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

HIGH COURT CIVIL CASE 205 OF 2010

BETWEEN:

KIRIBATI UNION OF TEACHERS
APPLICANT

AND:

ATTORNEY GENERAL iro MINISTER FOR LABOUR
RESPONDENT

FOR APPLICANT: TAOING TAOABA
FOR RESPONDENT: MONOO MWERETAKA
Date of Hearing: 22 November 2011

JUDGMENT

The plaintiff, the Kiribati Union of Teachers (hereinafter referred to as the Union), in its originating summons, seeks the Court's determination of the following question:

"Whether or not the strike that was carried out by the Plaintiff was lawful and in accordance with the provisions of the Industrial Relations Code (IRC)."

Remedy sought

The plaintiff applies for the following declarations;

1.	That the strike that was carried out by the Plaintiff was lawful and in accordance with the provisions of the Industrial Relations Code (IRC),

2.	That the proposed Disciplinary Measures against some members of the Plaintiff is not valid, and 

3.	That the salaries deducted as a means of punishment to some members of the Plaintiff involved in the strike was against the provisions of the Industrial Relations Code and therefore should be refunded.

Case Background:

Sometimes in 2009 a dispute aroused between the plaintiff, the Kiribati Union of Teachers and the Ministry of Education. The dispute was about the dissatisfaction of members of the Kiribati Union of Teachers with their employer's attitude or response towards their request in trying to improve their current professional status and privileges. These new terms and conditions of employment were put forward in a form of 'Collective Bargaining Agreement' to the Ministry of Education. This dispute was reported to the Minister for Labor on the 24th September 2009.

The Fact:

-	15 September 2009, the General Secretary of the Kiribati Union of Teachers wrote to the Ministry of Education (copied to other relevant Government Ministries)proposing a negotiation date to discuss their proposed new terms and conditions of employment.

-	24 September 2009, having received no reply, the Union reported this as a dispute to the Minister for Labor pursuant to section 7 of the Industrial Relations Code. 

-	29 September 2009, the Ministry of Education replied to the Union's letter of 15 September postponing the negotiation date.

-	2 October 2009, the defendant (Minister for Labor) replied to the Union's letter of 24 September encouraging further discussion between the parties.

-	6 October 2009, the Union sent a letter again to the Ministry of Education proposing another negotiation date which is the 21 October 2009.

-	9 October 2009, the Union wrote to the defendant (the Minister for Labor) requesting for a more expedient way to settle the dispute.

-	16 October 2009, the Ministry of Education replied to the Union's letter of 6 October informing them that the proposed negotiation date (21 October 2009) is not convenient as they needed more time to discuss the Unions' proposal. They informed the Union that they will advise them of the new meeting date. 

-	3 November 2009, the Union wrote to the defendant (the Minister for Labor) informing him of his failure to take further steps pursuant to s.10(1) of the Industrial Relations Code and that all means of settling the dispute prescribed for by the Code have been exhausted and that the Union's next step is to go on strike.

-	5 November 2009, the defendant replied that the means of settlement have not been exhausted, and that since the Ministry of Education is willing to negotiate the matter with them, he shall await the outcome of the negotiation, and that any strike at that stage would be premature.

-	6 November 2009, the defendant (the Minister for Labor) wrote again to the Union confirming his position that the parties concerned are required to sit together to discuss the matter before he can advise of further steps to take in line with s.9(1) of the Code.

-	9 November 2009, the defendant wrote to the Union, Ministry of Education and Public Service Office inviting them to a further discussion on the dispute which will be held on Tuesday 2pm.

-	10 November 2009, that discussion took place. The defendant (the Minister) proposed another meeting between the parties only to try and come up with an agreement.

-	17 November 2009, that meeting took place between the Union, the PSO and the Ministry of Education.

-	25 November 2009, the Union wrote to His Excellency Te Beretitenti inviting him to find means of settling the dispute.

-	30 November 2009, the defendant (the Minister for Labor) wrote to the Union informing them that any strike to be taken will be unlawful.

