The Caribbean Court of Justice (CCJ) yesterday upheld rulings by the local courts to dismiss an application by the sugar workers’ unions to quash a decision to sever over 4,000 workers and close the Rose Hall and Enmore sugar estates last year.
In a judgment published on its website, the court found that the Guyana Agricultural and General Workers Union (GAWU) and the National Association of Agricultural, Commercial and Industrial Employees (NAACIE) were adequately consulted before the government’s decision to close the sugar estates on December 29th, 2017.
It further held that the consultation process, although not perfect, did meet the minimum requirements for meaningful consultation, although it disagreed with a High Court ruling that the Commission of Inquiry (CoI) into the state of the sugar industry formed part of the consultation.
According to the CCJ, three stakeholder meetings held before the announcement of the closures, GAWU’s presentation at one of these meetings and the state paper, met at least the minimum standard for adequate consultation.
The court also found that there was sufficient evidence on record to show that the applicants had reasonable notice of Guy-suco’s intentions to close, the reasons for closure and the number and categories of workers affected as legally required.
It, however, noted that government ought to have given a considered response to GAWU’s proposals, including explaining why they were not adopted and more fully appraised the unions of the plans for providing alternative employment after the closure in an effort to ease their concerns.
In their submissions, the unions, which saw both their application to the High Court to quash the decision and a subsequent appeal dismissed, argued that there was a lack of consultation with regards to the termination of workers and the closure of the sugar estates. Specifically, they claimed that there is a longstanding practice of consultations on matters pertaining to workers of the estates, which had given rise to a legitimate expectation that they would be consulted on important matters affecting them. They further submitted that the actions of government illustrated a blatant disregard for the principles governing employers’ duties to employees, the engagement of the union, adherence to the Trade Union Recognition Act and workers’ rights to be treated fairly.
In responding to the case, the government’s legal team, led by Attorney-General Basil Williams, argued that evidence of the various affidavits and correspondences submitted proved that there was sufficient consultation, including the CoI, the various meetings conducted and the fact that a representative of the unions was on the CoI.
“At all material times, the Applicants were aware of the issues faced by Guysuco and its possible future. Further, the studies, meetings, letters to the Applicants, State Paper and CoI collectively reflect reasonable sources for the Appellants being aware of a real possibility of closure,” the government’s submission noted.
In deciding the issue, the CCJ considered the various sources from which the obligation to consult may arise. It was noted that a precedent had been set in which a legitimate expectation can arise by promise or practice unless there is an overriding reason to abandon it. Further, the court acknowledged that in the present case the primary source of the duty to consult was statutory as Section 23(5) of the Trade Union Recognition Act provides, that where a trade union has been certified and an employer considers closing an undertaking, “The union concerned must be consulted before a final decision to close is taken.”
According to the CCJ, in interpreting the meaning and extent of this provision, the common law duty to consult, repeatedly stated in the jurisprudence, is relevant.
“R v. Brent London Borough Council ex parte Gunning pronounced certain basic principles (commonly known as the Gunning principles”) [that] there ought to be: consultation when the proposals are still at a formative stage; adequate information on which to respond; adequate time in which to respond and conscientious consideration by an authority to the consultation,” the judgment noted.
It added that the Gunning principles have been widely accepted and applied, with modern trends indicating that the consultation process embraces more than just affording an opportunity to express views and receive advice; it involves meaningful participation and overall fairness however representation from those affected by the proposed decision need not, unless the statutory provisions indicate to the contrary, be accepted or even responded to but they must be taken into consideration.
“In this case there was a legitimate expectation that the Applicants would have been consulted prior to the closure of the sugar estates both because of longstanding Guysuco policies and the specific promises by Vice President [Khemraj] Ramjattan and Minister of State [Joseph] Harmon that there would be meaningful consultations prior to any such closure. Furthermore, statute specified that a trade union should be consulted before a final decision to close was taken,” the CCJ said.
It, however, disagreed with acting Chief Justice Roxane George’s finding that the CoI “was sufficient to satisfy the obligation to consult and that the… remedies contained in the acts provided a sufficient alternative form of relief for the Applicants.”
Instead, the CCJ found that the consultation process properly began after the initial meeting of the stakeholders on December 31st, 2016.
At this meeting, Ramjattan and Harmon were asked specifically about the inclusion of closure in the government’s proposals. At this point, all relevant stakeholders would have been made aware that the state was exploring closure and state officials assured the unions of meaningful consultation before a final decision was taken.
There were two subsequent meetings, both entitled ‘Stakeholders Meeting to Discuss the Future of Guysuco.’ The first was held on February 3rd, 2017 and the second on February 17th, 2017.
It was at the second meeting that GAWU made an extensive two-hour presentation, titled ‘Securing Guyana’s Sugar Industry: GAWU’s Presentation to the Government of Guyana on the Future of the Guyana Sugar Corporation (Guysuco).’ The judgment said the preface of the presentation is clear evidence that it was made with the knowledge that the government was considering the closure of the estates. It further said that the article also showed the union’s opposition to closure of Rose Hall and Enmore/LBI estates and its regret at what had taken place at Wales Estate. Consequently, the court concluded that it is clear that the unions were aware of Guysuco’s intention and were given the opportunity to make representations, which they did.
Three months after GAWU’s presentation, the plan to close the estates was formally announced in the National Assembly by Agriculture Minister Noel Holder, who presented a State Paper on the future of Guysuco.
The court argued that the passage of time between GAWU’s presentation and the decision to close, coupled with the overwhelming evidence on the economic failings of the corporation, were equally consistent with a “conscientious consideration by an authority” and therefore disagreed with the unions that government did not conscientiously consider their proposal.
The CCJ, however, noted that without an express statutory requirement to respond to stakeholder proposals, it would be difficult for any court to find that the government did not consider the proposals before stating that notwithstanding the absence of a statutory obligation, government ought to have given a considered response, whether written or oral, to GAWU’s proposals, explaining why they were not adopted. “The Applicants could have been more fully appraised of the plans for providing alternative employment after the closure in an effort to ease the concerns of the Applicants,” the CCJ concluded.
It noted that the announcement to close the estates was made on May 8th, and the record illustrates that the process for redundancy began in late September/early October as evidenced by a letter sent to the General Secretary of GAWU on October 2nd.
“That letter spoke specifically to redundancy which suggests that both the Government and unions knew that closure was imminent and were focused on the retrenchment of the workers. The letter also refers to a telephone conversation between the General Secretary of GAWU and a state official on September 29, which indicated that the unions and Guysuco had been in communication prior to the letter…It is relevant that several letters from Guysuco to the union representatives were exhibited from October onwards discussing redundancy including the numbers and categories of workers to be affected. The workers were formally notified of termination by letter on November 29, one month before the December 29 closure date,” the judgment said, before concluding that the process of consultation was neither perfect nor ideal.
In a matter of such national importance, impacting such large numbers of workers, the process could have been more extensive and more responsive to the concerns of the unions, it stressed.