Justice Prakash Moosai

High Court judge Prakash Moosai has made it quite clear that it is the responsibility of the President, and not the Cabinet, to determine the salaries and perks for members of the Industrial Court. Moosai said the Cabinet had the wrong notion for the past 28 years, that it determined what should be paid, based on the recommendations of the Salaries Review Commission (SRC). Moosai ruled for Industrial Court member Vernon Ashby, who took the Registrar of the Industrial Court to court for refusing to pay him a chauffeur allowance from 1989 to the present time. Martin Daly, SC, appeared for Ashby, while Avory Sinanan, SC, represented the Registrar of the Industrial Court.

According to Moosai, the substantive issue which arose for determination was whether Ashby, as a member of the Industrial Court, was entitled to a chauffeur allowance for the period 1989 to the present. Ashby is a member of the Industrial Court (Essential Services Division). He was first appointed a member on April 17, 1989, by the President of the Republic of Trinidad and Tobago, and received subsequent re-appointments in the years 1992, 1995, 2000 and 2003. Before Ashby’s first appointment as a member of the Industrial Court, the SRC reviewed the terms and conditions of service of the office-holders, inclusive of members of the Industrial Court.

The SRC recommended, among other matters, that a chauffeur allowance, equivalent to the minimum salary of a Chauffeur II in the Public Service, be paid to all members of the Industrial Court. This recommendation was published in the second report of the SRC, dated July 1980. The second report of the SRC was submitted to the President, who forwarded a copy to the Prime Minister, for presentation to the Cabinet and for laying on the table of both Houses of Parliament. “It is clear on the evidence that Cabinet considered the second report of the SRC and made amendments prior to laying same on the table of each House,” Moosai said.

“However, none of these amendments touched or concerned the issue of the chauffeur allowance. The amended recommendation was duly tabled and laid in Parliament.” Moosai said that in recognition of what had transpired with the second report of the SRC, the Minister of Finance, by circular dated January 16, 1981, issued to all permanent secretaries and heads of departments, advised that after consideration of the recommendations of the SRC, the revised remuneration arrangements for members of the Industrial Court included payment of a chauffeur allowance. He said this was a clear directive from the Cabinet for implementation of the decision of the SRC with respect to the payment of the chauffeur allowance to members of the Industrial Court.

In July 1981, the Personnel Department received instructions from the Cabinet Secretariat that the Cabinet had agreed to revised conditions with respect to the payment of a chauffeur allowance to the holders of offices under the purview of the SRC for which a chauffeur allowance was payable. “In or about July 1981, Cabinet, clearly of its own volition, purported to make the receipt of the chauffeur allowance conditional upon the employment of a chauffeur,” Moosai said. He pointed out that in the 23rd report, dated August 1991, the SRC again reviewed the salaries and other conditions of service of members of the Industrial Court and recommended that the other terms and conditions, including the chauffeur allowance, continue in effect. Moosai said in its 27th report, dated May 12, 1994, the SRC reviewed the chauffeur allowance provided to holders of certain offices under its purview, including members of the Industrial Court.

The SRC recommended that the chauffeur allowance be discontinued for all members of the Industrial Court, but this would only apply to office-holders whose appointments took effect on or after the date of implementation of the revised arrangements. By memorandum dated March 15, 2004, the Registrar informed Ashby that a chauffeur allowance could not be paid to him for the period April 1989 to the present, since he did not employ or have a chauffeur for that period. In his judgment, Moosai said: “It is clear that the legislative intent was to provide a degree of insulation for members of the Industrial Court from improper pressure being brought to bear by the executive and legislative arms of the State, thereby undermining their judicial independence by having their salaries and allowances determined by the President of Trinidad and Tobago, and by protecting their terms and conditions of service from being altered to their disadvantage.

“Having regard to the constitutional scheme, the framers of the Constitution must have intended that the President, in his executive capacity, play an overarching role and exercise an independent discretion in the review process,” he said. “I am therefore of the view that the President is the one endowed with the authority to prescribe the terms and conditions of service of such office holders and to determine the date of implementation of same.” Moosai said the President was exercising his own independent authority as to when conditions were ripe for such a review. Such a review by the SRC, he stated, could only be undertaken with the approval of the President. “In purporting to revise those terms and conditions of its own accord in July 1981, without conforming to the constitutionally prescribed route and impose a qualification of making the chauffeur allowance payable to members of the Industrial Court only if they actually employed a chauffeur, Cabinet acted without the powers granted to it under the constitution,” he said.