Soul for sale: The Marriott saga Part 3

Introduction
Earlier this week I sent to Mr Winston Brassington, the head of Atlantic Hotel Inc, (AHI) the company financing the construction of the hotel complex a number of questions dealing mainly with the construction phase. I was hoping that I could address the issues in today’s Business Page. However, Mr Brassington in a telephone call initiated by me explained that events at the Guyana Power and Light Inc prevented him from addressing my questions but promised that I would have a response by tomorrow (Monday). Out of respect for that commitment, I will await his response.

Meanwhile Guyanese learnt from no less a person that a member of the Board of the controversial NICIL, AHI’s wholly-owned parent, that AHI has found all but US$8 million to complete the construction of the complex. At the end of 2011, NICIL had advanced to SCG International (Trinidad and Tobago) Ltd the sum of $2,036.7 billion, or the equivalent of US$10 million, as a 20% advance payment on the US$50.9 million contract. Since that date NICIL received some US$25 million from the sale of the government’s share in GT&T (with a balance of US$5 million) to come. This suggests that NICIL/AHI have secured financing for at least US$35 million to US$40 million, leaving a gap on the construction cost of some $11 million. Since the total cost of the project was budgeted at US$41 million against the US$50.9 million price contracted with SCG, one is left to speculate whether the US$8 million shortfall figure given by Dr Luncheon is to cover the entire contract cost or the difference between what NICIL/AHI have secured from the US$40 million privatisation proceeds.

The unclear Luncheon
business pageNot surprisingly and not for the first time, Dr Luncheon’s statement is less clear than the country deserves and adds nothing to another document which I have seen. The document, an Agreement between the Guyana and AHI, dated April 14, 2011 and signed by Winston Brassington on behalf of AHI and Mr Dhanraj Dhanpaul, CEO (ag) of Guyana Office for Investment (go-Invest) on behalf of the Guyana Government, states as follows:

That AHI was formed with the objective of building and operating a minimum of 150-room hotel (revised in 2010 to 197 rooms) and an entertainment complex (including a casino, nightclub and restaurant);

The Developer, through its owners (current and prospective), has represented to the government that the Undertaking is currently in the tender stage for construction, with a projected timeline for the anticipated commencement of construction being Q2, 2011 with a construction timeframe of 2 years, following the conclusion of a contract with a Contractor, to deliver the substantial portion of the undertaking;

The Developer will own the Hotel and Entertainment Complex which shall be operated by third parties; the Hotel will be operated by the Marriott; the casino, nightclub and restaurant will be operated by other third party operators to be identified. All income earned and expenditures made will be in the name of the Developer, with the Operators being paid an operator’s fee for services provided.

The owners of the Developer have further represented to Government that the Undertaking will contribute to the development of the Guyanese economy, more particularly the hospitality sector and have therefore applied to Government for concessions.

Government negotiates concessions and dooms Pegasus
Of course, the owners of the developer are the same Government with which Mr Brassington made the agreement. And note that the only hint that the AHI will sell the property is in B above – “current and prospective owners.” And under the Agreement the new facility is being granted for ten years exemption from corporation, property and withholding tax (including the payment of interest and dividends to debt providers and equity holders. Additionally the developer has received an undertaking that it will be granted a licence to operate a casino.

Additionally, the developer is guaranteed relief from duty and excise tax on capital repairs or replacements including machinery, equipment and buildings costing more than US$10,000. And on top of that, the developer is entitled to a “one-off” retrofitting of the project within ten years if so required for a period of ten years (sic) from the commencement of commercial operations.

There is absolutely no way any investor can compete with AHI’s project unless it receives similar concessions. It is either that the hotel will make super-profits or competitors will simply be run out of business. These concessions spell the death-knell of the Guyana Pegasus and possibly the Princess Hotel as well. The only other entity in Guyana that came close to such generous concessions is the Ramroop-owned Queens Atlantic Inc, lending credence to the rumours that the investor will be the same group.

The Agreement as signed has no conditions regarding ownership and it means that AHI can sell the hotel one day after completion with all the massive concessions which amount to a windfall to whoever the buyer turns out to be.

The Guyana Government has now taken on the role of venture-capitalist and procurer of concessions, licences and permits for an unknown entity(ies) which is not willing to invest any money upfront. It is hard to think of any similar arrangement across the Caribbean!

The wrong feasibility
Now that it is becoming almost certain that AHI is risking taxpayers’ money for the benefit of some private investor/s, one must wonder why the Government went to such lengths to convince the public that the project was feasible. If the project was undertaken for resale, the only feasibility was whether or not there would be takers of any offer of sale of the hotel on completion. And with such sweeteners the only thing one has to fear is diabetes, not a shortage of buyers. But that is another part of what seems to have been an elaborate but not too hidden plan to fool the Guyanese public while building a project for selected friends of the Government.

