Instructions: Please Summarize the case study 'The adjudication in industrial disputes-the case of Trinidad and Tobago' in 3 pages.

A stable industrial relations climate is vitally important for the economic growth of any country. The peaceful settlement of industrial disputes is, therefore, of critical importance in maintaining a stable industrial relations climate. It is no less important than settling other civil disputes.

In 1965, Trinidad and Tobago made a conscious and deliberate decision to drastically overhaul its system for the resolution of industrial disputes. The reason for this overhaul was because the entirely voluntary system of industrial disputes (the previous system) had ceased to be effective in securing the peaceful resolution of such disputes. It therefore enacted the Industrial Stabilisation Act, 1965, (the ISA) which was later repealed and replaced by the Industrial Relations Act, 1972 (the IRA)1 .

Industrial Action

Under the previous system, there was no legal prohibition against industrial action and employers and trade unions were free to embark on industrial action if they failed to settle their disputes bilaterally, and trade unions frequently employed this approach. The ISA, however, curtailed the freedom to strike and provided for orderly and sensible procedures for the settlement of disputes between employers and trade unions. It also established an Industrial Court to hear and determine unresolved disputes that were reported to the Minister of Labour.

During the five-year period immediately preceding the enactment of the ISA, Trinidad and Tobago experienced an avalanche of industrial action and its horrific effects2 . 230 strikes occurred during that period, an average of 46 per year. In 1962 alone, 75 strikes took place. 74,574 workers, an average of 15,000 per year, participated in these strikes. Of these 74,574 workers, 10,480 were employed in the sugar industry, 23,860 in the oil industry, 7,443 in construction, 8,461 in electricity, gas, water, and sanitary services, and 6,199 in transport, storage and communication. 803,899 work-days, an annual average of over 100,000, were lost as a result of these strikes. 144,363 work-days were lost in the sugar industry, 28,601 in the oil industry, 47,441 in construction, 20,114 in electricity, gas, water, and sanitary services, and 137,462 in transport, storage and communication. Workers lost a considerable amount of wages and the national treasury also suffered losses in revenues consequent upon the reduction in income and profit, taxes and indirect taxes and royalties.

The strikes were instituted mainly over such issues as recognition of trade unions, grievances, the negotiation or revision of collective agreements and sympathy strikes.

The result was chaos and confusion in industrial relations. Th rocess of collective bargaining was frustrated and the industrial relations system was seriously challenged. Trade unions did not hesitate to use the ultimate weapon of strike to settle even the simplest disputes; however as noted:

A strike or lockout ... necessarily involves so much dislocation of industry; so much individual suffering; so much injury to third parties, and so much national loss, that it cannot, in my opinion, be accepted as the normal way of settling an intractable dispute ... I cannot believe that a civilised community will permanently continue to abandon the adjustment of industrial disputes and, incidentally, the regulation of the conditions of life of the mass of the people to, what is in reality, the arbitrament of private war. (Sydney Webb in his memorandum annexed to the Report of the Commission of Enquiry which led to the Trade Disputes Act, 1906, U.K.).

The Government of the day reacted to this situation by introducing legislation for the compulsory adjudication and determination of unresolved labour disputes by judicial process, and created the new system.

Benefits of the New System

This new system brought many benefits to workers, trade unions and employers as well as to the community as a whole.

The benefits included provisions for the compulsory recognition of trade unions, registration of collective agreements, an orderly system for the resolution of trade disputes and the establishment of an Industrial Court. These were all measures designed to ensure peace and stability in industrial relations.

In the First Annual Report of the President of the Industrial Court, Justice Isaac Hyatali emphasized the advantages of judicial machinery to settle trade disputes. After referring to the number of trade disputes that had been referred to the Court between April 24, 1965 and April 18, 1966, Hyatali, P. observed:

In the ordinary course this would probably have resulted in an almost equal number of stoppages of work in a variety of industries and undertakings throughout the nation. The extent to which our small country ... would have been paralysed by so many strikes in a single year and the extent to which the well-being of our citizens, the stability of the country and the public welfare would have been damaged or destroyed are better left to the imagination since they are incapable of precise calculation.

