Solomon Islands Government v Solomon Islands Public Employees Union [2003] SBHC 63; HC-CC 003 of 2003 (22 January 2003)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 3 of 2003

BETWEEN:

THE SOLOMON ISLANDS GOVERNMENT

AND:

SOLOMON ISLANDS PUBLIC EMPLOYEES UNION

AND:

THE OFFICERS OF THE IMMIGRATION, CIVIL AVIATION AND METEOROLOGICAL DIVISIONS

High Court of Solomon Islands
(Muria, CJ)

Date of Hearing: 16^th January 2003
Date of Judgment: 22^nd January 2003

Attorney General for the Plaintiff
Mr P. Watts for the Defendants

MURIA CJ: By his application by way of an Originating Summons brought pursuant to Order 58, rules 1 and 2 of the High Court (Civil Procedure) Rules 1964 (“the High Court Rules”)^[1] the learned Attorney General on behalf of the plaintiff, seeks the determination of three questions and consequential orders. Further orders are also sought by the plaintiff in relation to the Trade Disputes Panel’s Award made on 2^nd December 2002. The questions and orders sought are in the following terms:

“1. Whether the Officers of the Immigration, Civil Aviation and Meteorological Divisions of the Ministry of Commerce, Employment and Trade (the Second Defendant) are engaged in providing an “essential Service” as defined in section 2 of the Essential Services Act;

2. Whether the said officers are required to give notice in accordance with the provisions of section 2 of the Essential Services Act before they can withdraw their labour or go on strike or take industrial action;
   
3. Whether the said same officers have satisfied the notice requirements stipulated in section 2 of the Essential Services Act before withdrawing their labour or going on strike with effect from 9 January 2003;
   
4. If the Answers to Questions 1 & 2 herein is in the positive and the Answer to Question 3 herein is in the negative, to grant a Declaration that the said Officers (Second Defendant) have withdrawn their labour unlawfully, contrary to section 2 of the Essential Services Act and that their strike or industrial action which began on 9/1/03 is therefore unlawful.
   
5. An injunction to restrain the said Officers (Second Defendant) from withdrawing their labour and from going on strike or taking industrial action and to restrain the First Defendant and its agents, officers or employees or anyone else from inciting, instigating or in any way encouraging, persuading or influencing any of the said Officers to withdraw his labour or go on strike or take industrial action without fulfilling the requirements of section 2 of the Essential Services Act.
   

In addition to the foregoing, the Plaintiff is also seeking the following relief pursuant to the provisions of section 9 of the Trade Disputes Act, Cap. 75:

6. An Order declaring the Trade Disputes Panel Award dated 2 December 2002 on a Trade Dispute (Ref: TDF: L 9/5/02) between the Plaintiff and the First Defendant, Representing the Second Defendant has taken effect prior to 6 January 2003 and is no longer subject to the Minister’s power of variation under section 8(3) of the Trade Disputes Act.
   
7. An Order directing the First and Second Defendants to perform their duty in implementing the Panel’s Award by submitting individual harassment claims to the Government so that the Government can comply with the Award, by receiving the claims and considering them on the facts and merits of each individual claim and to only make payment where the claim is established and proven.
   
8. Any other Orders as deems fit by the Court.
   

9. The Plaintiff’’s costs to be paid by the Defendants.

The Orders sought in paras 8 and 9 are for any other orders as deemed fit by the Court and for costs.

Brief Background

The brief background to this case started in October 2002, when a dispute over non-payment of harassment claims by public officers in the Civil Aviation, Meteorological and Immigration Divisions was referred to the Trade Disputes Panel. Having heard the matter, the Panel gave its Award on 2^nd December 2002. The Panel’s decision was that the harassment claims have no legal basis. However, as the Government had already paid harassment claims to other public officers, namely, officers in the Inland Revenue and Customs and Excise Departments, in the sum of $5,000.00, following Cabinet approval issued on 11^th October 2001, and that the members of the second defendant had already submitted their claims before 24^th April 2002, it would only be fair and just that those claims be resubmitted to the Government, but on individual basis rather than collectively. This was suggested by the Panel despite the later Cabinet decision on 24^th April 2002 ceasing approval for harassment claims.

