Rapport intérimaire - Rapport No. 241, Novembre 1985

Cas no 1330 (Guyana) - Date de la plainte: 09-AVR. -85 - Clos

1. 822. The complaint is contained in a communication from the National Association of Agricultural, Commercial and Industrial Employees (NAACIE) dated 9 April 1985. The Government replied in a communication dated 31 July 1985.
2. 823. Guyana has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.087) and the Right to Organise and Collective Bargaining Convention, 1949 (No.098). It has also ratified the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants' allegations

1. 824. The complainants allege that fundamental norms and principles proclaimed in accepted international labour practice are being deliberately and systematically flouted as a result of government policy; that freedom of association and trade union rights have come under assault as a result of deliberate government action, including the concurrent holding of public office and of positions of responsibility within the Trade Union Congress by government ministers and senior public officials and through the employment of intimidation to prevent the recognition of freely chosen trade unions. In addition it is alleged that the right of collective bargaining has been directly attacked through the Government's imposition of a negotiating partner for public sector employees, and by the removal of contractual rights through the Labour Amendment Act.
2. 825. In a memorandum contained in its communication, the complainant sets out details concerning a number of industrial disputes which it alleges involved discriminatory and or intimidatory action against workers and trade union officials who had been engaged in strikes which had occurred in March and May 1983 respectively in government-owned enterprises in the packaging and the mining industries; and provides instances of such action which it alleges was taken against trade union members and officials in other state-owned enterprises. It also provides information relating to events which took place in March 1984 in relation to the sugar industry concerning workers employed by the Guyana Sugar Corporation, which it alleges gave rise to the passage of the Labour Amendment Act and elaborates its objections to this legislation which it claims, inter alia, altered the fundamental rights clause of the Constitution in relation to property; reversed a Court of Appeal decision upholding the contractual rights of workers in the sugar industry; and interfered with free collective bargaining by making an agreement entered into in 1977 between the Guyana Trades Union Congress (GTUC) and the Government, and any other such agreement entered into in future, binding on all public sector employees.
3. 826. In relation to the last of these matters, the complainant states that there can be no genuine or proper collective bargaining between the Government and the GTUC because two Ministers and a Parliamentary Secretary are members of the GTUC executive and are privy to all decisions taken at executive level; as the ministers are said to accept the doctrine of paramountcy of the party and are bound by oath to Cabinet secrecy, it is the Government that benefits from their presence on the GTUC executive.
4. 827. Concerning the action taken against trade union members and officials in the mining industry, the complainant alleges that 1,721 workers at Guyana Mining Enterprises Limited were dismissed under the guise of retrenchment in July 1983, following a general strike in the bauxite industry which had resulted from the imposition by the employers of a three-day week in retaliation for a one-day-per-week strike decided in May 1983 by the Guyana Mine Workers Union (GMWU) and the Guyana Bauxite Supervisors Union (GBSU). Among those affected were a number of trade union officials, including the President of the GBSU, the Treasurer of the GMWU and all the shop stewards. Efforts by the GTUC to secure reinstatement of the workers had been unsuccessful.
5. 828. Actions relating to workers employed at Seals and Packaging Industry Limited (in which a majority of the shares are said to be owned by the Government) which are the subject of the complaint are alleged to have arisen after workers in the industry had requested the complainant to act as their sole bargaining agent in February 1983; its application was referred by the company to the Ministry of Labour for advice following a request for bargaining rights on behalf of the workers by the Guyana Labour Union (GLU), which, the complainant alleges, is government-backed. The complainant states that the Ministry sought the guidance of the GTUC which it alleges was supporting and had been controlled by the Government. It further alleges that pressure was brought to bear on workers to join the GLU, which it claims they refused to do (it attaches a petition signed by 27 workers and addressed to the GTUC, inter alia supporting the GTUC's advice that a poll be held and pledging their support to the complainant). It states that shortly thereafter two of its militant members were retrenched although they were skilled workers, and casual workers were retained; that this gave rise to a protest strike by the entire workforce, which was only called off after two days, following an agreement between the complainant's General Secretary and the Chief Labour Officer. On reporting for duty following the ending of the strike, all workers were, according to the complainant, refused entry and served with letters stating that, as a result of the strike action, management had concluded that they had of their own volition and by design terminated their employment. The complainant states that subsequently it advised workers to accept offers of re-employment despite the company's indication to some workers that this would happen only if they stopped union agitation. Seven of the workers were not re-employed. The complainant concludes this aspect of its allegations by stating that the workers at the company are still insisting that it be recognised as sole bargaining agent, but that the Government will not allow an independent union to make inroads into the public sector and is guilty of fostering "company unionism".
6. 829. Other allegations of anti-union discrimination by the complainants concern:
   • a)the dismissal, by the General Secretary of the General Workers Union of one of the union's field officers and the Treasurer, both of whom are said to have applied to the courts for redress, though this process is said to be tardy, and the retrenchment of another field officer following his reversion to service with the Guyana Rice Board. These dismissals are said to have taken place because the individuals involved voted in GTUC elections against the wishes of the ruling party;
   • b)under the same heading, the complainant refers to the dismissal of two employees of the Guyana Co-operative Mortgage Finance Bank.

