TRINIDAD AND TOBAGO - library.industrialcourt.org.ttlibrary.industrialcourt.org.tt/EDOC//2007/2007 ICTT 25.pdf · trinidad and tobago in the industrial court between iro 11a of 2002

-- TRINIDAD AND TOBAGO

IN THE INDUSTRIAL COURT

Between

IRO 11A OF 2002

NATIONAL UNION OF GOVERNMENT AND FEDERATED WORKERS

And

PATRICK YOUNG SING AND COMPANY LIMITED

- Party No. 1

Party No. 2

AND IRO 11,12,13 OF 2002

ALL TKlNlDAD SUGAR AND GENERAL WORKERS' TRADE UNION

And

PATRICK YOUNG SING AND COMPANY LIMITED **-*A*

CORAM:

His Honour Mr. Ramchand Lutchmedlal His Honour Mr. Patrlck Rabathaly Her Honour Ms. Ruby Thompson-Boddle

- Party No. 1

- Party No. 2

- Chairman - Member - Member

APPEARANCE&

Mr. D. Mendes S.C. ) Mr. M. Quarnlna 1 Attorneys-at-Law ) - Party No. I

Mr. S. Jairani Mr. S . Slngh

1 )

Allorneys-al-Law ) Mr. P. Cezair Consultanl

1 ) - Party No. 2

DATED: 12"' March, 2007

JUDGMENT

Dolivered bv H.H. Mr. R. Lutchmodial

N A T m 01' COMPIdlNTS

IRO NO. 11A OF 2002 (formerlv A5) - betweon National Union of Government and

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Federated Workers and Patrick Younq Sing and Company Limited (hereinafter referred to as "the NUGFW IRO")

By letter dated 29"' August, 2002 the National Union of Government and Federated

Workers (hereinafter called "NUGW) (through its Attorney-at-Law) applied to the Court

for an order against Patrick Young Sing and Company Limited in respect of industrial

action taken by the Company (hereinafter called 'Young Sing") pursuant to Section 84 of

the Industrial Relations Act Ch. 88:01 ("the IRA") alleging that "on the 15" day of July

2002 the Company (Young Sing) terminated the services of approximately one hundred

and nine (109) of the workers in its production department with a view to inducing or

compelling them or other persons to agree to terms of employment including

employment as contractors andlor with contractors andlor without the representation of a

Union andlor to comply with its demand that the workers not bring a Union into the

Company andlor with the purpose of defeating the attempt by the workers to secure

representation by the Union".

IRO NO. 11 OF 2002 - between All Trinidad Sugar and General Workers Trade Union and Patrick Young Sing and Company Limited

By letter dated 30"' August 2002 application in identical terms as the NUGFW IRO

(hereinafter referred to as "the All Trinidad IRO) was made on behalf of the All Trinidad

Sugar and General Workers' Trade Union ("All Trinidad") by its Attorney-at-Law.

IRO NO. 12 OF 2002 - between All Trinidad Sugar and General WorkersJ Trade Union and Patrick Young Sing and Company Limited

By letter dated 4"' September 2002 All Trinidad through its Attorney-a(-Law made an

application pursuant to Section 84 of the IRA in respect of the failure of Young Sing to

recognize the Union (All Trinidad) as the recognized majority Union of all its employees

with the exception of its monthly rated employees and the failure in good faitii to treat

and enter into negotiations with the Union for the purpose of Collective Bargaining. In

the said letter it was alleged as follows:

"Over the period beginning sometime in or about April 2002 and culminating to in the issuance of notices of termination on the grounds of redundancy to 109 of its employees, the Company (Young Sing) developed a plan for the restructuring of its production department which would result in the transformation of the terms and conditions of employment of the said enlployees which included the employment of those employees as

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contractors by a company created for the purpose, without informing the Union of its plans andlor engaging in discussions andlor negotiations with i t in respect thereor

IRO NO. 13 OF 2002 - between All Trinidad Suaar and General Workers Trade Union and Patrick Youns Sing and Companv Limited

By another letter dated 4Ih September 2002 All Trinidad through its Attorney-at-Law

made an application pursuant to Sectlon 84 of the IRA In respect of the failure of the

Company (Young Sing) to give formal notice to the Union of the termination of one

hundred and nine (109) of Its employees on the ground of redundancy, contrary to

Sectlon 25(1) of the Retrenchment and Severance Benefits Act 1985 (RSBA). in the

said letter the Unlon complained that "on July 15Ih 2002, the Company issued notice of

termination on the ground of redundancy to one hundred and nine (109) of its

employees, members of a bargaining unit In respect of which the Union is the

recognised majority union, but did not give the Union any notice of such termlnation".

it is important at the outset of the judgment to state so far as is applicable the relevant

sections of the IRA and RSBA as referred to or implied in the above

appiications/complaints.

Industrial Relations Act (IRA)

""collective bargaining" means treatlng and negotiating with a view to the conclusion of a collective agreement or the revision or renewal thereof or the resolution of disputes;

"industrial action" means strikes lockouts, and any action, including sympathy strikes and secondary boycotts (whether or not done In contemplation of, or in furtherance of, a trade dispute), by an employer or a trade union or other organisation or by any number of workers or other persons to compel anv worker, trade union or other organisation, employee or any other person, as the case may be, to aqree to terms of empiovment, or .to com~ly with any demands made bv the employer or the trade union or other organisation or by those workers or other persons . . . "lockout" means the closing of a place of employment or the suspension of work by an employer or the refusal bv an emplover to employ or continue to employ any number of workers employed by him, done wilh a view to induce or

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compel workers emoloved bv him lo aaree to terms or conditions of, or affeclinq ernebn~n,"

S' 35 - "Where a trade union is certified under this Part as the recognised nlajority union -

(a) such trade unlort shall immediately replace any other trade tlnion that immediately before the cortilication was lhe recognised majority union for the workers comprised in the bargaining unit and, subject paragraph (c), shall have exclusivc aulhorilv to baraain collectivelv on behalf of workers In the baraainina unit and to bind them by a collective agreer:~ent registered under Part IV so long as the certification remains in force:"

S. 36 - "(1) Nothing in this Part shail be construed so as to permit the certificalion of more_?[~an one trade union as the recosnised maiorltv union for workers coi'nplised in a bargaininq unlt."

