Dealing with trade disputes: Does marriage cause divorce?

One of the curious things about the Industrial Relations Act is the distinctions in the provisions dealing with trade disputes.

The methodologies for dealing with them distinguish between "interests" disputes – disputes over things one of the parties wants to get; and "rights" disputes: disputes over things one (or both) of the parties thinks are theirs by right, as well as between a trade union and an employer.

The distinction in the first case arises out of the creation of new or improved working conditions, and the second arises out of the application or improvement of existing clauses in an individual or collective agreement. It is worthwhile to remember that a collective agreement can be negotiated between two trade unions or between two or a group of employers.

Back in 1981, the Industrial Court issued an award that many practitioners have forgotten about. In the referenced instance, the company and the union involved had begun negotiations in the usual way. The union had submitted proposals in November, negotiations had broken down in April of the following year and that same month, the employer reported the breakdown of negotiations to the Ministry of Labour as a dispute and conciliation proceedings began.

In an interests dispute where conciliation fails, a certificate of unresolved dispute is issued by the Labour Minister, and the trade union, once it has given notice that it going to do so, is free to begin legal strike action within the next seven days. But only within those seven days.

Likewise, also having given notice, the employer is free to lock workers out within those seven days.

This is the legal way in TT for one party in industrial relations to force the other to agree to its demands.

In the instance cited, it was the employer who took lock-out action, which is fairly rare these days, in which the employer sets out the conditions which were, so to speak, his final offer for wages and conditions, and although the union itself has not accepted the offer, each worker is free to do so, in which case they come back to work.

This is all in accordance with the law, and the terms they have accepted become the terms of their individual contract of employment, and although in theory there was still a strike between the company and union, everyone was back at work.

Up to this point, there is nothing remarkable about the case.

But at this juncture, something different happened. The union could not resubmit a dispute to the minister on the terms of the original dispute, as once the lock-out is in force, the union has to either agree to the employer’s terms or stay locked out forever, as has happened with one of the garment factories in the past, when we still had garment factories, unless the employer relents.

But in the course of conciliation, several new articles had moved into the disputed area. This happens.

Collective agreements are made up of numerous cost factors, and during conciliation, either side may agree to one article with the provision that another one agreed earlier be amended, or, more commonly, a union may decide, once conciliation starts, to repudiate everything reached earlier during the bargaining process and start all over again.

For some reason, employers are far less likely to do this, although it has happened. If an employer wishes to reopen an issue, it is usually for trade-off reasons, with regard to providing an overall package, in recognition that employers do, after all, only have so much to go around.

At any rate, the Industrial Relations Act clearly states that a dispute may not be reported to the minister if more than six months have passed since "the issue giving rise to the dispute first arose," a phrase that has provided many an afternoon’s heated debate as to its meaning. Those were the fun days.

After many a pedantic hour, it was decreed that what it referred to was “when the event that caused the dispute happened. And, which can ameliorate matters somewhat and sometimes complicate them, the minister has the right to extend that six months if he/she so wishes.

In this case, and going to the crux of the matter, the minister referred the matter to the Industrial Court to find out if the six-month limitation clause applied to an interests dispute, and if it did so, how to apply it, since, in money matters, as we all know, the effluxion of time is a crucial matter.

The court decided that it did apply in interests disputes – perhaps inevitably, since as mentioned earlier, the act nowhere itself distinguished between “rights” and “interests” disputes, speaking only of “trade disputes” – and proceeded to determine that, in the case of a negotiation breaking down, "the event giving rise to the dispute was the receipt of proposals for a collective agreement and not the breakdown in negotiations." I am still reeling from that one.

The parties themselves, of course, do not formally join the issue until the breakdown is reported.

This may be reminiscent of the old saying that the cause of divorce is marriage, and the question arises, "Is the result of this determination that as soon as proposals for a collective agreement have been given by one party to another, and a copy sent to the minister, as is required by law, a dispute has impliedly begun? Is that really what was intended?"