COURTNEY MCNISH

It has always been my intention sometime soon to examine how certain landmark judgments from the Industrial Court, delivered over the years, have influenced and changed IR decisions and policies.

However, on February 18 we received a new landmark judgment handed down by His Honour Mr L Achong in TD 020/2018 between the Senior Staff Association of the TT Electricity Commission (T&TEC) and T&TEC that I believe is worthy of our examination and attention by itself.

This judgment is one of interest to us negotiators in the collective bargaining process, mainly because this is the first time within my memory, as well as others I have spoken to, that we have witnessed the court awarding 0-0-0 per cent in settlement of a collective agreement.

This was for the period 2012-2014 for workers of all grades and represents a complete departure from the court’s customary practice of granting at least a minimum or a symbolic wage increase somewhere within the disputed years.

One may inquire what is the court’s role in settling collective agreements, particularly for outstanding wages and salaries.

The scope of the court’s jurisdiction is not limited to individual workers, but includes the collection of workers and relations between workers and institutions to resolve conflicts between them.

The court is therefore considered, because of the expressed provisions of our Industrial Relations Act, the arbitrator of all trade disputes. This obviously includes a breakdown in collective bargaining negotiations for revised terms of an expired collective agreement.

In examining the judgment, it is clear that the court settled the dispute not only by awarding no increases in salary or allowances, but by also holding that it did not matter that T&TEC was able to pay the increase during the actual period in dispute. It was determined that past previous earnings had “little practical relevance now.”

The court was right in its view that what was more at stake is the commission’s ability to pay at this point in time, and if it was forced to take on extra expenditure, then this was very likely to affect the future of the company. This dictum of the court is of great importance to practitioners, companies and trade unions, as it is consistent with the long-standing principles for settling these types of disputes. These are:

1) The ability or inability to pay, by itself, has only a secondary impact on the level of the wage rate. The primary consideration is whether the wage rate is fair and reasonable compared to market.

2) The period in dispute matters little, particularly if the agreement expired a substantial time ago.

3) A wage increase award will only be considered if it would not negatively effect the medium to long-term viability of the company.

In support of its findings the judgment referred to Section 10 (3)(a),(b) of the Industrial Relations Act Chapter 88:01"

Notwithstanding anything in the act or in any other rule of law to the contrary, the court in the exercise of its powers sha