Deb­o­rah Thomas-Fe­lix

Pres­i­dent of the In­dus­tri­al Court

To add con­text to my state­ment, I was a par­tic­i­pant at a we­bi­nar that was host­ed by the Trinidad and To­ba­go Cham­ber of Com­merce in Jan­u­ary this year. My un­der­stand­ing is that the pur­pose of this we­bi­nar was for the Cham­ber to gath­er in­for­ma­tion on the law and in­dus­tri­al re­la­tions prac­tice to as­sist and guide its mem­bers in this time of cri­sis. The dis­cus­sion was con­fined to is­sues re­lat­ed to the world of work.

One of the par­tic­i­pants at the we­bi­nar asked whether an em­ploy­er can or­der an em­ploy­ee to take a vac­cine for the em­ploy­ee to con­tin­ue his or her em­ploy­ment. Those were not the ex­act words of the ques­tion, but that is the gist of the ques­tion. I re­spond­ed by stat­ing that in in­dus­tri­al re­la­tions an em­ploy­er can­not uni­lat­er­al­ly al­ter or change the ex­ist­ing terms and con­di­tions of em­ploy­ment of work­ers, es­pe­cial­ly if there is a recog­nised ma­jor­i­ty union present at the es­tab­lish­ment.

I went fur­ther to add that if an in­di­vid­ual is not em­ployed at the es­tab­lish­ment but is seek­ing em­ploy­ment, an em­ploy­er can in­sist that the in­di­vid­ual gets a vac­cine in or­der to ob­tain em­ploy­ment at the es­tab­lish­ment; that is what is called a “con­di­tion prece­dent” to em­ploy­ment. The in­di­vid­ual who is seek­ing the job can de­cide to be­come vac­ci­nat­ed or he can de­cide not to be em­ployed at that es­tab­lish­ment on those terms.

This is sim­i­lar to when you seek to go to a coun­try and the coun­try re­quires that you take a vac­cine to en­ter, some coun­tries re­quire that the pas­sen­ger gets yel­low fever vac­ci­na­tion. You, the pas­sen­ger, can de­cide whether you are en­ter­ing the coun­try on those terms or not.

How­ev­er, it is im­por­tant to un­der­stand that it is very dif­fer­ent in the case where some­one who is al­ready em­ployed with an es­tab­lish­ment and is told that it is manda­to­ry to take a vac­cine in or­der to con­tin­ue to work. The law states that a fun­da­men­tal al­ter­ation of terms and con­di­tions of em­ploy­ment can­not be done uni­lat­er­al­ly. The key­word is “uni­lat­er­al­ly”. Di­a­logue and con­sul­ta­tion are key for any change or al­ter­ations to ex­ist­ing terms and con­di­tions of em­ploy­ment to be ef­fect­ed.

Industrial Court president Deborah Thomas-Felix

Nicole Drayton

What is re­quired in my view, in these times of a cri­sis is not a uni­lat­er­al ap­proach but a con­sul­ta­tive ap­proach. Any em­ploy­er who is con­tem­plat­ing this type of change and oth­er changes of the terms of em­ploy­ment should have di­a­logue with the union. If there is no union, speak to the work­ers, pro­vide in­for­ma­tion about vac­ci­na­tion, where pos­si­ble, and dis­cuss the key rea­sons why the em­ploy­er thinks that vac­ci­na­tion is for the safe­ty and ben­e­fit of every­one in the work­place.

The em­ploy­ees and their rep­re­sen­ta­tives should be al­lowed to ex­press their views, their sup­port or raise their con­cerns at these meet­ings. These dis­cus­sions can be done vir­tu­al­ly in or­der to com­ply with the COVID-19 pro­to­col. If the em­ploy­er thinks at the end of the dis­cus­sions that the union’s po­si­tion is un­rea­son­able, there is a process which he can avail him­self to re­solve any im­passe.

