A recommendation is not binding

Dec 31, 2009 Letters

Dear Editor,
I do appreciate being allowed to comment in your letter column on the ongoing GuySuCo/GAWU issue.
GuySuCo and GAWU wages talks broke down at conciliation on October 29, 2009. On the said day, GuySuCo wrote GAWU seeking its consent to refer the dispute to arbitration as provided for by the Collective Labour Agreement (CLA). GAWU responded seeking a meeting to discuss arbitration.
On October 29, 2009, the Chief Labour Officer wrote the parties advising them that the Han. Minister of Labour, conscious of the threat of industrial action, is satisfied that the continuance of the difference is likely to be gravely injurious to the national interest.
GAWU responded to the Chief Labour Officer (CLO) on October 30 advising that the parties will be utilizing the provisions of the CLA to arbitrate the issue. Nonetheless the Minister imposed arbitration.
Was the Minister’s imposition of compulsory arbitration in the national interest? The courts have said that in exercising powers conferred by statute, officials must act judicially i.e. fairly. A power to act “as he thinks fit” or “if the Minister is satisfied” does not allow a public official to disregard the elementary doctrine of fair procedure. The Minister must act reasonably and in good faith, and upon proper grounds.
GuySuCo requested arbitration, GAWU responded signaling its intention to agree; the parties were in the process of pursuing the grievance through the grievance procedure set out in the CLA.
Secondly, the workers were not on strike, the letter from the CLO spoke about a threat of industrial action. It should be noted that when arbitration was imposed in 2002 and 2008, the workers were on strike.
The imposition has not been challenged in the courts so one is left to come to his own conclusion whether the Minister acted fairly in not allowing the parties to use their own formula for a resolution and whether a threat to action was proper grounds.
Now to the Tribunal:
The tribunal’s terms of reference were to investigate the difference between GuySuCo and GAWU as it relates to wages and salaries for 2009 and to make an award.
The tribunal violated the terms of reference by making a recommendation instead of an award of 3%. Section 4 (1) (C) (2) of the Labour Act under which section the tribunal was appointed speaks to “award” and not “recommendation”. Section 4 (4) (C) says the award shall be binding on the parties.
In addition to the terms of reference the tribunal also did not comply with the Act.
Since a recommendation was made and not an award, it is not binding. A recommendation can be rejected or accepted but it could not be binding.
Had the Minister referred the dispute under section 6 of the Act then a recommendation would have been in order but not under section 4.
Again the courts have not been approached for an interpretation.
Permit me to comment on an article on page 12 of the Kaieteur News of December 17, 2009, where the Hon. Minister of Agriculture is reported to have said that he has ordered a review of remuneration. The Minister should know that a person’s contract of employment cannot be altered without his consent.
You can terminate, pay all terminal benefits, and then reemploy on new terms, if the person is willing to be engaged under the new terms.
The minister is reported to have said also, that the CEO will not be benefiting from the recent announcement of the three (3) per cent increase despite the fact that it is across the board. The minister is in error.
The Terms of reference of the tribunal reads:
“To enquire into the difference between the Guyana Sugar Corporation and the GAWU as it related (should be relates) to wages and salaries to be paid to those categories of employees of the Corporation that are represented by the Union for the year 2009 and to make an award as the tribunal deems fit.” The recommendation could, therefore, only be relevant to those categories of workers as are represented by GAWU and no one else. The Corporation could use it as a guide.
Even the NAACIE categories are not caught up in the recommendation; if they are given the same increase it could be an imposition. The tribunal’s recommendation of an across the board increase of 3.0 per cent for 2009 is a bit bald, and only relates to GAWU categories.
If they meant across the industry then it could be a violation. In 2002 both GAWU and NAACIE were mentioned in the terms of reference.
Mohamed Akeel

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