Alaiasi v Solomon Telekom Co Ltd [2019] SBHC 109; HCSI-CC 352 of 2017 (24 October 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Alaiasi v Solomon Telekom Co. Ltd
Citation:
Date of decision:	24 October 2019
Parties:	Victor Alaiasi, Jayson Ramorii, Raymond Waiti, Job Rovesooma, John Pine Hou, James Pelebo, James Bikala, Roy Enorii, Andrew Raha, Arnold Tonowane, Peter Filia, Starlin Lusi, Lional Labina, Job Sai, Emmanuel Wainini, George Bale, Andrew Tarosanau, Elison Laura, Noel totolo, junior Vamatava, Basil Maekiria, Baddley Maemae, Jacob Maekiotu, Hudson Fearo, Wilson Olikalo, Frank Manioli, Samuel Niumama, Henry Tanen, George Bonie, Vincent Kabu, Ronald Dauma, Auther Takoila, Paul Wame, Francis Koke, Emmanuel Faka, Ambrose Mepirke, Allen Mae, Joseph Oisuru, Brain Sumarua, Mark Jones Lokea, Harry Waihoena, Alatau Utu, Jeremiah Ofarara, John Unutee, George Geobauta, Jonathan Maelitoa, Alfred Abuomae, Albert Abumae, Maedola Falekwai, Christopher Lofimanu, Richard Gerea, Fred Sikwae, John Kana Adrian, John Walter Takile v Solomon Telekom Company Limited
Date of hearing:	24 October 2019
Court file number(s):	352 of 2017
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia PJ
On appeal from:
Order:	Court order, this matter is dismissed with no order on costs.
Representation:	Mr. L Kwana for the Claimant Mr. W Faga for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Trade Dispute Panel, S.1 [cap 75], S.13, Civil Procedure Rule 2007,Rule 12.11
Cases cited:	Queen v Trade Dispute Panel and Earth Movers (Solomon) Ltd [1997] SBHAC 117

