A Summary of the Case

Page 1 of 13 REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL PORT OF SPAIN CA No. 207 of 1997 BETWEEN TRANSPORT AND INDUSTRIAL WORKERS UNION Appellant NATIONAL MAINTENANCE TRAINING AND SECURITY COMPANY LIMITED Respondent Panel: A. Yorke - Soo Hon J.A. N. Bereaux J.A. P. Moosai J.A. Appearances: Mr. D. Mendes S.C. instructed by Mr. I. Ali for the Appellant Mr. E. Prescott S.C. instructed by Mr. S. Indarsingh for the Respondent Date Delivered: 28th July 2014 Page 2 of 13 I have read the judgment of Yorke - Soo Hon J.A. and agree with it. N. Bereaux Justice of Appeal I too, agree. P. Moosai Justice of Appeal JUDGMENT Delivered by A. Yorke - Soo Hon J.A. Facts 1) The appellant union represents the bargaining unit of workers employed by the respondent. The workers concerned in this appeal were hired during the period 1977 - 1984. Between May and July 1990 the respondent company retrenched approximately three hundred workers. Within twelve months of retrenchment, the respondent re-employed certain employees. 2) The first relevant collective agreement was effective from 1st July 1981 - 30th June 1984. The agreement was executed on 11th February 1988 and registered on 26th May 1988. It provided: "Article 41(3) - If any retrenched worker is re-employed within twelve (12) months from the date of his/her retrenchment, his/her past services will be considered unbroken as from the date of his/her initial employment for the purpose of vacation leave" 3) Subsequent collective agreements were concluded for the following periods: Second Agreement - 1 st July 1984 - 30th June 1987; Third Agreement - 1 st July 1987 - 30th June 1990; Fourth Agreement - 1 st July 1990 - 30th June 1993. In the Second Agreement (84' - 87') Article 41(3), which we find it convenient to refer to as the vacation leave clause, was reproduced and renumbered Article 40(3).Each subsequent agreement included vacation leave clauses identical to the first agreement. Page 3 of 13 4) The workers contended that they had been terminated and re-employed under terms and conditions that they felt were less favourable to them. Central to the workers' objections was the non - application of the vacation leave clause. This dispute has grown into the present appeal. Procedural History 5) The aggrieved workers, through their union, referred the dispute to the Minister of Labour for settlement in May 1991. By 9th October 1996 the dispute remained unresolved and the parties took their grievances to the Industrial Court for determination. The issues engaging the attention of the Industrial Court then were: 1. Raised by the respondent as a point in limine: Whether the Industrial Court had Jurisdiction in the matter since at the time the dispute was reported there was no "live" collective agreement; 2. Whether an expired collective agreement could form the basis of the terms and conditions of employment of a worker who was not in the bargaining unit during the currency of the collective agreement; 3. Whether a person who was a worker within a bargaining unit during the currency of a collective agreement, and is retrenched during the life of the agreement and re - employed after its expiration, is entitled to the terms and conditions of the expired agreement. 6) In relation to the point in limine, the respondent's objections were based on the fact that on face of it, the issue before the Industrial Court concerned the interpretation of terms of an expired collective agreement. Since the agreement had already expired when the dispute was referred, there was no term in existence to be enforced by the court. The vacation leave clause had died with the agreement. 7) The Industrial Court determined that the real issue before the court was whether the workers were entitled to the benefit of the vacation leave clause that was contained in their individual contracts of service. Therefore, in so far as the dispute related to the substance of the individual contracts of employment, the Industrial Court did in fact have jurisdiction to entertain the dispute. 8) The answers to issues 2 and 3 were based on the existence of a sufficient antecedent connection between the worker concerned, the bargaining unit and the collective agreement. Page 4 of 13 9) The Industrial Court held that workers whose initial employment commenced after the expiration of the collective agreement, would not be entitled to the benefit of the terms and conditions of the expired agreement. This was because they would not have been members of the bargaining unit during the currency of the agreement. There would be no sufficient antecedent link connecting the new workers to the now expired agreement. 10) The Industrial Court also held that workers who were employed and subsequently retrenched during the currency of a collective agreement, then re-employed after its expiration, were entitled to the benefit of the vacation leave clause upon their re-employment by the company. Their membership in the bargaining unit during the currency of the agreement was the link that ensured that the terms of the now expired agreement "survived" to the benefit of the worker upon re - employment. 