Derek Achong

In­dus­tri­al Court pres­i­dent Deb­o­rah Thomas-Fe­lix has stat­ed that manda­to­ry vac­ci­na­tions can­not be im­ple­ment­ed uni­lat­er­al­ly by em­ploy­ers.

De­liv­er­ing her an­nu­al speech at the open­ing of the court’s 2021/2022 Law Term at its head­quar­ters in Port-of-Spain yes­ter­day morn­ing, Thomas-Fe­lix stat­ed that while em­ploy­ers are per­mit­ted to in­tro­duce a vac­ci­na­tion pol­i­cy for new em­ploy­ees, con­sul­ta­tion is manda­to­ry for it to ap­ply to ex­ist­ing work­ers.

Thomas-Fe­lix said: “In oth­er words, can such a pol­i­cy be in­tro­duced uni­lat­er­al­ly by em­ploy­ers in the work­place? The short an­swer to that ques­tion is NO.”

“The in­tro­duc­tion of a COVID-19 vac­ci­na­tion pol­i­cy or any new pol­i­cy can amount to a ma­te­r­i­al change in the terms and con­di­tions of em­ploy­ment and ought to be im­posed uni­lat­er­al­ly,” she added.

She not­ed that if work­ers or their recog­nised ma­jor­i­ty union can­not come to an agree­ment over such a pol­i­cy, they can take their dis­pute to the Min­istry of Labour or come di­rect­ly to the court through the fil­ing of an in­dus­tri­al re­la­tions of­fence.

Thomas-Fe­lix al­so sug­gest­ed that unions and em­ploy­ers con­sid­er adding COVID-19 re­lat­ed claus­es when en­ter­ing in­to ne­go­ti­a­tions for new col­lec­tive agree­ments.

Be­yond vac­ci­na­tion poli­cies, Thomas-Fe­lix said that em­ploy­ers are re­quired to take all “rea­son­ably prac­ti­ca­ble” steps to pre­vent the spread of COVID-19 in the work­place.

“In short an em­ploy­er’s du­ty can on­ly be con­sid­ered to be dis­charged when he/she ap­plies and up­holds the re­quire­ments of the pub­lic health laws, the Oc­cu­pa­tion­al Safe­ty and Health (OSH) Act and the laws of the coun­try in gen­er­al,” Thomas-Fe­lix said.

She al­so stat­ed that the OSH Act re­quires that em­ploy­ers bear the costs as­so­ci­at­ed with such mea­sures.

Thomas-Fe­lix rec­om­mend­ed that em­ploy­ers en­gage in risk as­sess­ments with con­sul­ta­tion with unions or work­ers to de­ter­mine whether there are com­pelling rea­sons to dis­tin­guish be­tween vac­ci­nat­ed and un­vac­ci­nat­ed em­ploy­ees. “The risk of dis­crim­i­na­tion should be among the fac­tors to be con­sid­ered if such an as­sess­ment is un­der­tak­en and so too should the train­ing needs of work­ers, es­pe­cial­ly train­ing and ed­u­ca­tion on vac­cines,” she said.

Thomas-Fe­lix not­ed that while be­tween Jan­u­ary to March 2020 on­ly six in­dus­tri­al re­la­tions of­fences were filed at the court, 178 were filed be­tween March 2020 and Sep­tem­ber 14.

“Most of these in­dus­tri­al re­la­tions of­fences are com­plaints re­lat­ed to the COVID-19 pan­dem­ic and the ma­jor­i­ty of them per­tain to the lack of con­sul­ta­tion by em­ploy­ers with work­ers, the uni­lat­er­al al­ter­ations of terms and con­di­tions of em­ploy­ment and the fail­ure of em­ploy­ers to en­ter in­to col­lec­tive bar­gain­ing with unions to dis­cuss and re­solve COVID-19 re­lat­ed is­sues,” Thomas-Fe­lix said.

She sug­gest­ed that the high rate of fil­ings demon­strat­ed the ab­sence of so­cial di­a­logue by many in the work­place.

“Uni­lat­er­al COVID-19-re­lat­ed de­ci­sions are caus­ing a de­te­ri­o­ra­tion of labour man­age­ment re­la­tions which is very trou­bling and does not au­gur well for in­dus­tri­al re­la­tions and pro­duc­tiv­i­ty in the post-COVID-19 econ­o­my,” Thomas-Fe­lix said.

“I strong­ly urge all par­tic­i­pants of the labour mar­ket to take note of this de­vel­op­ment and to make ef­forts to re­verse this,” she added.

Thomas-Fe­lix al­so com­ment­ed on the de­ci­sion of the Na­tion­al Con­fed­er­a­tion of Trade Unions to with­draw from the Na­tion­al Tri­par­tite Ad­vi­so­ry Coun­cil.

“How­ev­er, this is the time in our na­tion’s his­to­ry where there is a need for the work­force to be guid­ed by the de­ci­sions of the tri­par­tite lead­ers,” she said.

She com­mend­ed the Fed­er­a­tion of In­de­pen­dent In­de­pen­dent Trade Unions and NGOs (FI­TUN), the Joint Trade Union Move­ment (JTUM), and the Na­tion­al Trade Union Cen­tre of T&T (NATUC) for en­gag­ing in bi­lat­er­al dis­cus­sions with busi­ness groups in Au­gust.

“These tri­par­tite meet­ings mark a very im­por­tant first step in tack­ling the is­sues cre­at­ed by the pan­dem­ic, and I do wish that they bear fruit and as­sist in pro­vid­ing much-need­ed guid­ance in the work­place,” she said.

Deal­ing with the work of the court over the past year, Thomas-Fe­lix not­ed that 966 new cas­es were filed com­pared to 905 for the pre­vi­ous year.

The court was able to dis­pose of 1,037 cas­es, which was 330 more than the cas­es dis­posed of in 2019/2020.

She not­ed that while there were open court hear­ings be­tween Sep­tem­ber, last year, and April, this year, there were none be­tween May and Ju­ly be­cause the court does not have the tech­nol­o­gy or equip­ment to fa­cil­i­tate vir­tu­al hear­ings.