With the release yesterday of Justice Sandil Kissoon’s written judgment declaring the strike action by the Guyana Teachers’ Union (GTU) to have been legal and justified, it is expected that government will now move forward with filing an appeal as it has vowed.
The GTU had gone to court to challenge the government’s decision to deduct pay from striking teachers and the intention to cease deduction of dues from teachers’ pay in favour of the union.
In his decision of April 19th, Justice Kissoon said “Teachers lifted their voices and they asked for bread, they were given stones”.
He declared that the government’s actions, which included deducting pay from striking teachers and ceasing deductions of dues for the union, were unconstitutional, unlawful, and interfered with the fundamental rights guaranteed to the union for collective bargaining.
In his 134-page written decision seen by this newspaper, detailing the reasons for his ruling, Justice Kissoon commenced with an historical overview of the evolution of what he said was a “struggle…for fair wages and improved conditions of labour.”
He underscored this point after quoting paragraphs 1- 4 of the Preamble to the Constitution.
The Preamble of the Constitution the Judge said, “chronicles the bitter struggles and aspirations of our forebears for freedom, humane conditions of work and to be accorded the dignity of equal human rights after being forced to endure long, tumultuous, unbearable human degradation, inhumanity and suffering in a work environment of agonizing labour in subhuman conditions.”
He continued, “Out of this suffering and struggle; following revolts, rebellions, riots and strikes, the campaign for fair wages and improved conditions of labour remained turbulent and perilous until the emergence of the Trade union movement commencing with the British Guiana Labour union in 1919 formed in the colony of British Guiana by Hubert Nathaniel Critchlow to advocate on behalf of workers for more advantageous conditions of employment.”
“The descendants of slaves and indentured servants” he said, led Guyana to its independence on May 26th, 1966 “winning the freedom of the former colony.”
After laying that foundation, he said that the 1966 Constitution of Guyana, alike in model and pattern to the Westminster Constitutions of the newly independent Common-wealth countries, was described by Sir Fred Phillips QC, in Common-wealth Caribbean Constitutional Law, 2002, p. 144, as ushering in new ideals, certain rights, freedoms and guarantees of a fundamental nature individually and in the collective including the Freedom of Association, now Article 147 of the Constitution of Guyana.
This freedom Justice Kissoon said, was central to the case brought by the union for teachers, while stating that the issues which arose for determination were significant and transcended the parties; and was the reason he had ordered that notice of the proceedings be given to the Chief Labour Officer and to the Federation of Independent Trade unions of Guyana (FITUG) pursuant to Section 7 of the Judicial Review Act to afford those bodies an opportunity to be heard though they made no applications or submissions but did have a representative each.
Distinction
The Judge said that the distinction between Guyana’s constitutional framework and the rest of the Commonwealth Caribbean territories flows, not exclusively from Article 147 which guarantees the fundamental human right of freedom of association, its elements of collective bargaining, the right to strike and the existence of an independent, functioning resolution of dispute mechanism, particularly where the State is the employer—but from Articles 39(2) and 154(A)(1) which mandates the Court to incorporate international law, international conventions, covenants and charters into the realm of domestic law when interpreting the fundamental human rights provisions contained in the Constitution as granting at least the same level of protection as is granted under international human rights instruments.
Justice Kissoon said that in the course of the proceedings, he found that the State which he also referred to in his decision as the government and/or the Ministry of Education, as employer, “acted with impunity in violation of the Constitution” and has, over a protracted period extending over three years, engaged in a wilful, deliberate and systematic suppression and denial of those core human rights that are fundamental to labour.”
In particular, he said, was the right to bargain collectively as guaranteed under Article 147 of the Constitution as part of the freedom to associate and further has denied to the members of the Applicant Trade Union, an effective functioning mechanism he said, for redress itself, an important constituent component and protection guaranteed under the fundamental right to freedom of association.
Mala fides
Justice Kissoon said he further found that “the State by its egregious conduct and actions attendant with arbitrariness and bad faith, singularly precipitated and prolonged the strike, engaged in simultaneous acts tainted with mala fides and discrimination to sanction the striking teachers and to break the union in violation of Article 147 and Article 149 D of the Constitution by unlawfully and arbitrarily attempting to deny the union its source of funds, by seeking to terminate with immediate effect the checkoff system for the collection and remittance of union dues without affording it an opportunity of being heard, without prior consultation and in violation of its legitimate expectation, which checkoff system had been in existence in excess of thirty four years and invoking a principle of the common law in the circumstances of a lawful and legitimate strike in which it was not applicable.
Noting the state’s contention on this issue that its decision in this regard was insulated from judicial review by the Court, as being part of the government’s policy; Justice Kissoon said that it was thereafter “singularly responsible for the collapse of negotiations” between the Union and the Ministry of Education when., in an act of bad faith, it unilaterally and arbitrarily, resiled, nullified and reneged from the negotiated terms of the mediation agreement upon which the union had acted in reliance upon the State’s representations in the mediation process that the State and the Union would engage within 48 hours in good faith negotiations on the multiyear proposal for the period 2019 -2023 and other issues as determined by the parties and had accordingly ended the strike.
