Originally published in the Sunday Guardian by a Guest Author and was republished by the Energy Chamber.
At her address to mark the beginning of the new law term earlier this week, the President of the Industrial Court, Mrs Deborah Thomas-Felix, made reference to what she termed as criticisms of the court for alleged bias against employers.
First of all, it is positive to see the Industrial Court seeking to engage in a frank debate about itself, very much in the spirit of Lord Atkin’s often quoted remarks from a 1936 Privy Council ruling found against then Trinidad’s Attorney-General over a matter of press freedom: “Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”
A far cry, and a positive step, from demanding copies of statements made by business people about the Court, as we witnessed in the recent past.
Back to the issue of bias, no doubt some may look at the figures quoted by the Industrial Court’s President itself as sign of bias, as they show that 70% of the adversarial cases seen by its judges between 2011 and 2015 were won by the unions, or the fact she made no reference to comparable statistics for the past few years. However, we risk missing the point by being too simplistic.
To begin with, it is hard to prove much through these statistics. After all, courts don’t operate in a world where every day or every case is the same. Just like a criminal court with a higher number of guilty verdicts cannot be automatically judged to be biased against those in the dock, measuring the Industrial Court’s performance by the number of cases it judges for or against employers alone isn’t very helpful.
The main issue here is not how many cases are won or lost. The issue is how, through its judgements, it has been effectively creating as law new labour principles without additional scrutiny which, then, can skewer the outcome of future cases.
A good example is how, despite the fact that the legislation does not require mandatory consultation with the unions over retrenchment, the Industrial Court not only made such process mandatory through its judgements but has since moved towards requirements for additional consultation with the workers as well (apparently ignoring the fact that the unions take issue – supported by court findings – when employers consult directly with the workers).
What those 70% perhaps show is that, by sometimes moving the goal posts from judgement to judgement, it may also be (unwittingly) shifting the benchmark employers are expected to meet. This is not about employers not caring about good industrial relations but more about employers having to hit a target forever moving whilst new requirements to the unions seem to be harder to come by.
It is also simplistic to rate as positive the fact that, in 2017/2018, some 35% of the disputes lodged with the Industrial Court were withdrawn by the unions. Rather than a good sign of positive dialogue between employers and unions, this could well be indicating timewasting through frivolous or useless cases. It is well known in industrial relations circles that a dispute is generally only withdrawn by a union when the worker cannot be located; a waste not only of time but also of resources as employers must deal with these disputes at a cost up until that point.
And the fact that Trinidad and Tobago is a signatory to the International Labour Organisation is no impediment for the country to have effective and fair industrial relations, quite the opposite.
For instance, many fellow ILO members have laws to curb frivolous claims (from either side), most do not limit access to labour courts to unions alone (from the employee’s part) and several have appeals processes to make sure employment tribunals always get their decisions right.
Like those countries, Trinidad and Tobago can also have these improvements without being in breach of its legal and moral obligations. By aiming to have the very best set of laws and principles guiding our industrial relations, we have a much better chance of overcoming some of our most basic (and intractable) labour matters we face here.
In her address, Mrs Thomas-Felix stated that ‘companies that value their human resources, respect the country’s labour laws and policies and maintain the practice of good industrial relations, are unlikely to be involved in matters which are not settled in a manner agreeable to all parties’.
In principle, this is absolutely right. But it is disappointing that employers were singled out in her comments. After all, the same points are equally applicable to the unions.
This is important not only for the key principle of fairness but also because such statements seem to help perpetuate a rather simplistic and deeply unfair concept of industrial relations: one by which employers are painted as mostly the bad guys and the unions as the victims.
Both sides get things wrong, thus both sides must be held to account for when they fail to maintain the practice of good industrial relations or break the law. In essence, this must apply equally to when bosses abuse their powers or, say, unions call an illegal strike dressed up as a day of reflection.
It’s the failure to do so that can expose the Industrial Court to criticism and claims of bias, not necessarily statistics about verdicts.
No court will be without its critics, including our Industrial Court, and some criticism will be unfair. But there’s definitely room for improvement to make our industrial relations laws better and stronger, and amongst the best in the world.