[1987] SILR 60

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 28 of 1987

SOLOMON ISLANDS PUBLIC EMPLOYEES UNION

v

SOLOMON ISLANDS GOVERNMENT

High Court of Solomon Islands
(Ward C.J.)
Civil Case No. 28 of 1987

Hearing: 10th March 1987
Judgment: 13th March 1987

Trade dispute - Jurisdiction of Trade Disputes Panel - whether failure to honour a legally enforceable collective agreement constitutes a trade dispute - whether power to make a retrospective award amounts to compulsory deprivation of property inconsistent with section 8 of the Constitution.

Facts:

The parties agreed (at this stage of their dispute) that they had entered into a legally enforceable collective agreement which the Government later failed to honour. The Union gave warning of a strike. The Government referred the dispute to the Panel, which made preliminary findings. The Union appealed to the High Court, arguing that there was no "trade dispute" and accordingly the Panel had no jurisdiction, and that the Panel had no power to make a retrospective award depriving an employee of an entitlement already accrued as such a power was inconsistent with section 8 of the Constitution and therefore void.

Held:

1. The dispute was connected with terms and conditions of employment; nothing in the Trade Disputes Act 1981 limits the Panel’s jurisdiction to cases where there is no contract or where there is no breach of contractual obligations or where there is no other remedy available.

2. While a retrospective award might have the effect of depriving a party of property that would only become a compulsory acquisition upon enforcement by the High Court, when the exception of the execution of court judgments under section 8(2)(a)(iv) of the Constitution would apply.

Appeal dismissed on both grounds.

Andrew Radclyffe for the Appellant
Reginald Teutao for the Respondent

WARD CJ: On 20th February 1987 the Trade Disputes Panel opened an inquiry into a trade dispute between the Solomon Islands Government and the Solomon Islands Public Employees Union.

The dispute had been referred to the Panel by the Government following a letter dated 30 January 1987 from the Union to the Government which included a section headed "strike Notice". This warned of a strike on 19 February 1987 if the Government did "not honour the Collective Agreement signed by both parties on 1 March 1985".

At the hearing on 20 February 1987, the Union took two preliminary objections and the Panel gave judgment on these matters under the heading "Preliminary Findings".

The Union now appeals under section 13 against those findings on two grounds -

1. that the Panel was wrong in law in holding that the Panel had jurisdiction and that there is "a trade dispute" within the meaning of the Trade Disputes Act 1981 (‘the Act’)

2. that the Panel does not have power under the Act to make a retrospective award that has the effect of depriving an employee of an entitlement already accrued due under the collective agreement dated 11th March 1985 or in the alternative, that any such power is inconsistent with section 8 of the Constitution and is therefore void to the extent of the inconsistency.

Whilst it could be argued that, if the first ground fails, determination of the second ground should await the Panel’s final decision, both parties agree it is conveniently dealt with at this stage. The first ground is that the Panel was wrong in finding this was a trade dispute and in the absence of a dispute had no jurisdiction to inquire into it. Mr Radclyffe points out that, by section 12, this collective agreement is legally enforceable. Where there is such an agreement entered into voluntarily on terms agreed by both parties, he suggests it cannot give rise to a trade dispute under the Act. If there is no trade dispute there is nothing into which the Panel can inquire.

This court has not seen the collective agreement but the Panel accepted and it appears both parties agreed that the effect of paragraph 2 was that pay awards for 1986 and 1987 would correspond with any percentage changes in the Retail Price Index. It is this part of the collective agreement that the Government has not honoured.

The definition of Trade Dispute in the schedule to the Act includes a dispute between employees and employers which is connected with terms and conditions of employment. A collective agreement includes an agreement made by a trade union and an employer relating to or connected with terms and conditions of employment. The collective agreement in this case relates to terms and conditions of employment.

It is accepted by Mr Teutao that the Government has failed to honour the agreement and the Union has asked that it should be implemented. That clearly makes it a dispute between them connected with terms and conditions of employment.

