Arcelormittal Point Lisas v Steel Workers Union of Trinidad and Tobago
| Jurisdiction | UK Non-devolved |
| Judge | Lord Clarke |
| Judgment Date | 06 August 2015 |
| Neutral Citation | [2015] UKPC 36 |
| Date | 06 August 2015 |
| Docket Number | Appeal No 0087 of 2013 |
| Court | Privy Council |
[2015] UKPC 36
Privy Council
From the Court of Appeal of the Republic of Trinidad and Tobago
Lady Hale
Lord Clarke
Lord Wilson
Lord Hodge
Sir Paul Girvan
Appeal No 0087 of 2013
Appellant
Peter Knox QC Reginald TA Armour SC Vanessa Gopaul
(Instructed by Charles Russell Speechlys)
Respondent
Douglas L Mendes SC Anthony Bullock
(Instructed by Simons Muirhead & Burton)
Heard on 24 March 2015
This appeal comes from Trinidad and Tobago and concerns the applicability of collective agreements to persons employed under 'labour only' contracts. The issues in the appeal to the Board arise out of the Industrial Relations Act 1972, Ch 88:01 ("the Act"), which governs the relationship between the appellant as "employer" and (a) its employees as "workers" and (b) the respondent as "trade union". The Board will refer to the appellant as "the employer" or "the appellant" as appropriate and the respondent as "the union". The Act accords statutory protection to "workers", as defined. The union obtained recognition as the recognised majority union (the "RMU") of the workers employed by the employer. Under the Act the employer and the union were obliged to treat and enter into negotiations with each other in good faith for the purposes of collective bargaining. Among other matters, "trade disputes" or "disputes" between an employer and its workers (or a trade union on behalf of such workers) are to be determined by the Industrial Court of Trinidad and Tobago ("the Industrial Court").
The case giving rise to this appeal arises out of an application dated 29 December 1997 made by the union to the Industrial Court for an order that Caribbean Ispat Limited ("ISPAT"), which was the appellant by its former name, be deemed to be the employer under "labour only contracts of all those persons employed by so-called contractors to perform work normally performed by worker (sic) in bargaining unit I of which the Union is the recognised majority union". The union is certified as the RMU in respect of workers in bargaining unit I. The application was expressed to be made pursuant to section 2(1) and 4(b) and section 7(e) of the Act. It is not in dispute that the reference to section 4(b) of the Act is intended to be a reference to section 2(4)(b) and that the reference to section 7(e) is intended to be a reference to section 7(1)(e) of the Act.
In his decision given on 31 July 2009, nearly 12 years after the application was issued, His Honour Mr Patrick Rabathaly ("the judge") held that the persons recruited by two contractors (Systems Maintenance Services Limited ("SMS") and Management Technical Services Limited ("MTS")) were operating under labour only contracts with the employer and were therefore deemed to be workers employed by the employer. Further, the court ordered the employer to apply "the appropriate collective agreement(s)" to those persons and that any moneys due to the workers should attract interest thereon at the rate of 8% per annum from the "due date to the date of payment". The employer appealed to the Court of Appeal but the appeal failed. The order of the judge was upheld by the Court of Appeal on 9 December 2011. The employer now appeals to the Board.
The employer says that the Court of Appeal was wrong to uphold the decision of the Industrial Court, both (a) because on a true construction of the Act it was wrong in law and made in excess of the court's jurisdiction and (b) because in making it, the court acted in violation of the rules of natural justice. The union disputes each of those grounds. The employer further contends (on a point which was not addressed in the Court of Appeal) that the Court of Appeal's decision failed to take into account an alleged agreement between counsel in the Industrial Court, which treated and limited the case (including the evidence led) before it as a test case on the meaning of section 2(4)(b) of the Act. The union says that it is not open to the employer to raise this point in this appeal, even assuming that the alleged agreement was made.
