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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 225 of 2000
THE CHURCH OF MELANESIA TRUST BOARD INCORPORATED
V
THE ATTORNEY GENERAL
High Court of Solomon Islands
(Kabui J)
Date of Hearing: 28th November 2000
Date of Judgment: 8th December 2000
A. Radclyffe for the Plaintiff
Francis Waleanisia for the Defendant
JUDGMENT
(KABUI J): By an Originating Summons filed on 28th September 2000, the Plaintiff is applying to the Court for the determination of the following questions -
1. Employment Act (Cap. 72)
2. Labour Act (Cap. 73)
The Background
The facts are agreed. This matter arose in this way. Mr. C. Rore is an officer in the Ministry of Education and Human Resources Development. On 2nd May 2000, he wrote a letter and addressed it to all Education Secretaries. In that letter, amongst other things, he told them that as from the date of that letter, housing allowance would stop being paid. In that letter, he also said that each Education Authority was to be responsible for housing its teachers and therefore should pay housing allowance when that is lacking. This change of policy was to be effected on the payday of 18th May 2000. The reason he gave for that change in policy was the cost cutting measures being undertaken by the Government. However, there was a change of mind following that letter of 2nd May 2000. By letter dated 18th September 2000, Mr. C. Rore wrote again to all the Education Secretaries, telling them that the change of policy communicated to them in his earlier letter of 2nd May 2000 would now be implemented as from 1st January 2001. This change of mind was the result of intervention by SINTA representing the Honiara Branch. This lull was necessary to enable each Education Authority to prepare its 2001 budget taking on these costs as from 1st January 2001. Mr. Rore also copied his letter of 18th September 2000 to the General Secretary of SINTA for information purposes. The Plaintiff is the Church of Melanesia Trust Board Incorporated. It is an approved Education Authority. As such, the Plaintiff is responsible for two categories of schools. The first category comprises Selwyn College, St. Stephen School, Pamua, and St. Francis Primary School, Vaturanga. These schools are owned and ran by the Plaintiff from its own monthly grants. These grants cover the running costs of these schools but not salaries and allowances. The second category of schools comprises St. Nicholas Primary and Secondary School in Honiara and Christ the King Primary School at Gilbert Camp. These schools are financed from school fees and donations from parents. Salaries and allowances are however paid by the Government as also in the case of teachers in category one above. NPF contributions are also paid by the Government for the teachers in both categories. In the case of Selwyn College, the teachers do sign contracts of employment in a standard form. As to the other schools of the Plaintiff, there are no contracts of employment signed between the teachers and the Plaintiff.
In terms of discipline of teachers, the Plaintiff reports to the Teaching Service Commission (the TSC) with recommendations for action. The TSC makes the final decision. The matters of salaries and allowances are often matters of dispute between the Plaintiff and teachers over the question as to who is the employer of the teachers. The employer may well be the Plaintiff, the TSC or the Government. The other matter of dispute is the payment of housing allowance. The Plaintiff does not pay housing allowance as a matter of practice in the past. The Plaintiff provides accommodation for its teachers teaching in its schools by providing its own houses or rented houses.
The question whether or not teachers are public officers and therefore are employees of the Government had been raised twice in Solomon Islands. The first was in the case of Tri-Ed Association v SI College of Higher Education [1985/1986] SILR 173, where the Solomon Islands Court of Appeal held that the academic staff of the College representing the former Teachers’ College and the Technical Institute were not public officers following the establishment of the College of High Education by an Act of Parliament. The second time was the trade dispute case between the Government and SINTA in 1991 where the Trade Disputes Panel held that SINTA members were not employees of the Government. This is the third time that a similar, if not, the same question has come back to the Court for determination. But this time, clarification is being sought by an Education Authority, the Plaintiff, one of the many in Solomon Islands providing both primary and secondary education.
The Education Act (Cap. 69)
The Education Act is divided into eight Parts. Part II establishes a National Education Board consisting of a Chairman and other members appointed by the Minister ten of whom to represent the Education Authorities, at least one to represent the interest of teachers, at least one to represent the Minister of Home Affairs, at least one to represent commercial interests in Solomon Islands and the Chief Education Officer in the Ministry responsible for education. Other persons may be appointed by the Minister from time to time. The functions of this Board are set out in section 6 of the Act. This section states –
“The Functions of the Board shall be –
(a) to advise the Minister on matters concerning the operation and development of the education system of Solomon Islands;
(b) to make recommendations to the Minister on matters of education policy and any related matters referred to it by the Minister; and
(c) to advise the Minister on matters concerning the financing of education services.”
