Steamships Trading Company Ltd v Joel, Amalgamated General Workers Union and Bunam Lambert Damon [1991] PNGLR 133

• Jurisdiction: Papua New Guinea
• Judge: Brown J
• Judgment Date: 26 April 1991
• Judgement Number: N981
• Year: 1991
• Citation: [1991] PNGLR 133
• Court: National Court

Full Title: Steamships Trading Company Ltd v Joel, Amalgamated General Workers Union and Bunam Lambert Damon [1991] PNGLR 133

National Court: Brown J

Judgment Delivered: 26 April 1991

N981

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

STEAMSHIPS TRADING CO LTD

V

JOEL AND OTHERS

AND AMALGAMATED GENERAL WORKERS UNION

AND DAMON (INDUSTRIAL REGISTRAR)

Waigani

Brown J

11 April 1991

26 April 1991

INDUSTRIAL LAW — Industrial Tribunal — Jurisdiction — "Industrial dispute" — Prerequisite to jurisdiction — Request for reasons for termination of employment — Not contesting of particulars of contract of employment — Not industrial dispute — Industrial Relations Act (Ch No 174), s 25 — Industrial Organizations Act (Ch No 173), definition section.

EMPLOYMENT LAW — Contract of employment — Not in writing — What terms applicable — Power to terminate — Common law power to terminate at will — Subject to statutory powers as to notice — Employment Act (Ch No 373) — Port Moresby Common Rule 1973, cl 8.

The Industrial Relations Act (Ch No 174), s 25, gives to the Industrial Tribunal jurisdiction to hear a complaint which amounts to an "industrial dispute" within the definition section of the Industrial Organizations Act and which has been reported in accordance with the provisions of the Act.

The Industrial Organizations Act (Ch No 173), defines "industrial dispute" as meaning:

"... a dispute or difference between:

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

(b) ...

(c) ...

(d) ...

(e) a threatened, impending or probable dispute, and

(f) a situation likely to give rise to a dispute; and

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

A company terminated the services of two unskilled workers on the ground that their services were no longer required. When the workers went to their Union to request particulars of the reasons for dismissal, the Union took proceedings before the Industrial Tribunal to settle the "industrial dispute" and the workers were ordered to be reinstated.

In proceedings for judicial review or relief in the nature of certiorari by the company,

Held

(1) The existence of an "industrial dispute" is a prerequisite to the exercise of jurisdiction by the Industrial Tribunal.

(2) A request for particulars of the reasons for termination of employment cannot amount to a contesting of the particulars of the contract of employment such as to constitute an "industrial dispute" for the purposes of s 25 of the Industrial Organizations Act.

(3) Accordingly, the Industrial Tribunal had acted without jurisdiction and its decision to reinstate should be quashed.

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; [1969] 1 All ER 208, applied.

Re Racal Communications Ltd [1981] AC 374 at 383; [1980] 2 All ER 64 at 638, adopted and applied.

(4) (Obiter) The common law principle that an employer may terminate the services of an employee at will applies in Papua New Guinea subject to the requirements of notice or payment in lieu of notice contained in the Employment Act (Ch No 373) and in the Port Moresby Common Rule 1973, cl 8.

Iambakey Okuk v Fallscheer [1980] PNGLR 274, followed.

Ridge v Baldwin [1964] AC 40, considered.

Cases Cited

Anisminic Ltd v The Foreign Compensation Commission [1969] 2 AC 147; [1969] 1 All ER 208.

Condon v National Airlines Commission [1978] PNGLR 1.

Ela Motors Ltd v McCrudden; Ex parte Hoepper [1973] PNGLR 436.

Iambakey Okuk v Fallscheer [1980] PNGLR 274.

M Vasudevan Pillai v Singapore City Council [1986] 1 WLR 1278.

PNG Teachers Association v The State (unreported, National Court decision).

Racal Communications Ltd [1981] AC 374; [1980] 2 All ER 634.

Ridge v Baldwin [1964] AC 40.

Robinson v National Airlines Commission [1983] PNGLR 476.

Judicial Review

This was an application for judicial review by way of originating summons seeking to review the decision of the Arbitration Tribunal and further seeking orders in the nature of certiorari.

