The Agency Shop was illegal

Dear Editor,
It is not without significance that almost three years ago, the Prime Minister of Antigua and Barbuda, Mr Baldwin Spencer, in his feature address to the fifth Triennial Delegates’ Conference of the GLU, advocated, “Guyana should legislate for Agency Shop.”

Indeed, it was clear to the knowledgable gentleman that to operate an Agency Shop without the support of legislation was illegal and mischievous to say the least. It therefore came as no surprise to me when on August 24, Chief Justice Chang dismissed an action brought against Dr NK Gopaul, the Permanent Secretary of the Public Service Ministry, for the ending of the Agency Shop agreement.

Why such a simple case took so much time to conclude remains a mystery to me, but if the GPSU had consulted me, I would have freely advised them that no court that is worth its salt would have found otherwise and therefore the shameful and baseless action should not have been initiated. Perhaps the union was too engulfed in its culture of laziness that it had no time to think clearly.

I have not had the benefit of Justice Chang’s written judgment, but from a distance and from a purely academic standpoint I can surmise that the deduction of an ‘Agency Fee’ from the wages of an employee is repugnant to our Labour Act Chapter 98:01. And an affront to good industrial relations practice.

The matter of illegal deduction from a worker’s wages – such as an Agency Fee – was astutely addressed in the celebrated case of Shipping Association Of Georgetown And Bookers Shipping (Demerara), Ltd v Arthur Hayden. In that case Justice Persaud made it quite clear that in keeping with the provisions of our Labour Act, all wages earned must be paid in full to the employee and except he is permitted by the said act, no employer has any right to withhold or deduct any money from the wages of any employee. In fact, at page 145 of his judgment Justice Persaud said: –

“The money must be paid over so completely and finally that it then and there becomes the workman’s very own. , being received into his possession subject to no sort or kind of under taking however tacit …”

The pure and simple fact of the matter is that wages are the property of the employee, and no employer is authorized to interfere with an employee’s property without permission.

The fact that wages are an employee’s property is well settled in several cases including IRC v Lilleyman (1964) and most recently Barnwell v AG of Guyana (1994).

The Labour Act  lists all the items for which an employer can legally make deductions and nowhere in there is the Agency Fee and the union dues to be found. Therefore, if it is illegal to deduct Agency Fees, what then is the position with the union dues?

According to my limited research, the union dues enjoy a special status, and fall under an umbrella of immunity. The act does not permit the employer to make deductions in respect of mortgages, unrelated loans, and insurance premiums, yet they are made without any complaint simply because they are made in the interest of the employee, and perhaps the employer too.

In all of these instances, the employee gives the employer a written authorization to make the deduction in much the same way as an authorization is given for the deduction of the union dues which is not really legally permissible under the act. Speaking about the deduction of union dues which is popularly known as the ‘check-off,’ professors Elias Napier and Wallington  in their text Labour Law Cases and Materials had this to say about the legality of the Check-Off/Union Dues:

“But this convenient and sometimes necessary practice is prima facie forbidden  by ss 2,3,and 9 of the 1831 Act. As the following case demonstrates, , it is only because of careful judicial reasoning  that the Check-off can claim, under certain conditions, to be legal.”

It seems to me that if the Check-Off is barely made legal, then there should be very little difficulty  in concluding that the Agency Fee is indeed illegal. As a matter of fact, the unions are quite aware of the tender ground on which the employer stands when he agrees to deduct the Check-Off from the employee’s wages. They know that it borders on illegality, and as a safety measure willingly agree to have an indemnity clause included in Check-Off agreement with the employer. Usually, it reads as follows:

“The union shall indemnify the corporation and responsible for any liabilities arising from any action taken by the corporation in compliance with the terms and conditions of this Clause. The Corporation shall notify the union of any claim or action that may give rise to any such liability

Lest there be any misunderstanding and confusion, it is to be noted that certain sections of our Labour Act especially those which have to do with the payment of wages, and deductions therefrom, are patterned after the UK’s Truck Acts of 1831.”

This fortified position of mine, is premised on the judgment of Justice JOF Haynes in the aforementioned Hayden case.

Indeed, among the many objects  of the Truck Acts and now our Labour Act, is the protection of certain categories of workers from “impositions or exploitation by unconscionable employers,” but as the events have turned out the employees now have to be protected from certain unconscionable trade unions.

The officers of such unions, take the workers’ money, live like emperors and cry crocodile tears when they are asked to account for the people’s money. They accuse employers and governments of corruption and dictatorial behaviour when the governance of their unions epitomizes totalitarianism and other forms of social indecency. They perpetuate their life in office through unconstitutional measures. They eliminate anyone who appears to be a threat to them and have no succession plans for their unions, which will most likely collapse when they pass on. How can you trust such people with your Agency Fee?

One of the values of the Agency Fee is that it prevents free riders from benefiting from the investments of the bona fide union members. However, on the other side of the balance sheet, it promotes laziness on the part of union officials who would not have to engage in any recruitment drive.  I detest free riding, but then again union officers need to get on their feet and truly earn their keep.

On another occasion I may seek to find out from the government of the GPSU what they have achieved for their members during the past decade. In the meantime, let me say that the GPSU may be lucky that public servants are at this time unable to recover the illegal Agency Fee, which was deducted from their wages over the years.  At least I would have liked to get mine. This is a sad day for the GPSU who now know that their hopes of having the Agency Shop reopened have been dashed to pieces. Do I need to reiterate that the Agency Fee is downright illegal? I think not.

Yours faithfully,
Francis Carryl