In the Matter of an Application for a Writ of Prohibition and In the Matter of the Industrial Relations Act 1962–1970 and the Industrial Organizations Act 1962–1971 and In the Matter of a Ruling made or delivered at Port Moresby on 29 June 1973 by Francis Patrick Joseph McCrudden, Esq, Arbitration Tribunal, in which Anthony George Hoepper was Claimant and Ela Motors Limited was Respondent (1973) FC53

• Jurisdiction: Papua New Guinea
• Judge: Prentice J:
• Judgment Date: 16 October 1973
• Citation: [1973] PNGLR 436
• Docket Number: Ela Motors Ltd v McCrudden, Ex parte Hoepper [1973] PNGLR 436
• Court: Supreme Court
• Year: 1973
• Judgement Number: FC53

Full Title: Ela Motors Ltd v McCrudden, Ex parte Hoepper [1973] PNGLR 436; In the Matter of an Application for a Writ of Prohibition and In the Matter of the Industrial Relations Act 1962-1970 and the Industrial Organizations Act 1962-1971 and In the Matter of a Ruling made or delivered at Port Moresby on 29 June 1973 by Francis Patrick Joseph McCrudden, Esq, Arbitration Tribunal, in which Anthony George Hoepper was Claimant and Ela Motors Limited was Respondent (1973) FC53

Full Court: Minogue CJ, Clarkson J, Prentice J

Judgment Delivered: 16 October 1973

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ELA MOTORS LTD.

V

MCCRUDDEN EX PARTE HOEPPER

Port Moresby

Minogue CJ Clarkson Prentice JJ

27 August 1973

16 October 1973

PREROGATIVE WRITS — Prohibition — Industrial tribunal — Jurisdiction — Industrial dispute — Whether claim for pro rata back pay industrial dispute — Industrial Relations Ordinance, 1962-1970, ss. 23, 27 — Industrial Organizations Ordinance, 1962-1971, s. 4 (1)

INDUSTRIAL LAW — Tribunal — Jurisdiction — Industrial dispute — Whether claim for pro rata leave pay industrial dispute — Industrial Relations Ordinance, 1962-1970, ss. 23, 27 — Industrial Organizations Ordinance, 1962-1971, s. 4 (1)

H. was employed by Ela Motors Ltd. on 25th November, 1967 — his written contract of employment providing that if he remained in service he would be entitled to holiday leave amounting to two months after each two year period of continuous service. H. completed one two year period and took holiday leave. In 1972 he resigned, claimed "pro rata leave pay for the nine months I have worked after the completion of my first two years". The claim was refused then referred to the Secretary for Labour on the basis that the interpretation of the contract was disputed and that "the refusal of the Company to grant pro rata leave is harsh, unjust and unreasonable and is completely contrary to accepted industrial principles", and subsequently came before the respondent appointed as a Tribunal to arbitrate the "industrial dispute" said to exist between H. and the Company.

On the return of an order nisi for prohibition directed to the Tribunal,

Held:

(1) The existence of an industrial dispute as defined in s. 4 (1) of the Industrial Organizations Ordinance was a necessary prerequisite to the Tribunal having jurisdiction to hear and determine the matter in dispute.

(2) The effect of the Industrial Organizations Ordinance, 1962-1971 and ss. 23 and 27 of the Industrial Relations Ordinance, 1962-1970, is that a tribunal is empowered to make an award deciding the industrial matters in issue in an industrial dispute arising from a contract of employment and arising within three months after the termination of that contract and that the definition of industrial dispute in s. 4 (1) of the Industrial Organizations Ordinance, 1962-1971, is wide enough to cover a disputed claim for payment of pro rata recreational leave whether it is alleged that the payment is a present legal entitlement or not: the power is to go to the actual matters in dispute, irrespective of the actual description of the dispute (s. 23).

(3) Accordingly the Tribunal had jurisdiction and the order nisi should be discharged.

Prohibition

This was the return of an order nisi for prohibition sought against Mr. F. P. J McCrudden acting as an Arbitration Tribunal under the Industrial Relations Ordinance. Following a submission before the Tribunal that there was no industrial dispute the Tribunal ruled that it had jurisdiction to determine the dispute; further proceedings as were then adjourned and the application for a writ of prohibition made.

Counsel

G. D. Needham Q.C. and R. Wood, for the prosecutor.

P. White, for the respondent (Tribunal).

W. A. Lalor, for the intervener (Hoepper).

Cur. adv. vult.

