Trinidad and Tobago Aviation Authority v Registration Recognition and Certification Board
| Jurisdiction | Trinidad & Tobago |
| Judge | FRANK SEEPERSAD |
| Judgment Date | 20 February 2017 |
| Neutral Citation | TT 2017 HC 87 |
| Docket Number | CV2016-03524 |
| Court | High Court (Trinidad and Tobago) |
| Date | 20 February 2017 |
IN THE HIGH COURT OF JUSTICE
The Honourable Mr. Justice Frank Seepersad
CV2016-03524
In the Matter of The Judicial Review Act Chapter 7:08 of the Laws of Trinidad and Tobago
and
In the Matter of an Application for Judicial Review of the Decision Dated 12th August 2016 Made by the Registration Recognition and Certification Board to Certify the Public Services Association of Trinidad and Tobago as the Recognised Majority Union for the Monthly Rated/Paid Workers of the Trinidad and Tobago Civil Aviation Authority Comprising Bargaining Units 1 to 5 Described in Certificate Nos. 8 of 2016, 9 of 2016, 10 of 2016, 11 of 2016 and 12 of 2016 with Effect from 18th July 2016
1. Mr. R. Armour S.C., Ms. Gopaul instructed by Ms. Bissessar for the Claimant
2. Mr. Byam for the Defendant
3. Mr. Mendez S. C. instructed by Mr. I. Ali for the Public Services Association
Judicial Review - Application by the claimant for judicial review of the defendant's decision to certify the Public Services Association of Trinidad and Tobago (PSA) as the recognised majority union for the claimant's monthly rated/paid workers comprising Bargaining Units 1 – 5 with effect from 18th July 2016 — Whether on a proper interpretation of the relevant law the defendant had the jurisdiction to consider the Certification Application — Whether the defendant breached the rules of natural justice by failing to inform the claimant of and/or disclose to the claimant the information provided to the defendant by the PSA and/or derived from an examination by the defendant of the PSA's records in respect of the matters provided for in section 34 of the Industrial Relations Act and failing to afford to the claimant the opportunity to respond to such information.
Before the Court for its determination was the Claimant's claim for judicial review which was supported by an affidavit of Mr. Ramesh Lutchmedial (the Lutchmedial affidavit). The Claimant challenged the decision made by the Registration Recognition and Certification Board (the “RRCB” and/or the “Board”) on 12 th August 2016 to certify the Public Services Association of Trinidad and Tobago (the “PSA” and/or “Union”) as the recognised majority union for the Claimant's monthly rated/paid workers comprising Bargaining Units 1 to 5 described in Certificate Nos. 8 to 12 of b 2016 with effect from 18 th July 2016.
The grounds upon which the claim was premised are as follows:
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(a) The RRCB acted without jurisdiction and/or exceeded its jurisdiction and/or erred in law by considering the application dated 28 th September, 2010 by the PSA for certification as the recognised majority union of the monthly rated/paid workers of the Authority comprising Bargaining Units 1 to 5 described in Certificate Nos. 8 to 12 of 2016, contrary to section 38(4) of the Industrial Relations Act, Chapter 88:01 of the Laws of Trinidad and Tobago;
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(b) Further and/or in the alternative, the RRCB breached the rules of natural justice by (i) failing to inform the Authority of and/or to disclose to the Authority the information and/or submissions provided to the RRCB by the PSA and/or derived from an examination by the RRCB of the PSA's records in respect of the matters provided for in section 34 of the Industrial Relations Act and, (ii) failing to afford to the Authority the opportunity to respond to such information and/or submissions provided by the PSA and/or derived from the RRCB's examination of the PSA's records; and
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(c) The decision of the RRCB to certify the PSA as the recognised majority union of the monthly rated/paid workers of the Authority comprising Bargaining Units 1 to 5 described in Certificate Nos. 8 to 12 of 2016 is contrary to the policy of the Industrial Relations Act, Chapter 88:01 of the Laws of Trinidad and Tobago.
An affidavit of service of Gerard Moore was filed on the 9 th November, 2016 and at the first case management conference hearing, the Defendant did not appear and no entry of appearance was filed.
