republic of trinidad and tobago in the high...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV2016-00147

IN THE MATTER OF AN APPLICATION FOR LEAVE TO MAKE A CLAIM FOR

JUDICIAL REVIEW PURSUANT TO PART 56.3 OF THE CIVIL PROCEEDINGS

RULES, 1998 AS AMENDED AND PURSUANT TO SECTION 6 OF THE JUDICIAL

REVIEW ACT, 2000

AND

IN THE MATTER OF THE DECISION OF THE REGISTRATION, RECOGNITION

AND CERTIFICATION BOARD CONTAINED AND/OR EXPLAINED IN THE

BOARD’S LETTER DATED DECEMBER 14, 2015 AND/OR CONTAINED IN THE

BOARD’S LETTER DATED MAY 8, 2015

BETWEEN

THE UNIVERSITY OF TRINIDAD AND TOBAGO

Applicant/Intended Claimant

AND

REGISTRATION, RECOGNITION AND CERTIFICATION BOARD

Intended Respondent

Before the Honourable Mr. Justice V. Kokaram

Date of Delivery: 30th November 2016

Appearances:

Mr. John Jeremie S.C. and Mr. Kerwyn Garcia instructed by Ms. Manisha Lutchman for

the Applicant

Ms. Keisha Prosper and Ms. Theophilus instructed by Ms. Lesley Almarales for the

Respondent

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JUDGMENT-SUMMARY

1. The Claimant, the University of Trinidad and Tobago (UTT) has brought an application for

judicial review of the decision of the Registration, Recognition and Certification Board

(Board) dated 14th December 2015 whereby it found that Glenford Joseph was a worker

within the meaning of Section 2(3) (e) the Industrial Relations Act Chap 88:01 (IRA).

2. The Board is the only competent body to make a determination under the IRA as to who is a

worker. Its jurisdiction to make such a determination in this case was invoked upon the

Minister of Labour referring the issue of Mr Joseph’s status as a worker to the Board for

determination. Such a referral was made as a result of a reported trade dispute between the

Oilfields Workers’ Trade Union (OWTU) who represented Mr Joseph and UTT.

3. The Board conducted a hearing of this issue by means of requesting the parties to submit

their Evidence and Arguments in support of their rivalling contentions which documents

were shared between the parties. The Board also convened ex parte clarification meetings

convened by the Board’s Examiner. These clarification meetings were held with the

respective parties in the absence of the other to receive the parties’ submissions. Notes of

these meetings were taken by the Examiner and conveyed to the other party in subsequent

clarification meetings. Such clarification meetings is the practice of the Board adopted “to

reduce the likelihood of the proceedings becoming adversarial and to protect union members

from possible victimisation”. Subsequent to those meetings, a report was prepared and

submitted to the Board’s Secretary for onward transmission to the Board for consideration.

4. In this case although UTT participated in the clarification meetings it was not afforded the

opportunity to view the report or make submissions on it.

5. On the 8th May 2015, the Board wrote to UTT notifying it that after full and careful

consideration of the respective representations of the parties, the Board arrived at the

conclusion that Mr Joseph was a worker within the meaning of Section 2(3) (e) of the IRA.

Reasons for the decision was provided by letter dated the 14th December 2015.

6. UTT is seeking to have the said decision quashed as illegal and/or ultra vires and/or

unreasonable and/or irrational and/or contrary to the provisions of the IRA. They have

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advanced a battery of grounds for judicial review which go to the root of the Board’s

jurisdiction to make this decision. They contend that the decision is unauthorised and/or

contrary to law, in excess of jurisdiction, unreasonable, an irregular or improper exercise of

discretion, unreasonably took into account irrelevant considerations, an error of law,

committed a breach of duty acted so unreasonably that no reasonable person could have so

exercised the power and breached the rules of natural justice.

7. This claim for judicial review also brings squarely into focus statutory ouster clauses under

section 23(6) and (7) of the IRA. This has already been the subject of judicial consideration

by Gobin J in Desalination Company of Trinidad and Tobago Limited v Registration

Recognition and Certification Board CV2013-00039 which decision is under appeal. By

way of preliminary issues the Court must determine the scope of review if any depending on

its approach to this ouster clause.

