Dear Editor,
I was flummoxed by the revelation that “The GTU on Friday submitted its proposal to court-appointed mediators outlining the terms under which the country’s teachers will end industrial action and return to the classroom” (4.03.24) as I was unaware that this was among the reliefs sought from the court by the GTU and is therefore covered by the court-ordered mediation. From media reports it seems the case is about payments to striking teachers and the deduction of union dues. It did not seek to resolve the strike. Indeed, with a collective bargaining agreement in place that stipulates arbitration to be the dispute mechanism of choice it would seem to me that the Court’s jurisdiction in this regard is ousted, most egregiously, Attorney General Anil Nandlall did not seem to point out this crucial point to the Court.
How then did the issue of teachers ending industrial action become the subject of court mediation? According to a report in in the local media on 29/02/24 during the contempt hearing of Chief Education Officer, Saddam Hussien, Justice Sandil Kissoon ‘expressed concern for the nation’s children and questioned why there had been no movement by either the government or the GTU, towards resolving the matter’ then Justice Kissoon proposed mediation. Note the word ‘proposed’ as this became ‘court-ordered’ mediation the next day. The Guyana Chronicle reported ‘The Judge stated that the court hopes that after today’s mediation, issues can be resolved, potentially leading to teachers going back to the classrooms as early as next Monday.’ If I am correct about the Court not having jurisdiction, then the question of judicial overreach and a breach of the separation of powers arises. There should be no doubt the settlement of this strike is a matter that is firmly with the Executive branch of Government.
Collective bargaining has at its core a set series of events that occur in a particular sequence, and it is clear that should negotiations break down or be declared a failure, the parties move to strike and/or arbitration; This happened in the 1999 strike, organized by the Guyana Public Service Union (GPSU), which ended with a move to arbitration, with public servants being awarded pay increases – 31.6% for 1999 and 26.6% for 2000. Since ‘arbitration’ is the deliberate avoidance of court action by agreement of both parties to accept the decisions of an arbitrator/s, clearly this mediation has usurped the conventional(arbitration) process.
Editor, as noted earlier, Attorney-General Anil Nandlall is not without fault in this entire imbroglio, despite presenting logical, eloquent, and factual arguments that support the government’s positions on his Facebook page, the Attorney-General went to court and asked for more time to prepare a defense; going to Court to get a date treats the Court like Match.com and modern judges, quite understandably, won’t tolerate that; The Judge was left with little option but to issue the conservatory orders as he did, for as much as everyone knows the decision of Chief Justice Ian Chang in GPSU V Nanda Gopaul settles the law on the discretion of a government to deduct and pay forward union dues, a Judge needs that to be presented to the court, not on Facebook! Secondly, by not filing a defense, the AG left a void… a space, into which the Judge entered, unasked and unhindered.
Editor, I expected strenuous objections from the AG on this judicial adventure into ordered mediation of issues not before the court. The AG failed to argue this and allowed this mediation to proceed without strong protest; to compound the error, strange appeasement was offered “While the Government does not think that judicial intervention was necessary, having regard to the established industrial practices … the Government will participate in the process with the firm expectation that it will put teachers back into the classrooms …”. By becoming willing participants in this subversive process, government has ceded authority and has allowed a precedent to be set; suppose someone takes the Government to court over the rate of duty levied on a new vehicle, can the court then order mediation of the duties and tax rates set in the budget? This failure to recognize the dangers of acquiescing to this mediation and presenting a vigorous opposition condemns us as a nation of people ‘making it up’ as we go along without heed of principles or precedent. Quo Vadis?
Sincerely,
Robin Singh
