Papua New Guinea Law Reports - 1988-89
[1988-89] PNGLR 585
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
PUBLIC EMPLOYEES ASSOCIATION OF PAPUA NEW GUINEA AND NAPOLEON BIYUWO LIOSI
V
PUBLIC SERVICES COMMISSION
Waigani
Kapi DCJ
1 March 1983
INJUNCTIONS - Interlocutory injunction - Principles upon which granted - Serious question for determination - Balance of convenience - No serious question - Injunction not available.
STATE SERVICES - Public servants - Strike action - Breach of Public Service Act - Nature of breach - Disciplinary offence only - No constitutional protection - Public Service Act (Ch No 67), ss 66, 68, 85[xi]1 Constitution, ss 37(3), 47.
On an application for an interlocutory injunction to restrain the Public Services Commission from taking proceedings for illegal strike action against certain public servants pursuant to ss 66, 68 and 85 of the Public Service Act (Ch No 67), and sought in proceedings for a declaration that ss 66, 68 and 85 of the Public Service Act were unconstitutional in that they were contrary to the provisions of s 37(3) of the Constitution which provides in respect of a person “charged with an offence” for a fair hearing within a reasonable time, by an independent and impartial court,
Held
(1)      Before an interlocutory injunction can be granted, the applicant must satisfy the court:
(a)      that there is a serious question to be determined; and
(b)      that the balance of convenience favours the grant of the injunction.
(2)      The offence of an “illegal action against the peace and good order of the country” by taking part in specified strike action, created under s 85 of the Public Service Act is a disciplinary offence and not a criminal offence and is not protected by s 37(3) of the Constitution.[xii]2
SCR No 1 of 1981; Re Inter-Group Fighting Act [1981] PNGLR 151 and SCR No 1A of 1981; Re Motor Traffic Act [1982] PNGLR 122, considered.
(3)      (Obiter) Although s 85 of the Public Service Act prevents public servants from striking, it does not affect the right to assemble, the right to form or, the right to belong or not to belong to a union protected by s 47 of the Constitution.
(4)      There being no serious question raised for determination, the injunction sought should not be granted.
Cases Cited
Employers Federation of Papua New Guinea v Papua New Guinea Waterside Workers and Seamen’s Union and Lawrence Titimur, Tony Hartwell and Didiulosi Boshen (Kapi Dep CJ, N393, 11 October 1982, unreported).
SCR No 1 of 1981; Re Inter-Group Fighting Act [1981] PNGLR 151.
SCR No 1A of 1981; Re Motor Traffic Act [1982] PNGLR 122.
Sudy Yaku v Commissioner of Police; Ex parte The State [1980] PNGLR 27.
Motion
By notice of motion, in proceedings commenced by summons for declaratory relief, the plaintiff sought an interlocutory injunction.
Counsel
I Molloy and B Larkin, for the applicant/plaintiff.
O Emos, for the respondent/defendant.
1 March 1983
KAPI DCJ: In recent months there have been negotiations between the Public Services Commission and the executive of the Public Employees Association of Papua New Guinea. These negotiations covered a wide range of claims by the Association over conditions of employment of nationals by the Public Services Commission. The parties failed to reach a compromise. It appears from the evidence that the Public Employees Association held a plebiscite amongst its members to determine a strike action. It is alleged that the plebiscite favoured strike action. The strike was proposed for 21 February 1983 by the Executive of the Public Employees Association. It is not clear how many public servants went on strike, but a number did go on strike. This prompted a certain proposed course of action by the Public Services Commission. The intention of the Public Services Commission to dismiss public servants who went on strike was broadcast nationwide and is evidenced by newspaper clippings. It is not disputed by counsel for the Commission that this is what the Public Services Commission intends to do. In fact, the Public Services Commission has already gazetted the various positions within the Public Service which are expected to be vacated by the proposed dismissals. In the wake of the proposed action by the Public Services Commission, the Association has taken out a writ of summons against the Public Services Commission seeking two declarations:
1.       that the defendant is not empowered to dismiss or otherwise penalise public servants who took part in the strike without being afforded the right to be heard; and
2.       that ss 66, 68 and 85 of the Public Service Act (Ch No 67) are unconstitutional.
