Labour pains

Petrotrin vs OWTU

Just like spectators at a Soca Warriors football match, Cecil Bernard, president of the Industrial Court said corporate spectators at company court hearings have no interest in the main purpose of the hearing — the resolution of the dispute.

Their interest, he said, lies in the actual battle itself.

He said, if it could, the court would put in an entrance fee to its hearings, set up a ticket booth with a little window just big enough for the exchange of ticket and money, with no possibility of seeing the person to whom payment is made.

“You see, open hearings are spectator sports.”

“What they have an interest in is the contest itself – mentally noting if the referee is good, if the side they oppose score an own goal, if fouls are committed and if the lawyer gets caught offside.”

He said in such arena, nothing like resolution of a dispute is in anybody’s mind, noting it is the contest that counts. “All that is missing is the Mexican wave. Is that really how we want to settle disputes?” he told business executives at a presentation titled, “Recent Trends and Current Developments in Indistrial Developments in TT.”

In his address, Bernard said certain novel work relationships were now coming before the court. The court was witnessing the introduction of the CSME and the relatively free movement of certain categories of employed persons within the region. “Their status as workers may well prove challenging to the Court,” he said, adding the status of persons from abroad who are employed in large numbers in the building industry could also prove a problem.

“It may well be that their contracts of employment were negotiated in distant lands and are governed by legal systems with which our judges are not familiar. It may well be that their employer is a foreign national, resident in a foreign country and that their contracts of employment are written in a language which cannot be understood by our judges. It may even be that they are employees of a foreign government. It may well be that such persons cannot be disciplined by their local bosses, or, if they can be, their contracts may put them outside of the definition of “worker” under our law.”

He then asked, “Are there workers in Trinidad and Tobago who are outside of the jurisdiction of the Industrial Court or for the interpretation of whose contract of employment we must import a foreign law element?”

He said in one case before the Court, a worker from Trinidad was employed by a multi-national corporation and was sent abroad to work in a foreign country in which the multi-national corporation has an office. A dispute, he said, has now arisen over the alleged termination of his services.

He said judges might have to re-tool their expertise to accommodate the requirements of the modern movement of labour and must now bear in mind that the importation of labour may imply the importation of international treaty obligations as well as other aspects of international law.

How is such training to be approached? He took the view that it is up to the stakeholders to insist that our judges be adequately trained and “that we be fired if we prove unequal to the task.” But, he added, for those judges who meet the requirements of the modern labour court “there should be the assurance of secure tenure.”

Also, he said it is becoming quite common place for the court to be asked to order the enhancement of an offer made by an employer to workers as an inducement to them to accept VSEP, as in the case of the PTSC, Caroni Limited or NBN, or in the even more recent case of the National Housing Authority, now replaced by the Housing Development Corporation.

Bernard said the court was also confronted with the question of whether consultation between unions and employees is an enforceable pre-requisite to an offer of VSEP. And profit-sharing has been canvassed as a legitimate item for inclusion in a collective agreement, he said, adding that while the Court has been asked to order its inclusion in such an agreement, he suspects that this is not the last of the argument on that issue.

A new issue for resolving disputes has been alternative dispute resolution (ADR), he said, noting that disputes would be more amenable to this method than by adjudication. “ We are thinking of enhancing our capability in the field of conciliation,” he said.

He said on the legislative front, the jurisdiction of the Court has been widened to include matters relating to minimum wages and maternity protection as well as the Occupational Safety and Health Act 2004. He said it would come as no surprise if the Industrial Court is invested with jurisdiction in matters relating to discrimination in the workplace.

“Our jurisdiction is growing,” he said.

He also raised “the question of the kind of training and the type of background that a person should have as a basis for appointment to the Court as a judge.” He wondered whether a candidate for appointment to the Industrial Court should be a person who is not only skilled in the traditional adversarial adjudicatory system but also have some notion of international trade and the relationships between trade and culture, sports and tourism, diplomacy and population size. They should, at least, he said, be familiar with the concept of globalisation and its impact.

What about training for those who appear as lay representatives to present cases on behalf of workers or employers, he said.

While the Industrial Relations Act permits a party to appear in person or to be “assisted” by an attorney or “a duly authorised representative,” Bernard said perhaps the time has come for the introduction of some form of certification for such lay persons.