The Panel’s award was conveyed to the Minister on the 2^nd December 2002. The Minister, by a letter dated 12^th December 2002 from his Permanent Secretary, ‘varied’ the Panel’s award pursuant to section 8 (3) of the Trade Disputes Act (Cap. 75) by fixing the amount of $5,000.00 as a one-off payment for each individual officer in the three Divisions for harassment. This was conveyed to the parties. The defendants were not happy with the amount fixed at $5,000.00 and so a meeting was arranged and attended by General Secretary of the first defendant, members of the second defendants’ In-House Committee, the Honourable Minister of Commerce, Employment and Trade, and his Permanent Secretary on 6^th January 2003. At that meeting, the Minister agreed to pay the second defendants, the sum of $12,500.00 as harassment payments on a group claim, rather than on individual basis. Faced with this change of situation, the plaintiff sought legal advice from the Attorney General’s office. That advice was given on 8^th January 2003 (“AA8”) which, in essence, said that the purported ‘variation’ of the Panel’s award by Minister on 6^th January 2003 was without legal basis, and that the Panel’s award was for each officer to submit his or her claims on individual basis to be considered on its own merits. That, of course, did not go down well with the defendants, and so at midnight, 9^th January 2003, second defendants withdrew their labour, disrupting all air traffic, air transportation, immigration and meteorological services in the country. This led to an urgent application by the plaintiff on 11^th January 2003 for interim injunctive relief against the defendants. A restraining order against the defendants was made by this Court on 11^th January 2003 and the officers had since returned to duty.

The Plaintiff’s argument

The learned Attorney General contended that the Panel’s award was that although there was no legal basis for harassment claims, the Panel considered it just and fair that officers in the three Divisions be allowed to re-submit their harassment claims to the Government for consideration since the latter had already paid harassment allowances to officers of the Inland Revenue and Customs and Excise Divisions. This, however, must be done on individual basis, since to bring the claim, as a group would result in officers not subjected to harassment being paid harassment allowances.

The learned Attorney General argued that the initial decision by the Minister to fix the sum of $5,000.00 as harassment payment was not a variation of the Panel’s award but simply fixing a limit for such claims. The learned Attorney General would appear to concede that if it was a variation of the award, then it was for the purpose of setting the limit to the harassment claims. With regard to the subsequent figure of $12,500.00 agreed to by the Minister, the learned Attorney General was of the view that the Minister’s action could not amount to a variation of the Panel’s decision. The award could only be varied within 7 days. The purported variation by fixing the amount to $12,500.00 on 6^th January 2003 was outside the provision of Section 8 (3) of the Trade Disputes Act and so it was done outside of the law.

As to the notice of strike, the learned Attorney General contended that the second defendants perform “essential services” and so the notice required was 28 days, which the learned Attorney General said had not been complied with in this case. The purported notice dated 12^th December 2002 (“CW1”) exhibited to the additional affidavit of the first defendant’s General Secretary filed on 15^th January 2003, was said not to comply with the provisions of the Essential Services Act. As such the strike was unlawful.

Defendants’ Case

Mr Watts, on behalf of the defendants, argued that as far as the issue of whether the second defendants are engage in “essential service” as defined by section 2 of the Essential Services Act is concerned, it is conceded that the second defendants are engaged in providing essential services. As officers covered by the Essential Services Act, they are required to give proper notice under the Act before taking industrial action. Counsel, however, contended that proper notice had been given in this case pursuant to section 2 of the Act. Reliance was placed on exhibit “CW1”, the letter from the General Secretary of the first defendant dated 12^th December 2002. I will return to this letter later in the judgment, as there is dispute as to the appropriateness of this letter as a notice under section 2 of the Act. Mr. Watts suggested that the second defendants had complied with the requirements of section 2 of the Act and as such, their action in taking the strike action could not be said to be unlawful, and so could not be restrained.

