Address by President of the Industrial Court Deborah Thomas-Felix, Consider debilitating effects of violence and harassment at all levels

Since the last open­ing of the law term there has been sev­er­al de­vel­op­ments in­ter­na­tion­al­ly which I be­lieve may have di­rect im­pact on the work­place glob­al­ly and in Trinidad and To­ba­go.

One such de­vel­op­ment is the new In­ter­na­tion­al Labour Or­gan­i­sa­tion’s (ILO) Con­ven­tion which was adopt­ed in Gene­va, Switzer­land, in June this year.

 

As with all con­ven­tions, this con­ven­tion will en­ter in­to force twelve (12) months af­ter two Mem­bers States have rat­i­fied it.

The Con­ven­tion, Con­ven­tion 190 ti­tled Vi­o­lence and Ha­rass­ment Con­ven­tion 2019 along with the Vi­o­lence and Ha­rass­ment Rec­om­men­da­tion No. 206 speak to the elim­i­na­tion of vi­o­lence and ha­rass­ment in the world of work.

For the first time, vi­o­lence and ha­rass­ment in the world of work are cov­ered to­geth­er in in­ter­na­tion­al labour stan­dards.

This year the ILO, marks one hun­dred (100) years as an or­gan­i­sa­tion.

 

The adop­tion of Con­ven­tion 190 with its Rec­om­men­da­tions to­geth­er with ILO’s Cen­te­nary De­c­la­ra­tion for the Fu­ture of Work are cen­tral to its cen­te­nary cel­e­bra­tions.

These two ini­tia­tives are very im­por­tant de­vel­op­ments in the world of work and the hope is that they will as­sist to guide the trans­for­ma­tion­al changes that are oc­cur­ring glob­al­ly in the work­place.

There are some key fea­tures of Con­ven­tion 190 which I will like to dis­cuss. In the past, there has not been a uni­ver­sal de­f­i­n­i­tion of sex­u­al ha­rass­ment.

How­ev­er, in Con­ven­tion 190 the term “vi­o­lence and ha­rass­ment” in the world of work is de­fined as “a range of un­ac­cept­able be­hav­iours and prac­tices, or threats there­of, whether a sin­gle oc­cur­rence or re­peat­ed, that aim at, re­sult in, or are like­ly to re­sult in phys­i­cal, psy­cho­log­i­cal, sex­u­al or eco­nom­ic harm, and in­cludes gen­der-based vi­o­lence and ha­rass­ment.”

The term “gen­der-based vi­o­lence and ha­rass­ment” is de­fined as “vi­o­lence and ha­rass­ment di­rect­ed at per­sons be­cause of their sex or gen­der, or af­fect­ing per­sons of a par­tic­u­lar sex or gen­der dis­pro­por­tion­ate­ly, and in­clude sex­u­al ha­rass­ment”.

In my re­spect­ful view, these de­f­i­n­i­tions po­ten­tial­ly cov­er phys­i­cal abuse, ver­bal abuse, bul­ly­ing and mob­bing, sex­u­al ha­rass­ment, threats and stalk­ing, among oth­er things.

The Con­ven­tion al­so takes in­to ac­count the fast chang­ing na­ture of the world of work, the ero­sion of the tra­di­tion­al em­ploy­ment con­tract and the fact that nowa­days work does not al­ways take place at a phys­i­cal work­place; so, for ex­am­ple, it cov­ers work-re­lat­ed com­mu­ni­ca­tions, in­clud­ing those en­abled by In­for­ma­tion and Com­mu­ni­ca­tions Tech­nol­o­gy.

More­over, this Con­ven­tion pro­tects per­sons in the world of work, in­clud­ing em­ploy­ees as de­fined by na­tion­al law and prac­tice, per­sons work­ing ir­re­spec­tive of their con­trac­tu­al sta­tus, per­sons in train­ing, in­clud­ing in­terns and ap­pren­tices, work­ers whose em­ploy­ment has been ter­mi­nat­ed, vol­un­teers, job­seek­ers and job ap­pli­cants, and in­di­vid­u­als ex­er­cis­ing the au­thor­i­ty, du­ties or re­spon­si­bil­i­ties of an em­ploy­er.

The Con­ven­tion ap­plies to all sec­tors, whether pri­vate or pub­lic, both in the for­mal and in­for­mal econ­o­my, and whether in ur­ban or rur­al ar­eas. The Con­ven­tion’s fo­cus on in­clu­siv­i­ty is very im­por­tant.

It means that every­one who works or is work­ing a job is pro­tect­ed, ir­re­spec­tive of con­trac­tu­al sta­tus, and in­cludes per­sons ex­er­cis­ing the au­thor­i­ty of an em­ploy­er.

