In 2010, the Industrial Disputes Tribunal (IDT) allowed the Ministry of Finance and the Public Service to take three years to pay approximately $8 billion owed to teachers, rather than requiring immediate payment, as had been agreed by the Government. The finance ministry argued that it was not in the national interest to pay our teachers on time.

Today, the Jamaica Medical Doctors’ Association (JMDA) is awaiting the tribunal’s decision in its dispute with the Government over overtime and incentive payments. According to news reports, the doctors claim they are owed approximately $31 billion in retroactive overtime payments, while the Government estimates the amount at approximately $23 billion. However, the most important question may not be how much the doctors are owed, but rather, when will they be paid?

The IDT is a statutory body established under the Labour Relations and Industrial Disputes Act (LRIDA). The LRIDA gives the tribunal authority to resolve industrial disputes, including matters involving wages and other terms and conditions of employment, and extends to disputes between public sector employees and the Government.

The IDT falls under the Ministry of Labour and Social Security, and its members are appointed by the minister of labour and serve at his/her pleasure. The dispute is not, therefore, being determined by a judge who is independent of the Government. And that brings us back to the teachers.

In 2010, the Jamaica Teachers’ Association (JTA) and the Ministry of Finance and the Public Service appeared before the IDT. The dispute placed one government ministry before a tribunal appointed by another minister.

What made the dispute unusual was that the amount owed to the teachers was not in issue. The parties had already negotiated teachers’ salaries and signed a Heads of Agreement for J$20 billion. The Government paid J$12 billion, leaving J$8 billion due the following year. However, when the payment became due, the Government accepted that the teachers were entitled to the money, but said that the global economic downturn, fiscal constraints, and International Monetary Fund conditionalities made it impossible to meet the agreed payment schedule. The IDT ultimately allowed the outstanding sum to be paid over three years, without interest, effectively varying the agreement.

The IDT relied on Section 12(7)(b) of the LRIDA, which provides that where any industrial dispute referred to the tribunal involves questions as to wages, hours of work or any other terms and conditions of employment, “the tribunal shall not make any award which is inconsistent with the national interest”. The term is not defined in the law. It is doubtful, however, that it gave the tribunal the power to vary a binding agreement simply because the Government says it cannot afford to comply with it.

If one party enters into an agreement to pay another billions of dollars by a particular date, then later says, “I know I owe you, but I cannot afford to pay you as we agreed”, we would ordinarily expect the courts to order payment with interest, applying commercial principles which are clearly defined and prescribed. The court has no power to change the agreement between the parties, whether on national interest grounds, or otherwise.

The question that then arises is can the national interest give the IDT the power to rewrite a binding agreement simply because the Government says it cannot afford to honour that agreement at the agreed time?

Of course, the Government’s ability to manage the country’s finances is part of the national interest. But surely the national interest also includes the Government honouring agreements it has made. It includes public confidence that when the State gives its word, that word means something. And it includes ensuring that the people who teach our children, treat our sick and keep the public service functioning, are paid what they have been promised, when they have been promised it.

The 2010 Award was not appealed. Therefore, our courts had no opportunity to provide us the necessary guidance of when to invoke the “national interest” provision, or on the extent of the IDT’s power in circumstances where the parties have already settled their rights by agreement.

This leaves us with an uncomfortable possibility that history may repeat itself. The JTA award becomes a precedent for a proposition that should concern all Jamaicans, particularly public servants. Essentially, an agreement with Government can be recognised as binding, yet its implementation can be altered by the IDT because doing otherwise is said to be contrary to the national interest. And the determination of what is in the national interest is made by a three-member panel that can be removed by a Government minister, without cause.

Although the JMDA and JTA disputes are not identical, and the tribunal must decide the doctors’ dispute on its own facts, the earlier case raises an important question about how the IDT may approach the issue.

If “national interest” can be invoked whenever the Government says it cannot afford to pay what it has agreed to pay, then an uncomfortable principle emerges: you may be owed the money, the Government may accept that it owes you the money, but you may still have to wait because the Government has decided that it cannot afford to pay you now. That cannot be allowed to become what “national interest” means. The national interest should not become a polite way of saying, “We owe you, but we have decided that we cannot afford to pay you now.”

Nicole Taylor is an associate at Myers, Fletcher and Gordon and a member of the firm’s Litigation Department. She may be contacted at nicole.taylor@mfg.com.jm or through the firm’s website www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.