11) Both parties appealed to the Court of Appeal and so the matter was remitted to the Industrial Court on the 16th October 2000 to determine the following questions: 1. Whether a collective agreement can be validly registered with the Industrial Court at a point in time subsequent to its expiration date? 2. Does a collective agreement registered subsequent to its stated expiration have any effect in law on the individual contracts of employment of the workers in the bargaining unit to which the agreement relates, and if so what effect? 3. Such other questions as may reasonably follow from the answers to the two above questions for the proper determination of the trade dispute. On 18th December 2012 the Industrial Court determined that: 1. A collective agreement could be validly registered after its expiration date; 2. The terms and conditions of the expired agreement survived as the terms and conditions of the individual contracts of the workers in the bargaining unit; 3. Registration of the agreement subsequent to a date after its expiration does not in law affect the validity of the terms and conditions of the individual contracts of employment of the workers. Page 5 of 13 12) The appellant, dissatisfied with the ruling of the Industrial Court itemized at 3 above, instituted the present appeal. The respondent cross - appealed on the ground of want of jurisdiction, in terms similar, if not identical to those submitted in limine in the court below. The Case for the Appellant 13) The appellant argues that the court below erred in law in failing to hold that the terms of a collective agreement, registered after its expiry, become the terms of the individual contracts of employment of the workers in the bargaining unit pursuant to S. 47(2) of the Industrial Relations Act. 14) According to the ruling of the Industrial Court it is permissible to register a collective agreement after it had expired. Upon registration of the agreement the terms and conditions of the agreement became the terms and conditions of the employees concerned. Upon registration in 1989, although the agreement had expired in 1987, the employees became entitled to the benefit contained in the vacation leave clause of the Second Agreement retroactively. 15) Thus, when the workers were retrenched in 1990 and subsequently rehired within 12 months, they were entitled to have their past service considered as unbroken for the purposes of vacation leave. 16) The question of Jurisdiction was raised by the Court of Appeal on the date of hearing. Counsel for the appellant submitted that an expired agreement cannot be the subject of a direct application to the Industrial Court. 17) However, a breach of the terms of the individual contracts of employment, derived from the collective agreement pursuant to Section 47(2), could be referred to the Industrial Court as a trade dispute. This is because the dispute resolution procedures are saved after the expiry of the agreement. The court would then have jurisdiction. The Case for the Respondent 18) The workers in question were employed prior to the 1984 - 1987 agreement. No valid agreement existed at the time they were hired. The 1984 - 1987 agreement was registered in 1989 but its terms expired in 1987 with the expiry of the collective agreement. 19) In 1990 when the workers were retrenched the collective agreement for that period, 1987 - 1990, had not yet been registered. Therefore at the time of hiring and the time of retrenchment there were no valid collective agreements in place. Page 6 of 13 20) A worker whose initial employment commenced at a time when there was no collective agreement in place does not enjoy the benefits of the terms and conditions of the collective agreement. 21) Furthermore, a worker who is retrenched when there was no live agreement in place lacks connection to a live collective agreement at all material times during their employment. Consequently the provisions of the 1984 - 1987 agreements and the 1987 - 1990 agreements do not apply. 22) Since the terms and conditions of the collective agreements were never incorporated into the individual contracts of employment of the workers in question, there is no basis upon which the matter could have been referred as a dispute to the Industrial Court and so the court lacks jurisdiction. 1. Whether a collective agreement can be validly registered after its expiration date 23) There is no statutory bar to the registration of a collective agreement after the period has expired. Section 47(2) of the Industrial Relations Act Chap. 88:01 Provides: "The terms and conditions of a registered agreement shall, where applicable, be deemed to be terms and conditions of the individual contract of employment of the workers comprised from time to time in the bargaining unit to which the registered agreement relates." 24) The question is whether an expired agreement can be registered. The question that follows is whether such registration incorporates the terms and conditions of the agreement into the individual contracts of employees retroactively. 