In­ter­est­ing­ly, Con­ven­tion 109 ap­plies to vi­o­lence and ha­rass­ment in the world of work oc­cur­ring in the course of, linked with or aris­ing out of work: (a) in the work­place, in­clud­ing pub­lic and pri­vate spaces where they are a place of work; (b) in places where the work­er is paid, takes a rest break or a meal, or us­es san­i­tary, wash­ing and chang­ing fa­cil­i­ties; (c) dur­ing work-re­lat­ed trips, trav­el, train­ing, events or so­cial ac­tiv­i­ties; (d) through workre­lat­ed com­mu­ni­ca­tions, in­clud­ing those en­abled by in­for­ma­tion and com­mu­ni­ca­tion tech­nolo­gies; (e) in em­ploy­er-pro­vid­ed ac­com­mo­da­tion; and (f) when com­mut­ing to and from work.

We know that some groups, and work­ers in cer­tain sec­tors, oc­cu­pa­tions and work arrange­ments are ac­knowl­edged to be es­pe­cial­ly vul­ner­a­ble to vi­o­lence and ha­rass­ment; for ex­am­ple, per­sons work­ing in ed­u­ca­tion, do­mes­tic work­ers, those work­ing at night for ex­am­ple work­ers in casi­nos and fast food out­lets, in the health sec­tor or those who work in iso­lat­ed ar­eas.

Gen­der-based vi­o­lence and ha­rass­ment is specif­i­cal­ly high­light­ed in the Con­ven­tion, and the ap­proach al­so takes in­to ac­count third par­ties (e.g. clients, cus­tomers, ser­vice providers and pa­tients) be­cause they can be vic­tims as well as per­pe­tra­tors.

A very in­ter­est­ing and im­por­tant fea­ture of this Con­ven­tion is the im­pact of do­mes­tic vi­o­lence on the world of work. The Con­ven­tion has tak­en a sig­nif­i­cant step to treat with the is­sue of do­mes­tic vi­o­lence and how it has im­pact­ed not on­ly on life in the per­son­al ca­pac­i­ty, but al­so in the work­place by set­ting out prac­ti­cal mea­sures to pro­tect the vic­tim in­clud­ing leave for vic­tims, flex­i­ble work arrange­ments and aware­ness rais­ing al­though the vi­o­lence may not have oc­curred in the work­place.

This is a sig­nif­i­cant step in bring­ing do­mes­tic vi­o­lence out of the shad­ows, and en­cour­ag­ing a change of at­ti­tude to­wards this prob­lem.

I re­mem­ber in my past in­car­na­tion when I presided up­on do­mes­tic vi­o­lence cas­es, one of the first in­gre­di­ent which a vic­tim has to es­tab­lish was that there ex­ist­ed a de­gree of re­la­tion­ship be­tween the vic­tim and the of­fend­er which con­sti­tut­ed a do­mes­tic re­la­tion­ship to qual­i­fy for pro­tec­tion un­der the Act.

For vic­tims who are in “vis­it­ing” re­la­tion­ships in this coun­try, they must first es­tab­lish that the vis­it­ing re­la­tion­ship was sub­sist­ing for a pe­ri­od ex­ceed­ing twelve months be­fore they can ob­tain an Or­der of Pro­tec­tion from the Court. Many of us have spo­ken out on this is­sue in the past but this pro­vi­sion has not been amend­ed.

Now that do­mes­tic vi­o­lence is brought out of the shad­ows, and it is in­clud­ed in a Con­ven­tion which deals with is­sues at the work­place, one won­ders if the pre­scribed pe­ri­od for a vis­it­ing re­la­tion­ship, as de­fined by our Do­mes­tic Vi­o­lence Act, will be re­pealed to af­ford every vic­tim of do­mes­tic vi­o­lence pro­tec­tion un­der the law.

Fur­ther, if this coun­try rat­i­fies Con­ven­tion 109, one can on­ly hope that new leg­is­la­tion emerges which ad­dress­es all is­sues re­lat­ed to vi­o­lence and ha­rass­ment in this so­ci­ety. It is very im­por­tant, that we deeply con­sid­er the de­bil­i­tat­ing ef­fect of vi­o­lence and ha­rass­ment at all lev­els, and how vi­o­lence can af­fect pro­duc­tiv­i­ty, eco­nom­ic stag­na­tion and lead to so­cial dis­cord, whether it is vi­o­lence in the work­place, at the home, or in the street. 4 I pause to say, that if we as a na­tion seek to ad­dress the prob­lem of vi­o­lence and hu­man se­cu­ri­ty in the coun­try, we may want to ex­am­ine the is­sue of in­clu­sion.

