Industrial Relations Notes 3q4x3t

THE UNIVERSITY OF THE WEST INDIES ST. AUGUSTINE DEPARTMENT OF MANAGEMENT STUDIES MGMT 3018 INDUSTRIAL RELATIONS INSTRUCTOR INFORMATION Lecturer: Dr. Rajendra Ramlogan (Ph.D. Cambridge) Lecture Hours: Wednesdays 5.00 p.m. – 8.00 p.m Venue: Room 103 Engineering Office Hours: TBA Email:[email protected] COURSE RATIONALE This course is geared to provide students with the opportunity to explore a basic theoretical approach to industrial relations with the dominant objective of the course being to develop a practical understanding of the dynamics of industrial relations in the Caribbean. COURSE DESCRIPTION This course is intended to familiarize the student with the legal and policy framework of industrial relations. This course is based on a mixture of theory and case analyses. Students will be provided with reading notes and selected cases. Students will be expected to participate fully in class discussions. COURSE CONTENT Week 1 Theories of Industrial Relations Weeks 2 & 3 Elements of Industrial Relations Systems Week 4 Key Players  Trade Unions  Trade Union Associations  Employer Associations  Government  Regional and International Labour Institutions  Industrial Court Week 5 The Legislative Context of Industrial Relations in Trinidad and Tobago

Weeks 6 & 7 Substantive Principles and Practices of Good Industrial Relations  Performance Management  Core/non-core/contract labour  Absenteeism  Grooming  Promotions  Misconduct on and off the job  Religious beliefs  Harassment  Fraud and Dishonesty  Substance abuse  Health and safety  Conflict of interest  Criminal offences  Emerging Issues • Use of e-mails and internet • Privacy • AIDs • Gender Orientation Weeks 8 & 9 Procedural Principles of Practices of Good Industrial Relations  Discipline and grievance procedures  Progressive disciplinary steps  Just Cause  Natural Justice  Documentation  Investigations  Suspension  Hearings  Guidelines in hearings  Dismissal Weeks 10 & 11 Collective bargaining procedures and practices Week 12 Industrial action (strikes and lockouts, sick outs) CREDITS This course will carry three (3) credits. GOALS/AIMS The goals of this course are to:

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Enable students to understand the basic legal and policy parameters of industrial relations practices in the Caribbean Provide students with practical tools to enable them to participate with some level of familiarity in the decision making process forming part of industrial relations practices.

GENERAL OBJECTIVES The following steps will be in place to ensure that students are well prepared to achieve the course aims. • • • •

One hour would be set aside in each lecture session for discussions on tutorial questions. Tutorial questions will be assigned to selected students and all students will be expected to participate in discussions based on the answers as presented by the selected students. Students would be informed of the exact marking scheme in force for their assignments and examination. Students would also be instructed as to the preferred format for answering questions. Students are encouraged to submit answers to past paper questions by electronic mail and special consultations would be available to students having difficulties in understanding the course material or in answering questions.

LEARNING OUTCOMES This course will allow the student to have a working knowledge about the following:       

Theory of Industrial Relations Role of Key Players The Industrial Court The Collective Bargaining Process Good Industrial Relations Practices Resolving Disputes Disciplinary Action

COURSE ASSESSMENT There are three components to student evaluation: (a) Class participation – worth 10% of the final grade (b) Project Assignments- 30% of the final grade (c) Final Exam - worth 60% of the final grade (a) Class participation Students are expected to contribute regularly to classroom discussions and to participate in in-class exercises. Effective, thoughtful and constructive participation is grounded in regular attendance, preparation by completion of background readings, self-motivation and respect for fellow participants.

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Class participation is an opportunity to share insights and information with each other, and to further mutual learning and thinking. To provide an accurate baseline for the evaluation of your participation, you are entitled to submit a record of your participation. In it you could summarize your attendance, note the extent of your participation in each class, note the amount of background preparation for each class that you completed (including assigned readings), and explain any other activities in which you have engaged in that contribute to an improved classroom learning environment, or made up for missed attendance. If you choose to submit a participation record it should be submitted by the last day of classes in the term. (b) Group Projects Students are required to submit a group project and/or class assignments, which will be worth 30% of the final grade. Proposals will be evaluated on: the depth and currency of research; writing and citations; the clarity and development of the project; the structure, organization, depth and coverage of the project; and the methodology. Proposals must be typewritten and double-spaced. Use footnotes as appropriate. The submitted project will for 15% of the total project marks with the other 15% being awarded on an individual basis for the presentation of the project. (c) Final Examination There will be a final exam that will carry 60% of the total marks. EVALUATION Apart from the evaluation exercise conducted by the University of the West Indies, there will be a debriefing lecture where students will be given the opportunity to provide critical so as to improve course effectiveness. TEACHING STRATGIES • • •

Classroom discussions Case analysis Interactive learning

UNIVERSITY ACADEMIC INTEGRITY POLICY Please consult Section V (especially sub section B which deals with cheating) of the University of the West Indies, Examination Regulations for First Degrees, Diplomas and Certificates for details of this policy. CODE OF CONDUCT DURING CLASSES The following guidelines facilitate the creation and maintenance of an effective learning environment. All students are expected to adhere to the following guidelines during class hours:

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 All cellular phones and beepers are to be switched-off before and kept off during class hours except where the prior permission of the Lecturer has been obtained for keeping on the cellular phones and beepers.  Students are requested to read all assigned material before the start of each class.  Class discussions and participation are particularly welcomed.  It is disruptive to leave the classroom while lectures are in progress and students are asked to minimize such disruption by leaving the classroom at the scheduled lecture breaks. READINGS Readings shall be provided by the Lecturer.

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LECTURE 1 - INDUSTRIAL RELATIONS MANAGEMENT IN TRINIDAD AND TOBAGO The main focus of industrial relations is on people in the workplace, whether such a workplace is a large multinational organization, or a small family firm; whether those employed are on a contract of service (employer has full control over employee) or on a contract for service (employer has little/no control over contractor); and whether or not it is a unionized environment. It necessarily follows that the larger and more complex the organization, the more elaborate will the issues of industrial relations be. Industrial relations deals not only with the relationship between employers and employees but between employees and their collegues, employers and trade unions, and employees and their trade unions. What is Industrial Relations? Industrial relations is multidisciplinary in nature and as such there are many ways of defining the term. General Definition of Industrial Relations - The management of all the relationships that exist between the worker and employer in the workplace, whether they are economic, political, social or legal. Economic Definition of Industrial Relations - Industrial Relations is an art of getting workers together for the purpose of production. - J.H Richardson Legal Definition of Industrial Relations - Industrial Relations is a system of rules and regulations. These rules are of two kinds: Substantive Rules (contract – hours of work; rate of pay [hourly, weekly, monthly]; fringe benefits) and Procedural Rules (disciplinary measures; grievance handling). - Allan Flanders Sociological Definition of Industrial Relations - The study of people in a situation, organization or system interacting in the doing of work in relation to some contract whether written or unwritten is Industrial Relations. - C.J Margerison Political Definition of Industrial Relations - The evolution of Industrial Relations has been the historical shifting of power and functional relationships of three principal bodies in industrial relationships, that is, Unions, Management and Government. - H.D. Woods & Sylvia Ostry

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Socialist Economic Definition of Industrial Relations - Industrial Relations is the study of processes of control over work relations - R. Hyman Demand and Supply Definition of Industrial Relations - Industrial Relations is a study of rules, institutions and processes both formal and informal, structured and unstructured… of job regulations. - G.S. Bain and H.A. Clegg Multidisciplinary Approach - Industrial Relations is a sub-system of the wider society. It consists of actors, rules and regulations, a hierarchy of managers, workers, specialized government agencies and an environment that comprises technological factors, market and budgeting constraints. - J.E.T. Dunlap -

Industrial Relations is a science which deals with human behaviour as it acts or reacts to the effects of internal and external factors, pertaining to a particular plant, firm or industry; and which interferes positively or negatively with the ends or goals of the participants within those respective places. - Gabriel Yeates, ECATT Why is Industrial Relations management necessary? To control conflict. Conflict arises at the workplace in three main forms: 1. Structural 2. Distributive 3. Interpersonal Relations Structural conflict arises as the result of the manager’s inability to effectively run the company where his/her main role is in controlling, planning and forecasting the company’s activities. Distributive conflict arises as a result of disagreement over the distribution of revenues among shareholders, managers and workers. Interpersonal conflict arises when managers are not properly equipped to deal with personnel. Managing people requires skill and leadership qualities. The main role of management vis-à-vis industrial relations is the development and implementation of effective industrial relations policies at the workplace which is capable of commanding the confidence and respect of employees.

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Research on interpersonal relations has shown that even managing very few people can be tricky, as everyone is different and the possibility of personality clashes is very real. IR = n(2n/2 + n-1) where n = 5 ∴ 5(25/2 + 5-1) ∴ 5(2x2x2x2x2/2 + 4) ∴ 5(16 + 4) = 100 As the above formula shows, managing just 5 people is the equivalent of managing 100 different personalities. Principles and Practices of Good Industrial Relations The principles and practices of good industrial relations in Trinidad and Tobago are derived from four main sources: 1. International Labour Organization Conventions. The following are the Fundamental Labour Conventions.  ILO Convention 29 – Forced Labour Convention, 1930.  ILO Convention 87 – Freedom of Association and Protection of the Right to Organize, 1948. A worker cannot be discriminated against by his employer because he belongs to a trade union.  ILO Convention 98 – Right to Organize and Collective Bargaining Convention, 1949. Individual contracts cannot be amended if there is a Collective Agreement in place.  ILO Convention 100 – Equal Remuneration for Men and Women Workers for Equal Value Convention, 1951  ILO Convention 105 – Abolition of Forced Labour Convention, 1957  ILO Convention 111 – Discrimination (Employment and Occupation) Convention, 1958  ILO Convention 138 – Minimum Age Convention, 1973  ILO Convention 182 – Worst Forms of Child Labour Convention, 1999 2. Labour Laws of Trinidad and Tobago    

Industrial Relations Act, Ch. 88:01 Employment of Women (Night Work) Act, Ch. 88:12 Factories Ordinance Ch. 30:2 Maternity Protection Act, No. 4 of 1998.

3. Principles of Natural Justice 

Progressive form of discipline

4. General Practices and Principles 8

The Principles and Practices of good Industrial Relations have been defined by Rees, J. in Caribbean Printers Limited v Union of Commercial and Industrial Workers, CA no. 32 of 1972. They are “all those informal uncodified understandings which are ancient habits of dealing adopted by Trade Unions and acquiesced in or agreed to by employers. The principles and practices of good industrial relations are clearly not law. They are useful and convenient practices, which have long been observed and understood to govern the relationships of employers and employees in the diverse and varying conditions of persons in the field of industry.” Theoretical Frameworks for Industrial Relations Robert Morris has identified three main theoretical models to analyze and typify industrial relations: conflict, unitary and systems theory. 1. Conflict theory is based on a number of assumptions. a. there has been and always will be a divide between the owners and controllers of capital and those who sell their labour; b. collective action is best to counter the power of capital c. in all workplaces there are a variety of interests, some of which may share common positions, but may still have divergent objectives d. there is nothing inherently wrong with the use of struggle to create balance and a return to equilibrium. 2. Unitary theory disputes that there is a meaningful role for conflict in the workplace. Unitarists posit that management should set the rules and workers should cooperate in complying with the rules. Conflict is seen as disruptive. Managers and workers share a common interest and there is no need for ‘third party’ interventions. 3. The Systems theory examines the industrial relations systems as an organism which has throughputs, inputs, processes and outputs and which should be constantly evaluated. Such a system changes over time and is affected by changes in actors, ideologies, technology and the environment is which it operates. Labour Law in the pre-Industrial Relations Act, Ch. 88:01 era There were many laws in place to deal with industrial relations issues before the enactment of the Industrial Relations Act, 1972.

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Industrial Training Ordinance, Ch. 22 No. 4 [21 March 1931] Labour Bureau Ordinance, Ch. 22 No. 2 [13 June 1919] Labour (Minimum Wage) Ordinance, Ch. 22 No. 3 [02 May 1935] Masters and Servants Ordinance, Ch. 22 No. 4 [08 December 1938] Employment of Women (Night Work) Ordinance, Ch. 22 No 5 [20 April 1939] Recruitment of Workers Ordinance, Ch. 22 No 6 [1938] Foreign Labour Contracts Ordinance, Ch. 22 No 7 [10 February 1900] Trade Unions Ordinance, Ch. 22 No 8 [01 July 1933] Trade Disputes (Arbitration and Inquiry) Ordinance, Ch. 22 No 9 [12 May 1938] Truck Ordinance, Ch. 22 No 10 [01 January 1920] Workmen’s Wages (Protection) Ordinance, Ch. 22 No 11 [14 November 1929] Workmen’s Compensation Ordinance, Ch. 22 No 12 [01 January 1927] The very first piece of legislation regulating labour in Trinidad and Tobago was the Masters and Servants Ordinance, CAP. 152, 10 September 1846. The key provisions were concerned with breach of the employment contract (no reasonable cause; wilful absence; failure to fulfill contractual obligations; negligence; improper conduct; causing damage to the employer’s property). Masters and Servants Ordinance, Ch. 22 No. 4 December 1938]

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An Ordinance relating to Masters and Servants 2. In this Ordinance – “contract” includes any agreement, understanding, or arrangement whatsoever on the subject of wages, whether written or oral, direct or indirect, to which an employer and any servant are parties, or are assenting, or by which they are mutually bound to each other; “employer” includes any master, mistress, foreman, attorney, agent, manager, overseer, clerk, or other person engaged in the hiring, employing, or superintending the labour or service of any servant; “servant” means any mechanic, artisan, artificer, handicraftsman, agricultural or other labourer, any household or other domestic servant, any driver or conductor of a motor vehicle, and any person employed in a drogher or other vessel… 3. (2) No contract for service shall be valid or binding on either of the parties thereto for any longer term than the period of one year from the time when the service under such contract shall be commenced according to the of the contract. 4. (2) Every such written contract shall specify, as accurately as may be – (a) the general nature of the employment in which the servant is to be engaged;

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(b) when the work is to be performed by the time, the number of hours of daily labour and the period of the day during which such labour is to be performed; (c) when the remuneration or any part of it is to be made in kind, the nature and amount and quality of the articles to be supplied, and the time when and the places or place at which such articles are to be delivered. 5. In the absence of any express agreement to the contrary, every contract for service for one month or more, or continuing from month to month, may be terminated at any time by mutual consent of the parties, or by either party after the expiration of the first month on giving fourteen days’ notice previous notice to the other party, or for any such good an sufficient cause as hereinafter provided. 9. (1) No servant’s wages, if contracted for in money may be paid in kind, or, if contracted for in kind be paid in money, or in any other than the stipulated kind and quality, except with the express consent of the servant, and any employer who contravenes the provision of this subsection shall forfeit and pay to the use of the servant such sum not exceeding $50.00… (2) If any employer shall ill-use any servant or shall not deliver to any servant any articles stipulated for, and which by the contract of service were to be furnished by the employer to the servant, or if the articles to furnished shall not be of the stipulated quantity or quality such employer shall forfeit and pay to the use of the servant such sum not exceeding $50.00… 12 [10]. It shall be lawful for any employer to discharge any servant who shall be guilty of any misconduct or wilful omission or neglect of duty, without notice and without payment of any wages beyond the wages due at the period of such discharge; and to any complaint made in respect of such discharge, such misconduct or wilful omission or neglect of duty shall be a sufficient answer. 13 [11]. Upon any complaint made by any employer against any servant for refusing or wilfully neglecting to perform his contract, such servant shall be at liberty to show, by evidence, in answer to such complaint, that he terminated his service or contract in consequence of misconduct or ill-usage by his employer, or for some other good and sufficient cause to be determined by the Magistrate. Industrial Training Ordinance, Ch. 22 No. 4

[21 March 1931]

An ordinance to vest in the Board of Industrial Training the Property of the Royal Victoria Institute and to Provide for the Promotion of Industrial Training. 7. The duties of the Board shall be – (a) so far as possible to procure, and to enter into agreements for procuring, the training of apprentices;

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(f) to settle disputes arising between masters and apprentices, and to transfer apprentices to new masters when desirable; (g) to arrange as far as possible for the technical education of the artisans and apprentices… 12. Any master who shall take on any apprentice or probationary apprentice without the previous knowledge and consent of the Board shall be liable to a fine of $24.00. 13. Every master of any apprentice who wilfully refuses or neglects to conform to the of the or conditions imposed upon him by contract in respect of such apprentice shall be liable to a fine of $48.00. 14. Every apprentice who wilfully refuses or neglects to conform to the or conditions of his apprenticeship, or quits his master’s service without the leave of such master, shall be liable to a fine of $24.00… Labour Bureau Ordinance, Ch. 22 No. 2

[13 June 1919]

An ordinance to provide for the establishment of a Labour Bureau. 2. In this ordinance “Bureau” means the Labour Bureau established under this Ordinance for the purpose of collecting and furnishing information, either by the keeping of s or otherwise, respecting employers who desire to engage workmen and workmen who seek engagement or employment, and includes any branch of such Bureau. Labour (Minimum Wage) Ordinance, Ch. 22 No. 3

[02 May 1935]

2. (1) Whenever the Governor in Council is satisfied that the wages paid in the Colony or any part of the Colony for any occupation are unreasonably low, he may by proclamation fix a minimum rate of wage for that occupation. 4. (1) Where a minimum rate of wage fixed by the Governor in Council had become effective an employer shall in cases to which the minimum rate is applicable, pay wages to the person employed at not less than the minimum rate clear of all deductions and if he fails to do so he shall be liable, on summary conviction, in respect of each offence to a fine of one hundred dollars, and also to a fine of twenty five dollars for each day on which the offence is continued after conviction therefore. 6. Any agreement for the payment of wages in contravention of the provision of this Ordinance shall be void. Employment of Women (Night Work) Ordinance, Ch. 22 No 5 April 1939]

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An Ordinance relating to the Employment of Women during the Night in Industrial Undertakings.

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2. In this Ordinance – “industrial undertaking” includes – (a) mines, quarries, and other works for the extraction of minerals from the earth; (b) industries in which articles are manufactured, altered, cleaned, repaired, ornamented, finished, adapted for sale, broken up or demolished, or in which materials are transformed, including ship-building, and the generation, transformation, and transmission of electricity or motive power of any kind; (c) construction, reconstruction, maintenance, repair, alteration, or demolition of any building, railway, tramway, harbour, dock, pier, canal, inland waterway, road, tunnel, bridge, viaduct, sewer, drain, well, telegraphic or telephonic installation, electrical undertaking, gas work, water work, or other work of construction, as well as the preparation for or laying the foundations of any such work or structure; “night work” means work in an industrial undertaking during any portion of a period of eleven consecutive hours including the hours of 10:00 in the evening and 5:00 on the morning. 6. The provisions of section 5 shall not apply – (a) to an industrial undertaking in which only of the same family are employed; (b) to women holding responsible positions of management who are not ordinarily engaged in manual work; (c) to a case where… the night work complained of was due to a cause beyond control bringing about an interruption of work which it was impossible to foresee and which is not of a recurring character, or where the work has to do with raw materials or materials in course of treatment which are subject to rapid deterioration and when such night work is necessary to preserve the said materials from certain loss; (d) to the preparation and packing of fresh fruit for immediate shipment. Recruitment of Workers Ordinance, Ch. 22 No 6

[1938]

An Ordinance to Regulate the Recruiting of Workers 2. (1) In this Ordinance – “worker-recruiter” means a person who, being employed as a worker, is authorised in writing by his employer to recruit other workers on behalf of his employer, but who does not receive any remuneration or other advantages for such recruiting. (2) A person recruits within the meaning of this Ordinance who by himself or through others procures, engages, hires or supplies or undertakes or attempts to procure, engage, hire or supply workers for the purpose of being employed by himself or by any other person, so long as such worker does not spontaneously offer his services at the place of employment…

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3. Not applicable to the recruiting of personal or domestic servants or nonmanual workers. 5. Persons under the age of 18 years shall not be recruited: Provided that the Governor may by regulations permit persons under that age but of or above the age of 14 years to be recruited with the consent of their parents or guardians for employment in the Colony upon light work subject to such conditions as he may prescribe. Foreign Labour Contracts Ordinance, Ch. 22 No 7 1900]

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February

An Ordinance relating to Foreign Labour Contracts. 7. Every contract which under the authority of this Ordinance shall be entered into between any employer and any other person for the performance of any work as a labourer in a foreign country shall be in writing, and shall contain – (a) a statement of the description and nature of the work or service to be performed or rendered thereunder; (b) the name of the country, and the place of locality within such country, where such work or services is to be performed or rendered; (c) the name of the country and town or place where is situate the office or place of business of the employer; (d) the amount of wages and rations to be paid and allowed to the labourer; (e) the specified for such payments and allowances; (f) a condition that the labourer shall not be left destitute in that country, but shall at the expiration of sooner determination of his contract be repatriated by his employer, and at the cost and charges of such employer. Trade Unions Ordinance, Ch. 22 No 8

[01 July 1933]

An Ordinance relating to Trade Unions. Trade Disputes (Arbitration and Inquiry) Ordinance, Ch. 22 No 9 [12 May 1938] An Ordinance to provide for the establishment of an Arbitration Tribunal and a Board of Inquiry in Connection with Trade Disputes, and the make Provision for the Settlement of such Disputes, and for the Purpose of Inquiring into Economic and Industrial Conditions in the Colony. 2. (1) For the purposes of this Ordinance – “trade dispute” means any dispute or difference between employers and workmen, or between workmen and workmen, connected with the employment or non-employment, or the of the employment, or with the conditions of labour, of any person;

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“workman” means any person who has entered into or works under a contract with an employer whether the contract be by way of manual labour, clerical work, or otherwise, be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour. Truck Ordinance, Ch. 22 No 10

[01 January 1920]

An Ordinance to Prohibit the Payment of Wages otherwise than in Money. 2. In this Ordinance – “labourer” means any person employed for wages in work of any kind, and whether under or above the age of 21 years, but does not include domestic servants. 3. In every agreement or contract for the hiring of any labourer or for the performance by any such labourer of any work within the Colony, except as otherwise provided in this Ordinance, the wages of such labourer shall be made payable in money, and not otherwise, and if in any such agreement or contract the whole or any part of such wages shall be made payable in any other manner, such agreement or contract shall be illegal, null, and void. 4. No employer shall, directly or indirectly, by himself or his agent, impose as a condition, expressed or implied, in any agreement or contract for the employment of any labourer, any as to the place or the manner in which, or the person with whom, any wages or portion of wages paid to the labourer are or is to be expended, and every agreement or contract between an employer and a labourer wherein any such are expressed or implied shall be illegal, null, and void. 5. Except where otherwise permitted by the provisions of this Ordinance, the entire amount of the wages earned by or payable to any labourer in respect of any work done by him shall be actually paid to him in money, and every payment of or on of any such wages made in any other form shall be illegal, null, and void. Workmen’s Wages (Protection) Ordinance, Ch. 22 No 11 November 1929]

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An Ordinance to Prohibit the Payment of Wages in Premises Licensed for the Sale of Intoxicating Liquor and to Regulate the Attachment of Moneys due as Wages. Workmen’s Compensation Ordinance, Ch. 22 No 12 1927]

[01 January

An Ordinance to Provide for the Payment of Compensation to Workmen for Injuries Suffered in the Course of their Employment.

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4. (1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Ordinance: Provided that the employer shall not be so liable – (a) in respect of any injury which does not result in the total or partial disablement or the workman for a period exceeding ten days; (b) in respect of any injury to a workman resulting from an accident which is directly attributable to – (i) the workman having been at the time thereof under the influence of drink or drugs, or (ii) the wilfil disobedience of the workman to an order expressly given, or to a regulation or rules expressly made, for the purpose of securing the safety of workmen, or (iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen. (2) No compensation shall be payable to a workman in respect of any disease unless the disease is solely and directly attributable to a specific injury by accident arising out of and in the course of his employment… 5. (1) Subject to the provisions of this Ordinance, the amount of compensation shall be as follows, namely, (a) where death results from the injury, a sum equal to thirty months’ wages or $1200.00, whichever is less; (b) where permanent total disablement results from the injuryi. in the case of an adult, a sum equal to forty two months’ wages or $1680, whichever is less, and, ii. in the case of a minor, a sum equal to eighty four months’ wages or $1680, whichever is less; (c) where permanent partial disablement results from the injury – i. in the case of an injury specified in the Schedule hereto, such percentage of the compensation payable in the case of permanent total disablement as is specified therein as being the percentage of the loss and earning capacity caused by that injury, and ii. in the case of an injury not specified in the Schedule hereto, such percentage of the compensation payable in the case of permanent total disablement as proportionate to the loss of earning capacity permanently caused by the injury: where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated, but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries;

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(d) where temporary disablement, whether total or partial, results from the injury, a ½ monthly payment on the 16th day from the date of the disablement, and thereafter ½ monthly during the disablement or during a period of five years, whichever period is shorter – i. in the case of an adult, a sum equal to ¼ of his monthly wages, and ii. in the case of a minor, of a sum equal to 1/3 or, after he has attained the age of 17 years, to ½ of his monthly wages: Provided that there shall be deducted from any lump sum or ½ monthly payments to which the workman is entitled the amount of any payment or allowance which the workman has received from the employer by way of compensation during the period of disablement prior to the receipt of such lump sum or of the first ½ monthly payment, as the case may be, and no ½ monthly payment shall in any case exceed the amount, if any, by which ½ the amount of the monthly wages of the workman before the accident exceeds half the amount of such wages as he is earning or is able to earn in some suitable employment or business after the accident. 6. (1) For the purposes of section 4 the monthly wages of a workman shall be calculated as follows, namely,(a) where the workman has, during a continuous period of not less than twelve months immediately preceding the accident, been in the service of the employer who is liable to pay compensation, the monthly wages of the workman shall be 1/12 of the total wages which have fallen due for payment to him by the employer in the last twelve months of that period; (b) in other cases, the monthly wages shall be thirty times the total wages earned in respect of the last continuous period of service immediately preceding the accident from the employer who is liable to pay compensation, divided by the number of days comprising such period: Provided that if the amount of the monthly wages arrived at by a calculation under paragraph (a) or paragraph (b) is more than $60, such monthly wages shall be assumed to be $60. Industrial Stabilisation Act, No. 8 of 1965 An Act to provide for the compulsory recognition by employers of trade unions and organizations representative of a majority of workers, for the establishment of an expeditious system for the settlement of trade disputes, for the regulation of prices of commodities, for the constitution of a court to regulate matter relating to the foregoing and incidental thereto. Part I - Relations between Trade Unions, Employers and other Organizations

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3. (1) For the purpose of ensuring the preservation of collective bargaining, every employer shall recognise a trade union or other organization that is representative of 51 or a greater % of the workers employed by him and shall, subject to the provisions of this Act, treat and enter into such negotiations with any such trade union or organization as may be necessary or expedient for the prevention or settlement of trade disputes. * 4. An employer shall not dismiss a worker, or adversely affect his employment, or alter his position to his prejudice on of trade union activity. Part II - Constitution, Powers etc. of Court 5. (1) For the purposes of this Act, there shall be established an Industrial Court. Part III – Trade Dispute Procedure Part IV – Industrial Agreements 18. (1) Subject to the provisions of this Part, any trade union or other organization may make an industrial agreement with any other organization or with the employer… for the of the employment and the conditions of labour of any worker and for the prevention and settlement of existing or future industrial disputes by conciliation and arbitration. (2) Every industrial agreement shall contain provisions for the setting up of effective machinery to deal with grievances of workers. Part V – Price of Goods Part VI – Lockouts and Strikes Part VII – Awards, Duration and Enforcement Part VIII – General 44. (1) For the purposes of this Act, there may be established an office of Economic and Industrial Research.

