THE UNIVERSITY OF THE WEST INDIES

ST. AUGUSTINE, TRINIDAD AND TOBAGO

GENERAL INFORMATION SUMMARY

Course title: Industrial Relations

Course code MGMT 3018

Course proposer: Department of Management Studies

Course type (Tick as Ö Core

appropriate) Ö Elective
Co-curricular
Level
Years 2 & 3
Semester in which 2 & 3
course will be offered:
Department of Management Studies
Course Provider

Credits 3

Pre-requisites MGMT 2008 or GOVT 2071

Co-requisites MGMT 3017

Teaching Methods Interactive Lectures

(list only): Group Projects

Estimated Hours/week:
Hours Lectures: 3 hours of lecture per week for 13 weeks on Wednesdays at
5:00 pm-8:00 pm)
Independent Study (estimated at 5 hours per week)

Venue Virtual

Total no. of 3 (inclusive of Project; Class Participation Mark; and Final Examination
assessments
Instructor information Lecturer: Prof. Rajendra Ramlogan
Address: Department of Management Studies
Phone: 662 – 2002. 704-0811
Email: [email protected]
Office Hours: Virtual. Please WhatsApp
 1. Course description

This course covers areas like the origins and development of trade unions and employer associations,
systems of industrial relations in the Commonwealth Caribbean, collective bargaining, contract
administration and disputes settlement procedures, nature and causes of industrial conflict, labour and the
law, public policy and industrial relations and other topical issues in industrial relations.

§ The course is organized over a 13 week period with 3-hour contact per week.
§ One hour would be set aside in each lecture session for discussions on tutorial questions.
§ Students would be informed of the exact marking scheme for their group project, class participation
and final examination. Students would also be instructed as to the preferred format for answering
questions.
§ Students are encouraged to submit answers to past paper questions by electronic mail and special
consultations would be available to students having difficulties in understanding the course material
or in answering questions.

2. Rationale

This course is geared to provide students with the opportunity to explore a basic theoretical approach
to industrial relations with the dominant objective of the course being to develop a practical
understanding of the dynamics of industrial relations in the Caribbean.

3. Course Aims

§ Enable students to understand the nature of industrial relations in the Caribbean landscape.

§ Expose students to theories, institutions and practices of industrial relations in the Caribbean
context.

4. UWI Graduate Outcomes

This course addresses the qualities of the distinctive UWI Graduate in the following way. It seeks to
develop:

1. A critical and creative thinker;

2. An effective communicator with good interpersonal skills;
3. Innovative and entrepreneurial skills
4. Globally aware and well-grounded in his/her regional identity;
5. Socially, culturally and environmentally responsible and guided by strong ethical values

5. Course Learning Outcomes

This course will allow the student to have a working knowledge about the following:
Ø Theory of Industrial Relations
Ø Role of Key Players
Ø The Industrial Court
Ø The Collective Bargaining Process
Ø Good Industrial Relations Practices
Ø Resolving Disputes
Ø Disciplinary Action
 6. Course Assessments Description

There are three components to student evaluation:

(a) Three In-Class Exams – 8% respectively (24%) of the final grade. These exams are given without
notice.
(b) Group Project– 16% of the final grade. Written presentation (5%) and individual presentation
(11%).
(c) Final Exam - worth 60% of the final grade

Class participation
Students are expected to contribute regularly to classroom discussions and to participate in in-class
exercises. Effective, thoughtful and constructive participation is grounded in regular attendance,
preparation by completion of background readings, self-motivation and respect for fellow participants.
Class participation is an opportunity to share insights and information with each other, and to further
mutual learning and thinking.

7. Course Assessment Type and Course Learning Outcome Matrix

Assessment Type Learning Outcomes Weighting Assessment Assessment

Refer to objectives listed in % Description Length
section 4
1 2 3 4 5
Group Project Ö Ö Ö Ö Ö Cognitive
application
Class Participation Ö Ö Ö Ö Ö Cognitive
application
Final Examination (Case Ö Ö Ö Ö Ö Cognitive
Studies) application

8. University Grading Scheme (Undergraduate Level)

A-to A+ (A- 75-79; A 80-89; A+ -90-100)

B-to B+ (B- 60-64; B 65-69; B+ 70-74)
C-to C+ (C - 50-54; C+ 55-59)
F1: 40 to 49
F2: 30 to 39
F3: 0-29
 9. Teaching Strategies

Method Description
Lecture There will be one 3-hour lecture each week on the topics
identified in the Course Calendar below. Lectures will be
interactive and will require students to engage in discussions
and in-class activities
Project/Case analysis Critically analyzing a case or an industrial relations issue with a
view towards making recommendations.
Interactive learning Students are expected to contribute regularly to classroom
discussions and to participate in in-class exercises. Effective,
thoughtful and constructive participation is grounded in regular
attendance, preparation by completion of background readings,
self-motivation and respect for fellow participants. Class
participation is an opportunity to share insights and information
with each other, and to further mutual learning and thinking.
Discussions on current national Class discussion will be based on prior materials provided
and international issues (newspapers, news etc.) in the form of past and present case
studies.

10. Readings/Learning Resources

Readings and additional class material will be provided by the Course Lecturer and supported by
independent research

11. Course Calendar

Week Topic Required Readings/Learning

Resources

1. Theories of Industrial Relations

2. Elements of Industrial Relations Systems
3. Key Players
Ø Trade Unions
Ø Trade Union Associations
Ø Employer Associations
Ø Government
Ø Regional and International Labour Institutions
Ø Industrial Court
4. The Legislative Context of Industrial Relations in Trinidad
and Tobago
5.& 6. Substantive Principles and Practices of Good Industrial
Relations
Ø Performance Management
Ø Core/non-core/contract labour
Ø Absenteeism
Ø Grooming
Ø Promotions
Ø Misconduct on and off the job
Ø Religious beliefs
Ø Harassment
Ø Fraud and Dishonesty
Ø Substance abuse
Ø Health and safety
Ø Conflict of interest
Ø Criminal offences
Ø Emerging Issues
• Use of e-mails and internet
• Privacy
• AIDs
• Gender Orientation

Good Industrial Relations Practices

7 Disciplinary Actions
Ø Warnings

Ø Suspension

Ø Non-Summary Dismissal

Ø Summary Dismissal

Double Jeopardy – Industrial and Criminal Procedures

8 Procedural Practices and Principles of Good Industrial

Relations Practices

9. & 10. Collective bargaining procedures and practices

11. Industrial action (strikes and lockouts, sick outs)

12. Course Review/Projects
(no introduction of new subject matter)
 12. University Policies and Expectations
a. Academic Integrity

Please consult Section V (especially sub section B which deals with cheating) of the University of the West
Indies, Examination Regulations for First Degrees, Diplomas and Certificates for details of this policy.

b. Accommodations for students with disabilities

Please refer to the University of the West Indies St Augustine Campus, Student Disability policy
https://sta.uwi.edu/resources/policies/Student_Disability.pdf

14. CODE OF CONDUCT DURING CLASSES

The following guidelines facilitate the creation and maintenance of an effective learning environment.
All students are expected to adhere to the following guidelines during class hours:

Ø All cellular phones and beepers are to be switched-off before and kept off during class hours except
where the prior permission of the lecturer has been obtained.
Ø Students are requested to read all assigned material before the start of each class.
Ø Class discussions and participation are particularly welcomed.
Ø Punctuality in the attendance of classes is extremely important.
Ø The last hour of every class is designated as a tutorial hour.
LECTURE 1 (WEEK 1)
INDUSTRIAL RELATIONS MANAGEMENT IN TRINIDAD AND
TOBAGO

The main focus of industrial relations is on people in the workplace, whether such a workplace is a
large multinational organization, or a small family firm; whether those employed are on a contract of
service (employer has full control over employee) or on a contract for service (employer has little/no
control over contractor); and whether or not it is a unionized environment. It necessarily follows that the
larger and more complex the organization, the more elaborate will the issues of industrial relations be.

Industrial relations deal not only with the relationship between employers and employees but between
employees and their colleagues, employers and trade unions, and employees and their trade unions.

WHAT IS INDUSTRIAL RELATIONS?

Industrial relations is multidisciplinary in nature and as such there are many ways of defining the term.

General Definition of Industrial Relations

- The management of all the relationships that exist between the worker and
employer in the workplace, whether they are economic, political, social or legal.

Economic Definition of Industrial Relations

- Industrial Relations is an art of getting workers together for the purpose of
production.
- J.H Richardson

Legal Definition of Industrial Relations

- Industrial Relations is a system of rules and regulations. These rules are of two
kinds: Substantive Rules (contract – hours of work; rate of pay [hourly, weekly,
monthly]; fringe benefits) and Procedural Rules (disciplinary measures; grievance handling).
- Allan Flanders

Sociological Definition of Industrial Relations

- The study of people in a situation, organization or system interacting in the doing
of work in relation to some contract whether written or unwritten is Industrial
Relations.
- C.J Margerison

Political Definition of Industrial Relations

- The evolution of Industrial Relations has been the historical shifting of power and
functional relationships of three principal bodies in industrial relationships, that
is, Unions, Management and Government.
- H.D. Woods & Sylvia Ostry
Socialist Economic Definition of Industrial Relations
- Industrial Relations is the study of processes of control over work relations
- R. Hyman

Demand and Supply Definition of Industrial Relations

- Industrial Relations is a study of rules, institutions and processes both formal
and informal, structured and unstructured… of job regulations.
- G.S. Bain and H.A. Clegg

Multidisciplinary Approach
- Industrial Relations is a sub-system of the wider society. It consists of actors,
rules and regulations, a hierarchy of managers, workers, specialized government
agencies and an environment that comprises technological factors, market and budgeting
constraints.
- J.E.T. Dunlap

- Industrial Relations is a science which deals with human behaviour as it acts or reacts to the
effects of internal and external factors, pertaining to a particular plant, firm or industry; and
which interferes positively or negatively with the ends or goals of the participants within those
respective places.
- Gabriel Yeates, ECATT

WHY IS INDUSTRIAL RELATIONS MANAGEMENT NECESSARY?

To control conflict.

Conflict arises at the workplace in three main forms:

1 . Structural
2 . Distributive
3 . Interpersonal Relations

Structural conflict arises as the result of the manager’s inability to effectively run the company where
his/her main role is in controlling, planning and forecasting the company’s activities.

Distributive conflict arises as a result of disagreement over the distribution of revenues among
shareholders, managers and workers.

Interpersonal conflict arises when managers are not properly equipped to deal with personnel.

Managing people requires skill and leadership qualities. The main role of management vis-à-vis industrial
relations is the development and implementation of effective industrial relations policies at the
workplace which is capable of commanding the confidence and respect of employees.

Research on interpersonal relations has shown that even managing very few people can be tricky, as
everyone is different and the possibility of personality clashes is very real.
 2 n
IR =n ( + n - 1); where n = 5
2
5
5 2 +5-1
2

2x2x2x2x2
5( + 4)
2

5(16 + 4) = 100

As the above formula shows, managing just 5 people is the equivalent of managing 100 different
personalities.

THEORETICAL FRAMEWORKS FOR INDUSTRIAL RELATIONS

Robert Morris has identified three main theoretical models to analyse and typify industrial
relations: conflict, unitary and systems theory.

1 . Conflict theory is based on a number of assumptions.

a . there has been and always will be a divide between the owners and controllers of capital and
those who sell their labour;
b . collective action is best to counter the power of capital
c. in all workplaces there are a variety of interests, some of which may share common
positions, but may still have divergent objectives
d . there is nothing inherently wrong with the use of struggle to create balance and a return to
equilibrium

2 . Unitary theory disputes that there is a meaningful role for conflict in the workplace.
Unitarists posit that management should set the rules and workers should cooperate in
complying with the rules. Conflict is seen as disruptive. Managers and workers share a
common interest and there is no need for ‘third party’ interventions.

3 . The Systems theory examines the industrial relations systems as an organism which has
throughputs, inputs, processes and outputs and which should be constantly evaluated. Such a
system changes over time and is affected by changes in actors, ideologies, technology and
the environment is which it operates.
LECTURE 2 (WEEK 2 & 3)
ELEMENTS OF A SOUND INDUSTRIAL RELATIONS SYSTEM

A. IN T R O D U C T IO N
Labour relations should be seen as an essential part of management systems and techniques, and not
as a discipline or activity apart from management. The role of various systems and mechanisms at
different levels (national/industry/enterprise) as well as their contribution to promoting sound industrial
relations will be examined here. It is intended to point out available options which can help to transform
a conflictual system into a more cooperative one.

B. FACTORS INFLUENCING CHANGE

MANAGEMENT PRACTICES
The scientific management school (best represented by F. Taylor) viewed the worker as a mere cog in the
organizational structure. Since, according to Taylor, the worker does not possess creative ability let alone
intelligence and wisdom, the elements of a human- oriented management system which promotes
sound industrial relations such as communication, consultation and participation, found no place in
the theory. The hallmarks of organizations based on this model are centralized and clear lines of
authority, high degree of specialization, distinct division of labour, numerous rules pertaining to
authority and responsibility, and close supervision. This concept of management can be seen as an
ideal breeding ground for an industrial relations system based on conflict rather than on cooperation.

The opposite theory, appropriately styled the human relations school, had as one of its earliest and greatest
exponents, Douglas McGregor. He gave an impetus to the development of a management theory which
focused on the human being as part of an enterprise which, in turn, was viewed as a biological system,
rather than as a machine. Human relations, trust, delegation of authority, etc. were some of the features
of this theory. Two basic realities of an organization in McGregor's model is the dependence of every
manager on people under him and the potential of people to be developed to match organizational goals.
Management's main task is to organize business in such a way as to match people's goals with
organizational ones.

Most large enterprises continue to be dominated by hierarchies. This is reflected in the classic "strategy,
structure, systems" (the three S’s) of modern corporations. In this concept of an enterprise top-level
managers see themselves as the designers of strategy, the architects of structure, and the managers of
systems. The impact of the three S's was to create a management system which minimized the
idiosyncrasies of human behaviour, emphasized discipline, focus and control, and led to the view that
people were "replaceable parts".

The basic flaw - particularly in the context of today's globalized environment - of this concept is that it
stifled the scarcest resource available to an enterprise: the knowledge, creativity and skills of people.
Successful enterprises have now moved away from this corporate design, and their philosophy, which
has transformed corporations enabling them to compete in the new competitive environment, consists of
the following:
 "First, they place less emphasis on following a clear strategic plan than on
building a rich, engaging corporate purpose. Next, they focus less on
formal structural design and more on effective management processes.
Finally, they are less concerned with controlling employees' behaviour
than with developing their capabilities and broadening their perspectives.
In sum, they have moved beyond the old doctrine of strategy, structure, and
systems to a softer, more organic model built on the development of
purpose, process, and people."

Those enterprises which have effected a successful transformation to a more 'people focused'
organization recognize that the information necessary to formulate strategy is with their frontline people,
who know what is actually going on, whether it be in the marketplace or on the shop floor. The chief
executive officer, for instance, can no longer be the chief architect of strategy without the involvement of
those much lower down in the hierarchy.

How do these developments relate to enterprise level labour relations? In essence, they heighten the
importance of the basic concepts of information sharing, consultation and two-way communication. The
effectiveness of the procedures and systems which are established for better information flow,
understanding and, where possible, consensus building, is critical today to the successful management of
enterprises and for achieving competitiveness. As such, the basic ingredients of sound enterprise level
labour relations are inseparable from some of the essentials for managing an enterprise in today's
globalized environment. These developments have had an impact on ways of motivating workers, and
on the hierarchy of organizations. They are reducing layers of management thus facilitating improved
communication. Management today is more an activity rather than a badge of status or class within an
organization, and this change provides it with a wider professional base.

The present trend in labour relations and human resource management is to place greater emphasis on
employee involvement, harmonious employer - employee relations and mechanisms, and on practices
which promote them. One of the important consequences of globalization and intense competition has
been the pressure on firms to be flexible. Enterprises have sought to achieve this in two ways. First,
through technology and a much wider worker skills base than before in order to enhance capacity
to adapt to market changes. Second, by introducing a range of employee involvement schemes with
a view to increasing labour-management cooperation at the shop floor level, necessary to achieve
product and process innovation. Theoretically harmony

"depends upon trust between labour and management. It implies that

workers are willing to forego efforts to establish and enforce individually
or through collective action substantive work rules that fix the allocation of
work, transfer among jobs, and workloads. Organizational flexibility
also implies that workers are willing to disclose their proprietary
knowledge in order to increase labour productivity and the firm's
capacity for innovation".
In both strategies involving the use of technology and promotion of innovation, employees are a critical
factor. The requirement of organizational flexibility and its industrial relations and human resource
implications have had a major impact on the way organizations are structured (less hierarchical), how
authority within the firm is exercised (less unilateral), and on how decisions are arrived at and work
organized (through information sharing and consultation, transfer of more responsibility to
employees and cooperative methods such as team work).

Traditional assumptions that efficiency is achieved through managerial control, technology and
allocation of resources have given way to the view that efficiency is the result of greater involvement of
employees in their jobs, teams and the enterprise. Organizations which have made this shift tend to
reflect the following characteristics: few hierarchical levels; wide spans of control; continuous staff
development; self- managing work teams; job rotation; commitment to quality; information sharing;
pay systems which cater to performance rewards and not only payment for the job; generation of
high performance expectations; a common corporate vision; and participative leadership styles.

INDUSTRIAL RELATIONS THEORIES AND ATTITUDES

At its inception, the labour market was dominated by the classical economics view which espoused free and
unregulated labour markets. This laissez-faire capitalism led to social injustices and inequities since labour
did not have the power to bargain with employers on terms which even approached a degree of equality in
bargaining strength. Industrial relations, therefore, initially came to espouse a degree of labour market
regulation to correct this unequal bargaining power. Consequently industrial relations developed in the
context of the theory that problems in labour relations emanate largely from market imperfections which
operate against the interests of labour and cause imbalances in the power relationships of employers and
employees. These causes for labour problems - external and internal to the enterprise - needed to be
addressed through a range of initiatives, both by the State through protective labour laws, conciliation
and dispute settlement machinery, by voluntary action on the part of employees to protect themselves
and further their interests through trade unionism (but backed by State interventions to guarantee this
right in the form of freedom of association), and by redressing the balance of power (through collective
bargaining).

Collective bargaining in particular transferred one of the most conflictual aspects of the employment
relationship - wages - out of the workplace, and made it the responsibility of the respective representatives
of employers and employees.

However, regulation of the external labour market did not necessarily address all the causes of labour
problems. A more pluralistic view recognized that labour problems or issues do not relate only to
conflict between employers and employees. They include many other forms of problems such as low
productivity, absenteeism, high labour turnover, lack of job security, unsatisfactory or unsafe
working conditions, non- recognition of performance in standardized wage systems, and lack of
motivation. Labour problems arise not so much from factors external to the enterprise, as from
unsatisfactory management of human resources within the enterprise. Corrective action should include the
installation of human resource management policies and practices embodied in concepts such as
recruitment and selection, leadership and motivation, employee development and retention, etc. The
objective is to ensure a convergence of organizational and individual goals, and to balance individual and
organizational needs. The quality of an industrial relations system has to be judged by how it works in
practice
- and that means at the workplace level. It is in this gap that human resource management
system.

Traditionally economics and law were two main influences on industrial relations, which led to a
concentration on macro level industrial relations, and therefore on unions, government and collective
bargaining. Organizational behaviour has been influenced by psychology which centres on the individual,
and by social psychology which focuses on relationships between people and on group behaviour.

Employers as well as some governments are viewing labour relations from a more strategic
perspective i.e. how labour relations can contribute to and promote workplace cooperation, flexibility,
productivity and competitiveness. It is increasingly appreciated that how people are managed impact on an
enterprise's productivity and quality of goods and services, labour costs, quality of the workforce and
its motivation, and on the prevention of disputes as well as on aligning employee aspirations with
enterprise objectives.

INTERNATIONAL FACTORS

The internationalization of business, intense competition and rapid changes in technology, products and
markets have increased the need for economies and enterprises to remain or become competitive. These
trends have in turn necessitated a greater reliance than before on workers' skills, productivity and
cooperation in achieving competitiveness.

Technology has resulted in less management by command and supervision, in more emphasis on
cooperation, information-sharing and communication, and in a more participative approach to
managing people.

Many countries have witnessed the emergence of workforces with higher levels of education and
skills which need to be managed in a manner different from the way in which employees, especially blue
collar employees, have hitherto been managed. This factor will assume more critical proportions in the
future as a result of the increasing importance of the service sector and the growth of knowledge-
intensive industries. The skills of an employee are, therefore, an issue on which the interests of
employers and employees converge, and the "development" of the employee is now of mutual advantage to
both employers and employees. Consequently, there is a greater need than before for a cooperative and
participative system of industrial relations.

C. THE IMPORTANCE AND OBJECTIVES OF SOUND INDUSTRIAL RELATIONS

SYSTEMS

A sound industrial relations system is not capable of precise definition. Every industrial relations system has
to take into account, and reflect, cultural factors. Systems cannot change culture, but only behaviour
within a cultural environment. As such, one can only describe some of the elements which have
generally come to be recognized as contributing to a sound industrial relations system. These elements
would constitute a sort of 'check-list'. A relatively sound industrial relations system will exhibit some of
these elements.

A sound industrial relations system is one in which relationships between management and employees (and
their representatives) on the one hand, and between them and the State on the other, are more harmonious
and cooperative than conflictual and creates
an environment conducive to economic efficiency and the motivation, productivity and development of
the employee and generates employee loyalty and mutual trust. Industrial relations itself may again be
described as being concerned with the rules, processes and mechanisms (and the results emanating
therefrom) through which the relationship between employers and employees and their respective
representatives, as well as between them on the one hand and the State and its agencies on the other, is
regulated. Industrial relations seek to balance the economic efficiency of organizations with equity,
justice and the development of the individual, to find ways of avoiding, minimizing and resolving
disputes and conflict and to promote harmonious relations between and among the actors directly
involved, and society as a whole. The rules, processes and mechanisms of an industrial relations system
are found in sources such as laws (legislative, judicial, quasi-judicial), practices, customs, agreements
and arrangements arrived at through a bipartite or tripartite process or through prescription by the State.

Industrial relations operates at different levels - at the national level, at the level of the industry and at
the enterprise level. The elements which reflect a sound industrial relations system at all these levels
are not necessarily the same. At the national level industrial relations operates so as to formulate
labour relations policy. In market economies this is usually done through a tripartite process
involving government, employers and workers and their representative organizations. At the industry
level industrial relations often takes the form of collective bargaining between employers'
organizations and unions. This process may result in determining wages and other terms and
conditions of employment for an industry or sector. It may also result in arrangements on issues which
are of mutual concern such as training, ways of avoiding or settling disputes, etc. At the enterprise level the
relationship between employers and workers is more direct, but the interests of workers may be
represented by unions. Sound industrial relations at the national level build trust and confidence
between representatives of workers and employers. Sound relations at the enterprise level builds trust and
confidence between workers and management, which is the point at which the system must ultimately be
effective.

A sound industrial relations system requires a labour management relations policy (LMRP). Some
objectives of such a policy would include:

ü Employment and job security and increased employment opportunities.

ü Raising living standards through improved terms and conditions of employment.
ü Productivity improvement which enables employers to be more competitive and to increase their
financial capacity to raise the living standards of the employees.
ü Minimizing conflict, achieving harmonious relations, resolving conflicts through
peaceful means and establishing stable social relationships.

The efficient production of goods and services depends to an extent on the existence of a
harmonious industrial relations climate. Efficiency and quality depend on a motivated workforce, for
which a sound industrial relations climate is necessary. Productivity - a key consideration of
profitability, the ability of enterprises to grant better terms and conditions of employment and for
economic and social development - needs a sound labour relations base.

Labour management relations should be geared to creating the climate appropriate to securing the
cooperation necessary for productivity growth. Labour Management Relations (LMR) and Labour
Management Cooperation (LMC) are also important to the
creation of a culture which is oriented towards innovation, adaptable to and encourages change, where
authority is decentralized and two-way communication, risk-taking and maximizing opportunities are
encouraged, and where the output rather than the process is what matters. Changing attitudes, awareness and
behaviour to move from a counter- productivity to a productivity culture requires the appropriate
labour management relations climate based on labour management cooperation.

A sound labour management relations system is important to the removal of one of the main objections of
workers and unions to productivity drives by employers. Productivity increases have sometimes been
opposed by workers and unions on the grounds that they do not result in equitable sharing of benefits to
workers and that increased productivity may lead to redundancy. Developing understanding of basic
productivity concepts and of the methods of increasing productivity, as, well as of the formulation of
equitable productivity gain-sharing schemes help to dispel such suspicions. This task is easier where there
are mechanisms which provide for dialogue and two-way communication between management and
workers. Labour management relations therefore play a crucial role in securing acceptance by workers and
unions of the need for productivity improvement, and also in obtaining their commitment to achieving
it.

Cooperation between management and workers or unions facilitates not only a settlement of disputes or
disagreements but also the avoidance of disputes which may otherwise arise. At the industry level the
relationship between employers' organizations and representatives of workers is a precondition to
collective bargaining. Where collective bargaining takes place at the enterprise level, management
workers/union relations determine to a great extent the success or otherwise of collective bargaining. At
the national level a good relationship between representatives of employers and workers enables
them to effectively participate in labour-management relations policy formulation and to arrive at a
consensus.

In a broad sense, therefore, labour management relations policy formulation (LMRP) should aim at
achieving social justice through a process of consensus by negotiation so as to avert adverse political,
social and economic consequences. Labour relations reflects the power structure in society, and it
emphasizes negotiation and reconciliation by peaceful means of the interests of government, workers and
employers who are the main participants in the system. Consensus enables the policy formulated to
be implemented with the minimum of conflict as it has the support of all three parties. This is in fact
reflected in the ILO's principle of tripartism. In the final analysis, labour management relations
policy seeks to achieve development through establishing conditions which are fairer, more stable and
more peaceful than they are at any given moment of time. Labour management relations policy also
seeks to achieve an acceptable balance between labour and management, necessary for a negotiated
development strategy and the establishment or preservation of a society which is essentially
pluralist.
A SOUND INDUSTRIAL RELATIONS SYSTEM AT THE NATIONAL AND INDUSTRY LEVEL

IN TR O D U C TIO N

Whether bipartite policy formulation becomes a part of national policy depends largely on the respective
strengths of employers' and workers' organizations. In some of the industrialized market economies
there is a greater likelihood than in developing countries of bipartite policy formulations being reflected
in national policies due to the strength of the employers' and workers' organizations. In Sweden, for
instance, in the past, the agreements between the union and the employers' organization tended to be
translated into national policy instruments. The policies and methods of training of workers, for
example, reflected what the two social partners had identified as appropriate for the industry. There is
less likelihood of bipartism impacting on national policy formulation in developing countries due to strong
central governments in many cases, and their assumption of the role of identifying the direction of economic
and social policies.

FREEDOM OF ASSOCIATION
The fundamental premise of a sound industrial relations system is the recognition and existence of the
freedom of association accorded to both employers and workers. This freedom should include
recognition of organizations of workers and employers as autonomous, independent bodies, subject
neither to their domination by each other or by the government. Observance by states of the basic
principles of the ILO Convention relating to Freedom of Association and Protection of the Right to
Organize No. 87 (1948) is often regarded as the yardstick by which a country's recognition of this
freedom is measured.

In essence, the Convention postulates that workers and employers, without distinction whatsoever, have
the right to establish and to join organizations of their own choosing with a view to defending their
respective interests, subject to national legislation which determines the extent to which the guarantees in
the Convention will apply to the armed forces and the police. Such organizations have the right to draw up
their own constitutions and rules, to elect their representatives in full freedom, to organize their
administration and activities and to formulate their programmes. Public authorities are required to refrain
from any interference which would restrict this right or impede the lawful exercise of this right. The
organizations are not liable to be dissolved or suspended by administrative authority. Organizations have
the right to establish and to join federations and confederations which are entitled to the same rights and
guarantees, and to affiliate with international organizations. The acquisition of legal personality by
these organizations shall not be subject to restrictive conditions. In exercising the rights provided for
in the Convention, employers and workers and their respective organizations are required to respect the
law of the land, which should not impair the guarantees in the Convention both in respect of its content
and its application.

TRIPARTISM AND LABOUR POLICY FORMULATION

Tripartism is the process whereby the government, the most representative workers' and employers'
organizations as independent and equal partners, consult with each other on labour market and related
issues which are within their spheres of competence, and jointly formulate and implement national policies
on such issues. A more realistic model where developing countries are concerned is one in which a
government consults the
most representative employers' and workers' organizations on labour market and related issues which are
within their spheres of competence, and takes account of their views in national policy formulation and its
implementation.

There are many examples of tripartite mechanisms at the national level, as well as informal
applications of tripartism. In many countries there are minimum wage fixing bodies which reflect the
participation of all three parties, often leading to a consensus on minimum wages, and sometimes on other
minimum terms of employment.

Labour management relations policy formulation may take place and be reflected in basic agreements
or codes or industrial relations charters in which all three parties in the labour relations system have
participated. Some such agreements may be bipartite, and may cover a variety of subjects including
principles and procedures of labour relations such as freedom of association, trade union recognition,
collective bargaining, labour-management cooperation mechanisms, procedures for the prevention and
settlement of disputes, etc.

The contribution which tripartism can make to the establishment of a sound industrial relations system can
hardly be over-emphasized. Tripartism's rationale is to be found in the principle of democracy, the
essence of which is a sharing or diffusion of power flowing from the encouragement or recognition of
various pressure groups in a society as an effective safeguard against the centralization of power. It has
been aptly remarked that "every source of independent power in a democracy is part of its strength, so
long as it can be guided to seek its outlet through the democratic political system". Tripartism as a process is
a part of a pluralistic outlook on society through which stability is maintained, freedom of association
being the sine qua non, because without the right of association the interest groups in a society cannot
function effectively. As expressed by H.A. Clegg, pluralism's

"theme is that men associate together to further their common interests and
desires; their associations exert pressure on each other and on the
government; the concessions which follow help to bind society together;
thereafter stability is maintained by further concessions and adjustments as
new associations emerge and power shifts from one group to another.”

THE ROLE OF THE LAW

Industrial relations systems are founded on a framework of labour law which exerts an influence on the
nature of the industrial relations system. However, recourse to the law and its potential to influence the
resulting industrial relations system may sometimes be over-emphasized. It is useful, therefore, to
examine, from three points of view, the role of the law in influencing an industrial relations system - what
its objectives should be and the areas it should cover, as well as what the law cannot achieve.

In any working situation people need to cooperate with each other if there is to be maximum gain to
themselves, to management and to society as a whole. Cooperation, however, is not easily obtained as
people working together have conflicting interests. Employees are primarily concerned with the security
of their jobs and what they can earn, and the employer with what he can produce as cheaply as possible
to obtain the maximum profit. When these conflicting interests have taken definite form and shape, the
State has often stepped into protect some of these interests through legal control. Labour law has amply
demonstrated the sociological theory that
 "law is a social institution which seeks to balance conflicting interests and
to satisfy as many claims as possible with the minimum of friction. Since
the law must necessarily determine those interests which most urgently
require protection over and above other interests, those of labour, where they
lack self- reliance, have invariably formed a significant class of interests
which the law protects. Hence, especially in some developing countries,
the legal rules of an industrial relations system have been judged to some
extent by the degree to which they further this end.”

The three main functions of the law in an industrial relations system have been described as
auxiliary, regulatory and restrictive. The first function is the support it gives to the autonomous system
of collective bargaining, its operation and observance of agreements. The second function is one of
providing a set of rules governing the terms and conditions of employment and supplementing those
created by the parties themselves. The greater the coverage by collective bargaining, the less will
be the regulatory function of the law. The third function prescribes what is permitted or forbidden
in industrial conflict with a view to protecting the parties from each other, and the public from both of
them.

One major objective of labour law is to create the legal framework which is necessary for employers,
workers and their organizations to function effectively and as autonomous groups in the industrial
relations system. Hence the law should protect the freedom of association so that the two parties are
accorded the protections and guarantees found in the ILO Convention on the Freedom of Association
and Protection of the Right to Organize No. 87 (1948). Since one of the major purposes of such
association is to enable workers and employers to protect and further their interests, the law should also
provide the legal framework needed to promote collective bargaining. In this connection the ILO
Convention on the Right to Organize and Collective Bargaining No. 98 (1949) would provide the
necessary basis for such legislation.

A second important function of labour law is to prescribe the minimum terms and conditions of
employment which should be observed by employers in the course of conducting business. Therefore,
the legal system often contains provisions stipulating the minimum conditions which must be observed
in areas such as compensation for industrial accidents, social security, safety and health in enterprises, the
minimum age of employment. Some countries may consider it appropriate to prescribe minimum
wages. The basic rules to be followed in terminating employment may be another area of the employment
relationship which would need to be covered by minimum standards. Methods for settling disputes, both
individual and collective, through institutions such as labour courts, arbitration and conciliation systems,
have not been an uncommon feature of State intervention through the law.

A third, and more general role for the law in industrial relations is as an instrument of social change. The
law does not always merely or solely reflect contemporary thinking in society and does not necessarily
lag behind social and other values. It sometimes anticipates them and can, on occasion, be employed to
fashion new ideas and to effect changes in behaviour. It is not always possible to leave crucial and complex
social issues to be solved through purely voluntary action such as collective bargaining. Sometimes,
especially in developing countries, the absence of strong and independent trade unions
reduces the effectiveness and role of voluntary action, and necessitates greater regulation through legal
prescription. In such situations desirable measures such as remedies for unfair dismissal, protection
against acts of anti-union discrimination, the minimum conditions a contract of employment should
conform to, safety requirements, etc., are prescribed by the law. But intervention on this ground should
not lead to the introduction of rigidities in the labour market through overregulation.

Legal prescription should be viewed as merely laying down minimum terms and defining the permissible
boundaries of action within which the two parties (employers and workers) must operate. Over
regulation through law could have adverse consequences on building a sound industrial relations system
through voluntary action, and on the competitiveness of enterprises. This has been perceived to be so in
countries such as India and Sri Lanka, where employers have for some time canvassed for greater
flexibility and less legislative control over industrial relations. A plethora of laws makes rapid adaptation
to change difficult, and avoidance of laws can be a preoccupation of employers in such circumstances.
Over regulation is sometimes based on the misconception that sound industrial relations can be
achieved through the law. The creation of harmonious industrial relations needs to be achieved by
other, nonlegal means; the law cannot 'compel' parties to establish good relations. By way of analogy, in
a different field of human relations, the law can prescribe the rules to be followed if people wish to
marry. But the law cannot create a happy relationship or marriage. Similarly, harmonious industrial
relations can be achieved not primarily through the law but through better human relations and human
oriented practices at the enterprise level. Some countries, such as those in South Asia, which have a
tradition of a plethora of labour laws, have tended to overlook the fact that if the energy expended by the
State in enacting and enforcing a mass of labour laws had been spent in finding ways and means of
encouraging mechanisms and systems geared to achieving sound labour relations, better results may
have been achieved. In such countries parties tend to look to the law for the solution of what are
essentially human relations problems, and creativity and innovation in industrial relations are
consequently stifled. As a result, attention is focused more on dispute settlement rather than on
dispute prevention, when emphasis on the latter is one way of building a sound industrial relations system.

Statute law is one of the specific means used by the State to condition industrial relations
outcomes, and represents the most direct means of State intervention. Statutory regulation of
minimum terms and conditions such as minimum wages, working conditions, safety and health, social
security and protection become terms and conditions in contracts of employment which must conform to
them; they cannot be 'bargained' away. Other statutory provisions may be of a more facilitating nature
such as ones which establishes the conditions and environment for collective bargaining (e.g. rights of
association, unfair labour practices, and conciliation services); they are no less fundamental and important.
Another - and more indirect - method through which the State influences industrial relations is the
system of labour courts, tribunals or arbitration, which are a common feature in many countries.
Through these institutions the State seeks to dispense equity in the employment relationship, and they
may also protect collective interests as in the case of trade union rights. Such institutions have been
considered necessary where the normal system of courts does not have the power or jurisdiction to apply
equitable principles and to take into account the realities of the employment relationship, which results in
a rather 'legalistic' view of labour relations. The pronouncements of these courts often constitute important
limits to the freedom of action of the actors in industrial relations. Still another method of State
intervention is through its 'administrative' role, for example, as conciliator or mediator.
COLLECTIVE BARGAINING
Collective Bargaining may take place at the national, industry or enterprise level. It could be said that
collective bargaining is a means of settling issues relating to terms and conditions of employment and
has little to do with labour management relations policy formulation. Nevertheless collective bargaining
may reflect - sometimes explicitly and at other times implicitly - labour management relations
policy e.g., on wage guidelines, termination of employment procedures. It can also be a means of
developing policy formulation at the industry level. For instance, arrangements and agreements
resulting from collective bargaining may provide ways in which wages could be adjusted to meet increases
in the cost of living, in which event they will constitute an agreed policy on this issue. They may link a
part of wage increases to productivity increases or provide for productivity gain sharing in other ways, in
which event they represent policy on aspects of productivity. Methods of dispute settlement would reflect
a desire for the peaceful resolution of disputes.

Advantages of Collective Bargaining

1 . Collective bargaining has many advantages which have been claimed for it as a means of
resolving differences between management and employees, though it has made little positive
contribution to higher productivity and higher earnings by linking pay to performance and skills.
2 . Collective bargaining has the advantage that it settles issues through dialogue and consensus
rather than through conflict and confrontation. It differs from arbitration because the latter
represents a solution based on a decision of a third
party, while arrangements resulting from collective bargaining usually represent the choices or
compromises of the parties themselves. Arbitration may invariably displease one party because it
usually involves a win/lose situation, and sometimes it may even displease both parties.

3 . Collective bargaining agreements often institutionalize settlement through dialogue. For

instance, a collective agreement may provide for methods by which disputes between the parties
will be settled. This has the distinct advantage that the parties know beforehand that if they are in
disagreement there is an agreed method by which such disagreement may be resolved.

a . Collective bargaining is a form of participation. Both parties participate in deciding what

proportion of the 'cake' is to be shared by the parties entitled to a share. At the end of an
agreed term labour again insists on participating in deciding what share of the fruits of
their labour should be apportioned to them. Collective bargaining is a form of
participation also because it involves a sharing of rulemaking power between employers
and unions, and this has eroded areas which in earlier times were regarded as management
prerogatives e.g. transfer, promotion, redundancy, discipline, modernization,
production norms.

