Mediating a strike by judicial order

The Civil Procedure Rules provide that a Court may, on its own initiative, order any or all parties to a proceeding to participate in a mediation. This is the first high profile court-ordered mediation and it involves the Government and a major trade union, the Guyana Teachers’ Union (GTU), which is engaged in a nation-wide strike of teachers. Two distinguished lawyers, Edward Luckhoo and Robin Stoby, both Senior Counsel of long standing, have been appointed by Justice Sandil Kissoon to mediate between the Government and the GTU. The proposal for mediation was resisted by Attorney General Anil Nandlall. He argued that there was no dispute, that the parties had met in January and had scheduled another meeting for February, but the GTU had called the strike before the date of the meeting. The Judge nevertheless made the order for the mediation.

Media reports suggest that the two fundamental issues arising from the court case are the withdrawal of salaries from striking teachers and the decision of the Government to terminate the deduction of union dues from teachers’ salaries. There are a large number of other orders sought by the GTU, but all appear to be connected to the main issues outlined above. In addition, conservatory orders were sought against the Government to preserve the status quo in relation to the salaries and deductions. These orders were granted. The effects were that the Government was prohibited from deducting salaries to teachers and was required to resume the deduction of union dues from salaries. This is an unusual turn of events because striking workers are not usually paid their wages or salaries. When the parties negotiate terms of resumption the payment of wages or salaries which have been withheld is usually one of the main issues negotiated. Often, but not always, employers agree to pay employees for the period that they were on strike.

The order for mediation made by Justice Kissoon is not publicly available. But the Judge is reported to have said that the mediators were appointed “with a view of obtaining a meaningful resolution of the differences that caused the teachers to be away from the institutions and to have a normalcy of conversation to which the Attorney General alluded.” The Judge further indicated that the intention was “to have the teachers back in the institutions, to have their concerns addressed, to have a framework in place that will facilitate an ongoing conversation and dialogue that the necessity for industrial action does not arise in the future.” (SN March 1). In the absence of the court order defining the terms of reference of the mediators, the objective of the mediation appears to be comprehensive. But the timeline given, until Friday last, extended to Monday, suggests a more limited undertaking. Despite the expansive language, the Judge and the mediators appear to be considering more limited goals, such as terms, or partial terms, of resumption. The parties and mediators do not appear to be in any doubt as to the mandate of the mediators as both sides expressed satisfaction. The question remains as to whether the mediators will touch on the subject matters of the court proceedings, namely, the payment of salaries and the deduction of dues. Or will these issues have to be resolved at trial. It is difficult to envisage the nature of the outcome of the mediation.

The entry of a court in an industrial relations matter, in terms of invoking a mediatory process, gives rise not merely to a jurisdictional issue, that is to say, whether the court has power to undertake matters relating to terms of resumption even if the right to collective bargaining has been raised, or whether it should limit itself to the matters raised in the complaint. But there are wider implications. While the Government and the GTU were locked in an increasingly bitter confrontation that showed no signs of abating, the public was becoming increasingly concerned. This is perhaps what is reflected in the Judge’s order for mediation, whether or not the issues to be mediated are strictly within the parameters of the complaint by the GTU. The softer tones of the able Mr. Darshan Ramdhani, King’s Counsel, who represented the Attorney General on Friday may well have reflected a recognition that the Judge’s efforts genuinely reflect public concern at the prolongation of the strike.

In a matter of this nature, it is impossible not to consider the question of collective bargaining. Article 147(3) protects the right to enter into collective agreements. To enter into collective agreements, collective bargaining must be facilitated. Under the Labour Act, such an agreement is legally enforceable unless the agreement states otherwise. The Act further provides that where a “difference exists or is apprehended” between an employer and employees the Minister, “if he thinks fit,” may inquire into the causes, promote a settlement, or refer the matter to arbitration. We have not heard from the GTU whether Mr. Nandlall’s assertion as to the state of the negotiations up to February is accurate. Assuming that they are, there is no basis for the Minister’s intervention, which is, in any event, discretionary.