Papua New Guinea Trade Union Congress v Mowana [2018] PGNC 89; N7164 (23 March 2018)

N7164

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 239 OF 2016(CC4)

BETWEEN:
PAPUA NEW GUINEA TRADE UNION CONGRESS
Plaintiff

AND:
UGWALUBU MOWANA, as the Chairman of the Papua New Guinea Trade Union Congress Revitalization Steering Committee
Defendant

Waigani: David, J
2018: 6, 8 & 23 March

INDUSTRIAL LAW – registered industrial organization – affiliation – capitation fees – non-payment of capitation fees - loss of voting rights and other benefits and privileges – committee formed to revitalise dysfunctional registered industrial organization - special conference – election of office bearers - resolutions and decisions made – Industrial Organizations Act, Part III, Sections 8, 25, 48 and 50 – International Labour Organisation (ILO) Convention 87, Article 3 - Constitution and Rules, Rules 5, 6, 10, 14, 15, 16, 17, 23,19, 21, 24, 25, 27, 30, 33.

Cases cited:

None

Counsel:
N B. Kubak, for the Plaintiff
Z G Gelu, for the Defendant

JUDGMENT

23^rd March, 2018
1. DAVID J: INTRODUCTION: The plaintiff, Papua New Guinea Trade Union Congress (PNGTUC) instituted these proceedings to; challenge the legality or otherwise of the establishment of the Papua New Guinea Trade Union Congress Revitalization Committee in or about 2015 and the appointment of the defendant, Ugwalubu Mowana as its Chairman; and the subsequent convening of a meeting on 8 April 2016 at Diowai Conference Centre, Port Moresby National High School allegedly a Special Conference organised by the defendant and the Papua New Guinea Trade Union Congress Revitalization Committee where, among others, some resolutions or decisions affecting the PNGTUC were made or passed and office bearers of the PNGTUC elected including the election of the defendant as the President of the PNGTUC. After the meeting, the new office bearers led by the defendant have tried to take control of the administration, management and operations of the PNGTUC, but they have been continuously frustrated by John Paska, the alleged incumbent General Secretary of the PNGTUC.

2. Notice of the purported Special Conference and invitations was given to John Paska, the purported incumbent General Secretary by a letter from the defendant dated 22 March 2016.

CLAIM

3. By originating summons filed on 28 April 2016, PNGTUC claims, among others:

1. An order in the nature of a declaration that the group known as the Papua New Guinea Trade Union Congress Revitalization Steering Committee, under the chairmanship of the First Defendant, Ugwalubu Mowana, has no legal mandate or standing vested in it by the PNGTUC Constitution or the Industrial Organisations Act, to engage itself in the management, operations and day to day conduct of the Papua New Guinea Trade Union Congress.
2. An order in the nature of a declaration that the purported Special Conference conducted on the 8^th day of April 2016, at the Port Moresby National High School Conference Hall, Gerehu, National Capital District, is null and void and of no effect, as it was conducted in breach of the PNG Trade Union Congress Constitution ,PNGTUC Rules and the Industrial Organisations Act.
3. A declaration that all the resolutions and decisions passed and made in the purported Special Conference conducted on the 8^th of April 2016, are ultra vires and of no legal effect as being in breach of the Constitution and Rules of the Papua New Guinea Trade Union Congress, and the Industrial Organizations Act.
4. An order in the nature of an injunction that the Defendant and members of Papua New Guinea Trade Union Congress Revitalization Steering Committee, their associates, servants, agents or howsoever, refrain from entering and occupying the office of the Papua New Guinea Trade Union Congress and or interfering in the management and normal daily operations and business of the PNG Trade Union Congress.
5. An order in the nature of an injunction that the Defendant and members of Papua New Guinea Trade Union Congress Revitalization Steering Committee, their associates, servants, agents or howsoever, refrain from purporting to conduct any meetings, conferences and holding themselves out as representing the Papua New Guinea Trade Union Congress, pending the determination of these proceedings.
6. An order in the nature of an injunction that the Defendant and members of Papua New Guinea Trade Union Congress Revitalization Steering Committee, their associates, servants, agents or howsoever, refrain from conducting media conferences regarding the affairs of the Plaintiff, pending the determination of these proceedings.