In­clu­sion is the on­ly sure and safe path­way to a peace­ful Trinidad and To­ba­go; ex­clu­sion, on the oth­er hand, is a dan­ger­ous path which can on­ly lead to a vi­o­lent and chaot­ic so­ci­ety. The sec­ond ini­tia­tive which is of im­por­tance to us, is the ILO’s Cen­te­nary De­c­la­ra­tion for the Fu­ture of Work, 2019.

It has been stat­ed that this De­c­la­ra­tion draws in­spi­ra­tion from the ILO’s found­ing prin­ci­ples to re­new the so­cial jus­tice man­date and rein­vig­o­rate the ILO to shape a fu­ture of de­cent work for all. As we know, the world of work is ex­pe­ri­enc­ing trans­for­ma­tive changes, dri­ven by tech­no­log­i­cal in­no­va­tions, de­mo­graph­ic shifts, cli­mate change and glob­al­i­sa­tion. Those changes to­geth­er with labour mar­ket frag­men­ta­tion, the emer­gence of the GIG plat­form econ­o­my and crowd­work, the care econ­o­my and the green/blue econ­o­my are part of the fu­ture of work.

In re­sponse to these chal­lenges, a Cen­te­nary De­c­la­ra­tion for the Fu­ture of Work was adopt­ed in this year at the 108th ses­sion of the In­ter­na­tion­al Labour Con­fer­ence.

There are two ap­proach­es; a hu­man cen­tred ap­proach and a call to ac­tion. The “hu­man-cen­tred ap­proach” fo­cus­es on three ar­eas of ac­tion name­ly: (i) in­creas­ing in­vest­ment in peo­ple’s ca­pa­bil­i­ties, (ii) in­creas­ing in­vest­ment in the in­sti­tu­tions of work, (iii) In­creas­ing in­vest­ment in de­cent and sus­tain­able work.

The De­c­la­ra­tion is­sues a call to ac­tion for all mem­ber States to: en­sure all peo­ple ben­e­fit from the chang­ing world of work, en­sure the con­tin­ued rel­e­vance of the em­ploy­ment re­la­tion­ship, en­sure ad­e­quate pro­tec­tion for all work­ers; and pro­mote sus­tained, in­clu­sive and sus­tain­able eco­nom­ic growth, full em­ploy­ment and de­cent work.

The oth­er con­tin­u­ing in­ter­na­tion­al de­vel­op­ment which I want to ad­dress briefly is the is­sue of mi­gra­tion and its im­pact on the world of work.

Per­mit me to re­peat what I have stat­ed on this is­sue be­fore, which is that a “key na­tion­al de­vel­op­ment is­sue that the Tri­par­tite Coun­cil may wish to take no­tice of with a view to tabling them for an in­clu­sive dis­cus­sion and de­bate, re­late to mi­grant labour.

The is­sue of labour mi­gra­tion and mi­grant work­ers is a very top­i­cal is­sue that af­fects us all. Tri­par­tism will be a very use­ful way to ap­proach this is­sue in its dif­fer­ent di­men­sions. The re­al­i­ty is that work­ers may find them­selves in­ter­fac­ing with new col­leagues from a dif­fer­ent coun­try, busi­ness own­ers may now find that they are faced with a dif­fer­ent work­force, and Union lead­ers may find them­selves rep­re­sent­ing a trans­formed clien­tele with po­ten­tial­ly di­verse con­cerns, we will all bear wit­ness to the ef­fect of glob­al­i­sa­tion writ large.

In this mod­ern era where peo­ple and in­for­ma­tion trav­el and move faster than ever be­fore, it is in­cum­bent up­on all so­cial part­ners to be proac­tive and to work in tan­dem with each oth­er to ad­dress the var­i­ous and com­plex chal­lenges and the op­por­tu­ni­ties that may arise from cross-bor­der labour mi­gra­tion.

In this con­text, it is crit­i­cal that we do so with­in the frame­work of well-craft­ed poli­cies and cre­ative mech­a­nisms that will al­low all so­cial part­ners - Labour, Busi­ness and Gov­ern­ment - to con­tribute and ben­e­fit from this phe­nom­e­non.”

In­dus­tri­al court’s year in re­view

I will now turn to the work of the Court. For the pe­ri­od Sep­tem­ber 2018 to Sep­tem­ber 2019, 1410 new cas­es were filed at the In­dus­tri­al Court, 237 more cas­es than those filed for the same pe­ri­od in 2017/2018 which record­ed 1173 cas­es.

