Minister of Labour and Small and Micro Enterprise Development v Public Service Association of Trinidad and Tobago
| Jurisdiction | Trinidad & Tobago |
| Judge | Khan, P.,Soverall, M. |
| Judgment Date | 10 June 2002 |
| Court | Industrial Court (Trinidad and Tobago) |
| Docket Number | Application No. 2 of 2002 |
| Date | 10 June 2002 |
Industrial Court
Khan, P.; Soverall, M.
Application No. 2 of 2002
Mr. Seenath Jairam, S.C. ( Heney Wooding and Dharmendra Punwasee with him), for Party No. 1.
Mr. Douglas Mendes, Attorney at Law, for Party No. 2.
Employment Law - Application to discharge variation — Ex parte Injunction — Prohibiting the union from taking and or continuing industrial action in relation to the public health care facilities — Minister of Labour and Small and Micro Enterprise Development — Definition of Industrial action — Definition of essential services — Illegal industrial action — National Interest — Industrial Relations Act s. 67 & 69
On April 26th, 2002, we granted an ex parte injunction (“the injunction”), pursuant to section 65 and all other enabling provisions of the Industrial Relations Act, Chap. 88:01 (“the Act”), inter alia restraining the Public Services Association of Trinidad and Tobago (“The PSA”) whether by its president, general secretary, treasurer, officers, servants, workmen and/or agents and/or its members or workers/employees who are medical practitioners within the meaning of and/or under and by virtue of the provisions of the Medical Board Act, Chap. 29:50 and who are employed with the Government/State of the Republic of Trinidad and Tobago and/or the Ministry of Health of the Government of Trinidad and Tobago (hereinafter referred to as “the Government”) or any of them or howsoever otherwise from taking and/or continuing industrial action within the meaning of the Act in relation to the public health care facilities referred to in the order. The full terms of the order we made are contained in our written order dated and entered the same day.
By an application that was supported by an affidavit sworn to and filed on May 1st, 2002 by Mrs. Jennifer Baptiste-Primus, the president of the PSA (“the Baptiste-Primus affidavit”), the PSA has applied for the discharge of the injunction to exclude from its ambit the PSA, its president, general secretary, treasurer, officers, servants, workmen and/or agents and/or its members or workers/employees who are not medical practitioners.
Mr. Mendes prefaced his submissions for the discharge of the injunction in the terms sought by the PSA by emphasising that the PSA was not seeking any variation of the injunction that will result in the discharge of the injunction against the medical practitioners (“the doctors”). What the PSA was seeking was its discharge only in respect of its president, general secretary, treasurer, officers, servants, workmen and/or agents and/or its members or workers/employees who are not medical practitioners.
He submitted inter alia:
- That Mrs. Jennifer Baptiste-Primus' statements to the media not only distanced herself from the doctors' action but she also described the doctors' action as illegal and condemned it. 2. Since the PSA did not call for the industrial action by the doctors, the PSA ought not to be responsible for it. 3. In Civil Appeal No. 106/86 between Caribbean Tyre Limited and Oilfields Workers' Trade Union, the Court of Appeal held that negotiation with a branch of the union were not negotiation with the union. In the instant case, there is no provision in the rules of the union that allowed a section to act on behalf of the union. 4. Only parties to industrial action can be restrained by an order under section 65(1) of the Act. If the union had nothing to do with the industrial action then the injunction should not have been issued against it. It is clear on the evidence that the union had not taken, had not authorised or encouraged the doctors' action. 5. In Civil Appeal between Transport and Industrial Workers' Union and Fernandes [1969] Vol. 13 W.I.R. 310, it was held that a shop steward had not been authorised by the union to take strike action. There is no evidence in this case to suggest that the doctors had any authority to act on behalf of the union or that the union had authorised or called for industrial action.