S. 40 - "(1) Where a trade union obtains certilication of recognition for workers comprised in a bargaining unit in accordance wilh this Part, the emolov~r shall recoanise that trade union as the recoanlsed maiorilv unlon; and the recognised majority union and employer shall, subject to this Act, in aood faith. treat and enter into neaotiations with each other for the wuroose of collective baraalninq.

(2) A recognised majority union or an employer that fails to comply with this section is guilty of an industrial relations offence and liable to a fine of four- thousand dollars."

S. 63 - "( I ) Where any industrial aclion is taken otherwise than In conformity with this Part -

(a) an employer taking such action is guilty of an Industrial relations offence and, In addition to any other penalty under subsecllon (Z), remains liable for the unpaid wages, salary and olher renwneralion that a worker may reasonably be expected lo

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obtain in respect of any period during which the lockout action took place; and a worker may recover such wages, salary or other remuneration summarily as a civil debt, without prejudice to any other manner in which proceedings may be taken for the recovery thereof;

(2) A person guilty of an industrial relations offence under this section is liable - (a) in the case of an employer, to a fine of

twenty thousand dollars; or

"(1) Ali proceedings for the obtaining of an Order against any person in respect of an industrial relations offence shall be instituted by an application to the Court by the employer, the recoanised maiorilv union concerned, if any, or, where there is no such union, any union which, at the time of the commission of the Industrial relations offence had as members of that union workers employed by the employer."

Retrenchment and Severance Benefits Act (RSBD)

S.4(1). 25(1)./2)

"4. (1) Where an employer proposes to terminate the services of five or more workers for the reason of redundancy he shall give formal notice of termination in writing to each involved worker, to the recoqnised maiority union and to the Minister. - 25. (1) A person who contravenes the provisions of this Act Is guilty of an industrial relations offence within the meaning of the lndustrial Relatlons Act and liable -

(a) in the case of an employer, to a fine of ten thousand dollars; and

(b) in the case of a union, to a fine of five thousand dollars.

(2) Where a contravention referred to in sub- section (1) Is brought before the industrial Court it shall be dealt with in accordance with the procedure laid down by the Industrial Relations Act, and the Court may make an award in favour of an aggrieved party."

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At the outset the Court heard submissions from the parties and decided to hear ail the

applications together since they arose out of the same event or issue and the agreed

facts as contained in the Evidence and Arguments were the same in all material

particulars. In any event the NUGFW IRO and tile Ail Trinidad IRO are in identical terms

except the party making the complaint is different.

BACKGROUND

Young Sing was duly incorporated under the laws of Trinidad and Tobago and with its

place of business at Old Southern Main Road, Federick Settlement, Caroni.

Over the years Young Sing has been engaged in the business of manufacturing and

importing household fixtures, doors, closets, kitchen cupboards, louvre blades,

mouldings, furniture and fittings for sale throughout Trinidad and Tobago and the

Caribbean.

On the i l lh day of September 1979 the Registration Recognition and Certification Board

("RRCB) by virtue of and pursuant to the authority vested in it by S. 37 of the IRA

certified that All Trinidad Sugar and General Workers Trade Union as the recognized

majority union in respect of the workers employed by Patrick Young Sing and Company

Limited and comprised in a bargaining unit comprising all employees of Patrick Young

Sing and Company Limited exciudincl the monthly rated and in so doing issued its

Certificate No. 46 of 1979 effective 18" June 1979 and stated that the number of

workers in the bargaining unit as at !lie relevant date, the 18" June 1979, was forty-six

(46). All Trinidad and Young Sing executed a collective agreement covering the period

1"' January 1980 to 31'' December 1982. No other collective agreement was executed

by the parties thereafter.

However, after negotiations for a new collective agreement broke down sometime

between 1983 and 1984 ail of the then workers of Young Sing were either dismissed or

retrenched resulting in Trade Disputes Nos. 307 of 1983 and 58 of 1984. On the 1.5'~

day of June 1984 the parties executed terms of settlement in respect of the

aforementioned trade disputes.

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In or around 1997 the Communication Workers' Union ("CWU") applied to the RRCB for

certification of recognition in respect of Young Sing's employees namely "the monthly

rated monthly paid factory production workers, except Managers, Supervisors, Co-

ordinators, Accounts, Secretaries, Receptionist and Securit)". By letter dated 61h July

2001 the RRCB informed Young Sing that the application had been struck off its records

pursuant to Rule 12 ( I ) of the RRCB's Rules.

In February 2002 a number of workers employed by Young Sing submitted applications

for membership in NUGFW. They were accepted and on June 7Lh 2002 NUGFW applied

to the RRCB for recognition as the Majority Union of ail the hourly weekly and monthly

rated ~roduction workers employed by Young Sing. As at the date of the commission of

the alleged Industrial Relations offences by Young Sing, NUGFW was not certified by

the RRCB as the Recognized Majority Union for its (Young Sing) workers.

On the 15Ih July 2002 Young Sing gave notice to the Minister that effective 30" August

2002, one hundred and eight (108) of its workers Involved in its production operations

requisite of the manufacturing process will be retrenched. Young Sing also furnished all

the required particulars as stipulated in the RSBA. The affected workers were also given

retrenchment notices on the said 15Ih July 2002. This decision according to Young Sing

was as a result of the following:

" ... In the last five years in particular the Company noticed a marked decrease in its revenue, due to a combination of factors, which included, infer alia ... As a consequence of the aforementioned market developments, and in order to survive, management of the Company was forced to consult with its professional business advisers and to develop a restructuring plan whereby the whole strategy of the Company's operations would change from simply the manufacturing and maintaining an inventory of finished products to an operation which would maximize efficiencies of scale in the production process by focusing on timeliness and quality of service, by providing a brand of customized services in relation to home furnishings tailored for home projects being conducted by developers, contractors, building owners and homeowners."

The restructuring plan Is contained in a letter dated loth May 2002 from Susan Morgan

of PriceWaterhouseCoopers to Young Sing. The proposals were as follows:

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"5. (vii)(a) A service company "Beta Service Limited" would be incorporated on or before June 1, 2002 which will act as the service provider of the Company's products and hire all contractors.

