N1125

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 835 OF 1992

NATIONAL AIRLINE EMPLOYEES' ASSOCIATION OF PAPUA NEW GUINEA
Plaintiff

-v-

NATIONAL AIRLINE COMMISSION trading as AIR NIUGINI
Defendant

Waigani: Brown J.
1992: 3, 5 & 6 November

Custom - Employees terminated by notice - Claim that employer bound to provide accommodation for period beyond termination "in accordance with custom" - Master/servant relationship considered in the light of "custom".

Members of the Association which instituted these proceedings claimed to be allowed to remain in occupation of premises of their employer beyond the period of notice given on termination.

There was no evidence that the right of occupancy was contractual, rather the various occupiers claimed a right to remain for that the Commission (their employer) "would in the normal course of termination allow the employee to seek reasonable accommodation or allow the employees occupation until an appeal to the appropriate tribunal or Court of Law is determined".

The Commission denies such a right to remain in the terminate employees.

The employees claim that in the circumstances such a right arises by "custom"

Held: 

(1) 	"Custom" must be read subject to the Constitution and requires evidence of underlying community laws to support the usage asserted.

(2) 	Where the continued occupation of employers premises is shown to arise out of the employer/employee relationship, that relationship displaces any suggestion of "custom".

Schedule 2.1 Constitution of Papua New Guinea.

(Observations on "legal realism" where attempts are made to change common law rules).

Ruling on preliminary question of whether custom applied.

RULING

Mr P. Paraka, for the plaintiff
Mr P. Payne, for the defendant.

BROWN J.: When I fixed this matter for continued hearing last Tuesday I directed the plaintiff to file three affidavits as to custom.

That has been done and those affidavits have been read. They are by previous employees of the respondent Airline who have deposd to their position with Air Niugini, their length of service, their home circumstances and their employment prospects to some extent. All state that their chances of re-employment are not good and it is implied that as a consequence their opportunities to obtain suitable accommodation in the Port Moresby area are slim. It goes without saying that continued income is needed whether from employment or another source to pay rental or meet loan repayments on a purchase. Such a state of affairs exists whether one is terminated from ones employment or comes from the village seeking employment.

The three deponents, however, go further and state that the defendant Commission "...would in the normal course of termination allow the employee to seek reasonable accommodation or allow the employees occupation until an appeal to the appropriate tribunal or Court of Law is determined".

I presume this is, when read with the foregoing parts of the affidavit, what gives rise to Mr Payne's objection on the defendants behalf. Mr Payne says that offending clause may recite a commercial practice although previous instances are not particularised but it does not deal with custom as is understood in schedule 2 to the Constitution or the Customs Recognition Act Chap 19. He referred me to "Legal Issues in a developing Society" Jean Zorn @ 115 where she identifies 3 meanings for custom. They include what is done, the rules which govern persons behaviour or actions and the underlying values and aspirations of such rules. He says the 2nd and 3rd meaning are relevant here but the recited clauses in the affidavits do not either express customary rules or reflect values or aspirations.

They certainly reflect expectations, but expectations which arise out of an employer/employee relationship, not out of custom. "Custom" Mr Payne says is dealt with in a line of cases. Cases are commented upon at pages 509 to 512 of the "Annotated Constitution of Papua New Guinea", Brunton & Colquhour Kerr which follows Schedule 2.1's adoption of custom. Custom has been treated as springing from, as Jean Zorn says "the underlying community laws of the indigenous inhabitants of the country", the whole tenor of the cases reported at Schedule 2.1 of that Annotated Constitution confirm her thesis.

Mr Paraka, says that custom which develops is not necessarily based on traditional values. He says that if the pattern of behaviour or way of doing things over time illustrates a practise, that becomes custom. Thus he says the statement of these 3 employees illustrates a custom which has developed in the management of Air Niugini towards employees housing. The Court should then find a custom and apply it as part of the underlying law (Schedule 2.3). It would appear he is, in this case, suggesting that legal realism should assist in developing rules to cope with entrenched attitudes which do not necessarily reflect the needs or aspirations of the people here affected. James & Fraser have dealt with that aspect in Legal Issues in a developing Society "University of Papua New Guinea 1992" where they say @ 120 -

"Legal realism developed in part as an antidote to positivism, offering to the courts a jurisprudence that permitted, even encouraged, developmental change in common law rules. The legal realists pointed out that rules are influenced by the social conditions in which they operate. When the fact situation to which a rule is applied, or the social conditions which that fact pattern arises, change, the words of a common law rule might stay the same, but its meaning, application and enforcement all change. Thus, a court's work is only half done when it has located a potentially applicable precedent. Because its very application to the new case will change the scope, and thus the meaning, of the rule, the court must, before applying the rule, inquire into the purpose that the rule was intended to serve, the condition is in which the rule arose, and the conditions appertaining as the court decides whether to apply the rule to the new fact situation".

Perhaps he is relying on changing social conditions in urban Port Moresby, but has not argued it.

The dichotomy is clearly apparent in the affidavit of Maternes Mape, he says @ para 5 -

"That I have long forgotten the traditional ways of gardening, building houses, hunting and fishing. I will have a difficult time living in the village if I am forced to do so". 

On the authority of Schedule 2.1 his knowledge of custom would preclude him from having any say, as it were if customary rules in his village were to be elicited. Further he recites in para 6, the practice of Air Niugini would in the normal course of termination, allow the employee to seek accommodation or allow the employees occupation until an appeal to the appropriate tribunal or Court of Law is determined. No facts or instances are given to support his assertion which is of course, self-serving.

But that relates to one employer, and is peculiar to that industry. There is no evidence that in urban Port Moresby, that practice is universal. Rather it rests on the particular employer/employee relationship, a relationship of a contractual nature which in my view goes some way from "custom" as has been previously understood. A relationship of master or servant or employer/employee is far removed from community relationships. On the strength of the authorities I would not be prepared to extend the meaning of custom to embrace this claim for continued accommodation after termination of employment. There is I presume an equally strong claim for accommodation by present employees, which rests on the terms and conditions of existing employment.

I am not satisfied "custom" as presently understood has been made out, and I decline to treat those matters deposed to as custom.

------------------------------------------------------------------------------------

Lawyer for the Plaintiff: Kirkes
Lawyer for the Defendant: Blake Dawson Waldron