Informe provisional - Informe núm. 331, Junio 2003

1. 416. The complaint is contained in a communication from Public Services International (PSI) on behalf of its affiliated organization, the Guyana Public Service Union (GPSU), dated 15 March 2002. The complainant sent additional information in communications dated 14 October and 12 December 2002.
2. 417. The Government sent a reply to some of the allegations in a communication dated 22 January 2003.
3. 418. Guyana has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Workers’ Representatives Convention, 1971 (No. 135), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant’s allegations

1. 419. In communications dated 15 March, 14 October and 12 December 2002, Public Services International (PSI) and its affiliated organization, the Guyana Public Service Union (GPSU), allege several anti-union acts aimed at weakening the GPSU.
   • Refusal to implement an agreement on arbitration
2. 420. The complainants allege that the real value of the minimum wage in the public service suffered great losses due to a decade of hyperinflation (1979-88) and has never regained the levels of 1977-78 when the first agreement on minimum wages in the public service was concluded. Moreover, since the change in Government in 1992, the GPSU has met with difficulties in establishing a working relationship with the new ruling party, which has always regarded the GPSU as closely affiliated to the previous regime. In 1993, the GPSU formed an alliance with three other public sector unions to address the real wage loss and several agreements were concluded with the Government on this issue in 1993-95 and 1998.
3. 421. The complainants add that in 1999 a 57-day strike staged over a pay claim ended after the terms of a Memorandum of Agreement were negotiated with the assistance of a mediating team. Article 8(ii) of the Memorandum of Agreement specifically stated as a condition for ending the strike that, “in future, where salary and wages negotiations fail to result in agreement and a third party conciliation of thirty (30) days fails, it is agreed that, until entrenched into the collective agreement, the parties will in respect of future disputes adopt the same method of arbitration as set in this agreement”. The complainants allege that two years later, in 2001, following the breakdown of negotiations for wage and salary increases, the Government refused to submit the dispute to arbitration in accordance with the Memorandum of Agreement, under the pretext that it was not a legally enforceable collective labour agreement and could not replace existing provisions inserted in the collective agreement and the Labour Act. The complainants contend that the Memorandum is legally enforceable and state that legal action has been initiated on this issue.
4. 422. The complainants further allege that in 2002 the dispute on wages continued. Whereas the Government initially agreed to put the dispute to arbitration, it subsequently reneged on its agreement. More specifically, the negotiations concerning the terms of reference of the arbitral tribunal broke down over the question of allowances. The complainants attach certain letters as evidence in this respect. Following this, the Government unilaterally determined that all public employees would be accorded a 5 per cent increase on their salaries and wages. The GPSU objected to the manner in which such an increase was decided, i.e. outside the duly constituted processes.
   • Withdrawal of facilities
5. 423. In communications dated 15 March and 12 December 2002, the complainants allege that the Guyana Public Service Ministry unilaterally altered established procedures for the collection of trade union dues and agency fees, with the aim to starve the union of funds and to ensure that it no longer had the means to effectively challenge the Government. The complainants submit that on 8 April 1999, the Permanent Secretary Public Service Ministry notified the GPSU that it had failed over the last eight years to comply with the terms and conditions of the 1976 agency fee agreement and gave a 90-day notice to terminate the agreement. On 11 January 2000, he addressed another letter to the GPSU informing it that the Ministry had not received any compliance in terms of clause 8 of the agency fee agreement nor had the GPSU indicated its position on this issue. The GPSU responded on 28 January that its failure to conform to clause 8 of the agreement was due in essence to the failure by the permanent secretaries of several ministries, heads of departments and regional executive officers to conform to directives given by the Permanent Secretary, PSM, in Circulars Nos. 43/1977, 8/1991 and 25/1991. The complainants do not explain the exact content of the agency fee agreement or the exact nature of the alleged failure to comply with the agreement. The complainants state that on 7 June 2000, while a conciliation process was pending, the GPSU was informed in writing by the Permanent Secretary, PSM, that the deductions of agency fees would no longer be facilitated. This decision is currently being challenged before the courts.
