Referrals to the Registration, Recognition and Certification Board

The Registration, Recognition and Certification Board (RRCB) is one of three separate institutions created by the Industrial Relations Act. Given the provision of Section 34 of the act and the interpretation of former chief justice Michael de la Bastide; the RRCB is the only and sole institution to determine whether an employee is a worker within the meaning of the act, and whether a worker is a legitimate member of a trade union.

Since Article 51, of the act, allows any trade union to report the existence of trade disputes to the Ministry of Labour on behalf of its members, it is only fair that trade unions must establish that the people they seek to represent are indeed bona fide and legitimate members.

The act, therefore, requires an aggrieved employee to be a member in good standing in the reporting trade union and this must be verifiable by the RRCB.

It has become quite commonplace that following a trade union’s report of the existence of a trade dispute to the Ministry of Labour, the employer or its representative claims that the dispute is not properly before the minister on the basis that:

1. The aggrieved employee is not a worker within the meaning of the act.

2. The person is not a member in good standing of the reporting union.

If either one of the claims is established, the union’s report of a trade dispute will automatically become null and void. However, since the RRCB is the sole and only authority to determine these matters, the Ministry of Labour is required to issue the unresolve certificate as the matter remains unresolved, then simultaneously forward a formal referral to the RRCB for its determination on both worker status or membership in good standing.

The determination of whether a member is in good standing is a simple affair and only requires the board examiners to inspect the books of the trade union to arrive at a determination of fact, as to whether the work is a financial member in the eyes of the law. In order to accomplish this, the RRCB normally relies on the procedure laid out in its Practice Note #2.

This brings to mind a recent judgment of the High Court in a judicial review application CV2020-01464 filed by Sanctuary Workers’ Trade Union and one of its members who was dismissed from a leading bank. The application was against a determination of the RRCB in a matter of a referral from the Minister of Labour relating to membership in good standing.

The act in section 34(3) requires among other things that a registered trade union must maintain accurate accounting records consistent with sound accounting practices and standards. In this case, the union did not maintain a bank account and for this reason only, the RRCB, consistent with its Practice Note #2, held that it could not ascertain the financial good standing of the purported member and accordingly made an adverse determination.

Justice Joan Charles held that Section 34 only required the trade union to employ sound accounting practices and did not expressly require the union to operate a bank account in so doing. She reversed the RRCB’s determination and in addition to cost and damages, she ordered that the member be declared to be in good financial standing. This judgment has not only turned this practice policy of the RRCB on its head but may have also opened up a loophole for trade unions.

The more complex matter however arises where the minister refers for the determination of the RRCB, a claim or question as to whether the aggrieved employee falls within the definition of a worker expressed in the act. In other words, is the employee a worker and therefore entitled to protection under the IRA? Should there be a determination that the aggrieved is not a worker within the meaning of the act, then that person cannot seek the intervention of the Industrial Court and the only remedy available would be through the civil judicial system.

Let us for example look at another very authoritative case of a judicial review application filed by the University of TT (UTT) against the RRCB and cited as Claim No CV2016-00147. The judgment in this case also ripped to pieces a long-standing practice policy of the RRCB in its consideration and interpretation of Section 2 (3)(e) of the act. This section of the act is the exception clause that specifically addresses the factors that excludes an employee from being considered a worker within the meaning of the act.

Justice Vasheist Kokaram in his well-written judgment held that the RRCB misdirected itself by restricting its interpretation on the matter of “responsibility for policy formulation.” The RRCB’s policy practice was considered only where a policy recommendation from an employee was sanctioned by the organisation’s board and implemented. He logically applied the literal meaning of the words in section 2(3)(e) and arrived at a broader interpretation. Kokaram, therefore, held that there was no lawful requirement mandating that a policy recommendation had to be implemented in order to determine if the creator is a worker or not.

Therefore, going before the RRCB to process such claims, requires in-depth familiarity with the board’s Practice Rules and Regulations as well as a working knowledge of human resource management. Particularly, as this relates to the construction of job descriptions, the legal significance of an organisation’s reporting relationships, management governance systems and the procedural intricacies of issues such as policy making, effective control and having an influential voice. These matters are generally covered in the ever-expanding jurisprudence coming out of judicial review applications.