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Article 200(1)(b) of the Constitution of Guyana makes provision for appointment of members of the PSC. The PSC is responsible for the appointment, promotion and discipline of a specific category of Public Servants classified as Public Officers.
The Union noted that it is settled law, that not all Public Servants are Public Officers (referring to Article 232 of the Constitution, Chancellor Bernard, Singh. J. and Kissoon J. in Sita Ramlall v Cheryl Scotland et al 86/2002 High Court Guyana, as approved by the Caribbean Court of Justice in Brent Griffith v The Guyana Revenue Authority (2007) CCJ 4 AJ). Only persons appointed by the PSC are considered Public Officers. Politically appointed persons occupying senior positions in the public service on contract are not regulated by the PSC and has no business making nominations to this body.
In 1997, the Parliament of Guyana enacted the Trade Union Recognition Act No. 33 of 1997 (TUR Act). The intent of this legislation based on its intituling, is to provide a mechanism for the recognition of associations to represent classes of workers.
The GPSU is the only association, organisation or Trade Union with a Certificate of Recognition to enter collective bargaining, the technical process of representation of workers, as recognised pursuant to Article 147(3) of the Constitution. The TUR Act promulgated the mechanism for representation which includes consultation. Article 200(1)(b) provides for consultation with such bodies as appear to the National Assembly to represent public officers or classes of public officers.
The PSSSA is not an organisation which represents public officers; albeit its membership comprises a meager twenty (20) politically appointed senior functionaries within the Public Service. (Please see distinction made by Article 232; Brent Griffith and Sita Ramlall cases cited above). The PSSSA was dormant for a number of years until 2021 which is evident by its declaration in its Annual Returns filed in 2021 to the Registrar of Trade Unions. The Association did not submit a nominee in response to the first letter issued on November 11, 2021 by the Standing Committee on Appointments (SCA), which evidences this dormancy. It was until a second letter dated April 4, 2022 which extended the deadline for nominations that they were in a position to a submit nominations.
Consequently, in a consultation process concerning public officers, the PSSSA has no locus standi. Their presence on the PSC is not bona fide and is void in that they do not have a certificate of recognition to represent any Public officer or classes of public officers within the Public Service who is likely to be affected by the decisions of the Commission on appointment, promotion, and discipline of public officers or classes of public officers, the Union pointed.
The PSC in its Delegation Order reserved the powers granted to only Public Officers appointed by the PSC, and specifically excluded senior staff under contract .i.e- Regional Executive Officers. The rationale behind such decision is to insulate Public Officers, i.e- Deputy Regional Executive Officers from political control and directive by senior staff such as those forming the membership of the PSSSA.
Reference is made to the Third Report of the SCA of the Parliament dated June 23, 2003 at page 6 where it states “…the discussion which ensued focused on various interpretations of the contents of the Chief Labour Officer’s letter to the Committee in relation to registration of a trade union to represent workers vis-à-vis a union’s certification allowing it to be a bargaining unit…The committee accepted its failure to identify a body or bodies as appear to it to represent public officers, or classes of public officers and agreed to refer the matter to the National Assembly for its guidance.”
The GPSU notes with extreme concern the false narrative articulated by the Attorney General et al that the recent action filed by the Union lacks evidence and was filed after 20 years of acceptance of the PSSSA as a body permissible under the Constitution to make nominations.
The GPSU said its action was premise on more than two (2) decades of uncertainty in the interpretation and application of Article 200(1)(b) at the level of the trade union movement and within the very Committee on Appointments and on the floor of the National Assembly of Guyana.
Reference is made to Stabroek News, May 8, 2003 – ‘TUC says FUGE must be consulted on appointment of public service commission,’ Stabroek News, December 6, 2003- ‘GPSU to await and see on Public Service commission’, Stabroek News, December 31, 2003- ‘…Yarde regretted that what should have been a very happy day had been adulterated by the swearing in of a representative of a phantom union…The GPSU questions the legitimacy of the PSSSA…),’ letter of private citizen Humphrey Charles in Stabroek News, August 28, 2010- ‘…Does the AFC understand the role and responsibility of the PSC?…,’ Stabroek News, August 31, 2010 wherein the late M.P Sheila Holder stated ‘…since the tenure of the eighth Parliament in 2001, the matter of the legitimacy of the Public Service Senior Staff Association…has been a burning issue with the…GPSU, and indeed with the parliamentary opposition parties…,’ Stabroek News, August 27, 2010- ‘Public Service Commission appointments not based on proper consultation- GPSU’.
Further, there is evidence that the Members of Parliament sitting on the Standing Committee on Appointment (SCA) has been faced with uncertainty in the interpretation and application of article 200(1)(b), and sought clarification from the Chief Labour Officer on a number of occasions, to assist it in interpreting the said article. Therefore, it is unsettling that Parliament over the past twenty (20) years took different approaches. For instance, between 2013 and 2016, the Parliament upheld the position of the GPSU and appointed only representatives nominated by the GPSU in the persons of Patrick Yarde and Patricia Went.
Some twenty years later, the Parliament faced the same difficulty. In its Eighth Report of April 24, 2023, Government Chief Whip, Hon. Gail Teixeira, M.P and the SCA again met the same difficulty in interpreting and applying article 200(1)(b), and reported that “…members deliberated on whether the Guyana Public Service Union was the only recognized union with a certificate of recognition…to represent public officers or classes of public officers appointed by the Public Service Commission…”
The foregoing makes it pellucid, that there has been a problem in the interpretation and application of article 200(1)(b). thus, the action by the GPSU could not have been vexatious, lacking in evidence or an attack on the work of the government. The GPSU’s action, as in the words of Justice Jamadar in Sanatan Dharma Maha Sabha of Trinidad and Tobago Inc and Others v A.G of Trinidad and Tobago HCA No S2065/2004, is one founded in “…the constitutional ethic of civic republicanism – that emphasizes the responsibility, even duty, of citizens to participate in creating and sustaining a vibrant democracy and in particular in upholding the rule of law.”
The GPSU said it is encouraged by the charge of Justice Saunders of the CCJ that “It is in the public’s interest to ensure that the Constitution is properly interpreted and applied, and the rule of law vindicated.” The Union urges its members to remain vigilant and stand in solidarity, as we traverse this journey to reaffirm the true meaning of our Constitution.
“The PSSSA is a phantom organisation comprising of politically aligned and appointed contract employees, who are not Public Officers and has no locus standi under the Constitution nor the TUR Act to represent the interest of any public officer or classes of public officers within the meaning and spirit of article 232 and the settled law laid down by such erudite Judges as Chancellor Bernard, Singh. J., Kissoon .J.; and CCJ Justices De la Bastide, Nelson, Wit, Pollard, and Bernard.”
Accordingly, the Union thought the matter was resolved since 2013 with the appointments of Mr. Patrick Yarde and Ms Patricia Went, which appointments the union viewed were in accordance with the Constitution and the highest standards further promulgated by the Parliament with the passing of the Trade Union Recognition Act of 1997. However, it is clear that the issue of interpretation and application of the law continues.
The GPSU said it stands resolute to ensure the Constitutional provision is upheld, and applied according to its true spirit and intention; and will prosecute the issue to the fullest extent of the law until this issue of urgent public importance is settled by the Courts once and for all.