Bernard, P.

This matter was reported to the Minister by the Steel Workers' Union of Trinidad and Tobago
(“the Union”) as a dispute existing between the Union and two (2) entities, the Sugar
Manufacturing Company Limited (“SMCL”) and Alpron Limited (“ALPRON”) over the
termination of the employment of “approximately” fourteen (14) workers on or about 13th
March, 2004.

The list of workers annexed to the Union's letter to the Minister contained thirteen (13) names,
one of which was shown as deceased. In its statement of Evidence and Arguments the Union
listed fourteen (14) workers, including the deceased, Mr. S. Singh.

As a non-recognised union the Union reported the matter pursuant to section 51(1)(c) of the
Industrial Relations Act, Chapter 88:01. It claimed in its statement of Evidence and Arguments
that ALPRON was involved in the process and maintenance services of plant and equipment
while SMCL was involved in the processing of sugar cane into sugar. Paragraphs 4 and 5 of the
Union's statement of Evidence and Arguments, set out exactly as filed, read as follows:

 “4. At all material times the workers were employees of Alpron Limited.
o (a) Alprom (sic) Limited was one of the main Contractors, contracted by
the Sugar Manufacturing Company Limited at Usine.
o (b) The workers performed their work duties at the sugar factory under the
orders of the Sugar Manufacturing Company Supervisors or Engineers.
o (c) All the workers were paid by cheques issued from Sugar
Manufacturing Company, however their pay slips with all statutory
deductions and basic earnings were issued to them by Alprom (sic)
Limited showing the full month earnings (true copies of both a cheque
stub and pay slip is attached hereto as Exhibit ‘A’ and “A1”).
 5. As a condition of employment the workers had to provide their own tool kit
with tools and safety gears, which included safety boots, protective glasses,
helmet and coverall, in addition there were no written contracts on Terms and
Conditions of Employment, with all absences from work not paid for.”

The Union does not appear, from its statement of Evidence and Arguments, to be clear as to
which of the two entities was the employer of the workers and spread its net in such a way that
neither entity was outside of its reach. It stated:

“By agents of Sugar Manufacturing Company Limited, taking on the role of the workers
Employers (Alpron Limited) when they determined from among the workers of Alpron Limited
who will be employed at the factory the Sugar Manufacturing Company directly placed
themselves as an Employer is joined to this dispute. (sic) …

The Union is further asking the Honourable Court to agree that Alpron Limited and the Sugar
Manufacturing Company should share equal responsibility as employer based on their method of
control over the workers.” (sic)

To the Court it is unclear whether the Union regards the two entities as jointly liable or jointly
and severally liable or whether there is an inter-pleader situation in which the Union is saying
that one or the other is liable and that the two entities should fight it out between themselves as
to which is not liable (and by liable here I intend only “may be liable” if found to be the
employer).

Initially Mr. Rawlins proposed that the question as to which of the two companies was the
employer should be determined as a preliminary point. However, all parties agreed that the entire
matter should be heard and evidence relevant to that issue would be admitted and considered by
the Court in the course of its assessment of the merits.

In essence the evidence for the Union as it emerged from the testimony of its witnesses was that
they were employed in various capacities by Mr. Ayoub Ali, Managing Director of ALPRON
about January 2004. They performed work for ALPRON at SMCL where their instructions were
issued by Mr. Kishore Deonarine, an engineer at SMCL. They were paid in SMCL's offices by
cheque issued in the name of Caroni (1975) Limited, a predecessor company of SMCL. Mr.
Ayoub Ali never gave instructions as to how the workers were to perform their work.

Mr. Kenny Ramdass who testified on behalf of the Union was cross examined by Mr.
Mungalsingh, Attorney for SMCL. He said that his employment commenced about January 2004
but he signed no contract of employment. He reported to Mr. Ayoub Ali of ALPRON in response
to a telephone call and was offered employment by ALPRON. However, as to the manner of
performance of his duties he received no instructions whatever from ALPRON. ALPRON did
not instruct him as to when or where to report to work nor did that company inform him about
his sick or vacation leave entitlement. Apart from Mr. Ali telling him that he was required to
provide his own tools, boots, coverall, etc., he had no connection with Mr. Ali or ALPRON.

