Antigua Workers' Union v Cable & Wireless

• Jurisdiction: Antigua and Barbuda
• Judge: Lewis, P.,Clarke, J.,Caines, J.
• Judgment Date: 09 February 1979
• Court: Industrial Court (Antigua)
• Docket Number: No. 8 of 1978
• Date: 09 February 1979

Industrial Court

Lewis, P.; Clarke, J. (Vice President); Caines, J. (Member)

No. 8 of 1978

Antigua Workers' Union

and

Cable & Wireless

Appearances

Time H. Kendall for the Antigua Workers' Union

Sir Fred Philips and S. Browne for Cable and Wireless (W.I.) Ltd.

Labour law - Collective Agreement — Terms of Agreement.

1 JUDGMENT: A trade dispute having arisen between Cable and Wireless (West Indies) Ltd., (the company) and its employees, the minister responsible for Labour acting in accordance with section 19 (1) of the Industrial Court Act 4 of 1976 has referred the said dispute to this court for determination. The parties to this reference are the Antigua Workers' Union (the union) (which is the representative of the company's employees in the bargaining unit) and the company.

2 The company and the union have reached a deadlock in their attempts to conclude a collective agreement to replace the existing agreement between them which governs the terms and conditions of service of the company's employees.

3 On June 6, 1977, the company and the union made a collective agreement which provided in paragraph 1 of article 25 thereof that the “agreement shall come into force with effect from 1 ^st January, 1976 and shall continue in force until 31 ^st December, 1977, and thereafter, unless revised or terminated by either party in the manner set out below.”

4 Paragraphs 2,3 and 4 of the said article make provision for the termination and revision of the said agreement.

5 It is common ground that the agreement has neither been terminated nor revised and is still in force.

6 The union, in paragraph 6 of its memorandum has indicated that it will rely on the existing collective agreement, and pursuant to rule 11 of the Industrial Court (Procedure) Rules S.R.O. 24/1976 (as amended) it has attached a copy of the said agreement marked “A.W.U.”1” to its memorandum filed in this court on October 26, 1978. This agreement is hereinafter referred to as “the collective agreement.”

7 When the minister's reference reached this court, it was noticed that it stated that the issue in dispute between the parties are: –

“All matters surrounding and pertaining to the settlement of items remaining outstanding in current negotiations for a new collective agreement.”

8 This statement was not considered to be a sufficiently precise description of the issues, which the court was required to determine, and, accordingly, the president directed the registrar of the court to write to the Minister of Labour and ask him to supply the court and the parties with a statement of the outstanding items on which agreement had not been reached by the parties. In reply to the registrar's letter the court was sent an undated document signed by the labour commissioner which contained a table showing the union's proposals, and, what was referred to therein, as the company's position in relation to those proposals. This court is not interested in what position the company adopted during conciliation proceedings before the minister or the labour commissioner. Its sole purpose in directing the registrar to write to the Minister of Labour was to obtain a statement from him of the specific issues, which the court would be called upon to decide.

9 The court's letter was obviously misunderstood and the document supplied to it and to the parties in explanation of the issues to be tried has led to some confusion. For example, junior counsel for the company said in his memorandum of reply that he could not furnish a reply to certain items, viz, (a) the call out allowance, (b) the meal allowance, (c) the aloft allowance and (d) wages, because in the case of each of these items the demand was not sufficiently precise to permit a proper reply to be made. Further, paragraph 5 of its memorandum of reply counsel said that it was not clear if it was the intention of the claimants (i.e. the employees of the company) to adopt the position set out in the document supplied by the labour commissioner; and if that was the union thereon, and would in any event contend that “some of the contents in the said document do not state the correct position.”

10 The company's difficulty arose from the fact that the union's counsel had treated the document from the Labour commissioner as containing the union's demands and so had made it part of the union's case. He also made it part of the record which at that stage it was not.

