Can a trade union decide who should be a manager?

It is not often that questions are raised over the truth of media reports about industrial relations.

Reports from Standard and Poor’s new rating for Trinidad and Tobago – now BBB- down from A – were termed both positive and negative.

The Minister of Finance says it is positive. The former head of the Central Bank says a BBB- is negative but who’s counting?

But surely, industrial relations is governed by law which has been the remit of designated experts in industrial relations, and written out, for all to be guided by, in judgements given by members of the Industrial Court.

Because industrial relations is not on all fours with civil law, the authority to make those decisions was given by Parliament to a separate court – the Industrial Court – and the governing act states very forcefully, in reference to one of its jurisdictions – namely decisions in reference to compensation for unjust dismissals – that: “any order for compensation or damages…shall not be challenged, appealed against, reviewed, quashed or called into question in any court on any account whatsoever.”

This is an immense power not even given to the head of state, but is given to the Industrial Court.

This immense power is not given for everything. It is only given in relation to cases regarding dismissals and compensation therefore, but it gives you an idea of the importance given to its function by Parliament.

On July 21, a decision that is of immense importance to every board of directors in TT, every employer, manager, trade union, or stakeholder was made, at least, according to the media.

That significant decision, however, was not taken by the Industrial Court. It was taken by the Court of Appeal.

The issue involved the appointment on promotion of a man to the position of general manager, quality risk management, of the North Central Regional Health Authority (NCRHA), a position for which he had not applied and in which he had never previously acted (according to the press report), but to which the NUGFW decided he should be promoted.

It was the trade union that brought the case to court last May, claiming the NCRHA was negligent in bypassing Mr Elroy Julien for the position.

Mr Julien, at the time the union raised the issue, was CEO of the National Self Help Commission, a higher-status position (according to the press report).

That should raise a very red flag. As should the fact (according to the press report) that when the matter could not be settled in mediation at the Industrial Court, the accepted body to determine industrial relations matters, it was sent to, and accepted by, the Appeal Court.

Since when, stakeholders are asking, does a trade union have the right to decide who should be the manager of an enterprise?

Anyone over the age of 18 can join a trade union, so perhaps Mr Julien has been a member of NUGFW since he was 18, but trade unions are there to defend workers’ interests in the Industrial Court, not those of managers, according to Section 3 (3) of the IRA.

That section defines a manager by saying who is not a manager, which includes “public officers” under the Constitution. Section 3(4) of the Constitution excludes from “public officer” anyone “who is a member of a board, commission, committee or similar body.”

It has now come to the stage in this strange story that the Appeal Court has to decide whether via these two pieces of legislation Mr Julien is or is not a” worker,” after five years in a CEO position, and can be represented by a trade union.

This ignores the fact that the IRA includes a whole part 3 which gives the right to decide if and when someone can be represented in that court by a trade union, to another separate body – the Registration, Recognition and Certification Board, which was set up and staffed to deal with those issues.

Not unnaturally, the NCRHA had already applied to that board for a decision. The press reports did not say why, but that board denied the application. Maybe Mr Julien didn’t want it?

Those are legal matters that the Appeal Court will have to decide, but while we wait, stakeholders are still asking which law gave a trade union the right to decide that one of its members should be made a general manager of any organisation it chooses.

What about the judgement made by the Industrial Court and reaffirmed over and over that states: “The Court has said in many written judgements it will not normally usurp, deprive or interfere with the employer’s right to select, promote or terminate employees, since an employer must be free to select and promote the most suitable employees to fill vacancies within the organisation.”?

Has this “management prerogative” now been handed over to a union, whether or not the employee has applied for the position? Or to the Court of Appeal, which has never managed a health facility?

Is the obvious failure of performance that follows the mandatory promotion on the basis on length of service, as practised in the police service, going to determine TT’s economic and governance future?

And people ask why S&P and other rating agencies have downgraded us?