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Legal Supplement
Part A to the "Timidad and Tobago
Gazette", Vol. 24,
No. 335,
Thursday, 5th December, 1985
Fourth Session Second Parliament Republic of Trinidad
and Tobago
REPUBLIC OF TRINIDAD AND TOBAGO
Retrenchment and Severance
Benefits
Act No. 32 of 1985
AN ACT to prescribe the procedure to be followed in the event of redundancy
and to provide for severance payments to retrenched workers.
[Assented to 27th November, 1985]
WHEREAS it is enacted inter alia by subsection (1) of section
13 of the Constitution that an Act of Parliament to which that section applies
may expressly declare that it shall have effect even though inconsistent with
sections 4 and 5 of the Constitution and, if any Act does so declare, it shall
have effect accordingly:
And whereas it is provided by subsection (2) of the said section 15 of the
Constitution that an Act of Parliament to which that section applies is one the
Bill for which has been passed by both Houses of Parliament and at the final
vote thereon in each House has been supported by the votes of not less than
three-fifths of all the members of that House:
And whereas it is necessary and expedient that the provisions of this Act
shall have effect even though inconsistent with sections 4 and 5 of the
Constitution:
Now, THEREFORE, BE IT ENACTED by the Parliament of Trinidad and Tobago as
follows:
1. This Act may be cited as the Retrenchment and
Severance Benefits Act, 1985.
2. In this Act
"casual worker" means a person who is employed on a temporary or
on an irregular or intermittent basis;
"Collective Agreement" has the meaning assigned to that
expression by section 2 of the Industrial
Relations Act;
"completed year of service" means continuous service over a
period of twelve successive months;
"employer" means an employer within the meaning of the Industrial
Relations Act;
"independent contractor" means a person who is engaged on the
basis of a contractual arrangement to do work over an estimated period of time
and whose hours of work are not regulated
by contract;
"involved worker" means a worker earmarked for retrenchment and
named by
the employer in the formal notice required by section 4;
"Minister" means the Minister to whom responsibility for the
administration of labour matters has been
assigned;
"recognised majority union" has the meaning assigned to that
expression by section 2 of the Industrial Relations Act;
"redundancy" means the existence of surplus labour in an
undertaking for whatever cause ;
"retrenchment" means the termination of employment of a worker at
the initiative of an employer for the reason of redundancy;
"seasonal worker" means a person who is regularly employed each
year, but not throughout the year, to
perform work which is limited to a certain time or
certain times of the year because of the seasonal nature of the work involved;
"service" means the period of continuous employment of an involved
worker with his employer immediately prior
to his retrenchment;
"worker" means a worker within the meaning of the Industrial
Relations Act.
3. (1) This Act applies to persons falling
within the Application definition of "workers" under the Industrial
Relations Act with the exception of-
(a) subject to paragraph (d), workers who have not had more than one
completed year of service;
(b) workers serving a known pre-determined probationary or qualifying
period of employment;
(c) casual workers;
(d) seasonal workers, unless such workers are employed, as part of tho
regular work force for at least three consecutive seasons with the same
employer and for at least one hundred days each season
(e) workers employed on a specified fixed term basis or workers engaged
to perform a specific task over an estimated period of time where these
conditions are made known to the worker at the time of engagement, and does
not apply to independent contractors.
(2) For the purposes of subsection
(1), the "estimated period_of_Jme" shall be taken to mean a period not
exceeding the contract period of a project, including any extensions granted for
completion of the project, except that where such workers are transferred from
project to project, notwithstanding any short breaks between projects, they
shall not be regarded as being excluded from subsection (1).
4. (1)
Where an employer proposes to terminate the
services of five or more workers for the reason of redundancy he shall give
formal notice of termination in writing to each involved worker, to the
recognised majority union and to the Minister.
(2) The notice shall state-
(a)
the names and classifications of the involved workers;
(b) the length of service and current wage rates of the involved workers;
(c) the reasons for the redundancy;
(d) the proposed date of the termination of employment;
(e) the criteria used in the selection of the workers to be retrenched;
(f) any other relevant information.
(3) Where notice of retrenchment given by an employer to Fewer than five
involved workers is followed by notice of retrenchment to any other worker
within the time period of the previous notice to the other workers, all workers
receiving such notice shall be counted together in determining the number of
workers to whom notice has been given for the purposes of this section.
5. Notwithstanding section 4, an employer may, prior to the giving of
formal notice in writing of retrenchment, enter into consultation with t h e
recognised majority union with a view to exploring the possibility of averting,
reducing or mitigating the effects of the proposed retrenchment.
