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.