Communication Workers' Union v J.N. Harriman and Company Ltd

• Jurisdiction: Trinidad & Tobago
• Judge: Khan, P.
• Judgment Date: 28 March 1991
• Court: Industrial Court (Trinidad and Tobago)
• Docket Number: 130 of 1987
• Date: 28 March 1991

Industrial Court

Khan, P.; Pounder, M.

130 of 1987

Communication Workers' Union

and

J.N. Harriman and Co. Ltd.

Appearances

Mr. Lyle Townsend - Secretary General, and Mr. Keith Logan - Labour Relations Officer for party no. 1.

Mr. Waldo Nunez personnel Management Consultant for party no. 2.

Industrial law - Collective agreement — Breakdown in negotiations for new collective agreement — Conciliation proceedings — Disputed items referred to court for settlement — Leave of absence — Allowances — Job description — Employment and promotion policy — Management practices — Pension and health plans — Personal file — Retrenchment — Leave of absence — Job titles — Wage classification — Settlement by court.

Khan, P.

1 This trade dispute arose out of a breakdown in negotiation between the Communication Workers' Union (“the Union”) and J.N. Harriman and Company Limited (“the Company”) for the conclusion of a new Collective agreement (“the new agreement”) for the period 1st July, 1986 to 30th June; 1989 in respect of two bargaining units comprising the monthly paid and the weekly rated workers of the company. Certificates 1/72 and 12/73 respectively of the Registration, Recognition and Certification Board are applicable to those workers.

2 The Union and the Company were parties to a collective agreement for the period 1st July, 1981 to 30th June, 1984 (“the expired agreement”) and purportedly agreed to extend the terms of that agreement for a further period of two years to 30th June, 1986. This purported extension was, however, not in accordance with the Industrial Relations Act, Chapter 88:01 (“the Act”).

3 The dispute was reported to the Honourable Minister of Labour on 27th January, 1987 and was referred by him to the court on 23rd June, 1987. The parties executed a Memorandum of Agreement of issues agreed to in bilateral talks on 9th February 1987 which is attached as Appendix A to the Minister's referral to the court.

4 A number of items were resolved in conciliation before the Minister and a Memorandum of Agreement embodying those items way executed by the parties on 31st March, 1987 and is attached as Appendix B to the Minister's referral.

5 The items then remaining in dispute were: -

Article 4 - Leave of Absence

Article 6 - 1111owances (See also Schedule 4)

Article 11 - Job Description, sections 1 and 2

Article 12 - Health arid Safety, sections 2, 4 and 5

Article 15 - Hours of work, sections 3 and 5

Article 17 - Newly Hired Employees, sections 1 and 2

Article 18 - Employment and Promotion Policy, section 2(d)

Article 19 - Management Practices, sections 1, 2 and 3

Article 20 - Pension and Health Plans

Article 21 - Personal File, section 3, 4, 5 and 6

Article 24 - Training, sections 1, 2, 4 and 5

Schedule 1 - Terms and Conditions in respect of Retrenchment

Schedule 3 - Leave of Absence, section 1(a), (b), (c) ii, f, 3(iii) and 6 Schedule 4 - Allowances, sections 1, 2, 4, 6 and 8

Schedule 5 - Job Titles and Groupings

Schedule 6 - Wage Classification

6 The parties by mutual agreement and with the consent of the court withdrew items in dispute under Article 12, 15, 17 and 24

7 The parties presented written Evidence and arguments and the court heard oral testimony from Mr. Terrence Chan, Financial Controller of the Company. The Union elected not to lead any oral evidence to the court and relied solely on its written Evidence and Arguments.

8 At the request of the court the Company submitted its audited financial statements for 1984 to 1987 and unaudited financial statements for 1988 together with a statement of income and expenditure for the years 1984 to 1988 of the shop at San Fernando at which the workers in the bargaining units are employed. In addition, the Company supplied supplemental financial information requested during the course of the proceedings.

9 The Director of Research of the court presented a comparative analysis of rates of pay between the Company and certain other enterprises for the period 1986 to 1989 and gave oral testimony on the study.

10 The Company is engaged primarily in the marketing and wholesaling of consumer products and engineering equipment and in the growing and marketing of agricultural products. It has an authorised share capital of $10m of which $5.5m has been issued and holds shares in several wholly owned subsidiary companies amounting to $4.5m.