Ad­di­tion­al­ly, the Court dis­posed of 858 mat­ters in the year in re­view which was 213 less than the 1071 mat­ters dis­posed of for the same pe­ri­od, 2017/2018. Of the to­tal mat­ters filed at the Court for this year, 2018/2019, Trade Dis­putes re­main the largest num­ber of mat­ters filed, fol­lowed by Re­trench­ment and Sev­er­ance Ben­e­fits and Oc­cu­pa­tion­al Safe­ty and Health.

Fi­nan­cial Chal­lenges For the 2018-2019 fi­nan­cial year.

The In­dus­tri­al Court re­quest­ed TT$65 mil­lion in re­cur­rent ex­pen­di­ture and was al­lo­cat­ed TT$40 mil­lion which is - 38% less than the amount need­ed for the Court to func­tion op­ti­mal­ly.

The al­lo­ca­tion of TT$40 mil­lion com­pris­es of TT$26 mil­lion for salaries and TT$14 mil­lion for goods and ser­vices to op­er­ate the Court which in­cludes pay­ment of se­cu­ri­ty ser­vices and util­i­ties.

Fur­ther, to ex­ac­er­bate an al­ready dif­fi­cult sit­u­a­tion, the re­lease of these funds has been in­con­sis­tent and in­ad­e­quate. There were times when there was no re­lease of funds with re­spect to goods and ser­vices for months at a time. Even af­ter the funds have been re­leased, ap­proval is some­times re­quired to print cheques for pay­ment.

This sit­u­a­tion has been on­go­ing for the past few years and it is be­com­ing in­creas­ing­ly dif­fi­cult for the Court to meet its fi­nan­cial and ser­vice oblig­a­tions and to have ba­sic sup­plies such as ink and pa­per. The re­duc­tion in the Court’s bud­get and the lack of funds have im­pact­ed neg­a­tive­ly the Courts abil­i­ty to de­liv­er key ini­tia­tives in­clud­ing our flag­ship stake­hold­er event ‘Meet With the Court Sym­po­sium, the hear­ing of dis­putes in To­ba­go, which has as­sist­ed in al­le­vi­at­ing the ex­pense and in­con­ve­nience for ac­cess to jus­tice for To­bag­o­ni­ans.

Al­so af­fect­ed have been train­ing for Judges to con­tin­u­ous­ly im­prove ca­pac­i­ty and ef­fi­cien­cy in the de­ter­mi­na­tion of dis­putes and the pro­duc­tion of key pub­li­ca­tions by the Court such as the Trends in Labour and In­dus­tri­al Re­la­tions Bul­letin, the In­dus­tri­al Court Law Re­port and the Court’s An­nu­al Law Re­port.

With re­spect to the ‘Meet with the Court’ Sym­po­sium and the train­ing for Judges, it is the first year that the Court has been un­able to de­liv­er these crit­i­cal ini­tia­tives for our in­ter­nal and ex­ter­nal stake­hold­ers.

On be­half of the Judges of the In­dus­tri­al Court, I wish to thank the staff of the In­dus­tri­al Court for their un­wa­ver­ing sup­port and ser­vice es­pe­cial­ly in these dif­fi­cult times.

Short­age of court re­porters

The on­go­ing prob­lem of short­age of court re­porters con­tin­ues to plague the In­dus­tri­al Court. To date, there are 20 va­cant Ver­ba­tim Re­porter 1 po­si­tions, out of a to­tal of 22. The Court has at­tempt­ed to meet this huge short­fall by en­gag­ing the ser­vices of re­tired Re­porters, how­ev­er, fi­nan­cial con­straints lim­it the num­ber of per­sons the Court can 7 con­tract to serve.

This con­tin­u­ous lack of an ad­e­quate com­ple­ment of Court Re­porters to meet the in­creas­ing de­mand by Judges and stake­hold­ers for notes of ev­i­dence and out­stand­ing judg­ments, pos­es a dai­ly chal­lenge for the Court. As ex­pect­ed, the sit­u­a­tion has be­come in­creas­ing­ly dif­fi­cult as the vol­ume of work con­tin­ues to in­crease and this has hin­dered the Court’s abil­i­ty to ful­fil re­quests for notes and judg­ments in a time­ly man­ner. For ex­am­ple, this year a to­tal of 399 judg­ments were re­served for de­ci­sion by the Court.

Of these re­served judg­ments 214 re­main out­stand­ing due to the fact that notes can­not be pre­pared and giv­en to Judges for their de­ci­sions and the back­log which was cleared in 2014 has re­turned.

