Last week, on the occasion of World Environment Day, United Nations Secretary-General António Guterres stated that countries must confront not just the fossil-fuel industry, but also companies that support efforts to obstruct climate action. He asserted that the industry has been spending billions on ‘distorting the truth, deceiving the public, and sowing doubt’ about climate change, while investing just ‘a measly 2.5%’ of its total capital on clean energy alternatives.
The Secretary-General called on these companies to stop acting as enablers to planetary destruction in taking on new fossil-fuel clients, and to set out plans to drop existing ones. He also criticised financial institutions as well as media and public relations firms for supporting the industry’s advertisements and accepting content sponsorships. The Secretary-General noted that climate finance is not a favour but is fundamental to a livable future for all. He asserted that it is high time to put an effective price on carbon, and tax the windfall profits of fossil-fuel companies.
On 20 May 2024, Justice Sandil Kissoon issued his written judgment on the teachers’ strike in which he declared that the strike action by the Guyana Teachers’ Union (GTU) was legal and justified since collective bargaining between the Ministry of Education and the Union had not been properly undertaken. The strike was called by over the issue of salary increases for teachers after a breakdown in talks between the Union and the Government. Following the Government’s decision to deduct pay from striking teachers and its intention to cease deducting union dues from teachers’ salaries on behalf of the Union, the GTU sought judicial intervention as regards the Government’s action.
In today’s article, we discuss Justice Kissoon ruling.
Background to the case
Justice Kissoon traced the events leading to the strike taken by the GTU, as follows:
(a) The last agreement between the GTU and the Ministry of Education as regards terms and condition of employment of teachers including wages and salary increases and other benefits, was in respect of 2016 to 2018.
(b) In September 2020, the Union submitted a multi-year proposal for the period 2019-2023. However, the Authorities refused to engage in collective bargaining, despite several representations from the GTU to commence negotiations. Instead, the authorities engaged in arbitrary, unilateral imposition of wages and salaries.
(c) On 18 April 2023, the GTU wrote to the President requesting a meeting to discuss its proposals. However, there was no evidence of a response.
(d) On 11 September 2023, the Union wrote to the Permanent Secretary in relation to its attempts to commence negotiation of wages and salary increases for teachers but there was no response.
(e) On 21 September 2023, the GTU again wrote to the Permanent Secretary indicatiing that the Union would be activating Stage 3 of the conciliation process as contained in the Agreement dated 10 July 1990 intended for the Avoidance and Settlement Disputes.
(f) On the same date, the GTU wrote to the Chief Labour Officer requesting conciliation. The Chief Labour Officer responded by stating that from the correspondence received from the Permanent Secretary conciliation was not warranted.
(g) On 12 October 2023, the GTU wrote to the Chief Labour Officer requesting arbitration and setting out the basis for doing so, including the fact that the Ministry communicated its lack of authority or jurisdiction to engage the Union on financial matters.
(h) On 23 January 2024, the GTU wrote to the Minister of Labour giving notice of urgent pending industrial action commencing 5 February 2024 and setting out reasons for doing so.
(i) On 25 January 2024, the Chief Labour Officer wrote to the Union setting out his lack of response to the Union’s request for arbitration because it was based on the premise that the grievance procedure had not been exhausted.
(j) On 5 February 2024, the Union called the strike.
(k) On 6 February 2024, the Permanent Secretary wrote to the Union stating that the strike was unlawful and an expression of bad faith.
(l) The Ministry of Education issued a public notice informing teachers who were on strike that they would not be paid for the days not worked.
(m) The GTU instituted legal proceedings seeking administrative orders by way of declarations, writs and damages.
(n) On 22 February 2024, the Court granted conservatory orders restraining the Ministry from refusing to pay the teachers on strike for the days they had not worked and/or to cease deduction of union dues and remitting same to the Union.
(o) On 6 March 2024, the strike ended with the appointment of two Senior Counsels to mediate. The parties agreed to engage in good faith, especially as regards the proposal submitted by the Union for wages and salary increases for the period 2019-2023.
Issues to be determined
Justice Kissoon listed the following issues to be determined by the Court:
(a) Whether the Authorities can withhold or deduct from the salaries of teachers, remuneration for the period they were engaged in industrial action.
(b) Whether there is a right to strike under Article 147 of the Constitution.
(c) Whether industrial action taken by the Union was legal and legitimate.
(d) Whether Article 147 guarantees the Union the right to engage in collective bargaining and to enter into bargaining agreements.
(e) Whether the Authorities can terminate the check-off system for the deduction and remittance of union dues.