“Such was the conduct of the State as employer which was attendant before, during and after the strike in its dealings with the nation’s educators,” the Judge said; even as he added that the contention advanced by the State the Court found, was without merit.
Justice Kissoon reasoned the State’s contention to have been that “irrespective of its abhorrent and grave constitutional infractions and collective blanket denial of the fundamental rights of the members of the Union to collective bargaining and the direct catastrophic consequences resulting in public institutions of learning being shuttered, classes in abeyance and thousands of school children at home, it ought to be permitted, on the basis of the common law, to deduct monies from the wages and salaries of educators who were driven on to the streets following the concatenation of events which provoked the strike and being left without recourse or a functioning mechanism for redress for the avoidance of industrial action.”
Justice Kissoon said that the State through its Attorney General (the Respondent), highlighted as apparent distinction between a right and a freedom in support of its argument as to the limited nature of the protection of the fundamental human right to freedom of association guaranteed by Article 147, its subservience to the common law, and by extension, the restriction on the Court to examine and inquire into the circumstances leading to the strike.
That State’s reasoning against this background the Judge pointed out, was that irrespective of howsoever atrocious the actions and conduct of the State as employer was in provoking the strike, those fundamental guarantees are mere freedoms, the scope of which limits the protection and renders same subject to the common law principle of” no work no pay “regardless of whether the strike is lawful and legitimate.
Purposive
Justice Kissoon said he found that, in interpreting the nature of the protection of the fundamental human rights and freedoms contained in Article 147 of the Constitution, the Court was required to adopt a broad, liberal purposive approach consistent with the nature of the protection accorded by such fundamental human rights and freedoms by which he said he was permitted to examine the evidence of the circumstances leading to the strike, the actions and conduct on the part of the State as employer to arrive at the conclusion and finding that in the factual circumstances of the matter, the strike was lawful and legitimate and consequently bodes no application of the common law principle of no work no pay.
Justice Kissoon said it has been argued that such an interpretation of the fundamental human rights provisions contained in the Constitution lends to chaos and means that the State as employer is being made to pay workers engaged in industrial action.
He said he found, however, as a question of fact on the evidence adduced, that there was a legal and justified strike by the members of the Union flowing from the persistent violation by the State of Article 147 which protected the right of the members of the Union to engage in collective bargaining in good faith as part of the freedom of association guarantee and which imposed a corresponding obligation upon the State to bargain in good faith in a meaningful process of consultation and engagement.
Citing case law precedent, the Judge noted that “the principle of good faith in collective bargaining implies recognizing representative organizations, endeavouring to reach an agreement, engaging in genuine and constructive negotiations, avoiding unjustified delays in negotiations and mutually respecting the commitments entered into, taking into account the results of negotiations in good faith.”
In the circumstances of the matter that was placed before him, Justice Kissoon said he found that to conclude that a legal and justified strike flowing from the infringement of Article 147 is analogous to “no work with pay” is to shred the fundamental human rights and freedoms guaranteed and protected in the Constitution, render these human rights meaningless and relegate them to mere paper promises as it permits the State to act in reliance on its own gross constitutional violations to deduct wages of the striking teachers.
The Court found this contention by the State “to be simplistic and one which fails to take cognizance of the nature and brevity of the protection accorded fundamental human rights and freedoms articulated and enshrined in Part 2 of the Constitution of Guyana.”
Justice Kissoon went on to make several declarations—among them that—the government as employer had engaged in acts which constituted a substantial interference and denial of the fundamental human rights of the members of the Union to engage in collective bargaining as guaranteed by Article 147(3) of the Constitution for the protection of the fundamental right to freedom of association.
He also granted a declaration that any deduction or withholding of remuneration by government from the salaries of teachers who were engaged in industrial action between February 5th, 2024 and March 4th, 2024 would be arbitrary, unlawful, unreasonable and without legal basis.
Further, the declaration that government’s decision contained in a letter of February 6th, 2024 issued by the Permanent Secretary of the Ministry of Education to discontinue the deduction and remittance of Union dues under the check off system constituted a violation of Article 147(1) of the Constitution which guarantees to the members of the Union the fundamental right of Freedom of Association.
He finally declared that decision to have been discriminatory and in violation of the fundamental rights guarantee under Article 149(d) of the Constitution, the effect of which he said constitutes a substantial interference and denial of the fundamental rights guaranteed under Article 147.
That decision he said, was one tainted with arbitrariness, mala fides and was unlawful as well as the decision denying the Union an opportunity of being heard before discontinuing the deduction and remittance of dues under the check off system, in breach of legitimate expectation.
