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Smith; ex parte Government of Papua New Guinea, Regina v [1974] PNGLR 293 (12 December 1974)

Papua New Guinea Law Reports - 1974

[1974] PNGLR 293 - Regina v Smith; ex parte Government of Papua New Guinea

[1974] PNGLR 293

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

SMITH, EX PARTE THE GOVERNMENT OF PAPUA NEW GUINEA

Port Moresby

Frost ACJ Prentice Raine JJ

30-31 October 1974

12 December 1974

INDUSTRIAL LAW - Arbitration Tribunal - Jurisdiction - “Industrial matter” - “Industrial dispute” - Whether claims for compensation as a result of failure to renew contract of employment industrial dispute - Industrial Relations Act 1962, s. 2[cccxcii]¹, s. 4[cccxciii]².

PREROGATIVE WRITS - Certiorari - Arbitration Tribunal - Want of jurisdiction - Award made without existence of industrial dispute - Submission to Tribunal not precluding relief.

The respondent Smith was formerly a technical teacher employed in the Department of Education under a contract which terminated on 6th July, 1973. In 1972 he applied for and was granted long leave extending from 11th December, 1972 to 6th October, 1973, and on 10th November, 1972 applied for a six months’ extension of contract. On 8th December, 1972 the Department invited him to apply for a two year extension which he duly did. On 12th December, 1972, a decision was made not to grant any extension but this was not communicated till 28th January, 1973, by which time the respondent had entered into arrangements for a tour of Europe, the purchase of an expensive car in Europe, and the boarding of his children at schools in Australia. After returning from his holiday in July, 1973, the respondent purported to take action under the Industrial Relations Act 1962 and gave notice to the Secretary of the Department of Labour of an industrial dispute between the Department of Education as employer and himself as employee and seeking damages by way of compensation for inter alia “costs extra in importing car to Australia instead of Papua New Guinea” and personal inconvenience, mental anxiety etc. An Arbitration Tribunal constituted under the Industrial Arbitration Act 1962 then made an award entitling him to resume duty, which the Government of Papua New Guinea challenged by way of certiorari.

Held

(1)      It is only when an industrial dispute as to an industrial matter exists that any of the procedure provided for in s. 23 of the Industrial Relations Act 1962 applies:

Ela Motors v. McCrudden; Ex parte Hoepper, [1973] P.N.G.L.R. 436 followed.

(2)      (Frost A.C.J. dissenting) The nature of the claim raised by the respondent directed as it was towards establishing a right to damages for compensation by virtue of alleged representations or conduct of departmental officers leading him to alter his financial position was not an “industrial matter” as defined in s. 4 of the Industrial Relations Act 1962.

(3)      (Frost A.C.J. dissenting) In the circumstances there was no “industrial dispute” as defined in s. 2 of the Industrial Relations Act 1962 such as would give jurisdiction to the Arbitration Tribunal.

(4)      (Frost A.C.J. not deciding) The Government of Papua New Guinea in submitting as it did to the jurisdiction of the Arbitration Tribunal had not disqualified itself from the relief sought by way of certiorari.

(5)      (Frost A.C.J. dissenting) The Arbitration Tribunal having acted without jurisdiction the order nisi for certiorari should be made absolute and the award quashed.

Certiorari

This was the return of an order nisi for certiorari to remove into the Supreme Court and to quash an award made by an Arbitration Tribunal constituted under the Industrial Relations Act 1962; entitling the respondent, Francis John Smith to resume duty with the Department of Education. The relevant facts on which the claim was made are set out in the judgments of Frost A.C.J. and Prentice J.

Counsel

P. A. Benson, for the applicant (The Government of Papua New Guinea).

R. K. Woods, for the respondent, Arbitration Tribunal.

J. A. Griffin, for the respondent, Smith.

Cur. adv. vult.

12 December 1974

FROST ACJ: The Government of Papua New Guinea as applicant seeks a writ of certiorari to remove into this court and to quash an award made by an Arbitration Tribunal on 24th July, 1974 at Port Moresby and entitling the respondent, Francis John Smith, to resume duty in his former position as a Plumbing Instructor at the Port Moresby Technical College.

The case put by Mr. Smith in his letter of claim to which I shall refer was that the Department of Education had in 1973 unfairly and unjustly refused to renew his contract as an overseas officer. It will be convenient at the outset to state the relevant facts, and then turn to the legislation under which the claim was made.

