Raphael John-Lall

The ap­point­ment of a new pres­i­dent of the In­dus­tri­al Court comes af­ter years of pub­lic dis­agree­ments and con­flict in­volv­ing the busi­ness com­mu­ni­ty and their ri­vals in the trade union move­ment, with both sides al­leg­ing that the court has been one sided in its judg­ments and has ei­ther been pro-union or pro-busi­ness.

Lec­tur­er of Labour Stud­ies at the Cipri­ani Col­lege of Labour and Co-op­er­a­tive Stud­ies, Trevor John­son, who made it clear to the Busi­ness Guardian that the views he gave were per­son­al said he does not be­lieve that the Court favours the trade union move­ment over the busi­ness com­mu­ni­ty.

John­son re­ferred to the an­nu­al re­port of the In­dus­tri­al Court which shows that many judg­ments do go against work­ers and trade unions so there has nev­er been any doubt about “the fear­less­ness of the court”.

“Re­cent judg­ments in in­junc­tions against Trinidad and To­ba­go Uni­fied Teach­ers’ As­so­ci­a­tion (TTUTA) (teach­ers) and T&T Air­lines Pi­lots As­so­ci­a­tion (TAL­PA) (pi­lots) should put to rest those un­found­ed al­le­ga­tions, not to men­tion the 0-0-0 judg­ment against Oil­field Work­ers’ Trade Union (OW­TU) and Es­tate Po­lice As­so­ci­a­tion (EPA) by the Es­sen­tial Ser­vices Di­vi­sion of the Court. Fo­cus in­stead must be giv­en to em­ploy­ers who seek to dis­tort the in­ten­tions of the court by ty­ing up sim­ple cas­es with un­nec­es­sary le­gal ar­gu­ments and in sev­er­al cas­es seek­ing ad­journ­ments or not even both­er­ing to ap­pear thus treat­ing the ju­ris­dic­tion of the court with dis­re­spect.”

He com­ment­ed on the im­por­tance of the role the In­dus­tri­al Court as an in­de­pen­dent in­sti­tu­tion.

“The In­dus­tri­al Court must be al­lowed to play the role it was es­tab­lished to per­form un­der the In­dus­tri­al Re­la­tions Act (IRA) in en­sur­ing a place where both work­ers and em­ploy­ers can seek jus­tice and due process in treat­ing with work­ers’ is­sues at the work­place is ad­hered to and re­spect­ed. What is iron­i­cal is that the for­mer pres­i­dent of the court has been sub­ject to ex­act­ly the type of dis­missal that some em­ploy­ers seem to want to prac­tise as the norm and sad­ly the State, as now the largest em­ploy­er, has be­come one of the key of­fend­ers in this re­gard.”

Last month, Heather Seale was ap­point­ed as the new pres­i­dent of the In­dus­tri­al Court re­plac­ing Deb­o­rah Thomas-Fe­lix who had served as pres­i­dent for 12 years.

Seale is the sev­enth pres­i­dent of the In­dus­tri­al Court of T&T.

The busi­ness com­mu­ni­ty and the trade unions’ ini­tial re­ac­tions to the swear­ing in of the new pres­i­dent of the In­dus­tri­al Court were very dif­fer­ent.

The Joint Trade Union Move­ment (JTUM) sent out a state­ment short­ly af­ter Seale was sworn in, which said: “The un­prece­dent­ed way this ap­point­ment has been made now rais­es se­ri­ous con­cerns over the per­cep­tion of the in­de­pen­dence of the In­dus­tri­al Court.”

The T&T Cham­ber of In­dus­try of Com­merce, in a brief state­ment to the Busi­ness Guardian, wished Seale suc­cess in her new role at the In­dus­tri­al Court and ex­pressed con­fi­dence that the court will con­tin­ue to be im­par­tial in its judg­ments.

