of the Employer Magazine Vol.1 2011
Industrial Relations at a Glance The Employers’’ Consultative Association of Trinidad and Tobago The Premier Employers’ Representative Magazine.Vol.1.indd 1
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Voice of the Employer Vol.1 2011
Chairman and Executive Director’s Profile 4 Affiliations 5 Chairman’s Address 6 New Board of Directors 2011 - 2013 9 An Industrial Relations Saga 11 A look at Natural Justice 15 Institute of Gender 17 Job Seekers in T&T 18 Industrial Relations Guidelines 21 - 37
Our Vision To be the Premier Employers’ Representative Our Mission To Advance Employers Interests for the creation of optimum, sustainable value for all stakeholders. Our Mandate To provide employers with quality representation at the organisational, national and international levels in order to ensure the strength and success of the employer community for the socio-economic well-being of the nation.
Board Members - Keston Nancoo (Chairman), Suzetta Ali (Vice Chairman) Linda M. Besson (Executive Director/Secretary), Ruben Mc Sween, Martin de Gannes, Neil Derrick, Victor Coombs, Dexter Charles, Heidi Bason, W.A. Hilton Clarke, Seeram Ken Maharaj, Lennon Ballah-Lashley, Charlene Pedro, Gwendoline McLaren, Imran Khan, Narendra Kirpalani, and Farzan Ali Publisher: Linda Besson Editor: Marsha Gomes Layout & Cover Design: Marsha Gomes Editing: Annette Joseph, Sharmila Debideen and Marsha Gomes Advertising Sales: ECA Team - Marketing Department Printed by: Caribbean Paper & Printed Products Limited a division of The Office Authority Group of Companies Employers’ Consultative Association of Trinidad and Tobago 23 Chacon Street, P.O. Box 911, Port of Spain Tel: 625-4723, Fax: 625-4891 Email: ecatt@tstt.net.tt, Website: http://www.ecatt.org The views expressed by the ECA Voice Magazine are not necessarily those of the ECA. The ECA accepts no responsibility for the views expressed by contributors nor for errors in contributed articles or advertisements. Reproduction in whole or in part without written permission is strictly prohibited. © The Employers’ Consultative Association of Trinidad and Tobago – All Rights Reserved.
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IR at a Glance
CHAIRMAN’S PROFILE Mr. Nancoo is the Group Vice President, Human Resources and Corporate Services at Guardian Holdings Limited and has over thirty years of experience within the manufacturing sector, both locally and regionally, in Human Resources especially in the area of Employee Relations, Industrial Relations, Marketing and Communications. He served for some ten years as the Branch Secretary of NUGFW, and has been a member of the Employer’s Consultative Association Board for over four years. Keston has a B.Sc (cum laude) in Business Administration and an MBA in Marketing from Andrews University in Michigan, USA. His training did not cease at his MBA but his aspirations and commitment to his career also led him to pursue additional training at The Chicago Business School and Harvard Business School.
EXECUTIVE DIRECTOR’S PROFILE Linda M. Besson, is the Executive Director and Corporate Secretary to the Board of Directors of the Employers’ Consultative Association of Trinidad and Tobago and Executive Secretary to the Caribbean Employers’ Confederation (CEC) the Regional Body of Employers Organisations/Associations. Mrs. Besson has over 30 years’ management experience. She has spent more than 15 years in her current position at the ECA and 14 years at the CEC. Prior to joining the ECA she worked as a consultant manager to Trinidad Cement Limited Group of Companies. Previously she worked at Eastern Credit Union Co-operative as General Manager. Mrs. Besson is adept and experienced at building and developing organisations. She is very much at home working with people and at empowering those around her to see the vision she sees and shares. This has been very well demonstrated in the 15 years she served as Chief Executive Officer of the Eastern Credit Union. In 1993 Linda Besson was the only female CEO in the top 50 companies in Trinidad and Tobago. She has an International MBA and is a member of the Association of Business Executives (ABE). Linda Besson has developed expertise in the development and implementation of Management systems and has project-managed programmes. She also has wide experience in Administration, Financial and Credit Management, Business Development, Public Relations and Managing Change. Her success is demonstrated in the fact that she is responsible for the growth of the ECA from 75 members in 1996 to over 680 members as at April 2011. She also manages a team of 29 persons, including professionals and support staff and is responsible for the forward looking approach the organisation currently holds. The ECA ranks as one of the top Business Organisations in Trinidad and Tobago, being the largest in terms of membership, its service delivery and for its role in Industrial Relations. As the Executive Secretary/Treasurer of the CEC Linda Besson is responsible for the day-to-day administration of the Secretariat, for ensuring that the Confederation is represented at all meetings, workshops and seminars to which it is invited. She coordinates projects and programmes that the regional body may be called upon to carry out, including those coordinated through CARICOM (PANCAP-HIV/AIDS).
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Voice of the Employer Vol.1 2011
CARIBBEAN EMPLOYERS’ CONFEDERATION (CEC) The Caribbean Employers’ Confederation (CEC) is a regional grouping of employers’ organisations in the Caribbean Region founded in 1960. This organisation is dedicated to the development and promotion of good industrial relations practices at the enterprise and macro levels and is committed towards achieving productivity and prosperity for member countries and the region as a whole. Its office is housed at the Employers’ Consultative Association, 23 Chacon Street, Port of Spain, Trinidad.
INTERNATIONAL LABOUR ORGANIZATION (ILO) The International Labour Organization (ILO) was founded in 1919, in the wake of a destructive war, to pursue a vision based on the premise that universal, lasting peace can be established only if it is based upon decent treatment of working people. The ILO became the first specialised agency of the UN in 1946. The ILO is the only “tripartite” United Nations agency in that it brings together representatives of governments, employers and workers to jointly shape policies and programmes. This unique arrangement gives the ILO an edge in incorporating “real world” knowledge about employment and work. The ILO is the global body responsible for drawing up and overseeing international labour standards. Working with its Member States, the ILO seeks to ensure that labour standards are respected in practice as well as principle. Trinidad and Tobago joined the ILO in 1963 and has ratified 17 conventions to date.
INTERNATIONAL LABOUR AND EMPLOYMENT RELATIONS ASSOCIATION (ILERA) The International Labour and Employment Relations Association formally The International Industrial Relations Association was established in 1966 in response to a growing need to develop and exchange knowledge in the field of industrial relations at the international level, and provide the academic and the practitioner with a forum for discussion and research. Its founding members were the British Universities Industrial Relations Association, the Industrial Relations Research Association (USA), the International Institute for Labour Studies (Geneva, Switzerland) and the Japan Institute of Labour. The Association has over 1,000 members worldwide including prominent industrial relations scholars and practitioners. Subjects such as globalisation, new technology, gender, HIV/AIDS, employee involvement, occupational safety and health, industrial relations, labour law, human resource management, international labour standards, social dialogue, labour administration, informal economy, and many other topics are largely discussed during its congresses.
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 146 national employer organisations from 139 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 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.
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IR at a Glance
CHAIRMAN’S ADDRESS It is indeed an honour and a privilege to be appointed to the position of Chairman of the Employer’s Consultative Association (ECA). This organization, now in its 51st year, has a lot to be proud of, particularly when viewed in the context of its unwavering commitment to providing service to meet the needs and interests of employers. As we continue to strive to take ownership for creating our future, the focus of my team over the next two years will be on efforts that will allow us to nurture, enhance and sustain our Brand/Image. In order to realize the benefits from those efforts, we would need to leverage on our core competencies which are the key competitive differentiators which distinguishes the ECA from the rest.
