Voice1.2011.IR at a glance

The Employers’ Consultative Association

of Trinidad and Tobago

The Premier Employers’ Representative

Industrial Relations at a Glance

’

of the Employer MagazineVol.1 2011

Magazine.Vol.1.indd 1Magazine.Vol.1.indd 1 5/18/2011 7:49:55 AM5/18/2011 7:49:55 AM

Magazine.Vol.1.indd Sec1:2Magazine.Vol.1.indd Sec1:2 5/18/2011 7:50:15 AM5/18/2011 7:50:15 AM

Voice of the Employer Vol.1 2011

www.ecatt .org 33

Our VisionTo be the Premier Employers’ Representati ve

Our MissionTo Advance Employers Interests for the creati on of opti mum, sustainable value for all stakeholders.

Our MandateTo provide employers with quality representati on at the organisati onal, nati onal and internati onal levels in order to ensure the strength and success of the employer community for the socio-economic well-being of the nati on.

Board Members - Keston Nancoo (Chairman), Suzett a Ali (Vice Chairman) Linda M. Besson (Executi ve Director/Secretary), Ruben Mc Sween, Marti n de Gannes, Neil Derrick, Victor Coombs, Dexter Charles, Heidi Bason, W.A. Hilton Clarke, Seeram Ken Maharaj,

Lennon Ballah-Lashley, Charlene Pedro, Gwendoline McLaren, Imran Khan, Narendra Kirpalani, and Farzan Ali

Publisher: Linda BessonEditor: Marsha Gomes

Layout & Cover Design: Marsha GomesEditi ng: Annett e Joseph, Sharmila Debideen and Marsha Gomes

Adverti sing Sales: ECA Team - Marketi ng DepartmentPrinted by: Caribbean Paper & Printed Products Limited a division of The Offi ce Authority Group of Companies

Employers’ Consultati ve Associati on of Trinidad and Tobago23 Chacon Street, P.O. Box 911, Port of Spain

Tel: 625-4723, Fax: 625-4891Email: ecatt @tstt .net.tt , Website: htt p://www.ecatt .org

The views expressed by the ECA Voice Magazine are not necessarily those of the ECA. The ECA accepts no responsibility for the views expressed by contributors nor for errors in contributed arti cles or adverti sements. Reproducti on in whole or in part without

writt en permission is strictly prohibited.

© The Employers’ Consultati ve Associati on of Trinidad and Tobago – All Rights Reserved.

Chairman and Executi ve Director’s Profi le 4Affi liati ons 5Chairman’s Address 6New Board of Directors 2011 - 2013 9An Industrial Relati ons Saga 11A look at Natural Justi ce 15 Insti tute of Gender 17Job Seekers in T&T 18Industrial Relati ons Guidelines 21 - 37


IR at a Glance

44 The Employers’ Consultati ve Associati on of Trinidad and Tobago

CHAIRMAN’S PROFILE

EXECUTIVE DIRECTOR’S PROFILE

Linda M. Besson, is the Executi ve Director and Corporate Secretary to the Board of Di-rectors of the Employers’ Consultati ve Associati on of Trinidad and Tobago and Execu-ti ve Secretary to the Caribbean Employers’ Confederati on (CEC) the Regional Body of Employers Organisati ons/Associati ons. Mrs. Besson has over 30 years’ management experience. She has spent more than 15 years in her current positi on at the ECA and 14 years at the CEC. Prior to joining the ECA she worked as a consultant manager to Trinidad Cement Limited Group of Companies. Previously she worked at Eastern Credit Union Co-operati ve as General Manager. Mrs. Besson is adept and experienced at build-ing and developing organisati ons. She is very much at home working with people and at empowering those around her to see the vision she sees and shares.

This has been very well demonstrated in the 15 years she served as Chief Executi ve Offi cer of the Eastern Credit Union. In 1993 Linda Besson was the only female CEO in the top 50 companies in Trinidad and Tobago. She has an Internati onal MBA and is a member of the Associati on of Business Executi ves (ABE). Linda Besson has developed experti se in the development and implementati on of Management systems and has

project-managed programmes. She also has wide experience in Administrati on, Financial and Credit Management, Business Development, Public Relati ons and Managing Change. Her success is demonstrated in the fact that she is responsible for the growth of the ECA from 75 members in 1996 to over 680 members as at April 2011. She also manages a team of 29 persons, including professionals and support staff and is responsible for the forward looking approach the organisati on currently holds. The ECA ranks as one of the top Business Organisati ons in Trinidad and Tobago, being the largest in terms of membership, its service delivery and for its role in Industrial Relati ons. As the Executi ve Secretary/Treasurer of the CEC Linda Besson is responsible for the day-to-day administrati on of the Sec-retariat, for ensuring that the Confederati on is represented at all meeti ngs, workshops and seminars to which it is invited. She coordinates projects and programmes that the regional body may be called upon to carry out, including those coordinated through CARICOM (PANCAP-HIV/AIDS).

Mr. Nancoo is the Group Vice President, Human Resources and Corporate Services at Guardian Holdings Limited and has over thirty years of experience within the manufac-turing sector, both locally and regionally, in Human Resources especially in the area of Employee Relati ons, Industrial Relati ons, Marketi ng and Communicati ons.

He served for some ten years as the Branch Secretary of NUGFW, and has been a mem-ber of the Employer’s Consultati ve Associati on Board for over four years.

Keston has a B.Sc (cum laude) in Business Administrati on and an MBA in Marketi ng from Andrews University in Michigan, USA. His training did not cease at his MBA but his aspi-rati ons and commitment to his career also led him to pursue additi onal training at The Chicago Business School and Harvard Business School.



www.ecatt .org 55

The Caribbean Employers’ Confederati on (CEC) is a regional grouping of employers’ organisati ons in the Caribbean Region founded in 1960. This organisati on is dedicated to the development and promoti on of good industrial relati ons practi ces at the enterprise and macro levels and is committ ed towards achieving producti vity and prosperity for mem-ber countries and the region as a whole. Its offi ce is housed at the Employers’ Consultati ve Associati on, 23 Chacon Street, Port of Spain, Trinidad.

The Caribbean Employers’ Confederati on (CEC) is a regional grouping of employers’ organisati ons in the Caribbean

CARIBBEAN EMPLOYERS’ CONFEDERATION (CEC)

INTERNATIONAL LABOUR ORGANIZATION (ILO)

The Internati onal Labour Organizati on (ILO) was founded in 1919, in the wake of a destructi ve war, to pursue a vision based on the premise that universal, lasti ng peace can be established only if it is based upon decent treatment of working people. The ILO became the fi rst specialised agency of the UN in 1946. The ILO is the only “triparti te” United Nati ons agency in that it brings together representati ves of governments, employers and workers to jointly shape poli-cies and programmes. This unique arrangement gives the ILO an edge in incorporati ng “real world” knowledge about employment and work. The ILO is the global body responsible for drawing up and overseeing internati onal labour standards. Working with its Member States, the ILO seeks to ensure that labour standards are respected in practi ce as well as principle. Trinidad and Tobago joined the ILO in 1963 and has rati fi ed 17 conventi ons to date.

INTERNATIONAL LABOUR AND EMPLOYMENT RELATIONS ASSOCIATION (ILERA)

INTERNATIONAL ORGANISATION OF EMPLOYERS

The Internati onal Labour and Employment Relati ons Associati on formally The Internati onal Industrial Relati ons As-sociati on was established in 1966 in response to a growing need to develop and exchange knowledge in the fi eld of industrial relati ons at the internati onal level, and provide the academic and the practi ti oner with a forum for discus-sion and research. Its founding members were the Briti sh Universiti es Industrial Relati ons Associati on, the Industrial Relati ons Research Associati on (USA), the Internati onal Insti tute for Labour Studies (Geneva, Switzerland) and the Japan Insti tute of Labour. The Associati on has over 1,000 members worldwide including prominent industrial relati ons scholars and practi ti oners. Subjects such as globalisati on, new technology, gender, HIV/AIDS, employee involvement, occupati onal safety and health, industrial relati ons, labour law, human resource management, internati onal labour standards, social dialogue, labour administrati on, informal economy, and many other topics are largely discussed dur-ing its congresses.