Mr. Ramdass testified that there was a meeting on 11th March, 2004, arranged at the request of
the workers and attended by himself and four (4) other workers on the one hand and Mr. Ali (of
ALPRON) and a Mr. Marshall (of SMCL) on the other. The workers had requested the meeting
to discuss their salaries, with which they were dissatisfied. At the meeting the workers stated
their case for improvement in their wages and Mr. Marshall said that he would discuss the matter
with Mr. Ali. On Saturday 13th March all the workers, with the exception of one Benjamin,
reported for work but were stopped at the gate by Security and prevented from entering the
compound. Mr. Ali was not present at the time, according to Mr. Ramdass. Mr. Ramdass said
that he was informed by a security officer that he and the other workers were black-listed. He
was escorted off the compound.

10

In answer to Mr. Rawlins, Mr. Ramdass said that he was contacted by a friend and told that he
was wanted for work with SMCL. He was supervised on the job by Mr. Deonarine of SMCL. He
last worked on 11th March, 2004. He recalled that the workers did not take up duty on Saturday
13th March, 2004. He never had a written contract of employment and could not recall whether a
draft contract was presented to the workers outside the gate for their perusal. He was paid by
cheque at Mr. Deonarine's office.

11

The Union's next witness, Mr. Steve Benjamin told the Court that he started work with ALPRON
in January 2004. His work as a welder was performed at Ste. Madeline. His supervisor was Mr.
Kishore Deonarine at whose office he received his wages in the form of a Caroni (1975) Limited
cheque. His pay slip was from ALPRON. Some time in February 2004 he received permission
from Mr. Ayoub Ali to embark on a welding course which ended about 25th April, 2004. When
he returned to work at the end of the course he was informed by one Mr. Surajbally, who the
witness believed was employed by ALPRON, that someone else had replaced him. That was
confirmed to him by Mr. Deonarine who informed him that the decision “came from higher up”.
The witness said that he then went in search of Mr. Ayoub Ali but did not find him.

12

In cross examination by Mr. Mungalsingh, Mr. Benjamin said that he was employed by Mr.
Ayoub Ali of ALPRON to provide services during the crop, that is, up to about May 2004, a
period of about five (5) months. At the factory his work was supervised by Mr. Kishore
Deonarine a SMCL engineer, who told him when to report for work. Under his agreement with
ALPRON he was to work from 7:00 p.m. to 4:00 a.m.

13

In response to Mr. Rawlins, Mr. Benjamin said that prior to being employed by ALPRON he
worked with Caroni (1975) Limited, doing the same type of work. When he and others were
recruited, Mr. Ayoub Ali outlined their terms and conditions to them. His employment was to be
for the crop season. He could not be sure how long the crop season would last.

14
Mr. Roland Sookhan, called as a witness by the Union, told the Court that he was employed in
September 2003 by ALPRON which was headed by Mr. Ayoub Ali. He was a mechanical
technician. On 11th March, 2004 he had completed his shift when he was asked to attend a
meeting with Mr. Ayoub Ali to discuss matters on which the workers had requested discussions,
such as increases in salary, holidays, sick leave, payment of NIS contributions and re-
classification of workers. Five workers including himself constituted their delegation, while Mr.
Marshall of SMCL, an engineer, Mr. Karim and Mr. Ayoub Ali were on the other side. The
meeting lasted about thirty minutes. He and the other workers received their salaries in Mr.
Deonarine's office. The pay slips were issued by ALPRON.

15

On the day following the meeting the witness went back to the factory at about 8:00 a.m.
although he was not rostered to work. He expected to see Mr. Ayoub Ali there. There were
workers at the gate when he arrived. He inquired what the matter was and was informed that
security had denied entry to the workers. The following day the witness again went to the factory
at about 8:00 a.m. The workers were still outside. He was informed that the situation remained
the same as the day before. Mr. Ali was not present at the time but some time later he saw Mr.
Ali who told him that ALPRON had lost its contract and was no longer responsible for the
workers. The witness said that he was informed by Mr. Ali that SMCL would be doing the re-
hiring and that some of the workers had been black-listed. His next scheduled working day was
on 16th March, 2004. He reported at 7:00 a.m. on that day and was told by a security officer that
his position had been filled and that he was not allowed on the compound. He was not allowed to
enter the compound to collect his personal belongings.

