High Court sends back overtime dispute to Industrial Court

A HIGH Court judge has quashed a decision of the Special Tribunal of the Industrial Court in a dispute by the Public Services Association (PSA) on behalf of customs officers.

In a ruling on April 17, Justice Ricky Rahim ruled the tribunal acted unreasonably and erred in law when it dismissed the PSA’s dispute over the calculation of overtime.

He quashed the tribunal’s decision and sent the matter back for the continuation of the hearing of the dispute and decision.

In its claim, the PSA argued that overtime rates should be governed by a 2008 memorandum of agreement (MoA) for civil servants, rather than the outdated regulations under the Customs Act. The tribunal held the MoA did not apply to customs officers because of special arrangements in the regulations.

In his ruling, Rahim held that the MoA was intended to cover all civil servants unless a group was specifically excluded, and customs officers had not been excluded. He found that the tribunal had misinterpreted witness testimony and failed to properly assess the effect of the MoA, which in his view had replaced the earlier special arrangements governing overtime.

“It is not a case of the regulations which set such overtime rates taking precedence over the MoA as primary legislation provides for the government to be bound by the MoA.”

He said the tribunal fell into material error by ruling that the regulations took precedence of the MoA.

“The MoA is therefore statutorily underpinned and given effect to by way of primary legislation.” He said the Civil Service Act, as primary legislation, gave statutory effect to collective agreements like the MoA, and that such agreements took precedence over regulations unless clearly stated otherwise.

“The persons holding the offices within the Customs and Excise Division are included in this category (full-time monthly-paid officers of the Civil Service). They are, therefore, full time monthly paid officers of the Civil Service.”

He said if the tribunal had considered the evidence before it and the witness statements, “it may have concluded that the MoA not having identified any particular classification as being excluded, applied to the officers of Customs and Excise.”

“It, of course, will follow that in the absence of expressed words of exclusion it must be the case that the MoA applied to the group.

“The MoA was a document of change for all civil servants. It introduced new overtime terms for all.

“So, that change was to come for all except those who were specifically excluded. That change in the case of Customs and Excise officers would readily qualify as agreed changes that override the special arrangements that were in place up to the MoA coming into effect. Not the other way around.”

In his ruling, Rahim expressed concern that, after decades of accepted use, the PSA was now complaining about the overtime regulations when, for years, payments under the regulations were received without objection.

He said since the Attorney General was not included as a party to the lawsuit, it was unnecessary for him to determine if the President’s power to make the regulations had been exercised unlawfully. Douglas Mendes, SC, and Leah Abdulah represented the PSA while Seenath Jairam, SC, Raphael Ajodhia, Lianne Thomas and Abigail Bristo appeared for the tribunal.