The Guyana Government says that Justice Sandil Kissoon’s ruling yesterday declaring the recent teachers strike as legal and preserving their pay overturns a salutary principle that guides industrial relations.
The judge yesterday upheld the Guyana Teachers’ Union (GTU) argument that their four-week-long strike was legal and therefore the state was debarred from deducting pay from the strikers. (See other story on page 3.)
“The law, and indeed industrial relations in Guyana, in both the public and private sector, have been turned upside by a decision of High Court Judge Sandil Kissoon today in the GTU case”, the government said in a statement, reiterating that the decision would be appealed all the way to the Caribbean Court of Justice (CCJ) if necessary.
In the ruling yesterday, the government said that the High Court has completely dismantled a salutary principle which has struck a vital balance between the employer and the employee in industrial relations for centuries.
“The Court ruled that the ‘no work no pay’ principle no longer applies to Guyana – a position that does not obtain either in the Commonwealth Caribbean or indeed this hemisphere. The repercussions that will flow from this ruling will have devastating impact on industrial relations both in the private and the public sector. Workers now can strike with impunity and they will have to be paid. In so ruling, and in an effort to find a constitutional right for the worker, the Court simultaneously is depriving the employer of his property (wages). By this ruling, the employer will have to pay for work not done and value not received. That payment constitutes the employer’s property which is also constitutionally protected as a right”, the government said.
The court’s ruling yesterday appears to suggest that the union had done everything necessary to enable it to strike and not that anyone could strike with impunity.
The government said that in arriving at the conclusion that it did, the Court failed to recognize the difference between a freedom to strike, which is provided for by the Constitution, and a right to strike, which is not provided for.
“The Court has conflated these two different concepts, ignoring the profound repercussions. The exercise of the freedom would have allowed the principle of ‘no work no pay’ to apply, hence the drafters of the Constitution using the term freedom to strike. However, assuming that it is a ‘right’, no right is absolute. Every right is subject to the rights of others. By converting this freedom into a right, the Court has now made strike actions subject to payment of wages, as the exercise of a right cannot attract an adverse consequence. In so doing, the Court has ignored the provisions of the Labour Act and the very Constitution, both of which recognize wages as a reward for work done or to be done. Thus, protecting the fundamental right of the employer to his property”, the government argued.
It added that the Court has not only ignored existing legislation but has infringed upon the lawmaking power of Parliament by making new law rather than interpreting existing law, thereby violating the essence of the separation of powers doctrine.
Similarly, the statement said that the Court has ruled that the Government’s decision to terminate an agency service that it has offered the GTU by the deduction of union dues from teachers’ salaries and remitting same to the Union was arbitrary, unlawful and unconstitutional. This service by the Government is indisputably not grounded in law, the statement charged. It said that it forms part of the Executive’s policy and decision making and ought not to be reviewed by a Court.
“In order to derive a jurisdiction to review it, the Court found that the deduction and remittance of union dues by the Government is an integral part of the trade union’s constitutional right and that stopping this gratuitous service would deprive the union of their ‘lifeblood’ – a quantum leap! It is common knowledge that there are several trade unions in Guyana collecting their own union dues. Millions of unions around the world are collecting their own union dues, surviving without any government collection service of their ‘lifeblood’.
“Worse yet, without any evidence on the record, the Judge found that the Government has not terminated this service in respect of other unions. But, in fact, as the Nanda Gopaul case against the Public Service Union illustrated, a case put before the Court, the Government actually terminated the very service in respect of the Public Service Union, twenty-four (24) years ago. That union is still functioning”, the government said.
The government also took aim at the judge’s criticisms of several public officers.
“Based upon reports received, the Government is appalled at the intemperate and injudicious language used, by the Judge, in particular in respect of outstanding public officers who are simply discharging their public duties and only became part of the case in the performance of those duties. Judges enjoy legal immunity on the bench and must be cognizant that they cannot be sued for what they say or write. Language befitting of the prestige and nobility which attach to the office of a judge is therefore a prerequisite. It must be within the realm of the Executive and the public to demand such probity from our judges. They owe the citizenry no less”, the statement added.
The Government said it also wishes to make it clear that pursuing the recourse of an appeal is not in any way intended to detract from its “unwavering commitment to address all the reasonable and legitimate concerns of our teachers and indeed, all of our workers”. It added that the appeal of the judge’s ruling will be pursued for the larger implications the decision will have on the industrial climate in our country and to attempt to restore the law to its proper course.
The government has steadfastly refused to engaged in collective bargaining with unions, a right enshrined in the constitution of Guyana.
