CLYDE WEATHERHEAD
IN HIS budget speech last week, the Minister of Finance once again dragged the negotiations in the public service from the negotiating table and into the arena of politics in the Parliament.
After basically repeating the CPO's position to the public service associations and unions that four per cent was the Government's final position, Colm Imbert said:
"On the other hand, if trade unions choose to send these negotiations to the Industrial Court, we would ask that these matters be expedited, so that we can act swiftly in accordance with the court’s decision."
First of all, the only party in these negotiations threatening to "send these negotiations” to a third party is the CPO – and the Finance Minister who instructs him.
Secondly, public service negotiations are not sent to the Industrial Court.
The dispute procedure for public service negotiations is spelled out in the Civil Service Act and not in the IRA.
The Industrial Court is created by the Industrial Relations Act, Ch 88:01. The Special Tribunal is created by the Civil Service Act, Ch 23:01.
If there is a breakdown in negotiations between the CPO and the associations/unions, the dispute is reported to the same Minister of Finance who instructs the CPO on Government's position (section 17 Ch 23:01).
After 21 days in which the minister is not required to do anything, “the minister shall refer the dispute for settlement to the Special Tribunal established under section 21 within 21 days from the date on which the dispute was reported to him” (section 20 Ch 23:01).
So the first person to “send these negotiations” to the Special Tribunal is the Finance Minister himself. If he does not, then the association may refer it.
So the Finance Minister is the principal who directs the agent, the CPO, in the negotiations and then is the one to whom a dispute is referred first. Two bites at the cherry.
Thirdly, public service negotiation disputes are not referred to the Industrial Court; they are referred to the Special Tribunal.
The Finance Minister knows that. The CPO knows that and the Public Service Association leaders know that.
So this confusion of the Special Tribunal with the Industrial Court by the minister has to be deliberate.
Special Tribunal not
the Industrial Court
This is not the first time this deliberate confusion is being raised in the context of public service negotiations.
In 1993, similar confusion was being created and in a letter of October 23, 1993, to the newspapers, titled “Our dilemma – legal action and the pay arrears issue,” I explained the difference and quoted the IRA, the Civil Service Act and High Court judgment in ten per cent pay-cut case by Justice A Warner extensively.
I again quote the learned judge in case anyone doubts what I am saying: "An award of the Special Tribunal is not an award of the Industrial Court."
The Minister of Finance in his letter to Mr Camdessus of the International Monetary Fund, in which reference was made to the award of the Special Tribunal (there erroneously called the Industrial Court), "is mistaken on the nature and relation between the two."
“While section 22 of the Civil Service Act provides that an award made by the Special Tribunal under section 21 shall be binding on the parties to the dispute, the act is silent as to the enforcement of such an award.
"The absence from the Civil Service Act of provisions for enforcement of awards is in contrast with the presence in the Industrial Relations Act of provisions for enforcement of the orders or awards of the Industrial Court."
So, the learned High Court judge, since 1989, clarified the difference between the Special Tribunal and the Industrial Court.
So, since the 1989 case was about the ten per cent pay cut implemented by the government against public officers, the Finance Minister should have no confusion about the difference between the Special Tribunal and the Industrial Court.
The Finance Minister should also know that Special Tribunal awards, very unlike Industrial Court awards, have no enforcement process.
So when the Finance Minister talks about “sending these negotiations” to the "Industrial Court" he well knows it is the Special Tribunal he is referring to. The CPO, who is the Government’s and the minister's agent, also knows that.
The minister knows that Special Tribunal awards, particularly if they are not agreed by the Government, cannot be enforced or easily enforced against the Government.
The Finance Minister also knows that, as in the case that led to HCA No 225 of 1989 – the Government can also use its parliamentary majority to override a Special Tribunal award (like it did with the ten per cent pay cut).
When the CPO and now the Finance Minister and the Prime Minister say this is our final offer and if you don't agree, you know where we can send this, the public service associations/union leaders very well know from the experience of the 1980s and 1990s that going to the Special Tribunal is hell for public officers
They also know that the minimum period that the Special Tribunal can make an award for is five years.
When the CPO threatened to break down the negotiations and refer it to the Special Tribunal through his boss, the Finance Minister, it was shocking to see some public service association leaders shouting “bring it on” with glee.
Section 22 of Ch 23:01 says, "22. (1) An award made by the Special Tribunal under section 21 shall be binding on the parties to the dispute and on all civil servants to whom the award relates and shall continue to be binding for a period to be specified in the award of not less than five years from the date upon which the award takes effect."
There is no confusion.
The IRA denies public officers their right to take industrial action by defining them as not being workers. The dispute procedure is stacked against their associations/unions.
As I said in my letter of October 1993, "As far as public servants, their rights and the law go, it was put so eloquently by a calypsonian some time ago when he said, ‘The law is an a--.’"