4 . Collective bargaining agreements sometimes renounce or limit the settlement of disputes through
trade union action or lock out. Therefore collective bargaining agreements can have the effect of
guaranteeing industrial peace for the duration of the agreements, either generally or more
usually on matters covered by the agreement.
5 . Collective bargaining is an essential feature in the concept of social partnership towards which
labour relations should strive. Social partnership in this context may be described as a partnership
between organized employer institutions and organized labour institutions designed to
maintain non-confrontational processes in the settlement of disputes which arise between
employers and employees.

6 . Collective bargaining has valuable by-products relevant to the relationship between the two
parties. For instance, a long course of successful and bona fide dealings leads to the generation of
trust. It contributes towards some measure of understanding by establishing a continuing
relationship. Once the relationship of trust and understanding has been established, both parties
are more likely to attack problems together rather than each other.

7 . In societies where there is a multiplicity of unions and shifting union loyalties, collective
bargaining and consequent agreements tend to stabilize union membership. For instance, where
there is a collective agreement employees are less likely than otherwise to change union
affiliations frequently. This is also of value to employers who are faced with constant changes in
union membership and consequent inter-union rivalries, resulting in more disputes in the workplace
than otherwise.

8 . Collective bargaining agreements which determine wage rates on a national or industry level,
place business competition on a more equal footing as a result of some standardization of the
costs of labour. This is probably a less important advantage today in the face of technological
innovations and productivity drives.

9 . Perhaps most important of all, collective bargaining usually has the effect of improving
industrial relations. This improvement can be at different levels. The dialogue tends to improve
relations at the workplace level between workers and the union on the one hand and the
employer on the other. It also establishes a productive relationship between the union and the
employers' organization where the latter is involved in the process.

a . As between the employer on the one hand and his employees and union on the other,
collective bargaining improves relations for the following reasons or in the following
ways:

i. It requires a continuing dialogue which generally results in better understanding

of each other's views.
ii. Where collective bargaining institutionalizes methods for the settlement of
disputes, differences or disputes are less likely to result in trade union action.
iii. It could lead to cooperation even in areas not covered by collective bargaining
arrangements.

b . As between unions on the one hand and employers' organizations on the other, collective
bargaining improves the industrial relations climate in the following ways:

1 0 . It acts as a means of exerting influence on the employer or the employee, as the case may be,
where the unreasonable position of one party results in a deadlock.
 The employers' organization or the union, as the case may be, has an interest in exerting influence
on its respective members; the maintenance of the relationship between the two parties is seen as
important to issues well beyond the current dispute. Both parties know that the current dispute
is only one of many situations which are likely to arise in the future, and that a good
relationship needs to be maintained for the overall benefit of their respective members.
1 1 . The entry of a union and employers' organization into a dispute facilitates conciliation or
mediation. Sometimes one or both parties are able to divorce
themselves from the main conflict, or from their position as representatives of their members,
and mediate with a view to narrowing the differences and finding compromise solutions.

1 2 . Collective bargaining often leads employers' organizations and trade unions to establish links,
and to look for and increase areas of common agreement. This in turn ensures to the benefit of their
respective members.

LABOUR COURTS
The agents of change in industrial relations are usually trade unions, employers and their organizations,
governments through legislation and administrative action, and the system of courts which may be a
combination of the normal courts and special courts or tribunals set up to deal with matters pertaining to
labour. These special courts vary in nature from country to country. They include labour courts and
tribunals and arbitration systems - the latter sometimes the creation of collective bargaining agreements
which provide for arbitration to settle disputes. Labour courts have been established in several countries
because the normal system of courts and the system of law they administer cannot adequately deal with
labour relations issues, which require an equitable rather than a purely legal approach. Therefore labour
courts are often empowered to decide industrial relations issues on a mixture of equitable and legal
principles. For instance, a demand for higher wages cannot in many legal systems be decided by the
civil courts except on the basis of what has been contracted for or has been prescribed by a statute if any;
in short, only as an enforcement matter.

D . SOUND INDUSTRIAL RELATIONS AT THE ENTERPRISE LEVEL

IN T R O D U C T IO N
In the final analysis the quality of relations between employers and employees in an enterprise depends
on the policies, practices and procedures which exist at the enterprise level to deal with both individual
and collective issues, and to promote labour- management cooperation. There are, therefore, numerous
enterprise level mechanisms in different countries. Their effectiveness is to an extent conditioned by the
particular corporate culture or philosophy relating to the management of people. The development of
enterprise level industrial relations facilitates, as it did in Japan, adjustments to structural changes.
Indeed, it is a way of reconciling the need for enhanced management flexibility with the need to ensure that
employees' concerns are taken account of and their cooperation obtained without which successful
change would hardly be possible.

HUMAN RESOURCE MANAGEMENT POLICIES AND PRACTICES

The elements of a sound industrial relations system are closely linked to a progressive human resource
management policy translated into practice. Harmonious industrial relations are more likely to exist in
an enterprise where human resource management policies and practices are geared to proper
recruitment and training, motivational systems, two-way communication, career development, a
people-oriented leadership
and management style, etc. Many of these human resource management activities have an impact on the
overall industrial relations climate in an enterprise. So long as human resource management policies and
practices are not central to corporate strategies and human resource management departments are seen as
only providing "services" to other departments, such policies and practices will remain outside the
enterprise's main culture and will be a "deviant" culture. Some of the best managed enterprises tend to
integrate human resource management policies into their corporate culture and strategies.

WORKER PARTICIPATION AND EMPLOYEE INVOLVEMENT

There can hardly be any debate on the principle i.e. the value and need for consultation and communication
in an age when it is accepted that information sharing and consultation are important to enterprise
performance, productivity and employee motivation. Effective corporate strategies can no longer be
developed by top management without information inputs from, and relying on the knowledge of, frontline
employees. Indeed, communication skills is today an essential attribute of leadership. Consultation and
communication mechanisms introduced voluntarily after consultation with employees is likely to be seen
as part of an organization's culture, rather than as ones imposed and reluctantly accepted.

There is no ideal model of communication and consultation because, to be effective, it must fit the
purpose, the type of organization, and cultural requirements if any. For instance, it is useful to inquire
whether in some societies consultation through formal meetings is adequate due to the reluctance to be
seen as challenging management's views, and whether such a procedure should be reinforced by
parallel unstructured communication between superiors and subordinates. However, the value of models
is that they underscore the need for such systems and provide useful guidelines which can be adapted to
suit national and enterprise conditions.

Greater worker involvement is likely to occur in the future for the following reasons:
ü Employees at all levels are acquiring higher educational qualifications and skills.
As such, they will be less amenable to management through control and commands, and
will instead respond better to more participative forms of
management.
ü Quality and productivity tend to increase when employees are more involved in arriving at
decisions at the point of production.
ü For effective decision making in modern enterprises there should be an
information flow and analysis of data and information.
ü Work today requires and involves more interpersonal skills, greater coordination among workers
and sharing of information.
ü Enterprises (and economies) which have moved beyond the stage of routine high volume
production to more value added and knowledge-based activities need to
promote increased innovation, creativity and better application of knowledge, all of which require
worker involvement.
ü Participation is a great motivational tool because it gives people a degree of control,
recognizes personal worth, and provides scope for personal growth. These are in themselves
intrinsic rewards which flow from the performance of a
job within a participatory environment. When participation extends to setting goals and
objectives, it enhances commitment to achieving them.
COMMUNICATION
The starting point for any effective enterprise policy to install procedures and mechanisms to promote
sound labour relations is communication, because it is relevant to a whole range of issues and other
matters such as productivity, small group activities, joint consultation, performance appraisals, and
motivation, as well as to organizational performance.

The performance of an organization is affected by the manner in which that organization communicates with
its employees. This involves information exchange, and not merely one-way communication. The
performance of employees in an organization is conditioned by the performance of others in the
organization. Changes in an organization can be brought about in an effective way where there is
sufficient understanding between management and employees. For this purpose two-way
communication tends to enhance understanding and cooperation and influence behaviour in a desired
direction. But for effective two-way communication there should be a knowledge of communication
and communication skills, a structure of communication channels, and access by all employees to
such channels. Communication is essential not only in relation to existing employees but also in relation to
new employees who must be made aware of what the job entails. Making available to employees the means
of communicating their opinions and problems is also important to an effective performance appraisal
system.

The link between productivity and communication is to be found in the fact that proper productivity
management requires concerted or joint action between management and workers. For this purpose
confidence between management and workers is essential, and the starting point of confidence-building
is sharing information (and not merely 'top-town' communication). This has prompted the view that
productivity management is also information management - information helps to promote the commitment
that is necessary to improve productivity. Two-way communication can also promote productivity
improvement through innovation and creativity. Effective communication would:
* Create an atmosphere of trust, which is important to promoting increased productivity. If
the environment generates mistrust, workers are likely to be
suspicious as to whether they are receiving a fair share of the benefits of
productivity gains. Without two-way communication workers would not be in a position even
to judge whether their share is a fair one.

* Promote an atmosphere of 'intimacy' and commitment to the group, which in turn would bind
people together and prompt cooperation. It is basic human psychology that a high degree of
communication and working together for a common goal tend to create a feeling of
intimacy among those involved in these processes.

* Promote - especially where the elements of trust and intimacy are present integration of
the worker in the activities of the group and a feeling of 'belonging' leading to greater
motivation and productivity.

* Promote participation, which involves common goals, teamwork,

discipline/commitment and cooperation. Communication is a great motivator and makes
people feel secure in their jobs, helps to identify the contribution of workers with the
enterprise's success, and enhances the quality of working life. It therefore leads to greater job
satisfaction.
 * Develop the skills and attitudes of the individual, engendering self-confidence and a sense of
self-worth. In a highly hierarchical and 'top-down' form of management there is little
scope for development of the individual which is needed for innovation and creativity
which, in turn, promote better productivity. Innovation and creativity result in better
utilization of available resources which, in the final analysis, is what productivity is.
* Create a high degree of consensus in decision making. With consensus implementation
of decisions will be quicker and easier because disputes or
differences of opinion would be less likely compared to enterprises where
decisions are taken unilaterally with little consultation and information- sharing.

JOINT CONSULTATION
Joint consultation is a voluntary system which is an outcome of arrangements between the parties based on
the mutual acceptance of the need to avoid conflict through strikes or other actions. In essence, joint
consultation has become the means through which information is shared; mutual understanding is
promoted; participation in arriving at decisions is facilitated; and working conditions negotiated.

TRAINING
The importance of human resources development in dispute prevention and settlement is often
overlooked. Many workplace problems and issues are the result of unsatisfactory supervisory
management and the lack of awareness on the part of employees about the workings of the
enterprise. Here again, Japanese practices in the larger enterprises are instructive, though this is not to
suggest that well managed enterprises elsewhere do not act on the basis that front line supervisors are
often a key to workplace industrial relations.

Well managed enterprises see supervisors as critical to labour relations because it is they who interact
most often with employees, are the first to identify problems, and it is their attitudes towards employees
which condition the latter's views about the management. Supervisory development is therefore an
important aspect of developing sound labour relations at the enterprise level.

Equally important in Japan is the investment in training and educating of employees. Career development
opportunities afforded to employees usually commence with orientation and induction programmes for
new recruits. Skills development through on- the-job and off-the-job training (with subsidies for fees
payable to external institutions), coupled with extensive job rotation, produce multi-skilled employees
who are acquainted with how the company as a whole functions. Three important consequences flow from
this. First, team work becomes the norm, and employees are able to support each other (because of their
skills profile and job experience through rotation). Second, it is easier to find career development
opportunities within the firm. Consequently employees tend to look to the "internal labour market" rather
than to the external labour market for their advancement. Third, employees are more amenable than
otherwise to look for long term gains rather than short term ones. The net result is that employees are
more likely to identify with the goals of the company, thus reducing the areas of potential conflict.
When these practices are coupled with collective bargaining and consultation procedures, the result is
a greater potential for cooperation, joint activity and mutual understanding. In fact, without human
resources development it is doubtful
whether establishing communication channels would be likely to have the desired result.

GENERAL DEFINITION OF INDUSTRIAL RELATIONS

J. Schregle "In search of Alternative Models for Asian Industrial Relations: A Discussion Paper" in Agenda
for Industrial Relations in Asian Development, Proceedings of the 1981 Asian Regional Conference on
Industrial Relations, Tokyo, Japan, 1981 (The Japan Institute of Labour) says: "If we take industrial
relations in the wide sense of the term, as comprising relationships between employers and workers and
their organizations, and where appropriate also the public authorities, in other words, if we take the term
"industrial relations" as referring to the interplay between interest groups which participate
directly or indirectly, in or act upon the employment relationship, then we must include in our
comparative evaluation of industrial relations such non-economic factors as attitudes, values and patterns
of behaviour, we must include in it the way in which in different societies decisions are taken and
rules are established. In fact, industrial relations is but an expression of the power structure in a given
society and of the way in which opposing interests between workers, employers and governments are
reconciled and accommodated."
LECTURE 3 (WEEK 4)
KEY PLAYERS IN INDUSTRIAL RELATIONS

1.1 TRADE UNIONS

Trade unions are now accepted as valuable institutions helping to regulate the labour markets in our
country. The concept of social partnership is helping to further this acceptance, and is elevating the trade
union from its well-entrenched role at the micro level, within firms, to the macro level where it can
contribute to national planning and national development.

A trade union is an organization based on membership of employees in various trades, occupations and
professions, whose major focus is the representation of its members at the workplace and in the wider
society. It particularly seeks to advance its interest through the process of rule-making and collective
bargaining.

According to the interpretation clauses in the Industrial Relations Act, Ch. 88:01 and the Trade Unions
Act, Ch. 88:02, (Revised laws of Trinidad and Tobago 1980), a Trade Union is

An association or organization registered as a trade union for the purposes

of the regulation of the relations between workmen and masters, or
between workmen and workmen, or between masters and masters, or
the imposing of restrictive conditions on the conduct of any trade or
business, and also the provision of benefits to members, not being an
association or organization of employers.

HISTORY OF THE TRADE UNION MOVEMENT

The labour movement began to assume importance after World War I, spurred by the return of
Trinidadians who had fought with the British armed forces. The most important of these was Captain
Andrew Arthur Cipriani, a white man of Corsican descent, who had served as commander of the West
India Regiment. Cipriani resented the fact that the West India Regiment was not allowed to fight for
the British Empire but instead was sent to Egypt, where its forces served as labour battalions. Upon his
return to Trinidad, Cipriani organized the masses, giving them national pride and teaching them to
oppose colonialism. He revitalized the Trinidad Workingman's Association, which was renamed the
Trinidad Labour Party (TLP) in 1934; by 1936 the TLP had 125,000 members. Because Cipriani was white,
he was able to transcend the black-East Indian racial dichotomy and became known as "the
champion of the barefoot man." In the first elections held for the Legislative Council, Cipriani was elected
in 1925 and remained a member until his death in 1945. He was also elected mayor of Port-of-Spain eight
times. In these two offices, Cipriani struggled against racial discrimination and fought for constitutional
reform, universal suffrage, and better rights for workers.

During the 1930s, Trinidad and Tobago suffered severely from the effects of the worldwide
depression. Living standards deteriorated as workers were laid off from the plantations. The situation
was aggravated by unjust labour practices. Wages on the sugar estates and in the oil fields were kept low
while shareholder dividends in London
rose. Workers moved away from Cipriani's moderate policies, and the labour movement became
radicalized. Between 1934 and 1937, there were strikes and riots on the sugar plantations and in the oil
fields throughout the Caribbean. Tubal Uriah Butler, a black Grenadian who had been expelled from the
TLP for extremism, emerged as the leader of the black oil workers, who were the best paid and most
politicized labourers on the island. Butler called for racial unity among black workers and organized strikes,
heading a highly personalized party that was known as the "Butler Party." Although the British labelled
Butler as a "fanatical Negro" during the 1930s, Trinidad and Tobago has since recognized him as a man
who sensitized the common man to the evils of colonialism. The strikes in Trinidad and Tobago in the
1930s included many incidents of racial violence, culminating in twelve deaths and over fifty injuries in
1937.

The British responded by deploying marines from Barbados and appointing two successive commissions
from London to investigate the causes of the riots in Trinidad and Tobago and elsewhere in the
Caribbean. Both commissions noted the low wages and poor working conditions throughout the region.
The second commission, chaired by Lord Moyne, which completed its report in 1940, was very
critical of the British colonial system in the Caribbean and recommended housing construction,
agricultural diversification, more representative government for the islands, and promotion of a
middle class in preparation for eventual self-government. Although the Moyne Commission's findings
were not made public until after World War II, some of its recommendations were put into effect
under the Colonial Development Welfare Act of 1940.

The British government had encouraged the formation of trade unions in the belief that labour organization
would prevent labour unrest. After the island wide strikes of 1937, Butler succeeded Cipriani as the leader
of the Trinidadian labour movement. Butler's associate, Adrian Cola Rienzi, an East Indian, organized
both oil workers under the Oilfield Workers Trade Union (OWTU) and the sugar workers under the
All Trinidad Sugar Estates and Factory Workers Trade Union (ATSE/FWTU). Railroad and
construction workers were organized under the Federated Workers Trade Union (FWTU), and a number of
smaller unions were also formed.

Following a recommendation of the Moyne Commission, government was made more representative.
Constitutional reform in 1925 had provided for six elected members on the twenty-five-member
Legislative Council, but franchise restrictions limited voters in the 1925 election to 6 percent of the
population. In April 1941, the number of unofficial elected members on the Legislative Council and the
governor's Executive Council was increased, giving the elected members a majority. Some of these
elected members were included on official committees and the governor's Executive Council,
although the governor retained ultimate authority and veto power.

Trinidad and Tobago had been profoundly changed by World War II. For the first time since British
annexation, the islands were widely exposed to another foreign influence. The 1941 Lend-Lease
Agreement (also called the Bases-for-Destroyers Agreement) between the United States and Britain
included ninety-nine-year leases of the deep- water harbour at Chaguaramas to the United States Navy
and of Waller Field in central Trinidad to the United States Army. Many United States and Canadian
personnel were brought in to work at these bases, and thousands of Trinidadian workers were employed at
the bases for higher wages under better conditions than ever before. As a result, by the end of World War
II many Trinidadians had become used to a higher standard of living and wanted to keep it.
Although the election in 1946 was the first under universal adult suffrage, less than half of the
registered voters cast ballots. The trade unions did not consolidate into a cohesive political entity. The
labour vote fragmented, as blacks and East Indians divided and as racial slurs became a common part of
campaign rhetoric. Butler, who had been detained throughout the war, was released from jail and
campaigned for the Legislative Council, but he was defeated by Albert Gomes, a trade unionist of
Portuguese descent. The labour movement was unable to gain a majority because no leader could command
the widespread support of both the blacks and the East Indians, a pattern that continued
throughout the ensuing forty years. The middle class--comprising primarily blacks and a smaller number
of East Indians--came to dominate the political scene in the crucial elections that led to independence and
has dominated it into the late 1980s.

CHALLENGES FACING THE TRADE UNION MOVEMENT

Some questions are being raised about the ability of trade unions to survive in the current economic
environment. Suggestions have been made that globalization is inimical to the existence of the trade
union as an institution, and that the effects of globalization will lead to a weakening of the movement.

While there is a shortage of empirical evidence on the impact of globalization on trade union density,
and on its ability to maintain collective agreements, there is some evidence that the 1980s and 1990s
witnessed a weakening of the membership base in the world. It is difficult to determine the extent to
which the decrease in trade union numbers can be attributed to the periodic recessions in the world
economy, as against the anti-union strategies developed by leading national governments.

In the Caribbean, the interventions of the international financial institutions in the 1980s and 1990s
led to the introduction of stabilization and structural adjustment programmes which triggered
deflationary policies resulting in massive job losses and consequently lowered union membership.

Operating against the background of depressed economies, trade union pushfulness was constrained.
Various types of methodologies, including wages restraint and wages guidelines, became the norm in
the region and there was a significant slowing of industrial action in countries which hitherto were
known for the militancy of their trade union efforts.

It can be argued that the period of the 1980s and 1990s saw an erosion of the consolidation of
the trade union and its membership, as well as the financial strength which characterized the decades of
the 1950s and 1960s and which saw some slowing in the 1970s.

Further challenges include:

ü The development of the services sector (skilled workers)

ü Self-employment
ü Advances in technology
ü Human Resources Management
ü Individual Contracts vs Collective Agreements
FUNCTIONS OF A TRADE UNION
Trade unions should:
1 . Where appropriate, maintain jointly with management and other trade unions effective
arrangements at industry or local levels for negotiation, consultation, and communication and for
settling grievances and disputes;
2 . Take all reasonable steps to ensure that their officials and members observe all arrangements;
3 . Provide for the training of delegates in the scope of their powers and duties and the day-to-day
operation of the unions;
4 . Provide adequate educational opportunities for the advancement of their members;
5 . Be properly staffed to serve the needs of their members, and allow for effective
lines of communication between such staff and the rank and file membership;
6 . Encourage members to take part in their activities by adopting such means as would best allow
them to do so, including the compilation and distribution of information;
7 . Make available information pertaining to the rules and policies of the union;
8 . Provide adequate advisory services for their members and in particular assist them to understand
the terms and conditions of their employment; and
9 . Identify trends in industrial relations to help their members to anticipate and keep abreast of
change.

THE ROLE OF TRADE UNIONS

Generally, it is possible to summarize the various functions which Caribbean trade unions have
undertaken:
1 . Political role, using collective power to influence decisions on behalf of members
and the wider society.
There are many who recognize that power relations are at the basis of industrial relations, and that
trade unions are political institutions. Some recognize the trade unions as exercising a countervailing
power against the state, and the private sector, on behalf of their membership which comprises mainly
the working classes.

2 . Market role, by intervention wage bargaining and thus impacting on the economy.
The point has to be made that the trade union’s economic or market function in the Caribbean is
generally reactive. Trade unions direct their efforts at protecting their workers against the ravages of
inflation, and trying to improve living standards which
have been depressed for historical reasons. They also try to defend their member’s right to work and
are supportive of both macro and micro economic policies which would be conducive to high
employment.

3 . Regulatory role by setting standards in relation to jobs and terms and conditions.
The strength of the trade union at the workplace level determines its ability to perform its job
regulation function. Strong trade unions have entered into arrangements where the power of
management has to be shared with the union at the workplace. Jointly agreed procedures for
dealing with major issues in the workplace e.g. grievances, discipline, job evaluation,
redundancy, work changes, safety and health, along with the right to negotiate terms and conditions
through collective bargaining, provide the sound basis for unions to perform regulatory
functions.

Trade unions are currently trying to expand such joint arrangements to cover areas such as training,
equal rights for part-time employees, sexual harassment, treatment
 of those with chronic diseases, and other areas. On the other hand, some employers are seeking to
side step the trade union by engaging in direct contract with employees rather than
encouraging union participation.

4 . Democratizing role, in creating industrial democracy at the workplace.

The trade union’s rank and file are provided with the opportunity of electing their stewards,
committees of management, and through the delegate system, their executives and other
leaders. The process of preparation for collective bargaining
also encourages worker participation. Trade unions are fertile institutions for the furtherance of
participatory democracy, for the freedom of assembly, the right to speak freely and the right to
exercise choice.

Traditionally the separation between capital and labour has created a situation where it has been
accepted that management is imbued with the right to manage, which is interpreted to mean that
workers are mere resources to be manipulated like any other resource.

Paternalistic, autocratic and top- down management has been characteristic of the social relations in
the workplace. Indeed, there is a notion that the plantation has created the model of relations for
other workplaces in the Caribbean.

5 . Service role, in promoting the intervention of members.

Trade unions attempt to develop services which are valuable to their members as individuals,
outside of the scope of collective bargaining. In the early stages, this
took the form of mutual assistance, but with the onset of the welfare state, with
provisions for national insurance and similar schemes, this demand has abated.

Yet trade unions have recognized the need to expand their role in assisting their members in a
variety of areas, and so have undertaken a number of non-traditional ventures on behalf of their
members. Some of the most successful cooperative organizations, particularly credit unions in the
Caribbean, have been developed by trade unions on behalf of their members. Trade unions have also
developed housing land-lease schemes, transport and service stations, banks, laundromats, cinemas,
stores, insurance programmes and other schemes for the benefit of members.

Trade unions also supply legal and medical services for their members. Some trade unions recognize
the high cost of legal representation in the Caribbean and seek to provide legal assistance to their
members. This is especially important in areas where the collective bargaining and grievance handling
process is highly regulated.

6 . Enhancement role in helping to develop the human potential of members.

Trade unions provide the opportunity for workers to develop pride in themselves, to reach positions of
leadership and to excel, where without this vehicle of mobility,
many would have had a stultified existence. Many persons who have moved on to management and
other leadership roles can testify to their beginnings as shop stewards who were given basic
training and opportunity for leadership in the labour movement.

The role of trade union education is critical to helping members to develop their potential.
 7 . Welfare role in providing assistance to particular groups.
Some trade unions have actively engaged in providing welfare services for members and even for
the wider community. This takes various forms including the
employment of those who have disabilities, as an example to the wider community, the provision of
family services including nurseries, child care centres and old people’s homes, as well as play and
recreational centres in depressed areas.

2.0 NATIONAL TRADE UNION BODIES

2.1 NATUC
The National Trade Union Centre (NATUC) was established to represent the collective views of
Trade Unions in Trinidad and Tobago. However, in 2000 a major ideological split took place within the
umbrella trade union movement. Unions that departed NATUC included the Communication Workers'
Union (CWU), Oilfield Workers' Trade Union (OWTU), Public Services Association (PSA) and Trinidad
and the Tobago Unified Teachers' Association TTUTA.

2.2 FITUN
At a Special Joint Conference of Shop Stewards and Branch Officers (COSSABO) of the Group of
Independent Trade Unions and NGOs held on June 12th 2002, which was attended by representatives
of the following Unions - ATASS, CWU, EPA, FSA, OWTU, POA, SISA and TICFA - and
representatives of the following NGOs - TYC, Working Women; it was agreed that there should be
established a new Federation and that the name of the Federation should be "The Federation of
Independent Trade Unions and NGOs (FITUN)".

And at a Special Joint COSSABO of FITUN held on 12th June 2003, it was agreed by the representatives
of the Trade Unions and NGOs assembled that there should be an interim Executive Committee and an
Interim General Council established according to Constitutional Guideline that the Joint COSSABO
adopted, and that further the said Joint COSSABO gave effect to this decision by electing an Interim
Executive and proving for each member unit of FITUN to have seven (7) delegates to the Interim General
Council.

2.3 JTUM
The Joint Trade Union Movement headed by the Ancel Roget of the OWTU is considered to be a more
radical trade union umbrella group.

3.0 EMPLOYERS' CONSULTATIVE ASSOCIATION (ECA)

ECA is the sole employers' organisation in Trinidad and Tobago dedicated to the achievement of
industrial harmony, improved productivity and increased profitability and serving the interest of its
members for economic and social progress. The ECA serves as a resource body for organisations and
businesses. The ECA's focus is on the most important resource in any organisation – the Human
Resource and the maintenance of good employer/employee relations and workplace issues. The ECA is a
representative body whose board comprises professionals from its member organization. The ECA
represents employers, nationally, regionally and internationally through its membership on National
boards & committees, the Caribbean Employers Confederation and the International Organisation of
Employers. As an umbrella organisation/social partner, representing employers in T&T the ECA has
forged a prominent place for itself and is actively involved not only at the "Macro level" on the
different national and international boards but has recognized that significant and meaningful progress
can only come about by developing and strengthening relationships at both the macro and micro levels.
Set up in 1959 by a group of companies, the ECA is dedicated to furthering and protecting the interests
of employers in Trinidad and Tobago bringing about harmony in the workplace and industrial peace.
The promotion of sound employer- employee relations is the foundation on which the ECA has been
built. For this purpose, the ECA has devoted itself to facilitating smooth labour relations by
representing employers at the national and international level, assisting national legislation and the
government's formulation of policy as a tripartite member, arbitrating pending labour disputes,
modernising human resource management, and providing pertinent information and training programmes.
Over the past forty years, the ECA has built up a special relationship with its members through the
provision of a range of services which has expanded to anticipate and reflect the growing complexity of
the workplace. Membership in the ECA is comprised of small and large employers as well as
employers from both the private and public sector.

4.0 INTERNATIONAL ORGANISATION OF EMPLOYERS

Since its creation in 1920 the International Organisation of Employers (IOE) has been recognised as the
only organisation at the international level that represents the interests of business in the labour and social
policy fields. Today, it consists of 139 national employer organisations from 134 countries from all over the
world.

The mission of the IOE is to promote and defend the interests of employers in international
fora, particularly in the International Labour Organization (ILO), and to this end works to ensure that
international labour and social policy promotes the viability of enterprises and creates an environment
favourable to enterprise development and job creation. At the same time it acts as the Secretariat to the
Employers' Group at the ILO International Labour Conference, the ILO Governing Body and all other
ILO- related meetings.

In order to ensure that the voice of business is heard at the international and national level, the IOE is
actively engaged in the creation and capacity building of representative organisations of employers,
particularly in both the developing world and those countries in transition to the market economy.

The IOE is the permanent liaison body for the exchange of information, views and experience
among employers throughout the world. It acts as the recognised channel for the communication and
promotion of the employer point of view to all United Nations agencies and other international
organisations.
 5.0 REGIONAL BODIES
5.1 CARIBBEAN EMPLOYERS' CONFEDERATION (CEC)
M ission
The CEC is a grouping of employers’ organizations in the Caribbean region dedicated to the development
and promotion of good industrial relations practices at the enterprise and macro levels towards
achieving productivity and prosperity through high productivity for the member countries and the
Caribbean sub-region as a whole.

O bjectives

CEC promotes the interest of its members and the economic and social welfare of its member countries
by supporting:

1 . The best interests of national employers’ organizations in all matters affecting their relations
with their members.
2 . Consultation between employers’ organizations to ascertain their views on matters of common
concern and to represent those views to any government
body, institution, organization or association.
3 . Participation and membership of any national, regional or international employers’
organization or other body whose objects are consistent with those of the Confederation and to
assist in the establishment of such organization or body in the Caribbean.
4 . Commentary and dialogue on existing and proposed national legislation relevant to the activities of
the Confederation.
5 . The collection, dissemination and analysis of data relating to wage structures and conditions of
work, and the dissemination of this information for the benefit of members of the Confederation.
6 . Supporting the implementation of other lawful things as are or may become incidental and
conducive to the attainment of the above objects or any of them.

Background
CEC was founded in 1960. Its offices were based at the Employers’ Consultative Association, Old
Fort Building, Corner Broadway and South Quay, Port of Spain, Trinidad. It is still housed at the
ECA but at a new location, #43 Dundonald Street, Port of Spain, Trinidad.

The founding members of the CEC are:

ü Antigua Employers’ Confederation

ü Barbados Employers’ Confederation
ü Belize (British Honduras) Employers’ Association
ü Jamaica Employers’ Confederation
ü The St. Lucia Employers’ Federation
ü Employers’ Consultative Association of Trinidad and Tobago

This was necessary for the Confederation to carry out activities that required such registration for and
receipt of funding for projects.
Collaborating Organizations

ACS
The CEC maintains close contact with the Association of Caribbean States (ACS), its programmes and
activities, and circulates data and information which may have a direct impact on the work of members.

C A R IC O M
The CEC is recognised by regional governments as the organization responsible for labour and social
issues concerning employers. Thus, the CEC had observer status at the Standing Committee of
Ministries of Labour Meeting of CARICOM government’s annual meeting where it seeks to put
forward the views on Employer issues to Governments in the region.

IL O
The CEC is recognised by the ILO as the regional employers’ grouping dealing with labour and
social issues. Members of CEC attend meetings of the ILO and IOE as regional representatives for
employers.

IO E
The CEC maintains close collaboration with the work of the International Organization of Employers
(IOE), its deliberations and decisions.

Trade Unions
The CEC interacts with the Caribbean Congress of Labour (CCL), as a tripartite partner. CEC maintains
good relations with the trade union movement as both social partners strive for growth and development
of their constituents for the benefit of Caribbean countries.

5.2 CARIBBEAN CONGRESS OF LABOUR

Proposals for the integration of the British West Indian colonies as they were then called, date back to the
19th century. The impetus for political integration however, was provided by the efforts to unite the
workers of the region in 1926, when the first regional labour conference was held in British Guiana. That
conference approved a resolution for the formation of a labour federation between Guyana and the West
Indies. Although between 1938 and 1945 there were significant changes in the political climate in both
Great Britain and the Caribbean which led to a new grouping, the Caribbean Labour Congress, the new
name for the British Guiana and West Indian Labour Congress.

Since its formation in 1960, the Caribbean Congress of Labour (CCL) which has antecedents from
1926, has been the major regional labour organization in the Caribbean. Its main objectives have been:
1 . to encourage the formation of national groupings and/or centres of trade unions;
2 . the defence of trade unions against infiltration and subjugation by totalitarian forces;
3 . to build and strengthen ties between Free Trade Unions of the Caribbean and those of the rest
of the hemisphere and the world; and
4 . to maintain and develop a regional clearing house of information and research
on the problems of trade union organizations.

In the fulfilment of these four major aims, the Caribbean Congress of Labour has generally been
successful. The formation of national trade union centres has proven
elusive in areas such as Saint Lucia, Antigua, Dominica and Bermuda; in areas such as Trinidad and
Tobago and the Bahamas, more than one national centre operated at some time, with difficulty in
bringing the centres together. In Guyana, there has been some splintering from the centre.

Some of the issues which have contributed to the difficulty of forming the national centres include:
1 . political differences between the unions;
2 . ideological differences; and
3 . personality conflicts between leaders.

The position of the Caribbean Congress of Labour has shifted and in recent times the Congress has been
trying to establish a relationship with Cuba, based on pragmatic rather than ideological consideration.
The CCL continues to subscribe to the policies of the International Confederation of Free Trade Unions
(ICFTU), of which it is an affiliate, and to the policies of democracy.

Through its connections with the ICFTU, ORIT and through its links with other trade union institutions
like the AFL-CIO and the Canadian Labour Congress, the CCL continues to create links with the
world’s free labour movement.

The Caribbean Congress of Labour has played a predominant role in training Caribbean labour leaders in
education and research and in building capacity.

The financial difficulties of the organization, based on weak support from its affiliates has been a
problem. It has played a great role in using its connections with the International Labour
Organization (ILO) and with funding agencies to continue its outreach programmes to members.

5.3 COMMONWEALTH TRADE UNION COUNCIL

The Commonwealth Trade Union Council links trade union national centres, representing over 30
million trade union members, throughout the Commonwealth. It operates in close co-operation with
other international trade union organisations and seeks to promote a democratic and prosperous
Commonwealth in which international labour standards are observed.

CTUC activities within the Commonwealth are based on an increasingly popular acceptance that
the trade union movement is a key player in the campaign to achieve and defend democracy. Trade unions
in the Commonwealth are an essential element in civil society and in many countries the only
democratically-organised, non-racial, mass membership organisations.

The CTUC and its member organisations are united by Common Aims and are actively involved in:
• Creating partnerships
• Challenging injustices
• Changing perceptions
• Campaigning for core labour standards
6.0 INTERNATIONAL TRADE UNIONS ASSOCIATIONS

6.1 WORLD FEDERATION OF TRADE UNIONS

The World Federation of Trade Unions (WFTU) was established in Paris on 3 October 1945. The First
World Trade Union Congress (Paris, 3-8 October 1945) which voted to establish the WFTU was attended
by delegates representing 67 million workers from 56 national organisations from 55 countries and 20
international organisations. The establishment of the WFTU closely followed the San Francisco
Conference which created the United Nations Organisation (UNO). The U. N. Charter adopted in San
Francisco on
26 June 1945 declared: “We the people of the United Nations, determined to save succeeding
generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and
to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal
rights of men and women and of nations large and small and to establish conditions under which justice
and respect for the obligations arising from treaties and other sources of international law can be
maintained, and to promote social progress and better standards of life in larger freedom, and for
these ends to practice tolerance and live together in peace with one another as good neighbours, and to
unite our strength to maintain international peace and security, and to ensure, by the acceptance of
principles and the institution of methods, that armed force shall not be used, save in the common interest,
and to employ international machinery for the promotion of the economic and social advancement of all
peoples, have resolved to combine our efforts to accomplish these aims." The basic aim of the First
World Trade Union Congress was nothing other than the objectives quoted above from the U. N.
Charter. The U. N. Charter spoke in the name of "We the peoples of the United Nations". The Paris
Congress of WFTU spoke in the name of the working people of the world organised in trade unions who
wanted a world free from war and social injustices. The foundation of the WFTU was thus seen as
indicative of the new era that had opened with the defeat of fascism at the hands of the anti-fascist
alliance of states. The working people and the democratic forces saw in that victory the new future of the
world, where imperialism and colonialism would retreat and where freedom, peace, democracy and
prosperity would advance for all humankind.

The Constitution of the WFTU adopted in 1945 placed among the aims of the WFTU: "To combat war and
the causes of war and work for a stable and enduring peace."

The first resolution adopted by the Paris Congress declared that "one of the primary tasks of the
WFTU and the trade union movements of all countries is to fight for the speedy and complete
eradication of fascism. We recognise that the forces of reaction do not want to see the German and
Japanese war potentials utterly destroyed and fascism extirpated. World labour must take action to
guarantee that these forces shall not prevail…
". . . The Congress declares that world labour must be ever- vigilant to
prevent any hesitation or weakening in the application of these decisions
(the Potsdam Agreements)."

The second resolution adopted by the First World Trade Union Congress outlined the principles for a
fundamental charter of the rights of the trade unions and their immediate demands. The Paris
Congress in its second resolution, strongly reaffirmed the basic demands of the workers:
ü the right of the working people to organise themselves;
ü freedom from every form of discrimination based on race, creed, colour or sex;
ü the right to work and to paid holidays;
 ü adequate rates of pay and a higher standard of living (housing, food, etc.);
ü social security providing guarantees against unemployment, in sickness, accidents and old age.

The resolution on the "people's right to self-determination" clearly put forward the slogan of national
independence: "Victory over the fascist powers was based both upon the united military might of the
United Nations and the active struggle of the peoples to secure their full enjoyment of our basic liberties
and the right of self-determination and national independence. “It would indeed be but incomplete
victory if the common people in the colonies and territories of all nations were now denied the full
enjoyment of their inherent right of self- determination and national independence."

