Industrial Court head: Employers can't introduce unilateral covid19 vaccine policies

EMPLOYERS cannot unilaterally introduce mandatory covid19 vaccination policies in the workplace as a new term of employment without consultation, Industrial Court president Deborah Thomas-Felix stressed on Friday.

Thomas-Felix addressed covid19 and the heated issue of mandatory vaccination during her address at the ceremonial opening of the Industrial Court’s 2021/2022 law term.

While making it clear her view was not that vaccinations cannot be a protective measure at work, she said for a vaccination policy to be a condition of employment, there must be dialogue between the employer and employee, or the recognised trade union, through the collective bargaining process.

“Can such a policy be introduced unilaterally by employers in the workplace?

"The short answer to that question is no.”

Thomas-Felix said while Trinidad and Tobago’s laws do not directly address covid19 vaccinations as a condition of employment, nor were there any express provisions in the Industrial Relations Act, the country’s legal framework provides for new policies, terms and conditions of employment.

New vaccination policies and arrangements can be done through collective bargaining.

“It is settled law that an employer ought not to unilaterally make any material change or alteration to a worker’s contract...The introduction of a covid19 vaccination policy or any new policy can amount to a material change in the terms and conditions of employment and ought not to be imposed unilaterally,” she argued.

“In fact, the Industrial Relations Act makes collective bargaining between employers and trade unions mandatory.”

Thomas-Felix expressed alarm at the number of industrial relations complaints filed in the court since March 2020, saying it was of “great concern.”

From then to September 14, she said 178 covid19-related complaints had been filed, most of which related to the lack of consultation by employers with workers, unilaterally alterating terms and conditions of employment and failing to enter into collective bargaining with unions to discuss and resolve covid19-related issues.

With the onset of the pandemic and the availability of covid19 vaccines, mandatory vaccination has been a heated topic both locally and worldwide.

Thomas-Felix said if it were simple, governments across the globe would already have implemented national mandatory vaccination policies.

Instead, she said they are educating their populations about different vaccines, the importance of taking them and encouraging citizens to get vaccinated.

In fact, in the US, President Biden has made vaccinaton mandatory for 100 million workers. Australia, France and England and Wales, among others. have moved to mandate vaccination for care workers.

Thomas-Felix said the World Health Organization has advocated against making vaccinations mandatory because of the distrust associated with such a decision, and the International Labour Organisation (ILO) has issued recommendations on the topic.

The ILO has said the legal basis for such measures to be introduced would largely depend on the national regulatory framework, and an approach involving consultation between employers and workers.

It also said a decision on mandatory vaccination made by an employer, after proper consultation, should be implemented in a non-discriminatory manner.

Thomas-Felix said for employers to discharge their legal duty to provide a safe work environment, steps can be taken to minimise the risk of covid19, such as ensuring employees wear masks, providing hand sanitiser, promoting and maintaining physical distancing, ensuring surroundings are clean and requiring employees with symptoms to stay at home and seek treatment.

She pointed out that the ILO recommended that occupational, safety and health measures adopted by the employer “shall not involve any expenditure for the workers." This country’s OSH Act also provides that safety and protective measures in the workplace “shall not involve any expenditure for workers,” she added.

“The measures taken must be case- and fact-specific." This is where comprehensive bilateral consultation plays a critical role, she said. Means to address new issues at the workplace can only be taken after consultation.

She also said collaborative risk-assessment should be done to determine if there are compelling reasons to adopt a policy that distinguished between non-vaccinated and vaccinated workers.

"So too should the training needs of workers, especially training and education on vaccines. If a risk-assessment policy is considered and contemplated by a company, the union should be consulted at the very initial stages, and collective bargaining should commence...If there is no union at the company, there will be a need for discussions and dialogue, not monologues, with workers.”

As she spoke of discussions between the various trade union umbrella bodies with national chambers of commerce on covid19 in the workplace, she expressed the hope they would bear fruit by assisting in providing guidance.

Thomas-Felix also urged the leaders of these trade union bodies to reconsider their decision to withdraw from the National Tripartite Advisory Council. In March, the Joint Trade Union Movement (JTUM), the National Trade Union Centre (NTAC), and the Federation of Independent Trade Unions (FITUN) announced their withdrawal.

But Thomas-Felix said, “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 the workforce needed to be reassured and comforted by knowing the tripartite leaders (government, employers and trade unions) were talking regularly with a view to reaching agreement on methods in the workplace to address issues created by the pandemic.

She also urged the trade union movement and the government to iron out their differences to allow meaningful discussions on the effects of the pandemic.

“I cannot overstate the importance of discussions, genuine consultations and compromise, built through social dialogue, for the effective implementation of measures to address this pandemic and its impact on the labour market.

She said it was important for employers and unions to adjust to new, necessary workplace policies "in a spirit of respect and compromise" for the survival and sustainability of businesses, saving lives and saving jobs.

She said the filing of 178 complaints related to covid19 reflected the absence of social dialogue in the workplace.

She was troubled by unilateral covid19-related decisions, which led to worsening labour-management relations "and does not augur well for industrial relations and productivity in the post-covid19 economy.

She strongly urged all participants to try to reverse this, and reminded that the rights of both employers and workers were not absolute.

“The devastating effects and the need to combat the spread of this pandemic assume far greater importance than the assertion of these individual rights at this time."

In the event that employers' and workers' rights were at odds, neither would automatically take precedence, she warned.

Review of Industrial Court's performance

Reviewing the court’s work for the past year, she said 966 new cases were filed, 61 more than the previous year. The court disposed of 1,037 cases, or more than 330 cases in the previous year.

She said the disposal rate for this year was 107.3 per cent – 29.2 percentage points higher than the previous year.

In the past year, 304 judgments were delivered; 396 cases withdrawn, 297 settled and 35 dismissed.

She also said the court did not have the technology and equipment to hold virtual hearings, despite requests.

From September to April, there were open court sittings to complete part-heard matters and to hear urgent applications. Case-management hearings are done virtually and the court facilitates filing documents using drop boxes to minimise contact between staff and the public.

Friday’s ceremonial opening of the new term was held virtually.