Mason et Al v Antigua Port Authority
| Jurisdiction | Antigua and Barbuda |
| Judge | Pilgrim, P. |
| Judgment Date | 16 June 2011 |
| Court | Industrial Court (Antigua) |
| Docket Number | 8 of 2008 |
| Date | 16 June 2011 |
Industrial Court
Pilgrim, P.; Thomas, M.; McKay, M.
8 of 2008
Mr. Kendrickson Kentish of Lake and Kentish Attorneys-at-Law for the Employees.
Mr. Colin Derrick — Attorney-at-Law for the Employer.
Employment Law - Replacement of overtime pay by risk allowance — Whether junior pilot entitled to be paid the same risk allowance as the senior pilot — No merit in junior pilot's submission.
The Employer is a statutory body which was created in 1973 by the Port Authority Act Cap. 333 of the Laws of Antigua and Barbuda. It is charged with the duty to manage the operations of the St. John's Port situate at the Deep Water Harbour, Dickenson Bay Street in St. John's.
Mr. Mason is employed by the Port Authority as the tug boat captain. Mr. Humphreys was employed from 1987 to 2009. He worked as an engineer. Mr. Barnes became a tug boat captain in 2005. Mr. Thomas is the tug boat's chief engineer. Mr. Greene is the tug boat's junior engineer. They are all employed in the Marine Division of the Port Authority. They are represented by the Antigua Trades and Labour Union (the Trade Union).
(i) Mrs. Agatha Dublin is the General Manager of the Port Authority. She assumed this position in September 2007. She signed a Witness Statement on behalf of the Employer dated September 30, 2008.
(ii) At paragraphs [4] and [5] of that Witness Statement she stated as follows:
“4. Sometime in or about the year 2002, it came to the attention of the then Port's Management that there existed an anomaly in the day to day operations of the Marine Department staff where the said employees are assigned.
5. It was observed that the functions of the Marine Crew which include the said Junior Pilot, Tug Captain and Engineer were such that their duties were not that of a standard employee. Moreover, the daily functions of the Marine Crew did not require them to work for more than 4 to 6 hours during any 24 (hour) period.”
(i) Mr. Xavier Mason stated that in the peak season he worked for an average monthly overtime payment of $7,000.00 to $7,200.00. In the non-peak season he worked for an average monthly overtime payment of $2,500.00.
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(ii) Mr. Cornell Humphreys stated that in the peak season he worked for between $6,000.00 and $7,000.00 per month. In the non-peak season his average monthly overtime pay was between $2,000.00 and $2,500.00.
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(iii) Mr. Colin Barnes testified that he earned in the peak season $3,000.00 to $4,000.00 or $5,000.00 per month in overtime pay. In the non-peak season he earned between $1,900.00 to $2,500.00 per month in overtime pay.
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(iv) Mr. Cameron Thomas in his evidence stated that before September 2002 in the peak season from October to April 2002 he was paid a monthly sum of between $6,000.00 to $7,000.00 for overtime work. In the slow season his average monthly overtime payment was between $1,500.00 and $2,000.00.
It was these payments of overtime pay to these Employees which caused the Employer and the Trade Union to commence negotiations in 2002 to seek to achieve a comprehensive Collective Bargaining Agreement or Memorandum of Agreement.
This process commenced in the form of a letter which was written by the President of the Trade Union on behalf of the Employees to the Chairman of the Antigua Port Authority. It is dated July 29, 2002. This letter was admitted as “AD–1”. That letter states as follows:
“29 th July 2002
The Hon. Sen. Llewellyn Smith
Chairman
Antigua Port Authority
Deep Water Harbour
St. John's
Dear Senator Smith:
The Antigua Trades and Labour Union received your proposed wages/salaries adjustment dated 15 th July 2002.
On 22 nd July 2002, both the Union and its Works Committee met and carefully examined the document. However, acceptance of the full document is dependant on one concern with respect to any further classification of individuals identified in the Labour Commissioner's evaluation.
In keeping with previous agreements, the following confirms our position:
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(1) The Union and Workers agreed to the proposed wages and salaries adjustments;
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(2) That the adjustments take effect from May 2002 from which date the Labour Commissioner's Recommendations were implemented;
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(3) That there will be a freeze on wages and salaries for a further two (2) years, i.e. May, 2003 to April, 2005;
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(4) That a substantial adjustment in the wages and salaries for top personnel on the Tug and the Pilot Staff will elevate them to the Management positions thus eliminating all over-time. The workers so affected, will be deemed to be on duty at all times;
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(5) The negotiations on the remainder of the Collective Agreement be ongoing.
The Union has also discussed with the workers and has agreed that the adjustments for weekly-paid workers be reflected from week ending 2 nd August, 2002 and monthly-paid workers from 31 st August, 2002. Retroactive payments to workers to be paid on the difference between that which was recommended by the Labour Commissioner and the adjustments proposed by your Board dating back to May 2002.