8. The agreed issues for determination are as follows:

“a. What is the effect of Desalination Company of Trinidad and Tobago Limited v

Registration Recognition and Certification Board CV2013-00039 on section 23(6)

and (7) of the Industrial Relations act.

b. Whether the Court’s Jurisdiction is ousted by section 23(6) and (7) of the Industrial

Relations Act.

c. If the Court determines that its jurisdiction is not ousted by sections 23 (6) and (7) of

the Industrial Relations Act, whether in arriving at its opinion that Glenford Joseph

was a worker within the meaning of section 2 (3) (e ) (i) and (ii) of the Industrial

Relations Act, the Respondent:

i. acted outwith and/or in excess of its jurisdiction and/or failed or refused to

act within its duties and functions;

ii. acted in breach of natural justice;

iii. exercised its powers on irrelevant grounds and/or took into account

irrelevant considerations;

iv. addressed itself to the wrong questions;

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v. exercised its powers in a manner that is so unreasonable that no reasonable

person could have so exercised the power;

vi. failed to exercise its jurisdiction properly or at all in that it based its

opinion on a test set by a body which lacked the jurisdiction to establish

any test.

d. Whether by reason of any of the matters at 3 a. to f., or by reason to any other

matters, the Respondent’s opinion that Glenford Joseph was a worker within the

meaning of the section 2 (3) (e) (i) and (ii) of the Industrial Relations Act, is illegal

and/or ultra vires and/or unreasonable and/or irrational and/or contrary to the

provisions of the Industrial Relations Act, and is null, void and of no effect.

e. If so, what relief is the Claimant entitled?”

9. There necessarily is an overlap on the facts falling for consideration under multiple grounds

of challenge.

The status of the ouster clauses in the IRA

10. There are two sections in the IRA which prohibits a review of the decision of the Board.

“Section 23(6)

(6) No decision, order, direction, declaration, ruling or other determination of the Board

shall be challenged, appealed against, reviewed, quashed or called in question in any

Court on any account whatever; and no order shall be made or process entered or

proceeding taken by or in any Court, whether by way of injunction, declaratory judgment,

certiorari, mandamus prohibition, quo warranto or otherwise to question, review,

prohibit, restrain or otherwise interfere with the Board or any proceedings before it.

Section 23(7)

(7) Subject to this Act, and in particular to section 3 1, the Board shall be the sole

authority competent to expound upon any matter touching the interpretation and

application of this Act relating to functions and responsibilities with which the Board is

charged by the Act or any other written law; and accordingly, no cause, application,

action, suit or other proceeding shall lie in any Court of law concerning any matter

touching the interpretation or application of this Act.”

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11. These two sections oust the jurisdiction of the High Court in relation to challenges to the

ruling of the Board and any matter touching and concerning the interpretation and application

of the Act because the Board is recognised as the sole authority competent to expand on such

matters.

12. From a long line of cases beginning with Anisminic Ltd v Foreign Compensation

Commission [1969] AC 147, it is now clear that ouster clauses are not sacrosanct and are

virtually ineffective in ousting the supervisory jurisdiction of the High Court. From judicial

commentary from noting that “Courts jealously guard its supervisory jurisdiction” to Lord

Phillips’ observation in R (Cart) v Upper Tribunal [2011] UKSC 28 of the “controversial

nature” of such ousters. In 1997 Professor Geoffrey Wilson (para 1.3.8 Fordham) commented

that “nobody should be surprised if in a real case of legislative enormity the Court did not

discover a higher principle of law but which they felt free or even obliged to ignore the

current version of the doctrine not only in the name of constitutional convention but also in

the name of the law.”

13. Fordham would also note the judicial hostility to ouster clauses:

“Legislative provisions which suggest a curtailment of the Courts’ powers of judicial

review strike at the heart of the Courts’ constitutional function of upholding the rule of

law and access to justice testing the remits of the principle of legislative supremacy.”

