Some comments on the Armstrong Tribunal Award
By Joseph A. Tyndall
In the intense controversy that has enveloped the Armstrong tribunal award, an important consideration that appears to have been overlooked is the fact that the tribunal is an adjudicatory body created by law, pursuant to section 4 of the Labour Act, and, as such, it is a part of the adjudicatory system of the state. This fact has profound implications for the role and conduct of the members of the tribunal, as well as for the Minister's decision to inquire into the tribunal's proceedings. As a statutory body, the Armstrong tribunal should be distinguished from non-statutory arrangements, such as tribunals appointed to settle disputes arising under commercial agreements. The powers, functions and procedures of statutory tribunals are governed by law. In the case of the Armstrong tribunal, the applicable laws are the Labour Act (the Act) and the Labour (Arbitration Procedure) Regulations (the Regulations). Against the background of these laws, I offer some observations on the controversy.
The wing members of the tribunal are not
representatives of the party that nominated them It is quite wrong to characterise any of the two wing members of the tribunal as the representative of the party that has nominated him. More importantly, it would be highly improper and, indeed, in conflict with the law, for any such member to assume this role in the arbitration proceedings. The members of the tribunal, the arbitrators, are appointed as adjudicatory functionaries to settle the difference separating the parties. The Act contemplates that the members will act independently of the nominating parties and will not otherwise yield to improper outside influences in arriving at their decisions.
The concern about procedural impropriety
Procedural impropriety, a concern of the Minister of Labour, relates to the proceedings before the tribunal as it affects the parties to the dispute. In a court of law, the conduct of the proceedings are governed by rules stablished by law. The court cannot deviate from these rules. The rules of the court do not extend to what takes place behind closed doors, when a panel of judges meet to consider their verdict. Likewise, the rules of procedure governing the tribunal's proceedings do not refer to the deliberations among its members. It follows from the above that only a party in interest can challenge the propriety of the tribunal's procedures in a court of law. In making its challenge, the party will have to rely on the evidence in the record. Any letters or other documents written by a dissenting member that are not part of the record will be inadmissible as evidence in support of the challenge. And where the dissenting report suggests procedural impropriety, it will be the word of the dissenter against the record of the proceedings and against the word of the Chairman and the other wing member, assuming that they are called upon to give evidence in court. It should be repeated that the court will be concerned with the procedural offences against the parties concerned and not with the internal squabbles of the tribunal, however unfortunate this might be. The dissatisfied member has the option of writing a dissenting opinion and not the right to start a civil war.
The Significance of the Dissenting Report Adherence to regulation 6(3) should obviate the kind of trench warfare that has followed the announcement of the tribunal's award. The tribunal is an adjudicatory body and its members are expected to act with the balance and decorum that judges display when they fail to reach a unanimous decision, as they so often do. If judges were free to pursue their dissent in the media, the justice system of the country would be severely degraded.
As a substantive act, the award of the
Tribunal is a final settlement The award of the tribunal is final. This is a matter of the law. Under the Labour Act (section 4), the minister has three options to settle a labour dispute. He can "inquire into the causes and circumstances of the difference". He can take such steps as to him may seem expedient for the purpose of promoting a settlement of the difference. He may, "with the consent of both parties refer the matter for settlement" by arbitration. In the first two options, the objective is to facilitate or promote a settlement. In the third case, the mandate of the tribunal is to prescribe a settlement. In the instant case, Government has no way out of its obligation to pay. With admirable statesmanship, President Jagdeo has accepted this obligation. In initiating the Akeel enquiry, Minister Jeffrey is reported to have said that if any procedural irregularities were revealed in the conduct of the tribunal's proceedings, or if the tribunal had exceeded its authority, the government would exercise its right to appeal the award. I am assuming that this intention has been overtaken by the President's decision. From what has been said above, Government will find it extremely difficult to prove procedural impropriety in the hearing of the case. I am not in a position to comment on the ultra vires issue, since I have not seen the report of the tribunal. But it goes without question that any aspect of the award that is not covered by the matters referred to the tribunal, whether directly or by implication, will be vulnerable to an appeal.
