Who can, cannot seek redress at the Industrial Court

There seems to exist a certain amount of confusion among both employers and employees about what the Industrial Court is there for, and how an employee who feels wronged by the actions of their employer, or a manager in the organisation that employs them, can seek redress from the court.

Having run across several such issues over the past few “approaching-end-of-pandemic” months, I am responding to requests to clarify the procedure for the public. Please email me at diana.m.wyatt@gmail.com if the following is unclear, as the IRA often is very difficult to understand, especially for legal people.

First, I will try to clarify the purpose and the authority of the Industrial Court, then to give directions on how to get there, who can get there, who cannot and why.

The Industrial Court is the final arbiter of industrial relations disputes.

In that jurisdiction it has enormous power, more than any other court of record. This means that it is a court which records written judgements that are then used as precedents that can be quoted in support of an argument in other disputes.

Once an award is made in reference to a particular industrial relations issue, whether employer, employee or trade union agrees with it or not, it must be obeyed. No ifs or ands or buts. It cannot be questioned in any court on any grounds whatsoever.

If there is a narrow question of whether some aspect of another existing law, such as constitutional law or fraud, was violated in making the decision, that separate matter can be referred to the High Court, but the initial industrial relations issue will still be up to the Industrial Court to settle, because industrial relations and law are different disciplines.

Judges in the Industrial Court must have qualifications other than just law as is required in other courts.

Not all issues can go to the court, either. The court is there for workers. Managers who feel their problems have been bypassed by their CEOs or have been unfairly dismissed cannot take their grievances to the Industrial Court, because they are not workers under the law.

Strange, though, because, except with entrepreneurs and others who own the business they work in, managers are also almost always employees, just as workers are. But the law is the law: they are managers, not workers. They can hire lawyers at thousands of dollars an hour, however, and go to the civil courts if they want to. The Industrial Court is free to workers.

Police officers, members of the military, fire and prison officers also cannot take their problems to the Industrial Court. They have their own disciplinary tribunals.

As do teachers and members of the Public Service, which is why they are so rarely fired. There are thousands (literally) of teachers and public servants but there are relatively few members of the services commissions to try their disciplinary issues. It can take years for a case of a teacher abusing a child to be heard and determined.

As for hearings of disciplinary charges involving any of the – what is it? 80,000 public servants? Well, let us not go into that, but now you understand why their pandemic “freeness” has been so harshly criticised but unremedied.

Not all workers can take grievances to the Industrial Court, either. To qualify, first, a worker has to join a trade union, pay an entrance fee and membership fees for an initial six weeks to become a member. The worker’s union then has to apply to the Recognition, Registration and Certification Board to be certified as the recognised bargaining union. (This can be a lengthy process, as there was no board for a couple of years recently, so everybody just had to wait on the Labour Ministry to appoint one).

First, they must prove they are actually qualified to represent their members in a particular bargaining unit – usually either a monthly-paid or a daily- or weekly-paid unit – by having over 50 per cent of the workers in the bargaining unit applied for as members in good standing.

So officials must go into their books and count. According to the law, to be counted a member in good standing according to Section 34, (3) (b)(2) of the Industrial Relations Act, workers must have been members in good standing, and paid fees for “a continuous period of two years before the application for recognition was made or deemed to have been made” for the union to which they belong to represent them. Not easy!

Then the aggrieved worker must take their grievance to their immediate supervisor, and if it cannot be sorted out there (and most are), the trade union joins, and then it may be escalated to the employee’s manager. If it is still not settled there, it can be escalated to the human resources manager.

Some examples of workers’ grievances are that they think they should have been promoted and were not. Or that they were disciplined or their pay docked for frequent absenteeism and believe they should not have been, or any other reason the union is willing to take up

Sometimes, grievances may be lawfully taken up as a training exercise for junior union officers. I am serious.

Often one or other of these steps is skipped out of sheer stubbornness by either trade union or employer. If the worker and the union are still not satisfied with whatever suggestion the company comes up with, the union (it is almost always the union) can refer it to the Minister of Labour, and company and union are referred by the ministry to the ministry’s conciliation services. That unit has 14 days, or such further time that parties agree, to extend it to, to sort it out. This has been known to take months or even years.

If the parties still do not agree, there are three options: industrial action that is lawfully a strike or lockout, industrial action that is unlawfully a strike or lockout, or the minister refers the dispute to the Industrial Court.

If it goes to court, it goes for conciliation first, and if the parties still cannot settle, it will go before an open court tribunal of three judges for a hearing.