Shipping Association of Georgetown and Bookers Shipping (Demerara) Ltd v Hayden

• Jurisdiction: Guyana
• Judge: Persaud, J.A.,Crane, J.A.,Haynes, J.A
• Judgment Date: 09 May 1975
• Neutral Citation: GY 1975 CA 10
• Docket Number: Civil Appeal No. 15 of 1974
• Court: Court of Appeal (Guyana)
• Date: 09 May 1975

Court of Appeal

Persaud, J.A.; Crane, J.A.; Haynes, J.A.

Civil Appeal No. 15 of 1974

Shipping Association of Georgetown and Bookers Shipping (Demerara) Ltd.

and

Hayden

Appearances:

C. Lloyd Luckhoo, S.C., with Edward Luckhoo, for first-named appellant

Sir Lionel Luckhoo, S. C., with Edward Luckhoo, for second-named appellants.

Ashton Chase, with Vernon Persaud, for respondent.

Labour Law - Contract of Employment — Wages

Persaud, J.A.

1 Even though there were many subsidiary points of law argued in this appeals it appears to me that the substantial point is whether deductions made from the wages of an employee by an employer in pursuance of an agreement so to do, entered into by the employer's agent and a union of which the employee was a member, and paid into a fund from which the employee could receive certain benefits, are forbidden by law in that they contravene the Labour Act (Cap. 98:01). That is the question in the main in this appeal but I shall attempt to deal with the other points as well. But first to the facts:

2 During the relevant period, i.e., from 1960 to 1970, the plaintiff (respondent) was employed by the second-named defendants (appellants) as a stevedore — specifically as a winchman — on their wharves in Georgetown. He was a member of the Guyana Labour Union, a registered union entrusted with the right to bargain on behalf of all waterfront workers which expression would include the plaintiff. It appears from the evidence that there was what has been described as a branch of the Union (more accurately as the Waterfront Branch), devoted interest of those members of the Union who were employed on the waterfront. The Waterfront Branch can be regarded as ‘a territorial division’ of the Unions for the evidence is that the Union has always negotiated with employers on behalf of waterfront workers for wages and conditions of work. It is my view that when the Waterfront Branch signed the agreements (particularly in this case where an officer of the main Union also signed the agreements), the main Union intended to be bound thereby. Both defendants are bodies corporate registered under the Companies Act; but whereas Bookers Shipping (Demerara) Ltd. were the employers of labour on the waterfront, the Shipping Association of Georgetown was an organisation comprising of several trading companies (of whom Bookers Shipping was one)., and acted as the recruiting and paying agents of the employers. The Shipping Association in its capacity as the employers association also bargained and entered into the various wages agreements on behalf of the employers with the recognised union, the Guyana Labour Union. These agreements have been arrived at as a result of collective bargaining such as has been described by Kahn-Freund in his ‘Labour and the Law’ (1972) as the contractual and static method. One of the outstanding features of collective bargaining is frequently the agreement aimed at is collective on both sides. The bargaining partner on the side of management is very often an employers' association; this is a dominant feature of collective bargaining not only in the private but also in the public sector of the economy. Despite the growing importance of bargaining by individual employers, a large proportion of the labour force is still governed by agreements made by an employers' association with one or more trade unions. This may cover the whole of an industry on a national level, or on a regional, district or local basis. But what is important is that where agreements are made by employers' associations, it is almost inevitable that they should be supplemented by further agreements or understandings between and unions, and between employers associations and the very good reason that circumstances change from time to time, new working habits emerge, and it is only proper that both employers and workers must face up to the social realities of the day and adopt practices that conform thereto.

3 I shall hereafter refer to the first appellants as “the Association”, the second appellants as “the employers” and the respondent as “the employee”, and the Guyana Labour Union as “the Union”. Before dealing with the various agreements concluded between the Association and the Union, it is necessary to state, without going into any detailed account of all the events surrounding this matter, that in 1955 a Port Labour Committee was set up as a result of an agreement between the Waterfront Branch of the Union and the Association. This body, though not statutory was comprised of four representatives of the Waterfront Branch, four from the Associations and an independent chairman who was, until the end of 1963, the Commissioner of Labour himself and a secretary provided by the Ministry of Labour. After 1963, the chairman was an independent person agreed upon by the two sides with the secretary being provided by the Association. This committee played an important role both in the subsequent negotiations between the Union and the Association, and in the supervision and distribution of the Labour Stabilization Fund (hereafter referred to as “the Fund”) to the contributions to which this case relates.

