Ela Motors Ltd v McCrudden; ex parte Hoepper [1973] PGLawRp 730; [1973] PNGLR 436 (16 October 1973)

[1973] PNGLR 436

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

ELA MOTORS LTD.

V

MCCRUDDEN EX PARTE HOEPPER

Port Moresby
Minogue CJ Clarkson Prentice JJ

27 August 1973
16 October 1973

PREROGATIVE WRITS - Prohibition - Industrial tribunal - Jurisdiction - Industrial dispute - Whether claim for pro rata back pay industrial dispute - Industrial Relations Ordinance, 1962-1970, ss. 23[cdxcviii]1, 27[cdxcix]2 - Industrial izations OrdinOrdinance, 1962-1971, s. 4 (1)[d]3.

INDUSTRIAL LAW - Tribunal - Jurisdiction - Industrial dispute - Whether claim for pro rata pay industrial dispute - Ie - Industrial Relations Ordinance, 1962-1970, ss. 23[di]4, 27[dii]5 - Industrial Organizations Ordinance, 1962-1971, s. 4 (1)[diii]6.

H. was employed by Ela Motors Ltd. on 25th November, 1967—his written contract of employment providing that remained in service he woue would be entitled to holiday leave amounting to two months after each two year period of continuous service. H. completed one two year period and took holiday leave. In 1972 he resigned, claimed “pro rata leave pay for the nine months I have worked after the completion of my first two years”. The claim was refused then referred to the Secretary for Labour on the basis that the interpretation of the contract was disputed and that “the refusal of the Company to grant pro rata leave is harsh, unjust and unreasonable and is completely contrary to accepted industrial principles”, and subsequently came before the respondent appointed as a Tribunal to arbitrate the “industrial dispute” said to exist between H. and the Company.

On the return of an order nisi for prohibition directed to the Tribunal,

Held:

(1) &ـ The exie existencetence of an industrial dispute as defined in s. 4 (1) of the Industrial Organizations Ordinance was a necessary prerequisite to the Tribunal having jurisdiction to hear and determine the matter in dispute.

(2) ;ټ The effe effect ofct of the Industrial Organizations Ordinance, 1962-1971 and ss. 23 and 27 of the Industrial Relations Ordinance, 1962-1970, is that a tribunal is empowered to make an award deciding the industrial matters in issue in an industrial dispute arising from a contract of employment and arising within three months after the termination of that contract and that the definition of industrial dispute in s. 4 (1) of the Industrial Organizations Ordinance, 1962-1971, is wide enough to cover a disputed claim for payment of pro rata recreational leave whether it is alleged that the payment is a present legal entitlement or not: the power is to go to the actual matters in dispute, irrespective of the actual description of the dispute (s. 23).

(3) ҈ Accordicordingly the Tribhnal had jurisdiction and the order nisi should be discharged.

Prohibition

This was the return of an order nisi for proion s agair. F. P F. P. J McCrudden acting as an Arbitratioration Trin Tribunal under the Industrial Relations Ordinance. Following a submission before the Tribunal that there was no industrial dispute the Tribunal ruled that it had jurisdiction to determine the dispute; further proceedings as were then adjourned and the application for a writ of prohibition made.

Counsel
G. D. Needham Q.C. and R. Wood, for the prosecutor.
P. White, for the respondent (Tribunal).
W. A. Lalor, for the intervener (Hoepper).
Cur. adv. vult.

16 October 1973

MINOGUE CJ: I agree that this order nisi for prohibition should be discharged for the reasons propounded by my brother Clarkson.

CLARKSON J: This is the return of an order nisi for prohibition which is sought against Mr. F. P. J McCrudden acting as an Arbitration Tribunal established under the Industrial Relations Ordinance.

The facts as I now set them out are not in dispute.

Mr. A. G. Hoepper was engaged by the prosecutor Ela Motors Ltd. as a motor mechanic. The original negotiations with Mr. Hoepper were conducted in Brisbane by Burns Philp and Company Limited as agent for Ela Motors Ltd. The proposed terms and conditions of employment were set out in a letter dated 27th November, 1969, addressed by Burns Philp and Company Limited to Ela Motors Ltd. which contained the endorsement “Correct A. Hoepper”. Employment was to commence “from the date of completing his engagement on his arrival in Port Moresby” and the letter carries the further endorsement “confirmed at Port Moresby this 27th day of November, 1969”, signed for the manager of Ela Motors Ltd. and by Mr. Hoepper.