Keston Nancoo Chairman
Our focus in this regard will be on three levels. On one level is our focus on delivering value to our customers through the service we provide, both in terms of content and modality. We believe that our members are our most important resource and it our intention to provide exceptional service on a consistent basis, in addition to providing forums and other opportunities for them to work through their organizational challenges.
The next level would entail deepening and strengthening our relationship with key stakeholders such as the Government of Trinidad and Tobago, the Ministry of Labour, the Industrial Court, the ILO and its affiliated bodies, the Trinidad and Tobago Manufacture’s Association, the Trinidad and Tobago Chamber of Industry and Commerce, the American Chamber of Commerce, the Trade Union Movement, in addition to other National organizations, and other Regional Employers’ organizations. On the National level, we see our role as critical to the process of nation building, where the quality of lives of our citizens would be continuously improved. This however cannot be accomplished by the ECA alone but through a commitment to Tripartism. We wish to place on record that we subscribe to the view that Tripartism is a powerful vehicle and an effective strategy through which commitment to economic and social development can be achieved. Tripartism, brings to the fore the commonality of objectives of social partners which, if handled with the maturity, objectivity and respect by each of the social partners, can realize benefits for all. Moreover, economic prosperity, stability and social progress cannot be achieved by governments, employers or workers acting alone. There must be greater levels of commitment to social dialogue and collaboration where social partners are able to rise to the broader picture since, on the one hand for businesses to be able to provide jobs, they must become competitive and with the ability to compete globally. Correspondingly, there is the need for employers to continuously create an environment where employees are treated fairly and with respect. As an organization, the ECA distinguishes itself from its competitors by having a wealth of knowledge and experience in the field of Industrial Relations Principles and Practices, through its training, advisory services and technical support in the field. Accordingly, we will continue to be a key player by supporting the principles of decent work agenda; the modernization of the Legislative frame work; efforts to enhancing Productivity and Competitiveness and Small and Micro Enterprise Development.
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The Employers’ Consultative Association of Trinidad and Tobago
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Voice of the Employer Vol.1 2011
The ECA has also worked assiduously with the Caribbean Employers’ Confederation (CEC), a regional grouping of employers’ organizations in the Caribbean Region founded in 1960 by six (6) Caribbean countries which included the Antigua Employers Federation, the Barbados Employers Confederation, the Belize (British Honduras) Employers Association, the Jamaican Employer’ Federation, the St. Lucian Employers’ Federation and the Employers’ Consultative Association of Trinidad and Tobago. Today there are 17 countries in the Confederation and its Secretariat has been housed at the ECA’s head office in Trinidad since April 1997, serving the Region. One such piece of employment legislation is the Industrial Relations Act. From 1970 till today the ECA has been a member of the Advisory Committee to report on its content, structure and currency and continues to work to ensure a balance in the legislative framework of the nation in favor of Employers. The ECA has also been involved in a number of Committees that represents the Employers interest nationally, having gained recognition as the leading Employers Association. The ECA, functions in a representative and regulative, consultative, and educational capacity with respect to employers’ interests. While Industrial Relations – Advice and Consultancy remains the mainstay of the Organization, the adoption of a proactive approach to Human Resource on a whole has enabled the Association to not only provide guidance and/or consultancy in the areas of human resource management, but also in environmental management, occupational safety and health, and other workplace issues. In the past decade the ECA has also focused on offering in-depth training to improve the quality of one’s employee’s performance, emphasizing the connection between human asset development and your bottom line. As employers continue to grapple with the impact of the global financial and economic crisis on enterprises, labour markets, industrial relations and competitiveness, and seek to reposition themselves to successfully face the challenges of this era, the role of the ECA will assume even greater significance. The future will belong to organizations whose leadership remain calm, are able to fully assess their options and nurture the flexibility, awareness, and resilience needed to deal with whatever the world throws at them. Let us go forward with the passion, tenacity and commitment to build a better world and more importantly, a better Nation. I thank you and look forward to serving you throughout my tenure and to indicate to the membership and stakeholders of this esteemed organization that your confidence is well placed.
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IR at a Glance
BOARD OF DIRECTORS 2011 - 2013
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Keston Nancoo, Chairman Vice President, Human Resources Guardian Holding Limited
Suzetta Ali Vice Chairman General Manger Coates Brothers (Caribbean) Limited
Mr. Ruben Mc Sween (Immediate Past Chairman) Board Member and Member of Executive Committee Vice President Customer Service Centres Trinidad and Tobago Unit Trust Corporation
Mr. Martin de Gannes Board Member and Member of Executive Committee and Chair of the ECA Industrial Relations Committee General Manager Human Resources Scotiabank (Trinidad & Tobago) Limited
Mr. Neil Derrick Board Member and Member of Executive Committee and Chair of the ECA Finance Committee Manager, Industrial Relations & Compensation & Benefits, Petroleum Company of Trinidad and Tobago Limited
Dr. Victor Coombs Board Member and Member of Executive Committee and Chair of the ECA OSH/HIV/AIDS Committee Medical Practitioner/ OSH Consultant
Dexter Charles Board Member and Member of Executive Committee and Chair of the ECA Stakeholders Committee Manager Corporate Communications First Citizens Bank Limited
Ms. Heidi D. Bason Board Member Manager-Group Corporate Communications Atlantic LNG Company of Trinidad & Tobago
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Mr. W.A Hilton Clarke Board Member Director CONFIDA Limited
Mr. Seeram Ken Maharaj Board Member Chief Executive Officer Seeramics Limited
Mrs. Lennon Ballah - Lashley Board Member Divisional Manager Human Resource Services (Ag) Trinidad and Tobago National Petroleum Marketing Company Limited
Mrs. Charlene Pedro Board Member Manager - Corporate Services Business Development Company Limited
Ms. Gwendoline McLaren Board Member Human Resource Manager Colonial Life Insurance Company (Trinidad) Limited
Mr. Imran Khan Board Member Chief Executive Officer K.C. Confectionery Limited
Mr. Narendra Kirpalani Board Member Chief Executive Officer Interior Exterior Aluminum Decorators Limited
Mr. Farzan Ali Board Member Human Resource Manager Tissue Limited
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IR at a Glance
The National Insurance Employment Injury Benefits are payable to an insured person who is unable to work because of personal injury caused by an accident, which arises out of and in the course of employWHO CLAIM ment, CAN or through a prescribed industrial disease caused by the nature of their employment. WHAT ARE THE EMPLOYMENT INJURY BENEFITS This is a unique benefit which consists of four (4) categories: Injury Benefit - payable for 52 calendar weeks. Disablement Benefit - consists of either a monthly pension or a lump sum payment. Medical Expenses - to assist with expenses incurred as a result of injury or a prescribed disease. WHO CLAIM Death CAN Benefit - monthly benefit payable to the spouse, dependent parents and dependent children.
Anyone who is in insurable employment where the individual is employed under a contract of service and:A contribution was due for that week of employment Is away from the job because of an accident/disease that arose out of or in the course of employment; WHEN TO CLAIM Is incapable of work for more than 3 days as a result of the injury or prescribed industrial disease.
Within 14 days After 14 days up to 12 months
Claim will be accepted
WHAT PAID Over 12ISmonths
Claim shall be disallowed
Claim is late and may be accepted with good cause. A late claim letter is needed
The benefit payment is determined by using the class in which your contribution was made in the week DID KNOW? of theYOU accident or the week prior to the accident, whichever is higher.