The Congress supplemented this demand for political independence with the call for economic
independence as well. The Paris Congress decided:
• To increase industrialisation and agricultural technical progress under democratic control in
all backward countries, in order to free them from their present position of dependence and to
improve the standard of living of their
population;
• To see that this programme is not used for monopolistic profiteering interests, native or foreign,
which would harm the legitimate national and social interests of these countries;
• To support the assistance which may be given to these countries by the technical
and financial resources of advanced countries in terms of long-term credits and other means
without permitting the latter to interfere in the internal affairs of the needy countries or to subject
them to the influence of international trusts and cartels;
• To insure international coordination of these measures, so as to achieve a
harmonious evolution of all peoples;
• To enlist all peoples within the framework of this movement, not merely those of the backward
countries, but also those of advanced countries, whose real interests coincide with that of
the former

During the last five decades, reflecting the great changes in the world, the composition of the WFTU has
also changed significantly. Ideological and political splits and changes in policies also influenced certain
trade union organisations. Reviewing developments in the past period, the Policy Document adopted
at the 13th World Trade Union Congress made the assessment that "economically and socially
speaking, 'bloc' politics seriously handicapped the action, form and influence of world trade unionism, and
more especially its international structures. These upheavals bring to the fore the central issue of the
role and place of the social movement and the trade union movement." (paragraph 23)

The Policy Document further stated that "trade unions and their international organisations could not,
did not know how to, and did not want to avoid taking a stance in this global confrontation. The resulting
decision within the international trade union movement weakened its action and its role in promoting
international solidarity, and hampered its ability to take stances and act concertedly in resolving the
problems of the workers. "Internationally, and domestically in certain countries, the issues of the
independence and the purpose of trade union action in defending demands, meeting the needs of the
workers, and responding to their desires for democracy, the defence of human rights and unity, have
often been considered to be of secondary importance in
trade union practices and concepts. The responsibility of each individual and of the masses is
decisive. The upheavals that have occurred have merely strengthened the demand for trade unionism to
maintain independence in its judgments, decisions and action, whatever the circumstances, and to be
fully democratic. This constitutes the basis of the respect for the principles of trade unionism."
(paragraphs 24-26)

Eleven World Trade Union Congresses have been organised by the WFTU over the 46 years since the
Milan Congress in 1949. These Congresses which have all been highly representative in character confirm
the correctness of the decision of the Milan Congress to continue the activities of the WFTU as an
organisation striving for unity and international solidarity of workers and trade unions in all countries,
to carry forward the aims and objectives of its founding Congress in Paris in 1945 and seeking areas of
agreement to promote unity and united action in the world trade union movement. These Congresses
became broad platforms for the world trade union movement to exchange views and to decide on
strategies and policies to advance the struggles of the workers in all countries for their rights. The policy of
the WFTU to hold such Congresses as open forums has actively helped the development of
international trade union cooperation. The 13th World Trade Union Congress (Damascus, 1994) was
attended by
418 participants from 160 national, local, regional and international trade union organisations,
representing more than 300 million workers from 84 countries on every continent.

The WFTU therefore proclaims its prime objective is to contribute to the emancipation of the working
people by means of struggle:
• against all forms of exploitation of people and for obtaining and guaranteeing
living and working conditions for all workers which would allow them the widest possible benefits
from the fruits of their labour, in order to obtain for them and their families the time and the
means to live in conditions appropriate to our
epoch which is one marked by the headlong progress of science and technology:
• against colonialism, imperialism, domination and expansionism in the economic, social, political
and cultural spheres; for the elimination of racism and underdevelopment; to guarantee
sovereignty, freedom and security of nations, non-interference in their internal affairs, respect for
their political, economic and
social independence and the establishment of a new and just international economic order;
• for the right to full employment and the guarantee of this right;
• for full and adequate social security legislation to protect workers and their families in the
event of sickness and old age, and every other type of assistance
and social security;
• for training, education and culture for all workers, thus enabling them to gain access to any
responsibility or position within their capabilities;
• for protection of the working environment, effective measures to maintain and promote
ecological standards and sustainable development.
• for the achievement of social, economic and political democracy, the defence and development of
workers' and trade unions' rights and freedoms, respect for human rights and the
implementation of the Universal Declaration of Trade Union Rights.
• for the prevention of a nuclear war and the dissolution of all military alliances
and blocs; against aggression and war and to promote international detente, the establishment of a
just and lasting peace, peaceful coexistence and mutually advantageous cooperation amongst
all peoples and among States; an end to the arms race, especially in nuclear arms and the total
prohibition and elimination
 of nuclear weapons; and progressive arms reduction leading to general and complete
disarmament.

6.2 INTERNATIONAL CONFEDERATION OF FREE TRADE UNIONS (ICFTU)

The International Confederation of Free Trade Unions (ICFTU) is the world's principal organization
of national trade union federations. The ICFTU was formed in 1949 by Western trade union federations
that had withdrawn from the World Federation of Trade Unions (WFTU) after bitter disagreements
with the communist-led unions in the WFTU. The International Confederation of Free Trade Unions
(ICFTU), was set up in 1949 and has 233 affiliated organisations in 154 countries and territories on all
five continents, with a membership of 145 million, 40% of who are women. It has three major regional
organisations, APRO for Asia and the Pacific, AFRO for Africa, and ORIT for the Americas. It also
maintains close links with the European Trade Union Confederation (ETUC) (which includes all ICFTU
European affiliates) and Global Union Federations, which link together national unions from a particular
trade or industry at international level.

It is a Confederation of national trade union centres, each of which links together the trade unions of that
particular country. Membership is open to bona fide trade union organisations that are independent of
outside influence, and have a democratic structure. The ICFTU cooperates closely with the International
Labour Organisation and has consultative status with the United Nations’ Economic and Social Council
and with specialised agencies such as UNESCO, FAO, etc. It maintains contacts with the International
Monetary Fund, the World Bank and the World Trade Organisation and has offices in Geneva, New
York and Washington.

The ICFTU organises and directs campaigns on issues such as:

Ø the respect and defence of trade union and workers' rights,
Ø the eradication of forced and child labour,
Ø the promotion of equal rights for working women,
Ø the environment,
Ø education programmes for trade unionists all over the world,
Ø encouraging the organisation of young workers,
Ø sends missions to investigate the trade union situation in many countries.

The five main ICFTU priorities are:

Ø employment and international labour standards,
Ø tackling the multinationals,
Ø trade union rights,
Ø equality, women, race and migrants,
Ø trade union organisation and recruitment.

7.1 MINISTRY OF LABOUR

The Conciliation Division of the Labour Administration Division of the Ministry of Labour and Co-
operatives performs the primary labour conciliation services for Trinidad and Tobago. The division is
headed by the Chief Labour Relations Officer who reports to the Director of the Labour Administration. The
establishment provides for four (4) Senior Labour Relations Officers, six (6) Labour Relations Officer
II and seven (7) Labour Relations Officer I. The Division undertakes conciliation in all labour
disputes emanating from the private sector and from certain areas of the public sector.
 ACTIVITIES UNDERTAKEN BY THE CONCILIATION DIVISION
• Conciliation in trade disputes
• Acknowledgement of trade disputes
• Processing of requests for extensions of time for the reporting of trade disputes under the IRA
• Preparation and/or submission of memoranda of agreement to the Industrial Court
• Processing of certificates of unresolved disputes and referrals to the Industrial Court
• Processing of proposals for collective agreements
• Vetting of collective agreements prior to submission to the Industrial Court for registration
• Maintaining the Ministry's records relating to:
o certification and recognition of trade unions by the Registration,
Recognition and Certification Board
o name changes (employer or union)
o variation of bargaining units
• Submission to the Registration, Recognition and Certification Board of queries
of membership in good standing
• Processing of claims for severance benefits prior to referral to the Industrial court-
retrenchment and severance benefits act refers
• Attending to "Labour Problems"
• Monitoring the industrial relations scene and submitting written reports
• Participation in "non-crisis" meetings
• Conducting lectures/seminars on industrial relations issues for schools, unions,
employers, nongovernmental organizations and other such organizations
• Membership on boards and committees
• Membership in respect of the ILO/CARICOM unit of the Ministry of Labour and Co-operatives

8.0 INDUSTRIAL COURT

The Industrial Court is a superior court of record. As a superior court of record, it has a status that is
equivalent to that of the High Court of Justice. It is a specialist court and because of its specialised
jurisdiction, it is not comprised solely of lawyers but has other members who possess a variety of skills,
particularly in industrial relations, economics and accountancy.

The principal role of the Industrial Court is to settle unresolved disputes and other matters which
arise between trade unions and/or workers and employers under the Industrial Relations Act, the
Retrenchment and Severance Benefits Act, the Maternity Protection Act and the Minimum Wages
(Amendment) Act.

JURISDICTION OF THE INDUSTRIAL COURT

7 . (1) …the Court shall have jurisdiction -
(a ) to hear and determine trade disputes;
(b ) to register collective agreements and to hear and determine matters relating to the registration
of such agreements;
(c) to enjoin a trade union or other organization or workers or other persons or an employer from
taking or continuing industrial action;
(d ) to hear and determine proceedings for industrial relations offences under this Act;
 (e) to hear and determine any other matter brought before it, pursuant to the provisions of this
Act.

POWERS OF THE INDUSTRIAL COURT

1 0 . (1) The Court may in relation to any matter before it -
(a ) remit the dispute, subject to such condition as it may determine, to the parties of the Minister for
further consideration by them with a view to settling or
reducing the several issues in dispute;
(b ) make an order or award…

(2 ) …award compensation on complaints brought and proved before it by a party for whose
benefits the order or award was made regarding any breach or non- observance of an order or
award of any term thereof…
(a ) dismiss any matter or part of a matter…

(3 ) …the Court in the exercise of its powers shall –

(a ) make such order or award in relation to a dispute before it as it considers fair and just, having
regard to the interests of the persons immediately concerned
and the community as a whole;
(b ) act in accordance with equity, good conscience and the substantial merits of the case before
it, having regard to the principles and practices of good industrial relations.

IMPACT OF THE INDUSTRIAL COURT ON INDUSTRIAL RELATIONS

(a ) Dismissal of workers
- reinstatement of workers
- reason for dismissal

(b ) Difficulty of trade unions in obtaining recognition

(c) Industrial Relations Offence of failure to meet and treat (recognise; negotiate in good faith)
(d ) Binding status of collective agreements
(e) The development of industrial relations specialists and advocates

JUDGES OF INDUSTRIAL COURT NEED SECURITY OF TENURE

LENNOX FORDE Monday, December 8 2003

PRESIDENT of the Industrial Court Addison Khan has identified two defects in the present system for the
resolution of trade disputes in Trinidad and Tobago.

The first concerns the failure to grant security of tenure for judges of the Industrial Court and the other
relates to freedom of access to the court. “The time has come when individuals should be granted free
access to the court, instead of having to gain access through a trade union,” said Khan. He made his
observations at a recent International Labour Organisation seminar in Barbados.

Theme of the seminar was “The Beneficial Effects of the Present System for the Resolution of
Trade Disputes in Trinidad and Tobago.” Tracing the birth of legislation to handle industrial relations in
Trinidad and Tobago, Khan noted: “The record of industrial relations in Trinidad and Tobago is
replete with numerous instances of absolute refusal by employers to accord formal recognition to trade
unions representing
workers.” He said recognition was granted only as a last resort and that even after recognition was
granted, employers continued to regard the trade union with suspicion.

Khan said the new system has brought a substantial measure of stability to industrial relations in Trinidad
and Tobago. “Both trade unions and employers prefer to utilise the procedures in the Industrial Relations
Act for settlement of their disputes with employers in place, instead of the unsatisfactory and primitive
method of industrial action,” said Khan. He noted too that the judgments of the Industrial Court were
well respected and constitute a body of principles that are used by employers, trade unions and workers for
guidance in their daily relations.

According to Khan, the system has produced a new breed of lawyers and industrial relations
consultants who specialise in industrial relations law. He also pointed out that the system for the resolution of
trade disputes concerning the dismissals of workers was in full accord with the Convention and
Recommendations of the ILO. “The unfortunate experiences of the abuse of the strike weapon by trade
unions in the early 1960s should serve as a constant reminder that the Industrial Court plays an essential
and pivotal role in safeguarding the economy of the country as a whole,” Khan said.

9.1 INTERNATIONAL LABOUR ORGANISATION

H IS T O R Y

The International Labour Organization was created in 1919, at the end of the First World War, at the time of
the Peace Conference which convened first in Paris, then at Versailles. The need for such an
organization had been advocated in the nineteenth century by two industrialists, Robert Owen (1771-
1853) of Wales and Daniel Legrand (1783-1859) of France.

After having been put to the test within the International Association for Labour Legislation,
founded in Basel in 1901, their ideas were incorporated into the Constitution of the International
Labour Organization, adopted by the Peace Conference in April of 1919.

The initial motivation was humanitarian. The condition of workers, more and more numerous and
exploited with no consideration for their health, their family lives and their advancement, was less and
less acceptable. This preoccupation appears clearly in the Preamble of the Constitution of the ILO,
where it is stated, "conditions of labour exist involving ... injustice, hardship and privation to large
numbers of people."

The second motivation was political. Without an improvement in their condition, the workers, whose
numbers were ever increasing as a result of industrialization, would create social unrest, even
revolution. The Preamble notes that injustice produces "unrest so great that the peace and harmony of
the world are imperilled."

The third motivation was economic. Because of its inevitable effect on the cost of production, any
industry or country adopting social reform would find itself at a disadvantage vis-à-vis its
competitors. The Preamble states that "the failure of any nation to adopt humane conditions of labour
is an obstacle in the way of other nations which desire to improve the conditions in their own countries."
Another reason for the creation of the International Labour Organization was added by the participants of
the Peace Conference, linked to the end of the war to which workers had contributed significantly both on
the battlefield and in industry. This idea appears at the very beginning of the Constitution: "universal and
lasting peace can be established only if it is based upon social justice."

The ILO Constitution was written between January and April, 1919, by the Labour Commission set
up by the Peace Conference. The Commission was composed of representatives from nine
countries, Belgium, Cuba, Czechoslovakia, France, Italy, Japan, Poland, the United Kingdom and the
United States, under the chairmanship of Samuel Gompers, head of the American Federation of Labour
(AFL). It resulted in a tripartite organization, the only one of its kind bringing together
representatives of governments, employers and workers in its executive bodies. The ILO
Constitution became Part XIII of the Treaty of Versailles.

The first annual International Labour Conference, composed of two representatives from the government,
and one each from employers' and workers' organizations from each Member State, met in Washington
beginning on 29 October 1919. It adopted the first six International Labour Conventions, which dealt
with hours of work in industry, unemployment, maternity protection, night work for women, minimum
age, and night work for young persons in industry.

The Governing Body, the ILO executive council elected by the Conference, half of whose members are
government representatives, one-fourth workers' representatives and one- fourth employers'
representatives, chose Albert Thomas as the first Director of the International Labour Office, which is
the permanent Secretariat of the Organization. He was a French politician with a deep interest in social
questions and a member of the wartime government responsible for munitions. He gave the
Organization a strong impetus from the very beginning. In less than two years, 16 International
Labour Conventions and 18 Recommendations had been adopted.

The ILO was set up in Geneva in the summer of 1920. The zeal which drove the Organization was
very quickly toned down. Certain governments felt that there were too many Conventions, the publications
were too critical and the budget too high. Thus everything had to be reduced. Nevertheless, the
International Court of Justice, under pressure from the Government of France, declared that the ILO's
domain extended also to international regulation of conditions of work in the agricultural sector.

In 1926, an important innovation was introduced when the International Labour Conference set up
a supervisory system on the application of its standards, which still exists today. It created the
Committee of Experts composed of independent jurists responsible for examining government reports
and presenting its own report each year to the Conference.

In 1932, after having assured the ILO's strong presence in the world for thirteen years, Albert Thomas
suddenly died. His successor, Harold Butler of England, his deputy since the birth of the Organization, was
soon confronted by the Great Depression with its resulting massive unemployment. During this
period, workers' and employers' representatives confronted each other on the subject of the reduction of
working hours, without any appreciable results. In 1934, under the presidency of Franklin D. Roosevelt, the
United States, which did not belong to the League of Nations, became a Member of the ILO.
In 1939, John Winant, an American who was a former Governor of New Hampshire, the first head of the
American Social Security System, then Deputy Director of the ILO, succeeded Harold Butler who had
resigned. His main task was to prepare the Organization for the imminent war. In May 1940, the situation
in Switzerland, isolated and threatened in the heart of a Europe at war, led the new Director to
move the headquarters of the Organization temporarily to Montreal, Canada. In 1941, President
Roosevelt named him Ambassador of the United States in London, where he replaced Joseph Kennedy.

Edward Phelan of Ireland was named Director in 1941. He knew the ILO in depth, having participated in the
drafting of its Constitution. He played an important role once again during the Philadelphia meeting of the
International Labour Conference, in the midst of the Second World War, attended by representatives of
governments, employers and workers from 41 countries. The delegates adopted the Declaration of
Philadelphia which, annexed to the Constitution, still constitutes the Charter of the aims and objectives of
the ILO. In 1948, still during the period of his leadership of the ILO, the International Labour
Conference adopted Convention No. 87 on freedom of association and the right to organize.

The Englishman Wilfred Jenks, Director-General from 1970 until his death in 1973, was faced with a
politicization of labour problems resulting from the East-West conflict. His profound knowledge of the
Organization served him well in this task. In fact, he had been co-author with Edward Phelan of the
Declaration of Philadelphia. A renowned jurist, he was a firm advocate of human rights, the rule of the
law, tripartism and the moral authority of the ILO in international problems. He made a major
contribution to the development of standards and the mechanisms for supervising their application, and
particularly to the promotion of freedom of association and of the right to organize.

He was succeeded by Francis Blanchard, formerly a senior French Government official. Mr. Blanchard had
spent the best part of his career with the ILO, where he played an active part in the large-scale
development of technical cooperation. Both a diplomat and a man of conviction, he remained in that post
for fifteen years, from 1974 to 1989. He succeeded in averting major damage to the ILO when a crisis
triggered by the withdrawal of the United States from the Organization (1977 to 1980) resulted in the loss
of one- fourth of its budget. The United States returned to the Organization at the beginning of the Reagan
Administration. During this period, the ILO resolutely continued its work in defence of human rights.
Thus, the ILO played a major role in the emancipation of Poland from dictatorship, by giving its full
support to the legitimacy of the Solidarnosc Union based on respect for Convention No. 87 on freedom of
association which Poland had ratified in 1957.

In 1989, Michel Hansenne, former Belgian Minister of Employment and Labour and of the Civil Service,
became the first Director-General of the post-Cold War period. Re- elected for a second term in 1993,
he indicated that his primary responsibility was to lead the ILO into the 21st century with all the moral
authority, professional competence and administrative efficiency which the Organization has demonstrated
for 75 years. In the face of new challenges, he intends to give the ILO the means to play a full part in the
major international councils on economic and social development, in order to place social justice at the
heart of the debate. He has set the ILO on a course of greater decentralization of activities and
resources away from Geneva under the ILO's Active Partnership Policy.
On 4 March 1999 Juan Somavia, an attorney by profession, took up office as the ILO's ninth Director-
General. Mr. Somavia has had a long and distinguished career in civil and international affairs, serving,
inter alia, as Chairman of the preparatory Council of the World Summit for Social Development (held in
Copenhagen in 1995) and President of the UN Economic and Social Council (from 1993 to 1994). He
has held the post of Ambassador of Chile and served as an Adviser to the Foreign Minister of Chile
on Economic and Social Affairs. He was born on 21 April, 1941, and earned degrees in law and economics
from the Catholic University of Chile and the University of Paris.

MANDATE
The International Labour Organization is the UN specialized agency which seeks the promotion of
social justice and internationally recognized human and labour rights. It was founded in 1919 and is the
only surviving major creation of the Treaty of Versailles which brought the League of Nations into
being and it became the first specialized agency of the UN in 1946.

The ILO formulates international labour standards in the form of Conventions and Recommendations
setting minimum standards of basic labour rights: freedom of association, the right to organize,
collective bargaining, abolition of forced labour, equality of opportunity and treatment, and other
standards regulating conditions across the entire spectrum of work related issues. It provides technical
assistance primarily in the fields of:

• vocational training and vocational rehabilitation;

• employment policy;
• labour administration;
• labour law and industrial relations;
• working conditions;
• management development;
• cooperatives;
• social security;
• labour statistics and occupational safety and health.

It promotes the development of independent employers' and workers' organizations and provides training
and advisory services to those organizations. Within the UN system, the ILO has a unique tripartite
structure with workers and employers participating as equal partners with governments in the work of its
governing organs.
STRATEGIC OBJECTIVES
1 . Promote and realize standards and fundamental principles and rights at work
• Standards and fundamental principles and rights at work
• Child labour
• Normative action

2 . Create greater opportunities for women and men to secure decent employment and income
• Employment policy support
• Knowledge, skills and employability
• Employment creation

3 . Enhance the coverage and effectiveness of social protection for all

• Social security
• Working conditions.

4 . Strengthen tripartism and social dialogue

• Social partners
• Governments and institutions of social dialogue

5 . Cross-cutting activities
• Shaping the ILO agenda: Decent Work: Inter-sectoral Operational Support
• Shaping the ILO agenda: Gender equality
• Expanding knowledge: Statistics
• Expanding knowledge: International Institute for Labour Studies
• Expanding knowledge: International Training Centre of the ILO, Turin.
• Improving awareness of ILO perspectives: External relations and partnerships
• Improving awareness of ILO perspectives: Communications
CORE CONVENTIONS
Name of
Subject No. Aim
C onvention
Freedom of 87 Freedom of Association and The right, freely exercised, of workers and employers,
Association and Protection of the Right to without distinction, to organize for their interests.
Collective Organize (1948)
Bargaining 98 The Application of the Protection of workers who are exercising the right to
Principles of the Right to organize; non-interference between workers' and
Organize (1949) employers' organizations; promotion of voluntary
collective bargaining.
Forced Labour 29 Forced or Compulsory Suppression of forced labour.
Labour (1930)
105 The Abolition of Forced Prohibition of the recourse to forced or compulsory
Labour (1957) labour in any form for certain purposes.

Non- 100 Equal Remuneration for Men Equal remuneration for men and women for work of
D iscrim ination and Women Workers for Work equal value.
of Equal Value (1951)

111 Discrimination in Respect of To promote equality of opportunity and

Employment and Occupation treatment in respect of employment and
(1958) occupation.
Minimum Age 138 Minimum Age for The abolition of child labour. The minimum admission
Admission to to employment or work shall be not less than the age of
Employment (1973) completion of compulsory schooling (normally not less
than 15 years).

Worst Forms of 182 The Prohibition and Prohibition and elimination of the worst forms of labour
Child Labour Immediate Action for the carried out by all persons under the age of 18. The worst
Elimination of the Worst forms of child labour comprises: (a) all forms of slavery
Forms of Child Labour (1999) or practices similar to slavery, such as the sale and
trafficking of children, debt bondage and serfdom and
forced or compulsory labour including forced or
compulsory recruitment of children for use in armed
conflict; (b) the use, procuring or offering of a child for
prostitution, for the production of pornographic
performances; (c) the use, procuring or offering of a
child illicit activities, in particular for the production and
trafficking of drugs as defined in the relevant
international treaties; (d) work which, by its nature or
circumstances in which it is carried out, is likely to harm
the health, safety or morals of children.
LECTURE 4 (WEEK 5)
SOURCES OF INDUSTRIAL RELATIONS LAW

The principles and practices of good industrial relations in Trinidad and Tobago are derived from four
main sources:

1.INTERNATIONAL LABOUR ORGANIZATION CONVENTIONS. THE FOLLOWING ARE THE

FUNDAMENTAL LABOUR CONVENTIONS.

ü ILO Convention 29 – Forced Labour Convention, 1930.

ü ILO Convention 87 – Freedom of Association and Protection of the Right to Organize,
1948. A worker cannot be discriminated against by his employer
because he belongs to a trade union.
ü ILO Convention 98 – Right to Organize and Collective Bargaining Convention, 1949.
Individual contracts cannot be amended if there is a Collective Agreement in place.
ü ILO Convention 100 – Equal Remuneration for Men and Women Workers for
Equal Value Convention, 1951
ü ILO Convention 105 – Abolition of Forced Labour Convention, 1957
ü ILO Convention 111 – Discrimination (Employment and O ccupation)
Convention, 1958
ü ILO Convention 138 – Minimum Age Convention, 1973
ü ILO Convention 182 – Worst Forms of Child Labour Convention, 1999

Khan: Industrial Court is not to terrorise employers, workers, or unions

Friday, July 25 2003

THE PRESIDENT of the Industrial Court, Addison Khan, assured employers yesterday that the
Court’s duty is not to terrorise them, nor workers and trade unions. “It is to resolve disputes
between parties - justly and fairly, and in accordance with the requirements of the Industrial
Relations Act (IRA),” said Khan.

He was addressing members of the Chamber of Industry and Commerce on the subject:
“Understanding the procedures and the presentation of cases at the Industrial Court.” He told
employers: “Industrial law is a specialised field and the preparation of cases requires a fair
measure of skill. It requires dedication and practice.” Mr Khan made it clear that preparing a
case for the Court starts long before a report of a dispute is made to the Minister. “It begins when
an employer receives a complaint against a worker. “Thorough investigation of the complaint is
required. Written statements should be obtained from all potential witnesses. If disciplinary action
is to be taken against a worker, then it is important that the worker be given full particulars of the
allegations made against him or her, and most importantly, the worker should be given an
opportunity to be heard in his defence, before the disciplinary action is effected,” explained Khan.
He said it was regrettable that even though the Court has been in existence since 1965, there are
very few practitioners who are competent in presenting cases before it. “Many
 employers lose their cases because of the lack of preparation and/or improper presentation by
their representatives,” observed Khan.

He stressed that the Court could only act on evidence. “If the evidence is not properly
presented, the Court can only make an assessment of a case on the basis of the evidence
before it.” On the subject of adjournment of cases, Khan said employers should insist that their
cases are heard when they are fixed for hearing. “Adjournments cost money. This is particularly
important in dismissal cases. “Some employers purposely delay, hoping for some miracle to
occur, so that the case may be dropped. “But the longer the time a dismissal case takes to be
heard, the more damages the employer will have to pay, if an order of reinstatement, or
damages is made against him.” He explained that one of the factors taken into account in
assessing damages is length of time the worker has been away from work. Khan also stressed that
those who appear before the Court, should be aware of the important judgment given over the
years. “To overlook such judgments is to deprive yourself of one of the most important
tools of preparation,” he added. He also told the employers that ILO Conventions provide another
useful source of guidance, and these can be obtained from the ILO website. Noting that
there is no textbook dealing specifically with Trinidad and Tobago’s Labour Law, Mr Khan
said: “This places an additional burden on the industrial relations practitioner.”

2. GENERAL PRACTICES AND PRINCIPLES

The Principles and Practices of good Industrial Relations have been defined by Rees, J. in Caribbean
Printers Limited v Union of Commercial and Industrial Workers, CA no. 32 of 1972. They are

“all those informal uncodified understandings which are ancient

habits of dealing adopted by Trade Unions and acquiesced in or
agreed to by employers. The principles and practices of good industrial
relations are clearly not law. They are useful and convenient practices,
which have long been observed and understood to govern the
relationships of employers and employees in the diverse and varying
conditions of persons in the field of industry.”

3. STATUTORY LAW

A. LABOUR LAW IN THE PRE-INDUSTRIAL RELATIONS ACT, CH. 88:01 ERA

There were many laws in place to deal with industrial relations issues before the enactment of the
Industrial Relations Act, 1972.
v Industrial Training Ordinance, Ch. 22 No. 4 [21 March 1931]
v Labour Bureau Ordinance, Ch. 22 No. 2 [13 June 1919]
v Labour (Minimum Wage) Ordinance, Ch. 22 No. 3 [02 May 1935]
v Masters and Servants Ordinance, Ch. 22 No. 4 [08 December 1938]
v Employment of Women (Night Work) Ordinance, Ch. 22 No 5 [20 April 1939]
v Recruitment of Workers Ordinance, Ch. 22 No 6 [1938]
 v Foreign Labour Contracts Ordinance, Ch. 22 No 7 [10 February 1900]
v Trade Unions Ordinance, Ch. 22 No 8 [01 July 1933]
v Trade Disputes (Arbitration and Inquiry) Ordinance, Ch. 22 No 9 [12 May 1938]
v Truck Ordinance, Ch. 22 No 10 [01 January 1920]
v Workmen’s Wages (Protection) Ordinance, Ch. 22 No 11 [14 November 1929]
v Workmen’s Compensation Ordinance, Ch. 22 No 12 [01 January 1927]

The very first piece of legislation regulating labour in Trinidad and Tobago was the Masters and
Servants Ordinance, CAP. 152, 10 September 1846. The key provisions were concerned with breach of
the employment contract (no reasonable cause; wilful absence; failure to fulfil contractual obligations;
negligence; improper conduct; causing damage to the employer’s property).

Masters and Servants Ordinance, Ch. 22 No. 4 [08 December 1938]

An Ordinance relating to Masters and Servants

2 . In this Ordinance –
“contract” includes any agreement, understanding, or arrangement whatsoever on the subject of
wages, whether written or oral, direct or indirect, to which an employer
and any servant are parties, or are assenting, or by which they are mutually bound to
each other;
“employer” includes any master, mistress, foreman, attorney, agent, manager, overseer, clerk, or
other person engaged in the hiring, employing, or superintending the
labour or service of any servant;
“servant” means any mechanic, artisan, artificer, handicraftsman, agricultural or other labourer, any
household or other domestic servant, any driver or conductor of a motor vehicle, and any person
employed in a drogher or other vessel…

3 . (2) No contract for service shall be valid or binding on either of the parties thereto for any longer term
than the period of one year from the time when the service under such contract shall be commenced
according to the terms of the contract.

4 . (2) Every such written contract shall specify, as accurately as may be –

(a ) the general nature of the employment in which the servant is to be engaged;
(b ) when the work is to be performed by the time, the number of hours of daily labour and the
period of the day during which such labour is to be performed;
(c) when the remuneration or any part of it is to be made in kind, the nature and amount and quality
of the articles to be supplied, and the time when and the
places or place at which such articles are to be delivered.

5 . In the absence of any express agreement to the contrary, every contract for service for one month or
more, or continuing from month to month, may be terminated at any time by mutual consent of the parties,
or by either party after the expiration of the first month on giving fourteen days’ notice previous notice to
the other party, or for any such good an sufficient cause as hereinafter provided.

9. (1) No servant’s wages, if contracted for in money may be paid in kind, or, if contracted for in kind be paid
in money, or in any other than the stipulated kind and quality, except
with the express consent of the servant, and any employer who contravenes the provision of this
subsection shall forfeit and pay to the use of the servant such sum not exceeding $50.00…
(2) If any employer shall ill-use any servant or shall not deliver to any servant any articles stipulated
for, and which by the contract of service were to be furnished by the employer to the servant, or if the
articles to furnished shall not be of the stipulated quantity or quality such employer shall forfeit and
pay to the use of the servant such sum not exceeding $50.00…

1 2 [10]. It shall be lawful for any employer to discharge any servant who shall be guilty of any
misconduct or wilful omission or neglect of duty, without notice and without payment of any wages
beyond the wages due at the period of such discharge; and to any complaint made in respect of such
discharge, such misconduct or wilful omission or neglect of duty shall be a sufficient answer.

1 3 [11]. Upon any complaint made by any employer against any servant for refusing or wilfully
neglecting to perform his contract, such servant shall be at liberty to show, by evidence, in answer to
such complaint, that he terminated his service or contract in consequence of misconduct or ill-usage by
his employer, or for some other good and sufficient cause to be determined by the Magistrate.

Industrial Training Ordinance, Ch. 22 No. 4 [21 March 1931]

An ordinance to vest in the Board of Industrial Training the Property of the Royal
Victoria Institute and to Provide for the Promotion of Industrial Training.

7 . The duties of the Board shall be –

(a ) so far as possible to procure, and to enter into agreements for procuring, the training of
apprentices;
(f) to settle disputes arising between masters and apprentices, and to transfer apprentices to new
masters when desirable;
(g ) to arrange as far as possible for the technical education of the artisans and apprentices…

1 2 . Any master who shall take on any apprentice or probationary apprentice without the previous
knowledge and consent of the Board shall be liable to a fine of $24.00.

1 3 . Every master of any apprentice who wilfully refuses or neglects to conform to the terms of the
terms or conditions imposed upon him by contract in respect of such apprentice shall be liable to a
fine of $48.00.

1 4 . Every apprentice who wilfully refuses or neglects to conform to the terms or conditions of
his apprenticeship, or quits his master’s service without the leave of such master, shall be liable to a fine of
$24.00…

Labour Bureau Ordinance, Ch. 22 No. 2 [13 June 1919]

An ordinance to provide for the establishment of a Labour Bureau.
2. In this ordinance “Bureau” means the Labour Bureau established under this Ordinance for the
purpose of collecting and furnishing information, either by the keeping of registers or otherwise,
respecting employers who desire to engage workmen and workmen who seek engagement or
employment, and includes any branch of such Bureau.

Labour (Minimum Wage) Ordinance, Ch. 22 No. 3 [02 May 1935]

2. (1) Whenever the Governor in Council is satisfied that the wages paid in the Colony or any part of
the Colony for any occupation are unreasonably low, he may by proclamation fix a minimum rate
of wage for that occupation.

4. (1) Where a minimum rate of wage fixed by the Governor in Council had become effective an
employer shall in cases to which the minimum rate is applicable, pay wages to the person employed at not
less than the minimum rate clear of all deductions and if he fails to do so he shall be liable, on summary
conviction, in respect of each offence to a fine of one hundred dollars, and also to a fine of twenty five
dollars for each day on which the offence is continued after conviction therefore.

6. Any agreement for the payment of wages in contravention of the provision of this Ordinance shall
be void.

Employment of Women (Night Work) Ordinance, Ch. 22 No 5 [20 April 1939]

An Ordinance relating to the Employment of Women during the Night in Industrial
Undertakings.

2 . In this Ordinance –
“industrial undertaking” includes –
(a ) mines, quarries, and other works for the extraction of minerals from the earth;
(b ) industries in which articles are manufactured, altered, cleaned, repaired,
ornamented, finished, adapted for sale, broken up or
demolished, or in which materials are transformed, including ship- building, and
the generation, transformation, and transmission of electricity or motive power of
any kind;
(c) construction, reconstruction, maintenance, repair, alteration, or demolition of
any building, railway, tramway, harbour, dock, pier,
canal, inland waterway, road, tunnel, bridge, viaduct, sewer, drain, well,
telegraphic or telephonic installation, electrical undertaking, gas work, water work,
or other work of construction, as well as the preparation for or laying the
foundations of any such work or structure;
“night work” means work in an industrial undertaking during any portion of a
period of eleven consecutive hours including the hours of 10:00 in the evening and 5:00 on the
morning.

6 . The provisions of section 5 shall not apply –

 (a ) to an industrial undertaking in which only members of the same family are employed;
(b ) to women holding responsible positions of management who are not ordinarily
engaged in manual work;
(c) to a case where… the night work complained of was due to a cause beyond control bringing about an
interruption of work which it was impossible to foresee and which is not of a recurring
character, or where the work has to do with raw materials or materials in course of
treatment which are subject to rapid
deterioration and when such night work is necessary to preserve the said materials from
certain loss;
(d ) to the preparation and packing of fresh fruit for immediate shipment.

Recruitment of Workers Ordinance, Ch. 22 No 6 [1938]

An Ordinance to Regulate the Recruiting of Workers

2 . (1) In this Ordinance –

“worker-recruiter” means a person who, being employed as a worker, is authorised in writing by
his employer to recruit other workers on behalf of his employer,
but who does not receive any remuneration or other advantages for such recruiting.

(2) A person recruits within the meaning of this Ordinance who by himself or through others procures,
engages, hires or supplies or undertakes or attempts to procure, engage, hire or supply workers for
the purpose of being employed by himself or by any other person, so long as such worker does not
spontaneously offer his services at the place of employment…

3 . Not applicable to the recruiting of personal or domestic servants or non-manual workers.

5. Persons under the age of 18 years shall not be recruited:

Provided that the Governor may by regulations permit persons under that age but of or above
the age of 14 years to be recruited with the consent of their parents or guardians for employment in the
Colony upon light work subject to such conditions as
he may prescribe.

Foreign Labour Contracts Ordinance, Ch. 22 No 7 [10 February 1900]

An Ordinance relating to Foreign Labour Contracts.

7 . Every contract which under the authority of this Ordinance shall be entered into between any
employer and any other person for the performance of any work as a labourer in a foreign country
shall be in writing, and shall contain –
(a ) a statement of the description and nature of the work or service to be performed or
rendered thereunder;
(b ) the name of the country, and the place of locality within such country, where such work or
services is to be performed or rendered;
(c) the name of the country and town or place where is situate the office or place of business of the
employer;
 (d ) the amount of wages and rations to be paid and allowed to the labourer;
(e) the specified for such payments and allowances;
(f) a condition that the labourer shall not be left destitute in that country, but shall at the
expiration of sooner determination of his contract be repatriated
by his employer, and at the cost and charges of such employer.

Trade Unions Ordinance, Ch. 22 No 8 [01 July 1933]

An Ordinance relating to Trade Unions.

Trade Disputes (Arbitration and Inquiry) Ordinance, Ch. 22 No 9 [12 May 1938]
An Ordinance to provide for the establishment of an Arbitration Tribunal and a Board
of Inquiry in Connection with Trade Disputes, and the make Provision for the Settlement of such Disputes,
and for the Purpose of Inquiring into Economic and
Industrial Conditions in the Colony.

2. (1) For the purposes of this Ordinance –

“trade dispute” means any dispute or difference between employers and workmen, or between
workmen and workmen, connected with the employment or non-
employment, or the terms of the employment, or with the conditions of labour, of any person;
“workman” means any person who has entered into or works under a contract with an employer
whether the contract be by way of manual labour, clerical work, or otherwise, be expressed or implied,
oral or in writing, and whether it be a contract of
service or of apprenticeship or a contract personally to execute any work or labour.

Truck Ordinance, Ch. 22 No 10

[01 January 1920]
An Ordinance to Prohibit the Payment of Wages otherwise than in Money.

2 . In this Ordinance –
“labourer” means any person employed for wages in work of any kind, and whether under or
above the age of 21 years, but does not include domestic servants.

3 . In every agreement or contract for the hiring of any labourer or for the performance by any
such labourer of any work within the Colony, except as otherwise provided in this Ordinance,
the wages of such labourer shall be made payable in money, and not otherwise, and if in any such
agreement or contract the whole or any part of such wages shall be made payable in any other
manner, such agreement or contract shall be illegal, null, and void.

4 . No employer shall, directly or indirectly, by himself or his agent, impose as a condition,

expressed or implied, in any agreement or contract for the employment of any labourer, any terms as
to the place or the manner in which, or the person with whom, any wages or portion of wages
paid to the labourer are or is to be expended, and every agreement or contract between an
employer and a labourer wherein any such terms are expressed or implied shall be illegal, null, and
void.
 5 . Except where otherwise permitted by the provisions of this Ordinance, the entire amount of the
wages earned by or payable to any labourer in respect of any work done by him shall be actually
paid to him in money, and every payment of or on account of any such wages made in any other
form shall be illegal, null, and void.