Mr. Mendes also made an application for costs on the ground that there were exceptional circumstances, since the injunction was granted against the PSA not because of any fault on its part but
“probably due to the fault of the Minister (of Labour and Small and Micro Enterprise Development) in not making sufficient inquiries, being alerted to the so-called distancing, the position of the union was not brought to your attention. And that position was conveyed to the Chief Personnel Officer, the other party to the dispute. Had that information been communicated to you, then I would respectfully submit that it is more than likely that you would not have issued an order against the Association and the Association would not have been put to the expense of coming before Your Honours to have the injunction discharged.”
- The patties to this matter are the Honourable Minister of Labour and Small and Micro (Enterprise Development and the PSA. It is not a matter between the employer and a recognised majority union. 2. Rule 52 of the PSA shows that the PSA is monolithic and not federal; the PSA is comprised of sections. 3. The PSA is vicariously responsible in injunction proceedings for the acts of its members who took illegal industrial action. 4. Even though section 65 of the Act creates a special jurisdiction and confers a special statutory right on the Minister of Labour, when he comes to Court, the Court is not confined within the parameters of section 65 alone. 5. The word “parties” in section 65 does not mean only the striking doctors. It also necessarily includes the PSA, the recognised majority union. 6. These are not contempt proceedings. See Seaward v. Patterson[1897] 1 Ch. 545. 7. The appeal case of Transport and Industrial Workers' Union v. Fernandes[1968] 13 W.I.R. 310 does not assist the Court, since different considerations apply in criminal proceedings and contempt proceedings. In relation to the injunction, the case has no relevance. 8. If the employer had applied for an injunction, he would have had the duty to make disclosure in respect of the matter referred to by Mr. Mendes in his application for costs. The Minister, however, has no such duty under section 65. 9. It must be assumed that when Parliament enacted section 65, it was aware of the law. See vol. 24, Halsbury's Laws of England, 4th ed. paras. 94 (2) and 94(3). The Minister of Labour is entitled to apply to the Court for an injunction if he considers that the national interest is threatened. 10. The Act was passed notwithstanding the Constitution and section 10(3) declares “Notwithstanding anything in this Act or in any other rule of law to the contrary, the Court in the ‘exercise of its powers shall - … 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.” 11. The PSA has not done enough to repudiate the action of the doctors. Apart from the press releases and the newspaper reports, it should have gone further than that. It should have written to the individual doctors with copies to the employer telling them to “Desist from such action; it is contrary to the law; we are not responsible.” Since it has not done so, the PSA is vicariously liable at common law for the action of the doctors. 12. It was necessary to join the recognised majority union and its officers in the application for the injunction. 13. The thrust of the affidavit of Mrs. Baptiste-Primus, the president of the PSA, is that at no time did the PSA or its executive officers or its general council authorise or sanction the industrial action. 14. The Court should ask itself the question, “Did the executive of the PSA do enough to limit the authority of the medical arm in some clear and effective manner or were the doctors left with the illusion that they had authority to act in the name of the PSA? 15. There is no evidence that the PSA had taken disciplinary action against the doctors. 16. Heatons Transport (St. Helens) Ltd. v. Transport and Industrial Workers' Union[1972] 2 All E.R. 1214 sets out relevant principles. 17. Also Express and Star Limited v. NJ 1992 and Others, [1985] 1 I.R.L.R. 455. 18. On the facts, the executive committee turned a blind eye to the industrial action by its members.
Both Mr. Mendes and Mr. Jairam referred the Court to the judgment of this Court in Application No. 2 of 1997 between the Honourable Minister of Labour and Co-operatives and Trinidad and Tobago Unified Teachers' Association.
In replying, Mr. Mendes disagreed with Mr. Jairam's submissions generally. He referred to the Baptiste-Primus affidavit in detail and emphasised that the PSA had not authorised or sanctioned the doctors' industrial action but condemned it and should not be penalised for it. He pointed out inter alia that the PSA disowned the doctors to the public, the entire public, not just the members. At the end of the day, he said, it was not a case in which it has been established on the facts that the doctors were acting on behalf of the union. They were acting on a frolic of their own.
The starting point in dealing with this application is s.65 of the Act. Section 65 of the Act declares
“65. (1) Where industrial action is threatened or taken, whether in conformity with this Act or otherwise,...
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