25) Mr. Mendes SC for the appellant submitted that the practice is that agreements are frequently registered after their expiry. This is because the time taken to iron out disputes arising out of the terms of the agreement, usually extends beyond the life of the agreement. Retroactive registration appears to be an inevitable consequence. 26) The Industrial Court agreed in its ruling of December 18th 2012: "Notwithstanding the Court's discretion, registering collective agreements after their expiry is not a laudable practice and should not be condoned. Page 7 of 13 Statistics have shown that over the years the court has continued to register collective agreements subsequent to their stated expiration dates. ... In the absence of any provision in the Act prohibiting registration of a collective agreement after its expiration, we are of the respective view that a collective agreement can be validly registered at a point in time subsequent to its stated expiration date."1 2. The effect of registration 27) The effect of registration is stated in Section 47(2) of the Act. No distinction is made between registration of a collective agreement prior to expiration or subsequently. 28) The terms and conditions of a registered agreement are incorporated into the individual contracts of employment of the workers in the bargaining unit, provided they were employed during the currency of the agreement. In Texaco Trinidad v Oilfield Workers' Trade Union - Trade Dispute No. 32 of 1975 the court said: "The effect of the collective agreement on the terms of employment of the workers does not therefore stem directly from the agreement itself but derives from S 47(2) of the Act which provided that when a collective agreement is registered under the Act its terms and conditions, "where applicable, shall be deemed to be the terms and conditions of the individual contracts of employment of the workers comprised from time to time in the bargaining unit to which the registered agreement relates". The contractual relationship between the Company and the workers concerned continues to rest in the individual contracts of employment of the workers and these do not come to an end on the termination of the collective agreement".2 29) The enduring effect of a registered agreement on the terms of the individual contracts of employment was explained in Bank Employees Union v Republic Bank Ltd. Civ. App. No. 9 of 1995. Ibrahim JA, delivering the Judgment of the court said: "There is no rule of law that prevents the Court from looking at an expired agreement and construing it in order to determine the true meaning and effect of rights that had accrued when it was current. The mere fact that an agreement

1 Transport and Industrial Workers' Union v. National Maintenance Training and Security Company Limited - Trade Dispute No. 132 of 1996 (December 18 2012) at pg. 9 2 Texaco Trinidad v Oilfield Workers' Trade Union - Trade Dispute No. 32 of 1975 at pg 5 Page 8 of 13 had expired by effluxion of time does not render it ineffective for all purposes. A clear distinction has to be made between an expired agreement being construed to determine the true nature and meaning of its provisions and it being used to create new rights and obligations. To construe its former purpose is not to create new rights and obligations." 3 He continued: "... I am of the opinion that an application under sec. 16(2) of the Act can properly be brought for the interpretation or application of a provision of a registered collective agreement (whether current or expired) whenever a question or difference arises as to a provision therein that affects the terms and conditions of workers who were employed in that bargaining unit at the time when that agreement was current. The fact that it has expired is of no importance since the terms and conditions of the individual contract of employment are derived from that registered agreement and it is to that registered agreement that the Court must turn to see what are the terms and conditions of the individual contract of employment of the workers concerned."4 30) As the Industrial Court held, it is the act of registration that breathes life into the paper document labeled collective agreement. It is registration of the agreement that gives its terms effect and life.5 31) The conclusion is that registration (without more) of an agreement incorporates the terms of the agreement into the individual contracts of employment of the workers in the bargaining unit. This brings us to the question referred to the Industrial Court in this matter i.e. what is the effect of registration of a collective agreement subsequent to its expiration? The appellant takes issue with the ruling of the Industrial Court in particular at page 13 where the court held: "Based on the authorities cited above and section 47(2) of the Act it is clear that the terms and conditions of the expired agreement survived as the terms and conditions of the individual contracts of employment of workers in the bargaining unit. Registration of the agreement subsequent to a date after its

