PNG Forest Product Ltd v PNG Forest Products & Workers Union [2015] PGSC 36; SC1441 (7 July 2015)

SC1441

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA. 41 OF 2013

BETWEEN:

PNG FOREST PRODUCT LIMITED
Appellant

AND:

PNG FOREST PRODUCTS & WORKERS UNION
Respondent

Waigani: Sawong, J, Murray & Higgins, JJ
2015: 29th June, 7th July

INDUSTRIAL RELATIONS– Industrial Relations Act 1962 –

INDUSTRIAL RELATIONS Act 1962 – Strike action whether illegal – protected industrial action – no cause of action – genuine industrial issues appeal dismissed

Cases Cited:
Papua New Guinea Cases

Nil

Overseas Cases
Crofter Hand Woven Harris Tweed Ltd v Veitch [1941] UKHL 2; [1942] AC 435,
Floyd, LW- " Waipa and the Wharves " (1999) TashlawRev 4)
South Wales Miners Federation –v- Glamorgan Coal Coo [1905] AC 435.
Wilson and Palmer v. UK [2002] ECHR 552

Legislation Cited:

Employment of Non-Citizens Act 2007
Industrial Relations Act 1962
Industrial Organisations Act 1962 (PNG).
PNG Stevedoring Workers Industrial Award No. 1 of 2006

Counsel:

A. Mana, for the Appellant
M. Pokia, for the Respondent

7th July, 2015

1. BY THE COURT: The appellant is referred to as "the Company" and the respondent "the Union."

2. The undisputed facts, as the learned trial judge, Kariko, J, recounted them, are:

(1) Members of the Union are employees of the Company.

(2) On 25th August 2012, the Union through its Executive wrote to the Company raising concerns over medical checkups for employees and the training and localization program.

(3) The Union gave the Company seven days ultimatum for a response failing which the matter would be referred to the members.

(4) On 3rd September, the Company replied by letter asking for clarification of the two issues.

(5) On 4th September 2012, the Union members resolved to take strike action commencing at twelve (12) noon the next day.

(6) on the morning of 5th September 2012, the Industrial Registrar wrote to the Union advising that the proposed strike was illegal as the issue of medical check-ups and training and localization were not industrial matters and proper process had not been followed in addressing the issues.

(7) The union commenced its strike action at midday on 5th September 2012.

(8) Fearing for the safety of other employees (that is employees who were non-members of the Union) the management of the Company shut down its operations.

(9) The Company filed this proceeding in the National Court on 9th September 2012 and obtained interim injunctive orders on 10th September 2012 against the continuation of the strike.

(10) The Court Orders were served and the Union decided to call off the strike and for its members to return to work.

(11) The Company resumed operations on 11th September 2012.

3. It is important to note the relief sought by the appellant.

1. Pursuant to the Courts inherent power under Section 155 of the Constitution, an interlocutory injunction to restrain the defendant forthwith, whether by its servants, officers, agents or otherwise howsoever, from inciting, instructing, inducing, procuring, persuading, assisting, encouraging, organizing, financing and/or facilitating those employees who are members of the defendant as referred to in clause 2(a)(i) of the PNG Stevedoring Workers Industrial Award No. 1 of 2006, which was registered as a (sic) award present to section 40 of the Industrial Relations Act, by engaging in an industrial action against the [Company] in the form of a complete stop work in the port of Port Moresby and interfering with the commercial contracts of the [Company] and interfering with the trade or business of the [Company] by unlawful means while the said Award remains in full force and effect.

2. A declaration that the strike which was called by the [Union] on 6th September 2012 for employees of the [Company] to stop working for the [Company] or the [Company's] related [Companies] at the various premises of the [Company] is illegal.

3. Pursuant to the Court's inherent jurisdiction under section 155 of the Constitution, a permanent injunction to restrain the [Union] forthwith, whether by its servants, officers, agents or otherwise howsoever, from inciting, encouraging, inducing, procuring, persuading, assisting, encouraging, organising, financing and/or facilitating members of the [Union] referred to in PNG Stevedoring Workers Industrial Award No. 1 of 2006, which was registered as an (sic) award pursuant to section 40 of the Industrial Relations Act, by engaging in industrial action against the [Company] in the form of a complete stop work in the port of Port Moresby and interfering with the commercial contracts of the [Company] and interfering with the trade or business of the [Company] by unlawful means while the said Award remains in full force and effect.

4. Damages for breach of the PNG Stevedoring Workers Industrial Award No. 1 of 2006 and damages for the breech of the Industrial Relations Act.

4. At the outset it was conceded by counsel for the Company that the stated Award had no application to the Union or its members. The strike had nothing to do with the port of Port Moresby.

5. That left the proposition that, somehow, the strike was otherwise illegal and in some other way gave rise to a cause of action vested in the Company against the Union.

6. Certainly, if the strike was illegal an injunction to restrain it would be warranted. However, the company now accepts that the strike ceased on 10th September 2012. There is no reasonable apprehension of further strike action that would warrant a permanent injunction. That claim is abandoned.

7. The leaves the other two issues addressed by the learned trial judge, namely;

(1) Was the strike action illegal?

(2) Is the Union liable in damages for any losses sustained by the Company as a result of the strike action.

Illegality of strike action

8. At common law, a strike can be an actionable conspiracy. That denies the existence of a right vested in workers to take concerted industrial action. It is generally regarded in both international labour relations and domestic industrial relations as a fundamental right of employees to withdraw their labour. The old common law rule has, by and large, been abrogated by statute.

9. It is appropriate to refer so the Industrial Relations Act 1962 (PNG) and the Industrial Organisations Act. Was this an industrial dispute? The Industrial Registrar's letter suggesting, not mandating, negotiation, asserted that it was not.