6. 424. According to the complainants, moreover, the Permanent Secretary also terminated a system for the collection of trade union dues which had been in existence since October 1954 under the pretext that there was no evidence to show that those from whom deductions were being made had authorized any such deductions. The complainants also attach a letter by the Permanent Secretary, PSM, in which it is stated that deductions of union dues continue to take place based on written authorization submitted by employees.
   • Anti-union dismissals
7. 425. The complainants allege anti-union dismissals in an effort to modify the bargaining units. The complainants state that three GPSU branch officers, one vice-president and two members were unjustifiably dismissed from the High Court Registry, the Ministry of Agriculture, the Guyana Forestry Commission and the MMA-ADA (William Blackman – Branch Officer, High Court Registry; Yvette Collins – Ministry of Agriculture; Leyland Paul – Branch Officer, MMA-ADA; Bridgette Crawford – Branch Officer, MMA-ADA; Barbara Moore – Guyana Forestry Commission; Karen Vansluytman – Member of the Central Executive Council and 3rd Vice President, High Court Registry). The complainants state that these grievances were brought before the High Court, in its quality as Public Service Appellate Tribunal. On 26 August 2002, the High Court issued an Order quashing the removal of six marshals and a clerical officer by the High Court Registrar and directed their immediate reinstatement and payment of their outstanding wages.
8. 426. The complainants state moreover that the Registrar refused to implement the Order of the High Court, and replaced the officers who were unjustifiably dismissed. Moreover, she refused to pay the wages outstanding under the pretext that the money earmarked for their payment had been used up to pay the replacements of those dismissed. Moreover, the complainants allege that several GPSU members employed at the High Court Registry reportedly received threats from the Registrar (Cheryl Scotland, Marcia Oxford, William Pyle, Yutze Thomas, Anthony Joseph, Niobe Lucius, Odetta Cadogan). The complainants add certain names to the list of persons affected by anti-trade union acts in the High Court Registry without specifying the type of grievance (Patrick Sancho, Clyde Bascom, Mithra Bhola, Odetta Fogenay, Andrea Brummell).
   • Withdrawal of certification as majority union
9. 427. The complainants state that the Government has been modifying the bargaining units by calling for new polls for union recognition where the GPSU already has recognition, particularly in the Guyana Forestry Commission, the Anna Regina Town Council and the MMA-ADA. Thus, pursuant to the enactment of the Trade Union Recognition Act in 1997 and the appointment of the Trade Union Recognition and Certification Board in 1999, the GPSU was notified of challenges to its certification as majority union in three bargaining units. As a result of the challenges, two polls were conducted. The GPSU lost its certification and exclusive bargaining rights in the Guyana Forestry Commission and won in the Anna Regina Town Council. The GPSU objected to the poll considering that the union’s power had been purposely altered prior to the poll through restructuring and dismissals of GPSU officers. In particular, the complainants allege that the branch executives were dismissed in 1998 and again in 2000 on the occasion of restructuring in the Guyana Forestry Commission in order to destroy the GPSU. The GPSU alleges moreover that the organization which filed the challenge is the Guyana Agricultural and General Workers’ Union (GAWU), a union considered to be the industrial arm of the ruling party and whose president sits in the National Assembly on the benches of that party.
   • Pressure to quit the union
10. 428. The complainants allege that on the directions of the Minister of Home Affairs, the Chief Fire Officer coerced the members of the fire service to become members of an association other than a trade union. The complainants submit that this measure aimed at weakening the GPSU by depriving fire officers who have been represented by the GPSU for many years, even before independence, from their GPSU membership.
11. 429. Finally, the complainants allege that although the GPSU has recognition and certification as representative union in the Guyana Energy Authority, the Government communicated directly to the staff of the agency that it would be closing down and that they should form a committee to meet with the administration to negotiate their termination benefits.

B. The Government’s reply

1. 430. In its communication dated 30 January 2003, the Government provides information with regard to certain complaints.