AMENDMENTS TO UNION'S MEMORANDUM:

11 As a result of the company's complaints, amendments to the union's memorandum were clearly necessary, and counsel for the union accordingly asked for and obtained leave to make certain amendments to the union's memorandum. He therefore added the following new paragraph to the union's memorandum and numbered it “8”: –

“8”. The union's proposals, set out in the document from the Labour Commissioner, are hereby incorporated in the union's memorandum as the respective claims of the claimant.”

12 He next numbered the former paragraph “8” as paragraph “9”.

13 As a consequence of these amendments the company's objections were and it was now in a position to appreciate exactly what were the union's demands in respect of the several issues on which the company had originally entertained doubts, because of the imprecise manner in which the demands had been couched.

14 Counsel for the union on his part complained that there was no reference in the company's memorandum of reply to paragraphs 4 and 5 of the union's memorandum, and that there was no general denial of the contents of the union's memorandum. In other words what he was saying in effect was that the company had not joined issue with the union on paragraphs 4and 5 of the latter's memorandum. These paragraphs recited respectively that negotiations between the parties for a new collective agreement had broken down, and that the union was the accredited bargaining agent of the company's employees.

15 Junior counsel for the company thereupon that the company admitted paragraphs 4 and 5 of the union's memorandum “for the purpose of the record” as he said.

PROCEDURE

16 The procedure followed at the hearing of this trade dispute was to receive all the evidence on both sides I respect of each issues in dispute as that issue arose. This method of procedure had the advantage that the court was given a complete picture of each issue before passing on to another.

17 The court also ruled that collective agreements between the company and its employees in other Commonwealth Caribbean Territories and collective agreements relating to public utility organizations in Antigua could be put in evidence for the purpose of comparison with the existing collective agreement, Exhibit A.W.U.1.

AGREED ISSUE: –

18 The union and the company having reached agreement on certain issues, leading counsel for the company made the following concessions: –

• (a) Washing allowance. The allowance under this claim, it was agreed should be increased from $14 to $18 per month.

• (b) Bicycle allowance. It was agreed that this item should be increased from $14 to $18 per month.

• (c) Charge Shift allowance. The company agreed that the claim under this issue should be increased from $2.50 to $5.00 per day.

CONTESTED ISSUES:

19 Before dealing with the contested issues, which arise for decision under the collective agreement, we wish to make a few general observations as to the manner in which the court should go about its duties in dealing with these issues. These are our observations: –

• (a) Where a trade dispute arises between persons in connection with a collective agreement, the parties to the agreement may resolve their differences in any manner they deem fit, provided that their method of settlement is lawful, and they are under no obligation to inform anyone as to the methods they used to reach a settlement or to state the reasons for their agreement.

• (b) It is not open to this court to proceed in this fashion. The court is under a duty to give reasons for its decision and these reasons must be based on the evidence before it.

• (c) The court, under the guise if deciding a contested issue, lay down principles of policy for the company. Matters of policy are to be determined by those persons who, under the constitution of the company, are authorised to deal with such matters.

• (d) If there are disputed provisions in a collective agreement relating to the terms and conditions of service of employees, the court, must, of course, interrupt those provisions in order to determine the rights of the parties. This is so provided by sub-section (2) of section 15 of the Industrial Court Act No. 4/1976 which says that “where there is any question or difference as to the interpretation or application of the provisions of a collective agreement, any employer or trade union having an interest in the matter, or the minister may make an application to the court for the determination of such question or difference;” and sub-section (3) makes it clear that the court's decision on any matter before it under sub-section (2) “shall be binding on the parties thereto, and is final.”

• (e) In exercise its powers under section 15(2) of the Industrial Court Act, the court cannot either directly or indirectly create new terms and conditions of service for the company's employees, as this would in effect be making a new contract for the parties, which no court has any authority to do. In other words, the court after hearing the parties, may, by way of interpretation, modify the terms of the existing collective agreement, but it has no power to introduce an entirely new term into the said agreement, and if requested to do so, should refuse.

• (f) The court, is enjoyed by section 10 (3) of the industrial Court Act, when exercising its powers, to have regard to the Antigua Labour Code.

20 In dealing with the question of the...