Kiribati Shipping Union v Kiribati Shipping Services Ltd - judgment [2003] KIHC 184; Civil Case 18 of 2002 (17 February 2003)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Civil Case 18 of 2002

Between:

KIRIBATI SHIPPING UNION
Plaintiff

And:

KIRIBATI SHIPPING SERVICES LTD
Defendant

For the Petitioner: Mr Banuera Berina
For the Respondent: Mr Birimaka Tekanene

Date of Hearing: 17 February 2003

JUDGMENT

On 24 February 1999 the Arbitrator made an award final and binding, pursuant to Section 14(1) of the Industrial Relations Code. On 26 October 2001 the Arbitrator made a second award clarifying certain matters. As set out in the Originating Summons they were:-

Interpretation To Arbitrator's Award Delivered on 24/02/99 as referred to findings (3), "that workers demand on overtime be reflected and addressed in the new revised condition of service". In this particular instance there are three things required this include:

(a) the present workers condition of service should be revised in order to facilitate the payment of overtime to all Sea Going Personnel working for KSSL.

(b) That overtime payment should be made payable to KSSL Sea Going Personnel.

(c) that payment of overtime should be made effective from the time the new revised Workers Condition of Service is completed.

Since then the defendant has omitted to comply with the awards.

On 7 May 2002 the plaintiff took out a summons "asking for determination of certain questions:-

(1) Whether or not the Award made it obligatory for the Defendant to revise its conditions of service so that overtime allowance is made payable to all sea going personnel.

(2) If so, whether or not the Defendant has the duty to revise its conditions of service within a reasonable period after the making of the award.

(3) If so, whether or not a period over 6 months taken by the Defendant to revise its conditions of service is reasonable.

(4) If unreasonable, whether or not, by its delay, the Defendant has acted and is continuing to act, in breach of the terms of the award.

All Mr Tekanene could say was that his client was having difficulty in complying, either because of administrative or financial problems. I am not sure which and it does not matter. Parties to an award are bound by it (Section 14(4) of the Code): they must comply with its terms unless it is varied by a subsequent award or by agreement. There has been neither subsequent award nor agreement between the parties. The defendant is bound to comply and should have complied long before this.

The answers to the questions in the summons are:-

(1) Yes
(2) Yes
(3) Not reasonable
(4) The defendant is in breach

Mr Tekanene could advance no reasons on behalf of his client why I should not make the following declarations:-

(1) That the Defendant was obliged by the award of the Arbitrator, made on or about 26^th October 2001 to revise its conditions of service so that overtime allowance is made payable to all sea going personnel.

(2) That the defendant has the duty to revise its conditions of service within a reasonable period after the award is made.

(3) That the period of over 6 months taken by the Defendant to revise its conditions of service is unreasonable.

(4) That by its delay, the Defendant has acted and is continuing to act in breach of the terms of the award and ought to comply with the same forthwith and that all allowances are due from
7 May 2002 and payable within 14 days.

I make the declarations.

Dated the day of February 2003

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE