Steamships Trading Company Ltd v Joel, Amalgamated General Workers Union and Damon [1991] PGLawRp 472; [1991] PNGLR 133 (26 April 1991)

Papua New Guinea Law Reports - 1991

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

[1991] PNGLR 133

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

N1>(1)      The existence of an “industrial dispute” is a prerequisite to the exercise of jurisdiction by the Industrial Tribunal.

N1>(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.

N1>(3)      Accordingly, the Industrial Tribunal had acted without jurisdiction and its decision to reinstate should be quashed.

Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147; [1969] 1 All ER 208, applied.

Re Racal Communications Ltd [1980] UKHL 5; [1981] AC 374 at 383; [1980] 2 All ER 64 at 638, adopted and applied.

N1>(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 [1963] UKHL 2; [1964] AC 40, considered.

Cases Cited

Anisminic Ltd v The Foreign Compensation Commission [1968] UKHL 6; [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 [1980] UKHL 5; [1981] AC 374; [1980] 2 All ER 634.

Ridge v Baldwin [1963] UKHL 2; [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 the employees had been terminated in circumstances that were harsh, unjust and unreasonable. It said:

N2>“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.”

N2>“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 (Ch 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 their former positions with the company. The names of Messrs Baulana Puipui and John Gambui were subsequently withdrawn from the reference.

On 15 June, the Award was filed with the Industrial Registrar for registration. On 10 July 1990, the Award was registered by the Industrial Registrar and published in the National Gazette No 48 of 26 July 1990. He further says that on 5 September 1990 he received a court order restraining the Industrial Registrar from registering the Award.

Bunam Lambert Damon, the Industrial Registrar, also gave evidence by affidavit. He confirmed that, on 15 June 1990, the Chairman of the Tribunal filed for registration the Award. On 10 July, the Award was registered as No 10/90. On 11 July 1990, the instrument for registration of the Award was forwarded to the Government Printer for publication.

Mr Damon further gave evidence that, to 26 July 1990, he had not been served with the restraining orders of the National Court preventing publication. By way of explanation on 10 July 1990 the plaintiff obtained injunctive orders (when granted leave for judicial review) restraining the Industrial Registrar from filing or registering under s 2 of the Industrial Relations Regulations the Award of 14 June 1990.

A clerk employed by Steamships’ lawyers served the restraining order of 10 July 1990 on the Industrial Registrar by delivering it to the Registrar “at the offices of the Department of Labour, Waigani”, on 24 July 1990.

In fact the order had been registered on 10 July 1990. No proper explanation has been offered by the Industrial Registrar for the apparent failure to know of the existence of the court order after service on 24 July. But then the affidavit of service leaves me in the dark as to the actual mode of service whether left at a counter for instance or with someone apparently in the employ of the department. Fortunately nothing turns on the point, for Mr Payne does not seek to pursue the matter of the injunctive court order.

Coming back then to the plaintiff’s case.

Mr Payne took the Court through the Tribunal’s Award document. He said that the reference to the Tribunal was an alleged industrial dispute between the plaintiff and the Union. But he said the existence or otherwise of an “industrial dispute” was a prerequisite to the Tribunal’s jurisdiction to hear the claim.

Mr Payne pointed to the concession by the Tribunal that in Mr Aisi’s case for instance there was not evidence that a dispute had been registered within the three-month period after termination of employment [Award 1.3]. The Tribunal based its claim to jurisdiction on Mr Aisi’s actions in querying Steamships, at the time of his termination, over the reasons for his termination, in the words of the Tribunal:

“This therefore is the basis for the Tribunal agreeing it has jurisdiction under both the Industrial Organizations Act and Industrial Relations Act to deal with Mr Aisi’s case” [Award 1-13].

Does this understanding reflect the law relating to jurisdiction to embark on a determination and Award? The Tribunal’s statement that Mr Aisi “had personally contested his termination” with Steamships will ground jurisdiction where the complaint amounts to an “industrial dispute” within the definition section of the Industrial Organizations Act and has been reported in accordance with the provisions of the Act (s 25 of the Industrial Relations Act).

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

(a)      an employer and an employee or employees; or

(b)      ...

(c)      ...

(d)      ...

connected with an industrial matter and includes:

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

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

(g)      a dispute arising from a contract of employment the particulars of which are contested by either party to the contract within three months after termination of the contract” (Definition Section Industrial Organizations Act.)

