If I say so myself, by any historical standard, the 1992-97 Cheddi Jagan regime was the most productive period for legislation intended to protect the working people of Guyana. Indeed, as if deliberately intended to create an ideological legacy for Cheddi Jagan, of the nine Acts that define modern labour legislation in Guyana mentioned on the International Labour Organisation’s Caribbean website, five were passed between 1992 and 1997 and four in a single year, 1997. Even today, when the regime boasts of their having some of the most modern labour laws in the Caribbean, it is usually referring to the legislation of this period.
The Marriott labour controversy has brought one of these Acts – the Prevention of Discrimination Act, 1997 – to mind, but before considering it, some comments on the factors that contributed to the Ministry of Labour being able to pass such important legislation at that time.
The most important factor was the general goodwill that greeted the 1992 PPP/C government. People were generally fed up with the PNC and even trade unionists and others who supported it were willing to work with the incoming government. Thus, throughout this period, people like Joseph Pollydore and David Yankana, leaders of the trade union movement and private sector respectively, led labour delegations that worked as part of the National Tripartite Committee organised by the Ministry of Labour to fashion new legislation. These were seasoned operatives who were vigilant in the interest of their constituencies. On every piece of legislation, fierce private and public controversy raged for years, but everyone recognised that the public interest would be best served by the creation and maintenance of a positive working relationship.
Cheddi Jagan’s vision was of an inclusive Guyana; he had an abiding belief that it was possible to find some kind of formula to weld all our people together in the interest of national development. This, together with his steadfast belief in the working people, meant that any idea that sought to advance his holistic viewpoint was given full consideration. Objections were met with reasonable argumentations as Cheddi Jagan’s modus operandi was rooted in public information-sharing and debate.
The final factor was the labour activism of the Caribbean Community and the ILO at this period. They had developed model laws to aid the harmonization of Caricom labour legislation. To encourage governments to enact and implement the laws they were always at hand to help adjust the models to meet specific national conditions. The four most important Acts went through this process, thereby easing the burden on our legal draftspersons. This harmonization process appears to be still alive; a fairly recent review suggested amendments to bring the laws up to date (Review and Analysis of Compliance of the National Labour Legislation of Guyana with CARICOM Model Labour Laws 2007).
Before 1997, labour relations were essentially governed (and to some extent still are), by various pieces of up-dated colonial legislation. In addition to the Prevention of Discrimination Act, 1997, which I will consider next week, this period saw the enactment of modern laws dealing with holidays with pay, occupational health and safety, trade union recognition and termination of employment and severance pay. As the Holidays with Pay Act was a modern reenactment, this discourse will look at the other four Acts.
The 1997 Occupational Health and Safety Act (OHSA) was the first comprehensive legislation to deal with occupational accidents. The OHSA applies to every industrial establishment, self-employed persons and persons engaged in home work. It establishes the Advisory Council on Occupational Safety and Health. It provides for the appointment of a Chief OSH Officer and for the inspection of all industrial establishments and machinery. Trade union representatives are made part of the workplace OHS establishment, with powers to identify any source of danger and to make recommendations to the employer, the workers, and the trade unions representing the workers. As with all of legislation there is provision for prosecution and penalties for breaches.
The passing of the Trade Union Recognition Act, 1997 marked the legislative end of perhaps the most controversial piece of legislation in Guyanese history. Trying to pass it had contributed to the demise of two previous PPP regimes and pursuing it again said something for the tenacity of Cheddi Jagan. All stakeholders recognised the contribution the legislation, if properly drafted and implemented in good faith, could make to industrial peace, social cohesion and development, but as media reports of the time indicate, suspicions were rife and the negotiation process particularly acrimonious.
The Act seeks to promote improvement in the industrial environment by establishing procedures for workers, if they wish, to be represented by the trade union of their choice. It establishes a Trade Union Recognition and Certification Board to which a trade union must apply if it wishes to be certified as the recognized majority union. By way of a survey of the members or a secret ballot, the Board is empowered to determine and certify the majority union. Under threat of penalties, employers are required to bargain in good faith with the certified union.
For the first time in Guyana, the Termination of Employment and Severance Pay Act 1997 sought to provide a comprehensive framework for the termination of employment and for severance payment to be made on the termination of employment. It states the conditions under which redundancies may be made, e.g. where modernization is taking place, the business is being sold or closed, and contains a formula for calculating severance payments (an employee with one year or more years’ continuous employment is entitled to an allowance equivalent to one week’s wages for the first five years service; two weeks’ wages for the sixth to the tenth years and three weeks’ wages in excess of ten years subject to a maximum of fifty-two weeks).
I am not suggesting, like some politicians have a propensity to do, that laws in themselves are sufficient to protect; enforcement and consistent reforms are also vital. This is obvious from the recognition/arbitration controversy between the Guyana Bauxite and General Workers Union and Rusal. Yet having laws signifies the trajectory of our social aspirations and more concretely, represents an important and necessary stage in our attempt to protect in a sustained and equitable fashion. But in the final analysis, whether or not laws are enacted and effectively enforced depends upon the social power of those who can benefit from their enforcement. This is not to deny that, taken generally, notions of justice, belief in the rule of law, etc. are important, but these are usually insufficient to thwart the determined violator. As Thucydides said hundreds of years ago, “Right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must.”
henryjeffrey@yahoo.com