Es­tab­lish­ment of Court in To­ba­go

The Court has not presided in To­ba­go for the past three years due to a lack of funds and it has been dif­fi­cult for lit­i­gants from To­ba­go to at­tend Court in Trinidad.

As stat­ed in my pre­vi­ous re­ports, the In­dus­tri­al Court is in the process of open­ing a To­ba­go branch at Sandy Hall Build­ing in Scar­bor­ough.

Na­tion­al In­sur­ance Prop­er­ty De­vel­op­ment Com­pa­ny Lim­it­ed (NIPDEC) has been re­tained as the Project Man­ag­er for the re­fur­bish­ment work on the build­ing and the Court has re­ceived and ap­proved the ar­chi­tec­tur­al draw­i

It is my hope that the Court will re­ceive the nec­es­sary funds this fi­nan­cial year to com­plete this project in 2020. To­wards an E-Court Over the years, I have been giv­ing you, the stake­hold­ers, up­dates as the In­dus­tri­al Court con­tin­ues to work steadi­ly to im­prove its court tech­nol­o­gy man­age­ment sys­tem.

This is a part of the ini­tia­tive to trans­form the Court in­to an e-Court. Some key ini­tia­tives im­ple­ment­ed thus far were: The in­tro­duc­tion of elec­tron­ic kiosks.

Video Con­fer­enc­ing ser­vices from Port of Spain to San Fer­nan­do and out­side of Trinidad and To­ba­go Ex­pan­sion of the e-Court tech­nol­o­gy in all court­rooms such as For-the-Record, Re­al-Time tran­scrip­tion and Voice-to-Text Tech­nolo­gies.

A file track­ing soft­ware known as a Ra­dio Fre­quen­cy Iden­ti­fi­ca­tion sys­tem, Scan­ning of all doc­u­ments filed in the Reg­istry Ex­pan­sion of the stor­age space to man­age the Court’s da­ta, In­stal­la­tion of a wire­less sys­tem to im­prove ser­vice to our stake­hold­ers and al­low Judges to com­mu­ni­cate with our data­bas­es and court man­age­ment soft­ware , Dig­i­ti­za­tion of judg­ments in the Li­brary. Cur­rent­ly, 61.5% of the judg­ment col­lec­tion from 1965 to present has been digi­tised.

Up­grade of the Court’s web­site

We have al­so been re­view­ing court man­age­ment soft­ware sys­tems with a view to adopt one that bet­ter meets the cur­rent de­mands and func­tion­al­i­ties re­quired by the Court.

The hope is that there will be E-fil­ing and all the mod­ern tech­nol­o­gy sys­tems at the In­dus­tri­al Court go­ing for­ward

The Reg­is­trar of the Court, Mr. Noel In­niss and I re­turned from New Or­leans on Sat­ur­day where we at­tend­ed a Na­tion­al Cen­ter for State Courts Tech­nol­o­gy Con­fer­ence.

At the con­fer­ence we ex­am­ined soft­ware which can im­prove the Court’s case man­age­ment sys­tem and more im­por­tant­ly ad­dress the cur­rent tran­scrip­tion­ist prob­lems which we have been ex­pe­ri­enc­ing for the past few years.

I do hope we are grant­ed the fi­nan­cial re­sources in this fi­nan­cial year to ac­quire the much-need­ed court tech­nol­o­gy.

Train­ing Nine­teen (19) mem­bers of staff ben­e­fit­ed from the train­ing ser­vices pro­vid­ed by the Pub­lic Ser­vice Acad­e­my of the Min­istry of Pub­lic Ad­min­is­tra­tion in the year in re­view.

When I be­came Pres­i­dent of the In­dus­tri­al Court, I in­sti­tut­ed a stake­hold­er fo­rum which is known as the an­nu­al “Meet with the Court Sym­po­sium”.

The rai­son d’être of this sym­po­sium was to pro­vide em­ploy­ers, Unions, and gov­ern­ment rep­re­sen­ta­tives with a plat­form to meet with the In­dus­tri­al Court and to ex­am­ine the judg­ments, the process­es 9 and the work­ing of the Court along with the ju­rispru­dence and to have dis­cus­sions on these and oth­er is­sues in a more re­laxed in­for­mal set­ting.

Each year, the Court in­vites three hun­dred stake­hold­ers to at­tend this sym­po­sium and to par­tic­i­pate in the dis­cus­sions.

