National Union of Government and Federated Workers v The Chief Personnel Officer

• Jurisdiction: Trinidad & Tobago
• Judge: Beckles, P.
• Judgment Date: 19 April 1991
• Court: Industrial Court (Trinidad and Tobago)
• Docket Number: 64 of 1989
• Date: 19 April 1991

Industrial Court

Beckles, P.; Elcock, M.

64 of 1989

National Union of Government and Federated Workers

and

The Chief Personnel Officer

Appearances

Mr. R. Guiseppi - Negotiator for party no. 1.

Mr. L. Greaves - Director of Industrial Relations for party no. 2.

Industrial law - Contract of service — Complaint of wrongful and unlawful alteration of terms and conditions of service of workers — Reduced work schedule — Collective agreement — Whether action contrary to stipulations of agreement — Interpretation — Finding of genuine discussions between parties to implement strategy of shortened workweek — Finding that employer's straightened financial condition dictated action taken and that it was not in breach of terms and conditions of employment.

Beckles, P.

1 The instant dispute revolves around a complaint by the National Union of Government and Federated Workers (hereinafter called “the Union”) that the Chief Personnel Officer (hereinafter called “the Employer”) has wrongfully and unlawfully altered the terms and conditions of service of some 2000 workers employed in the Maintenance and Drainage Division of the (then) Ministry of Works Maintenance and Drainage (hereinafter called “the Ministry”).

2 It is not in dispute that beginning in the month of June 1984 and continuing up to the time of the hearing of this matters some 2000 daily-rate workers of the said Maintenance and Drainage Division (hereinafter called 11th Division”) have been placed by the Ministry on an 8-day per fortnight work schedule, in place of the previous 10-day per fortnight schedule. The Union contention is that this action was unilateral discriminatory and contrary to the terms and conditions of service of the said workers as stipulated in the relevant collective agreement, and the Union is therefore asking this Court to order that:

• (a) The said workers be paid all wages lost as a result of the reduced work schedule since the year 1984,

• (b) The said workers be credited with the “service” (i.e. eligibilities for vacation leaves seniority, promotion and other benefits) which they have likewise lasts and

• (c) The Employer must observe the provisions of the said Collective Agreement which stipulate the normal working hours of the said workers.

3 The Employer for his part contends that

• (a) The provisions of the said Collective Agreement do not give the said workers a guarantee of 10 days par fortnights but rather stipulate that their employment is dependent on “job opportunity” and on “Parliamentary prevision.”

• (b) The reduction of the work fortnight from ten days to eight was the direct result of reduced financial appropriations by Parliament, and had only been initiated after prior discussions with the Union in 1984.

• (c) The reduced work fortnight had been instituted as a more humane alternative to large scab retrenchment of the said workers.

4 This dispute was first reported to the Ministry of Labour by the Union, by letter dated 29th October 1987 and on the 21st April 1989, the Minister issued a “Certificate of Unresolved Dispute.” Thereafter by letter dated 26th June, 1989 the Union reported the dispute to the court in accordance with the provisions of section 54(1) of the industrial Relations Act Chapter 88:01 (“the Act”).

5 After both parties had filed their respective statements of Evidence and Arguments as enjoined by the court at the “Directions” stage of these proceedings, the matter eventually came on far hearing before this Court on 16th May, 1990.

6 The written submissions of both parties and the oral testimony which we heard in the course of these proceedings indicate that certain facts are not in dispute and these we will now proceed to narrate. The Union is the recognised majority union far the bargaining unit which comprises all hourly, daily and weakly-rated employees of the Government, and the Employer i.e. the

7 Chief Personnel Officer is deemed by section 2(4)(a) of the Act to be the employer of any worker employed by the Government for the purposes of the Act.

8 In or about the month of March in the year 1984 the Ministry informed the Union that the financial allocation which the Parliament had made for the Division for the year 1984 was considerably less than the allocation for the previous year, and that consequently the Ministry was not going to be able to provide full employment throughout the year (1984) for the Division's entire daily-rated labour force of some 4000 employees. The Ministry further informed the Union that it was contemplating the lay-off of come 2000 of these employees as a solution to the problem.

