Solomon Islands National Union of Workers v Earthmovers [1998] SBHC 106; HCSI-CC 130 of 1998 (17 August 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 130 of 1998

SINUW

-v-

EARTHMOVERS & OTRS

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)
Civil Case No. 130 of 1998

Hearing: 14th August, 1998
Ruling: 17th August, 1998

C. Ashley for the Applicant
L. Tepai for the Respondent

PALMER J.: This is an application by Originating Summons for the Enforcement of the Award of the Trade Disputes Panel delivered on 20 March, 1998 and upheld by this Court on 22nd June, 1998. The award of the Panel read:

“(i) that the employer to formally negotiate with the Union on its proposed Recognition and Collective Agreements;

(ii) that the dismissed workers to be re-instated with effect from the date of termination;

(iii) the employer party to pay all its employees represented by the union an increase of 10% across the board on wages, allowances and incentives with effect from 1st January, 1997.”

The Applicant now comes to Court seeking to activate the provisions of section 9 of the Trade Disputes Act 1981, in particular subsections (3) to (6) on the ground that the Respondents had breached the duty referred to in subsection (3). Subsection 9(3) reads:

“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.”

Ms Tepai, Counsel for the Respondents submit that there is irregularity in the way this summons had been listed for hearing in that the correct procedures had not been complied with. Unfortunately, she did not say what those procedures were. This Court therefore does not know what was implied. It is for learned Counsel to state clearly what is meant.

It is also unclear what the purpose of the summons filed on 3rd August 1998 was for, when it is considered in the light of the Originating Summons filed on the same date. The vital issue raised in both (that is, the originating summons and the said summons) is the same. That is that the Respondents have breached the duty imposed on them “...to take all such steps as are reasonably practicable to comply with the award ....”

An affidavit has been filed in support of that application both by Mr. Ashley, Counsel for the Applicants. It must be pointed out now that the practice by lawyers in this jurisdiction to have affidavits sworn in support of their client’s case must be discouraged. Primarily because it can place such lawyer in an embarrassing position as an officer of the court. It would not be correct for Counsel to give evidence at the Bar Table and at the same time make submissions as advocate for the Applicant. A lawyer should always keep his distance and not get personally involved in his client’s case so that he/she loses sight of his objectivity and independence in representing his client’s case and assisting the Court come to the right decision in law. For future purposes, this court will not hesitate to have such affidavits ruled inadmissible if objection is raised.

The contents sought to be relied on in those affidavits was that to date the Respondents had failed miserably to address the issues raised in the Award of the Panel. There was indications of some arrangements for negotiations but that these have not come to any fruition. In any event the Applicant had made it quite clear that there would be room only for negotiations on how to comply with the award of the Panel; nothing less.

No affidavit in opposition has been filed and very little by way of submissions to show if any at all, what steps are being taken to comply with the award of the Panel other than that an appeal had been filed. I also pointed out in Court during the hearing that no application for a stay pending appeal had been made before the Court of Appeal during its sittings on the week of the 20th to 24th July, 1998. There is also no impediment for such an application to be made to a Justice of Appeal sitting alone. Judges of the High Court are ex officio, members of the Court of Appeal Bench as well. This has not been taken advantage of to date.

During the hearing I also pointed out clearly to parties the possible effect of the Court of Appeal’s findings if the appeal should be allowed. I repeat what was said for purposes of assisting the parties come to a proper understanding of the likely outcome of this long drawn out case. If the appeal should be allowed, then the most that the Appellants (Respondents) in this action can hope for is to have the order for re-instatement of the sacked workers quashed and the matter proceeded with by the sacked workers in the normal way under the Unfair Dismissal Act, 1982.

On the other hand, if the Court of Appeal should dismiss the appeal of the Appellants, then the Appellants are stuck with inter alia, the orders of the Panel to reinstate; failing which the Panel must make an award of compensation in favour of the Applicants.

Taking everything into account, I am satisfied, the Respondents had failed to address in a practical way how it should comply with the award of the Panel pending appeal. The Respondent got time on its side to do this by requesting that its appeal be deferred to the October Sittings. Since then, no constructive and positive measures have been taken apart from a suggestion that negotiations be re-commenced. That with respect is inadequate. The Respondents in this case have been represented by able Counsel from the beginning. In the circumstances, I am satisfied the following orders should be made.

ORDERS OF THE COURT:

1. THE APPLICANT (SINUW) FILES INTO COURT WITHIN SEVEN (7) DAYS ALL THE ENTITLEMENT CLAIMS OF THE SACKED WORKERS FROM 20TH MARCH, 1998 TO DATE OF THIS RULING.

2. THAT SEVEN (7) DAYS THEREAFTER, THE RESPONDENTS SHALL PAY INTO A TRUST ACCOUNT TO BE HELD ON INTEREST BEARING IN THE NAMES OF COUNSELS (ASHLEY AND TEPAI) FOR THE PARTIES, THE TOTAL AMOUNT OF THE ENTITLEMENTS DUE.

3. THAT THE RESPONDENTS SHALL EITHER:

(I) WITHIN FOURTEEN (14) DAYS HEREOF MAKE ARRANGEMENTS FOR THE RETURN OF ALL THE SACKED EMPLOYEES TO RETURN TO THEIR RESPECTIVE PLACES OF WORK ON OR BEFORE TUESDAY 1ST SEPTEMBER 1998; OR,

(II) CONTINUE TO PAY INTO THE IBD TRUST ACCOUNT ON A MONTHLY BASIS THE ENTITLEMENTS DUE TO THE APPLICANTS UNTIL FINAL DETERMINATION OF THE DISPUTE BETWEEN THE PARTIES.

4. THE COSTS OF THIS APPLICATION TO BE BORNE BY THE RESPONDENTS.

THE COURT.