The compulsory, expeditious, and if I may venture to say, just settlement of trade disputes in a peaceful and orderly manner has rescued the country from the crippling catastrophes which so many stoppages of work would otherwise have inflicted upon it. It is a comforting thought that both the essential interests of the country and the vital principle of social justice for its workers have been served and advanced by the enactment of the legislation and the due administration of its provisions and this lends support to the observation that the wisdom which inspired the establishment of a judicial system to stabilize the industrial life of the nation cannot now be questioned.

Recognition of Trade Unions

The foundation of the right of a trade union to represent workers in any undertaking is recognition by the employer. Recognition as a bargaining agent is a condition precedent to entering into a binding collective agreement with an employer. As the Judicial Committee of the Privy Council observed in Collymore and Another v Attorney General of Trinidad and Tobago:3 Recognition by the employer must be obtained as a prelude to collective bargaining.

Under the previous system, employers and trade unions were at liberty to agree on terms of employment, which were included in individual contracts of employment. Where the workers of an employer organized themselves into or joined a trade union and such trade union made a claim for recognition on that employer, there was no legal requirement that the employer should grant that trade union recognition or deal with it. Very few employers voluntarily recognized trade unions for the purposes of collective bargaining. In the majority of instances, employers recognized trade unions as bargaining agents for their workers only after such trade unions took industrial action.

The record of industrial relations in Trinidad and Tobago is replete with numerous instances of absolute refusal by employers to accord formal recognition to trade unions representing workers. Recognition meant restrictions on the freedom of employers to determine and regulate the terms and conditions of employment of their employees. It led to the negotiation of collective agreements that imposed limitations on the unrestricted exercise of the employers common law rights. Employers, therefore, granted recognition to trade unions with great reluctance and after much resistance. Recognition was granted only as a last resort and even after recognition was granted employers continued to regard the trade union with suspicion. In any event, disputes over recognition not only consumed much time, but very often led to a souring of the relations between workers and employers to the detriment of good industrial relations. In Beetham and Another v Trinidad Cement Ltd.4, the Judicial Committee of the Privy Council severely criticized the Company for refusing to grant recognition to the trade union, saying, Here is this union knocking at the door of the company asking to be let in to negotiate; and the company time and time again refusing to open it, nay more, keeping it locked and barred against the union.

In presenting the Industrial Stabilisation Bill, 1965, to the House of Representatives, Prime Minister Dr. Eric Williams noted that a substantial number of the strikes and stoppages of work, which occurred during the period 1960 to 1964, concerned the recognition of trade unions.

The new system sought to redress the problem of recognition. There is now an independent Registration, Recognition and Certification Board which is comprised of a chairman and eight (8) other members nominated by employers and trade unions. The duty of the Board is to ensure that a trade union with more than fifty percent of the workers comprised in an appropriate bargaining unit as members in good standing is certified as a recognized majority union for that bargaining unit. Where a trade union is duly certified as the recognized majority union for workers in a bargaining unit, the employer must recognize that trade union as the recognized majority union and the recognized majority union and the employer shall, subject to the IRA, treat and enter into negotiations in good faith with each other for the purposes of collective bargaining. A recognized majority union or an employer that fails to comply with this section is guilty of an industrial relations offence and liable to a fine of four thousand dollars.

Freedom of Association

The IRA not only accepts the principle of freedom of association. Section 2. (7) of the IRA declares: Nothing in this Act shall be construed so as to abrogate, abridge or infringe the principle of freedom of association, whether of workers or of employers in trade unions or other associations or organisations, respectively, but also enshrines certain rights of workers concerning their trade union membership and activities. Section 71 of the IRA states:

Every worker as between himself, his employer and coworkers shall have the following rights, that is to say

a. the right to be a member of any trade union or any number of trade

unions of his choice;

b. the right not to be a member of any trade union or other organization

of workers or to refuse to be a member of any particular trade union or

other organization of workers;

c. where he is a member of a trade union, the right, subject to this Act, to

take part in the activities of the trade union (including any activities as, or with a view to becoming an official of the trade union) and (if appointed or elected) to hold office as such an official.

