The Court of Appeal has reserved judgment in an appeal over whether the Oilfields Workers’ Trade Union (OWTU) can represent workers at the Desalination Company of T&T (Desalcott).
After submissions from lawyers representing the company, the union, the Attorney General’s Office and the Registration and Recognition Board, at the Hall of Justice, in Port-of-Spain yesterday, Chief Justice Ivor Archie and Appellate Judges Gregory Smith and Andre Des Vignes said they needed time to consider the case as their eventual decision could potentially affect other companies.
The appeal centres around a decision by the board to not deem the private company, which supplies almost 40 million gallons of potable water a day to the Water and Sewerage Authority (WASA) for the Point Lisas Industrial Estate and thousands of customers in central and south-west Trinidad, an essential industry under the Industrial Relations Act.
The company challenged the decision, which was reversed by High Court Judge Carol Gobin, who disagreed with its eventual classification and ruled that the board did not give the company an opportunity to respond to the union’s submissions on the issue.
Gobin’s decision, which is currently the subject of the appeal, gave the OWTU the green light to represent the workers as the legislation precludes a union from representing the workers of more than one essential industry. The OWTU currently represents employees of the T&T Electricity Commission (T&TEC).
Presenting submissions on behalf of the board, Senior Counsel Seenath Jairam pointed to Section 23 of the legislation as he stated that his client’s decisions are insulated from judicial review.
“We may not agree but Parliament decided it was for the board to decide,” Jairam stated, as he claimed that a review should not be allowed even if his client’s classification was wrong.
Jairam’s claim was strongly challenged by the panel, who sought to use a self-professed “outrageous” example to illustrate their point.
“If they took the view that KFC was an essential industry, are we still not to review?” Archie asked as he noted the court has to power to determine if the decision of a public body is absurd.
“No tribunal would ever hold the view that what it is doing is absurd,” Archie said.
In his submissions, Senior Counsel Reginald Armour, who is leading the legal team for the AG’s Office which brought the appeal, also suggested that Gobin’s analysis in the case was flawed.
Armour noted that the ouster clause in the legislation should be upheld as it was approved by a large parliamentary majority when the legislation was passed in 1972.
However, he admitted that the court could intervene in cases of breaches of natural justice.
Senior Counsel Douglas Mendes, who is representing the union, dismissed Gobin’s ruling that the board did not adhere to natural justice principles when it failed to give the company a hearing as was done with the union.
Describing its conduct as a technical breach, Mendes suggested that the board’s decision would have remained the same as the union only responded to issues raised by Desalcott in written submissions.
Throughout the hearing, Archie and his colleagues noted that the board had failed to give reasons on how it decided that the company did not fall into the section of the legislation which dealt with essential industries including water and sewerage.
Archie questioned whether the distinction was made as Desalcott produces potable water but does not manage sewerage as he referred to the fact that at one stage of its existence T&TEC ceded its electricity generation operation to Powergen and focused on distribution.
Responding to the three parties, Desalcott’s lead counsel Fyard Hosein, SC, called on the panel to uphold Gobin’s decision as they had not proven that it was manifestly wrong.
Hosein suggested that the board’s classification was incorrect as it did not consider that the company supplied water to 380,000 citizens.
“It is not WASA but the water industry that is at stake,” Hosein said.
He also claimed that the company could have possibly convinced the board to change its position if it was allowed to make the representations.
According to the evidence in the case, the union made the application to be certified as the majority union for the company in October 2010. The board only communicated its decision, two years later.
The company is also being represented by Rishi Dass, Nyree Alfonso, and Asif Hosein-Shah, while Imran Ali appeared alongside Mendes for the union.