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LECTURE 2 - ELEMENTS OF A SOUND INDUSTRIAL RELATIONS SYSTEM A. Introduction Labour relations should be seen as an essential part of management systems and techniques, and not as a discipline or activity apart from management. The role of various systems and mechanisms at different levels (national/industry/enterprise) as well as their contribution to promoting sound industrial relations will be examined here. It is intended to point out available options which can help to transform a conflictual system into a more cooperative one. B. Factors Influencing Change Management Practices The scientific management school (best represented by F. Taylor) viewed the worker as a mere cog in the organizational structure. Since, according to Taylor, the worker does not possess creative ability let alone intelligence and wisdom, the elements of a human-oriented management system which promotes sound industrial relations such as communication, consultation and participation, found no place in the theory. The hallmarks of organizations based on this model are centralized and clear lines of authority, a high degree of specialization, a distinct division of labour, numerous rules pertaining to authority and responsibility, and close supervision. This concept of management can be seen as an ideal breeding ground for an industrial relations system based on conflict rather than on cooperation. The opposite theory, appropriately styled the human relations school, had as one of its earliest and greatest exponents, Douglas McGregor. He gave an impetus to the development of a management theory which focused on the human being as part of an enterprise which, in turn, was viewed as a biological system, rather than as a machine. Human relations, trust, delegation of authority, etc. were some of the features of this theory. Two basic realities of an organization in McGregor's model is the dependence of every manager on people under him and the potential of people to be developed to match organizational goals. Management's main task is to organize business in such a way as to match people's goals with organizational ones. Most large enterprises continue to be dominated by hierarchies. This is reflected in the classic "strategy, structure, systems" (the three Ss) of modern corporations. In this concept of an enterprise top-level managers see themselves as the designers of strategy, the architects of structure, and the managers of systems. The impact of the three S's was to create a management system which minimized the idiosyncrasies of human behaviour, emphasized discipline, focus and control, and led to the view that people were "replaceable parts". The basic flaw - particularly in the context of today's globalized environment of this concept is that it stifled the most scarce resource available to an

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enterprise: the knowledge, creativity and skills of people. Successful enterprises have now moved away from this corporate design, and their philosophy, which has transformed corporations enabling them to compete in the new competitive environment, consists of the following: "First, they place less emphasis on following a clear strategic plan than on building a rich, engaging corporate purpose. Next, they focus less on formal structural design and more on effective management processes. Finally, they are less concerned with controlling employees' behaviour than with developing their capabilities and broadening their perspectives. In sum, they have moved beyond the old doctrine of strategy, structure, and systems to a softer, more organic model built on the development of purpose, process, and people." Those enterprises which have effected a successful transformation to a more 'people focused' organization recognize that the information necessary to formulate strategy is with their frontline people, who know what is actually going on, whether it be in the marketplace or on the shopfloor. The chief executive officer, for instance, can no longer be the chief architect of strategy without the involvement of those much lower down in the hierarchy. How do these developments relate to enterprise level labour relations? In essence, they heighten the importance of the basic concepts of information sharing, consultation and two-way communication. The effectiveness of the procedures and systems which are established for better information flow, understanding and, where possible, consensus building, is critical today to the successful management of enterprises and for achieving competitiveness. As such, the basic ingredients of sound enterprise level labour relations are inseparable from some of the essentials for managing an enterprise in today's globalized environment. These developments have had an impact on ways of motivating workers, and on the hierarchy of organizations. They are reducing layers of management thus facilitating improved communication. Management today is more an activity rather than a badge of status or class within an organization, and this change provides it with a wider professional base. The present trend in labour relations and human resource management is to place greater emphasis on employee involvement, harmonious employer employee relations and mechanisms, and on practices which promote them. One of the important consequences of globalization and intense competition has been the pressure on firms to be flexible. Enterprises have sought to achieve this in two ways. First, through technology and a much wider worker skills base than before in order to enhance capacity to adapt to market changes. Second, by introducing a range of employee involvement schemes with a view to increasing labour-management cooperation at the shop floor level, necessary to achieve product and process innovation. Theoretically harmony

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"depends upon trust between labour and management. It implies that workers are willing to forego efforts to establish and enforce individually or through collective action substantive work rules that fix the allocation of work, transfer among jobs, and workloads. Organizational flexibility also implies that workers are willing to disclose their proprietary knowledge in order to increase labour productivity and the firm's capacity for innovation". In both strategies involving the use of technology and promotion of innovation, employees are a critical factor. The requirement of organizational flexibility and its industrial relations and human resource implications have had a major impact on the way organizations are structured (less hierarchical), how authority within the firm is exercised (less unilateral), and on how decisions are arrived at and work organized (through information sharing and consultation, transfer of more responsibility to employees and cooperative methods such as team work). Traditional assumptions that efficiency is achieved through managerial control, technology and allocation of resources have given way to the view that efficiency is the result of greater involvement of employees in their jobs, teams and the enterprise. Organizations which have made this shift tend to reflect the following characteristics: few hierarchical levels; wide spans of control; continuous staff development; self managing work teams; job rotation; commitment to quality; information sharing; pay systems which cater to performance rewards and not only payment for the job; generation of high performance expectations; a common corporate vision; and participative leadership styles. Industrial Relations Theories and Attitudes At its inception, the labour market was dominated by the classical economics view which espoused free and unregulated labour markets. This laissez-faire capitalism led to social injustices and inequities since labour did not have the power to bargain with employers on which even approached a degree of equality in bargaining strength. Industrial relations, therefore, initially came to espouse a degree of labour market regulation to correct this unequal bargaining power. Consequently industrial relations developed in the context of the theory that problems in labour relations emanate largely from market imperfections which operate against the interests of labour and cause imbalances in the power relationships of employers and employees. These causes for labour problems - external and internal to the enterprise - needed to be addressed through a range of initiatives, both by the State through protective labour laws, conciliation and dispute settlement machinery, by voluntary action on the part of employees to protect themselves and further their interests through trade unionism (but backed by State interventions to guarantee this right in the form of freedom of association), and by redressing the balance of power (through collective bargaining). Collective bargaining in particular transferred one of the most conflictual aspects of the employment relationship - wages - out of the workplace, and

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made it the responsibility of the respective representatives of employers and employees. However, regulation of the external labour market did not necessarily address all the causes of labour problems. A more pluralistic view recognized that labour problems or issues do not relate only to conflict between employers and employees. They include many other forms of problems such as low productivity, absenteeism, high labour turnover, lack of job security, unsatisfactory or unsafe working conditions, non recognition of performance in standardized wage systems, and lack of motivation. Labour problems arise not so much from factors external to the enterprise, as from unsatisfactory management of human resources within the enterprise. Corrective action should include the installation of human resource management policies and practices embodied in concepts such as recruitment and selection, leadership and motivation, employee development and retention, etc. The objective is to ensure a convergence of organizational and individual goals, and to balance individual and organizational needs. The quality of an industrial relations system has to be judged by how it works in practice - and that means at the workplace level. It is in this gap that human resource management system. Traditionally economics and law were two main influences on industrial relations, which led to a concentration on macro level industrial relations, and therefore on unions, government and collective bargaining. Organizational behaviour has been influenced by psychology which centres on the individual, and by social psychology which focuses on relationships between people and on group behaviour. Employers as well as some governments are viewing labour relations from a more strategic perspective i.e. how labour relations can contribute to and promote workplace cooperation, flexibility, productivity and competitiveness. It is increasingly appreciated that how people are managed impact on an enterprise's productivity and quality of goods and services, labour costs, quality of the workforce and its motivation, and on the prevention of disputes as well as on aligning employee aspirations with enterprise objectives. International Factors The internationalization of business, intense competition and rapid changes in technology, products and markets have increased the need for economies and enterprises to remain or become competitive. These trends have in turn necessitated a greater reliance than before on workers' skills, productivity and cooperation in achieving competitiveness. Technology has resulted in less management by command and supervision, in more emphasis on cooperation, information-sharing and communication, and in a more participative approach to managing people. Many countries have witnessed the emergence of workforces with higher levels of education and skills which need to be managed in a manner different from the way in which employees, especially blue collar employees, have hitherto been managed. This factor will assume more critical

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proportions in the future as a result of the increasing importance of the service sector and the growth of knowledge-intensive industries. The skills of an employee are, therefore, an issue on which the interests of employers and employees converge, and the "development" of the employee is now of mutual advantage to both employers and employees. Consequently, there is a greater need than before for a cooperative and participative system of industrial relations. C. The Importance and Objectives of Sound Industrial Relations Systems A sound industrial relations system is not capable of precise definition. Every industrial relations system has to take into , and reflect, cultural factors. Systems cannot change culture, but only behaviour within a cultural environment. As such, one can only describe some of the elements which have generally come to be recognized as contributing to a sound industrial relations system. These elements would constitute a sort of 'check-list'. A relatively sound industrial relations system will exhibit some of these elements. A sound industrial relations system is one in which relationships between management and employees (and their representatives) on the one hand, and between them and the State on the other, are more harmonious and cooperative than conflictual and creates an environment conducive to economic efficiency and the motivation, productivity and development of the employee and generates employee loyalty and mutual trust. Industrial relations itself may again be described as being concerned with the rules, processes and mechanisms (and the results emanating therefrom) through which the relationship between employers and employees and their respective representatives, as well as between them on the one hand and the State and its agencies on the other, is regulated. Industrial relations seek to balance the economic efficiency of organizations with equity, justice and the development of the individual, to find ways of avoiding, minimizing and resolving disputes and conflict and to promote harmonious relations between and among the actors directly involved, and society as a whole. The rules, processes and mechanisms of an industrial relations system are found in sources such as laws (legislative, judicial, quasi-judicial), practices, customs, agreements and arrangements arrived at through a bipartite or tripartite process or through prescription by the State. Industrial relations operates at different levels - at the national level, at the level of the industry and at the enterprise level. The elements which reflect a sound industrial relations system at all these levels are not necessarily the same. At the national level industrial relations operates so as to formulate labour relations policy. In market economies this is usually done through a tripartite process involving government, employers and workers and their representative organizations. At the industry level industrial relations often takes the form of collective bargaining between employers' organizations and unions. This process may result in determining wages and other and conditions of employment for an industry or sector. It may also result in arrangements on issues which are of mutual concern such as training, ways

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of avoiding or settling disputes, etc. At the enterprise level the relationship between employers and workers is more direct, but the interests of workers may be represented by unions. Sound industrial relations at the national level build trust and confidence between representatives of workers and employers. Sound relations at the enterprise level builds trust and confidence between workers and management, which is the point at which the system must ultimately be effective. A sound industrial relations system requires a labour management relations policy (LMRP). Some objectives of such a policy would include:  Employment and job security and increased employment opportunities.  Raising living standards through improved and conditions of employment.  Productivity improvement which enables employers to be more competitive and to increase their financial capacity to raise the living standards of the employees.  Minimizing conflict, achieving harmonious relations, resolving conflicts through peaceful means and establishing stable social relationships. The efficient production of goods and services depends to an extent on the existence of a harmonious industrial relations climate. Efficiency and quality depend on a motivated workforce, for which a sound industrial relations climate is necessary. Productivity - a key consideration of profitability, the ability of enterprises to grant better and conditions of employment and for economic and social development - needs a sound labour relations base. Labour management relations should be geared to creating the climate appropriate to securing the cooperation necessary for productivity growth. Labour Management Relations (LMR) and Labour Management Cooperation (LMC) are also important to the creation of a culture which is oriented towards innovation, adaptable to and encourages change, where authority is decentralized and two-way communication, risk-taking and maximizing opportunities are encouraged, and where the output rather than the process is what matters. Changing attitudes, awareness and behaviour to move from a counter-productivity to a productivity culture requires the appropriate labour management relations climate based on labour management cooperation. A sound labour management relations system is important to the removal of one of the main objections of workers and unions to productivity drives by employers. Productivity increases have sometimes been opposed by workers and unions on the grounds that they do not result in equitable sharing of benefits to workers and that increased productivity may lead to redundancy. Developing understanding of basic productivity concepts and of the methods of increasing productivity, as, well as of the formulation of equitable productivity gain-sharing schemes help to dispel such suspicions. 24

This task is easier where there are mechanisms which provide for dialogue and two-way communication between management and workers. Labour management relations therefore play a crucial role in securing acceptance by workers and unions of the need for productivity improvement, and also in obtaining their commitment to achieving it. Cooperation between management and workers or unions facilitates not only a settlement of disputes or disagreements but also the avoidance of disputes which may otherwise arise. At the industry level the relationship between employers' organizations and representatives of workers is a precondition to collective bargaining. Where collective bargaining takes place at the enterprise level, management workers/union relations determine to a great extent the success or otherwise of collective bargaining. At the national level a good relationship between representatives of employers and workers enables them to effectively participate in labour-management relations policy formulation and to arrive at a consensus. In a broad sense, therefore, labour management relations policy formulation (LMRP) should aim at achieving social justice through a process of consensus by negotiation so as to avert adverse political, social and economic consequences. Labour relations reflects the power structure in society, and it emphasizes negotiation and reconciliation by peaceful means of the interests of government, workers and employers who are the main participants in the system. Consensus enables the policy formulated to be implemented with the minimum of conflict as it has the of all three parties. This is in fact reflected in the ILO's principle of tripartism. In the final analysis, labour management relations policy seeks to achieve development through establishing conditions which are fairer, more stable and more peaceful than they are at any given moment of time. Labour management relations policy also seeks to achieve an acceptable balance between labour and management, necessary for a negotiated development strategy and the establishment or preservation of a society which is essentially pluralist. D. A Sound Industrial Relations System at the National and Industry Level Introduction Whether bipartite policy formulation becomes a part of national policy depends largely on the respective strengths of employers' and workers' organizations. In some of the industrialized market economies there is a greater likelihood than in developing countries of bipartite policy formulations being reflected in national policies due to the strength of the employers' and workers' organizations. In Sweden, for instance, in the past, the agreements between the union and the employers' organization tended to be translated into national policy instruments. The policies and methods of training of workers, for example, reflected what the two social partners had identified as appropriate for the industry. There is less likelihood of bipartism impacting on national policy formulation in developing countries due to strong central

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governments in many cases, and their assumption of the role of identifying the direction of economic and social policies. Freedom of Association The fundamental premise of a sound industrial relations system is the recognition and existence of the freedom of association accorded to both employers and workers. This freedom should include recognition of organizations of workers and employers as autonomous, independent bodies, subject neither to their domination by each other or by the government. Observance by states of the basic principles of the ILO Convention relating to Freedom of Association and Protection of the Right to Organize No. 87 (1948) is often regarded as the yardstick by which a country's recognition of this freedom is measured. In essence, the Convention postulates that workers and employers, without distinction whatsoever, have the right to establish and to organizations of their own choosing with a view to defending their respective interests, subject to national legislation which determines the extent to which the guarantees in the Convention will apply to the armed forces and the police. Such organizations have the right to draw up their own constitutions and rules, to elect their representatives in full freedom, to organize their istration and activities and to formulate their programmes. Public authorities are required to refrain from any interference which would restrict this right or impede the lawful exercise of this right. The organizations are not liable to be dissolved or suspended by istrative authority. Organizations have the right to establish and to federations and confederations which are entitled to the same rights and guarantees, and to with international organizations. The acquisition of legal personality by these organizations shall not be subject to restrictive conditions. In exercising the rights provided for in the Convention, employers and workers and their respective organizations are required to respect the law of the land, which should not impair the guarantees in the Convention both in respect of its content and its application. Tripartism and Labour Policy Formulation Tripartism is the process whereby the government, the most representative workers' and employers' organizations as independent and equal partners, consult with each other on labour market and related issues which are within their spheres of competence, and tly formulate and implement national policies on such issues. A more realistic model where developing countries are concerned is one in which a government consults the most representative employers' and workers' organizations on labour market and related issues which are within their spheres of competence, and takes of their views in national policy formulation and its implementation. There are many examples of tripartite mechanisms at the national level, as well as informal applications of tripartism. In many countries there are minimum wage fixing bodies which reflect the participation of all three parties, often leading to a consensus on minimum wages, and sometimes on other minimum of employment.

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Labour management relations policy formulation may take place and be reflected in basic agreements or codes or industrial relations charters in which all three parties in the labour relations system have participated. Some such agreements may be bipartite, and may cover a variety of subjects including principles and procedures of labour relations such as freedom of association, trade union recognition, collective bargaining, labourmanagement cooperation mechanisms, procedures for the prevention and settlement of disputes, etc. The contribution which tripartism can make to the establishment of a sound industrial relations system can hardly be over-emphasized. Tripartism's rationale is to be found in the principle of democracy, the essence of which is a sharing or diffusion of power flowing from the encouragement or recognition of various pressure groups in a society as an effective safeguard against the centralization of power. It has been aptly remarked that "every source of independent power in a democracy is part of its strength, so long as it can be guided to seek its outlet through the democratic political system". Tripartism as a process is a part of a pluralistic outlook on society through which stability is maintained, freedom of association being the sine qua non, because without the right of association the interest groups in a society cannot function effectively. As expressed by H.A. Clegg, pluralism's "theme is that men associate together to further their common interests and desires; their associations exert pressure on each other and on the government; the concessions which follow help to bind society together; thereafter stability is maintained by further concessions and adjustments as new associations emerge and power shifts from one group to another.” The Role of the Law Industrial relations systems are founded on a framework of labour law which exerts an influence on the nature of the industrial relations system. However, recourse to the law and its potential to influence the resulting industrial relations system may sometimes be over-emphasized. It is useful, therefore, to examine, from three points of view, the role of the law in influencing an industrial relations system - what its objectives should be and the areas it should cover, as well as what the law cannot achieve. In any working situation people need to cooperate with each other if there is to be maximum gain to themselves, to management and to society as a whole. Cooperation, however, is not easily obtained as people working together have conflicting interests. Employees are primarily concerned with the security of their jobs and what they can earn, and the employer with what he can produce as cheaply as possible to obtain the maximum profit. When these conflicting interests have taken definite form and shape, the State has often stepped into protect some of these interests through legal control. Labour law has amply demonstrated the sociological theory that

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"law is a social institution which seeks to balance conflicting interests and to satisfy as many claims as possible with the minimum of friction. Since the law must necessarily determine those interests which most urgently require protection over and above other interests, those of labour, where they lack selfreliance, have invariably formed a significant class of interests which the law protects. Hence, especially in some developing countries, the legal rules of an industrial relations system have been judged to some extent by the degree to which they further this end.” The three main functions of the law in an industrial relations system have been described as auxiliary, regulatory and restrictive. The first function is the it gives to the autonomous system of collective bargaining, its operation and observance of agreements. The second function is one of providing a set of rules governing the and conditions of employment and supplementing those created by the parties themselves. The greater the coverage by collective bargaining, the less will be the regulatory function of the law. The third function prescribes what is permitted or forbidden in industrial conflict with a view to protecting the parties from each other, and the public from both of them. One major objective of labour law is to create the legal framework which is necessary for employers, workers and their organizations to function effectively and as autonomous groups in the industrial relations system. Hence the law should protect the freedom of association so that the two parties are accorded the protections and guarantees found in the ILO Convention on the Freedom of Association and Protection of the Right to Organize No. 87 (1948). Since one of the major purposes of such association is to enable workers and employers to protect and further their interests, the law should also provide the legal framework needed to promote collective bargaining. In this connection the ILO Convention on the Right to Organize and Collective Bargaining No. 98 (1949) would provide the necessary basis for such legislation. A second important function of labour law is to prescribe the minimum and conditions of employment which should be observed by employers in the course of conducting business. Therefore, the legal system often contains provisions stipulating the minimum conditions which must be observed in areas such as compensation for industrial accidents, social security, safety and health in enterprises, the minimum age of employment. Some countries may consider it appropriate to prescribe minimum wages. The basic rules to be followed in terminating employment may be another area of the employment relationship which would need to be covered by minimum standards. Methods for settling disputes, both individual and collective, through institutions such as labour courts, arbitration and conciliation systems, have not been an uncommon feature of State intervention through the law.

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A third, and more general role for the law in industrial relations is as an instrument of social change. The law does not always merely or solely reflect contemporary thinking in society and does not necessarily lag behind social and other values. It sometimes anticipates them and can, on occasion, be employed to fashion new ideas and to effect changes in behaviour. It is not always possible to leave crucial and complex social issues to be solved through purely voluntary action such as collective bargaining. Sometimes, especially in developing countries, the absence of strong and independent trade unions reduces the effectiveness and role of voluntary action, and necessitates greater regulation through legal prescription. In such situations desirable measures such as remedies for unfair dismissal, protection against acts of anti-union discrimination, the minimum conditions a contract of employment should conform to, safety requirements, etc., are prescribed by the law. But intervention on this ground should not lead to the introduction of rigidities in the labour market through overregulation. Legal prescription should be viewed as merely laying down minimum and defining the permissible boundaries of action within which the two parties (employers and workers) must operate. Over regulation through law could have adverse consequences on building a sound industrial relations system through voluntary action, and on the competitiveness of enterprises. This has been perceived to be so in countries such as India and Sri Lanka, where employers have for some time canvassed for greater flexibility and less legislative control over industrial relations. A plethora of laws makes rapid adaptation to change difficult, and avoidance of laws can be a preoccupation of employers in such circumstances. Over regulation is sometimes based on the misconception that sound industrial relations can be achieved through the law. The creation of harmonious industrial relations needs to be achieved by other, nonlegal means; the law cannot 'compel' parties to establish good relations. By way of analogy, in a different field of human relations, the law can prescribe the rules to be followed if people wish to marry. But the law cannot create a happy relationship or marriage. Similarly, harmonious industrial relations can be achieved not primarily through the law but through better human relations and human oriented practices at the enterprise level. Some countries, such as those in South Asia, which have a tradition of a plethora of labour laws, have tended to overlook the fact that if the energy expended by the State in enacting and enforcing a mass of labour laws had been spent in finding ways and means of encouraging mechanisms and systems geared to achieving sound labour relations, better results may have been achieved. In such countries parties tend to look to the law for the solution of what are essentially human relations problems, and creativity and innovation in industrial relations are consequently stifled. As a result, attention is focused more on dispute settlement rather than on dispute prevention, when emphasis on the latter is one way of building a sound industrial relations system. Statute law is one of the specific means used by the State to condition industrial relations outcomes, and represents the most direct means of State intervention. Statutory regulation of minimum and conditions such as minimum wages, working conditions, safety and health, social security and

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protection become and conditions in contracts of employment which must conform to them; they cannot be 'bargained' away. Other statutory provisions may be of a more facilitating nature such as ones which establish the conditions and the environment for collective bargaining (e.g. rights of association, unfair labour practices, conciliation services); they are no less fundamental and important. Another - and more indirect - method through which the State influences industrial relations is the system of labour courts, tribunals or arbitration, which are a common feature in many countries. Through these institutions the State seeks to dispense equity in the employment relationship, and they may also protect collective interests as in the case of trade union rights. Such institutions have been considered necessary where the normal system of courts does not have the power or jurisdiction to apply equitable principles and to take into the realities of the employment relationship, which results in a rather 'legalistic' view of labour relations. The pronouncements of these courts often constitute important limits to the freedom of action of the actors in industrial relations. Still another method of State intervention is through its 'istrative' role, for example, as conciliator or mediator. Collective Bargaining Collective Bargaining may take place at the national, industry or enterprise level. It could be said that collective bargaining is a means of settling issues relating to and conditions of employment and has little to do with labour management relations policy formulation. Nevertheless collective bargaining may reflect - sometimes explicitly and at other times implicitly labour management relations policy e.g., on wage guidelines, termination of employment procedures. It can also be a means of developing policy formulation at the industry level. For instance, arrangements and agreements resulting from collective bargaining may provide ways in which wages could be adjusted to meet increases in the cost of living, in which event they will constitute an agreed policy on this issue. They may link a part of wage increases to productivity increases or provide for productivity gain sharing in other ways, in which event they represent policy on aspects of productivity. Methods of dispute settlement would reflect a desire for the peaceful resolution of disputes. Advantages of Collective Bargaining 1. Collective bargaining has many advantages which have been claimed for it as a means of resolving differences between management and employees, though it has made little positive contribution to higher productivity and higher earnings by linking pay to performance and skills. 2. Collective bargaining has the advantage that it settles issues through dialogue and consensus rather than through conflict and confrontation. It differs from arbitration because the latter represents a solution based on a decision of a third party, while arrangements resulting from collective bargaining usually represent the choices or compromises of the parties themselves. Arbitration may invariably displease one party

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because it usually involves a win/lose situation, and sometimes it may even displease both parties. 3. Collective bargaining agreements often institutionalize settlement through dialogue. For instance, a collective agreement may provide for methods by which disputes between the parties will be settled. This has the distinct advantage that the parties know beforehand that if they are in disagreement there is an agreed method by which such disagreement may be resolved. a. Collective bargaining is a form of participation. Both parties participate in deciding what proportion of the 'cake' is to be shared by the parties entitled to a share. At the end of an agreed term labour again insists on participating in deciding what share of the fruits of their labour should be apportioned to them. Collective bargaining is a form of participation also because it involves a sharing of rule making power between employers and unions, and this has eroded areas which in earlier times were regarded as management prerogatives e.g. transfer, promotion, redundancy, discipline, modernization, production norms. 4. Collective bargaining agreements sometimes renounce or limit the settlement of disputes through trade union action or lock out. Therefore collective bargaining agreements can have the effect of guaranteeing industrial peace for the duration of the agreements, either generally or more usually on matters covered by the agreement. 5. Collective bargaining is an essential feature in the concept of social partnership towards which labour relations should strive. Social partnership in this context may be described as a partnership between organized employer institutions and organized labour institutions designed to maintain non-confrontational processes in the settlement of disputes which arise between employers and employees. 6. Collective bargaining has valuable by-products relevant to the relationship between the two parties. For instance, a long course of successful and bona fide dealings leads to the generation of trust. It contributes towards some measure of understanding by establishing a continuing relationship. Once the relationship of trust and understanding has been established, both parties are more likely to attack problems together rather than each other. 7. In societies where there is a multiplicity of unions and shifting union loyalties, collective bargaining and consequent agreements tend to stabilize union hip. For instance, where there is a collective agreement employees are less likely than otherwise to change union affiliations frequently. This is also of value to employers who are faced with constant changes in union hip and consequent inter-

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union rivalries, resulting in more disputes in the workplace than otherwise. 8. Collective bargaining agreements which determine wage rates on a national or industry level, place business competition on a more equal footing as a result of some standardization of the costs of labour. This is probably a less important advantage today in the face of technological innovations and productivity drives. 9. Perhaps most important of all, collective bargaining usually has the effect of improving industrial relations. This improvement can be at different levels. The dialogue tends to improve relations at the workplace level between workers and the union on the one hand and the employer on the other. It also establishes a productive relationship between the union and the employers' organization where the latter is involved in the process. a. As between the employer on the one hand and his employees and union on the other, collective bargaining improves relations for the following reasons or in the following ways: i. It requires a continuing dialogue which generally results in better understanding of each other's views. ii. Where collective bargaining institutionalizes methods for the settlement of disputes, differences or disputes are less likely to result in trade union action. iii. It could lead to cooperation even in areas not covered by collective bargaining arrangements. b. As between unions on the one hand and employers' organizations on the other, collective bargaining improves the industrial relations climate in the following ways: a. It acts as a means of exerting influence on the employer or the employee, as the case may be, where the unreasonable position of one party results in a deadlock. The employers' organization or the union, as the case may be, has an interest in exerting influence on its respective ; the maintenance of the relationship between the two parties is seen as important to issues well beyond the current dispute. Both parties know that the current dispute is only one of many situations which are likely to arise in the future, and that a good relationship needs to be maintained for the overall benefit of their respective . b. The entry of a union and employers' organization into a dispute facilitates conciliation or mediation. Sometimes one or both parties are able to divorce themselves from the main conflict, or from their position as representatives of their , and mediate with a view to narrowing the differences and finding compromise solutions.

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c. Collective bargaining often leads employers' organizations and trade unions to establish links, and to look for and increase areas of common agreement. This in turn ensures to the benefit of their respective . Labour Courts The agents of change in industrial relations are usually trade unions, employers and their organizations, governments through legislation and istrative action, and the system of courts which may be a combination of the normal courts and special courts or tribunals set up to deal with matters pertaining to labour. These special courts vary in nature from country to country. They include labour courts and tribunals and arbitration systems the latter sometimes the creation of collective bargaining agreements which provide for arbitration to settle disputes. Labour courts have been established in several countries because the normal system of courts and the system of law they ister cannot adequately deal with labour relations issues, which require an equitable rather than a purely legal approach. Therefore labour courts are often empowered to decide industrial relations issues on a mixture of equitable and legal principles. For instance, a demand for higher wages cannot in many legal systems be decided by the civil courts except on the basis of what has been contracted for or has been prescribed by a statute if any; in short, only as an enforcement matter. E. Sound Industrial Relations at the Enterprise Level Introduction In the final analysis the quality of relations between employers and employees in an enterprise depends on the policies, practices and procedures which exist at the enterprise level to deal with both individual and collective issues, and to promote labour-management cooperation. There are, therefore, numerous enterprise level mechanisms in different countries. Their effectiveness is to an extent conditioned by the particular corporate culture or philosophy relating to the management of people. The development of enterprise level industrial relations facilitates, as it did in Japan, adjustments to structural changes. Indeed, it is a way of reconciling the need for enhanced management flexibility with the need to ensure that employees' concerns are taken of and their cooperation obtained without which successful change would hardly be possible. Human Resource Management Policies and Practices The elements of a sound industrial relations system are closely linked to a progressive human resource management policy translated into practice. Harmonious industrial relations are more likely to exist in an enterprise where human resource management policies and practices are geared to proper recruitment and training, motivational systems, two-way communication, career development, a people-oriented leadership and management style, etc. Many of these human resource management activities have an impact on the overall industrial relations climate in an enterprise. So long as human resource management policies and practices are not central to corporate strategies and human resource management departments are seen as only providing "services" to other departments, such policies and practices will

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remain outside the enterprise's main culture and will be a "deviant" culture. Some of the best managed enterprises tend to integrate human resource management policies into their corporate culture and strategies. Worker Participation And Employee Involvement There can hardly be any debate on the principle i.e. the value and need for consultation and communication in an age when it is accepted that information sharing and consultation are important to enterprise performance, productivity and employee motivation. Effective corporate strategies can no longer be developed by top management without information inputs from, and relying on the knowledge of, frontline employees. Indeed, communication skills is today an essential attribute of leadership. Consultation and communication mechanisms introduced voluntarily after consultation with employees is likely to be seen as part of an organization's culture, rather than as ones imposed and reluctantly accepted. There is no ideal model of communication and consultation because, to be effective, it must fit the purpose, the type of organization, and cultural requirements if any. For instance, it is useful to inquire whether in some societies consultation through formal meetings is adequate due to the reluctance to be seen as challenging management's views, and whether such a procedure should be reinforced by parallel unstructured communication between superiors and subordinates. However, the value of models is that they underscore the need for such systems and provide useful guidelines which can be adapted to suit national and enterprise conditions. Greater worker involvement is likely to occur in the future for the following reasons:  Employees at all levels are acquiring higher educational qualifications and skills. As such, they will be less amenable to management through control and commands, and will instead respond better to more participative forms of management.  Quality and productivity tend to increase when employees are more involved in arriving at decisions at the point of production.  For effective decision making in modern enterprises there should be an information flow and analysis of data and information.  Work today requires and involves more interpersonal skills, greater coordination among workers and sharing of information.  Enterprises (and economies) which have moved beyond the stage of routine high volume production to more value added and knowledgebased activities need to promote increased innovation, creativity and better application of knowledge, all of which require worker involvement.  Participation is a great motivational tool because it gives people a degree of control, recognizes personal worth, and provides scope for personal growth. These are in themselves intrinsic rewards which flow from the performance of a job within a participatory environment. When participation extends to setting goals and objectives, it enhances commitment to achieving them.

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Communication The starting point for any effective enterprise policy to install procedures and mechanisms to promote sound labour relations is communication, because it is relevant to a whole range of issues and other matters such as productivity, small group activities, t consultation, performance appraisals, and motivation, as well as to organizational performance. The performance of an organization is affected by the manner in which that organization communicates with its employees. This involves information exchange, and not merely one-way communication. The performance of employees in an organization is conditioned by the performance of others in the organization. Changes in an organization can be brought about in an effective way where there is sufficient understanding between management and employees. For this purpose two-way communication tends to enhance understanding and cooperation and influence behaviour in a desired direction. But for effective two-way communication there should be a knowledge of communication and communication skills, a structure of communication channels, and access by all employees to such channels. Communication is essential not only in relation to existing employees but also in relation to new employees who must be made aware of what the job entails. Making available to employees the means of communicating their opinions and problems is also important to an effective performance appraisal system. The link between productivity and communication is to be found in the fact that proper productivity management requires concerted or t action between management and workers. For this purpose confidence between management and workers is essential, and the starting point of confidencebuilding is sharing information (and not merely 'top-town' communication). This has prompted the view that productivity management is also information management - information helps to promote the commitment that is necessary to improve productivity. Two-way communication can also promote productivity improvement through innovation and creativity. Effective communication would:  Create an atmosphere of trust, which is important to promoting increased productivity. If the environment generates mistrust, workers are likely to be suspicious as to whether they are receiving a fair share of the benefits of productivity gains. Without two-way communication workers would not be in a position even to judge whether their share is a fair one.  Promote an atmosphere of 'intimacy' and commitment to the group, which in turn would bind people together and prompt cooperation. It is basic human psychology that a high degree of communication and working together for a common goal tend to create a feeling of intimacy among those involved in these processes.  Promote - especially where the elements of trust and intimacy are present integration of the worker in the activities of the group and a feeling of 'belonging' leading to greater motivation and productivity.

