A letter to the editor in one of Thursday’s newspapers was headlined “Confused by judge’s advice to TTUTA”.
The writer admitted to being puzzled by the advice given in a recent judgment of the High Court that the dispute over whether teachers should be paid for marking school-based assessments (SBAs) should be dealt with by the Special Tribunal “of the Industrial Court”, not the High Court since issues relating to the contractual obligations of teachers were “in essence a labour dispute”.
The predicament, the writer explains, comes from her understanding that the Industrial Relations Act excludes teachers from the definition of “worker” and therefore their labour disputes cannot be adjudicated upon by the Industrial Court.
The writer asks if teachers can take their complaints of unfair dismissal or retrenchment to the Industrial Court.
At the heart of the confusion for the letter-writer, and in the minds of many who are familiar with the Industrial Court, is the fact that the Special Tribunal which adjudicates on certain labour disputes involving public officers and their associations is composed of members of the Industrial Court.
The Special Tribunal is established by the Civil Service Act, section 21. It is included in the Education Act in sections 69-71 and in the definitions at section 2 of that Act.
Its function is to “hear and determine any disputes referred to it”. The disputes here are disputes between the Chief Personnel Officer and the recognised association.
The CPO negotiates terms and conditions of employment with TTUTA, for example, So, disputes to be determined by the Special Tribunal concern the negotiation and application of terms and conditions for teachers. The awards of the ST are for a period of at least five years.
The Special Tribunal does not deal with “unfair dismissal or retrenchment” which the writer asked about.
The Service Commission, not the CPO, deals with appointments, transfers, promotions, discipline and termination of teachers (as with the current situation at Tranquillity Primary). Any dispute involving the dismissal or retrenchment of teachers is adjudicated on by the High Court in judicial review proceedings, not by the Special Tribunal.
Section 21 (1) of the Civil Service Act says the Special Tribunal “consist of the chairman of the Essential Service Division of the Industrial Court and two other members of that division selected by him”.
The Special Tribunal could have been composed of other members. However, since the Industrial Court already existed and dealt with industrial relations disputes, the Tribunal was composed of some of its members (judges).
Section 21 (5) also empowers the Tribunal to “provide its own procedure...” for dealing with disputes before it. It has adopted the procedures of the Industrial Court since its members are of the court.
The writer is correct—teachers are excluded from the definition of “worker” under the Industrial Relations Act (IRA) and their labour disputes are not adjudicated by the Industrial Court in a strictly legal sense.
However, since the Tribunal is composed of members of the court, only disputes under the purview of the CPO are determined by the Tribunal, in the Industrial Court and using its procedures.
As I pointed out in a letter to the newspapers in October 1991, “In judgment on matter No. 225 of 1989 (dealing with the ten per cent pay cut) Justice A Warner says categorically on page 34, “An award of the Special Tribunal is not an award of the Industrial Court”.
He went on to say: “The absence from the Civil Service Act of provisions for the enforcement of (Special Tribunal) awards is in contrast with the presence in the Industrial Relations Act of provisions for the enforcement of the orders or awards of the Industrial Court”. (pg. 34 of HCA No. 225/89).
I hope that this helps the writer and others to understand that while the Special Tribunal is related to the Industrial Court because of its composition, and is referred to in section 4 (2C) of the IRA as “..established by the Civil Service Act, …shall hear and determine disputes ..as if those disputes arose in essential services”, it does not determine disputes under the jurisdiction of the Service Commissions, including the Teaching Service Commission.
Pay issues like the SBA matter that the judge advised should be taken to the Special Tribunal are not for the High Court.
It is understandable that the writer’s questions arise since the fact that the HR functions in the Public Service are split between the Service Commission and the CPO, unlike a private organisation with a single HR department which deals with all industrial relations matters.