The Inquiry into the Tribunal's Proceeding The internet report of some of Mr Akeel's findings and conclusions, if accurate, gives some indication of the kind of flawed reasoning and ill-informed opinion that could lead to a destabilisation of an industrial relations system that has served the country well, despite the antiquity of its origins. For instance Mr Akeel is reported to have said that government should seek a legal interpretation whether it is procedurally correct "for a tribunal chairman to team up with one side, excluding the other in making an award". This makes no sense whatever. Mr Akeel uses the highly emotive expression "team up" as if to connote a conspiratorial intent. But in a three member tribunal, there is always the possibility of the Chairman deciding in agreement with one or the other of the two wing members. It happens all the time in a court of law. It is a universally accepted contingency. The Regulations anticipate this eventuality and, as in other countries, deal with the situation through the mechanism of a dissenting report. Mr Akeel has also been reported as suggesting that "that there would be a reluctance to appoint odd- numbered tribunal if the Chairman is allowed to side with one or the other side', as has been done in the case under investigation. His obvious solution is to appoint even-numbered tribunals. This, of course, rules out the possibility of a one-man tribunal, an option that is available all over the world. Only Mr Akeel sees no merit in the arrangement. Any even numbered tribunal will have to consist of the same number of nominees from each side, if it is to be acceptable to the parties concerned. But this would open the possibility of deadlocks which could occur even where all the tribunal members are appointed by the Minister, without reference to the parties.
The role of the Minister of Labour Pursuant to section 4 (3) of the Act and regulation 6 of the Regulations, the report of the proceedings and the terms of the award should be forwarded to him "as soon as possible after the conclusion of the enquiry'. As soon as possible after the report has been submitted, the Minister shall cause the award to be published in such manner as he may think fit. If any question arises as to the interpretation of any award, the Minister, (or any party to the award) may apply to the Commission for a decision on such a question (Regulation 8). Clearly, the law does not confer on the Minister the authority to order an investigation into the proceedings of the tribunal whether or not Government is involved in the case as an employer. Neither can this authority be inferred from the law, as it now stands. In his statutory responsibilities, the Minister functions as the custodian of the arbitration system, a fiduciary role. To assume, in addition, the role of an interested party seems to be inconsistent with this custodial function. In practical terms what, for example, would be the reaction of GAWU, if Guysuco is entrusted with the responsibility of appointing the members of a tribunal to arbitrate a dispute with its workers? The fact is that when the arbitration system was adopted (in 1942), civil service strikes were out of the question, as was the case in the United Kingdom, which provided the legislative model for its colony. There was therefore no possibility of the minister assuming conflicting roles. Since then, the United Kingdom has radically modified its system of statutory tribunals, following the report of the Frank's Committee on Administrative Tribunals and Enquiries. In 1958, the U.K. enacted the Tribunals and Enquiries Act and followed this with the Tribunals and Enquiries Act 1992. One of the innovations of the Acts was the establishment of a Council on Tribunals, an independent body, entrusted, among other things, with the responsibility of advising the Minister with respect to appointments to tribunals, rules of procedure of the tribunals and to report on any matter referred to it by the government. The Council of Tribunals reflects an attempt to further limit the scope for ministerial intervention in the workings of statutory tribunals. The Guyana arbitration system has remained unchanged since 1950 when the current regulations were introduced. To extricate the Minister from the obvious conflict of having to act both as a custodian of the arbitration system and as a party in interest with respect to the outcome of the proceedings, the ideal situation would be for the role of Government as employer to be assumed by another Minister, either the Minister of Finance or the Public Service Minister, both of whom have responsibility for the public service, one for the financing of employment costs and the other for the management of the service. In fact, as far as I have been able to ascertain, the Ministry of Labour did not participate in the arbitration proceedings, these responsibilities being appropriately left to the two other Ministries. It is hardly likely that the Minister of Finance or the Public Service Minister would have initiated an investigation into the way the tribunal conducted its business. It seems that the Minister of Labour has acted out of an excess of zeal as a party in interest (his position as an employer) and from a misreading of his authority under the Labour Act? Conclusion In considering this matter, I do not ascribe any sinister or perverted motive to any one concerned; not to the members of the tribunal, who from what I have been able to read, all gave me the impression that they were pursuing a truly difficult task to fulfill their mandate as they each perceived it; not to Mr Akeel who clearly was trying his best to comply with his mandate; and certainly not the Minister who finds himself in conflicting roles and clearly feels he is doing what he sees to be in the best long term interest of Guyana and who must rely on the advice at his disposal. But good intention is not quite enough. I believe very strongly that what has happened reflects a bit of inexperience.. The Minister of Labour is rightly concerned to avoid the setting of precedents that can have a negative impact on the system of labour arbitration in the future. My analysis suggests that the real danger lies in the way in which the dissent was handled, in the subjection of the tribunal, an adjudicatory body, to an investigation of its proceedings by a government official and in ill-informed recommendations to reform the system. Hopefully these recommendations will be rejected by the Cabinet. This is not to say that the arbitration system does not cry out for a modernising make-over.
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