. So much for freedom of association!

Trade unions can no longer be decertified for taking illegal industrial action, but according to the Bill (PART VA) a worker who is not satisfied with the representation he gets from the union may trigger a process which could lead to decertifying the union.

The power of employers to initiate cancellation of our certificates has now been transferred to the workers. No better way to destroy the union than from within. This is going to initiate a period of bribery, corruption and could lead to finally breaking the ability of the trade union movement to legally advance, protect and defend the interests of its members.

This part requires unions to represent all workers in a bargaining unit where they are the recognised majority union, even if they are not union members. Further: it allows union members and non members to apply to the Court for the union to be decertified if they: (a) failed to represent the member or worker of the bargaining unit; or (b) were negligent in its representation of the member or worker of the bargaining unit.

RECOGNITION ISSUES

An application for recognition is decided under the IRA by a majority of the Board “sitting in accordance with the Rules and Regulations determined by the Board”. The Bill deletes reference to the “rules and regulations of the Board” and requires the determination of recognition claims to be made by the Chairman and three members, one of whom should be the jointly agreed representative.

If this deletion of reference to the rules and regulations of the Board leads to the demise of the Practice Notes it may significantly speed up the process of gaining RMU status. In dealing with applications for recognition: Where the Act says applications must be dealt with expeditiously, the Bill says applications must be dealt with within six months. The Bill is silent on what happens if the Board does not meet its legal obligation of determining matters within six months.

The Bill deletes issues of “workers within the meaning of the Act” and “members in good standing” for trade disputes which will release the Board from this work. It should be noted that the unions have sought three (3) months as the maximum for completion of an application for recognition.

OBJECTIONS TO APPLICATION

 The Act says that where more than two unions have more than fifty percent of the members the Board is required to organise a ballot. (Note: this could arise where a union is challenging a sitting union).

While the Bill retains the ballot it inserts new criteria which allow an employer, “another trade union” and the Registrar of Trade Unions to object on the grounds that:

The claim made by a union seeking to be recognized is false; and

The accounting of the union is false;

The union has filed false membership records; or

There has been some other allegation of irregularity in the operation of the union.

Objections have to be filed with the Board within 28 days.

This section could effectively destroy a serious attempt to conclude recognition applications within six months. It would simply open the door to employers (who do not want union recognition anyway) to raise complaints concerning every application for recognition. Any employer and any trade union can raise an objection. They do not have to be party to the application.

We have seen employers and their representatives regularly raise questions about “membership in good standing” and “workers within the meaning of the Act” simply to delay trade disputes. They have been provide with a more pernicious mechanism to achieve the same end. Unions have long argued that the 51% threshold should be reduced. The Bill does not address this issue except in the case of recognition for short term projects

The Bill inserts a new Part (111A) dealing with applications for recognition for “a short-term project” which is defined as “a project in the heavy construction industry, which is scheduled to be completed within five years of its commencement.”

Applications are determined entirely by the Chairman of the Board. The threshold for recognition is reduced from 51% to 331/3%. These bargaining units are classified as essential industries.

Whilst an attempt to provide for organising in building industry is welcomed, this proposal is limited to “heavy construction” and also makes the bargaining units “essential industries” which means that cannot take industrial action of any sort.

The building industry, because of its short term nature, has thrived on taking immediate direct action to address its issues. Workers could well be better off staying outside the law and dealing with their issues as they do now rather than getting boxed into the limitations of these proposals.

Fixed contracts for Industrial Court judges have been abolished. The Bill deletes the section which limits judges in the court to a maximum 5 years contract (although renewable) and replaces it with an amendment to the Constitution which provides for judges to be appointed through the Judicial and Legal Service Commission. Industrial Court judges are renamed Justices and this change is made throughout the legislation.

This provision would seem to rely on the deletion of an amendment to the IRA and a simultaneous amendment to the Constitution. The latter requires a four fifths majority and probably needs the support of the PNM opposition in Parliament to pass.

WORKER WITHIN THE MEANING OF THE ACT

The Act says anyone who formulates policy or is in charge of a department is not a worker. If there is a dispute about whether a worker falls into this category the matter is determined by the Registration, Recognition and Certification Board (the Board).

The Bill keeps the definition as a way of excluding “managers” but deletes reference to the Board making a decision and instead gives workers in this category the right to report a trade dispute in the same way as a trade union can.

This is a strange way of dealing with this issue. It would have been much clearer to simply define a worker as anyone who sells their labour power. But what it does seem to mean is that “managers” can report their own trade disputes. What is not clear is where they can be represented and, if so, by whom. Does this open the door to lawyers representing “managers”?

It is not clear what would happen if the employer raised the question as to whether a worker represented by a union was, in fact, a manager and should be representing themselves. At the moment it is not clear where this dispute would go: obviously not to the Board; presumably to the Industrial Court, although that is not clear.

The Bill does not address the current exclusion of teachers, public officers etc. from the definition of “worker”. To address this, however, would probably require amendments to a range of other Acts which deal with these categories of worker.

DOMESTIC WORKERS

The Act says anyone “employed in any capacity of a domestic nature, including that of a chauffeur, gardener or handyman in or about a private dwelling house and paid by the householder” is not a worker within the meaning of the IRA. (s2(3)(f)). The Bill deletes section 2(3)(f) but changes the definition of “employer” so that it “does not include a householder who employs not more than three workers in any capacity of a domestic nature, including that of a chauffeur, gardener or handyman in, or about a private dwelling house.” (s2(8)).
 
This has removed the reference to domestics (and others) not being workers. However, if the employer has less than three workers falling into this category then the definition does not apply to him. This seems a ruse to have the status quo of domestic workers to remain unchanged while pretending to uphold Convention 189.

 CONCILLIATION AND MEDIATION SERVICE

 The section introducing the Conciliation and Mediation Service seems to have been lifted from the laws of some other jurisdiction and needs further study as to the ramifications of its establishment. At first glance its powers seem widespread and extensive and it seems designed to create another bureaucratic monstrosity to facilitate the boys getting jobs at inflated salaries, but also to shift the industrial relations ground, as one commentator put, away from the “grassroots” and into the hands of academics and theoreticians who cannot recognise a grievance if it slapped them in the face.

FINES

There are other changes made in the Bill of varying significance, but we will just touch on the more significant ones. The Bill removes the sanction of cancellation of our Recognition Certificates for taking illegal industrial action; however, the fines have been increased ten fold From $10, 000 to $ 100,000. They will surely buss all the unions now!

For taking industrial action in essential services the Bill removes summary conviction and imprisonment. The fines for employers have increased from $40,000 to $100,000 which is 2 1/2 times. But the fines for unions increased from $20,000 to $75,000 which is 3 ¾ times more. So when it comes to workers it is even worse! The fine for workers taking part in industrial action in an essential service moves up from $1000 to $25,000. This is 25 times more!!! If the worker is in the Health Service he will have to pay a fine of $50,000. Is it because there is a new wave of organising by health workers which the government wants to cut off at the root?

The trade union movement has been struggling for decades to remove from its shoulders the yoke of repressive legislation as embodied in the Industrial Relations Act. The Industrial Relations Amendment Bill far from addressing the issues that are of concern to workers and the trade unions are, in fact, attempting to slip into the law measures which are designed to keep that yoke more firmly in place than ever before. The trade union movement must reject out of hand this latest assault on its historic mission to protect, defend and advance the interests of the working class!

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a look at thr IRA amendment bill (2).pub
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Gerry Kangalee,
9 Jun 2015, 06:13
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