(b) The Company will rent its equipment to these contractors on an arms length basis to produce only Company products.

(c) The Company will retain its current fixed asset and inventory base, with the fixed assets being rented to Beta Services Limited, on an arms length basis.

(d) The Company will sever those workers no longer required.

(e) Beta Services will hire contractors to manage and deliver on the various levels of production. This may involve using several contractors who will be required to provide their own staffing for each "contract" assignment.

( f ) Beta Services Limited will arrange for legal contracts to be prepared to formalize this arrangement and remove as far as possible any challenges from the BIR regarding PAYE exposures."

The scheme or plan was later summarised In the said letter as follows:

'7. Incorporating of a new company called "Beta Services Limited ("BSL");

ii. transferring the operations of PYS to BSL so that PYS becomes the holding company and retains all the assets (that are rented out at arms length as required). Inventory will also be retained by PYS;

iii. BSL will enter into arms-length contracts with various contractors along the similar lines noted above."

It is as a result of those retrenchment notices to the lvllnister and the workers that these

applications have been niade to the Court.

We shall deal with the applications in chronological order:

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Awplication No. I I A of 2002 -the NUGFW IRO

These proceedings were instituted under S. 84 of the IRA by way of an application by

NUGFW which contends that Young Sing's actions as stated above constitute illegal

industrial action. It is not in dispute that NUGFW is not the Recognized Majority Union

for any of the workers at Young Sing. However, the persons or parties who are capable

of making the appiication under S. 84 are, "the employer, the recoanlzed majority union

concerned, if any, or where there is no such union, any union which, at the time of tho

commission of the industrial relations offence had as members of that union workers

empioyed by the employe,".

From the evidence it is quite clear that All Trinidad was the Recognized Majority Union in

respect of workers employed by Young Sing and comprised in a bargaining unit

described as "ail the employees of Patrick Young Sing and Company Limited excluding

the monthiy rated". At the time of recognition the workers in the appropriate bargaining

unit were hourly rated but weekly paid.

Arguments were presented by Young Sing's representative in support of his submission

that ail the workers involved in these proceedings were monfhly paid and therefore

excluded from the bargaining unit and conseauently by the Certificate of Recognition. It

is appropriate therefore to deal with this submission at this time.

Basically, Mr. Jalram submits that ail the workers at Young Sing are monthiy rated and

monthly paid and as a result they are not covered by the Certificate of Recognition.

Further, he submits that neither the Union nor the workers attempted to assert the

validity or enforceability of the Certificate or made any application to the Board for a

variation of the bargaining unit under S. 39 of the IRA.

it is well accepted in general industrial relations practice that the essential feature of a

bargaining unit is that it must comprise ail the workers whose circumstances are so

similar and directly reiated that is necessary for proper collective bargaining conditions of

employment be settled jointly or at the same time. See TD No. 193 of 1969

Chaquaramas Terminals Limited and SWWTU and TD No. 5 of 1970 Co-operalive

Citrus Growers Association of Trinidad and Tobaqo Limited and UClW and UFHIW.

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S.33 of the IRA lays down tho criteria the Board should use in determining the

appropriateness of the Bargaining Unit. S.33(l)(a) lists, inter alia, the con~muriity of

intcrest between the worAu~s including work location and method and periodicity of

payment, the nature and scope of the duties exercised by the workers in the bargaining

unit, the historical development, if any, of collective bargaining in the industry or

business to which the proposed bargaining unit belongs and anv other matters the Board

considers to be conducive_Locood industrial relatlons. (Emphasls ours).

According lo the evidence, the method of payment for the workers was unilateraily

varied by Young Slng without consultation with the Recognised Majority Union i.c. Ail

Trinidad and even the individual workers. One can only assume that this was done for

the Young Sing's own efficiency and convenience for i f il was for the purpose of

"decertifying" the All Trlnidad then it cannot be said lhat its variatlon of the periodicity of

payment falls anywhere close to whal is good industrial relations. See TO No. 32 o! 1975 between Texaco Trinidad Limited and Oilfields Workers' Trade Union. It is to be

noted lhat no application fo*, varlation of the bargaining unit under 5.39 was pursued by

either Young Sing or All Trinidad. In any event, in considering a petllion for variatlon and

In order to decide what workers should be excluded from or included In the bnrgaining

unit the Board has to consider the matters set out In 5.33. Further by S.39(5) Ihe

certification of a trade union as a recognised majority union shall not be affected by

reason only of inclusions in or exclusions from the bargaining unit pursuanl to the

provisions of S.39. it follows therefore that it also cannot be so affected by Young Sing's

unilateral variation of lhe periodicity and or method of payment.

"Periodlclty of payment" therefore is only one aspect of the workers' employment

contract or arrangement that the Board, and in our view, all fair-minded persons should

look at in order to determine whether those workers can and do comprise a bargaining

unit. In our view, therefore, the bargaining unit continued in existence and All Trinidad

was still subsisting as the Recognized Majority Union.

There are numerous judgments of this Court lo the effect that once a certificate of

recognillon is issued to a unlon as the recognised majorlly union it continues In force

until revoked or cancelled. All Trinidad's certificate therefore was valid and subsisting.

By virtue of 5. 35 of the IRA where a trade union is certified under Part Ill of the Act as

the recognized majority union it shall have exclusive authority lo bargain collectively on

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behalf of workers in the bargaining unit and to bind thein by a collective agreement.

Further, pursuant to that exclusive authority by S. 40(1) of the Act an employer is

mandated to recognize the union as the recognized majority union and, in good faith, to

treat and enter into negotiations for the purposes of collective bargaining. A failure of a

union or an employer to comply with S. 40(1) of the IRA makes it guilty of an industrial

relations offence and liable to a fine.

The cumulative effect of the law and the principles of good industrial relations is that an

employer is obligated to treat and enter into negotiations in good faiih &Y with the

recognized majority union and not even with the workers directly or any other union or

body. (See IRO Nos. 10-13, 14A & B. 21 & 22 of 1989 between Transport and lndustrlal

Workers Union and Neal and Massv Industries Limited (the Neal and Massv case) and

TD No. 285 of 1978 between Mayfair Knittlnq Mills Limited and Transport and Industrial

Workers Union where It was stated:

"Under ... S. 36(1) and S.40 of the Act i t is clear that a recognised majority union has the sole authority and indeed duty, to bargain for a colleciive agreement and to enter into and execute such an agreement. By virtue of S.35 of the Act this authority continues unless and until another union is certified as the recognised majority union in Its place." (Emphasis ours).

