Attorney General v Alli et Al
| Jurisdiction | Guyana |
| Judge | Harper, J.A. |
| Judgment Date | 28 October 1987 |
| Neutral Citation | GY 1987 CA 6 |
| Docket Number | Civil Appeal No. 15 of 1986 |
| Court | Court of Appeal (Guyana) |
| Date | 28 October 1987 |
Court of Appeal
Massiah, C.; Harper, J.A.; Fung-a-Fatt, J.A.
Civil Appeal No. 15 of 1986
Dr. M. Shahabuddeen, S.C., Attorney General, Fitz Peters, Principal Legal Adviser (Ag.) and John Fung-a-Fatt, Principal Parliamentary counsel (Ag.), with him, for the appellant
Ashton Chase, S.C., Dabi Dial, C.R. Ramson and Vernon Persaud, with him, for the first and second respondents.
Constitutional law - Legislation — Labour (Amendment) Act, 1984, s. 7 — Whether section in breach of natural justice — Whether section in breach of fundamental right to freedom of association and the right to collective bargaining.
Constitutional law - Fundamental rights and freedom — Breach of right not to deprived of property Redress.
In an extraordinary issue of the Official Gazette of 8th March, 1984 the Labour (Amendment) Bill No. 5 of 1984, was published. That Bill was introduced in Parliament on 12th March; was passed on 16th March, 1984, and had the assent of the President on 6th April, 1984, as the Labour (Amendment) Act 1984. The Act sought to alter Article 142(3) of the Constitution; and to amend the Labour Act, Cap. 98:01, most particularly to give effect to certain provisions of an agreement between the Government of Guyana and the Trade Union Congress (referred hereinafter as the T.U.C.) made on 23rd August, 1977. That agreement prescribed the minimum wages for all public sector employees for three years – 1977-1979. That Act which was assented to in April 1984 was impugned by the respondents on 25th April, 1984. They filed an originating motion in the High Court seeking declarations that certain sections of the Act were invalid, ultra vires and of no effect.
In the High Court the learned trial judge concluded that only two of the sections complained of – sections 28C and 7 – were invalid. The provisions of section 28C are fully set out in the judgment of the learned Chancellor; and the subsections of section 7 which are germane are set out later in this judgment. From that decision the appellant has appealed and has contended that those sections were valid. Section 28C of the Act makes provisions for the prompt publication of any agreement between TUC and Government which is binding on all public sector employees and employers and which relates to matters touching on collective agreements whether those agreements are wholly or partly enforceable and their super-validity over other agreements. Section 7 of the Act circumscribes the period for the Collective Agreement made by TUC and Government. By subsection 2 of that section no public sector employee can receive as wages any sum in excess of what he was last paid in 1978, notwithstanding the three years agreement of 23rd August, 1977, referred to above. And further that this Act passed in 1984 retroactively affected judgments, decrees or orders of any court or authority given on or from 1st January, 1979.
The learned trial judge declared that section 28C of the Act was in breach of natural justice; and that section 7 of the Act was colourable legislation and was violative of the Constitution of Guyana. Because of the conclusions I have reached I shall consider each of the two sections separately.
The conclusion of the learned trial judge that section 28C is in breach of natural justice emanates from the argument presented to him concerning: (a) the right of freedom of association; (b) the right to collective bargaining; (c) the non-consultation of the TUC by the Government as regards to the content of the Bill which was the source of the act; (d) the urgency in presenting the Bill; and (e) the motive in introducing the Bill. The learned trial judge did not expressly rule individually on the arguments urged before him. But because of his conclusions I have inferred that he concluded that all or some of those arguments of the respondents on those issues were accepted.
I have here for convenience considered both grounds together since the later is the fruit of the former. The right to associate freely is enshrined in the Constitution. Art. 147(1) reads:
“Except with his own consent, no person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons in particular to form or belong to trade unions or other associations for the protection of his interest.”