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 Promote participation, which involves common goals, teamwork, discipline/commitment and cooperation. Communication is a great motivator and makes people feel secure in their jobs, helps to identify the contribution of workers with the enterprise's success, and enhances the quality of working life. It therefore leads to greater job satisfaction.  Develop the skills and attitudes of the individual, engendering selfconfidence and a sense of self worth. In a highly hierarchical and 'top-down' form of management there is little scope for development of the individual which is needed for innovation and creativity which, in turn, promote better productivity. Innovation and creativity result in better utilization of available resources which, in the final analysis, is what productivity is.  Create a high degree of consensus in decision making. With consensus implementation of decisions will be quicker and easier because disputes or differences of opinion would be less likely compared to enterprises where decisions are taken unilaterally with little consultation and information-sharing. t Consultation t consultation is a voluntary system which is an outcome of arrangements between the parties based on the mutual acceptance of the need to avoid conflict through strikes or other actions. In essence, t consultation has become the means through which information is shared; mutual understanding is promoted; participation in arriving at decisions is facilitated; and working conditions negotiated. Training The importance of human resources development in dispute prevention and settlement is often overlooked. Many workplace problems and issues are the result of unsatisfactory supervisory management and the lack of awareness on the part of employees about the workings of the enterprise. Here again, Japanese practices in the larger enterprises are instructive, though this is not to suggest that well managed enterprises elsewhere do not act on the basis that front line supervisors are often a key to workplace industrial relations. Well managed enterprises see supervisors as critical to labour relations because it is they who interact most often with employees, are the first to identify problems, and it is their attitudes towards employees which condition the latter's views about the management. Supervisory development is therefore an important aspect of developing sound labour relations at the enterprise level. Equally important in Japan is the investment in training and educating of employees. Career development opportunities afforded to employees usually commence with orientation and induction programmes for new recruits. Skills development through on-the-job and off-the-job training (with subsidies for fees payable to external institutions), coupled with extensive job rotation, produce multi-skilled employees who are acquainted with how the company as a whole functions. Three important consequences flow from this. First,

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team work becomes the norm, and employees are able to each other (because of their skills profile and job experience through rotation). Second, it is easier to find career development opportunities within the firm. Consequently employees tend to look to the "internal labour market" rather than to the external labour market for their advancement. Third, employees are more amenable than otherwise to look for long term gains rather than short term ones. The net result is that employees are more likely to identify with the goals of the company, thus reducing the areas of potential conflict. When these practices are coupled with collective bargaining and consultation procedures, the result is a greater potential for cooperation, t activity and mutual understanding. In fact, without human resources development it is doubtful whether establishing communication channels would be likely to have the desired result. General Definition of Industrial Relations J. Schregle "In search of Alternative Models for Asian Industrial Relations: A Discussion Paper" in Agenda for Industrial Relations in Asian Development, Proceedings of the 1981 Asian Regional Conference on Industrial Relations, Tokyo, Japan, 1981 (The Japan Institute of Labour) says: "If we take industrial relations in the wide sense of the term, as comprising relationships between employers and workers and their organizations, and where appropriate also the public authorities, in other words, if we take the term "industrial relations" as referring to the interplay between interest groups which participate directly or indirectly, in or act upon the employment relationship, then we must include in our comparative evaluation of industrial relations such non-economic factors as attitudes, values and patterns of behaviour, we must include in it the way in which in different societies decisions are taken and rules are established. In fact, industrial relations is but an expression of the power structure in a given society and of the way in which opposing interests between workers, employers and governments are reconciled and accommodated." Project Question: In the 21st Century, the preferred approach to the development of good industrial relations practices in a developing country must be anchored on a t approach between labour, management and the government. Develop a project document for the government of Trinidad and Tobago drawing on national, regional and international experiences.

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LECTURE 3 - KEY PLAYERS IN INDUSTRIAL RELATIONS 1.0 TRADE UNIONS Trade unions are now accepted as valuable institutions helping to regulate the labour markets in our country. The concept of social partnership is helping to further this acceptance, and is elevating the trade union from its well-entrenched role at the micro level, within firms, to the macro level where it can contribute to national planning and national development. A trade union is an organization based on hip of employees in various trades, occupations and professions, whose major focus is the representation of its at the workplace and in the wider society. It particularly seeks to advance its interest through the process of rule-making and collective bargaining. According to the interpretation clauses in the Industrial Relations Act, Ch. 88:01 and the Trade Unions Act, Ch. 88:02, (Revised laws of Trinidad and Tobago 1980), a Trade Union is An association or organization ed as a trade union for the purposes of the regulation of the relations between workmen and masters, or between workmen and workmen, or between masters and masters, or the imposing of restrictive conditions on the conduct of any trade or business, and also the provision of benefits to , not being an association or organization of employers. History of the Trade Union Movement The labor movement began to assume importance after World War I, spurred by the return of Trinidadians who had fought with the British armed forces. The most important of these was Captain Andrew Arthur Cipriani, a white man of Corsican descent, who had served as commander of the West India Regiment. Cipriani resented the fact that the West India Regiment was not allowed to fight for the British Empire but instead was sent to Egypt, where its forces served as labor battalions. Upon his return to Trinidad, Cipriani organized the masses, giving them national pride and teaching them to oppose colonialism. He revitalized the Trinidad Workingman's Association, which was renamed the Trinidad Labour Party (TLP) in 1934; by 1936 the TLP had 125,000 . Because Cipriani was white, he was able to transcend the black-East Indian racial dichotomy and became known as "the champion of the barefoot man." In the first elections held for the Legislative Council, Cipriani was elected in 1925 and remained a member until his death in 1945. He was also elected mayor of Port-of-Spain eight times. In these two offices, Cipriani struggled against racial discrimination and fought

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for constitutional reform, universal suffrage, and better rights for workers. During the 1930s, Trinidad and Tobago suffered severely from the effects of the worldwide depression. Living standards deteriorated as workers were laid off from the plantations. The situation was aggravated by unjust labor practices. Wages on the sugar estates and in the oil fields were kept low while shareholder dividends in London rose. Workers moved away from Cipriani's moderate policies, and the labor movement became radicalized. Between 1934 and 1937, there were strikes and riots on the sugar plantations and in the oil fields throughout the Caribbean. Tubal Uriah Butler, a black Grenadian who had been expelled from the TLP for extremism, emerged as the leader of the black oil workers, who were the best paid and most politicized laborers on the island. Butler called for racial unity among black workers and organized strikes, heading a highly personalized party that was known as the "Butler Party." Although the British labeled Butler as a "fanatical Negro" during the 1930s, Trinidad and Tobago has since recognized him as a man who sensitized the common man to the evils of colonialism. The strikes in Trinidad and Tobago in the 1930s included many incidents of racial violence, culminating in twelve deaths and over fifty injuries in 1937. The British responded by deploying marines from Barbados and appointing two successive commissions from London to investigate the causes of the riots in Trinidad and Tobago and elsewhere in the Caribbean. Both commissions noted the low wages and poor working conditions throughout the region. The second commission, chaired by Lord Moyne, which completed its report in 1940, was very critical of the British colonial system in the Caribbean and recommended housing construction, agricultural diversification, more representative government for the islands, and promotion of a middle class in preparation for eventual self-government. Although the Moyne Commission's findings were not made public until after World War II, some of its recommendations were put into effect under the Colonial Development Welfare Act of 1940. The British government had encouraged the formation of trade unions in the belief that labor organization would prevent labor unrest. After the islandwide strikes of 1937, Butler succeeded Cipriani as the leader of the Trinidadian labor movement. Butler's associate, Adrian Cola Rienzi, an East Indian, organized both oil workers under the Oilfield Workers Trade Union (OWTU) and the sugar workers under the All Trinidad Sugar Estates and Factory Workers Trade Union (ATSE/FWTU). Railroad and construction workers were organized under the Federated Workers Trade Union (FWTU), and a number of smaller unions were also formed. Following a recommendation of the Moyne Commission, government was made more representative. Constitutional reform in 1925 had provided for six elected on the twenty-five-member Legislative Council, but franchise restrictions limited voters in the 1925 election to 6 percent of the population. In April 1941, the number of unofficial elected on the Legislative Council and the governor's Executive Council was increased,

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giving the elected a majority. Some of these elected were included on official committees and the governor's Executive Council, although the governor retained ultimate authority and veto power. Trinidad and Tobago had been profoundly changed by World War II. For the first time since British annexation, the islands were widely exposed to another foreign influence. The 1941 Lend-Lease Agreement (also called the Bases-for-Destroyers Agreement) between the United States and Britain included ninety-nine-year leases of the deepwater harbor at Chaguaramas to the United States Navy and of Waller Field in central Trinidad to the United States Army. Many United States and Canadian personnel were brought in to work at these bases, and thousands of Trinidadian workers were employed at the bases for higher wages under better conditions than ever before. As a result, by the end of World War II many Trinidadians had become used to a higher standard of living and wanted to keep it. Although the election in 1946 was the first under universal adult suffrage, less than half of the ed voters cast ballots. The trade unions did not consolidate into a cohesive political entity. The labor vote fragmented, as blacks and East Indians divided and as racial slurs became a common part of campaign rhetoric. Butler, who had been detained throughout the war, was released from jail and campaigned for the Legislative Council, but he was defeated by Albert Gomes, a trade unionist of Portuguese descent. The labor movement was unable to gain a majority because no leader could command the widespread of both the blacks and the East Indians, a pattern that continued throughout the ensuing forty years. The middle class-comprising primarily blacks and a smaller number of East Indians--came to dominate the political scene in the crucial elections that led to independence and has dominated it into the late 1980s. Challenges facing the Trade Union Movement Some questions are being raised about the ability of trade unions to survive in the current economic environment. Suggestions have been made that globalization is inimical to the existence of the trade union as an institution, and that the effects of globalization will lead to a weakening of the movement. While there is a shortage of empirical evidence on the impact of globalization on trade union density, and on its ability to maintain collective agreements, there is some evidence that the 1980s and 1990s witnessed a weakening of the hip base in the world. It is difficult to determine the extent to which the decrease in trade union numbers can be attributed to the periodic recessions in the world economy, as against the anti-union strategies developed by leading national governments. In the Caribbean, the interventions of the international financial institutions in the 1980s and 1990s led to the introduction of stabilization and structural adjustment programmes which triggered deflationary policies resulting in massive job losses and consequently lowered union hip.

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Operating against the background of depressed economies, trade union pushfulness was constrained. Various types of methodologies, including wages restraint and wages guidelines, became the norm in the region and there was a significant slowing of industrial action in countries which hitherto were known for the militancy of their trade union efforts. It can be argued that the period of the 1980s and 1990s saw an erosion of the consolidation of the trade union and its hip, as well as the financial strength which characterized the decades of the 1950s and 1960s and which saw some slowing in the 1970s. Further challenges include: The development of the services sector (skilled workers) Self-employment Advances in technology Human Resources Management Individual Contracts vs Collective Agreements Functions of a Trade Union Trade unions should: 1. Where appropriate, maintain tly with management and other trade unions effective arrangements at industry or local levels for negotiation, consultation, and communication and for settling grievances and disputes; 2. Take all reasonable steps to ensure that their officials and observe all arrangements; 3. Provide for the training of delegates in the scope of their powers and duties and the day-to-day operation of the unions; 4. Provide adequate educational opportunities for the advancement of their ; 5. Be properly staffed to serve the needs of their , and allow for effective lines of communication between such staff and the rank and file hip; 6. Encourage to take part in their activities by adopting such means as would best allow them to do so, including the compilation and distribution of information; 7. Make available information pertaining to the rules and policies of the union; 8. Provide adequate advisory services for their and in particular assist them to understand the and conditions of their employment; and 9. Identify trends in industrial relations to help their to anticipate and keep abreast of change. The Role of Trade Unions Generally, it is possible to summarize the various functions which Caribbean trade unions have undertaken: 41

1. Political role, using collective power to influence decisions on behalf of and the wider society. There are many who recognize that power relations are at the basis of industrial relations, and that trade unions are political institutions. Some recognize the trade unions as exercising a countervailing power against the state, and the private sector, on behalf of their hip which comprises mainly the working classes. 2. Market role, by intervention wage bargaining and thus impacting on the economy. The point has to be made that the trade union’s economic or market function in the Caribbean is generally reactive. Trade unions direct their efforts at protecting their workers against the ravages of inflation, and trying to improve living standards which have been depressed for historical reasons. They also try to defend their member’s right to work and are ive of both macro and micro economic policies which would be conducive to high employment. 3. Regulatory role by setting standards in relation to jobs and and conditions. The strength of the trade union at the workplace level determines its ability to perform its job regulation function. Strong trade unions have entered into arrangements where the power of management has to be shared with the union at the workplace. tly agreed procedures for dealing with major issues in the workplace e.g. grievances, discipline, job evaluation, redundancy, work changes, safety and health, along with the right to negotiate and conditions through collective bargaining, provide the sound basis for unions to perform regulatory functions. Trade unions are currently trying to expand such t arrangements to cover areas such as training, equal rights for part-time employees, sexual harassment, treatment of those with chronic diseases, and other areas. On the other hand, some employers are seeking to side step the trade union by engaging in direct contract with employees rather than encouraging union participation. 4. Democratizing role, in creating industrial democracy at the workplace. The trade union’s rank and file are provided with the opportunity of electing their stewards, committees of management, and through the delegate system, their executives and other leaders. The process of preparation for collective bargaining also encourages worker participation. Trade unions are fertile institutions for the furtherance of participatory democracy, for the freedom of assembly, the right to speak freely and the right to exercise choice. Traditionally the separation between capital and labour has created a situation where it has been accepted that management is imbued with the right to manage, which is interpreted to mean that workers are mere resources to be manipulated like any other resource.

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Paternalistic, autocratic and top- down management has been characteristic of the social relations in the workplace. Indeed, there is a notion that the plantation has created the model of relations for other workplaces in the Caribbean. 5. Service role, in promoting the intervention of . Trade unions attempt to develop services which are valuable to their as individuals, outside of the scope of collective bargaining. In the early stages, this took the form of mutual assistance, but with the onset of the welfare state, with provisions for national insurance and similar schemes, this demand has abated. Yet trade unions have recognized the need to expand their role in assisting their in a variety of areas, and so have undertaken a number of non-traditional ventures on behalf of their . Some of the most successful cooperative organizations, particularly credit unions in the Caribbean, have been developed by trade unions on behalf of their . Trade unions have also developed housing land-lease schemes, transport and service stations, banks, laundermats, cinemas, stores, insurance programmes and other schemes for the benefit of . Trade unions also supply legal and medical services for their . Some trade unions recognize the high cost of legal representation in the Caribbean and seek to provide legal assistance to their . This is especially important in areas where the collective bargaining and grievance handling process is highly regulated. 6. Enhancement role in helping to develop the human potential of . Trade unions provide the opportunity for workers to develop pride in themselves, to reach positions of leadership and to excel, where without this vehicle of mobility, many would have had a stultified existence. Many persons who have moved on to management and other leadership roles can testify to their beginnings as shop stewards who were given basic training and opportunity for leadership in the labour movement. The role of trade union education is critical to helping to develop their potential. 7. Welfare role in providing assistance to particular groups. Some trade unions have actively engaged in providing welfare services for and even for the wider community. This takes various forms including the employment of those who have disabilities, as an example to the wider community, the provision of family services including nurseries, child care centres and old people’s homes, as well as play and recreational centres in depressed areas. 2.0 NATIONAL TRADE UNION BODIES 2.1 NATUC

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The National Trade Union Centre (NATUC) was established to represent the collective views of Trade Unions in Trinidad and Tobago. However, in 2000 a major ideological split took place within the umbrella trade union movement. Unions that departed NATUC included the Communication Workers' Union (CWU), Oilfield Workers' Trade Union (OWTU), Public Services Association (PSA) and Trinidad and the Tobago Unified Teachers' Association TTUTA. 2.2 FITUN At a Special t Conference of Shop Stewards and Branch Officers (COSSABO) of the Group of Independent Trade Unions and NGOs held on June 12tyh 2002, which was attended by representatives of the following Unions ATASS, CWU, EPA, FSA, OWTU, POA, SISA and TICFA - and representatives of the following NGOs - TYC, Working Women; it was agreed that there should be established a new Federation and that the name of the Federation should be "The Federation of Independent Trade Unions and NGOs (FITUN)". And at a Special t COSSABO of FITUN held on 12th June 2003, it was agreed by the representatives of the Trade Unions and NGOs assembled that there should be an interim Executive Committee and an Interim General Council established according to Constitutional Guideline that the t COSSABO adopted, and that further the said t COSSABO gave effect to this decision by electing an Interim Executive and proving for each member unit of FITUN to have seven (7) delegates to the Interim General Council. 3.0 EMPLOYERS' CONSULTATIVE ASSOCIATION (ECA) ECA is the sole employers' organisation in Trinidad and Tobago dedicated to the achievement of industrial harmony, improved productivity and increased profitability and serving the interest of its for economic and social progress. The ECA serves as a resource body for organisations and businesses. The ECA's focus is on the most important resource in any organisation – the Human Resource and the maintenance of good employer/employee relations and workplace issues. The ECA is a representative body whose board comprises professionals from its member organization. The ECA represents employers, nationally, regionally and internationally through its hip on National boards & committees, the Caribbean Employers Confederation and the International Organisation of Employers. As an umbrella organisation/social partner, representing employers in T&T the ECA has forged a prominent place for itself and is actively involved not only at the "Macro level" on the different national and international boards but has recognized that significant and meaningful progress can only come about by developing and strengthening relationships at both the macro and micro levels.

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Set up in 1959 by a group of companies, the ECA is dedicated to furthering and protecting the interests of employers in Trinidad and Tobago bringing about harmony in the workplace and industrial peace. The promotion of sound employer-employee relations is the foundation on which the ECA has been built. For this purpose, the ECA has devoted itself to facilitating smooth labour relations by representing employers at the national and international level, assisting national legislation and the government's formulation of policy as a tripartite member, arbitrating pending labour disputes, modernising human resource management, and providing pertinent information and training programmes. Over the past forty years, the ECA has built up a special relationship with its through the provision of a range of services which has expanded to anticipate and reflect the growing complexity of the workplace. hip in the ECA is comprised of small and large employers as well as employers from both the private and public sector. 4.0 INTERNATIONAL ORGANISATION OF EMPLOYERS Since its creation in 1920 the International Organisation of Employers (IOE) has been recognised as the only organisation at the international level that represents the interests of business in the labour and social policy fields. Today, it consists of 139 national employer organisations from 134 countries from all over the world. The mission of the IOE is to promote and defend the interests of employers in international fora, particularly in the International Labour Organization (ILO), and to this end works to ensure that international labour and social policy promotes the viability of enterprises and creates an environment favourable to enterprise development and job creation. At the same time it acts as the Secretariat to the Employers' Group at the ILO International Labour Conference, the ILO Governing Body and all other ILO-related meetings. In order to ensure that the voice of business is heard at the international and national level, the IOE is actively engaged in the creation and capacity building of representative organisations of employers, particularly in both the developing world and those countries in transition to the market economy. The IOE is the permanent liaison body for the exchange of information, views and experience among employers throughout the world. It acts as the recognised channel for the communication and promotion of the employer point of view to all United Nations agencies and other international organisations. 5.0 REGIONAL BODIES 5.1 CARIBBEAN EMPLOYERS' CONFEDERATION (CEC) Mission The CEC is a grouping of employers’ organizations in the Caribbean region dedicated to the development and promotion of good industrial relations

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practices at the enterprise and macro levels towards achieving productivity and prosperity through high productivity for the member countries and the Caribbean sub-region as a whole. Objectives CEC promotes the interest of its and the economic and social welfare of its member countries by ing: 1. The best interests of national employers’ organizations in all matters affecting their relations with their . 2. Consultation between employers’ organizations to ascertain their views on matters of common concern and to represent those views to any government body, institution, organization or association. 3. Participation and hip of any national, regional or international employers’ organization or other body whose objects are consistent with those of the Confederation and to assist in the establishment of such organization or body in the Caribbean. 4. Commentary and dialogue on existing and proposed national legislation relevant to the activities of the Confederation. 5. The collection, dissemination and analysis of data relating to wage structures and conditions of work, and the dissemination of this information for the benefit of of the Confederation. 6. ing the implementation of other lawful things as are or may become incidental and conducive to the attainment of the above objects or any of them. Background CEC was founded in 1960. Its offices were based at the Employers’ Consultative Association, Old Fort Building, Corner Broadway and South Quay, Port of Spain, Trinidad. It is still housed at the ECA but at a new location, #43 Dundonald Street, Port of Spain, Trinidad. The founding of the CEC are:      

Antigua Employers’ Confederation Barbados Employers’ Confederation Belize (British Honduras) Employers’ Association Jamaica Employers’ Confederation The St. Lucia Employers’ Federation Employers’ Consultative Association of Trinidad and Tobago

This was necessary for the Confederation to carry out activities that required such registration for and receipt of funding for projects. Collaborating Organizations ACS

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The CEC maintains close with the Association of Caribbean States (ACS), its programmes and activities, and circulates data and information which may have a direct impact on the work of . CARICOM The CEC is recognised by regional governments as the organization responsible for labour and social issues concerning employers. Thus, the CEC had observer status at the Standing Committee of Ministries of Labour Meeting of CARICOM governments annual meeting where it seeks to put forward the views on Employer issues to Governments in the region. ILO The CEC is recognised by the ILO as the regional employers’ grouping dealing with labour and social issues. of CEC attend meetings of the ILO and IOE as regional representatives for employers. IOE The CEC maintains close collaboration with the work of the International Organization of Employers (IOE), its deliberations and decisions. Trade Unions The CEC interacts with the Caribbean Congress of Labour (CCL), as a tripartite partner. CEC maintains good relations with the trade union movement as both social partners strive for growth and development of their constituents for the benefit of Caribbean countries. 5.2 CARIBBEAN CONGRESS OF LABOUR Proposals for the integration of the British West Indian colonies as they were then called, date back to the 19th century. The impetus for political integration however, was provided by the efforts to unite the workers of the region in 1926, when the first regional labour conference was held in British Guiana. That conference approved a resolution for the formation of a labour federation between Guyana and the West Indies. Although between 1938 and 1945 there were significant changes in the political climate in both Great Britain and the Caribbean which led to a new grouping, the Caribbean Labour Congress, the new name for the British Guiana and West Indian Labor Congress. Since its formation in 1960, the Caribbean Congress of Labour (CCL) which has antecedents from 1926, has been the major regional labour organization in the Caribbean. Its main objectives have been: 1. to encourage the formation of national groupings and/or centres of trade unions; 2. the defence of trade unions against infiltration and subjugation by totalitarian forces; 3. to build and strengthen ties between Free Trade Unions of the Caribbean and those of the rest of the hemisphere and the world; and 4. to maintain and develop a regional clearing house of information and research on the problems of trade union organizations.

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In the fulfilment of these four major aims, the Caribbean Congress of Labour has generally been successful. The formation of national trade union centres has proven elusive in areas such as Saint Lucia, Antigua, Dominica and Bermuda; in areas such as Trinidad and Tobago and the Bahamas, more than one national centre operated at some time, with difficulty in bringing the centres together. In Guyana, there has been some splintering from the centre. Some of the issues which have contributed to the difficulty of forming the national centres include: 1. political differences between the unions; 2. ideological differences; and 3. personality conflicts between leaders. The position of the Caribbean Congress of Labour has shifted and in recent times the Congress has been trying to establish a relationship with Cuba, based on pragmatic rather than ideological consideration. The CCL continues to subscribe to the policies of the International Confederation of Free Trade Unions (ICFTU), of which it is an , and to the policies of democracy. Through its connections with the ICFTU, ORIT and through its links with other trade union institutions like the AFL-CIO and the Canadian Labour Congress, the CCL continues to create links with the world’s free labour movement. The Caribbean Congress of Labour has played a predominant role in training Caribbean labour leaders in education and research and in building capacity. The financial difficulties of the organization, based on weak from its s has been a problem. It has played a great role in using its connections with the International Labour Organization (ILO) and with funding agencies to continue its outreach programmes to . 5.3

COMMONWEALTH TRADE UNION COUNCIL

The Commonwealth Trade Union Council links trade union national centres, representing over 30 million trade union , throughout the Commonwealth. It operates in close co-operation with other international trade union organisations and seeks to promote a democratic and prosperous Commonwealth in which international labour standards are observed. CTUC activities within the Commonwealth are based on an increasingly popular acceptance that the trade union movement is a key player in the campaign to achieve and defend democracy. Trade unions in the Commonwealth are an essential element in civil society and in many countries the only democratically-organised, non-racial, mass hip organisations. The CTUC and its member organisations are united by Common Aims and are actively involved in:

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• • • •

Creating partnerships Challenging injustices Changing perceptions Campaigning for core labour standards

6.0 INTERNATIONAL TRADE UNIONS ASSOCIATIONS 6.1 WORLD FEDERATION OF TRADE UNIONS The World Federation of Trade Unions (WFTU) was established in Paris on 3 October 1945. The First World Trade Union Congress (Paris, 3-8 October 1945) which voted to establish the WFTU was attended by delegates representing 67 million workers from 56 national organisations from 55 countries and 20 international organisations. The establishment of the WFTU closely followed the San Francisco Conference which created the United Nations Organisation (UNO). The U. N. Charter adopted in San Francisco on 26 June 1945 declared:"We the people of the United Nations, determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom, and for these ends to practice tolerance and live together in peace with one another as good neighbours, and to unite our strength to maintain international peace and security, and to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and to employ international machinery for the promotion of the economic and social advancement of all peoples, have resolved to combine our efforts to accomplish these aims." The basic aim of the First World Trade Union Congress was nothing other than the objectives quoted above from the U. N. Charter. The U. N. Charter spoke in the name of "We the peoples of the United Nations". The Paris Congress of WFTU spoke in the name of the working people of the world organised in trade unions who wanted a world free from war and social injustices. The foundation of the WFTU was thus seen as indicative of the new era that had opened with the defeat of fascism at the hands of the anti-fascist alliance of states. The working people and the democratic forces saw in that victory the new future of the world, where imperialism and colonialism would retreat and where freedom, peace, democracy and prosperity would advance for all humankind. The Constitution of the WFTU adopted in 1945 placed among the aims of the WFTU: "To combat war and the causes of war and work for a stable and enduring peace."

49

The first resolution adopted by the Paris Congress declared that "one of the primary tasks of the WFTU and the trade union movements of all countries is to fight for the speedy and complete eradication of fascism. We recognise that the forces of reaction do not want to see the German and Japanese war potentials utterly destroyed and fascism extirpated. World labour must take action to guarantee that these forces shall not prevail. . . ". . . The Congress declares that world labour must be ever-vigilant to prevent any hesitation or weakening in the application of these decisions (the Potsdam Agreements)." The second resolution adopted by the First World Trade Union Congress outlined the principles for a fundamental charter of the rights of the trade unions and their immediate demands. The Paris Congress in its second resolution, strongly reaffirmed the basic demands of the workers: the right of the working people to organise themselves; freedom from every form of discrimination based on race, creed, colour or sex; the right to work and to paid holidays; adequate rates of pay and a higher standard of living (housing, food, etc.); social security providing guarantees against unemployment, in sickness, accidents and old age. The resolution on the "people's right to self-determination" clearly put forward the slogan of national independence: "Victory over the fascist powers was based both upon the united military might of the United Nations and the active struggle of the peoples to secure their full enjoyment of our basic liberties and the right of selfdetermination and national independence. “It would indeed be but incomplete victory if the common people in the colonies and territories of all nations were now denied the full enjoyment of their inherent right of self-determination and national independence." The Congress supplemented this demand for political independence with the call for economic independence as well. The Paris Congress decided: •

•

•

To increase industrialisation and agricultural technical progress under democratic control in all backward countries, in order to free them from their present position of dependence and to improve the standard of living of their population; To see that this programme is not used for monopolistic profiteering interests, native or foreign, which would harm the legitimate national and social interests of these countries; To the assistance which may be given to these countries by the technical and financial resources of advanced countries in of long-term credits and other means without permitting the latter to interfere in the internal affairs of the needy countries or to subject them to the influence of international trusts and cartels; 50

• •

To insure international coordination of these measures, so as to achieve a harmonious evolution of all peoples; To enlist all peoples within the framework of this movement, not merely those of the backward countries, but also those of advanced countries, whose real interests coincide with that of the former.

During the last five decades, reflecting the great changes in the world, the composition of the WFTU has also changed significantly. Ideological and political splits and changes in policies also influenced certain trade union organisations. Reviewing developments in the past period, the Policy Document adopted at the 13th World Trade Union Congress made the assessment that "economically and socially speaking, 'bloc' politics seriously handicapped the action, form and influence of world trade unionism, and more especially its international structures. These upheavals bring to the fore the central issue of the role and place of the social movement and the trade union movement." (paragraph 23) The Policy Document further stated that "trade unions and their international organisations could not, did not know how to, and did not want to avoid taking a stance in this global confrontation. The resulting decision within the international trade union movement weakened its action and its role in promoting international solidarity, and hampered its ability to take stances and act concertedly in resolving the problems of the workers. "Internationally, and domestically in certain countries, the issues of the independence and the purpose of trade union action in defending demands, meeting the needs of the workers, and responding to their desires for democracy, the defence of human rights and unity, have often been considered to be of secondary importance in trade union practices and concepts. The responsibility of each individual and of the masses is decisive. The upheavals that have occurred have merely strengthened the demand for trade unionism to maintain independence in its judgments, decisions and action, whatever the circumstances, and to be fully democratic. This constitutes the basis of the respect for the principles of trade unionism." (paragraphs 24-26) Eleven World Trade Union Congresses have been organised by the WFTU over the 46 years since the Milan Congress in 1949. These Congresses which have all been highly representative in character confirm the correctness of the decision of the Milan Congress to continue the activities of the WFTU as an organisation striving for unity and international solidarity of workers and trade unions in all countries, to carry forward the aims and objectives of its founding Congress in Paris in 1945 and seeking areas of agreement to promote unity and united action in the world trade union movement. These Congresses became broad platforms for the world trade union movement to exchange views and to decide on strategies and policies to advance the struggles of the workers in all countries for their rights. The policy of the WFTU to hold such Congresses as open forums has actively helped the development of international trade union cooperation. The 13th World Trade Union Congress (Damascus, 1994) was attended by 418 participants from 160 national, local, regional and international trade union organisations,

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representing more than 300 million workers from 84 countries on every continent. The WFTU therefore proclaims its prime objective is to contribute to the emancipation of the working people by means of struggle: •

•

• •

• •

•

•

against all forms of exploitation of people and for obtaining and guaranteeing living and working conditions for all workers which would allow them the widest possible benefits from the fruits of their labour, in order to obtain for them and their families the time and the means to live in conditions appropriate to our epoch which is one marked by the headlong progress of science and technology: against colonialism, imperialism, domination and expansionism in the economic, social, political and cultural spheres; for the elimination of racism and underdevelopment; to guarantee sovereignty, freedom and security of nations, non-interference in their internal affairs, respect for their political, economic and social independence and the establishment of a new and just international economic order; for the right to full employment and the guarantee of this right; for full and adequate social security legislation to protect workers and their families in the event of sickness and old age, and every other type of assistance and social security; for training, education and culture for all workers, thus enabling them to gain access to any responsibility or position within their capabilities; for protection of the working environment, effective measures to maintain and promote ecological standards and sustainable development. for the achievement of social, economic and political democracy, the defence and development of workers' and trade unions' rights and freedoms, respect for human rights and the implementation of the Universal Declaration of Trade Union Rights. for the prevention of a nuclear war and the dissolution of all military alliances and blocs; against aggression and war and to promote international detente, the establishment of a just and lasting peace, peaceful coexistence and mutually advantageous cooperation amongst all peoples and among States; an end to the arms race, especially in nuclear arms and the total prohibition and elimination of nuclear weapons; and progressive arms reduction leading to general and complete disarmament.