In light of all of the above therefore it was not within the prerogative of Young Sing to

meet and treat with NUGFW without breaching the provisions of the Act and Incurring

the prescribed penalties.

Having come to the conclusion that for ail intents and purposes All Trinidad is the

recognized majority union for the affected workers, it Is not necessary at this stage to

consider whether in fact the actions of Young Sing amounted to illegal industrial action.

The application cannot be sustained by NUGFW which has no locus standi so to do.

This Application is therefore dismissed.

APPLICATION NO. 11 OF 2002 -the All Trinidad IRO

The crux of this application under S.84 of the IRA is that the main purpose of Young

Sing's "purported redundancy" was "to induce or compel workers to agree to terms of

employment including employment as contractors andlor with contractors andlor without

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the representative of a Union andlor to comply with its doniand that the workers not

bring a union into the Company andlor with the purpose of defeating the attempt by the

workers to secure representation by the Union. It was thus an act done to compel the

employees to agree to conditions of employment and as such constitutes industrial

action by the Company". All Trinidad contends that Young Sing's actions constitute

illegal industrial action.

The term "illegal industrial action" is not defined in the IRA but "industrial action" is so

defined. It means strikes and lockouts and "anv action ... by an employer ... to com~el

anv worker ... to aaree to terms of em~lovment ..." The industrial action complained of

by All Trinidad falls outside the scope of a strike as defined by the IRA but In our view

falls within both the definition of "industrial action" and "lock out". "Lock out" is defined

as "... the refusal by an employer to employ or continue to employ any number of

workers employed by him, done with a view to induce or compel workers employed by

him to agree lo terms or conditions of, or affecting employment ..." See IRO No. 3 of

1991 between Co~nmunlcation Workers Union and Diana Investments Limited where i t

was stated, inter alia, "by definitlon a lockout Is imposed if an employer ... refuses to

continue to employ workers employed by him with a view to induce or compel those

workers to agree to terms or conditions of or affecting emplo)iment". In IRO No. 16 of

1991 between Steel Workers Union of Trinidad and Tobaao and Central Trinidad Steel

Limited the Court held that notwithstanding the wide definition of "industrial action" in

S.2(1) of the IRA the Court had little difficulty in holding that the words "industrial action"

in S.Ol(d) should be construed ejusdem generis with strike and lockout specifically

referred to in S.Gl(a)-(c) and $.59(3) of Part V of the IRA. It went further to hold that

"industrial action" in S.63(1) encompasses all the ancillary forms of action enunciated in

the definition of S.2 of the IRA.

The Court has had an opportunity to consider in great detail the evidence of a witness, in

particular, that of John Young Sing and the various authorities cited by Mr. Mendes in his

address.

In its definition of "industrial action" and "lockout" the IRA speaks of "to agree to terms of

employment" and "to agree to terms and conditions of or affecting employment ..." One

assumes that these conditions must exist between employer and employee. The Act is

silent however on the question of agreeing "with whom". In this case, the employer

(Young Sing) took action to compel the workers to agree to terms of employment with

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Beta, another legal entity or employer. All Trinidad in its Evidence and Arguments filed

herein on 27Ih September 2002 stated at paragraph 7:

"The Union contends that in (he instant matter the corporate veii is being relied upon to fictionally conceal the true reason for and effect of the arrangements between the Company and Beta. The Union submits that the Particulars above clearly evidence that the arrangement between the Company and Beta Homes is merely a manoeuvre to avoid the participation of a union in the company's operations and is not a bona fide arms length transaction. Beta Homes is merely a handy tool for use by the Company and its interposition in the latter's affairs was a direct and deliberate effort to circumvent the certification of the NUGFW. Moreover, the "redundancy" of the workers had as its purpose to induce or compel the workers to agree to terms of employment including employment as conlractors andlor with contractors andlor without the representation of a union andlor to comply with its demand that the workers not bring a union into the company andlor with the purpose of defeating the attempt by the workers to secure representation by the union. it was thus an act done to compel the employees to agree to conditions of employment and as such constitutes industrial action by the Company."

This Court is not a commercial Court nor a Court of law but one of industrial common

sense and must apply common sense and common fairness. See Heatons Transport

Ltd. V TiWU 119721 2 AER 1214 and Earl v Slater and Wheeler IAirlvne) Ltd. r19731 1

AER 145.

In our view, the arrangement between Young Sing and Beta is so inextricably bound that

we find this is an opportune situation for the Court to pierce the corporate veii and to go

behind the so called "arms length" transactions to ascertain the true nature of the

relationship. In so doing we have found:

1. The majority of the Directors of both Companies are the same.

2. Both Companies operate out of the same building with the same Managing

Director who is the effective controlling and guiding force in both Companies.

Palmer's Companv Law Voi. I at p. 223 states "Generally speaking, the

courts are more inclined, in appropriate circumstances, to "iifl the veil" of

corporateness where questions of control are in issue than where a question

of ownership arises. In practice, the ability to choose between the application

of the rule in Salomon's case and the jurisdiction to pierce the veil of

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corporateness gives the courts a considerable degree of discretion and

enables them to do justice and to decide individual cases in accordance wilh

equitable consideralions". We are rriwndated to do so by S.I0(3)(b) of the

IRA.

3. The samc cquipment and workers (some oi [hem) are be!ng used to make

the same finished product.

I . Young Sing is providing the financing for Beta. John Young Sing in his

evidence said "Patrick Young Sing remains the enllty that the banks and the

financial comrnunlty deal with. Patrick Yourlg Sing and Company remains for

the purposes of financing and wi~atevcr, lhg: owner of the assets, llke stock

and invenlories".

5. The leases for the equipment, no matter how cleverly worded show clearly

that there was an intention to vary the terms and conditions of employment of

the workers.

6. An informed and fair minded person on reading both the restructuring plan

and the leasing agreement together ~ 1 1 1 come to no other conclusion than

that the workers were working for the same employer bul under different

terms and conditions.

