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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO 520 OF 2014
PNG PORTS CORPORATION LIMITED
Plaintiff
V
PAPUA NEW GUINEA MARITIME AND TRANSPORT WORKERS INDUSTRIAL UNION
Defendant
Waigani: Cannings J
2015: 18 November, 14 December,
2017: 29 May
LAW OF EMPLOYMENT – Industrial Relations – whether members of a union have a right to strike – whether industrial
action by stop work or strikes or other means is illegal
REMEDIES – Injunctions and Declarations – whether declaration should be made as to illegality of apprehended industrial
action – circumstances in which it is appropriate to grant permanent injunction to restrain illegal activities.
The plaintiff commenced legal proceedings against the defendant (a union) regarding an impending strike by members of the union. A trial was conducted on an amended originating summons by which the plaintiff sought two declarations and two injunctions: (1) a declaration that any industrial action by the defendant or its members, by stop work or other means, which interfered with the plaintiff’s trade or business, is illegal; (2) a declaration that any strike by the defendant or its members, by stop work or other means, which interfered with the plaintiff’s trade or business, is illegal; (3) a permanent injunction to restrain the defendant from inciting the plaintiff’s employees who are members of the union to engage in industrial action; and (4) a permanent injunction to restrain the plaintiff’s employees from engaging in industrial action. A claim by the plaintiff for damages was not pursued. The defendant opposed all relief sought by the plaintiff, arguing that industrial action including strikes, it has taken, and might take in future, is lawful.
Held:
(1) There is no law in Papua New Guinea that makes industrial action by employees including a strike intrinsically illegal. Though an employee has no express right to strike or engage in industrial action, the plaintiff failed to establish that the strike organised by the defendant was illegal or that any future strike action would be illegal.
(2) Employees in Papua New Guinea have an implied right, subject to any express prohibition imposed by law, to engage in non-violent industrial action taken in the context of a genuine industrial dispute (PNG Forest Products Ltd v PNG Forest Products & Workers Union (2015) SC1441). Such a right is properly regarded as part of the fundamental right of all employees to withdraw their labour, recognised by international labour laws and treaties to which PNG is a party, and as an enforcement of the Basic Right of every person to freedom based on law conferred by Section 36(2) of the Constitution and the right to belong to industrial organisations under Section 47 (freedom of assembly and association) of the Constitution.
(3) The declarations sought by the plaintiff had no lawful basis and were refused. For a similar reason, the injunctions sought by the plaintiff were refused. All relief sought by the plaintiff was thus refused.
Cases cited
The following cases are cited in the judgment:
Andrew Kinaram v Vanimo Forest Products Ltd (2011) N4413
Louis Medaing v Ramu Nico Management Ltd (2011) N4340
Pastor Johnson Pyawa v Cr Andake Nunwa (2010) N4143
PNG Forest Products Ltd v PNG Forest Products & Workers Union (2015) SC1441
PNG Maritime College Board v Justin Tonno (2013) N5447
Public Employees Association v Public Services Commission [1988-89] PNGLR 585
Vitus Sukuramu v New Britain Palm Oil Limited (2007) N3124
ORIGINATING SUMMONS
This was a trial in which the plaintiff sought declarations and injunctions regarding industrial action by the defendant union and its members.
Counsel:
D Wood, for the Plaintiff
K Iduhu & H Masiria, for the Defendant
29th May, 2017
1. CANNINGS J: The plaintiff, PNG Ports Corporation Ltd, is a government-controlled corporation responsible for operating Papua New Guinea’s maritime ports. It applies by amended originating summons for declarations and injunctions against the defendant, the PNG Maritime and Transport Workers Industrial Union, to curtail allegedly illegal industrial action, including strikes, by the union and it members.
2. The plaintiff commenced these proceedings in July 2014 when the defendant was preparing to conduct a secret ballot amongst its members to see whether a strike should take place. In 2015 a strike took place, which had the effect of closing down the plaintiff’s operations at the ports of Lae, Port Moresby and Rabaul for two days, on 30 June and 1 July 2015. After being granted an interim injunction that restrained further strike action, the trial of the amended originating summons was conducted.