Introductory statement by the Judge
Justice Kissoon cited Paragraphs 1-4 of the Preamble to the Constitution that speak, inter alia, about forging ‘a system of governance that promotes concerted effort and broad-based participation in national decision-making in order to develop a viable economy and harmonious community based on democratic values, social justice, fundamental human rights and the rule of law…’ He traced the struggles of our foreparents for fair wages and improved working conditions, culminating in establishment of the trade union movement in the then British Guiana in 1919. He also referred to the 1966 Constitution and quoted Sir Fred Phillips QC as having stated that it ushered ‘new ideals, certain rights, freedoms and guarantees of a fundamental nature individually and in the collective including Freedom of Association…’ These requirements are now contained in Article 147 of the current Constitution:
Except with his or her own consent, no person shall be hindered in the enjoyment of his or her freedom of assembly, association and freedom to demonstrate peacefully, that is to say, his or her right to assemble peacefully, to demonstrate peacefully and to associate with other persons and in particular to form or belong to political parties, trade unions or other associations for the protection of his or her interests.
Except with his or her own consent, no person shall be hindered in the enjoyment of his or her freedom to strike.
Neither an employer nor a trade union shall be deprived of the right to enter into collective arguments.
Justice Kissoon cited Article 39(2) of the Constitution which states that in the interpretation of the fundamental rights provisions in the Constitution, a court shall pay due regard to international law and conventions and charters dealing with human rights. He also cited Article 154(a)(1) of the Constitution:
…Every person, as contemplated by the respective international treaties set out in the Fourth Schedule to which Guyana has acceded is entitled to the human rights enshrined in the said international treaties, and such rights shall be respected and upheld by the executive, legislature and judiciary and all organs and agencies of government… and shall be enforceable in the manner hereafter prescribed.
Judgment Summary
In his ruling, Justice Kissoon stated that the Government has acted with ‘impunity’ in violating Article 147 of the Constitution, and over a protracted period extending over three years it has engaged in a ‘willful, deliberate and systematic suppression and denial of those core human rights that are fundamental to labour in particular the right to bargain collectively’. This includes the freedom to associate and denying members of the GTU of ‘an effective functioning mechanism for redress itself an important constituent component and protection guaranteed under the fundamental right to freedom of association’.
Justice Kissoon found that the Authorities: (i) acted in bad faith and with arbitrariness that caused the strike to be prolonged; and (ii) simultaneously engaged in acts ‘tainted with mala fides and discrimination to sanction the striking teachers and to break the Union in violation of Articles 147 and 149D of the Constitution’ by attempting to deny the Union its source of funding through the check-off system for the collection of union dues and paying over the same to the Union. This was done without prior consultation with the Union and without affording it an opportunity to be heard. The Judge rejected the argument that the check-off system is a matter of policy and outside the realm of judicial review.
Justice Kissoon held that the State was 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 negotiation terms of the mediation agreement’. He rejected the argument that, on the basis of the common law, the Authorities should be permitted to deduct from the salaries of teachers for days that they have not worked.
The Authorities also contended that the amendment to the Constitution as contained in Article 147 was to codify the reasoning of the Trinidad Court of Appeal in the case of Collymore v. AG (1967) 12 WIR 5 and therefore should be narrowly interpreted and construed as such. Justice Kissoon, however, considered the argument ‘a constitutional absurdity’, asserting that ‘[i]n Guyana, the ghost of the Collymore case has been interred never to be resurrected as a matter of convenience and has been relegated to jurisprudence overruled by Parliament through direct constitutional amendment’. (The Collymore case involved a claim that a new Industrial Stabilisation Act 1965 in Trinidad and Tobago was ultra vires the country’s constitution that guaranteed freedom of association. The Act required no strikes pending binding arbitration. As a result of the challenge, the Act was repealed and replaced by the Industrial Relations Act 23 of 1972.)
Another argument put forward by the Authorities is that there is a distinction between a right and a freedom as regards the fundamental human right to freedom of association enshrined in Article 147 of the Constitution. In this regard, Justice Kissoon referred to the case Ontario (Attorney General) v. Fraser [2011] 2 SCR 3 in which the Supreme Court of Canada stated, inter alia, that:
The freedom to do a thing, when guaranteed by the Constitution interpreted purposively implies a right to do it. The Charter cannot be subdivided into two kinds of guarantees freedoms and rights.
… We also do not agree that the structure of the Charter reflects a rigid distinction between freedoms and rights…
After citing the rulings in other court cases, Justice Kissoon concluded that:
(a) The strike called by the Union was legal and justified in view of the Authorities’ infringement of Article 147 of the Constitution; and
(b) Any interpretation of this constitutional provision to mean “no work, no pay” is ‘to shred the fundamental human rights and freedoms guaranteed and protected in the Constitution of Guyana, render these human rights meaningless and relegate them to mere paper promises as it permits the state to act in reliance of its own gross constitutional violations to deduct wages from striking teachers’.