“We warm­ly wel­come Her Ho­n­our Heather Seale as the new court pres­i­dent. We are con­fi­dent that un­der her guid­ance, the In­dus­tri­al Court will con­tin­ue its com­mit­ment to im­par­tial and ef­fi­cient ad­ju­di­ca­tion, all in tan­dem with the con­tin­ued ef­fec­tive ap­pli­ca­tion of its fo­rums for con­cil­i­a­tion and stake­hold­er ed­u­ca­tion. We are con­fi­dent that the lega­cy of ex­cel­lence es­tab­lished by the courts’ pre­vi­ous six pres­i­dents will un­doubt­ed­ly be sus­tained and fur­ther en­hanced un­der pres­i­dent Seale’s ca­pa­ble lead­er­ship.”

The Em­ploy­ers’ Con­sul­ta­tive As­so­ci­a­tion (ECA) al­so sent out a me­dia state­ment on the In­dus­tri­al Court’s new pres­i­dent.

“The ECA wish­es to ex­tend a very warm wel­come to the new­ly ap­point­ed pres­i­dent of the In­dus­tri­al Court of T&T, Her Ho­n­our Jus­tice Heather Seale. In this re­gard, the ECA ex­tends its very best wish­es for a suc­cess­ful tenure as she con­tin­ues to build on the foun­da­tion al­ready laid to fur­ther so­lid­i­fy and strength­en the role of this in­sti­tu­tion in pro­vid­ing req­ui­site guid­ance to fos­ter and en­hance ap­pro­pri­ate be­hav­iour­al prac­tices and de­ci­sion mak­ing in the world of work, and in so do­ing, as­sist in the preser­va­tion and pro­mo­tion of in­dus­tri­al peace and sta­bil­i­ty – all of which are cor­ner­stones of the In­dus­tri­al Court.”

The ECA al­so said that as it looks to the fu­ture, it would like to see greater trans­paren­cy in the process of ap­point­ing mem­bers to the In­dus­tri­al Court and for their se­cu­ri­ty of tenure to be equiv­a­lent to that of oth­er judges in Courts of Su­pe­ri­or Record.

“This, we be­lieve, is be­com­ing a greater im­per­a­tive in pre­serv­ing the in­de­pen­dence of this very im­por­tant na­tion­al in­sti­tu­tion.”

In the past, the T&T Cham­ber of In­dus­try and Com­merce ques­tioned some of the judge­ments de­liv­ered by the In­dus­tri­al Court.

In a me­dia state­ment dat­ed Au­gust 20, 2019, the T&T Cham­ber of In­dus­try and Com­merce said: “The busi­ness com­mu­ni­ty has for a long time been ex­press­ing con­cern about the In­dus­tri­al Court’s judge­ments, many of which they be­lieve to have been ar­bi­trary, un­fair and ir­ra­tional.”

The state­ment was in re­sponse to the In­dus­tri­al Court’s de­ci­sion to dis­con­tin­ue its in­quiry in­to al­le­ga­tions of con­tempt of court raised by the Joint Trade Union Move­ment (JTUM) against the Trinidad and To­ba­go Cham­ber of In­dus­try and Com­merce.

The mat­ter arose out of a break­fast meet­ing the Cham­ber held in 2016 on the top­ic of the im­pact of In­dus­tri­al Court judge­ments on busi­ness where par­tic­i­pants ex­pressed opin­ions that the in­dus­tri­al re­la­tions en­vi­ron­ment was con­strain­ing pro­duc­tiv­i­ty be­cause of em­ploy­ers’ in­abil­i­ty to get fair judge­ments at the In­dus­tri­al Court.

Fol­low­ing news re­ports out of that fo­rum in 2016, JTUM is­sued a paid ad­ver­tise­ment which al­leged con­tempt of the In­dus­tri­al Court on the part of the T&T Cham­ber of In­dus­try and Com­merce and par­tic­i­pat­ing speak­ers.