16

Cross-examined by Mr. Mungalsingh, Mr. Sookhan insisted that he was employed by ALPRON
but that Mr. Deonarine of SMCL supervised his work. He was employed by Mr. Ayoub All of
ALPRON since December, 2003, he said.

17

At the commencement of his employment there was no fixed period for its duration. His salary
was agreed between himself and Mr. Ayoub Ali but there was no written contract. The witness
denied that there was any work stoppage by the workers.

18

In answer to Mr. Rawlins, Mr. Sookhan said that he was contacted by Mr. Ayoub Ali and asked
if he wanted to work at the factory. He was offered work for the crop which started about 12th
January, 2004. He worked from then until 11th March, 2004. He denied the claim of the
companies that the workers on the 7:00 a.m. shift on 11th March, 2004 had refused to commence
work or that he was the main organiser of a work stoppage. He said that he was back at the
factory on 12th, 13th and 14th March to inquire whether Mr. Marshall had seen the CEO or
whether Mr. Ayoub Ali had any further information.
19

At the close of the Union's case Mr. Rawlins called Mr. Ayoub Ali who testified that he was the
managing director of ALPRON. He said that the company came into existence in December,
2003 on the prompting of senior managers of SMCL who indicated to him that they wanted to
re-open the factory at Ste. Madeline formerly operated by Caroni (1975) Limited where he, Mr.
All, had been a manager. The SMCL managers wanted to have the machinery overhauled and
maintained so that the 2004 crop could start. They, therefore, asked him if he could get some
former Caroni engineers back. At that time the SMCL managers were talking to Mr. Ali in his
personal capacity. ALPRON was not yet in existence. Mr. Ali said that he had put a team
together some time about July and that team, including himself, were paid by Caroni (1975)
Limited from August to December 2003. In December, 2003 he formally established ALPRON,
again on a suggestion from senior managers of SMCL who said that they wanted someone to
manage the plant and suggested that he form a company to do so. The SMCL managers
instructed that the company was to employ ex-Caroni workers. At the formation of ALPRON
there was no written contract between itself and SMCL. Such a contract was concluded on 17th
March, 2004 to have retroactive effect from 1st January, 2004.

20

According to Mr. Ali on 11th March, 2004 there was a stoppage of work by the workers. Mr. Ali
said that he arrived at the plant at about 7:00 a.m. on that day and met some of the workers who
complained to him about dissatisfaction with their pay. He told them that he could not discuss
pay with them until they resumed work. Meanwhile, he attempted to contact senior management
at SMCL. Eventually, he contacted Mr. Marshall and together they agreed to meet with a
delegation of the workers. Mr. Marshall led the discussions on their side and told the workers
that their demands could not be met but that if the crop was successful they might get a bonus.
The workers representatives were asked to consult with their colleagues and return to work. They
did not return to work. According to Mr. Ali, the workers had no written contract with ALPRON
at the time of the work stoppage. They were doing “casual work”, Mr. Ali said. During the work
stoppage the company was inviting those workers who wished to return to work to do so, and,
when a sufficient number had returned the plant was restarted some time around the 15th or 16th
of March. The employees who returned signed contracts with ALPRON.

21

Mr. Ali testified that he was not entitled to vary the rates of pay of the workers or to assign them
to any other contract that he might have had with other companies. On a day to day basis
ALPRON's supervisors reported to Managers of SMCL. The workers worked in two (2) shifts,
seven (7) days a week, 24 hours a day. ALPRON had no authority to vary their working hours.
Scheduled maintenance and production targets were determined by SMCL. ALPRON had no say
whatsoever in the operation of the plant and it was SMCL that determined how many workers
were needed for different phases of the operation. ALPRON had time-keepers who determined
the number of hours worked by each worker. The details were sent to SMCL and cheques were
prepared by Caroni (1975) Limited in favour of the workers. Subsequent to the signing of the
contract between ALPRON and SMCL, ALPRON would invoice SMCL for labour cost,
including NIS payments as well as a management fee. That was in essence the evidence-in-chief
of Mr. Ali.