16 October 1973

MINOGUE CJ: I agree that this order nisi for prohibition should be discharged for the reasons propounded by my brother Clarkson.

CLARKSON J: This is the return of an order nisi for prohibition which is sought against Mr. F. P. J McCrudden acting as an Arbitration Tribunal established under the Industrial Relations Ordinance.

The facts as I now set them out are not in dispute.

Mr. A. G. Hoepper was engaged by the prosecutor Ela Motors Ltd. as a motor mechanic. The original negotiations with Mr. Hoepper were conducted in Brisbane by Burns Philp and Company Limited as agent for Ela Motors Ltd. The proposed terms and conditions of employment were set out in a letter dated 27th November, 1969, addressed by Burns Philp and Company Limited to Ela Motors Ltd. which contained the endorsement "Correct A. Hoepper". Employment was to commence "from the date of completing his engagement on his arrival in Port Moresby" and the letter carries the further endorsement "confirmed at Port Moresby this 27th day of November, 1969", signed for the manager of Ela Motors Ltd. and by Mr. Hoepper.

It is unnecessary to set out all the details. The provision relevant to these proceedings was as follows:

"Mr. Hoepper has been advised that if he remains in the service, he will be entitled to holiday leave amounting to two months after each completed two-year period of continuous service. A free passage will be granted to him in one of Burns Philp's vessels or by air at the Company's option to his original port of embarkation and return to the Territory on the occasion of the above mentioned leave, provided always that there will be no return passage granted if he is leaving the Company's employ at the expiration of such leave."

Mr. Hoepper commenced his employment on or about 26th November, 1969, and resigned on 31st October, 1972. He had in the meantime been granted two months' leave after he had served for two years.

The position as described by Mr. Hoepper at the time his employment terminated was as follows:

"No provision was made in my contract for pro rata leave if the contract was terminated before the completion of two years, but I believed that I was entitled to pro rata leave pay for the nine months I had worked after the completion of my first two years and requested this from employees of the Company."

On 31st October, 1972, after his employer had again refused to make any payment for pro rata recreational leave Mr. Hoepper reported the matter to the Department of Labour and "requested that action be taken to obtain pro rata leave money for me".

On 15th November, 1972, the industrial advocate for the Public Service Association wrote to the Secretary for Labour saying that he was acting on behalf of Mr. Hoepper "who is a member of the PSA" and wished to report the existence of an industrial dispute. The relevant passage in this letter is as follows:

"1. He signed a contract with the Company which provided for certain conditions but none of these conditions made specific reference to the question of pro rata recreation leave should he leave the service of the Company within the period of the contract.

2. Mr. Hoepper recently gave the required notice of resignation to the Company which was accepted and he has subsequently been appointed to a position in the Department of Public Works. Under the terms of his contract, he was required to repay to the Company the full amount of his return passage from leave, and this he has done.

3. The Company refused, however, to grant any pro rata recreation leave and gives as its reason that the terms of the contract provided for recreation leave only after the completion of each two years of service.

On behalf of Mr. Hoepper, the Association disputes this interpretation and is of the opinion that the refusal by the Company to grant pro rata leave is harsh, unjust and unreasonable and is completely contrary to accepted industrial principles. I have taken the matter up with the Executive Director of the Employer's Federation, but he has informed me that the Company is not prepared to change its attitude. The Association is of the opinion that Mr. Hoepper is entitled to pro rata payment for recreation leave, calculated at the rate of three weeks per annum and his second period of contract service is less than 12 months."

This is a convenient point to pose one of the questions argued before us. Is Mr. Hoepper's representative saying that on the proper interpretation of the contract Mr. Hoepper is legally entitled to pro rata payment or is he saying that Mr. Hoepper whilst having no legal entitlement ought to be granted such payment because to refuse it would be harsh, unjust, unreasonable and contrary to accepted industrial principles, or, perhaps, is he saying both?

On 15th December, 1972, the Secretary for Labour delegated his powers to Mr. R. R. E. Field "in relation to a certain industrial dispute which has arisen between Anthony George Hoepper and Ela Motors Ltd., Port Moresby, concerning a claim for payment of moneys due for pro rata recreation leave" and following the statutory procedure provided Mr. Field on 18th December, 1972, called on Ela Motors Ltd. "to enter into negotiations...