Sullivans (Solomon Islands) Ltd v Solomon Islands National Union of Workers [1998] SBHC 126; HCSI-CC 2 of 1997 (23 October 1998)

IN THE HIGH COURT OF THE SOLOMON ISLANDS

Civil Case No. 2 of 1997

SULLIVANS (SOLOMON ISLANDS) LIMITED

-v-

SOLOMON ISLANDS NATIONAL UNION OF WORKERS

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)
Civil Case No 2 of 1997

Hearing: 18th September, 1998
Judgment: 23rd October, 1998

A. Radclyffe for the appellant
Respondent Unrepresented

PALMER J.: This is an appeal against paragraph 3 only of the Award of the Trade Disputes Panel (“the Panel”) dated 26th November, 1997 in which the Panel held that Saturday working hours from 8.00-12.00 am. were overtime hours and to be paid at overtime rates. Paragraph 3 of the Award read:

“Saturday hours worked are overtime hours and clause 4 of the Collective Agreement is to be amended so as not to contradict clause 5.2.”

The Appellant argues that the Trade Disputes Panel got it wrong in law in that section 11 of the Labour Act provides that the normal weekly hours of any worker shall not exceed 45 hours unless otherwise stipulated in any rules, regulations, contract or agreement negotiated on behalf of any such worker. Learned Counsel Mr. Radclyffe for the Appellant argues that not only was it not inconsistent with the said section but that the Panel erred in law when it sought to delete the words “And all Saturday morning 8 a.m. - 12 mid-day” as inconsistent with clause 5.2 of the Collective Agreement.

The relevant findings of the Panel read:

“Working Hours

Clause 4 of the Collective Agreement provides, ‘That the working hours shall be 37½ hours per week or 7½ hours per day, Monday to Friday inclusive. And all Saturday morning 8 a.m. to 12 mid-day’. The Union’s claim was that extra hours including Saturday morning should be considered as overtime and not normal hours of work. The Panel finds that 37½ hours excludes Saturdays although this clause includes Saturday hours as part of the 37½ hours weekly. This is contrary to Clause 5.2 of the same agreement which provides that Saturday hours are worked twice the basic hourly rate. Overtime should be paid for hours worked over and above the normal working hours. This complies with section 12 (b) of the Labour Act and therefore, clause 4 should be amended by deleting the sentence that reads, ‘And all Saturday morning 8 am to 12 mid day.’”

[Emphasis added]

The error of law which occurred in my respectful view arose from a mis-interpretation by the Panel of clause 4 of the Collective Agreement.

The Panel assumed that 37½ hours per week meant that anything beyond that was overtime, including working hours on Saturday from 8 a.m. to 12 mid-day. Unfortunately it is not for the Panel to read words into an agreement entered into voluntarily and signed by the parties as the Collective Agreement. Clause 4 is crystal clear. Working hours from Monday to Friday are 37½ hours in total, or 7½ hours per day; and includes all Saturday morning 8 a.m. - 12 mid-day. The hours on Saturday morning from 8 a.m. - 12 mid-day have been specifically and expressly included as normal working hours by clause 4 of the said Collective Agreement. There can be no mistake about that.

With respect therefore, I find contrary to what the Panel had said, that there is no inconsistency with clause 5 of the Collective Agreement. Clause 5 is headed “Overtime Rates” and describes the rates to apply for overtime as specified in clause 5.2. Overtime rates during week days therefore is to be paid at 1½ times the basic hourly rate. Rates for Saturdays is to be paid at 2 times the basic hourly rate. It does not say that “Saturday hours are to be worked at twice the basic hourly rate”. There is a clear distinction. Rates to be payable for work done on Saturdays on overtime is at twice the basic hourly rate. Clause 4 however makes clear that from 8 a.m. - 12 mid-day is regarded as normal working hours. It is only anything beyond that, that would attract the overtime rate of twice the basic hourly rate. The same applies to week days. Anything beyond the normal working hours specified should attract the overtime rate of 1½ times the basic hourly rate.

The confusion or mis-understanding I think arose from the assumption made by the Panel that the, 37½ hours per week excluded the hours of work on Saturday from 8 a.m. to 12 mid-day. Unfortunately, that 37½ hours per week only related to the working week from Monday to Friday (inclusive). Saturday working hours from 8 a.m. - 12 mid-day is separately catered for in the next sentence. I quote: “And all Saturday morning 8 a.m. - 12 mid-day”. There can be no mistake, ambiguity or confusion about that. The total number of hours worked per week (including Saturday morning) comes to only 41½ hours. This is still well below the statutory limit of 45 hours per week provided for in section 11 of the Labour Act.

The reference by the Panel to section 12(2) (b) of the Labour Act as amended, with respect is not relevant to the issue of normal working hours. That paragraph relates rather to the overtime rates to be charged. That is not in issue. What was in issue was whether Saturday working hours from 8 a.m. - 12 mid-day were included under the Collective Agreement as normal working hours. Clause 4 of the Collective Agreement could not be any clearer.

ORDERS OF THE COURT:

1. UPHOLD APPEAL.

2. SET ASIDE PARAGRAPH 3 ONLY OF THE AWARD OF THE TRADE DISPUTES PANEL DATED 26 NOVEMBER, 1997.

3. FOR THE AVOIDANCE OF DOUBT, RULE THAT CLAUSE 4 OF THE COLLECTIVE AGREEMENT MAKES CRYSTAL CLEAR THAT NORMAL WORKING HOURS INCLUDE “ALL SATURDAY MORNING 8 A.M. - 12 MID-DAY”.

4. THE APPELLANT TO BEAR HIS OWN COSTS IN THIS APPEAL AS THE RESPONDENT DID NOT MAKE ANY APPEARANCE DURING THE HEARING.

ALBERT R PALMER
THE COURT.