There is nothing on the face of the record of the Tribunal to suppose the dispute has been reported in accordance with the provisions of the Act. In fact this Court may draw an inference to the contrary, if the Tribunal has relied on the fact that the employee was aggrieved as the only evidence of the report for the purposes of s 25 of the Act. The Tribunal said (quote Award 1.13):

“The Tribunal agrees with the company that under the Industrial Organizations Act, there was no evidence that the dispute had been registered or contested by the Union within 3 months of the termination taking place.”

The Tribunal cannot treat Mr Aisi’s request for greater definition of the reasons given for his termination as “contesting his contract of employment”. In fact he says he then went home afterwards. The Union took up and undoubtedly registered the complaint but the Tribunal nowhere addresses the pertinent issue of a contest within three months of termination. It is the Union which has articulated his termination in terms of an industrial dispute. The cases quoted in argument before me clearly show grounds where a Tribunal has embarked on consideration of an industrial dispute registered or referred by an appropriate body within the limitation period. In this case the limitation period is three months. Nowhere in the Award can I see any evidence that the Tribunal could have relied on as satisfying it that the contest arose by way of referral or registration within the three-month period. There is no discretion in the Tribunal to extend the period of limitation. It is bound by the words of the section.

Even so I propose to go on and address the other issue which has been argued, the question whether the employee can contest his termination in these circumstances claiming his particular contract of employment precludes Steamships from terminating him on the grounds that his services are no longer required.

Steamships says that Mr Aisi’s contract of employment does not affect its common law right to hire and terminate employees as and when it sees fit. The Tribunal expressly states that it does not question nor challenge this common law right but goes on to say that its decision to order reinstatement represents the Tribunals “utter disgust in finding that the company had been harsh, unjust and unreasonable in its action, because it completely failed on all counts, to blend its right to hire and fire, with natural justice to Mr Aisi”.

I should say I find the language of the Tribunal raises a suggestion that the Tribunal has not been as impartial as the interested parties would expect. Use of the words “utter disgust” seem somewhat out of place where the Tribunal has conceded for instance that Steamships has the right to hire and fire but criticises the manner in which the termination took place. It may be bad relations, but is it an “industrial dispute”? This partiality is apparent through a reading of the Award. For instance at 1.13 it agrees with the Union that there is no evidence that the dispute had not been registered or contested by the Union within three months of the termination taking place. In other words, the Tribunal clearly misconceives its obligation to be satisfied as to the affirmative matters requiring proof, that is, the complaint within three months. Again at 1.18 the Tribunal says that “the company had failed to confirm beyond reasonable doubt that Mr Aisi was strictly employed under the Port Moresby Common Rule”.

The Tribunal was in error in attempting to apply what could be called a criminal onus of proof in relation to the nature of Mr Aisi’s contract of employment, when on the facts his employment was clearly subject to the Port Moresby Common Rule, facts not contested by the Union. But the Tribunal went further to find some uncrystallised contract in the following terms:

“It is the view of this Tribunal that Mr Aisi was employed by the Company on either a written or a verbal contract or both, based on the Port Moresby Common Rule or otherwise. The particulars of this contract (written or otherwise) included his salary, annual leave, sick leave, etc, which are in the company’s records somewhere. This is confirmed by the fact, that even the company had not substantiated its claim that Mr Aisi was employed strictly under the Port Moresby Common Rule, except the Mr Aisi was paid one week’s pay in lieu of notice, a provision similar to the Common Rule although not necessarily proved to be the same.”

Nowhere does the Tribunal elicit particulars of Mr Aisi’s employment which gives rise to an inference of a right to be heard on whether or not the company can terminate him or that such termination cannot be effected for other than specified reasons.

In this case such particulars must be found to give the Tribunal jurisdiction to embark on the Award. In other words, there must be an “industrial dispute” within the meaning of the section. The Tribunal sought to find a power to deal with this matter relying on the definition provisions of the Industrial Organizations Act. There “industrial matters” is defined to include: “(k) the right to dismiss or to refuse to employ, or the duty to reinstate in employment, a particular person or class of persons.”

The definition does not empower the Tribunal to make contracts of employment. It may inquire into an existing contract where particulars are contested. By finding “services no longer required” to be no reason for termination in Papua New Guinea effectively imputes a term into Mr Aisi’s contract of employment, a term which does not arise out of the Port Moresby Common Rule or apparently any other conditions of the contract which could be implied between Mr Aisi and Steamships.

