Tiwu Nealandmassy Industrialaction

Khan, A.J.
On 27th February, 1989, the Transport and Industrial Workers' Union (the Union) applied to the
Court for Orders against Neal and Massy Industries Limited (the Company) in respect of ten
industrial relations offenses allegedly committed by the company contrary to the Industrial
Relations Act, Ch. 88:01 (the Act). His Honour Mr. Clive Beckles and I comprised the bench
which heard the applications. His Honour Mr. Beckles retired from the court at the end of
December, 1993 and I, therefore, deliver this judgment in accordance with the stipulation of
section 7 (5) of the Act.
The applications were as follows:
I.R.O. 10 of 1989
 (a) Failure by the company to recognise the Union as the recognised majority
union of its hourly and monthly workers contrary to s.40 of the Act;
 (b) Failure by the company in good faith, to meet and treat with the Union for the
purposes of collective bargaining contrary to s. 40 of the Act.
Particulars of (a) and (b)
On December 2nd 1988, Mr. Dulal-Whiteway, a director of the company met with the said hourly
and monthly workers and attempted to persuade them to accept the company's proposal of
voluntary retrenchment with the payment of 50% of the severance pay which would normally be
payable to each worker. In the course of his address to the workers, Mr. Dulal-Whiteway
criticised the Union for having previously rejected the company's said proposal and warned the
workers that, there being the threat of the appointment of a receiver, if they did not accept the
proposal they might not get any severance pay at all.
I.R.O. 11 of 1989
The Company took illegal industrial action otherwise than in conformity with Part V of the Act,
contrary to s. 63 of the Act.
Particulars
Over the period 2nd December 1988 to January 31st, 1989, the company refused to employ or to
continue to employ most of its monthly and hourly paid workers on the terms and conditions of
employment of the collective agreement then applicable to them or to continue to treat the said
workers as being employed on the said terms and conditions with a view to inducing or
compelling them to sign individual contracts agreeing to specified periods of employment on
terms and conditions of employment which expressly excluded the application of the terms and
conditions of the collective agreement then applicable to the said workers.
I.R.O. No. 12 of 1989
The Company took illegal industrial action otherwise than in conformity with Part V of the Act
Particulars
On January 12th 1989 Mr. F.A. Rawlins of the Company threatened to dismiss Francis Couteau, a
worker employed by the company, if he did not offer himself for voluntary retrenchment on the
basis that he would be paid 50% of the severance payment entitlement under the collective
agreement applicable to him.
I.R.O. No. 13 of 1989
The company took illegal industrial action otherwise than in conformity with Part V of the Act
Particulars
In or around the week ending February 17th 1989, the company threatened to dismiss Clive
Lumpress, Patrick Pierre, Mahadeo Chadee Singh, Conrad Simmons, Lenin Roberts, Harold
Leslie, Terry Francis, John Lewis, Robert Payne, Dave Couteau and Marlon Seeteram with a
view to inducing or compelling them to sign individual contracts agreeing to specified periods of
employment on terms and conditions of employment which expressly excluded the application of
the terms and conditions of employment of the collective agreement then applicable to the said
workers.
I.R.O. 14A of 1989
The Company took illegal industrial action otherwise than in conformity with Part V of the Act
Particulars
On January 19th 1989, the company refused to employ Mr. Stephenson Lalla and Mr. Harry
Dookwah with a view to inducing or compelling them to sign an individual contract agreeing to
employment for a specified period on terms and conditions of employment which expressly
excluded the application of the terms and conditions of employment of the collective agreement
then applicable to the said workers.
I.R.O. 14B of 1989
Particulars
On January 19th 1989, the company refused to employ Mr. Stephenson Lalla and Mr. Harry
Dookwah with a view to inducing or compelling other workers still in the company's employ to
sign individual contracts agreeing to employment for a specified period on terms and conditions
of employment which expressly excluded the application of the terms and conditions of
employment of the collective agreement then applicable to the said workers.
I.R.O. 15A of 1989
Particulars
On February 21st 1989, the company refused to employ Clive Lumpress, Patrick Pierre, Mahadeo
Chadeesingh, Conrad Simmons, Lenin Roberts, Harold Leslie, Terry Francis, John Lewis,
Robert Payne, Dave Couteau and Marion Seeteram with a view to inducing or compelling other
workers still in the company's employ to sign individual contracts agreeing to specified periods
of employment on terms and conditions of employment which expressly excluded the application
of the terms and conditions of employment of the collective agreement then applicable to the
said workers.
I.R.Q. No. 15B of 1989
Particulars
On February 21st 1989, the company refused to employ Clive Lumpress, Patrick Pierre, Mahadeo
Chadeesingh, Conrad Simmons, Lenin Roberts, Harold Leslie, Terry Francis, John Lewis,
Robert Payne, Dave Couteau and Marion Seeteram with a view to compelling them to comply
with the company's demand that they withdraw letters dated 17th February, 1989 which each of
them submitted to the company indicating that they had signed certain individual contracts with
the company under duress and protest.
I.R.O. 21 of 1989
 (a) Failure by the company to recognize the Union as the recognized majority
union of its hourly and monthly workers contrary to s.40 of the Act;
 (b) Failure by the company, in good faith, to meet and treat with the Union for the
purposes of collective bargaining contrary to s.40 of the Act.
Over the period December 2nd 1988 to December 31st, 1988 the company entered into individual
agreements with various of its workers whereby the said workers agreed to sign letters of
resignation from the company's employment and the company agreed to pay the said workers 5O
% of the severance pay which would normally be payable upon retrenchment
I.R.O. 22 of 1989
 (a) Failure by the company to recognise the Union as the recognised majority
union of its hourly and monthly workers contrary to s.40 of the Act.
 (b) Failure by the company, in good faith, to meet and treat with the Union for the
purposes of collective bargaining contrary to s.40 of the Act.
Over the period November 7th 1988 to February 17th, 1989, the company entered into individual
contracts with various of its workers which provided for employment for a specified period on
terms and conditions of employment which expressly excluded the application of the terms and
conditions of the collective agreements then applicable to the said workers.
The company denied the charges and the applications were heard together with the consent of the
parties. The parties presented written evidence and arguments to the court and the court also
heard oral testimony presented by the parties.
The background facts may be summarised as follows:
 (1) At all times material to these applications the union was the recognised majority
union for two bargaining units comprising the hourly and monthly rated workers
respectively of the company, and was, therefore, the exclusive bargaining agent for the
workers of the said bargaining unit.
 (2) The union and the company had entered into two registered collective agreements
(“the previous collective agreements”) for the hourly and monthly rated workers of the
company.
 (3) The previous registered collective agreements between the parties having expired, the
union and the company began negotiating in the year 1987 for new collective agreements
to replace the previous collective agreements.
 (4) The registered collective agreement for the hourly rated workers had expired on 31st
December, 1985 and the registered collective agreement for the monthly rated workers
had expired on 16th May, 1986. Separate collective agreements were required for the
hourly rated workers (“the first collective agreement”) and for the monthly rated workers
(“the second collective agreement”).
 (5) By letter dated 23rd September, 1986, the company submitted to the Union proposals
for the negotiation of the first and second collective agreements to replace the two
previous collective agreements between the parties which they had entered into for the
two bargaining units in the year 1983 (“the 1983 collective agreements”). In its proposals
to the Union, the company proposed inter alias that there should be no change from the
wording of the 1983 collective agreements in the following articles:
Article 1: Union Security and Recognition: sections 1 and 4
Article 2: Management Rights
Article 19: Compensation for Service
Article 25: Probationary Period
Article 30: Contract Work
Article 32: Redundancy/Layoff
(hereinafter referred to collectively as “the agreed articles”).
In its proposals to the company, the union also proposed that there should be no change from the
wording of the 1983 collective agreements in respect of the agreed articles.
 (6) On 17th June, 1987, the union and the company executed two memoranda of
agreement in which they recorded their agreement on certain articles for inclusion in the
first and second collective agreements. One memorandum of agreement related to the
hourly-rated workers and the other to the monthly-rated workers.
 (7) In both memoranda of agreement the wording of the agreed articles were recorded as
having been agreed for inclusion in the first and second collective agreements.
 (8) On 25th June, 1987, the union reported the existence of trade disputes between itself
and the company to the Minister of Labour over the breakdown of their negotiations for
the first and second collective agreements.
 (9) On 14th July, 1987, the union and the company executed two further memoranda of
agreement in which they recorded their agreement on additional articles for inclusion in
the first and second collective agreements.
 (10) On 3rd February, 1988, the Minister of Labour certified the existence of an
unresolved dispute between the union and the company in respect of the negotiations for
the second collective agreement and on 10th February, 1988, the Minister certified the
existence of an unresolved dispute between the Union and the company in respect of the
negotiations for the first collective agreement.
 (11) In both unresolved certificates, the Minister listed the items in dispute and annexed
to his unresolved certificates the memoranda of agreement (supra) which had been signed
by the parties.
 (12) The agreed articles did not appear among the disputed items in respect of either
collective agreement but were recorded as settled in the memoranda of agreement dated
17th, June, 1987.
 (13) Both memoranda were annexed to the Minister's unresolved certificates and were
entered the Registrar as orders of the Court in accordance with s.58 of the Act.
 (14) The trade disputes concerning the first and second collective agreements were heard
and determined by the court on 31st July, 1989, when the court gave its written judgment
thereon
 (15) Prior to the trade disputes being heard by the court, the parties presented their
written evidence and arguments to the court. In neither the evidence and arguments of the
Union or the company did the parties raise any question about the accuracy of the
Minister's unresolved certificates nor were the agreed articles ever raised by either of
them as being in dispute. The disputed items were specifically listed by the company and
by the Union in their respective written evidence and arguments and nowhere among
them is included any reference to the agreed article as being in dispute.
 (16) In its judgment, the court ordered the union and the company to:
o (a) include the orders made in its judgment and the contents of the memoranda
(supra) in the first and second collective agreements; and
o (b) execute the first and second collective agreements on or before 18th, August,
1989.
The parties executed and submitted the agreements for registration by the court and they
were duly registered on 29th, November, 1989. The registered agreements included the
agreed articles.
 (17) Article 19 of the first and second collective agreements were similarly worded
except that the formula for payment of severance benefits in section 1 of the agreements
were different. Except for this minor variation in wording, the agreed articles were
similarly worded in the first and second collective agreements.
 (18) The agreed articles stipulated:
“Article 1: Union Security and Recognition: Section 1:
Upon the employment of a newly hired or re-hired worker who is covered by this agreement, the
company agrees to notify the union in writing within fourteen (14) days of such employment,
furnishing the union with the following information:
 (a) the worker's name

 (b) the classification of the worker
 (c) date of employment”.
Section 4:
“The company agrees that in the exercise of its right to employ it will advise the union of any
vacancies in the Bargaining Unit and give the union every opportunity to put forward names of
applicants. All such vacancies will be posted on the notice boards and should not normally be
filled within seven (7) days.”
Article 2: Management Rights:

“The company may on occasion, temporarily assign workers to work different from their
substantive jobs due to changing circumstances as and when they arise. Such workers will retain
their normal rates of pay during such temporary assignment, should the assignment be of a lesser
nature than their substantive position.”
Article 19: Compensation for Service. Section 1:
“If the company terminates the services of a worker with more than one (1) year service due to ill
health or redundancy the company will pay Severance Benefits to the worker on the following
basis:
1 - 3 years 2 weeks pay for each year of service
4 - 9 years 3 weeks pay for each year of service
10 years and over 4 weeks pay for each year of service.
Section 2:
Notwithstanding the provisions of section 1 above, should a worker be retrenched after

completing one (1) year or more service and in addition has worked for nine (9) months or more
beyond his anniversary date, such worker will be credited with an additional year's service for
the purpose of calculating his benefits.
Section 3:
The worker shall receive pay up to the time of the termination of his service and such other
payments due in lieu of annual vacation leave and other benefits which may have accrued.
Section 4:
If a worker dies while in the employ of the company his legal representative shall be entitled to
receive all his benefits.
Section 5:
A worker who resigns from the employ of the company on the grounds of ill-health which is
certified by a registered medical practitioner shall be eligible for payment in accordance with the
provisions of this article, provided however the company reserves the right to have the worker
examined by a medical practitioner of its choice and where there is disagreement, the parties to
this agreement shall mutually select a medical referee.”
Article 25: Probationary Period
“A worker shall be deemed to be on probation for not more than twelve (12) weeks from the
commencement of his employment. Upon satisfactory completion of this period he shall be
confirmed in his job. In the absence of notice to the contrary a worker shall be automatically
confirmed in his job at the end of twelve (12) weeks.
Article 30: Contract Work
“The Company agrees that no contract work will be given out which will have the effect of
reduction in the company's labor force or in the regular hours of work.”
Article 32: Redundancy/Layoff Section 1:
“In the event that conditions develop which may be considered by the company to contemplate
retrenchment or lay off, no such retrenchment or lay off can be effected before discussions with
the union, except where the lay off is in cases of emergency and the circumstances surrounding
such temporary lay off are beyond the control of the company. Should the temporary layoff
exceed a continuous period of three (3) months, the company and the union will meet to discuss
retrenchment in accordance with Article 19: Compensation for Service.
Section 2:
The company agrees that when a worker's job is declared redundant and is to be retrenched or is
to be temporarily laid off it will explore all possibilities of absorption in suitable alternative
employment within the company.
Section 3:
Should retrenchment become necessary as a result of discontinuation of shift work, workers

employed for the purpose of the shift shall be first to be retrenched all things being equal among
such workers.
Section 4:
A worker who is to be retrenched shall receive at least forty five days’ notice.
Section 5:
If retrenchment is decided in respect of employees who hold jobs in the same classification
which do not in the company's judgment require a special skill such retrenchment shall be carried
out by the company on the basis of “last in first out.”
Section 6:
If any retrenched worker is re-employed his services will be considered unbroken as from the
date of his initial employment for the propose of vacation leave if he is re-employed within
twelve (12) months from the date of his retrenchment.
Section 7:
In the case of retrenched workers the company undertakes where it becomes possible to take on
workers again to offer re-employment in order of seniority of service.
Section 8:
Should a retrenched worker be re-employed in a grade of job lower than the classification in
which he was employed prior to retrenchment he will be given preference on the basis of
seniority for any vacancy in his pre-retrenchment grade of classification.”
 (19) In the case of the second collective agreement, there was provision in Article 19
thereof for payment of severance benefits of one month's pay for each complete year of
service in the case of monthly rated workers who completed one year's service.
 (20) At all material times the above provisions of the collective agreements were
included among the terms and conditions of employment of the workers in the bargaining
units concerned.
 (21) In the years 1988 and 1989 the company was in serious financial difficulties because
of a dramatic decline in its production of motor vehicles. This was due to a decline in
sales generally in the motor vehicle industry. The company, being an assembly
contractor, was forced to adjust its production of motor vehicles in accordance with the
market demand for vehicles. The company's earnings had declined from a profit of $10.5
million in 1985 to a loss of $6.9 million in 1988. In 1988, the company owed $31.8
million to a consortium of banks and an overdraft in the vicinity of $7 million. In 1987 -
1988, the company was unable to make any capital re-payment and experienced difficulty
in meeting the interest payments on the loans. The loans and overdraft were secured by
the creditors by debentures which were first and second charges on the fixed and floating
assets of the company and by a guarantee by its holding company, Neal and Massy
Holdings Ltd. The company held discussions with its creditors and requested a
moratorium on capital repayments as well as a reduction in the interest rates. Up to the
year 1988, the company had been unsuccessful in persuading their creditors to do so. The
banks refused to allow the company to increase its indebtedness to them for any reason
whatsoever, including the amounts of any severance benefits which might have become
payable to the company's workers in the event of retrenchment.
 (22) In the year 1988, the company met with the union on several occasions to discuss
inter alia the company's position in the automotive industry and, in particular, the future
operations of the company's assembly plant. One of these meetings was held on 22nd,
September, 1988. At that meeting on 22nd September, 1988, the company submitted
among other proposals certain proposals for the voluntary retrenchment of 173 hourly
rated and monthly rated workers. The company's proposal was made conditional on an
out of court settlement of the trade disputes before the court concerning the first and
second collective agreements.
 (23) By a letter dated 29th September, 1988, the company sent to the union at the union's
request information concerning the workers whom the company had proposed for
voluntary retrenchment. The information comprised-
o (a) a list of 173 named workers; and
o (b) showed the respective departments of the company in which they worked,
their years of service with the company and their respective rates of pay.
 (24) The company invited the union and its workers to a meeting on 30th September, 1988
for the purpose of informing the workers “on the current position and future prospects of
its assembly plant.” Mr. Simon Taitt of the union was present at that meeting and Mr.
Bernard Dulal-Whiteway, the company's managing director, informed the workers of the
state of the Trinidad and Tobago economy and explained the company's proposals to the
union for the voluntary retrenchment of 173 workers. The union's representative at the
meeting declined an invitation from Mr. Vfhiteway to address the meeting.
 (25) At the request of the union, the company, by letter dated 11th October, 1988,
provided to the union a list of workers it was prepared to accept for voluntary
retrenchment.
 (26) There was another meeting between the company and the union to discuss the
company's proposals for retrenchment of 173 workers on 12th October, 1988. At that
meeting, the union rejected all of the company's proposals and insisted inter alias on the
payment of full severance benefits for all workers who accepted voluntary redundancy.
The company informed the union that it would pay full severance benefits to all workers
who were compulsorily severed but proposed reduced severance benefits to workers who
accepted voluntary redundancy.
 (27) On or about 11th October, 1988, the company had only some 1755 motor units to be
assembled at its plant with no further prospects of future supplies for the year 1989 so
that its full work force would have assembled all the units by March 1989 with the result
that there could have been a permanent loss of employment for all workers thereafter.
 (28) The company again met with the union on 20th October, 1988 and informed the
union at that meeting that it had withdrawn its earlier proposals and that it was going to
offer voluntary retrenchment to all its workers and that it would offer all workers 50% of
their normal compulsory severance benefits in full and final settlement if they accepted
voluntary redundancy.
 (29) Between 25th October, 1988 and 2nd December, 1988 105 workers resigned from the
company and the company paid them 50% of their normal compulsory severance
entitlement.
 (30) The company held a meeting with the workers on 2nd December, 1988. After that
meeting, the majority of workers in the company's employment resigned from the
company and the company paid them 50% of their normal compulsory severance
entitlement.
THE ORAL EVIDENCE SUMMARIZED A. THE UNION'S WITNESS (a) ALDWYN

BREWSTER
5
Mr. Brewster the first vice-president of the union testified inter alias:
The union is the recognised majority union for the hourly rated and monthly rated workers of the
company. He was responsible for bargaining with the company for the first and second collective
agreements. The previous registered collective agreements had expired. The previous registered
collective agreement for the hourly rated workers had expired on 31st December, 1985 and the
previous registered collective agreement for the monthly rated workers had expired on 16th May,
1986. In 1987, he was engaged in negotiations for new collective agreements to replace the two
expired agreements. In August 1988, there were disputes before the court in respect of the two
collective agreements that were being negotiated. They had been referred to the court by the
Minister of Labour as unresolved trade disputes for determination by the court.
The court determined these disputes and made certain orders concerning the two new collective
agreements. These new collective agreements were duly registered in the court for the period 1st
January, 1986 to 31st December, 1988 in respect of the collective agreement for the hourly rated
workers and for the period 17th May, 1986 to 16th May, 1989 in respect of the collective
agreement for the monthly rated workers.
The company instituted a 3-month temporary closure of its assembly plant which commenced
sometime around 27th or 28th July, 1988 in accordance with the provisions of the registered
collective agreements. According to the registered collective agreements, if the temporary lay-off
exceeded three months, the company was obligated to hold discussions with the union
concerning the retrenchment of the workers in accordance with Article 19: Compensation for
Service. Article 32 of both the hourly rated and monthly rated workers' collective agreements
made provision for this [see Articles 19 and 32 ( ante).
The company met with the union on 26th July, 1988 and 7th September, 1988. He was present at
that meeting. At the meeting, Mr. Dulal-Whiteway stated that due to the slump in the sales in the
motor car industry and the market trends, the number of vehicles to be assembled would be
around 1400 and that this would last far approximately nine months, As a result, they were going
into vacation for two weeks to be followed by a three-month lay off: The plant was due to
resume production around 14th November, 1988.
10
The company held another meeting with the union on 7th October, 1988. He was present at that
meeting. Mr. Whiteway indicated that the situation in the country relative to the motor car
industry had not changed and that there was no foreign exchange available for the importation of
C.K.D. packages. He also stated that when the company re-commenced operation they would be
doing so with a work force of 200 - 173 workers from both bargaining units plus management.
The company also stated that they would be retrenching 173 workers. At that point ofthe lay off,
the total number of workers in the bargaining unit was about 346. This was 50% of the
bargaining units. The union told the company that it wanted the company's proposals far the re-
opening of the plant in writing and another meeting was arranged for 22nd September, 1988. On
22nd September, Mr. Whiteway repeated what he had told the union on 26th July concerning the
future of the plant except that the only new thing was the retrenchment of the 173 workers.
11
The company sent its written proposals which included a proposal for severance to the union.
These proposals were admitted into evidence and marked “A.B.1. (“the written proposals”). The
full text of the written proposals was:
“A.B.1”
“Neal and Massy Industries Ltd.
Automotive Assembly Plant
Santa Rosa Industrial Estate
Churchill-Roosevelt Highway
Arima
September 22, 1988
The Secretary
Transport and Industrial Workers' Union
114 Eastern Main Road
Laventille
ATTENTION: Mr. A. Brewster
Dear Sir,
As promised when we last met on September 7, 1988, we attach herewith our proposals for the
future operations of our Assemble Plant.
Yours very truly
NEAL & MASSY INDUSTRIES LTD.
PROPOSAL TO THE TRANSPORT AND INDUSTRIAL WORKERS' UNION ON THE

REOPENING OF THE ASSEMBLY PLANT AT SANTA ROSA INDUSTRIAL ESTATE
AFTER TEMPORARY CLOSURE BEGINNING ON JULY 28TH 1988.
MARKET DEMAND AND STOCK LEVELS

Based on the actual vehicle sales for 1988 to date and the estimated demand for new vehicles to
December, 1989, it is anticipated that between our two dealers, sales will average 200 units per
month or 2400 units per year.
As at August 31, 1988 total vehicles on wheels held by the two dealers was 2371 and at the
anticipated rate of sale, this stock will last on the average about eleven (11) months.
Based on present orders placed on our Japanese suppliers, and the number of units in boxes at the
Assembly Plant, it is expected that there will be 1700 units to be built. However, dealers
requirements for the period November 1988 to December are anticipated to be in the region of
1400 units.
FOREIGN EXCHANGE IMPLICATIONS
In the year 1988, both our dealers and the assembly plant itself received substantially reduced
foreign exchange allocations, and the recent current devaluation has served to further reduce the
number of C.K.D. units that can be imported into the country. All indications to date in respect
of 1989 year lead to the sober conclusion that there will be further reductions in the foreign
exchange allocations to the motor vehicle industry.
FINANCIAL HEALTH OF THE COMPANY
For the financial years ended 1987 and 1988 the company has sustained enormous losses,
resulting in a drastic cash deterioration and erosion of its reserves. The company has reached the
limit of its bank overdraft and has been unable to meet the last three installments (totaling $8.0
M) on its consortium loan. It is obvious that the company will not be able to meet any further
installments in the near future.
Our bankers have advised that no additional financial assistance will be forthcoming.
FUTURE OPERATIONS AT THE ASSEMBLY PLANT
It is quite obvious from the anticipated demand for new motor vehicles and foreign exchange
allocations, that the production demand on the plant will be dramatically reduced and indications
are that the plant will be requested by its dealers to produce approximately 2500 - 3000 units per
year.
At this level of production, the required manpower will need to be reduced and it is estimated
that there will be a reduction of 173 employees covered by the existing bargaining units. This
means that at plant restart, the establishment will be 200 employees of which 173 will be covered
by the bargaining units.
RE-OPENING PROPOSALS
Based on the above-mentioned considerations, the company is proposing that the following
options be considered:
OPTION NO. 1:
 (A) Reduce manpower to 200 employees.

