British and New Zealand Exempt Employees' Association of PNG, Re [1976] PGLawRp 679; [1976] PNGLR 67 (1 March 1976)

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[1976] PNGLR 67 - Re British and New Zealand Exempt Employees' Association of PNG

INDUSTRIAL LAW - Public Services Conciliation and Arbitration Tribunal - Chairman of Tribunal - Effect of findings of fact by Chairman and Tribunal - Effect of findings of law by Chairman and Tribunal - “Industrial action” - Whether steps taken before Tribunal on “industrial action” a question of law - Public Services Conciliation and Arbitration Act 1969, s. 29 (2)[lxxxvi]1, s. 30 (1)[lxxxvii]2.

INDUSTRIAL LAW - “Industrial action” - Meaning to be derived from every day language - Steps taken before Industrial Tribunal not “industrial action”.

WORDS AND PHRASES - “Industrial action” - Industrial law - Steps taken before Industrial Tribunal not “industrial action”.

The British and New Zealand Exempt Employees Association of Papua New Guinea (hereinafter called “the Association”) entered into negotiations with the Public Service Board (now the Public Services Commission and hereinafter called “the Commission”) with a view to improving the conditions of employment of its members. The negotiations being unsuccessful, the Association as a “public service organization” for the purposes of the Public Services Conciliation and Arbitration Act 1969, reported the progress to the Public Services Conciliation and Arbitration Tribunal under s. 17 of that Act, and the Chairman of the Tribunal called a conference for the purposes of endeavouring to arrange a settlement, pursuant to s. 29(3) of that Act, at which he found that the steps taken by the Association could not be described as “industrial action” in relation to which the constitution of the Association required the taking of a secret ballot (which had not been taken) that the claim was quite properly before him and that he had jurisdiction to deal with it. The matter was then referred to the Tribunal who decided it was bound by the Chairman’s findings and had jurisdiction to entertain the claim.

On a summons seeking a declaration that the Tribunal was not bound by the decision of the Chairman and for an order that the Tribunal state a special case for the opinion of the National Court of Justice on certain questions:

N1>(1) The legal effect of ss. 29(2)[lxxxviii]3 and 30(1)[lxxxix]4 of the Public Services Conciliation and Arbitration Act 1969, is that a finding on a question of fact by the Chairman is binding on the Tribunal, and such a finding and a finding on a question of fact by the Tribunal cannot be questioned in a court of law. But a finding on a question of law by either the Chairman or the Tribunal can always be called in question by compelling the Tribunal to state a case for the opinion of the National Court of Justice.

N1>(2) The question whether the steps taken by the Association before the Tribunal were or were not an “industrial action”, was a question of law.

N1>(3) In the absence of a definition of the term “industrial action”, it should be given the meaning which every day language as used by members of trade unions and newspapers gives it.

N1>(4) “Industrial action” when undertaken by employees, means, concerted action to bring pressure on or harass the employer or employers for the purpose of gaining some advantage such as increased wages, more holidays with pay, better conditions of work etc. Although it usually takes the form of a strike it could include such tactics as “go slow” and “work to rules”.

N1>(5) Accordingly, “industrial action” in relation to which the constitution of the Association required the taking of a secret ballot of members did not include the taking of proceedings under the Public Services Conciliation and Arbitration Act 1969 with a view to improving conditions of employment. For the reason that the finding of the Chairman on the question of law was correct in law, the Tribunal was bound by it, and the summons should be dismissed.

This was a summons seeking a declaration that the Public Services Conciliation and Arbitration Tribunal was not bound by a prior decision of its Chairman, made in efforts to settle a claim for improved conditions of employment and for an order that the Tribunal state a special case for the opinion of the National Court of Justice on certain questions which are set out herein at p. 000. Full details of the facts and proceedings are set out in his Honour’s reasons for judgment hereunder.

SALDANHA J: The British and New Zealand Exempt Employees Association of Papua New Guinea (hereinafter referred to as “the Association”) entered into negotiations with the Public Service Board (now the Public Services Commission and hereinafter referred to as “the Commission”) with a view to improving the conditions of employment of its members. These negotiations were unsuccessful.