Mr Puringi for the defendants says such a term should be imputed into the contract as it is what ought to be granted in accordance with accepted industrial principles, echoing the Tribunal’s views and those words of Clarkson J in Ela Motors Ltd v McCrudden; Ex parte Hoepper [1973] PNGLR 436 at 443.

But in Hoepper’s case the contract had expressly provided for pro rata recreational leave in certain circumstances and the Tribunal was asked to enter upon the Award as the particulars of the contract of employment were in dispute.

But the contract of employment at best can be elicited from a consideration of the Port Moresby Common Rule, the actual work Mr Aisi has done; the manner in which his transfer within employment has been effected, his job designation, affected as they are by the Employment Act (Ch No 373), does not depart from the common law right of the employer to terminate without giving reasons. The common law right to terminate at will has been affected by the Employment Act which provides for notice or payment in lieu (according to a graduated scale). Mr Puringi stated that here, again, Steamships were in breach but he apparently overlooked the fact that the payment in lieu of notice was given to Mr Aisi. The fact is that the particular common law incident of employment dealing with an employer’s and employee’s right of cessation at anytime is recognised in Papua New Guinea. The Supreme Court in Iambakey Okuk v Fallscheer [1980] PNGLR 274 dealt with the common law principles applicable and appropriate to the circumstances of this country. The present Deputy Chief Justice (then Kapi J) said (at 286): “Therefore I would adopt these common law principles in these cases as part of the underlying law of Papua New Guinea.”

There the judge, speaking of various English cases to elucidate the principle of common law relating to employer/employee relationships (shorn of any peculiar incidents), adopted the principles enunciated by Lord Reid in Ridge v Baldwin [1963] UKHL 2; [1964] AC 40 at 65:

“The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence; it depends on whether the facts emerging at the trial prove breach of contract.”

Again the National Court decision in PNG Teachers Association v The State (unreported, Los J, OS 13/87) where my brother Los J said, referring to the power of a Tribunal to order reinstatement, in that case, (at 4):

“The general principle expounded by these cases is this: When an employee’s contract of employment is terminated a Court cannot order any reinstatement of the employee. There are many reasons for this. The legal reason is that a contract of employment is a matter between the employer and the employee. When one side does not want it to continue, a court should not force continuance.”

This statement has clear echoes of Lord Reid’s statement of principle in Ridge v Baldwin.

But the Tribunal here says a peculiar incident of his employment was his right to better reasons, as supposed on a proper reading of Steamships’ “Grievance and Disciplinary Procedures”. I am not satisfied such procedures give any right of action in the employee. They are expressed to be procedures forming part of the company’s supervisory training programme. Nowhere in the guidelines is there anything to support a right in the employee to a particular mode of termination, a mode for instance which would preclude the company from terminating by asserting services no longer required. These grievance and disciplinary procedures seem to me to be similar in effect to rules made under a Singapore Municipal Ordinance for the maintenance of good conduct and discipline amongst the municipal officers and servants. The Privy Council, considering the effect of such rules on the rights of dismissed employees, said that such rules provided a scheme or code for general administration and guidance for heads of departments and could not be construed as giving rights to the employee. (I have paraphrased from the headnote): M Vasudevan Pillai v Singapore City Council [1986] 1 WLR 1278, the Privy Council approving the principles in Ridge v Baldwin.

But again I am struck by the Tribunal’s apparent lack of objectivity where it says at 1.18 p 9:

“Discussing the termination of Mr Aisi as having been based on there being no grievance procedures contained in the Port Moresby Common Rule, it is the view of the Tribunal that the company had conveniently hidden away in the first instance, its own `Grievance and Disciplinary Procedures’, because a reading of the document by the Tribunal, confirms beyond reasonable doubt that the company, in the case of Mr Aisi’s termination, had failed to comply with its own procedures, which also applied to Mr Aisi up to the time of his termination. The company had not succeeded in its deliberate attempt to mislead the Tribunal.”

