Where we stand‎ > ‎News & Comment‎ > ‎

NWU'S POSITION ON THE IRA

posted 30 May 2015, 08:39 by Gerry Kangalee   [ updated 30 May 2015, 09:12 ]
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 second in the series of articles.

What then is the trade union movement’s position on the IRA and what does it want to see as mentioned in the Workers Agenda?

The IRA defines how, when and under what conditions workers may withhold their labour; it denies workers in so-called essential services the right to strike; through its essential industries provision it violates freedom of association by denying workers the right to join a trade union of their choice; it provides employers and the state with a mechanism to decertify trade unions while not providing unions any countervailing mechanism to deal with employers.

The IRA prohibits strikes in rights matters; prohibits strikes in 'essential services' and many other areas; it provides for compulsory union recognition – but only after a tedious legal procedure determined by the Registration Recognition and Certification Board; it requires conciliation at the Ministry of Labour and establishes an Industrial Court to provide for compulsory arbitration.

WORKERS AGENDA

The Workers Agenda called for:

The severe limitations on the right to strike to be removed.

The excision from the IRA of the provision which allows an employer to seek decertification of trade unions.

Removal of obstacles to Workers’ Right to Join a Trade Union of Their Choice: the law must allow for workers to join trade unions of their choice. The present restrictions on trade unions in terms of workers categorised in essential industries, violates international labour standards

A limit of three (3) months for the determination of recognition claims which are made to the Registration, Recognition and Certification Board; the present requirement of fifty-one percent (51%) membership of workers in one particular union for that union to obtain recognition by the Recognition Board should be amended to twenty percent (20%);

Security of tenure and pensions for Judges of the Industrial Court and their appointment by an independent body, similar to that of High Court Judges.

The elimination of employers being able to use provisions related to “worker in good standing” and “worker within the meaning of the Act” to delay and prevent trade unions from representing individual workers, who come from a non-unionised environment.

All workers to be recognised as Workers: The term “worker” should be amended to include drivers, domestic workers, etc.

Ministry of Labour to revisit its mandate to make it functional to the needs of the labour movement.

The above is a concise summary of demands of the trade union movement in relation to the IRA as contained in the Workers Agenda. There are other obstacles contained in the IRA which may be dealt with as we examine the effects of the law. We can then look at the proposed amendments and see to what extent they meet the demands and to what extent they impose more restrictions.

RIGHT TO STRIKE

The International Labour Organisation has stated: “The right to strike has been recognized internationally as a fundamental right of workers and their organizations and as an intrinsic corollary to the right to organize. Nevertheless, these fundamental rights are still not enjoyed by millions around the world, and where these rights are recognized, there continue to be challenges in applying them.”

(http://www.ilo.org/declaration/principles/freedomofassociation/lang--en/index.htm).

This statement precisely describes the situation in Trinidad and Tobago as it relates to the prohibition of certain categories of workers. Section 67 (2) of the IRA prohibits workers and employers in “essential services” from taking industrial action. It says: “An employer or a worker carrying on or engaged in an essential service shall not take industrial action in connection with any such essential service.”

The law goes on to say that a worker who contravenes subsection (2) is liable on summary conviction to a fine and imprisonment and that “(5) A trade union or other organisation, the holder of an office in a trade union or other organisation or any other person who calls for, or causes industrial action to be taken in, an essential service or induces or persuades any worker in that service to take such action is liable on summary conviction…”and it lays out fines and prison terms, disqualification from holding union office. A trade union may also be decertified for violating this section.

In T&T for exercising what the International Labour Organisation holds to be a worker’s fundamental right, workers and trade unionists may be jailed. But the ILO also said: “where these rights are recognized, there continue to be challenges in applying them.”

The IRA determines, indeed, spells out, how workers must strike: under what pretext; under what conditions; utilising what procedure - all of which are governed by legal prescriptive application set down in the IRA and other laws

According to Bryan St. Louis of the Communication Workers Union in his paper Jurassic Labour Legislation in a Technological Age (see paper analysis of the IRA 1972 as amended attached at bottom of this page): “In cases where workers do not take strike action as spelt out in the Industrial Relations Act, the employers use the IRA to the hilt by instituting lock-out action and then issues individual contracts to workers, bypassing the Union in order to get workers to accept inferior terms and conditions of employment in an attempt to get rid of the Union.

Further, if a union is found guilty of taking illegal industrial action the IRA makes provision for decertification of the union whilst there is no reciprocal penalty for an employer who commits the same offence.