Part III deals with Education Authorities of which the Plaintiff is one. Section 9 says that the Education Authorities specified in the schedule to the Act are deemed to be Education Authorities approved by the Minister responsible for education. By 1980, there were 20 approved Education Authorities in Solomon Islands. By now this number must have exceeded 20. I am sure of this for new Community Schools have since sprung up in the Provinces. Such increase in the number of Education Authorities is allowable under this Part of the Act. The criteria for approving any person or entity to be an Education Authority are set out in section 10. This section states –
“The Minister shall not approve a person or organisation or a Provincial Assembly as an Education Authority unless and until sufficient information is supplied to the Minister to satisfy him –
(a) after receiving the advice of the National Education Board, that there is a genuine need for the proposed Authority to operate a school or schools;
(b) that the school or schools will operate to the general benefit of the people of the area;
(c) that the proposed Authority has sufficient resources and facilities available for the satisfactory operation of the school or schools it proposes to establish;
(d) that there is no existing Authority providing or capable of providing a similar school or schools in the area in which the proposed Authority will operate;
(e) that the proposed Authority can competently administer the school or schools.”
Section 11 deals with the conditions for withdrawal of Ministerial approval from any Education Authority and what happens to the school affected upon withdrawal of Ministerial approval. Section 12 deals with the functions of an Education Authority. This section states -
“An Education Authority shall be responsible for the maintenance of those schools which it is registered as an Education Authority under section 9, and in particular each Authority shall ensure that the requirements of this Act, and any requirements of the Minister or Ministry made in accordance with the provisions of this Act, are complied with in respect of each school for which it is responsible.”
Part IV of the Act deals with control of the Schools by the Government through the Ministry responsible for education. This is done through the Permanent Secretary who keeps a Register of Schools which must contain the following –
(a) the name and place of the School;
(b) the name of the Education Authority administering the School;
(c) classification by size of the School as determined by the Permanent Secretary and any other as may be prescribed by the Minister. Such matters as the establishment and registration of schools, cancellation of schools, the age of entry, enrolment and hours of instruction, inspection of schools and closure of schools etc are also dealt with under this Part. Part V of the Act deals with curicula and examinations. Part VI of the Act deals with teachers. All teachers must be registered by the Government through the Permanent Secretary of the Ministry responsible for education. There is a procedure for application. Application may be accepted or rejected in which case there can be an appeal to the Minister. There is also a removal procedure. In this regard, section 34 states,
“(1) The Permanent Secretary, on the advice of the Teaching Service Board, shall after such teacher has been dismissed in accordance with the procedures laid down in the Teaching Service Handbook, remove any teacher from the Register of Teachers.
(2) Where a teacher has been removed from the Register of Teachers in accordance with subsection (1) he may, after the expiry of two years, apply in accordance with section 30 to be again placed on the Register.”
There is also a Teaching Service Board under section 35 consisting of a Chairman and not less than 2 or more than 4 members appointed by the Minister to represent teachers in all types of school etc. As to the functions and duties of the Board, section 36 states –
“The functions and duties of the Teaching Service Board shall be –
(a) to exercise general oversight on all matters relating to the terms of service and welfare of members of the Solomon Islands Teaching Service;
(b) to advise the Minister on salaries and conditions of service for members of the Solomon Islands Teaching Service;
(c) to confirm all appointments made to schools and the relevant salary scale entry points;
(d) to consider and act upon recommendations made by Education Authorities or their appointed Boards or Committees in matters of discipline within the Solomon Islands Teaching Service, and to consider any appeals made by teachers against those recommendations; and
(e) to undertake such other functions relating to the Solomon Islands Teaching Service as may be assigned to it by this Act or as the Minister may from time to time delegate to it.”
As to the Teaching Service Handbook, section 37 states –
“(1) The Minister shall publish or cause to be published a Teaching Service Handbook which shall set out the terms and conditions of service of teachers.
(2) Members of the Solomon Islands Teaching Service shall be employed on the terms and conditions of service set out in the Teaching Service Handbook.”
Part VII of the Act deals with finance. This is important and so I reproduce Part VII in full. Sections 38 to 42 are hereby reproduced.