Workmen’s Wages (Protection) Ordinance, Ch. 22 No 11 [14 November 1929]

An Ordinance to Prohibit the Payment of Wages in Premises Licensed for the Sale of
Intoxicating Liquor and to Regulate the Attachment of Moneys due as Wages.

Workmen’s Compensation Ordinance, Ch. 22 No 12 [01 January 1927]

An Ordinance to Provide for the Payment of Compensation to Workmen for Injuries
Suffered in the Course of their Employment.

4 . (1) If personal injury is caused to a workman by accident arising out of and in the course of his
employment, his employer shall be liable to pay compensation in accordance with the provisions
of this Ordinance:
Provided that the employer shall not be so liable –
(a ) in respect of any injury which does not result in the total or partial disablement or
the workman for a period exceeding ten days;
(b ) in respect of any injury to a workman resulting from an accident which is directly
attributable to –
(ii) the workman having been at the time thereof under the influence of
drink or drugs, or
(iii) the wilful disobedience of the workman to an order expressly given, or to a
regulation or rules expressly made, for the purpose of securing the safety of
workmen, or
(iv) the wilful removal or disregard by the workman of any safety guard
or other device which he knew to have been provided for the purpose of securing the
safety of workmen.
(2) No compensation shall be payable to a workman in respect of any disease unless the
disease is solely and directly attributable to a specific injury by accident arising out of and in
the course of his employment…

5 . (1) Subject to the provisions of this Ordinance, the amount of compensation shall be as follows,
namely, -
(a ) where death results from the injury, a sum equal to thirty months’ wages or $1200.00,
whichever is less;
(b ) where permanent total disablement results from the injury-
i. in the case of an adult, a sum equal to forty two months’ wages or
$1680, whichever is less, and,
ii. in the case of a minor, a sum equal to eighty four months’ wages or
$1680, whichever is less;
(c) where permanent partial disablement results from the injury –
i. in the case of an injury specified in the Schedule hereto, such percentage of
the compensation payable in the case of permanent
 total disablement as is specified therein as being the percentage of the loss and
earning capacity caused by that injury, and
ii. in the case of an injury not specified in the Schedule hereto, such
percentage of the compensation payable in the case of permanent total
disablement as proportionate to the loss of earning capacity permanently caused
by the injury:
where more injuries than one are caused by the same accident, the amount of
compensation payable under this head shall be aggregated, but
not so in any case as to exceed the amount which would have been payable if permanent total
disablement had resulted from the injuries;
(d ) where temporary disablement, whether total or partial, results from the injury, a ½
monthly payment on the 16th day from the date of the disablement, and thereafter
½ monthly during the disablement or during
a period of five years, whichever period is shorter –
i. in the case of an adult, a sum equal to ¼ of his monthly wages, and
ii. in the case of a minor, of a sum equal to 1/3 or, after he has attained the age of 17
years, to ½ of his monthly wages:
Provided that there shall be deducted from any lump sum or ½ monthly payments
to which the workman is entitled the amount of any payment or allowance which the workman has
received from the employer by way of compensation during the period of disablement prior to the
receipt of such lump sum or of the first ½ monthly payment, as the case may be, and no ½
monthly payment shall in any case exceed the amount, if any, by which ½ the amount of the
monthly wages of the workman before the accident exceeds half the amount of such wages as he is
earning or is able to earn in some suitable employment or business after the accident.

6 . (1) For the purposes of section 4 the monthly wages of a workman shall be calculated as
follows, namely,-
(a ) where the workman has, during a continuous period of not less than twelve months
immediately preceding the accident, been in the service of the employer who is liable to
pay compensation, the monthly wages of the workman shall be 1/12 of the total wages
which have fallen due for
payment to him by the employer in the last twelve months of that period;
(b ) in other cases, the monthly wages shall be thirty times the total wages earned in
respect of the last continuous period of service immediately preceding the accident
from the employer who is liable to pay compensation, divided by the number of days
comprising such period:
Provided that if the amount of the monthly wages arrived at by a calculation under paragraph
(a) or paragraph (b) is more than $60, such monthly wages shall be assumed to be $60.

INDUSTRIAL STABILIZATION ACT, NO. 8 OF 1965

An Act to provide for the compulsory recognition by employers of trade unions and organizations
representative of a majority of workers, for the establishment of an expeditious system for the
settlement of trade disputes, for the regulation of prices of commodities, for the constitution of a court to
regulate matter relating to the foregoing and incidental thereto.
Part I - Relations between Trade Unions, Employers and other Organizations
3. (1) For the purpose of ensuring the preservation of collective bargaining, every employer shall
recognise a trade union or other organization that is representative of 51
or a greater % of the workers employed by him and shall, subject to the provisions of this Act, treat and
enter into such negotiations with any such trade union or organization as may be necessary or expedient
for the prevention or settlement of trade disputes.

* 4. An employer shall not dismiss a worker, or adversely affect his employment, or alter his position to his
prejudice on account of trade union activity.

Part II - Constitution, Powers etc. of Court

5. (1) For the purposes of this Act, there shall be established an Industrial Court.

Part III – Trade Dispute Procedure Part IV –

Industrial Agreements
18. (1) Subject to the provisions of this Part, any trade union or other organization may make an industrial
agreement with any other organization or with the employer… for
the terms of the employment and the conditions of labour of any worker and for the
prevention and settlement of existing or future industrial disputes by conciliation and arbitration.
(2) Every industrial agreement shall contain provisions for the setting up of effective
machinery to deal with grievances of workers. Part V –

Price of Goods

Part VI – Lockouts and Strikes

Part VII – Awards, Duration and Enforcement Part VIII –

General
44. (1) For the purposes of this Act, there may be established an office of Economic and Industrial
Research.

A. Labour Laws in the Post Industrial Relations Act Era

Industrial Relations Act, Ch. 88:01
Employment of Women (Night Work) Act, Ch. 88:12
Factories Ordinance Ch. 30:2
Maternity Protection Act, No. 4 of 1998.
Equal Opportunity Act 2000
Occupational Health and Safety Act 2004

National Labour Law Profile: Trinidad and Tobago

Avril Rahim, Updated by Natacha Wexels-Riser, July 2004*
THE JUDICIARY
In Trinidad and Tobago there exists a Supreme Court of Judicature comprising of the High Court and
the Court of Appeal, both superior courts of record. Under certain circumstances, final appeals go to
the Judicial Committee of the Privy Council of the United Kingdom. There are plans to replace this
avenue of appeal with a Caribbean Court of Justice, which would serve a number of Caribbean countries.

With the exception of the Chief Justice, who is appointed by the President, after consultation with
the Prime Minister and the Leader of the Opposition, all Judges of the Supreme Court are appointed by the
President acting in accordance with the advice of the Judicial and Legal Service Commission. The
judiciary is meant to be and remains an independent arm of the State.

While the Industrial Court established under the Industrial Relations Act, Chap. 88:01 is deemed to be a
superior court of record, it is not considered part of the Judiciary.

FUNDAMENTAL RIGHTS GUARANTEED BY THE CONSTITUTION

The Constitution of Trinidad and Tobago recognizes and guarantees citizens certain basic human rights
and freedoms, such as the right to life, liberty and security, the right to equality before the law and the right
to freedom of expression. The right to freedom of association and assembly is also a fundamental right
protected by the Constitution. This right translates into the right of a person to form and join a
trade union or association. There is no constitutional right to bargain collectively or to strike,
(Collymore and Another v. The Attorney General (1969) 15 WIR 229. The Industrial Relations Act
(hereinafter referred to as the IRA) does however make provisions for collective bargaining between
employers and workers and allows industrial action, including strike action, once taken in accordance
with the IRA.

A list of trade unions established in the country is available in the webpage of the ILO Subregional
Office for the English Speaking Caribbean countries. Employers also have the right to form and join
their own associations. In Trinidad and Tobago the main employers' association is the Employers'
Consultative Association.

LABOUR REGULATION
GENERAL REGULATION
The general industrial relations policy in Trinidad and Tobago is based on voluntary collective
bargaining between employers and workers, via their representative associations, for the settlement of
terms and conditions of employment. The employment relationship in Trinidad and Tobago may be
governed by either or a combination of both industrial relations principles and practices, and legislation.
While the Government has ratified several ILO Conventions, including the Tripartite Consultation
(International Labour Standards) Convention, 1976 (No. 144), these Conventions only become effective
when they are legislatively implemented. A 144 Tripartite Committee, comprising all of the social
partners, trade unions, employers, and Government, is in operation in Trinidad and Tobago with
the responsibility of considering and recommending the ratification of ILO Conventions.

State employees include civil servants, teachers and members of the Protective Services (Fire, Police and
Prison Services). The employment relationship between the State and
its employees is governed generally by legislation, which makes provisions for terms and conditions of
employment including recruitment, hours of work, leave entitlements, payment of remuneration,
pensions, allowances and other benefits. There is legislation which deals specifically with each group,
such as the Civil Service Act, Chap 23:01 for all civil servants, the Police Service Act, Chap. 15:01, as
revised by the Police Service Bill (2003), the Fire Service Act, Chap. 35:50 and the Education Act,
Chap 39:01 for teachers.

The representative associations of monthly paid State employees may bargain collectively with the
Chief Personnel Officer, who is deemed to be the employer of State employees under the IRA. The
subject of these negotiations include wage increases, travelling and other allowances and leave
entitlements. When agreement is reached on a matter the parties enter into a Memorandum of Agreement.
Where this Memorandum affects existing legislation, the legislation is accordingly amended to give
effect to the agreed position. The terms and conditions of employment of daily paid State employees are
contained in collective agreements entered into by their recognized majority union and the Chief
Personnel Officer after collective bargaining.

In the private sector collective bargaining is generally engaged between individual companies with
the respective recognized majority unions, rather than on an industry wide basis. Many companies have
industrial relations or human resources managers who handle negotiations. Companies which do not
have industrial relations professionals may hire private negotiators or practitioners to conduct
negotiations on their behalf. Trade unions have negotiators on their staff.

Those aspects of the employment relationship which could not be left to collective bargaining such
as employee health and safety, minimum age of employment and workers' compensation,
retrenchment and severance benefits and maternity leave are set down in legislation which bind the
State and private employers. The Factories Ordinance (soon to be replaced by the Occupational Safety
and Health Act , assented on 30 January 2004, but still awaiting proclamation, and the Employment
Injury and Disability Benefits Bill ) sets standards for employee health and safety at the workplace. The
Workmen's Compensation Act, to be replaced by the Employment Injury and Disability Benefits
Bill provides compensation where employees are injured on the job, while the Retrenchment and
Severance Benefits Act guarantees the payment of severance pay to retrenched employees. The Maternity
Protection Act provides maternity leave and related benefits to female employees. The Government has also
recognized the need to implement legislation which sets minimum terms and conditions of employment so
that employees are guaranteed a basic level of rights and protection. The IRA sets the stage for the practice
of industrial relations in Trinidad and Tobago. It is the legal framework within which parties bargain
collectively, settle disputes and come before the Industrial Court for arbitration.

THE INDUSTRIAL RELATIONS ACT

During the 1950s and early 1960s the industrial relations climate in Trinidad and Tobago was
growing tense with the development of the trade union movement. There was an increasing number
of strikes and labour disputes which threatened the economic growth and productivity of the country.
The Government could no longer delay in taking legislative action to regulate the relations between
unions, workers and
employers. As a result the Industrial Stabilisation Act, 1965, was enacted. This Act introduced the
concept of compulsory arbitration to Trinidad and Tobago by the establishment of the Industrial
Court. The main function of this Court was to intervene to prevent and settle industrial disputes between
employers and their union represented workers.
The Industrial Stabilisation Act was later repealed and replaced by the Industrial Relations Act,
1972, Chapter 88:01 of the Laws of Trinidad and Tobago. The IRA provides for the following:
• free collective bargaining between employer and workers through their
representative associations,
• the development of a peaceful and expeditious procedure for the settlement of disputes,
• the establishment of the Industrial Court,
• the recognition and registration of trade unions,
• the freedom to be represented by a trade union and the right not to associate, and
• industrial action which may be taken by both employer and employee.
Provision is made for a Tripartite industrial relations advisory committee which has the responsibility of
reviewing the IRA and making recommendations to the Minister of
Labour. This way the Act may keep up with industrial relations trends.
In order to seek the protection and rights afforded by the IRA, a person must fall within the definition of
worker set out in the Act. In the IRA a "worker" is defined as:
• any person who has entered into or works under a contract with an employer to
do any skilled, unskilled, manual, technical, clerical or other work for hire or reward, whether
the contract is expressed or implied, oral or in writing, or partly oral and partly in writing, and
whether it is a contract of service or apprenticeship or a contract personally to execute any work or
labour;
• any person who by any trade usage or custom or as a result of any established
pattern of employment or recruitment of labour in any business or industry is usually employed
or usually offers himself for and accepts employment accordingly; or
• any person who provides services or performs duties for an employer under a labour only
contract, within the meaning of subsection (4)(b); and includes
• any such person who -
i. has been dismissed, discharged, retrenched, refused employment, or not employed, whether
or not in connection with, or in consequence of, a dispute; or
ii. whose dismissal, discharge, retrenchment or refusal of employment has led to a dispute; or
• any such person who has ceased to work as a result of a lockout or of a strike, whether or not in
contravention of Part 5,
as the case may be.

The following categories of workers are, however, excluded from the scope of the IRA:
• a public officer, as defined by section 3 of the Constitution;
• a member of the Defence Force or any ancillary force or service thereof, or of the Police, Fire or
Prison Service or of the Police Service of any Municipality, or a person who is employed as a
rural constable or estate constable;
• a member of the Teaching Service as defined in the Education Act, or is employed
in a teaching capacity by a university or other institution of higher learning;
 • a member of staff and an employee of the Central Bank established under the Central Bank Act;
• a person who, in the opinion of the Board -
i. is responsible for the formulation of policy in any undertaking or business or the effective control
of the whole or any department of any undertaking or business; or
ii. has an effective voice in the formulation of policy in any undertaking or business;
• employed in any capacity of a domestic nature, including that of a chauffeur, gardener or
handyman in or about a private dwelling house and paid by the
householder;
• an apprentice within the meaning of the Industrial Training Act.

The Court has the responsibility of deciding whether a person is a worker under the IRA. The fact that
domestic workers have been excluded by the definition of ‘worker' in the IRA has been an issue of
contention for their association. The Parliament took note and both the Minimum Wages Order, Legal
Notice No. 40 of 1999 and the Maternity Protection Act, No.4 of 1998 included domestic workers as
employees, guaranteeing them the same rights and benefits as other workers.

CONTRACT OF EMPLOYMENT
EMPLOYMENT RELATIONSHIP
A contract of employment in Trinidad and Tobago may be oral or written, express or implied. Common
law is applied by the Industrial Court when determining the question of whether a contract of or a
contract for service exists between a person and an employer. When determining this question the
Court may consider in addition to do the 'control test', the 'organizational test' and the 'economic reality test'.
The test enunciated by Mc Kenna J in the English case of Ready Mixed Concrete (South East) Ltd. v.
Minister of Pensions and National Insurance [1968] 2QB 497, [1968] 1All ER 433 has been
approved and applied by the Industrial Court when determining whether a contract of or for service exists,
for example in IRO 10-13 et al of 1989, and Transport and Industrial Workers Union and Neal and Massy
Industries Limited (1994). It is a question of fact in each case and the Court will go beyond any written
contract to determine the true nature of the relationship.

When a person makes a claim under any piece of labour legislation that provides rights and benefits for
workers, the Industrial Court will first decide whether the person falls within the definition of 'worker' or
'employee' in the particular Act. The approach of the Court when determining this question was stated in
the case of Oilfields Workers' Trade Union and Schlumberger Trinidad Inc. RSBD No. 4 of 1996,

"..that such legislation is to be seen as an instrument of social

engineering and that the Court must not lose sight of its function to
ensure that the intended beneficiaries of such social engineering are not
deprived of their rights by reason of their relatively inferior bargaining
strength."

The terms and conditions under which an employee works may be contained in an individual contract
of employment between the employee and employer, a collective agreement negotiated by the
representative trade union or employee association with the employer or by legislation as is the case with
State employees.
PERMANENT AND FIXED-TERM CONTRACTS OF EMPLOYMENT
As a result of structural adjustment of the economy over the past twenty years the pattern of
employment in Trinidad and Tobago has veered towards an increasing emergence of fixed term
contract employment. This is true in both the public and private sectors. Employers are more willing to sub-
contract tasks or projects and to hire on a fixed term basis rather than to employ persons for an indefinite
period, which is what prevailed in the past. Employers now want the ability to change labour quickly
without much difficulty. This is one aspect of flexibilization of the workforce which is gaining ground
in Trinidad and Tobago.

Because employers may be tempted to use contract labour to escape statutory entitlements of workers and
obligations imposed by collective agreements, the Industrial Court has had to look beyond the fixed term
contract and the claim of independent contractor to discover the reality of the relationship. This occurred
in the Schlumberger case (supra), where the company claimed that since the worker, who was employed
for a period in excess of ten years on consecutive six month contracts, was employed on a fixed term
basis, he did not fall within the definition of ‘worker' in the Retrenchment and Severance Benefits Act,
and was therefore not entitled to severance payment. The Court held that neither the worker nor the
employer could contract out of the Act and found that the worker was in continuous employment with the
Company despite the six month contracts and was thereby entitled to severance pay.

The practice of employment on a fixed term basis has not found favour with the trade unions. Since fixed
term contracts are usually negotiated by the individual worker with the employer, there is no collective
bargaining process and the role of the union is ousted. Most workers under a fixed term contract are
not unionized. More needs to be done on the part of trade unions to attract persons who work on a fixed
term contract basis. These persons include not only construction workers and workers in labour
intensive industries, but a growing number of professionals.

PROBATION
Periods of probation and suspension are only statutorily set down in legislation dealing with the Defence
Force, the Civil, Prison, Police and Fire Services. Generally private sector employers are free to
determine their own probationary terms and suspension provisions. Where there is a recognized majority
union, that union may negotiate these terms for inclusion into the collective agreement.

TERMINATION OF THE CONTRACT OF EMPLOYMENT

GROUNDS FOR TERMINATION
Whether a contract of employment is for a fixed term or for an indefinite period it may be terminated by
either the employer or the worker. There is no legislation governing termination of contract in general in
Trinidad and Tobago, and Common Law applies in the absence of termination provisions in a collective
agreement. There may be termination by performance, by expiry of a fixed term, by agreement of the
parties or by breach. An employer has the right to dismiss an employee for just cause. The Common Law
on summary and constructive dismissal also applies.
NOTICE OF TERMINATION
Usually in collective agreements and individual contracts a requirement for notice of termination is
stipulated. For monthly paid employees this notice period is usually one month.

THE RETRENCHMENT AND SEVERANCE BENEFITS ACT

The Retrenchment and Severance Benefits Act was passed to provide severance payments for retrenched
employees. In order to qualify for this benefit the employee must fall within the definition of ‘worker' in
the IRA, with the following added exceptions:
• workers with less than one year continuous service;
• workers on probation;
• casual workers;
• seasonal workers;
• fixed term workers;
• independent contractors.

The procedure for retrenchment is laid down in the Act, with formal notice in writing required to be
given by the employer to the worker, the recognized majority union and the Minister of Labour where
five or more workers are to be retrenched. Provision is made for consultation between the recognized
majority union and the employer to avert or lessen the effects of redundancy. A formula for the payment of
severance is contained in the Act, with a stipulation that where more favourable benefits are provided
by a collective agreement that applies to the retrenched worker, the collective agreement takes
precedence over the Act. The Retrenchment and Severance Benefits Act is one of a few pieces of
legislation that allows the non-unionized individual worker who alleges non-compliance with the Act, to
take his or her matter to the Industrial Court. The worker may take his or her complaint to the Minister
of Labour where it is reported as a trade dispute and dealt with as such according to the provisions of the
IRA.

REMEDIES IN CASE OF UNJUSTIFIED DISMISSAL

Where an employee alleges wrongful dismissal he or she may seek union representation and failing
settlement, have his or her matter heard and determined by the Industrial Court. Remedies that may be
granted by the Court for wrongful dismissal include reinstatement or re-employment, compensation or
damages, including exemplary damages in lieu of reinstatement. In assessing compensation or damages
the Court is not bound to follow any rule of law, but may make an assessment that is in its opinion fair and
appropriate.

WORKING TIME
HOURS OF WORK
The hours of work for State employees is provided for by legislation. In the private sector hours of work may
be settled in a collective agreement. For employees in general, other than shift workers, the normal hours
of work are eight hours a day, usually from 8:00 am to 4:00 pm, five days a week. The Minimum Wages
Order, Legal Notice No.40 of 1999 attempted to set down hours of work for all workers in Trinidad and
Tobago, including State employees. The Order stipulates that the normal working day shall not exceed
eight hours, exclusive of meal and rest breaks, and the normal working week shall not exceed forty hours.
Where workers work only four days in the week the normal work day shall not exceed ten hours. The
Order also provides meal and rest breaks for
workers. However, the Order only applies to workers who receive an hourly rate of
$10.50 or less, and so unfortunately many workers are excluded.

Unionized workers may rely on their representative associations or trade unions to negotiate fair
hours of work on their behalf. However, non-unionized workers who earn more than $10.50 an hour in
an establishment where no collective agreement exists must fend for themselves.

LEAVE ENTITLEMENTS
There are no statutory leave provisions which apply to workers in general in Trinidad and Tobago. State
employees have leave entitlements set out in legislation which deals with each Service. This includes paid
vacation leave and usually fourteen days paid sick leave, with three working days bereavement leave
where the death occurs in Trinidad and Tobago and five days where it occurs outside.

With the exception of the Police, Prison and Fire Services where special provisions are made since
employees are required to work on Sundays and public holidays, all permanent State employees are
guaranteed paid public holidays. Where an employee is required to work on a public holiday, where
that day is a normal working day the employee is entitled to a day off.

Leave entitlements for Government daily rated workers are provided for in the Collective Agreement
between the Chief Personnel Officer and The National Union of Government and Federated Workers,
1999-2001. In both the public and private sectors employees are only eligible for paid vacation leave after
having twelve months continuous service. The State also provides for no pay leave to be granted to
employees who wish to further their education and leave where the employee holds a post in a trade union.

In the private sector employers and unions may agree on leave entitlements which become part of a
registered collective agreement which is binding on both employer and employees. Where no collective
agreement exists paid public holidays, vacation and sick leave are at the discretion of the employer.

MATERNITY LEAVE AND MATERNITY PROTECTION

Maternity Leave in Trinidad and Tobago is governed by the Maternity Protection Act, No. 4 of 1998
(hereinafter referred to as the MPA) which binds both private employers and the State. The purpose of
the Act is to establish a minimum level of rights and benefits for women workers. It is a provision of the
MPA that it shall not apply where any written law, industrial award or collective agreement prescribes
conditions more favourable than those specified in the MPA.

Prior to the MPA only legislation relating to the Civil Service, including the Police, Fire and Prison
Services contained provisions on maternity leave. Since its enactment the MPA takes precedence over
those provisions, except where those provisions are more beneficial to the employee than the MPA.

Under the MPA the definition of an ‘employee', who is entitled to protection under the MPA, includes
domestic and agricultural workers, and a person working under a
contract of apprenticeship, provided the employee has been in the service of the employer for a
continuous period of no less than twelve (12) months.

Under the MPA female employees are entitled to thirteen (13) weeks maternity leave (six weeks prior to
confinement, 7 weeks after) and one month's pay during such leave. An employee on maternity leave
shall have the right to return to work. To qualify for maternity leave, employees must have worked
for an employer for a period of no less than 12 months. The employee shall also submit a medical
certificate stating the probable date of confinement, as well as a written expression of her intent to return
to work after maternity leave.

An employee whose child dies during the period of leave is entitled to the remaining period of leave
with pay. Where an employee has not as yet proceeded on maternity leave and has a premature birth where
the child dies either at birth or thirteen (13) weeks after, she is still entitled to her full or remaining
period of leave with pay. Under the MPA employees are also allowed time off with pay for the purpose
of receiving prenatal medical care.

As with the Retrenchment and Severance Benefits Act a non-unionized individual employee who
alleges noncompliance with the MPA may report her claim to the Minister of Labour where it is deemed to
be a trade dispute and dealt with as such under the IRA. An employee is therefore not denied her right
of redress, even though she is not a member of a trade union.

MINIMUM AGE AND PROTECTION OF YOUNG WORKERS

The Children Act, Chapter 46:01 states that a child under the age of twelve (12) cannot be employed, while
a person under the age of fourteen (14) shall not be employed in an industrial undertaking or vessel, and
may only be employed in a family undertaking. The Factories Ordinance, Chapter 30 No.2 prohibits the
employment of a 'child' who is defined as a person who has not as yet attained the age of fourteen years.

The Children (Amendment) Act, 2000, amending the Children Act, changes the definition of a 'child'
from a person under fourteen years of age to a person under eighteen years. It defines a 'young
person' as a child over the age of fourteen years of age and under the age of eighteen years.

The Occupational Safety and Health Act, assented on 30 January 2004, but still awaiting
proclamation, prohibits the employment of young persons on dangerous machines.

The Tripartite Committee established by ILO Convention No.144 is currently considering the ratification of
Convention No.138 concerning the minimum age for admission to employment. Until such time,
technically the minimum age for employment in Trinidad and Tobago remains at age fourteen (14).

EQUAL TREATMENT
The Constitution guarantees citizens the general right to equality of treatment from any public authority in
the exercise of any function. The Equal Opportunity Act, No. 69 of 2000 prohibits discrimination of
persons on grounds of sex, race, ethnicity, origin,
marital status, religion or disability. Part III of the Act deals specifically with employment discrimination. In
respect of persons seeking employment, an employer is prohibited from refusing or omitting to offer
employment to a person based on the above grounds of discrimination. Also, an employer shall not
discriminate against an employee with regard to terms and conditions of employment, opportunities for
promotion, transfer or training or any other benefit, facility or service associated with the employment.

There are as yet no statutory provisions concerning sexual harassment and as a result the common law
applies. Homosexuality is still a criminal offence with penal consequences. Discrimination on the basis
of sexual orientation is thus not prohibited.

To ensure compliance with the Act an Equal Opportunity Commission has been established to
work towards the elimination of discrimination by investigating allegations of discrimination,
conducting research and educational programs, and providing guidelines to promote equal opportunity
and good relations among all persons. There is provision in the Act for the establishment of the Equal
Opportunity Tribunal to hear and determine complaints made under the Act, with the power to make an
order for the payment of compensation, damages or fines.

However, the Equal Opportunity Act, No. 69 of 2000 was judged unconstitutional in May 2004. An
appeal was filed against the decision.

PAY ISSUES
MINIMUM WAGE
The national minimum wage in Trinidad and Tobago, set by the Minimum Wages Order, Legal Notice No.
40 of 1999 is $7.00 per hour exclusive of gratuities, service charges and commissions. The Order also
provides that piece and home workers receive no less than the equivalent of the minimum wage.

DETERMINATION OF PAY
The Minimum Wages Order also sets overtime rates. For the first four hours of overtime the worker shall
receive one and one half times the hourly rate. For the next four hours, two times the hourly rate and
thereafter three times the hourly rate. For time worked on an off day, two times the hourly rate is
payable for the first eight hours, and thereafter, three times the hourly rate.

The order applies only to workers who receive an hourly rate of $10.50 or less, and does not apply to
registered apprentices and trainees in Government approved training programmes.

PROTECTION OF WAGES
Where a worker alleges non-compliance with the Minimum Wages Order, his or her recognized
majority union, or any union of which he or she is a member, or he or she themselves may report the
matter to the Ministry of Labour under the Minimum Wages (Amendment) Act, No.11 of 2000. This
report is deemed to be a trade dispute and may be heard and determined by the Industrial Court.
The wages of employees who are not covered by the Minimum Wages Order may be fixed by collective
bargaining, or individual employees are free to negotiate their own wage with employers.

WORKERS' REPRESENTATION IN THE ENTERPRISE

While there are no statutory provisions for worker representation in the enterprise, the industrial relations
practice, supported by case law of the Industrial Court, entitles unions to appoint a worker as the
union representative for a bargaining unit. This representative is sometimes referred to as the shop
steward. It is also industrial relations practice that when having discussions with the worker representative on
union business the employer must treat him or her not as an employee, but as the representative of the union.

About 22% of the work force is represented by trade unions that have negotiated collective
bargaining agreements which set the terms and conditions of their employment.

TRADE UNION REGULATION

Trade Unions in Trinidad and Tobago are regulated by the Trade Unions Act, 1932, Chapter 88:02.
Pursuant to this Act trade unions were deemed to be no longer illegal as being in restraint of trade.

Trade unions are required to be registered by the Registrar of trade unions under the Trade Unions Act,
and any seven (7) or more members may register a union. The provisions for registration are set out in
the Act and include the following requirements:
a . completed application form with printed copy of rules with the names of officers;
b . that no other trade union carries an identical name or one so nearly resembling that of the union
seeking registration to deceive the public;
c. that the objects of the union are statutory objects.

Any trade union duly registered under the Trade Unions Act may purchase or lease property which
would be vested in its trustees. The Act makes provision for legal action to be taken against any trustee who
misuses or misappropriates the union's property.

Any person who is aggrieved by the Registrar's refusal to register a trade union, or by the withdrawal or
cancellation of a certificate of registration may appeal the Registrar's decision before the Supreme
Court. The Registrar may not withdraw or cancel a certificate of registration arbitrarily, but only in
the circumstances outlined in the Act.

While the Constitution guarantees for every citizen of Trinidad and Tobago the right to join a trade union,
the Industrial Relations Act acknowledges a person's right not to be a member of a trade union or other
employee organization. Where a person is a member of a trade union, he or she has a right to take part in
the activities of the union and to become an official of that union.

The Registration, Recognition and Certification Board, established by the IRA is responsible for
determining and certifying recognized majority unions. Both the employer and the recognized majority
union are obliged to treat and enter into negotiations with each other in good faith.
COLLECTIVE BARGAINING AND AGREEMENTS
COLLECTIVE BARGAINING REGULATION
In Trinidad and Tobago collective bargaining takes place between company and recognized majority
union rather than on an industry wide basis. The Government as an employer also bargains collectively.

The process of collective bargaining is regulated by Part IV of the Industrial Relations Act (IRA). The
IRA states that the parties to a collective agreement shall be the recognized majority union, and the
employer or the successor to either the recognized majority union or the employer.

COLLECTIVE BARGAINING PROCEDURES

The purpose of collective bargaining is to establish terms and conditions of employment for a bargaining
unit, agreed between the recognized majority union and the employer, into a collective agreement. Where
a recognized majority union and an employer agree to initiate negotiation of a collective agreement they
must notify the Minister of Labour. When parties have settled upon a collective agreement it must be
registered by the Industrial Court either through the Minister or by either party to the agreement. Only
upon registration does the collective agreement become binding upon the parties and enforceable by the
Industrial Court. A collective agreement may be made for a period of not less than three (3) years and no
more than five (5) years.

APPLICATION OF COLLECTIVE AGREEMENTS

The IRA requires that collective agreements contain effective provisions for the settlement of disputes,
including differences between the parties arising out of the interpretation, application and violation of
collective agreements, with the Industrial Court as the final arbiter. Collective agreements usually
also contain provisions for wages, leave entitlements, severance pay, travelling and other allowances.

Any collective agreement which governs a bargaining unit applies to every worker in that bargaining unit,
whether that worker is a member of the recognized majority union or not. The provisions of a collective
agreement become the terms and conditions of employment of each employee's contract whether or
not that employee even knows of the existence of the agreement. Any provision in a collective agreement
which limits the application of the IRA or which promotes preferential treatment for members of a
particular union is void. Once a collective agreement has been registered every member of the respective
bargaining unit is entitled to be protected by it.

The IRA also provides that where a trade union has attained certification as the recognized
majority union the employer must recognize that union and is obliged to meet and treat with that union.
Both parties have a duty to bargain in good faith.

COLLECTIVE AND INDIVIDUAL LABOUR DISPUTES: THE DISPUTES PROCEDURE

REPORT TO THE MINISTRY OF LABOUR
After parties have undergone the disputes procedure set out in their collective agreements, and the
dispute remains unresolved, they may report the matter to the Minister of Labour as a trade dispute
under the Disputes Procedure set out in Part V of
the IRA. The Disputes Procedure set out in the IRA establishes a system that allows parties to treat
with their dispute in a structured framework of conciliation, culminating in arbitration before the
Industrial Court that is if conciliation does not result in resolution.
Under the Disputes Procedure only the following entities may report a trade dispute to the Minister:
• the employer;
• the recognized majority union;
• where there is no recognized majority union, any trade union of which the worker(s) who
are parties to the dispute are members in good standing.

An individual worker is incapable of being a party to a trade dispute under the IRA. Therefore, an
individual worker has no locus standi before the Industrial Court, under the IRA. Initially the legislation
was structured so as to encourage and support trade union membership and development. It is without
doubt that it would be in the interest of both employer and union to restrict an individual worker's right to
come before the Industrial Court, but it is the duty of the Legislature to safeguard the rights of workers,
especially in light of the increase in non-unionized contract employment. It was with this duty in mind
that the Legislature passed the Retrenchment and Severance Benefits Act, No. 32 of 1985 and the
Maternity Protection Act, No. 4 of 1998. Both these Acts give the non-unionized individual worker an
avenue by which he or she may bring his or her grievance before the Industrial Court. Both Acts allow the
worker to report his or her grievance to the Minister as a trade dispute to be dealt with according to
the provisions of the IRA.

Further, a trade union, other than a recognized majority union may only represent a worker in a rights
dispute that is a dispute emanating out of existing terms and conditions of employment. Interest
disputes, that is, disputes concerning the formulation of terms and conditions of employment may only be
handled by a recognized majority union.

Once a trade dispute is reported to the Minister of Labour he or she may;

• remit the dispute back to the parties where appropriate settlement procedures were not observed;
• proceed to have the matter conciliated before a conciliator appointed by the Ministry of
Labour; or
• refer the matter directly to the Industrial Court.

Unrepresented workers cannot report a dispute to the Minister and consequently cannot take strike action in
accordance with the act.

CONCILIATION
Conciliation before the Ministry is more along the lines of what is commonly accepted as mediation,
since parties come before an independent third party who helps them to explore settlement options and
possibilities. Conciliation at the Ministry may be considered to be compulsory conciliation, since it is only
where the Minister is satisfied that conciliation would serve no useful purpose or where either party fails to
enter into conciliation in good faith, that he or she will send the matter directly to the Court. In practice
all matters must go through the conciliation process at the Ministry of Labour. If the matter is not settled at
the Ministry, the Minister issues an unresolved certificate
by which the matter is referred to the Industrial Court for hearing and determination. Every effort is made
to give parties an opportunity to resolve their dispute.

THE SPECIAL TRIBUNAL

The Special Tribunal is established by the Civil Service Act, Chap 23:01. The purpose of the Special
Tribunal is to hear and determine disputes that arise in the Civil Service, Teaching Service, Prison, Fire
and Police Services, the Supplemental Police Service and disputes concerning Central Bank employees.
The composition of the Special Tribunal is provided for in the IRA. The Special Tribunal consists of the
Chairman and two other members of the Essential Services Division. While the Special Tribunal is not a
Division of the Industrial Court it does exercise the powers and functions the Court possesses in respect of
the essential services. The award of the Special Tribunal is final and binding on the parties.

THE INDUSTRIAL COURT

STRUCTURE AND JURISDICTION OF THE COURT
The Industrial Court is divided into two divisions, the General Services Division and the Essential Services
Division. The Essential Services Division exercises jurisdiction over the essential services which are
listed in the Second Schedule of the IRA as the Electricity Service, Water and Sewerage Services,
External Communications, Fire Service, Health Services, Hospital Services, Sanitation Services,
Public School Bus Service and Civil aviation services. The General Services Division has jurisdiction
over all services that are not essential services, meaning that this Division deals with all labour
disputes in the private sector.

The President of the Industrial Court is the Chairman of the Division of which he or she is a member. He or
she must possess the qualifications required to sit as a Judge of the Supreme Court. The Vice President must
be an attorney at law of not less than ten years standing, while the other members may be industrial
relations practitioners, trade unionists, economists, accountants or attorneys at law of not less than
five years standing. The Court possesses a mix of expertise and so its approach to matters is not strictly
legal. The Court takes an all-round approach to matters using its knowledge of industrial policies and
practices.

POWERS OF THE INDUSTRIAL COURT

The Industrial Court is deemed to be a superior court of record, possessing all powers inherent in such a
court. The Court's jurisdiction and powers are set out in the IRA. First and foremost the Court may hear
and determine disputes, making such award or order as it deems fair and just. The Court is not bound
by the law of evidence as it applies in the Supreme Court. The Court has the power to remit a dispute to
the parties or the Minister of Labour with a view towards settlement. It may act as conciliator to the parties,
with their consent. It has the power of contempt, and may dismiss matters which are trivial or contrary
to the public interest. Among the remedies the Court may grant, it has a statutory power to grant
reinstatement or re-employment to a dismissed worker. The Court may not however make an order for
costs, except for exceptional reasons.
A right of appeal lies in the Court of Appeal from a decision of the Industrial Court and may be exercised
by any party to a dispute, once the appeal is brought on a point of law.

STRIKES AND LOCKOUTS

STRIKE REGULATION
Industrial action is strictly regulated by the IRA. Industrial action by way of strike or lockout may only
be taken in respect of unresolved interest disputes, and the IRA provides that only a recognized
majority union may take strike action. An employer may not take lockout action against workers who
are not represented by a recognized majority union. Where either the employer or the recognized
majority union intends to take such action they must give notice to the other party and to the Minister of
Labour.

Strike or lockout action may only be taken in respect of unresolved disputes, which means that the
Minister of Labour would have had the opportunity to instigate or encourage conciliation at the
Ministry under the disputes procedure in the IRA. No strike or lockout action may be taken after parties
have requested the Minister to refer the dispute to the Industrial Court for determination.

The IRA protects employees by preserving their contracts of employment where strike or lockout action
is taken in conformity with the IRA. Employers are under no obligation to pay striking employees.

UNLAWFUL STRIKES AND LOCK OUTS

Where an employer takes lockout action contrary to the provisions of the IRA he or she is liable to a fine of
$20,000 and to pay wages to the worker for the period of the lockout. Where a union breaches the IRA it
is liable to a fine of $10,000 and may have its certificate of recognition cancelled. An employer has
the option of treating the contract of a worker who participates in illegal strike action as terminated. The
worker through his or her union however may apply to the Industrial Court to have the dismissal set
aside.

