Saying that it is “dissatisfied with the whole” of the April 19 decision of Justice Sandil Kissoon in which he issued a stinging rebuke to the Ministry of Education, the state yesterday filed a notice of appeal against the judgment and it is also seeking a stay of execution of part of the judgment that bars the Education Minis-try from discontinuing the deduction of union dues from teacher’ salaries and remitting same to the GTU.
In its notice of appeal, filed through the Chambers of the Attorney General, the government is seeking an order setting aside the whole of the decision including the Orders and Declarations made, an Order that the Respondents pay costs and any further order the court may see fit.
In his affidavit to support the appeal and the stay of the ruling as it relates to the union dues, Chief Education Officer, Saddam Hussain, averred that he had attached a statement from the Deeds and Com-mercial Registry Authority (DCRA) confirming that the Guyana Teachers’ Union (GTU) had not filed annual returns as required by Section 35 of the Trade Union’s Act, Cap.98:A3 since the year 2004.
He argued that after conducting this review, the government, in the exercise of its executive policy-making power, resolved to cease offering the gratuitous service of deducting union dues from the salaries of teachers and submitting them to the GTU. He said the GTU was so informed by a letter dated February 06, 2024.
The union 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 19, Justice Kissoon, who delivered his written decision on May 20, said, “Teachers lifted their voices and they asked for bread, they were given stones.”
He had 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.”
Misdirected
However, in its grounds for appeal, the state argued that the judge misdirected himself in law having found since in their estimation, the GTU’s pleadings could not withstand judicial scrutiny and the judge failed and/or refused to strike out the pleadings as being “frivolous, vexatious, and as disclosing no cause of action.”
“The Learned Trial Judge erred in law in considering issues which were not properly and adequately pleaded or pleaded at all, and which did not fall to be determined by the Court,” the grounds of appeal argued.
Further, it was argued that Justice Kissoon erred in law when he held that the ‘no work no pay’ principle was raised by the pleadings as an issue to be determined and also erred when he found that there is no difference between a right to strike and the freedom to strike, notwithstanding that the Constitu-tion of Guyana, Chap. 1:01 does not provide for a right to strike, rather, the freedom to strike is expressly guaranteed by Article 147 of the Constitution.
“The Learned Trial Judge erred and misdirected himself in law when, in construing Article 1.47(2) of the Constitution, he failed to give any or adequate consideration to the fundamental right not to be deprival of property as guaranteed by Article 142 of the said Constitution.”
It was also argued that the judge erred and misdirected himself in law when he held that the strike action called by a trade union was “justified,” and that the ‘no work no pay’ principle had no applicability, and that the employer was required to pay wages which had not been earned, contrary to and in contravention of the provisions of the Labour Act, Chap. 98:01.
“The Learned Trial Judge erred in law and fact when he found that the Government’s discontinuation of the gratuitous deduction of union dues and the remittance of the same to the Respondent, Guyana Teachers Union, constituted a direct interference with the Union’s right to collective bargaining as guaranteed by Article 147 of the Constitution,” the notice of appeal further stated.
And according to the government, a fundamental error of law and fact was made by Justice Kissoon when he found that the cessation of the deduction of union dues from teachers’ salary and the remittance of same the GTU, would destroy the union; “as this was speculatory, there being no evidence before the Court to make such a finding.”
It was also stated that Justice Kissoon further erred in law and in fact when he determined, in the absence of any evidence, that the Government of Guyana discriminated against the GTU by ceasing the deduction of union dues from the teachers’ salary and remitting same to the Union.
And as to the finding that Chief Education Officer Hussain’s entire testimony was not credible and could not be relied upon, the notice of appeal argued that a significant portion of the evidence was shown to be credible by the GTU’s own witness, who accepted the same evidence.
Another error in law, according to the notice of appeal, was made when the judge failed to consider and/or attach any or sufficient weight to the substantial portions of the undisputed evidence of the Appellants to make the finding that the government did not engage in collective bargaining and did not act in good faith in its negotiation with the GTU.
The undisputed evidence, according to the government, includes the fact that the GTU and the government, being involved in ongoing negotiations as at January 31, 2024; that the GTU on that same date made a statement that it was pleased with the process in when they were engaged with the Ministry of Education, and whereupon, agreeing to fixed dates for continued engagements with the MoE; and the GTU President’s expressed intention to meet with the teachers and members to resolve concerns.
Other undisputed evidence included the evidence of the GTU’s witness, Julian Cambridge, that the parties were in negotiations during the meetings after August 2020 up until January 2024; Cambridge’s evidence that the government had responded to many of the requests which had been made in the Multi-Year Proposal for 2019 to 2023.
It was also argued that Justice Kissoon erred in law and in fact, when he failed to consider that the ongoing negotiations between the government and the union constituted collective bargaining; moreso, good faith collective bargaining, as evidenced by the government’s honouring of numerous requests by the Respondent as contained in its 2019-2023 multi year proposal.
‘Lack of good faith’
According to Hussain, in his Affidavit of Support, in taking the decision to discontinue remitting union dues to the GTU, the government took into consideration, the lack of good faith displayed by the union in resorting to strike action – an industrial process of last resort – despite ongoing engagement between the two sides. He argued that those engagements resulted in the granting, to date, of some 30 of the 41 demands made by the GTU in the 20l9-2023 Multi-Year Proposal and an additional 28 measures granted on the Government’s own initiative.
The government, according to Hussain, also took note of the GTU’s breach of the 1990 Avoidance and Settlement of Disputes Agreement by seeking arbitration unilaterally, and then proceeding to strike in the face of the ongoing good faith negotiations between the parties.
“The Government of Guyana could not in the prudent exercise of its responsibilities, continue to participate and facilitate the deduction of Union dues from teachers’ salaries and remit same to the Applicant, in the face of the blatant statutory breaches committed by the [Respondent GTU], more particularly set out as follows: failure to file annual returns for close to 2 decades…; and failure to submit Financial Statements for the [Respondent GTU] for auditing for over 35 years: (see Auditor General’s statement exhibited hereto as ‘SH-A3’ confirming that the last Financial Statement submitted by the [Respondent GTU] to the Audit Office was in 1989),” Hussain stated.
He also pointed out that the government was not offering such gratuitous service to any other trade union in the county, and that continuing to offer this service to the GTU would be in violation of Article 149 of the Constitution of Guyana which guarantees equal treatment and protection against every form of discrimination.
In his judgment, Justice Kissoon 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 5, 2024, and March 4, 2024, would be arbitrary, unlawful, unreasonable and without legal basis.
Further, the declaration that government’s decision contained in a letter of February 6, 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 guaranteed 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.