Para 28.1

14. In the Caribbean ousters have met a similar hostile climate. In the Caribbean Court of Justice

The Attorney General et al v Jeffrey Joseph and Lennox Ricardo Boyce CCJ Appeal No.

CV 2 of 2005 the Learned Justices in making reference the House of Lords’ decision in

Anisminic v Foreign Compensation Commission [1969] 2 AC 147 emphasized that:

“courts have made it clear that they will not be deterred by the presence of such ouster

clauses from inquiring into whether a body has performed its functions in contravention

of fundamental rights guaranteed by the Constitution, and in particular the right to

procedural fairness.”

15. The ousters in the IRA were however designed to promote the development of a new

jurisprudence of industrial relations law. The structure of the IRA has been well rehearsed in

Paul Lai v The Attorney General of Trinidad and Tobago Civ App No. P129 of 2012 and

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the creation of the Board is indeed a specialised tribunal staffed with its own expertise on the

question relating to special matters of industrial relations such as the definition of workers,

bargaining units and other such matters which the Minister will refer to it from time to time.

16. The judicial treatment of these ousters have been met with two approaches. First there is the

approach of judicial autonomy that preserves unto the Court the common law supervisory

jurisdiction of review of decisions made without jurisdiction. This approach demonstrates

that the distinction between errors or law within or without jurisdiction have now vanished

into insignificance and it is plain that any error of law made by the statutory body may well

deprive it of the jurisdiction to make the decision and fall under the supervisory jurisdiction

of the Court to put it right.

17. Aviation Communication and Allied Workers Union v The Registration Recognition

and Certification Board CA. No. 35 of 1995 determined that the Court’s jurisdiction was

not ousted with regard to errors made that affect the jurisdiction of the Board or breaches of

the rules of natural justice. Ibrahim J observed:

“Once, therefore, it is a matter that falls within the functions and responsibilities

of the Board then the Board can interpret and apply the Act in any way it thinks

fit in relation to those functions and responsibilities. It may do so correctly or

incorrectly and, if correctly, it is immune from being put right by any court. If,

however, the error made does affect the jurisdiction of the Board then it may be

put right, as for example, if it seeks to deal with a matter outside its functions and

responsibilities. (South East Asia Fire Bricks Sdn Bhnd v. Non Metalling Mineral

Products Manufacturing Employees Union and others [1980] 2 All E.R. 689).

Also, if it violates the rules of natural justice as for example, if it makes orders

against a party without hearing that party or if some of its members has a real

interest in the matter before it.”

18. See also Bristow Caribbean Limited v The Registration, Recognition and Certification

Board HCA No. 2192 of 2004. See also Pearlman v Keepers and Governors of Harrow

School [1979] Q.B. 56 and R v Hull University ex p Page [1993] AC 682, 696F.

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19. The second approach has been of recent vintage in 2015 where the High Court by the

judgment of Gobin J in Desalination Company of Trinidad and Tobago Ltd v

Registration Recognition and Certification Board CV2013-00039 struck down these

sections as unconstitutional as it offended the principles of the separation of powers. Indeed

it was the manifestation of the prediction of Professor Wilson that the time eventually came

in this jurisdiction where the Court ultimately invoked a higher principle of constitutionality

to bury this question of the effectiveness of ousters in its grave. It was perhaps a natural

evolution as indeed on a practical level the Court by its own machinations may have treated

the ousters quite like the “emperor’s new clothes” invisible in meaning and intent and

incapable of truly ousting the Court’s supervisory jurisdiction save for questions of fact and

degree.

20. For my part I do not think it would be prudent or safe to base this decision on the absence of

these ousters as having been struck down in Desalination as that decision is presently under

appeal. For my part I do not share the view that the Court should go so far as to strike down

these ousters as being unconstitutional, however that issue is not for determination in these

proceedings. However, these ousters are incapable of preventing this Court from reviewing

the decision of the Board or the reasons set out in Bristow. In any event the grounds of

challenge raised by UTT are all legitimate challenges which go to the root of the jurisdiction

of the Board in making its decision and fit nicely into the judicial treatment of these ousters

as discussed in Bristow and Aviation.