The Industrial Court may issue a stop order on application by the Minister, prohibiting industrial action by
either a recognized majority union or employer where such action poses a threat to the national interest.

Persons employed in the essential services are prohibited from taking strike action. Unresolved
disputes involving these workers are referred by the Minister of Labour to the Industrial Court for
settlement. Members of the Defence Force, the Civil, Prison, Fire and Teaching Services and Central
Bank employees are also prohibited from taking strike action. Should any of these prohibited employees
breach the IRA they are subject to fine and imprisonment.

B IB L IO G R A P H Y
Bindimattie Mahabir: Flexibilisation of the Workforce for Competitive Advantage, Possibilities and
Limitations of Flexibilisation of the Workforce in the Context of Trinidad and Tobago, The Forum, a
Quarterly Publication of the Ministry of Labour, June 1997.
Roop L. Chaudhary: Studies in Caribbean Labour Relations Law. 2nd ed., Coles Printery Limited,
1984.

Sahadeo Basdeo: Labour Organisation and Labour Reform in Trinidad 1919-1939, Institute of Social
and Economic Research, University of the West Indies, St. Augustine, Trinidad. .

Zin Henry: Labour Relations and Industrial Conflict in Commonwealth Caribbean Countries,
Columbus Publishers Ltd. Trinidad, 1972.

Lennox Marcelle: Changing Patterns of Employment in Trinidad and Tobago and the Legal Implications,
The Forum, a Quarterly Publication of the Ministry of Labour, June 1997.
PRINCIPLES OF NATURAL JUSTICE
Natural justice includes the notion of procedural fairness and may incorporate the following
guidelines:
The Right to Fair Hearing
• The Right to Adequate Notice about the proceedings (including any charges).
• The Right to Adequate Time to Prepare
• The Right to Full Information to Prepare Response
• The Right to Legal Representation
• The Right to be Heard
• The Right to ask questions and contradict the evidence of the opposing party.
• The Right to Reasons for a Decision
• The Right to be Heard by an Unbiased Tribunal/Justice Must Not Only Be seen to Be Done
• Progressive form of discipline
LECTURE 5 (WEEK 6) DISCIPLINARY ACTIONS

DISCIPLINARY ACTIONS

The steps in the disciplinary procedure will be progressive but some instances may warrant an acceleration
through earlier stages. It must be emphasized that with respect to all forms of disciplinary actions,
regardless of severity, the procedural principles of fairness must be observed.

THE VARIOUS TYPES OF DISCIPLINARY ACTIONS MAY INCLUDE: AN

ORAL WARNING
§ Set a time and place to ensure privacy.
§ Make notes about what you want to say in advance.
§ Remember that the employee may have a right to representation.
§ State clearly that you are issuing an oral warning.
§ Be specific in describing the unacceptable performance or behaviour.
§ Remind the employee of the acceptable standards or rules. If they are available in writing,
provide them to the employee.
§ State the consequences of failure to demonstrate immediate and sustained improvement:
Further disciplinary action may be the result.
§ Note the oral warning on your calendar and key elements of discussion.
If a warning is considered necessary the employee will be informed that his/her
performance is expected to improve to an acceptable standard
within a specified time scale. As far as possible, specific objectives will be given to
establish the accepted standard and remedial action will be agreed upon.
When an oral warning has been issued it will specify that if performance has not been
sufficiently improved within the specified time scale, then
further disciplinary actions may be invoked.
The outcome of the hearing will be confirmed to the employee in writing and notes of
the discussion will be retained on the employee's personal file. Normally they will be
removed from the file after a period of 6 or 12 months after the hearing, if a significant
improvement is made.

A WRITTEN WARNING
When you gave an oral warning and the problem performance or behaviour persists, a written warning
may be effective. You may decide to use this disciplinary action more than once, to get the employee's
attention. Be careful, however, not to get stuck issuing repetitive letters of warning that fail to influence
the employee's behaviour or performance.
• Outline previous steps taken to acquaint the employee with the issue (coaching sessions,
performance appraisals, and previous disciplinary actions) and attach
copies of the documents.
• Describe the impact of the problem (safety issues, need to reassign work).
• Note the employee's explanation (as revealed during your investigation) or that the employee
declined to offer one. If it was unacceptable, explain why.
• Reiterate your expectations regarding behaviour and/or performance.
 • Note that if the employee doesn't demonstrate immediate and sustained improvement, the
consequence will be further disciplinary action, up to and including dismissal.
• Refer the employee to the appropriate policy or contract provision for appeal rights.
• Deliver the warning letter to the employee and place it in the employee's departmental
personnel file using appropriate delivery procedures such as "Proof of Service."
State clearly at the outset of the letter that it is a written warning.
Cite the appropriate personnel policy or contract provision. (Describe the performance
problem(s) or work rule violation(s) in very specific detail and attach documents which
support your conclusions.

SUSPENSION WITH OR WITHOUT PAY

• Suspension typically prevents work for a number of working days, as specified in the letter, and pay
is docked accordingly.
• Length of a suspension without pay will be influenced by policy or contract requirements.
• The letter states that it is a suspension without pay, the appropriate policy or contract
provision, and the number of days the employee will be suspended. It
also (as with a letter of warning) describes the problem, previous corrective measures,
impact of the problem, your expectations, consequences of failure to improve, and the employee's
appeal rights.
• Depending upon the personnel program the employee belongs to, you may be required to issue
a letter of intent to suspend, which provides the employee with
the right to appeal your intended action to the next higher management level
before the action is implemented.

REDUCTION OF PAY WITHIN A CLASS

• This alternative is normally used when you do not wish to remove the employee from the work
site, but serious discipline is appropriate. It is most appropriately
used in lieu of suspension without pay, in cases of chronic absenteeism or
tardiness.
• The reduction of pay is for a specific period of time, related to the seriousness of the performance
discrepancy or work rule violation, and noted in the letter.
• The disciplinary letter will incorporate the same elements included in a suspension letter.
• You may have to issue a letter of intent similar to that used in cases of suspension.

DEMOTION TO A LOWER CLASSIFICATION

• This action involves movement of an employee to a lower level position, and may be temporary or
permanent.
• Demotion is most often appropriate in cases of inadequate performance of responsibilities
at a particular level, rather than violation of work rules. It should
be based upon a reasonable expectation that the employee will perform
successfully in the lower classified position. For example, did the employee previously hold
a similar position, and did they perform satisfactorily?
 • Your notice letter and process are quite similar to those used for a suspension without pay, or a
reduction of pay within class.

DISMISSAL
This alternative is normally selected after performance counselling and progressive discipline have
failed to get the employee's attention to the problem.
In extreme cases, such as job abandonment, theft, or an act that endangers others, the offense may be so
grave that we forgo progressive discipline.

Summary Dismissal
As noted above, instances of extreme misconduct may warrant dismissal without prior disciplinary
action. Before taking such an action there should have clear and convincing proof based on a
thorough investigation.

Non Summary Dismissal

Dismissal is the ultimate disciplinary action, normally used when other methods employed to
correct performance or behavioural problems have not been successful. Dismissal is usually preceded
by coaching, performance appraisal, and progressive disciplinary action. Before dismissing an
employee, review the procedural steps taken to ensure fairness in the entire disciplinary process and
consider alternatives such as other disciplinary action. Efforts must be made to ensure that
sufficient effort (documented and undocumented) has been made to help the employee correct the
problem.

The Letter of Intent to Dismiss

The personnel policies and union contracts under which your employees may work include provisions
for a notice of intent to dismiss or terminate, prior to a final decision and implementation. In composing a
letter of intent do the following:
§ State clearly at the beginning of the letter that it is a notice of intent to dismiss, and cite the
appropriate personnel policy or contract provision.
§ State the effective date of the intended action.
§ Describe the performance or behavioural problem(s) in very specific detail, and attach
copies of all material that served as a basis for your decision to take this action.
§ Describe all previous steps taken to correct the problem, such as previous disciplinary
actions, and attach copies of these documents.
§ Inform the employee that they have a right to respond, either orally or in writing, within
(depends on policy or contract) calendar days of the date of issuance
of the notice, and to whom. The number of days will be specified in each personnel policy
or union contract, and they vary, so review them carefully.
§ Deliver it to the employee and to the employee's personnel file using an appropriate
mechanism such as Proof of Service. Send a copy to the union or the employee's
representative, if appropriate, via Proof of Service.
 Next Level Review
The employee, or the employee's designated representative, may choose to respond orally or in
writing to the notice of intent to dismiss. Before making a final decision, the reviewer should carefully
consider the following:
§ The notice of intent to dismiss and all attachments
§ The employee's written response, if any
§ Notes taken during meeting(s) with the employee and/or the employee's representative
§ Notes of interviews held during the review period
§ Appropriate personnel policy or union contract provisions

Notification of Decision
After the review, the reviewer issues a decision letter, which should:
§ State clearly the decision reached, and cite the appropriate policy or contract provision
§ Itemize the documents reviewed and summarize the discussion(s) held with
the employee and her representative
§ State the effective date of the action to be taken
§ Notify the employee of their appeal rights, citing the appropriate policy or contract
provision
§ Be delivered by the same mechanism as the notice of intent

UNFAIR
DISMISSAL
§ Dismissal was not for a fair reason
§ Dismissal process was not fairly implemented
§ Dismissal was harsh and oppressive

WRONGFUL DISMISSAL
Wrongful dismissal should not be confused with Unfair Dismissal, Wrongful dismissal is based on
contract law. Any claim for wrongful dismissal will therefore mean looking at the employee's
employment contract to see if the employer has broken the contract. The most common breach is where
the employee is dismissed without notice or the notice given is too short.

CONSTRUCTIVE DISMISSAL
Constructive dismissal occurs when employees resign because their employer's behavior has become so
intolerable or unacceptable or made life so difficult that the employee has no choice but to resign.
LECTURE 6 (WEEKS 6 & 7)
SUBSTANTIVE PRINCIPLES AND PRACTICES OF GOOD
INDUSTRIAL RELATIONS: THE MAKING OF POLICIES

1.1 PERFORMANCE MANAGEMENT

MANAGEMENT OF EMPLOYEE PERFORMANCE
Policy: Managers implement the department's performance management system to help employees meet the
full requirements of their positions.
Purpose: To help managers be accountable for the organization's results by effectively guiding and
developing employees.
Description: Both managers and employees participate in the four phases of the
Performance Management System:
1 . Planning: The position duties are reviewed to ensure alignment with organizational
objectives are recorded in an updated position description. The manager communicates
performance expectations in writing and through discussion.

2 . Performance Coaching: Managers provide on-going coaching and guidance to

employees. Managers review the desired results and standards every four months to ensure
they remain valid. Managers remove barriers to performance and take corrective action
using a development plan, if required.

3 . Performance Results: The manager and the employee compare the actual results obtained
by the employee over the established time period to the expected results and
performance standards for each position responsibility. Variances are identified. The
manager records the findings objectively and concisely and the employee signs the review
document with comments if desired. Performance standards and objectives may be revised
if necessary.

4 . Development Planning: The manager and the employee prepare a development plan
to address gaps between actual and expected
performance and to capitalize on the employee's strengths.
Responsibilities: Employees are responsible for performing work to standard. Managers are responsible
for:
• conducting annual formal performance reviews
• conducting interim performance reviews as required
• updating position descriptions annually
• periodic performance reviews during the probationary period, with a formal performance
review on the second last month of the probationary period
• maintaining confidentiality of performance information and distributing signed
copies as follows:
o original to Human Resources to be attached to employee's personnel file
o copy to employee
o copy to manager's file

2.0 CONTRACT LABOUR

The Company reserves the right to outsource labour on a project basis for work that it deems not to be of
central sensitivity or related the main operation of the company.

3.1 ABSENTEEISM
Purpose: To establish the requirement that each employee work the hours scheduled for his position as a
normal condition of work.

Policy: An employee is responsible for notifying his supervisor of his absence each day of the absence and
advising when he will report back to work. Unexcused absences and excessive excused absences are cause
for progressive corrective action and may result in termination. The Company also reserves the right to
terminate any employee who is absent for two (2) consecutive working days without notification.

1 . Guidelines: An employee is considered absent if he or she is not present for work as

scheduled, regardless of cause.
2 . Employees will not be allowed to apply paid absence benefits to unexcused absences.
3 . Absences resulting from jury duty, approved participation in professional affairs and military
leave are exceptions to this policy.
4 . Departments are advised to develop and communicate to employees
departmental guidelines which indicate both the needs of the department and the importance
of timely and regular attendance and define excessive absenteeism and tardiness.
5 . Supervisors are to give special attention to absence patterns such as:
1 . Absences on scheduled weekends, Saturday, Sunday, or both;
2 . Absence the day before and/or the day after a scheduled holiday or day off (Holiday pay
may be withheld in such cases);
3 . Absence the day after payday;
4 . Calling in sick as rapidly as sick time is accrued, especially if used one day at a time;
5 . Coincidence of absence with desirable days off.
 6 . Departmental absenteeism guidelines and a call-in procedure should be written and communicated
to all employees. The call-in procedure should establish when and whom employees should call if
they are going to be absent.

4.0 GROOMING
The employee shall expressly or implicitly, have a right to choose a particular style of dress or hair,
however it is also acknowledged that this right of self-expression and individuality may be necessarily
limited by the nature of the organization or a particular job. The Company has a right to set dress and
grooming standards for employees. However, any such dress and grooming policy, or one must be applied
consistently and fairly and must not amount to discrimination on the basis of ethnicity, gender, or
religion. Any dress and grooming policy allow exceptions for employees with legitimate religions, ethnic,
or health reasons for non-compliance except where such non- compliance will be inimical to the best
interests of the organization.

5.0 PROMOTIONS POLICY

It is the policy of [COMPANY], wherever possible, to fill vacancies with qualified employees
from within [COMPANY]. Promotion to all positions is based on, among other things,
individual ability, efficiency, qualifications, performance, good attendance and punctuality, educational
background and length of service.

6.0 RELIGIOUS EXPRESSION IN THE WORK PLACE

Policy The Company will permit personal religious expression by its employees to the greatest extent
possible. They will not discriminate against employees on the basis of religion, require religious
participation or non-participation as a condition of employment, or permit religious harassment.
Managers and supervisors must treat all employees with the same respect and consideration, regardless of
their religion (or lack thereof).

A. RELIGIOUS EXPRESSION
(1 ) The Company will not restrict personal religious expression by employees in
the workplace except where the employee's interest in the expression intrudes
upon the legitimate rights of other employees or creates the appearance, of a
company endorsement of the religion.

(2 ) The Company may regulate the time, place and manner of all employee
speech, provided it does not discriminate on the basis of content or viewpoint.
Agencies are not required, however, to permit employees to use work time to
pursue religious or ideological agendas.

(3 ) Expression in Private Work Areas. Employees should be permitted to

engage in private religious expression in personal work areas not regularly open to
the public or other employees. This is to the same extent that they may engage
in non-religious private
 expressions, subject to reasonable content and viewpoint. This religious
expression must be permitted as long as it does not interfere with the agency's
carrying out of work responsibilities.

(4 ) Expression among Fellow Employees. Employees can be

permitted to engage in religious expression with fellow employees subject to
reasonable and content-neutral standards and restriction. This expression should
not be restricted as long as it does not interfere with the workplace
disruption and efficiency. Employees may not display religious messages on
items that convey any governmental endorsement of religion or suppression of
another group.

(5 ) Expression Directed at Fellow Employees. Employees are permitted to

engage in religious expression directed at fellow employees, and may even
attempt to persuade fellow employees of the correctness of their religious views.
Some religions encourage adherents to spread the faith at every opportunity, a
duty that can encompass the adherent's workplace. They are entitled to do this as
long as a reasonable observer would not interpret the expression as an official
Company endorsement of the religion and it does not interfere with
workplace efficiency. Employees must refrain from such expressions when a
fellow employee asks that it stop or otherwise demonstrates that it is
unwelcome.

(6 ) Expression in Areas Accessible to the Public. When the public has access
to the workplace, all employees must be sensitive the principle that the religious
expression does not create the reasonable impression that the Company is
sponsoring, endorsing, or inhibiting religion generally, or favouring or
disfavouring a particular religion. Displaying of religious art and literature in
personal work areas subject to the public can be displayed, so long as the viewing
public would reasonably understand the religious expression to be that of the
employee acting in their personal capacity, and not that of the Company.

B. RELIGIOUS DISCRIMINATION
The Company shall not discriminate against employees on the basis of their religion,
religious beliefs, or views concerning religion.
(1 ) Discrimination in Terms and Conditions. No employee may
promote, refuse to promote, hire, refuse to hire, or otherwise favour
or disfavour an employee or potential
employee because of his or her religion, religious beliefs, or views
concerning religion.

(2 ) Coercion of Employees Participation or Non-participation in

Religious Activities. A supervisor may not explicitly or implicitly
insist that the employee participate in religious activities as a
condition of continued employment, promotion, salary increases,
preferred job assignments, or
 any other incidents of employment nor may a supervisor insist that an
employee refrain from participating in religious activities outside the
workplace, except where otherwise legal. A supervisor is free to
express their views and engage in some kinds of speech about
religion as long as it is understood it is his or her personal view.
Because a supervisor has the power to hire, fire, or promote, employees
may reasonably perceive their supervisor's religious expression as
coercive even if not intended by such. Therefore, supervisors need to be
careful of their expressions and that it is not perceived as coercion.

(3 ) Hostile Work Environment and Harassment. The law against

workplace discrimination protects employees from being subjected to
a hostile environment or religious harassment, in the form of
religiously discriminatory intimidation, or pervasive or severe religious
ridicule or insult, whether by supervisors or fellow workers. Religious
harassment based on hostile work environment will depend on the
frequency or repetitiveness, as well as its severity. Employees should
always be guided by general principles of civility and workplace
efficiency. A hostile environment is not created by the bare expression of
speech with which some employees might disagree.

C. ACCOMMODATION OF RELIGIOUS EXERCISE

The Company shall accommodate employees' exercise of their religion unless such
accommodation would impose an undue hardship on the conduct of the Company's
operations. The accommodation should be made unless it would cause an actual cost
to the Company or to other employees or an actual disruption of work, or unless it is
otherwise barred by law. If the Company's work rule imposes a substantial burden on
a particular employee's exercise of religion, the Company must go further; the Company
should grant the employee an exemption from the rule, unless the agency has a
compelling interest in denying the exemption and there is no less restrictive means of
furthering that interest.

D. ESTABLISHMENT OF A RELIGION
Supervisors and employees must not engage in activities or expression that a
reasonable observer would interpret as the Company’s endorsement or denigration of
religion or a particular religion.
7.1 HARASSM ENT

HARASSMENT
Harassment is verbal or physical conduct that denigrates or shows hostility or aversion toward an
individual because of that person's race, skin colour, religion, gender, national origin, age, or
disability. Harassment can also occur if conduct is directed toward a person's relatives, friends, or
associates. Harassment does one or more of the following:
• has the purpose or effect of creating an intimidating, hostile, or offensive work environment
• has the purpose or effect of unreasonably interfering with an individual's work
performance
• otherwise adversely affects an individual's employment opportunities

Harassing conduct includes:

• epithets, slurs, negative stereotyping or threatening, intimidating, or hostile acts that relate to
race, colour, religion, gender, national origin, age, or disability (including jokes or pranks
that are hostile or demeaning with regard to race, colour, religion, gender national origin, age,
or disability) and
• written or graphic material that denigrates or shows hostility or aversion toward an individual or
group because of race, colour, religion, gender, national origin, age, or disability and that is
displayed on walls, bulletin boards, or other locations or circulated in the workplace.

Sexual harassment is specifically prohibited because it is unlawful and against company policy. In addition,
the Company is responsible for taking action against sexual harassing conduct. The Company will
take action regardless of whether the specific acts complained of were sanctioned or specifically
forbidden, and whether the Company knew, or should have known of their occurrence.

COMPLAINT PROCEDURES
Employees who have complaints should report such conduct to the owner or other official.
Allegations of harassment will be promptly investigated, giving due regard to the need for confidentiality.

DISCIPLINARY MEASURES
Any employee who engages in harassing behaviour is subject to disciplinary measures up to, and
including, termination.

PROTECTION AGAINST RETALIATION

An employee has the legal right at any time to raise the issue of harassment without fear of reprisal.
8.0 SUBSTANCE ABUSE
The Company is committed to providing a drug free environment. Not only can the use and/or abuse of
drugs and alcohol jeopardize the health, safety and well-being of the individual user and other co-workers,
but it also results in absenteeism and productivity concerns, higher workers' compensation costs and
health/disability premiums, and endangers the safety of the general public and invitees to our stores.

Since our employees are our most valuable resources, and the safety of our employees and the public are
important to us, we have developed and published this substance abuse policy to help us contribute to the
solution of this very difficult health and social problem. Our policy is intended to accurately detect and
deter the use and abuse of drugs and alcohol in our workplace, while respecting the dignity and privacy
of all of our employees.

It is the policy of the Company that the possession, sale or use of illegal drugs is not consistent with the
Company's needs to operate in a safe and efficient fashion. For that reason, no employee of the company
may use or possess unlawful drugs, i.e., any substance found on the list of controlled substances
issued by the Food and Drug Administration now or in the future, at any time. This policy also
prohibits employees from such use that impairs his/her performance of work on the job, as well
as prohibiting use while on Company business at any time, whether on the property or off. In addition,
while this Company has no desire to intrude upon the private activities of its employees when they are
away from Company property and not on Company time, involvement with unlawful drugs, including
their manufacture or distribution, constitutes a severe breach of accepted conduct and is also prohibited.

Employees are also prohibited from bringing prescription drugs on Company property, unless they have
been prescribed by a licensed physician, such drugs can only be utilized by employees receiving
such prescriptions in the manner, combination and quantity prescribed. In instances where any
employee holds a position which this Company considers to be safety sensitive, we must be notified by
the employee that the use of prescription drugs on the job will not impair the individual's working abilities
by a suitable statement from the prescribing physician.

Employees are also prohibited from using alcoholic beverages during working hours or within six (6)
hours prior to reporting for duty, and/or being under the influence of alcohol while at work or on
Company time. Nor may any employee use or possess alcohol on Company property in any unauthorized
manner, or bring alcohol unto the Company's property for the purpose of such use.

Any employee who is convicted of a crime involving the violation of any Federal or non- federal statute
prohibiting the manufacture, sale, distribution, possession or use of any controlled substance in the work
place must notify the Company within five (5) days after such conviction.

Violation of any portion of this policy will subject the employee to appropriate disciplinary measures,
up to and including termination. All employees in positions considered by the Company to be safety
sensitive shall be subject to urine testing prior to employment or job assignment, following an accident
on Company property or on
Company business, or prior to return to duty if they have failed a previous test. Moreover, any
employee whose conduct, appearance or behaviour may tend to suggest that the individual is impaired or
otherwise not fit to perform the tasks of his or her job and is under the influence of drugs or alcohol, will be
required to submit to urine testing.

If any of the above mentioned testing conditions are met, a confirmed positive test will lead to discipline,
up to and including termination, or a requirement that the individual undergo and successfully complete a
rehabilitation or treatment/counselling program, or both. Employees who have failed a previous test
may be subject to unannounced follow-up testing for a period of one (1) year after their return to duty.
Refusal to submit to urine testing, or adulteration of a specimen for testing, shall subject the employee to
termination, or in the case of an applicant, to elimination from consideration for the position for which
the individual has applied.

The Company's decision to test employees and job applicants has been made to assist the Company in
advancing the objectives of this Substance Abuse Policy. All testing will be conducted in compliance with
the guidelines adopted by the National Institute of Drug Abuse, except that the Company may test for
alcohol and additional controlled substances, and the Company may decide not to use the service of a
Medical Review Officer (MRO). All testing will be conducted using accepted professional and technical
standards and in a manner which respects and recognizes the dignity and privacy of our employees. The
Company will endeavour, to the greatest extent possible, to protect the confidentiality of information
regarding individual test results. The Company will not discriminate against any employee who is covered
by the Americans with Disabilities Act.

Of equal importance, the Company has established a drug awareness program for its employees, which
will include education and training about the dangers of drugs and alcohol in the workplace, the
elements of this policy statement and the penalties it contains, and available counselling, treatment and
rehabilitation that an employee may receive. The Company will provide information on appropriate
assistance programs and "wellness" clinics to any employee who feels he or she may have a problem with
chemical dependency or the use of alcohol. The company encourages its employees to participate in such
assistance programs, treatment facilities, or other similar programs, and notes that participation in an
appropriate assistance program may be covered, in part, under the Company existing health/disability
benefits. However, the Company will offer one- time additional financial assistance, up to a full
reimbursement, to an employee who voluntarily seeks assistance in an accredited program, only where it
is the individual's first treatment, and only before any positive test has occurred.

Employees who are directed or recommended, by a licensed physician, to be admitted to an accredited

in-patient drug/alcohol treatment program may also be eligible for salary continuation benefits, on a
one-time basis, for a maximum of sixty (60) days. The Company will continue to make premium
payments for the employee's health and or disability insurance plan(s). The Company will treat the
details of any employee's participation in an assistance program confidentially, to the greatest extent
possible, to ensure that the employee's privacy is respected.

The elements of this Substance Abuse Policy are intended to achieve the overall goal of fostering a drug-
free workplace and a healthy, safe environment for our employees.
Although this policy has been carefully written to address all of the concerns in this sensitive area, the
Company reserves the right to modify or amend it. Employees will be notified if any changes are made.

A copy of this Substance Abuse Policy will be provided to every person hired by the Company, to any
person offered conditional employment, and upon request, to any job applicant. Its receipt and
acknowledgment by each employee or conditional employee is required on the Company's Informed
Consent and Release Form. An employee who has questions or concerns about this policy should contact
the following individual, who is serving as the Company's liaison for this Purpose:

9.1 HEALTH, SAFETY AND ENVIRONMENT POLICY

The top-level management of Ernie Exploration and Development Company Limited acknowledges that
the nature of it operations can cause harm to human health, life, environment and property. Our goal is
zero harm to human health, life, environment and property and as a responsible corporate citizen, we at
EED aim to:

ü Comply fully with all legal and regulatory requirements and meet or exceed HSE expectations
wherever we operate worldwide

ü Ensure that personnel demonstrate commitment and leadership in health, safety and environmental
protection, performance and compliance. Managers will display and expect openness in
decisions which impact on safe and environmentally responsible operations and demonstrate
judgment based on safety as a first priority.

ü Provide HSE training and awareness to all company personnel and contractors, nurturing a
culture of responsibility and accountability, as it is essential that they possess the experience,
knowledge, skills, and abilities that are necessary to discharge their responsibilities competently

ü Provide personnel with a safe place to work and establish clear and unambiguous lines of authority
and responsibility for ensuring the establishment and maintenance of safety at all organizational
levels of EED and with its contractors by providing continuous support and training for line
management

ü Constantly assess that all processes are working efficiently. While all personnel and contractors
are responsible for ensuring the success of the HSE system, line management is directly
responsible for the protection of the workers, the public and the environment

ü Minimize risk by instituting administrative and engineering controls to prevent and mitigate
hazards as pertains to EED’s operations

ü Ensure that all contractors operate at our standards, as their operations can have an impact not
only EED’s finances but also our reputation. We will assure that the management systems of all
our contractors are compatible with that of
 EED. Further, they shall be required to meet or exceed all applicable legislation, regulations and
industry standards.

ü Maintain public confidence in the integrity of our operations by openly reporting our performance
and consulting with people outside the company to improve our understanding of external and
internal HSE issues associated with our operations

ü Manage HSE matters as any other critical business activity

ü Maintain a commitment to incident and pollution prevention, waste minimization and to continual
improvement in HSE performance

10.0 CONFLICT OF INTEREST POLICY

All employees of the company make a full-time commitment to the company. They must arrange their outside
obligations, financial interests, and activities so as not to interfere with their primary obligation and
overriding commitment to the company. Employees’ commitment includes, but is not limited to,
regular and punctual attendance at work, and prompt and professional completion of all duties and
assignments.

The company expects employees to acknowledge all conflicts with their primary obligation, to disclose
them in writing upon realization of the conflict, and to review them annually with the appropriate
supervisor. The company discourages external activities that negatively impacts on the ability of
employees to effectively and efficiently perform their duties.

Employees who are employed part-time commonly have major obligations and commitments not only
to the company, but also to one or more outside agencies. The resulting conflicts of commitment are
frequently troubling or severe. Accordingly, part-time employees are expected to disclose their conflicts
to the appropriate supervisor in writing and exercise special care in fulfilling their multiple
obligations.

11.1 USE OF INTERNET POLICY

THE COMPANY INTERNET USE POLICY
This policy applies to all employees when they are using computers or Internet connections
supplied by the Company, whether or not during work hours, and whether or not from the Company’s
premises.

1 . No Privacy. The Company provides computers and Internet connections ("facilities") to further
its business interests. You should use those facilities only for the Company business. The
Company has the right, but not the duty, to monitor all communications and downloads that
pass through its facilities, at its sole discretion. Any information retained on the Company’s
facilities may be disclosed to outside parties or to law enforcement authorities.
 2 . Improper Activities. You may not disseminate or knowingly receive harassing, sexually explicit,
threatening or illegal information by use of the Company’s facilities, including offensive
jokes or cartoons. You may not use the Company’s facilities for personal or commercial
advertisements, solicitations or promotions.

3 . Intellectual Property of Others. You may not download or use material from the Internet or
elsewhere in violation of software licenses, or the copyright trademark and patent laws.
You may not install or use any software obtained over the Internet without written permission
from the Systems Administrator.

4 . Report Violations. If you observe or learn about a violation of this policy, you must report it
immediately to your supervisor, or to the Systems Administrator.

5 . Acknowledgment. By signing on the line below, I acknowledge that I have read, understand and
agree to comply with the foregoing Internet Use Policy. I understand that, if I do not comply with
the Internet Use Policy, I may be subject to discipline, including loss of access to the
Company’s ABC’s facilities and discharge from employment. I may also be subject to legal
action against me for damages or indemnification.

12.0 ELECTRONIC MAIL POLICY

E-mail resembles speech in its speed and lack of formality. Unlike speech, e-mail leaves a record that is
often retrievable even after the sender and recipient delete it. If you would not want your mother to
read your message on the front page of the Express, do not send it by e-mail.

The Company strongly discourages storage of large numbers of e-mail messages. As a general rule, you
should promptly delete each e-mail message that you receive after you have read it. If you need to keep a
message for longer than a week, save it to your hard disk, or print it out and save the paper copy. The
Systems Administrator will regularly purge all messages in employee inboxes and all copies of sent
messages that are older than 30 days.

The Company maintains a voice-mail system and an E-mail system to assist in the conduct of business
within the Company. These systems, including the equipment and the data stored in the system, are and
remain at all times the property of the Company. As such, all messages created, sent, received or stored in
the system are and remain the property of the Company.

Messages should be limited to the conduct of business at the Company. Voice-mail and electronic-mail may
not be used for the conduct of personal business.

The Company reserves the right to retrieve and review any message composed, sent or received. Please
note that even when a message is deleted or erased, it is still possible to recreate the message; therefore,
ultimate privacy of messages cannot be ensured to anyone. While voice-mail and electronic- mail may
accommodate the use of passwords for security, confidentiality cannot be guaranteed. Messages may
be reviewed by someone other than the intended recipient. Moreover, all passwords must be made
known to the Company. The reason for this is simple: your system may need to be accessed by the
Company when you are absent.

Messages may not contain content that may reasonably be considered offensive or disruptive to any
employee. Offensive content would include, but would not be limited to, sexual comments or images,
racial slurs, gender-specific comments or any comments that would offend someone on the basis of his or
her age, sexual orientation, religious or political beliefs, national origin, or disability.

Employees learning of any misuse of the voice-mail or electronic-mail system or violations of this
policy shall notify the Director of Human Resources immediately.

13.1 AIDS POLICY

IN T R O D U C T IO N
The following outlines [your company’s name]’s policy and procedures for interacting with employees
who have been medically diagnosed with or who are suspected of having the AIDS (Acquired Immune
Deficiency Syndrome) virus.

PURPOSE
The purpose of the AIDS policy is to reassure employees that AIDS is not spread through casual contact
during normal work practices and to reduce unrealistic fears about contracting an AIDS virus-related
condition. This policy also protects the legal right to work of employees who are diagnosed with an AIDS
virus-related condition and provides guidelines for situations where infection with the AIDS virus is
suspected. Our policy is to encourage sensitivity to and understanding for employees affected with a
condition of the AIDS virus.

GENERAL POLICY
We are committed to maintaining a healthy work environment by protecting the physical and emotional
health and well-being of all employees in the workplace. We also have a continuing commitment to
provide employment for people with physical disabilities who are able to work. This AIDS policy is a
direct outgrowth of those commitments. It provides guidelines for situations when a question as to an
AIDS virus-related condition arises. There are three major points:
• Employees who are diagnosed with an AIDS virus-related condition may continue to work if they
are deemed medically able to work and can meet acceptable
performance standards. We will provide reasonable performance standards and
reasonable accommodation if necessary to enable these employees to continue working.
• We provide AIDS education for all employees to help them understand how the AIDS virus is
spread and to reduce unrealistic fears of contracting an AIDS virus- related condition.
• The term “AIDS virus-related conditions” refers to the following four medically diagnosed
conditions:
1 . presence of the AIDS antibody without symptoms of AIDS
2 . presence of an AIDS-Related Complex (ARC)
3 . AIDS
4 . central nervous system infection
MEDICAL OVERVIEW
Medical experts on AIDS virus-related conditions have informed us that there is no known risk of
AIDS transmission between an affected employee and other employees through either casual or close
contact that occurs during normal work activities.
An AIDS virus-related condition is not transmitted by breathing the same air, using the same lavatories,
touching a common piece of paper, or using the same telephone. Transmission of the virus through
oral secretions or tears is not a recognized risk
according to medical authorities. Additionally, the virus is very fragile and has been found to be
transmitted only through intimate exchange of bodily fluids (for example, blood or blood-contaminated
tissue fluids such as semen or vaginal fluid).

The AIDS virus attacks the immune system, causing a breakdown in a person’s normal protection against
infection. This leaves the body vulnerable to life-threatening illnesses. In addition, the virus by itself can
affect the nervous system.

Individuals of all sexual preferences are at risk of contracting an AIDS virus-related condition.
According to medical experts, the AIDS virus is transmitted in the following ways: sexual contact through
transmission of semen or vaginal fluids; intravenous drug administration with contaminated needles;
administration of contaminated blood or blood products; and passage of the virus from infected mothers
to their foetus or new born. However, there is no evidence to suggest that pregnant women are
particularly susceptible to any AIDS virus-related illness or condition. Recent medical evidence
suggests that an AIDS virus-related condition can have an incubation period of several weeks, months or
years before symptoms appear. Medical findings indicate that a person who has a positive antibody
test will not necessarily develop an AIDS virus- related condition. The presence of the AIDS antibody is a
sign of infection, not immunity, unfortunately.

As is true for any person with a life-threatening illness, a person diagnosed with an AIDS virus-
related condition deserves and requires compassion and understanding. While that person is attempting
to cope with his or her own vulnerability and fears, the support and understanding of friends and colleagues
can be particularly valuable.

Some people have fears about contracting AIDS based on misinformation or lack of knowledge about
how AIDS is spread. Education providing accurate medical information can best alleviate fears of
contracting an AIDS condition.

SUPERVISOR’S RESPONSIBILITIES
The physical and emotional health and well-being of all employees must be protected, and reasonable
accommodation for the medically impaired employee with an AIDS virus-related condition must be
provided, as long as the employee is able to meet acceptable performance standards. To ensure these
goals are met, the following guidelines are to be followed:
• Any employee diagnosed with an AIDS condition is entitled, as is any other employee, to
confidentiality of their medical condition and medical records.
• If an employee with an AIDS condition requests job accommodation for his/her medical
condition, the employee must obtain a written medical opinion that
he/she (a) is medically able to work and (b) needs reasonable job accommodation in order to
maintain employment.
 • If it is deemed medically necessary, based upon current physical impairment, [Company name]
and the employee’s supervisor will work to bring about any reasonable job modification or
job transfer of the employee with a diagnosed condition of AIDS.

If a healthy employee refuses to work with an employee who is diagnosed with an AIDS condition and is
medically approved as able to work, job transfer or other work accommodation for the healthy
employee will only occur when medically indicated by written order of his/her physician. The
medical order must be a signed medical statement requesting this job change. In the absence of a
medical order, normal transfer procedures will be followed

14.1 GENDER ORIENTATION POLICY

It is the expressed policy of the Company to provide equal employment opportunity to all employees and
applicants for employment without regard to age, race, sex, gender identity*, colour, religion, national
origin, sexual orientation, citizenship status, disability or veteran status. The Company takes affirmative
action to ensure that this policy is practiced in all personnel actions and conditions of employment,
including but not limited to layoff, discipline, compensation, benefits and training. American Airlines
maintains a workplace which is free from discrimination and which recognizes the individual dignity
of each employee or applicant. Sexual harassment or any other kind of harassment or intimidation will not
be tolerated. Further, employees and applicants may file a complaint, furnish information, or assist in any
manner in an investigation to a breach of this policy without fear of retaliation. All employees must be
aware of and support the company's commitment to the principles of equal employment opportunity.

*Gender identity applies only to those individuals who, with the documented support of medical or
psychological professionals and in accordance with recognized Informed Consent Model of Care of
the Harry S. Benjamin Standards of Care, are changing or have changed their physical characteristics to
facilitate personal and public redefinition of their sex as opposite that which they were assigned at birth.
The Company reserves the right to require compliance with all appearance and grooming standards.

The Company is committed to the following principles: Employment decisions should not be based on
race, sex, sexual orientation, age, religion, or other protected characteristics. People should not be
treated differently because of personal characteristics that are not related to their ability to do a job,
such as their race, sex, gender, gender identity, sexual orientation, age, religion, or disabilities.
With few exceptions, individuals must be hired, promoted, disciplined, or fired because of their job-
related skills and performance. People with similar skills and performance records should be treated
equally.
1 . Occupational fraud and abuses fall into four main categories:
• theft, the misappropriation or misuse of assets for personal benefit;
• bribery and corruption;
• false accounting and/or making fraudulent statements with a view to personal gain
or gain for another: for example falsely claiming
 overtime, travel and subsistence, sick leave or special leave (with or without
pay);
• externally perpetrated fraud against an organization.

