N4338
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS NO. 325 OF 2010

BETWEEN:

JOHN MAHUK
Plaintiff

AND:

HELEN SALEU, INDUSTRIAL REGISTRAR,
DEPARTMENT OF LABOUR AND INDUSTRIAL RELATIONS
First Defendant

AND:

GEORGE VASO, SECRETARY,
DEPARTMENT OF LABOUR AND INDUSTRIAL RELATIONS
Second Defendant

Waigani: Davani, J
2011: 11th, 15th July
 
INDUSTRIAL ACTION – Voting of Union executive – eligibility criteria – determined by Union's Constitution

INDUSTRIAL ACTION – Industrial Registrar – role and functions of Industrial Registrar – nomination of Union executive – conduct of secret ballot – Industrial Registrar supervises election – s.61 of Industrial Organizations Act.

Facts

The plaintiff, a former member and President of the Papua New Guinea Maritime and Transport Workers Union ('Union'), sought to stand as President in the upcoming Union elections. However, at that time he was not a member of the Union, nor was he an employee of any of the Organizations stated in Rule 4 of the Union's Constitution.

When the secret ballot was conducted, the Industrial Registrar who was supervising the elections, noted that the plaintiff had not fulfilled the eligibility criteria set in Rule 4 of the Union's Constitution. She refused to accept the plaintiff's nomination as a candidate for the presidential position.

The plaintiff filed these proceedings.

Issues

(i)	Whether the first defendant has powers to interfere with the election process of a registered Union?

(ii)	Whether the Industrial Registrar's supervisory role under s.61(3) of the Industrial Organizations Act 1962 includes a right or duty on the Industrial Registrar to determine whether or not the plaintiff is eligible to contest the Union's Elections and/or to reject his nomination?

Reasons

The Industrial Registrar is empowered by s.61 of the Industrial Organizations Act to supervise the Union's Elections from the beginning till the end of the process. If a candidate is not a member of the Union, he or she cannot stand for an election to be a nominee for the Union's executive or just to be a member because he or she is not eligible.

Orders

1.	The plaintiff's claim is demised in its entirety.

2.	The plaintiff shall pay the first and second defendants' costs of the proceedings.

Case Authority

•	PNG Power Limited v. PNG Energy Workers Association and all its members, Industrial Registrar and The Independent State of Papua New Guinea, OS 870 of 2005

Legislation

•	Industrial Organizations Act 1962. 
•	Interpretation Act 1975

Counsel:

T. Waisi, for the Plaintiff
R. Puka, for the first and second Defendants

DECISION
15th July, 2011

1.	DAVANI .J: Before me for hearing is Originating Summons filed on 22nd June, 2010 by Waisi Lawyers for and on behalf of the plaintiff. The Originating Summons seeks the following orders;

"(1). An Order in the nature of a declaration that he is a member of the Papua New Guinea Maritime & Transport Workers Union pursuant to Section 33 of the Industrial Organizations Act 1962. 

(2) In the alternative, an order in the nature of a declaration that his membership acceptance by the Execution Union of the Papua New Guinea Maritime & Transport Workers Union is valid and for all purposes legal.

(3) An order in that nature of a declaration that he is eligible to contest the Papua New Guinea Maritime & Transport Workers Union Executive Elections in the Port Moresby sector.

(4) Costs of the proceedings.

(5) Any such further or other orders as the Court deems fit."

2.	The application is opposed by the first and second defendants. 

3.	The plaintiff's application is supported by several affidavits. The defendants also have filed affidavits in response to those affidavits. I will refer to those affidavits throughout, where appropriate to do so.

Backgrounds

4.	In 2007, the plaintiff was elected by ballot to be the President of the National Council of the Papua New Guinea Maritime & Transport Workers Union (the 'Union'). He was at that time a financial member of the Union and was employed by Consort Express Lines Limited ('Consort').

5.	On or about June, 2009, he resigned from his employment with Consort. He then ceased to be a financial member of the Union.

6.	Thereafter, the National Council of the Union allowed the plaintiff to continue as President to oversee and supervise the handover/takeover by the newly elected President of the Union, to be elected at the Union's National Council Meeting scheduled in or about 1st January, 2010. The plaintiff then, continued to perform the functions of a President. It is not disputed that he was not a financial member of the Union at that time.