6. Subject to section 7, the minimum period of formal notice required by
section. 4 shall be forty-five days before the proposed date of retrenchment.
7. Where, due to unforeseen circumstances it is not where practicable for
an employer to comply with the requirements of section 6 with respect to formal
notice, he shall give the maximum notice that he can reasonably be expected to
give in the circumstances and the onus
shall be on him to prove that the circumstances which prevented him from
complying with section 6 were indeed unforeseen.
8. (1) Within seven days of receipt of the notice from the employer, the
recognised majority union shall reply in writing copied to the Minister, stating
its position regarding the proposed retrenchment and giving reasons for its
objections, if any, to the action proposed by the employer.
(2) Where the recognised majority union fails to reply in accordance with
this section, the employer may proceed to effect the retrenchment in accordance
with the notice given after notifying the Union and the Minister of his
intention so to do.
9. (1) Where the recognised majority union considers it essential to
obtain further specific and relevant information from the employer in order to
be able to respond to the notice and requests such information, the employer
shall, within three days of receipt of the request, reply to the union either by
supplying the information so requested or, where in the employer's
opinion disclosure of the information so requested is likely to prejudice his
undertaking, by indicating that the information will not be supplied for the
reason that his undertaking may be adversely affected thereby.
(2) Within three days of receipt of the information referred to in subsection
(1), the union shall
submit to the employer the reply referred to in section 8.
10. Where the recogn.ised. majority union disagrees with any aspect of
the employer's proposals for retrenchment or with the withholding of the
information requested under section 9, the parties' shall enter into discussion
with a view to agreeing upon an acceptable solution.
11. (1) Where
after the exchange of correspondence or discussion between the recognised
majority union and the employer no agreement has been reached, the Minister's
assistance may be requested by either party; or he may intervene at his own
volition, in an attempt to find a solution.
(2) Upon the Minister's
intervention he may request the parties to supply any further relevant
information, which request shall be complied with unless the party concerned
satisfies the Minister that the information requested is confidential and that
its disclosure would be prejudicial to the operation of the undertaking of the
employer or to the business of the union.
12. Where there is no recognised majority union; a worker to whom formal
notice is given under section 4 may request the Minister to intervene on his
behalf.
13. Where, having intervened, the Minister is of the view that a solution
seems unattainable, he shall so advise the parties before the proposed date of
retrenchment stated in the employer's notice or any extended terminal date
mutually agreed upon by the parties.
14 .
(1) During the period of notice of retrenchment stipulated in section 6, or such
shorter period as the employer may have given under section 7, it shall be an
offence for the employer to put into effect the whole or any part of his
retrenchment proposals.
(2) Notwithstanding subsection (1)
the employer is not precluded during the period of notice from
terminating the services of a worker for valid cause relating to the worker's
conduct or job performance.
15. (1) Where an employer serves a retrenchment
notice on a worker, that worker shall continue to report for work unless the
employer specifically indicates to him otherwise.
(2) A worker referred to in
subsection (1) is entitled during the period of retrenchment notice, to the full
terms and conditions of service as if no retrenchment notice had been served on
him.
16. Subject to the operational needs
of his business undertaking, an employer shall not refuse the request of' an
involved worker, made in advance, for reasonable time off from his job in order
that he may explore the possibility of his obtaining alternative employment.
17. By mutual consent, the parties to
a Collective Agreement may adopt a procedure other than that prescribed in this
Act
but such procedure shall be set out in their registered Collective Agreement and
shall satisfy the requirements-
(a) that a period of notice to retrench be stipulated; and
(b) that the Minister be notified in writing in accordance with section 4.
18. (1) Where any part of the employer's
retrenchment proposals is eventually put into effect, severance benefits shall
be payable by the employer to the retrenched worker inaccordance with this
section.
(2) Where the retrenched worker is
covered by a registered Collective Agreement, the terms of which
with respect to severance benefits are no less favourable than those set out in
this Act with respect to severance benefits, the provisions of the said
Collective Agreement shall apply.
(3) Where the retrenched worker is
not covered in the manner set out in subsection (2), the minimum severance
benefits payable by the employer are as follows-
(a) where he has served the employer without a break in service for between
more than one but less than five years, he is entitled for each such completed
year of service to two weeks' pay at his basic rate if he is an hourly, daily
or weekly rated worker, or one half month's pay at his basic
rate if he is a monthly rated worker;
(b) where he has served the employer without a break in service for five
years or more, he is in addition to his entitlement under paragraph (a),
entitled for the fifth year and for each succeeding completed year of service
to three weeks pay at his basic rate if he is an hourly, daily
or weekly rated worker, or three-quarters month's pay at his basic rate if he
is a monthly rated worker.