Since its creati on in 1920 the Internati onal Organisati on of Employers (IOE) has been recognised as the only organisa-ti on at the internati onal level that represents the interests of business in the labour and social policy fi elds. Today, it consists of 146 nati onal employer organisati ons from 139 countries from all over the world. The mission of the IOE is to promote and defend the interests of employers in internati onal fora, parti cularly in the Internati onal Labour Or-ganizati on (ILO), and to this end works to ensure that internati onal labour and social policy promotes the viability of enterprises and creates an environment favourable to enterprise development and job creati on. At the same ti me it acts as the Secretariat to the Employers’ Group at the Internati onal Labour Conference, the ILO Governing Body and all other ILO-related meeti ngs. In order to ensure that the voice of business is heard at the internati onal and nati onal level, the IOE is acti vely engaged in the creati on and capacity building of representati ve organisati ons of employers, parti cularly in both the developing world and those countries in transiti on to the market economy. The IOE is the per-manent liaison body for the exchange of informati on, views and experience among employers throughout the world. It acts as the recognised channel for the communicati on and promoti on of the employer point of view to all United Nati ons agencies and other internati onal organisati ons.


IR at a Glance


CHAIRMAN’S ADDRESSIt is indeed an honour and a privilege to be appointed to the position of Chairman of the Employer’s Consultative Association (ECA). This organization, now in its 51st year, has a lot to be proud of, particularly when viewed in the context of its unwavering commitment to providing service to meet the needs and interests of employers.

As we continue to strive to take ownership for creating our future, the focus of my team over the next two years will be on efforts that will allow us to nurture, enhance and sustain our Brand/Image. In order to realize the benefi ts from those efforts, we would need to leverage on our core competencies which are the key competitive differentiators which distinguishes the ECA from the rest.

Our focus in this regard will be on three levels. On one level is our focus on delivering value to our customers through the service we provide, both in terms of content and modality. We believe that our members are our most important resource and it our intention to provide exceptional service on a consistent basis, in addition to providing forums and other opportunities for them to work through their organizational challenges.

The next level would entail deepening and strengthening our relationship with key stakeholders such as the Government of Trinidad and Tobago, the Ministry of

Labour, the Industrial Court, the ILO and its affi liated bodies, the Trinidad and Tobago Manufacture’s Association, the Trinidad and Tobago Chamber of Industry and Commerce, the American Chamber of Commerce, the Trade Union Movement, in addition to other National organizations, and other Regional Employers’ organizations.

On the National level, we see our role as critical to the process of nation building, where the quality of lives of our citizens would be continuously improved. This however cannot be accomplished by the ECA alone but through a commitment to Tripartism. We wish to place on record that we subscribe to the view that Tripartism is a pow-erful vehicle and an effective strategy through which commitment to economic and social development can be achieved.

Tripartism, brings to the fore the commonality of objectives of social partners which, if handled with the maturity, objectivity and respect by each of the social partners, can realize benefi ts for all. Moreover, economic prosperity, stability and social progress cannot be achieved by governments, employers or workers acting alone. There must be greater levels of commitment to social dialogue and collaboration where social partners are able to rise to the broader picture since, on the one hand for businesses to be able to provide jobs, they must become competitive and with the ability to compete globally. Correspondingly, there is the need for employers to continuously create an environment where employees are treated fairly and with respect.

As an organization, the ECA distinguishes itself from its competitors by having a wealth of knowledge and experi-ence in the fi eld of Industrial Relations Principles and Practices, through its training, advisory services and techni-cal support in the fi eld. Accordingly, we will continue to be a key player by supporting the principles of decent work agenda; the modernization of the Legislative frame work; efforts to enhancing Productivity and Competitive-ness and Small and Micro Enterprise Development.

continued on next page

Keston NancooChairman



www.ecatt .org 77

The ECA has also worked assiduously with the Caribbean Employers’ Confederation (CEC), a regional grouping of employers’ organizations in the Caribbean Region founded in 1960 by six (6) Caribbean countries which in-cluded the Antigua Employers Federation, the Barbados Employers Confederation, the Belize (British Honduras) Employers Association, the Jamaican Employer’ Federation, the St. Lucian Employers’ Federation and the Em-ployers’ Consultative Association of Trinidad and Tobago. Today there are 17 countries in the Confederation and its Secretariat has been housed at the ECA’s head offi ce in Trinidad since April 1997, serving the Region.

One such piece of employment legislation is the Industrial Relations Act. From 1970 till today the ECA has been a member of the Advisory Committee to report on its content, structure and currency and continues to work to ensure a balance in the legislative framework of the nation in favor of Employers. The ECA has also been involved in a number of Committees that represents the Employers interest nationally, having gained recognition as the leading Employers Association.

The ECA, functions in a representative and regulative, consultative, and educational capacity with respect to employers’ interests. While Industrial Relations – Advice and Consultancy remains the mainstay of the Organiza-tion, the adoption of a proactive approach to Human Resource on a whole has enabled the Association to not only provide guidance and/or consultancy in the areas of human resource management, but also in environmental man-agement, occupational safety and health, and other workplace issues. In the past decade the ECA has also focused on offering in-depth training to improve the quality of one’s employee’s performance, emphasizing the connection between human asset development and your bottom line.

As employers continue to grapple with the impact of the global fi nancial and economic crisis on enterprises, labour markets, industrial relations and competitiveness, and seek to reposition themselves to successfully face the chal-lenges of this era, the role of the ECA will assume even greater signifi cance. The future will belong to organiza-tions whose leadership remain calm, are able to fully assess their options and nurture the fl exibility, awareness, and resilience needed to deal with whatever the world throws at them. Let us go forward with the passion, tenacity and commitment to build a better world and more importantly, a better Nation.

I thank you and look forward to serving you throughout my tenure and to indicate to the membership and stake-holders of this esteemed organization that your confi dence is well placed.

- * -


IR at a Glance


BOARD OF DIRECTORS 2011 - 2013Keston Nancoo, Chairman Vice President, Human Resources Guardian Holding Limited

Suzett a AliVice Chairman General MangerCoates Brothers (Caribbean) Limited

Mr. Ruben Mc Sween (Immediate Past Chairman)Board Member and Member of Executi ve Committ eeVice President Customer Service CentresTrinidad and Tobago Unit Trust Corporati on

Mr. Marti n de Gannes Board Member and Member of Executi ve Committ ee and Chair of the ECA Industrial Relati ons Committ eeGeneral Manager Human Resources Scoti abank (Trinidad & Tobago) Limited

Mr. Neil DerrickBoard Member and Mem-ber of Executi ve Committ ee and Chair of the ECA Finance Committ eeManager, Industrial Relati ons & Compensati on & Benefi ts, Petroleum Company of Trinidad and Tobago Limited

Dr. Victor CoombsBoard Member and Member of Executi ve Committ ee and Chair of the ECA OSH/HIV/AIDSCommitt ee Medical Practi ti oner/OSH Consultant

Dexter CharlesBoard Member and Member of Executi ve Committ ee and Chair of the ECA Stakehold-ers Committ ee Manager Corporate Communicati onsFirst Citi zens Bank Limited

Ms. Heidi D. BasonBoard Member Manager-Group CorporateCommunicati onsAtlanti c LNG Company of Trinidad & Tobago



www.ecatt .org 99

Mr. W.A Hilton ClarkeBoard Member DirectorCONFIDA Limited

Mr. Seeram Ken Maharaj Board Member Chief Executi ve Offi cerSeeramics Limited

Mrs. Lennon Ballah - LashleyBoard MemberDivisional Manager Human Resource Services (Ag)Trinidad and Tobago Nati onal Petroleum Marketi ng Company Limited

Mrs. Charlene PedroBoard Member Manager - Corporate ServicesBusiness Development Com-pany Limited

Ms. Gwendoline McLaren Board MemberHuman Resource ManagerColonial Life Insurance Company (Trinidad) Limited

Mr. Imran KhanBoard Member Chief Executi ve Offi cerK.C. Confecti onery Limited

Mr. Narendra KirpalaniBoard Member Chief Executi ve Offi cerInterior Exterior Aluminum Decorators Limited

Mr. Farzan AliBoard Member Human Resource Manager Tissue Limited


IR at a Glance

The Employers’ Consultati ve Associati on of Trinidad and Tobago

IR at a Glance

The Employers’ Consultati ve Associati on of Trinidad and Tobagoociati on of Trinidad and TobagoThe Employers’ Consultati gThe The Em

WHO CAN CLAIM

WHO CAN CLAIM

WHEN TO CLAIM

WHAT IS PAID

DID YOU KNOW?