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 352 of 2017

BETWEEN

VICTOR ALAIASI
First Claimant

JAYSON RAMORII
Second Claimant

RAYMOND WAITI
Third Claimant

JOB ROVESOOMA
Fourth Claimant

JOHN PINE HOU
Fifth Claimant

JAMES PELEBO
Sixth Claimant

JAMES BIKALA
Seventh Claimant

ROY ENORII
Eighth Claimant

ANDREW RAHA
Ninth Claimant

ARNOLD TONOWANE
Tenth Claimant

PETER FILIA
Eleventh Claimant

STARLIN LUSI
Twelfth Claimant

LIONAL LABINA
Thirteenth Claimant

JOB SAI
Fourth Claimant

EMMANUEL WAININI
Fifteenth Claimant

GEORGE BALE
Sixteenth Claimant

ANDREW TAROSANAU
Seventeenth Claimant

ELISON LAURA
Eighteenth Claimant

NOEL TOTOLO
Nineteenth Claimant

JUNIOR VAMATAVA
Twentieth Claimant

BASIL MAEKIRIA
Twenty First Claimant

BADDLEY MAEMAE
Twenty Second Claimant

JACOB MAEKIOTU
Twenty Third Claimant

HUDSON FEARO
Twenty Fourth Claimant

WILSON OLIKALO
Twenty Fifth Claimant

FRANK MANIOLI
Twenty Sixth Claimant

SAMUEL NIUMAMA
Twenty Seventh Claimant

HENRY TANEN
Twenty Eighth Claimant

GEORGE BONIE
Twenty Ninth Claimant

VINCENT KABU
Thirtieth Claimant

RONALD DAUMA
Thirty First Claimant

AUTHER TAKOILA
Thirty Second Claimant

PAUL WAME
Thirty Third Claimant

FRANCIS KOKE
Thirty Fourth Claimant

EMMANUEL FAKA
Thirty Fifth Claimant

AMBROSE MEPIRKE
Thirty Sixth Claimant

ALLEN MAE
Thirty Seventh Claimant

JOSEPH OISURU
Thirty Eighth Claimant

BRAIN SUMARUA
Thirty Ninth Claimant

MARK JONES LOKEA
Fortieth Claimant

HARRY WAIHOENA
Forty Second First Claimant

ALATAU UTU
Forty Second Claimant

JEREMIAH OFARARA
Forty Third Claimant

JOHN UNUTEE
Forty Fourth Claimant

GEORGE GEOBAUTA
Forty Fifth Claimant

JONATHAN MAELITOA
Forty Sixth Claimant

ALFRED ABUOMAE
Forty Seven Claimant

ALBERT ABUMAE
Forty Eighth Claimant

MAEDOLA FALEKWAI
Forty Ninth Claimant

CHRISTOPHER LOFIMANU
Fifty Claimant

RICHARD GEREA
Fifty First Claimant

FRED SIKWAE
Fifty Second Claimant

JOHN KANA ADRIAN
Fifty Third Claimant

JOHN WALTER TAKILE
Fifty Fourth Claimant

AND:

SOLOMON TELEKOM COMPANY LIMITED
Defendant

Date of Hearing: 1 July 2019
Date of Ruling: 24 October 2019

Mr. L Kwana for the Claimants
Mr. W Faga for the Defendant

RULING ON PRELIMINARY ISSUES OF FACTS AND LAW

1. Claimants, in a class action, filed a Category B claim on 11/08/2017. Claim seeks declaratory reliefs and specific performance in relation to “overtime salary arrears”. Claimants seek “overtime salary arrears” under their individual Standard Security Service Contracts (SSSC). By its defence filed on 17/10/2017, Solomon Telekom Company Limited (“the company”) denied the claimants were entitled to “overtime salary arrears”.
2. On 6/11/2018, Counsel agreed on preliminary issues of facts and laws, for determination under Rule 12.11. Rule 12.11 is a useful mechanism for early resolution of disputes without going through the huge cost burden of full trial. Having considered the preliminary issues, Court is of the view that the issues revolved around: Whether or not claimants are entitled to “overtime salary arrears” either under their individual SSSC or their Collective Agreements – General Staff Collective Agreement and Terms & Conditions of Service 2012 – 2017 (GSCA)? Preliminary legal issue, I have to determine is: jurisdiction. If I should resolve this one preliminary legal issue, then I do not have to deal with the rest of the preliminary factual issues. So, I will concentrate on the issue of jurisdiction - Does High Court have jurisdiction? or Does the Trade Disputes Panel have jurisdiction?