There are also provisions in the IRA prohibiting employers from victimising workers on account of their trade union activities Section 42 of IRA states, .

An employer shall not dismiss a worker, or adversely affect his or alter his position to his prejudice, by reason only of the circumstance that the worker

a. is an officer, delegate or member of a trade union;

b. is entitled to the benefit of an order or award under this Act;

c. has appeared as a witness or has given any evidence in a proceeding under this Act; or has absented himself from work without leave after he has made an application for leave for the purpose of carrying out his duties as an officer or delegate of a trade union and the leave has been unreasonably refused or withheld.

An employer shall not

a. make the employment of a worker subject to the condition that he

shall not join a union or shall relinquish trade union membership;

b. dismiss or otherwise prejudice a worker by reason of union

membership or because of participation in union activities outside

working hours;

c. with intent to dissuade or prevent the worker from becoming

such officer, delegate or member or from so appearing or giving evidence, threaten to dismiss a worker, or to affect adversely his employment, or to alter his position to his prejudice by reason of the circumstance that the worker is, or proposes to become an officer, delegate or member of a trade union or that the worker proposes to appear as a witness or to give evidence in any proceeding under this Act.

In Collymore and Abraham v The Attorney General5, the Judicial Committee of the Privy Council observed that a similar provision for the compulsory recognition of trade unions in the ISA: strengthens the position of trade unions in relation to collective bargaining by imposing on employers an obligation to recognize and negotiate with a union representing 51 per cent or more of his workers.

Prior to the new system, collective agreements in Trinidad and Tobago had no legal force and both employers and trade unions violated them without compunction. This was because of the common law under which collective agreements were binding in honour only. As Professor Kahn-Freund 6 observed:

In the long history of British collective bargaining it does not ever seem to have happened that either a trade union or an employer or an employers association attempted to prevent the violation of a collective agreement by an action for an injunction or to seek compensation by an action for damages. The reason can certainly not be found in the absence of such violations ... The true reason for the complete absence of any attempts legally to enforce the mutual obligations created by collective agreements can, in the writers opinion, only be found in the intention of the parties themselves. An agreement is a contract in the legal sense only if the parties look upon it as something capable of yielding legal rights and obligations. Agreements expressly or implicitly intended to exist in the social sphere only are not enforced as contracts by the courts. This appears to be the case of collective agreements. They are intended to yield rights and duties but not in the legal sense; they are intended, as it is sometimes put, to be binding in honour only, or (which amounts to very much the same thing) to be enforceable through social sanctions but not through legal sanctions.

In a Paper entitled, A Law for Peace, Order and Good Government, Hyatali, P. explained the difference in treatment of collective agreements between the previous and new systems saying:

With respect to the observance of collective agreements it is to be noted that as such, they have never been legally enforceable because the means by which they came into being were such that it could not be said that the parties intended that they should have legal effect. Consequently, the weapon of economic coercion had to be brandished and used if necessary to secure their enforcement. Now, however, no weapon need be brandished. The Act solves the problem of enforcement by providing machinery for the registration of collective agreements and for making them legally enforceable as between the immediate parties thereto as well as their successors and assigns. The obvious advantages which accrue to both trade unions and employers in consequence of these provisions amply justify the conclusion that the processes of collective bargaining in relation to the enforcement of collective agreements have been advanced and fortified by the Act.

The terms and conditions of a collective agreement registered in the Industrial Court are binding on the parties and are directly enforceable in the Court. The Industrial Court may make orders interpreting and applying the provisions of collective agreements. The new system thus gives a new respected status to registered collective agreements.

The new system also provided orderly procedures for the settlement of trade disputes. Trade disputes were traditionally settled either by strike or lockout action or by the appointment by the Governor of an Arbitration Tribunal or a Board of Inquiry pursuant to the Trade Disputes Arbitration and Inquiry Ordinance which was repealed by the ISA. The new system substituted compulsory adjudication of unresolved disputes for the previously unsatisfactory means of resolving trade disputes by industrial action and established a permanent Industrial Court for this purpose.