We must re­mem­ber that a vac­cine is not a mask, a glove, a hel­met or any of the usu­al PPE used in the work­place en­vi­ron­ment. Vac­ci­na­tion is in­va­sive, it goes in­to the body, and as I said then at the Cham­ber’s meet­ing, there are cer­tain rights is­sues that go along with vac­ci­na­tion. There are some peo­ple for health rea­sons, moral rea­sons or re­li­gious rea­sons who will not want to take a vac­cine. Can an em­ploy­er make it a manda­to­ry con­di­tion for em­ploy­ment when the law does not make it manda­to­ry?

The world is ex­pe­ri­enc­ing a health cri­sis of this mag­ni­tude for the first time and we are all cop­ing with the at­ten­dant stress which is as­so­ci­at­ed with the mea­sures which have been adopt­ed to curb the pan­dem­ic. The ques­tion is re­al­ly, whether an em­ploy­er should be al­lowed to make a de­ci­sion that af­fects an in­di­vid­ual’s life with­out any dis­cus­sion with that in­di­vid­ual? Why not have dis­cus­sions and as­sist work­ers to un­der­stand the rea­son why a vac­cine is im­por­tant in the fight against COVID-19 and why it will be im­por­tant to have that ex­tra lay­er of pro­tec­tion in the work­place.

In Jan­u­ary at the we­bi­nar, we were ex­plor­ing and ex­am­in­ing the law which at present re­quires that when an em­ploy­er is con­tem­plat­ing a de­ci­sion to adopt mea­sures and poli­cies which will sig­nif­i­cant­ly al­ter and af­fect the lives of their work­ers, like a vac­ci­na­tion, such a de­ci­sion can­not be uni­lat­er­al. At that time, in Jan­u­ary, there was no vac­cine dis­tri­b­u­tion in T&T so the dis­cus­sion was aca­d­e­m­ic.

To­day, the broad­er dis­cus­sion is re­al­ly whether em­ploy­ers should make vac­ci­na­tion manda­to­ry or should work­ers be en­cour­aged to vol­un­tar­i­ly re­ceive the vac­ci­na­tion.

By far the vast ma­jor­i­ty of the work­force in coun­tries through­out the world have used the vol­un­tary ap­proach to vac­ci­na­tion. In this coun­try, pub­lic health reg­u­la­tions have been put in place by the State to pro­tect cit­i­zens. The Gov­ern­ment, the largest em­ploy­er of work­ers in this coun­try, is en­cour­ag­ing vol­un­tary vac­ci­na­tion of the pop­u­la­tion, as like many oth­er coun­tries. There­fore if and when, there is a de­ci­sion to be made on whether there should be vol­un­tary or manda­to­ry vac­ci­na­tion at the work­place; em­ploy­ers may want to take the Gov­ern­ment’s po­si­tion on board be­fore a fi­nal de­ci­sion is made.

I will re­peat, in my view, the Cham­ber was on­ly gath­er­ing in­for­ma­tion on the law and ex­plor­ing dif­fer­ent ar­eas of work­place prac­tice to as­sist its mem­bers. The is­sue of vac­ci­na­tion was a very small part of that dis­cus­sion.

The cur­rent sit­u­a­tion with this pan­dem­ic is ex­treme­ly flu­id and it keeps chang­ing every day. What per­tains to­day may not per­tain to to­mor­row. Who knows what will be im­ple­ment­ed in the fu­ture, in the world of work, in the con­tin­u­ous fight against this pan­dem­ic.

I urge mem­bers of the work­force and fel­low cit­i­zens to fol­low all the pro­to­cols, guide­lines and reg­u­la­tions which are in place to fight this virus. And at all times, in every­thing that you do, con­sid­er whether your ac­tions will save a life or whether by your ac­tions you con­tribute to some­one’s demise in­clud­ing yours.

Thomas-Fe­lix is a mem­ber of the Com­mit­tee of Ex­perts on the Ap­pli­ca­tion of Con­ven­tions and Rec­om­men­da­tions of the In­ter­na­tion­al Labour Or­gan­i­sa­tion. In that com­mit­tee, she spe­cialis­es in mar­itime law and oc­cu­pa­tion­al safe­ty and health. She is al­so a judge at the In­ter­na­tion­al Mon­e­tary Fund Ad­min­is­tra­tive Tri­bunal.