A decision by the Industrial Court to allow the Communication, Transport and General Workers’ Union to represent employees of Caribbean Airline Limited (CAL) after it replaced British West Indian Airways (BWIA) in early 2007, has been affirmed.
Earlier this week, Appellate Judges Alice Yorke-Soo Hon, Mira Dean-Armorer, and Malcolm Holdip dismissed an appeal from CAL over a decision taken by the Industrial Court in 2017.
Justice Dean-Armorer, who delivered the panel’s decision, said the Industrial Court’s decision could not be faulted.
“In our judgment, the Industrial Court decided this case from all the circumstances in accordance with good conscience and the principles of good industrial relations practice,” she said.
“In so far as the challenge was to the Industrial Court’s findings of fact, it is now well established that a finding of fact will be overturned on appeal only if it amounts to an error of law.”
According to the evidence in the case, after CAL replaced BWIA in January 2007, the union applied to the court to exercise its discretion under Section 48 of the Industrial Relations Act to rule that the airline was BWIA’s successor.
Justice Dean-Armour noted that the court developed a test to determine the issue of successorship.
“This test has come to be known as the three substantials test, meaning that the new employer carries on substantially the same operation as the former employer, in substantially the same way with substantially the same employees,” she said.
Justice Dean-Armorer rejected CAL’s claim that the court should not have considered the issue as the union did not have a valid collective agreement with BWIA at the time it made the application.
“The collective agreement does not cease to exist until it is replaced by another,” she said.
She also rejected CAL’s claim that the finding of successorship was precluded as the BWIA employees received severance payments before joining CAL.
She also pointed out its complaints over the failure of the Industrial Court to consider a supplement agreement between the union and BWIA, under which it was agreed that the union and its members would not take legal action against CAL.
She stated that the supplemental agreement only dealt with claims of separation compensation against BWIA.
Justice Dean-Armorer ruled that the Industrial Court also correctly applied its test.
“In our view, the evidence supported the almost twin-like similarities between the two companies. Indeed, it may have been perverse and contrary to good conscience to disregard those similarities,” she said.
CAL was represented by Russell Martineau, SC, while Douglas Mendes, SC, and Imran Ali represented the union.
