Last week, we began to highlight Justice Sandil Kissoon’s ruling on the industrial action taken by the Guyana Teachers Union (GTU) following the breakdown of talks between the Union and the Government over increases in the salaries of teachers. So far, we traced the background to the case culminating in the Union seeking the intervention of the Court because of the decision of the Government to deduct from the salaries of teachers for the days not worked and the threat to cease collecting union dues and remitting same to the Union. We also dealt with the introductory statement by the Judge as well as the decision summary.
In today’s we conclude our coverage of Judge’s ruling on the matter.
Issues to be determined
Justice Kissoon listed the following issues to be determined by the Court:
Whether the Authorities can withhold or deduct from the salaries of teachers, remuneration for the period they were engaged in industrial action.
Whether there is a right to strike under Article 147 of the Constitution.
Whether industrial action taken by the Union was legal and legitimate.
Whether Article 147 guarantees the Union the right to engage in collective bargaining and to enter into bargaining agreements.
Whether the Authorities can terminate the check-off system for the deduction and remittance of union dues.
The Government’s arguments
The Attorney General contended, among others, that:
The strike was unlawful, illegal, and political in nature.
The Union’s General Secretary is an Opposition Member of Parliament who was instrumental in calling the strike.
There is no right to strike emanating from Article 147 of the Constitution.
By virtue of the common law principle of “no work, no pay”, the teachers were in breach of their contract of employment and were not entitled to pay.
The Government is entitled to cease being a collection agent for the Union since it is an executive policy outside the scope of judicial review.
Arguments by the Union’s lawyers
The lawyers for the Union argued that:
Article 147 gives constitutional protection for the right to strike.
The decision of the Court of Appeal of Trinidad and Tobago in the Collymore case was based on the existence of a right to strike at common law.
The strike is protected by Article 147 as part of collective bargaining guarantee of freedom of association.
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, as provided by Article 39(2) of the Constitution.
Article 154(a)(1) and the Fourth Schedule to the Constitution highlight international human rights obligations as part of collective bargaining, including the International Labour Organisation (ILO) Convention No. 87 on freedom of association, collective bargaining, and freedom to strike.
The Saskatchewan case in Canada as well as the Economic, Social, and Cultural Rights to which Guyana is a signatory, have relevance to Guyana.
The common law principle of “no work, no pay” is not applicable where the Union was justified in proceeding on strike action. The Union stated that it would be relying on the Supreme Court of Canada’s decision in McGavin Toastmaster Ltd. v Ainscough where it was stated that ‘common law concepts of repudiation and fundamental breach cannot be invoked in relation to collective agreements which have not expired and where the duty to bargain collectively exists’.
The refusal of the Government to deduct union dues from the salaries of teachers and remit same to the Union is unconstitutional and bad in law.
The Judge’s consideration of the arguments
Justice Kissoon referred to the Collymore case where the Court of Appeal of Trinidad and Tobago held that the right of free collective bargaining and the right to strike are not included in the fundamental freedom of association contained in the Constitution of Trinidad and Tobago and are not protected as such. Noting that views among legal authorities on the ruling varied, the Judge considered the Government’s 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’. This was in reference to the amendment to Article 147 of the Guyana Constitution by Act No. 10 of 2003 which reads as follows:
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 found that the effect of the amendment was to ‘elevate, enshrine and protect a fundamental right and freedom’. He referred to the words of the late Reepu Daman Persaud in his presentation to the National Assembly when the related Bill for the amendment to the Constitution was being considered: ‘For the first time the right to strike is written into the Constitution. Though that right existed probably out of industrial agreement it was not directly written into the Constitution. Now that right is written into the Constitution’. However, although the Assembly unanimously approved of the Bill, it was not until two years later after it was re-tabled in the Assembly that it was assented.
According to the Judge:
The right to strike and collective bargaining are part of our legal landscape, its recognition and protection within our Constitution and article 147 may have been overdue and now forms part of the Supreme law of the land by the insertion of the two amendments to the freedom of association guarantee under article 147 and by article 39(2) which has fortified its presence beyond question.
On the question of whether deductions can be made from the salaries of teachers who were engaged in industrial action, Justice Kissoon noted that the practice in Guyana is, upon the cessation of the strike, a resumption agreement is arrived at that includes a requirement for no loss of pay during the strike period. After listening to the arguments by lawyers on both sides, including reference to several court cases, as well as the results of cross-examination of several witnesses, especially as regards the events leading to the strike, the Judge stated that deductions from wages and salaries are a matter of law and not one of discretion. He referred to Section 24 of the Labour Act Chapter 98:01 where it is stated that workers who are engaged in a legal, justified or legitimate strike are entitled to the payment of wages and salaries.
Justice Kissoon also cited ILO Convention 95 which states that ‘[d]eduction from wages shall be permitted only under conditions and to the extent prescribed by National Law on regulation or fixed by collective agreement or arbitration award’.
As reflected in the Decision Summary, the Judge considered that any interpretation of the constitutional provision contained in Article 147 of the Constitution 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’.
As regards the Government’s stated intention to cease collecting union dues and remitting same to the Union, Justice Kissoon stated that: (i) such an action was an attempt to deny the Union its source of funding; (ii) the Authorities acted in bad faith and with arbitrariness that caused the strike to be prolonged; and (iii) there was no prior consultation with the Union which was not afforded an opportunity to be heard rejected. He rejected the argument that the check-off system is a matter of policy and outside the realm of judicial review.
Judge’s ruling
Justice Kissoon ruled that, based on the evidence presented to the Court, he found that:
The strike by the Guyana Teachers’ Union was legal and justified.
By virtue of (a), the teachers are entitled to the payment of salaries for the days they engaged in industrial action as provided for by Section 24 of the Labour Act Chapter 98:01 as well as ILO Convention 95.
The decision of the Government of its intention to discontinue the deduction of union dues and remitting same to the Union was an act of mala fides, arbitrary and unlawful, intended to be used as a weapon against the Union in the course of a legitimate strike to force the members into submission to return to work and to break the Union. Such action cannot withstand the scrutiny of Article 149D of the Constitution and should be struck down as discriminatory.
Orders
At the conclusion of the case, Justice Kissoon issued nine Orders, including the following:
An Order that the Interlocutory Conservatory Orders granted on 22 February 2024 be made permanent.
Declaration is granted that the Government has engaged in acts that constitute a substantial interference and denial of the fundamental rights of members of the Union to engage in collective bargaining as guaranteed by Article 147(3) of the Constitution for the protection of the fundament right to freedom of association.
A declaration that any deduction or withholding of remuneration by the Government from the salaries of teachers who were engaged in industrial action would be arbitrary, unlawful, unreasonable and without legal basis.
A declaration that the decision of the Government to discontinue deducing union dues and remitting same to the Union constitutes a violation of Article 147(1) of the Constitution that guarantees to the members of the Union the fundamental right of Freedom of Association.
