Solomon Islands National Union of Workers v Attorney General [1990] SBHC 108; [1990] SILR 7 (7 March 1990)

[1990] SILR 7

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 187 of 1989

SOLOMON ISLANDS NATIONAL UNION OF WORKERS

v

ATTORNEY GENERAL

High Court of Solomon Islands
(Ward CJ)
Civil Case No 187 of 1989

Hearing: 28 February 1990
Judgment: 7 March 1990

Trade Unions - strike notice under Essential Service Act - freedom of assembly and association - statement of illegality of a strike - threat of termination of contract - interpretation of Constitution, section 13

Facts:

The Plaintiff was recognised by the Government as the authorised representative of its non-established employees. On 21 June 1989, the Plaintiff sent a letter to the Government enclosing a number of claims in respect of a collective agreement signed between the non-established employees of the Government and the Government. Negotiations then took place between the representatives of the two parties on the 24 July 1989. Subsequent to this, a letter was written to the Plaintiff by the Acting Chief Administrative Officer of the Public Service Office, stating inter alia, that the Government no longer recognised the Plaintiff as the legal representative of the non-established workers and that it did not wish to continue the negotiations. The Plaintiff responded with a 28-day strike notice under the Essential Services Act. On the same day, the acting Chief Administrative officer issued a Public Service Circular, stating inter alia, that any strike action would be considered as illegal and that appropriate measures would be taken against participants in the strike.

Held:

1. The statement that the strike was illegal did not in any way impinge on the rights of the employees to associate with others or to join a trade union, and hence s 13(1) of the Constitution was not breached.

2. The threat of termination of the contract of employment if they went on strike did not contravene s 13(1) of the Constitution.

3. (Obiter) Whether or not the threat of termination of the contract amounted to the torts of conspiracy or intimidation was a question of fact and the court would not rule on issues of fact of which there was insufficient evidence. Equally the court would not make a declaration on a preliminary point as a foundation for substantive relief that might be claimed in another action.

Cases referred to:

Solomon Islands National Union of Workers v Honiara Town Council [1988/89] SILR 43

Legislation referred to:

Constitution, section 13(1)
Essential Services Act Cap 12
Trade Unions Act Cap 76, sections 2(3) and 59(2)

J. Corrin for the Plaintiff
P. Afeau for the Defendant

WARD CJ: The Solomon Islands National Union of Workers have, by originating summons, sought the answers to a number of questions of interpretation of the Trade Unions Act and the Constitution.

I have already in the answers to the first two questions, ruled that the proviso to section 2(3) of the Trade Unions Act applied to non-established employees of the Government and allowed them to join the plaintiff union.

As a result, Question 3 does not need to be answered and I now consider the remaining questions:

4. Whether the Defendant’s action in notifying employees (on behalf of whom the Plaintiff had served due notice under the Essential Services Act (Cap. 22) that strike action was illegal, is contrary to S.13(1) of the Constitution or otherwise contrary to the law.

5. Whether the Defendant’s action in notifying employees (on behalf of whom the Plaintiff had served due notice under the Essential Services Act (Cap 22) that strike action would result in immediate termination of contract, is contrary to S.13(1) of the Constitution, or amounts to breach of contract on the part of the employer, or is otherwise contrary to the law.

The Union has been recognised by the Government as the authorised representative of its members who are non-established employees of the Government and the Union and the Government have been parties to a collective agreement covering these members’ terms and conditions of employment.

Thus, on 21st June 1989, the Union sent a letter enclosing a log of claims in respect of the collective agreement. As a result negotiations took place on the 24th July 1989.

The Court has heard nothing of what transpired at those talks but, two days later, a letter was sent to the Union by the acting Chief Administrative Officer of the Public Service Office, Mr Hatigeva, stating:

Following our meeting on 24 July 1989, I wish to advise that on the basis of the existing law, SINUW is not qualified to be the legal representative of the government non-established workers and as such we would not negotiate with SINUW on the log of claims in question.

This letter also serves to inform you that we will only negotiate with our non-established workers through their Joint Consultative Committee.

This letter supersedes whatever arrangement SINUW might have made with this office in the past years.

It is hardly surprising that the Union responded by serving a 28 day strike notice under the Essential Services Act. The same day the acting Chief Administrative Officer issued a Public Service circular:

Please be advised that following a decision in which government declined recognising the Solomon Islands National Union of Workers as legal representative of the government non-established employees on industrial matters, as agreeing to this would be unlawful, the union is trying to instigate them to call for a strike.

2. This is to forewarn you that any strike by our non-established workers would be regarded as illegal and those absenting themselves from work in support of the strike must be immediately reported to this office for appropriate actions to be taken against them.