We wait to hear what Dr Luncheon and Mr Brassington will tell us next.

The construction
Now this is another story. Recall that when AHI conceived the project its budget was US$41 million based on its drawings and specifications. It went to tender on that basis. So when SCG sent in a tender for US$65 million, AHI said to SCG please go and do an alternate design meeting Marriott’s standards. SCG came back with a design but this time costing US$51 million but excluding several costs and most importantly that relating to Leadership in Energy and Environmental Design (LEED) certification. What SCG was effectively telling AHI is that if you wish to have LEED certification then you must pay for it. And Mr Brassington said yes. Now that we are cutting corners on statutory deductions, changing design specifications and eco-features we allow the contractor to dictate to us about quality certification.

Having been duped by SCG, the Chinese contractor, on the importation of labour – although Guyana had the final say in work permits – the next danger for us is who is looking after the interest of AHI in ensuring that we do not have a similar experience in the quality of the material used or in supervising the execution of the work by the contractor. Earlier this week I was being regaled with the post-modern technology and material being employed on the cut-price contract. Well maybe that explains why none of the local consulting engineering firms was retained by AHI to look after its interest.

Supervision
One experienced engineer expressed to me considerable doubts about the ability of AHI to put together a competent team to deal with the international contractor, SCG. According to the engineer, AHI has stepped well out of its league, even though the internet made it easy to research the experiences of other countries using Chinese contractors with Chinese labour.

He suggested that persons who negotiate building works contracts should have an understanding of building components, building codes and current construction practices. Of course, the contractor on a project of this size should have a Quality Manager whose primary responsibility is to meet Quality Assurance/Quality specifications. But contractors are mainly interested in maximising profits which comes from reducing costs, and so AHI must satisfy itself and specify the steps embedded in the process to ensure that quality assurance and quality control matches the agreed plans and specifications.

Price v quality
AHI would have needed to ensure, even before construction started, that it had in place a team to manage the construction supervision, including the ‘Engineer’ who will sign off on the final product and approve design changes. While only a limited amount of information has reached the public, the several volumes of contract documents – probably written in one of China’s languages − would comprise of specs and drawings. Within the specs are written quality responsibilities for the contractor, eg a spec for cast in place concrete would require the contactor to submit product data for the cement, concrete admixtures, mixing requirements of concrete plant if readymix concrete is used, a concrete mix design, certification that the plant is certified, type of aggregate used, tests used, certification of the readymix trucks, etc. Similarly there are specifications for formwork, reinforcement, survey, safety, code compliance, electrical, mechanical, windows, masonry, and so on.

It is true that we negotiated on price. The question now is whether AHI knows whether it has compromised on quality.

Next week: Conclusion

Soul for sale: The Marriott saga Part 2

Introduction
In the first part of this article I wrote that I did not see a copy of the final contract between Atlantic Hotel Inc (AHI) and SCG International (Trinidad and Tobago) Limited (SCG/the contractor) for the construction of the Kingston hotel property financed by the Government of Guyana, owned by AHI and proposed to be managed by and operated under the name of Marriott, the international hotel chain. In fact there is no single contract but rather ten separate documents, including one described as the Contract Agreement, that together constitute the contract. At all times Mr Winston Brassingston operated as the shareholder representative, chairman, sole director and Chief Executive Officer of AHI. In addition, these and other documents which I have seen indicate that Mr Brassington was the point man for negotiations with the contractor as well as government agencies. It is almost unthinkable that a single individual who in law has no obligation but to the company would be allowed such vast and unrestricted powers over expenditure exceeding ten billion dollars.

What is not unthinkable and indeed was foreseeable is the ‘shamateurishness’ of the negotiated documents and the potential implications for the Guyanese taxpayers who bear the full cost of the investment and any potential losses. To understand why it is not unthinkable and was indeed foreseeable, we have only to look at the example of the Skeldon Sugar Factory. With its large and powerful board and with inputs from Booker Tate, GuySuCo could not prevent a lopsided contract with a Chinese contractor in a matter in which the balance of expertise resided in Guyana. Sadly, the taxpayers continue to suffer the consequences of that mistake. And yet, even before that mistake is rectified − if it ever can be − we are, as Santayana warned, repeating it.

Marriott’s role
Let me also clarify why I am hesitant to call the property the Georgetown Marriott Hotel and Entertainment Complex despite this nomenclature in the Contract Agreement initialled by Brassington for AHI and Michael Zhang of SCG. Marriott is not putting a cent into the project. While the several documents provide for the property to be built to specifications established by Marriott International, the group’s principal role is to manage the property from which it will gain indirectly from the expanded global coverage and directly, from the hotel’s operations. No details have been released of the terms and conditions and the payment arrangements to Marriott for the services it currently provides in the construction phase, and what it will receive under its management contract. In the documents’ package there is a bare reference to Technical Services Agreement of April 23, 2010 between AHI and Marriott International. Interestingly, the financial statements which are audited by the benign and bemused Audit Office show no payment to Marriott in either 2010 or 2011, suggesting that Marriott worked gratis in those two years − a highly unlikely possibility.

