Steamships Trading Co Ltd v Dandi; Re James Taylor Skedden

• Jurisdiction: Papua New Guinea
• Judge: Frost CJ, Prentice DCJ, Williams J
• Judgment Date: 26 July 1976
• Citation: [1976] PNGLR 303
• Court: Supreme Court
• Year: 1976
• Judgement Number: SC100

Supreme Court: Frost CJ, Prentice DCJ, Williams J

Judgment Delivered: 26 July 1976

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

STEAMSHIPS TRADING COMPANY LIMITED

V

DANDI, RE SKEDDEN

Waigani

Frost CJ Prentice DCJ Williams J

23 June 1976

26 July 1976

PREROGATIVE WRITS — Prohibition — Industrial tribunal — Jurisdiction — Industrial dispute — Claim within three months after termination of contract of employment for pro-rata leave back pay upon terms more beneficial to the employee than as provided in the contract held to be industrial dispute — Industrial Relations Act, 1962-1971, ss. 23, 27 — Industrial Organizations Act, 1962-1973, s. 4 (1)

Section 4 (1) of the Industrial Organizations Act 1962-1973 provides where relevant:

" 'industrial dispute' means a dispute or difference between--

(a) an employer and an employee or employees; connected with an industrial matter and includes--

...

(g) A dispute arising from a contract of employment the particulars of which are contested by either party to that contract within 3 months after the termination of the contract."

INDUSTRIAL LAW — Tribunal — Jurisdiction — Industrial dispute — Claim within three months after termination of contract of employment for pro-rata leave back pay upon terms more beneficial to the employee than as provided in the contract, held to be industrial dispute — Industrial Relations Act, 1962-1971, ss. 23, 27 — Industrial Organizations Act, 1962-1973, s. 4 (1)

Section 4 (1) of the Industrial Organizations Act 1962-1973 provides where relevant:

" 'industrial dispute' means a dispute or difference between--

(a) an employer and an employee or employees; connected with an industrial matter and includes--

...

(g) A dispute arising from a contract of employment the particulars of which are contested by either party to that contract within 3 months after the termination of the contract."2.

S. was employed by Steamships Trading Company Limited under a written staff agreement dated 21st December, 1973, which provided for two calendar months leave with full pay at the expiration of each two year period of continuous satisfactory service, and further provided that if the employee left his employment he would be entitled to pro-rata leave only after twelve months' service, calculated on the basis of three weeks leave per year. On 30th November, 1974, S. resigned his position and claimed pro-rata leave for the period of his employment, which was refused. The appropriate procedure having been taken under the Industrial Relations Act 1962-1973, the matter was referred to the Industrial Tribunal which held that it had jurisdiction to hear and determine the matter.

On the return of an order nisi for prohibition directed to the Tribunal, and granted on the grounds that the Tribunal had no jurisdiction in that: (a) at no material time did any industrial dispute exist; and (b) the matter before the Tribunal was not an industrial matter;

Held

(1) The Industrial Relations Act 1962-1971 and the Industrial Organizations Act 1962-1973, properly construed, do not preclude an industrial dispute arising where an individual employee seeks simply to overturn the clear terms of an employment contract freely entered into.

Ela Motors Ltd. v. McCrudden; Ex parte Hoepper, [1973] P.N.G.L.R. 436 followed.

(2) The expression "particulars of a contract" used in s. 4 (1) (g) p.3033 of the Industrial Organizations Act 1962-1973 includes the term of a contract, and a dispute in which a claim is made for the variation of a term providing for pro-rata entitlement of recreation leave is a plain case of a dispute arising from a contract of employment in which that term or "particular" is "contested". The word "contested" in relation to "the particulars of the contract", cannot further delimit the ambit of a "dispute", for it is to be given the meaning appropriate to the range of matters in issue to be decided by the Tribunal. It thus includes a contest going beyond legal entitlement, and extends to a claim, such as the present one, that the term of the contract in question is "harsh in the light of prevailing conditions for the majority of workers".