The National Insurance Employment Injury Benefits are payable to an insured person who is unable to work because of personal injury caused by an accident, which arises out of and in the course of employ-ment, or through a prescribed industrial disease caused by the nature of their employment.

This is a unique benefit which consists of four (4) categories: Injury Benefit - payable for 52 calendar weeks.Disablement Benefit - consists of either a monthly pension or a lump sum payment.Medical Expenses - to assist with expenses incurred as a result of injury or a prescribed disease.Death Benefit - monthly benefit payable to the spouse, dependent parents and dependent children.

Anyone who is in insurable employment where the individual is employed under a contract of service and:- A contribution was due for that week of employmentIs away from the job because of an accident/disease that arose out of or in the course of employment; Is incapable of work for more than 3 days as a result of the injury or prescribed industrial disease.

The benefit payment is determined by using the class in which your contribution was made in the week of the accident or the week prior to the accident, whichever is higher.

The Employment Injury Benefit will be paid to a claimant whether or not there is a loss of earnings result-ing from the injury or prescribed industrial disease.

Claim will be accepted

Claim is late and may be accepted with good cause. A late claim letter is needed

Claim shall be disallowed

Within 14 days

After 14 days up to 12 months

Over 12 months

For more information, please visit our website or call us today.

www.nibtt.net Hotline:663-4NIS [email protected] [email protected]

WHAT ARE THE EMPLOYMENT INJURY BENEFITS



www.ecatt .org 1111

AN INDUSTRIAL RELATIONS SAGA – A trip down memory lane on the Industrial Relati ons Climate in

Trinidad and Tobago over the years writt en by Mr. Gabriel Yeates

INDUSTRIAL RELATIONS REVOLUTIONISED

It is believed that the Enacting of the Industrial Stabilization Act (ISA) No. 8 of 1965 in March of 1965 was the best thing that ever happened to Industrial Relations in Trinidad and Tobago.

Industrial Relations took on a revolutionary change at this time; in that there was no more ‘hit and miss, pound table negotiations’ and there was a discontinuation of brawn power. In fact, when it was announced sometime around the 12th to the 14th of March 1965 that the government of Trinidad and Tobago was going to enact legislation for the control of trade unions, most people did not believe that the government could have done such a thing.

When the government went to parliament within the next two days, the Bill (ISA) was placed on the table and the main facts were as follows:

1) There would be compulsory recognition of trade unions by employers once the trade union had organized 51% of their workers in the particular bargaining unit.

2) There would also be instituted an Industrial Court for the resolving of trade disputes referred by the Ministry of Labour which must be unresolved after discussion. The said Court had untold power to decide according to section 13 (A) of the ISA that in making awards. It must take into consideration the following: - Equity - Good Conscience - The substantial merits of the case before it - What effect its decision will have on the rest of the community - And it must not be harsh or oppressive but in keeping with the principles and practices of good industrial relations.

This industrial relations change was revolutionary. What this Act did among other things was to take the power out of the hands of employers which was given to them by the Masters and Servants Act of 1846, which was revised sometime in the 1930s, and put it into the hands of employees.



IR at a Glance


FAIRNESS AND REASONABLENESS

To understand the above phrase, Justice Reece in Civil Appeal No. 30 of 1972 between UCIW and Caribbean Printers Ltd defi ned what it meant by the principles and practices of good industrial relations – stated “all those in-formal, un-codifi ed understandings which are ancient hab-its and dealings adopted by trade unions and acquiesced in or agreed to by employers”.

- It meant that anything could be contrary to the principles and practices of good industrial relations and therefore the trade unions could have referred anything to the Indus-trial Court as a dispute to be heard.

- All collective agreements had to be registered in the Court for it to be legal and enforceable and the said Col-lective Bargaining agreement must carry a clause entitled grievance procedure for the avoiding and settling of trade disputes. If any such Collective Bargaining agreement was mistakenly stamped by the Industrial Court and didn’t possess a grievance procedure, it would automatically be deemed null and void with no effect.

- Trade Unionists and workers who were engaged in illegal strikes would be punished by being fi ned or jailed or if em-ployers had wrongly locked out workers, they also would be fi ned or incarcerated. After years of working with the ISA, it was reviewed. In 1972 the Industrial Relations Act (IRA) was born, which today has been subject to several amendments. The IRA (No. 23 of 1972) and amendments now 88:01, plugged the various holes that were in the ISA and brought in some new clauses.

These clauses are as follows: 1. Recognition would no longer be given by employers, but by a Board comprising Unions and public spirited in-dividuals. The Board was known as the Registration, Rec-ognition and Certifi cation Board (RRCB).

2. Once the trade unions had organized 50% of the em-ployers’ workers as members in the particular bargaining unit, the board was obligated to issue the certifi cate of rec-ognition to the trade unions. That certifi cate of recognition was a complete marriage between labour and employer and the only way out was if either party had violated the IRA by committing an Industrial Relations Offence (IRO) as was done by Communications Workers Union (CWU) with Holiday Inn now known as Crown Plaza when the said CWU did not follow the Industrial Relations proce-dure before taking strike action.

What CWU did wrong is that they did not count correctly and took strike action on the 8th day, thus committing an Industrial Relations Offence (IRO) which was upheld by the Industrial Court of Trinidad and Tobago and which gave the employer the right to fi re all those workers who went on strike. In addition, the Industrial Court withdrew as a request by the employer the recognition which the union had obtained.

This procedure, which was a new clause by the IRA stated that Industrial Action could only take place when there is a dispute of interest (not a dispute of right) which must: - Step 2 - reach the Minister of Labour. - Step 3 - The Ministry of Labour has 14 days to resolve the matter- Step 4 - If the Minister could not he must ask for an ex-tension of time which must be agreed to by both parties




www.ecatt .org 1313

- Step 5 - and if the dispute is still not resolved, the Minis-ter must then state in writing that the matter is unresolved- Step 6 - from here, either party now has the right to take Industrial Action (Strike or Lock Out) within 7 days after the Minister had stated that the matter is unresolved.

PRINCIPLES AND PRACTICES OF GOOD INDUS-TRIAL RELATIONS

The Principles and Practices of Good Industrial Relations can be found under three main headings: - ILO Conventions, especially numbers 87, 98, 100 and 158 – the government of Trinidad and Tobago have ratifi ed at least 17 of these ILO conventions.

- Labour Laws – there are about 44 labour laws in this country – but the four which operate everyday are the In-dustrial Relations Act 88:01, the Retrenchment and Sever-ance Benefi ts Act No. 32 of 1985, the Maternity Protection

Act No. 4 of 1998 and the Minimum Wages Act No. 17 of 1999 (as amended in 2006); and as well as the Occupational Safety and Health Act.

- Natural Justice – there are 23 of them but most people only know about 5, for example: - A man is innocent until proven guilty - If found guilty, penalty must suit the of-fence - If there is doubt, benefi t goes to the ac-cused - The right of appeal - No one is above the law

Some of the landmark court judgments in-clude: - Application of Industrial Agreement No. 4 of 1968 between Lake Asphalt and Construc-tion Workers Union which gives us the prin-ciple on how to dismissed correctly.

- TD No. 28 of 1968 between Lake Asphalt and Seamen and Waterfront Workers’ Trade Union (SWWTU) says that there is no such thing as light duties for which the Employers is obligated.

- No. 2 of 2000 between CWU and Hindu Credit Union – itemizes the factors for exem-plary damages.

- ESD No. 16 of 1982 between T&TEC and OWTU covers absenteeism and sick leave today.

- TD No. 159 of 1974 between NUGFW and Cannings Limited – which states that if a worker absences himself two days every month for nine months consecutively, he can be dismissed among other things.

- Trade Dispute No. 20 of 1966 between UCIW and Tex-tile Limited and further supported by Trade Dispute No. 14 of 1968 between TIWU and PTSC which gave the prin-ciple that an employer cannot claim inability to pay wages which is a cost while his other cost (materials, electricity, transport, entertainment and other costs) are increasing.

- * -


IR at a Glance


IR at a Glance

The Employers’ Consultati ve Associati on of Trinidad and Tobagoociati on of Trinidad and TobagoThe Employers’ Consultati gThe EThe Em



www.ecatt .org 1515

NATURAL JUSTICE The basic guidelines to any Industrial Relati ons Practi ce

The industrial relations system in Trinidad and Tobago was transformed from voluntary to a legal compulsory system in 1965 with the passage of the Industrial Stabi-lization Act (ISA) of 1965. This piece of legislation was later repealed and replaced in 1972 by the Industrial Rela-tions Act (IRA).