Those who have at­tend­ed the sym­po­sium can tes­ti­fy that this fo­rum is a use­ful plat­form to clar­i­fy is­sues af­fect­ing the so­cial part­ners and to have trans­par­ent and healthy dis­cus­sions on the judg­ments, the ju­rispru­dence of the Court, and of eco­nom­ic trends and na­tion­al is­sues.

Un­for­tu­nate­ly, we have not been able to host the sym­po­sium this year due to the bud­getary con­straints.

How­ev­er, the feed­back we re­ceive each year is ex­treme­ly pos­i­tive and I per­son­al­ly view it as a use­ful mech­a­nism to fa­cil­i­tate healthy crit­i­cism and dis­cus­sions among all the stake­hold­ers.

Among the speak­ers at the sym­po­sium were spe­cial­ists from the ILO in the per­sons of Mr. Shin­go Miyake, Mr. Rain­er Pritzer and Ms. Yu­ka Uji­ta, from the Uni­ver­si­ty of the West In­dies were of Dr. Leighton Jack­son, Dean of the Fac­ul­ty of Law - Mona, Mr. Jef­fer­son Cum­ber­batch, Law Lec­tur­er - Cave Hill, Dr. An­drew Downes, Pro Vice Chan­cel­lor – Cave Hill, and Econ­o­mists Pro­fes­sor Comp­ton Bourne and Dr. Ralph Hen­ry. I thank all pre­sen­ters for their con­tri­bu­tions over the years. Mem­bers at the Court This year, six (6) new Mem­bers were ap­point­ed to the In­dus­tri­al Court.

They are Their Ho­n­ours Ms. Wendy Ali, Mr. Vin­cent Cabr­era, Mrs. An­gela Hamel-Smith, Mrs. In­dra Ram­per­sad-Suite, Ms. Eliz­a­beth Solomon and Mrs. Jil­lian Joy Bartlett-Al­leyne.

Im­par­tial­i­ty of the In­dus­tri­al Court

On be­half of the In­dus­tri­al Court, I wish to wel­come all the new Mem­bers and to wish each of them a suc­cess­ful ca­reer at the Court. My sin­cer­est con­grat­u­la­tions to His Ho­n­our Mr. Her­bert Sover­all on his el­e­va­tion to Vice Pres­i­dent of the In­dus­tri­al Court.

Over the past year, the terms of of­fice came to an end for for­mer Vice Pres­i­dent, His Ho­n­our Mr. Ram­c­hand Lutch­me­di­al, and His Ho­n­our Mr. Mahin­dra Ma­haraj. I take this 10 op­por­tu­ni­ty to thank them for their ser­vice and con­tri­bu­tion to the work of the Court and wish them all the best in their fu­ture en­deav­ours.

In this part of my speech to­day I could not help but to re­call the words of John Adams the sec­ond Pres­i­dent of the Unit­ed States of Amer­i­ca which were quot­ed by Pres­i­dent Barack Oba­ma and these words are “Facts are stub­born things; and what­ev­er may be our wish­es, our in­cli­na­tions, or the dic­tates of our pas­sions, they can­not al­ter the state of facts and ev­i­dence.”

In the year in re­view, sev­er­al ques­tions have been raised in the pub­lic do­main about the im­par­tial­i­ty of the In­dus­tri­al Court, the rel­e­vance of the in­sti­tu­tion, the Court’s judg­ments and in­ter­est­ing­ly, on what the com­po­si­tion of Judges at the court should look like. I wish to re­mind stake­hold­ers and the pub­lic in gen­er­al that the In­dus­tri­al Re­la­tions Act pro­vides that the Judges of the Court must be qual­i­fied Econ­o­mists, At­tor­neys at Law, Ac­coun­tants and In­dus­tri­al Re­la­tions ex­perts.

There is no pro­vi­sion in the Act for the Judges to be se­lect­ed from the em­ploy­er group or from the trade Union move­ment. I have spo­ken to some of these is­sues in the past, and I do not in­tend to re­vis­it them. How­ev­er, I have not­ed with in­ter­est that the think­ing which has been very pub­lic late­ly is the think­ing that the In­dus­tri­al Court does not al­low em­ploy­ers to “fire” work­ers.

This in my mind shows a lack of un­der­stand­ing of the work of the Court. From time- to- time there are em­ploy­ers who may de­cide to bring an end to the em­ploy­ment re­la­tion­ship, with a work­er, for one rea­son or an­oth­er, to use lay­man’s lan­guage the em­ploy­er fires the work­er.

How­ev­er, these em­ploy­ers would af­ford the work­er the op­por­tu­ni­ty to be heard, they would al­low the work­er a fair hear­ing on the par­tic­u­lar is­sue, and they would al­so fol­low the process stip­u­lat­ed by the laws of this coun­try.