3 Bank Employees Union v Republic Bank Ltd. Civ. App. No. 9 of 1995 at pg 7 4 Bank Employees Union v Republic Bank Ltd. Civ. App. No. 9 of 1995 at pgs 8 - 9 5 Transport and Industrial Workers' Union v. National Maintenance Training and Security Company Limited - Trade Dispute No. 132 of 1996 (December 18 2012) at pg 8 Page 9 of 13 expiration does not in law affect the validity of the terms and conditions of the individual contracts of employment of the workers."6 32) The language adopted by the Industrial Court does not state the definitive effect of registration of an expired agreement. It states what registration does not do. 33) The appellant argues that the effect of registration after expiry is that the terms of the collective agreement become the terms of the individual contracts of employment of the workers in the bargaining unit. This is the practice that currently applies, as described by Counsel for the appellant. 34) The suggestion is that the words "does not affect in law the validity of the terms" can be interpreted to mean that registration after expiry does not take away from the effectiveness of those terms, and further does not stop the operation of Section 47(2). 35) Section 15 of the Act provides: "An order or award in any matter referred to the Court for determination may be made operative from such date as the Court may consider fair and just having regard to all the circumstances of the case." 36) The Industrial Court is therefore empowered to make orders with retroactive effect. It is this power to make retroactive orders that incorporates the terms of an agreement that has been registered after its expiration. 37) The Industrial Court may make orders under Section 15 of the Act that take into account what is fair and just having regard to all the circumstances of the case. In this case one important circumstance is that it is the established practice collective agreements are frequently registered after expiry. 38) The fact that a practice of registration after expiry has taken root as a result of necessity does not amount in law to a validation of the practice. The Industrial Court must have had this in mind when it ruled in October 1997: "We wish to make the observation, not for the first time, that parties to a collective agreement are under a strong moral obligation to the workers in the

6 Transport and Industrial Workers' Union v. National Maintenance Training and Security Company Limited - Trade Dispute No. 132 of 1996 (December 18 2012) at pg 13 Page 10 of 13 relevant bargaining unit to seek to conclude successor agreements in a timely manner. Long periods of inertia following the expiry of a collective agreement have the potential of creating chaos and leading to the establishment of a Hodge - Podge of separate individual contracts within a bargaining unit"7 39) This court cannot ignore the realities within which justice often falls to be administered. The processes of conciliation, negotiation and adjudication are not always concluded within the currency of the collective agreement. Balancing workers rights against the legitimate interests of the employer is no simple task. It is a tedious and engaging process that often extends beyond the lifetime of the collective agreement being negotiated. The purpose of the Industrial Court and the paradigm shift in industrial relations introduced by the Act are both relevant to the issue to be determined. 40) We agree with the respondent's submission that good industrial relations practice requires that successive collective agreements should commence immediately after the expiry of the preceding agreement to ensure continuity. Through provisions of the Industrial Relations Act, Parliament has given the Industrial Court and its stakeholders the power to shape industrial relations practice. 41) The parties have an obligation to negotiate in good faith and ensure that collective agreements are settled and registered in a timely manner. It is the responsibility of the Industrial Court to exercise its discretion whether it will register or refuse to register a collective agreement. However, once registered, the terms of the agreement become binding terms between the parties and the workers comprising the bargaining unit become entitled to the benefit of those terms. 42) For these reasons we concur with the ruling of the Industrial Court and are of the opinion that a collective agreement can be validly registered after expiration, and further, once registered the terms and conditions of the expired agreement form part of the individual contracts of employment of the workers in the bargaining unit (retroactively), until replaced by another agreement. 3. Jurisdiction of the Court