22

In cross-examination Mr. Ali identified the contract signed by himself on behalf of ALPRON
with SMCL. He was referred to the article headed “Description of Services” and he agreed that
he was responsible for the efficient operation of the plant under that article. The wages to be paid
to the workers were agreed between ALPRON and SMCL. ALPRON was not required to
administer the payment of the workers although, had they been requested to do so, they could.
ALPRON, he said, was to ensure that the workers were paid by SMCL. The workers reported
directly to SMCL. There were two (2) operations. The shift operators reported to the senior
supervisor on the shift. That supervisor was an employee of ALPRON. A number of workers did
not work on shift. They were daylight workers. ALPRON was not the employer of Mr. Kishore
Deonarine. Mr. Ali said that ALPRON had eight senior supervisors who gave instructions to
ALPRON's workers. The work these workers performed was for SMCL.

23

In answer to Mr. Thompson, Mr. All denied that the contract between ALPRON and SMCL was
signed in January, 2004. At the time when he first employed the workers he did not have a
contract with SMCL. He agreed with Mr. Thompson that under the contract the persons he
employed were strictly under ALPRON's control. Mr. All recalled giving permission to Mr.
Steve Benjamin to attend a course. Mr. Surajbally worked for ALPRON. Mr. All accepted that
he had informed certain workers that he had lost his contract because of the work stoppage,
although he continued the work at SMCL using other workers.

24

Mr. Kishore Deonarine testified on behalf of SMCL. He said that he was employed by SMCL as
procurement manager and was familiar with the contract between that company and ALPRON.
He said that SMCL did not employ any of the workers concerned in this dispute, nor did he give
instructions to Mr. Ramdath. It was the supervisors who gave such instructions and they were
employed by ALPRON. SMCL did not direct how they performed their duties. According to Mr.
Deonarine, there was a work stoppage on 11th March, 2004 when, without any discussion with
him as team leader, all the workers working with him stopped working.

25

In his submission to the Court, Mr. Thompson emphasised that the matter before the Court was
the termination of the employment of the fourteen (14) workers listed in the Union's statement of
Evidence and Arguments and that the first question to be decided was who was the employer of
these workers, SMCL or ALPRON. He referred the Court to section 2(4) (b) of the Industrial
Relations Act, Chapter 88:01 (the Act) as the governing provision for making that determination.
Mr. Thompson's submission was couched in terms wide enough to encompass either, if not both
companies as the employer for the purposes of the Union's claim. Mr. Thompson submitted that
the workers never abandoned their jobs; rather, they were dismissed contrary to the Act, he
argued.

26

Mr. Mungalsingh, in his submissions, argued that the workers were all employed by ALPRON.
ALPRON's contract with SMCL was not a labour only contract since ALPRON was required to
provide for workmen's compensation, health insurance and similar benefits for the workers.

27

Mr. Rawlins identified two (2) issues for determination: the alleged termination of the services of
the workers and the identity of the employer. He rehearsed the evidence of the witnesses, in
particular that of Mr. Ken Ramdath, as supporting the contention that SMCL was the employer.

28

Mr. Rawlins raised an important point in the course of his submissions, which initially the Court
declined to hear. However, on reflection, the Court permitted all parties to make submissions on
the point. It was this: If the evidence disclosed that the workers embarked on a work stoppage on
11th March, 2004 as alleged by ALPRON, what would be the legal consequences of their action.
It was Mr. Rawlins contention that the work stoppage amounted to illegal industrial action and
was contrary to section 63 of the Industrial Relations Act.

29

What makes the submission of Mr. Rawlins interesting is the fact that section 63 applies where
there is a recognised majority union, the question being whether there is an a fortiori argument
for its application in a case such as this. Here, although the allegation is that the workers were
acting in concert and that the Companies had held discussions with a small group representing all
the workers it was not, and cannot, be contended that the workers fell within section 63. Whether
section 63 (1)(c) could apply to these workers or workers in a similar situation was not directly
addressed in these proceedings and the question would remain unanswered for the time being.
Section 63 (1)(c) states:

“(c) subject to sections 64 and 65 (2)(b), where a worker takes part in such action the employer
may treat the action as a fundamental breach of contract going to the root of the contract of
employment of the worker.”

30

What operates against any a priori argument by Mr. Rawlins that section 63 (1)(c) applies here is
ALPRON's statement in paragraphs 12 and 13 of its statement of Evidence and Arguments
which reads as follows:

 “12. On 11th March 2004 all of the workers embarked on a work stoppage …
  13. Following the work stoppage ALPRON and the then manufacturing manager
of SMCL, Mr. Ken Marshall, met with an ad-hoc workers committee with a view
to identifying and addressing the worker's concerns.”