RELIEF SOUGHT
3. The relief sought by the plaintiff can be summarised as follows:
(1) a declaration that any industrial action by the defendant or its members, by stop work or other means, which interferes with the plaintiff’s trade or business, is illegal;
(2) a declaration that any strike action by the defendant or its members, by stop work or other means, which interferes with the plaintiff’s trade or business, is illegal;
(3) a permanent injunction to restrain the defendant from inciting the plaintiff’s employees who are members of the union to engage in industrial action; and
(4) a permanent injunction to restrain the plaintiff’s employees from engaging in industrial action.
4. The summary is based on paragraphs 1 to 4 of the amended originating summons, which state that the plaintiff claims:
Paragraph 5 of the amended originating summons made a claim for “damages” without elaboration, which was not pursued at the trial.
5. The defendant opposes all relief sought by the plaintiff, arguing that industrial action including strikes, it has taken, and might take in future, is lawful.
APPLICATION FOR DECLARATIONS
6. The plaintiff argues that the industrial action taken by the defendant is illegal and that any future industrial action will be illegal. In support of that argument, Mr Wood, for the plaintiff, advanced the following propositions:
(1) There is no general right to strike in Papua New Guinea.
(2) There is no constitutional right to engage in unauthorised industrial action.
(3) There is no award or other industrial agreement between the plaintiff and the defendant that makes provision for strikes.
(4) All of the plaintiff’s employees are employed under written contracts of employment, which do not provide for strikes or other industrial action by employees.
(5) The actions of the defendant in arranging secret ballots amongst its members to elicit support for industrial action are contrary to prescribed procedures for determination of industrial disputes prescribed by the Industrial Relations Act (Chapter No 174).
(6) Industrial action interferes with the ability of the plaintiff to discharge its statutory powers under the Harbours Act (Chapter No 240) to operate the country’s ports.
(7) The defendant’s actions in inciting, encouraging and organising strike action at various ports are in contravention of the Protection of Transport Infrastructure Act 2010.
7. Each of those propositions will now be tested.
(1) No general right to strike
8. In support of that proposition the plaintiff relies on the following dicta of Batari J in Andrew Kinaram v Vanimo Forest Products Ltd (2011) N4413, regarding a clause in the plaintiff’s contract of employment that prohibited strike action:
The requirement for prior approval is consistent with legislative restrictions on these constitutional rights and reinforces the maxim that there is no constitutional right to engage in unauthorised strike action (PEA v Public Services Commission [1988-89] PNGLR 585). At common law, an employee who elects to take industrial action as in a strike action is deemed to have breached his contract of employment (Springhead Spinning Co v Riley [1986] LR 655, Simmons v Hoover Limited [1977] ALL ER 775).
Batari J was, of course, correct, to the extent that his Honour was pointing out that there is no express right to strike recognised by any law in Papua New Guinea. But nor is there in any law any express or general prohibition of strikes. The plaintiff’s first proposition therefore does not advance its argument that strike action by the defendant or its members is intrinsically illegal.
(2) No constitutional right to engage in industrial action
9. This proposition is similar to the first, and is also based on what Batari J said in Kinaram, which in turn was based on dicta of Kapi DCJ in Public Employees Association v Public Services Commission [1988-89] PNGLR 585. In the latter case, in dealing with the suggestion that members of the plaintiff had a constitutional right to strike, his Honour stated:
A strike by the Public Employees Association may be decided by the national executive ... under s 50 of the constitution of the Association. That is an activity in which the organisation may or not be involved, depending on the decision of those who have the power to decide. There is nothing in the [National] 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. [Emphasis added.]
Kapi DCJ was, with respect, correctly pointing out that there is no express right or freedom to strike contained in the Constitution. But nor is there any constitutional prohibition of strike action. The plaintiff’s second proposition does not advance its argument that strike action by the defendant or its members is intrinsically illegal.
