Dear Editor: Why RBC’s High Court win over BIGWU is a hammer blow for local Unions

“The requirement to keep trade union membership or non-membership confidential is well established as a means of avoiding victimisation of union members.

“[…] This judgement argued that, in this case, there were ‘exceptional circumstances to warrant the order for disclosure as requested [by the RBC] and such an order would not have breached the confidentiality of the Union’s records’.

“It remains to be seen how much this judgement opens the door to employers arguing for access to the union’s records in order to ascertain whether the Board has done a correct check of a member’s status.”

The following report on the High Court’s judgement last month in the case of RBC versus The Registration, Recognition and Certification Board (RRCB)—and, by extension, the Banking, Insurance and General Workers Union (BIGWU)—was submitted to Wired868 by National Workers Union general secretary Dave Smith:

The Banking, Insurance and General Workers Union (BIGWU) made a claim for recognition at the RBC Financial (Caribbean) Limited (RBC) on 16 February, 2011 and was granted recognition by the Recognition, Registration and Certification Board (the Board) some six years later on 16 January, 2017.

The RBC applied for a Judicial Review and there can be no doubt that the High Court decision, delivered on 14 December, 2017, has fundamental implications for the trade union movement.

This 73-page judgement (see judgement in three parts at the bottom of this page) was long because, in its desperation to deny workers their fundamental trade union rights, the RBC raised a scattergun of six issues on which to challenge the decision of the Board.

Putting to one side some of the peripheral arguments, the fact is that the RBC attack went to the very heart of the recognition process.

The normal practice for trade unions in organising is to get workers to complete an application form and pay an entrance fee and union dues for a three-month period. This process continues until the Union is confident that it has more than 50% of the workers organised.

When the Union hits the 50%-plus mark, the workers will be taken into membership, a receipt issued and the union dues banked.

This has been the practice for as long as anyone can remember and is accepted by the Board as meeting the requirements of the Industrial Relations Act (IRA) for workers to be “in good standing.”

What has been successfully challenged by the RBC is that this process is not consistent with section 34(3)(b)(i) of the IRA.

The actual words of section 34(3)(b)(i) are:

“The particular worker has […] become a member of the Union after having paid a reasonable sum by way of entrance fee and has actually paid reasonable sums by way of contributions for a continuous period of eight weeks immediately before the application was made or deemed to have been made…”

In interpreting this section of the IRA, the judgement says “… the objective of [this] section can be ascertained from the natural and ordinary meaning of the words.[1]” In other words, all the judge has said is that the words “immediately before” mean just that, “immediately before”.

Because the dues collected by the Union were not collected in the period “immediately before” the claim for recognition but over a period of time leading up to the recognition claim, the judgement determined that the Union had not met the requirements of Section 34 of the IRA.

According to the judgment:

“… the reason the legislature included the words ‘immediately before the application for recognition’ in section 34(3)(b)(i) was to ensure that the trade union collected the contributions at a point in time when it’s certification application is imminent. The intention of the framers of the section was to give workers, who apply to be members of a trade union for a proposed bargaining unit, a degree of protection by ensuring that a trade union diligently pursues the task of securing the requisite number of workers for the proposed bargaining unit.”

The RBC, for its part, argued that “all the Union was required to do was to implement an organisation tactic or system which complied with the statutory provision.”

This helpful suggestion comes from an employer that has ferociously opposed union organisation at every turn.

Another area of criticism was that the workers had not been given an individual receipt for the union dues indicating the period that their union dues covered. Instead, a global receipt had been issued to the union collector when the dues of organised workers had been paid into the Union’s head office.

BIGWU’s Rules specifically require Union dues to be receipted. It was the failure to issue individual receipts that led to the judgement determining that the Union had not adhered to “sound accounting procedures and practices” as required by Section 34(3)(a).

It is not clear from the judgement whether this criticism was unique to BIGWU, because of its rule requirement to issue receipts or whether issuing individual receipts was going to be a general expectation imposed on all unions.

Rule 17 of the Board says:

“The records of a trade union relating to its membership and any records that may disclose whether a person is or is not a member of a trade union which are produced in a proceeding shall be for the exclusive use of the board and its officers and shall not, except with the consent of the board, be disclosed to any person.”

The requirement to keep trade union membership, or non-membership, confidential is well established as a means of avoiding victimisation of union members.