In May 2016, Thomas-Fe­lix gave a speech at the Hy­att re­gency Ho­tel in Port-of-Spain on the role of the In­dus­tri­al Court in the chang­ing in­dus­tri­al re­la­tions land­scape in which she said the In­dus­tri­al Court of T&T is a su­pe­ri­or court of record which has a man­date to make bet­ter pro­vi­sion for the sta­bil­i­sa­tion, im­prove­ment and pro­mo­tion of in­dus­tri­al re­la­tions in this coun­try and its ob­jec­tive is the main­te­nance of good in­dus­tri­al re­la­tions prin­ci­ples and prac­tices and the preser­va­tion of in­dus­tri­al peace and eco­nom­ic sta­bil­i­ty in the labour mar­ket.

Thomas-Fe­lix al­so re­ferred to me­dia re­ports at that time which high­light­ed the heat­ed de­bate among the busi­ness com­mu­ni­ty, trade unions and crit­ics of the In­dus­tri­al Court say­ing that it will con­tin­ue to op­er­ate as an im­par­tial in­sti­tu­tion.

“It is im­por­tant that both em­ploy­ers and em­ploy­ees do not abuse the law and the prin­ci­ples and prac­tice of good in­dus­tri­al re­la­tions even as they ad­just to the chang­ing eco­nom­ic times. It is al­so equal­ly im­por­tant that all par­ties clear­ly un­der­stand the role that the Court plays in ad­ju­di­cat­ing fair and eq­ui­table out­comes and in en­sur­ing that the rule of law pre­vails to main­tain the har­mo­nious and ef­fi­cient func­tion­ing of the labour mar­ket which is vi­tal for labour pro­duc­tiv­i­ty and eco­nom­ic growth.”

In­de­pen­dent ar­biter

In­dus­tri­al re­la­tions con­sul­tant Lesmore Fred­er­ick, who has lec­tured in In­dus­tri­al Re­la­tions and Labour Law at the ter­tiary lev­el, told the Busi­ness Guardian that there should be a rea­son­able ap­proach to de­ter­mine the views held by some ac­tors of in­dus­tri­al re­la­tions in T&T that the In­dus­tri­al Court ap­pears to be bias.

He said a “jus­ti­fi­able ar­gu­ment” ought to be es­tab­lished if the In­dus­tri­al Court is not seen to be in­de­pen­dent and im­par­tial.

He re­ferred to In­di­an lawyer Poo­ja Chakrabar­ti who is an ex­pert in com­mer­cial lit­i­ga­tion, who in a study done in 2019 called “Law of bias in Ar­bi­tra­tion: Cer­tain As­pects,” ar­gued, “The rule against bi­as­ness is a fun­da­men­tal prin­ci­ple of nat­ur­al jus­tice which ap­plies to ju­di­cial and qua­si pro­ceed­ings. The func­tions and du­ties re­quire the ar­bi­tra­tor to rise above par­ti­san in the in­ter­est of both par­ties.”

Fred­er­ick al­so said the study fur­ther ar­gued that par­ties must not act in a man­ner to fur­ther the in­ter­est of ei­ther par­ties. There­fore, any bias claim made against the In­dus­tri­al Court re­quires that the pre­scribed re­la­tion­ship and cir­cum­stances must be jus­ti­fi­able to mer­it the claim that the Court is not in­de­pen­dent and it lacks im­par­tial­i­ty in its deal­ings in ar­bi­tra­tion mat­ters.

Based on the per­cep­tion by stake­hold­ers like trade unions or busi­ness­es that the In­dus­tri­al Court is not fair and im­par­tial, Fred­er­ick said it is an op­por­tu­ni­ty for the In­dus­tri­al Court to work with all groups to en­sure that this im­por­tant in­sti­tu­tion is seen as in­de­pen­dent.

“The ar­gu­ment that the In­dus­tri­al Court is not in­de­pen­dent and im­par­tial pro­vides an op­por­tu­ni­ty for the In­dus­tri­al Court Pres­i­dent to work with the ac­tors of in­dus­tri­al re­la­tions. I look for­ward in the near fu­ture that the In­dus­tri­al Court and the ac­tors of in­dus­tri­al re­la­tions will work to­wards hav­ing a com­mon per­cep­tion that the In­dus­tri­al Court judges are in­de­pen­dent and act in ac­cor­dance with the law.”