(3) No award or agreement providing for strikes
10. This is an agreed fact. The defendant served the plaintiff with a log of claims in October 2010 and later reported the issue to the Department of Labour and Industrial Relations. In May 2011 the Secretary for Labour directed the parties to attend a compulsory conference. The log of claims remains unresolved.
Thus, there is no award or agreement between the plaintiff and the defendant that makes provision for union members taking authorised strike action. But nor is there any award or agreement that prohibits strikes. The plaintiff’s third proposition does not advance its argument that strike action by the defendant or its members is intrinsically illegal.
(4) All plaintiff’s employees employed under written contracts of employment
11. This is another uncontentious fact. All the plaintiff’s employees are employed under written contracts of employment, which do not provide for strikes or other industrial action. But nor do the contracts prohibit strikes. The plaintiff’s fourth proposition does not advance its argument that strike action by the defendant or its members is intrinsically illegal.
(5) Secret ballots contrary to Industrial Relations Act
12. It is an agreed fact that prior to the strike of 30 June and 1 July 2015, the defendant arranged for its members to take part in a secret ballot to vote on whether strike action should be taken regarding their log of claims. Mr Wood makes the following submission regarding that fact:
The union’s actions in arranging the secret ballot are also contrary to the procedures that are prescribed in the [Industrial Relations] Act, which relate to:
(a) the referral of an industrial dispute to the Department;
(b) the negotiation settlement process;
(c) compulsory conference process;
(d) a procedure, if necessary, for the Head of State (acting on advice) to refer the industrial dispute to an Industrial Arbitration Tribunal for decision and making of an award.
13. In support of the proposition that the defendant’s secret ballot contravened the Industrial Relations Act, Mr Wood cited Part III of the Act (settlement of industrial disputes), containing:
14. Mr Wood did not cite any specific provision that was contravened by the defendant. For good reason, it seems, as there is none. The Act does not say employees or a union who are party to an industrial dispute that is subject to a compulsory conference cannot go on strike. It does not prohibit a union conducting a secret ballot amongst its members to decide whether to go on strike. It might well be thought unwise or imprudent or impertinent for employees to go on strike while their dispute is the subject of a compulsory conference or before an Arbitration Tribunal. But strike action – let alone conducting a secret ballot – is not expressly prohibited by Part III of the Act or by any provision of the Act.
15. In fact, the provisions of Section 25 support the defendant’s argument that employees have a right to strike. Section 25 states:
(1) A person who is concerned or interested, or is likely to be concerned or interested, in an industrial dispute may report the dispute to the Departmental Head.
(2) An employer or an industrial organization who is a party to or is involved in an industrial dispute that gives rise, or seems likely to give rise, to a strike or lock-out, must immediately notify the Departmental Head or an officer of the Department.
Penalty: A fine not exceeding K100.00.
(3) If he has not already acted under this Part, the Departmental Head—
(a) shall inquire into an industrial dispute reported under Subsection (1) or (2); and
(b) may, by written notice or by telegram, require the parties to the dispute to enter into negotiations for the settlement of the dispute within 14 days after the date of the notice.
16. Section 25(2) contemplates that strikes, and lockouts too, are an ordinary incident of industrial disputes and that the likelihood of such actions arising must be reported. Nowhere is it indicated, however, that strikes (or lockouts) necessarily contravene the Industrial Relations Act or are otherwise intrinsically illegal.
The plaintiff’s fifth proposition does not advance its argument that strike action by the defendant or its members is intrinsically illegal.
(6) Industrial action interferes with statutory powers under Harbours Act
17. Mr Wood cited at length from the Harbours Act to emphasise the importance of maintaining the operations of the plaintiff, and the plaintiff’s concern that any industrial action by the defendant, especially strike action its members, has an immediate and negative effect on the plaintiff’s ability to provide, efficiently and safely, essential port services throughout the country.