   • Anti-union dismissals
2. 431. With respect to the dismissal of Ms. Van Sluytman, 3rd Vice-President of the GPSU, from the High Court Registry, the Government forwards a report by the High Court Registrar in which it is stated that the dismissal was justified by the fact that Ms. Van Sluytman took leave of absence for trade union purposes in violation of the applicable rules and procedures, having exhausted her special leave entitlement and having failed to obtain the required approval. A series of minutes and other documents are attached in support of this statement. As to the dismissals of the GPSU officers Leyland Paul, Bridgette Crawford, Chief Marshal William Blackman and others, the Government confines itself to stating that this matter is currently before the High Court.
3. 432. Concerning allegations of threats being addressed to GPSU members at the High Court Registry, the Government forwards a report by the High Court Registrar in which it is stated that this allegation remains in the realm of hearsay and the burden consequently falls upon the complainants to provide evidence.
   • Withdrawal of certification as majority union
4. 433. With regard to the poll conducted in the Guyana Forestry Commission, the Government states that the Trade Union Recognition Act, 1997, provides that, under certain conditions, the Trade Union Recognition Board is required to have a poll conducted in case of a challenge to a union’s certification as representative union. The Government states that pursuant to this Act, a total of nine challenges were filed, three of which concerned the GPSU. In response to these challenges, two polls have been conducted while one is to be held. The GPSU won at Anna Regina Town Council and has been certified. It lost at the Guyana Forestry Commission and has since filed an action before the High Court. The Government attaches a copy of the Act and a series of documents and letters illustrating efforts made by the Board to implement the law and address the concerns of the GPSU.
   • Pressure to quit the union
5. 434. Concerning allegations of denial of union representation of fire officers, the Government notes that this issue is currently engaging the attention of the High Court.

C. The Committee’s conclusions

1. 435. The Committee observes that this case concerns allegations that the Government attempts to weaken the bargaining power of the GPSU through various acts such as refusal to implement an agreement concerning arbitration over wages in the public service, denunciation of the agency fees agreement, withdrawal of check-off facilities, dismissals of trade union officers and members, withdrawal of GPSU certification as representative union in the Guyana Forestry Commission, pressure on fire officers to quit the GPSU and the closing down of the Guyana Energy Agency without consulting the GPSU which is the majority union.
2. 436. The Committee observes that despite the time which has elapsed since the presentation of the complaint, and bearing in mind the gravity of the allegations, the Government has only responded to a few of the allegations and has provided minimum comments and information on a few others, although it was invited to send its reply on several occasions. The Committee recalls that governments should recognize the importance for their own reputation of formulating detailed replies to the allegations brought by complainant organizations, so as to allow the Committee to undertake an objective examination in full knowledge of the facts [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 20].
   • Refusal to implement an agreement on arbitration
3. 437. The Committee observes that the Government has not replied to allegations concerning its refusal in 2001 to implement an agreement on arbitration, which was adopted in 1999 and which reads as follows: “in future, where salary and wages negotiations fail to result in agreement and a third party conciliation of thirty (30) days fails, it is agreed that until entrenched into the collective agreement, the parties will in respect of future disputes adopt the same method of arbitration as set in this agreement”. The Committee notes that the Government maintains that the 1999 agreement is not enforceable and did not replace the collective agreement or the Labour Act. The Committee notes that the issue is pending before the courts. The Committee recalls that in general, agreements should be binding on the parties [see Digest, op. cit., para. 818] and requests the Government to supply it with a copy of the court ruling on the enforceability of the 1999 Memorandum of Agreement as soon as it becomes available, so that it may reach a conclusion on this aspect of the case in full possession of all the relevant information.