As regards the action taken by the Minister, Counsel for the defendants shared the view that the Minister acted outside of the scope of section 8 (3) of the Trade Disputes Act when he purported to vary the Award by agreeing to the sum of $12,500.00 as harassment payment to each officer. However, Counsel suggested that the Minister’s action binds the Crown. As the Government had agreed to the sum, it must fulfil its obligation since the second defendants fulfilled theirs by returning to their work stations.

Issues

There are number of issues that need to be considered in this case in order to answer the questions raised by the plaintiff. The facts of the case are not contentious and so the Court is very much concerned with the construction of provisions of the law applicable in this case. Let me make mention, at this stage, that although the discretionary power of the Court under O.58, rr 1 and 2, of the High Court Rules can be invoked by “any person claiming to be interested” under a deed, will or other written instrument, or “any person claiming any legal or equitable right” in a case, the question or questions for construction put before the Court under these rules must be such that the question or questions demand constructions so as to answer the issues raised between the parties, and not simply questions which the party wants answers to, just for the sake of it. Questions (1) and (2) in the Originating Summons, are clearly questions, the answers to which, are not necessary for the settlement of the case before the Court. By section 2 of the Essential Services Act, the answers to the two questions are obvious. The defendants agreed with them. They do not require any construction by this Court, in the present case. Thus the only question that calls for construction is question (3) which.

Whether the notice requirements under section 2 have been satisfied.

The requirements for proper notice is said to be such that it must satisfy section .2 of the Essential Services Act. Those requirements are:-

1. That the notice must be given to employer and Permanent Secretary responsible for labour.
2. That the notice must be signed by the person giving it, including the trade union, specifying names and employment of all persons by or on behalf of whom the notice is given.
3. That the date when withdrawal of labour or lock-out is to start must be stated.
   

For the plaintiff, it was argued that the notice issued by the defendants was insufficient. On the contrary the defendants argued that the notice as contained in (“CW1”) the letter dated 12^th December 2002 from the General Secretary of the first defendant, was sufficient for the purposes of section 2 of the Essential Services Act. Mr. Watts contended that section 2 is intended to guard against the mischief stipulated in that section; and not so much as prohibitive provision. Counsel suggested that the mischief sought to be guarded against is the unlawful severing of contract of service or labour in the essential services fields. I feel that there is force in Mr. Watts’ contention. Indeed the section makes it an offence for anyone in an essential service to wilfully sever his or her contract of service where such action will result in the deprivation to the public of such service. The proviso to section 2 (i) in fact provides a defence to prosecution for an offence under the section. It is not a provision to be construed as outlawing the employees’ right to pursue their employment interest, even through industrial action. Rather, the provision must be construed as providing a mechanism within which the employees can pursue their legitimate grievances with their employers. One aspect of that mechanism is the rendering of notice to the employer before withdrawal of labour or a lock-out is done. It has not been argued nor has it brought to the attention of the Court, what form and manner such notice shall have.

Section 2(2) provides that the Prime Minister may make regulations prescribing the forum and manner of the notice. The Court has not been told of any such regulations had even been made yet. So for the purpose of an industrial action, how is one to determine what befits a notice of strike action? In my judgment, the construction to be given to the proviso to section 2(1) must be one that, within the requirements of paragraphs (i), (ii) & (iii) of that proviso, is enabling rather than rigid and prohibitive for the employees to lawfully pursue their rights and interest in their employment. This is particularly so since, as in this case, the requirements of the notice are prescribed while the duty to serve the notice is mandatory, but the precise form and manner of the notice have not been prescribed. In so far as the notice for industrial action is concerned therefore, the requirements of notice are directory only provided the substance of the notice is conveyed. For this purpose, the employees within the essential services occupation would satisfy the notice requirement for an industrial action, if the said notice is given to the employer not less than 28 days before the commencement of the industrial action; that the notice must be signed by the employees or their union giving the notice; and the notice must specify the date of the commencement of the industrial action. Thus in the absence of any regulations made under subsection (2) of section 2 of the Act, the proper notice, in so far as essential services is concerned is one that is 28 days, signed by the employees or their Union, and specifying the date of commencement of the industrial action.

