John Mahuk v Helen Saleu, Industrial Registrar, Department of Labour and Industrial Relations and George Vaso, Secretary, Department of Labour and Industrial Relations (2011) N4338

• Jurisdiction: Papua New Guinea
• Judge: Davani, J.
• Judgment Date: 15 July 2011
• Court: National Court
• Citation: (2011) N4338
• Docket Number: OS NO. 325 OF 2010
• Year: 2011
• Judgement Number: N4338

Full Title: OS NO. 325 OF 2010; John Mahuk v Helen Saleu, Industrial Registrar, Department of Labour and Industrial Relations and George Vaso, Secretary, Department of Labour and Industrial Relations (2011) N4338

National Court: Davani, J.

Judgment Delivered: 15 July 2011

N4338

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 325 OF 2010

BETWEEN:

JOHN MAHUK

Plaintiff

AND:

HELEN SALEU, INDUSTRIAL REGISTRAR,

DEPARTMENT OF LABOUR AND INDUSTRIAL RELATIONS

First Defendant

AND:

GEORGE VASO, SECRETARY,

DEPARTMENT OF LABOUR AND INDUSTRIAL RELATIONS

Second Defendant

Waigani: Davani, J

2011: 11th, 15th July

INDUSTRIAL ACTION – Voting of Union executive – eligibility criteria – determined by Union’s Constitution

INDUSTRIAL ACTION – Industrial Registrar – role and functions of Industrial Registrar – nomination of Union executive – conduct of secret ballot – Industrial Registrar supervises election – s.61 of Industrial Organizations Act.

Facts

The plaintiff, a former member and President of the Papua New Guinea Maritime and Transport Workers Union (‘Union’), sought to stand as President in the upcoming Union elections. However, at that time he was not a member of the Union, nor was he an employee of any of the Organizations stated in Rule 4 of the Union’s Constitution.

When the secret ballot was conducted, the Industrial Registrar who was supervising the elections, noted that the plaintiff had not fulfilled the eligibility criteria set in Rule 4 of the Union’s Constitution. She refused to accept the plaintiff’s nomination as a candidate for the presidential position.

The plaintiff filed these proceedings.

Issues

(i) Whether the first defendant has powers to interfere with the election process of a registered Union?

(ii) Whether the Industrial Registrar’s supervisory role under s.61(3) of the Industrial Organizations Act 1962 includes a right or duty on the Industrial Registrar to determine whether or not the plaintiff is eligible to contest the Union’s Elections and/or to reject his nomination?

Reasons

The Industrial Registrar is empowered by s.61 of the Industrial Organizations Act to supervise the Union’s Elections from the beginning till the end of the process. If a candidate is not a member of the Union, he or she cannot stand for an election to be a nominee for the Union’s executive or just to be a member because he or she is not eligible.

Orders

1. The plaintiff’s claim is dismissed in its entirety.

2. The plaintiff shall pay the first and second defendants’ costs of the proceedings.

Case Authority

· PNG Power Limited v. PNG Energy Workers Association and all its members, Industrial Registrar and The Independent State of Papua New Guinea, OS 870 of 2005

Legislation

· Industrial Organizations Act 1962.

· Interpretation Act 1975

Counsel:

T. Waisi, for the Plaintiff

R. Puka, for the first and second Defendants

DECISION

15th July, 2011

1. DAVANI .J: Before me for hearing is Originating Summons filed on 22nd June, 2010 by Waisi Lawyers for and on behalf of the plaintiff. The Originating Summons seeks the following orders;

“(1). An Order in the nature of a declaration that he is a member of the Papua New Guinea Maritime & Transport Workers Union pursuant to Section 33 of the Industrial Organizations Act 1962.

(2) In the alternative, an order in the nature of a declaration that his membership acceptance by the Execution Union of the Papua New Guinea Maritime & Transport Workers Union is valid and for all purposes legal.

(3) An order in that nature of a declaration that he is eligible to contest the Papua New Guinea Maritime & Transport Workers Union Executive Elections in the Port Moresby sector.

(4) Costs of the proceedings.

(5) Any such further or other orders as the Court deems fit.”

