Attorney General v Solomon Islands Public Employees Union [1998] SBHC 101; HCSI-CC 111 of 1998 (3 July 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 111 of 1998

ATTORNEY GENERAL

-v-

SOLOMON ISLANDS PUBLIC EMPLOYEES UNION

High Court of Solomon Islands
(Muria, CJ.)
Civil Case No. 111 of 1998

Hearing: 2 July 1998
Ruling: 3 July 1998

Attorney General the Applicant in person
Presley Watts for the Respondent

RULING

MURIA CJ: This is an application by the learned Attorney General, on behalf of the Government seeking to restrain the respondent’s members, by way of interlocutory injunction, from taking strike action as stipulated in their Strike Notice issued on the 2 June 1998.

Under the Government’s Reform Programme, the Government intends to “right size” the Public Service in order to make it cost effective and efficient. That exercise is said to have a likely effect on 500 to 600 officers in the Public Service. As a result, the respondent Union submitted on 22 May 1998 to the Government, on behalf of its members, a Draft Redundancy Agreement which was intended to cover the terms under which public officers affected are to be made redundant. The Government refused to negotiate or sign the Agreement.

Following that refusal the respondent issued a Formal Notice dated 2 June 1998 of its intention to take strike action. That Notice was served on Permanent Secretary to Public Service. There is contention as to when the Notice was received by the Public Service. The learned Attorney General says that the Notice appeared to have been received on 5 June 1998. However, I do not need to decide on that issue at this stage. That can await the hearing of the substantive application.

The position of the respondent is shown by Exhibit “FG4” which is a letter written by the respondent to the Permanent Secretary to Public Service and exhibited to the Permanent Secretary’s affidavit. Basically that letter says that the members of the respondent had endorsed the strike action, that due notice had been given and that the strike action would be taken at the lapse of the notice period. If one counts the 28 days from 2 June 1998, it clearly expired on 30 June 1998.

There is no explanation before the court as to why this application had to be brought on the very last day, if one is to take the 28 days period from 2 June 1998 or perhaps, not surprisingly from the applicant’s point of view, just as the period about to lapse. Whatever be the explanation, it could hardly be considered as reasonable to justify the delay in this last minute action.

Having said that, I turn to the real issue in this application. As I have said the question as to when the 28 days lapsed is not for the court to deal with in this application. The issue here is rather whether this court should grant the interlocutory injunction, to restrain the members of the respondent from taking strike action at the expiration of the 28 days notice, whatever that date may be. This clearly calls for the consideration of the principles to be applied in considering whether or not to grant such a restraining order.

It is, however, worth mentioning a matter raised by Mr. Watts in his submission before going further to consider the main issue here. Mr. Watts submitted that there is no “trade dispute” here between the parties and that all that there is in existence is a series of exchanges of correspondence between the Government and the respondent. I do not understand the basis far that contention. I would have thought that the facts clearly reveal, as far as I can see, that there is the Government’s Reform Programme which would affect the members of the respondent. The draft Redundancy Agreement, submitted by the respondent, was to cater for the terms under which the members of the respondent would be adequately remunerated if they were to be made redundant. The Government refused to negotiate and refused to sign. There is to me a dispute in existence between the parties in connection with the employment of the members of the respondent. Consequent to that dispute was the issuance of the strike notice. There is clearly a trade dispute in existence between the Government and the members of the respondent in this case. The learned Attorney General was quite correct in his rebuttal to Mr. Watt’s argument in this regard. The problem, as I see it, however, is that the Government and the respondent are not prepared to resolve their dispute up to this last minute. Hence we are here in this state of things, dealing with this application.

To return to the issue here as to whether or not injunction should be granted to restrain the members of SIPEU from taking strike action, it is important to bear in mind the competing rights and obligations of the parties to the dispute in the present case. On the one hand the Government has a duty to the public to ensure that the services are provided. It is therefore not surprising that in view of the coming festival occasions that it insists on essential services in the immigration, civil aviation, customs and excise, quarantine and other essential areas be not disrupted. Although the learned Attorney General did not want, in response to the Court’s question, to put it as high that the reason for seeking the injunction at this very late stage was to ensure that the essential services in the areas mentioned are not disrupted during the comming festival occasions, the affidavit evidence of the Permanent Secretary, in particular paragraphs 13 to 15 of this affidavit, undoubtedly bring out the clear picture behind this application. I set out those paragraphs:

“13. From 3/7/98 - 8/7/98 Solomon Islands will be celebrating three very important events - the Melanesian Arts and Cultural Festival at which the Melanesian countries, Fiji, Vanuatu, Papua New Guinea and New Caledonia will be participating; the Agricultural and Trade Show and the Twentieth Independence Anniversary Celebrations. Important Government Dignitaries of these countries will be coming to these events as well.

14. Essential Services for the purposes of the Essential Services Act is widely defined in section 2(7) of the Act to include immigration, customs and Excise, quarantine and civil aviation.