 (B) Re-open the plant on January 2nd, 1989, working a 5-day work week on a one
week on/one week off basis producing 15 units per day.
 (C) Those employees to be retrenched and the method of payment of severance
benefits to be discussed and agreed by both parties.
 (D) Offer of assistance for the months of November and December 1988 to be
discussed and agreed.
OPTION NO. 2:
 (A) Reduce manpower to 200 employees.

 (B) Re-open plant on June 4th 1989, working a 4-day work week producing 15
units per day.
benefits to be discussed and agreed by both parties.
 (D) Offer of assistance for the months November 1989 through May 1990 to be
discussed.
OPTION NO. 3:
 (A) Reduce manpower to 200 employees

 (B) Re-open the plant as scheduled on November 14th 1988 working on a 4-day
work week one week on/one week off producing 15 units per day.
benefits to discussed and agreed by both parties.
SEVERANCE
The company proposes voluntary retrenchment without obligation to accent to 173 employees
covered in the bargaining units. The limitation of funds (a maximum of $3M has been pledged
by Associated Companies) demands that we arrive at a formula which would accommodate a fair
distribution to the retrenched employees and ensure some degree of assistance to the retain
employees.
Recognizing the present state of the Trinidad and Tobago economy and the company's own
fortunes at present, it is imperative that our proposal be considered as a compromise package
which would seek to ensure a long-term solution to our common problems and continuity of our
operations.
The proposals made are therefore dependent on an out-of-court settlement of the pending matter
before the Industrial Court viz (1) the breakdown in negotiations (2) the COLA issue, the
settlement of which should set the pattern for the new contract due January 1st 1989.
ALDWYN BREWSTER (continued)

12
The company and the union met to discuss the written proposals on 22nd September 1988. The
union had received the written proposals on the same day. He attended the meeting. The union
rejected certain aspects of the written proposals. Concerning the written proposal the cost of
living allowance was an issue that was outstanding in the trade disputes which at the time were
before the court. The question of wages was also in dispute before the court. The company had
made no proposal to the union for voluntary retrenchment as part of the negotiations for the new
collective agreements but there was a proposal for the voluntary retrenchment of 173 workers in
the written proposals. This proposal for voluntary retrenchment was being made for the first time
in the written proposals. The issue of voluntary retrenchment and that of severance benefits were
not part of the disputes before the court. At the meeting of 22nd September, the company stated
that its financial position was not improving, that it owed the banks something like $38 million,
$7 million of which was on overdraft and that the bank had informed it that they would not be
releasing any more funds to the company. It also stated that it had succeeded in accumulating $3
million from other companies within the Group to assist it in meeting severance payments to the
173 workers. The company did not say by what means it was getting the money from associated
companies or on what terms.
13
The union requested certain information from the company since the company had stated that it
could not meet the, obligation under the collective agreements and it wanted to offer severance
benefits in accordance with the formula in the Retrenchment and Severance Benefits Act, No.
32/85. Since the provisions relating to retrenchment were not in dispute between the parties the
provisions remained the same in the new collective agreements as they had been in the 1983
collective agreements. This was agreed to in bilateral negotiations between the union and the
company so these provisions were not in dispute before the Ministry of Labor or the court. He
recalled asking the company to indicate in what areas it was prepared to accept voluntary
retrenchment and, based on its proposal, the payment of severance pay since the company stated
that while the collective agreements made provision for certain severance benefits, it said that it
could not meet all obligations and was looking for something else. The union, therefore,
requested that it should present its proposal so that it could see how it compared with the
provisions of the collective agreement.
14
The union wanted both computations, a comparison of what the company was proposing to pay
and what was in the collective agreements. The company gave this information to the union with
a covering letter dated 29th September, 1988. The information was contained in three pages and
was headed: “Comparative View of the Company's Proposal/Collective Agreements: Figures for
Severance Payment” (“A. B.2”). The Company also later submitted to the union another
document under cover of a letter dated 11th October, 1988 which contained a list of workers in its
various departments who had been selected for possible voluntary retrenchment (“A.B.3”).
15
The full texts of “A.B.2” and “A.B.3” were as follows:
“A.B.2”
“Neat and Massy Industries Ltd.
Arima
September 28, 1988
The Secretary
Laventille
ATTENTION: Mr. A. Brewster
Dear Sir,
As requested please find attached the information regarding voluntary retrenchment (with
obligation) at our Assembly Plant.
 1. The categories of workers and the number of proposed voluntary retrenchment

opportunity existing in each.
 2. A comparative view of the company's proposal/collective agreements figures
for severance payment.
Yours very truly
Finbar C. Massiah
Personnel Officer
attch.
The following categories and number of voluntary retrenchment opportunities are as follows:
Production foreman 4
Maintenance foreman 1
Supply foreman 4
Technicians 5
Senior Inspectors/Inspectors 10
Storekeeper/Expediter 5
Clerks/Material, handlers/Drivers 25
Charge hand Maintenance/Production 11
Maintenance/Tradesmen 11
Production Process Operators 80
Unskilled workers 7
“A.B.2” continued
16
Comparative View of the Company's Proposal/Collective Agreements Figures for Severance

Payment
Hourly
CATEGORY RATE OF PAY
Maintenance Charged (629.60) 15.74
Production Charge hand (606.00) 15.15
Tradesman “A” (603.60) 15.09
Tradesman “B” (541.60) 13.54
Utilities Charge hand (551.20) 13.78
Proc. Operator “A” (558.40) 13.96
Proc. Operator “B” (518.00) 12.95
Proc. Operator “C” (482.40) 12.06
Forklift / Truck driver (518.00) 12.95
Unskilled (420.40) 10.51
AS PER
COMPANY's
COMPANY's
PROPOSAL
AGREEMENT
5yrs 6yrs 9yrs 12yrs 5yrs 6yrs 9yrs 12yrs
11wks 14wks 23wks 32wks 15wks 18wks 23wks 48wks
6926.00 8814.00 14481.00 20147.00 9444.00 11333.00 16999.00 30221.00
6666.00 8484.00 13938.00 19392.00 9090.00 10908.00 16362.00 29088.00
6640.00 8450.00 13883.00 19315.00 9054.00 10865.00 16297.00 28973.00
5958.00 7582.00 12457.00 17331.00 8124.00 9749.00 14623.00 25997.00
6063.00 7717.00 12678.00 17638.00 8268.00 9922.00 14882.00 26458.00
6142.00 7818.00 12843.00 17869.00 8376.00 10051.00 15077.00 26803.00
5698.00 7252.00 11914.00 16576.00 7770.00 9324.00 13986.00 24864.00
5306.00 6754.00 11095.00 15437.00 7236.00 8683.00 13025.00 23155.00
5698.00 7252.00 11914.00 16576.00 7770.00 9324.00 13986.00 24864.00
4624.00 5586.00 9669.00 13453.00 6306.00 7567.00 11351.00 20179.00
17
Comparative View of the Company's Proposal / Collective Agreements Figures for Severance
Pay
Monthly
CATEGORY RATE OF PAY
Group 1: Foreman Prod. / Maint. 3565.00
Group 2: Supply Foreman, Technician II, Chief Clerk 493.00
Group 3: Senior Inspector 3148.00
Group 4: Technician I 2857.00
Group 5: Clerk II, Store Keeper II, Inspector, Expediter 2673.00
Group 6: Clerk I, Clerk Driver, Storekeeper, Material Handler 2317.00
AS PER
COMPANY's
COLLECTIVE
PROPOSAL
AGREEMENT
4yrs 5yrs 10yrs 15yrs 4yrs 5yrs 10yrs 15yrs
2 6 10
2mths
3/4mths 1/2mths 1/2mths
7131.00 9804.00 32173.00 36541.00 14260.00 17825.00 35650.00 53475.00
6986.00 9606.00 22705.00 35803.00 13972.00 17465.00 34930.00 52395.00
6269.00 8657.00 20462.00 32267.00 12592.00 15740.00 31480.00 47220.00
5714.00 7857.00 18571.00 29284.00 11428.06 14285.00 28570.00 42855.00
5346.00 7351.00 17375.00 27398.00 10692.00 13365.00 26730.00 40095.00
4634.00 6372.00 15061.00 23749.00 9268.00 11585.00 23170.00 34755.00
“A.B.3”
18
“Neal and Massy Industries Ltd.
19
20
21
22
Arima
23
October 11, 1988
24
The Secretary
25
26
27
Laventille
28
Attention: Mr. Aldwyn Brewster
29
Dear Sir,
30
As requested please find attached information regarding workers who may be retrenched subject
to Items 1 and 2 below.
1
The outcome of our meeting on October 12, 1988 2. Request by workers for voluntary
retrenchment.
31
I do hope this information will be of assistance to you.

32
Respectfully
33
34
Finbar G. Massiah
35
Personnel Officer attch.
ACCOUNT STORES YEARS OF SERVICE RATE OF PAY
W. Bishop 8 $2,317.00 / mth
L. Huggins 9 $2,317.00 “
G.Inniss 9 $2,317.00 “
D. Maharaj 9 $2,317.00 “
INDUSTRIAL ENGINEERING
D. Thomas 5 $2,857.00 / mth
QUALITY CONTROL
C. Cumberbatch 10 $2,673.00 / mth
E. Dover 12 $2,673.00 “
T. Francis 19 $2,673.00 “
A. Gowandan 19 $3,148.00 “
W. Grant 14 $2,673.00 “
T. La Roche 11 $3,493.00 “
H. Leslie 22 $3,148.00 “
C. Lompress 19 $2,673.00 “
C. Simmons 19 $2,673.00 “
R. Wallace 22 $2,673.00 “
J. James 17 $3,148.00 “
PROCESS ENGINEERING WORKSHOP
A. Aaron 6 $ 13.54/hr
C. Alleyne 19 $3,565.00/mth
E. Daseut 9 $3,493.00/mth
D. Goodridge 9 $15.09/hr
S. Ramdan 5 $2,857.00/mth
L. Samuel 11 $15.09/hr
R. Suruj 16 $2,317.00/mth
BODY SHOP
T. Bailey 6 $12.95/hr
A. Bradshaw 12 $13.96/hr
P. McLean 6 $12.95/hr
B. Edwards 6 $12.06/hr
J. Hart 4 $12.95/hr
G. Jack 6 $12.95/hr
C. Jackman 6 $12.95/hr
F. James 7 $13.96/hr
T. McIntosh 6 $10.51 /hr
C. Nakid 6 $12.95/hr
R. Marrisheau 12 $13.96/hr
J. Pierre 6 $12.95/hr
BODY SHOP (continued) YEARS OF SERVICE RATE OF PAY
F. Wilkinson 22 $15.15/hr
E.Cadogan 10 $12.95/hr
A. Narine 6 $13.96/hr
N. Finch 6 $12.95/hr
D. Forteau 6 $12.95/hr
MEAL FINISH / LINE WELD
S.A. Francis 6 $12.95/hr
H. Garcia 5 $12.95hr
R. Garrick 11 $13.96/hr
V. Hamilton 19 $13.96.hr
A. Licarish 22 $3,565.00/mth
F. Lopez 20 $15.15/hr
A. O'Brien 6 $13.96/hr
D. Sancho 6 $12.95/hr
F. Mason 6 $13.961hr
R. Gould 5 $12.95/hr
P. Calliste 13 $13.96/hr
G. Julien 9 $13.96/hr
E. Henry 7 $13.96/hr
M. Barrow 7 $12.95/hr
H. John 6 $13.96/hr
J. Stewart 6 $13.96/hr
PLANT SHOP
S. Archer 13 $13.96/hr
W. Crosby 8 $12.95/hr
R. Garcia 6 $12.06/hr
W. Alexis 2 $15.15/hr
K. Gonzales 20 $3,565.00/mth
M. Hoping 6 $12.95/hr
I. lssac 11 $13.96/hr
R. Spencer 11 $13.96/hr
D. Poonith 5 $12.95/hr
W. Mottley 6 $12.95/hr
A. Pinto 11 $12.95/hr
M. Villaroel 6 $12.95/hr
M. Theodore 12 $12.95/hr
L. Guevarra 5 $13.96/hr
W. Phillips 5 $12.95/hr
H. Ali 6 $12.95/hr
D. Ballantyne 10 $2,317.00/mth
L. Campbell 6 $2,317.00/mth
LINE SUPPLY(continued) YEARS OF SERVICE RATE OF PAY S. Chaitu 5 $10.51/hr
C. Chandree 6 $2,317.00/mth
R. Antoine 6 $2,317.00/mth
D. Corbie 6 $2,317.00/mth
F. Coutou 13 $15.09/hr
M. Cronolin 9 $2,317.00/mth
H. Dookwah 16 $2,317.00/mth
C. Edwards 17 $2,673.00/mth
J. Evelyn 6 $2,317.00/mth
A. Henry 11 $2,673.00/mth
S. John 11 $2,317.00/mth
D. Joseph 11 $2,317.00/mth
A. Kelly 22 $3,565.00/mth
L. McMillan 19 $2,317.00/mth
A. Morris 20 $2,317.00/mth
R. Payne 9 $3,565.00/mth
T. Raphael 19 $2,317.00/mth
R. Roberts-Taitt 6 $2,317.00/mth
N. Mohammed 11 $2,673.00/mth
D. Henry 17 $2,317.00/mth
S. Ali 9 $13.96/hr
K. Howell 6 $2,317.00/mth
J. Metevier 6 $2,317.00/mth
R. Tangree 17 $2,317.00/mth
A. Guevarra 5 $2,317.00/mth
I C. Gonzales 17 $3,493.00/mth
D. Contain 5 $2,317.00/rnth
CHASSIS/FINAL LINE
R. Ackbar 6 $12.95/hr
S. Ali 9 $13.96/hr
M. Chadeesingh 16 $15.15/hr
S. Contain 17 $3,565.00/mth
H. Davis 22 $15.15/hr
L. Francis 22 $3,565.00/mth
N. Gibson 6 $12.95/hr
H. Granderson 22 $13.96/hr
J. Joseph 6 $12.95/hr
M. Knights 6 $12.95/hr
A. Bourne 7 $13.96/hr
F. McIntosh 24 $13.96/hr
A. Mercer 21 $15.15/hr
F. Mohammed 16 $13.96/hr
A. Noreiga 6 $12.95/hr
D. Peters 6 $12.95/hr
D.Sahadeo 5 $12.95/hr
L. Samaroo 6 $12.95/hr
“A.B. 3” continued
CHASSIS/FINAL LINE (continued) YEARS OF SERVICE RATE OF PAY
E. St. Clair 6 $12.95/hr
P. Bridgelal 11 $13.96/hr
M. Waterman 6 $13.96/hr
D. Woodley 6 $13.96/hr
E. Legall 17 $15.1 S/hr
R. Mendoza 6 $13.96/hr
S.C. Allen 6 $12.95/hr
A. Castillo 10 $13.96/hr
H. Nichols 7 $13.96/hr
J. Phillip 22 $13.96/hr
A. Seaton 16 $13.96/hr
PLANT ENGINEERING
R. Angard 16 $13.78/hr.
J. Benny 6 $10.51 /hr
G. Brown 11 $13.54/hr
P. Daniel 15 $10.51 /hr
R. Gomez 5 $10.51 /hr
S. Harrack 16 $15.09/hr
L. Heetai 6 $10.51/hr
K. Jagdeo 6 $12.95/hr
D. Jaimungal 10 $2,857.00/mth
A. Joseph 7 $12.95/hr
R. Mohepat 22 $3,565.00/mth
R. Rarndial 11 $13.54/hr
T. Raphael 10 $15.09/hr
D. Thannoo 6 $13.54/hr
P. Nandlal 8 $10.51/hr
K. Shockness 11 $15.00/hr
E. Edwards 10 $15.74/hr
P. Alexander 9 $13.54/hr
TRIM SHOP
A. Dookie 6 $12.95/hr
H. Dookie 17 $15.15/hr
F. Adams 12 $13.96/hr
C. Alexander 6 $12.95/hr
S. Brathwaite 13 $13.96/hr
M. Coutain 12 $13.96/hr
A. Fournillier 6 $12.95/hr
P. Granger 6 $12.95/hr
A. Gray 12 $13.96/hr
“A.B. 3“continued
TRIM SHOP YEARS OF SERVICE RATE OF PAY
S. Greene 11 $13 96/hr
B. Guevarra 6 $12.95/hr
M. John 6 $12.95/hr
R. Lamont 19 $13.96/hr
N. Mohammed 6 $12.9S/hr
C. Mudie 22 $15.15/hr
L. St. Rose 6 $12.95/hr
E. Tavernier 6 $12.95/hr
A. Taylor 11 $15.15/hr
M. Telesford 12 $13.96/hr
M. Thomas 22 $15.15/hr
J. Williams 6 $12.95/hr
S. Williamson 11 $12.95/hr
O. Wiison 6 $12.95/hr
J. Wilson 6 $12.95/hr
W. Murray 7 $12.95/hr”
ALDWYN BREWSTER(continued)
36
The Union raised the question of notice in accordance with the Retrenchment and Severance
Benefits Act, No. 32/85. Mr. Whiteway said if the company selected workers f retrenchment, he
hoped that the Union would waive the 45 days' notice. The various options the company's written
proposals were discussed and the Union proposed to the company that the plant should be re-
opened in the middle of November with the entire work force and that all the vehicles should be
assembled and after that the Union and the company would discuss the future of the plant. When
the Union made that proposal, the discussions ended on the basis that the company would talk to
the dealers, i.e. Neal and Massy Motors and Southern Sales and get back to the Union.
37
Another meeting between the Union and the company took place on 20th October, 1988. He
attended that meeting. Dulal-Whiteway told the Union at that meeting that the company had
agreed to the Union's proposal (supra), that the plant would be re-opened on 14th November and
that the workers knew the date when they were supposed to return to work. Whiteway also said
that the company had obtained additional movies from the dealers and that it was then in position
to offer the entire work force in both bargaining units 50% of their severance benefits under the
collective agreements if they wanted to leave the employment of the company voluntarily. The
company also indicated that the company would complete the assembly of the vehicles by the
end of March 1989. The Union responded by saying that it had no problem with the company
offering the 50% of severance payment but it would consider that payment as part payment of
the workers' severance benefits and at the closure of the plant it would continue discussions with
the company on the method of payment of the remainder of the severance benefits to the workers
because the company's position was that it could not say what would happen with the company
because the dealers would not be bringing in any vehicles for assembly in 1989. Whiteway said
at that meeting that if the workers were reluctant to take up the company's offer, he did not know
what would happen at the end of March because at that time the receiver might be in the
company. To his knowledge, a receiver has not been appointed. There was no report by either the
Union or the company of a trade dispute to the Minister concerning the company's proposal for
voluntary retrenchment of the workers.
38
Under cross-examination by Mr. Martineau, Mr. Brewster said:
39
He was familiar with the company's industrial relations practice. The company published a paper
called “assembly News”. Articles in the “Assembly News” were articles and items concerning
the workers and the Company in the main.
40
The company has also had a practice over a long period of time of meeting with the workers to
discuss problems at the plant. Some of those problems touched on industrial relations matters.
The company often met with the Union to discuss the state of the company and industrial
relations matters in particular. The company has always had a good relationship with the Union
prior to July 1988 when the company instituted its layoff of the workers. Since July 1988, the
relationship began to deteriorate. During the period of the layoff the parties met to discuss the
future operations of the plant. It was during those discussions that the relationship deteriorated.
At the meeting of 26th July, 1988, the company informed the Union why it was embarking upon a
temporary layoff under the collective agreement. It gave economic and the financial reasons.
Business was not good for the company. The Union and the whole country were aware of the
state of the motor car industry.
41
Apart from informing the Union about the proposed layoff on 26th July, 1988, the company had
informed the workers of the layoff prior to informing the Union. This was in keeping with the
company's practice of informing its workers of what was going on in the plant. There were
instances when the Union objected to this practice of the company. On this particular occasion,
the Union raised it with the company because it felt that it was improper for the company to call
the workers and have a meeting with them on the question of the layoff and there had been no
formal prior discussions with the Union on the lay-off. The Union told the company this at the
meeting of 26th July, 1988. After the workers had been laid off in July the company explained to
the Union that the workers came back out to work in November and it was during the period
between the layoff and the return to work that the Union had the several meetings with the
company.
42
A fair summary of what took place at those meetings would be that proposals were made to the
Union by the company and the Union made counter-proposals to the company with regard to the
continuing work force at the plant. There was no agreement on the company's proposals except
on the re-opening of the plant. After the discussions with the Union, the company met with the
workers to indicate to them the position of the Union and the company. The company wrote to
the Union on 26th September, 1988, informing it that notices had been sent to the laid off workers
inviting them to a meeting on 30th September, 1988. The letter also invited the Union to attend
the meeting. He could not recall if any representative of the Union attended the meeting. There
was another meeting with the workers on 2nd December, 1988. He could not recall whether the
Union was invited to that meeting but the Union knew about the meeting. He believed that
officers of the Union were present at that meeting. He did not know who was present, but the
Union did not object to the meeting being held. The employer has a right to talk to his workers.
He heard that as far back as October 1988 some of the workers had resigned from the
employment of the company. Francis Couteau resigned from the company.
43
As far as he was aware, no receiver had been appointed for the company. At the meeting
between the company and the Union on 20th October, 1988, the company stated that they were
then in a position to offer 50% of severance benefits to the entire workforce. The company
decided to re-open the plant with 50% of severance benefits and all the workers. The Union
stated that they would not reject or refuse that position but at the end of the period, the Union
would discuss the question of the payment of the balance of severance benefits. At the meeting,
Dulal-Whiteway said that the proposal of the Company was 50% of what was due but the Union
was insisting that cannot be the end of that; that after that 50% they will have to talk. “Open with
everybody and then we will talk about the other 50%” was the firm position of the Union.
44
The Union was standing firm on the position “50% now and we must talk about the other 50%
after.” The Union had collective agreements and there were terms and conditions in the
collective agreements. The Union maintained its position that the collective agreements must
apply. The company explained that its position was because of the financial difficulties of the
industry and of the company. The question of the retrenchment of workers came up at the
meetings between the company and the Union and was discussed. The question of the slow sale
of the company's cars was also discussed. The question of the company having no further orders
for C.K.D. units also came up and also the problem it was having with foreign exchange. The
Union was also told about the likelihood of a receiver being appointed in respect of the company
and the company made several proposals to the Union with regard to the continuation of the
workforce to see how best, from the company's point of view, the workforce would continue to
work into 1989.
45
The company offered to pay 50% of the severance benefits that were due to the workers if they
took voluntary severance. At the meetings with the Union, the company spoke about the situation
at Amalgamated Industries and of what had happened to the workers when they were retrenched
and a receiver appointed. The company proposed that if the workers accepted the 50% severance,
they would work until March 1989. There was no agreement between the Union and the
company on the company's proposals. The collective agreements required the company to inform
the Union of the names and addresses of new workers on their employment. When the Union
told the company they would discuss the payment of the other 50% later on they said so because
at that point in time there had been no retrenchment.
46
The position of the Union was that the Company would pay the workers 50% of the severance
benefits at the end of March 1989 and then the Union and the company would sit down and
discuss how the remaining 50% would be paid. The company's eventual position was the
payment of 50% of severance entitlement to workers who voluntarily resigned. The company
informed the Union of this position at the meeting held on 20th October, 1988. There was nothing
the Union could have done to prevent workers from going voluntarily. At the meeting of 20th
October, Mr. Aberdeen had said: “Those who want to go, go.”
In re-examination Mr. Brewster stated:

47
The company submitted proposals to the Union by letter dated 23rd September, 1988 for the first
and second collective agreements. The Union's proposals were submitted to the company with a
letter dated 9th October, 1986. There were two memoranda of agreement executed by the Union
and the company on 17th June, 1987. The Union and the company also executed terms of
settlement dated 14th July, 1987. The Union reported trade disputes to the Minister.
(b) HARRY DQOKWAH Mr. Dookwah testified inter alia:

48
In 1988, he was employed with the company. He had been working with the company since the
year 1973. In 1988, he held the position of charge hand and he was paid monthly. He did not
work during the period August - November 1988 when there was a factory close down. He
returned to his job in December 1988 about three weeks before Christmas. He was at work on 2nd
December, 1988 when the company's managing director, Mr. Dulal-Whiteway, held a meeting of
the workers at about 3.00 p.m. Whiteyay, Massiah, Rawlins and Cooper, directors of the
company, and other managerial staff and supervisors and the workers attended this meeting.
49
About 300 workers were present at the meeting. He did not remember seeing any officers of the
union at the meeting. Whiteway spoke at the meeting. Whiteway said at the meeting that the
position with the plant at that time was in a bad condition as regards sales. He quoted figures and
the number of cars that were sold during the year up to the date of the meeting. He also gave the
number of cars in stock and compared that number with the previous year to show how sales
were bad. He also said that the company owed a lot of money to its bankers. He said because of
that bad situation the company had found itself in the receivers are just at its doors and that his
personal advice to the workers was to accept 50% of their severance benefits. He said if the
workers waited any longer they might receive very little or none at all and that whatever may
happen, he would not treat them the way Amalgamated Industries treated their workers. He said
the longer the workers waited it would be worse for them and that those who refused the offer of
50% could not do anything to get a cent from the company even though the union took the
company to court. So he advised everybody to accept the 50%. He said if they accepted the 50%
they would still have their jobs under the same working conditions and his advice was to accept
it.
50
He mentioned that he had made an offer to the union which the union had rejected. He said he
had made an offer of 75% to the union but the company had gone into a worse position and that
it was only 50% that he could offer and that he did not know for how long the offer will remain.
Whiteway said further that in discussions with the union he had found the union to be very
unreasonable and unrealistic seeing the situation that the economy of the country was in and that
things had gotten so bad that the company did not have one ship with C.K.D's on the sea and
because of the foreign exchange difficulties he could not say if the company would ever build
motor cars again. Whiteway said that the company had got the money to pay the workers the
50% from different companies for whom they produce, for instance Southern Sales, and that the
dealers had given the company money to pay the workers' salaries but that they could not
continue as it was going on at present.
51
He accepted the 50% offer by reason of domestic pressure from his wife and children to accept.
He accepted the 50% around the middle of December 1988. He and Lalla subsequently went to
see Messiah. This was on 18th January, 1989. Messiah asked them why they did not want to sign
the contract. He, Dookwah, told Messiah that Whiteway had not said anything about any contract
and that he was against signing the contract, not only because Whiteway had not said anything
about signing such a contract bat also because the contract did not have conditions which the
union had agreed to: it was not sanctioned by the union. Massiah told him he did not have a job
any longer with the company and that he should leave the plant. He left. He went back the
following day. He was never allowed to work in the company again. He did not sign the contract.
52
Workers asked questions at the meeting of 2nd December. He remembered Christopher Gonzales
asking for more money. He had signed the letter of resignation on 12th December 1988. He went
to Messiah to sign the letter. No one forced him to go to Messiah to sign the letter of resignation.
At that time, other workers had been signing similar letters of resignation. He knew that workers
had been signing letters of resignation the day after Whiteway spoke at the meeting. When he
went to sign, he knew what he was going to sign. When he signed he accepted the contents of the
letter.
(C) ALBERT ABERDEEN Mr. Aberdeen testified inter alia:

53
He is and was in 1988 and 1989 the president general of the union. The company and the union
held discussions in the year 1988. The discussions broke down. The last position of the company
before the discussions broke down was that it was going to offer 50% of severance pay to those
who voluntarily agreed to leave the company's employment. The union was opposed to this
proposal of the company and rejected it.
54
After the union rejected the company's proposal, workers left the employment of the company
between the period September 1988 to March 1989. He saw letters to the effect. Some of the
workers complained to him that they were being forced to sign individual contracts and he
advised them to put their objections in writing to the company. A number of workers signed
documents presented to them by the company. The union gave instructions for the “duress letter”
(infra) to be sent to the company. The workers had complained to him that they were being
terrorized by the company to try to get them to sign accepting voluntary termination. Payne and
Francis were among those workers. ‘They expressed fear that if they did not sign the company
would terminate their employment. He told them if they were fearful they should express it in
writing.
(d) PAYNE Mr. Payne testified inter alia

55
He heard that the company held a meeting with its workers on 2nd December, 1988. He got
certain information about the meeting from the union's education officer. After the meeting, he
was approached by Mr. Lewis, the industrial relations officer of the company. Lewis invited him
to his office and showed him some documents. The documents related to resignation from
employment. He could not remember the other documents but he eventually signed one of the
documents. He signed the document resigning his job and accepting the 50% payment. He then
asked Lewis for the contract he had heard workers speaking about on the shop floor. Lewis told
him: “Don't bother about it.”
56
After that discussion, he left Lewis' office and went back to his normal work as a foreman. Lewis
called him again to his office sometime around December 1988 and Lewis told him about the
individual contract. He told Lewis he would like to get some time to let his family know about
the contract. Having considered the matter, he did not sign the contract. He heard from Lewis
again sometime in January 1989. He approached him with the contract again and he told him he
was still not ready to sign. Lewis then told him if he did not sign the contract he will have to
leave. He left after that conversation with Lewis and returned to his workplace. He never spoke
to Lewis again about the contract.
57
After that last discussion with Lewis, his supervisor, Joseph Niles, approached him in connection
with the individual contract. This was in February 1989, about the 17th February, 1989. He told
Niles to hold on, he will get back on to him. He did not want to sign the contract. He wanted to
get on to the union's executive and he spoke to Mr. Albert Aberdeen, the union's president, on
the same day. When Niles came to him, Niles told him that failure to sign the contract would
mean that he will have to leave the premises immediately. Later on that day he saw the union's
education officer, Marian Seeteeram. Marion showed him a piece of paper with something
written on it. He told him he got it from the union. It was the duress letter. I asked him whether
he could get somebody to type it and he eventually came back with many copies of a typewritten
letter. He (the witness) distributed the copies to certain individuals who had not signed the
individual contract. He gave copies to John Lewis, Couteau and others. He distributed copies to
about 10 to 12 persons. He signed the contract and sent in the contract to the company and he
also handed the company the letter signed by him (“the duress letter”). He gave the duress letter
to Massiah, the company's personnel officer.
58
After he had handed in the contract and the duress letter, Joseph Niles, his supervisor, Govia, the
superintendent called him in together with John Lewis, Couteau and Patrick Pierre. He and the
others went into the superintendent's office. He told him the company did not want anyone
working under duress and he and Patrick Pierre will have to leave the compound. He asked
Govia for his money. He was given the money and he left the compound. He was given the
money he had worked for, for part of the month. Patrick Pierre was a painter, Couteau and John
Lewis were supply workers. Niles asked them to withdraw the duress letter and they refused.
They were told to leave. Since then he has not worked at the company. Govia said the company
did not want anyone working under protest. He knew Terry Francis, who also worked in the
company. He did not know whether Francis had also signed a duress letter. He did not give a
copy of the duress letter to Francis.
59
He had resigned sometime in November or December 1988. When he resigned, he knew that one
or two of the company's workers who had resigned were working on contract. He did not discuss
the contract with them. Having resigned in November or December 1988, he continued to work
for the remainder of December, January and a part of February, 1989 and he got paid for
December and for part of February, 1989. During that period; he received his normal pay except
that P.A.Y.E was not deducted. Before that P.A.Y.E. had been deducted. He questioned the
company about it. He was doing his normal duties. He was not working under different terms
and conditions. When he resigned, Mr. Lewis had told him he would continue working as
normal. He enquired about the contract from Lewis because he wanted to see the contents. He
wanted to compare it with the collective agreement to see if it was the same so he could get in
contact with the union and tell them about it. When he asked far the contract, he was aware that
the company had been offering terms and conditions embodied in that contract.
(e) FRANCIS COUTEAU Mr. Couteau testified inter alia:

60
He was employed as a carpenter in the company's maintenance department. He was aware that in
December 1988 the company had made certain proposals to the union. These proposals related to
a 50% offer of severance entitlement based on a retrenchment programme. He did not accept the
50% offer. In January, 1989, he was in the area of the carpenter's shop when Mr. F.A. Rawlins,
his immediate boss and the company's engineer and a director of the company, spoke to him. He
related a conversation between himself and Rawlins about the company's offer. At the end of the
conversation, Rawlins told him “If you do not accept the offer I could see that you get fired.
When you get fired you would be dead before you get anything and if you do get anything it is
$5,000.00 the company paying.”
61
In a letter which Couteau had written to the company on 12th January, 1989, he complained to the
company about what Rawlins had said to him. In that letter he had stated generally what he said
in his evidence in chief.
(f) TERRY FRANCIS Terry Francis testified inter alia:

62
He was at work on 2nd December, 1988. On that day the general manager of the company,
Whiteway, requested that all employees meet in the canteen at 3.00 p.m. This request was made
through departmental heads, supervisors and foremen. His superintendent, Nizam Mohammed
told him about the meeting. He attended the meeting. Whiteway addressed the meeting. About
400 workers were present at the meeting. Whiteway said that during the plant closure he had met
with the union and had put some options for their consideration. He stated the options.
63
One of these options was the retrenchment of 173 workers and the other was that the rest of the
workers were to return to work on “one week on - one week off basis.” There were two other
options but he could not recall them. Whiteway said the union had rejected all of the company's
options and that he could not understand a union rejecting all of the Company's options,
particularly when the company was honest with them. He said that this was the same union
which had represented Amalgamated workers and those workers were without anything. He went
on to say that the company had 1700 cars on wheels and that it owes its bankers same $38
million, that there were no more boxes on order for assembly work and that the plant was one
step away from receivership. At that point, Mr. Whiteway said the company had an offer to all
employees which was 50% of their severance benefits and he advised all employees to accept the
company's offer saying” Half a loaf is better than none”. He said this was his personal advice to
the workers. Whiteway did not elaborate on how the workers were to go about accepting the
company's offer.
64
After the meeting of 2nd December, 1988, he went to Finbar Massiah, the company's personnel
officer. He went to find out more about the 50% offer. This was on 6th December. He spoke to
Massiah. He told Massiah that based on the meeting of the 2nd, he wanted to find out more about
the company's offer. Massiah told him he had to resign and handed him a printed letter of
resignation. He told Massiah that Whiteway did not say in his address anything about resigning
before accepting the company's offer. Massiah showed him figures which had already been
calculated. Those figures represented 50% of his severance entitlements based on the collective
agreement. After looking at the figures, he told Massiah he would accept the company's offer.
Massiah then insisted that he must sign the resignation form before he could accept the offer. He
told him again that Whiteway, in his address, never said that workers had to resign before taking
up the company's offer. Massiah said to him: “This is no big thing. What you frighten about?
This is no big thing.” So he formed the opinion, it was no big thing. He signed the letter and
went back downstairs and continued to work as usual. He performed the same duties.
65
On 16th December, Milton Lewis, the industrial relations officer of the company called him into
his office. Lewis told him that his 50% cheque had arrived, and that he must sign receiving it.
Lewis gave him a printed receipt which he signed and he received the cheque and later cashed it.
The plant closed on 21st December for vacation and was re-opened on January, 1989. He was not
paid for three days - Christmas Day, Boxing Day and New Year's Day. He raised the matter of
the non-payment with Nizam Mohammed, his superintends Mohammed told him he was not paid
for the three days because he was a contractor. He replied that this was the first time he was
hearing about that. Mohammed replied saying that from first day he resigned he became a
contractor and cannot be paid for the three days. He to Mohammed that as far as he understood
his resignation was just a matter of formality and had nothing to do with his benefits. He drew
the matter to the union's attention.
66
On 17th January, 1989, Mohammed called him into his office. Mohammed told him the company
gave him a contractor letter that he had to sign before 4.00 p.m. on that day. Mohammed also
told him that if he failed to sign the letter he would not be allowed to enter the plant on Monday
20th January. He refused to sign the contractor letter. After that, he went bay to work as usual.
After going back to the shop floor, for fear of dismissal, he signed the contra and attached a letter
to it stating he had signed it under duress for fear of dismissal. He continue to work normally. On
21st January, 1989 Mohammed told him that Rawlins, the factory control manager, wanted to see
him in his office. He went to see Rawlins together with about four other workers, Clive
Lumpress. Lenin Roberts, Conrad Simmons, and Harold Leslie. Rawlins said to the group that he
had received their letter stating that they were working under duress but he wanted no workers in
the plant working under duress and that until they rectified their position they could no longer
work for the company. He understood by that statement that if he withdrew his duress letter he
would have been able to work.
B: SUMMARY OF ORAL EVIDENCE FOR THE COMPANY (a) Bernard Dulal-Whiteway,