My Union is quite pleased that we have been able to reach such an amicable settlement of all related matters and looks forward to continuing cordial relationship between our two entities.
Sincerely yours,
Wigley N. F. George
President
Hon. M. Joseph”
In accordance with the position of the Trade Union on behalf of the Employees they received in the words of Mr. Cameron Thomas a “substantial increase in their wages and salaries” with effect from May 2002. The old and new salaries and the percentage increase recorded by the Employees are as follows:
Xavier Mason — Old Salary – $4,400.00 — New Salary – $6,500.00 — % Increase – 68%
Cornell Humphreys — Old Salary – $4,200.00 — New Salary – $6,000.00 — % Increase – 70%
Colin Barnes — Old Salary – $4,400.00 — New Salary – $6,500.00 — % Increase – 68%
Cameron Thomas — Old Salary – $4,200.00 — New Salary – $6,000.00 — % Increase – 70%
Lyndon Greene — Old Salary – $ 2,600.00 — New Salary – $4,500.00 — % Increase – 58%
The Employer by a letter dated September 02, 2002, informed each Employee of his increase in salary effective from May 01, 2002. (This letter was admitted as “XM–1”)
By letter dated September 12, 2002, the Employer informed each Employee that he was entitled to a travelling allowance of $275.00 per month with effect from September 01, 2002. (This letter was admitted as “XM–2”.)
Both letters also informed each Employee that he was “now considered to be Middle Management thereby deemed to be on call at all times twenty-four (24) hours, seven (7) days a week. Hence no overtime will be paid when you are required to perform duties beyond normal working hours.”
By letter dated March 20, 2003, the Employer wrote to the Trade Union. In that letter it stated that the Employees “are not management but are a part of the current Collective Agreement.” (This letter was admitted as “AD–2”)
Both parties concluded negotiations which led to the signing of a Memorandum of Agreement on September 14, 2006 for the period November 01, 2002 to October 31, 2005. Mr. Stafford Joseph, the Trade Union's General Secretary, signed that first agreement.
Further negotiations commenced between the Trade Union on behalf of its Employees and the Employer. These discussions culminated in the conclusion of a second agreement. It is dated July 24, 2008. Mr. Stafford Joseph signed the agreement on behalf of the Trade Union. It is for the period November 01, 2006 to October 31, 2009. It continued thereafter until cancelled by a subsequent agreement. To date this agreement is still in effect.
By a letter dated April 26, 2006 from the Employer to Mr. Stafford Joseph of the Trade Union, the Employer proposed to make a payment of a sum of money called a “Risk Allowance” to most Employees, in lieu of an overtime payment. The recommendation was that Mr. Greene should be paid a “Risk Allowance” and still be paid for work done in overtime.
Article 29(3) of the second agreement states as follows:
“Special Allowances for Pilots, Tug Captains, Tug Engineers
This special allowance is based on the recommendation of the Management of the Antigua Port Authority and the Labour Commissioner dated November 27 th, 2007.
Allowance in lieu of overtime
Senior Pilots
$2,000.00
Junior Pilots
$1,000.00
Tug Captains
$1,200.00
Tug Engineers
$1,000.00
On-call Allowance
Senior Pilots
$300.00
Junior Pilots
$300.00
Tug Captains
$300.00
Tug Engineers
$300.00
”
The salary, allowance and travelling payments made to each Employee which became effective sometime after October 2006 is as follows:
Employee — Xavier Mason — Salary – $6,500.00 — Risk Allowance – $1,200.00 — On-call Allowance – $300 — Travelling Allowance - $350
Employee — Cornell Humphreys — Salary – $6,000.00 — Risk Allowance – $1,000.00 — On-call Allowance — $300 — Travelling Allowance – $350
Employee — Colin Barnes — Salary – $6,500.00 — Risk Allowance – $1,200.00 — On-call Allowance – $300 — Travelling Allowance – $350
Employee — Cameron Thomas — Salary – $6,000.00 — Risk Allowance – $1,000.00 — On-call Allowance – $300 — Travelling Allowance – $350
Employee — Lyndon Greene — Salary – $4,500.00 — Risk Allowance – $1,000.00 — On-call Allowance – $300 — Travelling Allowance – $350
The Employees commenced legal proceedings against the Employer by filing a Reference dated July 15, 2008. In their Employees' Memorandum filed on the same day they seek the following relief:
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(a) The payment of overtime pay from September 2002 to the present date;
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(b) Interest at the rate of 10% per annum upon any overtime payment from September 2002 to the present date;
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(c) Mr. Greene, a junior pilot, should be paid the same risk allowance as a senior pilot;
The...
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