It is unnecessary to set out all the details. The provision relevant to these proceedings was as follows:

“Mr. Hoepper has been advised that if he remains in the service, he will be entitled to holiday leave amounting to two months after each completed two-year period of continuous service. A free passage will be granted to him in one of Burns Philp’s vessels or by air at the Company’s option to his original port of embarkation and return to the Territory on the occasion of the above mentioned leave, provided always that there will be no return passage granted if he is leaving the Company’s employ at the expiration of such leave.”

Mr. Hoepper commenced his employment on or about 26th November, 1969, and resigned on 31st October, 1972. He had in the meantime been granted two months’ leave after he had served for two years.

The position as described by Mr. Hoepper at the time his employment terminated was as follows:

“No provision was made in my contract for pro rata leave if the contract was terminated before the completion of two years, but I believed that I was entitled to pro rata leave pay for the nine months I had worked after the completion of my first two years and requested this from employees of the Company.”

On 31st October, 1972, after his employer had again refused to make any payment for pro rata recreational leave Mr. Hoepper reported the matter to the Department of Labour and “requested that action be taken to obtain pro rata leave money for me”.

On 15th November, 1972, the industrial advocate for the Public Service Association wrote to the Secretary for Labour saying that he was acting on behalf of Mr. Hoepper “who is a member of the PSA” and wished to report the existence of an industrial dispute. The relevant passage in this letter is as follows:

“1. &#He signed a contract with with the Company which provided for certain conditions but none of these conditions made specific reference to the question of pro rata recreation leave should he leae serof thpany within thin the pthe perioderiod of the contract.

2. Mr. Hoepper recently gaverthe required notice of resignation to the Company which was accepted and he has subsequently been appointed to a position in the Depar of P Workder trms o cont he was rwas requirequired toed to repa repay to y to the Cthe Company the full amount of his return passage from leave, and this he has done.

3. &##160; T60; The Compeny rd,usewevhowever, to grant any pro rata recreation leave and gives as its reason that the terms of the contract provided for recreation leave only after the completion of each two years ofice.

This is a convenient point to pose one of the questions argued before us. Is Mr. Hoepper’s representative saying that on the proper interpretation of the contract Mr. Hoepper is legally entitled to pro rata payment or is he saying that Mr. Hoepper whilst having no legal entitlement ought to be granted such payment because to refuse it would be harsh, unjust, unreasonable and contrary to accepted industrial principles, or, perhaps, is he saying both?

On 15th December, 1972, the Secretary for Labour delegated his powers to Mr. R. R. E. Field “in relation to a certain industrial dispute which has arisen between Anthony George Hoepper and Ela Motors Ltd., Port Moresby, concerning a claim for payment of moneys due for pro rata recreation leave” and following the statutory procedure provided Mr. Field on 18th December, 1972, called on Ela Motors Ltd. “to enter into negotiations for the settlement of an industrial dispute between you concerning the payment of a claim for moneys due for pro rata recreation leave” to Mr. Hoepper.

No settlement having been effected a compulsory conference was called for 20th December, 1972. Again the dispute was described as “concerning the payment of a claim for moneys due for pro rata recreation leave ...”.

The next step was Mr. Field’s report to the Administrator of the industrial dispute “concerning the payment of a claim for moneys due for pro rata recreation leave”.

This was followed by the Administrator’s memorandum of 12th February, 1973, by which he established an Arbitration Tribunal “to deal with an industrial dispute” between Mr. Hoepper and Ela Motors Ltd., specified Mr. McCrudden to constitute that Tribunal and directed the Secretary for Labour to refer the dispute to that Tribunal.

On 26th February, 1973, Mr. Field acting by direction of the Administrator referred for decision and the making of an award “the industrial dispute ... concerning the payment of a claim for moneys due ...”.