The employer is a limited liability company engaged in the production of steel and steel by-products at the Point Lisas Industrial Estate on the island of Trinidad. The union is certified as the RMU for the appellant's hourly and weekly rated workers and monthly paid workers in bargaining units I, II, III and V. In relation to these bargaining units, the employer and the union entered into collective agreements from time to time in accordance with the terms of the Act. Each of the collective agreements was for a minimum period of three years. In the course of its operations over a period of 15 years and in addition to its own workforce, the employer retained various contracting companies who provided a number of services, including mechanical and maintenance services. The work necessary to provide the services was performed by persons ("the contract workers") employed by the contracting companies.
The employer's case is that until the Industrial Court's deeming order on 31 July 2009, the contract workers were not "workers" within the meaning of the Act, that as at the date of the union's application, the statutory protection accorded by the Act to "workers" (as defined) did not yet apply to them as such; they were not "workers" in bargaining unit I; the employer was not in "dispute", properly defined, with any of them; and the respondent was not a union recognised as acting on their behalf under the Act.
On this last point, the union's position is that this is also a point which was not taken before the Industrial Court or the Court of Appeal and, accordingly, the union reserves its position on whether it is one which can be raised on this appeal. On the substantive question, the union's position is that, whether the contract workers were employed by the contractors or the appellant, they were "workers" (as defined) and enjoyed that status and the protection of the Act from the first day of their employment. The Industrial Court determined that they were employed by the appellant under labour only contracts. Further, the union says that the Act deems persons who are employed by the appellant under labour only contracts to be employed by the appellant and, accordingly, to be entitled to the benefits of any collective agreement between the employer and the union. Their status as employees of the appellant is established by the Act and is not dependent upon a finding by the court to that effect.
The application was supported by the union's Statement of Evidence and Arguments filed on 18 December 1998. In that document it contended in paras 3 and 4 that the contract workers were performing work normally performed by workers in bargaining unit I, under the direction and control of the appellant and, that, as such, the contract workers ought to be deemed to be employed by the appellant under labour only contracts. The union contended further that the appellant did not recognise the contract workers as its own employees and did not apply the collective agreement in relation to them. The union therefore sought an order that the appellant was bound to apply the collective agreements to the contract workers.
The appellant (as respondent) filed its Statement of Evidence and Arguments on 28 February 2000. It contended that the companies with whom it contracted were independent contractors and that the contract workers were therefore not its own employees but those of the companies with whom it contracted. It contended further that the contract workers were recruited and paid by their respective contractors who determined their compensation packages and exercised all powers of discipline over them. It also noted in its Evidence and Arguments that the registered collective agreement applicable to its workers in bargaining unit I had expired on or about 31 October 1998. It did not dispute that it did not apply the collective agreement to the contract workers.
In the course of the protracted hearings there were a number of exchanges which are said to be relevant to the issues in this appeal. The Board can take them from the agreed statement of facts and issues. For example on 10 November 2004 counsel for the union told the judge that the parties had agreed in principle to try to use the witnesses who had given evidence until then as test cases because there were basically two types of such witnesses, namely permanent contract workers and casual contract workers, which they were hoping covered what he called the entire ground. On 16 November he told the judge that, having regard to "the agreement", it was not necessary to call further witnesses because they would just be giving the same evidence as the previous witnesses. In his closing submissions in November 2006 he said that the union closed its case on the basis that there was an agreement between counsel that the cases of those who had already given evidence would be treated as test cases, so that, in the light of the decision in those cases, the parties would be able the know exactly what their rights and obligations were, without having to call further evidence.
The case for the employer is that in the early course of the hearing before the Industrial Court, counsel agreed that (a) the application would be treated as a test case in respect of the true meaning of section 2(4)(b) of the Act and (b) this was the only issue for determination ("the Agreed Issue"). The union's case is that it is clear that what the parties intended was that it was not necessary to lead evidence of the circumstances of all persons employed under labour only contracts, but that the...
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