11 Mr. Chan in his testimony stated that the Company buys the bulk of its engineering equipment and consumer products from overseas. Because of the rising prices of these goods aggravated by increases in the rate of foreign exchange during the period the company has experienced a severe contraction in its sales. Over the five year period 1984 to 1988 the, company's gross sales fell steadily by $9m from $22.1m in 1984 to $13.1m in 1988 and it suffered losses of $2m in 1984; $2.5m in 1985; $2.8m in 1986; $3m in 1987 and $2.7m in 1988. The cumulative loss at the end of 1988 amounted to 15.2m. The statement of the financial operations of the shop at San Fernando disclosed losses in each of the years 1984 to 1988.

12 The Company has 7 subsidiaries and is associated with 4 other companies. Then financial results of these companies are not consolidated in the company's accounts but the audited financial statements show that the value of its holdings in these companies has diminished significantly over the years 1983 to 1987. Mr. Chan explained that with the exception of the company in Jamaica these companies are no longer operational. He, however, produced no documentary evidence in support of his statement.

13 The Company in its evidence stated that it took measures to curtail its costs in November, 1987 including the withdrawal of cost of living allowance of non-unionised staff, a reduction in salaries of its managers and a reduction in working time and a corresponding reduction of pay of its staff.

14 We have formed the opinion that the company is in financial difficulty. Mr. Chan was unable to offer any assistance to the court as to future projections or prospects of the company.

ARTICLE 25 - PERIOD OF AGREEMENT:

15 The expired agreement, as we have noted, terminated on 30th June, 1984 and the new agreement could be for a minimum period of throe (3) years from 1st July, 1984 to 30th June, 1987 or for a maximum period of five (5) years from 1st July, 1984 to 31st June, 1989. (See section 43(1) of the Act)

16 There is no provision in the Act whereby the parties could have agreed to the extension of its provisions for a further period and the purported extension was, in our opinion, void and of no effect. The extended terms should therefore, in our opinion, be incorporated in a collective agreement commencing 1st July, 1984. Both the Union and the Company in their submissions admitted, though advancing different arguments, that there was need to determine the period of the agreement in accordance with the provisions of the Act.

17 We have carefully considered these submissions and order on the special facts of the case based on the agreement of the parties (supra) that the duration of the new agreement shall be for a term of five (5) years from 1st July, 1984 to 30th June, 1989.

18 We further order that the provisions of the expired agreement shall be the applicable provisions of the new agreement for the first two years from 1st July, 1934 to 30th June, 1986 only.

19 The issues discussed hereafter and our orders following thereon pertain to the period of the new agreement from 1st July, 1986 to 30th June, 1989.

20 The expiry date of the new agreement is 30th June, 1989 and many of the issues in dispute are inapplicable to the period prior to that date. In our view they should be capable of resolution in the succeeding collective agreement with sincere effort and goodwill on both sides in accordance with the principles of good industrial relations practice.

21 We therefore order that there be no change in the terms of the following disputed items:

Article 4 and Schedule 3 - Leave of Absence

Article 11 - Job Description, sections 1 and 2

Article 19 - Management Practice, section 1, 2 and 3

Article 21 - Personal File

ARTICLE 20 - PENSION AND LEAVE PLANS

22 The issue in dispute although having no effect in the period of the agreement as such has in our view far reaching implications and is of sufficient importance to be dealt with by the court.

23 The Union has proposed that there be no change in the terms of the expired agreement whereas the company has proposed that the Article be amended to safeguard the interest of the majority of the employees of the company who are members of the Pension Plan and Health plan. There are 87 employees in the former and 134 in the latter of which g are employees in the two bargaining units. In the opinion of the company the requirement that the Plans may not be altered without prior consultation and agreement between the company and the Union is unduly restrictive and inimical to the best interest of the members of the Plan.

24 We agree with the Company that some safeguard is necessary to protect the interest of the larger body of employees and we therefore order that the word “and agreement appearing immediately after the word “consultation” in the Article be deleted.

ARTICLE ALLOWANCES

SCHEDULE 4 SECTION 1, 2, 4, 6 AND 8

25 The Union has proposed that the minimum acting allowance of an employee who acts in a higher classification should be increased from $95 per month to $125 per month.

26 The Union has also proposed increases in subsistence allowances from $9.00 to $11.25 (Breakfast Allowance), $12.00 to $15.00 (Lunch Allowance and $9.00 to $11.25 (Dinner Allowance). It further proposed an increase of Driving/Car Maintenance Allowance equivalent to 33?% of existing allowances and has proposed a Laundry Allowance of $6.00 per week.

27 The Company contended that the allowances now...