The Guyana Civil Servants and General Workers Union (GCS&GWU) has lost its bid to represent a certain category of workers at the Guyana Geology and Mines Commission (GGMC) after its application was dismissed by High Court Justice Nareshwar Harnanan earlier this month.
The GCS&GWU had challenged a decision taken by the Trade Union Recognition and Certification Board to deny its application to be recognised as a union representing GGMC workers in the categories of administrative, professional, technical, clerical, and tradesmen.
Named in the application as respondents are: Chairman of the Certification Board, Nanda Gopaul; the Attorney General, and the Guyana Public Service Union (GPSU), which is currently the sole union representing the GGMC workers.
It was noted that GCS&GWU had made several applications to the Trade Union Recognition and Certification Board to be treated as the recognised union of these workers.
In considering its last application, dated May 31, 2021, the board conducted a poll on October 22, in accordance with section 21 of the Trade Union Recognition Act, to decide which union would represent these specific sets of GGMC workers.
During the poll, out of a voters’ list (bargaining unit) of 498 persons, only 260 votes were cast. The GCS&GWU obtained 158 votes and GPSU, who was at all material times the majority union certified to represent the employees of GGMC, secured 102 votes.
However, the Board unanimously agreed that, based on the results, GCS&GWU’s 158 votes accounted for 31.73 per cent of support amongst the workers in the bargaining unit of 498 employees. It was further decided that by obtaining 31.73 per cent support amongst the workers in the bargaining unit, GCS&GWU failed to satisfy the stipulated threshold of 40 per cent of the 498 workers in the unit, as stipulated by the Act, in order to cancel the GPSU’s Certificate of Recognition.
As a result of that decision, GCS&GWU challenged the Board’s interpretation of section 21 of the Act, and filed a Fixed Date Application on November 8, asking the court to review the decision of the Board, which falls under the Labour Ministry; to also declare that the Board erred in concluding that the proviso to section 21(3) of the Act prevented it from decertifying GPSU; as well as a declaration that, having decisively lost the poll, the GPSU could not properly continue to be the certified union for the employees of GGMC; and that order be issued to decertify the GPSU and to certify the GCS&GWU to represent the GGMC employees.
The GCS&GWU, in their written submissions, argued that due to the punctuations in Section 21 (a period/full stop at the end of subsection 2 and a colon at the end of subsection 3), the proviso in section 21 which speaks to the requirement of obtaining not less than 40 per cent of the votes among the workers in the unit is not applicable to the entire section, but is restricted in its application to subsection 3 of section 21, which speaks to instances when the results of the poll show a tie or are inconclusive.
The union contended that since the proviso does not apply to section 21(2), they should be certified as the majority union, since they received the majority votes among the workers that took part in the poll.
But the respondents counter-argued that the Act must be read as a whole, and that it was clear that the legislators provided for various situations, including at Section 21(2), which speaks to the determination of a recognised union where two or more unions are involved; Section 21(3), which provides the procedure in the event of a tie; and the proviso in Section 21, which speaks to the situation where there is already a certified union and said union is being challenged.
According to the respondents, the proviso in section 21 applies to the entire section 21, as it qualifies the section to provide a procedure for when there is already a certified union.
They further argued that section 21(2) could never have been intended to apply to a union that has already been certified, as is the case with GPSU.
They further argued that if one is to use the applicant’s contention that the proviso does not apply to section 21(2), then this would lead to an absurdity. This is since section 21(2) does not provide a logical procedure for a situation where there is already a certified union.
Section 21(2) only contemplated a situation where there is no certified union and two or more trade unions have applied under section 18.
However, Justice Harnanan, in his decision, upheld the written submissions made by the respondents, ruling that the Board did not act in excess of its jurisdiction, and that there was no unreasonable, irregular, or improper exercise of the Board’s discretion.
The High Court Judge also found that the proviso applies to the entire section 21, and any contrary interpretation would lead to an absurdity. Hence, he said there was no error in law on the part of the Board.
With the dismissal of the application, the GCS&GWU was ordered to pay $250,000 in costs to the Board and the Attorney General, and another $200,000 to the GPSU.
GCS&GWU was represented by Attorney Mayo Robertson, while the Board and the
Attorney General’s Chambers were represented by AG Mohabir Anil Nandlall SC MP, Assistant Solicitor General Beverley Bishop-Cheddie, and State Counsel Teakaram Singh. GPSU was represented by Attorney Mandisa A Breedy.