We are not dealing here with a disciplinary termination, despite the Tribunal’s apparent insistence, in its Award, to treat it as such:

“Mr Aisi had never been formally warned previously, according to evidence before he was terminated, in addition to him being terminated while on leave with no opportunity to answer charges against him” [Award 1.3]

As Mr Payne for Steamships said:

“The company had never claimed any allegation of misconduct, against Mr Aisi, and it was simply a decision of the company that it did not require a person of his abilities at that time” [Award 1.8].

Clause 8 of the Port Moresby Common Rule 1973 as varied provides:

“NOTICE OF DISMISSAL

N2>(a)      After completion of [three] months continuous service with the same employer, should employment be terminated, one week’s notice on either side shall be given. Notwithstanding the provisions of this clause:

(i)       An employer is entitled to pay an employee one week’s wages in lieu of notice.

(ii)      ...

(iii)     ...

(iv)     Nothing in this clause shall affect the right an employer may have to dismiss an employee without notice for conduct incompatible with the due and faithful discharge of that employee’s duty to his employer. In the event of a dispute as to the right of dismissal without notice, either party may refer the matter to the Secretary for Labour or his delegate for decision.”

In these three instances it seems common ground that the terminated employees received pay in lieu of notice.

The three persons the subject of this review could be categorised as unskilled workers. Notice of the terms and conditions of employment required by the Employment Act are found in the Fort Moresby Common Rule. Nowhere does it affect the principle that equity will not compel either master or servant to continue a personal relationship which has become noxious to either one of them. It does however, provide for proper notice in circumstances which do not amount to misconduct on the employee’s part (s 36(1)) or which do not amount to fraud or breach of the contract of employment in material particulars on the employer’s part (s 36(2)).

Those cases cited by counsel, Robinson v National Airlines Commission [1983] PNGLR 476 and Condon v National Airlines Commission [1978] PNGLR 1 may be distinguished on their facts. In those cases, the employee’s contracts of employment were peculiar to them, the first mentioned as Deputy General Manager of the National Airline Commission and the second as an airline pilot under the Airline Pilots Agreement. In both cases a valid industrial dispute was found on their particular facts.

Here however, no industrial dispute can be found. Firstly it has not been shown to have arisen within the three-month period and secondly it has not been shown to involve an existing right in the employee at the time of termination. The Union says the employee has a right to reasons for his termination, that he has a right to be heard on the question of his termination and that the employer’s stated reasons are no reasons sufficient to justify termination.

Short of misconduct as touched on in s 36(1) of the Employment Act no justification for termination need be advanced in the particular circumstances of this employment pursuant to the Port Moresby Common Rule. As I say the contract of employment based as it is on the Common Rule does not depart from the common law principles which recognise the right of an employer and employee to terminate without reason although now the Rule and the Employment Act affect that common law right by providing for notice by either party (or payment in lieu) in these circumstances.

The Tribunal has misdirected itself on the law applicable where it says “services no longer required” can never be a reason for termination. Continued employment in these circumstances is at the will of either party. No reasons need be given. To suggest otherwise, as the Tribunal does, misapprehends the nature of the contract of employment of these workers.

This is not such a case as Iambakey Okuk v Fallscheer. There the complainant Fallscheer was described as falling within the boundaries delineated by Lord Reid (in Ridge’s case) as third category dismissal cases in which the common law principles will admit the rule of “audi alteram partem” unless the application of such rule “is excluded by the legislation by express words or necessary intendment, namely dismissal from an office where there must be something against a man to warrant his dismissal” (per Andrew J (at 277) quoting and adopting the trial judge’s reasons).

In this matter these employees had not been appointed to the office of General Manager, Steamships’ for instance (no doubt its terms and conditions commensurate with its importance) but rather are unskilled workers whose labour is available for hire at best on the open market.

Consequently Mr Aisi’s case, falling as it does within the first category of dismissal cases, the pure case of master and servant so described by Lord Reid earlier in my reasons, does not admit a right to be heard.

I have concentrated on the facts of Mr Aisi’s case. The other two named aggrieved workers were treated in similar fashion by the Tribunal. I see no reason, the facts of their employment contract and circumstances of their dismissal, being the same, to differentiate between the findings, I make in respect of the Tribunal’s Award, involving Mr Aisi and those other two.

Again, it is not available to the Tribunal to embark on an inquiry to fix, what it considers to be, a proper contract of employment. Only the legislature can affect the right of employers and employees to make their own bargain. As I say the incidents of the contract of employment in this case reflects the normal common law relationship between employer and employee typical throughout Papua New Guinea where labour is available on the open market. It is not, for instance to be confused with the somewhat cossetted relationship of a “public servant” under his award. The private sector employee does have the benefits of the Common Rule in Port Moresby for instance and minimum wages legislation.

