A High Court Judge has ruled as “entirely hopeless” a claim by the Teachers’ Union that an article of the Collective Bargaining Agreement it signed with the Government in 2005 does not contravene Section 26(1)(d) of the Constitution of St. Vincent and the Grenadines (SVG), as the Government later claimed.
“When I consider the competing arguments as well as my understanding of the governing legal principles, I am driven to the conclusion that the claimants cannot succeed. It may we be that the present constitutional provision are too restrictive and some of provisions along the lines of that set out in Article 16 of the Agreement is desirable,” Justice Brian Cottle wrote in a ruling handed down last Wednesday, Feb. 10.
“That, however, [is] a matter for constitutional reform and not for this court. The claim is accordingly struck out as entirely hopeless,” the judge ruled.
He made no order as to costs “as is usual in matters of this nature”.
The case came about after the Ralph Gonsalves Government, citing lack of vacancies, did not rehire three teachers who resigned their positions to contest the December 2010 general election on behalf of the main opposition New Democratic Party (NDP) and lost.
The teachers, Elvis Daniel, Addison Thomas, and Kenroy Johnson, each had been teachers for more than three decades.
They had thought that the Collective Agreement that the Gonsalves Government had signed with the Teachers’ Union on Nov. 3, 2005, allowed them leave to contest national elections and to be rehired if they lost.
Article 16 of the Agreement says that a member of the Union of at least three years standing shall, on application, be granted leave-of-absence to contest national/general/local elections.
The leave shall be no-pay leave for not more than six months.
In the event that the member is unsuccessful in the elections, they shall return to their original post or one of equivalent status, all benefits intact.
The Article further said that the resumption of duty must be at the beginning of a school term.
The Agreement was signed on behalf of the Government of SVG by then Permanent Secretary in the Ministry of Education, Laura Browne and then Minister of Education, Clayton Burgin, and was witnessed by Gonsalves.
Then union leader, Otto Sam and General Secretary, Joy Matthews signed on behalf of the Teachers’ Union.
The Gonsalves Government had singled out the Article 16 for praise as a victory for participatory democracy in SVG, saying it was embracing and allows for more qualified persons to offer themselves as parliamentary representatives.
After the announcement in November 2010 of the Dec. 13, 2010 general elections, the three teachers, relying on Article 16, applied to the Public Service Commission (PSC) for election leave.
The application was neither granted nor refused, but the PSC adverted to Section 26(1)(d) of the Constitution of SVG and invited a response.
Section 26(1)(d) of the Constitution speaks to disqualifications for representatives and senators, and says:
“No person shall be qualified to be elected or appointed as a Representative or Senator (hereinafter in this section referred to as a member) if he … subject to such exceptions and limitations as may be prescribed by Parliament, holds or is acting in any public office or is a paid member of any defence force of Saint Vincent”.
The PSC’s letter to the teachers was dated Nov. 23. 2010 — three days before Nomination Day.
The three teachers resigned their positions and contested the elections, but lost.
They re-applied to the PSC for reinstatement as teachers but were told that no vacancies existed at the time.
The three teachers, plus Oswald Robinson, president of the Teachers’ Union, brought the claim seeking a declaration that Article 16 of the Collective Agreement between the Government and the Teachers’ Union does not offend Section 26(1)(d) of the Constitution of SVG.
The claimants also sought a declaration by the court that the Government acted in bad faith in refusing to grant the leave requested by the teachers to contest the elections, thereby forcing them to resign their teaching post.
The claimants also asked the court to declare that their participation in the Dec. 13, 2010 general elections has given rise to their legitimate explanation that the defendant could in good faith honour the terms of the Collective Agreement and restore them to their teaching post or to some other post of equivalent status in accordance with Article 16 of the Collective Agreement.
Among other things, they claimants were seeking an order directing the Government to restore the teachers to their original teaching posts or posts of equivalent status.
They also wanted damages for losses suffered as a consequence of the Government’s refusal to honour the Collective Agreement, damages for breach of the teachers’ constitutional rights, such further or other relived that the court sees as just and costs.
But lawyer for the Government, Richard Williams, submitted that the contract embodied in the Collective Agreement is void as offensive to Section 26(1) (d) of the Constitution.