15.1 FRAUD AND MISCONDUCT

The Company is committed to preventing fraud and corruption from occurring and to developing an
anti-fraud culture. To achieve this the Company will comply with the following requirements of good
accounting practices:
• develop and maintain effective controls to prevent fraud;
• ensure that if fraud occurs a vigorous and prompt investigation takes place;
• take appropriate disciplinary and legal action in all cases, where justified;
• review systems and procedures to prevent similar frauds;
• investigate whether there has been a failure in supervision and take appropriate disciplinary action
where supervisory failures occurred; and
• record and report all discovered cases of fraud.

The following policies and principles apply in the Company:

• Employees must have, and be seen to have, the highest standards of honesty, propriety and
integrity in the exercise of their duties.
• The Company will not tolerate fraud, impropriety or dishonesty and will
investigate all instances of suspected fraud, impropriety, or dishonest conduct by the Company
staff or external organizations (contractor or client).
• The Company staff must not defraud the Company, other the Company staff, the
Company clients or the Company contractors, in any way.
• The Company will take action – including dismissal and/or criminal prosecution
- against any member of staff defrauding (or attempting to defraud) the Company, other Company
staff, the Company clients or contractors.
• The Company will take action - including criminal prosecution - against external
organizations defrauding (or attempting to defraud) the Company, the Company staff in the course
of their work, the Company clients or contractors.
• The Company will co-operate fully with an external investigating body.
• The Company will always seek to recover funds lost through fraud.
• All frauds will be reported to Internal Audit.

Action to be taken in the event of discovery or suspicion of fraud

The Company has established arrangements for staff to report any concerns they may have without
fear of prejudice or harassment.
Concerns which should be reported include, but are not limited to, staff committing or attempting to
commit:
• any dishonest or fraudulent act;
• forgery or alteration of documents or accounts;
• misappropriation of funds, supplies or other assets;
• impropriety in the handling or reporting of money or financial transactions;
• profiting from an official position;
• disclosure of official activities or information for advantage;
• accepting or seeking value from third parties by virtue of official position or duties; and
• theft or misuse of property, facilities or services.
 External organizations’ actions which should be reported include:
• being offered a bribe or inducement by a supplier;
• receiving fraudulent (rather than erroneous) invoices from a supplier;
• reported allegations of corruption or deception by a supplier.

The Company has established and maintains a Fraud Response Plan, which sets out guidance to senior
staff in the event of fraud being discovered or suspected. Under the Plan:
• incidents will be logged in a Fraud Register, which contains details of allegations, investigations
and conclusions;
• frauds and allegations of fraud will be investigated by an appointed suitably qualified senior
member of staff independent of the area under suspicion;
• progress on investigations will be reported to the Audit Committee as a standing item on the
agenda.

MISCONDUCT
Overview
The Company has a responsibility to ensure that staff maintain high standards of conduct and
performance. It is incumbent on the principal/manager/designated officer to act where a complaint,
unsatisfactory performance or misconduct involving a staff member is observed or brought to his or
her attention, whether or not a formal complaint has been lodged. In these circumstances the principal
or manager will need to make an assessment on the appropriate course of action to resolve the matter.
In determining the appropriate action the principal, subject to satisfying any legal or policy
requirements, should use his or her professional judgement to decide whether the matter should be dealt
with as a complaint, unsatisfactory performance or serious misconduct.

In a case of serious misconduct involving a staff member, the Conduct and Ethics Branch must be
contacted to assess the nature and seriousness of the alleged misconduct and provide advice on
the most appropriate course of action to pursue, including whether the staff member should remain on
duty pending the outcome of an investigation.

The Possible Nature of Serious Misconduct Allegations

Serious misconduct is most likely to relate to, but is not limited to, allegations of:
§ sexual offences
§ criminal charges
§ other serious incidents including:
§ harassment of other staff members, students or the public
§ serious negligence
§ behavior which endangers others
§ striking another employee or member of the public, or otherwise inflicting pain
§ refusal to obey a lawful instruction
§ alcohol or drug misuse.
§ contravention of laws and regulations
§ committing any act of misconduct
 § conducting oneself in a disgraceful, improper or unbecoming manner in an official capacity
or otherwise
§ failure to fulfil duties.

The Company's Conduct and Ethics Department is available to provide advice and assistance on these
matters.

Where the matter involves alleged serious misconduct the Conduct and Ethics Department must be
contacted for advice regarding the appropriate course of action.

16.0 - GRIEVANCE PROCEDURE

It is agreed that any employee or group of employees may individually or through their Union
representatives present grievances to the Management of the Company. It is also agreed that the Union as
an organization may present complaints or grievances to the Management of the Company.

STAGE I
Within five (5) working days after the occurrence of the specific event giving rise to the complaint or
grievance the employee may submit the specific complaint or grievance through his immediate
Supervisor to the appropriate Departmental/Sectional Official not being a Monthly Paid Employee
included in the Bargaining Unit who shall within two (2) working days from the date the complaint or
grievance was lodged, meet with the aggrieved employee and/or his Union Representatives to discuss the
complaint or grievance. The appropriate Departmental/Sectional Official shall inform the employee
and/or his Union Representative of his decision in the matter within the next three (3) working days.

STAGE II
Within ten (10) working days following the reply at Stage I above, the Local Branch of the Union may
submit the specific complaint or grievance in writing to the Company’s Industrial Relations Officer who
will arrange a meeting within six (6) working days from the date the complaint or grievance was lodged
with the appropriate Company Official not being a Monthly Paid Employee included in the Bargaining
Unit. This Company Official will normally be the most senior Company Official in the particular
Department, Departments or District.

At this meeting the employee and/or his Union Representatives comprising not more than three (3)
Local Branch Officials or their representatives may be present to discuss the complaint or grievance. The
appropriate Company Official shall inform the Local Branch of his decision in the matter in writing
within the next six (6) working days.

STAGE III
Within twenty (20) working days following the reply at Stage II above, the Central Executive of the
Union or its representatives may request in writing a meeting with the Management of the Company to
discuss the specific complaint or grievance with the appropriate Union Official. The management of
the Company will normally be represented by the appropriate Divisional Manager or his designate.
At this meeting which must be arranged within fifteen (15) working days from the date the request was
forwarded, the employee and not more than three (3) Local Branch Officials or their representatives
may be present.

The decision of Management shall be conveyed in writing to the Central Executive of the Union within the
next fifteen (15) working days.

Provided that:
(a ) Appeals against disciplinary action, i.e. suspension or dismissal, except warning notices, shall
normally commence at Stage II above.
(b ) Failure of the Company to comply with the time limit at any stage up to and including Stage II as set
forth in this Article shall be construed by the employee and his representatives as a denial of the
grievance and he and his representatives may
within seventy-two (72) hours proceed to the next stage of the procedure.
(c) Nothing hereinbefore contained shall prevent any employee having a grievance or complaint from
presenting such grievance or complaint to the Company provided however that any resolution of
the said grievance or complaint shall not be inconsistent with the provisions of the Collective
Agreement.
(d ) The Management of the Company may file a grievance or complaint in writing with the Local
Branch or the Executive of the Union and if no satisfactory solution is reached within thirty (30)
working days the matter may be referred to a Board of Review selected by the parties in accordance
with an agreed procedure.

In cases of differences between the Union and the Company arising out of the interpretation, application,
administration or violation of this Agreement, the following will apply:

Step 1
The Union will write to the Management of the Company or the Management will write to the Union as
the case may be and the Company and the Union shall arrange to have the matter discussed within five (5)
working days of receipt of such letter.

Step 2
Failing a settlement in Step 1 above, the matter can be referred by either party within ten (10) working
days of the meeting to the Minister of Labour for conciliation.

Step 3
Failing a settlement at Step 2 above, either party or the Minister may refer the matter to the Industrial
Court for settlement.
 LECTURE 7 (WEEKS 8 & 9)
PROCEDURAL PRINCIPLES OF PRACTICES OF GOOD INDUSTRIAL RELATIONS

1.1 PRELIMINARY INVESTIGATIONS

Suspension
Ø With Full Pay
Ø Half Pay
Ø No Pay

Is there a need to observe the principles of natural justice when a person is being suspended with
full pay during an initial inquiry?

In the Application of Rodwell Murray - HCA No. 1973 of 1992 (TT)

Mr. Justice Bissoondath Ramlogan

Mr. Ramesh Maharaj submitted further that the applicant ought to have been given a hearing before he
was suspended….[P17/18] Mr. Thorne further submitted that he was suspended on full pay and therefore
the suspension is not a penalty and he had the right to be heard later. In my view financial loss may be
of little consequences when weighed against embarrassment, frustration and mental agony which a
suspended person may have to undergo. It is true that the public interest may in most circumstances be best
served by the suspension of the Officer without a hearing because he has an opportunity to be heard at a later
stage. The public interest and that of the Police Service may however be far better served if the Office is
given a hearing in circumstances like these. The suspension of Officer without a hearing, upon tenuous
evidence, may be inimical to the public interest and even in violent collision with it. I am of the opinion
that the Officer ought to have been given a hearing and the failure to do so in these circumstances was
unfair. This does not necessarily mean a full-scale hearing.

In the Application of Andy Allan - HCA No. 1617 of 1990 (TT)

Before the Honourable Mr. Justice I. Blackman

[P14] I think I should make it quite clear at the outset that it is not, in my view, an unfailing rule that
because an aggrieved person will at some later stage be given an opportunity to be heard that he should not
be heard before that later stage is reached. But I think it is one of the factors to be considered in deciding
whether at the earlier stage he should be heard. I think that it will depend on the circumstances
of each case… [P21/22] It seems to me that the purpose of the Regulation, and in this instance
Regulation 79, is to provide for a holding operation prior to the officer being given a hearing. The
suspension is done in the interest of the service and it must be done forthwith. It is not meant as a
 punishment, nor does it have that effect as the officer suffers no loss. The fact that he is suspended
on full pay supports this conclusion, that is, that the suspension is merely a holding operation. The
procedure which follows Regulation 79 and the tenor of the Regulation also indicate, in my view, that
natural justice in the sense of a hearing does not arise at that stage and therefore the rules with regard to
natural justice were not breached when the applicant was not given an opportunity to be heard. It must
be borne in mind that fairness does not necessarily require a plurality of hearings or representations
and counter- representations (see Furness v Whangarei High Schools Bd 1973 A.C. 681 (E-F). There is
therefore no ground, in my view, for supplementing the procedure under Regulation 79…

2.1 DISCIPLINARY PROCEEDINGS

The principle of “natural justice” is recognised at law and is given constitutional protection
amounting to a constitutional right. The effect of this protection is to guarantee the basic fairness
of procedures. It is imported into the employment relationship, by implication or explicitly (where there
are certain agreed procedures laid down between the employee, employer/management and the trade
union). In simple terms, the principle means that the employer/management must apply fair procedures
and act reasonably at all times, particularly with regard to a disciplinary investigation concerning the
employee. This means that if a case has potential disciplinary consequences, including and up to
dismissal, the employer must do the following:

Ø Right to Know of Investigation

Ø Present the full and all allegations whether oral/written against the employee.
Ø Afford the employee a right to representation if they so wish.
Ø Giving the employee sufficient time to prepare for any hearing/meeting.
Ø Allow the employee to state his/her case
Ø Right to Respond
Ø Hear the case being made by the employee.
Ø Allowing him/her to call witnesses on their behalf and the right to be shown any relevant
documentation or written accusations that the management have in
their possession.
Ø Only form a judgment after all the facts disclosed have been considered.
Ø Unbiased Tribunal
Ø Right to Reasons

Failure by management to grasp the importance of procedural fairness in their handling of disciplinary
issues can lead to the accusation that any subsequent decision is seriously defective and open to
challenge either by way of appeal or through the Industrial Court or Civil Courts. These principles
are more vital where the stakes are higher, for example, where dismissal is a potential outcome or
where a final written warning is involved. Another simple way to consider the issue is to ask yourself if it
were you being subjected to a disciplinary investigation by your employer, what rights would you like to
see yourself exercise? In other words, put into practice the familiar maxim, “Do unto others as you would
have them do unto you.”
While the principles of “natural justice” are important, particularly at the end of a process such as
dismissal, they are less critical in minor or trivial matters such as the first incidence of poor time keeping
or the first incidence of absenteeism. These matters should technically be dealt with by way of
counselling. When management is moving towards any class of warning, they are well advised to follow all
the principles of “natural justice” as outlined above. Applying these principles protect the management in the
final analysis as it ensures the decision reached was the right and fair one in the circumstances and,
therefore, it is much less likely to be challenged successfully in any arena – be it in the Industrial Court or to
the Civil Courts.

IN THE APPLICATION OF MANIRAM MAHARAJ – HCA NO. 1428 OF 1999 (TT)

Before the Honourable Mr. Justice Gregory Smith

[P26] I agreed with the Respondent’s submission that where, as here, there were no specified or
established procedures to be followed in the holding of an inquiry, the requirements of natural justice
varied from case to case.

As was stated in Wiseman v Borneman (1969) 3 All E.R. 275 at 277-278 and repeated by Mc Pherson J in
R v Monopolies and Mergers Commission Ex parte Matthew Brown pic (1987) 1 All E.R. 463 at 467 e –
g.

“As Lord Reid said in Wiseman v Borneman (1969) 3 All E.R. 257 at 277 – 278.

“Natural justice requires that the procedure before any tribunal which is
acting judicially shall be fair in all the circumstances, and I would be
sorry to see this fundamental general principle degenerate into a series
of hard-and-fast rules… Even where the decision is to be reached by a
body acting judicially there must be a balance between the need for
expedition and the need to give full opportunity to the defendant to see the
material against him.”

“We often speak of the rules of natural justice. But there is nothing rigid
or mechanical about them… The principles and procedures are to be
applied which, in any particular set of circumstances are right and just
and fair. Natural justice, it has been said, is only ‘fair play action.’

The question as Lord Morris posed it later, is – “whether in the particular

circumstances of a case a tribunal acted unfairly so that it could be said that
their procedure did not match with what justice demanded?”…
IN THE APPLICATION OF DOEKIE SINGH – HCA NO. 1300 OF 1981 (TT)

Before the Honourable Mr. Justice Lennox Deyalsingh

[P7] Although it was merely an “application” case, the Court held that the rules of natural justice
were applicable as a refusal of the certificate of fitness would be a slur on the applicant. In the
“forfeiture” category, the law is now well-established and again I quote from the judgement of Mugarry J.
(supra):

“It seems plain that there is a substantial difference between the forfeiture
cases and the application cases. In the forfeiture cases there is a throat to
take something away for some reasons; and in such cases, the right to an
unbiased tribunal, the right to notice of the charges and the right to be
heard in answer to the charges (which in Ridge v Baldwin (1963) 2 AER 66
at 114 Lord Hudson said were the three features of natural justice which
stood out) are plainly apt…”…

[P7] It is not in dispute that the Commissioner of Police gave no opportunity to the Plaintiff to meet
the case against her… [P8/9] Next, does the reasons although belatedly given “cure the procedural wrong”
as Mr. Beckles submits. I certainly do not think so – and for two reasons. As said before, the Plaintiff
“contests”, albeit in part, the reasons advanced by the first Defendant. She must therefore, in justice, be
given an opportunity to persuade the first Defendant that he is wrong. Secondly, to accept the
submission would be to violate two principles fundamental to our law, principles enshrined in the phrases
“audi alteram partem” and “justice must not only be done but must be seen to be done”. These principles
find place among the foundation stones upon which the edifice of justice stands and they must never
lightly be ignore. ‘Justitia firmatur solium” (Justice strengthens the throne). It is upon such principles
aforesaid that a country and its government stand firm. One last matter, I have considered whether the
rules of natural justice should apply in firearm cases. Mr. Beckles did not make any such point and I think
he would have, if there was merit in it. Suffice it to say that I take the view that the rules of natural justice
should not be excluded only because firearms are the subject matter…

IN THE APPLICATION OF THE CHIEF IMMIGRATION - CIVIL APPEAL NO. 7 OF 1994

(BRITISH VIRGIN ISLANDS)

BEFORE:
The Rt. Honourable Sir Vincent Floissac, Chief Justice
The Honourable Dr. Nicolas J.O. Liverpool, Justice of Appeal The
Honourable Mr. Satrohan Singh, Justice of Appeal

[P9/10] According to the “audi alteram partem” rule, where any authority (person or body of persons)
intends to exercise a constitutional, statutory or prerogative power and thereby to make a judicial, quasi-
judicial or administrative decision or action which will adversely affect the status, rights, interests
or legitimate expectations of any other person (the complainant), the authority is under a common
law duty (and may also be under a constitutional or statutory duty) to
observe certain formalities and the complainant has a correlative common law right (and may also
have a correlative constitutional or statutory right) to the observance of those formalities before such a
decision or action is made or taken. Those formalities may include notice to the complainant of the
specific allegations made against him and a fair and reasonable opportunity for the complainant to
answer or rebut those allegations and to make representations in regard to the intended decision or action. In
the present case, the respondent may not have had any legal right to enter and remain in the Territory. But in
the special circumstances of this case, he certainly had legitimate expectations that he would be granted
permission to do so and that at least some of the formalities required by the “audi alteram partem” rule
of natural justice would have been observed before any decision or action was made or taken by
way of refusal of such permission…
 THE COMPLAINTS PROCESS
William Iton

Who owns the problem? IR, HR? HR vs IR. The person in charge of this department must display
effective communication skills and be self-assured and confident to deal with HR problems.

All business organizations, whether unionized or not, require some process which allows employees to
express and seek to resolve dissatisfaction about any work-related issue. Management has a direct
interest in ensuring that employees are not disgruntled; however, the grievance and dispute process are
primarily an employee mechanism. In a unionized environment, the collective agreement will have a
dispute resolution/grievance handling procedure as it will not be registered in the absence of this.

SECTION 43 OF THE IR ACT

43. (1) A collective agreement shall contain effective provisions concerning appropriate
proceedings for avoiding and settling disputes…
(2) In addition to the requirements of subsection (l), every collective agreement
shall contain a provision for the settlement of all differences between the parties thereto arising out of the
interpretation, application, administration or alleged violation thereof.
(5 ) The following terms in any collective agreement are void -
(a ) any provision that any benefits under the agreement are to apply only to members of a
particular union;
(b ) any clause excluding or limiting the application of the provision of this Act or the agreement;
(c) any clause specifying that the employer must employ only members of a particular
union or must show any preference or favour regarding recruitment, offer of
employment, retrenchment or termination of
employment, only to members of a particular union.

The grievance/dispute process is initiated by the employee who is experiencing dissatisfaction. He takes
the issue to his line manager and if the issue is not satisfactorily resolved at that level, it is taken to the
department supervisor, then the HR/IR department and if it is still not resolved, it is taken to the
CEO/GM. The effectiveness of this process should be judged by employee satisfaction with its operation.

Differences between complaints, grievances and disputes

These three differ primarily according to the manner and degree of formality used in the presentation of the
employee’s dissatisfaction.

Complaint – when employee dissatisfaction is expressed informally. This does not trigger the
grievance handling and dispute resolution procedure. Complaints are informal and should be dealt with
immediately. Because there is no formal manifestation of the problem, it is usually left
unaddressed. They also tend to be individual.
Grievance – when employee formally expresses complaint, usually in written form to line supervisor
etc. This is the first trigger in the grievance handling and dispute resolution procedure. The
grievance needs to be written for specificity and clarity. The scope of the grievance must be clearly
defined so that the scope cannot balloon should it reach the Industrial Court. Grievance tend to be a group /
class issue.

Dispute – this is when the grievance is unresolved by management and the trade union becomes involved
either through the shop steward or any full time official of the RMU. The involvement of an external party
turns a grievance into a dispute.

There are two types of disputes: rights and interest.

Rights disputes – this deals with the interpretation of an existing condition, such as going outside of the
contract, e.g. requesting employee to perform duties outside of the job description. Rights disputes go to
the Industrial Court.

Interests’ disputes – these arise during negotiations of the terms and conditions of the collective agreement.
These can lead to changes in the status quo, as there exists the ability to change the terms and conditions
of the CA. (Republic Bank). Interest disputes go to the Ministry of Labour.

Primary categories of sources of conflict

ü Economic terms and conditions of employment
ü Physical job conditions (must be congenial, safe and healthy)
ü Job demands either above or below worker’s skills and abilities
ü Work load
ü Unsafe work practices
ü Respect and recognition
ü Favouritism/nepotism
ü Level of authority
ü Discrimination
ü Victimization
ü Un-kept promises (where conditions differ to what was promised)
ü Lack of resources
ü Leadership issues
ü Chain of command
ü Competition among peers or cliques
ü Personality conflicts and personal problems
ü Ideological differences (set performance agreements between worker and employer. In a
unionized environment, this would be done with the TU)

There must be a clear chain of command (management), especially when dealing with grievances, so
that there is no confusion as to whom a worker must express his dissatisfaction and to whom that
person must confer etc. How can a person without authority to suspend do so?

THE GRIEVANCE POLICY

This is why grievance policies are important. They establish the organization climate, objectives and
manner in which managers will be expected to respond to any grievance
or dispute presented by the employee. They also outline clear procedures for employees to grieve.

Grievance / Dispute Procedure

The adoption of a staged approach within the grievance procedure reflects organizational reality, that is, a
hierarchy of roles based on increasing responsibility and authority. There are three broad levels at which
the procedure operates:
(1 ) Within the department
(2 ) Outside the department but within the organization
(3 ) External to the organization

The Grievance Interview

This is where management speaks with the employee or union representative to ascertain the facts
of the matter. At this stage the supervisor assumes importance, as he should have been the first person
familiar with the grievance. Here, after establishing the nature of the grievance, management states
and explains the position of the organization after which both sides try to come to a mutually acceptable
compromise.

Effective communication skills

“Seek first to understand and then be understood”. (Doctors) HR/IR personnel must learn to listen with
a view to understanding rather than responding.

There are five levels of listening:

1 . Ignoring
2 . Pretend listening
3 . Selective listening (music, Williams)
4 . Active listening
5 . Emphatic listening – to capture non-verbal messages
STRUCTURING AN INVESTIGATION
Newton George

Before starting an investigation, the following must be established:

1 . Stating issues in terms of policies as written and explained to employees by the employer
2 . Using information gathering techniques
3 . Interviewing techniques for gathering information from other employees / witnesses
4 . Establishing when to involve an external party (Attorney-at-Law; Consultant)
5 . Always record dates and times so that time lines do not become as issue

While the investigate should deal specifically with the issue at hand, employers tend to explore other
issues not related to the issue being dealt with; this is not to say, nevertheless that past behaviour
cannot be brought up to illustrate trends.

How are company policies determined?

- Policies and procedures manual
- Disciplinary code
- precedent
- Law
- Industrial relations practices and principles as derived from cases. The IR Act does not provide
these.
- Collaboration with the various stakeholders
- Corporate values, e.g. integrity; respect, customer focus, professionalism.
- Minutes, agreements
i. E.g. issue vs. policy (See NP case where worker took casual days on Thursday and
Friday to facilitate a “long weekend” travel arrangement). Can casual days be taken for
vacation? The definition of “casual days” states that these days are to be taken when
personal errands have to be
done that cannot be dome after work or on the weekend. There is no explicit
prohibition against travel.

It is important to remember that in establishing disciplinary codes, they should provide guidelines and not
be rigid in its interpretation and usage as each individual case is different. When disciplining, it is
further important to be mindful of precedents which help maintain equality and fairness. One person
cannot be punished more severely for the same infraction as committed by another who received a more
lenient punishment.

Disciplinary action must be organized and constructive. There are four steps (the first two of which may
be exercised more than once before moving along the steps, depending, of course, on the nature of the
problem. These steps are:
Ø Oral warning(s). Even though oral, it is advised that these warnings be documented
Ø Written warning(s)
Ø Suspension
Ø Dismissal

In deciding whether to dismiss an employee, it is important to answer the following:

 Was the action inimical to the Company’s interest?

Scenario: One of the company’s better customers enters the compound only to witness obscene behaviour
(swearing, physical violence) on the part of the employee causing the customer to seek a hasty retreat. This
causes the company to suffer economic loss.

Using Information Gathering Techniques

¨ Reliability and validity. Reliability - Tests must consistently produce similar results.
Validity - e.g. letter of suspension must cover issue at hand (suspension for persistent and
inexcusable unpunctuality cannot deal with the issue of dressing inappropriately for work).
¨ The interview is a source of primary information; written testimonies of witnesses
are even better.
¨ Observation – when there is an incident/action in the yard, go see. Do not sit in the office and
simply take the word of the persons reporting it when you can witness personally. If the issue
is one of missing items, verify this in person. The use of cameras on the premises are also useful.
¨ Records / database.
¨ Audits – performing audits provides gap analyses for items that should be in stock vs what
actually obtains.
¨ Research – library, Industrial Court, ECA, other companies. This helps HR officer to be au courant
with how similar situations are being treated.

THE DISCIPLINARY INTERVIEW

This is perhaps the most critical phase of the formal disciplinary process. HR Officer

MUST BE PREPARED.
¨ In preparing for the interview, it must be established whether there is a prima facie case. This
would be deduced from the issue at hand and established company policy concerning said
issue.
¨ Be certain of the infraction
¨ Determine evidence to substantiate breach
¨ Decide whether or not it is a matter for formal disciplinary action
¨ Consider range of penalties that are available should the facts of the case be proved. The
penalty must suit the infraction, otherwise it will be seen as unjust and unfair. Not only must the
penalty fit the infraction, the procedure must also be valid.
¨ Determine whether you have the authority to carry out such a penalties within the procedure.
Does the line supervisor have the authority to hire, fire, transfer?
He may have the authority to investigate incidents but not to fire. Note that
authority must not only be negative, there is authority for promoting as well. In some instances,
authority may be delegated for certain actions, such as delegated
authority to institute disciplinary actions, which does not extend to hiring, firing, etc. (See owing
the issue above.) This is a major difference between IR officers and HR officers. HR officers
may be able to do so.
¨ Policies should clearly identify lines and positions of authority.
OBJECTIVES OF THE INTERVIEW
(A ) Establish the facts of the case
(B ) Review information gathered in employee’s presence
(C ) Allow employee to question it. It is essential that the officer in charge verify that the employee
received, read and understand the letter of notice stating the issues.
This allows for verification of facts. It is advisable to read the letter aloud to the
employee and allow him to respond to each allegation. This allows for the establishment
of the issue with the employee.
(D)Allow employee to question witness
(E ) Allow employee to present his side of the case
(F) Allow employee to call his witness or union representative as he wishes

To Note:
Present arguments clearly and concisely. Itinerant contractor – contractor signed contract to work as
an “itinerant contractor” and presented himself for work each morning. On not being called to
work, he went to his union representative and took the issue to the Industrial Court. It was there
discovered that not only did the contractor not understand the term “itinerant contractor” but could
not read and therefore signed a contract without having understood it.
Issue of smoking in a non-smoking area. Confirm whether there is clear signage in clear view etc.
Maintain control of interview but at the same time allow employee to present his case.
Concentrate on the facts relating to the performance or behaviour of the employee and do not get
drawn into personality clashes.
Behave in a calm, rational manner and never get angry, sarcastic or rude. Should the employer
verbally abuse the employee, employer is seen to accept such language as appropriate and the
employee may respond in like manner without fear of reprisal. “The language of the shop floor is
not for prudes”.
Indicate time needed to consider the facts / evidence and submission of the worker. When the
decision has been delayed for whatever reason, inform the
employee in the interim, so that he does not feel that his matter is not sufficiently
important.
In instances only where the employee’s physical presence on the premises can prejudice the
investigation, he can be removed from the premises (or asked to stay away until determination
of the matter). In cases of fraud, the accountant must be sent home WITH PAY pending the
outcome of the investigation.

B ) Administering Disciplinary Sanctions

Employee must be reprimanded but not humiliated
In addition to the four steps of disciplinary action stated above, disciplinary action may also
include:
o Transfers
o Constructive dismissal (to be avoided)
o Demotion (construed as constructive dismissal)

An employee being disciplined must still be considered for promotion given positive changes in his
behaviour.
 Follow up: on witnesses, employees who were not available for the interview
The employee should receive written confirmation of disciplinary action
Copy of letter must be given to shop steward and one placed in employee’s file
Appropriate senior management and HR should be informed of action (to temporarily stop
payments; supervisor will know not to expect absence notes etc.)
Monitor performance / behaviour (on return) of employee (if suspended) and ensure that the
positive behaviour is maintained

APPEALS
Provisions must be made for the employee to be able to appeal against any disciplinary action; either via
the normal grievance procedure or through a special disciplinary appeal mechanism.

Establish a disciplinary appeal mechanism which may involve any of the following external
parties
o Attorneys-at-Law for advice
o IR consultants
o Police (for non-employees, such as witnesses to an incident)
o Mediator to deal with deep-rooted issues between departments
o Ministry of Labour
o Industrial Court

Win-win situations should not be measured only in terms of money. Such situations must be visualized
with the end result / value added in mind.
LECTURE 8 (WEEKS 10 & 11) COLLECTIVE BARGAINING NEGOTIATIONS COLLECTIVE
BARGAINING NEGOTIATIONS
By
Sriyan de Silva 1996

TABLE OF CONTENTS

A.Introduction
B. Negotiation and Collective Bargaining C.
Nature of Collective Bargaining
D. Conditions for Successful Collective Bargaining pluralism
and the freedom of association trade union
recognition
observance of agreements
support of labour administration authorities good faith
proper internal communication
E. Advantages of Collective Bargaining
F. Current Trends in Collective Bargaining G.
Issues of Concern for Employers
addressing productivity and efficiency issues criteria
for wage increases
levels of bargaining
recognition criteria extension
of agreements
disputes arising out of agreements H. Pre-
Negotiation Preparations
objectives negotiating
team research and study
responding to the union's requests inventing options
strategy
I. The Negotiations
principled negotiation who
commences
management's reactions
internal communication notes
of discussion styles of
negotiation
some basic rules of collective bargaining negotiation J. The
Agreement
A. IN T R O D U C T IO N
This Paper addresses the differences between negotiation and collective bargaining, the nature of collective
bargaining, the conditions necessary for successful collective bargaining, some of the advantages of
collective bargaining, issues of concern for employers and guidelines for employers on the process of
bargaining itself from the pre- negotiation stage to the agreement itself. Some of the fundamental
principles, the observance of which could achieve the broader objectives of negotiations in the
employment relationship, are discussed in another Paper entitled "Principles of Negotiation".

B. NEGOTIATION AND COLLECTIVE BARGAINING

Collective bargaining is specifically an industrial relations mechanism or tool, and is an aspect of
negotiation, applicable to the employment relationship. As a process, the two are in essence the same, and
the principles applicable to negotiations are relevant to collective bargaining as well. However, some
differences need to be noted.

In collective bargaining the union always has a collective interest since the negotiations are for the benefit
of several employees. Where collective bargaining is not for one employer but for several, collective
interests become a feature for both parties to the bargaining process. In negotiations in non-employment
situations, collective interests are less, or non-existent, except when states negotiate with each other.
Further, in labour relations, negotiations involve the public interest such as where negotiations are on
wages which can impact on prices. This is implicitly recognized when a party or the parties seek the
support of the public, especially where negotiations have failed and work disruptions follow.
Governments intervene when necessary in collective bargaining because the negotiations are of interest to
those beyond the parties themselves.

In collective bargaining certain essential conditions need to be satisfied, such as the existence of the
freedom of association and a labour law system. Further, since the beneficiaries of collective
bargaining are in daily contact with each other, negotiations take place in the background of a continuing
relationship which ultimately motivates the parties to resolve the specific issues.

The nature of the relationship between the parties in collective bargaining distinguishes the negotiations
from normal commercial negotiations in which the buyer may be in a stronger position as he could take
his business elsewhere. In the employment relationship the employer is, in a sense, a buyer of services and
the employee the seller, and the latter may have the more potent sanction in the form of trade union action.

Unfortunately the term "bargaining" implies that the process is one of haggling, which is more
appropriate to one-time relationships such as a one-time purchaser or a claimant to damages. While
collective bargaining may take the form of haggling, ideally it should involve adjusting the respective
positions of the parties in a way that is satisfactory to all, for reasons explained in the Paper entitled
"Principles of Negotiation".
C. NATURE OF COLLECTIVE BARGAINING
The ILO Right to Organize and Collective Bargaining Convention (No. 98), 1949 describes collective
bargaining as:
"Voluntary negotiation between employers or employers' organizations and workers' organizations,
with a view to the regulation of terms and conditions of employment by
collective agreements."
Collective bargaining could also be defined as negotiations relating to terms of employment and
conditions of work between an employer, a group of employers or an employers' organization on the one
hand, and representative workers' organizations on
the other, with a view to reaching agreement.
There are several essential features of collective bargaining, all of which cannot be reflected in a
single definition or description of the process:
i. It is not equivalent to collective agreements because collective bargaining refers to the process
or means, and collective agreements to the possible result, of
bargaining. Collective bargaining may not always lead to a collective agreement.
ii. It is a method used by trade unions to improve the terms and conditions of employment of
their members.
iii. It seeks to restore the unequal bargaining position between employer and employee.
iv. Where it leads to an agreement, it modifies, rather than replaces, the individual contract of
employment, because it does not create the employer-employee relationship.
v. The process is bipartite, but in some developing countries the State plays a role in the form of a
conciliator where disagreements occur, or where collective
bargaining impinges on government policy.

D. CONDITIONS FOR SUCCESSFUL COLLECTIVE BARGAINING

PLURALISM AND THE FREEDOM OF ASSOCIATION
A pluralistic outlook involves the acceptance within a political system of pressure groups
(e.g. religious groups, unions, business associations, political parties) with specific interests with
which a government has dialogue, with a view to effecting compromises
by making concessions. Pluralism implies a process of bargaining between these groups,
and between one or more of them on the one hand and the government on the other. It therefore recognises
these groups as the checks and balances which guarantee democracy. It is natural that in labour
relations in a pluralist society, collective
bargaining is recognised as a fundamental tool through which stability is maintained, while the freedom
of association is the sine qua non because without the right of association the interest groups in a
society would be unable to function effectively. Thus pluralism's
"theme is that men associate together to further their common interests
and desires; their associations exert pressure on each other and on the
government; the concessions which follow help to bind society together;
thereafter stability is maintained by further concessions and adjustments
as new associations emerge and power shifts from one group to
another."

Clegg: A New Approach to Industrial Democracy, Blackwell, Oxford, UK, 1960 at 20).
There can, therefore, be no meaningful collective bargaining without the freedom of association
accorded to both employers and workers.

TRADE UNION RECOGNITION

The existence of the freedom of association does not necessarily mean that there would automatically be
recognition of unions for bargaining purposes. Especially in systems where there is a multiplicity of
trade unions, there should be some pre-determined objective criteria operative within the industrial
relations system to decide when and how a union should be recognised for collective bargaining
purposes. The accepted principle is to recognise the most representative union, but what criteria is
used to decide it and by whom may differ from system to system. In some systems the issue would be
determined by requiring the union to have not less than a stipulated percentage of the workers in
the enterprise or category in its membership. The representativeness may be decided by a referendum
in the workplace or by an outside certifying authority (such as a labour department or an independent
statutory body). There could be a condition that once certified as the bargaining agent, there cannot be a
change of agent for a prescribed period (e.g. one or two years) in order to ensure the stability of the
process.

OBSERVANCE OF AGREEMENTS
Especially in developing countries where there is a multiplicity of unions, unions are sometimes unable
to secure observance of agreements by their members. Where a labour law system provides for
sanctions for breaches of agreements, the labour administration authorities may be reluctant to
impose sanctions on workers. Where there is frequent non-observance of agreements or understandings
reached through the collective bargaining process, the party not in default would lose faith in the process.

SUPPORT OF LABOUR ADMINISTRATION AUTHORITIES

Support by the labour administration authorities is necessary for successful collective bargaining. This
implies that they will:
i. provide the necessary climate for it. For instance, they should provide effective
conciliation services in the event of a breakdown in the process, and even provide the necessary
legal framework for it to operate in where necessary, e.g. provision for the registration of
agreements.
ii. will not support a party in breach of agreements concluded consequent to
collective bargaining.
iii. as far as is practicable, secure observance of collective bargaining agreements.
iv. provide methods for the settlement of disputes arising out of collective bargaining if the parties
themselves have not so provided.

GOOD FAITH
Collective bargaining is workable only if the parties bargain in good faith. If not, there will be only the
process of bargaining without a result viz. an agreement. Good faith is more likely where certain
attitudes are shared among employers, workers and their organizations e.g. a belief and faith in the value
of compromise through dialogue, in the process of collective bargaining, and in the productive nature
of the relationship collective bargaining requires and develops. Strong organizations of workers and
employers contribute to bargaining in good faith, because there would be some parity in the bargaining
strength of the two parties.
PROPER INTERNAL COMMUNICATION
Both the management and union should keep their managers and members respectively well informed, as a
lack of proper communication and information can lead to misunderstandings and even to strikes.
Sometimes managers and supervisors who are ill-informed may inadvertently mislead workers who work
under them about the current state of negotiations, the management's objectives and so on. In fact, it is
necessary to involve managers in deciding on objectives and solutions, and such participation is likely
to ensure greater acceptance - and therefore better implementation - by them.

E. ADVANTAGES OF COLLECTIVE BARGAINING

First, collective bargaining has the advantage of settlement through dialogue and consensus rather
than through conflict and confrontation. It differs from arbitration where the solution is based on a
decision of a third party, while arrangements resulting from collective bargaining usually represent the
choice or compromise of the parties themselves. Arbitration may displease one party because it usually
involves a win/lose situation, and sometimes it may even displease both parties.

Second, collective bargaining agreements often institutionalize settlement through dialogue. For
instance, a collective agreement may provide for methods by which disputes between the parties
will be settled. In that event the parties know beforehand that if they are in disagreement there is an agreed
method by which such disagreement may be resolved.

Third, collective bargaining is a form of participation. Both parties participate in deciding what
proportion of the 'cake' is to be shared by the parties entitled to a share. It is a form of participation also
because it involves a sharing of rule-making power between employers and unions in areas which
in earlier times were regarded as management prerogatives, e.g. transfer, promotion, redundancy,
discipline, modernisation, production norms. However, in some countries such as Singapore and
Malaysia, transfers, promotions, retrenchments, lay-offs and work assignments are excluded by law
from the scope of collective bargaining.

Fourth, collective bargaining agreements sometimes renounce or limit the settlement of disputes through
trade union action. Such agreements have the effect of guaranteeing industrial peace for the duration of the
agreements, either generally or more usually on matters covered by the agreement.

Fifth, collective bargaining is an essential feature in the concept of social partnership towards which
labour relations should strive. Social partnership in this context may be described as a partnership
between organised employer institutions and organised labour institutions designed to maintain non-
confrontational processes in the settlement of disputes which may arise between employers and
employees.