The Employment Injury Benefit will be paid to a claimant whether or not there is a loss of earnings resulting from the injury or prescribed industrial disease. For more information, please visit our website or call us today.
The Em Employers’ Consultative Associati ociation of Trinidad and Tobago g www.nibtt.net Hotline:663-4NIS info@nibtt.net seminars@nibtt.net
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AN INDUSTRIAL RELATIONS SAGA
– A trip down memory lane on the Industrial Relations Climate in Trinidad and Tobago over the years written by Mr. Gabriel Yeates INDUSTRIAL RELATIONS REVOLUTIONISED
It is believed that the Enacting of the Industrial Stabilization Act (ISA) No. 8 of 1965 in March of 1965 was the best thing that ever happened to Industrial Relations in Trinidad and Tobago. Industrial Relations took on a revolutionary change at this time; in that there was no more ‘hit and miss, pound table negotiations’ and there was a discontinuation of brawn power. In fact, when it was announced sometime around the 12th to the 14th of March 1965 that the government of Trinidad and Tobago was going to enact legislation for the control of trade unions, most people did not believe that the government could have done such a thing. When the government went to parliament within the next two days, the Bill (ISA) was placed on the table and the main facts were as follows: 1)
There would be compulsory recognition of trade unions by employers once the trade union had organized 51% of their workers in the particular bargaining unit.
2)
There would also be instituted an Industrial Court for the resolving of trade disputes referred by the Ministry of Labour which must be unresolved after discussion. The said Court had untold power to decide according to section 13 (A) of the ISA that in making awards. It must take into consideration the following: Equity Good Conscience The substantial merits of the case before it What effect its decision will have on the rest of the community And it must not be harsh or oppressive but in keeping with the principles and practices of good industrial relations.
This industrial relations change was revolutionary. What this Act did among other things was to take the power out of the hands of employers which was given to them by the Masters and Servants Act of 1846, which was revised sometime in the 1930s, and put it into the hands of employees.
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IR at a Glance
FAIRNESS AND REASONABLENESS To understand the above phrase, Justice Reece in Civil Appeal No. 30 of 1972 between UCIW and Caribbean Printers Ltd defined what it meant by the principles and practices of good industrial relations – stated “all those informal, un-codified understandings which are ancient habits and dealings adopted by trade unions and acquiesced in or agreed to by employers”. - It meant that anything could be contrary to the principles and practices of good industrial relations and therefore the trade unions could have referred anything to the Industrial Court as a dispute to be heard. - All collective agreements had to be registered in the Court for it to be legal and enforceable and the said Collective Bargaining agreement must carry a clause entitled grievance procedure for the avoiding and settling of trade disputes. If any such Collective Bargaining agreement was mistakenly stamped by the Industrial Court and didn’t possess a grievance procedure, it would automatically be deemed null and void with no effect. - Trade Unionists and workers who were engaged in illegal strikes would be punished by being fined or jailed or if employers had wrongly locked out workers, they also would be fined or incarcerated. After years of working with the ISA, it was reviewed. In 1972 the Industrial Relations Act (IRA) was born, which today has been subject to several amendments. The IRA (No. 23 of 1972) and amendments now 88:01, plugged the various holes that were in the ISA and brought in some new clauses. These clauses are as follows: 1. Recognition would no longer be given by employers, but by a Board comprising Unions and public spirited individuals. The Board was known as the Registration, Recognition and Certification Board (RRCB). 2. Once the trade unions had organized 50% of the employers’ workers as members in the particular bargaining unit, the board was obligated to issue the certificate of recognition to the trade unions. That certificate of recognition was a complete marriage between labour and employer and the only way out was if either party had violated the IRA by committing an Industrial Relations Offence (IRO) as was done by Communications Workers Union (CWU) with Holiday Inn now known as Crown Plaza when the said CWU did not follow the Industrial Relations procedure before taking strike action.
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What CWU did wrong is that they did not count correctly and took strike action on the 8th day, thus committing an Industrial Relations Offence (IRO) which was upheld by the Industrial Court of Trinidad and Tobago and which gave the employer the right to fire all those workers who went on strike. In addition, the Industrial Court withdrew as a request by the employer the recognition which the union had obtained. This procedure, which was a new clause by the IRA stated that Industrial Action could only take place when there is a dispute of interest (not a dispute of right) which must: - Step 2 - reach the Minister of Labour. - Step 3 - The Ministry of Labour has 14 days to resolve the matter - Step 4 - If the Minister could not he must ask for an extension of time which must be agreed to by both parties continued on next page
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Act No. 4 of 1998 and the Minimum Wages Act No. 17 of 1999 (as amended in 2006); and as well as the Occupational Safety and Health Act. - Natural Justice – there are 23 of them but most people only know about 5, for example: - A man is innocent until proven guilty - If found guilty, penalty must suit the offence - If there is doubt, benefit goes to the accused - The right of appeal - No one is above the law Some of the landmark court judgments include: - Application of Industrial Agreement No. 4 of 1968 between Lake Asphalt and Construction Workers Union which gives us the principle on how to dismissed correctly. - TD No. 28 of 1968 between Lake Asphalt and Seamen and Waterfront Workers’ Trade Union (SWWTU) says that there is no such thing as light duties for which the Employers is obligated. - No. 2 of 2000 between CWU and Hindu Credit Union – itemizes the factors for exemplary damages. - Step 5 - and if the dispute is still not resolved, the Minister must then state in writing that the matter is unresolved - Step 6 - from here, either party now has the right to take Industrial Action (Strike or Lock Out) within 7 days after the Minister had stated that the matter is unresolved. PRINCIPLES AND PRACTICES OF GOOD INDUSTRIAL RELATIONS The Principles and Practices of Good Industrial Relations can be found under three main headings: - ILO Conventions, especially numbers 87, 98, 100 and 158 – the government of Trinidad and Tobago have ratified at least 17 of these ILO conventions.
- ESD No. 16 of 1982 between T&TEC and OWTU covers absenteeism and sick leave today. - TD No. 159 of 1974 between NUGFW and Cannings Limited – which states that if a worker absences himself two days every month for nine months consecutively, he can be dismissed among other things. - Trade Dispute No. 20 of 1966 between UCIW and Textile Limited and further supported by Trade Dispute No. 14 of 1968 between TIWU and PTSC which gave the principle that an employer cannot claim inability to pay wages which is a cost while his other cost (materials, electricity, transport, entertainment and other costs) are increasing. -*-
- Labour Laws – there are about 44 labour laws in this country – but the four which operate everyday are the Industrial Relations Act 88:01, the Retrenchment and Severance Benefits Act No. 32 of 1985, the Maternity Protection
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IR at a Glance
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NATURAL JUSTICE
The basic guidelines to any Industrial Relations Practice The industrial relations system in Trinidad and Tobago was transformed from voluntary to a legal compulsory system in 1965 with the passage of the Industrial Stabilization Act (ISA) of 1965. This piece of legislation was later repealed and replaced in 1972 by the Industrial Relations Act (IRA). The Industrial Court which was established for the determination of industrial relations disputes is a creature of the IRA. This important Act of Parliament espouses a doctrine that parties in an industrial relationship must practice good and proper industrial relations. The IRA therefore gives an unambiguous command to the court to apply the principles stated therein i.e. good industrial relations practice, in all matters before it. Good industrial relations practice is premised on compliance with the rules of natural justice. These rules can be divided into three main elements which ought to be applied by the employer in the order they are presented before effecting disciplinary action. These are: (i) The employer must conduct an investigation fairly and in good faith (ii) The worker must be informed of the charge/s against him/her and (iii) The worker must be given an opportunity to be heard in his/her own defense. Conducting an investigation fairly and in good faith simply means that there must be an objective and fair approach to the exercise and that no disciplinary action or punitive measure must be taken in advance of such investigation. Any disciplinary action taken before the disclosure of the findings of an investigation amounts to a breach of procedural fairness and is challengeable purely on those grounds. A precautionary suspension may be effected if it becomes absolutely necessary to remove the worker/s from the working environment to facilitate freedom or easy access to the investigators. Such suspension must be with full pay, hence not punitive.
