The Attorney General of Trinidad and Tobago v Desalination Company of Trinidad and Tobago

JurisdictionTrinidad & Tobago
JudgeA. des Vignes. J.A.
Judgment Date16 October 2020
Neutral CitationTT 2020 CA 58
CourtCourt of Appeal (Trinidad and Tobago)
Docket NumberCivil Appeal No. P284 of 2015
Date16 October 2020

IN THE COURT OF APPEAL

Panel:

I. Archie CJ

G. Smith JA

A. des Vignes JA

Civil Appeal No. P284 of 2015

Civil Appeal No. P287 of 2015

Between
The Attorney General of Trinidad and Tobago
Appellant
and
Desalination Company of Trinidad and Tobago
First Respondent
Registration Recognition and Certification Board
Second Respondent
Oilfield Workers Trade Union
Third Respondent
Registration Recognition and Certification Board
Appellant
and
Desalination Company of Trinidad and Tobago
First Respondent
Oilfield Workers Trade Union
Second Respondent
The Attorney General of Trinidad and Tobago
Third Respondent
Appearances:

Mr. R. Armour SC and Mr. M. Quamina instructed by Mr. S. Julien on behalf of the Attorney General of Trinidad and Tobago

Mr. S. Jairam SC and Mr. K. Bengochea instructed by Ms. L. Thomas on behalf of Registration, Recognition and Certification Board

Mr. F. Hosein SC, Mr. R. Dass and Mr. A. Hosein-Shah instructed by Ms. N. Alfonso on behalf of Desalination Company of Trinidad and Tobago

Mr. D. Mendes SC and Mr. I. Ali on behalf of Oilfield Workers Trade Union

I have read the judgment of des Vignes J.A. and agree with it.

I. Archie,

Chief Justice.

I have read the judgment of des Vignes JA and I too agree with it.

G. Smith,

Justice of Appeal.

Delivered by A. des Vignes. J.A.

1

Before this court are two appeals filed by the Registration Recognition and Certification Board (the Board) and the Attorney General of Trinidad and Tobago (the AG). The Board's appeal (Civil Appeal No. P287 of 2015) and the AG's appeal (Civil Appeal No. P284 of 2015) are against the judgment of the Honourable Madam Justice Gobin (“the trial judge”) delivered on October 9, 2015 by which she made the following orders, inter alia:

  • (i) The Court declares that sections 23(6) and (7) of the Industrial Relations Act Chap. 88:01 (the IRA) breach the separation of powers doctrine and are null and void and of no effect;

  • (ii) An order of certiorari is granted, the determination of the Board that the Desalination Company of T & T (DESALCOTT) does not fall within the meaning of the First Schedule Essential Industries is quashed;

  • (iii) The decision of the Board is illegal for the reason that in arriving at its determination the Board breached the rules of natural justice and acted unfairly;

  • (iv) The Court declares that the hourly rated, monthly paid employees of DESALCOTT are workers in a category of essential industry, “Water and Sewerage” under Schedule 2 of the IRA;

  • (v) An order of prohibition is granted restraining the Board from continuing to hear the application of the Oilfield Workers Trade Union (Union) for recognition and certification.

ISSUES
2

There are six issues to be determined in this appeal:

  • (i) Whether DESALCOTT was debarred by sections 23(6) and 23(7) of the IRA from challenging the Board's decision by way of judicial review;

  • (ii) Whether the trial judge erred in finding that the Board breached the rules of natural justice, in failing to provide DESALCOTT with notice of the Union's oral submissions before it came to a determination in relation to its objection thereby rendering the decision of the Board open to challenge;

  • (iii) Whether DESALCOTT was debarred from obtaining the reliefs sought by reason of the existence of an alternative remedy under section 31 of the IRA;

  • (iv) If the decision of the Board was reviewable and there was a breach of natural justice, whether the judge ought to have proceeded to make a determination on whether the workers fell within the category of essential industry or whether the matter ought to have been remitted to the Board;

  • (v) Whether sections 23(6) and 23(7) of the IRA breach the doctrine of separation of powers;

  • (vi) Whether section 18 of the Constitution Act operates as a further savings or validating clause to those provided for in the Constitution which renders sections 23(6) and 23(7) of the IRA immune from a claim that the said sections are in violation of the doctrine of separation of powers;

SUMMARY OF DECISION
3

In my view, for the following reasons the appeals ought to be dismissed:

The ouster contained in sections 23(6) and 23(7) of the IRA is incapable of preventing the Court from reviewing the decision of the Board because the Board:

both of which made the Board's decision amenable to judicial review.