On 20th June, the Tribunal gave notice of hearing of the industrial dispute which was described somewhat inelegantly as being “an industrial dispute in which the following claim is being made ... namely:—the payment of a claim for moneys due for pro rata recreation leave ...”.

The hearing commenced on 27th June, 1973, when the Tribunal, in opening proceedings said: “The dispute concerns a claim for moneys due for pro rata leave”. It is interesting to note that this is confirmed by the heading of the transcript which refers to an industrial dispute “concerning the payment of a claim for moneys due for pro rata recreation leave”.

A number of submissions were made on behalf of the present prosecutor, Ela Motors Ltd., directed to show that the Tribunal had no jurisdiction to proceed. In view of the course which the proceedings took before us it is necessary to mention only the submission that there was no industrial dispute, this being the submission on which the prosecutor has relied before this court. The Tribunal ruled it had jurisdiction to determine the dispute and further proceedings were adjourned and this application made for a writ of prohibition.

Before considering the problem I think it necessary because of some comments made by the Tribunal to state that in my view the existence of an industrial dispute was a necessary prerequisite to the Tribunal’s having jurisdiction to hear and determine the matter in dispute.

It appears to have been suggested that because the Administrator established a tribunal to deal with what his Honour described as an industrial dispute the matter in difference reported to him by Mr. Field and referred by Mr. Field to the Tribunal pursuant to the Administrator’s direction must be accepted as being an industrial dispute whether it would otherwise be one or not.

But it is only when an industrial dispute exists that any of the procedure provided for in s. 23 can be properly used.

It is not unusual in legislation dealing with industrial arbitration for jurisdiction to depend on the existence of a bona fide opinion held by some public official or tribunal that a given state of affairs exists and for all means of challenging an opinion wrongly formed to be removed. In other words, the question whether the state of facts on the existence of which jurisdiction depends is committed to the judgment of the Tribunal the jurisdiction of which is being challenged; but that situation does not exist here. If the true position is that there is no industrial dispute anything done by the Secretary, the Administrator or the Tribunal in purported exercise of any power conferred by s. 23 is beyond power. No doubt in a doubtful case the Secretary would report and the Administrator would refer and leave the question of jurisdiction to be determined by the Tribunal but that determination cannot be made by reference merely to what the Secretary or the Administrator has done under s. 23.

I examine now one relevant aspect of what is meant by an industrial dispute in the legislation. The phrase is defined in s. 4 (1) of the Industrial Organizations Ordinance in accordance with an amendment made in 1970 and the Industrial Relations Ordinance is incorporated and to be read as one with that Ordinance. It is defined as follows:

“ ‘industrial dispute’ means a dispute or difference between:

(a) &##160; an empl employer ane an yeployee or employees;

(b) yeploands mploeees;

(c) ـ&#1mployeployees mpls mploy/p>

(d)&#(d) oyeployerl ands and employeployers;

connected with an industrial matter and includes:

(e)ـ҈& a threatened, ding obable dispute;

(f) < &160; #160; a si a tituation like likely to give rise to a dispute; and

(g) a dispute arising from a contract of employment by either party to that contrathin montter the terminatiination ofon of the the contract;”

It will be seen that the phrase is said to “mean” certain things and it “includes” others. The first question is whether a “dispute” in par. (g) is to be read as an “industrial dispute”. The matter is not free of difficulty but in my view in its context it should be so read and this is confirmed by s. 27 of the Industrial Relations Ordinance as amended in 1970 and which refers to “an industrial dispute specified in par. (g) of the definition of an industrial dispute in sub-s. (1) of s. 4 of the Industrial Organizations Ordinance, 1962-1970”.

If this view be correct it is not every dispute arising from a contract of employment within three months after the termination of that contract which is cognizable by the Tribunal but only those which are industrial disputes, that is disputes or differences connected with an industrial matter. This view is fortified by s. 26b which provides that an award of a Tribunal shall relate to industrial matters only.

It is not possible to tell what view the Tribunal took on this aspect because the prosecutor’s argument before the Tribunal was that there was no industrial dispute because there was no employer-employee relationship when the first step of reporting the dispute under s. 19 occurred. The short answer which the Tribunal gave was to quote par. (g) of the definition of “industrial dispute”.