6.2 INTERNATIONAL CONFEDERATION OF FREE TRADE UNIONS (ICFTU) The International Confederation of Free Trade Unions (ICFTU) is the world's principal organization of national trade union federations. The ICFTU was formed in 1949 by Western trade union federations that had withdrawn from the World Federation of Trade Unions (WFTU) after bitter disagreements with the communist-led unions in the WFTU. The International Confederation of Free Trade Unions (ICFTU), was set up in 1949 and has 233 d organisations in 154 countries and territories on all five continents, with a 52

hip of 145 million, 40% of who are women. It has three major regional organisations, APRO for Asia and the Pacific, AFRO for Africa, and ORIT for the Americas. It also maintains close links with the European Trade Union Confederation (ETUC) (which includes all ICFTU European s) and Global Union Federations, which link together national unions from a particular trade or industry at international level. It is a Confederation of national trade union centres, each of which links together the trade unions of that particular country. hip is open to bona fide trade union organisations that are independent of outside influence, and have a democratic structure. The ICFTU cooperates closely with the International Labour Organisation and has consultative status with the United Nations’ Economic and Social Council and with specialised agencies such as UNESCO, FAO, etc. It maintains s with the International Monetary Fund, the World Bank and the World Trade Organisation and has offices in Geneva, New York and Washington. The ICFTU organises and directs campaigns on issues such as:  the respect and defence of trade union and workers' rights,  the eradication of forced and child labour,  the promotion of equal rights for working women,  the environment,  education programmes for trade unionists all over the world,  encouraging the organisation of young workers,  sends missions to investigate the trade union situation in many countries. The five main ICFTU priorities are:  employment and international labour standards,  tackling the multinationals,  trade union rights,  equality, women, race and migrants,  trade union organisation and recruitment. 7.0 MINISTRY OF LABOUR The Conciliation Division of the Labour istration Division of the Ministry of Labour and Co-operatives performs the primary labour conciliation services for Trinidad and Tobago. The division is headed by the Chief Labour Relations Officer who reports to the Director of the Labour istration. The establishment provides for four (4) Senior Labour Relations Officers, six (6) Labour Relations Officer ll and seven (7) Labour Relations Officer l. The Division undertakes conciliation in all labour disputes emanating from the private sector and from certain areas of the public sector. ACTIVITIES UNDERTAKEN BY THE CONCILIATION DIVISION •

Conciliation in trade disputes 53

Acknowledgement of trade disputes Processing of requests for extensions of time for the reporting of trade disputes under the IRA • Preparation and/or submission of memoranda of agreement to the Industrial Court • Processing of certificates of unresolved disputes and referrals to the Industrial Court • Processing of proposals for collective agreements • Vetting of collective agreements prior to submission to the Industrial Court for registration • Maintaining the Ministry's records relating to: o certification and recognition of trade unions by the Registration, Recognition and Certification Board o name changes (employer or union) o variation of bargaining units • •

• • • • • •

• •

Submission to the Registration, Recognition and Certification Board of queries of hip in good standing Processing of claims for severance benefits prior to referral to the Industrial court- retrenchment and severance benefits act refers Attending to "Labour Problems" Monitoring the industrial relations scene and submitting written reports Participation in "non-crisis" meetings Conducting lectures/seminars on industrial relations issues for schools, unions, employers, non governmental organizations and other such organizations hip on boards and committees hip in respect of the ILO/CARICOM unit of the Ministry of Labour and Co-operatives

8.0 INDUSTRIAL COURT The Industrial Court is a superior court of record. As a superior court of record, it has a status that is equivalent to that of the High Court of Justice. It is a specialist court and because of its specialised jurisdiction, it is not comprised solely of lawyers but has other who possess a variety of skills, particularly in industrial relations, economics and ancy. The principal role of the Industrial Court is to settle unresolved disputes and other matters which arise between trade unions and/or workers and employers under the Industrial Relations Act, the Retrenchment and Severance Benefits Act, the Maternity Protection Act and the Minimum Wages (Amendment) Act. Jurisdiction of the Industrial Court 7. (1) …the Court shall have jurisdiction (a) to hear and determine trade disputes; (b) to collective agreements and to hear and determine matters relating to the registration of such agreements; (c) to en a trade union or other organization or workers or other persons or an employer from taking or continuing industrial action; 54

(d) to hear and determine proceedings for industrial relations offences under this Act; (e) to hear and determine any other matter brought before it, pursuant to the provisions of this Act. Powers of the Industrial Court 10. (1) The Court may in relation to any matter before it (a) remit the dispute, subject to such condition as it may determine, to the parties of the Minister for further consideration by them with a view to settling or reducing the several issues in dispute; (b) make an order or award… (c) …award compensation on complaints brought and proved before it by a party for whose benefits the order or award was made regarding any breach or non-observance of an order or award of any term thereof… (d) dismiss any matter or part of a matter… (3) …the Court in the exercise of its powers shall – (a) make such order or award in relation to a dispute before it as it considers fair and just, having regard to the interests of the persons immediately concerned and the community as a whole; (b) 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. Impact of the Industrial Court on Industrial Relations (a) Dismissal of workers reinstatement of workers reason for dismissal (b) Difficulty of trade unions in obtaining recognition (c) Industrial Relations Offence of failure to meet and treat (recognise; negotiate in good faith) (d) Binding status of collective agreements (e) The development of industrial relations specialists and advocates 9.0 INTERNATIONAL LABOUR ORGANISATION History The International Labour Organization was created in 1919, at the end of the First World War, at the time of the Peace Conference which convened first in Paris, then at Versailles. The need for such an organization had been advocated in the nineteenth century by two industrialists, Robert Owen (1771-1853) of Wales and Daniel Legrand (1783-1859) of . After having been put to the test within the International Association for Labour Legislation, founded in Basel in 1901, their ideas were incorporated

55

into the Constitution of the International Labour Organization, adopted by the Peace Conference in April of 1919. The initial motivation was humanitarian. The condition of workers, more and more numerous and exploited with no consideration for their health, their family lives and their advancement, was less and less acceptable. This preoccupation appears clearly in the Preamble of the Constitution of the ILO, where it is stated, "conditions of labour exist involving ... injustice, hardship and privation to large numbers of people. " The second motivation was political. Without an improvement in their condition, the workers, whose numbers were ever increasing as a result of industrialization, would create social unrest, even revolution. The Preamble notes that injustice produces "unrest so great that the peace and harmony of the world are imperilled." The third motivation was economic. Because of its inevitable effect on the cost of production, any industry or country adopting social reform would find itself at a disadvantage vis-à-vis its competitors. The Preamble states that "the failure of any nation to adopt humane conditions of labour is an obstacle in the way of other nations which desire to improve the conditions in their own countries." Another reason for the creation of the International Labour Organization was added by the participants of the Peace Conference, linked to the end of the war to which workers had contributed significantly both on the battlefield and in industry. This idea appears at the very beginning of the Constitution: "universal and lasting peace can be established only if it is based upon social justice." The ILO Constitution was written between January and April, 1919, by the Labour Commission set up by the Peace Conference. The Commission was composed of representatives from nine countries, Belgium, Cuba, Czechoslovakia, , Italy, Japan, Poland, the United Kingdom and the United States, under the chairmanship of Samuel Gompers, head of the American Federation of Labour (AFL). It resulted in a tripartite organization, the only one of its kind bringing together representatives of governments, employers and workers in its executive bodies. The ILO Constitution became Part XIII of the Treaty of Versailles. The first annual International Labour Conference, composed of two representatives from the government, and one each from employers' and workers' organizations from each member State, met in Washington beginning on 29 October 1919. It adopted the first six International Labour Conventions, which dealt with hours of work in industry, unemployment, maternity protection, night work for women, minimum age and night work for young persons in industry. The Governing Body, the ILO executive council elected by the Conference, half of whose are government representatives, one-fourth workers'

56

representatives and one-fourth employers' representatives, chose Albert Thomas as the first Director of the International Labour Office, which is the permanent Secretariat of the Organization. He was a French politician with a deep interest in social questions and a member of the wartime government responsible for munitions. He gave the Organization a strong impetus from the very beginning. In less than two years, 16 International Labour Conventions and 18 Recommendations had been adopted. The ILO was set up in Geneva in the summer of 1920. The zeal which drove the Organization was very quickly toned down. Certain governments felt that there were too many Conventions, the publications were too critical and the budget too high. Thus everything had to be reduced. Nevertheless, the International Court of Justice, under pressure from the Government of , declared that the ILO's domain extended also to international regulation of conditions of work in the agricultural sector. In 1926, an important innovation was introduced when the International Labour Conference set up a supervisory system on the application of its standards, which still exists today. It created the Committee of Experts composed of independent jurists responsible for examining government reports and presenting its own report each year to the Conference. In 1932, after having assured the ILO's strong presence in the world for thirteen years, Albert Thomas suddenly died. His successor, Harold Butler of England, his deputy since the birth of the Organization, was soon confronted by the Great Depression with its resulting massive unemployment. During this period, workers' and employers' representatives confronted each other on the subject of the reduction of working hours, without any appreciable results. In 1934, under the presidency of Franklin D. Roosevelt, the United States, which did not belong to the League of Nations, became a Member of the ILO. In 1939, John Winant, an American who was a former Governor of New Hampshire, the first head of the American Social Security System, then Deputy Director of the ILO, succeeded Harold Butler who had resigned. His main task was to prepare the Organization for the imminent war. In May,1940, the situation in Switzerland, isolated and threatened in the heart of a Europe at war, led the new Director to move the headquarters of the Organization temporarily to Montreal, Canada. In 1941, President Roosevelt named him Ambassador of the United States in London, where he replaced Joseph Kennedy. Edward Phelan of Ireland was named Director in 1941. He knew the ILO in depth, having participated in the drafting of its Constitution. He played an important role once again during the Philadelphia meeting of the International Labour Conference, in the midst of the Second World War, attended by representatives of governments, employers and workers from 41 countries. The delegates adopted the Declaration of Philadelphia which, annexed to the Constitution, still constitutes the Charter of the aims and objectives of the ILO. In 1948, still during the period of his leadership of the

57

ILO, the International Labour Conference adopted Convention No. 87 on freedom of association and the right to organize. The Englishman Wilfred Jenks, Director-General from 1970 until his death in 1973, was faced with a politicization of labour problems resulting from the East-West conflict. His profound knowledge of the Organization served him well in this task. In fact, he had been co-author with Edward Phelan of the Declaration of Philadelphia. A renowned jurist, he was a firm advocate of human rights, the rule of the law, tripartism and the moral authority of the ILO in international problems. He made a major contribution to the development of standards and the mechanisms for supervising their application, and particularly to the promotion of freedom of association and of the right to organize. He was succeeded by Francis Blanchard, formerly a senior French Government official. Mr. Blanchard had spent the best part of his career with the ILO, where he played an active part in the large-scale development of technical cooperation. Both a diplomat and a man of conviction, he remained in that post for fifteen years, from 1974 to 1989. He succeeded in averting major damage to the ILO when a crisis triggered by the withdrawal of the United States from the Organization (1977 to 1980) resulted in the loss of one-fourth of its budget. The United States returned to the Organization at the beginning of the Reagan istration. During this period, the ILO resolutely continued its work in defence of human rights. Thus, the ILO played a major role in the emancipation of Poland from dictatorship, by giving its full to the legitimacy of the Solidarnosc Union based on respect for Convention No. 87 on freedom of association which Poland had ratified in 1957. In 1989, Michel Hansenne, former Belgian Minister of Employment and Labour and of the Civil Service, became the first Director-General of the postCold War period. Re-elected for a second term in 1993, he indicated that his primary responsibility was to lead the ILO into the 21st century with all the moral authority, professional competence and istrative efficiency which the Organization has demonstrated for 75 years. In the face of new challenges, he intends to give the ILO the means to play a full part in the major international councils on economic and social development, in order to place social justice at the heart of the debate. He has set the ILO on a course of greater decentralization of activities and resources away from Geneva under the ILO's Active Partnership Policy. On 4 March 1999 Juan Somavia, an attorney by profession, took up office as the ILO's ninth Director-General. Mr. Somavia has had a long and distinguished career in civil and international affairs, serving, inter alia, as Chairman of the preparatory Council of the World Summit for Social Development (held in Copenhagen in 1995) and President of the UN Economic and Social Council (from 1993 to 1994). He has held the post of Ambassador of Chile and served as an Adviser to the Foreign Minister of Chile on Economic and Social Affairs. He was born on 21 April, 1941, and earned

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degrees in law and economics from the Catholic University of Chile and the University of Paris. Mandate The International Labour Organization is the UN specialized agency which seeks the promotion of social justice and internationally recognized human and labour rights. It was founded in 1919 and is the only surviving major creation of the Treaty of Versailles which brought the League of Nations into being and it became the first specialized agency of the UN in 1946. The ILO formulates international labour standards in the form of Conventions and Recommendations setting minimum standards of basic labour rights: freedom of association, the right to organize, collective bargaining, abolition of forced labour, equality of opportunity and treatment, and other standards regulating conditions across the entire spectrum of work related issues. It provides technical assistance primarily in the fields of: • • • • • • • • •

vocational training and vocational rehabilitation; employment policy; labour istration; labour law and industrial relations; working conditions; management development; cooperatives; social security; labour statistics and occupational safety and health.

It promotes the development of independent employers' and workers' organizations and provides training and advisory services to those organizations. Within the UN system, the ILO has a unique tripartite structure with workers and employers participating as equal partners with governments in the work of its governing organs.

Strategic Objectives 1. Promote and realize standards and fundamental principles and rights at work • Standards and fundamental principles and rights at work • Child labour • Normative action 2. Create greater opportunities for women and men to secure decent employment and income • Employment policy • Knowledge, skills and employability • Employment creation 3. Enhance the coverage and effectiveness of social protection for all • Social security • Working conditions.

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4. Strengthen tripartism and social dialogue • Social partners • Governments and institutions of social dialogue 5. Cross-cutting activities • Shaping the ILO agenda: Decent Work: Inter-sectoral Operational • Shaping the ILO agenda: Gender equality • Expanding knowledge: Statistics • Expanding knowledge: International Institute for Labour Studies • Expanding knowledge: International Training Centre of the ILO, Turin. • Improving awareness of ILO perspectives: External relations and partnerships • Improving awareness of ILO perspectives: Communications

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Core Conventions Subject Freedom Association Collective Bargaining

Forced Labour

No.

Name Convention

of

Aim

of 87 and

Freedom of The right, freely exercised, of workers Association and and employers, without distinction, to Protection of the Right organize for their interests. to Organize (1948)

98

The Application of the Protection of workers who are Principles of the Right exercising the right to organize; nonto Organize (1949) interference between workers' and employers' organizations; promotion of voluntary collective bargaining.

29

Forced or Compulsory Suppression of forced labour. Labour (1930)

105 The Abolition of Forced Prohibition of the recourse to forced or Labour (1957) compulsory labour in any form for certain purposes. Non-Discrimination 100 Equal Remuneration Equal remuneration for men for Men and Women women for work of equal value. Workers for Work of Equal Value (1951)

and

111 Discrimination in To promote equality of opportunity and Respect of treatment in respect of employment Employment and and occupation. Occupation (1958) Minimum Age

Worst Forms Child Labour

138 Minimum Age for The abolition of child labour. The ission to minimum ission to employment or Employment (1973) work shall be not less than the age of completion of compulsory schooling (normally not less than 15 years). of 182 The Prohibition and Prohibition and elimination of the worst Immediate Action for forms of labour carried out by all the Elimination of the persons under the age of 18. The worst Worst Forms of Child forms of child labour comprises: (a) all Labour (1999) forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour including forced or compulsory recruitment of children for use in armed conflict; (b) the use, procuring or offering of a child for prostitution, for the production of pornographic performances; (c) the use, procuring or offering of a child illicit activities, in particular for the production and

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trafficking of drugs as defined in the relevant international treaties; (d) work which, by its nature or circumstances in which it is carried out, is likely to harm the health, safety or morals of children.

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LECTURE 4 - THE LEGISLATIVE CONTEXT OF INDUSTRIAL RELATIONS IN TRINIDAD AND TOBAGO National Labour Law Profile: Trinidad and Tobago Avril Rahim, Updated by Natacha Wexels-Riser, July 2004* The Judiciary In Trinidad and Tobago there exists a Supreme Court of Judicature comprising of the High Court and the Court of Appeal, both superior courts of record. Under certain circumstances, final appeals go to the Judicial Committee of the Privy Council of the United Kingdom. There are plans to replace this avenue of appeal with a Caribbean Court of Justice, which would serve a number of Caribbean countries. With the exception of the Chief Justice, who is appointed by the President, after consultation with the Prime Minister and the Leader of the Opposition, all Judges of the Supreme Court are appointed by the President acting in accordance with the advice of the Judicial and Legal Service Commission. The judiciary is meant to be and remains an independent arm of the State. While the Industrial Court established under the Industrial Relations Act, Chap. 88:01 is deemed to be a superior court of record, it is not considered part of the Judiciary. Fundamental Rights Guaranteed by the Constitution The Constitution of Trinidad and Tobago recognizes and guarantees citizens certain basic human rights and freedoms, such as the right to life, liberty and security, the right to equality before the law and the right to freedom of expression. The right to freedom of association and assembly is also a fundamental right protected by the Constitution. This right translates into the right of a person to form and a trade union or association. There is no constitutional right to bargain collectively or to strike, (Collymore and Another v. The Attorney General (1969) 15 WIR 229 . The Industrial Relations Act (hereinafter referred to as the IRA) does however make provisions for collective bargaining between employers and workers and allows industrial action, including strike action, once taken in accordance with the IRA. A list of trade unions established in the country is available in the webpage of the ILO Subregional Office for the English Speaking Caribbean countries. Employers also have the right to form and their own associations. In Trinidad and Tobago the main employers' association is the Employers' Consultative Association. Labour Regulation General regulation

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The general industrial relations policy in Trinidad and Tobago is based on voluntary collective bargaining between employers and workers, via their representative associations, for the settlement of and conditions of employment. The employment relationship in Trinidad and Tobago may be governed by either or a combination of both industrial relations principles and practices, and legislation. While the Government has ratified several ILO Conventions, including the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), these Conventions only become effective when they are legislatively implemented. A 144 Tripartite Committee, comprising all of the social partners, trade unions, employers, and Government, is in operation in Trinidad and Tobago with the responsibility of considering and recommending the ratification of ILO Conventions. State employees include civil servants, teachers and of the Protective Services (Fire, Police and Prison Services). The employment relationship between the State and its employees is governed generally by legislation, which makes provisions for and conditions of employment including recruitment, hours of work, leave entitlements, payment of remuneration, pensions, allowances and other benefits. There is legislation which deals specifically with each group, such as the Civil Service Act, Chap 23:01 for all civil servants, the Police Service Act, Chap. 15:01, as revised by the Police Service Bill (2003), the Fire Service Act, Chap. 35:50 and the Education Act, Chap 39:01 for teachers. The representative associations of monthly paid State employees may bargain collectively with the Chief Personnel Officer, who is deemed to be the employer of State employees under the IRA. The subject of these negotiations include wage increases, travelling and other allowances and leave entitlements. When agreement is reached on a matter the parties enter into a Memorandum of Agreement. Where this Memorandum affects existing legislation, the legislation is accordingly amended to give effect to the agreed position. The and conditions of employment of daily paid State employees are contained in collective agreements entered into by their recognized majority union and the Chief Personnel Officer after collective bargaining. In the private sector collective bargaining is generally engaged between individual companies with the respective recognized majority unions, rather than on an industry wide basis. Many companies have industrial relations or human resources managers who handle negotiations. Companies which do not have industrial relations professionals may hire private negotiators or practitioners to conduct negotiations on their behalf. Trade unions have negotiators on their staff. Those aspects of the employment relationship which could not be left to collective bargaining such as employee health and safety, minimum age of employment and workers' compensation, retrenchment and severance benefits and maternity leave are set down in legislation which bind the State and private employers. The Factories Ordinance (soon to be replaced by the 64

Occupational Safety and Health Act , assented on 30 January 2004, but still awaiting proclamation, and the Employment Injury and Disability Benefits Bill ) sets standards for employee health and safety at the workplace. The Workmen's Compensation Act, to be replaced by the Employment Injury and Disability Benefits Bill provides compensation where employees are injured on the job, while the Retrenchment and Severance Benefits Act guarantees the payment of severance pay to retrenched employees. The Maternity Protection Act provides maternity leave and related benefits to female employees. The Government has also recognized the need to implement legislation which sets minimum and conditions of employment so that employees are guaranteed a basic level of rights and protection. The IRA sets the stage for the practice of industrial relations in Trinidad and Tobago. It is the legal framework within which parties bargain collectively, settle disputes and come before the Industrial Court for arbitration. The Industrial Relations Act During the 1950s and early 1960s the industrial relations climate in Trinidad and Tobago was growing tense with the development of the trade union movement. There was an increasing number of strikes and labour disputes which threatened the economic growth and productivity of the country. The Government could no longer delay in taking legislative action to regulate the relations between unions, workers and employers. As a result the Industrial Stabilisation Act, 1965, was enacted. This Act introduced the concept of compulsory arbitration to Trinidad and Tobago by the establishment of the Industrial Court. The main function of this Court was to intervene to prevent and settle industrial disputes between employers and their union represented workers. The Industrial Stabilisation Act was later repealed and replaced by the Industrial Relations Act , 1972, Chapter 88:01 of the Laws of Trinidad and Tobago. The IRA provides for the following: • • • • • •

free collective bargaining between employer and workers through their representative associations, the development of a peaceful and expeditious procedure for the settlement of disputes, the establishment of the Industrial Court, the recognition and registration of trade unions, the freedom to be represented by a trade union and the right not to associate, and industrial action which may be taken by both employer and employee.

Provision is made for a Tripartite industrial relations advisory committee which has the responsibility of reviewing the IRA and making recommendations to the Minister of Labour. This way the Act may keep up with industrial relations trends.

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In order to seek the protection and rights afforded by the IRA, a person must fall within the definition of worker set out in the Act. In the IRA a "worker" is defined as: •

•

•

•

i.

any person who has entered into or works under a contract with an employer to do any skilled, unskilled, manual, technical, clerical or other work for hire or reward, whether the contract is expressed or implied, oral or in writing, or partly oral and partly in writing, and whether it is a contract of service or apprenticeship or a contract personally to execute any work or labour; any person who by any trade usage or custom or as a result of any established pattern of employment or recruitment of labour in any business or industry is usually employed or usually offers himself for and accepts employment accordingly; or any person who provides services or performs duties for an employer under a labour only contract, within the meaning of subsection (4)(b); and includes any such person who has been dismissed, discharged, retrenched, refused employment, or not employed, whether or not in connection with, or in consequence of, a dispute; or whose dismissal, discharge, retrenchment or refusal of employment has led to a dispute; or

ii. •

any such person who has ceased to work as a result of a lockout or of a strike, whether or not in contravention of Part 5,

as the case may be. The following categories of workers are, however, excluded from the scope of the IRA: • •

•

• •

i.

a public officer, as defined by section 3 of the Constitution; a member of the Defence Force or any ancillary force or service thereof, or of the Police, Fire or Prison Service or of the Police Service of any Municipality, or a person who is employed as a rural constable or estate constable; a member of the Teaching Service as defined in the Education Act, or is employed in a teaching capacity by a university or other institution of higher learning; a member of staff and an employee of the Central Bank established under the Central Bank Act; a person who, in the opinion of the Board -

is responsible for the formulation of policy in any undertaking or business or the effective control of the whole or any department of any undertaking or business; or

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ii.

has an effective voice in the formulation of policy in any undertaking or business; •

•

employed in any capacity of a domestic nature, including that of a chauffeur, gardener or handyman in or about a private dwelling house and paid by the householder; an apprentice within the meaning of the Industrial Training Act.

The Court has the responsibility of deciding whether a person is a worker under the IRA. The fact that domestic workers have been excluded by the definition of ‘worker' in the IRA has been an issue of contention for their association. The Parliament took note and both the Minimum Wages Order, Legal Notice No. 40 of 1999 and the Maternity Protection Act , No.4 of 1998 included domestic workers as employees, guaranteeing them the same rights and benefits as other workers. Contract of Employment Employment relationship A contract of employment in Trinidad and Tobago may be oral or written, express or implied. Common law is applied by the Industrial Court when determining the question of whether a contract of or a contract for service exists between a person and an employer. When determining this question the Court may consider in addition to do the 'control test', the 'organizational test' and the 'economic reality test'. The test enunciated by Mc Kenna J in the English case of Ready Mixed Concrete (South East) Ltd. v. Minister of Pensions and National Insurance [1968] 2QB 497, [1968] 1All ER 433 has been approved and applied by the Industrial Court when determining whether a contract of or for service exists, for example in IRO 10-13 et al of 1989, and Transport and Industrial Workers Union and Neal and Massy Industries Limited (1994) . It is a question of fact in each case and the Court will go beyond any written contract to determine the true nature of the relationship. When a person makes a claim under any piece of labour legislation that provides rights and benefits for workers, the Industrial Court will first decide whether the person falls within the definition of 'worker' or 'employee' in the particular Act. The approach of the Court when determining this question was stated in the case of Oilfields Workers' Trade Union and Schlumberger Trinidad Inc. RSBD No. 4 of 1996, "..that such legislation is to be seen as an instrument of social engineering and that the Court must not lose sight of its function to ensure that the intended beneficiaries of such social engineering are not deprived of their rights by reason of their relatively inferior bargaining strength." The and conditions under which an employee works may be contained in an individual contract of employment between the employee and employer, a collective agreement negotiated by the representative trade

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union or employee association with the employer or by legislation as is the case with State employees. Permanent and fixed-term contracts of employment As a result of structural adjustment of the economy over the past twenty years the pattern of employment in Trinidad and Tobago has veered towards an increasing emergence of fixed term contract employment. This is true in both the public and private sectors. Employers are more willing to subcontract tasks or projects and to hire on a fixed term basis rather than to employ persons for an indefinite period, which is what prevailed in the past. Employers now want the ability to change labour quickly without much difficulty. This is one aspect of flexibilization of the workforce which is gaining ground in Trinidad and Tobago. Because employers may be tempted to use contract labour to escape statutory entitlements of workers and obligations imposed by collective agreements, the Industrial Court has had to look beyond the fixed term contract and the claim of independent contractor to discover the reality of the relationship. This occurred in the Schlumberger case (supra), where the company claimed that since the worker, who was employed for a period in excess of ten years on consecutive six month contracts, was employed on a fixed term basis, he did not fall within the definition of ‘worker' in the Retrenchment and Severance Benefits Act, and was therefore not entitled to severance payment. The Court held that neither the worker nor the employer could contract out of the Act and found that the worker was in continuous employment with the Company despite the six month contracts and was thereby entitled to severance pay. The practice of employment on a fixed term basis has not found favor with the trade unions. Since fixed term contracts are usually negotiated by the individual worker with the employer, there is no collective bargaining process and the role of the union is ousted. Most workers under a fixed term contract are not unionized. More needs to be done on the part of trade unions to attract persons who work on a fixed term contract basis. These persons include not only construction workers and workers in labour intensive industries, but a growing number of professionals. Probation Periods of probation and suspension are only statutorily set down in legislation dealing with the Defence Force, the Civil, Prison, Police and Fire Services. Generally private sector employers are free to determine their own probationary and suspension provisions. Where there is a recognized majority union, that union may negotiate these for inclusion into the collective agreement. Termination of the Contract of Employment

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Grounds for termination Whether a contract of employment is for a fixed term or for an indefinite period it may be terminated by either the employer or the worker. There is no legislation governing termination of contract in general in Trinidad and Tobago, and Common Law applies in the absence of termination provisions in a collective agreement. There may be termination by performance, by expiry of a fixed term, by agreement of the parties or by breach. An employer has the right to dismiss an employee for just cause. The Common Law on summary and constructive dismissal also applies. Notice of termination Usually in collective agreements and individual contracts a requirement for notice of termination is stipulated. For monthly paid employees this notice period is usually one month. The Retrenchment and Severance Benefits Act The Retrenchment and Severance Benefits Act was ed to provide severance payments for retrenched employees. In order to qualify for this benefit the employee must fall within the definition of ‘worker' in the IRA, with the following added exceptions: • • • • • •

workers with less than one year continuous service; workers on probation; casual workers; seasonal workers; fixed term workers; independent contractors.

The procedure for retrenchment is laid down in the Act, with formal notice in writing required to be given by the employer to the worker, the recognized majority union and the Minister of Labour where five or more workers are to be retrenched. Provision is made for consultation between the recognized majority union and the employer to avert or lessen the effects of redundancy. A formula for the payment of severance is contained in the Act, with a stipulation that where more favorable benefits are provided by a collective agreement that applies to the retrenched worker, the collective agreement takes precedence over the Act. The Retrenchment and Severance Benefits Act is one of a few pieces of legislation that allows the non-unionized individual worker who alleges non-compliance with the Act, to take his or her matter to the Industrial Court. The worker may take his or her complaint to the Minister of Labour where it is reported as a trade dispute and dealt with as such according to the provisions of the IRA. Remedies in case of unjustified dismissal

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Where an employee alleges wrongful dismissal he or she may seek union representation and failing settlement, have his or her matter heard and determined by the Industrial Court. Remedies that may be granted by the Court for wrongful dismissal include reinstatement or re-employment, compensation or damages, including exemplary damages in lieu of reinstatement. In assessing compensation or damages the Court is not bound to follow any rule of law, but may make an assessment that is in its opinion fair and appropriate. Working Time Hours of work The hours of work for State employees is provided for by legislation. In the private sector hours of work may be settled in a collective agreement. For employees in general, other than shift workers, the normal hours of work are eight hours a day, usually from 8:00am to 4:00pm, five days a week. The Minimum Wages Order, Legal Notice No.40 of 1999 attempted to set down hours of work for all workers in Trinidad and Tobago, including State employees. The Order stipulates that the normal working day shall not exceed eight hours, exclusive of meal and rest breaks, and the normal working week shall not exceed forty hours. Where workers work only four days in the week the normal work day shall not exceed ten hours. The Order also provides meal and rest breaks for workers. However, the Order only applies to workers who receive an hourly rate of $10.50 or less, and so unfortunately many workers are excluded. Unionized workers may rely on their representative associations or trade unions to negotiate fair hours of work on their behalf. However, nonunionized workers who earn more than $10.50 an hour in an establishment where no collective agreement exists must fend for themselves. Leave entitlements There are no statutory leave provisions which apply to workers in general in Trinidad and Tobago. State employees have leave entitlements set out in legislation which deals with each Service. This includes paid vacation leave and usually fourteen days paid sick leave, with three working days bereavement leave where the death occurs in Trinidad and Tobago and five days where it occurs outside. With the exception of the Police, Prison and Fire Services where special provisions are made since employees are required to work on Sundays and public holidays, all permanent State employees are guaranteed paid public holidays. Where an employee is required to work on a public holiday, where that day is a normal working day the employee is entitled to a day off. Leave entitlements for Government daily rated workers are provided for in the Collective Agreement between the Chief Personnel Officer and The

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National Union of Government and Federated Workers, 1999-2001. In both the public and private sectors employees are only eligible for paid vacation leave after having twelve months continuous service. The State also provides for no pay leave to be granted to employees who wish to further their education and leave where the employee holds a post in a trade union. In the private sector employers and unions may agree on leave entitlements which become part of a ed collective agreement which is binding on both employer and employees. Where no collective agreement exists paid public holidays, vacation and sick leave are at the discretion of the employer. Maternity Leave and Maternity Protection Maternity Leave in Trinidad and Tobago is governed by the Maternity Protection Act , No. 4 of 1998 (hereinafter referred to as the MPA) which binds both private employers and the State. The purpose of the Act is to establish a minimum level of rights and benefits for women workers. It is a provision of the MPA that it shall not apply where any written law, industrial award or collective agreement prescribes conditions more favorable than those specified in the MPA. Prior to the MPA only legislation relating to the Civil Service, including the Police, Fire and Prison Services contained provisions on maternity leave. Since its enactment the MPA takes precedence over those provisions, except where those provisions are more beneficial to the employee than the MPA. Under the MPA the definition of an ‘employee', who is entitled to protection under the MPA, includes domestic and agricultural workers, and a person working under a contract of apprenticeship, provided the employee has been in the service of the employer for a continuous period of no less than twelve (12) months. Under the MPA female employees are entitled to thirteen (13) weeks maternity leave (six weeks prior to confinement, 7 weeks after) and one month's pay during such leave. An employee on maternity leave shall have the right to return to work. To qualify for maternity leave, employees must have worked for an employer for a period of no less than 12 months. The employee shall also submit a medical certificate stating the probable date of confinement, as well as a written expression of her intent to return to work after maternity leave. An employee whose child dies during the period of leave is entitled to the remaining period of leave with pay. Where an employee has not as yet proceeded on maternity leave and has a premature birth where the child dies either at birth or thirteen (13) weeks after, she is still entitled to her full or remaining period of leave with pay. Under the MPA employees are also allowed time off with pay for the purpose of receiving prenatal medical care.

