PNG Ports Corporation Ltd v PNG Maritime and Transport Workers Industrial Union

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 29 May 2017
• Citation: (2017) N6747
• Court: National Court
• Year: 2017
• Judgement Number: N6747

Full : OS No 520 of 2014; PNG Ports Corporation Limited v Papua New Guinea Maritime and Transport Workers Industrial Union (2017) N6747

National Court: Cannings J

Judgment Delivered: 29 May 2017

N6747

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 520 OF 2014

PNG PORTS CORPORATION LIMITED

Plaintiff

V

PAPUA NEW GUINEA MARITIME AND TRANSPORT WORKERS INDUSTRIAL UNION

Defendant

Waigani: Cannings J

2015: 18 November, 14 December,

2017: 29 May

LAW OF EMPLOYMENT – Industrial Relations – whether members of a union have a right to strike – whether industrial action by stop work or strikes or other means is illegal

REMEDIES – Injunctions and Declarations – whether declaration should be made as to illegality of apprehended industrial action – circumstances in which it is appropriate to grant permanent injunction to restrain illegal activities.

The plaintiff commenced legal proceedings against the defendant (a union) regarding an impending strike by members of the union. A trial was conducted on an amended originating summons by which the plaintiff sought two declarations and two injunctions: (1) a declaration that any industrial action by the defendant or its members, by stop work or other means, which interfered with the plaintiff’s trade or business, is illegal; (2) a declaration that any strike by the defendant or its members, by stop work or other means, which interfered with the plaintiff’s trade or business, is illegal; (3) a permanent injunction to restrain the defendant from inciting the plaintiff’s employees who are members of the union to engage in industrial action; and (4) a permanent injunction to restrain the plaintiff’s employees from engaging in industrial action. A claim by the plaintiff for damages was not pursued. The defendant opposed all relief sought by the plaintiff, arguing that industrial action including strikes, it has taken, and might take in future, is lawful.

Held:

(1) There is no law in Papua New Guinea that makes industrial action by employees including a strike intrinsically illegal. Though an employee has no express right to strike or engage in industrial action, the plaintiff failed to establish that the strike organised by the defendant was illegal or that any future strike action would be illegal.

(2) Employees in Papua New Guinea have an implied right, subject to any express prohibition imposed by law, to engage in non-violent industrial action taken in the context of a genuine industrial dispute (PNG Forest Products Ltd v PNG Forest Products & Workers Union (2015) SC1441). Such a right is properly regarded as part of the fundamental right of all employees to withdraw their labour, recognised by international labour laws and treaties to which PNG is a party, and as an enforcement of the Basic Right of every person to freedom based on law conferred by Section 36(2) of the Constitution and the right to belong to industrial organisations under Section 47 (freedom of assembly and association) of the Constitution.

(3) The declarations sought by the plaintiff had no lawful basis and were refused. For a similar reason, the injunctions sought by the plaintiff were refused. All relief sought by the plaintiff was thus refused.

Cases cited

The following cases are cited in the judgment:

Andrew Kinaram v Vanimo Forest Products Ltd (2011) N4413

Louis Medaing v Ramu Nico Management Ltd (2011) N4340

Pastor Johnson Pyawa v Cr Andake Nunwa (2010) N4143

PNG Forest Products Ltd v PNG Forest Products & Workers Union (2015) SC1441

PNG Maritime College Board v Justin Tonno (2013) N5447

Public Employees Association v Public Services Commission [1988-89] PNGLR 585

Vitus Sukuramu v New Britain Palm Oil Limited (2007) N3124

ORIGINATING SUMMONS

This was a trial in which the plaintiff sought declarations and injunctions regarding industrial action by the defendant union and its members.

Counsel:

D Wood, for the Plaintiff

K Iduhu & H Masiria, for the Defendant

29th May, 2017

1. CANNINGS J: The plaintiff, PNG Ports Corporation Ltd, is a government-controlled corporation responsible for operating Papua New Guinea’s maritime ports. It applies by amended originating summons for declarations and injunctions against the defendant, the PNG Maritime and Transport Workers Industrial Union, to curtail allegedly illegal industrial action, including strikes, by the union and it members.