EVIDENCE

Plaintiff’s evidence

4. The PNGTUC’s evidence comprises oral and documentary evidence. John Paska gave oral evidence under oath and was not subjected to cross-examination. As to documentary evidence, the following affidavits were admitted into evidence without objection and exhibit numbers given:

1. Affidavit in Support of John Paska sworn on 18 April 2016 and filed on 28 April 2016 (first affidavit, Exhibit “A”);
2. Further Affidavit in Support of John Paska sworn on 13 May 2016 and filed on 25 May 2016 (second affidavit, Exhibit “B”);
3. Affidavit in Support of Anton P. Sekum sworn on 18 April 2016 and filed on 28 April 2016 (first affidavit, “Exhibit “C”);
4. Affidavit in Response of Anton P. Sekum sworn on 6 July 2016 and filed on 06 July 2016 (second affidavit, Exhibit “D”).

5. The defendant’s evidence also comprises oral and documentary evidence. The defendant gave oral evidence under oath and was not subjected to cross-examination. As to documentary evidence, it consists only of the affidavit of Ugwalubu Mowana sworn on 27 May 2016 and filed on 31 May 2016 which was admitted into evidence without objection and marked as Exhibit “1”.

FACTS

6. A Statement of Agreed and Disputed Facts and Legal Issues was filed on 23 August 2017 with the endorsement of the parties.

Agreed facts:

7. The agreed facts are:

1. The PNGTUC is an industrial organization registered as an industrial organisation.
2. The PNGTUC is an entity founded under its own Constitution and Rules and consists of industrial organisations.
3. Each affiliate of the PNGTUC is required to pay capitation fees payable quarterly based on declared membership as per the latest return made to the Industrial Registrar and each member is required to pay K2.00 per annum subject to a minimum of K300.00.
4. The main objective of the PNGTUC is to establish and maintain a powerful and effective national organisation composed of free and democratic trade unions which shall be independent of any external contamination and pledged to promote the interests of all workers in Papua New Guinea and in particular, those eligible for membership of its affiliated organisations whilst upholding and enhancing the dignity of labour.
5. The PNGTUC only had an acting National President, but currently does not have a National President.
6. The PNGTUC held its last biennial Delegates Conference in 2011.
7. The defendant is the President of the Papua New Guinea Teachers Association.
8. The Papua New Guinea Teachers Association is an affiliate of the PNGTUC.
9. The Industrial Registrar did not give her formal approval for the Special Conference meeting held by the Papua New Guinea Trade Union Congress Revitalization Steering Committee on 8 April 2016.
10. According to Rule 16 of the Constitution and Rules of PNGTUC, a special conference may be convened on the authority of the Executive Council or at the written request of fifty per cent or more of the financial affiliates who must also represent thirty three per cent or more of the total membership of affiliates of the PNGTUC.
11. The only workers unions that were present for the purported Special Conference meeting held by the Papua New Guinea Trade Union Congress Revitalization Steering Committee on 8 April 2016 were workers unions based in Port Moresby and not throughout Papua New Guinea.
    

Disputed facts:

8. The disputed facts are:

1. The establishment of the Papua New Guinea Trade Union Congress Revitalization Steering Committee, under the Chairmanship of Ugwalubu Mowana, has no legal mandate or standing vested in it by the Constitution and Rules of PNGTUC or the Industrial Organisations Act.
2. The Papua New Guinea Trade Union Congress Revitalization Steering Committee has no legal mandate to engage itself in the management, operations and day to day conduct of the PNGTUC.
3. The Special Conference that was conducted on 8 April 2016 at the Port Moresby National High School Conference Hall, Gerehu, National Capital District, is null and void and of no effect.
4. The resolutions and decisions passed and made in the purported Special Conference conducted on 8 April 2016 are ultra vires and of no legal effect.

