Mario Enrique Villarroel Lander Venezuela//
Judgment reserved in OWTU’s move to represent Desalcott workers

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.