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Court of Appeal of Vanuatu |
IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
APPELLATE JURISDICTION
CIVIL APPEAL CASE No.23 of 2002
BETWEEN
BRUNO LEINGKONE and OTHERS
Appellants
AND
THE BOARD OF VANUATU BROADCASTING AND TELEVISION CORPORATION
Respondent
Coram: Justice Bruce Robertson
Justice John von Doussa
Justice Daniel Fatiaki
Justice Oliver Saksak
Justice Roger Coventry
Counsel: Mr. I. Kalsakau for the Appellant
Mr. G. Boar for the Respondent
Mr. M. Edwards for the Arbitration Board to abide the decision
Messrs. Edwards & Nakou for the Minister of Internal Affairs
Hearing date: 31st October 2002
Judgment date: 1st November 2002
JUDGMENT
There was before the Court an appeal and a cross-appeal in respect of the making by the Chief Justice on 14th October 2002 of the following Orders:
“1. Certiorari to quash an Arbitration Board Award dated 20th May 2002.
The learned Chief Justice indicated that reasons for judgment would follow and these were provided on 25th October.
The combination of the appeal and cross-appeal challenged virtually every assessment and order made by the trial judge in a way which is consistent with the behaviour of these parties and indicative of the attitude which permeates the industrial dispute between them.
The appellants (the employees) were all employees of the respondent corporation (VBTC). In May 2001 the employees submitted a list of grievances with regard to their employment terms and conditions with the VBTC.
This raised issues about:
In May, June and July 2001 various meetings were held between the VBTC and the Vanuatu National Workers Union (VNWU) of which the employees were members.
On 5 July 2001 VNWU submitted to the Department of Labour and to the VBTC a “Notice of Industrial Action” by the appellants, which was to operate failing an acceptable settlement of the dispute.
A week later the Commissioner of Labour appointed a Conciliator to mediate in respect of unpaid wages. After various meetings, on 15 August 2001 the employees sent the VBTC a memorandum of understanding to resolve the dispute.
On 22 August 2001 a conciliation meeting took place and arising there from on 24 August 2001 a Memorandum of Settlement of the grievances relating to was concluded covering:
(a) overtime payments;
(b) housing allowance;
(c) staff wages.
The Memorandum of Settlement indicated that a system in respect of overtime was to be designed jointly and maintained by 28 August 2001. Housing allowances were increased from Vatu 6,000 to Vatu 10,000 monthly and it was agreed that by 29 August there would be a process for proper verification and payment in the future. For the period 1993 to 1997 in which there had been a failure to meet such allowances they would be paid as the financial situation permitted. The memorandum also recorded that unsettled wages had been paid in full. We note in parenthesis that VNPF contribution payments can never be treated as an optional extra. Those must be made by every employer at all times.
On 11 September 2001 the VBTC issued Notices of Termination letters to its temporary staff effective 28 September 2001.
On 8 October 2001 following those terminations the employees who are the appellants in this case went on strike.
Ten days later the Minister of Internal Affairs declared broadcasting services “essential services” for the purposes of the Trade Disputes Act [CAP.162]. The Board of the VBTC requested a meeting with the employees to hear grievances but demanded in the meantime that the employees resumed work. None of the appellants attended the meeting.
The Board of the VBTC then resolved that the employees be terminated on 22nd October 2001.
On 1st November the Labour Commissioner wrote to the Chairman of the VBTC and the Secretary General of the VNWU requesting that they attend a meeting the following day. The Chairman of the VBTC Board indicated that because of short notice he could not attend but he undertook to take the matter up with his Board.
On 5 November 2001 the then Chairman of the Board Mr. William Mahit wrote a letter to the Commissioner of the Labour which was copied to the Minister of Internal Affairs and the Attorney General advising that “As far as the Corporation and its Board of Management are concerned there is no Trade dispute. The matter is closed”.
In February this year Mr. Petersen Ieri was appointed Chairman of the VBTC Board of Directors. On 15 March he wrote to the Prime Minister and advised that the employees would be re-instated. Letters of re-instatement were accordingly sent to the men who were striking.
On 25 March 2002 Mr. Peterson Ieri sent a further notice to the persons indicating that the re-instatement was “null and void” and that there was no re-instatement.
The following day the Prime Minister’s Private Secretary Mr. Tamata Ravo requested the Chairman of the VBTC to brief the Prime Minister on the outstanding dispute. He did so that afternoon and was accompanied by a Board member James Warmle. The possibility of Arbitration was discussed as the only possible way to resolve the long running dispute.
