Fa'aleua v Provincial Secretary [1997] SBHC 113; HCSI-CC 129 of 1996 (2 December 1997)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 129 of 1996

PETER FA'ALEUA
(as representative of Western Province Casual Labourers)

AND

PROVINCIAL SECRETARY
(as representative of Western Province)

High Court of Solomon Islands
(Muria, CJ.)
Civil Case No. 129 of 1996

Hearing: 30th September 1997 in Gizo
Judgment: 2 December 1997

Mr. D. Hou for Plaintiff
Ms Hamilton for Defendants

MURIA CJ: This is an application by way of an Originating Summons seeking two declarations, one concerns an alleged breach of section 15(1) of the Constitution and the other concerns the entitlement of the plaintiffs to Annual Leave, sick-Lease and other rights and privileges pursuant to section 18 of the Employment Act, 1981.

I set out the declarations and orders sought:

“1. A declaration whether upon the true construction of the Western Province Staff Instructions and Scheme of Service 1992 chapter 0302(1) 0409(1) and (2) and the Western Province Casual Labourers Contract of Employment with the Plaintiffs contravenes section 15( 1) of the Solomon Islands Constitution in view of Sections 2, 38 and 120(1 )(s) and (t) of the Labour Act, section 18(2)(e) of the Employment Act and the Holidays, Sick Leave Passages Rules 1982 and therefore, null and void.

2. A declaration whether upon the true construction of section 18(2)( e) of the Employment Act, sections 3B and 120(1)(s) and (t) of the Labour Act and the Holiday, Sick Leave and Passages Rules 1982 incorporated into the Plaintiff’s Contract of Employment the right to Annual Holidays and benefits therewith and sick leave.

3. (a) The Plaintiffs be entitled to the value of their Annual Holiday entitlement backdated to all the years they have served as Casual Labourers.

(b) That the Plaintiffs be also entitled to Annual Holidays, Sick Leave, and other rights and privileges pursuant to S.18 of the Employment Act.

4. An Order that the Defendant pays the costs of this application.”

The action is brought as a representative action on behalf of some 21 so called “casual labourers.” No issue has been taken by the defendant on this course of action and so the Court proceeded to deal with this matter as a representative action on behalf of those casual labourers. I venture to suggest, however, that the individual status of each person in a group action at times is a matter which ought to be given consideration, particularly in cases involving contractual relationship. This is very often important as the standing of a party in an action is a relevant consideration in invoking the jurisdiction of the Court. Although the Court will always have its doors open to all who desire to come to it to seek justice, it must also be wary of not opening the “floodgates” too wide.

At the commencement of the hearing, Mr. Hou informed the Court that his clients are not pursuing the first declaration sought based on the alleged breach of the Constitution. That having been abandoned, the Court will concern itself only with the second declaration which Mr. Hou now only relied upon.

It is necessary to set out the brief circumstances of this case before proceeding further with the matter. The plaintiff and other labourers were employed by the Western Provincial Government as “casual labourers.” Their terms and conditions of employment are set in a Document marked Exh. A, attached to Peter Fa’aleua’s affidavit and Headed “GENERAL CONDITIONS.”

Apart from not disputing the fact that the plaintiffs are instituting these proceedings as a representative action, the defendant also conceded the facts set out in the affidavit of Peter Fa’aleua who was employed in 1994 and 1995 as Supervisor of Casual Labourers who were responsible for cutting grass, collecting rubbish and other related cleaning activities within Gizo Town Boundary. In 1996 and 1997, Peter Fa’aleua was employed as a Security man for the Gizo Market in addition to continuing to supervise the casual labourers.

The terms and conditions of employment as set out in Exh “A” include matters such as date of commencement of employment, date of completion of employment, fortnightly pay period, termination of employment without notice, and automatic cessation of employment should the employee is absent from work for one day or more without the employer’s permission. It is also provided under the General Conditions of each of the plaintiff’s employment that he is not entitled to Holiday Leave or Sick-Leave or other benefit, entitlement or allowance that had not already been conferred by the Local Government Staff Instructions. As to fares and travelling expenses, the employer is liable to pay for such expenses but only those previously authorised in writing by Head of Works Division or his Deputy. The employee is not entitled to have such expenses paid for him after his employment is terminated. This Exhibit “A” is the contract of employment and it is stated to be made pursuant to section 18 of the Employment Act of 1981.

Those are being the circumstances surrounding this case, I now turn to the argument as presented before the Court. The plaintiff’s case is that they had been working for the defendant continuously since 1994 and despite the terms and conditions of their employment as stipulated in Exhibit “A”, they were in effect permanent employees and therefore entitled to annual leave, sick leave and other rights and privileges as provided for under section 18 of the Employment Act, 1981.

In support of his case, Mr. Hou for the plaintiff, relied on, apart from section 18 of the Employment Act, sections 3B and 120 of the Labour Act and Rule 2(2) of the Holidays, Sick-Leave and Passage Rules 1982. I set out these provisions hereunder.