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If the circumstances surrounding the allegations are so blatant and sufficient, irrefutable evidence is available then no further investigation may be necessary. However, the onus is then placed on the employer to show that such a situation existed which would not have changed the outcome. It is expected and proper that when allegations of misconduct are made against a worker either by an informant or external person, a balance must be struck between protecting the informant and providing a fair hearing to the accused. The necessity to inform the worker of the charge/s against him/her is to allow the incumbent a fair and reasonable opportunity for the preparation of his/her defense. This opportunity is indeed critical as it gives the worker a chance to present evidence in refutation or provide witnesses in his/her defense. A deprivation of this opportunity by the employer breaches the rules of natural justice. Trade Dispute No.15/2000 between Bank and General Workers Union and Public Services Association emphasizes the importance of this step. The essence of a fair opportunity to be heard involves the provision of all relevant information including witness statements, by the employer to the accused worker to enable him/her to understand and appreciate the substance of the allegation/s against him/her. Further, it presents to the incumbent an opportunity to respond to the allegation/s as well as a chance to advance a plea in mitigation or even beg for leniency. By this means an opportunity is also provided to the worker to bring to the attention of the employer relevant facts and to provide his/her side of the story before disciplinary action is taken. This step is a requirement of procedural fairness and justice and is one of the main pillars of good industrial relation practice.
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IR at a Glance
good cause since there must be valid reasons supported by evidence for the purported loss of confidence. The principles of good industrial relations practice also require an employer to inform the worker of the reason/s (good cause/s) for the proposed dismissal.
The principles of good industrial relations practice dictate that no worker’s employment may be terminated except for valid reason (good cause) related to his/her performance of job functions for which he/she was employed or which is founded on the operational requirements of the organization. These long standing principles are enshrined in International Labour Organization (ILO) Convention No. 158. The fact that this particular convention has not been ratified by Trinidad and Tobago is an untenable argument according to the court in TD No. 140/1997 – Bank and General Workers Union vs. Home Mortgage Bank. The court had this to say “. . . it is not applicable as part of the domestic law of Trinidad and Tobago but as evidence of principles of good industrial relations practice which have been accepted internationally.” The termination of a worker’s employment purely on the basis of a termination clause in the contract that gives parties the option to terminate the relationship by giving notice, is an unfair dismissal since good cause must be established. There is a statutory right of workers not to be unfairly dismissed and this is not derived from contract but the existing legislation, the IRA. Similarly, the expression of loss of confidence by itself does not constitute
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The three main elements of the rules of natural justice are inextricably connected since failure to comply with any or all of them amounts to a violation of ILO Convention No. 158 and a violation of good industrial relations practice. It is important to note here that the protection provided under Section 10(3) of the IRA applies to all workers whether unionized or not whether they are on fixed term contracts of short duration or full time employment. The length of the contract is of no significance. In determining whether or not a worker should be dismissed the employer should examine the facts objectively to determine whether or not dismissal is the appropriate penalty having regard to the circumstances of the case. Progressive disciplinary action in matters of punctuality, absenteeism and on the job performance appears to be the thinking of the court. The length of service and the record of the worker are important factors to be considered when contemplating disciplinary action. Modern jurisprudence has attached significant value to the contribution of long service by a worker to an organization which service is now regarded as equity. Mr. Kyril Jack IR Expert
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The Institute for Gender & Development Studies: Nita Barrow Unit The United Nations Research Institute for Social Development on its website stated that: “In recent decades the presence of women in public life has grown, whether in politics, in the workforce, or in the migrant streams that cross international borders. At the same time, the intensive engagement of activists and researchers with the development establishment has turned “gender” into a legitimate policy issue for institutions and movements operating at different levels. Yet gender inequalities in power continue to be a persistent and integral feature of the modern world and its institutions - whether markets and macroeconomic flows; states, political parties and social movements; or the intimate sphere of family, household and community. Transformative agendas of
First Graduate Symposium, Nov 2009Chairman social change are constrained not only by the continued dominance of market orthodoxy in some important arenas of policy making, but also by shifts in geopolitics, and new forms of religious and cultural politics that are being played out at global, national and sub-national levels.” The Institute for Gender and Development Studies: Nita Barrow Unit, University of the West Indies (UWI) Cave Hill, Barbados will be hosting a four-week training programme entitled: “Caribbean Institute in Gender and Development : An Intensive Training Programme” from July 1-31, 2011. The programme examines the impact of gender relations on women and men and how these relations affect the process of social change. According to the university participants will be in a better position to improve their social situations and that of their societies after completing this course.
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Specific objectives of the programme are as follows: - To provide critical insights into feminist theories and methodologies and their application to everyday issues in Caribbean societies. - To impart skills of gender analysis as tools for analysing and understanding the developmental process. - To examine historical, political, cultural, environmental, social and economic issues from the perspective of the social relations of gender. - To develop a consciousness of gender relations as a mechanism that facilitates professional analysis and raises levels of confidence and self-awareness. - To enable participants to act as catalysts for change by developing their leadership and communication skills. - To enable participants to share experiences and develop networks as a basis for future action. The course will be taught in English and will use an interdisciplinary, participatory method of instruction. The results of the project may be a research paper, a document or resource kit, or a range of video or audio products. A certificate will be presented to each participant who successful completes all components of the programme. Certificates will also be awarded with distinction for outstanding work. The university can be contacted on: (246) 417-4490/1/2/3 or via E-mail: gender@cavehill.uwi.edu for those seeking further information on this informative and relevant programme.