Part VII
Financial
(2) It shall be the responsibility of the Education Authority to determine the proper disbursement of collected fees, and to ensure that proper accounts are kept and safeguards are employed.
In pursuance of section 38 above, the Grants Code was published by Legal Notice No. 44 of 1979. In pursuance section 42(I) above, the Schools Fees Regulations were published by Legal Notices Nos. 10/89 and 100/89.
The Substance of the Education Act
The long title to the Act is in the following terms,
“AN ACT TO MAKE PROVISION FOR THE STRUCTURE OF THE EDUCATION SYSTEM OF SOLOMON ISLANDS AND FOR MATTERS CONNECTED THEREWITH AND INCIDENTAL THERETO”
The substance of the Education Act lies in its long title. It speaks for itself. As I see it, the Government in 1978 accepted the fact that education in both primary and secondary schools was not to be provided by the Government alone for obvious reasons. Everyone knows that in the early days, education was only provided by the Churches. It was rudimentary, just reading and writing. It was very useful because the Christian converts would be able to [sic] the Bible and to sing hymns written in English although translation in local dialects was also being done by the missionaries. The first Government School is King George VI School located initially at Aligegeo near Auki in the Malaita Province in the early 1950s. It is still a Government Secondary School today. Waimapuru Government Secondary School is a recent establishment. Most of the schools in Solomon Islands today both primary and secondary schools are owned ad operated by the Churches, Provincial Governments, Honiara Town Council and including private entities and local communities. It made sense in 1978 and still does today that the Government should assist all non-Government schools with funds to enable them to fulfil the great responsibility of providing education as a recognition of that service. It was not a bad idea because it was partnership in education being put in practice in Solomon Islands. The Education Act reflects that policy. The only weakness of this policy is that the Government may be unable to fund adequately an ever increasing number of Schools in the country with a fast growing population.
Structure of the Education System as reflected in the Education Act
Part III of the Act allows schools to be established or maintained by any person, organization or a Provincial Assembly/Government. However, such schools can only be established with the approval of the Government through the Ministry responsible for education. The guidelines for the establishment of such schools are also set out in Part III to avoid the proliferation of schools which are either uneconomic to run or do not operate according to the expectation of the Government. The penalty for the non-observation of the guidelines set out in Part III is withdrawal of approval by the Government which may result in the deletion of that school from the list of approved schools. If that happens, the Government will come to the rescue by transferring the operation of such school to the Government for a period to be prescribed in the order deleting that school made by the Government. The Government will however control the schools through a system of registration, the age of entry into the Schools, enrolment, hours of instructions and inspection of schools etc. The Government may also close schools for health reasons. The Education Authorities are also obliged to provide information about the operation or establishment of their schools to the Government. The Government is also responsible for the curricula to be followed in the schools and the examination standard to be followed. The Government also controls the teachers teaching in these schools though a registration system for teachers with regards to standard and suitability of teachers. On application for registration, the Government may refuse registration in which case, the teacher may appeal to the Minister for redress. The Teaching Service Handbook will set out the terms and conditions of service for the teachers. The Teaching Service Board will oversee the terms of service and the welfare of the teachers, advise the Government on salaries and conditions of service for members of the Teaching Service in Solomon Islands and to deal with disciplinary matters affecting the teachers. To back up the Teaching Service Structure, the Government will provide financial assistance through various grants to the Education Authorities in Solomon Islands. The Teaching Service Handbook contains the terms and condition of service for the teachers in non-Government schools. Teachers teaching in Government Schools are public officers though appointed by the TSC. Their terms and conditions of service are set out in the General Orders. The structure of the education system in Solomon Islands is therefore shaped like a pyramid. The apex is the Government through the Ministry responsible for education in Honiara. At the apex lies the control of all schools including Government Schools in terms of control of the number of Schools, the quality of teachers, the quality of education being taught, the curricula to be used and financial assistance. The base of the pyramid are the Education Authorities. As the population grows, the base of the pyramid tends to stretch and if care is not exercised, the apex may be pulled in by the pressure of there being too may schools to look after so that the apex keeps being pulled in until it is parallel with the base with the result that the system of education at that stage may collapse. The Government may at this stage be unable to cope with its financial support for the schools in Solomon Islands for financial reasons. This scenario does not need to be that if the control at the apex is strong and keeps in the right direction.