Counsel

J Sheppherd, for the plaintiff.

J Puringi, for the defendants.

Cur adv vult

11 April 1991

BROWN J: The plaintiff company, Steamships Trading Company Ltd (herein called Steamships) formerly employed three men, John Tambai, Billy Aisi and Frank Gabi. Mr John Tambai was terminated on 5 October 1988, Mr Billy Aisi was terminated on 1 October 1988 and Mr Frank Gobi was terminated on 26 January 1989. All were terminated on grounds that their services were no longer required. The aggrieved men complained to their union, the Amalgamated General Workers Union. As a result, proceedings were instituted by way of "an industrial dispute" before an Arbitration Tribunal established under the Industrial Relations Act (Ch No 174). That tribunal heard ten days of evidence and arguments between 28 March 1990 and 3 May 1990 before handing down its decisions and awards (the Award) on 14 June 1990. Steamships was aggrieved. The Tribunal ordered reinstatement in each instance. It further ordered reinstatement without loss of entitlements and other benefits from the date of purported termination. The Tribunal said that te employees had been terminated in circumstances that were harsh, unjust and unreasonable. It said:

"1.10 The decision and Award therefore of this Tribunal relating to Mr Aisi do not question nor challenge the common law right of the company to hire and fire. To the contrary it represents the Tribunal's utter disgust in finding that the company had been harsh, unjust and unreasonable in its action, because it had completely failed on all counts to blend its right to hire and fire, with natural justice for Mr Aisi."

"1.11 Based on the above therefore, 'services no longer required' can never be a reason for termination in Papua New Guinea where both the Industrial Relations Act and the Industrial Organizations Act provide the checks and balances against abuses of this employer's right."

Steamships sought and was given leave to seek judicial review of the decision of the Tribunal. It seeks orders in this Court in the nature of certiorari. Counsel who appeared before the Tribunal also appeared before me on this judicial review. Mr Payne for Steamships said that the Tribunal did not have power to order reinstatement. It acted ultra vires its powers. In the alternative he said the Tribunal made errors in law on the face of its record of proceedings and that such errors were so material to a proper and fair consideration that its Awards must be quashed.

Mr Puringi of the State Solicitors Office appeared for the first defendant, the Chairman and members of the Arbitration Tribunal and the third defendant, the Industrial Registrar. He said that the Tribunal had power, exercised it on proper principles, and thus this Court should affirm the Tribunal's Award by dismissing Steamships' application.

The union wrote to the Registrar of the Court in October 1990, after this matter was set down for trial. It said, in effect, despite its notice of intention to defend, that it relies on the argument of the State Solicitor. It presumes that its interests correspond with those of the State? I make no comment on the correctness of that premise. In any event it withdrew from further appearance and presumably will abide the decision of this Court.

The evidence before this Court is that the Tribunal's decisions and determinations comprising some 47 pages. Mr Payne sought to obtain a transcript of the proceedings before the Tribunal but was unsuccessful. Truncated parts of the depositions are included in the Tribunal's reasons where the Tribunal considered it appropriate. Mr Aphmeledy Joel, the Secretary of the Department of Labour and Employment and Chairman of the Tribunal also gave evidence by way of affidavit. He recited his background and experience. He was previously the Permanent Chairman of the Minimum Wages Board; the Industrial Conciliation and Arbitration Tribunal in accordance with the provisions of the Industrial Relations Act (Ch No 174), the Public Services Conciliation and Arbitration Act (Ch No 69) and the Teaching Service and Arbitration Act (Ch No 71). I am satisfied he is experienced in the field of industrial relations and is conversant with the various provisions of the Industrial Relations Act and the Industrial Organizations Act (h No 173). He recounted that, by instrument dated 26 March 1990, the Head of State acting on advice of the National Executive Council established this particular Arbitration Tribunal to deal with an industrial dispute between the Amalgamated General Workers Union and Steamships (respondent) and directed the Secretary for Labour and Employment to refer disputed matters for decision and Award to the Tribunal. The disputed matters were the claims for reinstatement of Messrs John Tambai, Baulana Puipui, Billy Aisi, John Genui, and Frank Gabi to...