4. 438. The Committee further observes that in 2002, after negotiations over salaries and wages broke down, the parties initially agreed to bring the dispute to arbitration but later failed to reach agreement over the terms of reference of the tribunal. Following this, the Government imposed unilaterally a 5 per cent increase on public employees’ wages and salaries. The Committee notes that, according to the complainant, real wages in the public service have suffered great losses due to a decade of hyperinflation and have never recovered since. The Committee recalls that in contexts of economic stabilization, priority should be given to collective bargaining as a means of determining employment conditions of public servants, rather than adopting legislation to restrain wages in the public sector [see Digest, op. cit., para. 900]. The Committee trusts that in the future the Government will give priority to collective bargaining as a means of determining employment conditions of public servants and will make every effort to avoid unilateral measures in this context.
   • Withdrawal of facilities
5. 439. The Committee observes that the Government has not responded to allegations according to which in June 2000, it unilaterally denounced the 1976 agency fee agreement with the GPSU based on grounds which are disputed by the GPSU and despite the fact that a conciliation process was pending. The Committee requests the parties to provide sufficiently detailed information on the content of the 1976 agency fee agreement and the legal grounds for its denunciation and to transmit a copy of the court ruling on this issue as soon as it becomes available, so that it may reach a conclusion on this aspect of the case in full possession of all the relevant information.
6. 440. The Committee also notes that the Government did not respond to allegations according to which it ended unilaterally the automatic check-off system which had been in existence since 1954 by introducing a requirement for written authorization of the deduction of trade union dues by trade union members. The Committee considers that, in general, the introduction of such a requirement does not contravene Conventions Nos. 87, 98 and 151, ratified by Guyana, but regrets to note that such a measure was introduced without any consultation with the trade unions concerned. The Committee has emphasized the importance that should be attached to full and frank consultation taking place on any questions or proposed legislation affecting trade union rights [see Digest, op. cit., para. 927]. The Committee notes, moreover, that the introduction of such a requirement should be a measure of general scope applicable to all trade unions. However, it seems from the allegations that the measure was limited to the GPSU only. The Committee notes that under such conditions, this measure could amount to discrimination and interference in the internal affairs of the GPSU in violation of Conventions Nos. 87, 98 and 151. The Committee requests the parties to indicate whether the introduction of a requirement for written authorization of the deduction of trade union dues is a measure of general application or an individual decision limited to the GPSU. If the measure is an individual decision, the Committee requests the Government to take all necessary measures as soon as possible with a view to ending such situation of discrimination and interference, and to keep it informed in this respect. The Committee also requests the Government to ensure that in the future, the introduction of measures affecting trade union rights is preceded by full and frank consultations with all trade unions concerned.
   • Anti-union dismissals
7. 441. The Committee notes that according to the complainants, six GPSU officers and members were dismissed on anti-union grounds from several branches of the public service (High Court Registry, Guyana Forestry Commission, Ministry of Agriculture, MMA-ADA). The Committee also observes from the complainants’ latest communication that by a decision of 26 August 2002, the High Court ordered the reinstatement of seven GPSU officers who had been dismissed on anti-union grounds from the High Court Registry and the payment of their outstanding wages. The Committee notes that as this decision is limited to dismissals in the High Court Registry, it concerns two of the trade union officers enumerated in the allegations, namely, Ms. Van Sluytman, 3rd Vice-President, and Mr. Blackman, Branch Officer. As to the implementation of the court’s order, the Committee observes that according to the complainants, the High Court Registrar replaced the dismissed trade union officers and refused to pay outstanding wages on the basis that the money earmarked for their payment had been used up to pay the new employees. The Committee regrets that acts of anti-union discrimination, in particular dismissals, have taken place in the High Court Registry and recalls that no person shall be prejudiced in his employment by reason of his trade union membership or legitimate trade union activities, whether past or present [see Digest, op. cit., para. 690]. The Committee requests the Government to take all necessary measures as soon as possible with a view to ensuring the full implementation of the High Court’s decision ordering the reinstatement of seven GPSU officers and members who have been dismissed from the High Court Registry on anti-union grounds and the payment of outstanding wages, and to keep it informed in this respect.