7.	In its pre-election processes, the Union called for nominations on 29th March, 2010. These nominations closed on 17th May, 2010. The plaintiff nominated to contest those elections on 31st March, 2010.

8.	It was during the nomination process and whilst screening the nominees that the first defendant Industrial Registrar ('Industrial Registrar') discovered that the plaintiff was not a financial member of the Union. The Industrial Registrar then advised the Union that because the plaintiff was not a financial member, then he should not nominate to contest the Union's Executive Elections. As a result of that decision, the plaintiff filed these proceedings.

Analysis of the evidence and the law

9.	The plaintiff seeks several Declarations in these proceedings. That he is a member of the Union pursuant to s.23 of the Industrial Organizations Act. Alternatively, a declaration that his membership acceptance to the Union is valid and legal and a further declaration that he is eligible to contest the Union's Executive Elections in the Port Moresby sector.

10.	He relies on s.38 of the Industrial Organizations Act which reads;

"38. Disputes as to membership

(1)	Where a question or dispute arises as to the entitlement under this Act of a person to be admitted as, or to remain, a member of an industrial organization –

(a)	the person; or

(b)	a person who is or desires to become the employer of the person; or

(c)	the organization; or

(d)	the Registrar; or

(e)	any other interested person, 

may apply to the National Court for a declaration as to his entitlement to membership of the organization.

(2)	The National Court – 

(a)	has jurisdiction to hear and determine a question or dispute arising under Subsection (1); and

(b)	may, after hearing all interested parties and notwithstanding anything in the rules of the industrial organization concerned, make such declarations or orders as it thinks proper in relation to the question or dispute.

(3)	The orders that the National Court may make under Subsection (2) include an order requiring the industrial organization concerned to treat the person concerned as a member of the organization.

(4)	On the making of an order under Subsection (3) or as otherwise specified in the order, the person concerned is, by force of this Act, a member of the organization, subject to payment of any moneys properly payable in respect of membershp"

11.	The first defendant submits that as Industrial Registrar, she has properly exercised her powers under s.61 of the Industrial Organizations Act to supervise the elections, one of which is to screen and weed out persons who are not eligible to nominate. She submits that the plaintiff was not eligible to nominate, which was why he excluded from the list of nominees who stood for the Union's election for the position of President.

12.	Section 61 of the Industrial Organizations Act reads;

"61. Secret ballots

Where, in accordance with this Act, a matter is required to be decided by secret ballot, the ballot shall be conducted –
 
(a)	by the Electoral Commission and in such manner as he directs; and

(b)	under the supervision of the Registrar,

and shall, subject to the rules of the industrial organization concerned, be decided by a majority of votes."

13.	The provision governing the eligibility criteria for union members is Rule 4 of the Union's Constitution, which reads;

"Rule 4: CONSTITUTION

The Union shall be constituted of any unlimited number of persons engaged in the operation of loading and discharging ships and includes the actual movements of goods on, to, or from a vessel, wharf, pier, jetty, shed, lighter or any place in the vicinity of loading and discharging operations for the purpose of putting goods at a point or points within that place so as to facilitate the ultimate actual loading or discharging and/or ultimate removal from that place, and also includes the stacking or arranging within, that place of loading or discharging so as to further that ultimate loading or discharging of cargo in relation to trade or commerce by sea with other countries or amongst the provinces. For the purposes of these operations any such place may include any shed, wharf or pier or any place in the vicinity of the spot at which the vessel is to load or discharge or where goods are to be shipped or that have been unshipped or are temporarily deposited or checked for the purpose of facilitating the ultimate loading or the ultimate adequate discharge of cargo. Notwithstanding this clause, the Union shall in addition be constituted by any unlimited number of persons and/or employees employed as seamen on coastal and overseas vessels and commercial fishing vessels in Papua New Guinea.

Membership of the Union is expanded to include:

(a)	tradesmen and tradesmen assistants employed in the stevedoring and shipping industries.

(b)	security guards employed in wharves, jetties and piers by private sector stevedoring employers.

(c)	all employees engaged in the ship repair and ship building industries.

(d)	clerical staff employed in stevedoring and shipping offices on or adjacent to a wharf, jetty or prier.