In challenging BIGWU’s application, the RBC was consistently seeking access to the union’s records on which the Union based its claim for recognition. For its part, the Board had declined to provide this information except in respect of a small number of workers where the employer had provided letters of resignation from the union or who had never been members in the first place.

Whilst Rule 17 leaves the question of disclosure entirely in the hands of the Board, this judgement argued that, in this case, there were “exceptional circumstances to warrant the order for disclosure as requested [by the RBC] and such an order would not have breached the confidentiality of the Union’s records.”

It remains to be seen how much this judgment opens the door to employers arguing for access to the union’s records in order to ascertain whether the Board has done a correct check of a member’s status. Lawyers are prone to see “exceptional circumstances” in every corner.

The most immediate consequence of this judgement is the likelihood that most, if not all, of the current recognition claims before the Board will be invalid. The practice adopted by BIGWU has been common throughout the trade union movement for decades and will no doubt have been the practice adopted in applications currently before the Board.

To meet the expectations set out in the judgement would require a union to recruit more than 50% of a workforce in the eight weeks immediately before an application for recognition can be made.

In this case, BIGWU had organised just over 1000 workers. To achieve this in an eight-week period, particularly in the face of employer hostility, would be near impossible.

The alternative would be to take workers fully into membership until over 50% had joined. With no check-off, this would mean either manually collecting union dues (outside working hours, of course) or payment through bankers standing orders.

For the employer to say “all the Union was required to do was to implement an organisation tactic or system …” is fine coming from an employer that has spent five years frustrating RBC workers’ right to trade union representation. We had an organisational tactic… and the High Court has just blown it apart!

Trade unions are not insurance companies. They are essentially voluntary organisations operating in a hostile environment. No employer is likely to provide check-off without Union recognition and workers undertake recruitment activities on the employer’s time at their peril.

The fact that it took several years for BIGWU to eventually recruit just over 1,000 workers is typical of the challenges faced by unions in organising workers.

We can also anticipate employers, using this judgement, to make requests to the Board for disclosure of Union records in individual trade disputes.

Trinidad and Tobago has ratified ILO Convention 98 on the Right to Organise and Collective Bargaining. If this is severely constrained by the legislative framework within which unions are required to operate, then we have rights on paper but not in practice. This could well put Trinidad and Tobago in breach of an ILO Convention that it has ratified unless the IRA is amended.

The decision of the High Court was not based on an interpretation of Board practice notes or procedures. It went right to the heart of the matter in interpreting the legislation which has been in existence in Trinidad and Tobago since 1972.

This judgement must be appealed. But there has to be a more fundamental approach than relying on judges to interpret legislation in favour of unions.

For decades unions have been clamouring for a quick and easy way to process recognition claims. The IRA has been a major obstacle in this process.
The core issue is this: there has to be a better way of getting recognition.

Workers have a fundamental right to get organised and have their trade union recognised for collective bargaining purposes. For almost half a century, unions have had to struggle through an obstacle course laced with ambushes in order to get recognition. It has been a financial happy hunting ground for lawyers to object, delay, appeal and frustrate the whole process.

If a mechanism could be established that enabled unions to trigger a ballot of workers in a workplace, then most workers instinctively know that their interests will rest in getting union recognition. The only issue that needs to be resolved is what process has to be established in order to trigger such a ballot.

This is essentially a political question.

The Memorandum of Understanding signed between the Joint Trade Union Movement and the People’s National Movement before the last General Election made broad commitments that, if you believed it, a PNM Government would be nice to trade unions.

If we see no willingness on the part of the Minister of Labour to tackle what is nothing short of a crisis in the legal framework for union recognition, then those of us who saw the Memorandum of Understanding having little value for the trade union movement will have our cynicism confirmed.

Now is not the time for the far too numerous trade union federations to start competing on addressing this question. The meaningless divisions between the federations can only assist the employers in taking full advantage of this very damaging High Court decision.

Assessing where this judgement leaves us, subject to the outcome of any appeal, is the easy part. What the trade union movement needs to start developing are practical solutions to the problem of finding what we want to see as a quick and easy path to union recognition.

Now is the time, if ever there was one, to overcome petty divisions and unite to fight for an effective mechanism for workers to win the most fundamental of workers’ rights, that of union recognition.

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