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By Jada Loutoo Saturday, July 12 2014

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LAWYERS representing president of the Public Services Association president Watson Duke have unsuccessfully challenged the legality of the Industrial Court presiding over a contempt of court application brought by Labour Minister Errol McLeod, the acting Prime Minister.

Duke, the PSA and immigration officer Purdy Babwah, who are named in the contempt proceedings filed on Thursday, have argued through their lawyers that they were entitled to be tried by an independent and impartial tribunal.

According to Douglas Mendes, SC, who represents the three, the court as constituted was not an independent tribunal under the Constitution as the members, with the exception of the president, were beholden to the Executive for security of tenure and may be concerned about how a decision in the contempt proceedings may affect their renewal of contracts.

“A relationship of dependency has been formed,” Mendes argued.

“Any judge hoping to have his tenure renewed has become beholden to the Executive,” he added.

“The court as presently constituted is not an independent tribunal, not institutionally independent and cannot afford the defendants their rights under the Constitution to be tried by an impartial tribunal,” Mendes further submitted.

In reply, Russell Martineau, SC, who leads the case for the Labour Minister, countered that the Industrial Relations Act, which provides for the appointment of judges to the Industrial Court, was passed by a two thirds special majority of Parliament and gave it the jurisdiction to hear the application before it, once the provisions of the legislation as it relates to their powers were followed by the judges.

He said the rule of law must prevail and reminded the judges that what was before them was an application which sought to preserve the court’s integrity by ensuring that persons abide by orders it gave as in the case of the injunction retraining immigration workers from engaging in industrial action which was granted last week.

“What is the court, as a superior court of record, to do? See its order being flouted?” Martineau asked. Hearing of the contempt of court application filed on Thursday by McLeod, began in the Industrial Court yesterday before Industrial Court president Deborah Thomas-Felix, and judges Lawrence Achong, Albert Aberdeen, Kyril Jack and Kathleen George-Marcell.

Scores of immigration officers sat in court for the day’s proceedings while outside workers of the department stood waiting word on what was taking place inside.

Thomas-Felix, in an oral ruling, denied the application saying the court, as constituted, had the right to continue hearing the application before them.

“We are ready to move on,” she said, also ruling against the request that the matter relating to the court’s constitutional remit be referred to the High Court for determination.

McLeod filed the application against Duke and Babwah, both of whom were present in court yesterday.

Representing the Minister are Martineau, Addison Khan and Derek Ali while Mendes leads Michael Quamina, John Heath and Anthony Bullock for the PSA, Duke and Babwah.

The application calls on the court to commit Duke and Babwah to prison for contempt for aiding and abetting the breach of the injunction which the Industrial Court had granted last Thursday, when workers at the Immigration Division were ordered back on the job. The order granted by the court also restrained them from taking and continuing to take industrial action at any of the offices of the Immigration Division.

Duke is accused of calling out and instructing immigration staff, at both Port-of-Spain and San Fernando, to sign in and leave their jobs without working by telling them that the office was shut down until whenever.

Babwah is accused of refusing to work, engaging in industrial action on July 7 and 8.

Duke and the immigration workers are claiming they are being compelled to work in an unsafe building by their employer in contravention of Section 15 of the OSH Act. Lawyers representing the PSA, Duke, and Babwah, intend to prove that immigration workers have not breached the court-granted injunction which ordered them back to work.

They are claiming that the workers were not engaging in industrial action, as it has been deemed by the court, but were concerned for their health and safety.

Acting Chief Immigration Officer Gerry Downes was yesterday cross-examined on the inspection safety report done by the Occupational Safety and Health Authority on July 4.

Downes said the issue of maintenance of the building was an ongoing one which was the duty of the owners of the premises.

He said maintenance is done when there was the need for it but could not say how long they have been in default. According to the occupational safety and health (OSH) report, there has not been maintenance of the workplace.

Downes also admitted the department has never provided an OSH policy to workers or has an annual risk assessment done.

He also admitted that in May there were some members of staff who were complaining of their skin itching and air quality tests were carried out by Caribbean Industrial Research Unit (Cariri) but no investigation was done to determine the cause of the problem.

Downes said he was not concerned immigration workers would suffer a similar fate to that of the TTEC employee who received burns about the body at the Immigration Division building on Frederick Street, Port-of-Spain, saying the area in which the electricity commission’s worker was at, was not accessible by his staff.

The acting Chief Immigration Officer also admitted the department did not have an OSH committee, and he could not say why and while the building which houses the staff was not spotless, it was a generally clean building.

“Nothing is perfect,” he said, admitting also that the division did not have a valid fire certificate.

Mendes: You’re comfortable with that?

Downes: No, I won’t be satisfied.

Mendes: You expect them (immigration workers) to be satisfied?

Downes: No I don’t expect them to be satisfied.

Hearing continues on July 18, when Downes will be further cross examined. Meanwhile the court’s order granted on July 3 stays in effect. Duke said after yesterday’s four hour-long sitting in the interest of the public and his members, they will look at ways of bringing relief to both sides. He did not say if that meant workers will be back on the job on Monday.

The injunction was sought by the Labour Minister to avert a possible crisis as he said he was of the considered opinion that the national interest of Trinidad and Tobago was threatened and affected by the action taken.

See page 9

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