the managing director of the Company, testified inter alia.
67
The company assembled motor vehicles. It is owned 75% by Neal and Massy Limited and 25%
by Southern Sales and Service Company Limited. It is one of two companies engage in the
assembly of motor vehicles. He had intimate and detailed knowledge of the motor vehicle
industry. He produced a document which he had prepared and which showed the number of
motor vehicles assembled in Trinidad and Tobago in each year during the period 1969 to 1988.
In 1984 the whole industry produced 22,934 vehicles and in 1988 the industry produced only
4320 motor vehicles. The reason for the decline in production was a tremendous decline in the
market demand for motor vehicles. The company, therefore, had to adjust its production to bring
it in line with the demands of the market. The decline in the market demand came about as a
result of the decline in the economy of Trinidad and Tobago, in particular, and the two
devaluations of the Trinidad and Tobago dollar as well as the decline of the American dollar vis
a vis the Japanese yen. This resulted in increased prices of motor vehicles. The company
assembled Japanese vehicles. In 1983, the company made a profit of $3.9 million, in 1984 a
profit of $10.5 million and in 1986 a profit of $6.6 million. In 1987, the company made a lass of
$7.9 million, in 1988 a loss of $6.9 million and in 1989 a loss of about $11.5 million.
68
The company assembled vehicles in a new plant at Arima. The new plant was financed by a loan
from a consortium of banks. The original loan was $55 million and there was other borrowing of
$11 million and an overdraft which started at $4 million and eventually reached $7 million. By
1988/89, the $55 million dollar debt had been reduced to $31.8 million. This reduction took
place in 1987/88 but since that time the company was unable to make any further inroads into its
reduction. The consortium loan was being paid back in half-yearly installments but since
1987/88 the company had been unable to make any capital repayments on that loan. The
company had also been unable to meet some of the interest payments. The overdraft still
remained close to $7 million. The borrowings of the company were secured by debentures which
are first and second charges on the fixed and floated assets of the company.
69
The company held discussions with its creditors with a view to obtaining a moratorium on
capital repayments as wall as a reduction in the interest rates but it had been unable to get its
bankers to agree to any such proposals. The bankers were willing to postpone capital-payments,
but they froze the company's accounts and put a limit on the amount of money it could borrow so
that the company could not at any time increase its indebtedness to the banks. The banks stated
categorically that they would not increase their lending to the company for any reason
whatsoever, including severance benefits that could have become payable to the workers and on
more than one occasion, the banks had threatened to try to seek to put the company into
receivership to have their security realized.
70
At that time, the company had been negotiating new collective agreements with the union. The
company had informed the union about its financial difficulties during the negotiations. The
company also kept the workers and the union informed about the state of the motor vehicle
industry in general, as well as the state of the company in particular, both in terms of the
operation of the company and also with respect to its financial commitments.
71
The company effected temporary closures of its plant in order to deal with its financial
difficulties. It reduced the work week initially from five days to four days in the year 1987 and,
1984 in addition to the reduced work week, it closed its plant temporarily for periods of up to
three months in accordance with the collective agreements.
72
The company also retrenched 140 workers in February 1987. The reasons for this retrenchment
were financial as well as operational because the dealers were having a build-up of completed
motor vehicles which could not he sold. They, therefore, reduced their imports of knocked-down
kits or raw materials which the plant needed to keep operational. The company was trying to
minimize its loss on the one hand while on the other hand trying to reduce the number of motor
vehicles that were being assembled and being added to existing assembled vehicles. After the
retrenchment in February 1987, the company went on a four day work week with effect from 16th
March, 1987 and then there was a temporary closure of the plant from 6th July, 1987 to 18th
October, 1987. On 1st August, 1988 there was another temporary closure the plant for three
months.
73
The company held a meeting with the workers on 30th September, 1988. That meeting took place
when the plant was on temporary closure. The company put a notice in the newspaper advising
the workers of this meeting. The company also invited the union to send representatives. The
purpose was to bring everyone up-to-date on what was taking place in the industry as well as to
let them know how the negotiations and discussions with the union were going. Mr. Taitt, the
union's chief grievance officer, attended the meeting together with another person from the
union's central executive. This kind of meeting was not an unusual occurrence. From the late
1970's and early 1980's the company has held regular meetings with its worker basically to let
them know what was taking place. It was all part of the total communication channel between
management and the workers. There were other speakers apart from himself.
74
On 30th September, 1988 he recalled bringing the meeting up-to-date on the industry, th state of
the company and the dealers concerning sales basically, the stock levels, and explained to the
workers the proposals which the company had forwarded to the union for discussion. At all
meetings the workers were allowed to ask questions and to make comments. At this particular
meeting the floor was open and some workers, including one Alexander Green spoke. Green
stated that he was quite willing to accept a lesser sum of money in order to leave the company's
employment. Other workers stated that they did not want to experience the same difficulties and
financial hardships which their associate workers in Amalgamated Industries had experienced in
which that company had gone into receivership owing them over $5 million in severance
benefits. The union representative at that meeting declined to address the meeting, saying that he
would address them on his own premises.
75
With the above background, the company scheduled a meeting with the union and this meeting
was held on 7th October, 1988. It discussed with the union at that meeting the problem; facing the
industry and the company. Another meeting was held with the union on 22nd September, 1988. In
September, the company and the union agreed to a short adjournment for the company to submit
its verbal proposals in writing. This was done.
76
The company held a meeting with the union on 12th October, 1988. He attended that meeting.
The union had the company's proposals A.B. 1 and they had asked the company for more time to
study those proposals. The meeting of 12th October was a follow up meeting at which the union
was expected to respond to the company's proposals. That meeting was held in Arima and the
union rejected all of the company's proposals. The union requested that the company re-start its
operations at the beginning of November upon the expiration of the three month temporary
closure with all the employees working a five-day week and not a reduced work week.
77
The company told the union that it regretted the decision taken by the union. He believed that at
that meeting the company told the union that it had a certain sum of money which it was willing
to make available to the workers and the company would like to see that amount of money
shared up among all the workers because the banks had informed the company that any money
coming into the company's account would have to be used to satisfy the debts owing by the
company to the banks.
78
As the company's chief executive officer, he was in a predicament “since he acknowledged fully
that on one side there was a severance commitment which the company could not afford, but, on
the other hand, he was trying somehow to get some amount of money so that workers would not
find themselves in a position where the company would go into receivership, recognizing that the
company did not have the money but wanting to ensure that the workers got some sort of
settlement or some sort of handshake, or whatever it is called, from the company.
79
All of this was being done in a very sensitive framework because the banks were pressing the
company to pay money towards them and the company was trying to find money to give to the
workers. The banks were reminding the company that since they held certain security as the
secured creditor, if the plant were to be put into receivership, severance payments would have
been unsecured credits. He had been able initially to obtain $3 M from sister companies, and
when the union rejected all of the company's proposals, because the $3 M were earmarked for a
certain number of workers, he went back to those sister companies and got them to increase the
amount to $5 M.
80
The whole approach of the company was - “Here is this company without a future. It had to
make sure everybody at least shared in some form or fashion from what it could muster up from
outside the company's operations.” The sister companies were the Neal and Massy Group of
Companies and Southern Sales and Service Company Ltd., for whom the company assembled
motor vehicles. The union was leaning to the view that the company should retrench all of its
employees basically on a voluntary basis. The company did not agree with the union because it
did not have the funds, bearing in mind that the older employees would have cost a lot more if
the company went for that type of retrenchment. When the negotiations broke down, Mr.
Aberdeen of the union said: “We don't agree with the fact that you cannot pay severance if
everybody left, or if you had to retrench, but as a company usually you do what you have to do
but you must understand our position.”
81
One of the proposals which the company had made to the union was for the retrenchment of 173
workers and the company had drawn up a list of 173 workers. The company had drawn up this
list because in its medium term plan, the company recognized that one of the options was to
reduce the number of workers by 173. The union asked for a list of these workers and because it
was an assembly process where you have people of different skills it was necessary for the
company to go through the departments and have requests from workers who indicate desire to
leave as well as trying to ensure that each section was properly manned. The workers had to be
taken from each area. That is how this list was prepared and the suggested names sent to the
union.
82
The money obtained from the sister companies was not paid to the company. Because of the
limit on its overdraft and the fact that the company was in default on its loans the company could
not put that money into its bank account. It had to ensure that amount was directly by the donor
companies so that it did not form part of the company's resources otherwise the banks would
have had the first priority on the amount.
83
After the talks with the union broke down, the plant was re-opened on a phased sometime in the
middle of November, 1988 with the full work force minus about 30 workers who had left the
company's employment during the period of the temporary closure.
84
The plant re-opened on a full five day work week. It took about two weeks before workers were
recalled. This was one option which was, available in addition to all the options proposed by the
company. At the beginning of the discussions, the company had told the union that this option -
which involved bringing out all the workers to work five days a week and finish the vehicles that
had to be built as quickly as possible and then have no future - was too ludicrous to offer - and
the company was very much surprised when that was the offer proposed by the union because it
led towards the “precipice” since the company knew that at the end of March 1989 there would
be no more resumption of work for quite a period of time. The company, however, in keeping
with the union's wishes, re-opened and worked according to the union's plan was which was on
the basis of five days per week with all the workers except those who had resigned.
85
At a meeting with the union on 20th October, 1988 the company informed the union that
negotiations had broken down and that it was exercising its option to withdraw all the proposals
it had made, including those relating to the collective agreements. The company also indicated to
the union at that meeting that the $5 million dollars it had secured from sister companies was still
available and that the company wanted to ensure that not only the 173 workers but everybody
would get some amount of that money. The company knew that receivership was much on the
cards under the circumstances at the time and the company had always promised that no one
would leave without something in his hand. The company's management felt inclined to offer
some sort of “ex gratin” payment to those workers who had even resigned prior to being re-
called out to work and the company calculated the way in which the money was to be disbursed
equitably.
86
At the meeting of 12th October, 1988, he and Mr. Aberdeen, the president general of the union
were present with their respective teams.
87
On 20th October, 1988; the meeting went fairly well to the extent that Mr. Aberdeen even
mentioned when the company said it wanted everybody to share in the amount of money that the
company could do what it wished to do: he would not stand in the company's way and whatever
the company paid would be considered as part payment of severance.
88
There was another meeting between the company and its workers on 2nd December, 1988. He
spoke at that meeting. The meeting began at about 3:00 p.m. on that day. At that time all of the
workers had been back out to work after the phased resumption. The meeting was called hastily
in the canteen. The purpose of the meeting was to advise the workers of what had taken place
during the negotiations with the union bearing in mind that most of them had been away from the
plant and the company thought it necessary to let them know what had happened between the
union and the company.
89
The negotiations for the collective agreements had broken down and at that time were before the
Ministry of Labour. The main purpose of the meeting was to bring them up to date on what was
taking place at the plant and about the discussions with the union.
90
He brought the workers up to date on what was taking place and about the discussions and
negotiations with the union. He told them the company had a number of proposals and that all
the proposals had been rejected by the union. These proposals had been submitted to the union in
writing.
91
He told the workers that the union had demanded that the workers return to work on a five-day
basis and he explained to them that there were only 1700 vehicles to be completed after which he
could not forecast what would happen. He went into great detail on the company's finances. He
told them of the company's indebtedness to the banks. He gave them the figures $32 M to a
consortium of banks and $7 M in overdraft - and he told them of the company's inability to come
up with any plan for repayment which the banks would accept. He mentioned that under the
circumstances it was very possible that the banks would call in a receiver because the company
was facing a loss of $16 M, unable to meet its commitment, and had no more vehicles to build
after March 1989 and that the banks had indicated that they may wish to crystallize their
security.
92
He used the expression that the company was one foot away from a receiver and he also told
them that a receiver was on the company's doorsteps. He then went into great detail about what
might happen in the likely event of a receiver coming in and how the secured creditor was
unsatisfied from the unsecured creditor. He explained that severance pay ranked behind the
secured creditor and that only after the $39 million was realized by the receiver would there be
any money available for severance benefits. He also showed examples of receiverships that had
taken place in many companies in Trinidad and he went into some detail on the Amalgamated
Industries matter, showing them that it was the same type of industry and had the same kind of
financial problems, and he told them that their own union would be in an even better position to
let them know what had happened at Amalgamated because it was also the recognized union at
Amalgamated.
93
He further indicated that it was his personal as well as the company's intention that the workers
would not suffer the same fate of the Amalgamated workers and told them that although the
negotiations had broken down the company still felt committed to paying something to workers
and that the company had in fact already commenced paying ex gratis payment to workers who
had resigned.
94
He also told the workers that his job that afternoon was not to negotiate or to go into details as to
how they could avail themselves of what the company had to offer but that they should discuss it
with their managers or supervisors or the industrial relations officer, as the case may be. At the
time of the meeting quite a number of workers had resigned. He said that those workers who had
already resigned and those who resigned in future would be employed by the company until such
time that the 1700 vehicles had been completed.
95
He was the leader of the company's team which had negotiated with the consortium banks and a
number of banks had been talking and intimating that under the circumstances perhaps the best
situation would be to put a receiver in. The banks had been taking a very hard line because they
were not giving any sort of long term concession and were really looking for every pound of
flesh. The company held meetings with the banks every fortnight and every meeting ended
without a decision by the banks to alleviate the hardship being faced by the company. The banks
had fixed and floating debentures over the company. Neal and Massy Holdings Ltd. had also
given a guarantee to the banks but there was some question about the enforceability of the
guarantee.
96
The company required the workers who desired to continue to work after resigning to sign
individual contracts. Those who refused to execute the individual contracts were not allowed to
continue to work. The contract was printed and in the following form:
“NEAL, AND MASSY INDUSTRIES LIMITED
AUTOMOTIVE ASSEMBLY PLANT
(Date inserted)
(Name of worker inserted)
Dear Mr. ………………………
Re: CONTRACT SERVICES
We hereby engage you to carry out the Services listed in the Schedule hereto upon the following
Terms and Conditions:
 1. This Agreement for Services will take effect from (date inserted) and continue
until (date inserted) unless and until it shall be terminated by either party giving to
the other immediate notice of termination
 2. In consideration of the said Services to be rendered by you we shall pay you a
fee of (amount inserted) per day worked, payable weekly/monthly on the last day
of each and every week/month.
 3. If you shall be guilty of any misconduct or any breach or non-observance of
any of the conditions of this Agreement or shall neglect or fail or refuse to carry
out any of the Services as may be assigned to you hereunder we shall be entitled
to summarily terminate your engagement hereunder without any payment in lieu
of notice.
 4. Your engagement hereunder is as an independent contractor and you shall not
be nor shall you be deemed to be an employee of the company.
 5. We shall not bear or pay and you shall indemnify us against and hold us
harmless from any taxes, levies or other assessments against you by the
Government of Trinidad and Tobago pursuant to your engagement hereunder.
 6. This Agreement shall take effect in substitution for all previous agreements and
arrangements whether written or oral or implied between us relating to the said
Services and all such Agreements shall be deemed to have been terminated by
mutual consent with effect from the date hereof.
SCHEDULE OF WORK; (Inserted)

Yours very truly,
NEAL AND MASSY INDUSTRIES LIMITED
(SIGNED) MICHAEL COOPER
MANAGER/DIRECTOR
I, (Worker's signature) agree to the above Terms.
(Inserted) SIGNATURE: (of worker)”
97
Workers who resigned also signed two other documents. One was a letter of resignation end the
other was a receipt. The resignation letter was printed and was worded as follows:
“The Plant Manager, Neal and Massy Industries Limited, Santa Rosa Industrial Estate, Churchill
Roosevelt Highway Arima
Dear Sir,
This serves to certify that I, (name of worker) hereby resign from my employment with Neal and
Massy Industries Limited with effect from 1988 …… day …… date …… month.
I further certify that I agree and accept that I have no claims against you for severance pay
compensation under the terms of my employment.
NAME IN BLOCK LETTERS:
[Name of Worker inserted]
[Signature of worker inserted]
[Date inserted].”
98
The receipt was also printed and was in the following form:
“Received from Neal and Massy Industries Limited the sum of $….. in full and final satisfaction
of [amount of money inserted] all claims, demands, actions or proceedings and all costs and
expenses relating out of or in any way connected with my employment with Neal and Massy
Industries Limited or the cessation thereof. Dated this …… day of ……1988.
(NAME IN BLOCK LETTERS)

Received by………………………………………..
Signature …………………………………………
Dated ………………………………”
FINBAR MASSIAH
99
(b) Finbar Massiah the company's personnel officer, produced a document which he prepared
and which contained a list of names of 319 workers. The document was admitted evidence and
marked “F.M.2”. F.M.2 gave in respect of each worker listed the follow information:
Name of Worker
Date Resigned
Date actually working on contract
Date actually signed contract
Rate per day.
100
F.M.2 was typewritten but Massiah testified that he had inserted certain additional information
on it in his own handwriting. He explained the information he had written in as follows:
“O” meant the worker had resigned in his own handwriting or orally;
“P” meant workers who had resigned prior to 2nd December, 1988;
“*” referred to workers who had resigned but did not work on contract because they were either
going into their own business, going to live overseas, or had obtained other employment
101
Massiah stated that F.M.2 was prepared by him after 24th June, 1989, that the workers whose
names were contained in F.M. 2 were all members of the bargaining units, and that F.M.2 did not
contain the names of 28 workers who had not resigned.
102
F.M.2 showed that of the 319 workers whose names were listed therein, 105 had resigned prior
to 2nd December, 1988 and 214 had resigned on or after 2nd December, 1988. Only 29 of the
workers had resigned in their own handwriting or orally. The vast majority of the workers had
signed printed forms of resignation supplied to them by the company. See in this connection,
Whiteway's evidence (supra).
103
F.M.2 was as follows:
DATE
DATE
ACTUALLY
ACTUALLY
DATE STARTED RATE PER
NOS NAMES STARTED
RESIGNED WORKING DAYS $
WORKING ON
ON
CONTRACT
CONTRACT
Anthony
1 25.10.88 *P
AaronO
Rasheed
2 08.11.88 03.01.89P *
AckbarO
Shahid
3 30.12.88 03.01.89 * 123.20
Ackbar
Winston
4 02.12.88 05.12.88 08.12.88 123.20
Acosta
Felipe
5 09.12.88 12.12.88 17.01.89
Adams
Errol
6 31.10.88 *P * 119.84
AlbertO
Peter
7 29.11.88 05.12.88P 05.12.88 115.12
Alexander
Curtis
8 09.12.88 12.12.88 17.01.89 123.20
Alexander
Keith
9 09.12.88 12.12.88 12.12.88 123.20
Alexander
Kenneth
10 09.12.88 12.12.88 17.01.89
Alexis
Wayne
11 01.11.88 *P * 170.68
AlexisO
Winston
12 30.12.88 03.01.89 17.02.89 115.12
Alexis
13 Haroon Ali 16.12.88 01.01.89 26.01.89 123.20
14 Eyoub Ali 25.11.88 28.11.88P 25.11.88 116.60
15 Anthony Ali 30.11.88 01.12.88P 19.01.89 123.20
16 Sykul Ali 29.11.88 05.12.88P 17.02.89
17 Sharon AliO 21.11.88 *P * 115.12
St. Clair
18 02.12.88 05.12.88 18.01.89 123.20
Allen
Bernard
19 16.12.88 19.12.88 23.01.89 123.20
Allen
20 Derrick Allen 25.11.88 28.11.88P 28.11.88
Carl
21 04.11.88 *P *
AlleyneO
22 Henry Andall 09.12.88 12.12.88 17.01.89 95.60
Hamilton
23 31.10.88 *P * 123.20
AndrewsO
Ramesh
24 09.12.88 12.12.88 * 132.98
Angad
Oliver
25 09.12.88 12.12.88 12.12.88 115.12
Applewhite
26 Steve Archer 09.12.88 12.12.88 23.01.89 115.12
Glen
Balgobin
27 30.12.88 03.01.89 25.01.89 123.20
Derek
Armstrong
Kelvin
28 09.12.88 12.12.88 18.01.89 116.60
Baghan
Trevor
29 02.12.88 05.12.88 05.12.88 115.12
Bailey
Norman
30 02.12.88 19.12.88 05.12.88 123.20
Bailey
Glen
31 16.12.88 01.12.88P 19.12.88 132.72
Balgobin
Donald
32 25.11.88 01.12.88P 01.12.88 116.60
Ballantyne
Murray
33 12.12.88 12.12.88 17.01.89 115.12
Barrow
Rudolph
34 30.12.88 03.01.89 10.02.89 123.20
Bartholomew
Yolande
35 30.12.88 03.01.89 20.02.89 116.60
Batson
36 Leo Bedlow 25.11.88 28.11.88P 06.12.88 123.20
37 Colman Belle 30.12.88 03.01.89 03.02.89 141.32
Darryl
38 30.12.88 03.01.89 26.01.89 132.98
Benjamin
Jemma
39 22.12.88 22.12.88 16.02.89 95.60
Benny
Anthony
40 30.12.88 03.01.89 17.02.89 123.20
Bourne
Anthony
41 09.12.88 12.12.88 05.12.89 123.20
Bousigard
Anthony
42 02.12.88 05.12.88 *
Bradshaw
Jubutt
43 09.12.88 12.12.88 18.01.89 119.84
Brathwaite
Steve
44 24.11.88 25.11.88P 25.11.88 123.20
Braithwaite
Ethan
45 23.11.88 24.11.88P 28.11.88 123.20
Brewster
DATE
ACTUALLY DATE
DATE STARTED ACTUALLY RAT PER
NOS NAMES
RESIGNED WORKING SIGNED DAY $
ON CONTRACT
CONTRACT
Pando
46 02.12.88 05.12.88 05.12.88 123.20
Bridgelal
Carlton
47 09.12.88 12.12.88 26.01.89 119.84
Brown
Anthony
48 12.12.88 12.12.88 23.01.89 123.20
Brown
Fizir
49 09.12.88 * *
Buckreedan
50 Ann Bullen 09.12.88 12.12.88 16.01.89 115.12
51 Earl Cadogan 02.12.88 05.12.88 05.12.88 123.20
52 Andy Calliste 02.12.88 05.12.88 18.01.89 123.20
53 Peter Calliste 16.12.88 19.12.88 18.01.89 123.20
Kenneth
54 09.12.88 12.12.88 18.01.89 132.72
Cambridge
Lennox
55 30.11.88 01.12.88P 19.01.89 116.60
Campbell
Aldwin
56 01.12.88 01.12.88P 01.12.88 123.20
Cardinez
Albert
57 09.12.88 12.12.88 24.01.89 123.20
Csatillo
Sylvester
58 25.11.88 28.11.88P 08.12.88 95.20
Cedeno
Mahadeo
59 30.12.88 03.01.89 17.02.89 132.72
Chadeesign
Stephen
60 16.12.88 19.12.88 18.01.89 95.60
Chaitu
Conrad
61 30.11.88 01.12.88P *
Chadree
62 Rex Chase 09.12.88 12.12.88 23.01.89 123.20
63 Harvey 30.12.88 03.01.89 24.01.89 116.60
Chester
Dexter
64 16.11.88 *P *
Corbie
Dayne
65 30.11.88 03.01.89P 17.02.89 116.60
Coutain
Mervyne
66 09.12.88 12.12.88 12.12.88 123.20
Coutain
Selwyn
67 30.11.88 01.12.88P 01.12.88 173.98
Coutain
Francis
68 23.06.89 23.06.89 N.A N.A
Coutou
Mark
69 30.12.88 03.01.89 20.02.89 116.60
Cronolin
Wayne
70 09.12.88 12.12.88 17.01.89 115.12
Crosby
Cecil
71 30.12.88 03.01.89 03.02.89 132.89
Cumberbatch
Patrick
72 02.12.88 05.12.88 17.01.89 95.60
Daniel
Enrique
73 02.12.88 05.12.88 05.12.88 170.68
Dasent
74 Garth David 09.12.88 12.12.08 17.01.89 123.20
Kissoonlal
75 09.12.88 12.12.88 18.01.89 115.12
Dindial
76 Hugh Dookie 16.12.88 19.12.88 20.01.89 132.72
Annette
77 02.12.88 05.12.88 03.12.88 115.12
Dookie
Harry
78 30.11.88 01.12.88P
Dookwah
Emmanuel
79 30.12.88 12.12.88P 18.01.89 132.89
Dover
Herman
80 09.12.88 12.12.88 17.01.89 123.20
Downer
Emmons
81 09.12.88 12.12.88 17.01.89 137.44
Edwards
Carlisle
82 26.10.88 *P *
EdwardsO
Marlon
83 02.12.88 05.12.88 18.01.89 123.20
Edwards
Uriah
84 09.12.88 12.12.88 23.01.89 115.12
Edwards
Michael
85 16.12.88 19.12.88 18.01.89 123.20
Edwards
86 June Eveyln 30.12.88 03.01.89 20.01.89 116.60
87 Paul Felician 30.12.88 03.01.89 24.01.89 132.98
Selwyn
88 09.12.88 12.12.88 17.01.89 123.20
Fermin
89 Denis Figaro 30.11.88 01.12.88P 01.02.89 116.60
DATE
ACTUALLY DATE
DATE STARTED ACTUALLY RATE PER
NOS NAMES
ON CONTRACT
CONTRACT
Donald
90 06.12.88 * *
Forteau
Arlene
91 02.12.88 05.12.88 05.12.88 115.12
Fournillier
Amber
92 02.12.88 05.12.88 05.12.88 115.12
Fournillier
Anthony
93 02.12.88 05.12.88 26.01.89 123.20
Francis
Lance
94 02.12.88 05.12.88 05.12.88 173.98
Francis
95 Errol Francis 09.12.88 12.12.88 23.01.89 132.72
96 Terry Francis 30.11.88 01.12.88P 17.02.89 132.89
Albert
97 02.12.88 05.12.88 05.12.88 123.20
Franco
Patrick
98 04.11.88 *P *
FullertonO
Robert
99 30.11.88 01.12.88P 05.12.88 116.60
Ganga
Frankie
100 16.12.88 19.12.88 02.02.89 132.24
Garcia
Edmund
101 08.11.88 *P *
GarciaO
102 Ray Garcia 02.12.88 05.12.88 16.01.89 108.00
Gregorio
103 30.12.88 03.01.89 10.02.89 132.89
Garcia
Harrison
104 12.12.88 12.12.88 17.01.89 115.12
Garcia
Ruthven
105 25.10.88 *P *
GarrickO
Albert
106 12.12.88 12.12.88 17.01.89 132.24
Gervais
107 Nigel Gibson 09.12.88 12.12.88 26.01.89 115.12
Samraj
108 09.12.88 12.12.88 17.01.89 115.12
Gildharry
Ricardo
109 25.11.88 28.11.88 05.12.88 123.20
Glasgow
Krishna
110 22.11.88 *P *
GoberdhanO
Russell
111 01.11.88 29.11.88 25.01.89 95.60
Gomez
Kent
112 30.11.88 01.12.88 23.01.89 173.98
Gonzalves
Christopher
113 30.11.88 01.12.88 26.01.89 170.68
Gonzales
Dexter
114 09.12.88 12.12.88 18.01.89 132.24
Goodridge
Rudolph
115 16.12.88 19.12.88 18.01.89 115.12
Gould
Arjoon
116 14.11.88 09.01.89P 02.02.89 154.81
GowandanO
Lynette
117 30.12.88 03.01.89 17.02.89 116.60
Graham
Herman
118 O 10.11.88 *P *
Granderson
Phillipa
119 09.12.88 12.12.88 17.12.88 115.12
Granger
Winston
120 03.11.88 21.11.88P 23.11.88 132.98
Grant
Alexander
121 02.12.88 05.12.88 05.12.88 123.20
Gray
Stephen
122 08.12.88 01.12.88P 16.01.89 132.89
Santao
Alexis
123 30.12.88 03.01.89 *
Guevarra
Berytine
124 09.12.88 12.12.88 17.01.89 115.12
Guevarra
Ignatius
125 17.11.88 18.11.88P 23.11.88 123.20
Guevarra
126 Robert Guy 30.11.88 01.12.88P 01.12.88 173.98
Vernon
127 16.12.88 19.12.88 20.01.89 123.20
Hamilton
Samaroo
128 02.12.88 05.12.88 17.01.89 132.24
Harrack
Horace
129 30.11.88 01.12.88P 24.01.89 132.98
Harrison
Ramsaran
130 06.01.89 01.09.89 23.01.89 115.12
Harryrarn
Elroy
131 02.12.88 05.12.88 17.01.89 119.84
Haywood
Latchmine
132 12.12.88 12.12.88 25.01.89 95.60
Heetai
DATE
ACTUALLY DATE
NOS NAME
ON CONTRACT
CONTRACT
113 Denys Henry 01.12.88 01.12.88P 24.01.89 116.60
Anthony
134 31.10.88 *P *
HenryO
Eversley
135 02.12.88 05.12.88 05.12.88 123.20
Henry
Anthony
136 02.12.88 05.12.88 17.01.89 123.20
Hinds
Wendell
137 30.12.88 03.01.89 25.01.89 116.60
Hislop
138 David Hodge 09.12.88 12.12.88 *
139 Keith Holder 09.12,88 12.12.88 17.01.89 123.20

