The Court of Ap­peal has ruled that the In­dus­tri­al Court got it wrong when it re­ject­ed a le­gal chal­lenge from the Com­mu­ni­ca­tions Work­ers Union (CWU) over a move by the ma­jor­i­ty State-owned Telecom­mu­ni­ca­tions Ser­vices of T&T (TSTT) to tem­porar­i­ly al­ter its group health plan for em­ploy­ees and re­tirees, al­most a decade ago. 

De­liv­er­ing a 29-page judge­ment yes­ter­day morn­ing, Ap­pel­late Judges Mark Mo­hammed, Maria Wil­son, and Ron­nie Boodoos­ingh ruled that in dis­miss­ing CWU’s chal­lenge, the In­dus­tri­al Court did not con­sid­er the plight of its mem­bers, who were re­quired to pay high­er pre­mi­ums with new re­stric­tions on their ben­e­fits un­der the change. 

Jus­tice Boodoos­ingh, who de­liv­ered the ap­peal pan­el’s de­ci­sion, said: “The Court weighed the im­pact on TSTT but it gave pri­or­i­ty to TSTT’s in­ter­ests with­out bal­anc­ing the in­ter­ests of the em­ploy­ees.” 

Ac­cord­ing to the ev­i­dence in the case, the dis­pute be­tween the union and the com­pa­ny be­gan in 2010 when the com­pa­ny claimed the plan was in a deficit and it (the com­pa­ny) could not sus­tain con­tin­u­ing to make up the short­fall. 

The par­ties en­tered in­to a Mem­o­ran­dum of Agree­ment (MoA) un­der which they agreed to a tem­po­rary two-year plan. 

While the terms of the MoA stat­ed that em­ploy­ee pre­mi­um ad­just­ments would be de­ter­mined by the ad­min­is­tra­tor of the plan, CWU filed the le­gal ac­tion af­ter pre­mi­ums in­creased by be­tween 21 and 35 per cent. 

In its le­gal chal­lenge, CWU al­leged that the tem­po­rary plan was in breach of the par­ties’ pre­vi­ous col­lec­tive agree­ment which stat­ed that the plan could on­ly be ad­just­ed by mu­tu­al agree­ment. 

TSTT de­nied any wrong­do­ing as it claimed that the changes were per­mit­ted un­der the MoA and were nec­es­sary to keep the plan vi­able as it was pre­vi­ous­ly forced to in­ject al­most $7 mil­lion in­to it to keep it afloat.

The In­dus­tri­al Court up­held TSTT’s sub­mis­sion on the ap­plic­a­bil­i­ty of the MoA and dis­missed the case. 

In de­cid­ing the ap­peal, Jus­tice Boodoos­ingh re­ject­ed TSTT’s claim that the change in pre­mi­ums was not a ma­te­r­i­al change to the plan re­quir­ing the union’s con­sent. 

“From whichev­er per­spec­tive the plan is looked at, the pre­mi­um to be paid must be a ma­te­r­i­al or fun­da­men­tal term. From every per­spec­tive it af­fects the will­ing­ness of a par­ty to be a mem­ber of the plan and the vi­a­bil­i­ty of the plan,” Jus­tice Boodoos­ingh said. 

He not­ed that un­der the changes, re­tirees were now re­quired to make pre­mi­um con­tri­bu­tions for cov­er­age.

Jus­tice Boodoos­ingh al­so not­ed that the plan was tem­po­rary and TSTT could have ne­go­ti­at­ed with the union to avoid hav­ing to bail out the plan in the fu­ture. 

“TSTT could have sought to ne­go­ti­ate a po­si­tion which capped the con­tri­bu­tions it was re­quired to make so that its oblig­a­tion to fund any deficit in the health plan could be lim­it­ed,” he said. 

As part of the ap­peal pan­el’s de­ci­sion, Jus­tice Boodoos­ingh and his col­leagues ruled that TSTT had breached the col­lec­tive agree­ment. 

De­spite the union’s le­gal vic­to­ry in the case, it did not re­quest that its mem­bers be re­im­bursed for the in­creased pre­mi­ums they were forced to pay. 

“It was not the CWU’s in­ten­tion that any or­der be made which could have the ef­fect of “crash­ing” the health plan,” Jus­tice Boodoos­ingh said. 

CWU was rep­re­sent­ed by Gabrielle Gellineau, while El­ton Prescott, SC, An­der­son Mod­este and Sashi In­dars­ingh rep­re­sent­ed TSTT. 

Last month, the In­dus­tri­al Court grant­ed CWU a stay of TSTT’s de­ci­sion to re­trench 468 work­ers on June 1. 

In its sub­stan­tive chal­lenge, which is still pend­ing, CWU is claim­ing that TSTT was re­quired to give the work­ers 45 days’ no­tice and was not per­mit­ted to seek to pay the work­ers for the pe­ri­od as it at­tempt­ed to do. 

TSTT has main­tained that the re­struc­tur­ing of the com­pa­ny is es­sen­tial to im­prov­ing its sus­tain­abil­i­ty/prof­itabil­i­ty. 

“The need to re­struc­ture TSTT is ur­gent and crit­i­cal, ne­ces­si­tat­ed both by the im­pact of chal­leng­ing eco­nom­ic con­di­tions brought on by the COVID-19 pan­dem­ic and the dras­tic ef­fect of changes in tech­nol­o­gy on the com­pa­ny’s op­er­a­tion and per­for­mance,” the com­pa­ny said in a state­ment, last month.