10. His Honours reasoning on that issue is, we believe, unimpeachable. That was expressed as follows:

"9. The relevant definitions are found in s.1 of the Act which provides that an "industrial dispute" includes a dispute or difference between an employer and its employees in relation to an "industrial matter". I am satisfied that the definition is wide enough to find there was a dispute or difference in the present case between the Company (as employer) and the Union (comprising employees). The Union was not content with the issue of medical checks for employees and the training and localization program while the Company maintained that it had a reasonable policy in place for medical checks and had complied with the law in relation to training and localisation.

10. But did the dispute or difference concern "industrial matters" which the Act defines as "all matters pertaining to the relations of the employers and employees?" The Act provides a non-exhaustive list of such matters and these include;

' .............

(b) the privileges, rights and duties of the employers and employees; and

............

(h) the mode, terms and conditions of employment; and"

(my underlining)

11. The company produced evidence that it has in place a Medical Check Policy whereby the Company may require employees to undertake medical checks to assess their fitness for work. The policy further provides for employees working a treatment process to undergo yearly medical examination. It seems to me therefore that medical checks are a condition of employment, at least for a certain class of employees.

12. An employer who employs non-citizens is obliged (and therefore has a duty) to submit a training and localisation program for national employees. Under s.26 (1)(a) of the Employment of Non-Citizens Act 2007, the Secretary of the Department of Labour and Industrial Relations may take into account an employer's commitment to the training and development of Papua New Guinean workers and this usually takes the form of a training and localisation program or plan developed by the employer. The Company says it has complied with the Legislation, while the Union members have concerns regarding this matter.

13. I conclude therefore that the issues raised by the Union and its members with the Company are "industrial matters" and there existed an "industrial dispute."

11. His Honour's references to "the Act" are references to the Industrial Organisations Act 1962 (PNG).

12. Of relevance is s.29 of that Act. It provides:

"No civil legal proceedings are maintainable against a registered industrial organisation or an officer or a member of a registered industrial organisation in respect of an act done in contemplation or in furtherance of an industrial dispute to which a member of an industrial organisation is a party on the ground only that the act;

(a) induces some other person to break a contract of employment; or

(b) interferes with –

(i) the trade business or employment of some other person; or

(ii) the right of some other person to dispose of his capital or labour as he wishes."

13. His Honour's reasoning in our view is unexceptionable. It cannot be otherwise in light of the provisions of the Act referred to. Hence s.29 was engaged. It renders the Company's proceedings unmaintainable. It entrenches the right of employees so non- violent industrial action in the context of a genuine industrial dispute. This provides the Court a limited extent for a right to strike. (See generally, Floyd, LW- " Waipa and the Wharves " (1999) TashlawRev 4)

14. But the matter does not end there. Despite the clear provisions of s.29, the Company sought to claim the Union strike action was unlawful by the reason of the provisions of the Industrial Relations Act 1962. The Act and the Industrial Organisations Act are to be read together. The definitions and the immunities provided for by the Industrial Organisations Act are to be read as if included in the Industrial Relations Act.

15. Part III of the Industrial Relations Act relates to the settlement of industrial disputes.

16. Section 24 empowers the Head of State to refer issues raised in an industrial dispute to a Board of Inquiry. This did not occur in the present case.

17. Section 25 provides:

(1) A person who is concerned with or interested, or is likely to be concerned with or interested in an industrial dispute may report the dispute to the Departmental Head.

(2) An employer or an industrial organization who is a party to or is involved in an industrial dispute that gives rise, or seems likely to give rise, to a strike or lock-out, must immediately notify the Departmental Head or an officer of the Department.

Penalty: A fine not exceeding a K100.00

18. This section only imposes an obligation on either the Company or the Union to notify the Departmental Head or a Departmental Officer when a strike (or lockout) has occurred or is likely to follow the existence of an industrial dispute. It does not render a strike illegal, nor a lockout for that matter. If industrial action of the kind referred to has been reported, the Departmental Head (or his or her delegate) shall enquire into the dispute and may require the parties to negotiate within fourteen (14) days from being notified to do so (s.25(3)(b).

19. None of this renders any strike or its continuation unlawful. The learned trial Judge so found and it follows that we agree with him. It further follows that the letter to the Union by the Industrial Registrar not only incorrectly described the strike as illegal but had no effect on the lawfulness of the action taken by the parties.

20. It further follows that the Company has not suffered any damage by any reason of any unlawful act confers immunity of the Union. However insofar as a lawful strike may nevertheless amount to an actionable wrong; see South Wales Miners Federation v Glamorgan Coal Co [1905] AC 435. The Industrial Organisations Act confers immunity from such suit by virtue of s.29. (see also Crofter Hand Waven Harris Tweed Ltd v Veitch [1941] UKHL 2; [1942] AC 435, Wilson and Palmer v. UK [2002] ECHR 552.

21. This entrenches the rights of workers organised in registered trade union's, such as the Union, to take non-violent industrial action, even if it causes economic loss to the employer. That protection extends to the members of the Union.

22. Thus his Honour's conclusion that, in effect, the Union had engaged in protected industrial action was unassailable.

23. It is unnecessary to consider whether the response of the Company to the strike or imposing a lockout of the workers was a novus actus interveiens, in any event, or indeed, gave rise to an action by the non-union employees of the Company.

24. It suffices to say that the cause of action asserted by the Company against the Union lacked any legal foundation and was rightly dismissed.

25. The Appeal is dismissed. The Company is to pay the Union's costs of and incidental to the Appeal to be taxed if not agreed.

__________________________________________________________
Mirupasi Lawyers: Lawyers for the Appellant
Allens Lawyer: Lawyers for the Respondent