Was the letter dated 12^th December 2002 (“CW1”) sufficient notice?

Mr Watts strongly contended that the letter from General Secretary of the first defendant, dated 12^th December 2002 to Secretary to Cabinet and Public Service, copied to Director, Civil Aviation and Chairman, Solomon Airlines was sufficient for the purpose of the Essential Services Act. As this letter is important, I set it out hereunder:

“12^th December 2002

The Secretary to Cabinet and Public Service

Office of the Prime Minister

P O Box G1

Honiara

SUBJECT: NOTICE OF INDUSTRIAL PURSUANT TO ESSENTIAL SERVICE ACT

Pursuant To

The Provision of the Essential Service Act, twenty-eight (28) days notice is served on you that at the end of the twenty-eight (28) notice from the date hereof all the services provided by the following Ministries will cease forthwith unless the Public Service resolve to address the following issues with the Union:

1. All redundancies payments to be paid to redundant Public Officers who have been made redundant.
   
2. That Public Officers who have been made redundant shall be paid three (3) years net salary at the expiration of the notice period, provided the officer had worked for more than ten (10) years unbroken service.
   
3. That seconded officers to the provinces hall be paid ex gratia payments prior to the notice period of redundancy.
   

Unless these issues are addressed, resource will be taken which would result in Industrial Action (Strike).

Yours faithfully,

Clement Richardson Waiwori

General Secretary, SIPEU

Cc: Director, Civil Aviation

Cc: Chairman, Solomon Airlines”

Noticeably, the issue of non-payment of harassment claims was not mentioned in that letter which specifically referred only to redundancy payments and ex gratia payments to seconded officers in the Provinces prior to the notice served for redundancy. It has not been argued by the defendants that the notice dated 12^th December 2002 was also issued for failure to resolve the harassment claims. On the face of it, that notice did not cover the issue under dispute here, namely, non-payment of harassment claims. Thus, save for the fact that it was a 28 days notice, it was not given in connection with the issue under dispute now under consideration.

Can the notice cover harassment claims?

The 28 days strike requirement under Essential Services Act, must be issued in connection with a dispute between the parties. For a strike, if and when taken, must be in contemplation of furtherance of a dispute between the employees and employers in connection with a number of matters relating to employment, one of which is terms and conditions of employment. Implicit therefore, is the need for those giving the notice of strike to link the notice and the dispute. Unfortunately, if the notice relied on by the defendant is that dated 12^th December 2002 (and it has not been suggested that there is another notice elsewhere), and then it clearly did not cover the issue of non-payment of harassment claims, which was before the Trade Disputes Panel and now before this Court.

Thus the requirements for a proper notice before withdrawing labour in this case have not been satisfied when the 2^nd defendants withdrew their labour on 9^th January 2003. Such that when those officers withdrew their labour on that date on the ground of non-payment of harassment claims they did so unlawfully and I so declare.

Whether injunction should be granted

The remedy of injunction is discretionary. It does not necessary follow, as the strike notice is not proper resulting in the industrial action declared unlawful, that a permanent restraining order should be ordered. In Glynn –v- Keele University,^[2] the Court reiterated that the remedy is discretionary, and the Court may even refuse to grant an injunction even where the defendant has acted in breach of the law. In this case there is nothing to stop the employees from serving a proper notice on the employer, if the matter were not resolved yet, for the industrial action to be taken again.