Sixth, collective bargaining has valuable by-products relevant to the relationship between the two
parties. For instance, a long course of successful and bona fide dealings leads to the generation of trust.
It contributes towards mutual understanding by establishing a continuing relationship. The process,
once the relationship of trust and
understanding has been established, creates an attitude of attacking problems together rather than each
other.

Seventh, in societies where there is a multiplicity of unions and shifting union loyalties, collective
bargaining and consequent agreements tend to stabilise union membership. For instance, where there is a
collective agreement employees are less likely to change union affiliations frequently. This is of value
also to employers who are faced with constant changes in union membership and consequent inter-
union rivalries resulting in more disputes in the workplace than otherwise.

Eighth, perhaps most important of all - collective bargaining usually has the effect of improving
industrial relations. This improvement can be at different levels. The continuing dialogue tends to
improve relations at the workplace level between workers and the union on the one hand and the
employer on the other. It also establishes a productive relationship between the union and the
employers' organization where the latter is involved in the negotiation process.

F. CURRENT TRENDS IN COLLECTIVE BARGAINING

Collective bargaining may take place at the national, industry or enterprise level. In no country does it take
place exclusively at one level only. However, in many industrialized countries, especially in Europe, the
existence of strong employers' organizations and trade unions have resulted in many important
agreements being concluded at the national or industry level, supplemented by some enterprise level
bargaining. In the USA, however, bargaining at the enterprise level has been the more usual practice, other
than in specific sectors such as coal, steel, trucking and construction. In Japan national level bargaining has
been the exception, and it has been supplemented by a substantial amount of enterprise level bargaining,
facilitated partly by union structures which are enterprise-based. In many Asian countries relatively
low rates of unionisation have militated against national and industry level bargaining, and enterprise
level bargaining has been more common. This accounts for the relative non-involvement of some Asian
employers' organizations in collective bargaining. Japanese employers and workers have demonstrated how
a combination of enterprise level bargaining and shop floor mechanisms (such as joint consultation)
enables the parties to take into account specific enterprise conditions and also to increase productivity.

The tendency during the last decade - and especially in the 1990s - even among industrialised
countries with a highly centralised bargaining system, is towards enterprise level bargaining. This is
true of even a country like Sweden with a strong employers' organization, a strong trade union
movement, and a previous tradition of centralized bargaining. In the 1990s the avowed policy of the
Swedish Employers' Confederation has been to move negotiation to the enterprise level. Decline in
union membership and an increase in corporate power in Europe have contributed to this trend. But
most importantly, restructuring of enterprises flowing from intense competition has created the need to
focus on enterprise level issues such as flexible working time, removal of narrow job classifications,
new work organization, promotion of more worker involvement schemes and decentralised decision-
making. Many employers view centralised bargaining as facilitating more equal distribution of incomes, but
depriving employers of the ability to use pay as an instrument for productivity
enhancement and to compensate for skills and performance. The push by employers for flexibility in the
context of increasing global competition has raised many issues which are more appropriately dealt with at
the enterprise level. Some of the many concerns of employers such as productivity and quality,
performance, and skills development to retain or gain competitive edge and to make rapid changes
to adapt to the global marketplace, are likely to increase the movement towards more enterprise level
negotiation.

G. ISSUES OF CONCERN FOR EMPLOYERS

ADDRESSING PRODUCTIVITY AND EFFICIENCY ISSUES
Historically, collective bargaining has addressed equity issues from the point of view of employees -
issues such as a fair wage, working conditions and the equal distribution of wage increases to all.
Until recently, considerations of efficiency important to productivity were either not addressed, or
were accorded relatively little importance. Increasingly employers wish to utilize the collective
bargaining process to effect workplace changes in the interests of competitiveness. Hence the view of
employers that the process should address not only how the gains of improved performance should be
shared, but also how to increase the productivity 'cake' so to speak, This is the only way in which regular
pay increases can be absorbed without eroding profitability and jeopardising competitiveness.

However, collective bargaining is relatively more conflictual than some other forms of negotiation and
consultation. Therefore, to reduce the conflictual issues it is more effective for employers and their
employees to establish joint consultation mechanisms to achieve an understanding on how to increase the
productivity 'cake'. In that event, in collective bargaining the areas of dispute would be narrowed, and both
parties would be likely to share a common view about the issues and even arrive at a basic agreement on
them. In this connection the joint consultation system in the larger Japanese enterprises which fulfil this
function is worth noting.

Collective bargaining in Japan results from constitutional guarantees, the Trade Union Act, the obligation
to bargain in good faith and the right to strike. Joint consultation, on the other hand, is a voluntary system
which is an outcome of arrangements between the parties based on the mutual acceptance of the need to
avoid conflict through strikes or other similar actions. Joint consultation schemes have been the
corner-stone of information sharing between management and labour and of labour-management
cooperation in Japan where

"unions and employers .... have long been aware of the importance
of information sharing in an industrial relations system ... after bitter and
protracted strikes in the forties and early fifties, both management and
labour made concerted efforts to restore industrial peace and to
develop a stable industrial relations system ... these efforts led to the
development of key aspects of the modern Japanese industrial
relations system, including the joint consultation, a corner-stone of
labour-management information sharing."
(Motohiro Morishima "Information Sharing and Firm Performance in Japan in 1991 (Vol.30)
Industrial Relations 37 at 39.)

Japanese joint consultation systems had their origins in the 1950s when it was promoted by the
Japan Productivity Centre. It is estimated that by 1990 about 84 per cent of unionized enterprises had set
up joint consultation schemes, and 44 per cent of the non-unionized ones had joint consultation
arrangements. These mechanisms, which are an aspect of two-way communication, deal with a variety of
issues. In both unionized and non-unionized establishments the most common subjects which come
within consultation are working conditions, working hours, leave, safety and health, welfare and
cultural activities, bonus, pension and retirement payments, work scheduling, education and training,
recruitment, transfers, lay off, job assignment. There are also a range of management issues which fall
within joint consultation, but on these matters management merely provides information and explanations.
These management issues include business plans and policies, introduction of new technology,
organizational changes and production and sales plans. Many establishments have two levels of
communication. Quality circles and shop floor committees represent the mechanisms at the shop floor
level, and joint consultation committees represent the mechanisms at the corporate level. These committees
supplement collective bargaining in the sense that they provide the forum for information-sharing prior to
wage negotiations.

In Japan, the frequency of joint consultations varies. But on an average in unionized firms there may be
15 meetings and in non-unionized firms about 8 per year. Research suggests that information sharing
through the joint consultation system has had a positive effect on profitability, labour productivity
and on reducing labour costs, especially in the manufacturing sector (ibid.). Recent evidence suggests
that the larger American corporations "share more business and financial information with their
unions and employees than is required by law, and that information sharing within the non-union sector -
where the statutory requirement for information disclosure is much less stringent - is as extensive as in the
union sector." (ibid. at 37).

In Japan, different views on the effectiveness of joint consultation exist in relation to unionized and
non-unionized firms. About 75 per cent of unionized firms find joint consultation effective, while less
than 50 per cent of non-unionized firms find it so. (Shozo Inoue "Building Better Industrial Relations:
The Japanese Experience" in Report of the ILO/Japan Workshop for Asia-Pacific Employers'
Organizations on Sound Labour Relations Practices, Singapore, 2-6 March 1992: ILO, Bangkok 33 at
40). According to Shozo Inoue (ibid.):

"Effective areas of JC among the unionized establishments are:

improved communication between the management and the union (78 per
cent), followed by more smooth business operation, and improved work
environments. Improving job satisfaction and increasing interest in
management did not score high points. In contrast, the non-union
establishments report that employees developed greater interest in
management (45 per cent), followed by improved business operation,
communication and job satisfaction."
One of the significant characteristics of joint consultation in Japan is that collective bargaining and
joint consultation serve different objectives and are therefore not in conflict with each other.
Bargainable issues are dealt with under collective bargaining and non-bargainable ones under joint
consultation. If during joint consultation some issues become bargainable (which could happen in relation
to matters on which it is not clear whether they are bargainable ones or not), they will be transferred to the
collective bargaining forum. It is also an important characteristic of the joint consultation system that it
does not handle individual grievances, which are dealt with under grievance handling procedures.

Joint consultation has made a significant contribution to enterprise level labour relations by
creating mutual understanding on a range of management issues which impinge on the lives of
employees. This in turn has had an effect on collective bargaining, which tends to take place in an
atmosphere in which workers have been informed of management objectives, so that the areas for
misunderstanding and conflict are considerably reduced. In effect, therefore, collective bargaining takes
place from a point at which some degree of common objectives have been agreed upon. Since information
on wage criteria is also shared, differences in wage negotiations (which in most countries are highly
contentious) are narrowed, facilitating acceptable compromises and negotiations without disputes.
Joint consultation has motivated employers and employees to generate gains and to share them for their
mutual benefit.

In essence, joint consultation has become the means through which information is shared, mutual
understanding is promoted, participation in arriving at decisions is facilitated, and working conditions
are negotiated. As such, it is an essential component of Japanese enterprise level labour relations. The
enterprise level union system significantly contributes to the workability and effectiveness of the joint
consultation system.

CRITERIA FOR WAGE INCREASES

Traditionally, the factors or criteria which have influenced pay increases through collective
bargaining include enterprise profit, job evaluation, seniority, cost of living, manpower shortage or
surplus, the negotiating strength and skills of the parties. Performance measures such as productivity
or profit related to groups or individuals have not featured prominently in collective bargaining.
Further, though wage rates negotiated through collective bargaining do reflect wage differentials based
on skills, such differentials have not been geared to the encouragement of skills acquisition and
application. Therefore a major concern for employers is the need to negotiate pay systems which
are
• strategic in the sense that they achieve strategic objectives
• flexible in the sense that their variable component can absorb downturns in business and
reduce labour costs
• oriented towards better performance in terms of productivity, quality, profit or whatever
performance criteria are agreed upon
• capable of enhancing earnings of employees through improved performance
• capable of reducing the incidence of redundancies during times of recession or poor enterprise
performance through the flexible component of pay
• able to reward good performance without increasing labour costs as a part of total costs through
enhanced productivity
• able to attract and retain competent staff
 • able overall to control or stabilize labour costs.

These objectives have come to the forefront, particularly due to pressures flowing from globalization.

Therefore wage increases through collective bargaining need to be based on a wider range of criteria
than has traditionally been the case. Otherwise once collective bargaining is over, the employer may be
left without the financial capacity to adjust pay based on group or individual performance, as well as on
skills acquisition and application.

LEVELS OF BARGAINING
Originally collective bargaining at the national or the industry level was viewed by employers as a
means of reducing competition based on labour costs through standardized wage rates. Employers no
longer view collective bargaining from this perspective. Instead, centralized and industry level
negotiation is considered as depriving enterprises of the needed flexibility to compete on the basis of
adjustments at the level of the enterprise in relation to pay, working hours and conditions, work
organization, manpower utilization and so on. The efficiency gains are considerably greater - and
more easily realizable - when negotiations take place at the enterprise level. Therefore, the major thrust
in all countries where the pattern hitherto was national or industry level bargaining, towards increased
enterprise-level bargaining, has been by employers. Not all unions favour this trend; their power position
can be automatically eroded by this trend, just as it is enhanced through centralized or industry
level bargaining.

RECOGNITION CRITERIA
Even where there is a single union structure, there should be recognition criteria applicable to the
union for collective bargaining purposes. The union should be representative of a minimum
percentage of employees, as the employer cannot reasonably be expected to conclude an agreement
with a union which is not representative.

The need for recognition criteria is all the greater where there is union multiplicity. In countries with
union multiplicity and rivalry, recognition disputes have been a cause of major disputes, and practical
problems often arise. One is the issue of the continued applicability of an agreement to workers who
subsequently leave the negotiating union and join another union. Another issue relates to the status of a
collective agreement where, during the duration of the agreement, the union loses its membership and
is replaced by another union in the workplace. Employers expect the legal framework to provide for such
issues, so as to overcome uncertainty and avoid disputes.

EXTENSION OF AGREEMENTS
The principle of extension of collective agreements to cover employers and employees not parties to, or
covered by, such agreements, is embodied in some labour law systems. The issue can arise only where
negotiations are above the level of the enterprise, but can nevertheless be undesirable from several points
of view.
First, extension of collective agreements deprives an employer of the opportunity he would have had,
had he been a party to the negotiations, to take account of workplace conditions and needs. This is
particularly important at a time when enterprise level bargaining is the trend.

Second, it is inconsistent to speak of voluntary collective bargaining on the one hand and provide for
involuntary coverage on the other. An extension of coverage should occur, if at all, only where both
parties agree to it.

Third, extensions are impractical - and can be harmful - in countries with large regional disparities.

DISPUTES ARISING OUT OF AGREEMENTS

Employers expect disputes connected with collective agreements, whether they relate to interpretation or
non-observance, to be settled in accordance with procedures agreed to and contained in the agreement, or
through other machinery with conciliation as a first step.

H. PRE-NEGOTIATION PREPARATIONS
OBJECTIVES
A party wishing to arrive at a satisfactory conclusion or arrangement through collective bargaining should
first identify the objectives of the exercise. Some objectives common to employers are the following:
i. Ensuring that the enterprise is not rendered uncompetitive
ii. The need to keep wage increases below the level of productivity increases and/or within the
inflation rate.
iii. Guarantees of industrial peace during the period of operation of the agreement

As far as possible managers should be consulted in determining objectives; their priorities should
be solicited, and they should be aware of the company's views in regard to objectives so that they could be
tested against the managers' views.

It is insufficient to merely determine objectives. A tentative plan to achieve these objectives,

which can be modified during the course of the negotiations, could be formulated. Such a plan
should include the company's requests to the union. For instance, work reorganization to increase
productivity to absorb the cost increases consequent upon collective bargaining may form part of the
company's plan. Negotiations on the union's demands are generally an ideal setting in which
management can achieve some of its objectives through agreement. In order to achieve this, the
management must be clear about its own priorities. If there is an existing collective agreement, it
would be a useful starting point. An analysis should be made of how it has worked, its unsatisfactory
features from the company's point of view should be identified, and the changes necessary determined.

NEGOTIATING TEAM
The negotiating team, and the respective roles of the members, should be determined before the
negotiations. Employers would find it useful to include in the team people from different disciplines.
RESEARCH AND STUDY
The union's demands should be carefully studied. The following are some of the matters to which attention
should be paid:
a . Assess the economic impact of the demands on the company.
b . Make a comparative study, e.g. in a wage demand one should ascertain comparative wage rates
in the industry and in allied or similar businesses, the
minimum wage, if any, and the rates applicable in other collective agreements.
c. Separate the demands which the company has no intention of fulfilling or giving, either on a
question of principle or due to economic incapacity.
d . Prepare the company's position in regard to the other demands, e.g. the
conditions on which the company may be prepared to grant them or compromise on them.
e. Identify the demands which may be of crucial importance to the union or to the employees as the
case may be. This is crucial to success in negotiations because, without a proper assessment of such
demands, a negotiated settlement may not
result or, if one results, it may lack durability because it has not addressed the main problems.
The issues which may be of crucial importance may not be the same in the case of both (union
and employees) as they may have differing interests. Having identified the crucial demands the
company should formulate its strategy in relation to them e.g. the possibility of trading
some of the company's demands in return for the union's demands.

RESPONDING TO THE UNION'S REQUESTS

It is a matter of assessment in each situation as to whether the management should make an initial
response in writing to the union before negotiations commence.

Usually it is desirable that written positions stated before negotiations commence should not
contain a flat or blanket refusal. At this stage it is preferable to couch a refusal in language which does
not give the impression of an out-of-hand rejection or a rejection without consideration of the merits.
Negative answers may sometimes be better given during the negotiations because it affords greater
opportunities for explanations of the reasons for the negative answers. A rejection during negotiations
would more likely give the impression to the union and employees that such rejection was made only after
negotiations and not before. It is always useful from the point of view of reaching agreement on other
matters to first listen to the reasons adduced by the union for a demand which the company does not
propose to accept. A rejection during negotiations also enables the employer to convince a union of at least
some of the reasons why the demand is not acceptable. It also prevents a union from resorting to trade
union action on the issue of a refusal to negotiate, as distinct from rejection of the demands after
negotiation.

INVENTING OPTIONS.
Since negotiations may not proceed or take place in the way a party may plan, a party should be able to
provide alternative options to what he, or the other party, expects. For example, if it transpires that the
wage increase sought is not acceptable, the employer should be prepared with alternatives to cushion the
impact of an increase in excess of what it had planned to agree to.
 STRATEGY
A party to collective bargaining negotiations has to formulate a strategy for all stages of the negotiation,
including the pre-negotiation stage. Before negotiations commence, the strategy should include matters
such as;
a . options as referred to above
b . how much to offer while leaving room for further negotiation if the offer fails. The offer should
be sufficiently attractive so as not to lead to a breakdown in
negotiations.
c. how to link one's requirements to the concessions one makes.

I. THE NEGOTIATIONS
PRINCIPLED NEGOTIATION
The broad principles on which negotiations should be conducted are outlined in the Paper entitled
"Principles of Negotiation". This section will therefore underline some other matters to which attention
should be paid.

WHO COMMENCES
There is no inflexible rule as to who should open the negotiations. However, it is not unreasonable for
the management to claim that if the union has initiated the negotiations, it should first outline its
rationale and justification for doing so. Nevertheless, the management should make it clear at the outset
that agreement on any particular issue is subject to an overall settlement, including its own expectations
from the union.

MANAGEMENT'S REACTIONS
In outlining the employer's response, the following could be included:
i. The context in which the employer is negotiating, such as the business environment, and how
this affects the employer's position in the negotiations.
ii. A judgement will have to be made about the stage at which the union should be informed about
the items on which the employer will not make any concession. However, the impression should
not be created that the union will not be allowed
an opportunity to present its case.
iii. The basis on which the employer is prepared to negotiate. This could include the employer's
objectives and expectations from a collective agreement, and any unsatisfactory features in
the existing agreement (if there is one) which require to be rectified.

INTERNAL COMMUNICATION
During the negotiations there should be good internal communication between the company and its
managers about the situation at any given time. This will help clarify misunderstandings and even
eliminate disinformation especially where employees, as happens in developing countries, seek
information or clarification from their managers.

NOTES OF DISCUSSION
Notes of the discussion should be maintained, and preferably issued and agreed on with the other party, to
avoid misunderstandings. Such notes could be useful in the event of disputes and a breakdown in
negotiations.
STYLES OF NEGOTIATION
It is an essential principle of negotiation - indeed of human relations - that one's style of negotiation may
need to be adapted to the style of the other party. The negotiator who adopts only one approach to
negotiations may be puzzled when he finds that the approach in question bears fruit in some cases but
causes an adverse reaction in other cases. The ability to allow the attitudes of the other party or the facts
or merits of the issue to fashion one's own particular style in a given negotiation requires a high degree of
flexibility on the part of the negotiator, an absence of a pre-conceived approach to negotiation, and
recognition of the fact that ultimately what matters is one's ability to secure one's objectives through
dialogue. However, this should not be understood to mean that there should not be a principled
approach to negotiation. What it means is that often one has to take into account even the idiosyncrasies
of the other party and assess what form of presentation is likely to appeal best to the person whom
one is trying to convince.

SOME BASIC RULES IN COLLECTIVE BARGAINING NEGOTIATIONS

A negotiator should view negotiations as an exercise with both sides walking towards each other, rather
than away from each other. This will enable the negotiator to keep in mind that the final objective is a
satisfactory agreement. It will also lead to a search for, or identification of, common ground while also
addressing the differences.

A negotiator should be good at listening carefully to the other party who will, otherwise, feel that
disagreement with his position is due to a lack of understanding. This is also necessary to encourage the
other party to listen to you. Some indication should be given to suggest that the party has understood the
other's position. Body language often communicates a party's reactions.

A party should build its case in a logical sequence and, as far as possible, try to obtain agreement at each
stage of the process. This will narrow the areas of disagreement and facilitate focusing on those aspects.

Counter proposals and conditions attached to concessions should be indicated as early as possible, so that
the basis on which a party is prepared to agree or compromise is understood.

Whenever possible, invite the other party to look at the problem from the opposite perspective, e.g.
a wage increase as an additional cost which, due to competitive pressures, requires management to
find ways to absorb it. It is sometimes useful to ask the union for suggestions on how it can cooperate to
facilitate absorption of the increase.

It is usually preferable to avoid taking up at the outset the position that a particular item is not
negotiable. It is more productive to request a party to justify its claim, and then point out why that claim is
unreasonable. Taking up a non-negotiable position can lead to the perception that the position has nothing
to do with the merits and that the party is not willing to listen.

Skilful questioning is an effective way of compelling the other party to justify its claim on the merits, and
even shifting the other party to a different point of view.
J. THE AGREEMENT
When agreement is reached one of the following two courses may be adopted:
i. Set out the agreement reached in a letter to the union and, on confirmation, prepare a draft
agreement.
ii. Alternatively provide the union with a draft agreement. This would be the better
course of action as the actual agreement reached will be clearer. It also leaves less room for
further negotiations between the time agreement is reached and the draft agreement is approved.
Before the agreement is signed, the proper interpretation of clauses which have the
potential to result in problems of interpretation should be agreed upon through, for example, an
exchange of letters. Where there are understandings which affect the interpretation of the agreement,
they should be reduced to writing (e.g. in a letter) before the agreement is signed. But wherever possible, the
agreement should be self-contained, inclusive of definitions or interpretations.

The contents of the agreement would depend on what is agreed upon and on the subject matter. The
following examples are of some general application:
i. The date of commencement of the agreement
ii. Its duration - when it will terminate or may be terminated, and how it can be terminated
iii. A definition of terms which may otherwise be ambiguous
iv. The procedure for settling disputes regarding interpretation, as well as other disputes. This
may also include the issue of trade union action and lock-out, i.e.
in what circumstances such action may or may not be permitted.
v. The consequences in the event of breaches of the agreement
vi. As regards wages, exactly how conversion of employees' wages to the new scales is to be effected.

The signing of an agreement does not ensure its successful implementation. Managers and supervisors
should be acquainted with the agreement through the most appropriate means. A combination of written and
oral communication is often useful.
 TRINIDAD AND TOBAGO

Trade Dispute No. 183 of 2004 IN

THE INDUSTRIAL COURT SAN
FERNANDO

Between
Association of Technical, Administrative and Supervisory Staff - Party No. 1 And
Caroni (1975) Limited. - Party No. 2

Coram:
His Honour Mr. Addison M. Khan – President
A ppearances:

Mr. Seenath Jairam, S.C. (Mr. Rishi Dass, Attorney at Law with him) for Party No. 1; Mr. Reginald
Armour, S.C. (Ms. Vanessa Gopaul, Attorney at Law with him) for Party No. 2

Dated: June 3, 2005

JU D G M E N T

NATURE OF DISPUTE
By letter dated May 20, 2004, the Association of Technical, Administrative and Supervisory Staff (“the
Union”) reported this trade dispute to the Minister of Labour. The dispute concerns a breakdown of
negotiations between the Union and Caroni (1975) Limited (“the Company”) for a collective agreement
for the period, January 1, 2002 to December 31, 2004.

REFERRAL OF DISPUTE TO COURT

On July 21, 2004, the Honourable Minister of Labour and Small and Micro Enterprises referred the dispute
to the Court for determination in accordance with the provisions in that behalf contained in the Industrial
Relations Act, Chap. 88:01 (“the Act”).

THE MATTERS IN DISPUTE

According to the Minister’s Referral, the following matters were in dispute between the parties:

i. Article 3: Duration of Agreement

ii. Article 8:1: Salaries
iii. Article 8:2: Re-classification
iv. Article 9: Cost of Living Allowance
v. Continuation of Group Health Plan

WRITTEN EVIDENCE AND ARGUMENTS

Both parties presented written Evidence and Arguments to the Court.
ORAL EVIDENCE
I also heard the oral evidence of both the Company and the Union. The Company presented four
witnesses, Deosaran Jagroo, the Ag. Chief Executive Officer of the Company, Rajah Arjoon, the
Company’s Insurance and Licensing Clerk, Jennifer Libert, Manager, Employee Benefits of Consolidated
Insurance Brokers Limited and Anthony Rauseo, Agency Manager of Algico, Point Lisas. The lone
witness for the Union was Mervyn Rawlins.

WRITTEN SUBMISSIONS
The Company presented written closing submissions to the Court to which the Union replied. The
Company also submitted a written Rebuttal to the Union’s Reply dated April 21, 2005.

THE WITNESSES FOR THE COMPANY RAJAH

ARJOON

In the main Arjoon stated

He was employed as the Insurance and Licensing Clerk of the Company. He recalled arranging a
meeting between the Company and Algico in relation to the Group Health Plan around February 12,
2004. It was decided at that meeting that Algico would hold a meeting about the Group Health Plan
with all the other Unions. He contacted the Unions by telephone. He spoke to one Irma Brathwaite, one of
the representatives of the Union, and informed her of the meeting and the date. He also spoke to Mr.
Demas informed him of the meeting and gave him a copy of Algico’s brochure. He also spoke to officials
from other unions and informed them of the meeting. He accepted the Company’s VSEP offer but he
was re-employed by the Company. He received a VSEP letter from the Company. The VSEP letter
dated April 11, 2003 provided that Membership in the Group Health Plan will continue but the monthly
contribution will be determined by the provider. The Company ceased operations on August 2, 2003. He
was only asked to arrange a meeting with Algico only on February 12, 2004.

DELAY IN CONCLUDING NEGOTIATIONS

One of the collateral issues raised in the course of the hearing of the dispute was the question of delay
in concluding the negotiations. Jagroo said in the course of his testimony,

i. The Company received the Union’s proposals sometime around the end of 2001.
ii. The Company met with the Union sometime around the middle of 2002 to discuss the proposals.
iii. The Company’s practice was to do a costing of the proposals and forward all relevant
information to the Chief Personnel Officer (“the CPO)” for guidance. In accordance with this
practice, the Company submitted the Union’s proposals and the costing to the CPO.
iv. When the Company met with the Union in the middle of 2002, it was still awaiting
the CPO’s guidance.
 v. Another meetings between the Union and the Company took place on June 5, 2002.
vi. Other meetings between the Union and the Company were held in June 2002 at
which “the continuing of negotiations” was discussed. At those meetings, the Company
updated the Union on “progress being made” or “communications with the CPO’s office.
vii. In the latter part of 2002, the issue of VSEP arose and the various unions held discussions with
the Company about “the impending VSEP programme”. The
Union was represented at those meetings.
viii. Following a stoppage of work by workers, including workers belonging to the bargaining
unit represented by the Union, the Company agreed with the joint staff unions that the VSEP
programme was to be extended to include members of the Staff Associations. This agreement was
reached in January 2003.
ix . Following the above-mentioned agreement, issues relating to the negotiations were mentioned
“but the main focus was on the VSEP and to some extent on the issue of pension enhancement.”
x . Negotiations for the new collective agreement re-commenced on January 29, 2003 with the
joint staff associations but the associations did not accept the
Company’s offer of a 5% increase in salaries over a period of three (3) years. This offer was made
on the basis of the CPO’s guidance. The joint staff associations counter proposed a 25%
increase over three years but the Company did not accept their proposal because it was “outside
of the CPO’s guidance”.
x i. Later, the Company and the Estate Police Association and the Sugar Boilers’
Association agreed on a 5% increase in salaries over a period of three (3) years and formal
agreements were executed between the Company and these associations.
x ii. There was no similar agreement with the Union.

The delay in concluding the negotiations for the collective agreement was clearly inordinate. No
person trained and experienced in industrial relations will countenance such a delay. In my opinion, this is
indeed a sad commentary on the negotiating abilities of both the Union and Company representatives.
Negotiations for a collective agreement should be completed expeditiously. If a Company has to obtain
external advice from the CPO or any other source, it should seek and obtain that advice in a timely
manner. Delay in receiving advice is not an excuse for protracting negotiations over such a long period of
time. On Jagroo’s evidence, there was a delay of some thirteen (13) months before the CPO tendered
its advice to the Company. This is in clear violation of the principles and practices of good industrial
relations. In my experience, even the most complex of collective agreements can be negotiated within a
period of three months, which should be the maximum period allowed for such a negotiation. If a
settlement is not reached within a period of three months, then recourse should be had to the
procedures under the Act for the determination of the resulting dispute. The evil of excessive delay in
concluding collective agreements is dissatisfaction in the workplace which could result in harmful
industrial action or lack of enthusiasm by workers which adversely affects productivity. Delay is beneficial
to neither workers nor employers. In this case, the Union contributed to the delay by only reporting the
matter as a trade dispute to the Minister on May 20, 2004.
CJMS RADIO MONTREAL LIMITED
The Canadian Labour Relations Board explained the responsibility of those who are engaged in the
negotiation of a collective agreement in CJMS Radio Montreal Limited1. The Board frowned upon the
presence of rank amateurs being responsible for negotiating collective agreements, saying,

“Now begins that difficult and complex process known as the negotiation
of a collective agreement. It is difficult because it must bear the stamp of
prudence, responsibility, lucidity and reason on both sides of the
bargaining table.

As we have already said, bargaining in this area is the art of seeking what
is possible on both sides. What is needed then is employees and
employers who are responsible, enlightened, well-advised, reasonable
and lucid, who are supported and assisted by leaders and advisers who
are in turn responsible, enlightened, well-advised, reasonable and lucid.
As regards these leaders and advisers, there is no room for rank amateurs in
this field”.

OBJECT OF COLLECTIVE AGREEMENT

The main object of a collective agreement is to settle the terms and conditions of employment of
workers in a bargaining unit for an agreed period with a view to avoiding disruptions of work for the
duration of the agreement. A collective agreement is, therefore, an important instrument for the
maintenance of industrial peace and stability in undertakings, since it prescribes the terms and conditions
of employment for the duration of the agreement.

1 (1979) 1 Can. LRBR 332

IRO NO. 3 OF 1989 BETWEEN TRANSPORT AND INDUSTRIAL WORKERS’ UNION AND
COELHO BAKING INDUSTRIES LIMITED AND ABEL COELHO AND DEORAJ
RAMKISSOON

In I.R.O. No. 3 of 1989 between Transport and Industrial Workers’ Union and Coelho Baking Industries
Limited and Abel Coelho and Deoraj Ramkissoon2, I stated,

“It has long been accepted as a principle and practice of good industrial
relations that in the interest of industrial peace and stability employers
and trade unions should enter into collective agreements for the
regulation of the relations between them ... A registered collective
agreement is, therefore, a most important instrument of industrial peace
and stability in industry ... It is, therefore, a natural consequence of the
grant of recognition to a trade union as a recognised majority union, and
a legitimate expectation of the workers who elected the trade union to
such a status, for that trade union to seek to enter into a collective
agreement in settlement of the terms and conditions of employment of
the said workers. A trade union which invokes the procedures of
the Act for the negotiation of a collective agreement does so with
the object of concluding a collective agreement...”

In my opinion, none of the reasons the Company advanced for the scandalous delay in this case has any
merit.

2 Dated July 24, 1989. In Complaints Nos. C1 and C2 of 1977 between University of the West Indies
(St. Augustine) and University and Affiliated Workers’ Union dated March 11, 1977, the Industrial Court
distinguished between ‘terms of employment’ and ‘conditions of employment’, saying, ”It has long been
settled that ‘terms of employment’ refers to matters which are ordinarily covered by the contract of
employment such as hours of work, wages, overtime, vacation leave and so on; and that ‘conditions of
employment’ refers to the physical conditions under which the work is done, such as safety, lighting,
sanitation, welfare facilities and the like.”
UNION’S ALLEGATION OF A FAILURE TO NEGOTIATE IN GOOD FAITH
Another collateral matter raised by the Union for the first time in its Evidence and Arguments and
also in the opening address of Mr. Jairam, S.C. and in the Union’s Reply. This allegation elicited the ire of
Mr. Armour, S.C. who vociferously attacked it in his own inimitable style. I agree with Mr. Armour,
S.C. that I have no jurisdiction to deal with such a complaint as an industrial relations offence in this
trade dispute. I would be remiss in my duty, however, if I did not express my views on the excessive
delays that occurred in this case. As I said in Trade Disputes Nos. 261 and 262 of 1986 between Transport
and Industrial Workers’ Union and The Secondary Schools’ Maintenance, Training and Security
Company Limited9,

“Collective bargaining must be taken seriously. Employers and trade

unions must have confidence in each other. Enlightened employers
regard the negotiation of a collective agreement as a valuable
instrument which will not only enure to the benefit of their human
resources but also the wellbeing of the enterprises for which they are
responsible. Dilatory tactics and inflexibility in one’s position imply
disrespect for the collective bargaining process. Employers must note
particularly that by the provisions of the Act, they are required, upon
demand of the recognised majority union, to bargain with it in ‘good
faith’.”

ARTICLE 3: DURATION OF AGREEMENT

Mr. Jairam, S.C. submitted that the collective agreement between the parties should be for the period,
January 1, 2002 to August 2, 2003, inclusive, and not for a longer period, since the Company ceased to
operate on August 2, 2003. Mr. Armour, S.C. opposed this suggestion principally on the ground that the
parties themselves had agreed in bilateral discussions to a three-year duration for the agreement. The
Company also submitted that the Union had failed to produce any cogent or compelling evidence to
satisfy the Court that there are special circumstances that warrant the exercise of its discretion under
section 43. (3) of the Act to permit the Association to resile from its agreement with the Company on the
3 year duration of the agreement.

Normally, a collective agreement may be for a term of between three and five years. The Act, however,
stipulates further2

“(3) Where-

(a ) an undertaking to which a collective agreement relates is likely to

cease operations within three years of the date of the agreement; or

(b ) a collective agreement contains special provisions which have been

agreed upon subject to the condition that such

9 Dated March 1, 1989

2 Section 43.(3) of IRA
 provisions are to have effect for a period less than the duration of the
collective agreement,

The Court, on being satisfied that special circumstances for so doing exist,
may subject to this Part, and approve of the agreement being made effective for a
period of less than three years.”

I find

i. the wording of section 43. (3) (a) contemplates that an application should be made to the Court in
advance of the expiration of the collective agreement. In this case, the period of the agreement has
already expired.
ii. In normal circumstances, unless the parties agree otherwise, and there is no
such agreement on the evidence in this case, agreements on individual clauses in negotiations for
a collective agreement are provisional only until all the clauses are agreed. The fact that the
Union reported duration as one of the items in dispute shows that the provisions of this
clause were not agreed and I must, therefore, determine the issue.

While it does seem pointless for the parties to enter into a collective agreement for a period of three
years in the circumstances of this case, the Act requires a collective agreement to be for a minimum
period of three years. I, therefore, hold the period of the collective agreement should be for a period of
three years from January 1, 2002 to December 31, 2004 and I so order.

ARTICLE 8:1: SALARIES

The Company undertook in its VSEP offer to the monthly paid employees who accepted it that, on the
conclusion of negotiations for a new collective agreement for the period 2002-2004, their severance pay
entitlement will be re-calculated as at 2nd August, 2003 and that they will be compensated accordingly.

EFFECT OF VSEP ACCEPTANCE

It is not in dispute that the Company solemnly undertook in its Enhanced Voluntary Separation of
Employment Programme (“the VSEP Programme”) to its monthly paid Employees that

(a ) On the conclusion of negotiations for a new collective agreement for the period 2002-
2004 their severance pay entitlement will be re-calculated as at 2nd August, 2003 and that
they will be compensated accordingly; and

(b ) that membership in the Group Health Plan will continue but the monthly contribution will
be determined by the provider.

These undertakings, among others, were contained in the Company’s offer of the VSEP Programme to the
monthly paid employees. On acceptance by a monthly paid employee of the VSEP offer, therefore, the
Company became morally and legally bound to comply with these undertakings. They became
mandatory obligations on the part of the
Company in accordance with both law and the principles and practices of good industrial
relations practice. On acceptance of these terms, therefore, neither the Company nor the Union had
authority to vary, amend or alter them.

I have no doubt that the Company will not risk tarnishing its name or reputation by continuing to fail to
perform these obligations, since they constituted part of the terms on which the Company induced its
monthly paid employees to prematurely determine their employment contracts.

QUANTUM OF SALARY INCREASE

The Company proposed a 5% increase to be distributed as follows: 1% in 2002, 1% in 2003 and 3% in

2004. The Union proposed in its written Evidence and Arguments that the salaries of the workers in the
bargaining unit should be increased by 20% over a period of 3 years and be distributed as follows: 8%
in the first year, 7% in the second year and 5% in the third year of the collective agreement. However, I
note from a letter dated April 28, 2004, one of the exhibits in the case, that the Union proposed an
increase in salary of 10% for the year 2002 and 5% for the year 2003. In his address to the Court, Mr.
Jairam, S.C. said that the Union had reduced its proposal to a 15% salary increase.

In its said letter, the Union also reminded the Company

(a ) of the VSEP arrangement whereby the Company undertook to re-calculate the VSEP
compensation having regard to any salary increases consequent upon the conclusion of the
negotiations; and

(b ) of the Company’s undertaking to continue the Group Health Plan.

Trade Dispute Nos. 199 and 200 of 2004 between National Union of Government and Federated
Workers and Carib Glassworks Limited and
201 and 202 of 2004 between National Union of Government and Federated Workers and Caribbean
Development Limited

The latest judgment of the Court on the approach to the settlement of wages or salaries disputes is Trade
Dispute Nos. 199 and 200 of 2004 between National Union of Government and Federated Workers
and Carib Glassworks Limited and 201 and 202 of 2004 between National Union of Government and
Federated Workers and Caribbean Development Limited3 (“the Carib cases”).

3 Reasons for Decision dated April 7, 2005 of Their Honours Mr. Addison M. Khan and Herbert Soverall
The general principles the Court applies in a trade dispute over wages or salaries and other terms and
conditions of employment involving monetary cost

In the Carib cases, the Court enumerated various principles for determining wage or salaries dispute.
We referred, inter alia, to
i. Section 10. (3) of the Act which ordains,
“Notwithstanding anything in this Act or in any other rule of law to the contrary, the
Court in the exercise of its powers shall-

(a ) make such order or award in relation to a dispute before it as it considers fair and just,
having regard to the interests of the persons immediately concerned and the community
as a whole;

(b ) act in accordance with equity, good conscience and the

ii. substantial merits of the case before it, having regard to the principles and practices of good
industrial relations”.

iii. that, in taking the interest of the community as a whole into account in a wage dispute, the
Court must be conscious of the principles of social justice enshrined in paragraph (b) of the
Preamble to the Republican Constitution4.

iv. Additionally, the Court should be mindful of certain public interest aims and aspirations that
should be borne in mind generally when hearing and determining disputes over wages
and salaries and other terms and conditions of employment, viz.
(a ) the necessity to maintain and expand the level of employment in Trinidad and Tobago;

(b ) the necessity to ensure to workers a fair share of increases in productivity in enterprises;

(c) the necessity for the establishment and maintenance of reasonable differentials in
rewards between different categories of skills;

(d ) the necessity to maintain and improve the standard of living of workers;

(e) the necessity to preserve and promote the competitive position of products of Trinidad and
Tobago in the domestic market as well as in overseas markets.

v. That, despite the present successful state of the general economy is no licence for
excessive wage or salary increases and that reasonable restraint should be exercise in
granting claims for increased wages or salaries and other terms and conditions of
employment.