2. The application is opposed by the first and second defendants.

3. The plaintiff’s application is supported by several affidavits. The defendants also have filed affidavits in response to those affidavits. I will refer to those affidavits throughout, where appropriate to do so.

Backgrounds

4. In 2007, the plaintiff was elected by ballot to be the President of the National Council of the Papua New Guinea Maritime & Transport Workers Union (the ‘Union’). He was at that time a financial member of the Union and was employed by Consort Express Lines Limited (‘Consort’).

5. On or about June, 2009, he resigned from his employment with Consort. He then ceased to be a financial member of the Union.

6. Thereafter, the National Council of the Union allowed the plaintiff to continue as President to oversee and supervise the handover/takeover by the newly elected President of the Union, to be elected at the Union’s National Council Meeting scheduled in or about 1st January, 2010. The plaintiff then, continued to perform the functions of a President. It is not disputed that he was not a financial member of the Union at that time.

7. In its pre-election processes, the Union called for nominations on 29th March, 2010. These nominations closed on 17th May, 2010. The plaintiff nominated to contest those elections on 31st March, 2010.

8. It was during the nomination process and whilst screening the nominees that the first defendant Industrial Registrar (‘Industrial Registrar’) discovered that the plaintiff was not a financial member of the Union. The Industrial Registrar then advised the Union that because the plaintiff was not a financial member, then he should not nominate to contest the Union’s Executive Elections. As a result of that decision, the plaintiff filed these proceedings.

Analysis of the evidence and the law

9. The plaintiff seeks several Declarations in these proceedings. That he is a member of the Union pursuant to s.23 of the Industrial Organizations Act. Alternatively, a declaration that his membership acceptance to the Union is valid and legal and a further declaration that he is eligible to contest the Union’s Executive Elections in the Port Moresby sector.

10. He relies on s.38 of the Industrial Organizations Act which reads;

“38. Disputes as to membership

(1) Where a question or dispute arises as to the entitlement under this Act of a person to be admitted as, or to remain, a member of an industrial organization –

(a) the person; or

(b) a person who is or desires to become the employer of the person; or

(c) the organization; or

(d) the Registrar; or

(e) any other interested person,

may apply to the National Court for a declaration as to his entitlement to membership of the organization.

(2) The National Court –

(a) has jurisdiction to hear and determine a question or dispute arising under Subsection (1); and

(b) may, after hearing all interested parties and notwithstanding anything in the rules of the industrial organization concerned, make such declarations or orders as it thinks proper in relation to the question or dispute.

(3) The orders that the National Court may make under Subsection (2) include an order requiring the industrial organization concerned to treat the person concerned as a member of the organization.

(4) On the making of an order under Subsection (3) or as otherwise specified in the order, the person concerned is, by force of this Act, a member of the organization, subject to payment of any moneys properly payable in respect of membershp”

11. The first defendant submits that as Industrial Registrar, she has properly exercised her powers under s.61 of the Industrial Organizations Act to supervise the elections, one of which is to screen and weed out persons who are not eligible to nominate. She submits that the plaintiff was not eligible to nominate, which was why he excluded from the list of nominees who stood for the Union’s election for the position of President.

12. Section 61 of the Industrial Organizations Act reads;

“61. Secret ballots

Where, in accordance with this Act, a matter is required to be decided by secret ballot, the ballot shall be conducted –

(a) by the Electoral Commission and in such manner as he directs; and

(b) under the supervision of the Registrar,

and shall, subject to the rules of the industrial organization concerned, be decided by a majority of votes.”

13. The provision governing the eligibility criteria for union members is Rule 4 of the Union’s Constitution, which reads;

“Rule 4: CONSTITUTION

The Union shall be constituted of any unlimited number of persons engaged in the operation of loading and discharging ships and includes the actual movements of goods on, to, or from a vessel, wharf, pier, jetty, shed, lighter or any place in the vicinity of loading and discharging operations for the purpose of putting goods at a point or points within that place so as to facilitate the ultimate actual loading or discharging and/or ultimate removal from that place, and also includes the stacking or arranging within, that place of loading or discharging so as to further that ultimate loading or...