-ruling finds gov’t union ‘conspiracy’ in non-union workers’ fees
In dismissing a long-running court dispute over the deductions of agency fees from the salaries of public servants, acting Chief Justice Ian Chang recently called the 1976 Agreement governing the deductions “a conspiracy” between the administration and the Guyana Public Service Union (GPSU).
Under the 1976 Agreement between GPSU and the Government of Guyana (GOG), the administration undertook to deduct from the salaries of full-time employees in the public service, who entered on or after March 1, 1976 and who exercised the option of not becoming members of the GPSU at the time of recruitment, agency fees and to remit such fees to the GPSU.
In the Agreement, “agency fees” were defined as a sum of money equivalent to union dues fixed in accordance with the registered rules of the union.
GPSU filed the High Court action ten years ago against Dr. Nanda Gopaul, in his then capacity of Permanent Secretary of the Public Service Ministry (PSM) after he issued a circular back in 2000 advising several agencies not to deduct agency fees or union dues because GPSU was in breach of the 1976 Agreement by failing to update its records and book-keeping.
The union accused Gopaul of misfeasance in public office, saying that he had no authority to instruct Permanent Secretaries of the Ministries of Government not to deduct union dues from employees who are members of GPSU. The union said that Gopaul did so knowing that his decision would injure and cause irreparable economic loss to GPSU; it sought various declarations in court in addition to damages.
Initially, the GOG’s agreed that unless new entrants chose to become members of the union they were subject to the payment of agency fees. However, in 1987 the GPSU adopted a new rule, Rule 3 (b) which officially added to their registered rules that new entrants to the public service automatically became members upon their recruitment unless they exercised the option of not becoming members.
Justice Chang, in his ruling, said that this later became a source of dispute; the government viewed employees entering public service as being subject to the payment of agency fees unless they had exercised the option of joining the union while the GPSU viewed the same employees as union members being subject to the payment of union dues unless they had exercised the option of not joining the union. Chang said this problem remained and that confusion festered throughout the years, “perhaps to the discredit of both parties.”
The Court observed that GPSU had no contractual relationship with non-union public service employees, so in order to enable the GPSU to benefit from agency fees, the then PS, in a circular, had written to all Permanent Secretaries and Heads of Department to include the deduction of agency fees as a condition of employment for new entrants into the public service.
In February 1999, the then PS of the Public Service Ministry (PSM), Rovin Sivanand, served on the GPSU a 90-day notice to terminate the 1976 Agreement for non-compliance with Clause 8 of the Agreement. But GPSU maintained that it was the persistent failure on part of the government departments and ministries to submit accurate information required under the 1976 Agreement which stymied its efforts to update its records and book-keeping in a timely manner.
Chang said that despite the expiry of the notice, it appears that the government continued to make deductions and to make remittances to the union. Gopaul then assumed the PS position in 2000 and he wrote the union and offered a 30-day extension of time to comply with Clause 8 of the 1976 Agreement; GSPU again pointed to what it termed breaches from the government.
On June 7, 2000 Gopaul wrote the union reiterating that GPSU was in continuing breach of the 1976 Agreement and stated that the deduction of agency fees could no longer be facilitated. The letter also said that the government would deduct union dues only from employees whose written authority to do so was forwarded to the various agencies. The circular was then sent out to the heads of autonomous agencies advising them not to pay agency fees or union dues to GPSU.
The Chief Justice said it was not disputed that GPSU was in breach of Clause 8 of the Agreement and that the union was not in a position to remedy that breach despite having been afforded time to do so by both the former PS in the PSM, Sivanand and Gopaul. According to Justice Chang said the situation cried out for governmental action since the administration could not allow the Agreement to continue to be honoured in the breach.
He ruled that the Court cannot determine whether Gopaul’s decision to issue the circular was “right or wrong” but only whether it was “lawful or unlawful.” Chang continued, “…And the Court cannot, on the admitted and undisputed facts, find any basis for holding that the defendant (Gopaul), in issuing the Circular (14 0f 2000), acted unlawfully i.e. without lawful authority.”
He said that Rule 3 (b) which was added in 1987 was rule of membership by non-election or, to put it in constitutional language, association by not electing to associate. Chang said it was a case of deriving a positive from a negative, adding that “it was not only irrational but unconstitutional” since the constitutional right to freedom of association has it corollary and natural concomitant the constitutional right not to associate. “Any presumption of association derived from the negativity of non-election to associate necessarily infringes the constitutional right not to associate,” the Chief Justice stated.
Still on the issue, he said, the application of Rule 3 (b) necessarily but wrongly served to inflate the numerical strength of the membership of the union and to that same extent served to deflate the numerical strength of non-union employees liable to pay Agency Fees rather than union dues.
“In the circumstances, this Court is unable to make the finding that the defendant acted unlawfully or in bad faith or with reckless disregard for the legality or illegality of his action in terminating or indefinitely suspending the 1976 Agency Agreement…” Chang added.
Justice Chang found that Gopaul’s act did cause foreseen financial harm to GPSU, but noted that the question arises as to whether the court can find on the undisputed facts that Gopaul acted unlawfully “when as PS in the PSM he effectively terminated or indefinitely suspended the 1976 Agreement by way of a circular No.14 of 2000.”
The court also observed that GPSU had deemed the monthly statement and returns submitted to it under Clause 5 in respect of non-union members and their agency fees as inaccurate, but the court asked on which basis the GPSU had concluded the government was furnishing it with inaccurate information when it was the government which was recruiting the new employees and making the agency deductions.
Further, he said that in respect of the deduction of union dues in particular, the GOG was merely acting as the agent of the union for the purpose of withholding and remitting such dues to the union, noting that the withdrawal of such agency service by GOG did not mean that such dues were not collectible. “It meant merely that the GPSU was tasked with collecting such union dues itself. As such, unlike the case of Agency fees, if the plaintiff union suffered any financial loss, it was on account of its own inaction”, the judge said.
Justice Chang observed that since the 1976 Agreement preceded the coming into operation of the Trade Union (Amendment) Act 1984 and there was no amendment to that Agreement, that Agreement remained unenforceable in law in its entirety.
“In truth, the 1976 Agreement represented a conspiracy between the G.O.G and GPSU to render non-members of the GPSU, who entered the services as from March 1, 1976, contractually liable to pay “agency fees” for the benefit of the GPSU even though they were not members of the union. Thus, GPSU became the recipients of union dues from its own members and “agency fees” from non-members through collaborative action of the G.O.G…” the Chief Justice said.
President of the GPSU Patrick Yarde, reacting to the decision last week, said that he was in a “state of confusion” when Justice Chang dismissed the application.
“I am still in a state in confusion…certainly I am disappointed,” Yarde commented. He said the union is still awaiting the written ruling, but that an appeal was likely.