The next problem is to identify the nature of the present dispute. The prosecutor says it is a legal dispute and not an industrial dispute; the former is concerned with what the terms of the contract are and the latter with what they ought to be. This result is achieved it is said by considering the definition contained in the Ordinance in the light of the purposes of the Ordinance.

Against this it is argued that the terms of the definition are wide enough to cover disputes as to both what the terms of the contract are and what they ought to be. Alternatively it is said even accepting the prosecutor’s distinction that this is a dispute as to what the terms of the contract ought to have been.

The procedure provided by the Ordinance for the settlement of industrial disputes is commenced by a notification of that dispute to the Secretary of Labour under s. 19. Mr. Hoepper made a verbal request to an officer of the Department of Labour on 31st October, 1972, that action be taken to obtain pro rata leave money for him but I think this should be treated as superseded by the letter of 15th November, 1972, headed “notification of industrial dispute” and which notification was expressed to be given in accordance with s. 19 (1). In my view this letter should be taken as describing both the nature and extent of the dispute. It shows a demand for pro rata leave calculated at the rate of three weeks per annum for a period of 9 months which demand had been completely rejected.

There are only two portions of the letter which raise any doubt in my mind. I will refer to them later but without them the letter seems to me to be merely an assertion that there was a present legal entitlement to pro rata recreation leave.

It commenced in par. 1 by making the point that none of the conditions of the written contract “made specific reference to the question of pro rata recreation leave” thus preserving the possibility that an entitlement might be said to be implied. Paragraph 3 records that Company’s refusal to grant any pro rata recreation leave on the grounds that “the contract provides for recreation leave only after the completion of each two years of service”. The letter then goes on: “On behalf of Mr. Hoepper the Association disputes this interpretation”. This can only be a reference to a dispute as to the proper construction of the terms of the written contract. Then follow the words “and is of the opinion that the refusal ... is harsh, unjust and unreasonable and is completely contrary to accepted industrial principles ...”. The letter then concludes with the expression of opinion “that Mr. Hoepper is entitled to pro rata payment for recreation leave calculated at the rate of three weeks per annum ...”

Now it is true as counsel for the prosecutor said that the words “harsh, unjust and unreasonable” do not clearly import some new quality to the dispute. A refusal by an employer to pay to an employee moneys legally payable under a contract may well be described as harsh, unjust and unreasonable. I think it may also be said that in considering whether a term should be implied in a contract of service there are circumstances in which it would be relevant that if the term were not implied the result would be harsh, unjust, unreasonable and completely contrary to accepted industrial principles. However, I do not think the same can be said of the claim that pro rata leave should be calculated at the rate of three weeks per annum. This does not bear any obvious relationship to the contract provision of two months after each completed two-year period of continuous service. I can find no basis on which such an entitlement could be implied in the contract.

I was at first inclined to the view that one should approach this particular problem on the assumption that what was being notified was an industrial as opposed to a legal dispute but, as counsel for Mr. Hoepper argued, the definition of industrial dispute is open to the construction that it can include what has been called a legal dispute. I do not find the solution easy but looking at the letter as a whole I conclude that what was being reported was a dispute which related both to the proper construction of the terms of the contract which had existed and to what ought to be granted in accordance with accepted industrial principles.

I do not accept the view that in the circumstances there can be only a legal dispute or an industrial dispute. Admittedly there is a real difference between claiming an existing legal entitlement and claiming that whilst there is no existing legal entitlement a legal entitlement should be created; but in the absence of jurisdictional limitations it was open to Mr. Hoepper’s agent to claim in the alternative and my conclusion is that he so claimed.

Finally it is necessary to consider whether the referred dispute was within the jurisdiction of the Tribunal.

