–AG urges dismissal of GTU’s ‘frivolous’ court case
–judge grants conservatory orders to preserve status quo until substantive matter concludes

By Feona Morrison

THE Guyana Teachers’ Union (GTU)’s lawsuit against the government is frivolous and ought to be dismissed, according to Minister of Legal Affairs and Attorney-General Anil Nandlall, SC.

He advanced this argument on Thursday during a hearing before High Court Judge Sandil Kissoon, who later issued orders suspending the government’s move to withhold money from the salaries of striking teachers, and stop the deduction of their union dues.

Justice Kissoon declared that conservatory orders were warranted in order to preserve the status quo until the substantive matter was heard and decided. He noted that, in his view, the GTU has advanced a “prima facie” case that must be evaluated on its merits.

The Judge has promised to hear arguments quickly, since the case is of national significance. The next hearing is scheduled for March 20 at 09:00 hrs.

Additionally, Justice Kissoon assured that his written ruling will be available seven days thereafter.

Meanwhile, Nandlall vehemently argued against the granting of the interim orders, citing a variety of Commonwealth case laws, and emphasising that doing so would be “absurd”.

“The situation doesn’t allow for a conservatory order; this relationship between the government and the teachers is a private relationship. It is an employment contract. In that private law relationship, there is no jurisprudential space for a conservatory order,” he argued before adding that the State Liability and Proceedings Act forbids the High Court from “injuncting the State,” which is what GTU is requesting in its action.
“It’s a very simple law that governs the entire Caribbean, including Guyana,” he said, adding that teachers have the right to go on strike, and that the government can withhold wages as a result.

He further argued that the court could not order that the teachers return to their jobs.

Relying on the doctrine of no work, no pay, Nandlall reasoned that in cases when labour is not supplied, the government, an employer, is permitted by law to deduct money from salaries.

“You see, it is labour for money. If you withhold your labour, I must be allowed to withhold my pay. I believe a conservatory order in that instance, which compels the government to pay when the teachers are not providing their labour, is wrong.”

A conservatory order is a judicial remedy granted by the court through an undertaking that no action is taken to simply preserve the subject until the motion or suit is considered, said Justice Kissoon, who emphasised the difference between an injunction and a conservatory order.

STATUS QUO

Throughout Thursday’s hearings, the Judge asked the AG to assure him that the status quo would remain while the substantive case was being resolved.

However, he informed the court that he had not received any such directive from his superiors and as such, he was unable give such an undertaking. At this point, Justice Kissoon cited numerous case laws to support his conclusion and said that the court would be abdicating its duty if it did not give the orders in the absence of a guarantee from the government.

According to Darren Wade, the GTU’s attorney, the government’s decision to stop acting as the union’s representative and stop deducting union dues from teachers’ pay and salaries is “discriminatory” because it only stopped doing so against the GTU.
Wade further deposed that it “shows bad faith, improper purposes, and irrelevant considerations on the part of the Government of Guyana” for it to threaten to deduct money from the wages and salaries of teachers participating in any kind of industrial action.

He reasoned that teachers who are already struggling to make ends meet while dealing with an ever-increasing cost of living would suffer unduly as a result of the government’s threats to deduct monies from their salaries.

In addition to challenging the government’s decisions, the union is asking the court to grant costs, exemplary and aggravated damages, and any other orders it deems appropriate.

UNFORTUNATE DECISION

Nandlall, meanwhile, called the Judge’s decision “unfortunate.”

He stated that the government was providing this service voluntarily in regards to taking union dues out of teachers’ paychecks and remitting them to the GTU.

“The government is not being paid for it. No one seems to understand how it arose. It certainly did not arise out of the law; it did not arise out of a contract but it has been there for a number of years.”

He pointed out that decisions made by the local High Court and the Court of Appeal state that the government is not required to provide or continue this service.

The Senior Counsel continued: “The court ruled that the government can stop this if they wish. The same way that they voluntarily entered into it, the same way they can voluntarily come out of it. It is not that the unions [that] are going to be affected by not getting their union dues. They will simply have to find another mechanism of doing it. And the case law authorities also support the position of the government terminating it [without notice].”

UNACCOUNTED MONEY
Approximately $2 billion collected from teachers by the GTU is unaccounted for given the fact that the books of the union have not been audited by the Auditor General’s office over the last 35 years.

The Deeds and Commercial Registries Authority has revealed that the GTU last filed its financial returns 20 years ago.

While alluding to these, Nandlall made it clear that the GTU’s conduct constitutes a criminal offence in respect of every one of its executives.

He said the union has been unable to account for the funds or provide a public explanation for the non-filing of its yearly returns. Considering this, he asked, “On what basis am I being ordered to continue this relationship?”

Concerning salary deductions, Nandlall added: “If the government deducts these monies wrongfully and it is subsequently found out or the court rules that the deductions are unlawful, then the government obviously has the capacity to repay it. But look at the reverse. If the teachers receive money and it is found that those monies were unlawfully received, then the teachers will have to pay it back. How are they going to pay it back? They are not going to deposit back money. It is the government that will now have to do accumulated deductions.”

Nevertheless, the attorney expressed optimism that the industrial aspect of the dispute will be settled.

In order for “the strikers as well as the employees to have a clear understanding of what their powers are, what their duties are, what their responsibilities are and what the law is on all these industrial issues,” he stated that he believes that this particular case would clarify the law moving ahead.

Teachers are on strike since February 5, according to the GTU, because the government would not meet with the union on several issues, including the negotiation of wages, salaries, allowances, and other benefits for teachers.

This is despite the fact that the Ministry of Education has satisfied more than half of the 41 proposals made by the GTU for better working conditions in just three years.
Government officials have also challenged the union’s claims by highlighting that discussions are ongoing to satisfy the other requests.

The strike action comes when learners are preparing for the National Grade Six Assessment (NGSA), the Caribbean Secondary Education Certificate (CSEC) examinations and the Caribbean Advanced Proficiency Examination (CAPE).