Industrial Court president Deborah Thomas-Felix has stated that mandatory vaccinations cannot be implemented unilaterally by employers.
Delivering her annual speech at the opening of the court’s 2021/2022 Law Term at its headquarters in Port-of-Spain yesterday morning, Thomas-Felix stated that while employers are permitted to introduce a vaccination policy for new employees, consultation is mandatory for it to apply to existing workers.
Thomas-Felix said: “In other words, can such a policy be introduced unilaterally by employers in the workplace? The short answer to that question is NO.”
“The introduction of a COVID-19 vaccination policy or any new policy can amount to a material change in the terms and conditions of employment and ought to be imposed unilaterally,” she added.
She noted that if workers or their recognised majority union cannot come to an agreement over such a policy, they can take their dispute to the Ministry of Labour or come directly to the court through the filing of an industrial relations offence.
Thomas-Felix also suggested that unions and employers consider adding COVID-19 related clauses when entering into negotiations for new collective agreements.
Beyond vaccination policies, Thomas-Felix said that employers are required to take all “reasonably practicable” steps to prevent the spread of COVID-19 in the workplace.
“In short an employer’s duty can only be considered to be discharged when he/she applies and upholds the requirements of the public health laws, the Occupational Safety and Health (OSH) Act and the laws of the country in general,” Thomas-Felix said.
She also stated that the OSH Act requires that employers bear the costs associated with such measures.
Thomas-Felix recommended that employers engage in risk assessments with consultation with unions or workers to determine whether there are compelling reasons to distinguish between vaccinated and unvaccinated employees. “The risk of discrimination should be among the factors to be considered if such an assessment is undertaken and so too should the training needs of workers, especially training and education on vaccines,” she said.
Thomas-Felix noted that while between January to March 2020 only six industrial relations offences were filed at the court, 178 were filed between March 2020 and September 14.
“Most of these industrial relations offences are complaints related to the COVID-19 pandemic and the majority of them pertain to the lack of consultation by employers with workers, the unilateral alterations of terms and conditions of employment and the failure of employers to enter into collective bargaining with unions to discuss and resolve COVID-19 related issues,” Thomas-Felix said.
She suggested that the high rate of filings demonstrated the absence of social dialogue by many in the workplace.
“Unilateral COVID-19-related decisions are causing a deterioration of labour management relations which is very troubling and does not augur well for industrial relations and productivity in the post-COVID-19 economy,” Thomas-Felix said.
“I strongly urge all participants of the labour market to take note of this development and to make efforts to reverse this,” she added.
Thomas-Felix also commented on the decision of the National Confederation of Trade Unions to withdraw from the National Tripartite Advisory Council.
“However, this is the time in our nation’s history where there is a need for the workforce to be guided by the decisions of the tripartite leaders,” she said.
She commended the Federation of Independent Independent Trade Unions and NGOs (FITUN), the Joint Trade Union Movement (JTUM), and the National Trade Union Centre of T&T (NATUC) for engaging in bilateral discussions with business groups in August.
“These tripartite meetings mark a very important first step in tackling the issues created by the pandemic, and I do wish that they bear fruit and assist in providing much-needed guidance in the workplace,” she said.
Dealing with the work of the court over the past year, Thomas-Felix noted that 966 new cases were filed compared to 905 for the previous year.
The court was able to dispose of 1,037 cases, which was 330 more than the cases disposed of in 2019/2020.
She noted that while there were open court hearings between September, last year, and April, this year, there were none between May and July because the court does not have the technology or equipment to facilitate virtual hearings.