Rapport définitif - Rapport No. 270, Mars 1990

1. 25. The World Confederation of Organisations of the Teaching Profession (WCOTP), on behalf of its affiliated union, the St. Lucia Teachers' Union (SLTU), presented allegations of violations of trade union rights against the Government of St. Lucia in a letter dated 15 April 1988. The Government supplied its observations on the case in a communication dated 31 October 1989.
2. 26. St. Lucia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 27. In its letter of 15 April 1988, the WCOTP alleges that the SLTU is continuing to experience problems with the Government over a section of the Teaching Service Regulations, No. 41 of 1977. One of the Regulations is particularly offensive and has been challenged ever since the Regulations were first introduced. The Regulation in question, No. 23.3, reads: "An unmarried teacher who becomes pregnant shall be dismissed upon becoming pregnant a second time if still unmarried." A copy is supplied by the complainant.
2. 28. According to the complainant, despite the fact that the collective agreement for the period 1983-86 between the employer and the SLTU contained a clause that sought to end the practice of dismissal of unmarried teachers on the grounds of pregnancy, in 1985 two union members were fired. The present Attorney-General, Mr. Parry Husbands, had headed the Government's negotiating team which was fully empowered to negotiate on behalf of the Government. Article 14.1 of the agreement states: "The employer agrees that three months' maternity leave with full pay shall be granted to all employees on the permanent establishment regardless of marital status." (Emphasis added.)
3. 29. Against this background, the two female teachers dismissed in 1985 and the SLTU filed suit against the Government in the High Court in 1986 for wrongful dismissal. The judge ruled in favour of the teachers and the SLTU, and ordered the Government to pay a total of nearly $50,000 to the teachers or to reinstate them. The Government appealed the verdict. In October 1987, the Appeal Court heard the case and handed down judgement in favour of the Government in early 1988.
4. 30. The SLTU's position is that the Regulation is fundamentally discriminatory and inherently unjust; moreover, for the Government to have negotiated a collective agreement and to subsequently disregard its provisions is unprincipled. The complainant calls for amendment of the Teaching Service Commission Regulations.

B. The Government's reply

1. 31. In its communication of 31 October 1989, the Government first claims that the complaint has not been properly laid. It states that, in general, a complainant should not be allowed to go on a "fishing expedition". It is only when the criterion of specific reference to a relevant Convention or local law is observed that the issues can be adequately identified. The Government asks what are the issues in this case: is the issue breach of contract or is it an infringement of union rights? However, despite this difficulty in identifying the main problem, the Government attempts to answer the questions raised in the complaint in the context in which they appear to be.
2. 32. In answer to the first question, the Government maintains that it is incorrect to state that the Attorney-General negotiated the collective agreement on behalf of the Government with the St. Lucia Teachers' Union (SLTU). At that time (1984), he was not a member of the Government, but a barrister in private practice heading a governmental negotiating team with no delegated authority from the Cabinet of ministers. In any case, this would be quite unconstitutional. The Cabinet cannot, except by an express instrument, delegate its powers and responsibility to a non-elective and unofficial body such as a government negotiating team. The agreement consisted of mere proposals for the approval of the Cabinet. Furthermore, states the Government, the said agreement with the SLTU contained financial provisions which could only be approved by Parliament, as the sole body which could make any commitments on the Consolidated Fund.
3. 33. The Government states that the matter of discipline under the St. Lucia Constitution is the responsibility of the Teaching Service Commission, an independent body which is not in any way under the control or direction of the Government. It is that body which, in the course of exercising its functions under the Constitution, determined the dismissal of the teachers in this case. The agreement with the SLTU specifically recognised the authority of the Commission in matters of discipline. The Government stresses that the matter of reinstatement of teachers dismissed in such circumstances was never raised during negotiations with the SLTU.
4. 34. According to the Government, the avenue for further appeal was open to the teachers in question, who did not avail themselves of it. This issue was determined by competent local courts and should now be regarded as final and settled.
5. 35. Lastly, the Government adds that the question of moral standards for those engaged in the teaching profession is a matter for internal law. It should be noted that most of the schools in St. Lucia are managed by Christian denominations which insist on moral standards for teachers who teach in their schools. The ideal of a married family life must be upheld and teachers are expected to set an example in the community. This particular regulation has been observed from time immemorial and is now a rule of conduct for teachers in this State.