21. However such an approach necessarily recognises the sensitivity of judicial review to the

subject matter and to pay due deference to the decision making body for matters within its

particular expertise who possess the unique knowledge and expertise on their area of learning

and particularly in this matter, in understanding the specialised jurisprudence in the world of

industrial relations. Due deference however will not save a decision which plainly lacks any

basis or is devoid of jurisdiction.

22. In my view for the reasons set out in this judgment the decision ought to be quashed for the

following reasons.

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Unauthorized/ Contrary to Law

23. In considering whether Mr. Joseph is a worker the Board restricted its interpretation of a

“person who is responsible for formulating policy”. The Board stated that: “a person is

responsible for the formulation in an organisation once the said policy that was devised has

been sanctioned”.

24. UTT submitted that the Board addressed the wrong question when they considered what the

organisation does with the policy formulated by a person, rather than the person’s

responsibility for the formulation of the policy itself since a person can be responsible for the

formulation of a policy even if the organisation does not implement the policy.

25. Section 2 (3) (e) of the IRA provides:

“(3) For the purposes of this Act, no person shall be regarded as a worker, if he

is-

(e) a person who, in the opinion of the Board-

(i) is responsible for the formulation of policy in any undertaking or

business or the effective control of the whole or any department of

any undertaking or business; or

(ii) has an effective voice in the formulation of policy in any

undertaking or business.”

26. The Board considered the question of “responsibility for the formulation of policy” as an

inquiry into such policies that have been implemented or sanctioned by the Board. This is

however an illegitimate and improper enquiry. This is not a question which goes to the

Board’s expertise but one of the jurisdiction based on the statutory construction of sec 2(3)(e)

which this Court is best placed to determine. The meaning of section 2 (3) (e) turns on the

definitions of “responsible”, “formulation” and “policy”. A literal definition of these words

are as follows:

“Responsible: Having control and authority; reporting or accountable (to); sensible and

dependable; involving responsibility.

Formulation: The action of creating or preparing something.

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Policy: A course or principle of action adopted or proposed by an organization or

individual.”1

27. The section therefore permits an inquiry into the person’s authority in creating policies which

have been either adopted or proposed. It was improper, unreasonable and illegitimate

therefore to fail to consider whether Mr Joseph’s responsibility included the formulation of

policy whether or not it was sanctioned or implemented.

28. It is in my view not open to the Board to adopt its own policy with regard to the application

or interpretation of the words “responsibility for the formation of policy”. The Board is

restricted in its jurisdiction to the proper application of the Act. See Best J Bristow

Caribbean Limited v The Registration, Recognition and Certification Board HCA No.

2192 of 2004.

29. The Board therefore unlawfully limited the scope on the definition of the question of policy

to the implementation of policy and excluded the lawful definition of whether policy was

proposed which is a legitimate consideration under the meaning of Section 2 (3) (e) of the

IRA.

30. UTT also contends that the Board considered the wrong test in asking whether Mr Joseph

had effective control of the department rather than being “responsible for effective control”. I

am of the view that the correct statutory test is whether Mr Joseph was “responsible for the

effective control of the department”. However, in my view the distinction between the two

tests are immaterial. In any event the person who is in effective control of the department or

business must also be responsible for that effective control. In any event in the submissions

advanced before the Board by UTT they too submitted that Mr Joseph had effective control

of the department without reference to his “responsibility for effective control”. Indeed it

amounts to the same consideration.

Unlawful fettering of the Board’s discretion

31. The Applicant submitted that the Respondent relinquished its responsibility under the Act to

be the sole authority to expound upon any matter relating to the interpretation and application

1 English Oxford Dictionary.

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of the Act with regard to its functions and responsibilities since the Respondent guided itself

on the issue of whether Mr Joseph was a person responsible for the formulation of policy

from the Industrial Court’s decision of Trade Dispute No. 351/97, an application No. 6/97

of the Association of the Technical Administrative and Supervisory staff and Caroni

(1975) Limited.