The Intention of Parliament
In terms of financial assistance to non-Government Schools, Part VII of the Act is crucial for that purpose. The payment of grants to Education Authorities for educational purpose is based upon the discretion of the Minister after consultation with the National Education Board. It is not compulsory for the Minister to do so. (S. 38(1)). The grants if they are made ought to be controlled through the Grants Code. (S. 38(2)). Any Education Authority that fails to follow the provisions of the Grants Code will suffer the penalty of having to refund on demand part or the whole of the grant made by the Minister (S. 38(3)). Each Education Authority is answerable for the use of the government grant in that annual statements of account be produced for scrutiny to satisfy the Government that the government grant had been used correctly for its purpose (S. 39). As regards the imposition of school fees, the Minister prescribes them after consultation with the National Education Board (S.40). Remission of school fees can only occur upon conditions prescribed by the Minister (S. 41). The Headteacher collects the school fees and the responsible Education Authority controls the spending of the fees and to ensure that proper accounts are kept in respect of the use of the School fees (S. 42). The intention of Parliament is that government grants are decided by the Minister in consultation with the National Teaching Board subject to control within the provisions of the Grants Code.
The Grants Code
The heading of the Grants Code is as follows –
“GRANTS CODE RELATING TO RATES AND CONDITIONS OF GOVERNMENT FINANCIAL ASSISTANCE TO EDUCATION AUTHORITIES”.
It speaks for itself. It is divided into three Parts being A, B and C. Paragraph 10 of Part B being recurrent grants to Secondary School states –
“(1) Salaries and allowances shall be paid on behalf of Education Authorities in accordance with the provisions of the Teaching Service Handbook to teachers who –
(a) have qualifications and experience acceptable to the Minister; and
(b) are within the staffing ratio of the school as prescribed by the Permanent Secretary under section 18 of the Education Act.
(2) Teachers employed in excess of the approved staffing ratio must –
- (a) have qualifications and experience acceptable to the Minister; and
- (b) be paid at approved Teaching Service rates from school or Education Authority funds.”
Likewise, paragraph 17 of Part C being recurrent grants for primary schools states –
“Salaries and allowances shall be paid on behalf of Education Authorities in accordance with the provisions of the Teaching Service Handbook to teachers who –
(a) have been appointed in accordance with the procedure laid down in the Teaching Service Handbook; and
(b) are serving in a school where the ratio of staff to pupils does not exceed that prescribed by the Permanent Secretary in accordance with section 18 of the Education Act.”
In both cases, salaries and allowances are to be paid on behalf of Education Authorities in accordance with the provisions of the Teaching Service Handbook. The payment of salaries and allowances to Education Authorities is a form of financial assistance approved by the Government for them.
Who then is the employer of teachers teaching in non-Government Schools?
To answer this question, one must turn to the case of Tri-Ed Association v S.I. College of Higher Education cited above. At pages 179 to 180, Sir John White P. said –
“The indicia of employment are stated in Halsbury 4 Ed. Vol. 16 para 501, see also Fridman’s Modern Law of Employment at p. 20 and I quote the latter:
(a) The master’s power of selecting his servant.
(b) The payment of wages or other remuneration.
(c) The master’s right to control in a general manner the work to be done.
(d) The master’s right of suspension or dismissal.
We were referred also to the following passages in Halsbury 4 Ed. Vol. 16 para 502:
“Whether or not, on any given case, the relationship of employer and employee exists is a question of fact, although the contract is a matter of law.”
“A person may be the employee of another even if a third party has the power of appointing or dismissing him or requiring his dismissal.”
There was no dispute that this was a correct statement of the law.”
Connolly JA and Kapi JA agreed that this was a correct statement of the law. Taking these indicia one by one and applying it to the facts of this case, can one say, or anyone for that matter, that teachers teaching in non-Government schools within the Teaching Service are employees of the Government?
Is there evidence suggesting that teachers in non-Government Schools are employees of the Government?
The problem here is that apart from the Government, the teachers themselves, the Education Authorities and SINTA do not seem to know the exact relationship between themselves and the Government. Everything seems to be paid for by the Government over the years and so the teachers have believed at times that they are also public officers. This is the root of the confusion over this matter. However that may be, the indicia of employment as quoted by Sir John White, P. above would be the guiding principles in finding out whether or not the teachers in non-Government Schools are employees of the Government. For my purpose, I will consider them as follows -
(a) The master’s power of selecting his servant
The starting point here is section 116 B of the Constitution. This section states –
“(1) Power to make appointments to the offices to which this section applies (including power to confirm appointments) and to remove and to exercise control over persons holding or acting in such offices is vested in the Teaching Service Commission.