In addition before strike action can be taken notice must first be given to both the employer and the Minister of Labour, which in effect eliminates the surprise element and gives the employer time to put things in place to pre-empt the effects of strike action." 


But even those actions that do not seem to be governed by the prescriptive force of the IRA are dealt with by the use of what St. Louis calls: “Various tactics are also being used to break legal, legitimate and peaceful struggles of workers e.g. Injunctions supported by the State to prevent protest actions on legitimate issues, laws to limit marches, picketing and breakup of picket lines by the State machinery, use of Paramilitary Forces in the Collective Bargaining Process are some of the violent attacks against workers within recent times.”

ESSENTIAL SERVICES

The “essential services” listed in the Second Schedule of the IRA: 1. Electricity Service (Generation, Transmission and Distribution). 2. Water and Sewerage Services. 3. Internal Telephone Service. 4. External Communications (Telephone, Telegraph, Wireless). 5. Fire Service. 6. Health Services. 7. Hospital Services. 8. Sanitation Services (including scavenging). 9. Public School Bus Service. 10. Civil Aviation Services (including all services provided by a commercial airline the majority of the aircraft of which are registered in Trinidad and Tobago or are owned by citizens of Trinidad and Tobago or by a company incorporated in Trinidad and Tobago, aircraft maintenance, refuelling and ramp services, air traffic control and meteorological services and airline catering services).

But that is not the end of the matter. Section 69 (1) of the IRA states: “The following persons shall not take part in any industrial action: action. (a) members of the Public Service in Trinidad and Tobago (b) members of the Prison Service of Trinidad and Tobago; (c) members of the Fire Service of Trinidad and Tobago; (d) members of the Teaching Service; and (e) members of the staff and other employees of the Central Bank, established by the Central Ch. 79:02 Bank Act.”

The inevitable conclusion is that the legislation attempts to codify and regulate on the industrial relations front the imbalance of power in the employer/worker relationship. But the reality is that the employer/worker power relationship is not a stable one and is always in a state of flux governed more by subjective factors dealing with the strength of solidarity among the workers; whether they are organised or, more importantly, whether they have organised themselves; whether they have a trade union history/presence.

It means that at the point of production where the employer/worker interplay is sharpest, the methods of struggle, the tactics employed by both sides, the dynamics of the relationship have far outstripped the ability of the law to regulate and direct that relationship.

If we accept the ILO’s position that workers have the right to withhold their labour, then we have to recognise that attempts, legislative or otherwise, to obstruct the exercise of that right are themselves illegal and the attitude of organised workers has to privilege the pursuit of their interests as workers over worship of and obedience to the law.

ESSENTIAL INDUSTRIES


According to the ILO, Article 2 Convention 87 - Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87): “Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.” 

The Government of the Republic of Trinidad and Tobago ratified Convention 87 on 24th May 1963. By ratifying a Convention, a Government is confirming that its domestic legislation is consistent with the principles of the Convention.

The IRA defines a category called “essential industries” which by any standard, violates this convention and any accepted constitutional definition of Freedom of Association.

The following are described as “essential industries” according to the First Schedule of the Industrial Relations Act:

1. Electricity Service (Generation, Transmission and Distribution) 2. Water and Sewerage Services. 3. Fire Service 4. Health Services 5. Hospital Services 6. Sanitation Services (including scavenging) 7. Oil, Gas, Petrochemicals (Exploration, Exploitation, Refining, Manufacture, Distribution, Marketing) 8. Port Operations (Dock and Harbour, Cargo Handling, Ship Building and Repairing) 9. Sugar (Cultivation, Manufacture, Refining) 10. Communications, internal and external (Radio, Telephones, Telegraph, Television, Wireless) 11. Public Bus Transport Services (including Public School Bus Service) 12. Civil aviation services (including all services provided by a commercial airline the majority of the aircraft of which are registered in Trinidad and Tobago or are owned by citizens of Trinidad and Tobago or by a company incorporated in Trinidad and Tobago, aircraft maintenance, refuelling and ramp services, air traffic control and meteorological services and airline catering services) 13. The iron and steel industry

The relevance of The First Schedule is determined by Section 38 (4) of the Act which says:

“... no application for certification of recognition under this Part shall be considered where the application relates to workers comprised in a bargaining unit in one category of essential industries and the claimant union is already certified as the recognised majority union for workers comprised in a bargaining unit in another category of essential industries.”