2. The plaintiff commenced these proceedings in July 2014 when the defendant was preparing to conduct a secret ballot amongst its members to see whether a strike should take place. In 2015 a strike took place, which had the effect of closing down the plaintiff’s operations at the ports of Lae, Port Moresby and Rabaul for two days, on 30 June and 1 July 2015. After being granted an interim injunction that restrained further strike action, the trial of the amended originating summons was conducted.

RELIEF SOUGHT

3. The relief sought by the plaintiff can be summarised as follows:

(1) a declaration that any industrial action by the defendant or its members, by stop work or other means, which interferes with the plaintiff’s trade or business, is illegal;

(2) a declaration that any strike action by the defendant or its members, by stop work or other means, which interferes with the plaintiff’s trade or business, is illegal;

(3) a permanent injunction to restrain the defendant from inciting the plaintiff’s employees who are members of the union to engage in industrial action; and

(4) a permanent injunction to restrain the plaintiff’s employees from engaging in industrial action.

4. The summary is based on paragraphs 1 to 4 of the amended originating summons, which state that the plaintiff claims:

1. Pursuant to the Court’s inherent jurisdiction under Section 155(4) of the Constitution, a declaration that industrial action by the defendant or the employees of the plaintiff who are members of the defendant, by stop work or other means, such as to interfere with the trade or business of the Plaintiff, is illegal and contrary to the common law and the Constitution and the Harbours Act and the respective contracts of employment between the plaintiff and the employees of the plaintiff who are members of the defendant.

2. Further and in the alternative, pursuant to the Court’s inherent jurisdiction under Section 155(4) of the Constitution, a declaration that strike action by the defendant or the employees of the plaintiff who are members of the defendant, by stop work or other means, such as to interfere with the trade or business of the plaintiff, is illegal and contrary to the common law and the Constitution and the Harbours Act and the respective contracts of employment between the plaintiff and the employees of the plaintiff who are members of the defendant.

3. Pursuant to the Court’s inherent jurisdiction under Section 155(4) of the Constitution, a permanent injunction to restrain the defendant forthwith, whether by its servants, officers, agents or otherwise howsoever, from inciting, encouraging, inducing, procuring, persuading, assisting, encouraging, organizing, financing and/or facilitating the plaintiff’s employees, who are members of the defendant, by engaging in industrial action against the plaintiff in the form of a complete stop work in any and all ports in Papua New Guinea (within the meaning of the Harbours Act, Chapter 240) and interfering with the commercial contracts of the plaintiff and interfering with the trade or business of the plaintiff by unlawful means, while all discussion and negotiations concerning the defendant’s log of claims against the plaintiff are conducted and/or determined before an Industrial Arbitration Tribunal.

4. Pursuant to the Court’s inherent jurisdiction under Section 155(4) of the Constitution, a permanent injunction to restrain all employees of the plaintiff, whether by their servants, officers, agents or otherwise howsoever, from inciting, encouraging, inducing, procuring, persuading, assisting, encouraging, organising, financing and/or facilitating all other employees of the plaintiff, in engaging in industrial action against the plaintiff in the form of a complete stop work in any and all ports in Papua New Guinea (within the meaning of the Harbours Act, Chapter 240) and interfering with the commercial contracts of the plaintiff and interfering with the trade or business of the plaintiff by unlawful means, while all discussion and negotiations concerning the defendant’s log of claims against the plaintiff are conducted and/or determined before an Industrial Arbitration Tribunal.

Paragraph 5 of the amended originating summons made a claim for “damages” without elaboration, which was not pursued at the trial.

5. The defendant opposes all relief sought by the plaintiff, arguing that industrial action including strikes, it has taken, and might take in future, is lawful.

APPLICATION FOR DECLARATIONS

6. The plaintiff argues that the industrial action taken by the defendant is illegal and that any future industrial action will be illegal. In support of that argument, Mr...