What is certain is that Marriott bears no risk and is guaranteed its income, even if the hotel makes a loss. I hesitate to think that the contract with Marriott does not include a termination clause under which Marriott can withdraw their name from the operation. The fact that Brassington may very well sell Guyana’s majority holding in AHI suggests that termination can never be ruled out, in which case the label will inevitably change.

Tax exemptions − déjà vu all over again
Last week I noted that in order to meet a request for a price reduction, the contractor SCG quoted a price which excluded, among other things, PAYE, i.e. the system by which income taxes are deducted and remitted to the Guyana Revenue Authority. For PAYE to constitute exclusion of cost and therefore a saving, it means that Mr Brassington would have had to agree to an exemption of employment income of the labour force from income taxes. Surely even Mr Brassington, whose little knowledge of taxation impressed then President Jagdeo, must know that the law does not allow for any such exemption. In fact, PAYE is collected by and held in trust until paid over to the Guyana Revenue Authority. I would not have thought Mr Brassington would agree to such a preposterous provision but for the fact that the Memorandum of Understanding which Mr Brassington signed with SCG includes PAYE as a cost reduction device.

And on the question of exemption from corporate taxes, one would have thought that Mr Brassington might have learnt from the QAII embarrassment that any exemption has to fall within the tax laws. If he knew that and went ahead and agreed to exemption from all forms of taxes for a construction company, he is guilty of a grievous violation of the laws of Guyana by agreeing to concessions which neither he nor the government has the power to give. If he did not know one has to ask if Finance Minister Dr Ashni Singh, who played a triple role in the QAII fiasco, is also similarly deficient.

Incidentally one of the criteria for tax holidays is the creation of employment. No more needs to be said on this.

The contractor is showing more cleverness than our one-man heavyweight team. SCG has chosen to incorporate in Trinidad and Tobago and thereby benefits from the Caricom Double Taxation Treaty under which the profit it earns in Guyana but which is not taxed here is exempt from taxes in Trinidad. But those same profits are taxable in China, so in effect we are, absurdly, forgoing revenue in favour of the cash-laden treasury of China. To think that the PPP’s father of the nation used to rail against such tax concessions to American, British and Canadian companies! It would be a great day when the GRA decides to step in and let any company know that it will not recognise any tax exemption that is granted outside of the law.

Duped
But on the issue of foreign labour, the contractor was more than clever. Understandably SCG became the target of protests and expressions of concern from several interest groups in Guyana, including the government-leaning FITUG. The Chinese contractor asked in its exchange with Mr Brassington that a clause be inserted in the initial draft contract available to bidders to provide that “the Contractor may [emphasis added] import any personnel who are necessary for the execution of the works.” Taking advantage of what may appear to be a standard and apparently innocuous provision in the contract, the contractor then imports all its labour needs from China. To add stupidity to insult, when the public in Guyana protests, Ms Teixeira with typical irrationality, shouts racism. Well Ms Teixeira, ask yourself who is being racist? The company had a choice of workers from Trinidad and Tobago, its country of incorporation and Guyana, two obvious sources. Instead it chose to import all its labour from China. But unfortunately, those who exposed us to the contractor’s deviousness and ethnic employment preference are too ashamed to admit that they have been duped and their masters now blame the country’s workers as unfit for employment on a construction site.

But Ms Teixeira was not alone in absurdity. Dr Gopaul, the labour man in the PPP/C said the construction of the hotel is a high-tech business, suggesting that it is beyond the competence of Guyanese. I find it hard to believe that having read the contract documents, any Minister would think that Guyanese are unable to contribute to the contractor’s obligation to ensure indigenous species of plants and grass and all aspects of landscaping. Twenty years on, there is no higher tech building in Georgetown than the US Embassy in Kingston, a building that was constructed with at least a 95% local work force. But for their own risible admission of reporters to their facilities, I would mention too the newly constructed spy centre in the compound of Castellani House which as far as the public is aware was built by Guyanese. Dr Gopaul’s defence of all-Chinese labour simply does not stand up.

Insulted once, twice and then thrice
As if to show that the 100% Chinese workforce had its PNC parallel, yesterday’s Stabroek News quotes GINA as stating that “the OMAI Gold Mines project had over 300 Canadians on site in the initial construction phase and no fuss was made.” The reason for the no fuss is that at no time did Cambior have any number close to 300 at the Omai site. My information on both the US Embassy as well as on OMAI was derived not from third party sources or speculation but from actual working knowledge. That those in control of GINA would resort to such fabrication is a measure of how weak they know their argument is. And even if GINA believed that to be the case, it seems to suggest that GINA believes that more than 20 years later we have fewer skills in Guyana!