It was agreed that a meeting had to be arranged with the employees. It was held on Wednesday 27 March at VBTC premises. Present were the Chairman and two other members of the Board of VBTC, all the appellants, the Private Secretary to the Prime Minister and the First Political Advisor of the Minister of CRP.
In the Supreme Court there was serious controversy as to what occurred at that meeting but suffice to say on 27 March 2002 a document entitled “Expression of Consent” was signed by a representative of the VNWU on behalf of the strikers, by the Chairman of the respondent and by a representative of the Government.
Pursuant to the signing of that document, on 2nd April 2002 the Commissioner of Labour wrote to the Director General of Internal Affairs advising of the urgent need to set up an Arbitration Board.
On 8 April 2002 the VBTC asked the Government to supply senior civil servants to assist the VBTC in respect to the ongoing dispute. The Government agreed and forwarded the names of three civil servants who were appointed on the same date.
On 4 May 2002 the Minister of Internal Affairs appointed three members to constitute the Arbitration Board. On 20 May 2002 that Board released an Award which was deemed to have come into force on 8 May 2002.
Having reviewed the available evidence and noted that there was in fact serious controversy and dispute on only one issue, the Chief Justice then asked and answered three questions:
Was there was a “Trade Dispute” between the VBTC and the striking employees, within the meaning of the Trade Dispute Act [CAP.162] (the Act)? The Chief Justice determined there was a dispute because of the failure or refusal of the VBTC Board as an employer to observe and comply with the agreed terms in the Memorandum of Settlement of the 24 August 2001.
The second question had two parts. Whether the setting up and appointment of the members of the Arbitration Tribunal was justified and whether the VBTC had consented? The Chief Justice considered the statutory framework of Sections 11 and 12 of the Act. He noted that on 19 October 2001 broadcasting services had been declared an “essential service” under Section 26. He concluded that nonetheless there was an overriding requirement in respect of every appointment of an Arbitration Board, of the written consent of all parties to the dispute.
The Judge found that on the basis of the evidence presented he was satisfied that the VBTC had never consented. The signature of its Chairman had been attached as a result of threats and undue influence and that it could therefore be vitiated and was null and void.
The judge noted that this conclusion disposed of the entire case, but for the sake of completeness, he turned to the third question which was whether the Arbitration Board had acted outside its jurisdiction in making the award.
Having considered the provisions of Sections 14 and 19 of the Act and the provisions of Sections 15 and 57 of the Broadcasting and Television Act No.3 of 1992 (VBTC Act) he reached the view that the Arbitration Board in making a determination of the lawfulness or unlawfulness of the respondent’s termination of the employment of the appellants had exceeded its jurisdiction. He concluded accordingly that the Award was ultra vires the Arbitration Board’s powers and accordingly of no force or effect.
We find quite unpersuasive the contention in the cross-appeal of VBTC that it was not open to the trial judge to conclude that there was a “trade dispute” within the Act after its failure to honour the Memorandum of Settlement in existence dated 24 August 2001. There was before His Lordship clear evidence that the terms of the settlement were not being adhered to. If one looks at the various letters which all the actors involved were writing in March and April, they were talking about a “dispute”. That does not decide the point but it is very clear and compelling evidence of how parties were treating things at that time. There is a need to ensure that in litigation, reality is not lost sight of.
It may well be that a substantial part of the problem was the under resourcing or general lack of funds of the VBTC. However when a dispute is settled in an industrial context (as apparently happened on 24 August 2001) it is not open to either party to suggest that additional conditions and arrangements can be introduced unilaterally. Further other issues of dispute can still arise. It is no function of this Court to comment on the funding arrangements but it appears to us quite fatuous to suggest that there was not an evidential basis available to the trial judge to determine that the ongoing problems which occurred between 24 August 2001 and the eventual establishment of an Arbitration Board did not constitute a “trade dispute” within the meaning of the Act. The challenge to the decision of the Chief Justice on that issue must fail.
Similarly we are of the view that the appellants attempt to challenge the finding of the trial judge that there was no consent by the VBTC to a reference to Arbitration on 27 March 2002 must fail. The judge heard substantial evidence on this point. There was credible evidence available of non consent which he had to weigh and assess. We listened with care to Mr. Kalsakau’s submission about evidence which pointed in the other direction but there can be no suggestion that these competing stands were not all assessed. There is no sensible basis for challenging that finding of fact on appeal. We take no further time on that issue and accept the conclusion of the Chief Justice.
The first substantive issue requiring our consideration is whether, as a matter of law, consent is required in the circumstances which existed in this case. Sections 11 and 12 of the Trade Disputes Act provide:
“11. If the Commission considers that there is a reasonable prospect of bringing about a settlement of a dispute, in whole or in part, by arbitration, he may, subject to a written consent of all the parties to the dispute, recommend to the Minister that the dispute, or any outstanding part thereof, be referred to a board of arbitration.
Section 11 on its face involves-
(a) a dispute;
(b) the Commissioner considering there is a reasonable prospect to bring about settlement by arbitration;
(c) the written consent of all the parties;
(d) the Commissioner recommending to the Minister that the matter be referred to a board of arbitration.
The effect of section 12 is that the Minister having received such a recommendation from the Commissioner may appoint a board of arbitration.
That is one situation. But we are persuaded that the statute also covers a quite different circumstance.
Section 26 of the Act provides:
“26. Where a Trade Dispute, which, in the opinion of the Minister, constitutes a threat of a serious disruption of, or interference with, the proper and orderly maintenance or management of an essential service, exists or is apprehended, the Minister shall forthwith take action and issue such directives as may appear to him necessary or conducive to bringing about a settlement of the dispute by conciliation or arbitration in accordance with the provisions of Part III.”
It is common ground that a declaration was made on 19 October 2001 which brought this section into play.
The Chief Justice accepted the submissions advanced by the present appellant that Section 26 was “designed to ensure that the State had control of its constitutional duty to all citizens of this country to ensure the daily live of the people of the Republic where it concerned essential services did not become disrupted or that the Government would not be held captive to the needs of groups or factions within society in the operation of the country’s essential services.”
He went on however to conclude that the power then given to the Minister in Section 26 to bring about the settlement of disputes by conciliation or arbitration remained subject to all the powers contained in Part III of the Act which includes Sections 11 and 12.
With the greatest respect to the learned Chief Justice we are unable to agree with this interpretation of the Act. In our judgment this reading renders redundant the additional power which is vested in the Minister under Section 26 of the Act in those circumstances where a dispute is concerned with an activity which has been declared is an essential service.
The reference in Section 26 to Part III must be read as meaning such parts of Part III which are relevant. This will include the ministerial power of appointment under Section 12 and issues relating to the way in which the arbitral panel will operate which are clearly enunciated in Sections 13 to 24 of the Act.
Section 11 on the other hand deals with a specific issue as is clearly indicated by the heading to that Section “Commissioner may recommend arbitration”. Where a Minister determines that because there is a dispute in an essential service he is going to on his own motion initiate a reference to arbitration (as one of the possibilities available to him), then there is no room for Section 11 to operate at all.
The substantial difference between the two situations is that under Section 11 there is a power for the Commissioner to recommend to the Minister the appointment of a Board of Arbitration when he has the written consent of all parties to the dispute to do so. However in addition to that situation Parliament had granted a specific power to the Minister (without any recommendation or the consent of the parties) to initiate the course of action himself in respect of essential services.
Accordingly we are of the view that the absence of consent was no impediment to the appointment of a board. The Board of Arbitration was validly appointed on 4 May 2002 and properly empowered to carry out its task.
That leads us to the final substantive issue in this case namely whether the Board exceeded its jurisdiction in the award which it is published on 20 May 2002.
Section 14 of the Act provides:
“14. In making an award or other decision with a view to a settlement of a trade dispute the board shall, in addition to the rights and interests of the parties to the dispute, consider the effects such award or decision may be likely to have on the social and economic development of Vanuatu.”
Section 19 provides:
“19. No award or settlement resulting from any arbitration or conciliation proceedings shall be made which is inconsistent with any written law.”
The award of the Board of Arbitration dated the 20 May 2002 was set out after a six- page background of chronology and assessment and concluded with a one-page award which said:
“AWARD
The Board of Arbitration makes the following award:
THIS AWARD IS MADE at Port-Vila, on the 20th day of May, 2002 and is deemed to have COME INTO EFFECT on the 8th day of May 2002, being the date stipulated in Section 13 of the Trade Dispute Act.”
The conclusion of the Chief Justice was that the Board did not have power/jurisdiction to decide on the lawfulness or unlawfulness of a dispute which was before it. He said any of such questions must be brought before a Court of law.
Later the Chief Justice said “the finding and declaration of illegality or unlawfulness of the termination of the employees whether rightly or wrongly done, is beyond the power or jurisdiction of the Arbitration Board make”.
It was the Chief Justice’s view that the relevant law to be applied is the Vanuatu Broadcasting and the Television Corporation Act No.3 of 1992 (VBTC Act).