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As with the Retrenchment and Severance Benefits Act a non-unionized individual employee who alleges non compliance with the MPA may report her claim to the Minister of Labour where it is deemed to be a trade dispute and dealt with as such under the IRA. An employee is therefore not denied her right of redress, even though she is not a member of a trade union. Minimum Age and Protection of Young Workers The Children Act, Chapter 46:01 states that a child under the age of twelve (12) cannot be employed, while a person under the age of fourteen (14) shall not be employed in an industrial undertaking or vessel, and may only be employed in a family undertaking. The Factories Ordinance, Chapter 30 No.2 prohibits the employment of a 'child' who is defined as a person who has not as yet attained the age of fourteen years. The Children (Amendment) Act, 2000, amending the Children Act, changes the definition of a 'child' from a person under fourteen years of age to a person under eighteen years. It defines a 'young person' as a child over the age of fourteen years of age and under the age of eighteen years. The Occupational Safety and Health Act , assented on 30 January 2004, but still awaiting proclamation, prohibits the employment of young persons on dangerous machines. The Tripartite Committee established by ILO Convention No.144 is currently considering the ratification of Convention No.138 concerning the minimum age for ission to employment. Until such time, technically the minimum age for employment in Trinidad and Tobago remains at age fourteen (14). Equal Treatment The Constitution guarantees citizens the general right to equality of treatment from any public authority in the exercise of any function. The Equal Opportunity Act, No. 69 of 2000 prohibits discrimination of persons on grounds of sex, race, ethnicity, origin, marital status, religion or disability. Part III of the Act deals specifically with employment discrimination. In respect of persons seeking employment, an employer is prohibited from refusing or omitting to offer employment to a person based on the above grounds of discrimination. Also, an employer shall not discriminate against an employee with regard to and conditions of employment, opportunities for promotion, transfer or training or any other benefit, facility or service associated with the employment. There are as yet no statutory provisions concerning sexual harassment and as a result the common law applies. Homosexuality is still a criminal offence with penal consequences. Discrimination on the basis of sexual orientation is thus not prohibited.

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To ensure compliance with the Act an Equal Opportunity Commission has been established to work towards the elimination of discrimination by investigating allegations of discrimination, conducting research and educational programs, and providing guidelines to promote equal opportunity and good relations among all persons. There is provision in the Act for the establishment of the Equal Opportunity Tribunal to hear and determine complaints made under the Act, with the power to make an order for the payment of compensation, damages or fines. However, the Equal Opportunity Act, No. 69 of 2000 was judged unconstitutional in May 2004. An appeal was filed against the decision. Pay Issues Minimum wage The national minimum wage in Trinidad and Tobago, set by the Minimum Wages Order, Legal Notice No. 40 of 1999 is $7.00 per hour exclusive of gratuities, service charges and commissions. The Order also provides that piece and home workers receive no less than the equivalent of the minimum wage. Determination of pay The Minimum Wages Order also sets overtime rates. For the first four hours of overtime the worker shall receive one and one half times the hourly rate. For the next four hours, two times the hourly rate and thereafter three times the hourly rate. For time worked on an off day, two times the hourly rate is payable for the first eight hours, and thereafter, three times the hourly rate. The order applies only to workers who receive an hourly rate of $10.50 or less, and does not apply to ed apprentices and trainees in Government approved training programmes. Protection of wages Where a worker alleges non-compliance with the Minimum Wages Order, his or her recognized majority union, or any union of which he or she is a member, or he or she themselves may report the matter to the Ministry of Labour under the Minimum Wages (Amendment) Act, No.11 of 2000. This report is deemed to be a trade dispute and may be heard and determined by the Industrial Court. The wages of employees who are not covered by the Minimum Wages Order may be fixed by collective bargaining, or individual employees are free to negotiate their own wage with employers. Workers' Representation in the Enterprise

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While there are no statutory provisions for worker representation in the enterprise, the industrial relations practice, ed by case law of the Industrial Court, entitles unions to appoint a worker as the union representative for a bargaining unit. This representative is sometimes referred to as the shop steward. It is also industrial relations practice that when having discussions with the worker representative on union business the employer must treat him or her not as an employee, but as the representative of the union. About 22% of the work force is represented by trade unions that have negotiated collective bargaining agreements which set the and conditions of their employment. Trade Union Regulation Trade Unions in Trinidad and Tobago are regulated by the Trade Unions Act, 1932, Chapter 88:02. Pursuant to this Act trade unions were deemed to be no longer illegal as being in restraint of trade. Trade unions are required to be ed by the Registrar of trade unions under the Trade Unions Act, and any seven (7) or more may a union. The provisions for registration are set out in the Act and include the following requirements: a. completed application form with printed copy of rules with the names of officers; b. that no other trade union carries an identical name or one so nearly resembling that of the union seeking registration to deceive the public; c. that the objects of the union are statutory objects. Any trade union duly ed under the Trade Unions Act may purchase or lease property which would be vested in its trustees. The Act makes provision for legal action to be taken against any trustee who misuses or misappropriates the union's property. Any person who is aggrieved by the Registrar's refusal to a trade union, or by the withdrawal or cancellation of a certificate of registration may appeal the Registrar's decision before the Supreme Court. The Registrar may not withdraw or cancel a certificate of registration arbitrarily, but only in the circumstances outlined in the Act. While the Constitution guarantees for every citizen of Trinidad and Tobago the right to a trade union, the Industrial Relations Act acknowledges a person's right not to be a member of a trade union or other employee organization. Where a person is a member of a trade union, he or she has a right to take part in the activities of the union and to become an official of that union.

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The Registration, Recognition and Certification Board, established by the IRA is responsible for determining and certifying recognized majority unions. Both the employer and the recognized majority union are obliged to treat and enter into negotiations with each other in good faith. Collective Bargaining and Agreements Collective bargaining regulation In Trinidad and Tobago collective bargaining takes place between company and recognized majority union rather than on an industry wide basis. The Government as an employer also bargains collectively. The process of collective bargaining is regulated by Part IV of the Industrial Relations Act (IRA). The IRA states that the parties to a collective agreement shall be the recognized majority union, and the employer or the successor to either the recognized majority union or the employer. Collective bargaining procedures The purpose of collective bargaining is to establish and conditions of employment for a bargaining unit, agreed between the recognized majority union and the employer, into a collective agreement. Where a recognized majority union and an employer agree to initiate negotiation of a collective agreement they must notify the Minister of Labour. When parties have settled upon a collective agreement it must be ed by the Industrial Court either through the Minister or by either party to the agreement. Only upon registration does the collective agreement become binding upon the parties and enforceable by the Industrial Court. A collective agreement may be made for a period of not less than three (3) years and no more than five (5) years. Application of collective agreements The IRA requires that collective agreements contain effective provisions for the settlement of disputes, including differences between the parties arising out of the interpretation, application and violation of collective agreements, with the Industrial Court as the final arbiter. Collective agreements usually also contain provisions for wages, leave entitlements, severance pay, travelling and other allowances. Any collective agreement which governs a bargaining unit applies to every worker in that bargaining unit, whether that worker is a member of the recognized majority union or not. The provisions of a collective agreement become the and conditions of employment of each employee's contract whether or not that employee even knows of the existence of the agreement. Any provision in a collective agreement which limits the application of the IRA or which promotes preferential treatment for of a particular union is void. Once a collective agreement has been

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ed every member of the respective bargaining unit is entitled to be protected by it. The IRA also provides that where a trade union has attained certification as the recognized majority union the employer must recognize that union and is obliged to meet and treat with that union. Both parties have a duty to bargain in good faith. Collective and Individual Labour Disputes: the disputes procedure Report to the Ministry of Labour After parties have undergone the disputes procedure set out in their collective agreements, and the dispute remains unresolved, they may report the matter to the Minister of Labour as a trade dispute under the Disputes Procedure set out in Part V of the IRA. The Disputes Procedure set out in the IRA establishes a system that allows parties to treat with their dispute in a structured framework of conciliation, culminating in arbitration before the Industrial Court, that is if conciliation does not result in resolution. Under the Disputes Procedure only the following entities may report a trade dispute to the Minister: • • •

the employer; the recognized majority union; where there is no recognized majority union, any trade union of which the worker(s) who are parties to the dispute are in good standing.

An individual worker is incapable of being a party to a trade dispute under the IRA. Therefore, an individual worker has no locus standi before the Industrial Court, under the IRA. Initially the legislation was structured so as to encourage and trade union hip and development. It is without doubt that it would be in the interest of both employer and union to restrict an individual worker's right to come before the Industrial Court, but it is the duty of the Legislature to safeguard the rights of workers, especially in light of the increase in non-unionized contract employment. It was with this duty in mind that the Legislature ed the Retrenchment and Severance Benefits Act, No. 32 of 1985 and the Maternity Protection Act, No. 4 of 1998. Both these Acts give the non-unionized individual worker an avenue by which he or she may bring his or her grievance before the Industrial Court. Both Acts allow the worker to report his or her grievance to the Minister as a trade dispute to be dealt with according to the provisions of the IRA. Further, a trade union, other than a recognized majority union may only represent a worker in a rights dispute, that is a dispute emanating out of existing and conditions of employment. Interest disputes, that is, disputes concerning the formulation of and conditions of employment may only be handled by a recognized majority union.

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Once a trade dispute is reported to the Minister of Labour he or she may; • • •

remit the dispute back to the parties where appropriate settlement procedures were not observed; proceed to have the matter conciliated before a conciliator appointed by the Ministry of Labour; or refer the matter directly to the Industrial Court.

Unrepresented workers cannot report a dispute to the Minister and consequently cannot take strike action in accordance with the act. Conciliation Conciliation before the Ministry is more along the lines of what is commonly accepted as mediation, since parties come before an independent third party who helps them to explore settlement options and possibilities. Conciliation at the Ministry may be considered to be compulsory conciliation, since it is only where the Minister is satisfied that conciliation would serve no useful purpose or where either party fails to enter into conciliation in good faith, that he or she will send the matter directly to the Court. In practice all matters must go through the conciliation process at the Ministry of Labour. If the matter is not settled at the Ministry, the Minister issues an unresolved certificate by which the matter is referred to the Industrial Court for hearing and determination. Every effort is made to give parties an opportunity to resolve their dispute. The Special Tribunal The Special Tribunal is established by the Civil Service Act, Chap 23:01. The purpose of the Special Tribunal is to hear and determine disputes that arise in the Civil Service, Teaching Service, Prison, Fire and Police Services, the Supplemental Police Service and disputes concerning Central Bank employees. The composition of the Special Tribunal is provided for in the IRA. The Special Tribunal consists of the Chairman and two other of the Essential Services Division. While the Special Tribunal is not a Division of the Industrial Court it does exercise the powers and functions the Court possesses in respect of the essential services. The award of the Special Tribunal is final and binding on the parties. The Industrial Court Structure and jurisdiction of the Court The Industrial Court is divided into two divisions, the General Services Division and the Essential Services Division. The Essential Services Division exercises jurisdiction over the essential services which are listed in the Second Schedule of the IRA as the Electricity Service, Water and Sewerage Services, External Communications, Fire Service, Health Services, Hospital Services, Sanitation Services, Public School Bus Service and Civil aviation

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services. The General Services Division has jurisdiction over all services that are not essential services, meaning that this Division deals with all labour disputes in the private sector. The President of the Industrial Court is the Chairman of the Division of which he or she is a member. He or she must possess the qualifications required to sit as a Judge of the Supreme Court. The Vice President must be an attorney at law of not less than ten years standing, while the other may be industrial relations practitioners, trade unionists, economists, ants or attorneys at law of not less than five years standing. The Court possesses a mix of expertise and so its approach to matters is not strictly legal. The Court takes an all round approach to matters using its knowledge of industrial policies and practices. Powers of the Industrial Court The Industrial Court is deemed to be a superior court of record, possessing all powers inherent in such a court. The Court's jurisdiction and powers are set out in the IRA. First and foremost the Court may hear and determine disputes, making such award or order as it deems fair and just. The Court is not bound by the law of evidence as it applies in the Supreme Court. The Court has the power to remit a dispute to the parties or the Minister of Labour with a view towards settlement. It may act as conciliator to the parties, with their consent. It has the power of contempt, and may dismiss matters which are trivial or contrary to the public interest. Among the remedies the Court may grant, it has a statutory power to grant reinstatement or re-employment to a dismissed worker. The Court may not however make an order for costs, except for exceptional reasons. A right of appeal lies in the Court of Appeal from a decision of the Industrial Court and may be exercised by any party to a dispute, once the appeal is brought on a point of law. Strikes and Lockouts Strike regulation Industrial action is strictly regulated by the IRA. Industrial action by way of strike or lockout may only be taken in respect of unresolved interest disputes, and the IRA provides that only a recognized majority union may take strike action. An employer may not take lockout action against workers who are not represented by a recognized majority union. Where either the employer or the recognized majority union intends to take such action they must give notice to the other party and to the Minister of Labour. Strike or lockout action may only be taken in respect of unresolved disputes, which means that the Minister of Labour would have had the opportunity to instigate or encourage conciliation at the Ministry under the disputes procedure in the IRA. No strike or lockout action may be taken after parties

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have requested the Minister to refer the dispute to the Industrial Court for determination. The IRA protects employees by preserving their contracts of employment where strike or lockout action is taken in conformity with the IRA. Employers are under no obligation to pay striking employees. Unlawful strikes and lock outs Where an employer takes lockout action contrary to the provisions of the IRA he or she is liable to a fine of $20,000 and to pay wages to the worker for the period of the lockout. Where a union breaches the IRA it is liable to a fine of $10,000 and may have its certificate of recognition cancelled. An employer has the option of treating the contract of a worker who participates in illegal strike action as terminated. The worker through his or her union however may apply to the Industrial Court to have the dismissal set aside. The Industrial Court may issue a stop order on application by the Minister, prohibiting industrial action by either a recognized majority union or employer where such action poses a threat to the national interest. Persons employed in the essential services are prohibited from taking strike action. Unresolved disputes involving these workers are referred by the Minister of Labour to the Industrial Court for settlement. of the Defence Force, the Civil, Prison, Fire and Teaching Services and Central Bank employees are also prohibited from taking strike action. Should any of these prohibited employees breach the IRA they are subject to fine and imprisonment. Bibliography Bindimattie Mahabir: Flexibilisation of the Workforce for Competitive Advantage, Possibilities and Limitations of Flexibilisation of the Workforce in the Context of Trinidad and Tobago, The Forum, a Quarterly Publication of the Ministry of Labour, June 1997. Roop L. Chaudhary: Studies in Caribbean Labour Relations Law. 2 nd ed., Coles Printery Limited, 1984. Sahadeo Basdeo: Labour Organisation and Labour Reform inTrinidad 19191939, Institute of Social and Economic Research, University of the West Indies, St. Augustine, Trinidad. Zin Henry: Labour Relations and Industrial Conflict in Commonwealth Caribbean Countries, Columbus Publishers Ltd. Trinidad, 1972. Lennox Marcelle: Changing Patterns of Employment in Trinidad and Tobago and the Legal Implications, The Forum, a Quarterly Publication of the Ministry of Labour, June 1997.

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LECTURE 5 : SUBSTANTIVE PRINCIPLES AND PRACTICES OF GOOD INDUSTRIAL RELATIONS 1.0 Performance Management Management of Employee Performance Policy: Managers implement the department's performance management system to help employees meet the full requirements of their positions. Purpose: To help managers be able for the organization's results by effectively guiding and developing employees. Description: Both managers and employees participate in the four phases of the Performance Management System: 1. Planning: The position duties are reviewed to ensure alignment with organizational objectives are recorded in an updated position description. The manager communicates performance expectations in writing and through discussion. 2. Performance Coaching: Managers provide on-going coaching and guidance to employees. Managers review the desired results and standards every four months to ensure they remain valid. Managers remove barriers to performance and take corrective action using a development plan, if required. 3. Performance Results: The manager and the employee compare the actual results obtained by the employee over the established time period to the expected results and performance standards for each position responsibility. Variances are identified. The manager records the findings objectively and concisely and the employee signs the review document with comments if desired. Performance standards and objectives may be revised if necessary. 4. Development Planning: The manager and the employee prepare a development plan to address gaps between actual and expected performance and to capitalize on the employee's strengths. Responsibilities: Employees are responsible for performing work to standard. Managers are responsible for: • • •

conducting annual formal performance reviews conducting interim performance reviews as required updating position descriptions annually

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•

•

periodic performance reviews during the probationary period, with a formal performance review on the second last month of the probationary period maintaining confidentiality of performance information and distributing signed copies as follows: o original to Human Resources to be attached to employee's personnel file o copy to employee o copy to manager's file

2.0 Contract Labour The Company reserves the right to outsource labour on a project basis for work that it deems not to be of central sensitivity or related the main operation of the company. 3.0 Absenteeism Purpose: To establish the requirement that each employee work the hours scheduled for his position as a normal condition of work. Policy: An employee is responsible for notifying his supervisor of his absence each day of the absence and advising when he will report back to work. Unexcused absences and excessive excused absences are cause for progressive corrective action and may result in termination. The Company also reserves the right to terminate any employee who is absent for two (2) consecutive working days without notification.

1. Guidelines: An employee is considered absent if he or she is not present for work as scheduled, regardless of cause. 2. Employees will not be allowed to apply paid absence benefits to unexcused absences. 3. Absences resulting from jury duty, approved participation in professional affairs and military leave are exceptions to this policy. 4. Departments are advised to develop and communicate to employees departmental guidelines which indicate both the needs of the department and the importance of timely and regular attendance and define excessive absenteeism and tardiness. 5. Supervisors are to give special attention to absence patterns such as: 1. Absences on scheduled weekends, Saturday, Sunday, or both; 2. Absence the day before and/or the day after a scheduled holiday or day off (Holiday pay may be withheld in such cases); 3. Absence the day after payday; 4. Calling in sick as rapidly as sick time is accrued, especially if used one day at a time; 5. Coincidence of absence with desirable days off. 6. Departmental absenteeism guidelines and a call-in procedure should be written and communicated to all employees. The call-in procedure

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should establish when and whom employees should call if they are going to be absent. 4.0 Grooming The employee shall expressly or implicitly, have a right to choose a particular style of dress or hair, however it is also acknowledged that this right of selfexpression and individuality may be necessarily limited by the nature of the organization or a particular job. The Company has a right to set dress and grooming standards for employees. However, any such dress and grooming policy, or one must be applied consistently and fairly and must not amount to discrimination on the basis of ethnicity, gender, or religion. Any dress and grooming policy allow exceptions for employees with legitimate religions, ethnic, or health reasons for non-compliance except where such noncompliance will be inimical to the best interests of the organization. 5.0 Promotions Policy It is the policy of [COMPANY], wherever possible, to fill vacancies with qualified employees from within [COMPANY]. Promotion to all positions is based on, among other things, individual ability, efficiency, qualifications, performance, good attendance and punctuality, educational background and length of service. 6.0 Religious Expression In The Work Place Policy The Company will permit personal religious expression by its employees to the greatest extent possible. They will not discriminate against employees on the basis of religion, require religious participation or nonparticipation as a condition of employment, or permit religious harassment. Managers and supervisors must treat all employees with the same respect and consideration, regardless of their religion (or lack thereof). a. Religious Expression. (1) The Company will not restrict personal religious expression by employees in the workplace except where the employee's interest in the expression intrudes upon the legitimate rights of other employees or creates the appearance, of a company endorsement of the religion. (2) The Company may regulate the time, place and manner of all employee speech, provided it does not discriminate on the basis of content or viewpoint. Agencies are not required, however, to permit employees to use work time to pursue religious or ideological agendas.

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(3) Expression in Private Work Areas. Employees should be permitted to engage in private religious expression in personal work areas not regularly open to the public or other employees. This is to the same extent that they may engage in nonreligious private expressions, subject to reasonable content and viewpoint. This religious expression must be permitted as long as it does not interfere with the agency's carrying out of work responsibilities. (4) Expression Among Fellow Employees. Employees can be permitted to engage in religious expression with fellow employees subject to reasonable and content-neutral standards and restriction. This expression should not be restricted as long as it does not interfere with the workplace disruption and efficiency. Employees may not display religious messages on items that convey any governmental endorsement of religion or suppression of another group. (5) Expression Directed at Fellow Employees. Employees are permitted to engage in religious expression directed at fellow employees, and may even attempt to persuade fellow employees of the correctness of their religious views. Some religions encourage adherents to spread the faith at every opportunity, a duty that can encom the adherent's workplace. They are entitled to do this as long as a reasonable observer would not interpret the expression as an official Company endorsement of the religion and it does not interfere with workplace efficiency. Employees must refrain from such expressions when a fellow employee asks that it stop or otherwise demonstrates that it is unwelcome. (6) Expression in Areas Accessible to the Public. When the public has access to the workplace, all employees must be sensitive the principle that the religious expression does not create the reasonable impression that the Company is sponsoring, endorsing, or inhibiting religion generally, or favoring or disfavoring a particular religion. Displaying of religious art and literature in personal work areas subject to the public can be displayed, so long as the viewing public would reasonably understand the religious expression to be that of

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the employee acting in their personal capacity, and not that of the Company. b. Religious Discrimination The Company shall not discriminate against employees on the basis of their religion, religious beliefs, or views concerning religion. (1) Discrimination in and Conditions. No employee may promote, refuse to promote, hire, refuse to hire, or otherwise favor or disfavor an employee or potential employee because of his or her religion, religious beliefs, or views concerning religion. (2) Coercion of Employees Participation or Nonparticipation in Religious Activities. A supervisor may not explicitly or implicitly insist that the employee participate in religious activities as a condition of continued employment, promotion, salary increases, preferred job assignments, or any other incidents of employment nor may a supervisor insist that an employee refrain from participating in religious activities outside the workplace, except where otherwise legal. A supervisor is free to express their views and engage in some kinds of speech about religion as long as it is understood it is his or her personal view. Because a supervisor has the power to hire, fire, or promote, employees may reasonably perceive their supervisor's religious expression as coercive even if not intended by such. Therefore, supervisors need to be careful of their expressions and that it is not perceived as coercion. (3) Hostile Work Environment and Harassment. The law against workplace discrimination protects employees from being subjected to a hostile environment or religious harassment, in the form of religiously discriminatory intimidation, or pervasive or severe religious ridicule or insult, whether by supervisors or fellow workers. Religious harassment based on hostile work environment will depend on the frequency or repetitiveness, as well as its severity. Employees should always be guided by general principles of civility and workplace efficiency. A hostile environment is not created by the bare expression of speech with which some employees might disagree.

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c. Accommodation of Religious Exercise The Company shall accommodate employees' exercise of their religion unless such accommodation would impose an undue hardship on the conduct of the Company's operations. The accommodation should be made unless it would cause an actual cost to the Company or to other employees or an actual disruption of work, or unless it is otherwise barred by law. If the Company's work rule imposes a substantial burden on a particular employee's exercise of religion, the Company must go further; the Company should grant the employee an exemption from the rule, unless the agency has a compelling interest in denying the exemption and there is no less restrictive means of furthering that interest. d. Establishment of Religion. Supervisors and employees must not engage in activities or expression that a reasonable observer would interpret as the Company’s endorsement or denigration of religion or a particular religion. 7.0 Harassment Harassment. Harassment is verbal or physical conduct that denigrates or shows hostility or aversion toward an individual because of that person's race, skin color, religion, gender, national origin, age, or disability. Harassment can also occur if conduct is directed toward a person's relatives, friends, or associates. Harassment does one or more of the following: • • •

has the purpose or effect of creating an intimidating, hostile, or offensive work environment has the purpose or effect of unreasonably interfering with an individual's work performance otherwise adversely affects an individual's employment opportunities

Harassing conduct includes: •

•

epithets, slurs, negative stereotyping or threatening, intimidating, or hostile acts that relate to race, color, religion, gender, national origin, age, or disability (including jokes or pranks that are hostile or demeaning with regard to race, color, religion, gender national origin, age, or disability) and written or graphic material that denigrates or shows hostility or aversion toward an individual or group because of race, color, religion, gender, national origin, age, or disability and that is displayed on walls, bulletin boards, or other locations or circulated in the workplace.

Sexual harassment is specifically prohibited because it is unlawful and against company policy. In addition, the Company is responsible for taking action against sexual harassing conduct. The Company will take action regardless of whether the specific acts complained of were sanctioned or

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specifically forbidden, and whether the Company knew, or should have known of their occurrence. Complaint procedures Employees who have complaints should report such conduct to the owner or other official. Allegations of harassment will be promptly investigated, giving due regard to the need for confidentiality. Disciplinary measures Any employee who engages in harassing behavior is subject to disciplinary measures up to, and including, termination. Protection against retaliation An employee has the legal right at any time to raise the issue of harassment without fear of reprisal. 8.0 Substance Abuse The Company s committed to providing a drug free environment. Not only can the use and/or abuse of drugs and alcohol jeopardize the health, safety and well-being of the individual and other co-workers, but it also results in absenteeism and productivity concerns, higher workers' compensation costs and health/disability s, and endangers the safety of the general public and invitees to our stores. Since our employees are our most valuable resources, and the safety of our employees and the public are important to us, we have developed and published this substance abuse policy to help us contribute to the solution of this very difficult health and social problem. Our policy is intended to accurately detect and deter the use and abuse of drugs and alcohol in our workplace, while respecting the dignity and privacy of all of our employees. It is the policy of the Company that the possession, sale or use of illegal drugs is not consistent with the Company's needs to operate in a safe and efficient fashion. For that reason, no employee of the company may use or posses unlawful drugs, i.e., any substance found on the list of controlled substances issued by the Food and Drug istration now or in the future, at any time. This policy also prohibits employees from such use that impairs his/her performance of work on the job, as well as prohibiting use while on Company business at any time, whether on the property or off. In addition, while this Company has no desire to intrude upon the private activities of its employees when they are away from Company property and not on Company time, involvement with unlawful drugs, including their manufacture or distribution, constitutes a severe breach of accepted conduct and is also prohibited.