Pending the hearing of this action, the applicants, by a notice of motion, have applied for an interim injunction to restrain the Public Services Commission, its agents and servants:
(a)      from penalising the public servants without the right to be heard; and
(b)      from taking any proceedings against these public servants pursuant to ss 66, 68 and 85 of the Public Service Act (Ch No 67).
In relation to the first order, the applicants do not press for this, on the undertaking given by the Public Services Commission through counsel that the public servants it intends to charge will not be dismissed summarily but will have observed the rules of natural justice. The arguments before me were confined to the second order in the notice of motion.
The law is now settled that before an interim injunction can be granted, the applicant must satisfy the court:
(a)      that there is a serious question to be determined; and
(b)      that the balance of convenience favours the grant of the injunction.
The authorities supporting these propositions are now set out in the case of Employers Federation of Papua New Guinea v Papua New Guinea Waterside Workers and Seamen’s Union and Lawrence Titimur, Tony Hartwell and Didiulosi Boshen (Kapi Dep CJ, N393, 11 October 1982, unreported).
The course of action is based on the argument that ss 66, 68 and 85 of the Act are inconsistent with s 37(3) of the Constitution and are therefore invalid. On this argument, counsel for the applicants relied particularly the unconstitutionality of s 85.
Section 85(1) and (2) of the Public Service Act (Ch No 67) provides as follows:
“(1)    An officer who aids, abets, foments or takes part in a strike that:
(a)      interferes with or prevents; or
(b)      is intended or calculated to interfere with or prevent, the carrying on of any part of the public service or utilities of the country, or who attempts to do so, shall be deemed to have committed an illegal action against the peace and good order of the country.
(2)      Any officer adjudged by the Commission, after investigation and hearing, to be guilty of any action referred to in Subsection (1) may be summarily dismissed by the Commission from the Public Service, without regard to the procedure prescribed in this Act for dealing with disciplinary offences.”
Counsel for the applicants developed his argument in the following manner. He submitted that the offence created by s 85 of the Act is an offence which could not be described as a disciplinary offence. He submitted that it is an offence in the nature of a crime which should be adjudged by an independent and impartial court such as courts established under the National Judicial System. To put it differently, he submitted it is a criminal offence. He then submitted that s 37(3) of the Constitution deals with such criminal offences and therefore it follows that such an offence must be dealt with by an independent and impartial court. He submitted that, under s 85(2) of the Act, the Public Services Commission is the body which lays the charges and then determines the charges. This, he submitted, is not an independent and impartial court.
At the outset, I should point out that both counsel do not appear to dispute the interpretation that s 37(3) of the Constitution does not apply to disciplinary offences, it is concerned with criminal offences. With respect, this appears to be the correct view having regard to various decisions of the Supreme Court in relation to s 37(4) of the Constitution which also refers to the word “offence”. See SCR No 1 of 1981; Re Inter-Group Fighting Act, 1977 [1981] PNGLR 151 and SCR No 1a of 1981; Re Motor Traffic Act [1982] PNGLR 122. There would also appear to be some support for this view in the case of Sudy Yaku v Commissioner of Police; Ex parte The State [1980] PNGLR 27, where the court there was discussing the application of s 16 of the Criminal Code (Ch No 262) to disciplinary offences where it was held that disciplinary offences are quite distinct from crimes. The parties did not contest the interpretation of s 37(3) and its application. This is very significant. The question to be determined, therefore, in this application is, whether the offence created under s 85 of the Act is a disciplinary offence. If it is, s 37(3) has no relevance; if it is not and it is a crime, s 37(3) is relevant. Whether or not a serious question is raised to be decided depends on this question. Section 85 of the Act does two things. First, it deals with what is an illegal action against the peace and good order of the country. Secondly, it deals with how an illegal action may be dealt with and by what authority. In this instance, the Public Services Commission may summarily dismiss such an officer who commits the illegal action. Reading the section in isolation, it could not be concluded that illegal action is a disciplinary offence. The only reference to disciplinary offence is in s 85(2) which states that a person committing the illegal action may be dismissed summarily without regard to the procedure set out dealing with disciplinary offences. It appears that this section treats this offence as a separate offence from the other disciplinary offences. However, it is to be noted that s 85 appears under Pt VII of the Act which deals with Disciplinary Offences, Board of Inquiry and Appeals. Section 65, which appears at the beginning of Pt VII, Div 1, defines disciplinary offences. Amongst other definitions, s 65(1)(a) provides the following:
“65(1) An officer who:
(a)      ... commits a breach of this Act ... is guilty of a disciplinary offence and is liable to be dealt with and punished under this part.” (My emphasis.)