The Industrial Court which was established for the deter-mination of industrial relations disputes is a creature of the IRA. This important Act of Parliament espouses a doctrine that parties in an industrial relationship must practice good and proper industrial relations. The IRA therefore gives an unambiguous command to the court to apply the principles stated therein i.e. good industrial relations practice, in all matters before it.

Good industrial relations practice is premised on compli-ance with the rules of natural justice. These rules can be divided into three main elements which ought to be ap-plied by the employer in the order they are presented be-fore effecting disciplinary action. These are: (i) The employer must conduct an investiga-tion fairly and in good faith (ii) The worker must be informed of the charge/s against him/her and (iii) The worker must be given an opportunity to be heard in his/her own defense.

Conducting an investigation fairly and in good faith sim-ply means that there must be an objective and fair ap-proach to the exercise and that no disciplinary action or punitive measure must be taken in advance of such investi-gation. Any disciplinary action taken before the disclosure of the fi ndings of an investigation amounts to a breach of procedural fairness and is challengeable purely on those grounds. A precautionary suspension may be effected if it becomes absolutely necessary to remove the worker/s from the working environment to facilitate freedom or easy access to the investigators. Such suspension must be with full pay, hence not punitive.

If the circumstances surrounding the allegations are so blatant and suffi cient, irrefutable evidence is available then no further investigation may be necessary. However, the onus is then placed on the employer to show that such a situation existed which would not have changed the out-come. It is expected and proper that when allegations of misconduct are made against a worker either by an infor-mant or external person, a balance must be struck between protecting the informant and providing a fair hearing to the accused.

The necessity to inform the worker of the charge/s against him/her is to allow the incumbent a fair and reasonable opportunity for the preparation of his/her defense. This op-portunity is indeed critical as it gives the worker a chance to present evidence in refutation or provide witnesses in his/her defense. A deprivation of this opportunity by the employer breaches the rules of natural justice. Trade Dis-pute No.15/2000 between Bank and General Workers Union and Public Services Association emphasizes the importance of this step.

The essence of a fair opportunity to be heard involves the provision of all relevant information including witness statements, by the employer to the accused worker to en-able him/her to understand and appreciate the substance of the allegation/s against him/her. Further, it presents to the incumbent an opportunity to respond to the allegation/s as well as a chance to advance a plea in mitigation or even beg for leniency. By this means an opportunity is also pro-vided to the worker to bring to the attention of the employ-er relevant facts and to provide his/her side of the story before disciplinary action is taken.

This step is a requirement of procedural fairness and jus-tice and is one of the main pillars of good industrial rela-tion practice.



IR at a Glance


The principles of good industrial relati ons practi ce dictate that no worker’s employment may be terminated except for valid reason (good cause) related to his/her perfor-mance of job functi ons for which he/she was employed or which is founded on the operati onal requirements of the organizati on. These long standing principles are en-shrined in Internati onal Labour Organizati on (ILO) Con-venti on No. 158. The fact that this parti cular conventi on has not been rati fi ed by Trinidad and Tobago is an unten-able argument according to the court in TD No. 140/1997 – Bank and General Workers Union vs. Home Mortgage Bank. The court had this to say “. . . it is not applicable as part of the domesti c law of Trinidad and Tobago but as evidence of principles of good industrial relati ons practi ce which have been accepted internati onally.”

The terminati on of a worker’s employment purely on the basis of a terminati on clause in the contract that gives parti es the opti on to terminate the relati onship by giving noti ce, is an unfair dismissal since good cause must be established. There is a statutory right of workers not to be unfairly dismissed and this is not derived from contract but the existi ng legislati on, the IRA. Similarly, the expres-sion of loss of confi dence by itself does not consti tute

good cause since there must be valid reasons supported by evidence for the purported loss of confi dence. The principles of good industrial relati ons practi ce also re-quire an employer to inform the work-er of the reason/s (good cause/s) for the proposed dis-missal.

The three main el-ements of the rules of natural justi ce are inextricably connected since failure to comply with any or all of them amounts to a violati on of ILO

Conventi on No. 158 and a violati on of good industrial re-lati ons practi ce. It is important to note here that the pro-tecti on provided under Secti on 10(3) of the IRA applies to all workers whether unionized or not whether they are on fi xed term contracts of short durati on or full ti me employ-ment. The length of the contract is of no signifi cance.

In determining whether or not a worker should be dis-missed the employer should examine the facts objecti vely to determine whether or not dismissal is the appropriate penalty having regard to the circumstances of the case. Progressive disciplinary acti on in matt ers of punctuality, absenteeism and on the job performance appears to be the thinking of the court.

The length of service and the record of the worker are important factors to be considered when contemplati ng disciplinary acti on. Modern jurisprudence has att ached signifi cant value to the contributi on of long service by a worker to an organizati on which service is now regarded as equity.

Mr. Kyril Jack IR Expert



www.ecatt .org 1717

The United Nations Research Institute for Social Devel-opment on its website stated that: “In recent decades the presence of women in public life has grown, whether in politics, in the workforce, or in the migrant streams that cross international borders.

At the same time, the intensive engagement of activists and researchers with the development establishment has turned “gender” into a legitimate policy issue for institutions and movements operating at different levels. Yet gender in-equalities in power continue to be a persistent and integral feature of the modern world and its institutions - whether markets and macroeconomic fl ows; states, political par-ties and social movements; or the intimate sphere of fam-ily, household and community. Transformative agendas of

social change are constrained not only by the continued dominance of market orthodoxy in some important are-nas of policy making, but also by shifts in geopolitics, and new forms of religious and cultural politics that are being played out at global, national and sub-national levels.”

The Institute for Gender and Development Studies: Nita Barrow Unit, University of the West Indies (UWI) Cave Hill, Barbados will be hosting a four-week training pro-gramme entitled: “Caribbean Institute in Gender and De-velopment : An Intensive Training Programme” from July 1-31, 2011. The programme examines the impact of gen-der relations on women and men and how these relations affect the process of social change. According to the uni-versity participants will be in a better position to improve their social situations and that of their societies after com-pleting this course.

Specifi c objectives of the programme are as follows: - To provide critical insights into feminist theories and methodologies and their application to everyday issues in Caribbean societies.- To impart skills of gender analysis as tools for analysing and understanding the developmental process.- To examine historical, political, cultural, environmental, social and economic issues from the perspective of the so-cial relations of gender.- To develop a consciousness of gender relations as a mechanism that facilitates professional analysis and raises levels of confi dence and self-awareness.- To enable participants to act as catalysts for change by developing their leadership and communication skills.- To enable participants to share experiences and develop networks as a basis for future action.The course will be taught in English and will use an in-terdisciplinary, participatory method of instruction. The results of the project may be a research paper, a document or resource kit, or a range of video or audio products. A certifi cate will be presented to each participant who suc-cessful completes all components of the programme. Cer-tifi cates will also be awarded with distinction for outstand-ing work.

The university can be contacted on: (246) 417-4490/1/2/3 or via E-mail: [email protected] for those seeking further information on this informative and relevant pro-gramme.

****

The Institute for Gender & Development Studies: Nita Barrow Unit

First Graduate Symposium, Nov 2009Chairman


IR at a Glance


JOB SEEKERS IN T&TWhat Every Employer Needs to Know

The Employers Soluti on Centre (ESC) the subsidiary of the Employers Consultati ve Associati on of Trinidad and Toba-go (ECA) has undertaken an online research initi ati ve to understand the psyche of the job seeker in today’s labour market, and to use this informati on to assist employers with recruiti ng and retaining the best performers for their environments. Among other things, the research eff ort sought to identi fy the type of employee that is most likely to be constantly searching for a bett er job opportunity and the aspects of the employee’s work life which most contribute to employees’ wanti ng to leave their jobs.