The defence argued that the government purported to give to claimants benefits and rights which only the Parliament, by a two-thirds majority, was competent to confer.
He further submitted that the teachers, having resigned, it was beyond the Government to order the PSC to reinstate them as only the PSC has the power to hire and such power is to be exercised independently and not upon the direction of the Government.
Counsel for the teachers, Ruggles Fergusson and Shirlan Barnwell, argued that for a more generous interpretation of constitutional provisions, the court out to eschew “the austerity of tabulated legalism”, and strive to grant to individuals the full measure of the fundamental rights and freedoms, including freedom of association, set out in Chapter 1 of the Constitution.
The judge, in his analysis, said that the purpose of Article 16 in the Collective Agreement is to buttress the rights of association that the Constitution protects.
“The import of section 26 of the Constitution is to prohibit those who continue to be public officers from offering themselves as candidates for political office while they remain public officers.
“The article seeks to permit these public officers to vie for office as parliamentary representatives while maintaining all their benefits should they fail to secure the contested position. The rationale is simple and laudable.
“In our tiny population, the pool of persons qualified to run for office as parliamentary representatives is small,” the judge concluded.
“It is diminished further if persons who are willing to serve can only do so on pain of loss of benefits to pension and rights accrued over decades if their bids for political office fails. To the victors go the spoils; but ought to the losers to be doubly penalised for his unsuccessful essay by depriving him of his expected pension rights?” the judge reasons.
“Despite my earnest desire to say otherwise, it appears that the answer must be yes. The clear reading of section 26(1) (d) means that a person is simply not qualified to be a candidate while he continued to hold public office as a teacher. The laudable aims of the article cannot trump the clear constitutional provision,” the judge said.
He further rejected the argument of counsel for the claimants that the defendants were wrongfully and unlawfully forced to resign from their posts as no other option was available which would have allowed them to contest the December 2010 elections.
“In the circumstances, the claimants were left with a stark choice. They could resign or they could remain as teachers. If they chose the latter course, they could not offer themselves as candidates. This cannot be gainsaid,” the judge said.
The PSC whether under the orders of a political directive or not; apparently set out to manifestly shaft the NDP. The PSC in a Machiavellian or misguided way, refused to grant or deny the application for leave. Instead, they strangely invoked the Constitution as a way to explain their inaction. But I suspect, this was all an obfuscation to their real intent of stalling the process of granting leave. And here is the thing, the provision within the Constitution that the PSC outlined, is not relevant in the present circumstances. There was no basis for seeking constitutional clarity on the issue, as the issue was as clear as day- the PSC WERE OBLIGATED TO GRANT LEAVE TO THE TEACHERS.
The Constitution ONLY BECOMES RELEVANT IN THE ABSENCE OF A COLLECTIVE BARGAINING AGREEMENT. What the PSC was effectively saying, WE DO NOT RECOGNIZED YOUR COLLECTIVE BARGAINING AGREEMENT; WHICH IS INTERESTING, IN THAT SVG IS SIGNATORY TO THE ILO CONVENTIONS (NO.98)
THE SMART MOVE BY THE TEACHERS WERE TO FILE A PETITION IN THE COURTS TO FORCE THE PSC TO GRANT THEM LEAVE. But it appears, there were insufficient time to get redress in the courts before the nomination date for the elections. As noted in the above article, the PSC issued their response with three days to nomination day…a most calculated move if you ask me. It would be interesting to know, when exactly did the teachers wrote to the PSC for leave.
By resigning their posts, the teachers had no LEGAL GROUND TO STAND ON. The Government was under no legal obligation to rehire them and their only hope to be reinstated was rested on the good graces of the Government. Not happening.
Here is a real masterstroke..now that the case is thrown out, offer the teachers back their jobs. How will the NDP react to this? And will the teachers accept this “charity”, given the political climate we are in?
I heard some high government official say on the radio that they only applied for leave ten days prior, but I really don’t give much credence to what these government officials say anyway.
The supremacy of the Constitution must not be infringed by ill conceived contract law.
I believe you are totally correct by the letter of the law. But for argument sake, it would be interesting to see how this case stand up in courts if the teachers didn’t resign and insist that they are entitled to leave under the agreement…. Most likely the same outcome but then again, a different judge may see things differently.
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