C. The Committee's conclusions

1. 36. Before entering into the substance of this case, the Committee considers it important to respond to certain comments in the Government's reply concerning the procedural and receivability aspects of complaints presented against member States of the ILO. These comments fall under two headings: (1) that the complaint lacks specificity in that it does not rely on specific provisions of a relevant Convention or local law; and (2) that the aspect of the complaint involving moral standards for the teaching profession is a matter for internal law.
2. 37. One of the Committee's first stated receivability rules concerned the form of complaints. (See First Report, para. 30.) It explained already in 1952 that its function was to evaluate specific allegations, and that it had to reject as unfounded allegations which were not sufficiently substantiated to warrant further inquiry. It stressed that complainant organisations should formulate their allegations in detail and substantiate them with satisfactory evidence. In the present case the WCOTP's letter of complaint is, in the opinion of the Committee, sufficiently detailed to warrant examination. Given that ratification of the various Conventions on freedom of association is not a prerequisite for this special Governing Body procedure concerning alleged violations of trade union rights, it is immaterial that the complainant does not list the particular Articles of specific Conventions on which it bases its complaint.
3. 38. As regards the Government's claim that an aspect of the complaint "is a matter for internal law", the Committee agrees that it is not its responsibility to comment on the moral standards required for teachers. However, it has competence as regards the principles of freedom of association and also conditions of labour to the extent that it should ensure that these are set in accordance with the principles of freedom of association. In this connection the Committee observes that the complainant's allegations do not centre on the moral standards required for workers engaged in teaching; nowhere has the complainant asked for an opinion on pregnancy outside wedlock. What the complainant does criticise is 1977 legislation covering the working conditions of teachers (in particular Regulation No. 23.3) and the use of this legislation to dismiss two union members in 1985 when a collective agreement was in force, one clause of which (clause 14) specifically aimed at vitiating the particular teaching service regulation in question.
4. 39. Turning to the substance of the complaint, the Committee notes that there is no allegation that the teachers were dismissed because they were trade unionists. The issue is non-respect of an agreement freely negotiated with the SLTU on 27 November 1984 for the period 1983-86. The practical outcome of this non-respect was the dismissal of two teachers. The Government's main argument, supported by a local court decision, is that the agreement did not change the Teaching Service Regulations under which the dismissals were justified.
5. 40. The Committee observes that the two dismissed teachers, Petra Girard and Florentina Pierre, won their action for wrongful dismissal in the High Court of Justice, but that the decision ordering reinstatement or compensation was overturned by the Court of Appeal on 25 January 1988. The Government points out that they did not avail themselves of a further avenue of appeal, presumably a reference of the matter to the Privy Council.
6. 41. It appears from the text of the Appeal Court judgement that the Court did not accept the argument put by Counsel for Ms. Pierre and Ms. Girard and the SLTU, that the collective agreement rendered Regulation No. 23.3 inoperative. On the contrary, the Court held that although the agreement was no doubt intended to lead to a subsequent amendment of the Regulation, the agreement itself was never approved and therefore "remained nothing more than an agreement having no statutory basis, and could not therefore override, take precedence over or alter in any way the clear provisions" of the Regulations.
7. 42. The Committee certainly respects the judgement of the highest court of St. Lucia, but points out that this is a different forum. The Committee must follow its mandate, outlined above, in making recommendations to the Governing Body. On this particular point it recalls its approach to such questions on previous occasions. For example, in one past case (see 66th Report, Case No. 179 (Japan), paras. 353 to 367 in particular) the Committee considered a similar situation, where a government argued that collective bargaining touched certain subjects which were to be determined by local enterprise level by-laws (i.e. subsidiary legislation similar to the Teachers' Regulations in the present case), with the result that sometimes an agreeement ran counter to the by-laws. To cope with such cases, a procedure had been envisaged enabling the head of the local public body to submit a bill to reverse or abrogate the pertinent by-law to the assembly of the local public body so that the agreement - which reflects the wishes and free negotiations of the parties involved - may cease to be in conflict with the by-law. Under this procedure, unless there was revision or abrogation of the by-law in question, the agreement did not take effect to the extent that the provision was in conflict with it. The Committee, in that case, stated that it was clear that the whole principle of settling matters by collective agreement would be ineffective, unless it is recognised that there is an obligation to modify by-laws so as to secure compliance with collective agreements.
8. 43. In the SLTU's case, the Committee does not agree with the Government's argument on the non-binding nature of the collective agreement. The Government indeed stated that the collective agreement "consisted of mere proposals for the approval of Cabinet", and included financial implications which required Parliament's approval for payment. The Appeal Court judgement also gave weight to the fact that the agreement, although placed before Cabinet, was never ratified or approved, and was never passed into law; however, the judge who heard the case in the lower court had stated quite clearly that agreements of this type did not need to be ratified before coming into force. Moreover, the parties who signed the collective agreement were clear as to the intention of its clause 14 (aiming at higher standards of protection against dismissal); thus the fact that no legislation formally amending the Teaching Service Regulations (No. 23.3) followed upon that agreement is to be regretted. The fact that two dismissals took place in 1985 during the currency of that freely concluded agreement, using as a basis the very provision which was meant to be changed, is even more regrettable.
9. 44. On this very point of approval by the authorities for the entry into force of collective agreements, the Committee has been consistently of the view that such interference - unless based on grounds of pure form - is not in conformity with the principles of voluntary negotiation laid down in Convention No. 98. Although the situation of public servants engaged in the administration of the State is not covered by this Convention, the Committee has always recognised that teachers are not such "public servants" and therefore should have the right to bargain collectively with a view to the regulation of their terms and conditions of employment without government intervention. (See, for example, Case No. 1391 (United Kingdom), 256th Report of the Committee, paras. 39 to 89.)
10. 45. In the circumstances of the present case, including the desire of the parties to the collective agreement to vitiate the effects of certain teaching service regulations, the Committee requests the Government to take the necessary measures to give effect to the wishes of the parties in this matter. The Committee also considers that, in the interests of harmonious industrial relations, the Government should consider using all appropriate measures with a view to ensuring the offer of re-employment to the teachers involved through the Teaching Service Commission.