No one can sensibly contest that proposition. No one disputes that the efficient and safe operations of the plaintiff are of critical importance to the national economy. But this does not advance the argument that strike action by the defendant or its members is intrinsically illegal.
(7) Defendant’s actions contravene Protection of Transport Infrastructure Act
18. The plaintiff argues that the defendant’s actions in inciting, encouraging and organising the strike action at various ports contravened the Protection of Transport Infrastructure Act, the purpose of which is, according to its long title, “to provide for the protection of transport infrastructure and the land, water and air on or in which transport infrastructure is located”. Specifically it is argued that the defendant’s actions are in contravention of Sections 8 and 10.
19. Section 8 (obstruction of transport infrastructure) states:
(1) Any person who intentionally or recklessly and without lawful authority—
(a) obstructs, hinders or otherwise prevents the lawful entry or departure of any person, vehicle, vessel or aircraft to or from any transport infrastructure; or
(b) obstructs, hinders or otherwise prevents any person, vehicle, vessel or aircraft from lawfully using any transport infrastructure,
is guilty of an offence.
Penalty: A fine not exceeding K50,000.00 or imprisonment for a term not exceeding 1 year or both.
(2) It is not a defence to an offence under Subsection (1) that the act of obstruction, hindering or prevention was done under a claim of right.
(3) A person who commits an offence under Subsection (1) may be forcibly prevented from continuing to obstruct or hinder by a member of the Police Force using such reasonable force as is required in the circumstances.
20. Section 10 (demands for compensation or other payment) states:
(1) A person who, intentionally and without lawful authority, and with intent to extort or gain any thing, payment or compensation from any person in authority, or any person who has apparent authority, of any transport infrastructure or any person lawfully using any transport infrastructure —
(a) demands the thing, payment or compensation; or
(b) in order to obtain compliance with the demand —
(i) causes or threatens to cause injury to any person or damage any property; or
(ii) commits or threatens to commit any act which is an offence under this Act; or
(iii) does or threatens to do any act which renders, or is likely to render, any transport infrastructure unusable or impassable or less safe for the use of any person; or
(iv) otherwise threatens or intimidates any person,
is guilty of an offence.
Penalty: A fine not exceeding K500,000.00 or imprisonment for a term not exceeding 5 years or both.
(2) It is not a defence to an offence under Subsection (1) that the person committing the offence acted under a claim of right.
21. Sections 8(1) and 10(1) create criminal offences, each of which contains a number of alternative elements. For example, to prove that an accused person – say the defendant or one of its members – had committed an offence under Section 8(1) by inciting, encouraging, organising strike action going on strike, it would have to be proven beyond reasonable doubt that the accused had, for example:
22. I suggest that the prospect of a successful prosecution under Section 8(1) is slight. More so in the case of Section 10(1), where it must be proven beyond reasonable doubt that the accused had, for example:
The prospect of a member of the defendant being successfully prosecuted under Section 10(1) for inciting, encouraging or organising strike action or going on strike, is remote.
23. The plaintiff’s proposition that the defendant’s actions in inciting, encouraging and organising the strike action at various ports contravened the Protection of Transport Infrastructure Act 2010, is without merit. It does not advance the argument that strike action by the defendant or its members is intrinsically illegal.
Conclusion re application for declarations
24. None of the plaintiff’s propositions support the argument that the industrial action taken by the defendant, which led to these proceedings, is illegal or that any future industrial action will be illegal. There is no legal basis for the declarations sought by the plaintiff, and I refuse to make either of the declarations sought.
APPLICATION FOR INJUNCTIONS
25. It follows naturally from refusal of the application for the declarations sought by the plaintiff, that the application for injunctions to restrain the defendant from inciting the plaintiff’s employees who are members of the union to engage in industrial action and to restrain the plaintiff’s employees from engaging in industrial action, will also be refused.
