Guise Kula v Emma Faiteli

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J
• Judgment Date: 26 January 2017
• Citation: (2017) N6594
• Court: National Court
• Year: 2017
• Judgement Number: N6594

Full : OS No 301 of 2015; Guise Kula, General Secretary, Public Employees Association of Papua New Guinea v Emma Faiteli, President of Public Employees Association of Papua New Guinea and Public Employees Association of Papua New Guinea (2017) N6594

National Court: Kandakasi, J

Judgment Delivered: 26 January 2017

N6594

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE

O. S. No 301 of 2015

BETWEEN

GUISE KULA, General Secretary, Public Employees Association of Papua New Guinea

Plaintiff

AND:

EMMA FAITELI, President of Public Employees Association of Papua New Guinea

First Defendant

AND:

PUBLIC EMPLOYEES ASSOCIATION OF PAPUA NEW GUINEA

Second Defendant

Waigani: Kandakasi, J.

2016: 16th August

: 18th November

2017: 11th and 26th January

EMPLOYMENT - Employment with an industrial organisation as general secretary - Employee blowing the whistle on employer by writing to the Industrial Registrar highlighting possible invalid provisions in the employer's constitution and election or appointment of its president under invalid rule - Employee terminated for blowing the whistle rather than taking meaningful steps to fix the problem highlighted - Employee is entitled to protection as a whistle blower - Termination unlawful and with no force of effect and employee entitled to reinstatement or full payout of the balance of his contract.

INDUSTRIAL ORGANISATIONS – Constitutions of – Need for Constitutions of industrial organisation to be consistent with requirement of the Industrial Organisations Act (Chp.173) – Inconsistent parts of an industrial organisation’s constitution invalid - Invalid parts struck down - PNG Constitution ss. 9 and 10 and Industrial Organisation Act, ss. 1, 36, 37, 38 and 39

INDUSTRIAL ORGANISATIONS – Officers of – Eligibility for – Need to be engaged or employed in the relevant industry and be financial members - Failure to meet these requirements – Ineligible to be member of an industrial organisation and to be an officer of such an organisation - Unlawful for an ineligible person to continue to be an officer - Industrial Organisation Act, ss. 1, 36, 37, 38 and 39.

STATUTORY INTERPRETATION – Industrial Organisations Act - Officers of industrial organisation – Whether the president or the chief executive officer of an industrial organisation is an offer? – The chief executive officer and persons involved in the running of an industrial organisation are officers – Qualifications to be an officer – Being “engaged” or “employed” in the relevant industry unless the industrial registrar allows and being a financial member – Failure to meet these requirements – Disqualification from being an officer – Sections 1, 37, 36, 38 and 39 of the Industrial Organisations Act.

WORDS AND PHRASES – “engaged” - Within the context of s. 39 (1) (b) of the Industrial Organisations Act means “employed”.

Papua New Guinea Cases cited:

An Application of the NCDC [1987] PNGLR 339

Henry Torobert v. Mary Torobert (2012) SC1198

Inakambi Singorom v. John Kalaut [1985] PNGLR 238

In The Matter of The Lawyers Act 1986; In The Matter of an Application by Roger Gill Maguire for Admission as a Lawyer (2003) N2466

John Mahuk v. Helen Saleu (2011) N4338

Koang No 47 Ltd v. Monodo Merchants Ltd (2001) SC675

Lae Rental Homes Ltd v. Viviso Seravo (2003) N2483

Lands concerning Section 30 Allotment 7 Mr Hagen [1995] PNGLR 31

Moge Enga and Kiupi Group In the matter of a Decision of the Minister for

Pius Sankin v. Papua New Guinea Electricity Commission (2002) N2257

Nathan Koti, & Ors v. His Worship David Susame, Nabura Morrisa & Ors (10th January 2017) N6586

Paul Bari v. Chairman, Governing Council, St. Paul’s Teacher’s College, Vunakanau & Ors (1994) N1253

Philip Takori v. Simon Yagari (2008) SC905

Re Validity of Valued Added Tax Act 1998: SCR No 1 of 2000; Special Reference Pursuan to Constitution Section 19 by Morobe Provincial Government (2002) (2002) SC693

Re Moresby North East Parliamentary Election (No.1): Goasa Damena v. Patterson Lowa [1977] PNGLR 424

SCR No 4 of 1990: Re Petition of Michael Somare [1991] PNGLR 265

Toby Bonggere v. Papua New Guinea Law Society (2003) N2361

The State v. Francis Tigi (2013) N5307

The State v. John Konga (2014) N5639

Willie Edo v. Hon Sinai Brown (2006) N3071.