7. There was no change in suppliers or c~rstomors.

In Ilght of the above, we cannot help but adopt the words of Kirke Smlth J in I.W.A,

jLocal 1-217) v Monocrest Kitchens Limited 67 C.LLC Volume 4 1967-1969 'the net

effect of this manoeuvre is the continuance of operalions in the same plant, with the

same machinery and on entirely the same basls ,.. wilh one variation of an Interposed

labour employer". He goes on further, "in my opinion, the corporate veil, whatever its

strength and utility in other areas of legal theory cannot In this field of labour relations at

least be relied upon to flctionaiiy conceal the true reason for and effect of lhese

arrangements. I-I & M is merely a handy tool for use by Monocrest and the entire effect

Is, I think, graphically described by Russel J in Jones et al v Lioman et al In 119621 AER

442 at 445 in these words "The Company is the creature of !he first defendant, a device

and a sham, a mask which he holds before his face In an attempt to avoid recoonilion by

the eye of e~uitf . (Emphasis ours). He concluded by saylng, "Unless the warring

unions solve their disputes in shod order, this Company will be forced out of business.

Regrettable though this prospoct Is, the law as embodied in legislation must be obeyed

unless and until altered, by managenlent as well as by labour; and devious manoeuvres

by either side in an a(tempt to beclotrd the real issue acceniuate, rather than assist in the

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solution of the problems inherent in the law's efforts to remain abreast of, and to provide

adequate remedies in this important and growing area of human relations". We highly

commend this latter paragraph to all the parties involved - Young Sing, Beta, All

Trinidad and NUGFW.

The other cases were cited by Mr. Mendes in support of his contention that the actions of

Young Sing were "to induce or compel workers to comply with Its demand that the

workers not bring a union into fhe Company andlor with the purpose of defeating the

attempt by the workers to secure representation by the Union" are distinguishable from

the facts in this matter. The English Labour Relations Act defines "lockout" as::

I ( ( i ) 'lock-out' includes the closing of a place of employment, a suspension of work or a refusal by an employer to continue to employ a number of his employees, wi!h a view to compel or induce his employees, to refrain from exercising any rights or privileges under this Act or to agree to provisions or changes in provisions respecting terms or conditions of employment or the riahts, priviieoes or duties of the employer, an employers' organization, the trade union, or the employees;"

There is no extension including the phrase exercising "rights, privileges or duties under

the Act" in our IRA. Most, if not all, of the witnesses for All Trinidad testified that they

were never threatened with loss of their job by joining a union. However, in paragraph

(vii) of the All Trinidad's Evidence and Arguments mention is made of certain threats to

dismiss workers for union activities.

In any event though, we are of the view that there is sufficient evidence before the Court

to make a flnding without making a determination whether Young Sing's actions were

rooted in an anti union animus. We adopt the words of Labour Relations Board in

International Moulders' and Allied Workers' Union and its Local Applicant v Canada

Respondent where it was stated:

"A lock-out within the meaning of the Act has both an objective and subjective dimension. To establish the existence of a lock-out [he applicant must show that there has been a closing of a place of employmenl, a suspension of work or a refusal bv an employer to continue to employ a number of his emplovees. In this case the employer has closed its place of employment and refused to continue to employ all of its machine shop employees at

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the Kitchener location. The objective aspect of a lock-out, therefore, is readily established. The complainant must also show, however, on the balance of probabilities, that the act of closing and refusinq to continue to emolov was carried out by the employer in an effort to induce or comoel his emolovees to refrain from exercising any rights or privileges under the Act or to aclree to provisions or chanqes in orovislons respectin4 terms and conditlons of emplovment."

In light of the. evidence adduced thus far and the principles contained in the authorities

referred to the Court, we are convinced that Young Sing refused to continue to employ

and terminated the services of the workers in an effort to induce or compel them to

agree to changes in provisions respecting terms and conditions of employment. This

action is deemed a "lockoul" according to the Diana investments Case (supra). We

adopt the position articulated In TD No. 4 of 1991 Transport and lndustrial Workers

Union and Trinidad Distillers Limited that:

"We- hasten to say that we are fully cognisant of the fact that employers are free and entitled to organise andlor reorganlse andlor restructure their business operations as they see fit, this being one of the rights and prerogatives of management that are expressly recognised by law. We would also say that where an employer chooses to reorganlse or restructure his business to any appreciable degree it is usually extremely difficult for an outsider, be It a Union or a Court, to successfully challenge the genuineness of the resultant reorganlsation. However, where the reorganisation or restructuring appears to be quite superficial, involving as It does the mere reallocation of storage space for goods and the redeployment of managers, It is in our opinion, incumbent upon an employer to furnish to an aggrieved worker (and consequently to this Court) a much more convincing and satisfactory explanation . . ."

Whilst we do so we hasten to say at this juncture that this Court is not being asked to

determine whether or not the retrenchment was genuine. That issue Is to be determined

before another Court. Our function in these applications Is to determine whether Young

Sing has committed the Industrial Relallons Offences as complained. We therefore do

not think we should express any view on the claim to this effect made in the course of All

Trinidad's arguments.

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Although the IRA preserves the freedom of employers and trade unions to bargain

collectiveiy, it does not give the right to an employer to unilaterally implement changes in

workers' terms and conditions of employment without observing the stipulations of the

Act. The principles of good industrial relations do not countenance the unilateral

implementation of terms and conditions of employment. Any such unilateral

implementation undermines the entire fabric of the principles of good industrial relations

practice and an employer who does so Is guilty of the industrial relations offence of

failing to bargain in good faith. See the Judgment of H.H. Mr. A. Khan, Acting President

in the Neal and Massy case (supra).

In A4 of 1978 between Lake Asphalt Companv of Trinidad and Tobaqo (19781 Llmited

and Contractors and General Workers Union and Trinidad Lake Asphalt Company

Limited the Court said:

"The individual contracts of employment do not expire with the expiry of the (collective agreement), and the expired (collective agreement) stands to determine what their terms are. Moreover, those terms cannot be changed by the employer by individual treaty with the workers. S. 40 of the Act requires that for this purpose (the employer) must treat with the recognised majority union. He must do so in accordance with the procedural provlsions of the agreement. If no agreement Is reached thereby he must proceed according to the subsequent procedures laid down by the Act. If these also fail to produce agreement the Act provides that the matter can be settled thereafter in only one of two ways - either as the result of strike or lockout action or alternatively by a determination made by the Court."