Nature of the dispute

3. Claim here is a dispute between security officers (in a class action) and the company. It is a dispute between security officers/employees on the one hand and their employer on the other hand. The dispute is about the employees' claim for “over-time salary arrears”, under their individual respective SSSC. Claimants say they are entitled to overtime under Clauses 18, 19 and 20 of their respective SSSC. Under their GSCA, overtime entitlement is covered in Clause 2.4.1 – 2.4.5, applicable to Grade 3 – 6 employees of the company. Claimants agree they are Grade 6 employees^[1]. Claimants claim is for overtime, therefore, falls under the arm-pit of both the SSSC and GSCA.
4. And so this is why the company insisted that the Grievance Procedures under the GSCA should be utilised to resolve this dispute and not the High Court. The Grievance Procedure is provided for under Clause 1.6 (a), 1.6 (b), 1.8, 1.9 and 1.10 of GSCA. The company submits that these provisions laid down internal dispute resolution mechanisms. Claimants should utilise these internal dispute resolution mechanisms, in the first instance. And failing the internal dispute resolution mechanisms, the dispute shall be referred to the Trade Disputes Panel. This is what the GSCA contract provides for. So what parties have agreed on, must be strictly adhered to, defence counsel submitted. Claimants on the other hand is adamant that this dispute raised issues to do with breach of contract. Hence High Court has unlimited inherent jurisdiction.
5. Court is of the considered view that the Trade Disputes Panel is the best place to resolve this dispute. I say best place, because on the Panel are representatives of employees and employers, who will understand disputes between employees and employers better than the High Court. A dispute between an employee and employer regarding Terms and Conditions of employment amounts to a trade dispute. Trade dispute is defined in the Schedule as: “A dispute between employees and employers, or between groups of employees, which is connected with one or more of the following matters: (a). Terms and Conditions of employment...”^[2]
6. As noted in paragraph 3, this dispute is about “overtime salary arrears” claims. Overtime salary arrears claims are based on the Terms and Conditions of employment contained in the SSSC and or GSCA, binding on the claimants and the company. Pleadings disclosed that claimants are complaining about not been paid overtime arrears, in respect of half an hour transition times in between shifts. This is a dispute about Terms and Conditions of employment. I repeat, it is a trade dispute, under the meaning of “trade dispute” in Section 1 – Schedule to the Trade Disputes Act (Cap 75). Trade dispute under the said Act, are given a venue for conciliation and arbitration called the Trade Disputes Panel (“Panel”). The case of the Queen^[3], Chief Justice Muria says that Parliament purposely enacted the Trade Disputes Act, 1981 to provide a procedure to deal with disputes, arising out of employment and the power to deal with such disputes has been conferred on the Panel.
7. At paragraphs 5 and 6, Chief Justice Muria relevantly commented:-
   • “Whilst it can be said that the company is entitled to come to the High Court and seek orders sought in cc 244/1999 and cc 287/1997, I feel bound to give effect to the spirit of the law regarding employment-related disputes in Solomon Islands as contained in the Trade Disputes Act of 1981. For I do not think it is the intention of legislature to create the Trade Disputes Panel, clothe it with powers to determine trade disputes, but cannot exercise those powers, simply because the parties or anyone of the parties have insisted on invoking the unlimited jurisdiction of the High Court, if it were so, it would make the Panel a dead statutory creature.”
   • “The Trade Disputes Act has established the Panel, conferred on it the jurisdiction to deal with all employment-related disputes, within the meaning of the word ”trade disputes”, laid down the procedures to be used by the Panel to deal with such disputes, empower it to make awards and conferred on the parties the right to challenge the Panel’s decision by way of an appeal to the High Court. In respect of those matters, there is no restriction imposed upon the Panel. It is therefore right to assume that Parliament had not intended the Panel’s jurisdiction to be interfered with, save on appeal.”
8. This dispute arose out of employment or is an employment related dispute (repeat paragraphs 3, 4, 5 and 6). To the extent that the claim and the reliefs sought are available in the Panel under statutory enactments in the first instance and may only come to this Court via appeals^[4], this Court accordingly lacks jurisdiction to adjudicate this claim. As I found the mediation provisions of the 2 binding contracts, especially the GSCA, provided internal dispute 1resolution mechanisms. Parties must in the first instance, exhaust those internal dispute resolution mechanisms. And failing that parties may next go to the Panel. Those avenues must be exhausted before coming to this Court via appeal.
9. Accordingly, on the issue of whether High Court has jurisdiction, I answer to say that High court does not have jurisdiction. The SSSC^[5] and or GSCA, which I find binding on parties provides for internal dispute resolution mechanisms, failing which the next port of call is the Panel. This matter is dismissed with no order on costs. And parties to utilise the dispute resolution mechanisms provided for under SSSC and or GSCA.

THE COURT
JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Paragraph 3.1 of claimants’ written submission.
^[2] See meaning of “Trade Dispute” in the Schedule to the Trade Disputes Act (Cap 75).
^[3]Queen v Trade Disputes Panel and Earth Movers (Solomons) Limited [1997], SBHC 117, HCSI –CC 287 of 1997 (22^nd December 1997).
^[4] Section 13 of the Trade Disputes Act (Cap 75).
^[5] Security officers initially came in as contractors under SSSC, but eventually became employees at Grade 6 of the GSCA.