Ela Motors Ltd. v. McCrudden; Ex parte Hoepper, [1973] P.N.G.L.R. 436 applied.

(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. P. R. Dandi, acting as an Arbitration Tribunal under the Industrial Relations Act 1962-1971. The Tribunal having held that it had jurisdiction to entertain the matter before it, an order nisi was sought and granted on the grounds that the Tribunal had no jurisdiction in that (a) at no material time did any industrial dispute exist, and (b) the matter before the Tribunal was not an industrial matter.

Counsel

J. A. Griffin, for the prosecution: There is no "industrial dispute" within the meaning of s. 4 (1) of the Industrial Organizations Act; there can be no dispute where there is no "contest" as to the "particulars" of the contract. The claim was not made until the employment relationship was terminated and in any event, an industrial dispute can never arise when an individual employee seeks simply to overturn the clear terms of an employment contract which he has freely entered into. The mere fact that the Industrial Relations Act and the Industrial Organizations Act make it possible for an "industrial dispute" to arise between an individual employee and an individual employer is not sufficient to justify such an unusual result. A "matter" does not become an "industrial matter" or the subject of an "industrial dispute" simply because it is a matter with respect to which persons who are employers and employees are disputing. (R. v. Kelly (1950) 81 C.L.R. 64 at p. 85).

J. E. Byrne, for the respondent: The Arbitration Tribunal has jurisdiction to hear this case because there is an "industrial dispute" within the meaning of s. 4 (1) of the Industrial Organizations Act. The dispute is between an employer and an employee and it arose from a contract of employment the particulars of which were contested within three months after the termination of that contract. The particulars of that contract are being contested: it is in reality an application to have one of the particulars of the contract varied. The Legislature in enacting s. 4 (i) (g) envisaged industrial disputes occurring after contracts of employment had ended, even if these amounted to a claim by an individual to have the terms of the contract altered or re-written; and the "fairness or propriety of a claim has nothing to do with the question whether it is capable of forming a dispute as to an industrial matter": (R. v. Findlay; Ex parte Commonwealth Steamship Owners' Association (1954) 90 C.L.R. 621 at p. 631.

Cur. adv. vult.

26 July 1976

FROST CJ: This is the return of an order nisi for prohibition which is sought against Mr. P. R. Dandi acting as a Tribunal established under the Industrial Relations Act 1962.

The facts of the case, as is stated in the decision of the Tribunal, are not in dispute. Mr. J. T. Skedden entered into a staff agreement dated 21st December, 1973, with the prosecutor, Steamships Trading Company Limited, for employment as an accountant. In addition to the usual heads of agreement, provision was made for two calendar months' leave with full pay at the expiration of each two-year period of continuous satisfactory service (para. 5). The agreement then went on to provide, "If you leave the Company, you will be entitled to pro-rata leave only after twelve (12) months' service, calculated on the basis of three (3) weeks' leave per year."

Mr. Skedden duly tendered his resignation, which was accepted, to take effect from 30th November, 1974, which meant that his service was less than the requisite period of twelve months under the contract. The fact that he then worked for the prosecutor in a casual capacity until 10th December, 1974, does not appear to have any relevance to the issue. In his statement dated 13th December, 1975, Mr. Skedden claimed from the prosecutor pro-rata leave pay for the period of his employment. In addition to setting out the facts relating to his employment, and also the claim, the statement included the following:

"4. That, although the Staff Agreement did not allow for pro-rata leave pay until the completion of one year's service, I felt that this provision was harsh in the light of the prevailing conditions for the majority of workers in this country whereby they are granted pro-rata leave pay after six month's service.

5. That, relying on the case of Ela Motors Ltd. v. Hoepper, I have brought this matter to Arbitration after failing to reach agreement with Steamships Trading Company Ltd."

In the case referred to in the above statement, following the decision of the Full Court of the pre-Independence Supreme Court in Ela Motors Ltd. v. McCrudden; Ex parte Hoepper [1973] P.N.G.L.R. 436 upholding the jurisdiction of the Tribunal, a...