26. The plaintiff has sought quia timet injunctions, the purpose of which is to restrain apprehended harm (Louis Medaing v Ramu Nico Management Ltd (2011) N4340). There are two factors to take into account when deciding whether to grant such an injunction: the probability of harm and the nature and extent of the harm (Pastor Johnson Pyawa v Cr Andake Nunwa (2010) N4143, PNG Maritime College Board v Justin Tonno (2013) N5447).
27. The notion of ‘harm’ refers to illegal harm: conduct of the defendant that would be contrary to law. The plaintiff has failed to establish that the actions of the defendant it seeks to restrain (inciting the plaintiff’s employees to engage in industrial action) would be contrary to law or amount to illegal harm, let alone that the probability of harm and its nature and extent warranted the granting of injunctions.
THE RIGHT TO STRIKE IN PAPUA NEW GUINEA
28. Before pronouncing the orders, I wish to make some general comments on the important question that has arisen in these proceedings: whether employees have a right to strike in Papua New Guinea. I am persuaded by the careful and coherent submissions of Ms Masiria for the defendant that the answer is yes, subject to a number of qualifications, of course.
I consider that the following propositions fairly state the law of Papua New Guinea regarding industrial action, including strikes and stop work actions, by employees.
First, there is no law in Papua New Guinea that makes industrial action by all employees, including strike action, intrinsically illegal.
29. There might in a particular case or category of employees be a specific law that declares a strike illegal or expressly prohibits strikes, such as a statutory provision (eg the Public Services (Management) Act 2014, Section 55 (strikes) or a provision in a contract of employment (regarded as a statement of the private law regulating the terms of an employer-employee relationship). However, there is no general law making industrial action illegal.
Secondly, employees have a qualified right to engage in non-violent industrial action.
30. The effect of the decision of the Supreme Court (Sawong J, Murray J, Higgins J) in PNG Forest Products Ltd v PNG Forest Products & Workers Union (2015) SC1441 is that employees in Papua New Guinea have an implied right, subject to any express prohibition imposed by law, to engage in non-violent industrial action taken in the context of a genuine industrial dispute.
Thirdly, employees have a right to withdraw their labour.
31. Employees have a fundamental right to withdraw their labour, recognised by international labour laws and treaties to which PNG is a party (eg Internal Labour Organisation conventions referred to in Vitus Sukuramu v New Britain Palm Oil Limited (2007) N3124). The Supreme Court stated, at para 8 of SC1441:
At common law, a strike can be an actionable conspiracy. That denies the existence of a right vested in workers to take concerted industrial action. It is generally regarded in both international labour relations and domestic industrial relations as a fundamental right of employees to withdraw their labour. The old common law rule has, by and large, been abrogated by statute.
Fourthly, registered industrial organisations and their officers and members enjoy immunity from civil suit.
32. They enjoy such an immunity when they are involved in an “industrial dispute”, as defined by Section 1 (interpretation) of the Industrial Organisations Act. The immunity, recognised by the Supreme Court in SC1441, arises under Section 29 (immunity from civil suit) of that Act, which states:
No civil legal proceedings are maintainable against a registered industrial organization or an officer or member of a registered industrial organization in respect of an act done in contemplation or in furtherance of an industrial dispute to which a member of a registered industrial organization is a party on the ground only that the act—
(a) induces some other person to break a contract of employment; or
(b) interferes with—
(i) the trade, business or employment of some other person; or
(ii) the right of some other person to dispose of his capital or of his labour as he wishes.
Finally, an implied constitutional right to strike exists in Papua New Guinea.
33. In constitutional and human rights terms, a worker’s right to strike, and to withdraw his or her labour, can be properly regarded as a manifestation and enforcement of the Basic Rights of every person in Papua New Guinea to:
These constitutional and human rights issues were not ventilated at the trial, but now that the specific issues that did arise have been determined, it is useful to put this case in a broader jurisprudential framework.