The work­er is then dis­missed as a re­sult of their find­ings. The de­ci­sion to dis­miss work­ers in these cir­cum­stances are rou­tine­ly up­held by the In­dus­tri­al Court, time and time again. This is not an ex­cep­tion, it is the norm. When the dis­missal of a work­er is reg­u­lar, law­ful and it is done in ac­cor­dance with the prin­ci­ples and prac­tice of good in­dus­tri­al re­la­tions and the laws of the coun­try, the Court al­ways up­holds these de­ci­sions.

Dis­turb­ing com­ments

As a mat­ter of fact, some of these cas­es do not al­ways reach to the open Court for hear­ing.

The In­dus­tri­al Court may di­rect the Union and the em­ploy­er to re­solve these mat­ters bi­lat­er­al­ly or they may be re­solved in Case Man­age­ment or at Con­cil­i­a­tion at the Court. In some of these cas­es the Court ren­ders writ­ten judg­ments, oth­ers are dis­posed of by oral judg­ments or by Or­ders and ad­di­tion­al­ly, due to the guid­ance from the Court the Union may with­draw its case against the em­ploy­er.

It is there­fore very mis­lead­ing to say that the In­dus­tri­al Court does not al­low em­ploy­ers to ‘fire’ work­ers. Then there are em­ploy­ers who sim­ply do not take part in the process.

These em­ploy­ers ig­nore the sev­er­al Sum­mons­es and Or­ders sent by the Court. They will not at­tend Case Man­age­ment hear­ings nor do they at­tend open Court hear­ings.

As a re­sult, these cas­es are heard in the ab­sence of the em­ploy­ers and the Court ren­ders its judg­ment. When the judg­ment is ren­dered, if it is in favour of the union, the union has to take steps to en­force it.

In some in­stances the Union may go to the Supreme Court to have the Or­der en­forced or they may re­turn to the In­dus­tri­al Court with an ap­pli­ca­tion for con­tempt against the em­ploy­er.

 

These in­stances where the em­ploy­er does not par­tic­i­pate and the case is de­ter­mined in their ab­sence are not a few iso­lat­ed in­stances, this is a reg­u­lar oc­cur­rence at the In­dus­tri­al Court.

The In­dus­tri­al Re­la­tions Act pro­vides for de­ci­sions of the In­dus­tri­al Court to be ap­pealed to the Court of Ap­peal on points of law. Any­one who is ag­griev­ed with a de­ci­sion of the Court, has the right to ap­peal that de­ci­sion to the Court of Ap­peal, and to fur­ther ap­peal to the Privy Coun­cil for fi­nal de­ter­mi­na­tion.

How­ev­er, and I have said this in the past, while I be­lieve that crit­i­cisms about the op­er­a­tions of the In­dus­tri­al Court are healthy as we con­tin­ue to de­vel­op as a na­tion fifty sev­en (57) years af­ter at­tain­ing in­de­pen­dence, what I will not ac­cept is that some­one can stand and say pub­licly that “there is cor­rup­tion, the Union is in co-hoots with the In­dus­tri­al Court and the go­ing price is sev­en­ty-five thou­sand dol­lars”.

Those types of com­ments are dis­turb­ing, they are alarm­ing and si­mul­ta­ne­ous­ly sad. Sad be­cause it shows a lack of un­der­stand­ing of the work of the In­dus­tri­al Court and al­so be­cause they are di­rect at­tacks on the in­tegri­ty of the in­sti­tu­tion.

If the pop­u­lar view is that there is need to look at the In­dus­tri­al Court – with a view to im­ple­ment re­form, to strength­en it, to change it, to change it to adapt to the times, to amend the laws, to adopt dif­fer­ent pro­ce­dures or to re­move it en­tire­ly, then that is a very healthy de­bate with which I think the pub­lic is en­ti­tled to be en­gaged. How­ev­er, when the crit­i­cism im­pugns the in­tegri­ty of the Judges and staff of the Court – that is not on­ly sad but dan­ger­ous and disin­gen­u­ous.

I have said in the past that when we crit­i­cise, we have to be very care­ful that we do not dis­man­tle in­sti­tu­tions. I will re­peat my state­ment that “in seek­ing to ad­vance the ar­gu­ments re­gard­ing the ori­en­ta­tion of the Court that have been put for­ward, it is crit­i­cal that we al­so take stock of the im­por­tance of in­de­pen­dent in­sti­tu­tions. Con­struc­tive crit­i­cism is al­ways wel­comed but an over­ar­ch­ing con­cern is that the bound­ary be­tween crit­i­cis­ing and seek­ing to in­flu­ence out­comes may be­come blurred far too of­ten and far too quick­ly.