B. The Government's reply

1. 830. In its communication of 31 July the Government denies the complainant's general allegation concerning the flouting of international labour standards; it points out that no evidence is adduced in this regard and that, although it also denies that there have been departures from good industrial relations, it is of the view that the complainants have been unable to show that alleged defects of this kind have been deliberately occasioned by the Government or its policies. It also denies that freedom of association and other trade union rights are under assault by the Government as alleged.
2. 831. It states that the two Ministers and the Parliamentary Secretary who are on the executive of the GTUC were elected to that body prior to their appointment to government office, and that they continue to serve the TUC, having been re-elected to their positions; that there is nothing in the Constitution of the GTUC to disqualify them from holding such positions while holding ministerial ofice; and it cites precedents from other countries in the West Indies where public personalities have occupied ministerial posts at the same time as high trade union office.
3. 832. On the question of the use of intimidation to prevent the recognition of freely chosen trade unions, the Government states that the party in power does not use intimidatory tactics, and that recognition issues are processed in accordance with accepted procedures. Where such issues involve trade unions which are members of the GTUC they are submitted to that body, which is independent and whose deliberations the party in office cannot and does not direct, and which thereafter submits its advice to the Ministry of Manpower and Co-operatives for further action.
4. 833. According to the Government the right to collective bargaining is not being attacked. It points out in this regard that it has recently ratified Convention No. 154 on the Right to Collective Bargaining and that it fully respects is obligations thereunder. It further points out that the complainant unions are part of a GTUC delegation which is presently negotiating wage increases in the public sector, and that all the unions in that sector form part of the GTUC's team which negotiates with the Government.
5. 834. As regards the allegations relating to the mining industry, an annexure attached to the Government's communication states that, although Guyana Mining Enterprises Limited is wholly owned by the Government, it would be wrong to assume that any breach by the company of accepted labour relations practices indicates a breach by the Government of its obligations under international labour instruments. It adds that the complainants' allegations are wholly lacking in merit; that the company's initial reduction of the working week during the course of the one-day-per-week stoppage was not retaliation but the result of economic considerations, i.e. considerable losses which were being sustained since 1982 and which would in any event have led to a reduction in the workforce; that the sudden and unstructured reduction in the effective strengh of the workforce by that stoppage made matters worse so that the only alternative to shutting down operations completely was a reduction in the working week; and that the general strike in the industry had further exacerbated the situation. The ending of the strike had been preceded by an agreement that the company and the union would meet for the purpose of recommending measures for the reduction in operating costs and ensuring the continued viability of the enterprise; such meetings had taken place, but no agreement had been reached and as a result the company had been obliged to proceed with an exercise involving limited retrenchment, details of which had been disclosed at a meeting with the GTUC and the unions, at which the Minister of Manpower and Co-operatives had presided, and which are outlined in the Government's communication. These relate, inter alia, to the fact that 1,428 (not 1,721 as alleged) employees had been retrenched, with a further 330 being reinstated later; and to the categories of workers to be involved (according to age or length of service) as well as the procedures to be followed by managers. The Government acknowledges that the entire branch executive of the union was retrenched at one plant, along with other workers, and all union officers but two had been retrenched at another plant, but it states that in the first of these instances the plant had not operated as a production unit for more than a year, and as regards the second the number by which the workforce was reduced was decided without references to names or union positions held. It confirms that a number of union officials, including some but not all shop stewards, were among those who have been retrenched, but strongly denies any victimisation and states that the cause was economic necessity and the process took full account of the applicable criteria. It points out furthermore that a number of the retrenched union officials were among those who were reinstated and that this in its view corroborates the absence of victimisation.
6. 835. As regards the recognition aspects of the events at Seals and Packaging Industry Limited, the Government refers to the fact that two unions had requested sole bargaining rights, and that the company had asked for the Ministry's assistance, following which it had sought the advice of the GTUC in keeping with recognised and accepted industrial relations practice. It had subsequently received a copy of a letter from 27 workers urging the GTUC to advise the Ministry to conduct a poll in order to resolve the dispute. Up to the present, the GTUC had not tendered advice though it had informed the Ministry in August 1983 that one of its committees had been asked to expedite its report on the union recognition dispute. The Government adds that in the meantime the workers had decided against being represented by either of the unions seeking sole bargaining rights and were represented by a staff association; there had been no agitation for recognition of either union.
7. 836. As regards dismissal of workers at Seals and Packaging Industry Limited, the Government states that it was informed by the company that there had been an unofficial strike involving 22 casual workers, over a period of approximately one month in June and July 1983. Three of those who had been on strike returned to work at its conclusion and, although 19 had been given notices of termination, all but seven (who had not responded to the company's invitation to return) were re-employed without break of service. The dismissal of the seven was, the Government states, totally unrelated to their trade union activities. The Government further states that the retrenchment of the two union activists referred to by the complainant came about because the special project on which they had been working came to an end and they had consequently become redundant.
8. 837. As regards the other allegations of dismissals, the Government states that it was not requested to mediate in the case of the two officials of the General Workers Union (GWU) who were dismissed and have sought redress through the courts, although it regards the complainant's remark about the tardiness of the process as unfair and irresponsible, especially in view of the reference in another part of the complaint to the role of the courts in upholding claims by workers. As to the GWU official who had been retrenched after re-employment by the Guyana Rice Board, this person had previously had no guaranteed post but had been employed seasonally; he had been made redundant after the plant at which he had been employed had been to a large extent destroyed by fire, which resulted in the laying off of other employees there as well. The Government denies any impropriety on its part as regards the dismissal of the two employees of the Guyana Co-operative Mortgage Finance Bank, in respect of whom no representations had been made by the staff association of the bank and whom the Government was advised had been dismissed, after warnings, for late arrivals at work.
9. 838. Finally, as regards the Labour Amendment Act, the Government points out that the matter is sub judice as the validity and constitutionality of the entire Act are being challenged following the hearing of an extremely complicated case in respect of which judgement had not yet been rendered; it does, however, deny that the Act in any way violates the Constitution or accepted labour relations practices and requirements.