Under s. 23 of the Industrial Organizations Act the Association was registered as an industrial organization thus making it a “public service organization” for the purposes of the Public Services Conciliation and Arbitration Act (hereinafter referred to as “the Act”). Under s. 17 of the Act the Association made a report to the Registrar of the Public Services Conciliation and Arbitration Tribunal (hereinafter referred to as “the Tribunal”). The Chairman of the Tribunal acting under the provisions of s. 20 (3) of the Act by a notice in writing required the representatives of the Association and the Commission to attend a conference for the purpose of endeavouring to arrange a settlement of the claim under his supervision. At this conference the Commission was represented by Mr. Byrne and the Association by Mr. Edge.

Section 50 of the Industrial Organizations Act requires that the rules of an industrial organization should provide, inter alia, for the taking of decisions by secret ballot in respect of strikes or lock-outs. Being an employees’ association the Association would only need to make the necessary provision in respect of strikes. Only an employers’ association would be concerned with lock-outs. Presumably in obedience to this requirement s. 11 of the Constitution of the Association makes the following provision:

N2>“(a) A secret ballot, in accordance with section 6.3 (c) shall be taken in relation to:

The Industrial Organizations Act requires provision to be made only in respect of strikes, but the Association’s Constitution speaks of “industrial action”. It appears that the only reason why the term “industrial action” is used instead of the word “strike” is because that term is used in the rules of the Australian Exempt Employees Association of Papua New Guinea.

At the commencement of the conference Mr. Byrne submitted that the Chairman had no jurisdiction to entertain the claim on the ground that it had not been filed in accordance with the Association’s Constitution. Mr. Byrne argued that the making of the report to the Registrar and all subsequent proceedings were a form of “industrial action”, and, therefore, pursuant to s. 11 of the Constitution a decision of the members should have been taken by secret ballot. It is not in dispute that such a decision has not been taken.

Mr. Edge would appear to have contended that the term “industrial action” was used as connoting various forms of industrial action, wider in concept than only a strike, undertaken by a union and its members against an employer or employers, such as “go slow” and “working to rules” tactics. The Chairman would appear to have accepted this view. He was of the opinion that the steps taken by the Association could not be described as “industrial action”, that it was not necessary for the Association to have sought a decision from its members by secret ballot, that the claim was quite properly before him and he had jurisdiction to deal with it.

Mr. Byrne asked that the matter be submitted to the Tribunal for its decision. The Tribunal decided that it was bound by the Chairman’s finding and that it had jurisdiction to entertain the claim. It is in these circumstances that Mr. Byrne took out this summons praying for a declaration that the Tribunal is not bound by the decision of the Chairman and for an order that the Tribunal state a special case for the opinion of the National Court of Justice on the following questions:

N2>“(i) Is there at present before the Public Services Conciliation and Arbitration Tribunal a claim by the British and New Zealand Exempt Employees Association of Papua New Guinea?

N2>(ii) Was the Public Services Conciliation and Arbitration Tribunal wrong in finding that it had jurisdiction to hear the alleged claim when the British and New Zealand Exempt Employees Association of Papua New Guinea had not held a secret ballot pursuant to section 11 of its Constitution?

N2>(iii) Was the said Tribunal wrong in holding that the term ‘industrial action’ as used in the Constitution of the said Association does not include the making of a claim and the taking of proceedings under the Public Services Conciliation and Arbitration Act 1969-1973?”

In order to appreciate the decisions of the Chairman and the Tribunal and the reasons why this summons has been issued it is necessary to set out the relevant provisions of s. 29 and s. 30 of the Act. They are s. 29 (2) and s. 30 (1) and they provide as follows:

N2>“29(2) A finding of the Tribunal or the Chairman of the Tribunal upon a question as to the existence of, and otherwise as to, a claim to changed conditions of public employment is, in all courts and for all purposes, conclusive and binding on all persons affected by that question.”

N2>“30(1) The Tribunal may at any stage of proceedings under this Act, and shall if so directed by the Supreme Court, state in the form of a special case for the opinion of that Court a question of law arising in the course of the proceedings.”

Schedule 2.2 (1) of the Constitution of the Independent State of Papua New Guinea provides as follows:

“Subject to this Part, the principles and rules that formed, immediately before Independence Day, the principles and rules of common law and equity in England are adopted, and shall be applied and enforced, as part of the underlying law ...”

The position at English common law is perfectly clear. There is a wealth of authority for the proposition that, notwithstanding the fact that a statute may say that a decision of an inferior tribunal shall be final, there has always been the power to bring up the proceedings before the courts by certiorari and quash the decision for error of law. Reg. v. Medical Appeal Tribunal; Ex Parte Gilmore[xc]⁵, Taylor (formerly Kraupl) v. National Assistance Board[xci]⁶.

