The case of GPSU v Nanda Gopaul was not about the Agency Shop Agreement

Dear Editor,

The GPSU observes with amazement the variety of reports and commentaries in the press on the decision recently made by Chief Justice (ag) Mr Ian Chang in the case of the GPSU v Nanda Gopaul, No 584 of 2000, Misfeasance in Public Office, and we wish firstly to clarify what was before Justice Chang. The remedies we pursued in the courts as set out in the Endorsement of Claim are as follows:

“(i) a declaration that the defendant is guilty of misfeasance in public office by exercising a public power for an improper purpose with the specific intention of injuring the plaintiff;

“(ii) a declaration that the defendant in bad faith and in breach of his duty to the plaintiff acted with reckless indifference for the illegality of his act and in the knowledge that he had no power or authority to instruct Permanent Secretaries of the Ministries of the Government and other heads of Departments of the Government not to deduct union dues from employees who are members of the plaintiff’s union knowing that his decision would injure and cause the union irreparable economic loss;

“(iii) a sum in excess of $50,000 as damages;

“(iv) an award in excess of $100,000 as exemplary and aggravated damages;

“(v) interest on such sum as the court may award under the Law Reform (Miscellaneous Provisions) Act;

“(vi) such further or other relief as may be just;

“(vii) costs.”

The basic facts of this case are not in dispute.

The foregoing is accurately stated at the commencement of Justice Chang’s ruling.

We are convinced that our concern was not addressed which was the interference and obstruction to the relationship between the union and its bona fide members. The deductions in question have not been an element of dispute between the Guyana Public Service Union and the Government of Guyana. In essence these deductions were made by the government from public servants’ salaries based on the voluntary submission of an authorization from public servants requesting the government to make the deductions of union dues in favour of the Guyana Public Service Union in keeping with Rule Q4 of the Public Service Rules, and which deduction was sent to the union by cheques titled union dues, along with a list of the names of persons from whom the deductions were made. The government was merely the custodian for transmission after the deductions authorized by public servants were made.

The action taken by the Government of Guyana (2000) to terminate the deduction of various dues was considered by Justice Carl Singh, SC, on July 21, 2000, who ordered the Public Service Ministry to make the deductions in accordance with Rule Q4 (1) as shown below:

“Two days ago Mr. Fitzpatrick made an application to the Court which he addressed fully and to which Mr. Ramjattan responded. Before I deal with the application proper, I wish to make it clear, that this Court will never seek to interfere with, nor to frustrate the Guyana Public Service Union in the pursuit of its legitimate activities. Nor was it the intention of the Court to cripple the Guyana Public Service Union nor to starve it of funds. Having made that position clear and having considered the representations of Mr. Fitzpatrick and the response of Mr. Ramjattan, the ruling of the Court  is that upon the submission of authorizations (as is required by Rule Q4 of the Public Service Rules) by public servants authorizing the deductions of Union dues from their wages to their Permanent Secretaries or Heads of Departments or Regional Executive Officers, then such officials shall ensure such deductions are made from the salaries/wages of such employees and promptly remitted to Guyana Public Service Union. Dr. Nanda Gopaul, Permanent Secretary, Ministry of Public Service who has been made a party to these proceedings is hereby ordered to serve notice on all concerned government officers to give effect to this order of the Court. This Order shall take effect from the month of August 2000 and shall remain in force until further order of the court.

“With regard to Agency Fees, in my view there is no need to order that such sums be deducted and held escrow. If the union is successful in its claim before the Court, the Government would be expected to act responsibly. No order would therefore be made with regard to agency fees.”

Dr Gopaul eventually issued a circular in conformity with that ruling. It was evident that blocking deduction of members’ dues was the target.  Dr Gopaul’s manoeuvre to obstruct the deduction of union dues from members’ salaries in keeping with Rule Q4 of the Public Service Rules of 1987 as directed by Justice Carl Singh resulted in the union:

1.  Instituting the said action No. 584 –W of 2000 for the aforementioned relief.
2.  Action No. 141 of 2000 for contempt of court. We were affected significantly in terms of loss of income, the curtailment of services and the inability to provide benefits to our members. Given these adverse consequences resulting from the actions of Dr Nanda Gopaul and after consultation with our attorneys, we authorized the institution of the said action.