The scheme for the settlement of industrial disputes set out in Pt. III of the Industrial Relations Ordinance is largely a familiar one. The dispute is reported, provision is made for negotiation and compulsory conferences. If these fail the dispute is referred to a Tribunal which hears and determines the dispute and makes an appropriate award. Part IV provides for the registration of awards which, as already noted, may relate to industrial matters only and s. 34 sets out in effect how an award operates. It is binding on the employers and employees to whom it relates and it becomes an implied term of a contract between those parties that the wages to be paid and the conditions of employment to be observed under the contract shall be in accordance with the award. An interested party may apply for the establishment of a Tribunal to determine any question relating to the application of an award. A person who fails to comply with an award or a provision of the Ordinance commits an offence (ss. 49, 56a). An employer who dismisses an employee because the employee is entitled to the benefit of an award commits an offence and may be ordered to reimburse any wages lost by the employee and to reinstate him (s. 54). The Supreme Court may order compliance with an award or enjoin a person from contravening the Ordinance or an award (s. 50).

It will be seen that there is no permanent arbitration tribunal, a separate one being constituted for each reference; a tribunal has no power to deal with breaches of awards nor to order the payment of moneys due under them. These matters are dealt with by the ordinary courts. Indeed it would seem that the function of an arbitration tribunal ceases with the making of an award in respect of the dispute referred to it.

An examination of the system established here discloses that an award may be made in respect of one employee without purporting to apply to those engaged in a particular calling or industry. This follows from the amended definition of “industrial dispute” substituted in 1970. The other extension to that definition made in 1970 and which is the foundation of the claim here, is the provision that a dispute arising from a contract of employment within three months after the termination of the contract is an industrial dispute. The present dispute would appear to fall within these words and the real question is whether a contrary intention appears in the legislation sufficient to exclude it.

Those familiar with similar legislation elsewhere may well point to the fact that the award sought could apply only to a relationship already terminated and could have no operation on any existing or future relationships but if the statute gives an award-making power in those circumstances these considerations which may be relevant in other systems under different legislation cannot affect the result of these proceedings.

Clearly if an award is to relate to disputes arising from a terminated contract the award must be capable of having some retrospective effect.

Section 27 contains a general limitation on the power of a tribunal to give retrospective effect to an award but as a result of the 1970 amendments an award made in respect of an industrial dispute specified in par. (g) of the definition of that term is freed from that limitation.

It seems to me that with one possible limitation to which I shall refer the effect of the legislation is that a tribunal is empowered to make an award deciding the industrial matters in issue in an industrial dispute arising from a contract of employment and arising within three months after the termination of that contract and that the definition of “industrial dispute” is wide enough to cover a disputed claim for payment of pro rata recreational leave whether it is alleged that the payment is a present legal entitlement or not. The limitation I have in mind is that where the matter in dispute is already provided for by an award any restriction which ordinarily applies to the right to obtain an amendment or variation of that award would operate. This consideration does not apply here.

Here Parliament has included within the tribunal’s jurisdiction a dispute connected with an industrial matter and arising from a terminated contract of employment. It is not contested that a claim for pro rata recreational leave is an industrial matter nor that there is a dispute, but it is argued that the present dispute is not an industrial dispute because it is a legal dispute. It may be a legal dispute but it is also a dispute arising from a terminated contract of employment and therefore within the definition of industrial dispute and it has not been shown to my satisfaction that other provisions of the legislation require its exclusion from that definition.

The result may be surprising to those familiar with Australian industrial arbitration systems but it is open to Parliament to confer judicial power on an arbitration tribunal if it so chooses and there is nothing which requires the function of the Tribunal to be restricted to dealing with the future regulation of industrial matters in industry.

No one could suggest that the construction I have adopted yields a completely satisfactory result. If a person has a good claim for moneys due and payable under a contract of service it seems pointless to waste time and money establishing a tribunal to say he has a good claim; he must still go to another court, where he could have gone in the first place, to enforce it. On the other hand, if the claim is for something he was admittedly never entitled to under the contract many will view with alarm the prospect that after the contract is terminated he may be able to persuade a tribunal to reassess completely the value of his services and to rewrite the contract.

However, the legislation itself provides means whereby waste or injustice may be avoided. In the absence of agreement between the parties the Administrator directs an industrial dispute to be referred to a tribunal only if he thinks fit and a tribunal has a wide discretion to refuse a claim.

