Maputo — Mozambique's Administrative Tribunal has rejected an appeal by the Mozambican branch of the security company Wackenhut, a wholly-owned subsidiary of the London-based Group Four Securicor (G4S), against an order by the Labour Ministry to pay over 11 years of overtime owing to its security guards.

There is no doubt about the substantive facts in the case.

Wackenhut actually admitted that between 1994 and 2005 it had not paid any overtime. Hundreds of Mozambican guards had been working 12 hour shifts, four hours more than the standard eight hour day.

After repeated demands from its workers that the company pay what it owed them, in 2005 Wackenhut agreed to send the overtime dispute to arbitration. The arbitration panel gave its ruling on 2 May 2006, and declared that Wackenhut did have to pay the overtime, though it added that the exact sum claimed by the workers of 33.9 billion old meticais (about 1.3 million US dollars) had not been proved.

Wackenhut seized on this reservation as an excuse not to pay anything at all. In late 2006, the Labour Ministry called Wackenhut to several meetings at which it attempted, unsuccessfully, to persuade the company to pay up.

A note from the General Inspectorate of Labour, sent on 25 August 2006, ordered Wackenhut to pay the money within seven days. A second Labour Ministry note, of 30 August, warned Wackenhut that failure to comply could lead to the closure of its operations in Mozambique.

Wackenhut appealed against the Ministry's order to the Administrative Tribunal, the body which deals with the legality of administrative acts. The appeal was dated 7 January 2007.

However, the law on administrative disputes states that administrative acts must be appealed against within 90 days.

Since the Labour Ministry order was date 25 August 2006, Wackenhut should have appealed by 25 November.

The company's delay in taking any action should have been sufficient for the Tribunal to throw the appeal out at once.

Nonetheless, the First Section of the Administrative Tribunal has now delivered a lengthy verdict, dated 30 October. (This long delay is nothing sinister - indeed, it is all too typical of Mozambican appeal procedures).

The appeal fell at the first hurdle: the Tribunal declared it had "no object" - meaning that the decisions it was appealing against did not fall into the category of "administrative acts" at all, and therefore did not fall under the Administrative Tribunal's mandate.

For the General Inspectorate of Labour could not coerce Wackenhut into paying the money, and on its own had no power to punish the company. To take the matter further, it needed to accuse Wackenhut of the crime of disobedience, using the law courts.

This, the Tribunal said, was "a judicial, not an administrative procedure".

In short, the Tribunal has told Wackenhut that it was knocking on the wrong door, since the disputes do not fall within the sphere of Administrative Law at all, but within that of Labour Law. They should thus be judged by the ordinary law courts (which, in the absence of specialised Labour Tribunals, handle disputes between workers and their employers).

Furthermore, the instructions from the Labour Ministry took the form of mere "communications". The correct channel for appealing against a communication from the General Inspectorate of Labour is to take the matter to the Minister of Labour, the Tribunal pointed out.

And since Wackenhut did not contact the Minister within the ten days stipulated for such a move, it lost the right to appeal.

The Administrative Tribunal could have left matters there - but it went much further, and accused Wackenhut of lying about the decision of the arbitration panel. For while the arbitration ruling did decide that the workers' figure was unproved, and while it did (unjustly, and arguably unconstitutionally) say that only those still on the Wackenhut payroll were entitled to the overtime pay, and not those who had left the company, it did not give Wackenhut the right to pay whatever it liked.

For the key arbitration ruling, and one which Wackenhut ignored, was that, within ten days of the arbitration decision, the Wackenhut management should have presented a proper calculation of the overtime hours worked "based on the legal formula to be provided by the Ministry of Labour".

Wackenhut did not contact the Ministry to seek this "legal formula", and it did not provide its own calculation of the overtime worked between January 1994 and February 2005. Since Wackenhut had not given the basis on which any other figure could be calculated, the Ministry then thought it was entirely within its rights to demand that Wackenhut pay the 33.9 billion meticais.

Or, as the Administrative Tribunal puts it, "the arbitration decision gives the Labour Ministry the discretionary power to provide a basis for calculating the payment of the overtime".

This was the power that the Ministry had used to order Wackenhut to pay up, and it could not be argued, as the Wackenhut appeal claimed, that the Ministry lacked the power to make this demand.

The figure had not been conjured out of thin air. Initially, the workers and their trade union committee had claimed a rather larger sum - 34.3 billion meticais. This figure was submitted to a technical commission set up by the arbitration panel. The three parties who had appointed the arbitrators (the union committee, Wackenhut and the Ministry) also appointed the technicians.

But the two technicians appointed by Wackenhut did not collaborate, and Wackenhut reneged on a promise to support the technical commission by providing it with data, computers and office space. It was thus the technicians appointed by the ministry and the union that revised the sum demanded downward.

They excluded 42 employees who had not worked as guards, which reduced the sum owing to 33.9 billion meticais.

Despite boycotting the technical commission, Wackenhut then made its own proposal to the arbitrators. It said it was willing to pay overtime, but only for the period February 2004 to February 2005, and only on the assumption of two hours overtime per worker per day, which it calculated at 4.3 billion meticais.

The union rejected this figure outright. At the end of the arbitration, Wackenhut increased it to the round figure of five billion meticais which it said the union could distribute as it saw fit. There is nothing secret about any of this - it is all in the arbitration document, but you wouldn't guess that from Wackenhut's public statements.

Wackenhut's real problem was not with the Labour Ministry, but with the Arbitration panel which delivered a ruling it did not like. The company's response was to lie about that ruling, and pretend it was implementing it, when in fact it refused to do what the Panel ordered - namely to meet with the Ministry and fix a sum for the overtime to be paid.

Employers can appeal against arbitration - but not to the Administrative Tribunal. Had Wackenhut wanted to overturn the arbitration ruling, its correct course of action was to appeal to a civil section of an ordinary Maputo law court.