Retrenchment Act vs Collective Agreement.

This article was first published in the Trinidad Express Newspapers on December 1st 2019.

Confusion has 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 Lay people  , 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 categorization 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 that 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 has 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 fifty 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, why did the  Court not notice the discrepancy in the first place, and let the parties know  it was objectionable  before it was registered?.

The judgement 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 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 greater sums than the law, the amount in the collective agreement  must stand, which  sounds like common sense. This follows, in Section 17, 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 and that a notice period must be stipulated.   Well, the collective agreement stipulates  a fifty day notice period  or fifty days’  pay in lieu therof, 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 goes on to emphasize 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.” and has 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  :fifty 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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