The order nisi should be discharged.

PRENTICE J: One Hoepper became employed by Ela Motors Ltd. (a Burns Philp subsidiary), on 25th November, 1969, as a mechanic; the terms of his employment being contained in a Burns Philp & Co. Limited letter of 25th November, 1969,— subsequently adopted by him. His contract provided that—”If he remains in the service, he will be entitled to holiday leave amounting to two months after each completed two year period of continuous service”. Hoepper completed one two year period and took his holiday leave. In 1972 he gave one month’s notice, and prior to leaving Ela Motors’ service, made a claim to “pro rata leave pay for the nine months I had worked after the completion of my first two years ...”. This claim was refused.

On 18th December, 1972, Mr. R. R. E. Field, a duly appointed delegate of the Secretary for Labour, required Ela Motors to negotiate settlement of “the industrial dispute” said to exist between Hoepper and the Company. A compulsory conference was called and attempts at reconciliation proved nugatory.

On 12th February, 1973, the Administrator appointed the respondent as a tribunal to arbitrate “the dispute”, which was referred to the said Tribunal on 26th February, 1973.

The documents constituting the delegation, requirement to enter into negotiations, requirement to attend conference, report to the Administrator, and reference to the Tribunal, all refer to the “industrial dispute” as “a claim for moneys due for pro rata recreation leave”. Mr. Hoepper’s affidavit in this court refers to an entitlement to pro rata leave pay and a denial by the Company as to liability therefor. The industrial advocate’s notification to the Secretary for Labour stated that it disputed the interpretation of the contract and that “the refusal of the Company to grant pro rata leave is harsh, unjust and unreasonable and is completely contrary to accepted industrial principles .... The Association is of the opinion that Mr. Hoepper is entitled to pro rata payment for recreation leave calculated at the rate of three weeks per annum ...”

The Tribunal by notice fixed a date for hearing—again stating the dispute as “the payment of a claim for moneys due for pro rata recreation leave to the said Anthony George Hoepper”. On the fixed date counsel for the Company challenged the jurisdiction of the Tribunal to sit—alleging that no “industrial dispute” existed. The Tribunal found that it had jurisdiction. This finding is now challenged by application for a writ of prohibition.

The Tribunal is dependent for its jurisdiction upon the Industrial Organizations Ordinance, 1962-1970, and the Industrial Relations Ordinance, 1962-1970. Under the former an “industrial dispute” is defined (omitting irrelevant parts) as meaning “a dispute or difference between employer and an employee . . . connected with an industrial matter and includes ... (g) a dispute arising from a contract of employment by either party to that contract within three months after termination of the contract”. An “industrial matter” includes, inter alia, “(b) the privileges, rights and duties of employers and employees, (c) the wages, allowances and remuneration of persons employed or to be employed ... (h) the mode, terms and conditions of employment”.

In support of the application for prohibition Mr. Needham argues quite succinctly that the matter raised is one of interpretation of contract merely—that this is a legal matter and not a subject for an industrial award in settlement of a dispute over an already terminated contract. The arbitrator is fixed with a particular dispute—he may deal only with that—and the only question raised on the documents which are the evidence to which this court must refer, is an allegation of present entitlement to moneys due. This is a legal question only—it is quite distinct from an allegation that an additional term ought to have been inserted in a contract by arbitration. The matter is concluded therefore, he says, by the words of Kitto J in the Air Pilots’ case[div]7: “The question whether it was in fact unsafe to fly DC-9’s with fewer than three flight crew officers was obviously not an industrial question, and the dispute upon it was not an industrial dispute. The question whether the pilots’ terms of employment obliged them to fly the aircraft with the minimum crew permitted by law when required by their employers to do so depended upon the true interpretation of the terms of employment, including the terms of the Agreement that has been mentioned and the relevant provisions of the Air Navigation Regulations, and it was, therefore, a question for judicial and not arbitral determination.”

Mr. Lalor contends, adopting The Queen v. Australian Stevedoring Industry Board [dv]8, “There can be no foundation for a writ of prohibition unless and until it appears, whether from the course of the inquiry or from the preliminary statement of the matters to which the inquiry is directed, that there can be no basis for the exercise of the power conferred ...” (emphasis mine).