(2) The Teaching Service Commission may, subject to such conditions as it thinks fit, delegate any of its powers under this section by directions in writing to any member of the Commission or to any public officer or to any provincial government officer.
(3) Before making any appointment to a school set up by a Provincial Assembly or a Church or other body, the Teaching Service Commission shall consult the relevant education authority.
(4) This section applies to teachers in Primary Schools and Secondary Schools.”
The appointment of teachers in primary and secondary schools is done by the TSC. However, the selection of names of teachers recommended for appointment by the TSC is done by the Education Authority (see page 12 of the Teaching Service Handbook). In fact, the vacant posts are advertised by the relevant Education Authority and the TSC only acts on the advice of that Education Authority after receiving the submission from that Education Authority. The submission contains evidence of qualification and experience, confidential report, curriculum vitae, short listing and the Education Authority’s recommended candidate probably in order of preference. The Government plays no part in this process of appointing teachers to non-Government Schools. The fact that the TSC appoints the teachers bears no legal significance in so far as it has the power to select the teachers for employment. It is just the appointing authority full-stop.
(b) The payment of wages or other remuneration
Again, the starting point is that vacant posts in schools controlled and operated by Education Authorities are not public service posts in that they are not offices of emolument in the public service as defined in section 144 of the Constitution. Such posts should not appear in the Government’s Establishment Register for any financial year. In fact, they do for convenience’s sake but done separately by the Public Service Division in the Prime Minister’s Office. For example, there is the Teaching Service Year 2000 Approved Establishment Register for teachers. There is also the usual Establishment Register for public officers in Government Service. The teachers’ Establishment Register sets out the posts and the corresponding grades/levels against those posts. In this respect, there is a similarity between the Public Service and the Teaching Service because posts in the Public Service are also identifiable in terms of grades/levels. In terms of comparison with the two Government Secondary Schools, there is a difference. The post of Principal for King George VI School and Waimapuru Secondary School is graded as Level 11/12. The post of Principal for other National Secondary Schools is graded level 9/10. The post of Principal of Community High Schools is graded level 8/9. There may be however variations. The post of Headteacher for Primary Schools, is graded level 6. There may also be variations. The Teachers Establishment Register is necessary because the Government is directly paying them through the Treasury Division for convenience. It saves the Education Authorities a lot work and cost. The Government does it all for all the Education Authorities. Such posts are created by the Education Authorities and the level of pay for those posts are prescribed by them also. Nowhere in the Education Act does it say that Government will pay the salaries and allowances of teachers in non-Government Schools. Even the payment of salaries and allowances in paragraphs 10 and 17 of the Grants Code above is clearly being done on behalf of and for the Education Authorities. They come as recurrent grants to these schools from the Government. The recurrent grants are annual income received from the Government. The payment of teachers’ salaries etc through the central salary payment system by the Treasury Division in the Ministry of Finance is being done for convenience’s sake than for anything else. That is to say,
“Salaries are paid centrally by the Treasury on behalf of Education Authorities. This function maybe devolved to Education Authorities. Payments are made by cheques & through Bank Accounts, distributed to Education Authorities by the Teaching Service Office.
An education Authority which employs teachers in excess of its entitlement as laid down by the Ministry, shall be responsible for the payment of their salaries.”
(See page 21 of Teaching Service Handbook).
It seems that most of the Education Authorities are not in the position as yet to do this themselves or are not likely to do so for practical reasons. A practical reason that comes to my mind is the lack of skilled accounting manpower and the lack of supporting administrative infrastructure in these schools to enable them to handle and account for these Government grants etc each year. One can imagine a scenario where most of the schools, if not, all of them do not accurately account for the proper use of Government grants and are in arrears of this for years. It can be a mess. Why not if the Government does it for them? The answer is that it can be done and now is being done by the Government on their behalf and for them. It does not mean that by doing this, the Government becomes their employer. Far from it I must say. This is also the case for the payment of NPF contributions. In other words,
“Under the provisions of the National Provident Fund Act, all members of the S.I. Teaching Service are registered as contributors to the fund. For administrative convenience, the Education Authority and the Treasury undertake the functions laid down in the Act as the responsibility of the employer for the teachers.”