ISSUES

9. There are three pertinent issues that the parties have identified in the Statement of Agreed and Disputed Facts and Legal Issues that I need to address and these are:

1. Whether the defendant’s election as the purported Chairman of the Papua New Guinea Trade Union Congress Revitalization Committee is in accordance with the provisions of the Constitution and Rules of the PNGTUC?
2. Whether the election process conducted is consistent with Section 61 of the Industrial Organizations Act, Chapter No.173?
3. Whether the resolutions and decisions passed by the Papua New Guinea Trade Union Congress Revitalization Steering Committee on 8 April 2016 are in breach of the Constitution and Rules of the PNGTUC and the Industrial Organisations Act?
   

THE LAW

10. The PNGTUC is an industrial organisation registered as an industrial organisation pursuant to Part III of the Industrial Organizations Act. The Industrial Organizations Act provides for the registration and control of industrial organizations and for related purposes and that extends to regulating, monitoring and inspection of such organizations. The Industrial Registrar appointed under Section 3 of the Industrial Organizations Act is responsible for that. The PNGTUC is an entity founded under its own Constitution and Rules (Section 48 of the Industrial Organizations Act) and consists of affiliated industrial organizations. I will refer to the relevant provisions of the Industrial Organizations Act and rules of the Constitution and Rules where appropriate during the course of my decision.

11. Article 3 of the International Labour Organisation (ILO) Convention 87, is also relevant and it states:

(1) Workers’ and employer’ organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes.

(2) The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.

CHAIRMAN OF THE PAPUA NEW GUINEA TRADE UNION CONGRESS REVITALIZATION COMMITEE

Plaintiff’s submissions

12. The PNGTUC submits that the defendant’s elevation as the Chairman of the PNG Trade Union Congress Revitalization Committee is contrary to the provisions of its Constitution and Rules as:

1. There is no provision in its Constitution and Rules that provides for any other industrial organisation or congress to be established apart from the PNGTUC.
2. It is a mandatory requirement for all industrial organisations to be registered pursuant to Section 8 of the Industrial Organisations Act, but the PNG Trade Union Congress Revitalisation Committee has not registered.
3. At the time of the defendant’s appointment, the Papua New Guinea Teachers Association, which he was the President of, had not fully complied with Rule 10 of the Constitution and Rules of the PNGTUC by not paying the requisite capitation fees.
4. The payment of capitation fees is a mandatory prerequisite to having access to information and support from the PNGTUC or to participate effectively and meaningfully through the Delegates Conference or Special Conference including electing representatives to the Executive Council and Management Board, therefore by not paying the capitation fees, the Papua New Guinea Teachers Association forfeited its right to actively participate in a Delegates Conference or Special Conference.
5. Any appointment of office bearers is to be held at a Delegates Conference in accordance with Rules 15 and 30 of the Constitution and Rules of the PNGTUC and only the General Secretary of the PNGTUC has the power to convene a Special Conference.

13. In addition, it was submitted that there is sufficient evidence before the Court that demonstrates that the purported election of the defendant as Chairman of the PNG Trade Union Congress Revitalisation Committee was legally flawed as:

1. The Special Conference at which the defendant was appointed as Chairman was not sanctioned by the Registrar of Industrial Organisations;
2. Not all members present at the special meeting were financial affiliates of the PNGTUC.
3. The action taken by the defendant to convene a Special Conference was unwarranted because the General Secretary of the PNGTUC, John Paska had requested the Industrial Registrar to convene the Biennial Congress and in the light of that the defendant’s conduct contravened Section 25 of the Industrial Organisations Act.

14. Moreover, the PNGTUC submits that it is duly registered as an industrial organization and it remains in existence as an entity founded by its own Constitution and Rules as it has never been dissolved in accordance with Clause 43 of its Constitution and Rules.

Defendant’s submissions
15. The defendant submits that the main reason why the private and public sector unions set up the PNG Trade Union Congress Revitalization Steering Committee was to invoke Rule 16 of the Constitution and Rules of the PNGTUC which relates to Special Conference. The action taken was proper and valid because the PNGTUC has had no Executive Council and Management Board since 2011 to convene a Delegates Conference pursuant to Rule 15(1) and (2) of the Constitution and Rules of the PNGTUC and there has been a lack of accountability and transparency as a result. The defendant, being the National General Secretary of the biggest trade union in the country namely, the Papua New Guinea Teachers’ Association with a bigger resource base, took the initiative and lead to revitalize the PNGTUC and call for the Special Conference and he was mandated to chair the Papua New Guinea Trade Union Congress Revitalization Steering Committee.