The Industrial Court

The Industrial Court of Trinidad and Tobago, which the ISA established, continues under the IRA. The Industrial Court is a superior court of record and the Court possesses all the powers inherent in such a court as well as the jurisdiction and powers conferred on it by the IRA.In a Paper entitled A Law for Peace, Order and Good Government Hyatali, P. correctly described the status of the Industrial Court when he wrote,

The Court is a superior court of record and has all the powers inherent in such a court. This means that it has a status equivalent to that of the High Court of Justice and that, by virtue of being a superior court, the President and all members thereof enjoy absolute immunity from any suit or proceedings in respect of anything done or omitted to be done in the course of their duties.

The Industrial Court has all the powers, rights and privileges which are vested in the High Court of Justice in relation to an action concerning the attendance and examination of witnesses, the production and inspection of documents, the enforcement of its orders and other matters necessary or proper for the due exercise of its jurisdiction 7. The principal role of the Court is to hear and determine unresolved disputes and other differences which arise between trade unions and employers under the Industrial Relations Act, Chap. 88: 01, the Retrenchment and Severance Benefits Act, 1965, the Maternity Protection Act, 1998 and the Minimum Wages (Amendment) Act, 2000.

In a case before it, the Industrial Court must make a decision that is fair and just, not only to the worker or workers involved, but also to the trade union and the employer concerned as well as the community as a whole. The Court is required to act in accordance with equity, good conscience and the substantial merits of the case before it, having regard to the principles and practices of good industrial relations. This provision in the IRA liberates the Industrial Court from slavishly following the common law in determining cases before it Section 10. (3) of the IRA states:

Notwithstanding anything in this Act or in any other rule of law to the contrary, the Court in the exercise of its powers shall

a. make such order or award in relation to a dispute before it as it considers fair and just, having regard to the interests of the persons

immediately concerned and the community as a whole;

b. act in accordance with equity, good conscience and the substantial

merits of the case before it, having regard to the principles and practices of good industrial relations.

In determining cases, the Industrial Court must also take into account the interest of the community as a whole. An Australian judge, Justice Isaacs 8, has suggested that the real justification for the existence of labour courts is not merely for the purpose of deciding disputes between two contesting parties, but to safeguard the interest of the community when such disputes threaten to interrupt the flow of goods and services to it.

Composition of the industrial Court

The Industrial Court consists of:

a. a President who must be either a Judge of the Supreme Court of

Judicature designated with his consent by the President of Trinidad and Tobago after consultation with the Chief Justice or a person who has the qualification with the exception of age to be appointed a Judge of the Supreme Court of Judicature and is appointed by the President of Trinidad and Tobago after consultation with the Chief Justice;

b. a Vice President, who must be an Attorney at Law of not less than ten (10) years standing;

c. a Chairman, Essential Services Division; and

d. other members (currently 18 ordinary members) who have been

appointed from persons experienced in industrial relations or qualified as economists or accountants or attorneys at law of not less than five years standing.

Jurisdiction of the Court

The Court possesses both inherent and statutory jurisdiction. In addition to the powers inherent in it as a superior court of record, the Court has jurisdiction:

a. to hear and determine trade disputes;

b. to register collective agreements and to hear and determine matters relating to the registration of collective agreements; c. to enjoin a trade union or other organisation of workers or other persons or an employer from taking or continuing industrial action;

d. to hear and determine proceedings for industrial relations offences

created by the IRA;

e. to hear and determine applications for the interpretation and

application of registered collective agreements;

f. to hear and determine any other matter brought before it in

accordance with the provisions of the IRA;

g. to hear and determine cases under the Retrenchment and Severance

Benefits Act, 1985;

h. to hear and determine cases under the Maternity Protection Act,

1998: and

i. to hear and determine cases under the Minimum Wages

(Amendment) Act, 2000.

The IRA also allows for conciliation by a Member of the Court

before a dispute is sent for hearing and determination in open court.

Notwithstanding any rule of law to the contrary, the Industrial Court may, in any dispute concerning the dismissal of a worker, order his re- employment or re-instatement in his former or a similar position, subject to such conditions as the Court thinks fit to impose. The Court may order re-instatement or re-employment where a worker, in the opinion of the Court, has been dismissed in circumstances that are harsh and oppressive or not in accordance with the principles of good industrial relations practice.