We also take this opportunity to reaffirm publicly, without reservation our fullest confidence in our attorneys, Mr Rex Mc Kay, SC and Mr Miles Fitzpatrick, SC, who advised us and submitted our case for adjudication and our trial attorney Mrs Abiola Wong-Inniss, who represented this matter, and it is our intention to request their consideration for submitting an appeal against Justice Chang’s decision of August 24, 2010 in Case No. 584 of 2000 since we are convinced that our concerns were not addressed, that is, Dr Gopaul’s unwarranted and illegal interference between the union and its bona fide members.

This occurred in June 2000, when the Guyana Public Service Union was in possession of a Recognition Certificate for all employees appointed by the Public Service Commission, which was issued on May 16, 2000 by the Trade Union Recognition and Certification Board at a time when the Labour Amendment Act of 1984 Section 28 (A), from the date it was assented to by President LFS Burnham, made all collective labour agreements legally binding, except it is specifically stated that it was not  in the said agreement. The check off system of union dues is a well established legal arrangement in all democratic countries and recognised as a modern, enlightened and efficient system that enjoys the support of employers and governments worldwide, particularly member states of the International Labour Organisation. The trade union movement internationally views this attempted assault on the check off system of union dues as an anti trade-union action, retrograde and backward.

In view of the foregoing, we are baffled with the emphasis placed on Agency Shop Agreement and its legality since this case was not about the Agency Shop Agreement; in fact there are other pending cases, GPSU v Attorney General Action No. 140M of 2000 and Action No. 141M of 2000 challenging the arbitrary termination of the Agency Shop Agreement which is still to be heard and determined by the court.

As a consequence of the foregoing, the GPSU views the Agency Shop Agreement dispute re: cases Nos. 140 M & 141 M referred to above as sub judice and would not articulate a public position since these cases are currently before the court and have not been determined.  We would also consult with our attorneys to be advised on how to deal with what is now unfolding publicly, which from all appearances seems to be orchestrated. Particularly the unprofessional language used by Mr Francis Carryl in a letter to the editor in Stabroek News  under the rubric ‘Agency shop was illegal.’

“Agency shop without support of legislation was illegal and mischievous to say the least” and, “perhaps the union was too engulfed in its culture of laziness that it had no time to think clearly,”  were among other inappropriate and unprofessional comments. All of this Mr Carryl pronounced  although he admitted, “I have not had the benefit of Justice Chang’s judgment.” In our assessment Mr Carryl lacks the competence to pronounce on this matter, and has endeavoured to draw conclusions without acquainting himself with all aspects of the dispute – a fundamental principle of natural justice.

The Agency Shop Agreement has been in existence since 1976.  The Agency Shop Agreement is not a unique agreement and is operational in many countries worldwide.  In fact, from information reaching us, there have been eight court cases in Canada about workers reluctant to pay agency fees and they have all lost with the judgments ruling them as constitutional.  This agreement came about based upon representations made by very credible and decent public officers who were also leaders of the union. It is my respectful view that any action to displace, modify or render this agreement unconstitutional should be done within the parameters of natural justice, where due process is respected, giving all parties the opportunity to make representation and to give due consideration to the representation articulated.  The proper approach would be through the courts in a manner in which remedies and pleadings sought are clearly related to and relevant to this significant agreement.  I am therefore personally offended by the misdirected public scrutiny that is attempting to desecrate without regard to its merits, the work done by very outstanding trade unionists who have sacrificed so much and have made so many solid and worthwhile representations that have enhanced the rights, conditions of service, and general welfare of public servants and workers generally and those of their families, etc. We have no control over the unprofessional conduct that has been displayed; we however hope that the other cases that were filed since July 2000, are brought to trial.

Yours faithfully,
Patrick Yarde