4 The first collective agreement — Exhibit ‘C’ – was signed on May 26, 1960. One of its avowed objects was the decasualization of waterfront employment and it provided for revised rates of pay; the introduction of a shift system of work; for the introduction of a scheme of holidays with pay; for the appointment of a committee to study and make recommendations for a contributory pension scheme, and for a check-off system among other matters. It also provided for the introduction of “a system for the central allocation of registered stevedores and wharf workers according to the requirements of the employers at the several wharves, and a centralized system for the payment of wages and allowances.” But it was the second agreement of December 29, 1960 — Exhibit ‘D’ — which introduced the Fund in the following terms:

“There shall be constituted by the Association a Levy Stabilization Fund to be supervised by the Port Labour Committee so to give effect to the principle described in the first sentence of paragraph 1 of the Memorandum of Agreement in re Revised Rates of Pay and Additional Benefits to Waterfront Workers dated 26th May, 1960. Credits to the Fund shall represent the difference between the premium rates payable for the first and second night half shifts under the Schedule currently in force, and the premium rates payable for the first and second night half shifts as agreed in sub-paragraph i(v) following. Debits to the Fund shall consist of monies expended by the employers in order to maintain the minimum guaranteed payment agreed in sub-paragraph i(vi) hereof to registered waterfront workers who hold valid registration books and are within the scope of the Fort Labour Registration Scheme dated lath July, 1955.”

5 By para. (vi) referred to above, minimum guaranteed payments were prescribed for various categories of workers; that of employees such as the respondent was $20 per week. Then came another agreement signed on November 22, 1961 — Exhibit ‘E’ — in which it was agreed that the amount lying at the credit of the Fund as at September 30, 1961, should be distributed to “registered, second preference list, and unregistered workers according to the basis of allocation that is considered appropriate by a Joint Committee comprising representatives of the Union and the Association.” The Fund was reconstituted, and it was provided that credits to the Fund shall represent an amount equal to 8% of the earnings of registered workers from the rates in force for the first and second half-night shifts. The rates are those set out in respect of the various shifts. This agreement also provided for the same guaranteed minimum wage as mentioned in the second agreement but stipulates that the payment of such guaranteed amounts was subject to the availability of money lying to the credit of the Fund, and that the association agreed to the payment of the guaranteed wage “provided that (the workers) are available for work and present themselves for duty at the agreed times at the wharves or calling-on places notified by the employers.”

6 It also contained a clause which, if I may say so, is rather unhappily phrased. It says:

“Debits to the Fund shall consist of movies expended by the employers in order to maintain the minimum guaranteed payment agreed in sub-clause 1(vi) hereof to registered waterfront workers who hold valid registration books and are within the scope of the Port Labour Registration Scheme dated 14th July, 1955.”

7 What I believe is meant is that the amounts utilized to make up the guaranteed minimum wage shall come from the Fund, and payments will be made only to such registered waterfront workers as hold valid registration books, and are within the scope of the Port Labour Registration Scheme.

8 It should be explained that the calling-on places or centres referred to were operated by the Association, and were centres where registered workers reported for work whereupon they would be dispatched to various points there work was then available. In the event that no work was available, the workers registration books (to which I will refer later) were suitably stamped, and it was only upon the presentation of a stamped book that the worker was paid the guaranteed wage. It is easy to see the object of this exercise: it was to ensure that a registered waterfront worker who was unable to secure employment received a wage packet that period — in my opinion a laudable object.

9 I digress for a moment to refer to a decision of this court in Georgetown Shining Association v. Bentinck (1969) 14 W.I.R. 243, where both may brother Crane and I expressed the view that the respondent there, being an unregistered worker, did not receive any benefit from the...