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Feb 02, 2010 Features / Columnists, Peeping Tom
Prior to a few years ago, there was no right to strike or a right to collective bargaining under our constitution. It was mistakenly assumed by some that the right to collective bargaining and the right to strike formed an integral part of the right to freedom of association which has always been enshrined in our pots independence constitutions.
Upon a challenge in the Courts, it was ruled that freedom of association is exactly what it says: the right of persons, including workers to come together in groups and associations, including in trade unions.
But this constitutionally protected right did not translate then to the right to collective bargaining nor was there any constitutional protection for the exercise of the right to strike.
To their credit, those responsible for the post-1997 constitutional amendments, ensured that the right to collective bargaining and the right to strike were granted protections under our constitution. The first point which must be made, however, is that what is protected is the enjoyment of these rights. Secondly, as with all rights, these rights are not absolute.
The general exceptions to these rights are spelt out under the constitution. Thirdly, the fact that the enjoyment of a right to strike, for example, is protected does not give anyone to arbitrarily employ the strike weapon.
To better appreciate this point we must understand the origins of the common law which historically emerged with a strong bias towards the protection of property. Guyana has not moved away from this tradition even though it once proclaimed itself as a cooperative socialist republic. There is a right to strike, but the strike weapon cannot be used arbitrarily.
Even in industrial relations it is accepted that while often the only weapon that the workers have in advancing their cause is the withdrawal of their labour, the use of the strike weapon must be one of last resort.
One other point is important when considering the constitutional protection of the right to strike. It is wrong to assume that no collective agreement can be interpreted to mean that workers have surrendered their right to strike.
The constitution of Guyana only affords constitutional protection to the enjoyment of the right to strike where the workers do not consent to abrogating this right.
The language of the constitution is very clear. It states that no person, without his or her consent, shall be denied the enjoyment of his or her right to strike. This allows for the workers to decide whether they wish to give up that right.
If therefore there is a collective bargaining agreement, signed on behalf of workers, which prohibits workers from taking strike action, then exists, in the humble but not infallible opinion of this commentator, no constitutional protection since such protection has been foregone by consent of the workers through their representatives.
Whether therefore the bauxite workers can enjoy constitutional protection of the right to strike depends on an interpretation of the collective bargaining agreement between the union and the company. The company has one view and the union another.
The company has gone further and has accused the union of breaching the collective bargaining agreement and has taken the position that these breaches have made the agreement null and void.
Whether the company can rescind the agreement would depend on the relevant clauses of the agreement of which this commentator has no knowledge.
What the company cannot do is to derecognize the union. The law does not allow this to happen and the government has been clear on this, that the company cannot derecognize the union unless the appropriate procedures are followed.
So for all intents and purposes, and regardless of what the company says, the union is still the recognized bargaining agent for the workers.
The problem for the union is not this though. The problem is that a large number of workers went back to work and thus the union faces a credibility crisis.
Now if you are a union representing workers and the workers proceed on industrial action and then return to work without the approval of their union, this places the union in a most difficult position.
They have been marginalized by their own workers and not by the company or by the government.
There is another major issue which the union must confront. The company, it has been said, offered the union a number of options and the union replied indicating its acceptance of one of the options which called for a ten per cent increase in wages and a set reduction in the work force.
Now here is a classical example of an offer being made and an acceptance of that offer. The union having accepted the first option cannot then take the position that the two elements of the option were to be treated separately. It cannot make such a preposterous claim.
Having agreed to an option, it is in bad faith to then say that the two elements of the option must be treated separately. This would be akin to reopening negotiations.
So instead of blaming the government over the positions adopted by the company, the more relevant thing to be asked is to what extent has the union brought about the problems which it now faces.
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