CAL denied stay as it opposes union's right to represent workers

CARIBBEAN Airlines Ltd (CAL) has received final leave to appeal to the Privy Council a recent Court of Appeal ruling affirming the Communication, Transport and General Workers’ Union right to represent employees of Caribbean Airlines Ltd (CAL) after it replaced British West Indian Airways (BWIA) in early 2007.

On June 7, Justices of Appeal Mira Dean-Armorer, Vasheist Kokaram and Carla Brown-Antoine granted CAL’s special leave application.

However, the judges refused to grant a stay CAL was seeking.

This means that CAL may have to negotiate with the union unless it applies for and receives a stay at the Privy Council.

The workers at the state-owned airline have been without representation from a union since CAL started operations.

In a ruling on April 22, Justices of Appeal Alice Yorke-Soo Hon, Mira Dean-Armorer and Malcolm Holdip affirmed an order by the Industrial Court to allow the union to represent CAL’s workers.

“In our judgment, the Industrial Court decided this case from all the circumstances in accordance with good conscience and the principles of good industrial relations practice,” the Appeal Court held.

After CAL replaced BWIA in January 2007, the union applied to the Industrial Court to exercise its discretion under Section 48 of the Industrial Relations Act to rule that the airline was BWIA’s successor.

In its appeal, CAL contended the Industrial Court’s decision went against the weight of the evidence and the findings were not justified.

But the Appeal Court said while a finding of successorship was not automatic, the Industrial Court arrived at a decision guided by good conscience and the principles of good industrial relations.

“Workers are not rendered metaphorical orphans and they are not left without the protection of representation by a recognised majority union.

“Rather, the law provides that the new employer should be regarded as the successor of the former employer for the purposes of the collective agreement which had subsisted between the representative union and the former employer.”

The Appeal Court also rejected CAL’s claim that the finding of successorship was precluded as the BWIA employees received severance payments before joining CAL.

The Industrial Court's decision, it said, "was based on their findings of fact as to the similarity between the two companies, BWIA and CAL. These were findings of fact that the business operations of BWIA together with its intangibles, physical assets and human assets, continued to be used substantially the same way by CAL, who continued substantially the same operations as BWIA...

“Moreover, CAL has retained some significant identifying features of BWIA and from the totality of the evidence, CAL was created as a result of the restructuring of BWIA as mandated by the principal shareholder and the purpose of CAL was to replace BWIA as the national flag carrier,” the Appeal Court held.

CAL was represented by Russell Martineau, SC. Douglas Mendes, SC, and Imran Ali represented the union.