  • (i) made errors of jurisdiction; and

  • (ii) failed to adhere to the principles of natural justice,

  • (iii) Section 31 of the IRA contemplates that an application to the Board to state a case can only be made “during the hearing of any matter before the Board”. Since there was no hearing of the matter before the Board, DESALCOTT could not invoke section 31 and therefore had no alternative remedy available to it.

  • (iv) The Board's decision was tainted by legal error arising from the conjunctive interpretation of the phrase “water and sewerage”; there was nothing left but to give the phrase a disjunctive interpretation which is what the trial judge did. Additionally, since the Union was already certified as the recognized majority union of other essential industries the trial judge cannot be faulted for making a finding on the issue of whether the workers fell within the category of essential industry because there was nothing left to remit to the Board for its consideration.

  • (v) Sections 23(6) and 23(7) of the IRA does not violate the doctrine of separation of powers. The powers, duties and responsibilities of the Board and the High Court are essentially different.

  • (vi) Although, by Section 18 of the Constitution Act section 23 (6) and (7) of the IRA are deemed to have been validly made and to have full force and effect as part of the law immediately before the commencement of the Constitution in 1976, they do not oust the jurisdiction of the Supreme Court from reviewing the decision of the Board for errors of law that go to jurisdiction or for breaches of natural justice.

THE FACTS
4

The Board is the body established under the IRA, charged with the responsibility of determining applications concerning certification of recognition of trade unions as the majority union for bargaining units of workers and for the cancellation of such certification under section 23 of the IRA.

5

The Union applied to the Board to be certified as the majority union in respect of the hourly rated, monthly paid workers employed by DESALCOTT (the workers), a limited liability company engaged in the business of converting sea water into potable water which is sold exclusively to the Water and Sewerage Authority (WASA). DESALCOTT objected to the application on the basis that the employees were workers in a category of essential industries, specifically, water services, and that since the Union was already certified as the recognized majority union of other essential industries, namely electricity services and oil and gas, (which was not in dispute), the Board was debarred from considering the Union's application pursuant to section 38(4) of the IRA.

6

On October 9, 2012, the Board ruled against DESALCOTT's preliminary objection and decided that the employees of DESALCOTT were not workers in a category of “essential industry”, namely, water and sewerage services.

7

DESALCOTT, by application filed on January 30, 2013, sought review of the decision of the Board to proceed with and entertain the application of the Union for certification as the recognised majority union in relation to the workers. The Union was joined as an interested party. DESALCOTT subsequently amended its application to include relief in the form of a declaration that “any legislative provision which is construed to permit a Statutory Board to determine finally any matter of law and/or the interpretation of any statute without judicial oversight will be contrary to the rule of law and/or the separation of powers implicit in the Constitution of Trinidad and Tobago and void”. In light of the amendment, the AG was also joined as a party to the proceedings.

FINDINGS OF THE JUDGE
8

On October 9, 2015, the trial Judge found in favour of DESALCOTT. She essentially found that: (a) the Board erred in its determination that the employees of DESALCOTT were not workers in a category of “essential industry”, that is, water and sewerage services. Further, the Board erred in law and its assumption of jurisdiction following from that error resulted in a decision that was a nullity; (b) regarding the procedure adopted by the Board in relation to the application as well as the relevant law, the trial Judge found that the Board breached the rules of natural justice because the Board's decision to conduct “closed hearings” denied DESALCOTT the opportunity to hear the Union's submissions and DESALCOTT was not given proper notice of the Union's arguments. In the circumstances, the trial Judge ordered as follows:

  • (i) sections 23(6) and 23(7) of the IRA breached the separation of powers doctrine and were null and void and of no effect;

  • (ii) an order of certiorari was granted to quash the determination of the Board that DESALCOTT did not fall within the meaning of essential industries set out in the First Schedule of the IRA;

  • (iii) the decision of the Board was illegal for the reason that, in arriving at its determination, the Board breached the rules of natural justice and acted unfairly;

  • (iv) a declaration was made that the hourly rated, monthly paid employees of DESALCOTT were workers in a category of essential industry that is, “Water and Sewerage” under Schedule 2 of the Act; and

  • (v) an order of prohibition was granted restraining the Board from continuing to hear the application of the Union for recognition and certification.

THE APPEAL
9

The Board and the AG both filed appeals on November 20, 2015 challenging the decision of the trial Judge. The appeals were heard on December 4, 2019.

ANALYSIS
Issue No. (i)...

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