-	30 November 2009, the Union wrote back claiming that such strike will not be unlawful in that the defendant had failed to take further steps 7 days after being informed that the dispute had not been effected. 

-	1 December 2009, the defendant replied that any strike will be considered unlawful since the IRC procedures are not yet exhausted.

-	1-4 December 2009, the strike took place.

The Arguments and the Law

The plaintiff argued that their strike was lawful since they had complied with the requirements prescribed for by the IRC. Their main argument is in relation to the requirement of section 10(1) and (2) of the IRC. Section 10 (1) reads as follows:

"Where the Minister …has taken a step under section 8(1) or 9(1) as the case may be and is informed by any party to the dispute that settlement of the dispute has not been effected and the Minister …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."

Section 10(2) reads as follows:

"Where the Minister …does not inform the parties or their representatives in accordance with subsection 1 that he intends to take a further step under s.8(1) or 9(1) as the case may be,….the procedures prescribed by this Code for settlement of the trade disputes shall be deemed to be exhausted."

The plaintiff argued that they had satisfied s.10(1) in their letter of 9 October 2009. In that letter they informed the Minister to take more expedient ways, as negotiation is not effective, to settle the dispute. Their argument is that the Minister should inform the plaintiff within 7 days of being so informed that he intends to take further steps otherwise the procedures prescribed for settlement shall be deemed to be exhausted. Since the Minster had failed to do this within the 7 days, the procedures prescribed for settlement are deemed to be exhausted. 

 Having submitted the above, the plaintiff went further to say that since this is the case, that is, the procedures for settlement have deemed to be exhausted their strike shall be deemed to be lawful in accordance with the rule. 

Section 27 of the IRC states as follows:

(1)	 Subject to subsection (2), a strike…..which takes place in the 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…..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……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 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 to the parties to the dispute or their representatives in accordance with section 8(2) 

The plaintiff submitted that the requirements above have been fulfilled. The procedures have been exhausted, the 21 days requirement was also satisfied as the trade disputed was reported on 24 September and the Minister failed to take further steps under section 9(1). Subsection 27(2)(c) is not relevant. 

The defendant argued otherwise, that the strike was unlawful since the procedures for settlement have not been exhausted. The plaintiff's letter of 9 October 2009 should not be taken as the letter to inform the Minister that the step taken has failed and that settlement of the dispute has not been effected, a requirement under s.10(1) of the Code. Since negotiation is yet to be conducted on 21 October the Minister believed that negotiation is still workable and to be tried first since all parties are still willing to do it. That was why the defendant did not take further steps. 

The defendant went further to argue that the 7 day period should not start from the plaintiff's letter of 9 October, rather it should start from their 3 November letter or after the 21 October when negotiation failed. 

I agree with the defendant's argument. Evidence shows that before the plaintiff wrote to the defendant (Minister) on the 9 October they wrote first to the Ministry of Education. This was on the 6 October proposing a negotiation date, which is the 21 October. The 9 of October letter to the defendant (Minister) also mentioned about this next negotiation date, i.e the 21 October. For the plaintiff to claim on the 9 October that negotiation is ineffective would be premature. At that time it would be too early to say this when there is another negotiation yet to take place between the parties. This could not mean that the process of negotiation is ineffective. At that stage the defendant is quite right in holding that negotiation is still workable. The defendant is entitled to wait for the result of the negotiation on 21 October. The defendant is quite right to say that the letter of 9 October could not be held to be in compliance with s.10(1) of the Code. 

Further, the evidence shows that when the negotiation on 21 October failed to take place the defendant organized another meeting between the parties. There were two meetings arranged by the defendant after the 9 October, one on the 10 November and the other on the 17 November 2009. On both occasions the plaintiff attended. 

Having stating the above I found that section 10 (1) and (2)of the Code have not been satisfied to hold that the procedures for settlement were deemed to be exhausted, therefore the strike was unlawful, in accordance with section 27(1) of the IRC. 

In view of the above, there is no need to consider the remedies sought. 

Judgment for the defendant with cost.

Dated the 3 February 2012.

TETIRO M SEMILOTA
COMMISSIONER OF THE HIGH COURT