I have learnt that since Ms Teixeira’s comments, a decision has been taken to cease any further protests at the construction site since they “come across as anti-Chinese.” I understand that further protests will take place at the Office of the President, but not at the office of Winston Brassington who signed the contract with the contractor. It is a strange decision given the facts set out in the several documents I referred to last week, documents to which I am sure certain members of the political opposition have had access. The labour movement must feel thrice insulted – first by the Chinese contractor who shunned them; second by the government and its vacuous spokespersons who said in as many words that local labour is unfit to work on a construction site; and finally by opposition politicians who put Chinese feelings before the interests of the Guyanese workers. The Chinese have every reason to be contemptuous of Guyanese.

Ten billion dollars money, ten cents professionalism
Let us return to the contract documents. The first thing that comes across is the amateurishness of the documents signed by AHI whose officers are its director Winston Brassington and Attorney-at-Law Marcia Nadir-Sharma. Bear in mind that the contract is for over ten billion dollars, excluding a whole range of costs as set out in Part One last week. With such sums involved, you would think that some professionalism would go into the documents. In fact, professionalism is as excluded as Guyanese labour. Surely the contract documents should have been referred to one of the law firms with expertise in high-value construction contracts for finalisation. In fact the documents have all the hallmarks of people with no experience, expertise or concern for ensuring that taxpayers’ money is protected.

In fact there appears some amount of cut-and-paste going on in the preparation of the documents. Here is a classic example: Paragraph 4 of the MOU states that “US$21 million will be provided by AHI shareholders in the form of equity and subordinated debt, such that Zublin will invest the majority of the equity. Pending the execution of the Design-Build Contract, AHI is controlled by the Government of Guyana. Once the Design-Build Contract is executed and financial close is achieved, it is expected that Zublin will be the majority shareholder with the Government of Guyana having a minority stake and proportional representation on the Board of Directors.”

In May 2010 Zublin Grenada Ltd had announced that it was invited by the government to undertake this development and had given the Zublin team three weeks to consider the offer. There has been no indication from Zublin that it had accepted the offer but the June 14, 2011 MOU suggests that while Zublin is still involved it is not prepared to take any risk at the construction stage, all the financing for which has so far been provided by the Government of Guyana through AHI. As the public is aware, the US$25 million received from the disposal of the government’s share in GT&T was earmarked for the hotel and this is in addition to the US$10 million advanced by NICIL to SCG towards their $51 million contract price.

Viability not determined
Someone should surely be asking Mr Brassington and/or the Finance Minister for details of the Marriot and Zublin contractual arrangements, including the basis for valuing any shares to be issued to Zublin. I shudder to think that it will be at the price which Ms Nadir-Sharma has placed in the Articles as the price per share. She needs to be told that the share price in a company’s Articles of Incorporation should be the minimum issue price, to allow market flexibility to the directors. Is Ms Nadir-Sharma aware that nominal price per share was abolished in 1995 when the 1991 Companies Act came into force?

A review of the documents reveals other concerns: the June 2011 MOU admits that the revised contract price of US$51 million for a reduction in the scope of work is “not fully acceptable to AHI”; that AHI is confronted with a shortfall based on the Marriott projections; that there needs to be further capital costs reduction, increased revenue from the operation of the casino and more optimal financing terms. In other words, the construction began even before the viability of the project had been determined! This may explain why NICIL is providing interest-free loans to AHI.

What it does not explain is how and why Mr Brassington could give to Dr Ashni Singh, Minister of Finance, six months later, an undertaking that AHI “will procure or provide all the investment [and other] financing required [by AHI] estimated at US$58 million.” Mr Brassington and Dr Singh both appeared to be pretending that they were entering into an arm’s length agreement and that they did not know that it was Dr Singh’s NICIL that was improperly providing AHI with whatever money it accesses.

Vying for the most elementary but not costly error made by the Brassington-Nadir-Sharma combination is their failure to ensure that SCG has a legal presence in Guyana. It is one of the first assertions in the preamble in any properly drawn-up agreement. Two separate checks at the Deeds Registry this past week suggest that SCG is not incorporated or registered as an external company in Guyana as it is required to be under the Companies Act. There is no evidence that Mr Brassington agreed to waive the mandatory statutory duty.