Overseas Cases cited:

Blackburn v. Flavelle (1881) 6 App. Cas. 628, 634

Department of Homeland Security v. Robert J. MacLean (Supreme Court of the United States No. 13–894, 574 U. S. (2015)

Other sources cited:

Craies on Statute Law, 7th ed., pp. 259-260

Counsel:

O. Ona, for the Plaintiff

R. Tuva, for the Defendants

26th January, 2017

1. KANDAKASI J: On 7th June 2006, the Public Employees Association (PEA) had its constitution or rules changed to allow for a full time president. Upon being elected president, Emma Faiteli (Faiteli) resigned from her employment with the Department of Personal Management (DPM) to take up the position with the PEA as its president. She also ceased to keep her membership with the PEA current as an employee in the public sector. The Plaintiff, Mr. Guise Kula (Kula) argues that all this was contrary to ss. 36, 39 and other relevant provisions of the Industrial Organisations Act, Chp.173 (the IOA) which governs all industrial organisations in the country. This he argues is the case because Faiteli is not a person who is employed in the industry and she is not a current member of the PEA. Faiteli takes issue with Kula’s standing to bring this proceeding and does not in any meaningful way address Kula’s main arguments.

Relevant Issues

2. Pursuant to a Statement of Agreed and Disputed Facts and Issues for Trial (SADF&IT) filed on 17th August 2015, the parties agreed that the following are the relevant issues for this Court’s consideration and determination:

“1. Whether the plaintiff has legal standing to commence the proceedings against the Defendants?

2. Whether the Public Employees Association is an Industrial Organisation established under the Industrial Organisation Act; and

3. Whether the position of President of the Public Employees Association of Papua New Guinea is an officer within the meaning of Section 39 of the Industrial Organisation Act 1962; and

4. Whether the Constitution and Rules of the Public Employees Association of Papua New Guinea as redrafted and adopted as of 07th June 2006 was enacted in accordance with Section 48 of the Industrial Organisation Act 1962 and :-

(a) Whether that Constitution and Rules of PEA is subject to that legislation; and

(b) Whether any provisions of the Constitution and Rules which are inconsistent with the legislation are , to the extent of their inconsistency, invalid and ineffective;

5. Whether Rule 30(a) of the Constitution and Rules of the Public Employees Association of Papua New Guinea as redrafted and adopted as of 07th June 2006, is inconsistent with Section 39 of the Industrial Organisation Act 1962 and is therefore invalid and ineffective; and

6. Whether, pursuant to Section 36 of the Industrial Organisation Act 1962 and Rule 7 of the Constitution and Rules of the Public Employees Association of Papua New Guinea as redrafted and adopted as of 07th June 2006, a person is a current member of the industry meaning the Public Service or other public body; and

7. Whether, pursuant to Section 36 of the Industrial Organisation Act and Rule 14 of the Constitution and Rules of the Public Employees Association of Papua New Guinea as redrafted and adopted as of 07th June 2006, a person is not eligible to remain and shall cease to be a member of officer of the second Defendant once he ceases to contribute financially towards the second defendant for a required period of time; and

8. Whether the first defendant had ceased to be engaged by the Public Service and therefore pursuant to Section 36 of the Industrial Organisations Act 1962 and Rule 7 of the Constitution and Rules of the Public Employees Association of Papua New Guinea as redrafted and adopted as of 07th June 2016, the first Defendant is not eligible to be a member or officer of the second defendant; and

9. Whether the first defendant ceased to be a financial member of the second defendant for more than 60 days and therefore pursuant to Section 36 of the Industrial Organisation Act and Rule 14 of the Constitution and Rules of the Public employees Association of Papua New Guinea as redrafted and adopted as of 07th June 2006, the first Defendant is no longer a member or officer of the Second Defendant.”

3. Some of these issues like the second one should not and are correctly not in any serious contest between the parties. The matters that can and are in issue are the following:

1. Does Kula have the necessary legal standing or locus standi to commence and pursue this proceeding?

2. Is the President of the PEA an “officer” within the meaning of s. 39 of...