The question then arises, when a public servant contravenes the provision of s 85, is he in breach of the Act? The answer to this inquiry must certainly be YES. The Parliament in its power and wisdom has set down certain behaviour by public servants which shall be deemed to be an illegal action. it is intended to prevent public servants from taking a course of action, that is, not to strike. If they take any action which is in contravention of the section, it is clearly a breach of the Act. It follows from this, that a person who commits an illegal action as defined under s 85 of the Act, is committing a disciplinary offence within the meaning of s 65(1)(a) of the Act. Ordinarily, I would think that when a person is charged for illegal action, the procedure prescribed for disciplinary offences would be followed. The only difference is that under s 85(2) of the Act, the Public Services Commission has a discretion summarily to dismiss that officer without the prescribed procedures being followed. In my view, this is the only essential difference.
It follows from this reasoning that s 37(3) of the Constitution is not relevant to disciplinary offences. The constitutionality of s 85 of the Act does not arise.
Counsel then relied on s 41 of the Constitution. Counsel did not develop this argument at all. I consider that this is a separate argument. It does not deal with constitutionality of an act done or a statute. It deals with whether an act done under a valid law is unlawful. So far, the Public Services Commission has not taken any steps to do what it proposes to do, which could be said to be unlawful under s 41. From this point of view, this issue is raised prematurely. The provision may arise at a later point in time when such action is taken. This can be the subject of a separate cause of action.
Finally, I brought to counsel’s attention the possibility of an argument that s 85 of the Act could be unconstitutional as being inconsistent with s 47 of the Constitution. Counsel for the applicants submitted that he did not have this argument in mind as the basis of the cause of action. No detailed submissions were made by either counsel. For these reasons, I do not regard this issue as part of the cause of action and therefore not part of the arguments on this application. However, this issue can be taken up in separate cause of action. Nevertheless, I intend to make a few remarks by way of dicta. Section 47 of the Constitution guarantees freedom of assembly and association. It is a freedom given to persons to join political parties unions and other associations. The Public Employees Association is such an organisation. All members who have joined the Public Employees Association have exercised the right given by s 47 of the Constitution. This right deals with:
(a)      the right to assemble and associate;
(b)      the right to form and;
(c)      the right to belong to or not to belong to a political party, and industrial organisation or other form of association. (My emphasis.)
That is as far as s 47 goes. It does not concern itself with the activities of a political party, an industrial organisation or other associations. A strike by the Public Employees Association may be decided by the national executive, congress or plebiscite under s 50 of the constitution of the association. That is an activity in which the organisation may or may not be involved, depending on the decision of those who have the power to decide. There is nothing in the Constitution on the question of strikes. There is no freedom to strike. Whether or not a strike by public servants is allowed, one must look to other laws. In the case of public servants, the Public Service Act is the relevant Act and in accordance with s 85, it does not allow public servants to go on strike. The fact that s 85 prevents public servants from striking does not affect the right to assemble, the right to form, the right to belong or not to belong to the union. In my view, s 85 could not be said to be in contravention of s 47 of the Constitution. I do not see that a serious question may be raised by this argument.
I have therefore concluded that the applicants had failed to show that a serious question has been raised for decision by the National Court. I therefore cannot exercise my discretion to grant the injunction which is asked for on the second order in the notice of motion.
Injunction refused
Lawyers for the applicant/plaintiff: Beresford Love, Francis and Co.
Lawyer for the respondent/defendant: O Emos, State Solicitor.

[xi] [Editor’s Note: And now see also Public Employees Association of Papua New Guinea v Public Service Commission [1983] PNGLR 206.]
[xii] [Editor’s Note: And now see also Public Employees Association of Papua New Guinea v Public Service Commission [1983] PNGLR 206.]