To be continued

Soul for sale: The Marriott saga Part 1

Introduction
The so-called Marriott Hotel, a scheme conceived by former President Bharrat Jagdeo − after one of his friends failed in his bid to buy the Guyana Pegasus – blessed by Mr Jagdeo’s successor President Ramotar, facilitated by Dr Ashni Singh, his Finance Minister and Chairman of National Industrial and Commercial Investments Limited (NICIL), executed by Mr Winston Brassington, NICIL’s CEO, and defended by political heavyweights like Drs Luncheon and Gopaul, puts in the shade the questionable transactions undertaken in the name of the people of Guyana since 1992. That is no small achievement.

Over the years Business Page has lamented the manner and extent to which the PPP/C Government, having criticised the PNC for its conduct of the privatisation programme, has been willing to sell the public assets of the country, often under very questionable circumstances and not infrequently, to questionable people. One criticism that I have not heard of the PNCR was any failure to account for the proceeds of those deals.

The actions of the PPP/C have been contrasting. Sometimes the transactions were so extraordinary as to arouse public attention, resigned scepticism and outright accusations. Think of those illegal concessions to Mr Jagdeo’s friend Dr Ramroop, transactions which prompted Mr Jagdeo to describe Mr Yesu Persaud as needing re-education. It turned out that the ones who were ignorant of the tax laws were Mr Jagdeo himself, Dr Singh and Mr Winston Brassington. On other occasions Guyanese came to learn of the transaction from abroad, as in the award of large swathes of our forest to Vaitarna of India and the diversion of more than $600 million. Even after the major disclosure in the Times of India, the Jagdeo/Singh duo never informed the nation that the money was used to plug a hole left in the wake of the Clico debacle in which Mr Jagdeo and Dr Ashni Singh were joined by another Singh − Gita − as lead characters. And from Jamaica we learnt that the Government of Guyana had committed this country to borrowing billions of dollars from the Chinese − most of which will never reach Guyana − to carry out works at the CJIA, works the country neither needs nor can afford. Just let us ask Delta.

Trading Guyana
Business Page from time to time has lamented that the Government was selling out the store and later, that it was selling out the store again. We warned that there is no such thing as a free chowmein, prompting a tirade of abuse directed at me by a senior government official, accusing me of lack of patriotism, and working against the development of Guyana. Only this week I was reminded of Samuel Johnson’s aphorism “patriotism is the last refuge of a scoundrel.”

The Marriott project has all the hallmarks of the several misdeeds inherent in the Queens Atlantic imbroglio, the transgressions of Vaitarna and the silence and non-accountability of the airport expansion transaction. So what makes the Marriott Hotel so special? It is that unlike the other transactions that merely sold out the store, the contract for the construction of the so-called Marriott Hotel involves selling out Guyana and its soul. And as you read on you will marvel at the brass, the contempt and the lawlessness demonstrated by the officers of a company called Atlantic Hotels Inc.

‘Egregious’ is a word Business Page has often used to describe what has passed for accountability in Guyana. I now need to find a term that surpasses egregious in scale and scope. To date the Marriott revelations have centred on the Chinese whose appetite for Third World resources causes it to act like the beads-for-precious stones policy of the Europeans in the early days of discovering foreign lands. And it is a skill they have honed with great success in Africa, first because of that continent’s resources and second, because they found that where there is weakness, incompetence and corruption by the government and silence among the people, a football stadium or a road can go a long way. Especially if the road leads to a mine or forests.

A scheme called Atlantic Hotel Inc.
The recent protests against the misnamed Marriott Hotel project – Marriott is not putting a blind cent in the investment – have paid little attention to the role of two individuals, Winston Brassington, the sole director of Atlantic Hotel Inc (AHI) and Ms Marcia Nadir-Sharma, the company’s corporate secretary and in-house attorney. It is their hands and signatures that adorn many of the Marriott documents in which Guyana has relinquished sovereignty to the Chinese. Everyone knows that Mr Brassington and Ms Nadir-Sharma could not do what they continue to do without the express authority of the two Presidents, Dr Ashni Singh and the Cabinet.

But the importance of the role of Mr Brassington and Ms Nadir-Sharma is that Mr Brassington is the sole director, Chairman and CEO of AHI while Ms Nadir-Sharma is its only other officer, information published in these columns on August 8, 2010.

Here are some facts about AHI that seem worthy of ventilation. AHI is a 100% subsidiary of NICIL, for years a corporate outlaw. AHI was incorporated on September 3, 2009 with a share capital of one million Guyana dollars (sic). From its incorporation to its latest filing on record three days ago, the only shares issued have been 10,000 shares at $100 each in the name of NICIL. By Resolution of 28th September 2010 the company increased its share capital from $1M (10,000 shares @ $100 each) to $3 billion (300,000 shares at $10,000 each) prompting questions about Ms Nadir-Sharma’s familiarity with section 5 of the Companies Act 1991.

