China Aluminium Network
Bauxite company(BCGI) moves to court to stop arbitration
Edited by : AL CIRCLE
6 min read
The Bauxite Company of Guyana Incorporated (BCGI)-majority owned by Russian Aluminium (RUSAL)- has moved to the High Court and secured a temporary stay of arbitration proceedings ordered by government into a dispute between the company and the Guyana Bauxite and General Workers Union (GBGWU).
When arbitrator, Francis Carryl held his first round of talks on March 13, the company did not send any representative and one of its lawyers had said that he would have been available any time after March 30. The next meeting was fixed for April 3 at 4 PM, after union representatives asked that the company provide key information.
Hearing into the Order of Certoriari comes up on April 4 in the High Court.
After welcoming the February 29 move by government to take the matter to arbitration, GBGWU President Lincoln Lewis condemned RUSAL-BCGI’s move. “I’m not disappointed in the company. That’s the way they behave. They don’t have respect for laws in countries that they may from time to time make investment.”
“They believe that developing countries- when they get into them- they can do what they like, how they like and when they like,” Lewis told Demerara Waves Online News (www.demwaves.com )
Labour Minister, Nankishore Gopaul, noting that the matter is sub judice, would only say that “I’m a bit disappointed that the issues could not have been resolved in an amicable way”. Gopaul plans to study the court documents and also put them in the hands of Attorney General, Anil Nandlall.
Lawyers for BCGI, Edward Luckhoo and Andrew Pollard say the Labour Minister acted illegally in ordering arbitration and appointing an arbitrator to address the three-year old grievances including the sacking of several workers.
“The terms of reference as set out in the letter of the minister dated 6th March 2012 do not require the arbitrator to enquire into any differences arising between the Bauxite Company of Guyana Inc. and the Guyana Bauxite and General Workers Union, and therefore the Bauxite Company of Guyana Inc. cannot be in law a proper party to any arbitration proceedings as there are no terms of references relating to any differences between themselves and thee Guyana Bauxite and General Workers Union,” the company says.
BCGI also contends in its Notice of Motion that the Labour Minister did not consider that there was a pending request for a poll by company employees to determine whether the GBGWU was the recognized bargaining agent under the Trade Union Recognition Act. “The decision to invoke arbitration…without first holding and concluding the poll as required rendered the exercise of the minister and his decision unfair, unreasonable and unlawful and in breach of the legitimate expectations of the applicant.”
The company wants the Labour Minister to show why his decision to send the dispute to arbitration and appoint an arbitrator should not be quashed on grounds that they were “unlawful, made without jurisdiction” and were not in accordance with the labour laws.
The company, through its lawyers, also deem the Labour Minister’s decision unreasonable and irrational and were made arbitrarily and/or capriciously and unfair. The company also charges that Gopaul’s decisions were bad in law, contained errors and were subject to impropriety and breach of the rules of natural justice and were null and void and of no legal effect.
Specifically, the company questions the Labour Minister’s decision to send the dispute to arbitration, saying he “had no reasonable basis to be satisfied that the continuance of the differences is likely to be injurious to the national interest.” The lawyers point to the length of time that has expired since the differences arose and the nature of the differences.
BCGI’s lawyers say Gopaul has not given sufficient reasons to justify his determination that the differences are likely to be gravely injurious to the national interest. Lawyers Luckhoo and Pollard noted that the differences arose since 2009 and relate to “industrial matters between a limited group of employees and their employer .” They said the minister did not show how those differences have any wider consequences than those of a normal employer and employee relationship.
“The minister must therefore in exercising his discretion and coming to his decisions, have taken irrelevant matters into consideration,” they said in the court document.
BCGI adds that the Labour Minister erred in his terms of reference because the arbitrator can only inquire “into the causes and circumstances of the difference” rather than into whether the GBGWU or the company “has indulged in prudent industrial/labour relations practices and whether they have complied with all known labour and industrial relations laws and conventions.
BCGI’s Human Resources Officer, Elena Gorshkova, noted that 67 workers on 22nd May 2009 had refused to operate dump trucks because the air conditioning units were allegedly not working. She said that strike had violated the Collective Labour Agreement (CLA) and the workers were suspended for unlawfully refusing to perform their duties. “The unlawful strike was unlawfully sanctioned by GBGWU,” she said.
With regards to a wages dispute from 1st January 2009 to 31st December 2009, she said settlement was reached on 13th November 2009 but by 20th November 2009 GBGWU reneged on the deal that included retrenchment. The union, according to Gorshkova, “wrongfully and unlawfully sanctioned a strike” at Aroaima on 22nd November,2009 in violation of the CLA. The company, she said, fired the 57 employees for disruptive activity that caused severe loss and damage.
The Human Resources Manager said the dismissed employees could have up to now not used their right to challenge their dismissal under the Termination and Severance Pay Act.
And she recalled that 8th November 2010 four employees instigated unlawful industrial action at Aroaima by encouraging other workers not to work because the contracted caterer was preparing meals under insanitary conditions. Gorshokva said although remedial action was taken the same day, the five workers continued to instigate industrial unrest which caused “grave financial loss” to BCGI and so “they were dismissed for activities inimical to their employer’s interests.”
The latest incident, she recalled was on 8th May 2011 when several employees had accused BCGI General Manager, Ruslan Volokhov of threatening them with physical harm. Probes were carried out, she said, by senior officials who flew in from Russia and the Ministry of Labour that all cleared Volokhov of the allegations.