8. 442. The Committee also notes that with respect to the officers dismissed from other branches of the public service, the Government confined itself to noting that their case is currently pending before the courts. The Committee requests the Government to supply it with a copy of the court ruling on the dismissal of GPSU officers and members in other branches of the public sector, and if the court finds that the dismissals were on anti-union grounds, to take all necessary measures with a view to the reinstatement of the dismissed trade union officers and members and the payment of outstanding wages, and to keep it informed in this respect.
9. 443. The Committee also notes that the complainants enumerate certain GPSU members who allegedly received threats at the High Court Registry. The Committee notes that the Government confined itself to forwarding a report on this matter by the High Court Registrar, that is, the person concerned by the allegations, who rejects the allegations as mere rumours. The Committee recalls that complaints against acts of anti-union discrimination should normally be examined by national machinery which, in addition to being speedy, should not only be impartial but also be seen to be such by the parties concerned, who should participate in the procedure in an appropriate and constructive manner [see Digest, op. cit., para. 750]. The Committee requests the Government to take all necessary measures as soon as possible so that allegations of anti-union discrimination in the High Court Registry are investigated by an independent body and if the allegations are confirmed, to ensure that such acts cease immediately and that appropriate remedies are adopted. The Committee requests to be kept informed in this respect.
   • Withdrawal of certification as majority union
10. 444. The Committee observes that the parties disagree on the legal validity of a poll conducted in the Guyana Forestry Commission as a result of which the GPSU lost its certification as majority union and its exclusive bargaining rights in that unit. The Committee notes from the Government’s report that such polls are required under the Trade Union Recognition Act, 1997, where two or more unions have applied for certification with respect to the same bargaining unit and attempts to resolve the claim fail. The poll is conducted by a tripartite body, the Trade Union Recognition and Certification Board, and there is a possibility to challenge the certification generally after two years. The Committee notes that according to the complainants, the poll was the culmination of attempts, including dismissals, to modify the bargaining unit in the Guyana Forestry Commission. The Committee notes that the complainants do not provide sufficiently detailed information to enable it to undertake an examination of this aspect of the case. The Committee also notes that according to the GPSU, the president of the Guyana Agricultural and General Workers’ Union, which is the newly certified union in the Guyana Forestry Commission, sits on the benches of the ruling party in the National Assembly. The Committee notes that the issue of the certification of the majority union in the Guyana Forestry Commission is currently pending before the courts and requests the Government to supply it with a copy of the court ruling as soon as it becomes available, so that it may reach a conclusion on this aspect of the case in full possession of all the relevant information.
    • Pressure to quit the union
11. 445. The Committee notes that according to the complainants, the members of the fire service have been coerced by the Chief Fire Officer on the directions of the Minister of Home Affairs to become members of an association other than a trade union, thus being denied GPSU membership while the Government confines itself to stating that this matter is pending before the courts. The Committee requests the complainants to specify the acts by which fire workers are allegedly coerced to join an association other than a trade union, the type of association promoted and in what way it affects the freedom of association of fire workers. The Committee requests the Government to transmit a copy of the court ruling as soon as it becomes available so that it may reach a conclusion on this aspect of the case in full knowledge of all relevant facts.
12. 446. The Committee notes that the Government has not responded to allegations according to which the Guyana Energy Authority staff have been informed that the establishment would close down and that the staff should form a committee to negotiate their termination benefits with the administration, despite the fact that the GPSU has recognition and certification as representative union in this establishment. The Committee observes that section 23(4)-(6) of the Trade Union Recognition Act, 1997, provides that an employer who decides to close an undertaking must give the certified union notice and consult with it before a final decision is taken. In this context, the Committee considers that the Government’s failure to consult with the GPSU, which has certification as the majority union in the Guyana Energy Authority, contravenes the law and is detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted, while the invitation extended to workers to set up a parallel committee amounts to interference in the affairs of the GPSU. The Committee requests the Government to take all necessary measures to ensure that the Guyana Energy Authority initiates consultations with the GPSU as the certified majority union and to keep it informed in this respect.