What it means to consult, discuss and agree in industrial relations

When does consultation mean “discussion and consideration,” and when does it mean “agreement”?

Words are tricky and multifaceted. One word can imply many different things but mean only one to the person you are talking to; it may genuinely mean something opposite to what you intended. What is in your brain or in your heart may not be what comes out of your mouth, or even what another person hears you say.

People, often in debate, especially political debate about the process for appointing a police commissioner, or promises in the budget, as we have seen this week, tend to hear what they want to hear.

There used to be a legal offence taken up in all sincerity by lawyers called breach of promise when a young lady considered that the sweet words a young man had urgently whispered to her the night before were an offer of marriage, and the young man thought they were in consultation on spending the night together.

A dying man’s promise to leave a piece of land or a thriving business property to his grandchildren may be interpreted by the two grandsons as meaning it should go to them alone, because in their minds, and sometimes in their ancestral cultures, property should be left only to the male descendants, but to his three sisters and their legal representatives, the word “grandchildren” means all the grandchildren, regardless of sex or gender, and so they all should inherit equally.

In industrial relations, the exact meaning of words has long been vital and is why, in an early judgement from the Industrial Court, parties were warned that industrial relations was not a job for amateurs. One early and important award depended solely on when and whether the word “or” meant “and,” and when it meant “or.” When it was to be interpreted “inclusively” and when it was to be interpreted “exclusively” made a large and hotly debated difference.

A more recent industrial relations discussion surrounded the meaning of the word “consult” which appears in legislation, in human resource policies and collective agreements. The retrenchment and severance benefits legislation, for example identifies the usage when it comes to the need to retrench workers thus:

Section 5: “The employer may enter into consultation with the Recognised Majority Union with a view to exploring the possibility of...”

In this case the word “may” indicates that the consultation is voluntary, not a compulsory one, which reflects the reality that most employees in TT are not covered by union representation. Veteran trade unionist Cecil Paul stated recently that trade union membership had dropped from 40 to 18 per cent of the formerly unionised labour force.

If that 18 per cent includes the 80,000 public servants who are automatically registered as members of the PSA, the employed people in the private sector make up the rest of the labour force. This was last estimated at 354,000 by the CSO, so when it came to the need for consultation when non-unionised workers were facing the threat of retrenchment, the legislation added a mandatory clause. That was Section 10, which said: “the parties shall enter into discussion with a view to agreeing upon an acceptable solution...”

That it used the word “shall” implied the consultation was mandated, not voluntary.

It still did not imply agreement, however. As in circumstances such as the consequences of fire, civil war, hurricane or other acts of God, consultation may not be necessary, or even possible.

In civil law, consultation has been defined variously as “discussion in order to gain information,” such as when you consult with a doctor or a building engineer or an IT expert, or it can be interpreted as a “discussion with a desire to listen and genuinely consider another party’s point of view,” again with a view toward reaching a decision or finding a solution to a problem.

In industrial relations, the president of the Industrial Court (which will be the final arbiter in employment situations where, even following genuine consultation, agreement has not been reached) has also been reported as noting that “consultation” is “with a view to reaching an agreement.”

Well, of course it is! Common sense dictates that. If you are going to consult at all it would be with a view to finding a common ground. Otherwise why bother to consult?

Sometimes agreement is reached, as the fortunate amorous young man or the passionate shop steward discovers to his (or her) delight, and sometimes it isn’t. Consultation means genuinely considering the other party’s points, not necessarily agreeing with them. That is why we have a Ministry of Labour and an Industrial Court to mediate, conciliate and arbitrate…when there is no agreement.