It is Mr Brassington and not the Govern-ment which signed every agreement with the Chinese company, Shanghai Construction Company, through its Trinidad and Tobago subsidiary, for the construction of the hotel. To get a good sense of the documents we can look at a letter dated October 1, 2011, supposedly sent by Mr Brassington in his capacity as Chairman of AHI to Mr Michael Zhang, General Manager of SCG International (Trinidad and Tobago) Limited presenting ten documents to Mr Zhang for “initialing.” Included in the package is an undated Letter of Acceptance from Mr Brassington to SCG informing it that its earlier tender was considered and resulted in a Memorandum of Understanding (MOU) for a Design-Build Contract for the precise sum of US$50,918,112.89. I have not seen a copy of the final contract, but it is likely that any further changes would be in SCG’s favour and not that of AHI or the Government of Guyana.

The MOU
The Memorandum of Understanding, dated June 14, 2011 and signed by Messrs Brassington and Zhang, notes that SCG had submitted a tender of US$65 million based on an original design but that the amount was considerably above the $41 million budgeted cost for the construction. The MOU goes on to state that SCG − and apparently no one else − was allowed to submit an alternate design meeting Marriott international design standards.

The MOU reflects a situation in which SCG went for the kill, realising that it had all the cards and that its opponent was either weak, compromised by circumstances or grossly incompetent. It demanded, in exchange for a reduction of US$14 million in the contract price, the following amendments to the initial contract document:

1. The removal of any obligation on SCG to pay all taxes, duties and fees, and obtain all permits, licences and approvals … placing these on AHI. Moreover, SCG demanded that it receive full exemptions from all taxes. Mr Brassington agreed.

2. That it be allowed to import any personnel who are necessary for the execution of the project. Mr Brassington agreed. It turned out to be 100%!

3. That its obligation to repay an Advance Payment under clause 14. 2 of the agreement be removed. Mr Brassington agreed.

4. That the principal provisions regarding Claims, Disputes and Arbitrations be deleted in their entirety. Mr Brassington agreed.

The result is a complete sell-out of every principle that served Guyana’s interest, an agreement that was re-written by SCG for SCG. And Mr Brassington agreed.

Conclusion
SCG in a letter to Mr Brassington dated May 18, 2013 said that its revised bid price does not include the cost of the promenade/boardwalk, LEED certification cost, PAYE package, health charges, NIS contribution, work permits and visa fees required by law.

It is not clear why it was necessary to refer to PAYE as an exclusion, since PAYE is borne by the employee and further, effectively granting to SCG a waiver of all or any part of NIS, a cost which by law is shared between employer and employee.

The contract price seems to exclude both. In return, all SCG was required to do was assist AHI to secure funding for the project of US$7 million to US$30 million.

Just what else the directors of AHI have done, how they managed to do it and the further absurdity of the Marriott project will be the subject of the next Business Page.

Employee or independent contractor

Introduction
The quotation taken from a judgment of US Supreme Court Judge Wiley Blount Rutledge is as true today as when it was handed down in a case nearly seventy years ago. But it is perhaps even more relevant today than it was then, its relevance best understood against some of the practices by employers − sometimes with the complicity of the employees, and sometimes not.

Let me give a few practical examples. Suppose entity A has a defined organisation structure with stipulated qualifications and fixed salaries. And suppose entity A wants to employ a relative of one of its top brass, for a) a position that is not on the establishment; or b) the relative does not possess the requisite qualification; or, c) the relative possesses the requisite qualification, but is to be paid remuneration higher than the one fixed on the establishment.

Another is a government on which the budget authority has imposed an employment and wage freeze. Yet another is one which wants to circumvent the law requiring the deduction of income tax and NIS from employees’ earnings.

Many entities faced with these situations choose the route of engaging the person not as an employee but as an independent contractor.

And as the examples indicate, this practice is undertaken by all employers, governments and the private sector alike. I am surprised how many employers – and employees – think that once a position is labelled independent contractor, many of the obligations to which an employer is otherwise subject, do not apply.

Employers 2, Employees 0
There is a further and equally important consideration. Coverage under employment laws boils down to whether or not the individuals in question are ‘employees’ and whether or not the entity in question is an ‘employer.’ So if you fall and break your leg, the law to be applied often hinges on whether you are an employee.

And from a financial perspective, it has been estimated that classifying individuals as independent contractors instead of as employees might result in a savings of twenty to forty per cent of labour costs. No pensions, no medical, no allowances, no overtime, no nothing − just salaries.

So employers have everything to gain, and little to lose by defining a person as an independent contractor rather than an employee.

But this has serious public policy implications by characterizing an individual as an employee, which include protection under various employment laws as well as a requirement that PAYE must be paid. It is surprising that we do not hear in Guyana of more cases reaching the courts because the problem is both widespread and acute.

Ram & McRae, the accounting firm is often called on to advise businesses on the distinction between employer and employee and this column draws on some of the research undertaken in consequence thereof.

