High Court rules teachers’ strike justified, salaries cannot be deducted; govt must process union dues

Last Updated on Friday, 19 April 2024, 13:31 by Denis Chabrol

Guyana’s High Court on Friday ruled that teachers’ strike earlier this year was justified as their constitutionally enshrined fundamental right to collective bargaining was violated by the employer-the government- and so they could not lose pay for days off the job.

Justice Sandil Kissoon declared that the government of Guyana, as the employer, has engaged in acts which constitute substantial interference and denial of the fundamental right guaranteed the applicant union for collective bargaining.

Further the court declared that any deduction or withholding of remuneration by the Government of Guyana, from the salaries of teachers who were engaged in industrial action between 5th February and 4th March 2012 because it would be arbitrary, unlawful, unreasonable or unconstitutional and without legal basis.

“Teachers lifted the voices and they asked for bread, they were given stones. The union wrote letters to every person in authority requesting an engagement and to be heard on matters pertaining to the livelihoods and they were ignored. These are the circumstances leading to the strike, which lasted for some 29 days,” High Court Judge, Sandil Kissoon said in handing down his decision.

The court  declared that the strike from February 5, 2024 and the March 4, 2024 was “lawful and legitimate.”

Representing the GTU was Attorney-at-Law Darren Wade. The Guyana Trades Union Congress, which joined the case as an interested party, was represented by Attorney-at-Law Roysdale Forde.

In response to the Guyana government’s arguments that striking workers could not be paid for days they were off the job, he said that common law principle could not be applied in this instance.

The Judge said the teachers’ strike was justifiable because despite the passage of three years there was no engagement between the union and the employer to discuss the matter, there was no collective bargaining in good faith despite the submission of the multi year proposal but there were a series of unilateral impositions which had the effect of undermining and sidelining the authority of the Union. Mr Kissoon noted that every attempt by the union to bargain in good faith was shunned or rebuffed by persons in authority at every level did meaningful process of collective bargaining; attempts to invoke the offices of the Chief Labour Officer of the Minister of Labour, to exercise the powers and functions of the office to mediate, reconcile and to proceed to arbitration were to no avail.

In relation to the government’s decision to stop the deduction of union dues and remittance to the GTU, Justice Kissoon said based on the reasons of alleged criminal conduct and no opportunity for the union to defend itself amounted to bad faith, illegal and unconstitutional and so “has to be struck down.”  Touching on the fact that the GTU then had not submitted its accounts to the Registrar of Unions and the Auditor General’s Office. Justice Kissoon said the union’s members are entitled to the right to freedom of association and so the refusal by government to process the union dues and so had to be “struck down summarily.” “The decision of the government is contained in that letter of sixth of February 2024 goes beyond mere hinderance the substantial interference denial and abrogation of the fundamental rights guarantees under Article 147 and was accordingly be struck down,” he said. The judge observed that it was only the GTU that was targeted by government’s decision to stop the check-off system.

The judge said workers enjoy the right to both collective bargaining and the right to strike legally and justifiably, as enshrined in Guyana’s constitution, a landmark decision in Canada and international conventions

Justice Sandil Kissoon also found that government refused to negotiate increased salaries  with the Guyana Teachers Union, despite the fact that several efforts had been made by the union to engage the government on the 2019-2023 proposed multi-year agreement.

“The evidence before this court reveals and I so find, that all efforts by the union commenced the process of meaningful engagement and collective bargaining to address the issues of wages and salaries and matters pertaining relevant to the conditions of their employment were  rebuffed or were not addressed,” the GTU said.

Justice Kissoon said acts by the government had the effect of “sidelining and undermining” the GTU. Those include President Irfaan Ali’s meeting with a section of teachers at State House to which the union was welcomed to participate. The judge found that that did not amount to collective bargaining with the recognised uni0n. He questioned how could there be a nationwide consultation by the employer, which logically included members of the union but the union was not involved.

The Chief Labour Officer of the Ministry of Labour was also cited by the High Court for contributing to the strike action after becoming aware of the strike on January 23 and during the strike that commenced on January 25, 2024.  The judge found that the omissions by the chief legal officer  amounted to an “abdication of his duties, and his functions, a dereliction on his part to exercise, independently, inform himself and office as to what were the relevant and material facts from credible persons and credible sources to permit him to come to a decision.”

Justice Kissoon  said there was no evidence before the court of that there was ever a scheduled meeting or an agenda  to discuss matters of wages and salaries with the Guyana Teachers Union. In fact, the evidence, according to court, shows that the union had been asking each representative to commence a “meaningful  process” of collective bargaining on its multi-year proposal.  He said there was a “complete failure, complete dereliction” to engage in the process of collective bargaining.

He observed that “this singular striking piece of evidence for the court that there was no collective bargaining” as there was no consideration of the 2019-2023 multi-year proposal as it was initially placed on the agenda  at a meeting on March 12, 2024 “until it was removed.” Government had cited the absence of fiscal space and that the GTU should submit a new multi-year proposal from 2024.

Justice Kissoon criticised Chief Education Officer, Saddam Hussain, saying that based on his evidence that he was not being full and frank with the court. In addition,  the court found that spreadsheet data that accompanied the Chief Education Officer’s affidavit was “inaccurate and self serving” and no doubt was intended to deceive the court and could not be acted upon nor relied upon.

In relation to the  Ministry of Education’s decision to quash the automatic deduction and remittance of union dues to the GTU, Justice Kisso0on said the letter purporting to communicate that decision was that opposition parliamentarian, Coretta Mc Donald was central to the  strike. “Such action decision is arbitrary, discriminatory, constitute constitutes a violation of Article 149 D of the Constitution,” he said.  The court said  a decision to deny a union of financial resources seems to strike at the very root of the heart of freedom of association that is guaranteed in Guyana’s constitution.

The court found that the testimony by GTU Vice President Julian Cambridge was credible.