“None of the differences set out above either individually or collectively are capable or could be considered to properly or legitimately found a basis on which thee minister could reasonably or rationally determine that the continuance of these differences were likely to be gravely injurious to the national interest,” she said.
When arbitrator, Francis Carryl held his first round of talks on March 13, the company did not send any representative and one of its lawyers had said that he would have been available any time after March 30. The next meeting was fixed for April 3 at 4 PM, after union representatives asked that the company provide key information.
Hearing into the Order of Certoriari comes up on April 4 in the High Court.
After welcoming the February 29 move by government to take the matter to arbitration, GBGWU President Lincoln Lewis condemned RUSAL-BCGI’s move. “I’m not disappointed in the company. That’s the way they behave. They don’t have respect for laws in countries that they may from time to time make investment.”
“They believe that developing countries- when they get into them- they can do what they like, how they like and when they like,” Lewis told Demerara Waves Online News (www.demwaves.com )
Labour Minister, Nankishore Gopaul, noting that the matter is sub judice, would only say that “I’m a bit disappointed that the issues could not have been resolved in an amicable way”. Gopaul plans to study the court documents and also put them in the hands of Attorney General, Anil Nandlall.
Lawyers for BCGI, Edward Luckhoo and Andrew Pollard say the Labour Minister acted illegally in ordering arbitration and appointing an arbitrator to address the three-year old grievances including the sacking of several workers.
“The terms of reference as set out in the letter of the minister dated 6th March 2012 do not require the arbitrator to enquire into any differences arising between the Bauxite Company of Guyana Inc. and the Guyana Bauxite and General Workers Union, and therefore the Bauxite Company of Guyana Inc. cannot be in law a proper party to any arbitration proceedings as there are no terms of references relating to any differences between themselves and thee Guyana Bauxite and General Workers Union,” the company says.
BCGI also contends in its Notice of Motion that the Labour Minister did not consider that there was a pending request for a poll by company employees to determine whether the GBGWU was the recognized bargaining agent under the Trade Union Recognition Act. “The decision to invoke arbitration…without first holding and concluding the poll as required rendered the exercise of the minister and his decision unfair, unreasonable and unlawful and in breach of the legitimate expectations of the applicant.”
The company wants the Labour Minister to show why his decision to send the dispute to arbitration and appoint an arbitrator should not be quashed on grounds that they were “unlawful, made without jurisdiction” and were not in accordance with the labour laws.
The company, through its lawyers, also deem the Labour Minister’s decision unreasonable and irrational and were made arbitrarily and/or capriciously and unfair. The company also charges that Gopaul’s decisions were bad in law, contained errors and were subject to impropriety and breach of the rules of natural justice and were null and void and of no legal effect.
Specifically, the company questions the Labour Minister’s decision to send the dispute to arbitration, saying he “had no reasonable basis to be satisfied that the continuance of the differences is likely to be injurious to the national interest.” The lawyers point to the length of time that has expired since the differences arose and the nature of the differences.
BCGI’s lawyers say Gopaul has not given sufficient reasons to justify his determination that the differences are likely to be gravely injurious to the national interest. Lawyers Luckhoo and Pollard noted that the differences arose since 2009 and relate to “industrial matters between a limited group of employees and their employer .” They said the minister did not show how those differences have any wider consequences than those of a normal employer and employee relationship.
“The minister must therefore in exercising his discretion and coming to his decisions, have taken irrelevant matters into consideration,” they said in the court document.
BCGI adds that the Labour Minister erred in his terms of reference because the arbitrator can only inquire “into the causes and circumstances of the difference” rather than into whether the GBGWU or the company “has indulged in prudent industrial/labour relations practices and whether they have complied with all known labour and industrial relations laws and conventions.
BCGI’s Human Resources Officer, Elena Gorshkova, noted that 67 workers on 22nd May 2009 had refused to operate dump trucks because the air conditioning units were allegedly not working. She said that strike had violated the Collective Labour Agreement (CLA) and the workers were suspended for unlawfully refusing to perform their duties. “The unlawful strike was unlawfully sanctioned by GBGWU,” she said.
With regards to a wages dispute from 1st January 2009 to 31st December 2009, she said settlement was reached on 13th November 2009 but by 20th November 2009 GBGWU reneged on the deal that included retrenchment. The union, according to Gorshkova, “wrongfully and unlawfully sanctioned a strike” at Aroaima on 22nd November,2009 in violation of the CLA. The company, she said, fired the 57 employees for disruptive activity that caused severe loss and damage.
The Human Resources Manager said the dismissed employees could have up to now not used their right to challenge their dismissal under the Termination and Severance Pay Act.
And she recalled that 8th November 2010 four employees instigated unlawful industrial action at Aroaima by encouraging other workers not to work because the contracted caterer was preparing meals under insanitary conditions. Gorshokva said although remedial action was taken the same day, the five workers continued to instigate industrial unrest which caused “grave financial loss” to BCGI and so “they were dismissed for activities inimical to their employer’s interests.”
The latest incident, she recalled was on 8th May 2011 when several employees had accused BCGI General Manager, Ruslan Volokhov of threatening them with physical harm. Probes were carried out, she said, by senior officials who flew in from Russia and the Ministry of Labour that all cleared Volokhov of the allegations.
“None of the differences set out above either individually or collectively are capable or could be considered to properly or legitimately found a basis on which thee minister could reasonably or rationally determine that the continuance of these differences were likely to be gravely injurious to the national interest,” she said.
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