16. In addition, it was submitted that Articles 3(1) and 3(2) of the International Labour Organization (ILO) Convention 87 lend support to the actions of the Papua New Guinea Trade Union Congress Revitalization Steering Committee.

Reasons for decision

17. At the outset, let me decide which of the copies of the Constitution and Rules admitted into evidence I should follow. There are copies of the same annexed to; the first affidavit of John Paska as annexure “M”; and to the second affidavit of Anton P. Sekum, the purported incumbent Treasurer of the PNGTUC as annexure “D” that have the stamp of the Industrial Registrar of Papua New Guinea affixed to all the pages. The other is annexed to the defendant’s affidavit as annexure “B”. At paragraph 55 of John Paska’s first affidavit, he deposes that he was aware that the Special Conference conducted at Gerehu utilised a draft of the Constitution and Rules and not an authentic one whereas the copy attached to his affidavit as annexure “M” was a true copy of the authentic one. Anton P. Sekum states that his is similar to the copy produced by John Paska. The defendant at paragraph 36 of his affidavit deposes otherwise stating his is the true copy.

18. All copies of the Constitution and Rules do not substantially differ. The only significant difference however is that the copies produced by the PNGTUC through John Paska and Anton P. Sekum are stamped with the seal of the Industrial Registrar of Papua New Guinea and the other produced by the defendant is without the seal. I will accept the copy produced by the PNGTUC as authentic simply on the basis that the General Secretary to my mind is the custodian of all official records of the PNGTUC as he is directly responsible for the day to day affairs of the Secretariat of the PNGTUC although subject to the control of the Management Board: Rules 23(i) and 33(iv) of the Constitution and Rules.

19. In order to appreciate and understand the workings and administration of the PNGTUC, it is necessary for me to briefly address its structure and functions of some of the constituent bodies.

20. According to Rule 14(i) of the Constitution and Rules, the permanent constituent bodies of the PNCTUC are; the Delegates Conference; the Executive Council; the Management Board; the Secretariat; and the Auditors. According to Rule 14(ii) of the Constitution and Rules, other bodies or committees and sub-committees set up under the authority of the Executive Council or Delegates Conference shall also be regarded as duly constituted bodies: see also Rule 24 of the Constitution and Rules.

21. The Delegates Conference is the supreme authority of the PNGTUC and must meet every two years in or about the month of May under the Chairmanship of the President or a Vice President and must be convened by the General Secretary in consultation with the Management Board and the Executive Council: Rule 15 of the Constitution and Rules.

22. A Special Conference may be convened on the authority of the Executive Council or at the written request of 50 per cent or more of the financial affiliates who must also represent 33 per cent or more of the total membership of affiliates of the PNGTUC: Rule 16(i) of the Constitution and Rules. Decisions taken at a Special Conference will have the same authority as those made at a Delegates Conference: Rule 16(ii) of the Constitution and Rules.

23. Delegates appointed by financial affiliates comprise the Delegates Conference or Special Conference: Rule 17 of the Constitution and Rules.

24. The Executive Council consists of office bearers of the PNGTUC and two permanent members nominated in writing by each financial affiliated organization: Rule 21(i) of the Constitution and Rules. The Executive Council, amongst others, carries out the functions of the PNGTUC in accordance with the policies, resolutions and decisions of the Delegates Conference which may be altered or supplemented by Special Conferences: Rule 21(iii) of the Constitution and Rules.

25. The Management Board comprises the office bearers of the PNGTUC and is the administrative arm of the Executive Council: Rule 22(i) of the Constitution and Rules.

26. The Secretariat of the PNGTUC comprises the General Secretary and staff working under him and the staff are subject to the directions of the General Secretary or his deputy or representative and the control of the Management Board: Rules 23 and 33 of the Constitution and Rules. It is responsible for the day to day affairs of the PNGTUC: Rules 23(i) and 33 of the Constitution and Rules. The General Secretary is an ex-officio member of all Boards and duly constituted bodies of the PNGTUC: Rule 33(vii) of the Constitution and Rules.