15. I verily believe that the Strike Notice given by SIPEU did not comply with section 2 of the Essential Services Act and members of SIPEU who are employed in essential services who take strike action as threathened, (such officers) will be risking prosecution and that such strike action will also widely disrupt the three events that are planned for the period between 3/7/98 - 8/7/98”

If interlocutory injunction is not granted, so the argument goes, the loss to the Government would be immeasurable and the Government would not be adequately compensated for such loss. There is therefore, argued the learned Attorney General, a strong case for the issue of the interlocutory injunction. It is further argued that there is a risk of criminal prosecution against those taking part in the strike, should the court finds later that the strike is unlawful. This, the learned Attorney General submitted, is also the reason for the grant of the interlocutory injunction, so as to prevent the members of the respondent from running such a risk.

On the other hand we have the members of the respondent Union who are employees of the Government. As a result of the Government refusal to negotiate the terms under which there (at least 500 to 600 of them) employment would be terminated through the redundancy exercise, they now enter into a dispute with the Government. That dispute was imminent as from 19 June 1998 following the Permanent Secretary’s letter and certainly by 23 June 1998, following the respondent’s letter. There was in existence a dispute between the members of the respondent and the Government.

It had been suggested by the learned Attorney General that as far as the members of the respondent are concerned, they would suffer no loss if the injunction is granted. Mr. Watts, however, urged that there is no basis for the grant of interlocutory injunction here. Counsel further submitted that to issue inter-locutory injunction against the members of the respondent is to deny them of their rights and entitlements under section 13 of the Constitution.

As to the issue raised regarding the non-compliance with section 2 of the Essential Services Act, Mr. Watts argued that section 2 is not relevant to the question of whether or not an interlocutory injunction should be granted against the members of the respondent at this stage. Section 2, argued Mr. Watts, must be construed in the light of the mischief rule and the proper time to deal with that is when the legality of the Strike Notice is considered, that is, when the Originating Summons is dealt with.

I do not need to repeat the principles of law to be borne in mind when considering applications for interlocutory injunctions. They have been authoritatively expounded in the American Cyanamid Co. -V- Ethicon Limited [1975] UKHL 1; [1975] 1 All E.R. 504 and followed in a number of cases, including the ones cited by the learned Attorney General, that is, Nelson Meke -v- Solmac Construction Company Limited CC44 and 45/82, SIG -v- S/PEU [1991] CC102/91 and Beti and Ors - v- Allardyce Lumber Company & Ors (1992) CC45/92. In the recent case of Allardyce Lumber Company Limited and Dovele Development Company limited -v- Nelson Anjo (1996) Civ. App. Case No. 8/96 (CA) referred to as the “Anjo Case”, the Solomon Islands Court of Appeal reiterated the American Cyanamid principles. It stated:

“The first question is: Is the action by the respondent frivolous or vexatious? Is there a serious question to be tried? Is there a real prospect that the respondent will succeed in his claim for permanent injunction at the trial? In essence all these questions are part and parcel of the same test. This issue does not arise for our consideration in this case. Counsel for the appellants conceded in the Court below as well as before us that the respondent has a strong enough case that discloses tribal issues. With respect we agree.

The next question the Court must consider is whether the balance of convenience lies in favour of granting or refusing the interlocutory injunction. There are two sides to this question. If the respondent succeeds in his action, would he be adequately compensated for damages for loss sustained between the application and trial? If the answer to this inquiry is positive, no interlocutory injunction should normally be granted.

If on the other hand damages would not provide adequate damages the Court should consider whether if the respondent fails, the appellants would be adequately compensated under the respondent’s undertaking in damages. If the answer to this inquiry is positive there would be no reasons on this ground to refuse an interlocutory injunction.

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As part of considering the balance of conveince, other being even, an important factor that should be considered is preserving the status quo until the trial is held.

It may also be proper in appropriate circumstances to take into account in tipping the balance the relative strength of each party’s case on the evidence before the trial judge.”

I do not think it can be suggested with much success, that the issue of compliance or non-compliance with section 2 of the Essential Services Act is frivolous or vexations it is a question that is pertinent to the validity of the strike (if taken) by the members of the respondent Union. As such it is certainly a tribal issue in these present proceedings as far as the court is concerned.

The next question to be considered is whether the balance of convenience lies in favour of granting or refusing the interlocutory injunction. This is very much a balancing exercise taking into account the question of adequate compensation for loss sustained as a result of the strike. Thus if the plaintiff succeeds at the trial, and it would be adequately compensated for loss between now and the hearing of the main action, no interlocutory injunction should normally be issued. If the plaintiff fails and damages would not provide adequate compensation then interlocutory injunction should be granted.

A factor to be taken into account in this balancing exercise, is also the need to preserve the status quo between the parties until the main action is dealt with. If, however, after all these steps have been taken and the question of balancing the convenience and inconvenience of the parties still remains unresolved, then the relative strength of each parties case on the evidence may be taken into account in tipping the balance.

