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The following letter was sent to Labour Minister Errol McLeod by Dave Smith, General Secretary of the National Workers Union on February 14th 2014:

I am directed by the executive committee of The National Workers Union (NWU) to bring to your attention the horrendous situation with regard to the issue of delays experienced by workers and their unions in seeking recognition for the purpose of collective bargaining.

The issue of recognition is the single most important issue facingtrade unions across the planet. Freedom of Association is not a right to be recognised on paper but is fundamental to workers organising themselves for the purpose of collective bargaining.

The Workers Agenda which was piloted by yourself and now-Minister Rudy Indarsingh at the historic Conference of Shop Stewards and Branch officers (COSSABO) held at OWTU Headquarters April 18th 2010 stated: “A limit of three (3) months needs to be put in place for the determination of recognition claims which are made to the Registration, Recognition and Certification Board; the present requirement of fifty-one percent (51%) membership of workers in one particular union for that union to obtain recognition by the Recognition Board should be amended to twenty percent (20%);”

You clearly recognised then that expedition in determining claims for recognition was not being observed and should be dealt with by the institution of time lines.

In a speech delivered by you in your capacity of Minister of Labour on Tuesday January 11, 2011 on the appointment of the members of the Registration, Recognition and Certification Board (RRCB), you said: “From the feedback received from stakeholders during the consultative phase in the development of the Decent Work Policy and Programme of Action, one of the main complaints identified in the registration and recognition process is the duration of the process.

It has been resoundingly reiterated that the determinations of the Board take too long and as such there is a backlog of applications, some dating far back as a decade ago. Something is wrong about that! Justice is denied to the worker when the recognition and certification process is delayed – for whatever reason!” We could not have put it any better!

You went on to say: “… I cannot overstate the importance of expediency in the process. Section 32(1) of the IRA states that ‘The Board shall expeditiously determine all applications for certification brought before it…’ “…I now request that while the new Board urgently seeks to address the backlog of applications, expeditious action be taken to assess the registration and recognition process, identify both strengths and weaknesses, and make recommendations on improving the system both in the short and long term. I anticipate a presentation on your assessment report within the next three (3) months.”

Three years have passed and the term of office of the Board has expired yet the situation remains the same as when you made that speech. While the trade union movement has long called for the repeal of the Industrial Relations Act (IRA) as an oppressive, anti-worker piece of legislation that was enacted by a frightened PNM government during a state of emergency in 1972, the question of expedition in issuing recognition claims can be achieved within the ambit of the present law.

The IRA sets out four basic requirements for gaining a recognition certificate:

• that the union has more than fifty percent of the workers in membership in the appropriate bargaining unit;
• that those members should be “in good standing” with the union – that is, have more than eight weeks membership;
• the union follows “sound accounting procedures and practices”, and
• the funds of the union should not have been used to pay contributions.

How these legal requirements are satisfied in practice is entirely within the ambit of the Board.

Bitter experience over the years has taught the trade union movement that employers will seize every opportunity to ignore and delay the process. This, of course, facilitates the employer in his bid to root out the trade union organisation at the workplace through an orgy of witch hunting and victimisation. Your claim that “Justice is denied to the worker when the recognition and certification process is delayed – for whatever reason” hits the nail on the head.

While we expect the employer to do all in his power to deny his employees trade union recognition, the processes employed by the Board have led us to the conclusion that the State, itself, shares the employer perspective and while it pays lip service to upholding workers right to collective bargaining, it in fact actively participates in the attempt to delay, obstruct and ultimately prevent workers from exercising their right to trade union representation.

The Board has developed Practice Notes that govern the process by which they go about determining applications. These are the cause of most of the problems. While these Notes have their roots in the IRA, they are very much the product of the Board and can therefore be amended by the Board without recourse to amending the legislation.

To be more precise: The development of the Practice Notes and the implementation of the process of determining applications is not  so much the product of the RRCB but that of the Secretariat.

The makeup of the Board (members are not full time) militates against it being able on a consistent basis to manage the process of determining applications and in fact it, more or less, accepts and ratifies recommendations emanating from the Secretariat, the members of which are public officers attached to the Ministry of Labour – your Ministry.

The secretariat over the years has built an opaque bureaucracy that in the time-worn tradition of bureaucracy seems more concerned with its own survival than in expeditiously settling recognition claims.  It seems more concerned with protecting its turf than carrying out its function. It seems more concerned with “mek wuk” than in ensuring that workers rights are implemented.

The process as far as we understand it is twofold. The first step is determining the appropriateness of the bargaining unit(s); the second step is the checking of records. Trade unions have never had a problem negotiating bargaining units. The secretariat seems to be believe that there is some esoteric science that must be invoked to determine a bargaining unit and that the within the secretariat they alone have the “expertise” to determine bargaining units, which takes an inordinately long time with much toing and froing. It’s all a load of rubbish!

Step two is the checking of records which should be relatively easy process, if not for the recalcitrance of the employers and the incredible level of superfluous detail that the Board requires from parties involved in the application.

We support the recommendations contained in the memorandum submitted by the Joint TradeUnion Movement (JTUM) to the Chairman of the Recognition Board dated 5th December 2013 entitled MORE EFFECTIVE PROCEDURES FOR PROCESSING TRADE UNION RECOGNITION CLAIMS

Included among these recommendations are that the following time lines should be introduced:

1. a claim for recognition should be acknowledged by the Board within seven (7) days of its receipt;
2. within fourteen days, the Board should convene a meeting of the union and the employer to discuss what bargaining unit(s) would be appropriate (this is the time-line set out in the IRA for the Ministry of Labour to convene a conciliation meeting for reported trade disputes);
3. the employer should be required to bring to that meeting all the information necessary to enable the discussion to take place on what bargaining unit(s) should be established;
4. where the parties can agree the appropriate bargaining unit(s), this should be accepted by the Board;
5. the Board should establish interim bargaining unit(s) to enable the check of records to take place while further work is done on clarifying and dealing with outstanding issues.
6. time-lines can be varied by mutual agreement between the parties but the objective should be to complete the process within three (3) months
7. where the employer refuses to co-operate, ignores the process or deliberately delays the process, the Board should proceed on the basis of the information it has available from any source, including that provided by the union. This is already provided for in Section 23(1) of the Board Rules.

The National Workers Union contends that with appropriate leadership from the Minister of Labour, these interminable frustrating delays can be eliminated and workers could be saved much of the heartache and victimisation that are inherent in the recognition process as is currently operated.

The issue of trade union recognition is the most important element in the collective bargaining process. If trade unions are not recognised by employers then collective bargaining is impossible. In the days of the voluntaristic industrial relations system, this was determined by a trial of strength and made for speedy recognition.

Since the state has begun to regulate industrial relations we have seen the gradual erosion of the ability of workers and their unions to gain expeditious recognition. This has resulted in the withering of trade union density and the subversion of the right to freedom of association and to collective bargaining.

Your background and your utterances, Mr. Minister, have given you a clear understanding of the problems inherent in the present system of determining applications for recognition. But, a great revolutionary philosopher, with whom you are quite familiar, once said the point is not to understand the world, but to change it. The ball, Mr. Minister, is in your court!

In the service of the working class

Dave Smith, General Secretary