Originally published in the Sunday Guardian by a Guest Author and was republished by the Energy Chamber

Petrotrin is and will continue to dominate the news. And for good reason. We must keep asking ourselves how we got where we are. Why Petrotrin – the company supposed to be our crown jewel – ended up in such dire situation. And how we can prevent more joining the same fate as Petrotrin’s refinery, the Arcelor steel plant, the idle platform production sites in La Brea and many other abandoned or underutilised manufacturing sites across the islands.

No sane person in the country would have wished for such outcome. Just over 56 years ago, the nation’s founders – and newly independent citizens – wanted and hoped for a new country of world-leading companies and a just society. Our mistakes have taken us where we are but we can fix them.

If Petrotrin is symptomatic of our ills, it can also become the trigger for our transformation. It can be a test of our determination to do the right thing and make Trinidad and Tobago the competitive, positive and thriving nation we all want it to be.

First of all, the shareholders – effectively all of us taxpayers – must be firm. Petrotrin’s past decisions have been dictated by either government or union leaders, making life for its boards impossible. This time we have a professional board in place, comprising people chosen for their astute commercial acumen, not for their political preferences. A solid board has made a decision and we must let them work through the plan, without interference.

Petrotrin – and the government – must be sympathetic and prepared to listen to the recognised majority union, the OWTU, when it comes to the retrenchment consultation. But this has to start from the premise that the leadership of the company has fulfilled its duty and made a managerial decision to close down the refinery. It must be clear to all that this decision is not up for consultation with the union.

The consultation process must also be swift, within a set timeframe and without room for theatrics or timewasting. That is crucial for Petrotrin’s viability and for the workers’ own sake. The fear of job losses shouldn’t be underestimated. But the anxiety generated by a long and protracted process is even more damaging.

But here is where problems begin. Our unions have grown used to delay tactics and subterfuge to avoid retrenchment processes; often, they also seek to undo them altogether through the Industrial Court. And, more often than not, they succeed. This happens thanks to fuzzy legislation and jurisprudence developed over the years by the Industrial Court itself.

The current legislation says nothing about requirements for consultation. In recent times, however, the Industrial Court has effectively made consultation mandatory, but without clarity over what defines a reasonable timeframe.  This has become an invitation for union leaders to be forever unavailable, walking out of consultation meetings, and always arguing that employers failed to give enough time and attention to their views.

How consultations must take place also seem to change, depending on the Industrial Court judge. In a 2017 judgement, for instance, a company was found to be wrong for only consulting with the union and not also with the workers. This makes particularly little sense as the unions are also known to cry foul (and take employers to court) by alleging that they are illegally negotiating directly with workers if they speak to individuals and not the union. They cannot have it both ways. 

There are sensible ways to deal with retrenchment in a fair but productive manner. No one wants retrenchment - employers included - unless absolutely necessary. They are costly and traumatic processes. And do not believe in tales of heartless employers or managers. Ask any HR professional how it feels to tell someone that he or she no longer has a job. It’s not easy and it will never be.

To begin with, the law must protect workers but also reflect the fact the world changes and businesses go through economic cycles. Our legislation only recognises retrenchment when there’s ‘surplus of labour’. Factors such as economic downturn, an industry’s cycle or productivity issues are not accepted. From this perspective, it is easier for a company to close down altogether than seek to reduce its workforce due to lower output or economic downturn.

Businesses operating in less restrictive environments can flex more rapidly (expanding or, indeed, reducing their workforce) to adapt to market conditions. The US energy sector, for instance, saw a significant employment drop immediately after energy prices collapsed.  Now they are employing again.

In Britain, when Renishaw, a specialised engineering company, was hit by the financial crisis in 2008, it laid off about half of its workforce, agreed a salary reduction for those who stayed, yet it sought to preserve its research and development budget in a sector where market innovation is king. It not only survived the crisis, but it now employs even more people (some rehired, some new staff with new skills required), thriving in a highly competitive market.

If based here in T&T, Renishaw would have been more likely to meet the fate of Arcelor Mittal’s steel plant. And it’d have been rebuked by unions and the Industrial Court – both allergic to the idea that a business may preserve some funds for investment even whilst having to reduce its workforce.

The law must be designed to let business get on with business and only intervene to ensure that employees are not exploited or discriminated against. That way, the fundamental human rights associated with any progressive, liberal democracy are protected. The Industrial Court is neither qualified nor authorised to exercise business judgment. It moves into dangerous territory when it seeks to mitigate perceived social ills associated with job losses by crippling an employer’s ability to adapt, survive and grow. This approach is quite the opposite of social justice as more jobs are put at risk.

Have no doubt that the OWTU will use every single tactic – many backed up by Industrial Court practice – to delay and derail the changes at Petrotrin. In the process, they will further damage the company’s prospects and ours as a nation.

Petrotrin is not just about a refinery. It’s about us becoming finally ready to have a diversified and flexible economy. Adapting and spotting opportunities. Creating wealth for all, not just for a clique of workers. If we fail to make the changes needed now, beyond Petrotrin, we will fail generations to come. The future must begin today.