In Papua New Guinea we have in addition the clear provisions of s. 30 (1) of the Act which enable the Tribunal to state a case for the opinion of the National Court of Justice on a question of law and compel it do so if directed by the Court. The legal effect of ss. 29 (2) and 30 (1) is that a finding on a question of fact by the Chairman is binding on the Tribunal. Such a finding and a finding on a question of fact by the Tribunal cannot be questioned in a court of law. But a finding on a question of law by either the Chairman or the Tribunal can always be called in question by compelling the Tribunal to state a case for the opinion of the National Court of Justice.

Here the question whether the steps taken by the Association in bringing the dispute before the Tribunal is or is not an “industrial action” is a question of law and if there has been an error either on the part of the Chairman or the Tribunal it can be put right by the Court. Has there been an error?

There appears to be no definition of the term “industrial action” either in legal text books or in reported cases. The dictionaries do not define the term. In the absence of such a definition it is reasonable to give it the meaning which everyday language as used by members of trade unions and newspapers gives it. In this sense “industrial action” when undertaken by employees means concerted action to bring pressure on or harass the employer or employers for the purpose of gaining some advantage such as increased wages, more holidays with pay, better conditions of work etc. It usually takes the form of a strike, but, I assume, could include such tactics as “go slow” and “work to rules”.

The law requires that only when a strike is contemplated that a decision must be taken by secret ballot. The reason for a ballot is obvious. Before such drastic action as a strike is undertaken it is reasonable to require that the members should be consulted and the decision of the majority acted upon. The reason for secrecy is not so obvious, to me personally. The use of the term “industrial action” in the Association’s Constitution would appear to be fortuitous. It was used because the Australians used it. Nevertheless it must be properly construed and be given its proper legal effect. If at the time of the passing of the Constitution members had “go slow” and “work to rules” in mind (which I doubt), in view of the fact that “go slow” and “work to rules” are also drastic actions to take, one may assume that members would be desirous that a decision by secret ballot should be taken if “go slow” or “work to rules” tactics were to be undertaken. It is possible therefore that the term “industrial action” as having a wider connotation rather than the word “strike” was used in the Constitution and was meant to include “go slow”, “work to rules” and the like. But I fail to see why members should want a decision by secret ballot before putting forward a claim for better conditions of employment.

One of the objects of the Association as stated in s. 4 (o) of the Constitution is “to undertake by arbitration or otherwise the settlement of any dispute concerning a member”. If Mr. Byrne is right every time an officer of the Association undertook the settlement of any dispute concerning a member he would be taking an “industrial action” which would necessitate a prior taking of decision by secret ballot, a procedure which would be cumbersome, unbusinesslike and unnecessary for the transaction of ordinary and trivial day to day matters. It seems to me that the term “industrial action” as used in the Constitution was not meant to and does not have the meaning which Mr. Byrne seeks to give it.

I find therefore that the Chairman came to the right conclusion in finding that the taking of proceedings before the Tribunal was not “industrial action”. If this was a finding on a question of fact it could not be challenged either by the Tribunal or the Courts. In my opinion, however, it is a finding on a question of law and the Tribunal should have accepted it because it was the right decision and not because the Tribunal was bound to accept it. The finding would not have been binding on the Tribunal if it had been wrong in law.

For these reasons the application for the declaration and orders sought is dismissed. Section 36 of the Act provides that “costs shall not be allowed in respect of any proceedings under this Act”. Therefore there will be no order as to costs.

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[lxxxvii]Section 30(1) of the Public Services Conciliation and Arbitration Act 1969 provides:—

The Tribunal may at any stage of proceedings under this Act, and shall if so directed by the Supreme Court, state in the form of a special case for the opinion of that Court a question of law arising in the course of the proceedings.

[lxxxviii]Section 29(2) of the Public Services Conciliation and Arbitration Act 1969 provides:—

A finding of the Tribunal or the Chairman of the Tribunal upon a question as to the existence of, and otherwise as to, a claim to changed conditions of public employment is, in all courts and for all purposes, conclusive and binding on all persons affected by that question.

[lxxxix]Section 30(1) of the Public Services Conciliation and Arbitration Act 1969 provides:—

[xc][1957] 1 Q.B. 574.

[xci] [1957] 1 All E.R. 183.

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Papua New Guinea Law Reports

British and New Zealand Exempt Employees' Association of PNG, Re [1976] PGLawRp 679; [1976] PNGLR 67 (1 March 1976)

Papua New Guinea Law Reports - 1976