(e)	employees engaged as drivers on transport vehicles which are primarily utilised for the carriage of cargoes to and from a wharf, jetty or pier and which are owned by stevedoring and shipping companies or their subsidiaries.

(f)	all workers employed in any occupation by a Statutory Port Authority or employed in any occupation by a private sector company(s) engaged in the business of Port Administration and related activities.

(g)	any employee employed in the position of driver, driver assistant, or swing lift operator or any type of vehicle in Papua New Guinea."

14.	The issues raised in these proceedings, are generally in relation to the Industrial Registrar's powers before, during and after an election conducted by a Union (my emphasis). It also revolves around the eligibility of a Union member who desires to contest the Union's elections. It is also a case that focuses on who is eligible to be a member of a Union and how that eligibility is determined.

15.	The two issues posed to the Court by both counsel are;

(iii)	Whether the first defendant has powers to interfere with the election process of a registered Union?

(iv)	Whether the Industrial Registrar's supervisory role under s.61(3) of the Industrial Organizations Act 1962 includes a right or duty on the Industrial Registrar to determine whether or not the plaintiff is eligible to contest the Union's Elections and/or to reject his nomination?

16.	I discuss both issues together as they are inter-related. 

17.	The Court must firstly determine who is eligible to become a member of the Union. To do that, the Court had regard to Rule 4 of the Union's Constitution which is before me in evidence.

18.	Does the plaintiff satisfy the eligibility requirements stated in Rule 4?

19.	The plaintiff's affidavit sworn on 22nd June, 2010 at par.5 states that on or about June, 2009, he resigned from his employment with Consort. That, from that time, he ceased to be a financial member of the Union.

20.	The plaintiff has not filed any additional, recent affidavit deposing to the present occupation he holds which would assist me in determining whether that occupation falls within the categories set out in Rule 4 of the Union's Constitution.

21.	As far as I can tell and based on the evidence before me, the plaintiff is not a person falling within any of the categories in Rule 4.

22.	Which means that the Declarations that the plaintiff seeks in par.1 of the Originating Summons must be refused because he is not eligible to be declared a member.

23.	Although, the plaintiff relies on s.33 of the Industrial Organizations Act in his request to the Court to have him declared a member of the Union, I find that s.33 does not assist because it is a very general provision. It reads;

"33. Qualifications for membership generally

A person who is –

(a)	engaged or usually engaged in an industry or occupation within the country; or

(b)	qualified to be engaged in an industry or occupation within the country and wishes to be engaged in it,

and is – 

(c)	a resident of the country; and

(d)	not otherwise disqualified,

is qualified for admission as a member of an industrial organization representative of his interests in the industry or occupation."

24.	In my view, s.33 must be read together with Rule 4 of the Union's Constitution. And it must be that way because it does not make sense if the plaintiff is to rely on s.33, a very general provision, when Rule 4, the specific provision governing the eligibility requirements, exists.

Issue (i) - Whether the first defendant has powers to interfere with the election process of a registered Union?

25.	I find this issue is not relevant because having answered the question I posed above as to the plaintiff's eligibility to contest the Union's elections, it is not necessary for me to consider this issue. However, because it is an issue that will continue to surface whenever a Union conducts its elections, I will address it. Counsel for the Industrial Registrar referred me to the case PNG Power Limited v. PNG Energy Workers Association and all its members, Industrial Registrar and The Independent State of Papua New Guinea, OS 870 of 2005 dated 27th October, 2005. In that decision, the trial judge considered the Industrial Registrar's powers and role and the decisions she ought to make in relation to the holding of a secret ballot where there is a proposed strike. Section 61 of the Industrial Organizations Act required interpretation which the trial judge did. Sub-section 61(b) of the Industrial Organizations Act, more particularly the Registrar's power to supervise and what she can and cannot do, was dealt with by the trial judge. The trial judge said this at pg.13 of his reasons;

"Therefore, although I find that whether or not a secret ballot is conducted is not a matter for the decision of the Registrar, its timing, compliance with the requirements of the Electoral Commissioner and administrative matters such as the format and content of the ballot paper and any explanatory notes which are issued as part of or with the ballot are matter with which the Registrar should be concerned. They should be under the Registrar's supervision".
(my emphasis)

26.	In that case, the trial judge clarified and defined the Industrial Registrar's role in relation to the holding and supervision of secret ballots. There, the Court concluded that the Industrial Registrar had a large role to play as the supervisor working together with the Electoral Commissioner. I agree with His Honour in that respect.

