Justice Thomas-Felix warns against unilateral imposition of mandatory vaccine policy

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CMC- The President of the Industrial Court, Justice  Deborah Thomas-Felix, Friday said mandatory vaccination policy cannot be a unilateral imposed in Trinidad and Tobago as a condition of employment.

‘The laws of this country do not directly address the issue of COVID-19) vaccination as a condition of employment. In fact there is no existing law worldwide which I can find which addresses this issue before the pandemic,” she told the opening of the Industrial Court law term.

“While there is no express provision in the Industrial Relations Act of Trinidad and Tobago for COVID-19 vaccination policies to be introduced in the work place as new terms and conditions of employment, our legal framework provides for the introduction of new policies, new terms and conditions of employment and new working arrangement through the collective bargaining process,” she added.

Justice Thomas-Felix said that such policies and arrangements “in my view include vaccination policy and COVID-19 vaccination policy” and that  while employers can create new vaccination policy within the new terms and conditions this cannot be done unilaterally.

”It is settled law that an employer ought not to unilaterally make any material change or alteration to a workers’ contract of employment. The introduction of a COVID-19 vaccination policy or any new policy can amount to a material change in the terms and conditions of employment and ought not to be imposed unilaterally.

“More so, if the particular business enterprise is considering the introduction of a mandatory vaccination policy as a term of employment there should be collective bargaining between the employer and the workers’ representative,” the judge said.

During her address, the Judge noted the high number of COVID related industrial relations matters filed  over the past 18 months.

“It is noteworthy that from March 2020 to the 14th September, 2021, 178 COVID-related industrial relations offences have been filed at the Industrial Court. Most are complaints related to the COVID-19 pandemic (and) the majority of them pertain to the lack of consultation by employers with workers, the unilateral alterations of terms of conditions of employment and the failure of employers to enter into collective bargaining with unions to discuss and resolve COVID-19  related issues”.

The President of the Industrial Court here said an employers’ duty can only be considered to be discharged when he or she applies and upholds the requirements of the Occupational Safety and Health Act.

“This can discharge employers from their legal duty under the Occupational Safety and Health Act (OSHA),” she added.

While the government has already indicated that it would be implementing any mandatory COVID-19 policy or legislation, but is encouraging persons to be vaccinated against the virus that has killed 1, 397 and infected 47, 925, the situation is not the same within the private sector.

Earlier this week, the Banking, Insurance and General Workers’ Union (BIGWU) said it had filed a petition against Republic Bank Ltd in the Industrial Court calling for the bank to end its return-to-work policy.

BIGWU executive Jason Brown said the bank is refusing to meet and treat with the union on the workers’ issues including the demands they bear costs of the PCR tests, which could amount to about TT$3,000 (One TT dollar=US$0.16 cents) a month.

The union said that the bank’s policy that from September 6, it would be implementing mandatory PCR tests for the unvaccinated staff to mitigate the spread of the Covid-19 virus was a violation of OSHA.

Republic Bank in a policy guideline sent to all staff said all unvaccinated staff would be required to produce a negative PCR test result on a fortnightly basis. As an incentive for being vaccinated, the bank said it would make an ex-gratia payment of TT$750 to all staff who have registered as being vaccinated as at August 31, 2021.

Republic said it will also make an ex-gratia payment of TT$250 to all staff who have registered as vaccinated between September 1 and November 30, 2021, and at the time of that payment the August registrants will receive a second ex-gratia payment of $250 in further recognition of their diligence in promptly being vaccinated.

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