9 The Union was understandably alarmed by the spectre of these 2000 workers being out of work and immediately entered into discussion with the Ministry and the Employer in an effort to avert if possible, or to mitigate if necessary the harshness of these proposed measures. After several meetings between the parties it was agreed that the following arrangement should be implemented:

• (a) Permanent workers and “Regular” workers with more that 10 “effective” years of service and all Union Shop Stewards regardless of the length of their service would continue to be employed for 10 days per fortnight.

• (b) “Regular workers” with less than 10 but more than 2 “effective” years of service would be employed for 8 days per fortnight, provided that where such a worker's “off-day” fell on a public holiday, he should be paid a full day's pay (8 hours) for such a day.

• (c) All workers with less than 2 effective yours of service commonly called “Casual” workers, would be laid off.

• (d) Workers on the reduced 8-day schedule should nevertheless enjoy vacation and sick leave an the same basis as those an the 10-day schedule.

10 In the relevant collective agreement between the parties a “Regular worker” is defined as one who has been employed by the Employer for an aggregate period of 2 or more “effective” years (Article 1 (iii),) and an “effective year's service” is defined as a period of at least 200 (working) days in any given 12 month period (Article 1(iv).) This collective agreement we should point out, expired on 31st December, 1983 but by section 47 of the Act, its provisions continue to regulate the individual contracts of employment of the workers with whom we are concerned in this dispute.

11 The foregoing arrangement for the allocation of work in the Ministry was put into effect in the early part of the month of June 1984 and has continued with curtain exceptions up to the time of hearing of this dispute.

12 The Union called two witnesses, namely Fitzroy Stewart, its Second Deputy President-General and Kenneth Fredericks, President of its Works Section. They both testified that they had been present at the various meetings held in 1984 between the Ministry, the Union and the Employer to discuss the future employment of the Division's workers in the light of the Parliament's reduced allocation of funds to the Ministry.

13 Both witnesses indicated that the proposals for the reduced work-week outlined above had been reluctantly put forward by the Union in response to the Employer's own proposals for large scale lay-offs, and both wore adamant that them had been no agreement for the reduced work schedules to be continued beyond 31st December 19849 and that the workers involved had never really accepted their loss of employment, Fredericks was insistent that the decisions taken and implemented by the parties had not been an agreement, but rather (as he put it) an “accommodation” for a strictly limited period.

14 Stewart further testified that upon hearing that the Union had been discussing reduction of the work-week with the Employer, the Division's workers had formed what they called the “Maintenance Action Group” and at their insistence, the Union had allowed their representative to attend some of the meetings with the Employer.

15 The Employer called three witnesses namely Reginald Byer, Personnel and Industrial Relations Officer III, Horace marvelling Building Manager of the Ministry and Osborne Ashby, Industrial Relations Adviser to the Chief Personnel Officer.

16 Byer gave details of the various meetings between the Ministry, the Employer and the Union to discuss the issue of the reduction of the work period of the workers of they Ministry for the year 1984, He explained that the agreement with the Union on the altered work schedule had not been confirmed in a formal written document but had bean ratified by the Cabinet. In this connection there was tendered into evidence through this witness and marked (RB1) a copy of a Cabinet Minute purporting to reflect and ratify the said agreement the relevant section of which read as follows:

“CABINET MINUTE

No. 1482

7 June, 1984

Proposed Retrenchment of Labour from the Maintenance Divisions Ministry of Works Maintenance and Drainage

Cabinet

agreed:

• (b) to accept the proposal as outlined hereunder for dealing with the question of retrenchment as well as retirement and reduction in respect of daily-rated employees in the Maintenance Division of the Ministry of Works, Maintenance and Drainage:

  • (i) the permanent cadre and office staff (586) as well as daily rated employees with more than ten years service (1303) should be retained on a 10-day fortnight;

  • (ii) daily-rated employees with three to nine; years service (1846) should be retained on an 8-day fortnights

  • (iii) daily-rated employees with 2 effective years service and loss (271) as at December 31, 1983 should be retrenched;

  • (c) that the Ministry of Finance and Planning in consultation with the Ministry of Works, Maintenance and Drainage should identify funds to meet the expenditure involved in giving effect to the decision recorded at (b) above estimated at $16 Million and made up as indicated in paragraph 6 of the Note.

14 June 1984

C. Sookram

f/ SECRETARY TO CABINET.”

17 Byer...