Last Tuesday, Her Honour Mrs Heather Seale delivered her first speech to mark the opening of the 2024/2025 law term at the Industrial Court, following her appointment as its president in December.
In the speech, Mrs Seale acknowledged that, from time to time, the court is the target of criticism, something that has been happening since its creation nearly 60 years ago, and it is good she seems to accept this as part of life in a democratic society.
Mrs Seale went on to list some of the employment challenges we face in today’s world, including ‘teleworking, hybrid work, Artificial Intelligence, zero hours contracts and unlimited vacation leave’, adding a call for employers ‘to develop policies to govern the terms and conditions of employees, in the areas where these working arrangements may apply’.
This is an important call to action as the grey areas are many, especially in relation to things like working from home, which may well end up being at the centre of legal disputes in the near future.
As the president of the Industrial Court went on to point out, some of these matters are already the subject of litigation in other jurisdictions and ‘are likely to arise in Trinidad and Tobago also’.
Mrs Seale reminded those at the opening that our labour laws don’t specify the principles and practices of good industrial relations and that, by doing so, ‘the act greatly allows the court to take account of the dynamics of society and the changing landscape in the world of work’. And this is a worrying issue, especially at a moment in time when the world of work is changing beyond recognition.
There is no doubt that its judges do their very best to be fair and reasonable whilst applying the latitude granted to the court by the law. But it was wrong, and continues to be, for the act that created the Industrial Court to in practice have, perhaps by accident, the ability to ‘create’ new rules out of its judgements that effectively become enshrined in our labour legal framework for a long time.
As much as the judges may be capable of making such decisions, many of these calls should rest with Parliament given the broader impact they may have in society. Such decisions are more representative if made by those elected by the people, instead of judges who are appointees. This is not a question about their abilities and probity (especially when compared with politicians) but about democratic accountability.
Here is a practical example of this accidental legislative process via the Industrial Court we must avoid. A few years ago, the Industrial Court ruled that trade unions and employers were not allowed to enter into an agreement by which individuals selected for retrenchment could be paid in lieu of serving their notice period. Through this ruling, the Industrial Court effectively banned any such agreement entered in good faith and supported by both employers and a recognised trade union, even when the payment might be of interest to the individuals leaving the company.
The logic of the decision was and continues to be difficult to follow, especially as often employees want to leave as soon as possible to seek a new job with a lot more freedom and, if lucky, to find a quick alternative, to be able to save the payment in lieu of notice for rainy days. But the biggest problem here is that such an important and transformative decision didn’t happen through an amendment to our labour laws after the right level of scrutiny and debate in Parliament but through a judgement at the Industrial Court.
A more, yes, prescriptive set of labour laws in T&T would have avoided that and other similar controversial outcomes, many of them not even open to appeals due to the Industrial Court’s High Court status. The new challenges the world of work is facing, including those listed by Mrs Seale, are indeed considerable and potentially transformative for societies across the world, including T&T.
Some of them can also make the difference between us being competitive or not at a global scale, as both professionals and businesses move around the world based on what is best for them. Given the impact decisions on matters such as the use of AI in the workplace, flexible work and zero-hour contracts can have on our economy now and for generations to come, they should be a matter for debate and approval in Parliament as a package of updates to our labour laws, and not the outcome of piecemeal decisions through the Industrial Court. No doubt that would benefit the country, but that might also be appreciated by the judges at the court, as more clarity should help guide their decisions and streamline the process, contributing to a reduction of the case backlog they face at the moment.
More guidance through legislation is even more important for a court that is fundamentally different from others in T&T in one aspect: when it was set up nearly 60 years ago, it was decided that it would be effectively shut for ordinary employees, as most cases the Industrial Court is allowed to contemplate can only be brought to their attention through a trade union.
Again, this is not something the judges have created, and they have to follow what the law says, but the case for the Industrial Court to have the kind of leeway it has over very fundamental labour matters is weakened even further given its rather limited access under the current legislation.
Perhaps a good 60th-anniversary gift would be a comprehensive review of T&T’s labour laws designed to provide, amongst other things, a more detailed guidance to the Industrial Court’s remit, better define its decision-making limits and make it truly open to all.