(See page 22 of the Teaching Service Handbook).
In practical terms, it means the recurrent grants for salaries and allowances to all Education Authorities also cover the cost of NPF contributions for the teachers though they are not employees of the Government. However, the manner of presentation in the recurrent estimates in the government budget does not reflect exactly the types of grants specified in the Grants Code. These grants simply appear as expenditure in the government recurrent budget. For this purpose I would take judicial notice of the SIG Recurrent Estimates 2000 and the Teaching Service Approved Recurrent Establishment Register 2000. For example, the expenditure for teachers’ salaries for National Secondary Schools for year 2000 is $2,443,305. This is an increase of $53,681.00 from the same expenditure for last year. The sum of $2,443,305 already includes housing allowance, other allowances and NPF(7.5%) contribution. This same presentation applies to all other schools in Solomon Islands. Teachers’ salaries for year 2000 stand at $49,131,703. It is an increase of $12,596,501. The cost of salaries for 2001 and beyond is likely to continue increasing as new schools are established. There are 561 non-Government schools in Solomon Islands excluding King George VI School and Waimapuru Secondary School being the only two Government Schools. It seems that levels of salary for teachers in non-Government Schools are pitched at the same or similar levels as in the Public Service posts to reflect some element of consistency and equality I would say. May be to close the gap that allegedly existed between the pay structure for teachers and public officers in the Public Service in the past. Whilst the policy in the Education Act is a noble one, Government commitment is obviously enormous and burdensome in terms of sheer cost to the economy. If the economy should collapse, these schools would also be affected likewise. The point however is that even with this understanding between the Government and the Education Authorities for the payment of salaries and allowances through the Treasury in the Ministry of Finance, the fact still remains that teachers in non-Government Schools are not employees of the Government.
(c) The master’s right to control in a general manner the work to be done
As I have said, the Government’s responsibility is the control of the quality of teachers through a registration system, the number of schools, the quality of education being taught, the curricula and providing financial support. It does not involve itself in the day to day control of how the teachers are to perform their duties. The official working hours are set out at page 17 of the Teaching Service Handbook. The supervising authority is usually the School Committee headed by a Chairman. The Principal of the School works closely with the School Committee to ensure that the teachers are doing their work properly in that School. Generally, the responsibility posts are “... Principals, Deputy Principals, Headmaster, Deputy Headmasters, Heads of Departments, Career Masters, Tutors, Heads of Subject and Senior Teachers.” (See page 14 of the Teaching Service Handbook) plus the functions of the Provincial Governments set out at page 11 of the Teaching Service Handbook which in the main are supervisory in nature. The control of the teachers is the responsibility of assigned teachers in the schools in liaison with the School Committees under the supervision of Provincial Governments. Again, the Government plays no role in this apart from visits from officers from the Government’s Education Inspectorate and Monitoring Division within the Ministry responsible for education.
(d) The master’s right of suspension and dismissal
The starting point again is the TSC’s power to dismiss all teachers based upon submissions from the Education Authorities (See page 14 and 34 of the Teaching Service Handbook). The TSC is independent of the Education Authorities. It is different from the Public Service Commission (“the PSC”), the Judicial and Legal Service Commission (“the JLSC”) and the Police and Prisons Service Commission (“the PPSC”) in that the TSC appoints and removes teachers, the majority of whom are not public officers like the PSC, the JLSC and the PPSC which deal only with the appointment, discipline and removal of public officers being employees of the Government. However, the TSC is not the employer of teachers in non-Government schools though it can terminate the employment of teachers where necessary. The fact is that the TSC acts only on submissions which would have commenced in the initial stages from the Education Authorities within their schools. All in all, the Government does not, on the evidence, satisfy the indicia (a), (b), (c) and (d) as set out above quoted from Sir John White, P. in the case of Tri-Ed Association v S.I. College of Higher Education cited above so as to be legally the employer of teachers in non-Government Schools in Solomon Islands.