Results indicate that those persons who intend to leave their jobs by the end of 2011 diff er signifi cantly from those who intend to stay in their current jobs, such that those intending to leave;- Agree more that they are always searching for jobs- Are less concerned with the stability of their jobs- Think it is more diffi cult to fi nd suitable employment

However, results also show that both those who intend to leave and those who intend to stay share signifi cant-ly similar levels of concern with the fi nancial viability of their companies. These results are interesti ng because they may provide indicati on that persons who are more concerned about their company’s fi nancial viability and job stability may be more likely to stay put and not search for another job at this ti me. This may be as a result of the current state of the nati onal and global economy, which is sti ll recovering from the global recessionary period begin-ning 2008. Also while persons who want to change jobs

within a year are concerned with the stability of their jobs, they are more concerned with the fi nancial viabil-ity of their companies, demonstrati ng that employees are aware and will probably seek informati on and clarifi cati on on the fi nancial performance and positi on of their com-panies. This will serve as a clear indicati on to employees of whether or not they need to be concerned about their actual jobs.

Employees who wish to remain in their current jobs for the upcoming year are concerned with the fi nancial vi-ability of their companies but they are more concerned with the stability of their jobs.

This indicates a strong sense of the need for security - a basic need which employees may feel must be protected at this ti me. Both those who want to leave and those who want to stay with their companies are very concerned with the stability of their own jobs, even more so than the fi nancial viability of their companies.

Survey results also demonstrate that persons who intend to leave their jobs by the end of 2011 diff er from persons who intend to remain in their current jobs such that they are signifi cantly less sati sfi ed with:- Opportuniti es available for training and development - Ability to maintain a healthy work/ life balance within their current jobs - The physical environment in which they work - The performance incenti ves off ered

3.5 3.6 3.68 3.94.2 4.0 3.63 3.3

00.5

11.5

22.5

33.5

44.5

I am always searching for a better

job opportunity.

It is difficult to find suitable employment

in Trinidad & Tobago.

I am concerned about the financial viability

of my company.

I am concerned about the stability of

my current job.

Rat

ing

Scor

e (1

: Str

ongl

y D

isag

ree t

o 5:

Str

ongl

y A

gree

)

Job Seeking Perceptions

Average Rating Comparisons between those intending to leave and those intending to stay

Intends to stay

Intends to leave by end of 2011

Tobago.

Job Seeking Perceptions



www.ecatt .org 1919

It is also interesti ng for employers to note that people in-tending to leave their jobs are just as sati sfi ed as those who intend to stay with:

- Relati onships with their bosses and team members- The tools provided to them for work- Knowing what level of performance is required by their employer - Projects assigned to them; and - Knowing the impact their work has on the organizati on

The respondents to this survey were large-ly people between the ages of 18 to 35; the variables prompti ng turnover within this cadre should be noted and turned into an op-portunity by employ-ers to capitalize on the changing needs of em-ployees.

Take away points for employers;- Be able to manage the delicate balance between honesty and prudence in communi-cati ng the fi nancial po-siti on of your company

- Find ways to assure your staff of their job stability.

- Be aware that job candidates may be more concerned with examining your com-pany’s Annual Financial Report more than with their individual remu-nerati on packages.

- Use the internal strengths of your com-pany to brand its im-age to employees and job candidates. This is

at ti mes more diffi cult to do for existi ng employees, but this is where your HR team or advisor steps in!

Call the Employers Soluti on Centre today at 625- 4723 ext. 243, 231 or 249 for a consultati on

****

Recruitment Services for

Human Resource Professionals

The Employers’ Consultatitve Associationof Trinidad and Tobago

HR Executive / Manager

HR Officer

HR Assistant

Management Trainees

EmployeeRelations

Human Resource

IndustrialRelations

We have a large database of HR and IR Professionals in Trinidad and Tobago.

Call today for access!625-4723


IR at a Glance


Let Us Serve You!

- Advocacy and Representation of All Employment Issues

- Free Telephone Advisory on Labour Legislation, Industrial Relations, National Standards on Working Conditions and Human Resource

- Research: Compensation Surveys, Labour Market and Employment

- Publications - Compilation of Wages and Salaries; Collective Agreements and Industrial Court Judgments, etc.

- Outreach: Informative Website, Radio Series, Subscription to Employers Voice Magazine, information via email

- Forming Alliances/Networking - Meetings on various topics of interest

- Employers Solution Centre Limited provides Training, Human Resource and Industrial Relations Solutions in addition to any other consultancy request at discounted membership prices

Become a Member of the ECA What We Do?

Becoming a part of the ECA’s family entitles you to a full range of employment services. As the Employment environment in Trinidad and Tobago changes into a globalised arena, the ECA is no longer to be seen just as

true to its vision to be the Premier Employer Representative.

Our Mission

Our Mandate

To Provide Employers with Quality Representation at the Organizational, National and International Levels in

Order to Ensure the Strength and Success of the Employer Community for the Socio-Economic Well-Being of the

Nation

Contact Us

To Advance Employers’ Interest for the Creation of Optimum Sustainable Value for all

Stakeholders



www.ecatt .org 2121

INDUSTRIAL RELATIONS GUIDELINES

A look at key principles and topicsThe informati on presented here is intended as reference only and the Employers’ Consultati ve Associati on of Trinidad and To-

bago and the Employers Soluti on Centre do not represent the informati on herein to be defi niti ve or all-inclusive.


IR at a Glance


A Contract of employment in its simplest sense is an agreement between an employee and his employer on the terms and conditi ons of employment. They may be writt en or oral or partly writt en and partly oral. Contracts of employment, like all other contracts, consist of express or implied terms. The express terms are those that the parti es have actually agreed. The implied term are those terms which are not stated in the contract but are inserted by the courts to fi ll the gaps left by the express terms to which the parti es actually agreed. Terms may be implied on the basis, for example, that they are necessary and the parti es would have agreed to them had they thought of them at the ti me of contracti ng, (for example, the implied duty of fi delity or trust and confi dence). Contracts of em-ployment may be either permanent or for a fi xed term. A fi xed term contract has a stated start and end date of em-ployment. This is usually used for short term project type work. Permanent contracts have a stated commencement date, but no end date. It is presumed that the employee will work unti l the age of reti rement or unti l the contract is otherwise terminated.

Contracts “of” and “for” services Contracts of employment should not be confused with “contracts for services”/“independent contractor” agree-ments. A “contract of employment” or a “contract of ser-vice” means that the individual hired by the employer is an employee of that employer. Whereas, under a “con-tract for services”, the hired person is an “independent contractor”. The disti ncti on between an employee and an independent contractor is important because they att ract diff erent rights and legal consequences. For example, an employee (worker) through his trade union may report the existence of a trade dispute to the Minister under the Industrial Relati ons Act 1972 if he was dismissed contrary to the principles and practi ces of good industrial rela-ti ons. However, the rights of an independent contractor, if dismissed, are limited to sue for breach of contract in the High Court (Civil Division).

The following are some common diff erences between an employee and an independent contractor.EMPLOYEE Statutory deducti ons are made by the employer; Paid leave enti tlement - sick, vacati on etc.; Employer may be vi-cariously liable for the torts of their employees; Employer has the right to discipline; generally, there is supervision - there maybe excepti ons, for example, specialist jobs; Em-ployer may contribute to pension and health plans.

INDEPENDENT CONTRACTORNo deducti ons - responsible for his own taxes; No Paid leave enti tlement; Liable for his own torts; Employers have no right to discipline; Requires litt le or no supervi-sion.

Test to determine employment relati onshipThe fact that a person is called an employee does not mean that he is employed under a contract of employ-ment. Alternati vely, the fact that the person is labeled as an independent contractor or the fact that the contracti ng parti es labeled the relati onship in a parti cular way does not mean that the label will obtain. It is not conclusive. It is merely evidence from which the Court may infer the intenti on of the parti es and the existence of one of the two employment relati onships. Ferguson v John Dawson (Contractors) Limited (1976) 3 ALL ER 817. Hence, “…it must be the Court’s duty to see whether the label cor-rectly represents the true legal relati onship between the parti es”. Young & Wood Limited v West (1980) IRLR 201. In determining whether a person is an employee or an independent contractor, the Courts employ the Multi ple or Multi factor Test. Ready Mixed Concrete (South East) Limited v Minister of Pensions and Nati onal Insurance (1968) 2QB 497 per Mac Kenna J, a contract of service exist when:1. The servant (employee) agrees that, in considerati on of a wage or other remunerati on, he will provide his own work and skill in the performance of some service for his master.2. He agrees, expressly or implied, that in the perfor-mance of that service he will be subject to the other’s control in a suffi cient degree to make that other master (employer).3. The other provisions of the contract are consistent with it being a contract of service

conti nued on next page

EMPLOYMENT CONTRACTS



www.ecatt .org 2323

Economic Reality TestMarket Investi gati ons Limited v Minister of Social Security (1969) 2 QB 173. The questi on should be asked, whether the person was in business on his own account. If so, then there is a contract for services.