It is wrong for the Tribunal to suggest it can remake a contract of employment on the basis that the company has been harsh, unjust and unreasonable in its actions. The Tribunal has clearly misapprehended its powers and has failed to take an objective view of the facts.

The Tribunal is empowered to make an Award deciding the industrial matter in issue in an industrial dispute. Nowhere in the Award is it shown that the common law employer/employee relationship has been varied to enable an employee to say that:

“I am entitled to continue to work for you irrespective of your wishes and I can argue the point if you seek to terminate me.”

Perhaps some clause exists in some Awards, I do not know, but on the facts of this employment despite the Port Moresby Common Rule, there was no incident of the worker’s contract which enabled this Tribunal to connect its wish to afford them protection from termination at will with any such particular part of the contract. In other words there is no particular part of their contract which says they cannot be terminated at the will of the employer so that the Tribunal can find an “industrial dispute” within the terms of Industrial Relations Act and embark on an Award.

For instance the Supreme Court stretched the ambit of the meaning of “industrial dispute” to include a dispute involving a rather dubious claim for pro rata recreational leave on the basis that since the incidents of the contract of employment included a right to pro rata leave in certain circumstances, the Tribunal could entertain the claim “as it related to the proper construction of the terms of the contract”: Ela Motors Ltd v McCrudden; Ex parte Hoepper, per Clarkson J (at 443).

But here there is no such particular part saying that the employees cannot be terminated at the will of the employer. In fact the relationship of employer/employee, for the reasons touched on in the various cases I have mentioned, provides such a right in the employer with a commensurate right in the employee to withdraw his services.

I should say that Mr Puringi’s submission that irrespective of the merits the particular employees should be re-engaged because their re-engagement would have little effect on a multi million kina business such as Steamships does not find favour with this Court. This Court cannot make arbitrary decisions on a whim.

Having found that the Tribunal has made its Award ultra vires its powers (it not having properly found an “industrial dispute”) the Award is a nullity (Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 1 All ER 208). I adopt the reasoning of Lord Diplock in Re Racal Communications Ltd [1980] UKHL 5; [1980] 2 All ER 634, where he deals with appropriate orders where an authority empowered by Act of Parliament has misapprehended its role.

After referring to and approving of the principles in Anisminic Ltd’s case he says (at 638):

“It proceeds on the presumption where Parliament confers on an administrative tribunal or authority, as distinct from a court of law, power to decide particular questions defined by the Act conferring the power, Parliament intends to confine that power to answering the question as it has been so defined, and if there has been any doubt as to what that question is this is a matter for courts of law to resolve in fulfilment of their constitutional role as interpreters of the written law and expounders of the common law and rules of equity. So, if the administrative tribunal or authority have asked themselves the wrong question and answered that, they have done something that the Act does not empower them to do and their decision is a nullity ... Any error of law that could be shown to have been made by them in the course of reaching their decision on matters of fact or of administrative policy would result in their having asked themselves the wrong question with the result that the decision they reached would be a nullity.”

The errors shown by the Tribunal include misapprehension of its role properly to find an “industrial dispute” before embarking on the Award, a mistaken premise of law relating to the employer/employee relationship, and on the face of the Award, a subjective view of the facts which leaves a strong impression of bias. For these reasons the Award is a nullity.

The appropriate order of this Court, then, is:

N1>(1)      An order in the nature of certiorari to remove into the National Court and quash the determination and Award of the first defendants dated 14 June 1990.

N1>(2)      A declaration that the determination and Award of the first defendants dated 14 June 1990 are ultra vires the Industrial Relations Act (Ch No 174) and the Industrial Organizations Act (Ch No 173).

N1>(3)      A declaration that gazettal of the determination and Award of the first defendants dated 14 June 1990 in the National Gazette G48/90 published on 26 July 1990 as award Nos 10 of 1990 dated 10 July 1990 is null and void and of no force or effect.

N1>(4)      An order that the first and third defendants pay the costs of the plaintiff to be assessed or taxed.

So ordered.

Lawyers for the plaintiff: K Y Kara Lawyers.

Lawyer for the defendants: State Solicitor.