By virtue of S.47(2) of the IRA the terms and conditions of an registered (collective)

agreement shall, when applicable, be deemed to be terms and conditions of the

individual contract of employment of the workers comprised from time to time In the

bargaining unit to which the registered agreement relates. Those terms are enforceable

no( as terms of the collective agreement but as terms of the workers' Individual contract

of employment. Notwithstanding the expiry of the collective agreement those terms and

conditions "do not die with the expiration of the collective agreement. They continue on

until those terms are replaced, amended or confirmed by the new collective agreement.

They survive, not as terms of a registered collective agreement but as terms and

conditions of the individual contract of employment of the workers" as per L. Jones J.A.

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in Civil Anaeal NoL9_12LIS95 behveen Bank Eniplovees Union and Renublic Bank

m.

The last registered coliectivo agreement between the parties having expired in 1982, its

terms and conditions by operation of l a l ~ became the terms and conditions of the

indlviduai contract of empioyment of the workers. Those ternis and conditions continued

to be binding on the All Trinidad, Young Sing and the workers notwithstanding lhelr

expiry by effluxion of time. See Civll Ao~eal No. 106 of 1906 between Carlbbean Tvre

Comoanv Limited and OWTU.

On lhe totality of the evidence before lhe Courl, the Court finds that Young Sing

unilaterally varied the terms and conditions of the individual contracts of employment of

the workers without negotiating witti All Trinidad, the exclusive bargaining agent of the

workers. Young Sing decided to retrench all the workers and to rehire Ulose who were

willing to work under varied terms. There was therefore, in our opinion, a refusal to

employ the workers rrrider the existing lerms and conditlons of employment. This was

done wllh a view to inducing or compelling the workers to accept altered or varled lerms

of employment. The altered terms purported to make the workers conlractors rather

than workers and to tako away valuable provisions of their contracts of employment as

protected by the IRA.

We therefore flnd and so hold that Young Sing's refused to employ or continue to

employ the workers on the binding terms of their individual contracts of employment with

a view to Inducing or compelling them to accept altered terms and conditions of

employment. As was stated in the Carlbbean Tyre case (supra) "A unilateral imposition

of new terms is cerlalnly a refusal to employ under the old terms when the new terms

involve an actual or possible economic dlsadvanlage to the workers".

We furlher find that Young Sing unilaterally imposed new terms and conditions on the

workers and rofused to employ them under the old lerms when It sewed retrenchment

notices on thom. This finding Is furiher substantiated when Young Sing invited some of

the workers to execute Individual contracts and leasos as a condition to returning to work

for Beta. This unilateral imposition of altered terms constiluted a refusal to employ and

was done with a view to Inducing or compelling those workers lo accept new lerms and

conditions.

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In our opinion therefore, this action by Young Sing constituted a lockout of the workers

and therefore amounted to industrial action not in conformity with Part V of the IRA

contrary to S.63 and therefore was illegal.

It is clear from all the evidence adduced on behalf of both parties that the action of

Young Sing to compel the workers to alter their terms or conditions of employment,

although via the redundancy route, is industrial action. Since it was not in conformity

with Part V of the IRA it is illegal and an Industrial Relations Offence under S. 63 (1).

Having regard to the powers vested in the Court by Section 10 of the IRA, the Court

proposes to make no Order at this time, but remits the matter to and directs the Parties

to enter into negotiations andlor discussions with a view to resolving their differences in

this regard. The Parties are to report back to the Court on the 18Ih April, 2007 at 1:30

p.m. for Mention and Report.

IRO NO. 12 OF 2002 -the All Trinidad IRO

This application is made by All Trinidad pursuant to S. 84 of the IRA. The Union's

contention is that Young Sing in its attempt to restructure its production department

issued "notices of retrenchment to the workers In that department without informing the

Union of its intentions and without, in good faith, or at all, engaging with the Union in

discussions andlor negotiating in respect of same". In so doing, Young Sing has failed

to comply with S. 40(2) of the IRA and is therefore guilty of an Industrial Relations

Offence pursuant to S. 40(1) of that Act. As seen from the definition of collective

bargaining (supra), the resolution of disputes is included therein. There is absolutely no

doubt that the proposed retrenchment of the workers falls within the definition of

"dispute".

The history of the relations between Young Sing and All Trinidad and indeed its workers

seem somewhat chequered. m, there were Trade Disputes 307 of 1983 and 58 of

1984 when all of the workers were either dismissed or retrenched. Both disputes were

settled on 15Ih June 1984 when the parties executed terms of settlement. Secondly,

sometime in June 1997 CWU made an application for Certification of recognition "of the

monthly rated monthly paid factory production workers". That application was

subsequently struck off the records of the RRCB pursuant to its rules. m, in or

about the year 2000 workers approached NUGFW to organize representation for the

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production workers at the Company and as a resull of some workers belng susper~ded

around December 2001lJanuary 2002, NUGFW by letter dated 23' January 2007 wrote

to Young Sing requesting a rnczting. (See particulars of All Trinidad's Evidencc and

Arguments filed on 27" Seplember 2002 In IRO No. 11 of 2002). During the period

MarchIApril 2002 NUGFW and Young Sing wore in communication/discussions relalirtg

to workers concerns. Whother hy coincidence or design, Young Sing decided to

Implement its reorganization plan and so notified the workers on 15" July 2001.

The sole question for determination therefore in this appllcallon is whslher Young Sing

failed to recogr~lze All Trinidad as Ilia Recognized Majority Union and also falled lo [loat

and enter into negotiations, in good faith, wllh All Trinidad for the purposes of collcclive

bamaining, that is, whether Yor~rlg Sing committed an lnduslrlal relations oflence under

S.40(2) of (he IRA.