27.	And what are the Industrial Registrar's prescribed powers and functions? Section 4 of the Industrial Organizations Act states that the Industrial Registrar's powers, functions, duties and responsibilities "…are as prescribed or as the Minister directs." Therefore, the Industrial Registrar's duties as prescribed under s.61 is to supervise a secret ballot.

28.	In my view, "supervision" by the Industrial Registrar in an election by a Union includes but is not limited, to the following;

(i)	Determining who is eligible to stand for election by considering whether the candidate has fulfilled all eligibility criteria, i.e payment of the necessary fees and completion of the necessary forms, etc.

(ii)	That the election is conducted in the manner as prescribed under the Union's Constitution and/or requirements by the Electoral Commissioner.

29.	No doubt, the Industrial Registrar has the final say as to who is eligible to stand for elections and is empowered by s.61 of the Industrial Organizations Act to supervise, intervene and generally, coordinate the election process of a registered union, as I said above, before, during and after elections.

Issue (ii) - Whether the Industrial Registrar's supervisory role under s.61(b) of the Industrial Organizations Act 1962 includes a right or duty on the Industrial Registrar to determine whether or not the plaintiff is eligible to contest the Union's Elections and/or to reject his nomination?

30.	I have already answered this issue, above. I have found that the Industrial Registrar does have a right and duty to determine the eligibility of a nominee for elections, whether it be presidential election or for a membership to a committee.

31.	I also refer to ss.32 and 33 of the Interpretation Act 1975. These provisions read;

"32. CONTINUING EFFECT OF POWERS AND DUTIES

Where a statutory provision confers a power or imposes a duty, the power may be exercised, or the duty shall be performed, as the case may be, from time to time as occasion requires.

33.	POWERS AND DUTIES CONFERRED ON OFFICE-HOLDERS

(1)	Where a statutory provision confers a power or function on the holder of an office as such, the power may be exercised, or the function shall be performed, as the case may be, by the holder (whether substantive or other) for the time being of the office.

(2)	The exercise or performance of a power or function referred to in Subsection (1) does not case to be effective by reason only of the fact that the holder of the office is later suspended from, or ceases to hold the office."

34.	The Interpretation Act makes it clear that where a statute provides for the exercise of a power or function by the office-holder, that power may be exercised or the functions shall be performed by the holder of that office.

35.	I interpret that to mean that the Industrial Registrar has the power to determine the eligibility of the person intending to contest a union's election, not necessarily this union only.

36.	The plaintiff also seeks Declaration that his membership acceptance by the Union is valid. That cannot be so because the plaintiff has not satisfied the requirements under Rule 4 of the Union's Constitution. He is not eligible to be a member. The Executive Union wrongly endorsed and accepted his membership acceptance.

37.	As to the orders sought that he be eligible to contest the Union's elections, I must emphasise that this Court is bound by the Union's Constitution, more particularly the eligibility requirements set out in Rule 4. This Court will not declare an illegal act to be a legal act. I will dismiss this relief.

Conclusion

38.	I find that the Industrial Registrar's actions to properly screen the nominations that came through or appointment to position of the Union's President, was properly done. The Industrial Registrar must be seen to be conducting her duties. She is the only office-holder in this country with the power to supervise secret ballots and this supervision will include all processes from the commencement of the election to the end of the election. Supervision by the Industrial Registrar referred to in s.61 is very wide and can cover all manner of actions by the Industrial Registrar, as long as the actions are within the Union's Constitution and the Industrial Organizations Act 1962.

39.	It is for that reason that I will dismiss the plaintiff's claim in its entirety. I will also order that the plaintiff pay the first and second defendants' costs of these proceedings, to be taxed if not agreed.

Formal Orders

40.	These are the formal orders of the Court;

(1)	The plaintiff's claim is dismissed in its entirety;

(2)	The plaintiff shall pay the first and second defendants' costs of these proceedings, to be taxed if not agreed.

Waisi & Co Lawyers: Lawyer for the Plaintiff
Solicitor-General's Office: Lawyer for the First and Second Defendants