Guadalcanal Development Authority v Solomon Islands National Union of Workers and Workers Inhouse Union (DOMA) [1996] SBHC 74; HC-CC 180 of 1996 (19 December 1996)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 180 of 1996

ter">GUADALCANAL DEVELOPMENT AUTHORITY

-v-

SOL">SOLOMON ISLANDS NATIONAL UNION OF WORKERS
AND WORKERS INHOUSE UNION (DOMA)

="3">Before: Palmer, J

Hearing: 19th November, 1996 - Judgment: 19th December, 1996

Couns. Suri for the Applicant; nt; First Respondent in person

Palmer J.:

By Originating Summons filed on 3rd July, 1996 and Amended Originating Summons filed on 9th July, 1996, the Applicant seeks inter alia, the following orders:

(1) a declaration that the First Respondent contravened section 10(1) as read with section 10(2) of the Trade Disputes Act 1981 when it and its members employed by the Applicant instigated, called, organised or procured strikes on 21st, 22nd, 23rd and 24th of June 1996 in furtherance of a trade dispute over recognition issue after the said dispute had been referred to the Trade Dispute Panel by the First Respondent on 21 June 1996.

(2) a declaration that the Second Respondent contravened section 10(1) as read with section 10(2) of the Trade Disputes Act 1981 when it and its members employed by the Applicant instigated, called, organised or procured strikes on 21st, 22nd, 23rd and 24th June 1996 in furtherance of a trade dispute over recognition issue after the said dispute had been referred to the Trade Dispute Panel by the First Respondent on 21 June 1996.

(3) an order restraining the First and Second Respondents and its members or their Agents from calling, organising, procuring or financing a strike or other industrial action short of strike or threatening to do so until the said trade dispute has been finally settled or determined by the Trade Disputes Panel.

(4) an order that the First and Second Respondent pay to the Applicant damages for loss of production to be assessed.

The brief facts of the case.

The background facts to this application have been conveniently set out in the affidavit of Richard L. Pauku filed on 3rd July, 1996.

The First Respondent is a registered trade union and represents the interests of many workers throughout the country. In May of 1996, it sought recognition from the Applicant as the trade union to represent the interests of the majority of employees of the Applicant. The Applicant responded inter alia by requesting that the names of its employees who are members of the First Respondent be disclosed. This request was refused by the First Respondent as contrary to its policy on how it deals with the issue of recognition. The First Respondent then issued a threat to take industrial action if recognition was not forthcoming. This eventually culminated in the First Respondent instructing its members to go on strike as from 20th June, 1996. In the afternoon of the 21st June, 1996, however, the First Respondent decided to make a referral to the Trade Disputes Panel (see affidavit of James Ilifanoa filed on 18 July, 1996, at paragraphs 3, and 4). The Secretary to the Trade Disputes Panel confirmed that a referral was made on the afternoon of the 21st June, 1996 (see affidavit of Agnes Anisi filed on 9th August, 1996 at paragraph 2).

According to the affidavit evidence of Agnes Anisi, she telephoned James Ilifanoa of the First Respondent at about 3.00 p.m. on 21st June, 1996 informing him that the trade dispute had been registered and that the written notice of the referral could be collected from the Panel Office. James Ilifanoa on the other hand states that the Secretary to the Panel contacted him at about 4.20 p.m. and not 3.00 p.m.. The Applicant received its notice of the referral by facsimile message at about 4.32 p.m. on the same date.

The case for the Applicant.

The Applicant claims that when notice of the referral was communicated to the Respondent pursuant to Rule 3 paragraphs (2), (3) and (4) of the Trade Disputes Panel Rules, 1981, on the afternoon of 21st June, 1996, the First Respondent became bound by section 10 of the Trade Disputes Act and was thereby obliged to take effective measures to advise its members not to continue with any strike action thereafter. The First Respondent failed to do that and thereby breached the provisions of section 10(1) and (2) of the Trade Disputes Act. As a consequence they had suffered loss and seeks to be compensated for the period from the 21st to the 24th June 1996.

Facts not in dispute.

It is not in dispute that a trade dispute was referred to the Panel on Friday 21st June, 1996 and registered on the same day by the Secretary to the Panel, Agnes Anisi (see paragraph 2 of the affidavit of Agnes Anisi filed on 9th August, 1996). It is also not in dispute that both the Applicant and the First Respondent received notice of the referral on the same day pursuant to Rule 3 paragraphs (2), (3) and (4) (see S.I.National Union of Workers v. Star Harbour Timber Co. Ltd unreported judgment, Civil Case No. 153 of 1990, judgment delivered on 12 November 1990, as authority for the proposition that communication by telephone would be sufficient; and see affidavit of James Ilifanoa filed on 18th July, 1996 at paras. 3 and 5; affidavit of Agnes Anisi filed on 9th August, 1996 at para.2; and affidavit of Richard L. Pauku filed on 3rd July, 1996 at para. 9 as to when notice was received from the Panel).

