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Better laws for better industrial relations

Sunday, September 16, 2018

Since independence, T&T has gone through two significant pieces of legislation establishing its framework for industrial relations. The first one was the Industrial Stabilisation Act of 1965, which effectively created the Industrial Court.

The ISA wasn't without its issues and, when the Court of Appeal determined that the Industrial Court had no right to order a worker's reinstatement, an amendment was passed to give it such powers. The amendment also granted the Industrial Court the same status as a superior court of record, effectively limiting appeals against its findings to points of law and nothing else.

A challenge to the ISA's constitutionality led to its replacement, in the early 1970s, with the Industrial Relations Act, which mostly remains in place and forms the basis of how labour disputes are dealt with in this country.

If the ISA had its flaws, many of them were transferred—lock, stock and barrel—into the IRA, with consequences we are still feeling. And badly.

Based on the act, decisions by the Industrial Court's judges are virtually impossible to challenge unless the issue is a point of law. In other words, unless an appellant can prove that an Industrial Court's decision went against the law, its decisions stand and without an appeals route.

This lack of opportunity for appeals or reviews is even more flawed because many aspects of our labour legislation are vague, paving the way for the Industrial Court to fill the gaps as it goes along effectively. Essentially, its decisions are enshrined without any oversight or Parliament's democratic mandate.

This is a problem. And that is because, as human beings, judges can also get things wrong. Or they can embrace a view of the world that is neither fair nor just. This has little to do with a matter of honesty—it's a matter of perspective. And, as once said by Justice Scrutton, a famous early 20th-century British judge, “some of the most honest people are the most unreasonable; and some excesses may be sincerely believed in, but yet quite beyond the limits of reasonableness”. A wise point then and still a wise point now.

The IRA needs reviewing, and here are some improvements our lawmakers should be focusing on to make it better and achieve true social justice by creating the conditions to make T&T's economy more vibrant and adaptable for our times.

A first step is to reform the Industrial Court. An appeal process by a separate body that can challenge some of its more unusual findings would be a vital change. This would be good for both workers and businesses but, equally important, to the Industrial Court itself. Anyone or any institution under the right level of oversight grows stronger, not weaker, and has more legitimacy.

The scope for appeals should also be broadened. Just like in many other courts, both parties must be allowed to question not only the verdict itself but also the type or quantum of compensation issued by the court.

And appeals could be avoided altogether if some other elements of the act were improved. One is an objective scale of damages. As things stand, there's no set of rules determining how damages are calculated, paving the way for, at times, arbitrary and unreasonable compensation orders by the court (and with very limited scope to appeal).

Damages should also go both ways, as dealing with frivolous or vexatious claims are a costly exercise, and employers should also be allowed to seek financial redress, payable by the unions, when illegal or abusive industrial action leads to losses.

And there's the fundamental matter of freedom of association. Workers must have the right to be represented (or not) by whomever they want. A worker is, above all, a citizen and, as such, he or she must have the right to choose what they believe is best for them. Joining a union or choosing to be represented by one must be at the discretion of the individual. An enforced collective is neither democratic nor just.

This flaw is compounded by the fact that only unions can bring a claim to the Industrial Court on behalf of a worker. On purpose or by accident, the law belittles an employee's intelligence, bars a citizen from direct access to justice while also over-inflating the unions' power.

Somehow we ended up with a piece of crude Soviet-era legislation inside a democratic constitutional framework. Our constitutionally enshrined freedom of association must also mean we have the freedom not to be associated with an organisation and still have access to branches of the justice system.

None of these changes is rocket science. Most countries regularly review their labour laws to make them better and more modern, while also seeking to give the protection employees deserve. It's our turn now.


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