A real case
Two years ago, an interesting case came before the UK Supreme Court. The facts as set out provided a useful framework to determine the employer/employee question. The company, Autoclenz Limited had a contract to valet cars. Twenty valeters signed contracts with Autoclenz to provide car cleaning services. The contracts contained the following clauses indicative of a contractor relationship:

• There was no duty to accept work

• There was a right of substitution (to send the work elsewhere)

• They expressly described themselves as self-employed

• They paid their own tax

• They purchased their own insurance, uniforms and some materials.

In reality, Autoclenz Limited provided all the cleaning products and equipment and arranged group insurance cover. The valeters submitted weekly invoices to Autoclenz Limited for their work. Autoclenz Limited deducted a fixed sum for the provision of cleaning materials and insurance from the payment due each week. The valeters were responsible for payment of their tax and NIC.

Subsequently, the valeters brought claims to a tribunal seeking a declaration that they were workers and an order for Autoclenz Limited to pay them the national minimum wages and unpaid holiday pay under the Working Time Regulations 1998. Autoclenz Limited argued that the statutory rights were not available to them as they were contractors.

The courts
The tribunal decided in favour of the valeters on the grounds that the degree of control exercised by Autoclenz Limited fully integrated the valeters into its business and that the contract terms permitting the valeters to provide substitutes and suggesting a lack of mutual obligations did not reflect the reality of the situation. In practice, the valeters were required to turn up for work every day and to notify Autoclenz Limited in advance if they were unable to work. In other words, several of the terms were shams.

Autoclenz Limited appealed to the Employment Appeal Tribunal (EAT) which allowed the appeal in part and held that the valeters were not employees but that they were workers. This displeased both sides and so Autoclenz Limited appealed against the decision that the valeters were workers while the valeters cross-appealed against the decision that they were not employees.

The Court of Appeal reinstated the tribunal’s decision, dismissing Autoclenz Limited’s appeal and allowing the valeters’ cross-appeal. The Court of Appeal held that, when determining an individual’s status, tribunals should look at the actual legal obligations of the parties. It was not necessary to show a common intention of the parties to mislead. Autoclenz Limited appealed to the Supreme Court.

And so the case went to the UK Supreme Court which unanimously dismissed Autoclenz Limited’s appeal and upheld the decision of the Court of the Appeal that the valeters were employed under contracts of employment and thus entitled to receive the national minimum wage and statutory paid annual leave.

The principle
In the process the Supreme Court ruled as too narrow a long-standing rule that as long as the written contract is not a ‘sham’, its terms would prevail. Because of the hierarchy of courts in the UK, tribunals and courts will be able to set aside express contractual terms which are inconsistent with the reality of the relationship of the parties, without having to establish a common intention of the parties to mislead.

Even as the case wound through the judicial system, the judgment of MacKenna J in the case Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance was cited with approval. He said: “A contract of service exists if these three conditions are fulfilled.

(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master.

(ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master.

(iii) The other provisions of the contract are consistent with its being a contract of service … Freedom to do a job either by one’s own hands or by another’s is inconsistent with a contract of service, though a limited or occasional power of delegation may not be.”

Conclusion
My view is that the practice by employers deprives workers of significant rights and exposes them to serious obligations. As noted earlier their rights to protection by employers for industrial injuries and death are restricted if not entirely eliminated. And on the other hand the employer shifts his responsibility to deduct and pay over taxes and NIS which now become the obligation of the employee.

I am not hopeful that the government is keen or mindful of cleaning up a situation in which it is itself involved. Here is how. It may receive funding from the British to pay the salaries for some climate change consultant. By law, that money should be paid into the Consolidated Fund as grant and then paid out as an expenditure by way of an appropriation. This government has no appetite for such accountability. It is simply paid to the consultant as an independent contractor without taxes etc, being deducted and paid over.

I would like to see the GRA directing some resources and attention to this issue. It will bring in lots more tax revenues. And I hope too that the Attorney General and the Minister of Labour would direct their attention to any omissions in the law. They will protect the workers.

The AG is the principal legal advisor to the government not the state

Even as one who still spends time teaching, I find it hard to engage Mr Anil Nandlall, Attorney General, not only because of his proclivity for misunderstandings and misrepresentations (on the Budget cuts, on the Lotto Funds), but also because his frequent pronouncements show extremely poor acquaintance and at times no acquaintance, with the finer points of the Constitution, and because of his chameleonic quality of rearranging facts to fit his circumstances. There was a convergence or, to use one of Mr Nandalall’s words, a concatenation, of these qualities in the recent news items in which he sought to arrogate for his office, authority over Bills passed by the National Assembly (SN, February 3, 6).

