Continued uncertainty about appointment of chair of arbitration panel

Dear Editor, I note the editorial captioned, “Arbitral chairperson” in the September 30th edition of the Sunday Stabroek. It appears on page 6, while a letter from me captioned, “Seek court’s interpretation of ‘appointment’ versus ‘nomination’”, which deals with one aspect of the matters treated within your editorial appears on page 9.

I am in full and applauding agreement with much of what you boldly say in that powerful editorial, but on the matter of the “arbitral appointment”, I regret that, with respect, and having regard to the total context as I understand it, I am not yet fully persuaded that the Minister is wrong.

By the way, I am not persuaded that the Minister is right, either.

Thank you for recognising and reminding us all (in relation to the aspect of the matter over which I have some uncertainty) that the wording of the Memorandum of Agreement is what applies in this matter. You quote the wording as, “the arbitration panel shall comprise of one member nominated by the union, one member nominated by the Ministry and a Chairman mutually agreed upon by both parties.” So far, so good. Here now comes the bone of contention between the two sides.

You further quote from the Memorandum of Agreement as follows, “The Ministry of Labour shall nominate the chairman in the event the parties fail to reach agreement.”

The Memorandum of Agreement talks about “nominate” without giving either of the parties the right to object to any nomination the Ministry of Labour might make. Is it the case that, in this context, ‘nominate’ means the same as ‘appoint’? I do not know.

Now, as I understand it, before the arbitration panel can begin its work, somebody/some agency has to appoint all three of the members of the panel so that, among other things, the expenses of the panel may be a legitimate charge against the nation’s finances.

That person/agency has to appoint (as a member of the arbitration panel) the person nominated by the Union. So far, so good.

That person/agency has to appoint (as a member of the arbitration panel) the person nominated by the Ministry of Education. So far, so good. What happens next? Is it the case that, as the parties have failed to reach agreement on the person to be chairman of the arbitration panel, the person/agency that made the two appointments as set out immediately above should proceed to appoint as the chairman of the panel, the person nominated (as chairman) by the Ministry of Labour, in strict compliance with the exact wording in the Memorandum of Agreement?

I am not persuaded one way or the other.

And that is one of the reasons why, with respect, I suggest that someone should approach the Court to get a judicial interpretation/ruling.

I have seen instances where the Court ruled that the word “may” must be interpreted as “shall” in certain laws because of the context. And even though I may in certain instances feel convinced that the law is an ass, I am constrained by the notion, “Be ye never so high, the Law is above you.”

So let us ask the Court to pronounce, please.

And thank you again for that boldly worded and powerful editorial. Yours faithfully, George N. Cave