As I understand his argument, he asserts that there could have been a basis here for arbitral function, if the contention of the employee had been, not that moneys were legally due but that an amending clause should be inserted in his contract entitling him to pro rata leave pay. The “foundation” required by The Queen v. Australian Stevedoring Industry Board[dvi]9 cannot therefore be laid. There was he said an industrial dispute capable of arbitration—the right to have it arbitrated should not be lost by an or ill-considered statement of the grievance (in the form of a legal claim).

A

At first sight one is surprised to find the Tribunal purporting to deal with what has been I think, clearly stated in the official documents as a legal claim. However, on reflection it does not appear to me that cases cited in argument such as the Air Pilots’ case[dvii]10. and The Queen v. Gallagher[dviii]11, and in particular the judgment therein of Taylor J are relevant. The High Court in such cases has been concerned to see that “judicial power” is not exercised by a body in which it cannot be vested, by reason of constitutional limitations as to office-holding. Similarly, that State Industrial Commissions may be charged with wage recovery powers only in relation to wages the subject of an award, does not seem to the point.

The Papua New Guinea Ordinances, by the 1970 amendments, redefine “industrial dispute” so as to include a dispute between an individual employee and an employer in relation to a contract already terminated; and make such a dispute an exception to the retrospectivity of operation of awards (see s. 27 Industrial Relations Ordinance). It seems to me that an industrial dispute thereunder could include a purely legal demand relating to an industrial matter.

Again, on first consideration, I was disposed to come to the conclusion that Mr. Hoepper nevertheless would be frustrated, for the reason that his dispute had been too narrowly framed by the reference to, and appointment of, the Tribunal. I should have thought that an ad hoc Tribunal could be appointed under the Ordinance only to deal with the industrial dispute stated in the enabling documents. I would think the industrial dispute stated as a legal claim would not bear examination, so that if it had to be considered in the form it was stated—it would fall to the ground.

However, when one looks at s. 23 of the Industrial Relations Ordinance which creates the powers, one notes that the “dispute” is apparently not to be narrowly confined. It is enacted that “the Tribunal shall forthwith inquire into the dispute and shall make an award deciding the matters in issue” (emphasis mine) “between the parties to the dispute”. In my opinion the Tribunal is thereby given power to go to the actual matters in dispute, irrespective of the actual description of the dispute in the enabling documents—providing always of course that the dispute is an industrial dispute as defined.

Obviously (although one would think it to come surprisingly, from a person who had benefited from a written contract and made no complaint as to its conditions during the first term thereof nor until he wished to be released from it many months after the second term had begun), the actual point sought to be made by Mr. Hoepper is that the contract at the time of his original complaint, should have been varied so as to allow for a pro rata entitlement of holiday leave. That this is so appears from his advocate’s letter of 15th November, 1972, to the Secretary for Labour which recites the Company’s refusal to vary as “harsh, unjust and unreasonable,” and asserts an entitlement not referable to the contract itself on any arithmetic that I can devise.

For the above reasons I am of the opinion that the Tribunal has been proceeding with jurisdiction. I would refuse the order sought.

Order nisi discharged.

Solicitors for the prosecutor: McCubbery, Train, Love & Thomas.
Solicitor for the respondent (Tribunal): P. J Clay, Crown Solicitor.
Solicitor for the intervener: W. A. Lalor, Public Solicitor.

[cdxcviii]The effect of s. 23 is set out at p. 449.
[cdxcix]The effect of s. 27 is set out at p. 445.
[d]Infra p. 441.
[di]The effect of s. 23 is set out at p. 449.
[dii]The effect of s. 27 is set out at p. 445.
[diii]Infra p. 441.
[1968] HCA 22; (1968) 119 CLR. 16, at p. 34.
[dv][1953] HCA 22; (1953) 88 CLR. 100, at p. 117.
[dvi][1953] HCA 22; (1953) 88 CLR. 100.
[dvii][1968] HCA 22; (1968) 119 CLR. 16.
[dviii] (1963-64) 37 ALJR. 40, at p. 46.