As stated before, according to the definition of collective bargaining, the resolution of

disputes forms part of lhe collective bargaining process. In the Courl's vlew, however,

there was no dlsputa in exislence (to be resolved) prior to lhe 15" July 2002. The

dispute orlgirlated on the said day when the Company served retrenchment notices an

the workers. Young Sing was therefore under no obllgation to meet and treat in good

faith with All Trinidad prior to 15" July 2002. In our view S.5 of the RSBA Is not

mandatory. However, in the context of gocd industrial relations any employer wanling to

effect relrenchment should consult wllh the recognlsed majority union prior lo so doing.

In any event, collecfive agreements do set out the procedure to be adopted If such a

silualion should arise. Even If Young Sing was under an obligation to do so prior to 15Ih

July 2002 in accordance with the principles of good Industrial relations pracllce, could It

be said that the Company did not act in good failh? The answer clearly is no. Bad faith

or a lack of good faith is an essential lngredlent In a Section 40 offence which though

criminal in nature requires a standard of proof on a balance of probabilities (a civil

standard). See Civil Aooeal No, 106 of 1986 Caribbean Tvre Company Limlted and

OWTU w

Slnce in or around the 15"' day of June 1984, All Trinidad, from the evidence (or lack of

il), seems to have abdicated Its responsibllily as the recognized majority union. There is absolutely no evidence before this Court lhal All Trinidad was active and vigilant in

discharging Its obligallons as a Recognized Majority Union and that there was any

contact, negotialions or discussions between the parties on any matter pertaining lo the

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workers. It is that scenario and against that background CWU and NUGFW were

attempting to gain recognition on behalf of the workers.

A brief identification of the viva voce evidence of some of the material witnesses in these

proceedings can render assistance to the Court in arriving at a conclusion.

Sylvester Mc Claren for NUGFW:

Q. Were you satisfied that you had sufficient (members) to support the

application for recognition?

A. Yes.

Q. You agree with me in this case your union (NUGFW) is what is called a

minorily union?

A. Yes.

Q. Whilst you were attempting to organise the workers, did you make enquiries

as to whether or not there was a sitting union already (there) in respect of

these workers?

A. No, we did not. The information which we had from the workers was that

there was no union and I was led to believe that this is true when I met with

the employer (John Young Sing).

Q. Well, from then (2001) down to the end of July 2002, have you encountered

any union official on behalf of All Trinidad and General Workers Trade Union

who was attempting to represent any of these workers?

A. No.

Haiman Joseph - a worker at Young Sing:

Q. During the time you were there did you see any official for All Trinidad coming

to represent any worker at Patrick Young Sing?

A. No.

Q. Did you ever hear of any official of the same union ... representing any

worker at Patrick Young Sing whilst you were there?

A. No, not whilst i was there.

Q. Did you ever go to Ail Trinidad to ask them to come and represent you ail?

A. No.

Q. As far as you know, do you know of any of your co-workers ever going to

them?

A. No.

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Q. Ale you a member of All Trinidad?

A. No.

Deodath Manicum - a worker (machlne operator) at Younct Sin%

Q. INtien you attempted to organize workers of lhe Company and to get CWU to

represent the workers, yoi~ oldy attempted to organize the production

workers?

A. Yes.

Q. Was there any special reason for lhat ... ?

A. Yes.

Q. What was that?

A. We were the workers who really fell that we had to join a union in order to get

... we fell that we needed representalion of a union.

Q. How many unlons were vying for ~ocognltlon at tho Company at the tlme (a1

the tlme of CWU's application)?

A. One.

Sylvester Maharai - First Vice President o f All Trinidad:

Q. And subsequent to that (the termination of all the workers and the Terms of

Settlement in T.D. No. 307 of 1983 and T.O. No. 58 of 1984) did lhat Union

(All Trinidad) represent any workers at Young Sing?

A. No, Sir.

Q. From then to dale?

A, No, Sir.

Q. So, it would be true to say that since about 1988 your union was dormant wllh

regards to represenling workers at Patrick Young Slng and Company?

A. Yes.

John Younq Sina, Manaalna Director of the Comoany:

Q. Why was it when you retrenched the workers ... you did not send a le(ter to

All Trinidad?

A. As I say, we have never soen All Trinidad In any manner ... be il visually or

their corresponding within. 'rho Ail Trinidad is not a Union that I had seen. I

suppose they were disinterested.

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Is it the same reason that you did not inform them prior to the actual

redundancy?

No member of my employee base has ever brought the All Trinidad to

represent him in any matter or anything. We just haven't communicated for

many years.

That is why you didn't see it fit to send them a notice of the proposed

retrenchment?

Yeah. That's the reason.

And a few years later (after 1981) ... all lhe employees in the Production

Department were retrenched by agreement with the Union?

Yes.

And at that stage, effectively, the entire membership of the Union ceased to

be employed by the Company?

Yes.

... Mr. Young Sing, from then (around 1984) until 15" July (2002) tell us what

interaction or representation the All Trinidad Union made?

Well, it really did not make any.

There was no interaction?

No, there was no interaction.

Have you ever received any letter from them?

No.

Mr. Young Sing, I am putting to you that you were always aware of the

existence of a recognised majority union at your company?

No.

You were always aware of your obligation to meet and treat with that Union?

No.

And you were always aware of your obligation, therefore to issue a notice to

that Union it you are going to retrench workers ... ?

That is absolutely not true.

Kennedv Phillip, Co-ordinator at Young Sin%

Q. What name (of union) do you recall then?

A. When I joined the Company I think It was the Sugar Workers Union I saw

representing the workers.

Q. Did you join then?

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A. I did not.

Q Why not?

/ Because i was employed on contract.

Q, And when you became more permanent?

A. They were Gone.

Fullher, John Young Sing, the Managing Director of Young Sing in his affidavit sworn to

on t l ~o 4* September, 2002 deposed as follows:

"4. In or about the year 1983, there was a major strike at the Company. In that year, ail the production workers were retrenched and paid their severance benefits. Since that lime, the All Trinidad Sugar and General Workers' Trade Unlan has not entered into any negoliailons or collective bsrgaining with the Company nor has it wrlllen or approached the Company on any Issue or issues concerning the workers. It was therefore agalrlst this background that no Retrenchment Notice was given to the Union. It was onivafter Attorneys-aI4.a~ for the Comoany opposed the aoplication for the ex parte iniunclion made bv the National Union ofGovernn~ent anti Fodorated Workers on or about 21"Auac~st, 2002 that 1119 issueof!b m n l t i o n Cnrtilicale issued lo lhe All Trinldad Union came lo liahl." (Emphasis ours).

