Diana Mahabir-Wyatt

CONFUSION greeted reports that appeared in most of the daily papers last week about the interpretation of an award delivered by the Industrial Court in Complaint no. GSD-IRO 36 of 2018 between OWTU and Trinidad Cement Ltd.

It happens from time to time when laypeople, whether press reporters, newspaper readers, management, employees or other members of a workforce read newly published laws, court documents or academic reports.

It is worth noting at this juncture that other than in a wholly owned small business, managers, like the rest of the staff, are just employees. This is what makes the industrial relations and human resource management approaches in family businesses different from those of large corporations.

In this case, however, the confusion came not so much from the categorisation of employees, but somewhere between the writing of the award, the synopsizing of it in the press report, and the readers seizing on what was perceived as something new and perchance, as Shakespeare might have said, bemusing. Or puzzling in ordinary parlance.

The confusion arose over a perception that the court’s reprimand of the company was for what appeared to be over-compensating its retrenched employees by giving them the greater severance benefit than what was in their collective agreement instead of the lesser benefit allocated by the Retrenchment and Severance Pay Act. Could that really be possible?

The Act says when retrenchment is inevitable, employees must be given 45 days’ notice. That is indisputable. But as custom and practice have it, and as the collective agreement stated, this can be: “Notice or payment in lieu of.”

The collective agreement, which was agreed and signed by both the company and the union, “by mutual consent” granted retrenched workers 50 days’ notice or payment in lieu of – a much more lucrative payment. And let us face it, when a worker is retrenched, she (or he as the case may be) can use that extra pay in order to buy the yearly more expensive books for children or to set up a new enterprise or find another job that will support the family.

So confusion reigned. Why did the court, which registered the collective agreement, giving it the force of law according to our understanding of section 47 of the IRA, not notice the discrepancy in the first place, and let the parties know it was objectionable before it was registered?

The judgment uses the term “trite law” to imply that everyone should know that, as my legal advisor said, “a superior court authority has previously ruled” on the matter. In this case that employers must naturally be aware that in any circumstance, the letter of the law must be followed to the letter.

The Retrenchment and Severance Benefits Act states, in Section 18(2) that if the collective agreement gives sums that are “no less favourable” than the law, the amount in the collective agreement must stand, which sounds like common sense.

This is preceded at Section 17, by the words: “By mutual consent, the parties to a collective agreement may adopt a procedure other than that prescribed in this Act” with two provisos, that the minister must be informed in writing and that a notice period must be stipulated.

Well, the collective agreement stipulates a 50-day notice period or 50 days’ pay in lieu thereof, but no stipulation that the minister be informed which is not usually inserted in agreements anyway. Since the collective agreement was sent by the ministry under Section 45, to be registered by the court, it may not be unreasonable to expect that both Ministry of Labour and the court had read the document they registered?

However the award says, and I respectfully quote: “It is settled law that where there are clauses in consent agreements which are unlawful and contrary to law and public policy such clauses render the agreement or the term in the agreement void.” And it goes on to emphasise that: “It is trite law (don’t you love that term?) that legislation enacted by Parliament cannot be negotiated, altered or waived during the collective bargaining process unless the legislation specifically provides for such alteration.”

The court ordered the company and the union to go back and re-negotiate that particular clause in the collective agreement on the grounds that the notice period in the agreement does not tally with the notice required by law.

While the common human being without a law degree has been saying “But, but, but, but…the collective agreement does say 50-days notice!”

But they have not perceived that the workers must be given notice as well as “payment in lieu of notice” because the Act does not say “or payment in lieu of notice”, only “45 days notice”. So why does it appear that the OWTU, which prides itself on equity and fairness, wanted to get both the pay and notice in the Act as well as that which they themselves negotiated in the collective agreement to be better than that in the Act?

If the above reasoning puzzled you, chances are that you do not have a degree in legal drafting, and are simply an old fashioned industrial relations practitioner who thinks that mutual consent and a registered agreement are all you need. Shame on you.

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