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IR at a Glance
JOB SEEKERS IN T&T What Every Employer Needs to Know The Employers Solution Centre (ESC) the subsidiary of the Employers Consultative Association of Trinidad and Tobago (ECA) has undertaken an online research initiative to understand the psyche of the job seeker in today’s labour market, and to use this information to assist employers with recruiting and retaining the best performers for their environments. Among other things, the research effort sought to identify the type of employee that is most likely to be constantly searching for a better job opportunity and the aspects of the employee’s work life which most contribute to employees’ wanting to leave their jobs. Results indicate that those persons who intend to leave their jobs by the end of 2011 differ significantly from those who intend to stay in their current jobs, such that those intending to leave; - Agree more that they are always searching for jobs - Are less concerned with the stability of their jobs - Think it is more difficult to find suitable employment However, results also show that both those who intend to leave and those who intend to stay share significantly similar levels of concern with the financial viability of their companies. These results are interesting because they may provide indication that persons who are more concerned about their company’s financial viability and job stability may be more likely to stay put and not search for another job at this time. This may be as a result of the current state of the national and global economy, which is still recovering from the global recessionary period beginning 2008. Also while persons who want to change jobs
within a year are concerned with the stability of their jobs, they are more concerned with the financial viability of their companies, demonstrating that employees are aware and will probably seek information and clarification on the financial performance and position of their companies. This will serve as a clear indication to employees of whether or not they need to be concerned about their actual jobs. Employees who wish to remain in their current jobs for the upcoming year are concerned with the financial viability of their companies but they are more concerned with the stability of their jobs. This indicates a strong sense of the need for security - a basic need which employees may feel must be protected at this time. Both those who want to leave and those who want to stay with their companies are very concerned with the stability of their own jobs, even more so than the financial viability of their companies. Survey results also demonstrate that persons who intend to leave their jobs by the end of 2011 differ from persons who intend to remain in their current jobs such that they are significantly less satisfied with: - Opportunities available for training and development - Ability to maintain a healthy work/ life balance within their current jobs - The physical environment in which they work - The performance incentives offered
Rating Score (1: Strongly Disagree to 5: Strongly Agree)
Average Rating Comparisons between those intending to leave and those intending to stay 4.5 4 3.5 3 2.5 2 1.5 1 0.5 0
Intends to stay
3.5
4.2
3.6
4.0
3.68 3.63
3.9
3.3
Intends to leave by end of 2011
I am always It is difficult to find I am concerned about I am concerned searching for a better suitable employment the financial viability about the stability of job opportunity. in Trinidad & of my company. my current job. Tobago. Job Seeking Perceptions
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The Employers’ Consultative Association of Trinidad and Tobago
5/18/2011 7:51:13 AM
Voice of the Employer Vol.1 2011
It is also interesting for employers to note that people intending to leave their jobs are just as satisfied as those who intend to stay with: - Relationships with their bosses and team members - The tools provided to them for work - Knowing what level of performance is required by their employer - Projects assigned to them; and - Knowing the impact their work has on the organization The respondents to this survey were largely people between the ages of 18 to 35; the variables prompting turnover within this cadre should be noted and turned into an opportunity by employers to capitalize on the changing needs of employees. Take away points for employers; - Be able to manage the delicate balance between honesty and prudence in communicating the financial position of your company - Find ways to assure your staff of their job stability. - Be aware that job candidates may be more concerned with examining your company’s Annual Financial Report more than with their individual remuneration packages. - Use the internal strengths of your company to brand its image to employees and job candidates. This is
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at times more difficult to do for existing employees, but this is where your HR team or advisor steps in! Call the Employers Solution Centre today at 625- 4723 ext. 243, 231 or 249 for a consultation ****
Recruitment Services for
Human Resource Professionals HR Executive / Manager HR Officer HR Assistant Management Trainees
Employee Relations
Human Resource
Industrial Relations
We have a large database of HR and IR Professionals in Trinidad and Tobago.
Call today for access! 625-4723 The Employers’ Consultatitve Association of Trinidad and Tobago
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IR at a Glance
Our Mission To Advance Employers’ Interest for the Creation of Optimum Sustainable Value for all Stakeholders
Our Mandate To Provide Employers with Quality Representation at the Organizational, National and International Levels in Order to Ensure the Strength and Success of the Employer Community for the Socio-Economic Well-Being of the Nation
Become a Member of the ECA
What We Do? - Advocacy and Representation of All Employment Issues - Free Telephone Advisory on Labour Legislation, Industrial Relations, National Standards on Working Conditions and Human Resource - Research: Compensation Surveys, Labour Market and Employment
- Publications - Compilation of Wages and Salaries; Collective Agreements and Industrial Court Judgments, etc. - Outreach: Informative Website, Radio Series, Subscription to Employers Voice Magazine, information via email - Forming Alliances/Networking - Meetings on various topics of interest - Employers Solution Centre Limited provides Training, Human Resource and Industrial Relations Solutions in addition to any other consultancy request at discounted membership prices
Let Us Serve You! Becoming a part of the ECA’s family entitles you to a full range of employment services. As the Employment environment in Trinidad and Tobago changes into a globalised arena, the ECA is no longer to be seen just as true to its vision to be the Premier Employer Representative.
Contact Us 20
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The Employers’ Consultative Association of Trinidad and Tobago
5/18/2011 7:51:18 AM
Voice of the Employer Vol.1 2011
INDUSTRIAL RELATIONS GUIDELINES A look at key principles and topics The information presented here is intended as reference only and the Employers’ Consultative Association of Trinidad and Tobago and the Employers Solution Centre do not represent the information herein to be definitive or all-inclusive.
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IR at a Glance
EMPLOYMENT CONTRACTS A Contract of employment in its simplest sense is an agreement between an employee and his employer on the terms and conditions of employment. They may be written or oral or partly written and partly oral. Contracts of employment, like all other contracts, consist of express or implied terms. The express terms are those that the parties have actually agreed. The implied term are those terms which are not stated in the contract but are inserted by the courts to fill the gaps left by the express terms to which the parties actually agreed. Terms may be implied on the basis, for example, that they are necessary and the parties would have agreed to them had they thought of them at the time of contracting, (for example, the implied duty of fidelity or trust and confidence). Contracts of employment may be either permanent or for a fixed term. A fixed term contract has a stated start and end date of employment. This is usually used for short term project type work. Permanent contracts have a stated commencement date, but no end date. It is presumed that the employee will work until the age of retirement or until the contract is otherwise terminated. Contracts “of” and “for” services Contracts of employment should not be confused with “contracts for services”/“independent contractor” agreements. A “contract of employment” or a “contract of service” means that the individual hired by the employer is an employee of that employer. Whereas, under a “contract for services”, the hired person is an “independent contractor”. The distinction between an employee and an independent contractor is important because they attract different rights and legal consequences. For example, an employee (worker) through his trade union may report the existence of a trade dispute to the Minister under the Industrial Relations Act 1972 if he was dismissed contrary to the principles and practices of good industrial relations. However, the rights of an independent contractor, if dismissed, are limited to sue for breach of contract in the High Court (Civil Division). The following are some common differences between an employee and an independent contractor. EMPLOYEE Statutory deductions are made by the employer; Paid leave entitlement - sick, vacation etc.; Employer may be vicariously liable for the torts of their employees; Employer has the right to discipline; generally, there is supervision there maybe exceptions, for example, specialist jobs; Employer may contribute to pension and health plans.