Clearly there is there embodied a fundamental right for the respondents to belong to any trade union. Such a right can only be abrogated or infringed if the Constitution is amended so as to negative it. Any Act of Parliament which impinges on that right is, ultra vires since the Constitution is the supreme law of Guyana. The free exercise of the right to determine with whom one desires to associate is common to all western democracies of which Guyana is one. This essentiality for good government is provided for by Article 2 of the ILO Convention No 87 of 1948.
In the High Court is was urged by counsel for the respondent that section 28C of The Labour (Amendment) Act 1984 (referred to hereinafter as LAA) collides with the right to collective bargaining which is guaranteed by the ILO Convention No. 87; and by Article 147 of the Constitution. Neither of those provisions deals with collective bargaining. They are both directly concerned with the freedom of association. No article in the Constitution expresses the right to collective bargaining. However, Article 4 of the IL Convention No. 98 provides for collective agreements. Collective bargaining is one of the consequences of freedom of association and the offspring of it. Therefore one cannot equate a part with the whole. As Wooding C.J. remarked in Collymore and another v. A.G. of Trinidad & Tobago (1967) 12 W.I.R. at p. 1:
“A clear distinction was at all times drawn between the freedom to associate, the objects to be pursued in the association and the means to be employed to attain those objects;”
it may well be that the objects of associating freely or the methods used to obtain those objects are illegal. In either case one cannot call in defence the fundamental right of freedom of association.
A similar entrenchment as Art. 147(1) was considered by the Court of Appeal of the West Indies Association States in Joseph & Another v. A.G. of Antigua (1980) 27 W.I.R. 394. There the court was examining sections (1) and (2) of the Constitution of Antigua; and they concluded, in my view, rightly, that the creation and operation of a trade union is separate and distinct from the objects of the trade union and from the methods by which the objects are attained. Freedom of assembly and association is also guaranteed by article 40(1) (b) in the Constitution. But wherever that right is expressed it delimits itself to the right to assemble in order to protect interests political, educational, religious, economical, cultural and social. Even that right to associate freely is certainly no absolute. Inherent in it are (a) the giving of consideration not to hinder the legal rights of others not assembled, (b) to assemble for a lawful purpose and (c) to effect that lawful purpose by lawful means.
Counsel for the respondents has argued that collective bargaining is so inextricably bound up with the Trade Union activities that is therefore had a place in the right of freedom of association. Trade Unions exist for the benefits of their members. The main benefit of a trade union to its members is its ability to arrange collective agreements which ensure better renumeration or conditions nor the method by which such is obtained is fundamental although the right to assemble freely is; and more particularly that right to collective bargaining can be abridged or abrogated by parliament. [See Collymore and another v. A.G. of Trinidad and Tobago (supra)]. It is worthy to note that the ILO Convention of 1948 conferred the rights of freedom of association; but it was the ILO Convention of 1949 which expressed the right to collective agreements. It is clear therefore that ILO did not intend that Convention 98 was subsumed in Convention 87.
It was argued by counsel for the respondents before the learned trial judge that the article of the ILO Convention which expressed the right to collective bargaining was ratified by the Guyana Government and that Parliament therefore cannot legislate for the dishonouring of undertakings solemnly and legally given by the Government to international authorities. The Guyana Government did ratify ILO Convention NO. 98 of 1949. But Conventions are no more than resolutions which nations agree to honour. They are not legally binding on any country until they are enacted in Parliament; See Blackburn v. A.G. [1971] 2 All E.R. per Denning M.R. at p. 1382. But although the signatories are not bound legally to honour such resolutions – the dishonouring of Security Council resolutions abounds – there is the presumption that they will not be infringed lightly. Art. 4 of ILO Convention 98, however was never crystallised into an Act of Parliament in this country; and therefore there is no fundamental right to collective bargaining here, Convention 98 notwithstanding.
Section 28C of LAA empowers the Trade Union Congress and Government to make agreements or arrangements for employees of the public sector. Previous to 1977, public sector workers ere at liberty to make collective agreements with their employers through their various unions. Indeed the respondents were members of a trade union, the National Association of Agricultural, Commercial and Industrial Employees (NAACIE) which union had the right to bargain on their behalf. In 1977, however, the TUC negotiated with Government for a three year agreement – 1977-1979 – which was financially...
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