Workers in essential industries cannot join a trade union that already organises workers in other essential industries

It is interesting to note that the iron and steel industry was added as recently as 1980, specifically in response to the establishment of what was then ISCOTT, It forced those workers to form a new union – the Steel Workers Union of T&T.

When un-organised workers in an essential industry want to join a trade union, they have these limited choices: join a trade union that is already recognised in that essential industry category; join a trade union that does not have any bargaining units in an essential industry category; form a new trade union. This means that they may HAVE to join a union that they do not really wish to join, but have no choice if they are to unionise It would limit the choice of union to that already recognised in the essential industry category.

They may join a trade union that does not have any bargaining units in an essential industry category. The number of unions falling into this category would seem to be limited. The irony, of course, is that once one of these non-essential industry unions acquires a bargaining unit in an essential industry it is then boxed into that category.

They may form a new trade union. Forming and registering a trade union under the Trade Union Act Chapter 88:02 is not a difficult process, Building a trade union is a formidable task. A new union would have little in the way of resources – especially until it established recognition. Such a union would likely have no office, no full-time staff, no ability to employ lawyers or other advisers or undertake research. Effectively, such a union is likely to be an in-house organisation with all the weaknesses that that entails.

Although the freedom to form and join a new trade union is not restricted by the IRA, looked at in terms of giving workers the organisational strength necessary to impact on the balance of power between workers and their employer, it is a challenging but surmountable task

DECERTIFICATION

The Workers Agenda talks about the excision from the IRA of the provision which allows an employer to seek decertification of trade unions. The IRA has provision for the employer to initiate a process of decertifying a recognised majority union in cases of illegal industrial action. The trade union movement has long clamoured for the removal of that provision.

The inequity between employers and workers is clear, because while an employer could be found guilty of illegal industrial action, he cannot be decertified from his status as an employer! During the last Manning administration, attempts were made by PTSC and TSTT to decertify the TIWU and the CWU respectively.

THE RECOGNITION BOARD

The trade union movement has been calling for large scale reformation of the recognition process. Three (3) months should be the upper limit for the determination of recognition claims which are made to the Registration, Recognition and Certification Board, a creature of the IRA. The present requirement of fifty-one percent (51%) membership of workers in one particular union for that union to obtain recognition by the Recognition Board should be no more than twenty percent (20%);.

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. The longer the process lasts, the more organisers and members of the union are at risk of being victimised.

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.”

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; it took MPATT ten years to gain RMU status for the doctors in the South West Regional Health Authority; BIGWU had to struggle for five years to gain recognition for Central Bank workers; Royal Bank is a saga of its own...

What 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.

What is it that takes the Board so long to make a simple determination? 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, whether by pay grade or occupational classification or otherwise. 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))

The real problem is how the secretariat of the Board has interpreted and carried out its legislated function. 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.

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. The Union has to go through convoluted procedures when making an application Such as submitting union minutes, bank statements, receipt books, accounts have to be produced for inspection.

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 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 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?

The National Workers Union has proposed, in the past 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 because trying to organise an employer with many outlets and turnover of workers is extremely difficult; 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.

On top of all these endemic obstacles, the indomitable Don Quixote sitting in the Ministry of Labour refused to appoint the Recognition Board for more than a year.

The trade union movement, if it has to deal with judges, prefer to deal with judges who are not themselves concerned about their own job security and who depend upon politicians for having their contracts renewed.

We have long argued for the power to appoint judges to be carried out by a body independent of cabinet and that they should be given security of tenure including being eligible for pensions.

WHO IS A WORKER? 

We have long argued against employers being able to use provisions related to “worker in good standing” and “worker within the meaning of the Act” to delay and prevent trade unions from representing individual workers, who come from a non-unionised environment.

There is no corresponding regulation that empowers the recognition board from examining the financial relationship between a consultant and the company he represents. Another example of class bias!

The trade union movement has long argued that the exclusion of some categories of workers from being defined as “workers” is a scandal of gargantuan proportion and has called for domestics, gardeners, drivers, etc. to be included in the definition of “worker”, particularly so since the government voted for ILO Convention 189 which campaign for ratification was led by the National Union of Domestic Employees.

Public servants, teachers, firemen, prison officers etc. are for purposes of the IRA also not defined as workers.

Ċ
Gerry Kangalee,
30 May 2015, 08:51
ċ
a look at thr IRA amendment bill.pub
(344k)
Gerry Kangalee,
30 May 2015, 08:42
Comments