In the circumstances the Court proceeded to give directions for the filing of submissions and indicated that it intended to deliver a decision on the 20 th February, 2017. An order was generated but same did not express the Court's stated intention that a decision would have been given on the 20 th February, 2017. The Claimant complied with the Court's directions and there was no subsequent intervention by or on behalf of RRCB until the morning of the 20 th February, 2017, when Mr. Byam appeared on behalf of the Defendant. The Defendant was served with the claim and by letter issued on behalf of the Claimant, was informed of the Court's order which was issued at the first hearing of the Case Management Conference. Having regard to the stage of the matter and the lack of previous participation by the Defendant, the Court formed the view that the Defendant could not be heard in the circumstances. On the 20 th February 2017, Mr. Mendez also appeared on behalf of the PSA and sought leave to intervene in the instant matter on the basis that the PSA was an interested party whose rights would be affected by the determination of the instant application.
The Claimant filed an affidavit dated 20 th February, 2017 and revealed that, as at the 16 th January, 2017, Mr. Mendez had a conversation with the Claimant's Junior Counsel, Ms. Gopaul, relative to this matter. Notwithstanding this conversation, no application for leave to intervene was filed. In addition, at the first Case Management Conference hearing, Mr. Amour had informed the Court that persons who had an interest in the matter, including workers of the Civil Aviation Authority and members of the PSA, were present; the Court enquired but no interested party identified themselves. In the circumstances, the Court was satisfied that the PSA had due notice of this matter and given the delay the Court did not permit the PSA to file evidence but permitted Senior Counsel to address the Court on points of law.
In its resolution of this matter the Court first considered the provisions of the Civil Aviation Act Chp. 49:03 (the Act) as well as the provisions of the Industrial Relations Act Chp. 88:01 (the IR Act) and, in particular, the following sections were reviewed:
The long title of the Act summarises the object of the Act:
“An Act to make provision for the establishment of the Trinidad and Tobago Civil Aviation Authority, for the regulation of all civil aviation activities, for the implementation of certain international conventions and for the institution of safety requirements.”
Section 4 of the Act establishes the Authority:
“There is hereby established a body corporate to be known as ‘the Trinidad and Tobago Civil Aviation Authority (hereinafter referred to as ‘the Authority’).”
The Authority's functions are set out in section 5 of the Act. They include:
“(a) to maintain a standard of safety and efficiency in the civil aviation system that is at least equal to the standard of safety prescribed by the Chicago Convention and any other aviation convention, agreement or understanding to which Trinidad and Tobago is a party;
(b) to regulate in accordance with the Civil Aviation Act or other written law—
(i) Civil aviation operations in Trinidad and Tobago;
(ii) The operation of Trinidad and Tobago aircraft; and
(iii) The operation of maintenance organisations in respect of aircraft on the Trinidad and Tobago register;
(c) to license aerodromes without or without conditions to regulate same;
(d) ………….
(e) to issue, renew, vary, extend and amend licences and other aviation documents in respect of Trinidad and Tobago aircraft in any part of the world, and to collect fees in respect thereof;
(f) to provide an adequate system of air traffic services in the Piarco Flight Information Region and such other airspace as may be the subject of a treaty or any other agreement between Trinidad and Tobago and any other State or organisation;
(g) ……………
(h) the development of civil aviation and the maintenance of a civil aviation system that is consistent with national security policy;
(i) to advise the Minister on matters relating to civil aviation;
(j) ………..
(k) ………..”
The workforce of the Authority comprises two main categories of workers and Sections 25(1) and 26(b) of the Act provide as follows:
“25(1). The Board may—
(a) employ such staff as is required by the Authority for the proper administration of its functions and,
(b) fix qualifications, terms and conditions of service and salaries for its employees.”
“26. A person who on the commencement of this section is a public officer appointed to an office listed in the Third Schedule either by permanent or temporary appointment in which he has served for at least two continuous years, shall within three months of the date of commencement of this section exercise one of the following options—
(a) …………;
(b) to transfer to the Authority with the approval of the Public Service Commission on terms and conditions no less favourable than those enjoyed by him in the Public Service;
(c) ……..”
In relation to the Authority's monthly rated/paid workers, section 26A of the Act provides that:
“26A. Subject to the Industrial Relations Act, the Public Services Association of Trinidad and Tobago shall be deemed to be the certified recognised majority union under Part III of the Industrial Relations Act for the bargaining unit comprising monthly paid/monthly rated employees of the Authority.”
The object of the IR Act is stated in its long title as:
“An Act to...
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