A restraining order in such a case would produce an unfair restrain on the employees’ right to pursue their legitimate claims against the employer. Additionally, the behaviour of the plaintiff is an important consideration. The evidence, as shown by the correspondence exhibited to the various affidavits, demonstrates that the Government has been quite willing to succumb to demands and to agree to pay sums of money even where it has clearly known to have no legal basis for doing so. In some instances, even in the face of legal advice to the contrary. Sadly this must make the task of those in the Attorney-General’s Office difficult at times, as in the present case. Happily, the Attorney-General can take comfort in the fact that he also has a duty to the public to ensure that the law is followed even by Ministers of the Crown. I therefore refuse to grant restraining order as sought in paragraph (5) of the Originating Summons.

Minister’s power of variation under section 8 (3) of Trade Disputes Act.

The learned Attorney-General’s contention is that simply the Minister has no power to vary the Panel’s decision after the lapse of the appropriate period. Section 8 (3) of the Trade Disputes Act provides:

“(3) so far as the draft relates to the pay of any employees, the Minister may, within the period of seven days beginning with the date on which the draft is submitted to him, by directions in writing to the Panel, vary the terms of the draft if, in his opinion, it is necessary to do so in the interests of the economy as a whole.”

Under that provision, the Minister is given seven days to vary the Panel’s decision. After that period, the Panel’s decision takes effect as stated in subsection (5) of that section.

The variation complained of in his case was that made by the Minister on 6^th January 2003 whereby the Minister agreed to pay $12,500.00 to each officers in the three Divisions mentioned. If this was a variation, then clearly it was done outside the time limit prescribed in section 8(3) of the Trade Disputes Act, and was ineffective. Then it was argued for the defendants that if the $12,500.00 was ineffective, then the original claim placed before the Panel of $25,000.00 for each officer must be accepted. With respect, this cannot be correct. The Panel’s Award states that each harassment claim might be put to the government but must be on an individual basis. There is no evidence that the Panel accepted that the claim of $25,000.00 for each officer as arguably put before it. As far as one can glean from the Panel’s Award, the Panel had found that other officers in the Inland Revenue and Customs and Excise had been paid $5,000.00 for harassment.

Was there a variation at all?

The learned Attorney-General intimated that if there was any variation at all, although he was reluctant to support the suggestion, then that could only be on 12^th December 12^th December 2002 when the Minister fixed the amount to $5,000.00. The defendants on the other hand, and the correspondence flowing from General Secretary of the first defendant and Government clearly demonstrated, refused to accept the $5,000.00. Instead when he and In-House Committee of second defendants met with the Minister and persuaded him to agree to the amount of $12,500.00, they staunchly stuck by that figure, and sought to justify it as coming within the wide power of the Minister under section 8 (3) of Trade Disputes Act. By his letter of 3^rd January 2003 to Permanent Secretary, Ministry of Commerce, Employment and Tourism, the General Secretary of the first defendant urged the Minister to approve a “reasonable rate of payments taking into consideration what has been paid to other Public Officers”. Even if one is to stretch the ambit of section 8 (3) it could hardly be plausible to suggest that it entitles the Minister to exercise his power under that subsection to vary an award of the Panel more than one month after it was made. Legally or morally it would not be right. Legally he would have no power, and morally, it should disturb the conscience to exercise a power that one does not possess.

However in so far as the action taken by the Minister on 12^th December 2002 in which he supported the Panel’s decision and set the amount of $5,000.00 for each officers as harassment payment, it is arguable that this constituted variation of the Panel’s decision depending on which date the Minister actually received the Panel’s Award. The evidence seems to suggest that the draft decision of the Panel was hand-delivered to the Office of the Minister on 2^nd December 2002 and the Permanent Secretary’s letter conveying the Minister’s decision fixing the amount of $5,000.00 was dated 12^th December 2002 which was 10 days after the receipt of the draft decision. There is no evidence to suggest that the Minister’s decision was made prior to 12^th December 2002 but that it was only conveyed on 12^th December 2002. In any case, the Panel was not contemplating any amount by its decision. It simply decided that the officers in the three Divisions could re-submit their harassment claims but on individual basis and the Government to consider each claim on its own merits. The figure of $5,000.00 fixed by the Minister also could not be taken as a variation under section 8 (3) of the Trade Disputes Act.