The Court may also order the payment of compensation or dam- ages to such a worker, whether or not in lieu of his re-employment or re-instatement, or the payment of exemplary damages in lieu of such re-employment or re-instatement. Where the Court makes an order for the payment of compensation or damages to a dismissed worker, the Court is not bound to follow any rule of law for the assessment of compensation or damages and the Court may make an assessment that, in its opinion, is fair and appropriate.

The opinion of the Court as to whether a worker has been dismissed in circumstances that are harsh and oppressive or not in accordance with the principles of good industrial relations practice, and any order of the Court for compensation or damages, including the assessment of such compensation or damages, is not appealable or challengeable or reviewable nor may it be quashed or called into question in any court on any account.

Appeals

Subject to certain specified exceptions, the hearing and determination of any proceedings before the Court, and an order or award or any finding or decision of the Court in any matter (including an order or award):

a. shall not be challenged, appealed against, reviewed, quashed or called in question in any court on any account whatever; and

b. shall not be subject to prohibition, mandamus, or injunction in any court on any account whatever

Subject to the provisions of the IRA, any party to a matter before

the Court is entitled, as of right, to appeal to the Court of Appeal on any of the following grounds, but no other:

a. that the Court had no jurisdiction in the matter. The Court of Appeal

may not entertain such a ground of appeal unless objection to the jurisdiction of the Court has been formally taken at some time during the course of the hearing of the matter before the Court has made an order or award;

b. that the Court has exceeded its jurisdiction in the matter;

c. that the order or award has been obtained by fraud;

d. that any finding or decision of the Court in any matter is erroneous

in point of law; or

e. that some other specific illegality not mentioned in (a) to (d), and

substantially affecting the merits of the matter, has been committed in the course of the proceedings.

On the hearing of an appeal from the Court in any matter, the Court of Appeal is empowered -

a. if it appears to that Court that a new hearing should be held, to set

aside the order or award appealed against and order that a new

hearing be held; or

b. to order a new hearing on any question without interfering with the

finding or decision of the Court on any other question;

c. to make such final or other order as the circumstances of the matter

may require; d. to dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred although it is of the opinion that any point raised in the appeal should have been decided in favour of the appellant.

The services of the Industrial Court are available free of charge to trade unions and employers. No fees such as are payable in the High Court of Justice on the filing of process in that Court are payable by the parties to trade disputes or other proceedings in the Industrial Court. The expenses incurred in the operation of the Court are borne wholly by the State.

If the parties retain attorneys at law or other professionals to assist them in the conduct of their cases before the Court, they must pay them out of their own resources. For the preservation of industrial peace and stability in the country, it is preferable for the State to maintain the Court at public expense rather than permit trade unions and employers to settle their disputes by what has been appropriately described as private warfare, i.e. strikes and lockouts. The Industrial Court plays an essential and pivotal role in safeguarding the economy of the country as a whole by maintaining industrial peace.

There is no doubt that the new system brought a substantial measure of stability to industrial relations in Trinidad and Tobago. Both trade unions and employers prefer to utilize the procedures in the IRA for settlement of their disputes instead of resorting to industrial action. The judgments of the Industrial Court are well respected and constitute a body of principles that are used by employers, trade unions and workers for guidance in their daily relations.

CARICOM

There is no uniform system for the settlement of labour and employment disputes in all CARICOM states. Trinidad and Tobago is the only CARICOM country where such disputes are heard and determined by a superior court of record. There is an Industrial Court in Antigua and Barbuda but it is not a superior court of record. Some other states have industrial tribunals.

There is no valid reason why industrial disputes should not receive the same kind of attention as other types of civil disputes. Of course, economic factors as well as the number of disputes occurring will determine the quality and nature of the tribunal required. There is, however, an opportunity to establish an itinerant Industrial Court with a status similar to the Caribbean Court of Justice in its original jurisdiction to hear and determine labour and employment disputes in all CARICOM countries. This Court could be a branch of the Caribbean Court of Justice.