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INDEPENDENT CONTRACTOR No deductions - responsible for his own taxes; No Paid leave entitlement; Liable for his own torts; Employers have no right to discipline; Requires little or no supervision. Test to determine employment relationship The fact that a person is called an employee does not mean that he is employed under a contract of employment. Alternatively, the fact that the person is labeled as an independent contractor or the fact that the contracting parties labeled the relationship in a particular way does not mean that the label will obtain. It is not conclusive. It is merely evidence from which the Court may infer the intention of the parties and the existence of one of the two employment relationships. Ferguson v John Dawson (Contractors) Limited (1976) 3 ALL ER 817. Hence, “…it must be the Court’s duty to see whether the label correctly represents the true legal relationship between the parties”. Young & Wood Limited v West (1980) IRLR 201. In determining whether a person is an employee or an independent contractor, the Courts employ the Multiple or Multi factor Test. Ready Mixed Concrete (South East) Limited v Minister of Pensions and National Insurance (1968) 2QB 497 per Mac Kenna J, a contract of service exist when: 1. The servant (employee) agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master. 2. He agrees, expressly or implied, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master (employer). 3. The other provisions of the contract are consistent with it being a contract of service continued on next page
The Employers’ Consultative Association of Trinidad and Tobago
5/18/2011 7:51:22 AM
Voice of the Employer Vol.1 2011
Economic Reality Test Market Investigations Limited v Minister of Social Security (1969) 2 QB 173. The question should be asked, whether the person was in business on his own account. If so, then there is a contract for services. The following maybe asked: • Whether the individual provides his own equipment • Whether he hires his own helpers • The degree of financial risk he takes • The degree of responsibility for investment and management • Whether he has an opportunity of profiting from sound management in the performance of his task. Other factors that may be taken into consideration:
• Statutory deductions • Employer contributions towards health plans • Paid vacation and sick leave • Bound by company rules and procedures • Employer responsible for workers tortious acts under the doctrine of vicarious liability. • Degree of supervision • Pension, gratuity benefits • Employer’s right to discipline • Power to delegate (Express & Echo Publications Limited v Tanton (1999) IRLR 367) However, in Macfarlane v Glasgow City Council (2001) IRLR 7, it was stated that a limited or occasional power of delegation is not inconsistent with a contract of employment. ****
THE PROBATIONARY PERIOD The primary purpose of probation is to allow an employer to assess an employee’s suitability for permanent employment. Additionally, it gives the employee an opportunity to determine whether the job is suited to him or her. An employee who is on probation is, in effect, a permanent employee who is yet to be confirmed in their position. The Company’s expectation during the probationary period should be communicated clearly and understood by the employee. Thus, it is advisable that the employee be informed, in writing, of the length of the probationary period as well as the performance standards required during this period. Assessment of the probationer’s performance should be a continuous exercise. Probationers should be informed of shortcomings in relation to their performance. They should be given guidance and coaching on how to improve the specified problem areas and given reasonable opportunity to improve. Probationary periods should be reasonable. What is considered reasonable will depend on the nature of the job as this will determine how long it will take to establish
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whether the employee is performing satisfactorily or not. The more complex the job - the longer the probationary period may be. Generally, probationary periods are three to six months. At the end of the probationary period the employee should be notified, in writing, of his or her confirmation in the position. Probationary periods may be extended within reason where the employer is not convinced that the employee’s performance is up to the required standard of the organization. Any extension of the probationary period should be in writing. The employee must be given adequate notice of any extension of the probationary period. In cases of non confirmation, an employer ought not to wait until the end of the probationary period to inform a probationer that he or she cannot be confirmed in the position. It is recommended that the employer give the probationer adequate notice of non confirmation in the position. Contrary to popular belief, a probationer cannot be dismissed without cause. Where dismissal of a probationer is contemplated, the general rules of procedural fairness must apply. For example, if the issue is poor performance, the probationer “must be told beforehand of his performance shortcomings and given an opportunity to improve”. Summary dismissal is rarely justified if this is not done. Where the probationer is dismissed for other reasons than performance, for example, misconduct, the normal procedure in relation to discipline must be applied. ****
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IR at a Glance
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Voice of the Employer Vol.1 2011
THE POLICY MANUAL Businesses should establish policies and procedures and commit them to print before hiring the first employee. Businesses often overlook the creation of policies and procedures but this simple task has the ability to save time and money in a variety of ways. These Policies defined simply as rules as to how the company and its representatives should handle specific scenarios, and procedures, meaning instructions as to how to accomplish certain tasks, are crucial to every business, regardless of size.
procedures manual, it defines standards of behavior and outlines what will happen when those standards are not upheld. The handbook should contain the company’s employee policies and procedures for asking for leave and similar requests. Management may find this to be an empowerment tool should it be needed to discipline an employee.
A manual is like your communication tool for your employees. They need not come to you every time they have questions in mind because they have the manual to read. It also saves business owners from any excuses of employees, since everything is stated in the manual. Thus there should be no point for argument. The main benefit is that the company is able to operate with greater consistency, both in its internal and external workings. Company morale generally increases because guidelines are available on how to accomplish a task. Set policies and procedures can also circumvent certain legal issues. The policies and procedures manuals of a business should be in accordance with applicable laws. The books need to appear professional as an investor may request a copy of the policies and procedures of a company under review. Procedures Manual This manual should clearly describe processes, such as how to enter an invoice into the system, processes with which the new employee will not yet be familiar. This may seem quite simplistic to the writer who is familiar with the tasks at hand, but to the novice, a precise explanation of the procedure may be invaluable. Policy Manual This manual should contain the company’s policies on employment, disclosure, competition, customer service, purchasing and so forth. When writing a policy manual you should always keep in mind, if the owner could not be reached, what would an employee need to know to accomplish his assigned tasks?
Importance of a Policy Manual Template A policy and procedure manual is an important document in any oďŹƒce or business. Though many types of policy manuals are currently made, it is still best to follow a policy manual template when you are making the manual. So what is the significance of a policy manual template? Listed below are some of the reasons why you should develop one: 1. It allows you to organize the contents of the actual manual, such that they follow a specific order. 2. It makes business owners modify their policies and procedures easily since they have a guide format. 3. It makes easier construction of drafts for the manual. 4. It ensures that the manual contains all the essential details that are necessary for the benefit of the employees and the business operation ****
The Employee Handbook This will be the first formal communication the company has with a new employee. As an abbreviated policies and
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IR RETAINER SERVICES
IR at a Glance
Ensure that your management decisions are within the current laws which govern Employer/Employer relationships and are in-line with IR/HR Best Practice. Our services include: 1. General Advice, Guidance and Consultancy on Industrial Relations and Labour Laws issues; within the IRA, the Equal Opportunity Act and all Labour laws of Trinidad & Tobago. 2. General Advice on Industrial Relation Best Practice. 3. Telephone Advisory. 4. Written advice and or guidance as a consequence of telephone advisory. 5. Research and Preparation of relevant disciplinary, warning and/or dismissal letters 6. Facilitation of meetings with the Company’s management team. Helping you avoid problems before they begin, is where our IR Retainer Service can be invaluable.