(4) For each period of service
amounting to less than a completed year of service and in respect of workers who
qualify under section 5(1)(d), payment shall be calculated on a pro-rata basis.
(5) Every worker to whom this Act
applies retrenched on or after 1st January, 1985, is entitled to the severance
benefits contemplated by this section regardless of the number of workers in his
employer's work force.
(6) This section shall not apply
to a retrenched worker who is eligible to receive from his employer terminal
benefits that are no less favourable than those set out in this section.
19. (1) Where the proposals for retrenchment
contemplate the absorption of retrenched workers into another undertaking of the
same employer or an undertaking of the employer's assignee or successor, then
that employer may withhold the payment of severance benefits, paying instead to
the worker on regular pay days from the date of retrenchment to the date of
absorption or other alternative employment)
whichever first happens, a relief payment of fifty per cent of his basic salary.
(2) The period between the
retrenchment and the absorption referred to in subsection (1) shall be for a
duration of not more than three months or until the worker finds alternative
employment elsewhere, whichever is earlier.
(3) Where as events turn out the
employer is required by this Act to pay severance benefits to the retrenched
worker, the relief payment referred to in subsection (1) is deductible from the
retrenched worker's final severance entitlement.
(4) In this section and in section
21 "successor" includes assignee, associate company and subsidiary
company.
20. The Minister, after consultation with those organisations he
considers most representative of employers and labour may, from time to time by
Order, subject to negative resolution of Parliament, vary the quantum of
benefits payable under section 18.
21. Where a worker unreasonably refuses an offer by his employer or his
employer's successor of comparable and suitable employment without any break in
service as an alternative to being retrenched, his severance benefits may be
withheld.
22. (1)
Subject to section 19, where after thirty days of the expiration of the notice
the employer fails to pay the severance benefits or the remainder thereof, as
the case may be, the employee may, through his recognised majority union apply
to the Industrial Court for redress.
(2) Where there is no recognised
majority union the aggrieved worker may, through the Minister or through any
union, refer such failure to the Industrial Court for enquiry and settlement.
23. (1) A dispute arising out of a retrenchment
issue including-
(a) a dispute which alleges unfair dismissal;
(b) a difference of opinion as to the reasonableness or otherwise of any
action taken or not taken by an employer
or a worker; or
(c) a dispute as to what is reasonably comparable in respect of a terminal
benefit scheme, may be reported to the Minister as a trade dispute and shall
be dealt with as such under the Industrial Relations Act.
(2) A claim against an employer
for unpaid severance benefits under this Act is deemed to be a trade dispute.
24. In the event of a winding up or the appointment of a receiver all
severance benefits, including terminal benefits referred to in section 18(6),
due to a retrenched worker shall enjoy the same priority as wages or salary due
to any clerk or servant in respect of services rendered to a company under
sections 78 and 250 of the Companies Ordinance but without limitation.
25. (1) A person who contravenes the provisions
of this Act is guilty of an industrial relations offence within the meaning of
the Industrial Relations Act and liable-
(a) in the case of an employer, to a fine of ten thousand dollars; and
(b) in the case of a union, to a fine of five thousand dollars.
(2) Where a contravention referred
to in subsection (1) is brought before the Industrial Court it shall
be dealt with in accordance with the procedure laid down by the Industrial
Relations Act, and the Court
may make an award in favour of an aggrieved party.
26. This Act binds the State.
27. This Act shall come into operation on such date as the President may
by Proclamation published in the Gazette, appoint.
Passed in the House of Representatives this 15th day of
February, 1985.
R. L. GRIFFITH
Acting Clerk of the
House
IT is HEREBY CERTIFIED that this Act is one the Bill for which
has been passed by the House of Representatives and at the final vote thereon in
the House has been supported by the votes of not less than three-fifths of all
the members of the House that is to say by the votes of 35 members of the House.
R. L. GRIFFITH
Acting Clerk of the
House
Passed in the Senate this 5th day of November, 1985.
M. CARRINGTON
Acting Clerk of the
Senate
IT is HEREBY CERTIFIED that this Act is one the Bill for which
has been passed by the Senate and at the final vote thereon in the Senate has
been supported by the votes of not less than three-fifths of all the members of
the Senate that is to say by the votes of 32 Senators.
M. CARRINGTON
Acting Clerk of the
Senate
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