The following maybe asked:• Whether the individual provides his own equipment• Whether he hires his own helpers• The degree of fi nancial risk he takes• The degree of responsibility for investment and man-agement • Whether he has an opportunity of profi ti ng from sound management in the performance of his task.

Other factors that may be taken into considerati on:

• Statutory deducti ons• Employer contributi ons towards health plans • Paid vacati on and sick leave• Bound by company rules and procedures• Employer responsible for workers torti ous acts under the doctrine of vicarious liability.• Degree of supervision• Pension, gratuity benefi ts• Employer’s right to discipline• Power to delegate (Express & Echo Publicati ons Limited v Tanton (1999) IRLR 367) However, in Macfarlane v Glas-gow City Council (2001) IRLR 7, it was stated that a limited or occasional power of delegati on is not inconsistent with a contract of employment.

****

THE PROBATIONARY PERIODThe primary pur-pose of probati on is to allow an em-ployer to assess an employee’s suitabil-ity for permanent employment. Addi-ti onally, it gives the employee an oppor-tunity to determine whether the job is suited to him or her. An employee who is on probati on is, in eff ect, a permanent employee who is yet

to be confi rmed in their positi on. The Company’s expecta-ti on during the probati onary period should be communi-cated clearly and understood by the employee. Thus, it is advisable that the employee be informed, in writi ng, of the length of the probati onary period as well as the per-formance standards required during this period.

Assessment of the probati oner’s performance should be a conti nuous exercise. Probati oners should be in-formed of shortcomings in relati on to their perfor-mance. They should be given guidance and coach-ing on how to improve the specifi ed problem areas and given reasonable opportunity to improve. Probati onary periods should be reasonable. What is con-sidered reasonable will depend on the nature of the job as this will determine how long it will take to establish

whether the employee is performing sati sfactorily or not. The more complex the job - the longer the probati onary period may be. Generally, probati onary periods are three to six months.

At the end of the probati onary period the employee should be noti fi ed, in writi ng, of his or her confi rmati on in the positi on. Probati onary periods may be extended with-in reason where the employer is not convinced that the employee’s performance is up to the required standard of the organizati on. Any extension of the probati onary pe-riod should be in writi ng. The employee must be given adequate noti ce of any extension of the probati onary pe-riod. In cases of non confi rmati on, an employer ought not to wait unti l the end of the probati onary period to inform a probati oner that he or she cannot be confi rmed in the positi on. It is recommended that the employer give the probati oner adequate noti ce of non confi rmati on in the positi on. Contrary to popular belief, a probati oner cannot be dismissed without cause.

Where dismissal of a probati oner is contemplated, the general rules of procedural fairness must apply. For ex-ample, if the issue is poor performance, the probati oner “must be told beforehand of his performance shortcom-ings and given an opportunity to improve”. Summary dismissal is rarely justi fi ed if this is not done. Where the probati oner is dismissed for other reasons than perfor-mance, for example, misconduct, the normal procedure in relati on to discipline must be applied.

****


IR at a Glance


With each order you will receive the following:

For only $4000.00 (+VAT)

Available Versions: CD or Email

Customizable Policy Manual Template

Customizable Policy Manual Template

ORDER

NOW!



www.ecatt .org 2525

THE POLICY MANUAL Businesses should establish policies and procedures and commit them to print before hiring the fi rst employee. Businesses oft en overlook the creati on of policies and procedures but this simple task has the ability to save ti me and money in a variety of ways.

These Policies defi ned simply as rules as to how the com-pany and its representati ves should handle specifi c sce-narios, and procedures, meaning instructi ons as to how to accomplish certain tasks, are crucial to every business, regardless of size.

A manual is like your communicati on tool for your em-ployees. They need not come to you every ti me they have questi ons in mind because they have the manual to read. It also saves business owners from any excuses of employ-ees, since everything is stated in the manual. Thus there should be no point for argument. The main benefi t is that the company is able to operate with greater consistency, both in its internal and external workings. Company mo-rale generally increases because guidelines are available on how to accomplish a task. Set policies and procedures can also circumvent certain legal issues.

The policies and procedures manuals of a business should be in accordance with applicable laws. The books need to appear professional as an investor may request a copy of the policies and procedures of a company under review.

Procedures Manual This manual should clearly describe processes, such as how to enter an invoice into the system, processes with which the new employee will not yet be familiar. This may seem quite simplisti c to the writer who is familiar with the tasks at hand, but to the novice, a precise explanati on of the procedure may be invaluable.

Policy ManualThis manual should contain the company’s policies on employment, disclosure, competi ti on, customer service, purchasing and so forth. When writi ng a policy manual you should always keep in mind, if the owner could not be reached, what would an employee need to know to accomplish his assigned tasks?

The Employee HandbookThis will be the fi rst formal communicati on the company has with a new employee. As an abbreviated policies and

procedures manual, it defi nes standards of behavior and outlines what will happen when those standards are not upheld.

The handbook should contain the company’s employee policies and procedures for asking for leave and similar requests. Management may fi nd this to be an empower-ment tool should it be needed to discipline an employee.

Importance of a Policy Manual Template

A policy and procedure manual is an important document in any offi ce or business. Though many types of policy manuals are currently made, it is sti ll best to follow a poli-cy manual template when you are making the manual. So what is the signifi cance of a policy manual template?

Listed below are some of the reasons why you should de-velop one:1. It allows you to organize the contents of the actual manual, such that they follow a specifi c order.2. It makes business owners modify their policies and pro-cedures easily since they have a guide format.3. It makes easier constructi on of draft s for the manual.4. It ensures that the manual contains all the essenti al de-tails that are necessary for the benefi t of the employees and the business operati on

****


IR at a Glance


IR at a Glance


IR

R

ET

AIN

ER

SE

RV

IC

ES

Helping you avoid problems before they begin, is where our IR Retainer Service can be invaluable.

Ensure that your management decisions are within the current laws which govern Employer/Employer relationships and are in-line with IR/HR Best Practice.

Our services include:

1. General Advice, Guidance and Consultancy on Industrial Relations and Labour Laws issues; within the IRA, the Equal Opportunity Act and all Labour laws of Trinidad & Tobago.2. General Advice on Industrial Relation Best Practice.3. Telephone Advisory.4. Written advice and or guidance as a consequence of telephone advisory.5. Research and Preparation of relevant disciplinary, warning and/or dismissal letters6. Facilitation of meetings with the Company’s management team.

The Employers’ Consultatitve Association of Trinidad and Tobago



www.ecatt .org 2727

Job Abandonment is one way in which the employment contract can come to an end. It occurs where the employ-ee overstays an approved leave of absence, or absents himself from work without proper justi fi cati on for a pe-riod of ti me.

The Industrial Court, in several of its judgments, has stat-ed “Abandonment is a matt er of intenti on and this inten-ti on can only be gathered or inferred from the conduct of the person intending to abandon the job. The presence or absence of intent to remain away permanently can be inferred from circumstances surrounding the absence of the employee.”

The court has also highlighted certain factors that should be considered before determining that the worker intend-ed to abandon the job. Such factors include:-1. Length of the absence; 2. Whether the worker kept in contact with the employer during the absence; 3. Whether the worker refused or failed to return on be-ing directed to do so by the employer, and 4. Whether the employer warned the worker that failure to return by a fi xed date would result in dismissal.

Generally, most Companies have a policy relati ng to the issue of Job Abandonment. Such a policy typically states that if the worker is absent for three or more days, he will be considered to have abandoned his job. It should be noted that the mere absence of the worker from the workplace will not necessarily prove abandonment of the job.

Where the Company has not heard from or seen the worker for a period of ti me, there is a procedure that must be followed before the Company can truly state that the worker has abandoned his job. The procedure is as follows:-1. When an employee is absent from work, the employer should make reasonable eff orts to contact the employee to ascertain the reasons for his or her absence. This can be done by contacti ng the employee at the tele-phone numbers listed on his personnel fi le or at any other known telephone numbers that the Company is aware that the employee possesses.