The Em EEmployers’ Consultative Associati ociation of Trinidad and Tobago g The Employers’ Consultatitve Association of Trinidad and Tobago
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5/18/2011 7:51:30 AM
Voice of the Employer Vol.1 2011
JOB ABANDONMENT Job Abandonment is one way in which the employment contract can come to an end. It occurs where the employee overstays an approved leave of absence, or absents himself from work without proper justification for a period of time. The Industrial Court, in several of its judgments, has stated “Abandonment is a matter of intention and this intention can only be gathered or inferred from the conduct of the person intending to abandon the job. The presence or absence of intent to remain away permanently can be inferred from circumstances surrounding the absence of the employee.â€? The court has also highlighted certain factors that should be considered before determining that the worker intended to abandon the job. Such factors include:1. Length of the absence; 2. Whether the worker kept in contact with the employer during the absence; 3. Whether the worker refused or failed to return on being directed to do so by the employer, and 4. Whether the employer warned the worker that failure to return by a fixed date would result in dismissal. Generally, most Companies have a policy relating to the issue of Job Abandonment. Such a policy typically states that if the worker is absent for three or more days, he will be considered to have abandoned his job. It should be noted that the mere absence of the worker from the workplace will not necessarily prove abandonment of the job. Where the Company has not heard from or seen the worker for a period of time, there is a procedure that must be followed before the Company can truly state that the worker has abandoned his job. The procedure is as follows:1. When an employee is absent from work, the employer should make reasonable eorts to contact the employee to ascertain the reasons for his or her absence. This can be done by contacting the employee at the telephone numbers listed on his personnel file or at any other known telephone numbers that the Company is aware that the employee possesses. 2. If there is no legitimate excuse for the absence or contact cannot be made with the employee, the employer must then write to the employee. This letter should notify the employee of his absence, direct him to report for
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work on a specific date, and also put him on notice that his failure to attend work on or before the date stated in the letter, would result in the Company determining that he has abandoned the job. The letter should then be sent via registered mail at the last known address of the employee. 3. Should the employee fail to report for duties by the date stipulated in the letter, the employer must send a final letter informing the employee of his failure to report for duties on the requested date and stating that the Company has determined that the employee has abandoned the job. This letter should also be sent via registered mail. It should be noted that in instances of perceived Job Abandonment, that the onus is on the employer to communicate with the absent employee. ******
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IR at a Glance
The Em EEmployers’ Consultative Associati ociation of Trinidad and Tobago g
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5/18/2011 7:51:39 AM
Voice of the Employer Vol.1 2011
ABSENTEEISM In Industrial Relations the premise upon which discipline is based is: “For group action to be performed efficiently there must be coordination and control on the part of the employer.” Because of this the employer has been given the right to lay down rules and regulations so that he can control and coordinate the five M’s : • Money • Men • Machine • Material • Motivation Thus workers whenever they enter the workplace or been employed they are subject to rules and regulations laid down by way of policies, collective bargaining agreements and laws of the lands. They are supposed to carry out said rules and regulations because the said rules and regulations are part and parcel of their contract of employment. Anytime one of these rules or regulations has been violated they would have breached their contract of employment and therefore they are subject to disciplinary action. The employer has the right to punish the worker for what he has done. Nevertheless in executing such punishment the employer must take into consideration Section 10 (3b) of the Industrial Relations Act which says: “One must not be harsh nor oppressive but must be in keeping with the principles and practices of good Industrial Relations.” Now, according to Justice Reece in Civil Appeal No. 30 of 1972 between Caribbean Printers Ltd. and the Union of Commercial and Industrial Workers the principles and practices of good Industrial Relations is: “All those informal uncodified understandings which are ancient habits and dealings adopted by trade unions and acquiesced in or agreed to by employers.” Thus when a worker absents himself from work or comes late to work whether it is one minute, two minutes three minutes or more he would have breached his contract of employment and is subject to be disciplined by the employer. Bearing in mind that the employer in punishing the worker must not be harsh nor oppressive then the employer should use the progressive steps of discipline which means for the first offence the worker is warned orally, second offence the worker is warned in writing (Employer is getting serious with his indiscipline), third offence the employer must charge the worker, give him the opportunity to be heard and if found guilty suspend him for a
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period of time without pay, the fourth offence, the employer will charge the worker again, maybe for misconduct or persisting absenteeism, give him a hearing i.e. an opportunity to defend himself and if found guilty then the worker could be terminated. Such termination would not be deemed harsh or oppressive because the worker has been persistently breaking the rules and regulations without showing any signs of change towards improvement. Now, in order to justify their right of the employer to punish the worker there are many judgments coming out from the Court that supports the employer in doing so. In trade dispute (T.D) No. 159 of 1974 between Cannings Limited and NUGFW the Court stated that if a worker takes ten percent more of the total working days by absenting himself with or without a medical certificate he or she runs the risk of committing persistent absenteeism and that is dismissable. The judgment further states that if a worker absents himself 2 days per month for nine months consecutively he can also be terminated. However the employer is obligated before he does anything to put the worker on notice about what he is doing. Given the use of IT or Information Technology, employers can easily do this by the use of his computer provided there are records. In T.D 142 of 1977 between Excellent Stores and Communication Workers Union (CWU) the court also stated that a worker has an obligation to inform his employer when he is sick or due to illness immediately thereafter, or as soon as possible or as early as possible according to the employer’s practice in the workplace. Continued on next page
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IR at a Glance
Back by popular demand
The Employers’ Consultative Association of Trinidad and Tobago
Industrial Relations at a Glance - Your IR GUIDELINE POSTER
For further information, please contact: The Research & Publications Unit at 625 - 4723 ext 225 Email: ialcazar@ecatt.org
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5/18/2011 7:51:44 AM
Voice of the Employer Vol.1 2011
Further in Essential Services Division (E.S.D) No. 16 of 1982 between T&TEC and OWTU an employer can reject a medical certificate from a worker which does not satisfy him because the principles are: “A medical certificate refers to a document from a medical practitioner certifying that a person is suffering from physical, mental, nervous or other illness, and recommending or purporting to recommend that some period of time should be spent away from work on account of such illness” or “A medical certificate should be carefully written to satisfy employers who require justification to pay workers who are absent as a result of illness” or “A medical certificate should contain the date of issue and a statement verifying that medical attention was received from a certified medical practitioner on said day” or “A medical certificate should include the facts of the examination and the diagnosis, if it is such that these findings can be confirmed by another examination or otherwise.
continue with this type of medical certificate without challenging the medical practitioner to explain to them what is a medical problem.
If not verifiable, the certificate should reflect that reference was made to the applicant’s medical history and that the diagnosis was in keeping with such.”
When he comes late for the fourth time he should be charged with persistent absenteeism, found guilty and terminated but if the infraction is stealing on the job for the first offence he should be terminated. No employer would want an employee who is caught stealing to allow him to steal again. ****
The problem comes about however that employers will accept a medical certificate which states: “The worker is suffering from a medical problem.” Most employers will
From the above facts the employer has several answers from which he can develop a procedure for dealing with workers who absent themselves from work. Once the employee has breached his contract of employment by absenting himself the surest way to discipline him is to use the progressive steps of discipline to strengthen the hands of employers in disciplining the worker, the employer should develop a policy where there is a schedule of laid down offences and the various punishment for each such offence, for example when a worker is late for the first time he is warned orally, for the second late coming he is warned in writing, for the third late coming he is charged with persistent absenteeism, found guilty and suspended for days without pay.
GRIEVANCE PROCEDURE A grievance is a complaint which has been formally communicated (either orally or in writing) to Management regarding the real or perceived violation of the contract of employment, collective agreement and/ or any established principle or practice of good Industrial Relations between the worker and the Company. A grievance procedure is the systematic method for handling grievances designed by the employer, and in a unionized environment, by both management and the recognized majority union. According to section 43(1) of the Industrial Relations Act 1972 (IRA), in unionized organizations “a collective agreement shall contain effective provisions concerning appropriate proceedings for avoiding and settling disputes…” Further, at section 43(2), “… every collective agreement shall contain a provision for the settlement of all differences between the parties thereto arising out of the interpretation, application, ad-
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ministration or alleged violation thereof.” The Minister may object to the registration of a collective agreement if there is “non-compliance with section 43(1) and (2)” Section 45 (4) of the IRA. Further, if the parties fail to follow the grievance procedure as stated in the collective agreement, “… the Minister may ... refer the dispute back to the parties for such procedures to be followed.” Section 53(1)(b). While there is no requirement under the IRA for a nonunionized organization to have a grievance procedure, it is a good practice for companies to institute such a procedure as it will be beneficial in resolving grievances internally. Additionally, the grievance procedure should allow the aggrieved party the option of appeal, which is a fundamental element of natural justice and by extension proper industrial relations practice. The grievance procedure should not be avoided, but rather embraced as it epitomizes fair process and allows for grievances to be properly exhausted. ****
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IR at a Glance
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The Employers’ Consultative Association of Trinidad and Tobago
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Voice of the Employer Vol.1 2011
THE MATERNITY PROTECTION ACT The Maternity Protection Act, 1998 Act 4 of 1998 Purpose An Act to provide a minimum level of Maternity Leave benefits and protection When assented: March 11, 1998 Entitlement of pregnant female employes Subject to the Act, an employee is entitled to: 1. Leave of absence (13 weeks) for the purpose of Maternity Leave 2. Employee must inform her employer, in writing no later than eight (8) weeks before the expected date of her confinement 3. She must submit to her employer a medical certificate from a qualified person stating the probable date of confinement; and 4. She must inform her employer in writing of her intention to return to work at the expiring of the Maternity Leave Date of Maternity Leave Six (6) weeks prior to the probable date of confinement, a pregnant employee can proceed on leave of thirteen (13) weeks duration When no Maternity Leave is payable When an employer has failed to pay contributions to the National Insurance Board, and no Maternity Benefits are payable by the National Insurance Board, the employer shall pay to the employee the total sum she would have been entitled to under subsection (2). Claim by Employer 1.Notwithstanding the Income Tax Act (Chapter 75.01) an employer is entitled to claims as a tax deduction for the full amount paid by the employer to an employee for Maternity Leave; or
Limited Payment An employer’s right to pay for Maternity Leave under section 7 (1) (b) is limited to one payment during each period of 24 months commencing at the beginning of such leave. ****
2.Where an employee is paid full pay or Maternity Leave even though benefits are not payable under the National Insurance Act, the employer will be entitled to claim that amount as a tax deduction.
