The (not so) Special Tribunal

ON November 8, the Special Tribunal of the Industrial Court delivered a final judgement on a matter involving the Estate Police Association (EPA) and the Central Bank of TT (CBTT). The two parties were embroiled in the collective bargaining process since December 2015 for the three-year period January 2015-December 2017.

At the conclusion of the process, the parties agreed on several issues but four critical articles, including the issue of salaries, remained outstanding. Several months later, the parties met with a conciliator at the Ministry of Finance in a last attempt to reach a settlement on these articles but without success. As a result, the matter was referred to the Special Tribunal.

Regarding salary negotiations, the tribunal would have heard that the EPA initially requested a 17 per cent increase while the CBTT offered eight per cent. These figures were later revised during conciliation to 14 per cent and nine per cent respectively.

Through their lawyers, both parties presented arguments to the tribunal citing evidence regarding the state of the economy and the ability of the employer to sustain these increases. However, in adjudicating the matter, the Special Tribunal disagreed with both parties.

Stating that "a demand of 14 per cent as advanced by the association or even an offer of nine per cent put forward by the CBTT are...unreasonable and unsustainable," the tribunal ordered a mere six per cent increase in salaries for the three-year period at two per cent for each year.

This egregious ruling illustrates quite well why trade unions are generally very hesitant and apprehensive to have matters involving salary negotiations referred to the Special Tribunal. Indeed, in almost 60 years of its existence, the tribunal has never once ruled in favour of a trade union in its quest for better salaries. Without fail, it always takes the side of the state, cognisant of its draconian powers.

Why is this? Perhaps it is because the Industrial Court, of which the Special Tribunal is a branch, was established under the Industrial Relations Act (IRA) and is not under the purview of the Chief Justice. As such, it essentially operates as a law unto itself.

Perhaps it is because "the power to reappoint all judges of the court, with the exception of the president," is vested effectively in the cabinet, which advises the president on who should be reappointed. So, if Industrial Court judges do not appease the state, then they could be unceremoniously removed since they have no tenure.

This arrangement brings into sharp focus the independence of the court and by extension the Special Tribunal. Even the Law Association is on record calling for a new system of judicial appointments to the Industrial Court.

While some would argue that the Special Tribunal traditionally supports the fiscal conservatism of the state simply based on economic considerations, it is unlikely to be so in this particular case as the ruling of the tribunal was not merely against the EPA, but also against the CBTT.

The implication is that the tribunal arrogantly sees its own assessment of the economy as being superior to the assessment made by the CBTT. In effect, it is saying that the financial experts at the CBTT do not have the competence to determine the state of the economy. If this premise is true, then this is a major cause for concern.

Once again trade unions will be justified to seriously question the independence, impartiality and integrity of the tribunal, given its history. The May 03s24 judgement of the Privy Council in the matter also involving the EPA and the tribunal gives further credence to this position.

In its decision the council surmised, “the tribunal lost sight of its impartiality and neutrality which should govern its conduct as a judicial body." The conduct of the tribunal was further chastised for the delay in treating with the matter, wherein it choose to question the standing of the EPA to represent its members instead of treating with the substantive matter referred to it by the minister as it was required to by law.

The council went so far as to state, “Not only did the tribunal actively oppose the claim at every level, but it sought to argue that its erroneous decision was immune from challenge on grounds which it now concedes are unsustainable.” The council was behoved to remind the tribunal that “they maintain a strictly neutral stance and avoid adopting an adversarial role in the proceedings.”

Clearly, in this matter the tribunal represents a blatant case of abuse of absolute power, which is strategically invoked by the state to silence dissent.