31

The effect of the meeting between the “workers committee” and the management of both SMCL
and ALPRON subsequent to the work stoppage would be to affirm the continuation of the
contract of employment notwithstanding any breach of the contract by the action of the workers
in participating in the work stoppage. The work stoppage, therefore, could not be pleaded by
either Company as evidence of job abandonment by the workers.

32

Mr. Rawlings emphasised certain aspects of the relationship between the workers and SMCL on
the basis of which he asked the Court to find that SMCL was the employer. His starting point
was section 2(1) (c) which defines “worker” to include “any person who provides services or
performs duties for an employer under a labour only contract, within the meaning of subsection
(4)(b)”.

33

Subsection 4 provides that:

“For the purposes of this Act –

 (b) where a person engages the services of a worker for the purpose of providing
those services to another, then, such other person shall be deemed to be the
employer of the worker under a labour only contract,”

34

Going no further than the relevant provisions of the section, it is clear, on the evidence that the
workers were recruited by ALPRON specifically to provide their services to SMCL, on whose
premises the services were performed and under whose supervision their work was carried out. I
am satisfied on the evidence therefore that SMCL was the employer under a labour only contract.

35

The contract of employment was not in writing and purists may object to its validity on the
ground that its duration was uncertain. It was not a contract of infinite duration as the evidence of
a number of the witnesses for the Union shows. The contract was to the effect that the workers
were to provide their services from the date on which each of them was employed until
completion of the crop. That is the evidence of Steve Benjamin who said, inter alia, “I agreed to
be employed by ALPRON and to provide service during the crop of up to about May, about five
months”. Similarly, in cross examination it was put to Mr. Roland Sookhan that he was offered
continuous work for the crop and that the crop started in January 2004. He agreed that that was
correct.

36

The situation as I find it can be summarised as follows: Some time in the latter part of 2003 Mr.
Ayoub Ali was approached by certain senior officials of SMCL who invited him to recruit a
number of ex Caroni Limited workers to operate the factory at Ste. Madeline which was about to
be re-commissioned to produce sugar after being decommissioned for some time. Mr. Ali agreed
and over a period between about September 2003 and January 2004, recruited the workers, the
persons involved in the present dispute. Mr. Ali incorporated a company called ALPRON
Limited some time around the end of the year 2003 and that company entered into a contract
with SMCL to provide the services of the workers for the operation of the factory during the
crop. There was no specifically agreed completion date for the crop (and therefore for the
employment contract). However in the industry the crop usually lasts from some time in January
to some time about May, a period of approximately five (5) months. The workers embarked upon
their duties about January 2004 and were supervised in the everyday performance of their jobs
by one Mr. Deonarine, a SMCL engineer. They received their wages by way of a cheque issued
in the name of Caroni Limited, the predecessor of SMCL. Some time in March 2004 the workers
began to agitate for an increase in wages to the extent that Mr. Ayoud Ali of ALPRON and Mr.
Marshall of SMCL agreed to and did meet with a delegation representing the workers. At that
meeting the most the workers were able to extract from Mr. Marshall was an undertaking that he
would report to his Management and a promise that should the crop prove profitable the
Company, SMCL, might be able to offer them a bonus at the end of the crop. The workers
withdrew their labour in an effort to induce or compel the employer to accept their proposal. The
Company locked the workers out in response.

37

In its statement of Evidence and Arguments, SMCL admitted that the meeting between the
workers and Mr. Ayoub All and Mr. Marshall took place after the workers had commenced their
work stoppage. Despite its inconsistency with the evidence before the Court I regard that as an
affirmation by SMCL of the continued existence of the contract of employment, a negation of
any breach that the work stoppage may have constituted.

38

This is a case where the contract was one of imprecise duration, a reasonable period for the
purposes of this judgment being five (5) months starting early January and ending at the end of
May, 2004. In the middle of the contract the workers decided to press for enhanced wages. To
the workers that would have been the strategically critical moment at which to make their move:
in their calculation the employer would have little or no wriggle room and would be under
considerable pressure to yield to the workers' demands. The lockout of the workers by the
Company was a proportionate response in the circumstances and did not amount to a dismissal of
the workers or any of them. In cricket, it would have been a draw.
39

In the event, the application of the Union is dismissed.

His Honour Mr. C. O. Bernard

President