It is not disputed that the General Secretary (Ag) of the First Respondent held a meeting with its members on 23rd June, 1996 at 10.00 a.m. and instructed its members at the said meeting to return to work on the following day. The workers of the Applicant returned to work on 24th June, 1996.

The Law.

Section 10(1) and (2) of the Trade Disputes Act read as follows:

"10. (1) At any time when a trade dispute has been referred to the Trade Disputes Panel and the panel have neither

(a) succeeded in bringing about a settlement of the dispute by negotiation, nor

(b) made an award in the dispute, no person shall do any of the things mentioned in subsection (2).

10.(2) Those things are -

(a) calling, organising, procuring or financing a strike or other industrial action short of a strike in furtherance of the dispute, or threatening to do so; ..."

The Issue.

The central issue in this case is whether there had been a breach of the provisions of section 10(1) and (2) of the Trade Disputes Act? Section 10(1) above and Rule 3(2), (3) and (4) of the Trade Disputes Panel Rules 1981, make it quite clear that a dispute is deemed referred at the time notice would have been received by the parties of the same. At that same instant the parties become bound by the provisions of section 10 of the Trade Disputes Act. In the case of the First Respondent, notice had been received at around 4.30 p.m. on Friday 21st June, 1996. This has not been challenged in any way. The First Respondent thereby became bound by the provisions of section 10 to take effective measures to inform its members not to continue with any strike action, and to return to work with immediate effect. According to the affidavit evidence before this Court, nothing was done until Sunday 23rd June, 1996 when the workers were told in a meeting held at 10 a.m. that day to return to work on the following day. This they did.

Conclusion.

I am satisfied the strike which appears to have commenced on the 20th June, 1996, continued throughout the 22nd and 23rd of June 1996. There is little or no evidence to suggest that the First Respondent took effective steps to have its members informed of the referral and to desist from continuing with any strike action and return to work with immediate effect. In the submissions of Mr Tony Kagovai, he has sought to submit that the omission was not intentional and that it had been practically impossible for them to make the necessary communication before Sunday 23rd June, 1996. With respect, if the Applicant could send out service messages broadcasted at 6.30 p.m. and 7.40 p.m. over the SIBC on the 21st of June, 1996, then I see no reason why the First Respondent should not be able to effect a similar message to its workers on the same evening. It is pertinent to note that the referral had been effected by the First Respondent in the first place and therefore a greater onus lies with them to take effective steps to comply with the provisions of the Trade Disputes Act with immediate effect. I note too that the First Respondent had the whole day on Saturday 22nd June, 1996, to communicate with its members but chose not to do so. A number of reasons have been given as to why no steps were taken on Friday the 21st and Saturday 22nd of June to effect any communication on its members, but unfortunately, I find those reasons to be insufficient and unsatisfactory. If it was difficult to go all the way down to where the workers resided, then the First Respondent could easily have gone down to the SIBC and arrange to have a service message sent on the evening of Friday 21st and Saturday 22nd. I am satisfied the First Respondent had failed to take any effective measures to have its members informed of the referral that itself had made and to have the strike action called off with immediate effect. I am satisfied there had been a breach of the provisions of section 10 of the Trade Disputes Act.

A number of cases have been referred to by Mr Kagovai, but with respect do not impinge directly in any way in the substantive matters in this case.

On the question as to whether compensation should be paid for losses incurred, I am satisfied that it would be just and equitable for the Applicant to be compensated for the loss suffered for those two days of the 22nd and 23rd of June, 1996, pursuant to subsections 10(4), (5) and (6) of the Trade Disputes Act, but not for the 21st and 24th as claimed in the Originating Summons.

The Application seeks declaratory orders against both Respondents, however, the only evidence before me relate to the First Respondent. There is virtually no evidence against the Second Respondent and accordingly the orders sought against the Second Respondent must be dismissed.

="3">ORDERS OF THE HIGH COURT

1. DECLARE that the First Respondent contravened secti(1) as read with section 10(2) of the Trade Disputisputes Act 1981 by not taking effective steps to call off the strike after the trade dispute had been referred to the Trade Disputes Panel on or about 4.30 p.m. on Friday 21st June, 1996.

2. CONSEQUENTIALLY order that the Applicants be compensated for losses incurred in respect of the 22nd and 23rd June, 1996, to be assessed.

3. Costs of the Applicant to be borne by the First Respondent.

ter">ALBERT R. PALMER
The Court.