3. Perhaps it would be of help if you advise your non-established staff of the consequences of taking illegal strikes, and the fact that this office is currently reviewing their terms and conditions of service in Chapter S of General Orders. Not only that but this office is more than prepared to negotiate directly with them through their Joint Consultative Committee on matters pertaining to their conditions of service.

4. We anticipate your assistance and co-operation in this regard.

He also wrote to the Union declining to meet with its representative.

On the 2nd of August a letter was sent to a Mr Laerau in the Ministry of Agriculture and Lands which explains the basis of the Government’s decision to refuse to recognise the Union’s right to represent the non-established workers although it does not explain the basis of the repeated suggestion that the strike would be illegal. It also amounts, according to the plaintiffs, to the tort of intimidation and so I set out in full.

Dear Mr Laerau,

NON-ESTABLISHED EMPLOYEES ANTICIPATED STRIKE

Following government’s refusal to recognise the Solomon Islands National Union of Workers to be the legal representative of all our non-established employees on industrial matters, because to do so would contravene section 2 subsection 3 of the Trade Unions Act, SINUW is now calling on you and those whom you represent to leave your jobs towards the end of this month.

This being the position, I wish to point out that we are more than prepared to negotiate directly with your group (Joint Consultative Committee) rather than SINUW. Hence I urge you and your group to arrange yourselves for a convenient time for us to meet and discuss any grievance you may have.

However, if you insist on heeding to SINUW’s call for strike and absent yourself from work, please be warned that your strike would be illegal and the consequence of such action would be an immediate termination of employment with government.

To avoid us having to take action against you for which you will later regret, I advice you and those whom you represent to disassociate yourselves with the SINUW’s striking threat.

By copy your Permanent Secretary is asked to inform us on Monday 28th August 1989 if you have taken part in the strike so that we proceed taking appropriate action against you.

I trust this clarifies any doubts and my only hope is that this will discourage you from being misled to act illegally which could jeopardise your employment with the Solomon Islands Government.

Thank you for taking your time to think sensibly!

The Union wrote suggesting that this was intimidation and was forcing the workers to withdraw their membership from the Union. The reply from Mr Hatigeva, on 18th August, denied that and repeated the reason for the refusal to recognise the Union. This letter appears to be the first copied to the Attorney General and the reply by the Union was also copied to him. Despite the unnecessarily aggressive and abrasive tone of Mr Hatigeva’s letter, the Union adopted an extremely responsible approach and withdrew their strike notice, telling the Government they intended to test the decision in the High Court.

I have already ruled that the Government was wrong in its interpretation of section 2 and it is appropriate to deal with two matters which stem from that. The first is that it seems unfortunate such a serious decision of law affecting the basic rights of a large number of government employees was taken by an officer at this level and apparently without seeking advice from the Attorney General’s department. Had the Union not taken such a responsible stance, this matter could have progressed to mass dismissals based on a misreading of the law and possibly left the Government paying considerable damages or compensation quite apart from causing a disruption of the public service far greater than any that might have been caused by the strike it was presumably trying to avoid.

The second matter is that, once the case came to Court, the Attorney General conceded that Mr Hatigeva’s interpretation of the law was wrong. That was a matter the Attorney General should have realised as soon as he saw the letter of 18th August and the Union reply of 25th August. Had he taken the step, at that time, of advising the Government of its mistake, these whole proceedings could well have been avoided.

Question 4 asks the Court to say that the statement by the Government that the strike was illegal is a breach of section 13 of the Constitution. I have already referred to the meaning and scope of section 13 in the case of Solomon Islands National Union of Workers v. Honiara Town Council No. 266 of 1988 and I do not need to go further here.

The statement that the strike was illegal does not in any way impinge on the rights of the workers to associate with others or to join a trade union. The answer to Question 4 is "No".

Similarly with Question 5, the question whether the threat of termination of the contract if they went on strike contravenes section 13 must be answered in the negative.

However, in relation to Question 5, Miss Corrin for the Union takes it further. The comments regarding termination of the contract, especially in Mr Hatigeva’s letters of 2nd August and 18th August, amount, she says, to the torts of conspiracy and intimidation.

Whether or not the acts evidenced in the affidavits before the Court amount to either, requires a consideration of such matters as the intention of the Government in relation to the interests of the Union and whether its actions are covered by section 59(2) of the Trade Union Act. Far from seeking a declaration on the law alone, it would place the Court in the position of ruling on issues of fact of which there is insufficient evidence. Equally, the Court will always be reluctant to make a declaration on a preliminary point as a foundation for substantive relief that could or may be claimed in another action.

I do not feel that is a proper case for any further declaration and I decline to make one in relation to the question of conspiracy or intimidation.

This case arose from a misinterpretation and could, as I have said, have been avoided by proper and timely action by the Attorney General’s department. I see no reason why the respondent should not pay the whole of the plaintiff’s costs to be taxed if not agreed.