This article was first published in the Trinidad Express Newspapers on October 30th 2018.
There is a genuine and concerted worry on the part of members of the OWTU about what will happen to their union protection if and when they are selected to be among the lucky ones, the ones chosen for their skills, attitudes and productivity we are told, to be employed by the new companies, Paria Fuel Trading Co. Ltd. and Heritage Petroleum Co. Ltd., when they start up business on November first.
Rumours and scare tactics have spread, like flood waters on Wrightson Road after half an hour’s rain, claiming that, in the new companies there will be no recognition of union status, that OWTU membership will be taken away and its certification as the bargaining unit will cease.
These fears appear to rest upon a misinterpretation of Industrial Relations Precedent in T&T. The much-maligned Industrial Court long ago, in cases bitterly fought, established the rules for successorship and assignee status, where one company, or in this case two companies, take over from a previous one.
For the record, the Industrial Relations Act, in Section 48, provides that the sole determinant of who is the successor or assignees will be the Industrial Court if the issue of successorship arises, as it almost surely will when the contentious issue of salaries and benefits in the new companies comes to the table. The question of whether the old terms and conditions will apply will turn on Section 19, which makes it plain “an order or award of the Court shall be binding on any trade union on whom such order is at any time ordered by the court to be binding” and “in the case of employers, any successor to or assignee of the business of the employer who is a party bound by such order or award, including any company that has acquired or taken over the business”.
And in its judgement in Trade Dispute No. 14 of 2003 between Banking Insurance and General Workers’ Union and Eastern Commercial Lands Ltd, the court referred to other successorship cases in Trinidad and Tobago – there have been several going right back to 1969 with the SWWTU /Shipping case, the “locus standai”. It also referred to five Canadian cases and others from the USA to support the argument that the purpose of successorship is to preserve bargaining rights in spite of changes in ownership or control of the enterprise which the court appeared to accept.
The internationally accepted test is known as “the triple substantial” criteria – in other words, if the new company (or companies in this case) are doing “substantially the same work in substantially the same way with substantially the same workers” they are successors. So if the new companies hire workers “substantially” (not even entirely, please note) from the Old Petrotrin which they have indicated they intend to do, to do “substantially” the same work, in ”substantially” the same way, there is no way that one can see the Court determining that these two companies are not genuine successor and/or assignee companies to the Old Petrotrin.
Why it will be contentious is that, as successors, according to the IRA they inherit the old collective agreement. When it comes to an end, the terms of that agreement become the terms and conditions of each individual worker in the new companies. Petrotrin’s advisers must have told their Board this, surely? and it will be interesting to see how they deal with the challenge. As one Court Judgement stated:” Once severance has been paid and accepted the employment nexus is broken (which is why OWTU is urging workers not to accept, but) “all the union has to do is to go back to the RRCBd and re-apply. Even if the employment nexus is broken it does not eliminate the recognized union.” His Honour M. Rambathaly J.
So, the union remains the union, OWTU recognition will probably be assigned virtually automatically by the Recognition Board to the new companies. OWTU members who go to work for the new organizations will still have the protection of their union. The union does not lose members. Those that were members previously that wish to maintain members can do so. Those that are not do not have to join and it is only if less than 50% of the new workforces are not members can the recognition application, under Section 38(3) fail.
The Registration, Recognition and Certification Board may have to re-designate the bargaining units and the exemptions from those units, but while these procedural details are being worked out the terms of the expired collective agreement become the individual contracts of the workers. The much-publicized high wage levels, therefore, will not change until they are re-negotiated by the recognized union which does not give much indication of co-operating with the new dispensation, and the union can still pursue trade disputes, for example, dismissals or suspensions on behalf of its members.
It may simply be a form of intimidation to threaten workers that they will lose their rights to representation if they accept severance benefits. The law simply will not allow that. And the court, which is enjoined to act “in good conscience and in accordance with the principles of good industrial relations practice” cannot, allow it. To do otherwise, to quote the court: “is to replace good industrial relations practice by industrial barbarism”.