Section 57 of that Act provides:
“57. The provisions of this Act shall have effect notwithstanding anything contained in any other law, and accordingly in the event of any conflict or inconsistency between the provisions of this Act and such other law, the provisions of this Act shall prevail.”
This argument is predicated on the fact that the Award of the Arbitration Board is said to conflict with Section 15 of the VBTC Act which provides:
“15. (1) Subject to the provisions of this Act, the Corporation may-
(a) dismiss and exercise disciplinary control over the staff of the Corporation;
(b) fix the wages, salary or allowances or other remuneration of such staff; and
(c) determine the terms and conditions of the service of such staff.
(2) Rules may be made by the Corporation under this Part in respect of all or any of the matters referred to in subsection (1).”
It is also said that there is an inconsistency issue with Section 19 of the Trade Dispute Act which is referred to above.
We are not persuaded that the Award issued on 20 May 2002 is inconsistent with or in conflict with the provisions of Section 15 of the VBTC Act so as to bring into play either Section 57 of that Act or Section 19 of the Trade Disputes Act.
Section 15 of the VBTC Act empowers the Board to do certain things with regard to the staff of the Corporation. When there is a dispute which has been referred to a Board of Arbitration its function is to resolve the dispute. What is entailed is a State initiated and controlled alternative form of dispute resolution. We are unable to see how in any circumstances that can be achieved without an adjudication or determination upon the matters which are the subject of the dispute. At the core of the matters which required consideration was whether there had been termination of the employment of the appellants. That was the heart of the existing problem. The arbitral panel had to make a determination upon that point or it achieved nothing. It also was duty bound to make consequential decisions about how that assessment was to impact upon what had happened in the past and rules for the future.
The decision making of the Arbitration Board did not mean it was making an award of settlement “which is inconsistent with any written law” in particular Section 15 of the VBTC Act. Section 15 gives the Corporation the power to exercise control over staff, set wages, salaries and terms and conditions. It does not preclude in lawful circumstances a board from making awards concerning staff wages, salaries, terms and conditions.
When the Board made its determination and issued an award there was “no conflict or inconsistency” with the VBTC Act. It cannot be the position that Section 57 of the VBTC Act means that because there is a power of appointment and dismissal in Section 15 of its Act, the Board of the VBTC has an unfettered and uncontrolled discretion stemming from Section 57 which gives a priority over other legislature provision which lets it do whatever it likes. The powers which are contained in the Trade Dispute Act are in addition to, and complementary to the general authority which it has under Section 15. To interpret these various sections otherwise would be to grant to the Corporation a totally unfettered and non suitable power over its employees. That could not have been the intention of Parliament and is not a necessary meaning flowing from the words which have been used.
It will always be open to a party to an arbitral award to challenge the legal validity of an arbitration process although there are very strict rules about the narrow field in which this can occur. No party has suggested that apart from jurisdiction, there is any other legitimate challenge open in this case. The Chief Justice determined only as a matter of jurisdiction that the Award had no effect. We cannot agree. In our judgment it covered exactly the sort of thing that had to be determined in accordance with the mandate which the Board of Arbitration was given and no provision in either of the Acts prevented it from doing so.
It accordingly follows that in conformity with the reasoning of this Court there was a proper, lawful, and valid reference to arbitration and the Award made was within its jurisdiction. It is therefore in full force and effect and consequently enforceable against all the parties covered by it.
It accordingly follows that the appeal must be allowed. The order granting certiorari is quashed as also are the orders consequential upon the order for certiorari.
The only other issue is the question of costs. The Chief Justice refused an order in favour of any party before him. We are not persuaded that that was a wrongful exercise of discretion. In many countries a practice has developed that except in the most exceptional of circumstances costs orders are not made in cases about industrial disputes. In addition the parties to this dispute have not behaved well and the litigious atmosphere of their interchanges in such an unduly aggressive manner is no credit to anybody. Although we have reached a different conclusion on some issues of law we see no basis to interfere with that exercise of the Chief Justice’s discretion.
The position is different however in this Court and we are not persuaded that costs should not follow the event in the normal way. There will be an order against VBTC in favour of the present appellants and the Arbitration Board and the Minister of Internal Affairs, in respect only of the proceeding in the Court of Appeal. Failing agreement as to the appropriate amount the matter will have to be the subject of taxation.
DATED at PORT-VILA, this 1st DAY of NOVEMBER 2002
BY THE COURT
J. Bruce ROBERTSON J
John von DOUSSA J
Daniel FATIAKI J
Oliver A. SAKSAK J
Roger COVENTRY J
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