The High Court let loose a can of worms last week when the audited report on the accounts and financial policies, or lack thereof, of the Public Services Association (PSA) exposed the misgovernment, and to be honest, the malfeasance, that existed in that organisation.
But more than that, it has exposed some very serious gaps in the entire legal architecture that governs industrial relations in Trinidad and Tobago.
Inspired by the High Court judgment, I went to the Trade Union Act, because I could not understand how the PSA had been allowed by the registrar of trade unions to have fallen into such disarray.
Did that act not require that all trade unions must be registered under the act and, as with every organisation so registered, be required to be audited annually to make sure that the affairs of the union and its finances were in order?
I went to the Industrial Court website, where all labour legislation in available. Every relevant labour law other than the Trade Union Act, that is, which I found peculiar.
The Industrial Court in TT is a superior court of record with the powers of a high court. It was established in 1962 and its powers amended and enhanced in 1965. The last recorded amendment to the Trade Union Act was in 1980, so the court must have known that the Trade Union Act existed. Peculiar.
Section 8 of that act establishes the office of registrar of trade unions and states: “The Registrar shall keep a Register of all trade unions registered under this Act in the form required by the regulations and shall discharge all the duties required by this Act and by the Regulations.’
The “discharging all the duties” would normally be taken to include that the “annual general statement” of the affairs of the union, required to be submitted to the registrar in Section 18 Subsection (1)(f) of that act by June 1 every year and under Section 30 transmitted to Parliament, would surely include an annual audit.
The requirements are very detailed in respect to financial transactions, and even include a provision under the regulations for the payment of audit fees, an indication of how seriously the drafters of the act took their responsibilities, and those of the registrar.
If the office of the registrar is carrying out its statutory responsibilities how could the lack of submission of audited accounts outlined in the High Court judgment have taken place? Is there one legal obligation for a union organisation toward its fee-paying members and another toward an NGO or a CBO toward its members or shareholders?
If the registrar’s office neglected its responsibilities to the PSA, as was revealed in the High Court judgment, what about its responsibilities to all the other trade unions: ensuring the registration, the holding by each registered trade union of annual general membership meetings, the implementation of statutory procedures for the electing of officers and so on?
Does his (it is always a “his”) office carry out an annual inspection of finances and accounts, to record and, as the act requires, send the annual audit to Parliament?
Does the registrar of trade unions ensure that an annual conference of members elects the president or secretary general, treasurer and such other executive officers who will be responsible for conducting the affairs of a union?
Does anyone ever monitor these things?
I honestly do not know, but I do know that since the Industrial Court, under section 13 of the IRA, can and does regulate its own procedure, it must have the power to ensure that both employers and trade unions appearing before it are duly registered and legitimately empowered to represent cases before it under its obligation to ensure equity.
It has always been committed to ensuring that not only is justice done, but it must be seen to be done, which is why the High Court judgment exposing the audit on the PSA has caused a can of worms to appear, questioning the structure and integrity of industrial relations in TT.
Over the previous two years a public debate arose about bias in Industrial Court judgments over such essential and very practical issues as whether, in those organisations that have duly registered and recognised trade unions, it is necessary for management to get union agreement before developing any and every policy, and whether consultation in such matters means mandatory agreement, which, if it were so, could fatally delay management’s right to develop essential policies, as overworked and under-staffed unions often postpone consultations on these matters in order to handle members’ grievances.
Fortunately, the president of the court, in the private seminars on labour law she has been holding, has clarified these issues so that practitioners attending the seminars now know that only major policies that affect unionised workers’ terms and conditions must be agreed, not minor ones, like arrangement of furniture or shifting machines and equipment from one place to another, or upgrading existing technology.
In addition “consultation” means genuine discussion and consideration of issues, not just an e-mail notice from a manager to workers announcing a change.
“Consultation” cannot mean mandatory agreement, otherwise there would be no need for the Ministry of Labour or the Industrial Court.
Since only a minority of working people in TT, an estimated 17 per cent, is covered by trade union representation, and a possible five per cent of those unions have not fulfilled the legal requirements under the trade union and other acts, it is essential to point out that managers of non-unionised companies, under common law and good industrial practice, also have an obligation to consult with their employees before changing fundamental terms and conditions of their contracts.
For the avoidance of doubt, let it be known that a “contract of employment” means any arrangement, oral or written, for one person to provide work or a service to another.
There are moral and ethical expectations as well as legal ones. These are things that should be taught in school. Why aren't they?
Since I left school, I have never had to derive a quadratic equation, but I have had to know about human rights. Doesn't everyone?