How are all these principles to be applied in this present application? Generally, the principles expounded in the cases mentioned can be applied when application for interlocutory injunction is brought before the court. However, each case must be decided on its own facts. Such is the case that in an application for interlocutory injunction in a dispute over customary land between a logging company and the landowners entails a different set of circumstances than those in an application for interlocutory injunction in a labour dispute, although the first of the principles mentioned in the cases referred to would no doubt apply equally, that is, that the claim is not frivolous or vexatious, in other words that there is a serious issue to be tried.

However, as recognised in the cases referred to, it is not the function of the court, at the preliminary stage of the case and on incomplete evidence, to gauge the chances of either party succeeding at the trial. What the court has to gauge is the balance of convenience and inconvenience. The court needs to bear in mind the plaintiff’s need to be protected against injury for which he would not be adequately compensated in damages against the need of the defendants of being at risk of not being able to be compensated in damages for injury arising out of an interlocutory injunction.

If one is to merely adopt this balancing exercise as expounded in the cases mentioned, the court would, in a labour related dispute such as the present one, need only decide the case on the balance of convenience and would likely brush aside the defense available to the defendants under the statute protecting them where their action is taken “in contemplation or furtherance of a trade dispute”, a protection provided under section 24 of the Trade Unions Act (cap. 76). I do not think that the court should simply do that. It is therefore important that in labour dispute or trade dispute, the protection referred to must not be lost sight of.

I do not think it is right that the court should readily grant an injunction in a case such as this unless the applicant can satisfy the court that a breach of contract or a definable tortuous act or a violation of a right is threatened. In the absence of such a violation, the court is unlikely to exercise its discretion. In fact in the absence of such a violation, the court has no discretion to grant interlocutory injunction: Doherty v Allman [1878] 3 App. Case 709.

It must not be lost sight of also that an injunction is a powerful weapon, which can be used to prevent irreparable harm caused by unlawful action. At the same time it is also a formidable device in labour disputes where a temporary prohibition is likely to have a permanent effect on the members of the Union. It will also be noted that strike may well be the ultimate course of action available to the members of the respondent in the present case, in view of the Government’s refusal to consider their demands. With respect to the Permanent Secretary’s suggestion that the respondent was trying to dictate to the Government as to how to run the Public Service, the respondent, was on the evidence before the Court, only trying to put across to the Government the interest of its members who are employees of the Government. There is no basis whatsoever for such a suggestion in this case.

The onus is on the applicant to satisfy the court of the matters I have mentioned and as the learned Attorney General had submitted that there is a trade dispute between the parties here, the onus is on the applicant to show that any strike action to be taken by the members of the respondent Union would be unlawful being not in connection or furtherance of that trade dispute. To simply seek the exercise of the co-ercive power of the court to prevent the respondent from exercising a lawful means of advancing their members’ interest cannot be accepted. A strike action is not unlawful just because it is seen as interfering with the performance of a contract: Morgan -v- Fry [1968] 3 All ER 452. It is a necessary, although ultimate, means for the defense of the workers’ rights and the fulfillment of their just demands.

Likewise, the remedy of interlocutory injunction cannot be used to save the Government from embarrassment should its employees go on strike and the essential services at the airport or elsewhere were not to be attended to. One would have anticipated such a consequence and take the necessary steps as soon as the parties realised that the dispute between them was not going to be resolved easily. Yet they had not done so, particularly the Government or those responsible for handling Government affairs. They did absolutely nothing to properly deal with the matter. This is a very unsatisfactory state of affair in the Public Service.

On the question of granting interlocutory injunction to prevent prosecution for criminal offences, I feel this is a misconception on the use of interlocutory injunction remedy. It implies the commission of a criminal offence on the part of the members of the respondent and that they would continue to do so unless they are restrained. There is no evidence that the members of the Union would commit an Offence, since the strike or the threatened strike has not been determined to be unlawful in anyway. It would not be a proper exercise of the court’s power to do so in this case: See Anjo’s case.

Clearly on the foregoing, this court, in the exercise of its discretionary powers, would not accede to the application in this case. This court is a court of law and this application is decided on legal principles. It is not for this court to give advice to the parties as to how they can use their common sense and the available avenues to resolve this matter.

I have raised in court with the learned Attorney General regarding the use of the mechanism provided by Parliament under the Trade Disputes Act. It is surprising that appropriate methods provided under that Act had not been utilised so that the consequences feared by the applicant of the proposed strike can be taken care of. Instead the parties, particularly, the applicant chose to wait until the very last minute to come to this court. This cannot be a satisfactory way of dealing with matters of high importance such as the matter, which we are dealing with here. However that is to matter for the parties to deal with and not for this court.

In this case, the application by the applicant is dismissed.

(Sir John Muria)
CHIEF JUSTICE