7 Transport and Industrial Workers' Union v. National Maintenance Training and Security Company Limited - Trade Dispute No. 132 of 1996 (October 27 1997) at pg 46 Page 11 of 13 43) The question of Jurisdiction turns on whether the dispute was properly brought before the Industrial Court. The court is powerless to enforce an expired agreement, however the power to refer a dispute after the expiration of the agreement is saved by Section 48 (2) of the Act: "Notwithstanding section 43(1) the terms and conditions of a registered agreement shall, in so far as they relate to procedures for avoiding and settling disputes, be deemed to continue to have full force and effect until another collective agreement between the parties or their successors or, in the case of an employer, assignees, as the case may be, has been registered." 44) Section 59(2) of the Industrial Court Act states: "Where the unresolved dispute concerns the application to any worker of existing terms and conditions of employment or the denial of any right applicable to any worker in respect of his employment or the dismissal, employment, non-employment, suspension from employment, refusal to employ, re-employment or reinstatement of any worker, either party to the dispute may make application to, or the Minister may refer the matter to, the Court for the determination of the dispute." 45) The appellant submits that what was in fact referred was a dispute over the application of existing terms contained in the individual contracts of employment, namely the failure of the respondent to apply the vacation leave clause to the benefit of the workers. 46) In Oilfield Workers' Trade Union v Alstons Building Enterprises Limited I.C.A 11 of 1986 the dispute arose from the company's decision to apply a deduction to the employees' severance benefits. On the face of it the deduction was in violation of the terms of the collective agreement in place between the parties. However, at the time of termination of the employees, that collective agreement had expired. 47) In that case, the attorney for the company raised an identical challenge to that raised in the instant matter, arguing in limine that the Court did not have jurisdiction to entertain the unions' application because the agreement had expired prior to the date on which the services of the workers were terminated. 48) The Industrial Court held: "while the union is disabled by the expiry of the agreement from seeking the Court's determination under Section 16(2) of a "difference" between itself and the Company as to the interpretation and application of the agreement in Page 12 of 13 relation to the workers, the union is, subject to it overcoming the impediment relating to time contained in Section 51(3) of the Act, able to report a trade dispute between itself and the Company over the issue of the Company's decision to deduct the Company's contributions to the Provident Fund. On the invocation of the trade dispute procedure the Court will be enabled to exercise its jurisdiction to enforce the workers' individual contracts of employment despite the expiry of the agreement."8 49) The legal principle that can be distilled from that case and the judgment of the Court of Appeal referred to at paragraph 29 above is that the court has Jurisdiction to entertain disputes concerning the application of the provisions of the individual contracts of employment. This jurisdiction does not depend on the currency of the relevant collective agreement. Finally, in resolving these disputes, the Court must necessarily have regard to the terms of the collective agreement (expired or current) to determine the true meaning of its provisions. These provisions are incorporated into the individual contracts of employment upon registration. 50) The conclusion at paragraph 49) above is echoed In Republic Bank Limited v Bank Employees Union Civil Appeal No. 96 of 1994 where the Court said: "The referral here was pursuant to Section 59(2) which deals with unresolved disputes. An unresolved dispute concerning "the application to any worker of existing terms and conditions of employment" is wide enough to include a "question or difference as to the interpretation or application" of a term of the workers' contract, a fortiori where such a term is the same as that under the recently expired collective agreement."9 51) Since an agreement can be registered after expiry with retroactive effect, the Court has jurisdiction to entertain the dispute. This is because from the time of registration, the term in question would be retroactively incorporated into the individual contracts of employment. Therefore, at the time of the referral of the dispute, the Court would be making a determination on the application/non-application of existing terms and conditions of employment contained in the individual contracts. Conclusion 52) For the reasons stated above we conclude that a collective agreement can be validly registered after expiration; and once registered, the terms and conditions of the expired agreement form

8 Oilfield Workers' Trade Union v Alstons Building Enterprises Limited I.C.A 11 of 1986 at pg 8 9 Republic Bank Limited v Bank Employees Union Civil Appeal No. 96 of 1994 per Hosein JA at pg 5 Page 13 of 13 part of the individual contracts of employment of the workers in the bargaining unit during the currency of the agreement retroactively, until replaced by another agreement; Order 53) The appeal is allowed and we order that the company apply the provisions of the vacation leave clause to those workers in the agreed list who were in the bargaining unit during the currency of the 1984 - 1987 agreement, who were retrenched during the currency of that agreement and who were re-employed by the company within (12) twelve months of the date of their retrenchment. Dated: 28th July 2014 A. Yorke - Soo Hon Justice of Appeal