IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Civil Appeal No. 5 of 2012

BETWEEN

KIRIBATI UNION OF TEACHERS
APPELLANT

AND

ATTORNEY-GENERAL IRO MINISTER FOR
LABOUR
RESPONDENT

Before: Muria CJ
Paterson JA
Williams JA 

Counsel: Elsie Karakaua for appellant
Monoo Mweretaka for respondent

Date of Hearing: 10 August 2012
Date of Judgment: 15 August 2012

JUDGMENT OF THE COURT

1.	By originating summons dated 24 December 2010 the appellant Union sought against the respondent a declaration to the effect that a strike carried out by the Union was lawful and in accordance with the Industrial Relations Code.

2.	A Commissioner of the Court refused relief in terms of her judgment dated 3 February 2012 and the Union has appealed against that decision which has consequences for members.

3.	Section 27 of the Industrial Relations Code provides:

27(1) Subject to subsection (2), a strike, lock-out or boycott which takes place in furtherance of a trade dispute before the procedures prescribed by this Code for the settlement of trade disputes are exhausted shall be unlawful.

(2) A strike, lock-out or boycott shall not be unlawful by virtue of this section if –

(a)	21 days have elapsed since the date on which the report of the trade dispute in furtherance of which the strike, lock-out or boycott has taken place was made to the Minister or Registrar in accordance with section 7; and

(b)	The Minister has taken no step under section 9(1) or if he has taken such a step his decision has not been communicated to the parties to the dispute or to their representatives in accordance with section 9(2).

(c)	The Registrar has taken no step under section 8(1) or if he has taken such a step his decision has not been communicated tot he parties to the dispute or to their representatives in accordance with section 8(2).

GROUNDS OF APPEAL

4.	Grounds of appeal are:

1.	The Learned Commissioner erred in law in failing to take into account relevant considerations namely s7(6) of the Industrial Relations Code which considers the appointment of persons by the Minister to act on his behalf;

2.	The Learned Commissioner erred in law in deciding that the Appellant's strike was unlawful even though 21 days had elapsed since 24 September 2009 which made the Appellant's strike lawful;

3.	The Learned Commissioner erred in law in failing to take into account that the Minister had not properly exercised his discretion in deciding on the most expedient avenue of settlement between the Appellants and Respondents.

5.	Ground 1 was not pressed as it was not argued before the Commissioner. It could not have succeeded as section 7(6) has no application to the facts of this case. Ground 2 contains the gravamen of the appellant's complaint. Part III of the Code (s 7-10) contains a dispute settling procedure and s 10 includes a deeming clause upon which the appellant now relies.

THE LEGISLATION

6.	The relevant extracts from these sections are as follows:

S.7(1) Any trade dispute may be reported to the Minister or to the Registrar by or on behalf of any party to the dispute, or by the Minister to the Registrar pursuant to section 9(1)(b) or section 10(4).

S.8(1) Subject to section 7(2) the Registrar shall consider every trade dispute of which a report has been made to him in accordance with section 7 and shall as soon as practicable take any one or more of the following steps as seem to him most expedient for promoting a settlement of the dispute –

(a)	Where he is of the opinion that any appropriate machinery for the settlement of trade disputes which may exist otherwise than by virtue of this Code has not been made use or sufficient use of by the parties to the dispute, refer the dispute back to the parties for negotiation or further negotiation and settlement through that machinery.

(b)	In any event refer the dispute back to the parties and if he thinks fit make proposals to the parties or to any of them upon which a settlement of the dispute may be negotiated by them;

(c)	Endeavour to conciliate the parties under section 11;

(d)	Refer the dispute to an arbitration tribunal under section 12.

S.9(1) The Minister shall consider every trade dispute of which a report has been made to him in accordance with section 7 and may take any one or more of the following steps as seem to him most expedient for promoting a settlement of the dispute –

(a)	Where he is of the opinion that any appropriate machinery for the settlement of trade disputes which may exist otherwise than by virtue of this Code has not been made use or sufficient use of by the parties to the dispute, refer the dispute back to he parties for negotiation or further negotiation and settlement through that machinery;

(b)	Refer the dispute to the Registrar under section 7;

(c)	In any event refer the dispute back to the parties and if he thinks fit make proposals to the parties or to any of them upon which a settlement of the dispute may be negotiated by them;

(d)	Refer the dispute to a board of inquiry under section 18;

(e)	Refer the dispute to the Income Commission under section 19.

