Unreported National Court Decisions
N1200
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS 120 OF 1993
PORT SERVICES PNG PTY LTD - Plaintiff
GIOCTAU TANABI & ORS - 1st Defendant
PNG WATERSIDE WORKER AND SEAMEN'S UNION - 2nd Defendant
Waigani
Sheehan J
7 December 1993
11 March 1994
INDUSTRIAL RELATIONS ACT - Jurisdiction of Arbitration  Tribunal.
Cases Cited:
Ela Motors Limited v McCrudden ex parte Hoepper 1973 PNGLR 436
Steamships Trading Company Limited v Dandi re Skedden 1976 PNGLR 303
Counsel:
Mr C Briggs for the Plaintiff
Mr P Ame for 1st and 2nd Defendant
11 March 1994
SHEEHAN J:  The Plaintiff seeks judicial review of a decision of the Arbitration  Tribunal made 14 July 1993 ruling that it had jurisdiction to hear and determine an industrial dispute between the Plaintiff and PNG Waterside Workers and Seamen’s Union.
The facts in brief are that on 10 April 1993 the Plaintiff retired 25 of its employees, members of the Union, and engaged under the conditions of employment set out in the PNG Waterside Workers and Seamen’s Award No 9 of 1990.
On 21 April 1993 a log of claims was served on the Plaintiff by the Union, seeking new terms of employment for the retired workers including, inter alia - three months notice of retirement - normal salary to retirement date - accrual of leave for the notice period and retirement benefits equal to four weeks wages per completed year of service.
It is the Plaintiffs contention that the Arbitration Tribunal can have no jurisdiction to entertain any alleged dispute where there is no longer any relationship of employer - employee since the 25 former workers were retired when the supposed dispute arose.  In any case it is contended that they have been paid in full, all entitlements due to them under the contract of employment.
It was submitted that the Arbitration Tribunal does not, and cannot have jurisdiction to re-write a contract after employment has been terminated.  To suggest otherwise, it is submitted, would not only be wholly contrary to industrial harmony but also contrary to the law of contract as well.
Mr Ame for the Tribunal contended that the Industrial Relations Act makes it clear that the Arbitration Tribunal does have jurisdiction to determine industrial disputes.  He said that the Arbitration Tribunal having been appointed by the Head of State must be permitted to determine the dispute before its jurisdiction or its decisions can be in any way contested.
He said that the dispute to be determined is whether the employees were paid their full entitlements  under the award.  The sole jurisdiction to decide this issue lies with the Arbitration Tribunal free from any interference from the Courts.
If the Tribunal were to decide that the items raised by the Union are part of the award then those entitlements must be paid.  But he acknowledged that if the log of claims did not come within the award then the Tribunal could not them incorporate after the event.
Mr Ame pointed to the decision of the pre independent Full Court in Ela Motors Limited v McCrudden ex parte Hoepper 1973 PNGLR 436 and decision of the Supreme Court in Steamships Trading Company Limited v Dandi re Skedden 1976 PNGLR 303 to support his contentions.
DECISION
By s. 18 (1) of the Industrial Relations Act ch 173:
“18(1) The Head of State, acting on advice may by instrument under his hand establish an Arbitration. Tribunal to deal with an Industrial dispute.”
An industrial dispute is defined in the Industrial Organisations Act ch. 172 (which is an Act co-extensive with the Industrial Relations Act).  Section 1(1) of that Act says in summary:
“‘Industrial Dispute’ means a dispute or difference between:
(a)      an employer and an employee or employees...connected with an industrial matter, and includes:
(g)      a dispute arising from a contract of employment the particulars of which are contested by either party to the contract within three months after the termination of the contract.”
On 30 June 1993 a Arbitration Tribunal was established.  No copy of the gazettal of the notice of appointment was exhibited but I rely on the affidavit of Mr Tanabi which was not disputed.  On 9 July 1973 the Tribunal gave notice under ss. 29, 30 and regulation 6 of the Industrial Relation Act that the Industrial dispute:
“concerning log of claims by PNG Waterside Workers and Seamen's Union for the payment of Retirement Benefit for those Waterside Workers who have been compulsory retired on the 10th of April 1992 by the employee”
would be heard on the 13 of July and an award made.
The challenge made by the Plaintiff company to the Tribunal jurisdiction to determine these matters was considered and dismissed by the Tribunal but an adjournment given to allow application made to this Court.
I am satisfied that the Arbitration.  Tribunal does have jurisdiction to hear and determine this industrial dispute.
The dispute falls within the definition of the terms an the Industrial dispute under s. 1 (g) of the Industrial Organisation Act, a dispute contested within 3 months of termination of the contract.  Further the decision of the Full Court in Hoepper’s case and Supreme Court in Skedden’s case (where the essential arguments now presented by the Counsel Plaintiff were in fact argued) support this view.
It seems to me that the Plaintiffs claim of lack of jurisdiction in the Tribunal is based not so much on the Tribunal’s lack of jurisdiction to hear and resolve a dispute as such, so much as a concern, an alarm, that the Tribunal will or might exceed its jurisdiction by re-writing a contract, rather than simply resolving the dispute by reference to its terms.
In judicial review the Courts role is to supervise the exercise of jurisdiction of bodies of persons or Tribunal empowered by law to determine the issues in particular field.
It is not the role of the Courts make the decisions for those bodies.  In instances where the Court finds that a body or Tribunal has made an error in its determination of a matter or failed to follow the rules of natural justice or in some way exceeds its jurisdiction, it does not then proceed to make the decision for that Tribunal, even if on the evidence before it may seem the answer is obvious.  If there is an error then that error does not give the Court a jurisdiction to entertain the matter itself, it simply means that the matter must be referred back to the body or tribunal concerned to consider the matter again and make its determination lawfully.
With great respect this is in my view, no more and no less, the effect of the Full Courts decision in Hoepper’s case and the Supreme Court in Skedden’s case, even though in both cases great concern was shown by judges that there seemed to be a possibility of the Tribunal coming to conclusions at variance with accepted principles of contract.
But it is to be noted in both of those cases that what was decided, was the issue of jurisdiction of the Tribunal to determine the dispute.  What was not at issue in those cases was the substance of the dispute the Tribunal was to hear.
Those Courts upheld the jurisdiction of the Tribunal concerned to determine the issue in dispute.  That is, they upheld the jurisdiction of those Tribunals to make a determination entrusted to them by law.
The application of the Plaintiff is therefore declined.
Lawyer for the Plaintiff:  Blacke Dawson Waldron
Lawyer for the Defendants:  Acting Solicitor General