4 The 1976 Republican Constitutions

vi. That, the affluence of any particular employer is not of itself any justification for granting
wage or salary increases.

vii. That, while it should consider the general level of wage increases in the country
generally and in the particular environment in which an employer operates, each case has
to be considered on its own peculiar merits, facts and circumstances.

viii. In the determination of wages or salary and other terms and conditions of employment,
the Court also takes into account existing customs, usages and practices in the particular
establishment, the immediate environment and the country as a whole.

ix . That over the years, the Court has, in the exercise of its powers under the Act, employed
the system of comparability to determine what wages or salaries and other terms and
conditions of employment should be applicable in any particular undertaking.
Comparability is done both externally, i.e. outside the particular enterprise under
consideration, and internally, i.e. within the particular enterprise. Comparability is,
however, not an exact science but, in the exercise of its mandate to be fair and just to
employers, trade unions and workers, the Court has adopted this system. External
comparison includes the examination of wages, salary, terms and conditions of employment
applicable generally in Trinidad and Tobago.

x. That The Court also examines similar inclusions in comparable establishments of

reputable and responsible employers in the particular sector in which the employer
concerned operates.

x i. That the net should be cast as wide as possible to maintain an even balance.

x ii. That comparability is, however, not absolute or conclusive, since the Court may take other
things into consideration, including, but not limited to the necessity to award higher wage
or salary increases to restore peace and stability in a particular enterprise or where it
is necessary to give the employer relief from certain onerous provisions in a hitherto
concluded collective agreement or for other good and substantial reasons.

x iii. That in the case of relief from existing onerous provisions, the principles of good industrial
relations practice have always recognised and accepted that an employer should “buy out” or
“trade off” the particular onerous provision or provisions.

x iv. That the Court also considers the increase in the cost of living as shown by the Index of
Retail Prices published periodically in the Trinidad and Tobago Gazette.
x v. That collective agreements that are registered in the Court have been voluntarily
negotiated and constitute the most sensible guide to applicable wages or salaries and
other terms and conditions of employment in
comparable establishments. These collective bargains are more likely to represent the
fairest possible rates for the various job classifications than in
 the case of terms and conditions unilaterally fixed by non-unionised employers.

x vi. That employers, who do not have recognised majority unions, have been known to
dictate to their employers the terms and conditions on which they are prepared to continue to
employ them and the salaries or wages and other terms and conditions in such enterprises
are fixed unilaterally by the employer.

x vii. That, while the Court normally looks at the salaries or wages, terms and conditions
applicable in unionised environments, it will not necessarily exclude consideration of
terms and conditions of employment applicable in undertakings in which collective
bargaining is non-existent.

These are the main principles normally applied by the Court in trade disputes over negotiations for
collective agreements in active and operating establishments.

In this case, however, there is no dispute between the parties that the Company has ceased to operate and
is on the verge of extinction as an operating company in the sugar industry. According to Jagroo’s evidence,
he has been delegated to ensure

“that all outstanding obligations owed by the Company to all stakeholders are
satisfied.”

Any increases in salaries or other terms of employment, therefore, will be paid from monies which the
Company has at present at its disposal and not from operating income or profits.

In the event, it is appears to me that it will be unjust and unfair and in opposition to equity, good
conscience and the principles of good industrial relations practice to order the Company at this stage to pay
salary increases to the workers in the bargaining unit higher than what the Company has proposed, that is to
say a salary increase of 5% after consolidation of the cost of living allowance that the Company was
paying the workers in the bargaining unit on January 31, 2001 and I so order.

ARTICLE 8:2: RE-CLASSIFICATION

The Union made it clear that it was not pursuing this item, since it was before another bench of the Court
for determination and it was prepared to accept the determination of that bench on the matter. I, therefore,
make no order on re-classification.

ARTICLE 9: COST OF LIVING ALLOWANCE

It is a normal principle of good industrial relations practice for the cost of living allowance
applicable at the end of a collective agreement to be consolidated with the new salaries at the beginning
of a new collective agreement. The Court gave effect to this principle in its recent judgment in the Carib
cases disputes5. I, therefore, order that the

5 Op. cit.
Company consolidate the applicable cost of living allowance that was paid to the workers in this bargaining
unit on December 31, 2001 with effect from the commencement date of the new collective agreement, i.e.
January 1, 2002.

NEW COST OF LIVING ALLOWANCE

I order that a new cost of living allowance be paid with effect from January 1, 2002 of
$100.00 per month for the life of the new collective agreement.

Continuation of Group Health Plan

In his evidence in chief, Deosaran Jagroo, the Ag. Chief Executive Officer of the Company stated
(i) The Company’s position in respect of the Group Health Plan was that, upon
termination of the employees’ contracts with the Company by way of VSEP, the Plan, which
was part of their terms and conditions of employment ceased at that point of termination.

(ii) During the discussion on the VSEP, the Associations made representations to the Company to
keep, or assist in keeping a Health Plan going. The company agreed that it will do all that was
possible to assist in keeping a Health Plan in existence. However, the Company made it
absolutely clear that it was in no position to administer such a plan and that any arrangement
concerning any future Plan will be the responsibility of the employees. The company took the
position that it was not in a position to administer the Plan because it was winding up its
operations. The associations looked towards the Company to assist in sourcing providers and
arranging meetings with prospective providers who would be interested in such a venture. The
associations would be the lead players in meeting and agreeing and contracting with the
providers.

(iii) He believed that the associations had some meetings with the providers. His recollection was
that those meetings were not well attended by the various associations and the interest of
those providers that initially showed an interest in the matter waned.

(iv) The Company arranged for Sagicor and Algico to meet with the associations.
The meeting with Algico was arranged for some time in early 2004. Sterling Insurance
Services Limited also submitted a proposal. The Company invited these proposals through
their brokers and other insurance companies. He
believed the Company informed the associations of Sterling’s proposal. The Company
informed the former employees by letter dated (DJ 8) that Sagicor had submitted a proposal for
the continuation of the Group Health Plan. The letter stated inter alia,

“Kindly indicate your interest in the Individual Health Plan by

completing and returning to the Office of the Manager, Human
Resources (Ag.) The enclosed form.” Forms were received from
some employees but he could not recall the exact number though he
recalled the level of participation was poor.
 (v) The Group Health Plan ceased to exist and nothing has been put in its place.

Under cross-examination by Mr. Dass, Jagroo stated,

(i) It was the Company’s view that the role of the Company was to assist the associations in
meeting the relevant providers. The associations were to be the lead players in
meeting the providers. Notwithstanding the Company’s view that upon
termination of the employees the Group
Health Plan had been terminated, the Company still made efforts to invite
insurance providers to continue the Health Plan. This was really out of the goodness
of the Company’s heart. There was absolutely no obligation on them to that
according to the Company’s thinking at the time.
(ii) He saw the notice of acceptance of the VSEP offer which stated inter alia,

“Membership in the Group Health Plan will continue but your

monthly contribution will be determined by the provider.”

(iii) Notwithstanding that term in the VSEP package, the Company was of the view that it
had no obligation to continue membership in the Group Health Plan.
(iv) Within his limited knowledge, there was a difference between a Group Health Plan
and an Individual Health Plan.
(v) By letter dated July 9, 2003, the Company informed the employees that it “had secured
an extension of coverage under the Group Health Plan to
31 August, 2003”. The Company sent this letter to the individual
employees. He had forwarded

THE COMPANY’S 0FFER OF VSEP

It is not in dispute that the Company solemnly undertook in its Enhanced Voluntary Separation of
Employment Programme (“the VSEP Programme”) to its monthly paid Employees that
(c) that membership in the Group Health Plan will continue but the monthly contribution
will be determined by the provider. These undertakings, among others, were contained in the
Company’s offer dated …… of the VSEP Programme
to the monthly paid employees.

(d ) On acceptance by a monthly paid employee of the VSEP offer, therefore, the Company
became morally and legally bound to comply with these undertakings. The undertakings are also
obligatory on the part of the Company in accordance with the principles and practices of good
industrial relations practice. The VSEP agreement is not, however, before me in these
proceedings. I am confined to a determination of these four clauses of the collective agreement
and I have no jurisdiction, therefore, to make any order in respect of the VSEP agreement.

The evidence shows that the Company did not comply with its clear obligation in the VSEP offer to its
monthly paid employees that

“The Group Health Plan will continue”.

In its letter dated April 28, 2004, the Union wrote to the Company stating inter alia,
“5. Group Health Plan
You will recall in all letters of acceptance, the Company
gave an undertaking to continue the Group Health Plan. This
commitment was immediately breached by the Company and
has
left all staff members in ‘virtual limbo’! We are all attending to
our costly medical needs without any help.” (my emphasis)

By letter dated April 29, 2004, the Company replied to the Union’s letter dated April 29, 2004, stating
inter alia,
“With regard to your Association’s claim that the Company has breached a
commitment regarding the Group Health Plan, we wish to advise that the Company is unaware of any such
commitment and/or breach.”

This is the alarming reply of the Company to the Union in the face of the Company’s clear failure to abide
by its solemn undertaking that
“the Group Health Plan will continue”
(my emphasis).

I also note with consternation what Jagroo said in his evidence that notwithstanding that term in the
VSEP package, the Company was of the view that it had no obligation to continue membership in the
Group Health Plan.

I have no doubt, however, that the Company will carry out all obligations in the VSEP agreement, since
they were the terms on which the monthly paid employees of the Company prematurely terminated
their employment with the Company by accepting the VSEP offer. I am certain that the Ministerial
Committee will ensure that the Company complies with this solemn agreement and undertaking to the
workers.

Pending the continuation of the Group Health Plan, however, it is unfair and unjust and harsh and
oppressive that the workers in the bargaining unit who accepted the Company’s VSEP should
remain without relief against expenditure on account of illness. I, therefore, order that, pending the re-
introduction of the Group Health Plan, the Company pay to each and every worker in the
bargaining unit, who accepted the Company’s VSEP offer, the monthly sum of $350.00 with effect from
September 1, 2003 and continuing for the remainder of the life of the new collective agreement.

UNION’S APPLICATION FOR COSTS

On the facts of this case, I am not satisfied that there are exceptional reasons for an award of costs to the
Union.

… … … … … … … … … … … … … … … … … Addison
M. Khan,
President, Industrial Court
INDUSTRIAL RELATIONS ACT

Section 2 “industrial action” means strikes and 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 any worker, trade union or other organisation, employer or any other person, as the case may be,
to agree to terms of employment, or to comply with any demands made by the employer or the trade union or
other organisation or by those workers or other persons, and includes action commonly known as
a “sit-down strike”, a “go-slow” or a “sick-out”, except that the expression does not include—

(a ) a failure to commence work in any agricultural undertaking where work is performed by task caused by
a delay in the conclusion of customary arrangements between employers and workers as to the size or
nature of a task; and

(b ) a failure to commence work or a refusal to continue working by reason of the fact that unusual
circumstances have arisen which are hazardous or injurious to health or life;

“lockout” means the closing of a place of employment or the suspension of work by an employer or 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 to terms or conditions of, or
affecting employment, but does not include the closing of a place of employment for the protection of
property or persons therein;

“strike” means a cessation of work, a refusal to work, to continue to work or to take up work by workers
acting in concert or in accordance with a common understanding, or other concerted activity on the part of
workers in contemplation of, or in furtherance of, a trade dispute, except that the expression does not
include action commonly known as a “sit-down strike”, “go-slow” or “sick-out”;

6 0 . (1) Subject to this section and section 59, where there is an unresolved dispute between the
employer and the recognized majority union the employer or recognised majority union may take action
by way of lockout or strike.

(2 ) Where, at any time after a dispute has been reported to the Minister or is deemed to have been so
reported, an employer or the recognised majority union intends to take any action referred to in
subsection (1), notice of the intention (hereinafter called “lockout notice” or “strike notice”,
respectively) shall be given to the other party and to the Minister except that any other notice of an
intention to take action by way of lockout or strike given before the dispute was first reported to the Minister,
or is deemed to have been so reported, as determined inter alia by section 57, is void.

(3 ) No action in pursuance of a lockout notice or strike notice may be taken at any time before the
Minister is required to certify under section 59 that the dispute is an unresolved dispute.

(4 ) No action in pursuance of a lockout notice or strike notice may be taken—

 (a ) later than seven days after the date on which the Minister is required to certify under section 59
that the dispute is an unresolved dispute; or

(b ) After both parties in pursuance of section 59(3) (a) have requested the Minister to refer the
dispute to the Court.

(5 ) Where one party to a dispute gives lockout notice or strike notice, as the case may be, in conformity
with this Part, the other party thereto may, subject to this Part and in particular to subsections (3) and (4)
(a), take strike or lockout action, respectively, without notice thereof to the other party.

6 1 . The Minister shall refer an unresolved dispute to the Court—

(a ) Where no lockout notice or strike notice is given pursuant to section 60;

(b ) where no action in pursuance of a lockout notice or strike notice was commenced

before the expiration of seven days from the date on which the Minister was required to
certify under section 59 that the dispute is an unresolved dispute;

(c) where, after action in pursuance of a lockout notice or strike notice was taken, there is a joint
request to the Minister by the employer and the recognised majority union for referral of the
unresolved dispute to the Court;

(d ) where a period of three months of continuing industrial action has elapsed and there is a
request to the Minister by either party to refer the dispute to the Court for final determination.

6 2 . (1) Where action in pursuance of lockout notice or strike notice takes place in conformity with
this Part—

(a ) the provisions of a registered agreement (within the meaning of Part IV) if any, between the
parties, shall not be taken to have been infringed, abrogated or otherwise set aside by reason
only of such action; and

(b ) the contract of employment with respect to every worker employed in the bargaining unit
concerned shall not, by reason only of the taking of such action, be deemed to have been
determined.

(2) Nothing in subsection (1) shall be construed as imposing on an employer any obligation to pay
for any services of a worker that are withheld as a result of strike action taken in conformity with this Part.

6 3 . (1) Where any industrial action 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 subsection (2), remains liable for the unpaid wages, salary and other
remuneration that a worker may reasonably be expected to 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;

(b ) a trade union taking such action is guilty of an industrial relations offence and, in addition
to any other penalty under subsection (2), the Court may order the cancellation of its certificate of
recognition, if any;

(c) subject to sections 64 and 65(2)(b), where a worker takes part in such action the employer
may treat the action as a fundamental breach of contract going to the root of the contract of
employment of the worker.

(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

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

6 4 . (1) Where a worker is, pursuant to section 63(1)(c) dismissed by his employer, or his contract of
employment is determined, the recognised majority union or, in the absence of such a union, any trade
union, of which the worker is a member, may within fourteen days apply to the Court for an order that the
worker is to be treated as having been excused from the consequences of such action as is referred to in
section 63(1)(c) and from the operation of section 63(1)(c) and accordingly that the exercise of the power
of dismissal or the termination of the contract of employment shall be set aside.

(2) The Court may upon such application make the order, if it is satisfied that the industrial action
by the worker was caused by exceptional circumstances and that it is otherwise fair and just to excuse the
worker from the consequences of such action and from the operation of section 63(1)(c).

6 5 . (1) Where industrial action is threatened or taken, whether in conformity with this Act or otherwise,
and the Minister considers that the national interest is threatened or affected thereby, he may make
application to the Court ex parte for an injunction restraining the parties from commencing or from
continuing the action; and the Court may make such order thereon as it considers fit having regard to the
national interest.

(2 ) Where the Court upon such an application makes an order under subsection (1), then—
(a ) the parties bound by the order shall thereupon refrain from, or discontinue,
the industrial action; and

(b ) unless the Court otherwise specifically orders, nothing in section 63(1) (c) shall apply to any
worker involved in the industrial action, and the Court may further order that the matter shall be
deemed to have been referred to the Court by the parties thereto for determination.

(3 ) An order made by the Court under subsection (1) shall be published in the Gazette and in at least
one daily newspaper circulating in Trinidad and Tobago and the publication shall be deemed to be
service of notice thereof on all parties to the dispute, including all workers engaged in the industrial
action, whether threatened or taking place.
(4 ) Subject to this section, no order of the Court made under subsection (1) shall be deemed to have
validated any action taken if the action was not otherwise in conformity with this Part.

6 6 . (1) No party to a dispute may continue, or take, industrial action while proceedings in relation to a
dispute to which that action relates are pending before the Court or the Court of Appeal.

(2 ) No person may take industrial action as a result of disagreement or dissatisfaction with, an order or
award of the Court or the Court of Appeal.

(3 ) A person who contravenes this section is guilty of a contempt of the Court or of the Court of Appeal,
as the case may be.

6 7 . (1) This section shall be read and construed without prejudice to sections 63 and 64, and a
reference in those sections and in this section and section 68 to the term “workers” shall be read as a
reference to all employees engaged in essential services.

(2 ) An employer or a worker carrying on or engaged in an essential service shall not take industrial action in
connection with any such essential service.

(3 ) An employer who contravenes subsection (2) is liable on summary conviction to a fine of forty
thousand dollars and to imprisonment for three years.

(4 ) A worker who contravenes subsection (2) is liable on summary conviction to a fine of one thousand
dollars and to imprisonment for six months.

(5 ) A trade union or other organisation, the holder of an office in a trade union or other organisation or any
other person who calls for, or causes industrial action to be taken in, an essential service or induces or
persuades any worker in that service to take such action is liable on summary conviction—
(a ) in the case of a trade union or other organization to a fine of twenty thousand dollars, and the
Board may cancel the certificate of recognition under Part III;

(b ) in the case of the holder of an office in a trade union or other organisation to a fine of ten
thousand dollars and to imprisonment for twelvemonths, and such person shall be disqualified
from holding office in any trade union or other organisation for a period of five years after
conviction therefor; or

(c) in the case of an individual who is not the holder of an office in a trade union or other
organisation to a fine of two thousand dollars and to imprisonment for two years.

(6 ) The President of Trinidad and Tobago may by order, subject to negative resolution of both Houses of
Parliament, vary the Second Schedule by adding thereto or removing therefrom any service.

6 8 . (1) A person who, for the purpose of promoting or maintaining the conduct of industrial action
taken or continued in an essential service contrary to this Act, directly or indirectly contributes financial
assistance to an employer or a trade union
that calls for or causes such action to be taken or to any worker involved in such action, is liable on summary
conviction to a fine of ten thousand dollars and to imprisonment for eighteen months.

(2 ) An employer or a trade union or other organization that receives any financial assistance for
the purpose of supporting industrial action taken or continued in an essential service contrary to this
Act is liable on summary conviction to a fine of ten thousand dollars or in the case of the holder of an
office in a trade union to a fine of five thousand dollars and to imprisonment for one year.

(3 ) A worker or other person who receives financial assistance for the purpose of supporting
industrial action taken or continued in an essential service contrary to this Act is liable on summary
conviction to a fine of five hundred dollars and three months’ imprisonment.

6 9 . (1) The following persons shall not take part in any industrial action:
(a ) members of the Public Service in Trinidad and Tobago;

(b ) members of the Prison Service of Trinidad and Tobago;

(c) members of the Fire Service of Trinidad and Tobago;

(d ) members of the Teaching Service; and

(e) members of the staff and other employees of the Central Bank, established by the Central Bank
Act.

(2 ) A person mentioned in subsection (1) who contravenes the provisions thereof is liable on summary
conviction to a fine of five hundred dollars and to imprisonment for three months.

(3 ) The holder of an office in a trade union or in an organisation of persons mentioned in subsection (1)
who calls for or causes industrial action to be taken or any person or Organisation who induces or
persuades any other person to take such action in any of the Services mentioned in subsection (1) is liable
on summary conviction to a fine of ten thousand dollars and to imprisonment for eighteen months.

(4 ) Section 3 of the Constitution shall have effect for the purpose of the definition of any of the Services
referred to in subsection (1) (other than in paragraph (e) thereof).

7 0 . Where an offence punishable under this Act has been committed by a company, any person who at the
time of the commission of the offence was a director, general manager, secretary or any other employee of
the company, not being a worker, or was purporting to act in any such capacity, shall be deemed to be guilty
of that offence, unless he proves that the contravention was committed without his consent or connivance
and that he exercised all such diligence to prevent the commission of the offence as he ought to have
exercised having regard to the nature of his functions in that capacity and to all the circumstances.
LECTURE 9 (WEEK 12) DISPUTE
RESOLUTION

A. CONFLICT

SOME COMMON CAUSES OF CONFLICT

stress
personality conflicts
power struggles
different expectations
misunderstandings different
value systems limited
resources conflicting
policies

POSSIBLE POSITIVE OUTGROWTHS OF CONFLICT

problem may be resolved

understanding the causes for conflict may increase tolerance of different views provides
opportunities for growth and change

SOME BARRIERS TO RESOLVING CONFLICT

strong emotions
lack of trust
unwillingness to communicate regarding conflict
entrenched positions
desire for conflict to continue

PROBLEMS WITH LITIGATION AS A MECHANISM FOR RESOLVING CONFLICT

creates win/lose atmosphere cost

time
damage to relationship
parties lose control of the outcome
B. N E G O T IA T IO N

Negotiation is any form of communication between two or more people for the purpose of arriving at a
mutually agreeable solution. In a negotiation, the disputants may represent themselves or may be
represented by agents. The people involved in the negotiation, be they the disputants themselves or
their agents, maintain control over the negotiation process.

MANY NEGOTIATORS CONSIDER THAT THERE ARE TWO EXTREME STYLES OF

NEGOTIATING: COMPETITIVE BARGAINING AND COOPERATIVE BARGAINING.
Extremely competitive negotiators are so concerned with substantive results that they may advocate
extreme positions, create false issues, mislead the other negotiator or bluff in order to gain an advantage,
try to get to the other negotiator's bottom line, and
make concessions only rarely and grudgingly. They may even try to intimidate the other negotiator. Some
competitive negotiators completely ignore issues of relationship and focus exclusively on substantive
results.

Cooperative negotiators, on the other hand, wish to develop a relationship based on trust and
cooperation? They may, therefore, be prepared to make concessions on substantive issues in order to
foster and preserve the relationship.

Principled negotiation requires negotiators to focus on the interests of each of the disputants with
the goal of creating satisfactory and elegant options for resolution, which may be assessed by objective
criteria.

ELEMENTS OF NEGOTIATION

WHAT TYPES OF NEGOTIATION STYLES ARE THERE? COMPETITIVE OR

HARD-BARGAINING STYLE
open with extreme and unrealistic demands
make few concessions focus is on the psychology of the negotiators try to out-do or
out-manoeuvre the other person
work on the emotions of the other negotiator create false
issues
stretch the facts
mislead the other side about your bottom line accuse
bluff

Advantages with competitive bargaining

get a better substantive deal
develop a reputation to help you in future negotiating take initiative in
negotiation
not open to manipulation perceived
as tough reputation that clients like
Problems with competitive bargaining:
may prevent you from reaching a deal that is good for you may be
opportunity for joint gains left on the table
may create misunderstandings
may harm your relationship with the other party may make
future negotiations more difficult
may preclude listening to others' concerns
may lead to fragile (not long-lasting) results

COOPERATIVE OR SOFT-BARGAINING STYLE

try to induce other party to settle with you through cooperation and trust make concessions for
the sake of relationship
always try to reach a deal maintain a
long-term relationship
focus on the psychology of the other negotiator as opposed to the subject matter

Advantages with cooperative bargaining make a deal when there

is a deal to be made good long-term relationship
people like to deal with you often
you work quickly

Problems with cooperative bargaining:

may not get a good deal
possibility of manipulation by other side can be
taken advantage of
may have reputation for being soft
may be afraid to walk away from the table
may be sorry later and try to get out of the deal may be at a
disadvantage in the next negotiation

PRINCIPLED NEGOTIATION
an attempt to avoid the disadvantages while gaining the benefits of competitive and cooperative
bargaining techniques;
developed at Harvard Law School by Roger Fisher, Bill Ury and Bruce Patton

SEVEN ELEMENTS OF PRINCIPLED NEGOTIATION

1. Alternatives
what do we do if we do not reach a deal? what to
do away from the table
something we can do without the consent of the other negotiator
BATNA: Best Alternative to a Negotiated Agreement
BATNA is the best course of action of all the possible alternative courses of action figure it out
before the negotiation
try to improve BATNA
make it as good as it can be make it as
concrete as it can be put BATNA in
your back pocket
may not want to disclose BATNA unless it is better than other person thinks it is
what’s their BATNA? what do they perceive it to be? -e.g. do they have another offer sitting out
there? but is it conditional?
check your BATNA at end of negotiation (before commitment) to see if it is better or worse than
option on the table

2. Interests
most people present positions
common response is to be met with another position
principled negotiation suggests that you uncover the interests underlying the position
interests are the wants, needs, desires, and goals behind the positions
to find out interests/ ask open questions "why?" or "why not?" find out for what purpose other
person is taking position
interests can be satisfied in a number of ways; positions can only be satisfied one way

3. Options
options are the things that you can do only with the other person's consent try to generate options
that satisfy your interests and theirs
invent options without deciding try joint
brainstorming
try to invent options that expand the pie "bad"
options can lead to "good" options
ground rules for brainstorming: no commitment to options generated (options are not offers) no
criticisms of options until after brainstorming is complete

4. Legitimacy
legitimacy is the objective criteria, benchmarks, standards of fairness, which can be used to help
assess options
look for criteria that will objectively appeal to other side; to third parties be open to
persuasion about criteria, not coercion
if the other person proposes a solution (or puts forward a position), ask why it is fair
if they persuade you with reasoned arguments, you should be prepared to agree with reasoning
5. Communication
communication is both speaking and listening
may want to interactively listen (e.g. repeat in your own words what the other person has said)
listen interactively so as not to criticize
most important to listen interactively when other person says something that you vehemently disagree
with
interactive listening is effective for three reasons: you may have misunderstood other person;
people know they are being heard and don't feel the need to repeat themselves in a louder tone;
people like to hear their own arguments

6. Relationship
positional and cooperative approaches are both focused on the people separate the people
from the problem in a negotiation
be soft on the people; hard on the problem focus your
energy on the issue to be negotiated
play negotiation jujitsu
need to address people issues

7. Commitments
commitment should be at the end of negotiation only commit to
deal better than BATNA
want to decide on level of commitment that you want being open to
persuasion is not the same as committing may want to put in
mechanisms to ensure compliance

C. MEDIATION
Mediation is a non-binding process in which an impartial third party, the mediator, facilitates the
negotiation process between the disputants. As the mediator has no decision-making power, the
disputants maintain control over the substantive outcome of the mediation. In mediation, the mediator
controls the process with the help of the disputants. With the disputants' consent, the mediator will set and
enforce ground rules for the mediation process.

Mediation can be "interest-based" or "rights-based." Interest-based mediation, broadly speaking, refers to

a style of mediation in which the mediator facilitates communication between the disputants and encourages
the disputants to focus on their interests. In an interest-based mediation, the disputants are encouraged to
talk about more than their legal rights. In a rights-based or "evaluative" mediation, the mediator
provides an opinion on the disputants' legal rights and encourages resolution of the dispute in
accordance with the law or the view of the mediator. In both interest-based and rights- based mediation,
disputants are encouraged to consider the course of action they will pursue if no agreement is reached,
and the resulting consequences.

The disputants' attendance at mediation may be voluntary or mandatory. In mandatory mediation, the
disputants are required to attend the mediation but they are not required to arrive at a settlement.
Mediation may be court-connected or private. If the disputants so choose, mediation can be confidential.

A. SETTING THE TABLE

Goals of the Mediator for Setting the Table
establish and maintain a structure for the mediation;
establish and maintain a positive and open atmosphere in which the disputants are encouraged to
participate;
establish and maintain trust and confidence in the process and the mediator;
reassure the disputants and defuse nervousness;
establish a rapport between the disputants and the mediator and between the disputants; and
deal with any preliminary matters.

Matters to Be Covered When Setting the Table

introduce parties and mediator Agreement to
Mediate has been signed clarify role of mediator
no power to impose decision
object not to persuade mediator but to persuade each other mediator is
neutral/impartial
advise disputants that mediator cannot provide independent legal advice set out the ground
rules of the mediation
one person speaks at a time
discuss conduct, civility and respect
mediator may interrupt to keep the process going
give the mediator a 5 minute warning and opportunity to caucus if disputants want to leave
the mediation
remind disputants that the process is voluntary and that they are in control
mediator can terminate mediation
emphasize that the process is confidential and that a mediator will not? reveal anything that
she/he learns
discuss caucusing - mediator may want to separate disputants and speak with them separately
rules for caucusing - must be clearly stated and agreed upon
can assume everything in caucus can be disclosed to other side unless a disputant is
specific about keeping a particular point confidential; OR will assume everything said in
caucus is to be kept confidential
mediator not compellable as witness and notes cannot be subpoenaed
authority

Techniques Employed
neutral demeanour and language focusing on the
dispute as a joint problem
modelling behaviour expected of the disputants
expressing confidence in the process
projecting confidence in self, the disputants and the possibility of settlement appealing to interest in
success of process
demonstrating flexibility with rules and structure
B. STORYTELLING
After setting the table, the mediator will ask each disputant to take a turn providing his or her perspective on
the situation. The mediator may let the disputants tell their stories without interruption first and then ask
questions. Or the mediator may decide to use some interactive listening techniques to try to elicit more
details from the disputants as they speak.

G oals
to unveil and understand each disputants perspective. i.e. how each of the disputants views
facts, interests, and issues;
for each party to hear and get an appreciation of the other disputants perspective;
to identify obstacles to settlement; and
to allow the disputants to vent in a constructive way.

Techniques Employed
provide disputants with opportunity for uninterrupted flow of thoughts manage process to
ensure each disputant gets to have his or her say ensure one disputant speaks at a time
use interactive listening
ask open and probing questions project
openness and interest
invite and allow constructive venting control venting
invite disputants to speak for themselves rather than having counsel tell the entire story
ensure that counsel are able to express matters that will influence them (and
therefore their clients)
discourage the disputants from focusing on solutions
focus on understanding disputants rather than on getting them to change their minds
avoid trying to understand issues before understanding how disputants view
facts and interests
avoid trying to find solutions listen for
common interests

C. DETERMINING INTERESTS
Once the disputants have told their stories and the mediator has used active listening to elicit more details
about interests, facts and concerns, it is important to clarify and confirm the interests of the disputants.

Goals of the Mediator

mediator demonstrates understanding of each of the disputants' interests; disputants feel heard and
understood by the mediator; and
disputants have opportunity to hear other disputants perspective as elicited and subsequently
summarized by the mediator
Techniques
mediator summarizes for each disputant his or her understanding of that disputants
perspective, needs, interests and concerns;
mediator checks with each of the disputants to ensure accuracy of mediator's understanding of
the disputants interests; and
mediator may want to encourage disputants to speak directly to one another to ask and answer
questions/ clarify misunderstandings/ and offer acknowledgement where possible.

D. SETTING OUT THE ISSUES

Developing a list of issues helps the disputants to focus on the specific items which must be resolved.

G oals
identify issues which must be resolved in order to resolve dispute; ensure list of
issues is complete; and
frame issues to promote problem solving.

Techniques
frame issues in a positive way
frame issues using neutral language
frame issues in a way that invites option generation (so that it cannot simply be answered by
a "yes" or a "no")
frame issues in terms of satisfying the disputants' interests review list with
disputants for completeness and accuracy

E. BRAINSTORMING OPTIONS
Once the list has been developed, the mediator will encourage the disputants to generate options for
resolution. Some mediators do not generate options for fear of raising concerns of bias, while others
will generate options in certain circumstances.

Goals of the Mediator

to have the disputants articulate the settlement options with which they are familiar; and
to have the disputants search for creative options that they may not have
previously considered

Techniques Employed
invite disputants to "brainstorm" (generate creative options without judgment) separate
commitment to options from generation of options
encourage disputants to suspend criticism
invite disputants to be outrageous, creative ask for
known options
ask for past settlement offers
focus the disputants on the problem rather than on each other
 focus the disputants on their common task - finding a solution which is better for all than their
BATNA’s
use the disputants/ counsel or an expert as a resource
review list of interests
caucus
help the disputants to expand the pie demonstrate respect
for all options proposed use silence
put one disputant into the others shoes (and vice versa) use analogies
use hypotheticals

F. SELECTING THE DURABLE OPTIONS

Goals of the Mediator
to facilitate negotiation between the disputants;
to help the disputants to explore whether the options are better than their BATNA's; and
to help disputants pick realistic options for resolution.

Techniques Employed
encourage the disputants to use objective criteria to choose from among options focus on the
interests underlying positions
focus on the future rather than on the past
highlight the relationship combine
options
caucus
search for ways of expanding the pie
help disputants to exchange more information take a break
use reality checks
focus on consequences of options
examine the disputant’s BATNA’s (in caucus) identify
progress
use a "one text" proposal
consider partial settlement with agreement on process for resolving rest of the
disagreement
ask for benchmarks, market standards, case law, etc. aim for
settlement that is realistically possible

G. CLOSURE
Goals
to make the transition from a preferred settlement option to a clear, adequate and binding
formal settlement agreement;
to ensure that the settlement deals with the issues; to prevent any
future disputes; and
to acknowledge progress if no final resolution has been reached.
H. FINALIZING THE STATEMENT
If counsel are present at the mediation session:
If the settlement is not complex, counsel may draft a written settlement agreement at the mediation
session; or f the settlement is complex, the mediator may adjourn to permit counsel to work on the
settlement agreement. The mediation session can resume to deal with any problems experienced in drafting
the settlement agreement.

If counsel are not present at the mediation session:

If the mediation occurs within the context of litigation or potential litigation, the mediator may ask
the disputants to enter into an agreement which is conditional on the approval of legal counsel;
The Mediator and the parties draft a provisional settlement at the mediation session. Mediator
should exercise extreme caution in these circumstances;
The mediation is adjourned to allow each of the disputants to consult counsel. The mediator may
or may not be involved in assisting counsel depending on the circumstances; and/or
The mediation resumes to deal with any problems the disputants and their counsel are
unable to resolve.

If no settlement is reached:
Disputants may want something to indicate progress. Depending on degree of progress, disputants may
want: memo of understanding on agreed items
agreement to meet again agreement on
certain points agreement on how to
proceed

OTHER ISSUES IN MEDIATION

Caucusing
can be used at any step in the process some
mediators never caucus
some mediators caucus often try to caucus with each disputant if you are going
to caucus with one
think about why you are caucusing and decide whether it is necessary if you caucus, try
to give the other disputant a task
make sure you maintain neutrality, adhere to time limits
be very clear on the confidentiality rule that you choose to use

Legal Representation
lawyers often accompany clients to mediation, though focus is upon clients

Confidentiality
generally covered by agreement between parties
some mediators destroy their notes - unless legislation requires that mediator preserve the notes
after the mediation
Mediators Liability
limits of mediator liability have not yet been defined
mediator should ensure that all disputants understand mediator's role is to facilitate and not to
advise or decide
mediator must avoid conflicts of interest
mediation insurance is available

Power Imbalance
mediators must be aware of the potential for power imbalances and the impact on the parties, the
process and the outcome
sometimes power imbalance is so severe/ mediation may not be appropriate
mediator cannot always level the playing field

Benefits of Mediation
1 . disputants control the process;
2 . mediation is flexible;
3 . disputants can arrive at creative solutions;
4 . process can be completed quickly, often within one day;
5 . mediation is relatively inexpensive compared to litigation; and
6 . mediation can be confidential

D . MED/ARB AND ARB/ MED

As not all mediations result in resolution, hybrid processes called Med/Arb and Arb/Med, have
developed. In a Med/Arb, the third party neutral begins the process in the role of a mediator. If the
mediation does not result in a resolution, the mediation ceases and the mediator becomes an arbitrator
who then renders a binding decision.

In an Arb/Med, the disputants present their cases to the third party neutral who, acting as an arbitrator,
prepares a decision. The decision is not shared with the disputants immediately. The arbitrator then
becomes a mediator and attempts to facilitate a resolution between the disputants. If the disputants
are able to reach a resolution during the mediation, the decision prepared by the third party neutral is
destroyed without being shared with the disputants. If the disputants are not able to reach a resolution
during mediation, the decision of the third party neutral, made in the arbitration, is released to the
disputants and they are bound by the decision.

E . ARBITRATION
Arbitration is a process in which a third party neutral, or an odd-numbered panel for neutrals, renders a
decision based on the merits of the case. The parties to an arbitration can maintain some control over the
design of the arbitration process. In some situations, the scope of the arbitration process and its rules are set
out by statute or by contract; in other circumstances the parties work together to design an arbitration
process that is appropriate to their dispute. For example, in some instances, the parties may choose the
arbitrator, may limit the length of opening statements, or they may decide that there will be no oral
discovery or no oral hearing. In this way, the process can be tailored to meet the needs of the parties.
Once the parameters for the arbitration have been set by the parties, however, the arbitrator assumes
control of the process.
The decision of an arbitrator may be advisory only, but more commonly, the decision is binding.

F. C O U R T
In a trial, a judge or jury makes a binding decision after a full hearing. With very few exceptions, court
cases and trials are matters of public record and therefore all documentation submitted to the court
and the trial itself are public. Trials are conducted according to very formal rules of procedure and the
decision must be based on law and precedent. Only a very small percentage of lawsuits result in a trial: the
vast majority are settled prior to trial.

There are several advantages to litigation: the parties receive a binding decision that sets a legal
precedent; trials provide procedural safeguards designed to ensure a fair and just result; and judges
who preside over trials have experience making difficult decisions with respect to legal rights.

The disadvantages of litigation include the cost, the public nature of the proceedings, the delay in
obtaining a resolution, and the uncertainty as to what resolution will ultimately be imposed. Also,
litigation lacks the flexibility to examine any issues between the parties which are not strictly legal. As a
result, parties are often required by the litigation process to formulate their dispute within legal
parameters rather than being able to define the dispute as it truly exists. In contrast to some
alternative dispute resolution processes, litigation has greater potential to destroy the relationship between
the parties. Furthermore, the parties often play a limited role in the conduct of the trial; they have almost no
control over the process, no choice in the judge who will determine their case, and no control over the
outcome.