This article was first published in the Trinidad Express Newspapers on September 22 2019.
Paradox is the spice of life, and few aspects of life are more paradoxical or spicy than Industrial Relations.
There is a fundamental difference between Law and Industrial Relations which many lawyers fail to appreciate. As Sir Isaac Hyatali, our first Industrial Court President used to say : The Industrial Court is not so much a court of law as it is a court of Human Relations. “ Sir Isaac and His Honour Saiid Cokar, President of the Industrial Court in Kenya were the two most renowned and respected Heads of Industrial Courts and Tribunals in the entire British Commonwealth at the time. Sir Isaac’s advice and Judgements were referenced all over the Commonwealth. As I read the address by our current Industrial Court President this week, I could not help but think of him and the advice and wise guidance he brought to the jurisdiction over which he presided.
One of the most frustrating things that practitioners in our Court have to put up with , iscontrary to one of the first principles of good industrial relations . That principle is that a workplace grievance must not only be dealt with, it must be dealt with expeditiously. Left to fester it can explode. When parties have reached the point of extreme frustration in a matter before them and have to go through the lengthy bureaucratic process ending in the Industrial Court, they may be told that the closest date for hearing is in 2021 To learn from Her Honour Thomas-Felix that among the major reasons for this is the fact that the Court at present has only two out of the twenty-two court reporter positions on the approved establishments filled . And to keep it that way, the Budgetary allocation to run the court has been cut by 38%. Also cut has been the budget for training of judges , and the budget for paper and ink on which to print out the awards that used to be readily available . Sir Isaac must be turning in his grave.
Sir Isaac, of course , left us long ago , and times have changed. We have fewer strikes now than he had to sort out in the 60’s. More cases are referred to court. And everyone has computer access. But, as the French say: “Plus ca change, plus c’est la meme chose”. In Sir Isaac’s time, back in the 60’s, there was a concerted effort by the trade union movement, as a form of protest against the ISA which prohibited strike action and established the Court to eliminate both. And cleverly, they used the Act itself in order to do so. They decided to send even the most minor grievance to the Court with the intention of so clogging it up as to make it unworkable. Which it did.
The government of the day listened to their protests and new legislation, our current IRA , was passed which returned the right to strike , and protected the rights of unions in many other ways. It even removed the right of individual workers to take cases to court unless they belonged to a trade union. It was now the sole prerogative of RMU’s ( Recognized Majority Unions) to take cases to the Industrial Court. So the new IRA increased union membership and, as only up-to-date-fee-paying members that compromised over 50% of a bargaining unit could make a union eligible for recognition to represent workers, it provided a considerable level of financial stability as well.
The obvious paradox is that while Unions are now willing customers of the Court, the same paralysis that resulted in the court becoming clogged as a form of protest against it is now resulting in it becoming clogged as a result of Union support. As Her Honour pointed out in her address, during this year, one thousand four hundred and ten new cases were filed . How can any court with only two senior Court Reporter positions currently filled be expected to ensure that matters are “dealt with and dealt with expeditiously”?
As for access to technology being a possible boon to speed up the process, back in Sir Isaac’s time, copies of awards were available for the price of a photocopy. Now, there is a yearly charge of $5500.00 for online access per user, which many individual workers wanting to find out the justice of their complaint by reference to the wisdom of the court simply cannot afford.
The difference between dealing with a case in the Magistrates’ Court which , according to the latest statistics may take even longer to be heard, is that if you have a civil case, about property, or marriage, for example, once it has been settled in that court, the antagonists need never speak to each other again. Or even see each other. With an Industrial Relations dispute, however, the RMU and the Company must continue to work together. It is like an indissoluble marriage. Or at least a marriage “till death do us part” and either the Company or the Union passes away. So the basis of industrial relations is, as Sir Isaac perceptively said,” human relations”. Law is only a peripheral part of the relationship. The essence of good industrial relations , as it is in marriage, is to avoid court by preventing disputes from escalating in the first place. Hence the move toward mediation outside the court system.