Let me recap the issue of the Bills that exposed Mr Nandlall and caused him to restate/reconfigure his story three days later. He told Stabroek News on February 3, 2013 that “The opposition bills have not reached the Attorney General’s Chambers… for [his] inputs.” Up comes the Clerk of the National Assembly saying not true: the Bill was there ever since. Cornered by facts, Mr Nandlall’s story changes to, “okay, but not on my desk” (February 6).

Meanwhile, by letter of February 4 in the press I noted for the benefit of the public, and hopefully of Mr Nandlall, that a Bill passed by the National Assembly is not an opposition or government Bill but that of the National Assembly. And that contrary to his claim of jurisdiction over Bills passed by the National Assembly, the Constitution and the Standing Orders of the National Assembly vested certain powers and duties only in the Clerk of the National Assembly (custody and despatch to the President), the Speaker (to correct patent errors), and the President (to assent or explain). While it is evident that Mr Nandlall was unaware of these finer points, Guyanese expect their Attorney General, whoever s/he might be, to appreciate the dangers of tampering, or of delaying tactics by a political appointee, thereby frustrating the constitutional requirement for the President to assent or explain within twenty-one days.

But here again Mr Nandlall’s elusive qualities come to the fore. Here are some of his unbelievable responses. He explains his loose nomenclature of opposition Bills as “descriptive labels … widely used in parliamentary Standing Orders the world over.” Mr Nandlall is obviously less informed about Guyana than he is about the world over, since the “descriptive labels” are used in Guyana only when a Bill is “introduced” as a Private Member’s Bill (Standing Order 51); or “presented” on behalf of the government (Standing Order 53). Since Guyana by itself is proving to be so onerous to Mr Nandlall, it is recommended that he leaves “the world over” to those who know a thing or two about it.

Caught as a central violator of the provisions of the Standing Orders and the Constitution, Mr Nandlall scurries for refuge in what he calls conventions “from the colonial days.” A little learning is truly a dangerous and damaging deficiency. In Mr Nandlall’s “colonial days,” there was no 21 days limit and Bills were required to be assented to by the governor, who was not a member of either chamber, called the Senate and the Legislative Assembly. Mr Nandlall might wish to refer to Dr Shahabuddeen’s discussion on the role of the governor under the 1961 Constitution on page 546 of his book Constitutional Development in Guyana 1621-1978. Under the 1980 Constitution there is a 21-day deadline for the President to assent or explain, while Article 51 of the Constitution makes the President an integral part of the Parliament.

But more importantly, I hope for Mr Nandlall’s sake that he would not argue, even in a corner shop, that a convention of limited historical validity can trump Standing Orders recognised in Section 9 of the Constitution Act, or the Constitution itself which is the supreme law of Guyana. There are many learned articles, textbooks and treatises (Dicey, Wheare, Jennings, Phillips, Fiadjoe, etc) on the place of conventions in any constitutional environment, whether one having a formal written constitution or one governed by an uncodified constitutional regime. They are easily accessible and comprehensible to the average person.

While asserting a convention violative of the Constitution and the Standing Orders as “having great utility,” Mr Nandlall’s conscience suffered no discomfort in his recent rejection of one of the most ancient parliamentary conventions, that resignation should follow a vote of no-confidence. And let me share with Mr Nandlall another convention which his government has rejected out of hand: that while a head of state can either assent or withhold assent, by convention, assent is always granted and not withheld. I now wait to see whether Mr Nandlall will compare this with the veto. He just might…

Shockingly, Mr Nandlall does not seem to know the basic functions he is appointed to perform. In order to buttress his misconceived assertion of authority over Bills passed by the National Assembly, he claims that he is “the principal legal adviser of the state apparatus.” Mr Nandlall is not. In fact, he is the principal legal adviser to the government (Article 112 of the Constitution). Maybe the Interpretation and General Clauses Act does not provide a definition which could help Mr Nandlall, but surely Article 106 of the Constitution dealing with the resignation of the “Government” should have guided him. In management there is an axiom that if you do not know your job requirements, you cannot do it.

All in all, Mr Nandlall’s positions are so devoid of rationality or consistency that he forgot that only recently he took the Speaker of the National Assembly to court. By his latest definition of his job as Attorney General, the man has taken his own client to court!

As we have come to learn, attorneys general are no longer blessed with the same judgment on the wisdom of silence as those of yesteryear. Hopefully, Mr Nandlall will learn as he goes.

Let me end by saying that I believe that the perpetuation of much of what we as Guyanese receive daily from the government and the Attorney General is a result of a largely ineffective political opposition and its battery of lawyers. Let us hope that they will not remain silent on this issue which involves a Bill they introduced and which involves both substantive and procedural constitutional points. And I hope too that the Speaker of the National Assembly Mr Raphael Trotman will now accept and carry out his duties in relation to Bills, seeking whatever advice and assistance he may require.