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Employees are also prohibited from bringing prescription drugs on Company property, unless they have been prescribed by a licensed physician, such drugs can only be utilized by employees receiving such prescriptions in the manner, combination and quantity prescribed. In instances where any employee holds a position which this Company considers to be safety sensitive, we must be notified by the employee that the use of prescription drugs on the job will not impair the individual's working abilities by a suitable statement from the prescribing physician. Employees are also prohibited from using alcoholic beverages during working hours or within six (6) hours prior to reporting for duty, and/or being under the influence of alcohol while at work or on Company time. Nor may any employee use or possess alcohol on Company property in any unauthorized manner, or bring alcohol unto the Company's property for the purpose of such use. Any employee who is convicted of a crime involving the violation of any Federal or non-federal statute prohibiting the manufacture, sale, distribution, possession or use of any controlled substance in the work place must notify the Company within five (5) days after such conviction. Violation of any portion of this policy will subject the employee to appropriate disciplinary measures, up to and including termination. All employees in positions considered by the Company to be safety sensitive shall be subject to urine testing prior to employment or job assignment, following an accident on Company property or on Company business, or prior to return to duty if they have failed a previous test. Moreover, any employee whose conduct, appearance or behavior may tend to suggest that the individual is impaired or otherwise not fit to perform the tasks of his or her job and is under the influence of drugs or alcohol, will be required to submit to urine testing. If any of the above mentioned testing conditions are met, a confirmed positive test will lead to discipline, up to and including termination, or a requirement that the individual undergo and successfully complete a rehabilitation or treatment/counselling program, or both. Employees who have failed a previous test may be subject to unannounced follow-up testing for a period of one (1) year after their return to duty. Refusal to submit to urine testing, or adulteration of a specimen for testing, shall subject the employee to termination, or in the case of an applicant, to elimination from consideration for the position for which the individual has applied. The Company's decision to test employees and job applicants has been made to assist the Company in advancing the objectives of this Substance Abuse Policy. All testing will be conducted in compliance with the guidelines adopted by the National Institute of Drug Abuse, except that the Company may test for alcohol and additional controlled substances, and the Company may decide not to use the service of a Medical Review Officer (MRO). All testing will be conducted using accepted professional and technical standards and in a manner which respects and recognizes the dignity and privacy of our employees. The Company will endeavor, to the greatest extent 87

possible, to protect the confidentiality of information regarding individual test results. The Company will not discriminate against any employee who is covered by the Americans with Disabilities Act. Of equal importance, the Company has established a drug awareness program for its employees, which will include education and training about the dangers of drugs and alcohol in the workplace, the elements of this policy statement and the penalties it contains, and available counselling, treatment and rehabilitation that an employee may receive. The Company will provide information on appropriate assistance programs and "wellness" clinics to any employee who feels he or she may have a problem with chemical dependency or the use of alcohol. The company encourages its employees to participate in such assistance programs, treatment facilities, or other similar programs, and notes that participation in an appropriate assistance program may be covered, in part, under the Company existing health/disability benefits. However, the Company will offer one-time additional financial assistance, up to a full reimbursement, to an employee who voluntarily seeks assistance in a accredited program, only where it is the individual's first treatment, and only before any positive test has occurred. Employees who are directed or recommended, by a licensed physician, to be itted to an accredited in-patient drug/alcohol treatment program may also be eligible for salary continuation benefits, on a one-time basis, for a maximum of sixty (60) days. The Company will continue to make payments for the employee's health and or disability insurance plan(s). The Company will treat the details of any employee's participation in an assistance program confidentially, to the greatest extent possible, to ensure that the employee's privacy is respected. The elements of this Substance Abuse Policy are intended to achieve the overall goal of fostering a drug-free workplace and a healthy, safe environment for our employees. Although this policy has been carefully written to address all of the concerns in this sensitive area, the Company reserves the right to modify or amend it. Employees will be notified if any changes are made. A copy of this Substance Abuse Policy will be provided to every person hired by the Company, to any person offered conditional employment, and upon request, to any job applicant. Its receipt and acknowledgment by each employee or conditional employee is required on the Company's Informed Consent and Release Form. An employee who has questions or concerns about this policy should the following individual, who is serving as the Company's liaison for this Purpose: 9.0 Health, Safety and Environment Policy The top-level management of Ernie Exploration and Development Company Limited acknowledges that the nature of it operations can cause harm to human health, life, environment and property. Our

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goal is zero harm to human health, life, environment and property and as a responsible corporate citizen, we at EED aim to:  Comply fully with all legal and regulatory requirements and meet or exceed HSE expectations wherever we operate worldwide  Ensure that personnel demonstrate commitment and leadership in health, safety and environmental protection, performance and compliance. Managers will display and expect openness in decisions which impact on safe and environmentally responsible operations and demonstrate judgment based on safety as a first priority.  Provide HSE training and awareness to all company personnel and contractors, nurturing a culture of responsibility and ability, as it is essential that they possess the experience, knowledge, skills, and abilities that are necessary to discharge their responsibilities competently  Provide personnel with a safe place to work and establish clear and unambiguous lines of authority and responsibility for ensuring the establishment and maintenance of safety at all organizational levels of EED and with its contractors by providing continuous and training for line management  Constantly assess that all processes are working efficiently. While all personnel and contractors are responsible for ensuring the success of the HSE system, line management is directly responsible for the protection of the workers, the public and the environment  Minimize risk by instituting istrative and engineering controls to prevent and mitigate hazards as pertains to EED’s operations  Ensure that all contractors operate at our standards, as their operations can have an impact not only EED’s finances but also our reputation. We will assure that the management systems of all our contractors are compatible with that of EED. Further, they shall be required to meet or exceed all applicable legislation, regulations and industry standards.  Maintain public confidence in the integrity of our operations by openly reporting our performance and consulting with people outside the company to improve our understanding of external and internal HSE issues associated with our operations  Manage HSE matters as any other critical business activity  Maintain a commitment to incident and pollution prevention, waste minimization and to continual improvement in HSE performance

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10.0 Conflict of Interest Policy All employees of the company make a full-time commitment to the company. They must arrange their outside obligations, financial interests, and activities so as not to interfere with their primary obligation and overriding commitment to the company. Employees’ commitment includes, but is not limited to, regular and punctual attendance at work, and prompt and professional completion of all duties and assignments. The company expects employees to acknowledge all conflicts with their primary obligation, to disclose them in writing upon realization of the conflict, and to review them annually with the appropriate supervisor. The company discourages external activities that negatively impacts on the ability of employees to effectively and efficiently perform their duties. Employees who are employed part-time commonly have major obligations and commitments not only to the company, but also to one or more outside agencies. The resulting conflicts of commitment are frequently troubling or severe. Accordingly, part-time employees are expected to disclose their conflicts to the appropriate supervisor in writing and exercise special care in fulfilling their multiple obligations. 11.0 Use of Internet Policy The Company Internet Use Policy This policy applies to all employees when they are using computers or Internet connections supplied by the Company, whether or not during work hours, and whether or not from the Company’s premises. 1. No Privacy. The Company provides computers and Internet connections ("facilities") to further its business interests. You should use those facilities only for the Company business. The Company has the right, but not the duty, to monitor all communications and s that through its facilities, at its sole discretion. Any information retained on the Company’s facilities may be disclosed to outside parties or to law enforcement authorities. 2. Improper Activities. You may not disseminate or knowingly receive harassing, sexually explicit, threatening or illegal information by use of the Company’s facilities, including offensive jokes or cartoons. You may not use the Company’s facilities for personal or commercial ments, solicitations or promotions. 3. Intellectual Property of Others. You may not or use material from the Internet or elsewhere in violation of software licenses, or the copyright trademark and patent laws. You may not install or use any software

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obtained over the Internet without written permission from the Systems . 4. Report Violations. If you observe or learn about a violation of this policy, you must report it immediately to your supervisor, or to the Systems . 5. Acknowledgment. By g on the line below, I acknowledge that I have read, understand and agree to comply with the foregoing Internet Use Policy. I understand that, if I do not comply with the Internet Use Policy, I may be subject to discipline, including loss of access to the Company’s ABC’s facilities and discharge from employment. I may also be subject to legal action against me for damages or indemnification. 12.0 Electronic Mail Policy E-mail resembles speech in its speed and lack of formality. Unlike speech, email leaves a record that is often retrievable even after the sender and recipient delete it. If you would not want your mother to read your message on the front page of the Express, do not send it by e-mail. The Company strongly discourages storage of large numbers of e-mail messages. As a general rule, you should promptly delete each e-mail message that you receive after you have read it. If you need to keep a message for longer than a week, save it to your hard disk, or print it out and save the paper copy. The Systems will regularly purge all messages in employee inboxes and all copies of sent messages that are older than 30 days. The Company maintains a voice-mail system and an E-mail system to assist in the conduct of business within the Company. These systems, including the equipment and the data stored in the system, are and remain at all times the property of the Company. As such, all messages created, sent, received or stored in the system are and remain the property of the Company. Messages should be limited to the conduct of business at the Company. Voice-mail and electronic-mail may not be used for the conduct of personal business. The Company reserves the right to retrieve and review any message composed, sent or received. Please note that even when a message is deleted or erased, it is still possible to recreate the message; therefore, ultimate privacy of messages cannot be ensured to anyone. While voice-mail and electronic- mail may accommodate the use of s for security, confidentiality cannot be guaranteed. Messages may be reviewed by someone other than the intended recipient. Moreover, all s must be made known to the Company. The reason for this is simple: your system may need to be accessed by the Company when you are absent.

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Messages may not contain content that may reasonably be considered offensive or disruptive to any employee. Offensive content would include, but would not be limited to, sexual comments or images, racial slurs, genderspecific comments or any comments that would offend someone on the basis of his or her age, sexual orientation, religious or political beliefs, national origin, or disability. Employees learning of any misuse of the voice-mail or electronic-mail system or violations of this policy shall notify the Director of Human Resources immediately. 13.0 AIDS Policy Introduction The following outlines [your company’s name]’s policy and procedures for interacting with employees who have been medically diagnosed with or who are suspected of having the AIDS (Acquired Immune Deficiency Syndrome) virus. Purpose The purpose of the AIDS policy is to reassure employees that AIDS is not spread through casual during normal work practices and to reduce unrealistic fears about contracting an AIDS virus-related condition. This policy also protects the legal right to work of employees who are diagnosed with an AIDS virus-related condition and provides guidelines for situations where infection with the AIDS virus is suspected. Our policy is to encourage sensitivity to and understanding for employees affected with a condition of the AIDS virus. General policy We are committed to maintaining a healthy work environment by protecting the physical and emotional health and well-being of all employees in the workplace. We also have a continuing commitment to provide employment for people with physical disabilities who are able to work. This AIDS policy is a direct outgrowth of those commitments. It provides guidelines for situations when a question as to an AIDS virus-related condition arises. There are three major points: •

Employees who are diagnosed with an AIDS virus-related condition may continue to work if they are deemed medically able to work and can meet acceptable performance standards. We will provide reasonable performance standards and reasonable accommodation if necessary to enable these employees to continue working.

•

We provide AIDS education for all employees to help them understand how the AIDS virus is spread and to reduce unrealistic fears of contracting an AIDS virus-related condition.

•

The term “AIDS virus-related conditions” refers to the following four medically diagnosed conditions: 1. presence of the AIDS antibody without symptoms of AIDS

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2. presence of an AIDS-Related Complex (ARC) 3. AIDS 4. central nervous system infection Medical overview Medical experts on AIDS virus-related conditions have informed us that there is no known risk of AIDS transmission between an affected employee and other employees through either casual or close that occurs during normal work activities. An AIDS virus-related condition is not transmitted by breathing the same air, using the same lavatories, touching a common piece of paper, or using the same telephone. Transmission of the virus through oral secretions or tears is not a recognized risk according to medical authorities. Additionally, the virus is very fragile and has been found to be transmitted only through intimate exchange of bodily fluids (for example, blood or blood-contaminated tissue fluids such as semen or vaginal fluid). The AIDS virus attacks the immune system, causing a breakdown in a person’s normal protection against infection. This leaves the body vulnerable to life-threatening illnesses. In addition, the virus by itself can affect the nervous system. Individuals of all sexual preferences are at risk of contracting an AIDS virusrelated condition. According to medical experts, the AIDS virus is transmitted in the following ways: sexual through transmission of semen or vaginal fluids; intravenous drug istration with contaminated needles; istration of contaminated blood or blood products; and age of the virus from infected mothers to their fetus or newborn. However, there is no evidence to suggest that pregnant women are particularly susceptible to any AIDS virus-related illness or condition. Recent medical evidence suggests that an AIDS virus-related condition can have an incubation period of several weeks, months or years before symptoms appear. Medical findings indicate that a person who has a positive antibody test will not necessarily develop an AIDS virus-related condition. The presence of the AIDS antibody is a sign of infection, not immunity, unfortunately. As is true for any person with a life-threatening illness, a person diagnosed with an AIDS virus-related condition deserves and requires comion and understanding. While that person is attempting to cope with his or her own vulnerability and fears, the and understanding of friends and colleagues can be particularly valuable. Some people have fears about contracting AIDS based on misinformation or lack of knowledge about how AIDS is spread. Education providing accurate medical information can best alleviate fears of contracting an AIDS condition. Supervisor’s responsibilities The physical and emotional health and well-being of all employees must be protected, and reasonable accommodation for the medically impaired employee with an AIDS virus-related condition must be provided, as long as the employee is able to meet acceptable performance standards. To ensure these goals are met, the following guidelines are to be followed: 93

•

Any employee diagnosed with an AIDS condition is entitled, as is any other employee, to confidentiality of their medical condition and medical records.

•

If an employee with an AIDS condition requests job accommodation for his/her medical condition, the employee must obtain a written medical opinion that he/she (a) is medically able to work and (b) needs reasonable job accommodation in order to maintain employment.

•

If it is deemed medically necessary, based upon current physical impairment, [Company name] and the employee’s supervisor will work to bring about any reasonable job modification or job transfer of the employee with a diagnosed condition of AIDS.

If a healthy employee refuses to work with an employee who is diagnosed with an AIDS condition and is medically approved as able to work, job transfer or other work accommodation for the healthy employee will only occur when medically indicated by written order of his/her physician. The medical order must be a signed medical statement requesting this job change. In the absence of a medical order, normal transfer procedures will be followed 14.0 Gender Orientation Policy It is the expressed policy of the Company to provide equal employment opportunity to all employees and applicants for employment without regard to age, race, sex, gender identity*, color, religion, national origin, sexual orientation, citizenship status, disability or veteran status. The Company takes affirmative action to ensure that this policy is practiced in all personnel actions and conditions of employment, including but not limited to layoff, discipline, compensation, benefits and training. American Airlines maintains a workplace which is free from discrimination and which recognizes the individual dignity of each employee or applicant. Sexual harassment or any other kind of harassment or intimidation will not be tolerated. Further, employees and applicants may file a complaint, furnish information, or assist in any manner in an investigation to a breach of this policy without fear of retaliation. All employees must be aware of and the company's commitment to the principles of equal employment opportunity. *Gender identity applies only to those individuals who, with the documented of medical or psychological professionals and in accordance with recognized Informed Consent Model of Care of the Harry S. Benjamin Standards of Care, are changing or have changed their physical characteristics to facilitate personal and public redefinition of their sex as opposite that which they were assigned at birth. The Company reserves the right to require compliance with all appearance and grooming standards. The Company is committed to the following principles: Employment decisions should not be based on race, sex, sexual orientation, age, religion, or other protected characteristics. People should not be treated differently because of 94

personal characteristics that are not related to their ability to do a job, such as their race, sex, gender, gender identity, sexual orientation, age, religion, or disabilities. With few exceptions, individuals must be hired, promoted, disciplined, or fired because of their job-related skills and performance. People with similar skills and performance records should be treated equally. 1. Occupational fraud and abuses fall into four main categories: theft, the misappropriation or misuse of assets for personal benefit; • bribery and corruption; • false ing and/or making fraudulent statements with a view to personal gain or gain for another: for example falsely claiming overtime, travel and subsistence, sick leave or special leave (with or without pay); • externally perpetrated fraud against an organisation. •

15.0 Fraud and Misconduct The Company is committed to preventing fraud and corruption from occurring and to developing an anti-fraud culture. To achieve this the Company will comply with the following requirements of good ing practices: • • • • •

•

develop and maintain effective controls to prevent fraud; ensure that if fraud occurs a vigorous and prompt investigation takes place; take appropriate disciplinary and legal action in all cases, where justified; review systems and procedures to prevent similar frauds; investigate whether there has been a failure in supervision and take appropriate disciplinary action where supervisory failures occurred; and record and report all discovered cases of fraud.

The following policies and principles apply in the Company: • •

• •

Employees must have, and be seen to have, the highest standards of honesty, propriety and integrity in the exercise of their duties. The Company will not tolerate fraud, impropriety or dishonesty and will investigate all instances of suspected fraud, impropriety, or dishonest conduct by the Company staff or external organisations (contractor or client). The Company staff must not defraud the Company, other the Company staff, the Company clients or the Company contractors, in any way. The Company will take action – including dismissal and/or criminal prosecution - against any member of staff defrauding (or attempting to

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•

• • •

defraud) the Company, other Company staff, the Company clients or contractors. The Company will take action - including criminal prosecution - against external organisations defrauding (or attempting to defraud) the Company, the Company staff in the course of their work, the Company clients or contractors. The Company will co-operate fully with an external investigating body. The Company will always seek to recover funds lost through fraud. All frauds will be reported to Internal Audit.

Action to be taken in the event of discovery or suspicion of fraud The Company has established arrangements for staff to report any concerns they may have without fear of prejudice or harassment. Concerns which should be reported include, but are not limited to, staff committing or attempting to commit: • • • • • • • •

any dishonest or fraudulent act; forgery or alteration of documents or s; misappropriation of funds, supplies or other assets; impropriety in the handling or reporting of money or financial transactions; profiting from an official position; disclosure of official activities or information for advantage; accepting or seeking value from third parties by virtue of official position or duties; and theft or misuse of property, facilities or services.

External organisations’ actions which should be reported include: • • •

being offered a bribe or inducement by a supplier; receiving fraudulent (rather than erroneous) invoices from a supplier; reported allegations of corruption or deception by a supplier.

The Company has established and maintains a Fraud Response Plan, which sets out guidance to senior staff in the event of fraud being discovered or suspected. Under the Plan: • •

•

incidents will be logged in a Fraud , which contains details of allegations, investigations and conclusions; frauds and allegations of fraud will be investigated by an appointed suitably qualified senior member of staff independent of the area under suspicion; progress on investigations will be reported to the Audit Committee as a standing item on the agenda.

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Misconduct - Overview The Company has a responsibility to ensure that staff maintain high standards of conduct and performance. It is incumbent on the principal/manager/designated officer to act where a complaint, unsatisfactory performance or misconduct involving a staff member is observed or brought to his or her attention, whether or not a formal complaint has been lodged. In these circumstances the principal or manager will need to make an assessment on the appropriate course of action to resolve the matter. In determining the appropriate action the principal, subject to satisfying any legal or policy requirements, should use his or her professional judgement to decide whether the matter should be dealt with as a complaint, unsatisfactory performance or serious misconduct. In a case of serious misconduct involving a staff member, the Conduct and Ethics Branch must be ed to assess the nature and seriousness of the alleged misconduct and provide advice on the most appropriate course of action to pursue, including whether the staff member should remain on duty pending the outcome of an investigation. The Possible Nature of Serious Misconduct Allegations Serious misconduct is most likely to relate to, but is not limited to, allegations of: sexual offences criminal charges other serious incidents including:  harassment of other staff , students or the public  serious negligence  behaviour which endangers others  striking another employee or member of the public, or otherwise inflicting pain  refusal to obey a lawful instruction  alcohol or drug misuse.  contravention of laws and regulations  committing any act of misconduct  conducting oneself in a disgraceful, improper or unbecoming manner in an official capacity or otherwise  failure to fulfil duties.   

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The Company's Conduct and Ethics Department is available to provide advice and assistance on these matters. Where the matter involves alleged serious misconduct the Conduct and Ethics Department must be ed for advice regarding the appropriate course of action.

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LECTURE 6 - PROCEDURAL PRINCIPLES OF PRACTICES OF GOOD INDUSTRIAL RELATIONS 1.0 PRELIMINARY INVESTIGATIONS Suspension  With Full Pay  Half Pay  No Pay Is there a need to observe the principles of natural justice when a person is being suspended with full pay during an initial inquiry? In the Application of Rodwell Murray - HCA No. 1973 of 1992 (TT) Mr. Justice Bissoondath Ramlogan Mr. Ramesh Maharaj submitted further that the applicant ought to have been given a hearing before he was suspended….[P17/18] Mr. Thorne further submitted that he was suspended on full pay and therefore the suspension is not a penalty and he had the right to be heard later. In my view financial loss may be of little consequences when weighed against embarrassment, frustration and mental agony which a suspended person may have to undergo. It is true that the public interest may in most circumstances be best served by the suspension of the Officer without a hearing because he has an opportunity to be heard at a later stage. The public interest and that of the Police Service may however be far better served if the Office is given a hearing in circumstances like these. The suspension of Officer without a hearing, upon tenuous evidence, may be inimical to the public interest and even in violent collision with it. I am of the opinion that the Officer ought to have been given a hearing and the failure to do so in these circumstances was unfair. This does not necessarily mean a full-scale hearing. In the Application of Andy Allan - HCA No. 1617 of 1990 (TT) Before the Honourable Mr. Justice I. Blackman [P14] I think I should make it quite clear at the outset that it is not, in my view, an unfailing rule that because an aggrieved person will at some later stage be given an opportunity to be heard that he should not be heard before that later stage is reached. But I think it is one of the factors to be considered in deciding whether at the earlier stage he should be heard. I think that it will depend on the circumstances of each case…[P21/22] It seems to me that the purpose of the Regulation, and in this instance Regulation 79, is to provide for a holding operation prior to the officer being given a hearing. The suspension is done in the interest of the service and it must be done forthwith. It is not meant as a punishment, nor does it

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have that effect as the officer suffers no loss. The fact that he is suspended on full pay s this conclusion, that is, that the suspension is merely a holding operation. The procedure which follows Regulation 79 and the tenor of the Regulation also indicate, in my view, that natural justice in the sense of a hearing does not arise at that stage and therefore the rules with regard to natural justice were not breached when the applicant was not given an opportunity to be heard. It must be borne in mind that fairness does not necessarily require a plurality of hearings or representations and counter-representations (see Furness v Whangarei High Schools Bd 1973 A.C. 681 (E-F). There is therefore no ground, in my view, for supplementing the procedure under Regulation 79… 2.0 DISCIPLINARY PROCEEDINGS The principle of “natural justice” is recognised at law and is given constitutional protection amounting to a constitutional right. The effect of this protection is to guarantee the basic fairness of procedures. It is imported into the employment relationship, by implication or explicitly (where there are certain agreed procedures laid down between the employee, employer/management and the trade union). In simple , the principle means that the employer/management must apply fair procedures and act reasonably at all times, particularly with regard to a disciplinary investigation concerning the employee. This means that if a case has potential disciplinary consequences, including and up to dismissal, the employer must do the following:  Right to Know of Investigation  Present the full and all allegations whether oral/written against the employee.  Afford the employee a right to representation if they so wish.  Giving the employee sufficient time to prepare for any hearing/meeting.  Allow the employee to state his/her case  Right to Respond  Hear the case being made by the employee.  Allowing him/her to call witnesses on their behalf and the right to be shown any relevant documentation or written accusations that the management have in their possession.  Only form a judgment after all the facts disclosed have been considered.  Unbiased Tribunal  Right to Reasons Failure by management to grasp the importance of procedural fairness in their handling of disciplinary issues can lead to the accusation that any subsequent decision is seriously defective and open to challenge either by way of appeal or through the Industrial Court or Civil Courts. These principles are more vital where the stakes are higher, for example, where dismissal is a

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potential outcome or where a final written warning is involved. Another simple way to consider the issue is to ask yourself if it were you being subjected to a disciplinary investigation by your employer, what rights would you like to see yourself exercise. In other words, put into practice the familiar maxim, “Do unto others as you would have them do unto you.” While the principles of “natural justice” are important, particularly at the end of a process such as dismissal, they are less critical in minor or trivial matters such as the first incidence of poor time keeping or the first incidence of absenteeism. These matters should technically be dealt with by way of counseling. When management is moving towards any class of warning, they are well advised to follow all the principles of “natural justice” as outlined above. Applying these principles protect the management in the final analysis as it ensures the decision reached was the right and fair one in the circumstances and, therefore, it is much less likely to be challenged successfully in any arena – be it in the Industrial Court or to the Civil Courts. In the Application of Maniram Maharaj – HCA No. 1428 of 1999 (TT) Before the Honourable Mr. Justice Gregory Smith [P26] I agreed with the Respondent’s submission that where, as here, there were no specified or established procedures to be followed in the holding of an inquiry, the requirements of natural justice varied from case to case. As was stated in Wiseman v Borneman (1969) 3 All E.R. 275 at 277-278 and repeated by Mc Pherson J in R v Monopolies and Mergers Commission Ex parte Matthew Brown pic (1987) 1 All E.R. 463 at 467 e – g. “As Lord Reid said in Wiseman v Borneman (1969) 3 All E.R. 257 at 277 – 278. “Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances, and I would be sorry to see this fundamental general principle degenerate into a series of hard-and-fast rules… Even where the decision is to be reached by a body acting judicially there must be a balance between the need for expedition and the need to give full opportunity to the defendant to see the material against him.” “We often speak of the rules of natural justice. But there is nothing rigid or mechanical about them… The principles and procedures are to be applied which, in any particular set of circumstances are right and just and fair. Natural justice, it has been said, is only ‘fair play action.’ The question as Lord Morris posed it later, is – “whether in the particular circumstances of a case a tribunal acted unfairly so that it could be said that their procedure did not match with what justice demanded?”… In the application of Doekie Singh – HCA No. 1300 of 1981 (TT)

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Before the Honourable Mr. Justice Lennox Deyalsingh [P7] Although it was merely an “application” case, the Court held that the rules of natural justice were applicable as a refusal of the certificate of fitness would be a slur on the applicant. In the “forfeiture” category, the law is now well-established and again I quote from the judgement of Mugarry J. (supra): “It seems plain that there is a substantial difference between the forfeiture cases and the application cases. In the forfeiture cases there is a throat to take something away for some reasons; and in such cases, the right to an unbiased tribunal, the right to notice of the charges and the right to be heard in answer to the charges (which in Ridge v Baldwin (1963) 2 AER 66 at 114 Lord Hudson said were the three features of natural justice which stood out) are plainly apt…”… [P7] It is not in dispute that the Commissioner of Police gave no opportunity to the Plaintiff to meet the case against her…[P8/9] Next, does the reasons although belatedly given “cure the procedural wrong” as Mr. Beckles submits. I certainly do not think so – and for two reasons. As said before, the Plaintiff “contests”, albeit in part, the reasons advanced by the first Defendant. She must therefore, in justice, be given an opportunity to persuade the first Defendant that he is wrong. Secondly, to accept the submission would be to violate two principles fundamental to our law, principles enshrined in the phrases “audi alteram partem” and “justice must not only be done but must be seen to be done”. These principles find place among the foundation stones upon which the edifice of justice stands and they must never lightly be ignore. ‘Justitia firmatur solium” (Justice strengthens the throne). It is upon such principles aforesaid that a country and its government stand firm. One last matter, I have considered whether the rules of natural justice should apply in firearm cases. Mr. Beckles did not make any such point and I think he would have, if there was merit in it. Suffice it to say that I take the view that the rules of natural justice should not be excluded only because firearms are the subject matter… IN THE APPLICATION OF THE CHIEF IMMIGRATION - CIVIL APPEAL NO. 7 OF 1994 (BRITISH VIRGIN ISLANDS) BEFORE: The Rt. Honourable Sir Vincent Floissac, Chief Justice The Honourable Dr. Nicolas J.O. Liverpool, Justice of Appeal The Honourable Mr. Satrohan Singh, Justice of Appeal [P9/10] According to the “audi alteram partem” rule, where any authority (person or body of persons) intends to exercise a constitutional, statutory or prerogative power and thereby to make a judicial, quasi-judicial or istrative decision or action which will adversely affect the status, rights, interests or legitimate expectations of any other person (the complainant), the authority is under a common law duty (and may also be under a constitutional or

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statutory duty) to observe certain formalities and the complainant has a correlative common law right (and may also have a correlative constitutional or statutory right) to the observance of those formalities before such a decision or action is made or taken. Those formalities may include notice to the complainant of the specific allegations made against him and a fair and reasonable opportunity for the complainant to answer or rebut those allegations and to make representations in regard to the intended decision or action. In the present case, the respondent may not have had any legal right to enter and remain in the Territory. But in the special circumstances of this case, he certainly had legitimate expectations that he would be granted permission to do so and that at least some of the formalities required by the “audi alteram partem” rule of natural justice would have been observed before any decision or action was made or taken by way of refusal of such permission… 3.0 DISCIPLINARY ACTIONS The steps in the disciplinary procedure will be progressive but some instances may warrant an acceleration through earlier stages. The various steps may include:        

An oral warning A written warning A final written warning Suspension with or without pay Transfer to another job, or section of the company Demotion Some other appropriate disciplinary action short of dismissal Dismissal

THE COMPLAINTS PROCESS William Iton Who owns the problem? IR, HR? HR vs IR. The person in charge of this department must display effective communication skills and be self-assured and confident to deal with HR problems. All business organizations, whether unionized or not, require some process which allows employees to express and seek to resolve dissatisfaction about any work-related issue. Management has a direct interest in ensuring that employees are not disgruntled; however, the grievance and dispute process are primarily an employee mechanism. In a unionized environment, the

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collective agreement will have a dispute resolution/grievance handling procedure as it will not be ed in the absence of this. Section 43 of the IR Act 43. (1) A collective agreement shall contain effective provisions concerning appropriate proceedings for avoiding and settling disputes… (2) In addition to the requirements of subsection (l), every collective agreement shall contain a provision for the settlement of all differences between the parties thereto arising out of the interpretation, application, istration or alleged violation thereof. (5) The following in any collective agreement are void (a) any provision that any benefits under the agreement are to apply only to of a particular union; (b) any clause excluding or limiting the application of the provision of this Act or the agreement; (c) any clause specifying that the employer must employ only of a particular union or must show any preference or favour regarding recruitment, offer of employment, retrenchment or termination of employment, only to of a particular union. The grievance/dispute process is initiated by the employee who is experiencing dissatisfaction. He takes the issue to his line manager and if the issue is not satisfactorily resolved at that level, it is taken to the department supervisor, then the HR/IR department and if it is still not resolved, it is taken to the CEO/GM. The effectiveness of this process should be judged by employee satisfaction with its operation. Differences between complaints, grievances and disputes These three differ primarily according to the manner and degree of formality used in the presentation of the employee’s dissatisfaction. Complaint – when employee dissatisfaction is expressed informally. This does not trigger the grievance handling and dispute resolution procedure. Complaints are informal and should be dealt with immediately. Because there is no formal manifestation of the problem, it is usually left unaddressed. They also tend to be individual. Grievance – when employee formally expresses complaint, usually in written form to line supervisor etc. This is the first trigger in the grievance handling and dispute resolution procedure. The grievance needs to be written for specificity and clarity. The scope of the grievance must be clearly defined so that the scope cannot balloon should it reach the Industrial Court. Grievance tend to be a group / class issue. Dispute – this is when the grievance is unresolved by management and the trade union becomes involved either through the shop steward or any full time official of the RMU. The involvement of an external party turns a grievance into a dispute. There are two types of disputes: rights and interest.

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Rights disputes – this deals with the interpretation of an existing condition, such as going outside of the contract, e.g. requesting employee to perform duties outside of the job description. Rights disputes go to the Industrial Court. Interests disputes – these arise during negotiations of the and conditions of the collective agreement. These can lead to changes in the status quo, as there exists the ability to change the and conditions of the CA. (Republic Bank). Interest disputes go to the Ministry of Labour. Primary categories of sources of conflict  Economic and conditions of employment  Physical job conditions (must be congenial, safe and healthy)  Job demands either above or below worker’s skills and abilities  Work load  Unsafe work practices  Respect and recognition  Favouritism/nepotism  Level of authority  Discrimination  Victimization  Un-kept promises (where conditions differ to what was promised)  Lack of resources  Leadership issues  Chain of command  Competition among peers or cliques  Personality conflicts and personal problems  Ideological differences (set performance agreements between worker and employer. In a unionized environment, this would be done with the TU) There must be a clear chain of command (management), especially when dealing with grievances, so that there is no confusion as to whom a worker must express his dissatisfaction and to whom that person must confer etc. How can a person without authority to suspend do so? The Grievance Policy This is why grievance policies are important. They establish the organization climate, objectives and manner in which managers will be expected to respond to any grievance or dispute presented by the employee. They also outline clear procedures for employees to grieve. Grievance / Dispute Procedure The adoption of a staged approach within the grievance procedure reflects organizational reality, that is, a hierarchy of roles based on increasing responsibility and authority. There are three broad levels at which the procedure operates: (1) Within the department (2) Outside the department but within the organization 105

(3) External to the organization The Grievance Interview This is where management speaks with the employee or union representative to ascertain the facts of the matter. At this stage the supervisor assumes importance, as he should have been the first person familiar with the grievance. Here, after establishing the nature of the grievance, management states and explains the position of the organization after which both sides try to come to a mutually acceptable compromise. Effective communication skills “Seek first to understand and then be understood”. (Doctors) HR/IR personnel must learn to listen with a view to understanding rather than responding. There 1. 2. 3. 4. 5.

are five levels of listening: Ignoring Pretend listening Selective listening (music, Williams) Active listening Emphatic listening – to capture non-verbal messages

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STRUCTURING AN INVESTIGATION Newton George Before starting an investigation, the following must be established: 1. Stating issues in of policies as written and explained to employees by the employer 2. Using information gathering techniques 3. Interviewing techniques for gathering information from other employees / witnesses 4. Establishing when to involve an external party (Attorney-at-Law; Consultant) 5. Always record dates and times so that time lines do not become as issue While the investigate should deal specifically with the issue at hand, employers tend to explore other issues not related to the issue being dealt with; this is not to say, nevertheless that past behaviour cannot be brought up to illustrate trends. How are company policies determined? Policies and procedures manual Disciplinary code precedent Law Industrial relations practices and principles as derived from cases. The IR Act does not provide these. Collaboration with the various stakeholders Corporate values, eg. integrity; respect, customer focus, professionalism. Minutes, agreements i. Eg. issue vs. policy (See NP case where worker took casual days on Thursday and Friday to facilitate a “long weekend” travel arrangement). Can casual days be taken for vacation? The definition of “casual days” states that these days are to be taken when personal errands have to be done that cannot be dome after work or on the weekend. There is no explicit prohibition against travel. It is important to that in establishing disciplinary codes, they should provide guidelines and not be rigid in its interpretation and usage as each individual case is different. When disciplining, it is further important to be mindful of precedents which help maintain equality and fairness. One person cannot be punished more severely for the same infraction as committed by another who received a more lenient punishment. Disciplinary action must be organized and constructive. There are four steps (the first two of which may be exercised more than once before moving along the steps, depending, of course, on the nature of the problem. These steps are:

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 Oral warning(s). Even though oral, it is advised that these warnings be documented  Written warning(s)  Suspension  Dismissal In deciding whether to dismiss an employee, it is important to answer the following: Was the action inimical to the Company’s interest? Scenario: One of the company’s better customers enters the compound only to witness obscene behaviour (swearing, physical violence) on the part of the employee causing the customer to seek a hasty retreat. This causes the company to suffer economic loss. 