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IR at a Glance Where there’s PROGRESS…
there is Energy
Our Nation’s Progress Energizes Us Trinidad and Tobago is a major player in the global LNG market and remains the largest supplier of LNG to the United States. BPTT is proud to be the country's leading energy producer contributing up to 25% of the nation's revenue and more than half of the country's hydrocarbon production. BPTT is world-scale and accounts for 11% of BP's worldwide production of oil and gas. Where there's a commitment to progress, there's energy.
The EEmployers’ Consultative Associati ociation of Trinidad and Tobago g www.bptt.com
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Where there is energy… there is bpTT
5/18/2011 7:51:55 AM
Voice of the Employer Vol.1 2011
RETRENCHMENT Retrenchment is one possible reason for the termination of employment and is governed by the Retrenchment and Severance Benefits Act of 1985, which will be hereafter referred to as ‘the Act’. Retrenchment may result from the restructuring or reduction in the operations of a company, leading to surplus labour or a labour force in excess of the organization’s requirements. Firstly, Employers should take note that Retrenchment can only apply where workers are genuinely redundant, that is, when there is surplus labour in an organization. Retrenchment would not apply if the business has ceased to exist. In the case of retrenchment, separation of the worker from the company is compulsory and at the initiative of the employer. This is in contrast to Voluntary Separation or VSEP where the separation is voluntary, that is, by the choice of the worker. Formal notice of retrenchment in writing is mandatory. The Notice should comply with Section (4) of the Act and include information on; the names and classifications of the involved workers, the length of service and current wage rates, the reasons for redundancy, the proposed date of termination and the criteria used in the selection of workers to be retrenched. During the Notice period Employers may still terminate a worker for valid reasons, for example, gross misconduct. Severance benefits should be paid in accordance with Section (18) of the Act being the minimum standard. Before making the decision to retrench workers, employers should explore all possible options of offering suitable alternative employment for the affected workers. An employer may also seek to absorb a retrenched worker in other employment. Please note that a worker who unreasonably refuses an offer of comparable and suitable employment is not entitled to severance benefits. Employers must also understand that they cannot arbitrarily select workers for retrenchment. When selecting workers for retrenchment, the Last In, First Out principle applies. This is subject to the qualification of “all other things being equal” as was recognized in the case of Amalgamated Workers’ Union v Pan American Standard Brands Inc, Trade Dispute No.106 of 1991. Employers should be cautioned that if the retrenchment turns out to be a sham or not to be genuine, they may be liable for dismissing the worker in circumstances that are harsh and oppressive and not in accordance with the principles of good industrial relations. Employers should therefore handle retrenchment issues responsibly. We urge employers not to embark on a retrenchment programme without justification as retrenchment is an extremely sensitive issue that can have severe economic, psychological, and emotional effects on workers and their families. The employer should study his organization carefully before deciding that it is necessary to engage in a retrenchment exercise. ****
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IR at a Glance
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The Employers’ Consultative Association of Trinidad and Tobago
5/18/2011 7:52:02 AM
Voice of the Employer Vol.1 2011
OCCUPATIONAL SAFETY AND HEALTH Employers need not be afraid or panic with the new law, it is simply to give the opportunity to Employers to do what they should have already been doing but to do it in a formal context as opposed to doing it in an adhoc fashion. The law provides rights and duties for Employers and employees. The law also provides for the administration and monitoring of occupational safety and health in the workplace through the factory inspectorate of the Ministry of Labour. One area that many Employers are quite concerned about is the right of employees to refuse work when safety or health is in danger. This right is enshrined in the law, however there is a basic process and procedure for this to be undertaken, it is not to be done in an informal fashion. Once the employee is familiar with this process, there is no need for fear since it is a partnership between the Employer, the employee and the Union representative to ensure what is supposed to be done is done, and that a worker who rightfully refuses to work is not penalised by his Employer for so doing. Another consideration that the Employer have expressed concern about is penalties. The Law provides for penalties in the context of monetary fines and jail sentences. However this law is not intended to put anyone in jail or to be punitive. However, these provisions are in existence for punishment when/where the law is broken. The approach is one of cooperation and collaboration rather than one of being punitive, so that all stakeholders need to come together to ensure that the law can be obeyed within a reasonable time frame. Another area that the Act deals with is the area in which doctors are expected to report occupational health conditions to the factory inspectorate. If they fail to do so, then, they too can be subjected to a fine of up to $5,000.00 or up to three (3) months imprisonment. Again the intention is not to send doctors to jail but to ensure that they obey the law by reporting to the appropriate authorities on cases of occupational diseases that are prescribed in the act. It is useful to recognise that monies spent on occupational safety and health in the workplace should be considered as an investment in your company and in your workers. The provision of personal protective equipment and clothing, the provision of safety boots, safety hats, also training and accident prevention are all considered to be investments in your most valuable capital, your human capital. Employers have expressed concerns about the number of groups and organisations that are running courses in occupational safety health and this has caused some confusion both in the minds of Employers and in the general public. The Employers Consultative Association can provide in-house expertise to train employees in the area of compliance with the OSHA Act. ****
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IR at a Glance
National Training
We design and present public seminars for professionals and executives in business and industry geared towards tackling relevant issues confronting employers and we also deal with national and global developments that impact upon organisational well being and survival. We focus heavily on creativity in training design and delivery and on the cross sharing of experience, information and knowledge in an open and comfortable environment.
The Employers Academy of Trinindad and Tobago This is a flagship institution with courses in Industrial Relations, Labour Laws and Advanced Labour Laws for employers who desire a challenging environment to gain a comprehensive knowledge in managing the employment relationship. The following courses are available at the Academy: - Certificate in Industrial Relations Management in T&T - Certificate in Labour Laws in Trinindad & Tobago - Diploma in Labour Laws in Trinindad & Tobago
In - House Training Experience training conducted where you want, when you want and how you want. Your organisation is distinctive and we can tailor our workshops to solve your needs. In-House is particularly desirable for organisations that desire simultaneous exposure to trianing opportunities in a familiar environment. It is also an ideal way of dealing with logistics and time constraints.
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The Employers’ Consultative Association of Trinidad and Tobago
www.employerssolutiontt.com Magazine.Vol.1.indd Sec1:38
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Voice of the Employer Vol.1 2011
www.ecatt.org
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5/18/2011 7:52:50 AM
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