2. If there is no legiti mate excuse for the absence or contact cannot be made with the employee, the employ-er must then write to the employee. This lett er should no-ti fy the employee of his absence, direct him to report for

work on a specifi c date, and also put him on noti ce that his failure to att end work on or before the date stated in the lett er, would result in the Company determining that he has abandoned the job. The lett er should then be sent via registered mail at the last known address of the em-ployee.

3. Should the employee fail to report for duti es by the date sti pulated in the lett er, the employer must send a fi nal lett er informing the employee of his failure to re-port for duti es on the requested date and stati ng that the Company has determined that the employee has aban-doned the job. This lett er should also be sent via regis-tered mail.

It should be noted that in instances of perceived Job Abandonment, that the onus is on the employer to com-municate with the absent employee.

******

JOB ABANDONMENT


IR at a Glance


IR at a Glance




www.ecatt .org 2929

In Industrial Relati ons the premise upon which discipline is based is: “For group acti on to be performed effi ciently there must be coordinati on and control on the part of the employer.” Because of this the employer has been given the right to lay down rules and regulati ons so that he can control and coordinate the fi ve M’s : • Money• Men• Machine• Material• Moti vati on

Thus workers whenever they enter the workplace or been employed they are subject to rules and regulati ons laid down by way of policies, collecti ve bar-gaining agreements and laws of the lands. They are sup-posed to carry out said rules and regulati ons because the said rules and regulati ons are part and parcel of their con-tract of employment. Anyti me one of these rules or regu-lati ons has been violated they would have breached their contract of employment and therefore they are subject to disciplinary acti on. The employer has the right to punish the worker for what he has done.

Nevertheless in executi ng such punishment the employer must take into considerati on Secti on 10 (3b) of the Indus-trial Relati ons Act which says: “One must not be harsh nor oppressive but must be in keeping with the principles and practi ces of good Industrial Relati ons.” Now, according to Justi ce Reece in Civil Appeal No. 30 of 1972 between Ca-ribbean Printers Ltd. and the Union of Commercial and Industrial Workers the principles and practi ces of good In-dustrial Relati ons is: “All those informal uncodifi ed under-standings which are ancient habits and dealings adopted by trade unions and acquiesced in or agreed to by em-ployers.” Thus when a worker absents himself from work or comes late to work whether it is one minute, two min-utes three minutes or more he would have breached his contract of employment and is subject to be disciplined by the employer.

Bearing in mind that the employer in punishing the work-er must not be harsh nor oppressive then the employer should use the progressive steps of discipline which means for the fi rst off ence the worker is warned orally, second off ence the worker is warned in writi ng (Employer is getti ng serious with his indiscipline), third off ence the employer must charge the worker, give him the oppor-tunity to be heard and if found guilty suspend him for a

period of ti me without pay, the fourth off ence, the em-ployer will charge the worker again, maybe for miscon-duct or persisti ng absenteeism, give him a hearing i.e. an opportunity to defend himself and if found guilty then the worker could be terminated. Such terminati on would not be deemed harsh or oppressive because the worker has been persistently breaking the rules and regulati ons with-out showing any signs of change towards improvement.

Now, in order to justi fy their right of the employer to pun-ish the worker there are many judgments coming out from the Court that supports the employer in doing so. In trade dispute (T.D) No. 159 of 1974 between Cannings Limited and NUGFW the Court stated that if a worker takes ten percent more of the total working days by absenti ng him-self with or without a medical certi fi cate he or she runs the risk of committi ng persistent absenteeism and that is dismissable. The judgment further states that if a worker absents himself 2 days per month for nine months con-secuti vely he can also be terminated. However the em-ployer is obligated before he does anything to put the worker on noti ce about what he is doing. Given the use of IT or Informati on Technology, employers can easily do this by the use of his computer provided there are records.

In T.D 142 of 1977 between Excellent Stores and Commu-nicati on Workers Union (CWU) the court also stated that a worker has an obligati on to inform his employer when he is sick or due to illness immediately thereaft er, or as soon as possible or as early as possible according to the employer’s practi ce in the workplace.

Conti nued on next page

ABSENTEEISM


IR at a Glance


IR at a Glance

The Employers’ Consultati ve Associati on of Trinidad and Tobagoociati on of Trinidad and TobagoThe Employers’ Consultati gThe EThe

Back by popular demand

Industrial Relations at a Glance - Your IR GUIDELINE

POSTER

For further information, please contact:The Research & Publications Unit at 625 - 4723 ext 225

Email: [email protected]

The Employers’ Consultative Association of Trinidad and Tobago



www.ecatt .org 3131

Further in Essenti al Services Division (E.S.D) No. 16 of 1982 between T&TEC and OWTU an employer can reject a medical certi fi cate from a worker which does not sati sfy him because the principles are: “A medical certi fi cate re-fers to a document from a medical practi ti oner certi fying that a person is suff ering from physical, mental, nervous or other illness, and recommending or purporti ng to rec-ommend that some period of ti me should be spent away from work on account of such illness” or “A medical certi f-icate should be carefully writt en to sati sfy employers who require justi fi cati on to pay workers who are absent as a result of illness” or “A medical certi fi cate should contain the date of issue and a statement verifying that medical att enti on was received from a certi fi ed medical practi ti o-ner on said day” or “A medical certi fi cate should include the facts of the examinati on and the diagnosis, if it is such that these fi ndings can be confi rmed by another examina-ti on or otherwise.

If not verifi able, the certi fi cate should refl ect that refer-ence was made to the applicant’s medical history and that the diagnosis was in keeping with such.”

The problem comes about however that employers will accept a medical certi fi cate which states: “The worker is suff ering from a medical problem.” Most employers will

conti nue with this type of medical certi fi cate without challenging the medical practi ti oner to explain to them what is a medical problem.

From the above facts the employer has several answers from which he can develop a procedure for dealing with workers who absent themselves from work. Once the employee has breached his contract of employment by absenti ng himself the surest way to discipline him is to use the progressive steps of discipline to strengthen the hands of employers in disciplining the worker, the em-ployer should develop a policy where there is a schedule of laid down off ences and the various punishment for each such off ence, for example when a worker is late for the fi rst ti me he is warned orally, for the second late com-ing he is warned in writi ng, for the third late coming he is charged with persistent absenteeism, found guilty and suspended for days without pay.

When he comes late for the fourth ti me he should be charged with persistent absenteeism, found guilty and terminated but if the infracti on is stealing on the job for the fi rst off ence he should be terminated. No employer would want an employee who is caught stealing to allow him to steal again.

****

A grievance is a complaint which has been formally communicated (either orally or in writi ng) to Manage-ment regarding the real or perceived violati on of the contract of employment, collecti ve agreement and/or any established principle or practi ce of good Industrial

Relati ons between the worker and the Company.

A grievance procedure is the systemati c method for handling grievances designed by the employer, and in a unionized environment, by both management and the recognized majority union. According to secti on 43(1) of the Industrial Relati ons Act 1972 (IRA), in unionized orga-nizati ons “a collecti ve agreement shall contain eff ecti ve provisions concerning appropriate proceedings for avoid-ing and sett ling disputes…” Further, at secti on 43(2), “…every collecti ve agreement shall contain a provision for the sett lement of all diff erences between the parti es thereto arising out of the interpretati on, applicati on, ad-

ministrati on or alleged violati on thereof.” The Minister may object to the registrati on of a collecti ve agreement if there is “non-compliance with secti on 43(1) and (2)” Sec-ti on 45 (4) of the IRA. Further, if the parti es fail to follow the grievance procedure as stated in the collecti ve agree-ment, “… the Minister may ... refer the dispute back to the parti es for such procedures to be followed.” Secti on 53(1)(b).

While there is no requirement under the IRA for a non-unionized organizati on to have a grievance procedure, it is a good practi ce for companies to insti tute such a pro-cedure as it will be benefi cial in resolving grievances in-ternally. Additi onally, the grievance procedure should al-low the aggrieved party the opti on of appeal, which is a fundamental element of natural justi ce and by extension proper industrial relati ons practi ce.

The grievance procedure should not be avoided, but rath-er embraced as it epitomizes fair process and allows for grievances to be properly exhausted.