 

  

Using Information Gathering Techniques Reliability and validity. Reliability - Tests must consistently produce similar results. Validity - eg. letter of suspension must cover issue at hand (suspension for persistent and inexcusable unpunctuality cannot deal with the issue of dressing inappropriately for work). The interview is a source of primary information; written testimonies of witnesses are even better. Observation – when there is an incident/action in the yard, go see. Do not sit in the office and simply take the word of the persons reporting it when you can witness personally. If the issue is one of missing items, this in person. The use of cameras on the premises are also useful. Records / database. Audits – performing audits provides gap analyses for items that should be in stock vs what actually obtains. Research – library, Industrial Court, ECA, other companies. This helps HR officer to be au courant with how similar situations are being treated. The Disciplinary Interview This is perhaps the most critical phase of the formal disciplinary process. HR Officer MUST BE PREPARED. ♦ In preparing for the interview, it must be established whether there is a prima facie case. This would be deduced from the issue at hand and established company policy concerning said issue. ♦ Be certain of the infraction ♦ Determine evidence to substantiate breach ♦ Decide whether or not it is a matter for formal disciplinary action ♦ Consider range of penalties that are available should the facts of the case be proved. The penalty must suit the infraction, otherwise it will be seen as unjust and unfair. Not only must the penalty fit the infraction, the procedure must also be valid.

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♦ Determine whether you have the authority to carry out such a penalties within the procedure. Does the line supervisor have the authority to hire, fire, transfer? He may have the authority to investigate incidents but not to fire. Note that authority must not only be negative, there is authority for promoting as well. In some instances, authority may be delegated for certain actions, such as delegated authority to institute disciplinary actions, which does not extend to hiring, firing, etc. (See owing the issue above.) This is a major difference between IR officers and HR officers. HR officers may be able to do so. ♦ Policies should clearly identify lines and positions of authority. Objectives of the Interview A) Establish the facts of the case  Review information gathered in employee’s presence  Allow employee to question it. It is essential that the officer in charge that the employee received, read and understand the letter of notice stating the issues. This allows for verification of facts. It is advisable to read the letter aloud to the employee and allow him to respond to each allegation. This allows for the establishment of the issue with the employee.  Allow employee to question witness  Allow employee to present his side of the case  Allow employee to call his witness or union representative as he wishes To Note: Present arguments clearly and concisely. Itinerant contractor – contractor signed contract to work as an “itinerant contractor” and presented himself for work each morning. On not being called to work, he went to his union representative and took the issue to the Industrial Court. It was there discovered that not only did the contractor not understand the term “itinerant contractor” but could not read and therefore signed a contract without having understood it. Issue of smoking in a non-smoking area. Confirm whether there is clear signage in clear view etc.  Maintain control of interview but at the same time allow employee to present his case.  Concentrate on the facts relating to the performance or behaviour of the employee and do not get drawn into personality clashes.  Behave in a calm, rational manner and never get angry, sarcastic or rude. Should the employer verbally abuse the employee, employer is seen to accept such language as appropriate and the employee may respond in like manner without fear of reprisal. “The language of the shop floor is not for prudes”.



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Indicate time needed to consider the facts / evidence and submission of the worker. When the decision has been delayed for whatever reason, inform the employee in the interim, so that he does not feel that his matter is not sufficiently important.  In instances only where the employee’s physical presence on the premises can prejudice the investigation, he can be removed from the premises (or asked to stay away until determination of the matter). In cases of fraud, the ant must be sent home WITH PAY pending the outcome of the investigation.



B) istering Disciplinary Sanctions  Employee must be reprimanded but not humiliated  In addition to the four steps of disciplinary action stated above, disciplinary action may also include: o Transfers o Constructive dismissal (to be avoided) o Demotion (construed as constructive dismissal) An employee being disciplined must still be considered for promotion given positive changes in his behaviour. Follow up: on witnesses, employees who were not available for the interview  The employee should receive written confirmation of disciplinary action  Copy of letter must be given to shop steward and one placed in employee’s file  Appropriate senior management and HR should be informed of action (to temporarily stop payments; supervisor will know not to expect absence notes etc.)  Monitor performance / behaviour (on return) of employee (if suspended) and ensure that the positive behaviour is maintained Appeals Provisions must be made for the employee to be able to appeal against any disciplinary action; either via the normal grievance procedure or through a special disciplinary appeal mechanism.  Establish a disciplinary appeal mechanism which may involve any of the following external parties o Attorneys-at-Law for advice o IR consultants o Police (for non-employees, such as witnesses to an incident) o Mediator to deal with deep-rooted issues between departments o Ministry of Labour o Industrial Court

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Win-win situations should not be measured only in of money. Such situations must be visualized with the end result / value added in mind.

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LECTURE 7 – COLLECTIVE BARGAINING NEGOTIATIONS COLLECTIVE BARGAINING NEGOTIATIONS By Sriyan de Silva 1996

TABLE OF CONTENTS A. Introduction B. Negotiation and Collective Bargaining C. Nature of Collective Bargaining D. Conditions for Successful Collective Bargaining pluralism and the freedom of association trade union recognition observance of agreements of labour istration authorities good faith proper internal communication E. Advantages of Collective Bargaining F. Current Trends in Collective Bargaining G. Issues of Concern for Employers addressing productivity and efficiency issues criteria for wage increases levels of bargaining recognition criteria extension of agreements disputes arising out of agreements H. Pre-Negotiation Preparations objectives negotiating team research and study responding to the union's requests inventing options strategy I. The Negotiations principled negotiation who commences management's reactions internal communication notes of discussion styles of negotiation some basic rules of collective bargaining negotiation J. The Agreement

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A. Introduction This Paper addresses the differences between negotiation and collective bargaining, the nature of collective bargaining, the conditions necessary for successful collective bargaining, some of the advantages of collective bargaining, issues of concern for employers and guidelines for employers on the process of bargaining itself from the pre-negotiation stage to the agreement itself. Some of the fundamental principles, the observance of which could achieve the broader objectives of negotiations in the employment relationship, are discussed in another Paper entitled "Principles of Negotiation". B. Negotiation and Collective Bargaining Collective bargaining is specifically an industrial relations mechanism or tool, and is an aspect of negotiation, applicable to the employment relationship. As a process, the two are in essence the same, and the principles applicable to negotiations are relevant to collective bargaining as well. However, some differences need to be noted. In collective bargaining the union always has a collective interest since the negotiations are for the benefit of several employees. Where collective bargaining is not for one employer but for several, collective interests become a feature for both parties to the bargaining process. In negotiations in non-employment situations, collective interests are less, or non-existent, except when states negotiate with each other. Further, in labour relations, negotiations involve the public interest such as where where negotiations are on wages which can impact on prices. This is implicitly recognized when a party or the parties seek the of the public, especially where negotiations have failed and work disruptions follow. Governments intervene when necessary in collective bargaining because the negotiations are of interest to those beyond the parties themselves. In collective bargaining certain essential conditions need to be satisfied, such as the existence of the freedom of association and a labour law system. Further, since the beneficiaries of collective bargaining are in daily with each other, negotiations take place in the background of a continuing relationship which ultimately motivates the parties to resolve the specific issues. The nature of the relationship between the parties in collective bargaining distinguishes the negotiations from normal commercial negotiations in which the buyer may be in a stronger position as he could take his business elsewhere. In the employment relationship the employer is, in a sense, a buyer of services and the employee the seller, and the latter may have the more potent sanction in the form of trade union action.

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Unfortunately the term "bargaining" implies that the process is one of haggling, which is more appropriate to one-time relationships such as a onetime purchaser or a claimant to damages. While collective bargaining may take the form of haggling, ideally it should involve adjusting the respective positions of the parties in a way that is satisfactory to all, for reasons explained in the Paper entitled "Principles of Negotiation". C. Nature of Collective Bargaining The ILO Right to Organize and Collective Bargaining Convention (No. 98), 1949 describes collective bargaining as: "Voluntary negotiation between employers or employers' organizations and workers' organizations, with a view to the regulation of and conditions of employment by collective agreements." Collective bargaining could also be defined as negotiations relating to of employment and conditions of work between an employer, a group of employers or an employers' organization on the one hand, and representative workers' organizations on the other, with a view to reaching agreement. There are several essential features of collective bargaining, all of which cannot be reflected in a single definition or description of the process: i.

ii. iii. iv. v.

It is not equivalent to collective agreements because collective bargaining refers to the process or means, and collective agreements to the possible result, of bargaining. Collective bargaining may not always lead to a collective agreement. It is a method used by trade unions to improve the and conditions of employment of their . It seeks to restore the unequal bargaining position between employer and employee. Where it leads to an agreement, it modifies, rather than replaces, the individual contract of employment, because it does not create the employer-employee relationship. The process is bipartite, but in some developing countries the State plays a role in the form of a conciliator where disagreements occur, or where collective bargaining impinges on government policy.

D. Conditions for Successful Collective Bargaining Pluralism and the Freedom of Association A pluralistic outlook involves the acceptance within a political system of pressure groups (e.g. religious groups, unions, business associations, political parties ) with specific interests with which a government has dialogue, with a view to effecting compromises by making concessions. Pluralism implies a process of bargaining between these groups, and between one or more of

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them on the one hand and the government on the other. It therefore recognises these groups as the checks and balances which guarantee democracy. It is natural that in labour relations in a pluralist society, collective bargaining is recognised as a fundamental tool through which stability is maintained, while the freedom of association is the sine qua non because without the right of association the interest groups in a society would be unable to function effectively. Thus pluralism's "theme is that men associate together to further their common interests and desires; their associations exert pressure on each other and on the government; the concessions which follow help to bind society together; thereafter stability is maintained by further concessions and adjustments as new associations emerge and power shifts from one group to another." (H.A. Clegg: A New Approrach to Industrial Democracy, Blackwell, Oxford, UK, 1960 at 20). There can, therefore, be no meaningful collective bargaining without the freedom of association accorded to both employers and workers. Trade Union Recognition The existence of the freedom of association does not necessarily mean that there would automatically be recognition of unions for bargaining purposes. Especially in systems where there is a multiplicity of trade unions, there should be some pre-determined objective criteria operative within the industrial relations system to decide when and how a union should be recognised for collective bargaining purposes. The accepted principle is to recognise the most representative union, but what criteria is used to decide it and by whom may differ from system to system. In some systems the issue would be determined by requiring the union to have not less than a stipulated percentage of the workers in the enterprise or category in its hip. The representativeness may be decided by a referendum in the workplace or by an outside certifying authority (such as a labour department or an indepenedent statutory body). There could be a condition that once certified as the bargaining agent, there cannot be a change of agent for a prescribed period (e.g. one or two years) in order to ensure the stability of the process. Observance of Agreements Especially in developing countries where there is a multiplicity of unions, unions are sometimes unable to secure observance of agreements by their . Where a labour law system provides for sanctions for breaches of agreements, the labour istration authorities may be reluctant to impose sanctions on workers. Where there is frequent non-observance of agreements or understandings reached through the collective bargaining process, the party not in default would lose faith in the process.

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of Labour istration Authorities by the labour istration authorities is necessary for successful collective bargaining. This implies that they will: i.

ii. iii. iv.

provide the necessary climate for it. For instance, they should provide effective conciliation services in the event of a breakdown in the process, and even provide the necessary legal framework for it to operate in where necessary, e.g. provision for the registration of agreements. will not a party in breach of agreements concluded consequent to collective bargaining. as far as is practicable, secure observance of collective bargaining agreements. provide methods for the settlement of disputes arising out of collective bargaining if the parties themselves have not so provided.

Good Faith Collective bargaining is workable only if the parties bargain in good faith. If not, there will be only the process of bargaining without a result viz. an agreement. Good faith is more likely where certain attitudes are shared among employers, workers and their organizations e.g. a belief and faith in the value of compromise through dialogue, in the process of collective bargaining, and in the productive nature of the relationship collective bargaining requires and develops. Strong organizations of workers and employers contribute to bargaining in good faith, because there would be some parity in the bargaining strength of the two parties. Proper Internal Communication Both the management and union should keep their managers and respectively well informed, as a lack of proper communication and information can lead to misunderstandings and even to strikes. Sometimes managers and supervisors who are ill-informed may inadvertently mislead workers who work under them about the current state of negotiations, the management's objectives and so on. In fact, it is necessary to involve managers in deciding on objectives and solutions, and such participation is likely to ensure greater acceptance - and therefore better implementation by them. E. Advantages of Collective Bargaining First, collective bargaining has the advantage of settlement through dialogue and consensus rather than through conflict and confrontation. It differs from arbitration where the solution is based on a decision of a third party, while arrangements resulting from collective bargaining usually represent the

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choice or compromise of the parties themselves. Arbitration may displease one party because it usually involves a win/lose situation, and sometimes it may even displease both parties. Second, collective bargaining agreements often institutionalize settlement through dialogue. For instance, a collective agreement may provide for methods by which disputes between the parties will be settled. In that event the parties know beforehand that if they are in disagreement there is an agreed method by which such disagreement may be resolved. Third, collective bargaining is a form of participation. Both parties participate in deciding what proportion of the 'cake' is to be shared by the parties entitled to a share. It is a form of participation also because it involves a sharing of rule-making power between employers and unions in areas which in earlier times were regarded as management prerogatives, e.g. transfer, promotion, redundancy, discipline, modernisation, production norms. However, in some countries such as Singapore and Malaysia, transfers, promotions, retrenchments, lay-offs and work assignments are excluded by law from the scope of collective bargaining. Fourth, collective bargaining agreements sometimes renounce or limit the settlement of disputes through trade union action. Such agreements have the effect of guaranteeing industrial peace for the duration of the agreements, either generally or more usually on matters covered by the agreement. Fifth, collective bargaining is an essential feature in the concept of social partnership towards which labour relations should strive. Social partnership in this context may be described as a partnership between organised employer institutions and organised labour institutions designed to maintain nonconfrontational processes in the settlement of disputes which may arise between employers and employees. Sixth, collective bargaining has valuable by-products relevant to the relationship between the two parties. For instance, a long course of successful and bona fide dealings leads to the generation of trust. It contributes towards mutual understanding by establishing a continuing relationship. The process, once the relationship of trust and understanding has been established, creates an attitude of attacking problems together rather than each other. Seventh, in societies where there is a multiplicity of unions and shifting union loyalties, collective bargaining and consequent agreements tend to stabilise union hip. For instance, where there is a collective agreement employees are less likely to change union affiliations frequently. This is of value also to employers who are faced with constant changes in union hip and consequent inter-union rivalries resulting in more disputes in the workplace than otherwise.

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Eighth - perhaps most important of all - collective bargaining usually has the effect of improving industrial relations. This improvement can be at different levels. The continuing dialogue tends to improve relations at the workplace level between workers and the union on the one hand and the employer on the other. It also establishes a productive relationship between the union and the employers' organization where the latter is involved in the negotiation process. F. Current Trends in Collective Bargaining Collective bargaining may take place at the national, industry or enterprise level. In no country does it take place exclusively at one level only. However, in many industrialized countries, especially in Europe, the existence of strong employers' organizations and trade unions have resulted in many important agreements being concluded at the national or industry level, supplemented by some enterprise level bargaining. In the USA, however, bargaining at the enterprise level has been the more usual practice, other than in specific sectors such as coal, steel, trucking and construction. In Japan national level bargaining has been the exception, and it has been supplemented by a substantial amount of enterprise level bargaining, facilitated partly by union structures which are enterprise-based. In many Asian countries relatively low rates of unionisation have militated against national and industry level bargaining, and enterprise level bargaining has been more common. This s for the relative non-involvement of some Asian employers' organizations in collective bargaining. Japanese employers and workers have demonstrated how a combination of enterprise level bargaining and shop floor mechanisms (such as t consultation) enables the parties to take into specific enterprise conditions and also to increase productivity. The tendency during the last decade - and especially in the 1990s - even among industrialised countries with a highly centralised bargaining system, is towards enterprise level bargaining. This is true of even a country like Sweden with a strong employers' organization, a strong trade union movement, and a previous tradition of centralized bargaining. In the 1990s the avowed policy of the Swedish Employers' Confederation has been to move negotiation to the enterprise level. Decline in union hip and an increase in corporate power in Europe have contributed to this trend. But most importantly, restructuring of enterprises flowing from intense competition has created the need to focus on enterprise level issues such as flexible working time, removal of narrow job classifications, new work organization, promotion of more worker involvement scemes and decentralised decision-making. Many employers view centralised bargaining as facilitating more equal distribution of incomes, but depriving employers of the ability to use pay as an instrument for productivity enhancement and to compensate for skills and performance. The push by employers for flexibility in the context of increasing global competition has raised many issues which are more appropriately dealt with at the enterprise level. Some of the many concerns of employers such as productivity and quality, performance, and skills development to retain or gain competitive edge and to make rapid

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changes to adapt to the global marketplace, are likely to increase the movement towards more enterprise level negotation. G. Issues of Concern for Employers Addressing Productivity and Efficiency Issues Historically, collective bargaining has addressed equity issues from the point of view of employees - issues such as a fair wage, working conditions and the equal distribution of wage increases to all. Until recently, considerations of efficiency important to productivity were either not addressed, or were accorded relatively little importance. Increasingly employers wish to utilize the collective bargaining process to effect workplace changes in the interests of competitiveness. Hence the view of employers that the process should address not only how the gains of improved performance should be shared, but also how to increase the productivity 'cake' so to speak, This is the only way in which regular pay increases can be absorbed without eroding profitability and jeopardising competitiveness. However, collective bargaining is relatively more conflictual than some other forms of negotiation and consultation. Therefore, to reduce the conflictual issues it is more effective for employers and their employees to establish t consultation mechanisms to achieve an understanding on how to increase the productivity 'cake'. In that event, in collective bargaining the areas of dispute would be narrowed, and both parties would be likely to share a common view about the issues and even arrive at a basic agreement on them. In this connection the t consultation system in the larger Japanese enterprises which fulfil this function is worth noting. Collective bargaining in Japan results from constitutional guarantees, the Trade Union Act, the obligation to bargain in good faith and the right to strike. t consultation, on the other hand, is a voluntary system which is an outcome of arrangements between the parties based on the mutual acceptance of the need to avoid conflict through strikes or other similar actions. t consultation schemes have been the corner-stone of information sharing between management and labour and of labourmanagement cooperation in Japan where "unions and employers .... have long been aware of the importance of information sharing in an industrial relations system ... after bitter and protracted strikes in the forties and early fifties, both management and labour made concerted efforts to restore industrial peace and to develop a stable industrial relations system ... these efforts led to the development of key aspects of the modern Japanese industrial relations system, including the t consultation, a corner-stone of labour-management information sharing." (Motohiro Morishima "Information Sharing and Firm Performance in Japan in 1991 (Vol.30) Industrial Relations 37 at 39.)

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Japanese t consultation systems had their origins in the 1950s when it was promoted by the Japan Productivity Centre. It is estimated that by 1990 about 84 per cent of unionized enterprises had set up t consultation schemes, and 44 per cent of the non-unionized ones had t consultation arrangements. These mechanisms, which are an aspect of two-way communication, deal with a variety of issues. In both unionized and nonunionized establishments the most common subjects which come within consultation are working conditions, working hours, leave, safety and health, welfare and cultural activities, bonus, pension and retirement payments, work scheduling, education and training, recruitment, transfers, lay off, job assignment. There are also a range of management issues which fall within t consultation, but on these matters management merely provides information and explanations. These management issues include business plans and policies, introduction of new technology, organizational changes and production and sales plans. Many establishments have two levels of communication. Quality circles and shopfloor committees represent the mechanisms at the shopfloor level, and t consultation committees represent the mechanisms at the corporate level. These committees supplement collective bargaining in the sense that they provide the forum for information-sharing prior to wage negotiations. In Japan the frequency of t consultations varies. But on an average in unionized firms there may be 15 meetings and in non-unionized firms about 8 per year. Research suggests that information sharing through the t consultation system has had a positive effect on profitability, labour productivity and on reducing labour costs, especially in the manufacturing sector (ibid.). Recent evidence suggests that the larger American corporations "share more business and financial information with their unions and employees than is required by law, and that information sharing within the non-union sector - where the statutory requirement for information disclosure is much less stringent - is as extensive as in the union sector." (ibid. at 37). In Japan different views on the effectiveness of t consultation exist in relation to unionized and non-unionized firms. About 75 per cent of unionized firms find t consultation effective, while less than 50 per cent of nonunionized firms find it so. (Shozo Inoue "Building Better Industrial Relations: The Japanese Experience" in Report of the ILO/Japan Workshop for AsiaPacific Employers' Organizations on Sound Labour Relations Practices, Singapore, 2-6 March 1992: ILO, Bangkok 33 at 40). According to Shozo Inoue (ibid.): "Effective areas of JC among the unionized establishments are: improved communication between the management and the union (78 per cent), followed by more smooth business operation, and improved work environments. Improving job satisfaction and increasing interest in management did not score high points. In contrast, the non-union establishments report that employees developed greater interest in management (45 per cent), followed by improved business operation, communication and job satisfaction."

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One of the significant characteristics of t consultation in Japan is that collective bargaining and t consultation serve different objectives and are therefore not in conflict with each other. Bargainable issues are dealt with under collective bargaining and non-bargainable ones under t consultation. If during t consultation some issues become bargainable (which could happen in relation to matters on which it is not clear whether they are bargainable ones or not), they will be transferred to the collective bargaining forum. It is also an important characertistic of the t consultation system that it does not handle individual grievances, which are dealt with under grievance handling procedures. t consultation has made a significant contribution to enterprise level labour relations by creating mutual understanding on a range of management issues which impinge on the lives of employees. This in turn has had an effect on collective bargaining, which tends to take place in an atmosphere in which workers have been informed of management objectives, so that the areas for misunderstanding and conflict are considerably reduced. In effect, therefore, collective bargaining takes place from a point at which some degree of common objectives have been agreed upon. Since information on wage criteria is also shared, differences in wage negotiations (which in most countries are highly contentious) are narrowed, facilitating acceptable compromises and negotiations without disputes. t consultation has motivated employers and employees to generate gains and to share them for their mutual benefit. In essence, t consultation has become the means through which information is shared, mutual understanding is promoted, participation in arriving at decisions is facilitated, and working conditions are negotiated. As such, it is an essential component of Japanese enterprise level labour relations. The enterprise level union system significantly contributes to the workability and effectiveness of the t consultation system. Criteria for Wage Increases Traditionally, the factors or criteria which have influenced pay increases through collective bargaining include enterprise profit, job evaluation, seniority, cost of living, manpower shortage or surplus, the negotiating strength and skills of the parties. Performance measures such as productivity or profit related to groups or individuals have not featured prominently in collective bargaining. Further, though wage rates negotiated through collective bargaining do reflect wage differentials based on skills, such differentials have not been geared to the encouragement of skills acquisition and application. Therefore a major concern for employers is the need to negotiate pay systems which are • • •

strategic in the sense that they achieve strategic objectives flexible in the sense that their variable component can absorb downturns in business and reduce labour costs oriented towards better pderformance in of productivity, quality, profit or whatever performance criteria are agreed upon 121

• •

• • •

capable of enhancing earnings of employees through improved performance capable of reducing the incidence of redundancies during times of recession or poor enterprise performance through the flexible component of pay able to reward good performance without increasing labour costs as a part of total costs through enhanced productivity able to attract and retain competent staff able overall to control or stabilize labour costs.

These obectives have come to the forefront, particularly due to pressures flowing from gloablization. Therefore wage increases through collective bargaining need to be based on a wider range of criteria than has traditionally been the case. Otherwise once collective bargaining is over, the employer may be left without the financial capacity to adjust pay based on group or individual performance, as well as on skills acquisition and application. Levels of bargaining Originally collective bargaining at the national or the industry level was viewed by employers as a means of reducing competition based on labour costs through standardized wage rates. Employers no longer view collective bargaining from this perspective. Instead, centralized and industry level negotiation is considered as depriving enterprises of the needed flexibility to compete on the basis of adjustments at the level of the enterprise in relation to pay, working hours and conditions, work organization, manpower utilization and so on. The efficiency gains are considerably greater - and more easily realizable - when negotiations take place at the enterprise level. Therefore, the major thrust in all countries where the pattern hitherto was national or industry level bargaining, towards increased enterprise-level bargaining, has been by employers. Not all unions favour this trend; their power position can be automatically eroded by this trend, just as it is enhanced through centralized or industry level bargaining. Recognition Criteria Even where there is a single union structure, there should be recognition criteria applicable to the union for collective bargaining purposes. The union should be representative of a minimum percentage of employees, as the employer cannot reasonably be expected to conclude an agreement with a union which is not representative. The need for recognition criteria is all the greater where there is union multiplicity. In countries with union multiplicity and rivalry, recognition disputes have been a cause of major disputes, and practical problems often arise. One is the issue of the continued applicability of an agreement to workers who subsequently leave the negotiating union and another

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union. Another issue relates to the status of a collective agreement where, during the duration of the agreement, the union loses its hip and is replaced by another union in the workplace. Employers expect the legal framework to provide for such issues, so as to overcome uncertainty and avoid disputes.

Extension of Agreements The principle of extension of collective agreements to cover employers and employees not parties to, or covered by, such agreements, is embodied in some labour law systems. The issue can arise only where negotiations are above the level of the enterprise, but can nevertheless be undesirable from several points of view. First, extension of collective agreements deprives an employer of the opportunity he would have had, had he been a party to the negotiations, to take of workplace conditions and needs. This is particularly important at a time when enterprise level bargaining is the trend. Second, it is inconsistent to speak of voluntary collective bargaining on the one hand and provide for involuntary coverage on the other. An extension of coverage should occur, if at all, only where both parties agree to it. Third, extensions are impractical - and can be harmful - in countries with large regional disparities. Disputes Arising out of Agreements Employers expect disputes connected with collective agreements, whether they relate to interpretation or non-observance, to be settled in accordance with procedures agreed to and contained in the agreement, or through other machinery with conciliation as a first step. H. Pre-Negotiation Preparations Objectives A party wishing to arrive at a satisfactory conclusion or arrangement through collective bargaining should first identify the objectives of the exercise. Some objectives common to employers are the following: i. ii. iii.

Ensuring that the enterprise is not rendered uncompetitive The need to keep wage increases below the level of productivity increases and/or within the inflation rate. Guarantees of industrial peace during the period of operation of the agreement

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As far as possible managers should be consulted in determining objectives; their priorities should be solicited, and they should be aware of the company's views in regard to objectives so that they could be tested against the managers' views. It is insufficient to merely determine objectives. A tentative plan to achieve these objectives, which can be modified during the course of the negotiations, could be formulated. Such a plan should include the company's requests to the union. For instance, work reorganization to increase productivity to absorb the cost increases consequent upon collective bargaining may form part of the company's plan. Negotiations on the union's demands are generally an ideal setting in which management can achieve some of its objectives through agreement. In order to achieve this, the management must be clear about its own priorities. If there is an existing collective agreement, it would be a useful starting point. An analysis should be made of how it has worked, its unsatisfactory features from the company's point of view should be identified, and the changes necessary determined. Negotiating Team The negotiating team, and the respective roles of the , should be determined before the negotiations. Employers would find it useful to include in the team people from different disciplines. Research and Study The union's demands should be carefully studied. The following are some of the matters to which attention should be paid: a. Assess the economic impact of the demands on the company. b. Make a comparative study, e.g. in a wage demand one should ascertain comparative wage rates in the industry and in allied or similar businesses, the minimum wage, if any, and the rates applicable in other collective agreements. c. Separate the demands which the company has no intention of fulfilling or giving, either on a question of principle or due to economic incapacity. d. Prepare the company's position in regard to the other demands, e.g. the conditions on which the company may be prepared to grant them or compromise on them. e. Identify the demands which may be of crucial importance to the union or to the employees as the case may be. This is crucial to success in negotiations because, without a proper assessment of such demands, a negotiated settlement may not result or, if one results, it may lack durability because it has not addressed the main problems. The issues which may be of crucial importance may not be the same in the case of both (union and employees) as they may have differing interests. Having identified the crucial demands the company should formulate its strategy in relation to them e.g. the possibility of trading some of the company's demands in return for the union's demands. 124

Responding to the Union's Requests It is a matter of assessment in each situation as to whether the management should make an initial response in writing to the union before negotiations commence. Usually it is desirable that written positions stated before negotiations commence should not contain a flat or blanket refusal. At this stage it is preferable to couch a refusal in language which does not give the impression of an out-of-hand rejection or a rejection without consideration of the merits. Negative answers may sometimes be better given during the negotiations because it affords greater opportunities for explanations of the reasons for the negative answers. A rejection during negotiations would more likely give the impression to the union and employees that such rejection was made only after negotiations and not before. It is always useful from the point of view of reaching agreement on other matters to first listen to the reasons adduced by the union for a demand which the company does not propose to accept. A rejection during negotiations also enables the employer to convince a union of at least some of the reasons why the demand is not acceptable. It also prevents a union from resorting to trade union action on the issue of a refusal to negotiate, as distinct from rejection of the demands after negotiation. Inventing Options. Since negotiations may not proceed or take place in the way a party may plan, a party should be able to provide alternative options to what he, or the other party, expects. For example, if it transpires that the wage increase sought is not acceptable, the employer should be prepared with alternatives to cushion the impact of an increase in excess of what it had planned to agree to. Strategy A party to collective bargaining negotiations has to formulate a strategy for all stages of the negotiation, including the pre-negotiation stage. Before negotiations commence, the strategy should include matters such as; a. options as referred to above b. how much to offer while leaving room for further negotiation if the offer fails. The offer should be sufficiently attractive so as not to lead to a breakdown in negotiations. c. how to link one's requirements to the concessions one makes. I. The Negotiations Principled Negotiation

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The broad principles on which negotiations should be conducted are outlined in the Paper entitled "Principles of Negotiation". This section will therefore underline some other matters to which attention should be paid. Who Commences There is no inflexible rule as to who should open the negotiations. However, it is not unreasonable for the management to claim that if the union has initiated the negotiations, it should first outline its rationale and justification for doing so. Nevertheless, the management should make it clear at the outset that agreement on any particular issue is subject to an overall settlement, including its own expectations from the union. Management's Reactions In outlining the employer's response, the following could be included: i. ii.

iii.

The context in which the employer is negotiating, such as the business environment, and how this affects the employer's position in the negotiations. A judgement will have to be made about the stage at which the union should be informed about the items on which the employer will not make any concession. However, the impression should not be created that the union will not be allowed an opportunity to present its case. The basis on which the employer is prepared to negotiate. This could include the employer's objectives and expectations from a collective agreement, and any unsatisfactory features in the existing agreement (if there is one) which require to be rectified.