When one considers the above evidence of the wilnesses in these applications can a fair

niinded person come to the conclusion that Young Sing deliberately refused to consult

All Trinidad7 Or, to put it another way, did Young Sing honestly and reasonably hold the

belief that All Trinidad should have been consulted prior to the proposed retrer~chment

plan being put into effecl? Clearly, in the Court's view the answer is in the negative.

Young Sing, according to the evidence, unilaterally changed tho method of payment of

its produciion workers from "hourly rated but weekly paid" to "monthly rated monthly

paid". There Is absoluteiy no evidence to show that All Trinidad as the Recognized

Majorily Ur~ion took any steps whatsoever to stem the diminution of the bargaining unit.

Young Sing in its Evidence and Argir~nents stated, Inter alia, that the bargaining unit

ceased to exist. We do not share this vlew. It may not have had any workers who fit the

description as stated in the Certificate of Recognition, but surely there were workers

who, when the provlsiotis of S.33 of tho IRA are applied, had a comtnonality of interests

so as to satisfy the consideratlons stated therein.

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In Civil Appeal No. 164 of 2000 between market in^ and Distribution Limited formerly

Grell Taurel and MASATT Warner J.A. had this to say:

"the proper test of bad faith was whether the employer did or did not hold the belief honestly and reasonably in the context of good industrial relations practice that discussions should have been deferred."

Earlier in the said judgment she stated:

"I adopt the subjective approach which was commended by this Court in Marketing and Distribution Limited v OWTU" (CA 179 of 1996).

The facts in those two (2) cases were quite different but the principles enunciated therein

are applicable to all Industrial Relations Offences under S. 40 of the IRA including this

one. Further, the Oxford Companion to Law by David Walker 1980 Ed. states that an

act done in good faith is done if done honestly, even though negligently.

It is to be noted further that in paragraph 6 of the Evidence and Arguments filed on the

24Ih October 2002 on behalf of NUGW in IRO 11A of 2002 It is stated, inter alla,

"Consequently, the Union (NUGFW) did not pursue its application for the injunction and

instead made contact with the ATSGWTU and made arrangements for the Application

for the injuncfion to be pursued by the ATSGWTU". I t is clear therefore that All Trinidad

was in a state of dormancy or inactivity in respect of Young Sing's workers and was

resurrected or awakened from its slumber by NUGFW on belng told that it (NUGFW) had

no locus standi to proceed against Young Sing. The relevant provisions of the RSBA

required a representative trade union to be vigilant and to vigorously take the initiative in

ensuring that i t is supplied by the employer concerned with whatever information i f

deems necessary to satisfy itself that the employer's retrenchment proposals are fair

equitable and just before those proposals are put into effect. See TD No. 119 of 1993

between Seamen and Waterfront Workers' Trade Union and Port Authoritv of Trinidad

and Tobaoo. In our view the equitable doctrines of laches and estoppel by conduct are

applicable here. A plaintiff in equity is bound to prosecute his claim without delay.

Where the plaintiff has slept-upon his rights and acquiesced for a great length of time a

Court applying the principles of equity and good conscience (as this Court is mandated

to do) will refuse its aid to stale demands. See Lindsay Petroleum Companv v Hurd

118741 LR5 PC221 and Amalaamated Investment and Property Company Limited v

Texas Commerce international Bank Limited 119811 3 AER 577.

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In light of the liislorical relationship between All Trlnidad and Young Sing and the

pronouncements of the Court of Appeal in the matters above refcrred to (the MASATT

matters), Lflls Court finds lhat there is a lack of cogent evidcnco of any bad faith on the

part of Young Sing. In the clrcuntstances, this application Is dismlssed.

iRO NO. 13 OF 2002 -the All Trlnidad IRO

As statc:d early in this judgment, the Section 84 application alleges an offence under S.

25(1) of the RSBA 1985. (See above). The sole contontion hare is that Young Sing

falled to give notice to All Trinidad (the Recognized MaJorlty Union) of its Intention lo

retrench the workers as is required under Section 4. There is no dispute that notice was

in fact giveti lo the Mtnlster as Is also required under the RSRA. In reality I t is the same

notice that Is given to the Minister lhat Is intended to be given to All Trinidad in this case.

S. 25(1) states that a person who contravenes the provislons of the RSBA is guilty of an

industrial relalions offence within the meaning of the IRA and further where such

contravention is brought before the Court it shall be dealt will> In accordance with the

procedure laid down by the IRA. That procedure in our view is contained In S. 84 of the

IRA.

All Trlnidad (as has been held above) is the Recognized Majority Unlon and the

application was well within the lime llmit set by S. 114(2).

Mr. Jairam in his submission stated that the workers never asserfed that All Trinldad was

the recognised majorlty union. He further stated that the Company (Young Sing) was

clearly intending to comply wilh the provisions of Ihe RSBA and wrote the Mlnisler an

elaborate letter giving all the particulars. According to him, It would have been easy for

Young Sing to notify All Trinldad by sendlng a copy of the letter to it.

It was pointed out to the Court that several maHers and things were deposed to on

affidavit by a Director of Young Sing in the various applications before the Court - all of

which arose out of the issuance of the retrenchment notices. But i t must be borne In

mlnd that the affidavits were deposed to &I& tile fact, that is, after the Unions

(NUGFW and All Trinidad) made their respective appllcatlons and well after the date of

the issue of the retrenchment notices. It wlll be a just and probable concluslon therefore

that it was only after Young Slng had had an opportunily to vlew these documents by

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checking its records and to obtain legal advice that it was able to state (he nature of its

relationship with the Unions.

An industrial relations offence is not one of strict liability, though criminal in nature. See

Marketina and Distribution Limited formerly Grell Taurel and MASATT Civil Appeal No.

I64 of 2000 (supra).

We therefore adopt the same reasoning for the decision in IRO No. 12 of 2002 and find

that on a balance of probabilities Young Sing is not guilty of the commission of an

industrial relations offence in IRO No. 13 of 2002.

Mr. R. Lutchmedial Chairperson

Mr. P. Rabathaly Member

Ms. R. Thompson-Boddle Member

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