27. The office bearers of the PNGTUC are; a President, five Vice Presidents; a General Secretary, an Assistant General Secretary; and a Treasurer: Rule 30(ii) of the Constitution and Rules. They are elected at a Delegates Conference and serve until the next Delegates Conference: Rule 30(i) of the Constitution and Rules.

28. According to Rule 33(1), the General Secretary can work either on a full time basis or part time basis as the Executive Council may decide, but where he works on a full time basis, his terms and conditions of employment is determined by the Management Board and endorsed by the Executive Council.

29. I now return to discuss the issue at hand. From all the evidence before the Court, it is abundantly clear that the Papua New Guinea Trade Union Congress Revitalization Committee is not another industrial organisation or offshoot of PNGTUC established within the framework of PNGTUC or otherwise to warrant registration as an industrial organization under Section 8 of the Industrial Organizations Act.

30. Section 8 states:

8. Requirement of registration of industrial organizations.

(1) The members of the executive committee or the secretary of an industrial organization that consists of not less than 20 employees or four employers shall, within a period of three months from the date of formation of the organization–

(a) make application to the Registrar for the registration of the organization as an industrial organization; or

(b) dissolve and dispose of the funds of the organization in accordance with its rules and this Act.

(2) If he thinks fit, the Registrar may grant an extension of the period specified in Subsection (1) for a period or periods not exceeding six months in the aggregate.

(3) The members of the executive committee or the secretary of an industrial organization, other than an industrial organization referred to in Subsection (1) may make application to the Registrar for the registration of the organization as an industrial organization.”

31. I reject the plaintiff’s submission in that regard.

32. The Papua New Guinea Trade Union Congress Revitalization Committee was established with the sole purpose of revitalizing or invigorating the PNGTUC which it considered was dysfunctional and not living up to its mandate to the detriment of the interest of workers affiliated to industrial organizations they represented or that supported its establishment and who were affiliates of the PNGTUC. It is not an unregistered industrial organization. The conduct of the defendant therefore did not contravene Section 25 of the Industrial Organizations Act.

33. That provision states:

25. Acting on behalf of unregistered industrial organization, etc.

A person who, except for the purpose of–

(a) the formation of the organization; or

(b) applying for and obtaining registration of the organization; or

(c) dissolving the organization and disposing of its funds in accordance with its rules; or

(d) bringing or defending legal proceedings,

takes any part in the management of, or acts or purports to act on behalf of or as an officer of, an unregistered industrial organization to which Section 8(1) applies, is guilty of an offence.

Penalty: A fine not exceeding K200.00 and, in addition, in the case of a continuing offence a fine not exceeding K10.00 for each day for which the offence continues.

34. In any event, the establishment of the Papua New Guinea Trade Union Congress Revitalization Committee was ultra vires the Constitution and Rules of PNCTUC as it was not authorised by the Executive Council or Delegates Conference contrary to Rules 14(ii) and 24 of the Constitution and Rules.

35. The convening of the purported Special Conference was flawed as I am satisfied on the balance of probabilities that the requirements of Rule 16 were not met, i.e., it was neither; authorised by the Executive Council or convened at the written request of 50 per cent or more of the financial affiliates who must also represent 33 per cent or more of the total membership of affiliates of the PNGTUC. The purported incumbent General Secretary as ex officio member was also not involved in the convening of the purported Special Conference. In my view, ILO Convention 87 Article 3 does not derogate from, but are in addition to, the rights and freedoms of workers organizations to pursue their grievances within the framework of the PNGTUC Constitution and Rules and the Industrial Organizations Act.

36. As to whether the defendant was qualified to be appointed as Chairman of the Papua New Guinea Trade Union Congress Revitalization Committee, a consideration of the provisions in the Constitution and Rules relating to membership, affiliation and obligations of affiliated unions and organizations is necessary: Rules 5, 6 and 10. This is because there seems to be distinction made in the Constitution and Rules between an “affiliate” and a “financial affiliate”. These terms are not defined in the Constitution and Rules.