Internal Communication During the negotiations there should be good internal communication between the company and its managers about the situation at any given time. This will help clarify misunderstandings and even eliminate disinformation especially where employees, as happens in developing countries, seek information or clarification from their managers. Notes of Discussion Notes of the discussion should be maintained, and preferably issued and agreed on with the other party, to avoid misunderstandings. Such notes could be useful in the event of disputes and a breakdown in negotiations. Styles of Negotiation It is an essential principle of negotiation - indeed of human relations - that one's style of negotiation may need to be adapted to the style of the other party. The negotiator who adopts only one approach to negotiations may be puzzled when he finds that the approach in question bears fruit in some

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cases but causes an adverse reaction in other cases. The ability to allow the attitudes of the other party or the facts or merits of the issue to fashion one's own particular style in a given negotiation requires a high degree of flexibility on the part of the negotiator, an absence of a pre-conceived approach to negotiation, and recognition of the fact that unltimately what matters is one's ability to secure one's objectives through dialogue. However, this should not be understood to mean that there should not be a principled approach to negotiation. What it means is that often one has to take into even the idiosyncracies of the other party and assess what form of presentation is likely to appeal best to the person whom one is trying to convince. Some Basic Rules in Collective Bargaining Negotiations A negotiator should view negotiations as an exercise with both sides walking towards each other, rather than away from each other. This will enable the negotiator to keep in mind that the final objective is a satisfactory agreement. It will also lead to a search for, or identification of, common ground while also addressing the differences. A negotiator should be good at listening carefully to the other party who will, otherwise, feel that disagreement with his position is due to a lack of understanding. This is also necessary to encourage the other party to listen to you. Some indication should be given to suggest that the party has understood the other's position. Body language often communicates a party's reactions. A party should build its case in a logical sequence and, as far as possible, try to obtain agreement at each stage of the process. This will narrow the areas of disagreement and facilitate focusing on those aspects. Counter proposals and conditions attached to concessions should be indicated as early as possible, so that the basis on which a party is prepared to agree or compromise is understood. Whenever possible, invite the other party to look at the problem from the opposite perspective, e.g. a wage increase as an additional cost which, due to competitive pressures, requires management to find ways to absorb it. It is sometimes useful to ask the union for suggestions on how it can cooperate to facilitate absorption of the increase. It is usually preferable to avoid taking up at the outset the position that a particular item is not negotiable. It is more productive to request a party to justify its claim, and then point out why that claim is unreasonable. Taking up a non-negotiable position can lead to the preception that the position has nothing to do with the merits and that the party is not willing to listen. Skillful questioning is an effective way of compelling the other party to justify its claim on the merits, and even shifting the other party to a different point of view.

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J. The Agreement When agreement is reached one of the following two courses may be adopted: i. ii.

Set out the agreement reached in a letter to the union and, on confirmation, prepare a draft agreement. Alternatively provide the union with a draft agreement. This would be the better course of action as the actual agreement reached will be clearer. It also leaves less room for further negotiations between the time agreement is reached and the draft agreement is approved.

Before the agreement is signed, the proper interpretation of clauses which have the potential to result in problems of interpretation should be agreed upon through, for example, an exchange of letters. Where there are understandings which affect the interpretation of the agreement, they should be reduced to writing (e.g. in a letter) before the agreement is signed. But wherever possible, the agreement should be self-contained, inclusive of definitions or interpretations. The contents of the agreement would depend on what is agreed upon and on the subject matter. The following examples are of some general application: i. ii. iii. iv.

v. vi.

The date of commencement of the agreement Its duration - when it will terminate or may be terminated, and how it can be terminated A definition of which may otherwise be ambiguous The procedure for settling disputes regarding interpretation, as well as other disputes. This may also include the issue of trade union action and lock-out, i.e. in what circumstances such action may or may not be permitted. The consequences in the event of breaches of the agreement As regards wages, exactly how conversion of employees' wages to the new scales is to be effected.

The g of an agreement does not ensure its successful implementation. Managers and supervisors should be acquainted with the agreement through the most appropriate means. A combination of written and oral communication is often useful.

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LECTURE 8 – FORMS OF INDUSTRIAL ACTION1 Industrial action is any organized action, such as stopping work or refusing to work normally, which aims to obtain better pay and working conditions. It is used to remedy a grievance or to resolve a dispute of ay matter of mutual interest between employer and employee. Industrial action can mean a total stoppage of work or a performance of work only partly withheld, e.g. slowing down or insisting on exaggerated observances of work regulations and safety provisions. In this case we speak of a go-slow or a work-to-rule. 1.0 The different forms of industrial action Strikes The most important one is the strike. During a strike, workers refuse to work in order to get more money or better working conditions. To be valid in law, a strike must be conducted by a trade union and must peruse an aim that can be regulated by a collective agreement. When the strike fulfils these criterions, it is an official strike. Different forms of strikes can be identified according to tactics used and to the basis on which they are organized. The all-out strike is a strike by all workers in a particular union, organization or trade. We speak of a general strike if all branches of the economy withdraw their labour and the whole public life is thereby brought to a standstill. This form of strike is used as a means of upholding or restoring the law. The protected or official strike is organized by a recognized trade union or it has the approval of such a trade union. Usually it is initiated with a preliminary strike ballot held among the union of the establishments involved in the dispute. In many cases standing rules of a union say that strike action in the official strike must be backed by a qualified majority vote and that it must have the approval of the union’s executive committee. The unofficial strike, on the contrary doesn’t have the approval of a trade union. It is often an immediate reaction and frequently it is used to apply pressure during delicate negotiations or when management actions are perceived as illegitimate. The wildcat strike is an unofficial strike called at short notice. Another form of an unofficial strike is the token strike which is a short strike usually used as a warning of further strikes if worker’s demands are not met. Go Slow Beside the strike there are other forms of industrial action such as the goslow. In a go-slow, workers work more slowly than usual as a protest or they perform their work only partly. One form of a go-slow is the work-to-rule. It means that there is a meticulous observance of work regulations and safety Esther Hurth : Advantages and disadvantages of different forms of industrial action Scholarly Paper Dokument Nr. V61034 http://www.grin.com/ISBN 978-3638-54573-0 9 783638 545730 1 1

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provisions by the workers. Furthermore workers are working only according to rules agreed between the union and the management, e.g. they don’t do overtime. By doing a go-slow, workers want to disrupt the establishment’s normal practice or bring it to a standstill. A work-to-rule is no breach of contract, but is has the implication that tasks are carried out inefficiently. This form of industrial action is almost exclusively found in the public service, because strikes by career public servants are prohibited. Picketing When workers are standing at the entrance to an enterprise in order to persuade workers who whish to work not to enter but to the strike, this is called picketing. You can distinguish between to forms of picketing; primary and secondary picketing. The purpose of a picketline, e.g. a line of picketers, is to promote the effectiveness of strike action. Primary picketing is legal; workers are standing at the entrance to the enterprise they work for. Secondary picketing is illegal; workers who are on strike from one firm try to dissuade workers of a firm not involved with the strike from going to work. Overtime Ban The overtime ban limits the working hours to the agreed contract of employment for normal hours. It is used by unions to show that workers are prepared to take further collective action if their commands are not met. This form of industrial action can be especially effective where reduction takes place overnight, e.g. in coal mines. Sit-in and lock-in Two other forms of industrial action which are very similar are the sit-in and the work-in. Sit-ins are mass occupations of the work premises by the workers where production ceases to continue. It aims to protest against management decisions and in the case of a closure it prevents the movement of machinery to other premises. This is called a redundancy sit-in. When workers refuse to stop working in order to show that the firm is still a viable concern we speak of a work-in. It is used when there is a threat or an order of closure. Sick Out An organized job action in which employees absent themselves from work on the pretext of illness. Lock Out Finally, there is the lock-out. Employees are excluded by the employer from the employers´ workplace for the purpose to compel the employers to accept a demand of respect of any matter of mutual interest between employer and employee. Thereby, employers want their employees to agree to detrimental changes to employment conditions proposed by management.

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2.0 Advantages and disadvantages 2.1 Advantages There are general advantages and disadvantages of industrial action and advantages and disadvantages of the particular forms. Advantages are for example that it clears the air. Employers and employees may have grievances that an industrial dispute can bring out into the open. Once the dispute is resolved, the atmosphere could improve. Moreover, new rules that were previously contested could be modified. Thereby the feeling around the factory gets better. Furthermore management goals may be changed and managers could consult unions in any further change of working practice. Industrial action can provide each side, the employees´ and the employer’s one, with better understanding of the other side’s desires and objectives. An official strike has the advantage that workers don’t commit a crime or a breach of contract. That means that employees can’t be dismissed. At an employees request the employer mustn’t discontinue payment in kind. For the employer it has the advantage that he isn’t obliged to remunerate the workers during the strike. The go-slow and the work-to-rule have the advantage for the employees that it is difficult for the employer to fight against. This is the form of industrial action mostly chosen by career public servants, because they haven’t got the right to strike. Primary picketing can be a manifestation of freedom of opinion. The sit-in and the work-in offer the employees a degree of control over the premises and they strengthen group solidarity and moral. 2.2 Disadvantages Naturally, industrial action also has got disadvantages for employers and for employees, too. As for the employers, industrial action may be bad, because if it causes production to stop machinery and other resources will be lying idle and business costs can’t be covered. Moreover, industrial action can lead to poor future relationships with customers. Grievances can carry on after the settlement of the action leading to poor motivation and communication. Furthermore, managers who are concerned with settling a dispute will neglect planning for the future. Disadvantages for the employees may be that if industrial action fails, then it can leave the employees in a weaker position than before. may also leave union if they feel that the union is unable to them. Prolonged industrial action may lead to the closure of the plant and employees would then be made redundant. As a disadvantage of the official strike and of the go-slow for the employees it must be said that they might loose their wages.

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The overtime ban has the drawback for employees that it can result in a loss of wages. As for the employers, it can lead to decreased costs for the business and it can lead to a fall in the production. The primary picketing has the disadvantage that often it isn’t peaceful as workers sometimes are physically preventing entry. This is in principle contrary to the freedom of labour. Picketing can be prohibited by the burgomaster, who is responsible for public order and safety. This is a disadvantage for the employees. Sit-ins and work-ins are illegal occupations of the work premises. 3.0 Conclusion To sum it up, it can be said, that industrial action in general can be positive for both sides if it leads to a collective agreement. In case of a failure, the situation of employees and employers might be worse than before, e.g. if it leads to the closure of the plant or to poor communication and poor motivation. Industrial action such as strikes or lock-outs should be a “measure of last resort”, and the preferred approach to dispute resolution should be negotiation.

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Industrial Relations: MS32B Examination Paper April 2005 STUDENTS ARE REQUIRED TO ANSWER ALL FOUR QUESTIONS. EACH QUESTION CARRIES EQUAL MARKS. GOOD LUCK! Question 1. David Mohammed works as a dispatcher with the Emergency Health Services (“EHS”) and his fiancée, Kyra, works in a Clothing Store in Tunapuna. Conrad James works as an ambulance driver for the EHS, and it is known by all that he has a crush on Kyra. On 10 March 2005, Kyra takes the day off and Conrad decides to leave his post without authorization to meet Kyra at home. In an attempt to ensure that nothing is going on, David, whose shift coincides with Conrad’s, calls for Conrad, ostensibly to send him off to fetch a patient. When David calls and is told that Conrad left his post on a personal errand, he immediately abandons his post in a fit of jealousy and heads towards his fiancée’s apartment. On arrival there, sure enough, there is an EHS ambulance parked outside. David walks in on Conrad and Kyra sitting together in the living room and proceeds to pummel Conrad until he escapes. David takes the matter to management and Conrad is suspended indefinitely pending investigations into the incident. Management allows Conrad to defend himself but despite his representations he is summarily dismissed. Conrad now claims wrongful dismissal and comes to you for advice. Please advise Conrad on what possible options are available to him. Question 2. While at work on 12 January 2003 Maria Chiquita heads towards the photocopying room to copy a document for her boss. While in the photocopying room, Maria is accosted by a fellow employee, Ted Cliff, who pushes her against the photocopying machine, fondles her and tells her that they should get together later that day. Maria is horrified and outraged by the violation of her person and immediately leaves to report it to her boss. On her way out, Maria sees three of her fellow employees who witnessed what took place and who continued looking on in mute dismay. Management, based on the allegations of sexual harassment, which was confirmed by the three witnesses, summarily dismissed Ted without giving him a hearing. Ted claims unfair dismissal and comes to you for advice. Please advise Ted as to whether he was in fact a victim of unfair dismissal. Question 3. Mary Queen was hired by Jako and Associates June 1989 as Information Systems Specialists, to assist Jako and Associates Inc. in resolving problems with the computer system which ran the operations of Jako and Associates Inc. In May 2004, one of the Mary’s co-workers, Lori Eaton, was conducting a

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training session, demonstrating the use of E-mail and in order to show how Email could be used to aid the management of the dealership, Eaton randomly selected a message sent by Mary Queen to another employee of Jako and Associates Inc. Unfortunately, Mary's E-mail was of a personal and sexual nature. Eaton reported this incident to her supervisor, who with management's authorization reviewed the E-mail messages of the entire workgroup. Jako and Associates Inc. found substantial number of personal, including sexual, messages from Mary and others, and issued written warnings to all such parties including Mary for violating the company’s policy prohibiting the use of the company computer system for personal purposes. Mary would like to file a grievance against Jako and Associates Inc complaining that the company had invaded her privacy by retrieving and reading her E-mail messages. Please advise Mary. In addition give an opinion as to whether an employee should have a right to privacy concerning use of computers at work? One other important undisputed fact to consider is that Mary signed a Computer Registration Form, which states that "[I]t is company policy that employees and contractors restrict their use of company-owned computer hardware and software to company business." Question 4. Below is a policy concerning demotion. Amend/revise/delete/add as necessary. Demotion Policy The Mumford People’s Hospital (MPH) is committed to fair and consistent labor and employment practices and procedures. When an employee’s job performance is unsatisfactory as a result of an inability to perform, at management’s discretion, the employee may be demoted to a position in a lower job grade or transferred to a different position of an equal salary grade as a possible alternative to being discharged at management’s discretion. APPLICATION OF POLICY A demotion MAY occur if the employee’s: 1) Documented and demonstrated job performance problems are a result of an inability to perform current job duties. 2) The employee’s record is otherwise satisfactory and is therefore, acceptable (e.g., attendance, punctuality, no other rule violations, etc.) 3) The employee is qualified for the lower grade or alternative position. Before an employee is considered for demotion the following should have occurred: 1) An employee’s performance has been reviewed twice in a six (6) month period as unsatisfactory.

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2) Provided the employee has the ability, is qualified, and a vacancy exists, the employee may be demoted to another position which may be in a lower paygrade or transferred to another job within the employee’s functional unit or MPH-wide in lieu of discharge. 3) Prior to discharge, the proposed action should be reviewed with the CEO. 4) Final approval for the demotion is with the appropriate department head (/Director/Director of Nursing).

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MGMT 3018 INDUSTRIAL RELATIONS You are required to answer each question on this paper. question is of equal value. Good luck!

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Question 1 Write • • •

a policy on ONE of the following: Substance abuse Internet use Religion at work

Question 2 Anna Lalwah is employed as an ing assistant at the Coconut Tree Company. A decision was taken to suspend her with full pay upon discovery that she had stolen monies from the Petty Cash Box of the company. While on suspension, the Board took a further decision to fire Anna given the nature of her post and the crime. During her period away, Anna fell gravely ill and was hospitalized for two months. The Board decided not to inform her of their decision to dismiss her during the period of her illness. While convalescing, Anna decided that she felt so badly about what she did that she would repay the amount stolen. She sent her mother with the cheque for the amount stolen to the company’s CEO who accepted it. The cheque was cashed and at the end of the two months, Anna reported for work. Her boss called her into the office and informed her of the Board’s decision to fire her. Advise Anna of the options available to her. Question 3 A university lecturer who insists that black people and women are genetically inferior has been suspended, it emerged last night. University of Cumaco announced that it was launching formal disciplinary proceedings against Peter Kai Mitt, a lecturer in French studies, who told the University of Cumaco Student newspaper that he ed the theory developed by Richard J Herrnstein and Charles Murray in their 1994 book The Bell Curve that white people are more intelligent than black people. He also said that women did not have the same intellectual capacity as men. The university had described Dr Kai Mitt's views as abhorrent. Last night Randolph Poonwassie, university secretary, said: "Given the seriousness of the issues, the vice-chancellor, Professor Michael Dragon, has decided to suspend Dr Kai Mitt from his duties while the disciplinary process is under way. Prof Dragon saw Dr Kai Mitt this afternoon to tell him of that decision and indicated that suspension was not in itself a disciplinary penalty. Mr. Poonwassie said the disciplinary procedures could take months to be completed and Dr Kai Mitt would remain an employee of the university during that time with full benefits.

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Dr. Kai Mitt has decided to take legal action against the University on the basis that he has not been afforded the right to natural justice. What is Dr. Kai Mitt’s right to natural justice at this stage of the disciplinary process?

Question 4 Mr. E. Guana is an ambulance driver for the North South Regional Health Authority. He was scheduled to work on Carnival Monday and Tuesday but took a unilateral decision to stay away from work. His boss happens to be watching television and sees Mr. Guana dancing and prancing across the stage of the Queen’s Park Savannah on the evening of Carnival Tuesday. Later that evening, a call is received from Curepe that a man had just been stabbed and that an ambulance was needed urgently. Unfortunately, there was no one available to fill in for Mr. Guana so no ambulance could have been dispatched from the Curepe Ambulance Station. An Ambulance was requested from Arima which was the next nearest station and this arrived one hour after the distress call was made for an ambulance. The stab victim succumbed to his injury shortly after arrival at the hospital. The doctors felt that if he had reached within 15 minutes which was possible if the ambulance was coming from the Curepe Ambulance Station, the victim would have survived. On arrival at work on Ash Wednesday morning, Mr. Guana was promptly dismissed. He decides to take the matter to his union representative who then approaches the North South Regional Health Authority about a matter of unfair dismissal. Please advise the Authority of its chances of having its decision to dismiss upheld.

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MGMT 3018 INDUSTRIAL RELATIONS You are required to answer each question on this paper. question is of equal value. Good luck!

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Question 1 People under the influence of illicit drugs and alcohol cause most of the accidents on construction sites in T&T, Works Minister Colm Imbert says. Imbert made the disclosure yesterday, as he announced the coming on stream of a mandatory drug-testing programme for the local construction sector. He added, however, that consultation still needed to take place with the Ministry of Labour and other stakeholders before the move was implemented. "There is absolutely no doubt that many of the accidents that take place on construction sites—especially where heavy machinery is involved, whether it be a crane, bulldozer, backhoe or excavator—many of the accidents that occur are caused by people under the influence of illegal drugs or alcohol.” Imbert was speaking at the weekly post-Cabinet news conference at Whitehall in Port-of-Spain. The Cabinet-approved initiative was by no means unique to T&T. Imbert said it was widely-recognised "that the majority of accidents that involve loss of life, loss of a limb or serious permanent disability arose from workers and other persons who are under the influence of drugs or alcohol." Although he did not have statistics at hand, Imbert identified marijuana, cocaine, alcohol and amphetamines, opiates, as being commonly-used on work sites, locally. The plan to implement mandatory testing on construction sites comes as three companies are facing disciplinary charges arising out of last year's incident in which 20 people were injured after a scaffolding collapsed at the site of the new Customs and Excise building in Port-of-Spain. Giving a background to the initiative, Imbert said the Cabinet-appointed Construction Sector Oversight Committee had made the recommendation. The committee, he said, comprised representatives from the private sector, the Institute of Architects, the Contractors' Association, Ministry of Health and the National Alcohol and Drug Addiction Prevention Programme. Describing the problem as acute, Imbert said the committee had expressed concerns that the use of illicit drugs on construction sites would lead to fatal accidents or cause serious injury. You have been asked by the Government of the Republic of Trinidad and Tobago to draft a policy to reflect the new decision for mandatory drug testing at construction sites. Please draft the appropriate policy. Question 2 Jean Prasad is employed as an ing assistant at Glass Sales Limited. The Managing Director of Glass Sales Limited is aware that Jean’s child is writing the SEA exams and must go to school early on mornings for extra lessons, resulting in Jean reaching to work later every day. Jean however makes up for lost time by working through her lunch. The Managing Director asked Jean to do a private ing job for him and she refused much to his annoyance. Although Jean was coming late for over 6 months, the next

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day after her refusal, the Managing Director gave her a verbal warning for late coming. This was followed a week later by a written warning. Jean continued to arrive late and work through her lunch. The Managing Director would also stand over her shoulders while she was working and just stare at her much to her discomfort. Finally, after two months of being constantly criticized, stared at, and picked upon, Jean resigned from Glass Sales Limited. Please advise Jean as to her legal rights. Question 3 Moojee Lalwah is the Human Resources Manager of SPEC TACKLES LIMITED (STL) and has occupied that position for the past five years. The shares were sold and the new Board of Directors asked Moojee to discuss with workers salary cuts on the pretense that profits of the company were down. Moojee was well aware that the opposite was true and she felt uncomfortable about lying to the workers as this would destroy her credibility with them if the truth came out. Moojee indicated to the Board of Directors that the position of Human Resources Manager required some level of confidence between workers and herself. The Board of Directors was unhappy with her position and agreed with Moojee that she should leave the company. The Board of Directors is recommending three month’s salary but Moojee feels that she is entitled to more. Please advise Moojee.

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MGMT 3018 INDUSTRIAL RELATIONS You are required to answer each question on this paper. question is of equal value. Good luck!

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Question 1 On March 13, 2007 Jane Lawson was appointed to act as an Audit Assistant in the Internal Audit Department. She was also informed by the Internal Auditor that the post is a travelling post and as such she will be entitled to receive a travelling allowance based on the stipulated policy of the organization. Since the organization was an extension of a government ministry the organization took the decision to design their policies based on the Public Service Guidelines. The Public Service Guidelines states that once a post is deemed a travelling post the incumbent shall be entitled to receive a travelling allowance based on the following criteria: • • •

the incumbent must be the sole owner of the vehicle used for travelling during the performance of his/her duties the incumbent must provide a certified copy ing ownership if the incumbent doesn't have a vehicle and travels in the performance of their duty he/she can claim for the fares used.

In knowledge of this Ms. Lawson proceeded to make the necessary arrangements to transfer the family car to her name only. On October 04, 2007 Ms. Lawson was appointed in the post of Audit Assistant, however, her documents for vehicle ownership was not processed and as such no travelling allowance was paid to her. In January 2008, a memorandum was circulated by the General Manager of Human Resources informing employees who were in travelling positions to ensure that the necessary documentation to receive the travelling allowance were lodged at the Human Resources Department. The memo also further stated that employees who were in travelling positions and in receipt of a travelling allowance but do not possess a certified copy showing sole ownership of a vehicle, travelling allowance paid would cease with immediate effect, unless the appropriate documents were furnished. The number of employees who were in receipt of a travelling allowance but showed no ownership of vehicles or dual ownership with spouse were approximately thirty (30) persons. On February 22, 2008 Ms. Lawson learnt that the General Manager was directed by the Board of Directors through the CEO to retract the statements made in the memorandum of ceasing payment of travelling allowance to employees who did not solely own a vehicle. Ms. Lawson further learnt that these employees were paid travelling allowance during their period of employment even though they did not own a vehicle and their was no documentary evidence to show that they owned a vehicle. Ms. Lawson took the matter of concern to the Industrial Relations Manager, who informed her that her payment of travelling allowance will not be made retroactive seeing that she was not previously paid a travelling allowance. It must be noted that no amendments to policy was made by the Board of Directors and

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management for the payment of travelling allowance, the policy was still governed by the Public Service Guidelines. Please advise Ms. Lawson as to how she ought to proceed. Question 2 An e-mail sent out by the CEO of the Telecommunications Services of Trinidad and Tobago (TSTT) Roberto Peon to a female employee last week sparked a rowdy protest outside the company's headquarters in Port of Spain yesterday with employees accusing their boss of violating the work ethic when he called her a "fool". A couple dozen employees participated in the lunchtime protest which was held outside the company's headquarters in Port of Spain and which received the of their representative union-the Communication Workers Union (CWU). CWU's general secretary Lyle Townsend charged that Peon's "insult" to the female employee "was a total disrespect" to all employees of the company and by extension citizens of this country. Townsend said the worker had done nothing to provoke Peon's reaction. "The worker simply asked through an e-mail, why it is that TSTT employees have to go to the Square in order to get one of the Carnival jerseys that they themselves produce and that was his (Peon's) disrespectful outburst," he said. Townsend said the union was repeating its calls for the company to remove Peon, "a foreigner", from his current post. Please draft an appropriate strategy document advising Mr. Peon as to how to respond to the crisis. Question 3 Mary Motoosingh is a worker with the Bank of Carabobo with a branch at High Street, Cedros. Sometime in May 2007, Mary entered into a relationship with Jose Velasquez and during the relationship, the parties used a cellular phone to videotape each other during sexual intercourse. Mary subsequently ended the relationship much to the annoyance of Jose, who proceed to the videotape on the internet. Many people recognized Mary and strangers would turn up at the bank to gawk at her. Mary is very distressed as to what has happened and obtained two weeks sick leave for depression. During this period of time, she was served with a notice of suspension from the bank with full salary pending investigation into a charge that her conduct in making the videotape and the subsequent consequences amounted to bringing the operations of the bank into disrepute. Mary was summoned to a meeting chaired by the Human Resources Manager and was told that the movie was in poor taste and the bank could not abide by the adverse publicity being generated. She was then asked to respond to this statement and she indicated that although the making of the movie was in bad taste and reflected poor judgment on her part, the movie was made during her private time and was not really a matter of concern for the bank. The Human Resources Manager disagreed and Mary subsequently received a letter of dismissal. Please advise Mary.

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MGMT 3018 INDUSTRIAL RELATIONS You are required to answer each question on this paper. question is of equal value. Good luck!

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Question 1 Problem for Petrotrin: Andy Johnson, Thursday, February 12th 2009

There continues to be public relations nervousness at the state-owned Petroleum Company of Trinidad and Tobago (Petrotrin). Included in the latest bits of evidence on this is the company's decision to transfer all responsibility for dealing with the public on the bubbling-up near the oil well in Santa Flora late last year to the Office of Disaster Preparedness and Management (ODPM). Based in Trincity and having to rely entirely on the oil company's on-site expertise in the affected community, the ODPM would have been at a distinct disadvantage in being able to respond to questions about the nature of this threat. The resistance and reluctance of the residents in the area immediately around the restless geological phenomenon to accept what the company was offering by way of dislocation added its own challenging dimension to the ODPM's assignment. With its own well-established and specialised Health, Safety and Environment Department, the company appears to have needed no extra help in being able to tell the story of the Santa Flora bubble-ups for itself, though. It still has an to settle with the public about the findings as to what may have caused the scare and the likelihood of a similar series of occurrences of this in other parts of its vast on-land acreage across the southern half of the country. It is more than a good guess that this corporate posture is going to have to undergo a radical review in the face of the clear and present threat to industrial peace and stability being posed by the current leadership of the representative union, the Oilfields Workers Trade Union. As he continues to hang on to a job from which he seems determined to leave a lasting legacy of leadership, Petrotrin's executive chairman Malcolm Jones is asking himself these days where is Errol McLeod now that he needs him more than ever. By perhaps the cruellest of ironies McLeod, who had by many grudging s matured into a leading statesman among industrial relations practitioners in the country by the time he retired last year, turned the reins of the mighty union over to a radical of his own choosing, one who by many of those same s, has tremendous growing to do on the job. Having virtually destroyed all those contenders who challenged him for the union's leadership over the 21 years he remained at the helm, McLeod handpicked Ancil Roget as his successor. Except that time ran out on him for the kind of grooming that is now manifestly necessary. Whatever the strategy being adopted by the current executive management in Pointe-a-Pierre, Roget's oppositional style is being seen as inappropriate, but is not being effectively challenged. Fond of

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unleashing his rhetorical dogs on Carol David, the company's general manager for human resources, the new PG is said to have crossed lines of civility in high level meetings, without as much as a murmur of protest from the lady's female colleagues on the other side of the table. Appeasement indicators like that are not going to win him over. He appears bent on earning his credentials as a retro firebrand, whatever the cost. His decision to take a protest in a search for answers about legitimate concerns among his hip at the company almost to the sick-bed of the executive chairman at the company hospital in Pointe-a-Pierre on Monday would have proven that beyond doubt. It was, in a word, objectionable. Mr Jones was either receiving, or thought to have been receiving, dialysis treatment at the hospital at the time when the workers besieged the place during their lunchtime on Monday. Doctors were reported as having to plead with them to cease and desist. Quite apart from the intended tres against Mr Jones' critical medical attention and the comfort he had a right to expect from it, the workers who allowed themselves to be blinded into such inhumanity, would have put aside the condition of even some of their own comrades who may have been resting and recuperating at the facility as well. It was an assault clearly out of proportion to any issue that those protesting workers would have wanted to advance. The decision of the workers also to plant a coffin with flowers on the hospital compound, according to one report of the incident was macabre. It was absolutely without feeling. It was an illustration of the move to take the prosecution of industrial relations grievances back to an era we thought had long gone. Somehow, it seems, McLeod would never have descended to approving antics like that. But then he must shoulder a great deal of the responsibility for the coming of Ancil Roget to national prominence. It is to him then that commonsense advocates must turn in an effort that now appears urgent, to get this comrade leader to curb his rough-edged enthusiasm. Please Advise Mr. Jones on how to deal with the issues raised herein from an industrial relations standpoint. Question 2 Rickpat Boying is the Chief Financial Officer of Breakneck Insurance Company Limited and a member of the AGSP Union. Deobaslal Steelnight is leading insurance salesman for Breakneck. On the 10th day of November 2008, Steelnight attended the offices of Breakneck to submit a record 43 policies written up of the month of October 2008. There had lots of parking spaces available in the agents parking lot but Steelnight decided to park in the empty reserved space of Boying. After conducting his business, he came outside to leave and saw Boying parked in the back of his vehicle in a manner that prevented him from leaving. Steelnight proceed to the office of Boying and saw him there in the presence of his wife and proceed to instruct him to “move his #@#@# (expletive) car”. Boying go annoyed and told him he would have to “@&*&* (expletive) wait”. At this point the Managing Director was ing by and only heard the reply of Boying. Both Boying and Steelnight were summoned to disciplinary proceedings and interviewed separately. Steelnight was interviewed first and denied cursing and further

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stated he would resign if Boying was not dismissed. Boying interviewed and was not allowed to call his wife as a witness as it was said that the relationship rendered her not credible. In the company policy handbook, use of expletives is strictly prohibited and is a dismissable offence. Boying was dismissed. Please advise Boying as to his legal options. Question 3 Internet Usage Internet use, on Company time, is authorized to conduct Company business only. Internet use brings the possibility of breaches to the security of confidential Company information. Internet use also creates the possibility of contamination to our system via viruses or spyware. Spyware allows unauthorized people, outside the Company, potential access to Company s and other confidential information. Removing such programs from the Company network requires IT staff to invest time and attention that is better devoted to progress. For this reason, and to assure the use of work time appropriately for work, we ask staff to limit Internet use. Additionally, under no circumstances may Company computers or other electronic equipment be used to obtain, view, or reach any pornographic Internet sites. Doing so can lead to disciplinary action up to and including termination of employment. Email Usage at Company Email is also to be used for Company business only. Company confidential information must not be shared outside of the Company, without authorization, at any time. You are also not to conduct personal business using the Company computer or email. Please keep this in mind, also, as you consider forwarding non-business emails to associates, family or friends. Nonbusiness related emails waste company time and attention. Sending or forwarding non-business emails will result in disciplinary action that may lead to employment termination. Company Owns Employee Email Keep in mind that the Company owns any communication sent via email or that is stored on company equipment. Management and other authorized staff have the right to access any material in your email or on your computer at any time. Please do not consider your electronic communication, storage or access to be private if it is created or stored at work. The above internet and email policy has been drafted by a consultant and you are asked as the Industrials Relations Manager to comment on same. Please comment.

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