Conclusion
In relation to the Employment Act (Cap. 72), the Labour Act (Cap. 73), the Safety at Work Act (Cap. 74), Workmen’s Compensation Act (Cap. 78) and the Solomon Islands National Provident Fund Act (Cap. 109), the Plaintiff is the employer. This is the answer to question I posed in the Plaintiff’s Originating Summons. The answer to question 2 posed in the Plaintiff’s Originating Summons is as set out in section 69 of the Labour Act. This section states –
“Where an employer’s undertaking in so located that a worker cannot reasonably be expected to return to his home at the conclusion of his daily work, the employer shall cause such worker, together with his wife and children, to be adequately and properly housed in or near the undertaking, or pay to such worker a housing allowance:
Provided that –
(a) nothing in this section shall be deemed to confer upon the worker a right to free housing for himself and his family; and
(b) in the event of an employer charging rent for housing supplied to the worker under this section, such rent shall not exceed such rate as may from time to time be approved by the Commissioner.”
This is a troublesome section of the Labour Act. It ought to be amended by Parliament to reflect the current situation in the labour market in the country. A lot has changed since the enactment of the Labour Act in 1960. Many Solomon Islanders do now own their own houses in Honiara. They go to work in Honiara from where they live in Honiara. Some live away from Honiara but travel by road transport to and from work in Honiara each day. They are from other Provinces as well as the areas surrounding Honiara and other remote parts of Guadalcanal.
My understanding of this section is that an employer is only obliged to house its employee where the employee cannot reasonably in terms of distance or otherwise be expected to return to his or her home at the end of his or her day’s work. The classical example is the case of Plantations labourers who could not have been expected to go home at the end of the day’s work. Labourers’ quarters were therefore built for them. Even Government housing in Honiara and elsewhere was put in place for the same reason. Other employers in Honiara and elsewhere in Solomon Islands have done the same. In lieu of providing housing, housing allowance would be paid to the employee.
The housing allowance is for the purpose of compensating the employee for having to find accommodation on his or her own. The law seems to leave the choice in the hands of the employer so that where no accommodation is provided, housing allowance must be paid because the employer knows that the employee cannot return home at the end of the day’s work. Section 69 however does not define the word “home”. In my view, “home” means the home village of the employee because in 1960 when the Labour Act was introduced most employees were migrant workers even from the Islands where the work-places were located such as Plantations on Guadalcanal, Russell Islands, Western Province and elsewhere. Since 1960, time has changed. Some employees who work in Honiara as I have said, own houses in Honiara from which they leave for work and return at the end of the day’s work. If they do not own a house and are not accommodated by their employers, they would be entitled to housing allowance because obviously they cannot return to their home village at the end of the day’s work. In my view, the employee who is paid a housing allowance would still have to find some place to spend each night for the duration of employment. In comparing this employee with an employee who has built himself a house near the workplace or within a reasonable distance from his or her workplace by reason of easy access to road transport such as an employee from Kakabona or beyond to the west of Honiara or SIPL east of Honiara, there is to my mind no difference between them. Apart from travelling to and from work each day which may involve some cost, the provision of a reasonable healthy accommodation provided at personal cost is equally an inconvenience that must attract housing allowance. The level of that housing allowance is a matter to be agreed between the employer and employee. The reason, I venture to say, is the same. Each employee in each case cannot return to his home village at the end of the day’s work on foot. Even if the employee does return to his home village such as Kakabona etc, he or she would still do so at a personal cost of paying for transport to get there. In summary, the position is that no employee has a right to free accommodation for himself or herself and his or her family. But the employer may provide accommodation for that employee and family if it is not possible for the employee to return to his or her home at the end of the day because the place of work is so located that the possibility of the employee returning home at the end of the day’s work is not reasonably expected by the employer. However, where the employer does not provide accommodation, housing allowance will be paid to the employee. This housing allowance is supposed to be compensation for the loss of the privilege of being accommodated by the employer. In practical terms, it means the employee would have to fend for himself or herself and family. Nowadays, it would mean having to have one’s own house built or buying a house for oneself and family. It is the same as foregoing accommodation provided by the employer and being paid housing allowance and being able to find one’s own accommodation in Honiara or elsewhere. There is definitely a case for housing allowance. In the result, the Plaintiff is legally obliged to pay housing allowance to teachers under section 69 of the Labour Act where teachers live in their own houses and go to work. Question 2 posed in the Plaintiff’s Originating Summons is therefore accordingly answered in the affirmative. If there are cases of exceptional hardship being experienced by any Education Authority in this respect, relief can be obtained by way of exemption under section 79 of the Act. I make no order as to costs.
(F.O. Kabui J)
Judge
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