34. Section 32 (right to freedom) states:
(1) Freedom based on law consists in the least amount of restriction on the activities of individuals that is consistent with the maintenance and development of Papua New Guinea and of society in accordance with this Constitution and, in particular, with the National Goals and Directive Principles and the Basic Social Obligations.
(2) Every person has the right to freedom based on law, and accordingly has a legal right to do anything that—
(a) does not injure or interfere with the rights and freedoms of others; and
(b) is not prohibited by law,
and no person—
(c) is obliged to do anything that is not required by law; and
(d) may be prevented from doing anything that complies with the provisions of paragraphs (a) and (b).
(3) This section is not intended to reflect on the extra-legal existence, nature or effect of social, civic, family or religious obligations, or other obligations of an extra-legal nature, or to prevent such obligations being given effect to by law.
Section 32(2) is the key provision: every person has the legal right to do anything that does not injure or interfere with the rights and freedoms of others and is not prohibited by law.
35. Section 43 (freedom from forced labour) states:
(1) No person shall be required to perform forced labour.
(2) In Subsection (1), "forced labour" does not include—
(a) labour required by the sentence or order of a court; or
(b) labour required of a person while in lawful custody, being labour that, although not required by the sentence or order of a court, is necessary for the hygiene of, or for the maintenance of, the place in which he is in custody; or
(c) in the case of a person in custody for the purpose of his care, treatment, rehabilitation or welfare, labour reasonably required for that purpose; or
(d) labour required of a member of a disciplined force in pursuance of his duties as such a member; or
(e) subject to the approval of any local government body for the area in which he is required to work, labour reasonably required as part of reasonable and normal communal or other civic duties; or
(f) labour of a reasonable amount and kind (including in the case of compulsory military service, labour required as an alternative to such service in the case of a person who has conscientious objections to military service) that is required in the national interest by an Organic Law that complies with Section 38 (general qualifications on qualified rights).
Section 42(1) is the key provision: no person shall be required to perform forced labour, which is what might happen if a person is forced against his or her will to work, contrary to the expressed desire to withdraw his or her labour by going on strike.
36. Section 47 (freedom of assembly and association) states:
Every person has the right peacefully to assemble and associate and to form or belong to, or not to belong to, political parties, industrial organizations or other associations, except to the extent that the exercise of that right is regulated or restricted by a law—
(a) that makes reasonable provision in respect of the registration of all or any associations; or
(b) that imposes reasonable restrictions on public office-holders; or
(c) that imposes restrictions on non-citizens; or
(d) that complies with Section 38 (general qualifications on qualified rights).
Every person has the right to belong to industrial organisations including unions.
37. Section 48 (freedom of employment):
(1) Every person has the right to freedom of choice of employment in any calling for which he has the qualifications (if any) lawfully required, except to the extent that that freedom is regulated or restricted voluntarily or by a law that complies with Section 38 (general qualifications on qualified rights), or a law that imposes restrictions on non-citizens.
(2) Subsection (1) does not prohibit reasonable action or provision for the encouragement of persons to join industrial organizations or for requiring membership of an industrial organization for any purpose.
Section 48(1) is the key provision: every person has the right to freedom of choice of employment, and this would seem to include the right, allied with the freedom from forced labour under Section 43, to choose whether to be engaged in employment and whether to work or withdraw one’s labour.
COSTS
38. The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-party basis. I see no reason not to apply the general rule.
ORDER
(1) All relief sought in the amended originating summons is refused and the proceedings are dismissed.
(2) All interim injunctions and orders granted in the course of the proceedings are dissolved.
(3) Subject to any specific costs order made in the course of the proceedings, the plaintiff shall pay the defendant’s costs of the proceedings on a party-party basis, which shall, if not agreed, be taxed.
(4) Time for entry of the judgment is abridged to the date of settlement by the Registrar, which shall take place forthwith, and the file is closed.
Judgment accordingly,
______________________________________________
Ashurst Lawyers: Lawyers for the Plaintiff
Fairfax Legal: Lawyers for the Defendant
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