As if the Guyana Teachers Union’s (GTU) four-week strike did not present enough drama to the Guyanese populace, the ruling of the High Court judge on the issues presented to him is sure to put more of them into a tizzy. The most contentious issue was the union’s contention that the Ministry should not have deducted the workers’ salaries for days they were on strike and not performing their job. While it was accepted in the common law we inherited from the British and by the International Labour Organization (ILO) that workers could withhold their labour by “striking”, it was also accepted that employers did not have to pay them for the time they did not work.
As a matter of fact, over in England, in the case of Secretary of State for Business and Trade v Mercer [2024] UKSC 12 decided on April 17 – two days before Justice Kissoon’s ruling, and as such available to him – their Supreme Court had even referred to Article 11 of the European Convention of Human Rights (ECHR) and posed the question: What protection does article 11 require for workers who take part in lawful industrial action?” Article 11 states, ” 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests”, and 2, “No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The answer by the English Supreme Court bluntly stated, “It is common ground that article 11 (and indeed the ILO Convention) does not prevent an employer from withholding pay from a striking worker. That is unsurprising. At common law, there is and can be no entitlement to pay where the worker performs no work. This is not a question of justifiable detrimental treatment, as the Secretary of State submitted. Employers are recognised at common law (and by the ILO) as being within their rights to deduct pay from striking workers simply because there is no right to pay in circumstances where a worker is acting in breach of contract by withdrawing labour in this way. Such deductions are not sanctions and nor are they “detriments” at the domestic level.”
In our instance, Justice Kissoon ruled, contra, that the common law stricture was inapplicable because the GTU’s strike was a legitimate right and does not equate to “no work, no pay.” As the Government appropriately noted, “The Court ruled that the ‘no work no pay’ principle no longer applies to Guyana – a position that does not obtain either in the Commonwealth Caribbean or indeed this hemisphere. The repercussions that will flow from this ruling will have devastating impact on industrial relations both in the private and the public sector. Workers now can strike with impunity and they will have to be paid. In so ruling, and in an effort to find a constitutional right for the worker, the Court simultaneously is depriving the employer of his property (wages). By this ruling, the employer will have to pay for work not done and value not received. That payment constitutes the employer’s property, which is also constitutionally protected as a right.”
The ILO, in reference to the “Right to strike”, at 942 declares, “Salary deductions for days of strike give rise to no objection from the point of view of freedom of association principles.” And at 948 continues quite specifically in reference to Justice Kissoon’s ratio decidendi, “Obliging the employer to pay wages in respect of strike days in cases where the employer is declared responsible for the strike, apart from potentially disrupting the balance in industrial relations and proving costly for the employer, raises problems of conformity with the principles of freedom of association, as such payment should be neither required nor prohibited. It should consequently be a matter for resolution between the parties.”
