B.H. Rose Ltd Transport and Industrial Workers Union

• Jurisdiction: Trinidad & Tobago
• Judge: Beckles, V.P.
• Judgment Date: 04 December 1991
• Court: Industrial Court (Trinidad and Tobago)
• Docket Number: 36 of 1990
• Date: 04 December 1991

Industrial Court

Beckles, V.P.;

Gafoor, M.

36 of 1990

B.H. Rose LTD.

and

Transport and Industrial Workers Union

Appearances

Percy Cezair - Industrial Relations Consultant for party no.1.

Albert Aberdeen -President General T.I.W.U for party no. 2.

Industrial law - Collective agreement — Alleged breach of agreement — Company reducing work week due to constrained economic circumstances — Claim for payment of wages and benefits due to workers — Articles of agreement — Interpretation — Finding that company acted within limits of agreement — Failure of claim.

Beckles, V.P.

1 The dispute concerns the complaint by the Transport and Industrial Workers Union (“the unit”) that B.H. Rose Limited (“the Company”) has breached the terms of the Collective Agreement (“the Agreement”) applicable to the workers in the bargaining unit by refusing to employ the said workers for a full five (5) day period from the 15th December, 1986 and continuing as provided for by the said Agreement.

2 The Company for its part denies any such breach as alleged and maintains that it was constrained by economic circumstances to reduce the work week from the accustomed five days, but in any case argues that it was within management's prerogative to do so in the interest of the long term viability of the Company.

3 The Company first filed its evidence and arguments in this matter on 18th June, 1990 and on 14th December, 1990 with leave filed additional evidence and arguments. By the latter documents it sought to introduce as an additional ground in support of its admitted action of reducing the accustomed five day work week, judgments of the Industrial Court in I.R.O. 19/89 and T.D. 29/89 between the Company and the Union, the selfsame parties to the instant dispute.

4 Quoting from the judgment of the court in I.R.O. 19/89 it stated in relation to the terns and conditions applicable to the workers in the bargaining unit “suffice it to say that it was the employers teams and conditions which were in fact applied to the workers since their return to work.” The Company went on to state further that this specific dictum was cited and adopted by the court in T.D. 29/89.

5 From these facts the Company strongly argued that the court had itself approved as valid the lock out terns imposed by the Company on its workers on September 21st, 1988, which included inter alia specific mention of management's right to reduce the accustomed work week where in its sole discretion the circumstances warranted, notwithstanding that these terns had not been enshrined in any Registered Collective Agreement between the parties.

6 The Company is therefore seeking additionally to justify action taken by it since 15th December, 1986 by judgments of the court relating to periods commencing 9th January, 1989 and subsequently.

7 The Union in response strongly condemned this attempt by the Company to justify its initial behaviour, and labelled such action as immoral if not illegal. It pointed out that it had itself appealed the judgment of the court in T.D. 29/89 rejecting the Union's contention that a dispute existed between itself and the Company over which terms and conditions were applicable to workers comprising the bargaining unit represented by the Union.

8 It expressed strong reservations as to whether such an argument could be maintainable in such circumstances, and urged the court not to pronounce on so highly debatable an issue while the matter of the appeal remained outstanding.

9 This Court instinctively shrinks frown seeking to determine points that have been previously argued before and ruled upon by the court, and which moreover, have gone on appeal, and were this the sole issue in this matter would have reserved any decision pending the outcome of the said appeal.

10 However we believe that this issue rests not upon any acceptance or otherwise by the workers of any new teams and conditions, but rather on whether the article dealing with hours of work in the agreement confers the right to a five day work week so forcefully argued by the Union.

11 The Article in question Article 3 of the Registered Collective Agreement No. 36/85 reads thus:- “The regular work week for all workers covered by this Agreement shall be forty (40) hours on the basis of five (5) consecutive days commencing Monday and ending on Friday.”

12 The other relevant articles touching on this issue in our view are:

ARTICLE 4

13 Overtime is defined as time worked in excess of (the) noel straight time work day.

ARTICLE 17.1

14 It is agreed that in the event conditions develop which may be considered by the Company necessary to contemplate a layoff or retreat of workers the Company should meet to discuss sane with the Union before effecting same.

ARTICLE 17.2

15 The Company agrees that before a worker is declared redundant it will explore all the possibilities of absorption in alternative employment within the Company.

16 The Union contends that the agreement provides for layoff and or redundancy but not short-time. Therefore when the Company purported to introduce a shortened work week it could not lawfully do so unless there was consensual agreement with the Union.

17 The Union further argues that the parties to a Collective Agreement are circumscribed by its terms so that the exclusion of a short time provision renders its introduction ultra vices the agreement. Additionally it points to the provision of Article 3 above which it claims are mandatory. The workers it maintained were entitled to a five day work week and no less. The Agreement by Article 4 made provision for hours worked in excess of the normal work day. It cited a previous judgment of the court T.D. 49 & 50/85 T.I.W.U. and John Dickenson & Company Limited delivered on 12th June, 1987 - in support of this latter contention.

18 In the Dickenson case cited above the facts were that the company after failing to get Union Agreement to a shortened work week of three days instead of the usual five days for the meekly paid workers represented by the Union went ahead and introduced the three day work week. Thereupon 26 of the weekly paid workers, among others, failed to report for duty. The Company treated them as having abandoned their jobs and replaced them by new workers. The Union claimed wrongful dismissal and sought reinstatement of or alternatively, severance and compensation for the workers.

19 The court in holding that the introduction of a shortened work week in the circumstances of that case was in breach of the workers contracts of employment said inter alia “we hold the view that the institution of short time working despite apparent genuine need to reduce output could only have taken place if there was an existing contractual right to do so.”

20 “The institution of short time working therefore in the particular circumstances constituted a breach of the workers' contracts of employment.”

See Powell Duffryn Ltd. v. House (1974) I.C.R. 123

Jewell v. Neptune Concrete Ltd. [1975] I.R.L.R. 147

Kenneth McRae & Co. Ltd. v. Davison [1984] I.R.L.R. 5

“But the matter does not end here with this strictly legal view of the position. The existing industrial relationship between the parties has to be examined.”

21 After setting out briefly the history of the dealings between the parties leading up to the impasse the judgment concludes: “But the Company erred in trying to force the workers to accept the proposal before a FULL DISCUSSION had taken place.” (Emphasis ours).

22 The court in T.D. 49 & 50/85, supra, appears to have grounded its reasons on two pillars one strictly legal and the other in the area of industrial relations practice. It concludes that on both grounds the Company had erred.

23 The cases noted above were cited by the court in support of the strictly legal position. In Powell Duffryn's case the employees were guaranteed a stated weekly wage under their contracts of employment. Discussions took place...