By section 4, any party to a trade dispute may refer it to the Panel. Once the Panel forms the opinion that it is unlikely to be settled by negotiation, the Panel shall inquire into it and make an award.

There is nothing in the Act to limit this jurisdiction. It does not limit the Panel’s power to hearing cases where there is no contract or where there is no breach of contractual obligations or where there is no other remedy available. Indeed until the Panel has enquired into it, it may well not be able to say what is involved. Neither is it precluded from considering the terms of a collective agreement as section 7(2) clearly gives the Panel power, unrestricted by other provisions of the act, to vary such an agreement.

The purpose of the legislation is to provide a procedure to deal specifically with the realities of employment and the Panel undoubtedly has jurisdiction in this case.

I would add that the Union, which appears to have acted throughout with restraint and good sense in the face of an apparently cavalier attitude by the Government, gave notice on 30 January 1987 under the Essential Services Act. The basis of that is, of course, that a strike is a breach of contract and, where it involves essential services, such notice is necessary to prevent the strike being an offence. I find it hard to accept that the Union considered the declaration of a strike over the Government’s failure to honour the agreement did not amount to a trade dispute.

The second ground relates to section 7(3) and 7(4) of the Trade Disputes Act -

"7(3) The award shall have effect for such period (not being less than one year) as may be specified in the award; and the period may begin before the date of the award.

(4) Where any trade dispute referred to the panel involves questions as to terms or conditions of or affecting employment which are regulated by any written law (other than this Act), the panel shall not make any award which is inconsistent with the provisions of that law"

Mr Radclyffe points out that, if an award was made that relieved the Government of its present obligations under the agreement and that was then made retrospective, it would be a compulsory deprivation of the property of the employees and, as I such, would be in breach of sections 3 and 8 of the Constitution.

Section 8 provides: "No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, …." except where a number of conditions set out are satisfied. The Panel found the conditions would be satisfied in this case.

Clearly a retrospective award, if it reduced the amount of money an employee was to receive, would be a loss of property either in the sense of the money itself or, more realistically, of the right to sue and the definition of property in the Interpretation and General Provisions Act specifically includes both money and choses in action.

The Panel in their Preliminary Findings, considered that the matter was covered by section 8 (2) the relevant parts of which are:

"(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section -

(a) to the extent that the law in question makes provision for the taking of possession or acquisition of any property

(iv) in the execution of judgments or orders of a court in proceedings for the determination of civil rights or obligations ..…"

The appellants point out the use of the word "court" does not include the Panel and thus the protection of sub para (iv) does not cover a case such as this. They rely on the definition found in section 16(1) of the Interpretation and General Provisions Act which states "court" means any Court of Solomon Islands of competent jurisdiction.

The Trade Disputes Act set up the Panel and gave it power to inquire into disputes and make awards. However, having made the award, the Panel has no powers of enforcement and so it can make no order.

The effect and enforcement of the award are covered by section 9. Thus 9(3) declares that "it shall be the duty of every party to the award to take all such steps as are reasonably practicable to comply with the award and not to seek to induce any other party to the award to break any of its terms." If however, a party to the award fails in that duty the only means of enforcement is by seeking an order from the High Court and not the Panel.

"9(5). If the High Court finds that the ground on which the application is made is well-founded, the court may, if it considers that it would be just and equitable to do so, grant relief to the applicant in one or more of the following forms.

(6) Those forms are –

(a) an order declaring the rights of the applicant and the respondent in relation to the subject matter of the application;

(b) an order requiring the respondent to pay compensation to the applicant in respect of the breach of duty; and

(c) an order directing the respondent to take such steps for implementing the award as may be specified in the order."

Thus, whilst a retrospective award may have the effect of depriving a party of property that only becomes a compulsory acquisition when the High Court makes an order under section 9. As a result the protection of section 8(2)(a)(iv) of the Constitution applies.

This was the principal basis for the Panel’s finding and I accept it correctly expresses the position.

The appeal is dismissed on both grounds.