S10(1) Where the Minister or Registrar has taken a step under section 8(1) or 9(1) as the case may be and is informed in writing by any party to the dispute that settlement of the dispute has not thereby been effected and the Minister or Registrar as the case may be is satisfied that the dispute has not in fact been settled, he may within 7 days of being so informed inform the parties or their representatives that he intends to take a further step under section 8(1) or 9(1) as the case may be.

(2) Where the Minister or Registrar as the case may be does not inform the parties or their representatives in accordance with subsection (1) that he intends to take a further step under section 8(1) or 9(1) as the case may be, or where having done so he does not take that step within 7 days of notifying the parties under subsection (1) the procedures prescribed by this Code for the settlement of trade disputes shall be deemed to be exhausted.

7.	The case for the appellant relies upon the deeming clause (S10(2)).

THE CORRESPONDENCE

8.	A summary of the correspondence between the Parties shows:

15 September 2009

The appellant wrote to the Minister submitting a log of claims.

24 September 2008

A letter from the appellant written to the Minister included the following: 

"Given the present and continuing absence of their reply, I now officially submit our above trade dispute under section 7(1) of the IRC for your kind consideration and further remedy. Since the dispute was not paid any attention, we suggest that a more effective legal intervention of the Minister on this dispute under the various option of IRC is immediately identified. We request that your kind reply at least by Friday 2nd October 2009 to give us some positive hope, if any and in what form, for such anticipated assistance from your end".

29 September 2009

The Minister of Education (who had apparently seen a copy of the log of claims) replied:

"3. In addition to 'Salary Package Award' as part of the Collective Bargaining Agreement, is a matter that would have implications on the entire civil service and the NCS and therefore the involvement of the Public Service Office (PSO) is important. In that respect I will liaise with the PSO in the days ahead on how to proceed further with KUT submission".

"4. Finally I would like to suggest that the first round of negotiation is postpone to another date when all parties are not only available, but they have sufficient time to prepare, especially for the MoE as we're in the middle of our preparation to celebrate an important event that we are all looking forward to the World Teachers Day".

2 October 2009

The defendant wrote to the appellant Union:

Noting that the matter has not been properly discussed between the parties concerned and that avenues have not yet been exhausted, we would like to encourage further dialogue between the parties concerned before addressing the issue as a trade dispute".

6 October 2009

A letter from the Union to the Secretary for Education said:

"We give you another two weeks up to Friday 16th October 2009 on which date we expect an official feedback and reply from your side (Employer) on the respective issues of the Articles stipulated. We hope the time is sufficient this time to tentatively schedule Wednesday 21st October 2009 at 0930 hrs at the Otintaai Hotel again as our negotiation venue".

9 October 2009

A letter to the Minister for Labour from the Union made certain points and in particular:

"(i) Pursuant to s.7(1) the Union has already submitted a trade dispute report to the Minister, we presume this is OK now;

(ii) Under section 7(3), the Union has also already set out in full the matters in issue between the parties. In this case, the dispute and the steps which have been taken by the KUT to obtain a settlement through the first round of the CBA negotiation originally organised last Wednesday 30th September 2009 had failed from the employer side not the Union. In this respect, the Union has also complied with the usual requirement;

(iii) In terms of section 7(4), despite the request for the postponement of the date for the first round of negotiation later received from the Secretary for Education (see copy annex A) just a few days before the demonstration, the KUT has further officially suggested in its letter (see copy annex B) to postpone such important negotiation to a new date on Wednesday 21st October 2009 at 0930 in the same venue to give the Employer more sufficient time on the issues. We take it the Union also sufficiently conform with the procedure".

16 October 2009

The Minister for Education wrote to the Union:

"I am to advise that we have initiated internal consultations to allow Government to formulate a response to the proposals from KUT. I regret that we are unable to meet with you to discuss the proposals until such time that we have fully considered the proposals. I expect that we should be able to advise you of our availability for a meeting within the next few weeks".