No argument has been addressed to the Court on the question of whether an amount fixed by the Minister could be said to constitute variation of the Panel’s Award that stipulates no figure. Perhaps it may be that the learned Attorney-General was clearly of the view that the amounts, either of $5,000.00 or $12,500.00 were made outside of the time limit fixed by section 8 (3), and Counsel for the defendants was strongly of the view that $12,500.00 constitutes a variation of the Award. I need not deal with that suggested issue in this case except to say by way of an obiter, that the issue of how much each officer was entitled to as harassment payment is a separate issue for consideration by the Panel should it become necessary at another occasion, should it arise: See Australian Insurance Staffs’ Federation –v- Atlas Assurance Co. Ltd. ^[3] Thus the most sensible course of actions in this case is for the officers in the three named Divisions to submit their harassment claims to the Government an individual basis as decided by the Panel. The amount to be paid is a matter for the parties and the merits of each individual case as established. No doubt should the parties disagree on the quantum, the Panel would be the appropriate forum to determine that.

The Panel made the award in this case, but having done so, it has no power to enforce it. Section 9 (3) of the Trade Disputes Act requires the parties 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.” It is therefore the duty of every party to the award to take steps that are reasonably practicable to comply with the award and not to seek to induce a breach of any of its terms. Subsection (4) permits a party to the award to apply to the High Court for an order to enforce the award, while subsection (5) empowers the Court to grant relief if it considers it to be “just and equitable” to do so. Subsection (6) sets out the forms of relief, which the Court may grant, namely –

“(a) an order declaring the rights of the applicant and the respondent in relation to the subject-matter of the application;

(b) an order requiring the respondent to pay compensation to the applicant in respect of the breach of duty; and

(c) an order directing the respondent to take such steps for implementing the award as may be specified in the order”.

Quite plainly, when the first defendant and In-House Committee of the second defendants took up the process of negotiating and meeting with Permanent Secretary and Minister with a view to a purported variation of the Panel’s award, the defendants were not satisfied with the award. But in doing so, they sought to go beyond the Panels award by convincing the Minister to agree to pay then $12,500.00 each as harassment payment. This is clearly a breach of the Award and a plain refusal to abide by the terms of that award. That is not the proper approach by a party to an Award. It is the duty of each party to take all steps so far as reasonably practicable to comply with the Award and not to seek to induce its breach: Solomon Islands Government –v- Solomon Islands Public Employees Union.^[4] The learned Attorney-General was correct to come to this Court to seek order to have the defendants implement the award.

On the Originating Summon, the plaintiff is entitled to the orders sought in paragraphs, 6 and 7. Under paragraph 8 of the Originating Summon, the only other order, which should be made, is that the interim injunction made on 11^th January 2003 against the defendants should be discharged.

As to costs, I feel that as the plaintiff succeeds only in part in these proceedings, they are entitled to two-thirds only of their costs to be paid by the defendants.

Order as per paragraph of the Originating Summons:

1. Unnecessary to answer
2. Unnecessary to answer
3. Granted
4. Granted
5. Refused
6. Granted
7. Granted
8. Interim Order against defendants dated 11^th January 2003 discharged.
9. Plaintiffs entitled to (2/3) two-thirds only of its costs.
   

(Sir John B. Muria)
Chief Justice

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^[1] O.58, rr.1and 2, so far as material provide, r.1. “Any person claiming to be interested under ... written instrument may apply by originating summons for the determination of any question of construction arising under the instrument, and ... declaration of the rights of the person interested,” and r.2. “Any person claiming any legal or equitable right in a case ... may apply by originating summons for the determination of ... question of construction ... and a declaration as to the right claimed.”
^[2] Glynn –v- Keele University [1971] 1 WLR 487.
^[3] Australian Insurance Staffs’ Federation –v- Atlas Assurance Co. Ltd (1931) 45 CLR 409.
^[4] Solomon Islands Government –v- Solomon Islands Public Employees Union [1987] SILR 60.