Mervyn
140 09.12.88 12.12.88 25.01.89 115.12
Hoping
141 Keith Howell 30.12.88 03.01.89 24.01.89 116.60
Lana
142 30.12.88 * *
Huggins
Francis
143 16.12.88 19.12.88 25.01.89 123.20
Hutchinson
144 Gary Inniss 30.12.88 03.01.89 18.01.89 116.60
145 Michael Issac 09.12.88 12.12.88 18.01.89 123.20
146 Irvin Issac 02.12.88 05.12.88 16.01.89 123.20
147 David Jack 16.12.88 19.12.88 18.01.89 123.20

Cletus
148 01.12.88 12.88P 05.12.88 115.12
Jackman
Kallicharran
149 08.11.88 *P *
JagdeoO
Deonarine
150 30.12.88 03.01.88 10.01.89 141.43
Jaimungal
Rachael
151 30.12.88 03.41.89 23.01.89 115.12
James
152 Julien James 30.12.88 03.01.89 17.02.89 155.36
153 Oliver James 02.12.88 05.12.88 05.12.88 123.20
154 Wade Jobe 02.12.88 12.12.88 18.01.89 123.20

Anthony
155 02.12.88 05.12.88 05.12.88 132.72
Jobe
156 Issac John 09.12.88 12.12.88 18.01.89 123.20
157 Louis John 31.10.88 28.11.88P 08.12.88 123.20
158 Garth John 30.12.88 03.01.89 17.02.89 170.68

Lawrence
159 31.10.88 16.11.88P 23.11.88 154.81
John
Yvonne
160 31.10.88 *P *
JohnO
Herbert
161 14.11.88 *P *
JohnO
162 George Jones 30.12.88 03.01.89 24.01.89 116.60
163 Donald Jones 30.12.88 03.01.89 17.02.89 132.72

Anthony
164 22.11.88 23.11.88P 25.11.88 119.84
Joseph
David
165 01.11.88 *P *
JosephO
166 Roy Joseph 16.12.88 19.12.88 19.01.89 115.12
Garfield
167 Keith Joseph 30.12.88 03.01.89 07.02.89 132.98 168 30.12.88
Joseph
Ann Marie
170 09.12.88 12.12.88 12.12.88 115.12
Kelly
Karl
171 02.12.88 05.12.88 17.01.89 115.12
Kennedy
172 Adrian Khan 30.12.88 03.01.89 08,02.89 123.20
173 Edward King 30.12.88 03.01.89 20.01.89 132.72
Michael
174 02.12.88 05.12.88 18.01.89 115.12
Knights
NOS NAMES DATE DATE DATE RATE PER
RESIGNED ACTUALLY ACTUALLY DAY $
STARTED SIGNED
WORKING CONTRACT
ON
CONTRACT
Blaise La
175 09.12.88 12.12 88 17.01.89 123.20
Croix
Terrence La
176 30.12.88 03.01.89 17.02.89 141.43
Roche
Sanka
177 25.11.88 25.11.88P 08.12.88 123.20
Lalchan
Stephenson
178 30.11.88 01.12.88P N.A.
Lalla
Romanus
179 02.12.88 05.12.88 24.01.89 95.60
Leela
180 Edme Legall 02.12.88 05.12.88 05.12.88 132.72
181 Harold Leslie 30.11.88 01.12.88P 20.02.89 154.81
182 John Lewis 21.12.88 03.01.89 20.02.89 116.60
Aldwin
183 30.11.88 01.12.88P 16.01.89 173.98
Lewis
Anthony
184 30.12.88 09.01.89 02.02.89 173.98
Licoiish
185 Cyril Lopez 09.12.88 12.12.88 19.01.39 123.20
Francis
186 12.12.88 12.12.88 17.01.89 132.72
Lopez
Sooklal
187 30.12.88 03.01.89 02.02.89 170.68
Lubin
Clive
188 30.11.88 01.12.88P 17.02.89 132.89
Lumpress
189 Ron Mader 09.01.89 09.01.89 25.01.89 115.12
Seecharan
190 02.12.88 05.12.88 05.12.88 123.20
Mahadeo
Deonarine
191 14.11.88 *P *
Maharaj
Trevor
192 16.12.88 19.12.88 20.02.89 123.20
Marcelle
Ronald
193 02.12.88 09.12.88 09.12.88 123.20
Marrisheau
194 Eric Mason 09.12,88 12.12.88 17.01.89 123.20
Rupert
195 29.11.88 05.12.88P 01.12.88 123.20
Mazalie
Colin Mc
196 15.12.88 09.12.88 19.12.88 132.72
Donald
Fred Mc
197 02.12.88 05.12.88 05.12.88 123.20
Intosh
Lincoln Mc
198 30.12.88 03.01.89 18.01.89 132.89
Intosh
199 Terrence Mc 12.12.88 03.01.89 20.01.89 84.08
Intosh
Russell Mc
200 30:11.88 01.12.88 P 18.01.89 132.98
Intyre
Carlyle Mc
201 09.12.88 12.12.88 18.01.89 123.20
Leod
Lennard Mc
202 30.11.88 01.12.88P 18.01.89 116.60
Milian
Ralph
203 12.12.88 12.12.88 18.01.89 123.20
Mendoza
Kenneth
204 09.12.88 12.12.88 18.01.89 123.20
Mendoza
Patrick
205 02.12.88 05.12.88 05.12.88 137.44
Mendoza
Ewald
206 01.12.88 01.12.88P 01.12.88 123.20
Mendoza
Ainsworth
207 31.10.88 *P *
MercerO
Joseph
208 30.12.88 03.01.89 24.01.89 116.60
Metivier
Domingo
209 30.12.88 03.01.89 25.01.89 170.68
Metivier
Nazir
210 25.10.88 *P *
Mohammed
Francisco
211 30.12.88 03.01.89 10.02.89 123.20
Mohammed
Nazimul
212 02.12.88 05.12.88 05.12.88 115.12
Mohammed
Herbert
213 02.12.88 05.12.88 05.12.88 123.20
Nichols
Ramdath
214 30.11.88 01.12.88 P 27.01.89 173.98
Mohepat
Wayne
215 22.11.88 23.11.88P 25.11.88 132.24
Moreno
Michael
216 02.12.88 05.12.88 05.12.88 123.20
Morris
Arnold
217 30.11.88 01.12.88P 19.01.89 116.60
Morris
218 Junior Morris 02.12.8805.12.88 05.12.88 123.20
DATE
ACTUALLY DATE
NO NAMES
ON CONTRACT
CONTRACT
Wayne
219 31.10.88 *P *
MottleyO
Charles
220 04.11 88 *P *
MudieO
Wayne
221 09.12.88 12.12.88 17.01.89 115.12
Murray
222 Gerald Myers 30.11.88 01.12.88P 18.01.89 116.60
Prabhudath
223 15.12.88 * *
Nandlal
Arjoon
224 02.12.88 05.12.88 05.12.88 123.20
Narine
225 Samuel Noel 25.11.88 28.11.88P 06.12.88 137.44
Anthony
226 02.12.88 05.12.88 18.01.89 115.12
Noreiga
227 Alan O'Brien 09.12.88 12.12.88 16.01.89 123.20
Raymond
02.12.88 05.12.88 05.12.88 173.98
Ollivierra
229 Hugh Orosco 09.12.88 12.12.88 25.01.89 95.60
230 Steve Patrick 30.12.88 03.01.89 18.01.89 173.98
231 Robert Payne 30.1 1.88 01.12.88P 17.02.89 170.68
Charles
232 23.11.88 24.11.88P 25.11.88 132.24
Pemberton
233 David Peters 16.06.89 N.A. N.A.
234 Adrian Peters 30.12.88 03.01.89 10.02.89 132.72
Ramkisson
235 30.12.88 03.01.88 30.02.89 123.20
Pharaj
Rupert
236 23.11.88 24.11.88P 25.11.88 95.90
Phillip
237 Junior Phillip 02.11.88 23.11.88P 24.11.88 123.20
Warren
238 26.10.88 *P *
PhillipO
Kenrick
239 02.12.88 05.12.88 05.12.88 119.84
Pierre
240 Patrick Pierre 02.12.88 05.12.88P 17.02.89 132.72
Andrew
241 25.11.88 28.11.88P 05.12.88 115.12
Pinto
Dhaniram
242 25.11.88 28.11.88P 08.12.88 115.12
Poonith
Sharma
243 16.11.88 17.11.88P 23.11.88 141.43
Ramdan
Roland
244 16.12.88 19.12.88 *
Ramdial
Kenny
245 16.12.88 19.12.88 18.01.89 123.20
Rampaul
Francis
246 12.12.88 12.12.88 17.02.89 137.44
Rampersad
Trevor
247 21.11.88 01.12.88P *
RaphaelO
Timothy
248 30.11.88 01.12.88P 19.01.89 116.60
Raphael
249 Curtis Rattan 09.12.88 12.12.88 17.01.89 132.24
Roger
250 17.11.88 *P *
RawlinsO
251Winmark
251 25102.12.88 25105.12.88 25118.01.89 251108.00
Richards
251Louis 251walked off
252 25109.12.88 25112.12.88
Richards job
Anthony
253 09.12.88 12.12.88 26.01.89 132.24
Rirnple
Kelvin
254 02.12.88 05.12.88 24.01.89 123.20
Roberts
Lenin
255 30.12.88 30.12.88 17.02.89 154.81
Roberts
Rhonda
256 30.12.88 03.01.89 24.01.89 116.60
Roberts Taut
Dave
257 02.12.88 05.12.88 18.01.89 115.12
Sahadeo
Lalchan
258 23.11.88 24.11.88P 25.11.88 115.12
Samaroo
Mooteelaf
259 25.11.88 28.11.88P 05.12.88 115.12
Samaroo
260 Ian Samuel 16.12.88 19.12.88 18.01.89 132.24
Hilton
261 02.12.88 05.12.88 05.12.88 115.12
Samuel
DATE
ACTUALLY DATE
NOS NAMES
ON CONTRACT
CONTRACT
Dexter
262 30.12.$8 03.01.89 17.02.89 115.12
Sanchoo
Stephen
263 30.11,88 01.12.88P 16.01.89 132.89
Santoo
Anslern
264 09.12.88 12.12.88 17.01.89 123.20
Scipio
Anthony
265 02.12.88 05.12.88P 05.12.88 123.20
Seaton
Boland
266 09.12.88 12.12.88 16.01.89 123.20
Seelal
Rudinath
267 30.12.88 03.01.89 10.02.89 123.20
Seepersad
Marion
268 30.12.8 03.01.89 17.02.89 132.98
Seerattan $
269 John Seow 30.11.88 01.12.88P 24.41.89 116.60
David
270 09.12.88 12.12.88 17.09.89 132.24
Sheppard
Keith
271 18.11.88 18.11.88P 23.11.88 132.24
Shockness
Kelvin
272 12.12.88 12.12.88 17.01.89 108.40
Sieunarine
Conrad
273 34.11.88 01.12.88P 17.02.89 132.89
Simmons
274 Clarie Simon 30.11.88 01.12.88P 01.12.88 173.98
Kenrick
275 30.12.88 03.01.89 03.01.89 115.12
Singh
Shudatt
276 02.12.88 05.12.88 19.01.89 123.20
Singh
Stokeley
277 42.12.88 45.12.88 45.12.88 115.12
Spencer
Robert
278 21.11.88 21.11.88P 23.11.88 123.20
Spencer
279 Ivan, Spring 09.12.88 12.12.88 17.01.89 132.72
Raymond St.
280 30.12.88 03.01.89 03.02.89 115.12
Clair
Lenora St.
281 09.12.88 12.12.88 17.01.89 115.12
Rose
282 John Stewart 30.12.88 03.01.88 23.01.89 123.20
Kester
283 18.11.88 21.11.88P 23.11.88 123.20
Strachan
Brian
284 30.11.88 41.12.88P 19.01.89 116.60
Superville
Rajindranath
285 30,12.88 03.01.89 17.02.89 116.60
Suruj
Henry
286 02.12.88 05.12.88 14.02.89 132.24
Sylvester
Ricky
287 21.12.88 03.01.89 24.01.89 116.60
Tangrie
Maria
288 02.12.88 05.12.88 17.01.89 115.12
Tavernier
Esther
289 28.02.89 41.03.89 28.02.89 115.12
Tavernier
Warner
290 30.12.88 43.01.89 10.42.89 132.89
Tavernier
Anthony
291 09.12.88 12.12.88 17.01.89 132.72
Taylor
Michael
292 25.14.88 *P *
TelesfordO
David
293 12.12.88 12.12.88 27.01.89 119.84
Thanoo
Michael
294 02.12.88 05.12.88 05.12.88 132.72
Thomas
295 Glen Thomas 12.12.88 12.12.88 18.01.89 123.20
David
296 30.12.88 03.01.89 19.01.89 141.43
Thomas
Richard
297 02.12.88 05.12.88 05.12.88 115.12
Thomas
298 Kirk Torres 09.12.88 12.12.88 17.01.89 123.26
Curven
299 02.12.88 05.12.88 08.02.89 132.72
Trinidad
Dennis
300 09.12.88 12.12.88 27.01.89 119.84
Tyson
301 Julia Vance 30.12.88 03.01.89 24.01.89 116.60
Marrian
302 28.11.88 *P *
VillaruelO
303 James Vire 01.12.88 01.12.88P 23.01.89 154.81
Roger
304 02.12.88 02.12.88 19.01.89 132.89
Wallace
DATE
ACTUALLY DATE
NOS NAMES
ON CONTRACT
CONTRACT
Michael
305 09.12.88 12.12.88 18.01.89 123.20
Waterman
Osmond
306 02.12.88 05.12.88 05.12.88 132.72
Wilkinson
Frederick
307 25.11.88 28.11.88P 08.12.88 132.72
Wilkinson
Juliana
308 09.12.88 12.12.88 12.12.88 115.12
Williams
Brandon
309 16.12.88 19.12.88 15.02.89 115.12
Williams
Robert
310 30.11.88 01.12.88P 01.12.88 173.98
Williams
Michael
311 30.11.88 05.12.88P 05.12.88 123.20
Wilson
312 Owen Wilson 02.12.88 05.12.88 17.01.89 115.12
313 June Wilson 12.12.88 12.12.88 17.01.89 115.12
Dexter
314 28.10.88 *P *
WoodleyO
315 Glen Collins 09.12.88 12.12.88 17.01.89 123.20
316 Hugh Davis 12.12.88 12.12.88 19.01.89 132.72
Sayeed
317 02.12.88 05.12.88 *
Mohammed
Joel
318 09.12.88 12.12.88 17.01.89 115.12
Nathaniel
Sherman
319 07.11.88 *P * *
Greene
Messiah testified further:
104
Shortly after Whiteway addressed the meeting of workers on 2nd December, 1988, workers came
forward to sign the printed letters of resignation. The printed letters of resignation, were in
existence prior to the meeting of 2nd December, 1988. He did not know who in the company
prepared the printed letter of resignation. The company provided workers with it but he did not
know where it came from. It was provided by his superiors. He had no discussions with anyone
about this letter before it was provided. It was provided to him and he gave it to the workers. He
gave no advice to his superiors about the printed letter of resignation. He handed out the
individual contracts of employment to workers. When he joined the department, the contract was
already in existence as a form. He checked the materials in the office and among others the
printed form of contract was found. It was discussed with his superiors, Michael Cooper, Fabien
Young, and FitzAlbert Rawlins. The discussion was on the details of the contract. The amount to
be paid to the workers was based on the classifications in the collective agreements, on the jobs
they were doing and the rate in the collective agreements. If they were getting $x per hour or by
the day, that is what they worked on. The company converted the hourly-rate to a daily rate
based on 8 hours per day. The basic hourly rate was multiplied by 8. He did not remember if cost
of living allowance was included in the daily rate. For the most part, the workers who signed the
contract performed the same duties which they performed prior to their resignations. For the
most part, there were no changes in their duties. By “for the most part”, he meant a person might
have been re-assigned to work in another area but it did not affect the pay he was getting prior to
his resignation. For instance, if he was in the paint shop he might have been assigned elsewhere.
He did not recall, however, whether there had been any changes in the actual work. Those
workers who had not resigned and continued to work were paid according to the rates in the
collective agreements.
105
Those who signed the individual contracts were paid according to the individual contracts. The
general procedure which was followed was that the workers resigned and then he told those who
came to him about the individual contract. He interviewed approximately half of those who had
resigned. When he interviewed them, he told them, firstly, that no one was able to force them to
sign the contract, but the circumstances were that they had resigned and if they wished to under
the contract they could do so. If the contract was not available for signing he would tell them so
and he would also tell them the fee they were to be paid which was to reflect the money they
were getting, that they were not going to lose anything. They would be getting the daily rate
stated in the contract, which was based on the basic rate in the collective agreement, plus the cost
of living allowance. He read out the clauses of the contract to the workers. The workers knew
that they would be working until March 1989 when all the units had been built out. If they did
not sign the contract they were not going to be employed with the company. Dookwah and Lalla
did not sign the contract and they were not allowed to continue to work. Those who signed
“duress letter” were also not allowed to work. The applicable figure for COLA was included in
the rate in the contract. He also told a worker Francis Couteau, that if he did not accept the
company's offer and a receiver was appointed, he might get nothing so that he would be worst
off if he did not accept the 50% offer.
106
The printed receipt was also a form document provided to the workers by the company for
signature when they received the 50% payment of severance pay. The amount inserted in the
receipt was 50% of the severance benefits due. He did not know the source of the printed receipt.
Senior management had given it to him. That was Mr. Cooper. He and Cooper had discuss the
document and agreed that it was to be used for persons who had resigned and got 50% of what
their severance entitlement would have been. The workers who resigned, resigned with the
knowledge and acceptance that they were going to get 50% of what their entitlement would had
been because the company told them that it could not afford to pay all their entitlement.
107
At the meeting of October 20th, 1988, the company changed its position and told the union that it
was prepared to accept all requests for voluntary retrenchment and that it would pay 50% (of
severance entitlement to those persons who came forward. That was the company's position on
20th October, 1988. The company also said at that meeting that it was not pursuing previous
proposals and that this was its new proposal. The union rejected this proposal and said that any
monies paid to workers would be considered as part-payment. The union proposed instead that
the company pay the workers 50% and that would be considered as part payment towards the full
amount of severance pay. The company did not accept that proposal of the union.
108
At the meeting of 30th September, 1988, Whiteway told the workers about the motor vehicle
industry. He told them the industry was in a decline, money was hard to come by. He gave
figures about money owed by the company but he did not recall the figures. He spoke of the
finances of the company and said that the automobile industry was declining. He spoke about,
the proposals of the company and about retrenchment.
109
The last meeting with the union was held on 20th October, 1988. Workers began resigning from
the end of October and throughout November. One hundred and five (105) workers resigned
prior to 2nd December, 1988. They were resigning on the same conditions as the persons who
resigned after 2nd December, 1988, that is, on the basis that they would get a sum of money that
was equal to or not less than 50% of what their severance benefits would have been if they had
been compulsorily retrenched. He was not aware that anybody got more than 50%. Those who
resigned after 2nd December, 1988 got amounts calculated in the same way as those who had
resigned after 2nd December, 1988. He was not aware that the company had spread any
information through the floor that they would get this 50%. All of those who came forward and
resigned in October/November 1988 were paid the 50%.
110
The meeting of 2nd December was intended to tell the workers about the situation in the plant and
everything that was going on at the time about the industry, about the finances of the company,
about the relationship with the union and the discussions with the union. The information with
regard to the automobile industry and the finances had been given at the meeting with the
workers on 30th September, 1988 but this was a follow-up. The meeting of 2nd December, 1988
was not called for the purpose of encouraging workers to sign up for the 50%. He could not say
what was the purpose of the meeting. At that stage, the company had a fixed number of units to
build out and at the end of that period there was the possibility of retrenchment. He could not say
why the company took the decision to pay out the 50%.
(c) FITZALBERT RAWLINS testified inter alia