37. However, Rule 6(v) draws some light on the distinction when it states that on being accepted as an affiliate, that organization will be entitled to enjoy the benefits, privileges, facilities and services provided by the PNGTUC except that no organization will assume the status of an affiliate until such time as the affiliation fees due under the Constitution and Rules are paid. Rule 10 then sets out eleven conditions of membership of affiliated unions and organizations to the PNGTUC and they include the payment of capitation fees on or before the prescribed time which is condition number (vi). Rule 27(i) of the Constitution and Rules provides that annual capitation fees are to be paid annually payable quarterly in advance based on the declared membership as per the latest returns made to the Industrial Registrar and shall be K2.00 per member per annum subject to a minimum of K300.00 and such fees or time lines may be varied by the Executive Council or at the Delegates Conference or Special Conference. Rule 27(iv) provides that affiliated organizations which are “unfinancial” shall lose all voting rights or eligibility for all other benefits and privileges available through the PNGTUC.

38. There is evidence from Anton P Sekum, Treasurer of PNGTUC that Papua New Guinea Teachers Association prior to the convening of the purported Special Conference was not a financial affiliate as it has not paid the capitation fees: see also annexure “D” to John Paska’s first affidavit. A payment of K5,000.00 made on 26 January 2016 by cheque No.000326 was dishonoured upon presentation on 27 January 2016. At the time of swearing the second affidavit of Anton P. Sekum on 6 July 2016, the Papua New Guinea Teachers Association owed PNGTUC, since 2012 based on the last declared membership return capitation fees, the sum of K193,360.00. There is no serious contest from the defendant on this point as the defendant states at paragraph 73 of his affidavit that trade unions refuse to pay affiliation fees as the PNGTUC has become dysfunctional.

39. Only financial affiliates are required to be represented at the Delegates Conferences or Special Conferences and vote: Rules 17, 19 and 27(iv).

40. Given Papua New Guinea Teachers Association is “unfinancial”, it could not be represented at the purported Special Conference or have the defendant elected as Chairman of the Papua New Guinea Trade Union Congress Revitalization Committee.

41. There is evidence from the first affidavit of Anton P. Sekum that affiliates of PNGTUC who participated at the purported Special Conference constituted less than 50% of financial affiliates and also did not meet the requirement of 33% or more total membership of affiliates to the PNGTUC.

42. The invocation of Rule 16 of the Constitution and Rules by the defendant and his supporting industrial organizations and individuals although with bona fides was improper and all actions, resolutions and decisions passed or made at the purported Special Conference including the election of office bearers were null and void ab initio.

43. It is abundantly clear that the PNGTUC the mother or umbrella organization of the trade union movement in Papua New Guinea has become dysfunctional as tenures of all office bearers have come to an end. No Delegates Conferences have been held since 2011 it seems so the terms of office bearers elected in 2011 expired in 2013. They no longer have the mandate they were given at the last Delegates Conference in 2011 to hold onto those positions. There is no cure for extension of their tenures under the Constitution and Rules of the PNGTUC except by following the process of electing office bearers thereunder.

44. As for the General Secretary, that position is unique in that he is elected as an office bearer whether he is a delegate of a financial affiliate or not and is also employed by the PNGTUC either on a full time basis or part time basis: Rules 17, 19, 27(iv), 30(2) and 33(1) of the Constitution and Rules. John Paska, the purported incumbent General Secretary executed a contract of employment with the PNGTUC on 21 October 2010 for a term of four years commencing on 21 October 2010 which expired on 21 October 2014. A copy of the contract is annexed to John Paska’s second affidavit as annexure “A”. The contract has accorded continuity of employment of John Paska as General Secretary because after its expiry, if a new contract were not signed, he was deemed to be re-engaged as General Secretary until a new contract was signed or until the next biennial congress was held whichever occurred first. No new contract of employment has been executed between John Paska and the PNGTUC. A biennial congress was scheduled to be convened from 30 to 31 July 2016 in Port Moresby in consultation with the Industrial Registrar: see annexures “D” to “F” of John Paska’s first affidavit. There is no evidence before me to suggest if that biennial congress were ever held or not. Given that, an interesting issue arises as to whether a contract of employment of a General Secretary can be longer than the term held by the General Secretary as an office bearer which is limited to the period of his appointment starting from the date of his election to the next biennial Delegates Conference. This issue is not before me so does not require determination now.