This, we must all guard against. One may dis­agree with some rul­ings of the Court, but to seek to im­pugn its im­par­tial­i­ty, its in­tegri­ty or to di­min­ish the im­por­tance of its role and func­tion, is sim­ply not the way to go.”

Reg­u­la­to­ry frame­work

It is note­wor­thy, that for­mer Prime Min­is­ter, Dr. Er­ic Williams, in the 1960s lament­ed the num­bers of strikes, lock outs and sit outs and some cas­es vi­o­lence which char­ac­terised the in­dus­tri­al re­la­tions land­scape of this coun­try at the time.

Dr. Williams and the gov­ern­ment of the day, thought that it was wise to es­tab­lish a reg­u­la­to­ry frame­work to re­solve dis­putes in a for­mal set­ting in­stead of the in­for­mal set­ting where Unions and em­ploy­ers re­solve is­sues on their own.

As a re­sult, the In­dus­tri­al Court was es­tab­lished 54 years ago.

The reg­u­la­to­ry frame­work which was es­tab­lished ac­knowl­edged the need to bal­ance the com­pet­ing in­ter­ests of em­ploy­ers, work­ers, and trade unions with­in the broad­er frame­work of the na­tion­al in­ter­est to pre­vent strikes, lock­outs and in­dus­tri­al un­rest that would im­pede pro­duc­tiv­i­ty and eco­nom­ic growth.

That was 54 years ago, present­ly, it may well be that the pre­vail­ing view is that there is no need for the In­dus­tri­al Court and that unions and em­ploy­ers should re­turn to the mod­el which ex­ist­ed in the 1960s where unions and em­ploy­ers re­solved is­sues on their own.

What­ev­er is con­tem­plat­ed or con­cep­tu­al­ized for a new in­dus­tri­al re­la­tions frame­work in 13 Trinidad and To­ba­go, we the mem­bers of the In­dus­tri­al Court will ac­cept and em­brace it.

How­ev­er, un­til a new frame­work is fash­ioned, the Judges of this Court will col­lec­tive­ly con­tin­ue to up­hold the prin­ci­ples of good in­dus­tri­al re­la­tions with­out fear or favour, mal­ice or ill will. No sys­tem is per­fect.

In fact, each sys­tem re­flects so­ci­etal norms at a giv­en time. In my view, Courts are not de­signed to cre­ate a per­fect sys­tem. Courts are de­signed to re­move in­jus­tice, they are de­signed to pro­tect cit­i­zens from in­jus­tice.

The In­dus­tri­al Court as I said in the past, will con­tin­ue to up­hold and ad­here to in­ter­na­tion­al best prac­tices in the work­place. We will not sup­port prac­tices which are con­trary to the prin­ci­ples of good In­dus­tri­al Re­la­tions in Trinidad and To­ba­go.

We cer­tain­ly will not sub­scribe to the fla­grant abuse and vi­o­la­tion of the rights of any one of the so­cial part­ners. We will con­tin­ue to be stead­fast in our du­ty to con­tribute to the na­tion­al ef­forts for re­al­is­ing so­cial jus­tice and in­clu­sive, eq­ui­table growth to im­prove the qual­i­ty of life of all cit­i­zens.

This is the time for the so­cial part­ners to stop the fin­ger point­ing and the blam­ing and to as­sist in tak­ing this coun­try for­ward. It is im­por­tant to recog­nise that we are all do­ing dif­fer­ent jobs for the same com­mon pur­pose, which is, to as­sist in the sus­tain­able de­vel­op­ment of Trinidad and To­ba­go.

I urge that stake­hold­ers not for­get that the em­ploy­ers, the work­ers and the unions have an un­der­ly­ing com­mon pur­pose, which is, to en­sure the suc­cess of busi­ness­es, so that em­ploy­ees can get de­cent wages and pen­sions and busi­ness own­ers can make prof­its while they both si­mul­ta­ne­ous­ly as­sist in the build­ing and de­vel­op­ment of the econ­o­my.

This com­mon pur­pose can on­ly be suc­cess­ful in an at­mos­phere of col­lab­o­ra­tion, tri­par­tism and mu­tu­al re­spect; as the African say­ing goes “one head can­not hold all wis­dom”.

As we be­gin a new law term I reaf­firm my com­mit­ment to the ideals and the tenets of the In­dus­tri­al Court res­olute in my love for this coun­try and res­olute in my love for all its peo­ple.

May God bless you all and thank you for lis­ten­ing.

 

 

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