111
He was a director of the company and a member of the company's Board of Directors. He was
the plant engineer of the company in the year 1988 and he continued to hold that position until
October 1989. He remembered having a discussion with Francis Couteau at the plant on 12th
January, 1989. While he was speaking to someone, Couteau passed by him. Couteau then said to
him “How come management forcing workers to take this 50% and Whiteway said in the box
yesterday that the company continuing as usual?” His reply to Couteau was that he did not know
that management was forcing workers to take any 50% or take the 50% offer. He did not recall
exactly what took place after that. Couteau, however, said to him, “Anyhow, that was not for me
because I will see to it that I get my full severance.” He said even if he had to go to the Industrial
Court to get it he will see that he gets his full severance. He said to Couteau that he would not
necessarily get 50% or full severance, he could not get anything and he could possibly die before
he got that. At that stage, he started to explain to him what happened to workers who worked in
Amalgamated Industries where some workers got severance and the good workers got nothing at
all. After that he explained to him generally with his limited knowledge what receivership was
about and then the conversation came to an end.
112
He never told Couteau “I thought you were supposed to come to see me”. He did not hear, him
say “I did not know for what”. Couteau did not tell him that it was in connection wit signing up.
Couteau did not ask him anything about signing up for anything. He did not have a conversation
with Couteau on that day about signing up any contract letter with the company. He did not tell
Couteau that he was giving trouble. He did not tell Couteau that if he did not accept the
company's offer he would see that Couteau got fired. He did not tell Couteau that even if he went
to the Industrial Court after he got fired he will be dead before he got anything.
113
He did not tell Couteau that if he got anything it was $5,000.00 the company paying. He knew
that Couteau wrote a letter to the company. He had seen a copy of Couteau's letter which was
dated 12th January, 1989. There were allegations made against him, Rawlins, in that letter. The
allegations in Couteau's letter were false. The letter was brought to his attention about a day or
two after the incident with Couteau had taken place. He discussed the letter with both Massiah
and Cooper. He had no discussion with Cauteau about the letter.
114
As far as he was aware after Couteau wrote the letter, Couteau continued working with the
company. He had a very good relationship with Couteau before this time. He was in charge of
security at the plant. On 19th January, 1989 at about 8:15 a.m. he saw Lalla in his office. He had
come in to work at about 8:00 a.m. on that day. The guard at the main gate informed him that
Lalla and Harry Dookwah were trying to enter the plant but the guard had instructions not to
allow them in. He asked the guard to send Lalla and Dookwah to his office. When they came in,
he enquired of them what was their problem. They complained that they had been prevented
from working because they had not signed the individual contract. He asked both of them what
was the problem with signing the contract. Lalla said he was not signing the contract and
Dookwah said that he had been advised by the union not to sign the contract. He told them
“Gentlemen, I have no problem: you cannot work without a contract and would you please go
back to the gate.” That was all that transpired.
115
On 21st January, 1989, at around 4.00 p.m. he met Clive Lumpress, Cadwell Simmons, Robert
Leslie and Terry Francis. He met with them as head of the quality control department. Personnel
department had told him that these persons had submitted a letter to the company in which they
had stated that they were not in agreement with the individual contract and that they were
working under duress (“the duress letter”). As far as he knew, they had submitted one letter each
to the Personnel department. He had seen one of the letters and he had asked the superintendent
of the department, Nizam Mohammed, to get these gentlemen to come to his office. When they
came to his office, he told them that he had received letters from the Personnel department in
which they said about working under duress and as such would they please rectify their situation.
He got no response from them and he told them that he could not keep them here and gave them
the salary for which they had worked up to that time. He asked if there were any questions and
they asked none and they left. These persons all worked in the quality control department. The
19th January, 1989 was the only time he had a conversation with Lalla concerning his continuing
to work at the plant.
116
Under cross examination, Rawlins stated:
117
The workers were asked to sign a contract. Lalla and Dookwah refused to sign the contract they
had been asked to sign. When he spoke to Lalla and Dookwah, he understood that they would
not work without signing the contract. Massiah had told him this. He could not answer whether
that was the policy of the company at the time. He could not remember whether the question of
what to do about persons who did not sign individual contracts was discussed at management
level. It may have been discussed but he could not remember. There were several discussions
within the company at which he was present at which this question was discussed. The plant
manager, Massiah, the industrial relations officer, Young, the financial director and other
members of management were present at such discussions. There were several such discussions.
The discussions concerned surrounded the whole aspect of the exercise at hand.
118
The individual contract was discussed at the very last meeting. He could not remember exactly
when it was discussed. He could not remember the date of the first meeting nor could he
remember how many meetings had been held. But the individual contract was discussed. It was
said at the meetings that workers should sign the individual contract if they wished to continue to
work with the company. Nothing was said at the meetings about the application of the collective
agreements. He understood that when workers resigned the collective agreements did not apply.
This was his understanding. It was not discussed but he had asked himself the question about the
collective agreement but he did not raise it with his colleagues. His understanding was that after
resignation, the collective agreement was not to apply but the individual contract would apply in
its place.
119
If the workers had withdrawn the duress letters, they would have been allowed to work. If they
had not written that letter that is the situation that would exist. If there had been agreement with
the terms of the contract it would have been fairly normal for them to continue work but signing
a duress letter was not normal. When he told them “Please rectify the situation”, he meant they
should withdraw the letters of duress.
120
There was a possibility of the appointment of a receiver at the company. He was in effect telling
Couteau that what had happened at Amalgamated could possibly happen to him. On 12th January,
1989, when he spoke to Couteau, the appointment of a receiver for the company was a
possibility.
THE APPLICABLE LAW AND PRINCIPLES OF GOOD INDUSTRIAL RELATIONS

PRACTICE:
121
The Court of Appeal has held that an industrial relations offence is a criminal offence but that the
applicable standard of proof is not proof beyond a reasonable doubt, which is the required
standard of proof in criminal cases generally, but proof on the balance of probabilities, which is
the applicable standard of proof in civil cases. See C. A. 106/86 between Caribbean Tyre
Company Limited and Oilfields Workers' Trade Union.
122
The burden of proof in any criminal case lies on the prosecution and it is the responsibility of the
prosecution to establish all the necessary ingredients of an offence. In these applications,
therefore, the onus of establishing the required ingredients of the several applications before the
court is on the union, which has made the applications to the court and the union must prove the
charges on the balance of probabilities.
123
In arriving at its determination, however, the court is entitled to take into account the totality of
the evidence before it whether adduced by the union or the company, including the written
evidence of the parties.
124
An industrial relations offence is a creature of the Act and s. 10 (3) of the Act commands the
court inter alia to
“act in accordance with equity, good conscience and the substantial merits of the case before it,
having regard to the principles and practices of good industrial relations.”
125
S. 34 (I) provides
“Subject to this Act, the (Registration, Recognition and Certification) Board shall certify as the
recognized majority union that trade union which it is satisfied has, on the relevant date, more
than fifty per cent of the workers comprised in the appropriate bargaining unit as members in
good standing.”
126
S. 35 (a) stipulates (in se far as material)
“Where a trade union is certified under this part as the recognized majority union - such trade
union …shall have exclusive authority to bargain collectively on behalf of workers in the
bargaining unit and to bind them by a collective agreement so long as the certification remains in
force.”
127
S. 40 ordains
 “(1) Where a trade union obtains certification of recognition for workers

comprised in a bargaining unit in accordance with this part, the employer shall
recognize that trade union as the recognized majority union; and the recognized
majority union and employer, shall subject to this Act, in good faith, treat and
enter into negotiations with each other for the purposes of collective bargaining.
 (2) A recognized majority union or an employer that fails to comply with this
section is guilty of an industrial relations offence and liable to a fine of four
thousand dollars.”
128
S.2 (1) defines “collective bargaining” as meaning
“treating and negotiating with a view to the conclusion of a collective agreement or the revision
or renewal thereof or the resolution of disputes.”
129
The words “treating” and “negotiating” are to be given their natural meanings. According to the
Shorter Oxford Dictionary, one of the meanings ascribed to the word “treat” is “negotiate terms
(with person) and one of the meanings ascribed to the word “negotiate” is “confer (with another)
with view to compromise or agreement.”
130
The cumulative effect of the law as expressed in s. 35 and 40 is that the employer is obligated to
treat and enter into negotiations in good faith only with the recognized majority union and not
with the workers directly. This requirement is based on the principles of good industrial relations
practice. The entire framework of collective bargaining rests on this fundamental principle which
was founded on the acceptance of majority rule in industrial relations and which was intended to
prevent chaos and confusion and introduce stability in the work place.
131
S. 47 ordains
 “(1) The terms and conditions of a collective agreement registered under s. 46
(referred to in this part as a “registered agreement') shall be binding on the parties
thereto and shall be directly enforceable, but only in the court.
 (2) The terms and conditions of a registered agreement shall, where applicable, be
deemed to be terms and conditions of the individual contract of employment of
the workers comprised from time to time in the bargaining unit to which the
registered agreement relates.
 (3) Registration of a collective agreement shall be deemed to constitute actual
notice of all the provisions thereof.
 (4) The foregoing provisions of this section shall have effect notwithstanding s. 6
of the Trade Union Act, or of any other rule of law to the contrary.”
132
In C. A. between Texaco Trinidad, Inc. and Oilfields Workers' Trade Union (1973) 22 W.I.R.
516, the Court of Appeal held inter alia that the terms of a registered industrial agreement (as a
collective agreement was called under the Industrial Stabilization Act, 1965, the Act's
predecessor) are intended to operate as a statutory code in relation to the rights and obligations of
the parties thereunder, and, accordingly, cannot he varied during its continuance. This decision
of the Court of Appeal must now be read subject to the provisions of s.47 and the provisions for
amendment of a, collective agreement contained in s. 50 of the Act. In my opinion, however, the
principles enunciated in that case concerning the binding nature of a registered industrial
agreement continue to be valid in the case of registered collective agreements registered under
the Act.
133
By s 47(2), the terms and conditions of a registered collective agreement, where applicable, are
deemed to be terms and conditions of the individual contracts of employment and the workers
comprised from time to time in the bargaining unit to which the registered agreement relates.
134
The court discussed the effect of s. 47(2) in T. D. 32/75 between Texaco Trinidad Inc. and
Oilfields Workers' Trade Union. In that judgment, the court explained that upon the expiry of a
registered collective agreement, the contractual relationship between the company and the
workers concerned continue to rest in the individual contracts of employment of the workers and
that the individual contracts of employment do not come to an end with the termination of the
collective agreement. The court stated inter alia:
“On the termination of a registered collective agreement, the recognized union … retains its right
in industrial relations to protect the individual members of the bargaining unit against an
infringement of the rights and benefits to which they remain entitled and retains the exclusive
right to seek to have those terms and conditions altered. The employer, on the other hand, is not
entitle to alter those terms and conditions of employment unilaterally but must do so by
collective bargaining in good faith in accordance with the provisions of the terminated agreement
and the subsequent procedure laid down by the Act.”
135
In C. A. 106/86 between Caribbean Tyre Company Limited and Oilfields Workers' Trade Union
(supra), the Court of Appeal agreed that the law concerning the continuation in force of terms
contained in a collective agreement after expiry was lucidly and correctly set out in T. D, 32/75
(supra).
136
S.51(1) enables an employer to report a trade dispute, not otherwise determined of resolved, to
the Minister of Labour.
137
S.63(1) states (in so far as material):
“Where any industrial action is taken otherwise than in conformity with this Part -
(a) an employer taking such action is guilty of an industrial relations offence and, in addition to
any other penalty under subsection (2), remains liable for the unpaid wages, salary and other
remuneration that a worker may reasonably be expected to obtain in respect of any period during
which the lockout action took place; and a worker may recover such wages, salary or other
remuneration summarily as a civil debt, without prejudice to any other manner in which
proceedings may be taken for the recovery thereof;”
138
By s.63(2), an employer who is guilty of taking industrial action otherwise than in conformity
with Part V of the Act is liable to a fine of twenty thousand dollars.
139
Many of the legal principles involved in a lockout were discussed at length in C. A. 106/86
(supra)
140
In its judgment in I.R. Os. 2-17/87 between National Union of Government and Federated et al
and Chief Personnel Officer et al, the court stated inter alia:
“A party wishing to make changes in existing terms and conditions of employment must
therefore do so by submitting proposals for … a collective agreement. By s.44(1), he must also
submit these proposals to the minister. Thus begins the procedure which the Act requires and
s.40(1) enforces, in relation to terms of employment. The parties then proceed to bargain as
defined in s.2 over the proposals. If agreement is reached … the collective agreement is
transmitted under s.44 (2) to the minister who must by s.45 submit it to the court for registration.
If agreement is not reached the change cannot be put into effect until a settlement has been
reached under the further stages of the procedure laid down in the Act. These provide for the
matters to be reported to the minister under s.51(1) of the Act. He is then required under s.53(1)
(3) to take steps to procure a settlement through conciliation within fourteen days or such further
time as the parties may agree in writing to give him. By s.53 (5) the obligation to bargain in good
faith continues during conciliation under the minister.
If the minister fails to procure a settlement within the time allowed for him to do so the Act
provides two methods of procedure for a final determination. The minister refers it to the court
for determination if both parties request him so to do, or alternatively, the parties may elect to
have it determined by strike or lock-out action.”
141
The trade dispute concerning the negotiation of the first and second collective agreements were
pending before the court at the time the union rejected the company's proposals on October 20th,
1988. There was no provision in the previous collective agreements for voluntary retrenchment
and there was no dispute about the provisions of the collective agreements relating to
compulsory retrenchment or the method of payment therefor. Compulsory retrenchment was the
only method of retrenchment recognized by the collective agreements. It formed part of the
contracts of employment of the workers in the bargaining units and the provision was binding on
the company and the union. The proposal for voluntary retrenchment was a new proposal made
to the union by the company and since it was made after the trade disputes concerning the first
and second collective agreements had been reported to the minister and the minister had
completed conciliation on the reports, it could not form part of those trade disputes.
142
There is a provision, however, in s.49 of the Act for supplemental agreements s.49 provides:
 “(1) Notwithstanding section 43(1), but subject to subsection (2), a recognized

majority union and an employer may enter into an agreement supplementary to a
collective agreement (herein called a “supplemental agreement”) to make
provision for matters not dealt with in the existing provisions of the collective
agreement.
 (2) Section 43(5) and sections 44 and 48 (inclusive) shall apply to any
supplemental agreement entered into under this section.
 (3) Any supplemental agreement entered into under this section and registered
under section shall be read and construed as one with the collective agreement to
which it relates and shall have the same effect in all respects as that collective
agreement.”
143
This is not the first time that the introduction of a voluntary retrenchment plan has be discussed
by the court. In its judgment in I.R.O. 16/89 between Transport and Industrial Workers' Union
and Public Transport Service Corporation, the court condemned the employer; for inviting
workers to opt for voluntary severance without discussing the terms of or the manner in which
such voluntary severance could take place with the workers' exclusive representataive. The Court
said in that case
“In our opinion, and we so hold, having regard to the principles and practices of good industrial
relations that the corporation attempted to undermine the exclusive authority of the recognized
majority union by addressing the circular letter of 6th December, 1988 to the workers. This was
not a legitimate attempt by the corporation to communicate with its workers such as we found in
I.R.O. 38/86 between Oilfields Workers Trade Union and Federation Chemicals Limited … In
our judgment, it not only informed the workers that the provisions of the Strategic Plan was in
the process of implementation but also that they were free to exercise their option for voluntary
severance when the corporation had not discussed the Voluntary Severance Plan, as it was
obligated to do, with the workers' exclusive bargaining agent.”
144
The court accordingly found that, contrary to the principles and practices of good industrial
relations, the corporation attempted to treat directly with the workers by issuing its circular letter
dated 6th December, 1988 to them.
145
In I.R.O. 42/89 between university and Affiliated Workers' Union and University of the West
Indies and others, the court stated inter alia:
“The university appears to us to have been misguided in its approach to the proposed Voluntary
Redundancy Programme. The university and the union were signatories to two registered
collective agreements for the workers in the bargaining units. These collective agreements
contained provisions relating to redundancy and the payment of severance benefits … It is
regrettable that the university treated the requests of the union for information on its voluntary
retrenchment programme in so cavalier a fashion. It is even more regrettable that having failed or
refused to supply relevant information to the union, it decided to embark on the unilateral
implementation of its voluntary redundancy programme. In so doing the university fell into gray
error. If the union had not filed its complaint herein, it is possible that the university might have
compounded its error by committing an industrial relations offence in contravention of s.40 of
the Act. The timely filing of this complaint by the union effectively stopped the university from
the commission of the offence.”
146
In his article “‘the duty to bargain in good faith” 71 Harvard Law Review, 1401, at page: 1412-
13, Professor Cox explained the reason for the introduction of the concept of “good faith in
collective bargaining in the United States. He said (inter alia):
“It was not enough for the law to compel the parties to meet and treat without passing judgment
upon the quality of the negotiations. The bargaining status of a union can be destroyed by going
through the motions of negotiating almost as easily as by bluntly withholding recognition … The
concept of “good faith” was brought into the law of collective bargaining as a solution to this
problem. One who merely went through the outward motions knowing that they were a sham
could be said to lack good faith and held to violate section 8(5) ( of the National Labour
Relations Act) despite the formal appearance”.
147
The Act fully preserves the freedom of employers and trade unions to bargain collectively but it
does not give the right to an employer to unilaterally implement changes in workers' terms and
conditions of employment without observing the stipulations of the Act. The Act contains the
procedure which must be followed for the resolution of disputes between employers and trade
unions.
148
In A. 4/78 between Lake Asphalt Company of Trinidad and Tobago (1978) Limited and
Contractors and General Workers' Union and Trinidad Lake Asphalt Company Limited, the
Court explained the procedure which must be followed where there has been a failure by the
parties to reach agreement after collective bargaining. The court stated:
“The individual contrasts of employment do not expire with the expiry of the (collective
agreement), and the expired (collective agreement) stands to determine what their terms are.
Moreover, those terms cannot be changed by the employer by individual treaty with the workers.
S. 40 of the Act requires that for this purpose (the employer) must treat with the recognised
majority union. He must do so in accordance with the procedural provisions of the agreement. If
no agreement is reached thereby he must proceed according to the subsequent procedures laid
down by the Act. If these also fail to produce agreement the Act provides that the matter can be
settled thereafter in only one of two ways - either as the result of strike or lockout action or
alternatively by a determination made by the court.”
149
The principles of goad industrial relations practice do not countenance the unilateral
implementation of terms and conditions of employment. The parties must agree on terms and
conditions of employment. The parties must agree on terms and conditions of employment
before they can be implemented. If agreement has not been reached then there can be no
unilateral implementation of such terms and conditions; the parties must observe the stipulations
of the Act for the resolution of any disagreements.
150
A unilateral implementation of terms and conditions of employment undermines the entire fabric
of the principles of good industrial relations practice and an employer who unilaterally
implements terms and conditions of employment is guilty of the industrial relations offence of
failing to bargain in good faith.
151
In Ready Mixed Concrete (South East) Ltd v. Minister of Pensions and National Insurance
(1968) 1 All E.R. 433 at page 439, Mc.Kenna, J. considered the indicia of a contract of service
and said inter alia:
“A contract of service exists if the following three conditions are fulfilled;
 (i) the servant agrees that in consideration of a wage or other remuneration he will
provide his own work and skill in the performance of some service for his master.
 (ii) he agrees, expressly or impliedly, that in the performance of that service he
will be subject to the other's control in a sufficient degree to make that other
master.
 (iii) the other provisions of the contract are consistent with its being a contract of
service …
There must be a wage or other remuneration … the servant must be obliged to provide his own
work and skill. Freedom to do a job either by one's own hands or by another's is inconsistent with
contract of service … Control includes the power of deciding the thing to be done, the way in
which it shall be done. All these aspects of control must be considered in deciding whether the
right exist in a sufficient degree to make one party the master and the other his servant. The right
need not be unrestricted … To find where the right resides one must look first to the express
terms of the contract, and if they deal fully with the matter one may look no further. If the
contract does no expressly provide which party shall have the right, the question must be
answered in the ordinary way by implication.”
152
In deciding whether a contract of service exists, a court must look at the realities of the
relationship. It is not necessarily bound by the label or description which the parties themselves
give to the relationship. It is entitled to look at the surrounding facts and come to its own
conclusion on the facts.
ADDITIONAL FINDINGS OF FACT:

153
In addition to the background facts ( ante), I find the following additional facts on the evidence:
 (1) In the year 1988, the company was obligated by the applicable collective agreements
to pay severance benefits to retrenched workers in accordance with the provisions of the
said collective agreements.
 (2) The company had entered into negotiations with the union for new collective
agreements for the hourly and monthly workers employed by the company.
 (3) The above negotiations had broken down and trade disputes concerning them were
pending before the court.
 (4) The company and the union had signed memoranda of agreement in which they had
agreed that there would be no change to the wording of the agreed articles ( ante) in the
new collective agreements. These memoranda of agreement were duly entered as orders
of the court pursuant to s. 58 (2) of the Act.
 (5) The agreed articles, having been incorporated in the 1983 collective agreements,
continued to be effective after the expiry of the 1983 collective agreements as part of the
terms and conditions of employment of the workers in the bargaining units.
 (6) While the trade disputes were pending before the court, the company realized that it
had only 1700 C.K.D. units to be assembled and after their assembly there were no
further aspects for keeping the workers in employment and the assembly plant
operational beyond March 1989. At that time the company was in serious financial
difficulties.
 (7) The company made certain proposals to the union by letter dated 22nd September,
1988. The company's proposals to the union included one for the voluntary retrenchment
of 173 workers in the bargaining units but the union rejected the company's proposals.
 (8) The company thereafter informed the union that
o (a) it had withdrawn its proposals for the voluntary retrenchment of 173 workers
and
o (b) it would proceed to offer voluntary redundancy to all its workers.
 (9) Without following the procedures stipulated in the Act for the resolution of the matter
and, notwithstanding its obligations under the collective agreements, the company
proceeded to unilaterally implement its voluntary retrenchment programme.
 (10) The company held a meeting with its workers on 2nd December, 1988. At that
meeting Mr. Dulal-Whiteway, the company's managing director addressed the workers.
 (11) The Meeting of 2nd December 1988:
The Company called the meeting. The workers of the bargaining units attended. The
meeting began at approximately 3:00 p.m. The company called the meeting at short
notice in the company's canteen. When the meeting was held, the negotiations for the
collective agreements had broken down and the union had reported trade disputes
concerning the negotiations to the Minister of Labour. Whiteway was the main speaker at
the meeting. Whiteway told the workers inter alia:
o (i) The company had made a number of proposals to the union and the union had
rejected all of the company's proposals.
o (ii) The company had withdrawn all the proposals it had made to the union and
the negotiations had broken down.
o (iii) He (Whiteway) was personally very disappointed that the union had not
accepted any of the company's proposals.
o (iv) Nevertheless, the $5M which the company had obtained was still available
for workers who left the company's employment since the company was
committed to making sure that the workers got something.
o (v) The company had already started giving everyone who resigned some
payment and this payment was available to everyone on a particular formula.
o (vi) If he were in the workers' position, he would know what to do. He was not
forcing anyone into any sort of situation but he was giving advice to the workers
in the context that the company was on the verge of a financial disaster, its
management was trying to ensure that its workers got some sort of benefit,
bearing in mind that if the company went into receivership, under the law, the
workers would only get severance benefits after secured creditors had been
satisfied.
o (vii) The workers should discuss with their supervisor, plant managers or
industrial relations officers what sort of sums would be available to them if they
left the service of the company.
o (viii) The union had demanded that the workers return to work on a five-day basis
but the company had at that time only 1700 vehicles to be completed and he was
unable to forecast what was likely to happen after the 1700 vehicles had been
assembled.
o (ix) The company owed $32, million to a consortium of banks and $7 million in
overdraft and the company had been unable to devise a plan far payment which
was acceptable to the banks. In the circumstances; it was very possible that the
banks would put the company into receivership because the company was facing a
loss of $16 million, unable to meet its commitment and had no more vehicles after
March 1989.
o (x) The banks had indicated to the company that they may wish to crystallize their
security.
o (xi) The company was “one foot away from a receiver.”
o (xii) A receiver was “on the company's doorsteps.”
o (xiii) In the likely event of a receiver being appointed, the secured creditor had to
be satisfied before the unsecured creditor and severance pay ranked behind the
secured creditor and only after the $39 million had been realized by the receiver
would there be any money available for the payment of severance benefits.
o (xiv) A number of companies had gone into receivership. Amalgamated Industries
was an example of a company which had gone into receivership. Amalgamated
Industries was the same type of industry as the company and had the same kind of
financial problems as the company and the union was in a better position to let the
workers know what had happened at Amalgamated because the union was the
recognized union at Amalgamated.
o (xv) It was his personal as well as the company's intention that the workers should
not suffer the same fate as the workers of Amalgamated and that although the
negotiations with, the union had broken down the company still felt committed to
paying something to the workers.
o (xvi) The company had already commenced making ex-gratis payments to
workers who had resigned from its employment.
o (xvii) His job that afternoon was not to negotiate with the workers or to go into
any details as to how they could avail themselves of what the company had to
offer but the workers should discuss the matter with their managers or supervisors
or the industrial relations officers of the company, as the case may be.
o (xviii) At the date of the meeting quite a number of workers had already resigned
from the company's employment and workers who had already resigned and those
who resigned in the future would be employed by the company until such time as
the 1700 vehicles had been assembled.
o (xix) There was little the court could do because the payment of severance
benefits to workers ranked after secured creditors.
o (xx) In the case of Amalgamated Industries the matter had been taken to court and
up to that time the workers had not been successful in getting any amounts via the
process of the court.
o (xxi) Work was available for anyone who wished to work, as was already the case
with workers who had resigned prior to the date of the meeting and work was
available until such time as the company assembled the 1700 vehicles.
 (12) The Company, through Whiteway, misled and caused 214 workers to terminate their
employment with the company by telling them in substance at the meeting held on 2nd
December, 1988:
o (i) that a receiver was one step away from the company and that a receiver was on
the doorsteps of the company. He did not tell them that this was merely his own
assessment of the situation and that in fact the company had received no formal
demand from the banks for the re-payment of the loans and overdraft or formal
notice from the banks of their intention to appoint a receiver for the company's
business even though the banks had stated in a general way that they might have
to appoint a receiver for the company's business.
o (ii) that if a receiver was appointed, their employment with the company would be
terminated and they would get no part of their severance benefits upon the
termination of their employment. He did not tell them that that was merely his
own opinion, and that in fact, in the event a receiver was appointed for the
Company's business., the receiver had an option to continue to carry on the
business of assembling motor vehicles, in which event, their employment could
be continued.
o (iii) that their situation would then be like that which existed at Amalgamated
Industries, whose workers did not get any severance benefits when that company
went into receivership. He gave them no facts, or no sufficient facts, to support
this conclusion of his.
o (iv) that the basis of the bank's right to appoint a receiver for the company was the
debentures executed by the company. He did not tell the workers that the parent
company, Neal and Massy Holdings Limited, had also executed a guarantee in
favor of the banks in respect of the said loans:
o (v) that upon their resigning from the company and receiving 50% of their
severance payments, they would continue to be employed by the company until
the 1700 vehicles had been built. He did not tell them that the company had
prepared printed letters of resignation and receipts for them to sign and that their
stasis as employees of the company would be terminated and that they would be
employed as “contractors” and not as workers of the company, nor did he tell
them that as a condition for continuing to be employed, the company required
them to sign contracts which contained the following stipulation:
o “This agreement shall take effect in substitution for all previous agreements
between us relating to the said services and all such agreements shall be deemed
to have been terminated by mutual consent with effect from the date hereof.”
 (13) At the meeting of 2nd December, 1988, Whiteway created panic in the minds of the
workers about the future of their employment status with the company without giving
them the full facts and induced the majority of them to submit their resignations to the
company and to receive only 50% of their severance benefits under the collective
agreements.
 (14) The company consciously, deliberately and intentionally embarked upon this course
of action to induce the workers to terminate their employment with the company
prematurely with a view to depriving them of their full severance benefits under the
collective agreements. I have come to this conclusion for the following reasons:
o (i) the union had rejected the company's proposals for voluntary retrenchment on
20th October, 1988;
o (ii) the company failed to follow the procedures in the Act for the resolution of
the matter;
o (iii) the company was bound by the provisions of the collective agreements to pay
severance benefits to the workers in the event of retrenchment;
o (iv) the company was in serious financial difficulties and its future was dire.
There was, therefore, a real possibility at that time that it would have to liquidate
its work force and pay them severance benefits in accordance with the formulae
prescribed by the collective agreements.
o (v) the company had in its employment at that time approximately 347 workers in
the two bargaining units.
o (vi) the company had been actively encouraging workers to terminate their
employment. According to the company's own documentation FM2, 30 workers
had resigned prior to 2nd December, 1988 in their own handwriting. Some of these
workers had tendered their resignations as early as 25th October, 1988, just five
days after the union had rejected the company's proposals for voluntary
retrenchment. 105 workers resigned prior to 2nd December, 1988 (the date on
which Whiteway addressed them) on the company's printed form of resignation
FM 1. ‘This shows that the printed form of resignation FM 1 was in existence and
being used by the company prior to Whiteway's meeting with the workers on 2nd
December, 1988.
o (vii) save for 28 workers who refused to submit their resignations the remainder
of the workers, e.214 workers resigned on or after 2nd December, 1988. The
majority of the workers, therefore, submitted their resignations on the company's
printed form of resignation FM1.
o (viii) The company paid all of the above 319 workers only 50% of their severance
benefits in breach of the provisions of the collective agreements applicable to
them.
 (15) I reject the explanation given by Whiteway that the 50% payment to the workers was
intended to ensure that the workers got some amount of money or that it was an ex-gratis
payment by the company. I am of the opinion that the real intention of the company was
to dissipate its work force by inducing them to tender their resignations and accept 50%
of their severance benefits, hoping to exclude the worker's right to full severance benefits
under the collective agreements. In my opinion, the company's document AB 2 clearly
shows this intention of the company to pay less than the severance benefits to which the
workers were entitled. AB 2 contained two columns showing respectively (a) the
company's proposal for the payment of severance benefits to the workers and (b) the
workers' entitlement to severance benefits under the collective agreements.
I find from AB2 particularly, and the entire course of conduct of the company, certainly
from October 20th, 1988, to avoid its obligations under the collective agreements for the
payment of severance benefits provided therein to its workers.
 (16) The company admitted to its written evidence and arguments filed herein that on
October 20th, 1988, its revised proposal to the union was that it would offer all workers
“50% of their normal compulsory severance benefits in full and final settlement if they
accept voluntary retrenchment.”
 (17) Both before and after the union had rejected the company's proposal for voluntary
retrenchment, the company in breach of the principles of good industrial relations
practice, (a) negotiated directly with the workers in the bargaining units with the intention
of getting such workers to accept its proposal for voluntary retrenchment; and (b)
unilaterally implemented its proposal for voluntary retrenchment without following the
procedures stipulated in the Act for termination of a trade dispute concerning its said
proposal. Notwithstanding that the trade disputes concerning the collective agreements
had already been reported to the Minister of Labour, the company's proposal for
voluntary retrenchment concerned and/or affected existing is and conditions of
employment of the workers in the bargaining units and any dispute concerning such a
proposal could have appropriately been reported to the Minister of Labour for
determination in accordance with the procedures contained in the Act. The union was, by
the provisions of the Act, the recognized majority union for the workers in the bargaining
units and, therefore, the exclusive bargaining agent of the workers in the bargaining units,
and the company could not negotiate directly with the workers themselves and the
workers could not enter into any lawful or binding agreements concerning their terms and
conditions of employment. The union alone could bargain for their terms and conditions
of employment and enter into a binding agreement with the employer concerning them. A
voluntary retrenchment plan, such as the one which the company wanted to introduce,
concerned or was connected with the terms and conditions of employment of the workers
in the bargaining units and the company could not bypass the union and negotiate directly
with the workers to accept such a plan.
 (18) The workers who the company claimed voluntarily resigned from their employment
were required to execute three documents:
o (a) the printed letter of resignation'
o (b) the printed form of receipt; and
o (c) the individual contract.
154
The printed letter of resignation was not merely a form of resignation but contained a covenant
that the workers had no claim against the Company
“for severance pay or other compensation under the terms of (their) employment.”
155
The execution of the printed letter of resignation was, therefore, subject to the condition that the
workers abandon all claims which the workers had under the collective agreements for severance
benefits or other compensation since their terms and conditions of employment were contained
in the collective agreements. The printed letter of resignation has to read as a whole and, in my
opinion, it contained two constituent parts which were not severable one from the other. The
document therefore, either stands or fails as an entire document. The offered resignation was
conditional upon the acceptance of 50% of severance benefits. The transaction was predicated
upon the acceptance of the lesser amount of severance benefits. It was not possible for a worker
to resign and claim more than 50% of his severance benefits. It was in essence an attempt by the
company to vary the collective agreements and the individual contracts of employment of the
workers in the bargaining units. I find that that was the clear purpose and intent of the document.
The workers, by signing the printed letters of resignations, were not required to resign
unconditionally but subject to the condition that they abandoned their claims to severance
benefits preserved to them under their then existing contracts of employment.
156
The collective agreements had been duly registered in the court and were binding on the union,
the company, and the workers and, notwithstanding the expiry of the collective agreements by
the effusion of time, the applicable terms and conditions of employment in the collective
agreements continued to be binding and effective as part of the terms and conditions of the
individual contracts of employment of the workers in the bargaining units. (See s. 47 of the Act
and CA 106/86 ante). The union, however, was the exclusive bargaining agent of the workers in
the bargaining units. Individual workers of the company could not vary or abandon the terms of
the collective agreements or of their individual contracts of employment and individual workers
could not negotiate with the company nor could the company unilaterally alter or vary the terms
and conditions of the collective agreements or the individual contracts of employment. It was
only by negotiating new collective agreements with the union, the exclusive bargaining agent of
the workers, that any change in the workers' terms and conditions of employment could have
been achieved. In my view, the printed letters of resignation with the condition stipulated
amounted to an attempt by the employer to vary the collective agreements by the workers
agreeing to abandon their right to be paid severance benefits in the event of their becoming
redundant and all other claims which they had under the collective agreements. This the
individual workers could not lawfully do as under the Act, the union was their exclusive
bargaining agent. In the event, in my opinion, such attempted variation of the terms and
conditions of the collective agreements or of the individual contracts of employment of the
workers is void and of no effect. The company could not bypass the union, the workers'
exclusive bargaining agent in law, and negotiate such an amendment directly with the workers
and any such purported agreement is accordingly void and of no effect.
157
In the circumstances, I hold that the execution by the workers of the printed letters of resignation
was ineffective to terminate their employment with the company, and, notwithstanding such
execution, they continued to be and remain employees of the company and subject to the
applicable terms and conditions of the collective agreements so long as they continued in the
employment of the company.
158
Additionally, I find that prior and subsequent to 2nd December, 1988, the company had been
actively encouraging workers to execute the company's printed forms of resignation on the
condition that the company would only pay them 50% of the severance benefits to which they
were entitled under the collective agreement. On the facts, it appears to me that the company
barked upon a deliberate and systematically contrived scheme to mislead and induce the workers
to leave its employment. The company was in serious financial difficulties but was fully are of
its obligations under the collective agreements. In my opinion, the company fully appreciated
that if it retrenched the workers it had to meet the obligations imposed upon it by the collective
agreements for the payment of severance benefits. It wanted desperately to eliminate entire
workforce but it did not want to pay them the full severance benefits stipulated by the collective
agreements. On the facts, it appears to me that the company did quite a lot of preparation before
implementing this scheme and purposely devised the printed letters of resignation, the printed
farms of receipt and the individual contracts of employment. It appears, however, that, in
executing its plan, the company did not give the workers an opportunity to obtain legal advice or
the advice of their exclusive bargaining agent on the contents of the documents. The workers'
bargaining agent had no input at all in the exercise. On the whole of the evidence, I find that the
workers did not understand or appreciate the full implications or meaning of the printed letters of
resignation, more particularly, the condition relating to the abandonment of severance benefits
and other claims, nor did they understand or appreciate the full implications of the contents of
the printed receipts and the individual contracts.
159
The entire exercise should be seen in the context of the factual matrix in which it arose. The
company wanted the workers to terminate their employment and accept only 50% of their
severance benefits. The union insisted on full payment of severance benefits. Instead of utilizing
the procedures under the Act for the settlement of this impasse the Company then proceeded, in
violation of the principles of good industrial relations practice to obtain the workers' signatures
on the printed letters of resignation after telling them in substance, that the company was on the
verge of being placed into receivership and, therefore, they should resign and accept 50% of their
severance benefits rather than risk getting nothing at all. The company thus presented the
workers with “Hobson's choice”: “Resign with 50% of your severance benefits or lose your
employment and your severance benefits and other benefits when the company is placed into
receivership” (an event which in fact has never taken place).
160
In my opinion, this was not an arms length transaction. The signatures of the workers on the
printed letters of resignation were obtained by misrepresentation and by unfair use by the
company of its dominant position as the employer of the workers. The workers had no
opportunity for independent advice. The union, their exclusive bargaining agent, was totally
excluded. The company carefully planned and prepared the documentation. The workers had no
similar opportunity for advice. ‘The documents which the workers were required to sign were
never shown to the union or given to the workers beforehand to consider. For all these reasons I
hold there was no true accord or agreement by the workers when they affixed their signature on
the printed letters of resignation and that it was not a free and voluntary act on their part.
161
The execution of the printed letters of resignation should not be considered in vacuo but in the
context of the whole arrangement. The scheme must be considered as a whole. The execution of
the printed letters of resignation was the first step in the planned scheme by the company to
eliminate its workforce with only 50% of their severance benefits. The print receipts and
individual contracts were to follow. A redundancy situation was staring the company in its face.
The company wanted to avoid the full financial impact of its obligations to pay severance
benefits to the workers. The company's intention was to terminate its workforce with only 50%
of the severance benefits which the company was obliged by the collective agreements to pay on
redundancy.
162
The company had only 1700 motor vehicle units to be assembled. The assembly of the units was
forecast for completion by March 1989. Thereafter, there was a real danger of having to retrench
its entire workforce.
163
On the facts it appears to me that the whole course of conduct of the company shows that its
paramount intentions were to terminate its workforce and to circumvent its obligations under the
collective agreements and it was for this purpose that it conceived and implemented this plan to
mislead and induce the workers into executing the printed letters of resignation. Neither the
company nor the workers, however, could have altered or varied the terms and conditions of
employment secured by the collective agreements or the individual contracts of employment cf
the workers. Any such alteration or variation could only have been effected with the agreement
of the union, the workers' exclusive bargaining agent, or in one of the other ways ordained by the
Act. The individual workers could not agree to any variation or abandonment of their terms an
conditions of employment since their terms and conditions of employment had been settled by
collective bargaining in accordance with the provisions in the Act and not by individual treat
with the company.
164
Taking all the circumstances into account, I am of the opinion and I so hold that it is fair and just,
having regard to the persons immediately concerned and the community as a whole and acting in
accordance with equity, good conscience and the substantial merits of the case before me, having
regard to the principles and practices of good industrial relations, that the printed letters of
resignation should be wholly disregarded as being void and of no effect and that notwithstanding
their execution by the workers, the workers continued in the employment of the company
thereafter as workers and were subject to the terms and conditions of the collective agreements.
165
(19) Section 1 of Article 32 of the agreed articles required the company to meet with the Union
to discuss retrenchment in accordance with Article 19: Compensation for Service: in the event a
temporary lay off exceeded a continuos period of three months. (my emphasis.) The company
had effected a temporary closure of its assembly plant from 1st August to the middle November,
1988 - a continuous period in excess of the three months stipulated in Article 32. There was,
therefore, an obligation at that time for the company to discuss the retrenchment of workers in
accordance with this provision. In his testimony, Whiteway admitted:
“As the Chief Executive Officer of the company … I would say I was in a predicament,
acknowledging fully that one side there was a severance commitment which the company could
not afford, but on the other hand, trying somehow to get some amount of money so that workers
would not find themselves in a position where the company would go into receivership, and, as I
said, on one hand recognizing that we did not have the money, and, on the other hand, wanting to
ensure that the workers got some sort of settlement or some sort of handshake, or whatever you
want to call it, from the Company.”
“When we started discussions, the union was leaning towards the company retrenching all the
employees, basically, on a voluntary basis - something which we did not agree with. Because we
did not have the funds, bearing in mind that the older employees would have cost us a lot more if
we had to go for that type of retrenchment …”
166
I hold that by the middle of November 1988, the temporary lay-off, having exceeded the three
months stipulated in the collective agreement, and with an uncertain future, the company was
obligated to discuss redundancy of the workers with the Union and that the workers were entitled
to be paid severance benefits in accordance with Article 19: Compensation for Service. There
was also a real danger of the company's operations being terminated in March 1989 upon the
completion of the assembly of the remaining 1700 motor vehicle units.
167
(20) There was no provision in the collective agreements and, therefore, in the terms and
conditions of employment of the workers for a voluntary retrenchment scheme. A scheme such
as the one which the company sought to effect can only be implemented with the agreement of
the recognized majority union or by settlement in one of the ways provided by the Act. Neither
-the Act nor the collective agreements permitted a unilateral implementation of such a proposal.
However, such a scheme only provided for the payment of 50% of the severance benefits to
which the workers were entitled by the terms of their employment. The workers were entitled to
“100% of their severance benefits upon retrenchment. A worker is always entitled to resign from
his employment by giving the required notice. However, if he is induced into terminating his
employment prematurely and accepting less than what he is entitled to, then such termination is
not in accordance with equity, good conscience or the principles of good industrial relations
practice. I hold that the workers were induced to sign the printed letters of resignation by
misrepresentation and they were not free and voluntary resignations and that it would be unfair
and unjust to deprive them of their employment on the basis that they had executed the letters of
resignation.
168
(21) In addition to the printed letters of resignation, the company also required workers to
execute a printed receipt which was also prepared by the company. The race declared that the
amount of money paid to the workers (i.e. 50% of their severance benefit in each case) was
“in full and final satisfaction of all claims, demands, actions or proceedings and all costs and
expenses relating out of or in any way connected with my employment with (the company) or
cessation thereof.”
169
The whole arrangement must again be seen against its peculiar background. The company was
faced with a retrenchment situation. The terms of employment of the works required the
company to pay severance benefits to the workers on redundancy in accordance with an agreed
formula which was enshrined to the collective agreements. This was the “severance commitment
which the company could not afford” to which Whiteway referred in his evidence to the court
(see ante). The company did not want to pay the workers their full severance benefits. The
company wanted to pay only 50% of their severance benefits. The company to the union it was
going to pay only 50% of their severance benefits to the workers who opted resign from its
employment. The company then held a meeting with the workers and told them (among other
things) that the company was “one foot away from receivership” and that “a receiver” was on the
company's doorsteps.” It then proceeded to implement its so-called voluntary retrenchment
scheme by requiring the workers to execute the printed fetters of resignation and the printed
receipts without any input from the union, the workers' exclusive bargaining agents in law.
170
In these circumstances, I hold that the company cannot rely on the printed receipts since they
were negotiated directly with the workers in the bargaining units to alter their terms and
conditions of employment and not their exclusive bargaining agent. Only the union, the
exclusive bargaining agent of the workers, could have given such a discharge.
171
One of the main purposes of the Act, as will be gleaned from its long title, was to
“make better provision for the stabilization, improvement and promotion of industrial relations.”
172
The Act, therefore provided a comprehensive framework for the recognition of trade unions as
bargaining agents and for the settlement of trade disputes in accordance with define procedures.
By s. 35, a recognized majority union is invested with
“exclusive authority to bargain collectively on behalf of workers in a bargaining unit and to bind
them by a collective agreement … so long as its certification remains in effect.
(Emphasis mine.)
173
The union was the recognized majority union for the workers and their exclusive~ bargaining
agent. “The workers as individuals, therefore, could not agree to receive 50% of their severance
benefits in “full and final satisfaction.” Their right to severance benefits was provision of the
collective agreements and they could not receive a lesser sum. It was only the union which was
authorised to accept a reduction in the workers' severance benefits by collective bargaining, or,
alternatively a reduction could have fated in the Act for altering terms and conditions of
employment.
174
Similarly, since the individual workers had no bargaining status, they could not release the
company in respect of the other matters referred to in the printed receipt.
175
For all of these reasons I hold that there was no true accord between the individual workers and
the company when they executed the printed receipt and that their execution of the receipt is null
and void and of no effect.
176
The form of receipt is in the usual common law form and is appropriate far discharges given by
individuals who can act on their own behalf. Workers in a bargaining unit represented by a
recognized, majority union can act only through their bargaining agent. Such discharges are,
inappropriate in collective bargaining situations.
177
(22) The company also required the workers to execute the so-called independent contract. In my
opinion, a contract of the kind the company required the workers to execute in order to continue
in employment falls squarely within the definition of “worker” in the Act notwithstanding the
inclusion of the statement
“Your engagement hereunder is an independent contractor and you shall not be deemed to be an
employee of the company.”
178
I hold that such a declaration that the workers were independent contractors ought to be wholly
disregarded since the remainder of the terms of the contract clearly showed the relationship of
employer and employee. This court is concerned with the realities of the situation when I
examine the contract I find that, despite the attempt to disguise it, it is really a contract service; it
is a contract of service masquerading as a contract for services. According to Massiah, the
workers performed the same work which they previously performed and the company paid them
the same; quantum of pay which they previously paid them but it was converted to a daily rate
instead of an hourly, weekly or monthly rate. The company required the workers to perform the
work personally and to provide no employees or equipment. They did not enjoy the liberty, as
independent contractors enjoy, to charge the company for services performed but the contract
provided for fixed remuneration. Their work was supervised by the company's supervisors and
their hours of work were regulated by the company. Taking these and all other factors into
account, oral looking at the contract as a whole, I am of the opinion and find that the individual
contracts were in reality contracts of service and not contracts for services.
179
The union never lost the status of recognized majority union nor did the terms and conditions of
the collective agreements vanish into thin air. The company, therefore, could not negotiate
directly with the workers the terms of the contracts. The union was their exclusive bargaining
agent in law and it was only the union which was authorised to agree to any variations to the
terms and conditions of the collective agreements. The terms and conditions of collective
agreements continued to be binding on the union, the company and the workers notwithstanding
their expiry by effusion of time. See C. A. 106/86 between Caribbean Company Ltd. and
Oilfields Workers' Trade Union.
180
Various criteria hive been applied in order to distinguish a contract of service from a contract for
services. In WHPT Housing Association Ltd. v. Secretary of State for Social Serve (1981) I.C.R.
737, Webster J. said
“…. the difference between a contract of service and one for services must reside, essentially the
terms of the principal obligation agreed to be undertaken by the employee … In the contract of
service, it seems to me, the principal obligation undertaken by the employee is to provide him. to
serve; whereas in a contract for services, the principal obligation is not to provide himself to
serve but his services for the use of the employer.”
181
The control test has been the oldest applicable test. The basis of the control test is that if the
employer has the right to control another person in the manner in which the work is to done, the
latter will become his employee. The right of control is still relevant as a factor to be taken into
account in deciding whether an individual is an employee or not.
182
The organization or integration test has also been used. See Stevenson Jordan & Harrison v.
Macdonald and Evans (1952) 1 T.L.R. 101 and Beloff v. Pressdram Ltd. (1973) 1 All E.R. 241
183
In the case of Ready Mixed Concrete (South East) Ltd. v. Minister of Pensions an National
Insurance (1968) 2 Q.B. 497, Mac Kenna J suggested the economic reality test. See also Market
Investigations Ltd. v. Minister of Social Security (1969) 2 Q.B. 173.
184
The present view is that no test is conclusive and the courts will have to look at all the elements
of the relationship. The following are some of the more important elements:
 (i) the employer's right of control