3 November 2009

The Union wrote to the Minister including the following:

"Please kindly note that we have already officially informed you in our above letter under section 10(1) of the Industrial Relations Code that settlement of the dispute has not thereby been effected. Under subsection (2) you have failed to inform the Union that you intend to take a further step under section 9(1) or where having done so you have failed to take that step within 7 days. Under these circumstances, the procedures prescribed by this Code for the settlement of trade disputes shall be deemed to be exhausted".

5 November 2009

The Minister wrote to the Union:

"Noting that the mechanism for discussing the issue between the parties concerned have not been exhausted and inline with Section 9(1)(a) of the IRC, I have already referred the matter back to the parties concerned for further discussions and negotiations.

6 November 2009

The Minister wrote to the Union:

"On the 15 September 2009, another letter was received from your end, this time reporting a trade dispute relating to the Union's separate terms and conditions of employment for KUT members to be pursued in the form of a Collective Bargaining Agreement. My office noted that the matters not only concern the KUT members but the civil service as a whole and further noted the involvement of PSO in the negotiations as this would involve the review of the National Condition of Service. In this regard, a response from my office was submitted to your good office on 02 Oct 2009 where we again reiterate the need for the parties concerned to sit together to discuss the matter.....

"You would agree that it is crucial for the parties to sit together to discuss the matter in light of the importance of the matters under dispute and I wish to reiterate my position on the matter that the parties concerned are required to sit together to discuss the matter before I can advise of further steps to take inline with Section 9(1) of the IRC".

(The reference in that letter to correspondence of 15 September 2009; this is an obvious mistake. The correct reference was to the letter of 24 September 2009).

9 November 2009

The Minister wrote to the Union:

"Further to previous correspondence on the above, I write to invite representative from each party to attend an informal discussion that will be held on Tuesday 2.00 pm at the Ministry's Boardroom".

25 November 2009

The Union wrote to the President of the Republic reporting on the negotiation:

"In our recent dialogue of Tuesday 17th November 2009 that was supposed to be a negotiation turned out in the end to be just an ordinary discussion on what exactly the in-depth issues were about and how they could be more elaborated".

30 November 2009

The Union wrote to the Minister:

"The procedures prescribed by the Code for the settlement of our dispute had all been exhausted and therefore actions whether it should be strike or boycott, taken in furtherance of our dispute shall not be unlawful. If we count the legal timing of the above dispute progress as required from reporting to date of strike action we have already satisfied the lawful procedures of the strike declaring it on Tuesday 1st December 2009".

The Union members went on strike on 7 December 2009.

DISCUSSION

9.	The appellant Union relies on the letters dated 24 September 2009 and the letter dated 9 October 2009. The Union chose to ignore the fact that on 6 October they had written to the Secretary for Education and proposed a negotiation for 16 October 2009.

10.	The Union was not entitled on 9 October 2009 to give a notice under s.7(1) as it had held itself out as prepared to negotiate on the original log of claims until 16 October 2001. This would not appear to satisfy any test for good faith bargaining. The course which the Minister might take following receipt of the log was dictated by the outcome of the proposed negotiation as was explained in his letter of 6 November 2009.

11.	The appellant Union contended before the Commissioner that the period of 7 days commenced to run on 24 September 2009 or alternatively on 9 October 2009. This submission was rejected by the Commissioner who held that until the negotiation as proposed had been held the parties were obliged to meet.

12.	We see this action of the appellant Union as a negotiating ploy on a matter which having regard to the National Conditions of Service warranted a wider discussion than the Union would have liked as to the implications of the log of claims.

13.	Ground 3 of the notice of appeal complains that in view of the notification of a trade dispute the Minister had failed to "take into account" the manner of deciding on the most expedient avenue of settlement of the dispute.

14.	The appellant Union by its letters appears to have been seeking to put pressure on the Minister who required that the parties concerned should be required to sit down together and to discuss the matter before the Minister was in a position to respond to a claim where the Union had notionally "exhausted" all procedures prescribed by the Code under S.10. This would appear to be subject to the same criticism as was made on ground 2. (See Minister's letters of 2 October 2009 and 6 November 2009).

15.	In this Court's view the Union can not rely on the letter of 9 October to activate the deeming provisions of section 10(2). Section 27(1) applies and the strike was unlawful.

16.	The decision of the Commissioner was correct. The appeal will be dismissed. The appellant Union will pay the costs of the respondent which in default of agreement will be fixed by the Registrar.

Muria CJ

Williams JA

Barker JA