32. It is true that the Industrial Court does not have the jurisdiction to make a determination as to

whether or not a person is a worker within the meaning of the IRA. See De la Bastide C.J. in

Association of the Technical Administrative and Supervisory staff and Caroni (1975)

Limited. It is also true that the Board’s letter appears to give the impression that the sole

consideration taken into account by the Board was the judgment of Baker J in making a

decision as to what is meant by an “effective voice in the formulation of policy”.

33. However from a proper reassessment of the evidence it appears perhaps that the letter was

inelegantly phrased and it was guided and not bound by those decisions. See the affidavit of

Mr. Brandon Taitt paragraph 21.

34. The Board is free to consider any material it views useful within its expertise. Although the

Industrial Court has no jurisdiction to make a pronouncement as to who is a “worker” within

the meaning of the Act, it does not render their opinion on the question useless or totally

irrelevant. It is noted after all that the Industrial Court is a specialist tribunal with its own

jurisprudence on matters of industrial relations whose members possess years of experience

in industrial relations law. Indeed it is possible for the Board to refer to such decisions as a

Court would consider a dissenting judgment, decisions from different bodies or from

different jurisdictions. However it will be wrong for the Board to consider themselves bound

by those decisions.

35. While the Board is free to develop its own industrial relations jurisprudence it must not at the

same time feel compelled to follow the decisions of the Industrial Court and its decision

should reflect a sensitivity to the development of its own considerations of what is an

‘effective voice’ rather than give the impression that it has felt itself bound to follow the

decisions of Baker J. In this case from the totality of the evidence I am of the view that that

decision was a mere guide and did not fetter the exercise of the Board’s independent

judgment.

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Natural Justice

36. UTT submitted that the Board acted in breach of the rules of natural justice in having the

Examiner’s report prepared which contained material adverse to UTT’s case and failed to

disclose it.

37. In B Surinder Singh Kanda v The Government of the Federation of Malaya PC 2 Apr

1962, a similar situation arose. The Board of Inquiry in that matter prepared a report which

contained a severe condemnation of the Appellant (Inspector Kanda). This report was sent to

an adjudicating officer who read it and had full knowledge of its contents but the Appellant

never had an opportunity to deal with the report. The Privy Council held that the Appellant

was not given a reasonable opportunity to be heard.

38. I do not share the view advanced by the Board that the examiner is an officer intrinsic to the

Board and the preparation of such a report is akin to a judge asking its Judicial Research

Counsel to prepare a note. That is quite a different scenario where the judge is exercising its

independent thought and mind to the facts seeking his own research assistance as he would

himself. However here the Board has an “intervener”, the examiner who engages the parties,

conducts a hearing, summarises their respective submissions and makes her own submissions

to the Board based on policies and precedents which may or may not have been shared by the

parties and making comments which may be adverse to one or the other party. Certainly the

principles of fairness will demand that such a report should be shared with the parties for

their comments for onward transmission to the Board for it to consider all the materials.

39. The decision of the Board to hold ex parte clarification meetings does open the doors to

abuse and although in the facts of this case the ex parte clarification meetings did not

demonstrate that there was not a fair hearing, it certainly is a practice which ought to be

discontinued. Indeed the reasons advanced to hold such ex parte clarification meetings are

baseless and much more good can come from inter partes hearings certainly at the least

reducing the risk of further challenges to the hearings as unfair.

40. I am of the view that the Board by restricting the meaning of “responsibility for formulating

policy” asked itself the wrong question, exceeded its jurisdiction, acted unreasonably, took

into account an irrelevant consideration, made an error of law, breached its duty by

answering the wrong question on policy and was unreasonable by answering the wrong

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question as to whether Mr Joseph was responsible for formulating policy which was

sanctioned and proposed. The decision is also unfair and breaches the rules of natural justice

in failing to provide UTT a copy of the report for their comment before submitting to the

Board.

41. The said decision of the Respondent is therefore quashed and remitted to the Board for re

consideration.

Vasheist Kokaram

Judge

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