45. From all the evidence before me, I make the following findings of fact concerning the disputed facts and I do so on the balance of probabilities that:

1. The establishment of the Papua New Guinea Trade Union Congress Revitalization Steering Committee, under the Chairmanship of Ugwalubu Mowana, has no legal mandate or standing vested in it by the Constitution and Rules of PNGTUC or the Industrial Organizations Act.
2. The Papua New Guinea Trade Union Congress Revitalization Steering Committee has no legal mandate to engage itself in the management, operations and day to day conduct of the PNGTUC.
3. The purported Special Conference that was conducted on 8 April 2016 at the Port Moresby National High School Conference Hall, Gerehu, National Capital District, is null and void and of no effect.
4. The resolutions and decisions passed and made in the purported Special Conference conducted on 8 April 2016 are ultra vires and of no legal effect.

46. I think the remedy for the defendant or any other interested party concerned with the affairs of the PNGTUC in the circumstances of the present case is found or lies in Section 50 of the Industrial Organizations Act. That provision states:

On complaint by a member of an industrial organization, the Registrar or any other interested party, the National Court may, after giving any person against whom an order is sought an opportunity of being heard, make an order giving directions for the performance or observance of any rules of the organization by a person who is under obligation to perform or observe the rules.

47. The defendant or affiliates of PNGTUC or members of affiliates of PNGTUC who support him or his committee in their endeavour to revitalise or invigorate the PNGTUC as he states could consider invoking this provision if the mechanisms under the PNGTUC Constitution and Rules and the Industrial Organizations Act cannot lawfully be invoked or are frustrated for whatever reason.

48. Moreover, the Industrial Registrar whose office is the administrator and regulator of all industrial organizations including the PNGTUC could exercise its regulatory or supervisory role under powers vested in her under the Industrial Organizations Act to resolve issues confronting the PNGTUC particularly as to the convening of a Delegates Conference to legitimise the structure, administration and management of the PNGTUC.

49. In the result, I am satisfied on the balance of probabilities that the defendant’s election as the purported Chairman of the PNG Trade Union Congress Revitalization Committee is contrary to the provisions of the PNGTUC Constitution and Rules.

REMAINING ISSUES AND CONCLUSION

50. Giving my discussion and findings of fact above, I think it is no longer necessary to address the remaining issues in any more detail than to hold that the purported election of office bearers for PNGTUC conducted on 8 April 2016 at the Diowai Conference Centre, Port Moresby National High School at Gerehu and resolutions and decisions passed or made at that meeting are all void ab initio as the purported Special Conference within which such election of office bearers was conducted and resolutions and decisions passed or made was convened contrary to Rule 16 of the Constitution and Rules of PNGTUC.

51. For all these reasons, I enter judgment for the plaintiff.

JUDGMENT AND ORDER

52. The formal orders of the Court are:

1. A declaration that the group known as the Papua New Guinea Trade Union Congress Revitalization Steering Committee, under the chairmanship of the defendant, Ugwalubu Mowana, has no legal mandate or standing vested in it by the Constitution and Rules of Papua New Guinea Trade Union Congress or the Industrial Organizations Act, to engage itself in the management, operations and day to day conduct of the Papua New Guinea Trade Union Congress.
2. A declaration that the purported Special Conference conducted on the 8 April 2016, at the Port Moresby National High School Conference Hall, Gerehu, National Capital District, is null and void and of no effect, as it was conducted in breach of the Constitution and Rules of the Papua New Guinea Trade Union Congress.
3. A declaration that all the resolutions and decisions passed and made in the purported Special Conference conducted on the 8^th of April 2016, are ultra vires and of no legal effect as being in breach of the Constitution and Rules of the Papua New Guinea Trade Union Congress.
4. An injunction that the defendant and members of Papua New Guinea Trade Union Congress Revitalization Steering Committee, their associates, servants, agents or howsoever, refrain from entering and occupying the office of the Papua New Guinea Trade Union Congress and or interfering in the management and normal daily operations and business of the Papua New Guinea Trade Union Congress.
5. Costs shall follow the event.

6. Time is abridged.
________________________________________________________________
Kubak & Kubak Lawyers: Lawyers for the Plaintiff
Gelu Lawyers: Lawyers for the Defendant