C. The conclusions of the Committee

1. 839. The Committee observes that there appear to be four principal aspects to the complainant's allegations. These are:
   • a) those relating to the dual governmental and trade union functions of members of the GTUC executive;
   • b)those relating to the deliberate policy which the Government is following and which are said to amount to an assault on trade union rights and a flouting of fundamental norms and practices of international labour practice;
   • c)specified action in relation to industrial disputes or concerning trade union activists which, it is claimed, involves the violation of trade union rights; and
   • d)the effects of the Labour Amendment Act on collective bargaining and collective agreements.
2. 840. With regard to the last of these, the Committee notes that the matter is sub judice, as the result of a challenge to the validity and the constitutionality of the Labour Amendment Act before the courts by three workers through their union (the principal complainant in this case). It requests the Government to supply it with a copy of the judgement of the court as soon as this is available, so that it may reach a conclusion on this aspect of the case in full possession of all the relevant information. At the same time, it draws the matter to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
3. 841. As regards the dual governmental and trade union functions of members of the GTUC executive, the Committee asks the complainants to supply details on this allegation and, in particular, to indicate what consequences this has on the exercise of trade union rights.
4. 842. As regards the allegations relating to the Government's deliberate policy of violations of trade union rights, their generalised character and range lead the Committee to the conclusion that, in the absence of more detailed information relating the alleged policy to a particular course of conduct involving the infringement of rights of freedom of association, this aspect of the case does not call for further examination.
5. 843. Concerning the specific allegations of dismissals of workers and trade union leaders, the Committee observes that the information supplied by the complainants and by the Government are contradictory. It is consequently of the view that it is not in a position to arrive at conclusions on this aspect of the case.
6. 844. On the subject of the recognition of sole bargaining rights at Seals and Packaging Industry Limited, the Committee notes that the Government chose to refer the matter for advice to the Guyana Trades Union Congress, but that such advice has not been forthcoming despite the lapse of more than two years since the question was first raised; and the information supplied by the Government to the effect that, in the meantime, the workers have decided against being represented by a sole bargaining agent and are represented by a staff association. The Committee recalls its earlier decisions that it is not necessarily incompatible with Convention No. 87 to provide for the certification of the most representative union in a given unit as the exclusive bargaining agent, but that in such cases there is a need to provide certain safeguards, which include
   • a) certification by an independent body, and
   • b) the choice of the representative organisation by a majority vote of the employees in the unit concerned. (See, for example, the 121st Report of the Committee, Case No. 624 (UK/British Honduras), para. 56; 187th Report, Case No. 796 (Bahamas), para. 173; 222nd Report, Case No. 1163 (Cyprus), para. 313.) The Committee is of the view that these principles are appropriate to the situation and expresses the hope that the Government will find it possible to give effect to them.

The Committee's recommendations

1. 845. In these circumstances, the Committee recommends the Governing Body to approve the present interim report and, in particular, the following conclusions:
   • a) The Committee requests the Government to supply it with a copy of the judgement of the court concerning the validity and the constitutionality of the Labour Amendment Act as soon as this becomes available, so that it may reach a conclusion on this aspect of the case in full possession of all the relevant information.
   • b) The Committee asks the complainant organisations to supply details on their allegation concerning the dual governmental and trade union functions of members of the GTUC executive and, in particular, to indicate what consequences this has on the exercise of trade union rights.
   • c) The Committee draws aspects of the case relating to the Labour Amendment Act to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
   • d) The Committee expresses the hope that, in relation to the recognition of sole bargaining rights, the Government will find it possible to give effect to the principle that it is not necessarily incompatible with Convention No. 87 to provide for certification of the most representative union in a given bargaining unit as the exclusive bargaining agent, but that in such cases there is a need to provide for certain safeguards which include
   • a) certification by an independent body and
   • b) the choice of the representative organisation by a majority vote of the employees in the unit concerned.