Section 18 (1) (a) of the Employment Act provides as follows:

“18. (1) It shall be the duty of every employer who has one or more employees -

(a) to ensure that, in the case of each employee, the relevant particulars of the terms of his employment are recorded in writing;”

(2) In subsection (1), “relevant particulars”, in relation to any employment, means particulars of any terms relating to the following matters -

(e) holidays, holiday pay and passages:”

Section 3 B (1) of the Labour Act provides as follows:

“3B(1) The Minister may make Rules in accordance with section 120 which shall have the effect of including in every contract of employment to which such Rules apply terms relating to the provision of annual holiday leave (including payment of leave passages), sick leave and sickness benefits.”

and section 120 (1) also of the Labour Act is in the following terms:

“120(1) The Minister may make rules generally for the better carrying out of the provisions of this Act and, without derogation from the generality of the goregoing, for all or any of the following purposes -

(s) making provision for persons employed in undertakings generally, or in a particular undertaking, to be entitled to holidays with or without pay and, in such circumstances as may be specified therein, making provision for the payment of passages to enable workers to return from their place of employment to their home island during such holidays or at the termination of their employment;

(t) prescribing the circumstances and conditions under which leave with or without pay and other benefits may be granted to employees in the event of casual sickness, or long term sickness certified by a medical practitioner in circumstances not covered by the Workmen’s Compensation Act;”

Rule 2(2) of the Holidays, Sick-Leave and Passages Rules 1982 provides as follows:

“2.(2) These rules shall have the effect of including in the contract of employment of each worker to whom the rules apply the provisions of rule 4 to 7 inclusive as terms of such contract.”

Miss Hamilton, for the Defendant, conceded the facts relied upon by the plaintiffs. She, however, relied on the interpretations of the provisions referred to. She further added that the defendant accepts that the Holiday, Sick-Leave and Passages Rules, 1982 apply to all workers including the plaintiffs. She submitted that as far as the matters referred in s.18(2) of the Employment Act, s. 3B (1) of the Labour Act and r.2 (2) of the Holiday, Sick- Leave and Passage Rules, those matters were deemed to be part of the plaintiffs contract giving rise an obligation on the part of the parties to observe. Hence, counsel submitted that there is no need for a declaratory order to enforce those matters.

It was submitted also on behalf of the defendant that the issue raised by the plaintiffs in this case should have been referred to the Trade Disputes Panel which Counsel submitted was the proper venue to resolve the issue raised rather than coming to this Court on the first instance.

The concession by the defendant in this case that the plaintiffs are covered by the Holiday, Sick-Leave and Passage Rules, 1982 would resolve the issue that is now before the Court, the issue being whether the plaintiffs are entitled to their holiday, sick-leave and paid passages to their homes and return. Mr. Hou, however, was not content to leave it at that for the simple reason that although the provisions of the Holiday, Sick-Leave and Passages Rules, 1982 apply to the plaintiffs and which are deemed to be part of the contract entered into between the plaintiffs and defendant, the fact is that the defendant has not paid the plaintiffs their entitlement as stipulated under the contract. He therefore comes to this Court seeking the declaration.

In terms of the provisions of the law referred to earlier in this judgment, the concession by the defendant is inevitable. But while the defendant’s concession is accepted, the plaintiffs remain unpaid of their entitlements under the contract. This Court will, upon application by the plaintiffs, assist the plaintiffs in enforcing their rights and entitlements due to them under the contract. They have chosen to do that by asking for a declaration which I see no reason to refuse to grant it to them. The fact that the rights and entitlement were deemed to be part of the contract is no reason to avoid making a declaration properly sought before the Court. In the circumstances of the present case, the plaintiffs are well aware of the need to be armed with an order from the Court rather than simply waiting on the defendant to fulfill its obligations under the contract.

The other issue raised by the defendant is the question of proper forum to resolve this case. Miss Hamilton suggested that the plaintiffs’ complaint should have been brought before the Trade Disputes Panel first, rather than coming directly to the High Court. The non-payment by the defendant of the plaintiffs’ entitlements under their contract of employment may well be a trade dispute which the Trade Disputes Panel has jurisdiction to deal with had it been referred to it. The plaintiffs chose to bring the matter to this Court by way of Originating Summons seeking declaration of their rights instead of referring the matter to the Trade Disputes Panel. That is the course they took and they are entitlement to do so. I do not think that the plaintiffs ought to have been restricted to the machinery available under the Trade Disputes Act for resolving disputes over matters relating to their employment unless they chose to invoke the jurisdiction of the Panel in the first place. The avenue under the Trade Dispute Panel is not exhaustive and the plaintiffs do not have to exhaust the machinery provided under the Trade Disputes Act. They have chosen to take the course they now pursue and this Court will hear them.

In the circumstances and for the reasons stated in this judgment, I will grant the declaration sought in paragraph 2 of the Originating Summons, namely: that the plaintiffs are entitled to their annual paid holiday, sick-leave and passages as stipulated under section 18 of the Employment Act, 1981.

The costs of this application to be paid by the defendant.

Order accordingly.

(GJB Muria)
CHIEF JUSTICE