 (ii) the employee as an integral part of the business
 (iii) the chance of profit and the risk of loss by the person who undertakes the work
 (iv) ownership of the instrumentalia and the onus to provide
 (v) the entitlement to exclusive service
 (xi) the payment of wages, sickness pay and holiday pay and by whom payment is made
 (vii) the power of selection and appointment
 (viii) the power to suspend and dismiss
 (ix) the power to fix the place, time of work and the times at which holidays are taken
 (x) the deduction of PAYE, etc.
 (xi) the intention of the parties
 (xii) the view of the ordinary person
185
See Unfair Dismissal Handbook 2nd ed., 1983 by Malcolm Mead, published by Longman
Publishing Ltd., for a discussion of the various criteria.
186
Applying the above tests and, particularly the formation of MacKenzza, J in Ready Mixed
Concrete (South East) Ltd. v. Minister of Pensions and National Insurance (1968) 2 Q.B. 497, I
find that the so-called independent contracts were contracts of service and not contracts for
services; and that the workers who executed them were not independent contractors but workers
of the company; and that notwithstanding their execution of these contracts, they remained
entitled to all the terms and conditions of the collective agreements which had been incorporated
into their individual contracts of employment with the company.
187
(23) The Company prevented workers who refused to execute the printed individual acts from
working with the company. The company insisted that they sign the individual act which
contained terms and conditions of employment which were inconsistent with and ‘for to the
terms and conditions of employment contained in the collective agreements.
188
The workers were entitled to continue to be employed on the terms and conditions of the
collective agreements and were not authorised to enter into the individual contracts since their
exclusive bargaining agent at law was still certified and the provisions of the collective
agreements continued to be binding on the union, the company, and the workers in the
bargaining units.
189
Finbar Massiah, the company's personnel officer, and FitzAlbert Rawlins, a director of the
company, both admitted to preventing workers from so doing.
190
Harry Dookwah and Stephenson Lalla refused to sign the individual contract and the company
did not allow them to work. Massiah and Rawlins also admitted that the workers who had written
the duress letter to the company were also prevented by the company from continuing to work.
Included among the workers who sent the duress letter were Clive Lumpress, Patrick Pierre,
Conrad Simmons, Lenin Roberts, Harold Leslie, Terry Francis, John Lewis, Robert Payne,
Francis Couteau, and Marlon Seeteram. Rawlins and other company officials met with these
workers and told them that unless they “rectified the situation” the company would not keep
them in employment. The workers refused to withdraw the duress letter and the company
summarily terminated their employment.
191
(24) The company, through FitzAlbert Rawlins, also threatened to dismiss Francis Couteau if
Couteau did not accept the company's offer of 50% of his severance benefits.
192
(25) The company unilaterally implemented its voluntary retrenchment scheme without
following the procedure contained in the Act for resolving disputes and thus failed, in good faith,
to meet and treat with the union for the purpose of collective bargaining.
193
(26) The company unilaterally varied the terms and conditions of the collective agreements and
the individual contracts of employment of the workers (“the binding terms”) without negotiating
with the union, the exclusive bargaining agent of the workers in bargaining units. The company
insisted that the workers work under the varied terms or cease to be employed. There was,
consequently, a refusal to employ the workers under the binding terms of the collective
agreements and the individual contracts of employment of the workers the bargaining units. This
was done with a view to compelling or inducing the workers to accept the altered terms of
employment. The altered terms were inferior to the binding terms adversely affected the workers.
In particular, the altered terms purported to deprive the workers of the protection of the Act and
to make them contractors rather than workers and to take away other valuable provisions of their
contracts of employment, e.g holiday pay and sickness benefits. The workers suffered actual
economic disadvantage by the introduction of the altered term. I find that the company refused to
employ the workers on the binding terms with a view to inducing or compelling them to accept
the altered terms which did not have the concurrence the union, the exclusive bargaining agent of
the workers.
194
In C. A. 106/86 between Caribbean Tyre Ltd. and Oilfields Workers' Trade Union, delivered on
27th July, 1988, the Court of Appeal held inter alia that
“A unilateral imposition of new terms is certainly a refusal to employ under the old terms when
the new terms involve an actual or possible economic disadvantage to the workers.”
195
I find that the company unilaterally imposed new terms on the workers and refused to employ the
workers under the old terms when it insisted on the workers executing the individual contract as
a condition of continuing to work with the company and that the new terms involved actual
economic disadvantage to the workers. I find further that this unilateral imposition of new terms
constituted a refusal to employ and that this refusal to employ the workers was done with a view
to compelling or inducing the workers to accept the new terms. Notwithstanding expiry, the
relevant provisions of the collective agreements continued to apply as part of individual contracts
of the workers and the company could not unilaterally alter the terms and conditions of the
collective agreements without the agreement of the union or in one of the other ways stipulated
by the Act. In my opinion, this constituted a lockout of the workers and therefore, illegal
industrial action not in conformity with Part V and contrary to s. 63 of the Act.
196
(27) The company failed, subject to the Act, in good faith, to treat and enter into negotiations
with the union for the purposes of collective bargaining contrary to s. 40 (2) of the Act when it
negotiated directly with the workers, and not with the union, their exclusive bargaining agent, to
terminate their employment with the company for the payment to them 50% of their severance
benefits and the abandonment of the remaining 50% of severance benefits and all other benefits
under the terms of their employment with the company.
197
(28) The company took illegal industrial action otherwise than in conformity with Part V of, the
Act and contrary to s. 63 of the Act when during the period 2nd December, 1988 to 3rd January,
1989, it refused to employ or continue to employ most of its monthly and hourly work on the
terms and conditions of employment of the collective agreements then applicable to them with a
view to inducing or compelling such workers to execute individual contracts on terms and
conditions of employment which expressly excluded the application of the terms and conditions
employment contained in the collective agreements which were then applicable to the said
workers.
198
(29) On 19th January, 1989, the company took illegal industrial action otherwise than in
conformity with Part V and contrary to s. 63 of the Act, when it refused to employ Stephenson
Lalla and Harry Dookwah, two workers, with a view to inducing or compelling them to execute
individual contracts agreeing to employment on terms and conditions of employment which
expressly excluded the terms and conditions of the collective agreements then applicable to them
and which were inferior to the terms and conditions of the collective agreements.
199
(30) On 19th January, 1989, the company, took illegal industrial action otherwise than in
conformity with Part V and contrary to s. 63 of the Act when it refused to employ Stephenson
end Harry Dookwah, two workers, with a view to inducing or compelling other workers in the
employment of the company to execute individual contracts agreeing to employment on terms
and conditions of employment which were inferior to and which expressly excluded the terms
and conditions of the collective agreements.
200
(31) On 21st February, 1989, the company took illegal industrial action otherwise than in
conformity with Part V and contrary to s. 63 of the Act when it refused to employ Clive
Lumpress, Patrick Pierre, Conrad Simmons, Lenin Roberts, Harold Leslie, Terry Francis, John
Lewis, Robert Payne, Francis Couteau and Marlon Seetaram and other workers with a view to
compelling them to comply with the company's demand that they withdraw letters dated 17th
February, 1989, which each of them had submitted to the company stating that they had signed
individual contracts with the company under duress and protest.
201
(33) Over the period 2nd December, 1988 to 31st December, 1988, the company failed, subject to
the Act, in good faith, to treat and enter into negotiations with the union, the recognized majority
union, by entering into individual agreements with its workers whereby the said workers
executed printed letters of resignation presented to them by the company with the company
paying them some 50% of their severance benefits under the collective agreements then
applicable to the said workers contrary to s. 40 of the Act.
202
(34) Over the period 7th November, 1988 to February 17th, 1989, the company failed, subject to
the Act, in good faith, to treat and enter into negotiations with the union, the recognized majority
union, by entering into individual contracts with its workers whereby the said workers were
required to work on terms and conditions of employment which were inferior to and which
expressly excluded the terms and conditions of the collective agreements then applicable to the
said workers contrary to s. 40 of the Act.
203
I find on the evidence as a whole that in executing the entire exercise, the company acted in
breach of the principles of good industrial relations practice by ignoring the status and role of the
union as the recognised majority union and exclusive bargaining agent of the workers in the
bargaining units. It sought to undermine and destroy the right and duty of the union to represent
and negotiate terms and conditions of employment for the said workers. The union was, at all
material times, the exclusive bargaining agent of the workers but the company nevertheless
negotiated directly with the workers for variations of their terms and conditions of employment
assured to them by virtue of the collective agreements. Where there is a recognized majority
union, an employer is, subject to the Act, obliged to negotiate in good faith with that union not
with the workers directly. In the course of carrying out this exercise, the company acted in
breach of that fundamental principle of good industrial relations practice and committee several
industrial relations offences hereinafter referred to, including failing, in good faith to and enter
into negotiations with the union, an illegal industrial action not in conformity with s.63.
204
For all of these reasons and taking into account the written and oral evidence submissions of the
parties, the relevant law and principles of good industrial relations practice, and applying
particularly, the injunction contained in s. 10 (3) of the Act that I should, notwithstanding
anything in the Act or in any other rule of law to the contrary, act in accordance with equity,
good conscience and the substantial merits of the case before me, having regard to the principles
and practices of good industrial relations, and taking the evidence separately, as it relates to each
of the allegations made against the company, I have come to the follow decisions on the charges
brought by the union:
I.R.O. 10/89
 (a) I find that there is insufficient evidence to sustain the charge against the company
failing to recognize the union as the recognized majority union of its hourly and monthly
work contrary to s. 40 of the Act and I dismiss this charge.
 (b) I find the company guilty of this industrial relations offence of failing, subject to Act,
in good faith, to treat and enter into negotiations with the union, the recognized major
union for the monthly and hourly workers of the company, for the purposes of collective
bargaining contrary to s.40 of the Act.
I.R.O 11/89
 I find the company guilty of this industrial relations offence of taking illegal industrial
action otherwise than in conformity with Part V of the Act, contrary to s.63 of the Act.
I.R.O. 12/89
 I find that this offence is not established on the evidence and I dismiss this charge. In my
opinion, a mere threat to dismiss is insufficient to support a charge of this nature.
I.R.O. 13/89
 For the reason I have given in I.R.O. 12/89, I find that the evidence is insufficient to
establish this charge and I dismiss it.
I.R.O. 14A/89
action otherwise than in conformity with Part V of the Act contrary to s. 63 of the Act.
I.R.O. 14A/89
I.R.O. 15A/89
I.R.O. 15B/89
action otherwise than in conformity with s. 63 of the Act.
I.R.O. 21/89
 (a) I find that there is insufficient evidence to support this charge and I dismiss it.
 (b) I find the company guilty of this industrial relations offence of failing subject to the
Act, in good faith, to treat and enter into negotiations with the union, the recognized
majority union for the hourly and monthly paid workers of the company, for the purposes
of collective bargaining.
I.R.O 22/89
 (a) I find that there is insufficient evidence to support this charge and I dismiss it.
 (b) I find the company guilty of this industrial relations offence of failing, subject to the
Act, in good faith to treat and enter into negotiations with the union, the recognized
majority union for the hourly and monthly paid workers of the company, for the purposes
of collective bargaining.
I.R.O. 10/89 I.R.O 11/89 I.R.O. 13/89 I.R.O. 14A/89 I.R.O. 14A/89 I.R.O. 15A/89 I.R.O.
15B/89 I.R.O. 21/89 I.R.O 22/89
205
It is important to note in connection with the offences of illegal industrial s otherwise than in
conformity with Part V of the Act, the stipulation of s.63 (1) of the Act which provides:
“Where any industrial action is taken otherwise than in conformity with this Part (Part V)
 (a) an employer taking such action is guilty of an industrial relations offence and,
any other penalty under subsection (2), remains liable for the unpaid wages, salary
and other remuneration that a worker may reasonably be expected to obtain in
respect of any period during which the lockout action took place; and a worker
may recover such wages, salary or other remuneration summarily as a civil debt,
without prejudice to any other manner in which proceedings may be taken for the
recovery thereof …”
206
Before I determine the penalties which I should impose for the industrial offences of which I
have found the company guilty, I wish to suggest to the company that it should meet forthwith
with the union to see whether it is not possible even at this late stage to arrive at some amicable
arrangement on the several matters in issue between the union and the company. To enable these
discussions to take place and, on the company and union each giving me an undertaking that they
will so meet, I am prepared to adjourn further hearing of these applications for a period of not
more than two weeks.

Tiwu Nealandmassy Industrialaction

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Khan, A.J.

The applications were as follows:

Particulars of (a) and (b)

I.R.O. No. 13 of 1989

I.R.O. 14A of 1989

I.R.O. 14B of 1989

I.R.O. 15A of 1989

I.R.Q. No. 15B of 1989

Particulars of (a) and (b)

Particulars of (a) and (b)

The background facts may be summarised as follows:

Article 1: Union Security and Recognition: sections 1 and 4

Article 2: Management Rights

Article 19: Compensation for Service

Article 25: Probationary Period

Article 30: Contract Work

Article 32: Redundancy/Layoff

(hereinafter referred to collectively as “the agreed articles”).

“Article 1: Union Security and Recognition: Section 1:

 (a) the worker's name

Article 2: Management Rights:

Article 19: Compensation for Service. Section 1:

1 - 3 years 2 weeks pay for each year of service

4 - 9 years 3 weeks pay for each year of service

10 years and over 4 weeks pay for each year of service.

Notwithstanding the provisions of section 1 above, should a worker be retrenched after

Article 25: Probationary Period

Article 30: Contract Work

Article 32: Redundancy/Layoff Section 1:

Should retrenchment become necessary as a result of discontinuation of shift work, workers

THE ORAL EVIDENCE SUMMARIZED A. THE UNION'S WITNESS (a) ALDWYN

“Neal and Massy Industries Ltd.

Automotive Assembly Plant

Santa Rosa Industrial Estate

September 22, 1988

Transport and Industrial Workers' Union

114 Eastern Main Road

ATTENTION: Mr. A. Brewster

Yours very truly

NEAL & MASSY INDUSTRIES LTD.

PROPOSAL TO THE TRANSPORT AND INDUSTRIAL WORKERS' UNION ON THE

MARKET DEMAND AND STOCK LEVELS

FOREIGN EXCHANGE IMPLICATIONS

FINANCIAL HEALTH OF THE COMPANY

FUTURE OPERATIONS AT THE ASSEMBLY PLANT

 (A) Reduce manpower to 200 employees.

 (A) Reduce manpower to 200 employees.

 (A) Reduce manpower to 200 employees

ALDWYN BREWSTER (continued)

“Neat and Massy Industries Ltd.

Automotive Assembly Plant

Santa Rosa Industrial Estate

September 28, 1988

Transport and Industrial Workers' Union

114 Eastern Main Road

ATTENTION: Mr. A. Brewster

 1. The categories of workers and the number of proposed voluntary retrenchment

Yours very truly

NEAL & MASSY INDUSTRIES LTD.

Comparative View of the Company's Proposal/Collective Agreements Figures for Severance

“Neal and Massy Industries Ltd.

Automotive Assembly Plant

Santa Rosa Industrial Estate