In the High Court of Kiribati
Civil Jurisdiction
Held at Betio
Republic of Kiribati

High Court Civil Case 115 of 2010

Between:

Betio Ports Stevedores Union
Plaintiff

And:

Kiribati Ports Authority
Defendant

For the Plaintiff: Mr Banuera Berina
For the Defendant: Mr Monoo Mweretaka

Date of Hearing: 25 October 2010

JUDGMENT

The decision in this case depends on the interpretation of the defendant's Conditions of Service and the Trade Unions and Employer Organizations Act 1998.

KPA Conditions of Service:

C.27	Unauthorized Disclosure

Unauthorized disclosure by an employee of any information that he/she has obtained as a result of his/her position in the Authority may be regarded as a serious misconduct and would be dealt with in accordance with C14 & C15.

The Trade Unions and Employer Organizations Act:

21(1)	No employer shall make it a condition of employment of any worker that such worker shall neither be nor become a member of any or a particular trade union or other organization representing workers in any trade or industry, and any such condition in any contract of employment entered into before or after the commencement of this Act shall be void.

Members of the Union, employees of the defendant, were concerned that the defendant proposed to send overseas for further training a contract employee, thus passing over permanent employees for the training. On 12 May 2010 the Union wrote a letter to the Chairman, Board of Directors, Kiribati Ports Authority, complaining. The letter was signed by Nei Kamaua Bwauro, Secretary, Makaea Amara, Chairman and Tekarika Torere, Committee Member. It was copied to the Ministry of Labour and Human Resources Development, the Ministry of Communications, Transport and Tourism Development, the Kiribati Trade Union Congress and the Union's legal adviser.

The defendant took exception to the letter having been copied to others outside the KPA and suspended without pay Nei Kamaua and Tekarika for 20 working days for, the defendant said, breaching Condition of Service C.27. [Why Makaea was not suspended and why spreading this information should be regarded "as a serious misconduct" is unknown]. The suspension has now passed and those suspended are back at work. They claim for the wages etc. lost because of the suspension.

Justification for the suspension depends on the interpretation of Conditions of Service C.27. The crucial words are "information that he/she has obtained as a result of his/her position in the Authority". 
Mr Berina submitted that the information in the letter was not "obtained as a result of his/her position in the Authority" but from other members and given to Nei Kamaua and Tekarika in their capacity as officers of the Union. Nei Kamaua, a tally clerk, and Tekarika a security guard: they did not obtain the information in those capacities but as officers of the Union. Accordingly C.27 does not apply: they did not obtain the information "as a result of his/her position in the Authority".

Mr Mweretaka to the contrary argued Nei Kamaua and Tekarika, even though officers of the Union were employees of the KPA nevertheless and nothing else mattered.

Unless Mr Berina's submission is correct the words in C27 "as a result of his/her position in the Authority" have no significance and no work to do. The words have been inserted in C.27 deliberately. They should be interpreted as significant and as having work to do. I accept Mr Berina's submission.

Apart from interpretation, if it were not so members of the Union might well be deterred from taking office. They could fear they would be punished for supporting their fellow members as Nei Kamaua, Makaua and Tekarika did.

Nei Kamaua and Tekarika did not commit any offence against Conditions of Service C27. The defendant was in error in imposing penalty on them.

The Union, on their behalf, appealed to the Board. The Board refused to hear the appeals, directing that if Nei Kamaua and Tekarika wished to appeal they must each do so personally: the Union could not appeal for them.

There is nothing in the Act which directly goes to the point: the Court must interpret as best it can. Mr Berina relied on the words in S.21 of the Act, "representing workers in any trade or industry". The role of a trade union is to "represent" its members. That is confirmed in S.2 of the Act:

"trade union" means an organization representative of workers ….. the principal purpose of which is under its constitution the protection and promotion of workers' interests in matters relating to their employment.

No reason has been advanced why the Union should not represent members on an appeal as well as in other "matters relating to their employment". The Board should not have refused to hear the appeals brought by the Union on behalf of Nei Kamaua and Tekarika.

That may be useful in the future. In view of the decision that 
Nei Kamaua and Tekarika committed no offence there need be no appeal in this case.

The plaintiff succeeds generally on the first three claims in the prayer. I shall hear counsel as to the orders I should make.

As a rule general damages are not awarded for breach of contract and none should be awarded here. There will be no declaration in relation to the fourth claim.

Dated the 27th day of October 2010

THE HON ROBIN MILLHOUSE QC
Chief Justice