****

GRIEVANCE PROCEDURE


IR at a Glance


FIND OUT MORE ABOUT THE GLOBAL BODY FOR

PROFESSIONAL ACCOUNTANTS

ACCOUNTANTS

WHO THINK BIG(AND SMALL)



www.ecatt .org 3333

THE MATERNITY PROTECTION ACT The Maternity Protecti on Act, 1998 Act 4 of 1998

PurposeAn Act to provide a minimum level of Ma-ternity Leave benefi ts and protecti onWhen assented: March 11, 1998

Enti tlement of pregnant female employes Subject to the Act, an employee is enti tled to:1. Leave of absence (13 weeks) for the pur-pose of Maternity Leave2. Employee must inform her employer, in writi ng no later than eight (8) weeks before the expected date of her confi nement3. She must submit to her employer a medi-cal certi fi cate from a qualifi ed person stat-ing the probable date of confi nement; and4. She must inform her employer in writi ng of her intenti on to return to work at the ex-piring of the Maternity Leave

Date of Maternity LeaveSix (6) weeks prior to the probable date of confi nement, a pregnant employee can proceed on leave of thirteen (13) weeks du-rati on

When no Maternity Leave is payableWhen an employer has failed to pay con-tributi ons to the Nati onal Insurance Board, and no Maternity Benefi ts are payable by the Nati onal Insurance Board, the employer shall pay to the employee the total sum she would have been enti tled to under subsecti on (2).

Claim by Employer1.Notwithstanding the Income Tax Act (Chapter 75.01) an employer is enti tled to claims as a tax deducti on for the full amount paid by the employer to an employee for Ma-ternity Leave; or

2.Where an employee is paid full pay or Maternity Leave even though benefi ts are not payable under the Nati onal Insurance Act, the employer will be enti tled to claim that amount as a tax deducti on.

Limited PaymentAn employer’s right to pay for Maternity Leave under sec-ti on 7 (1) (b) is limited to one payment during each pe-riod of 24 months commencing at the beginning of such leave.

****


IR at a Glance


IR at a Glance

The Employers’ Consultati ve Associati on of Trinidad and Tobagoociati on of Trinidad and TobagoThe Employers’ Consultati gThe EThe Where there is energy… there is bpTT www.bptt.com

there is EnergyWhere there’s PROGRESS…

Our Nation’s Progress Energizes UsTrinidad and Tobago is a major player in the global LNG market and remains the largest supplier of LNG to the United States.

BPTT is proud to be the country's leading energy producer contributing up to 25% of the nation's revenue and more than half of the country's hydrocarbon production. BPTT is world-scale and accounts for 11% of BP's worldwide production of oil and gas.

Where there's a commitment to progress, there's energy.



www.ecatt .org 3535

RETRENCHMENTRetrenchment is one possible reason for the terminati on of employment and is governed by the Retrenchment and Severance Benefi ts Act of 1985, which will be hereaft er referred to as ‘the Act’. Retrenchment may result from the restruc-turing or reducti on in the operati ons of a company, leading to surplus labour or a labour force in excess of the organizati on’s requirements. Firstly, Employers should take note that Retrenchment can only apply where workers are genuinely redundant, that is, when there is surplus labour in an organizati on. Retrenchment would not apply if the business has ceased to exist. In the case of retrenchment, separati on of the worker from the company is compulsory and at the initi ati ve of the employer. This is in contrast to Voluntary Separati on or VSEP where the separati on is voluntary, that is, by the choice of the worker.

Formal noti ce of retrenchment in writi ng is mandatory. The Noti ce should comply with Secti on (4) of the Act and in-clude informati on on; the names and classifi cati ons of the involved workers, the length of service and current wage rates, the reasons for redundancy, the proposed date of terminati on and the criteria used in the selecti on of workers to be retrenched. During the Noti ce period Employers may sti ll terminate a worker for valid reasons, for example, gross misconduct. Severance benefi ts should be paid in accordance with Secti on (18) of the Act being the minimum stan-dard. Before making the decision to retrench workers, employers should explore all possible opti ons of off ering suitable alternati ve employment for the af-fected workers. An employer may also seek to absorb a retrenched worker in other employment. Please note that a worker who unreasonably refuses an off er of comparable and suitable employ-ment is not enti tled to severance benefi ts.

Employers must also understand that they cannot arbitrarily select workers for retrenchment. When selecti ng workers for retrench-ment, the Last In, First Out prin-ciple applies. This is subject to the qualifi cati on of “all other things being equal” as was recognized in the case of Amalgamated Workers’ Union v Pan American Standard Brands Inc, Trade Dispute No.106 of 1991. Employers should be cauti oned that if the retrenchment turns out to be a sham or not to be genuine, they may be liable for dismissing the worker in circumstances that are harsh and oppressive and not in accordance with the principles of good industrial relati ons. Employers should therefore handle retrenchment issues responsibly. We urge employers not to embark on a retrenchment programme without justi fi cati on as retrenchment is an extremely sensiti ve issue that can have severe economic, psychological, and emoti onal eff ects on workers and their families. The employer should study his organizati on carefully before deciding that it is necessary to engage in a retrenchment exercise.

****


IR at a Glance


Call us toll free ...we’re here for you



www.ecatt .org 3737

OCCUPATIONAL SAFETY AND HEALTH

Employers need not be afraid or panic with the new law, it is simply to give the opportunity to Employers to do what they should have already been doing but to do it in a formal context as opposed to doing it in an adhoc fashion. The law provides rights and duti es for Employers and employees. The law also provides for the administrati on and monitor-ing of occupati onal safety and health in the workplace through the factory inspectorate of the Ministry of La-bour. One area that many Employ-ers are quite concerned about is the right of employees to refuse work when safety or health is in danger. This right is enshrined in the law, however there is a basic process and procedure for this to be undertaken, it is not to be done in an informal fashion. Once the employee is familiar with this process, there is no need for fear since it is a partnership between the Employer, the employee and the Union representati ve to ensure what is supposed to be done is done, and that a worker who rightf ully refuses to work is not penalised by his Employer for so doing. Another considerati on that the Employer have expressed concern about is penalti es. The Law provides for penalti es in the context of monetary fi nes and jail sentences. However this law is not intended to put anyone in jail or to be puni-ti ve. However, these provisions are in existence for punishment when/where the law is broken. The approach is one of cooperati on and collaborati on rather than one of being puniti ve, so that all stakeholders need to come together to ensure that the law can be obeyed within a reasonable ti me frame. Another area that the Act deals with is the area

in which doctors are expected to report occupati onal health conditi ons to the factory inspectorate. If they fail to do so, then, they too can be subjected to a fi ne of up to $5,000.00 or up to three (3) months imprisonment. Again the intenti on is not to send doctors to jail but to ensure that they obey the law by reporti ng to the appropriate authoriti es on cases of occupati onal diseases that are prescribed in the act. It is useful to recognise that monies spent on occupati onal safety and health in the workplace should be considered as an in-vestment in your company and in your workers. The provision of personal pro-tecti ve equipment and clothing, the provision of safety boots, safety hats, also training and accident preventi on are all considered to be investments in your most valuable capital, your human capital. Employers have expressed con-cerns about the number of groups and organisati ons that are running courses in occupati onal safety health and this has caused some confusion both in the minds of Employers and in the general public.

The Employers Consultati ve Associati on can provide in-house experti se to train employees in the area of compliance with the OSHA Act.

****


IR at a Glance


www.employerssolutiontt.com

National Training

We design and present public seminars for professionals and executives inbusiness and industry geared towards tackling relevant issues confronting

employers and we also deal with national and global developments thatimpact upon organisational well being and survival. We focus heavily on

creativity in training design and delivery and on the cross sharing of experience, information and knowledge in an open and comfortable environment.

The Employers Academy of Trinindad and Tobago

This is a flagship institution with courses in Industrial Relations, Labour Lawsand Advanced Labour Laws for employers who desire a challenging environment

to gain a comprehensive knowledge in managing the employment relationship.

The following courses are available at the Academy:

- Certificate in Industrial Relations Management in T&T- Certificate in Labour Laws in Trinindad & Tobago- Diploma in Labour Laws in Trinindad & Tobago

In - House Training

Experience training conducted where you want, when you want and how you want.

Your organisation is distinctive and we can tailor our workshops to solveyour needs. In-House is particularly desirable for organisations that desire

simultaneous exposure to trianing opportunities in a familiar environment.It is also an ideal way of dealing with logistics and time constraints.



www.ecatt .org 3939



Voice1.2011.IR at a glance

Documents

indd sec1

eca voice magazine

executi ve directors

executi ve secretary

organisati onal

liati ons

industrial relati ons

new board of directors