In 1972 Mr. Smith had been employed as a Plumbing Instructor for some seven years by the Department of Education at the Port Moresby Technical College. His position was then that of an overseas contract officer under a contract for a period of two years with effect from 5th July, 1971. About the middle of 1972 he applied for and was granted long leave expiring on 6th October, 1973, some part of the period being on half pay. It will be noted that the period of leave extended beyond the expiry date of the contract. A further indication that it was envisaged by the Department that Mr. Smith would be resuming under a renewal of his contract is that arrangements were made for return leave fares, and for deductions from his salary entitlement of the usual deductions for income tax and rent. Towards the end of the year there were negotiations with Department officers for a renewal for a period of six months only. Finally on 27th November, 1972 the Staff Section issued to Mr. Smith a pro forma letter signed by the Director of Education in which it was stated, “The Department is prepared to offer you a contract extension of two years. If you agree to such an extension of your contract for this period, I will support your request.” Mr. Smith then signed the letter indicating that he accepted the offer, handed it to an officer of the Department, and was told that the signing of a formal contract was routine, and that this could be done on resumption of duty after leave. Having no reason to doubt that he would be granted an extension of his contract, Mr. Smith then made arrangements for the purchase in Europe, which he intended to tour during his leave, of an expensive motor car, the import duty on which was less if brought to Papua New Guinea than Australia, and made arrangements for his children to be placed in boarding schools in Australia. However, the decision eventually made by the Department was not to renew the contract. On 19th December a letter addressed to Mr. Smith was prepared by Mr. Fleming who was the Assistant Director-Technical of the Department advising him that, “Following a review of overseas positions in Technical Division and our staffing needs in 1973-1974, it has been decided that a request for renewal of contract cannot be granted.” For some unexplained reason the delivery of the letter was delayed and it was not handed to Mr. Smith until 28th January, 1973, which was the day before his departure for Europe, and too late for him to change his arrangements. Because of his natural anxiety at this unexpected turn of events Mr. Smith returned from Europe in July, 1973, earlier than arranged, and endeavoured to obtain a review of the Department’s decision. This was to no avail, for the Department steadfastly refused to authorize the formal renewal of the contract largely on grounds which had not formerly been raised. It is significant that in the meantime the Department had included a Plumbing Instructor in its recruitment programme. The opinion of the Chairman of the Public Service Board on the whole matter was expressed in the plainest terms and entirely on the side of Mr. Smith, to the effect that the Board did not consider the reasons given by the Department as sufficient to justify its decision, that the action taken to terminate Mr. Smith’s employment was poorly handled, and in any case did not appear to have been justified. The Board refused to take action to recruit a replacement for Mr. Smith, but it must be accepted that there was a shortage of plumbing instructors. Certainly no local officer was qualified or available for appointment.

Mr. Smith then decided to take action under the Industrial Relations Act 1962. By letter dated 21st November, 1973, and apparently pursuant to s. 19 (1) of the Act he gave notice to the Secretary of the Department of Labour of an industrial dispute between the Department of Education as employer and himself as employee. In the “Statement of Claim” attached to the letter there is included an item for seven weeks loss of salary, but the most substantial items are $6,000.00 for “costs extra in importing the car to Australia instead of Papua New Guinea”, and $5,000.00 for “personal inconvenience, mental anxiety, effect of notice to holiday, alteration of position etc.” From this it was contended on behalf of the applicant that the claim was a common law one for damages for misrepresentation. There were also two rather contradictory statements concerning the nature of his claim made by Mr. Smith when he appeared in person to put his case before the Arbitration Tribunal but I do not consider that his statement that he was fully aware “that an employer does not have to employ someone if he does not want to” (which was only his layman’s view of the law), should be held to affect the substance of his claim set out in the letter. That letter states in terms that the dispute arises from the refusal of the Department of Education to renew the contract, or, in effect, to employ the respondent, and, in my opinion, upon the whole of the letter that is the substance of the dispute reported to the Secretary.

Pursuant to s. 19 (2) the Secretary by notice in writing, unfortunately delayed until 6th June, 1974, required the parties to the dispute, viz. the Government of Papua New Guinea and Mr. Smith, to enter into negotiations for the settlement of the dispute. Negotiations having failed, under s. 13 of the Act an Arbitration Tribunal was on 3rd July, 1974 constituted and established in the terms of the Act “to deal with an industrial dispute” between the parties. It is the award of this Tribunal which the applicant challenges, as being wrong in law or in excess of jurisdiction, upon the grounds stated in the order nisi for certiorari as follows:

“1.      The mater complained of in whole or in part was not an industrial matter within the meaning of the Industrial Relations Act.

2.       The Tribunal continued to proceed after finding that the contract of employment had ceased to exist.

3.       The Award does not relate in whole or in part to industrial matters under s. 26b of the Industrial Relations Act.

4.       The Award was contrary to the Public Service Act.”

During the hearing application was made on behalf of the applicant for leave to add an additional ground, to the effect that there was no industrial dispute as defined by the legislation, and in particular under par. (g) of the statutory definition of that term and there being no objection leave was given. However, later in the hearing counsel for Mr. Smith drew the court’s attention to O. 81, r. 8 which remains for Papua New Guinea in its original Queensland form, under which the objections to be relied on are required to be stated in the order nisi for certiorari. The amendment was thus apparently made per incuriam. But the general ground alleging excess of jurisdiction may be taken as wide enough, in my opinion, to cover the applicant’s proposed amendment.

The definition of an industrial dispute is to be found in s. 4 (1) of the Industrial Organizations Act 1962, with which the Industrial Relations Act is incorporated and read as one. (Industrial Relations Act, s. 2). The relevant portion of the definition, as I understand the case, is as follows:

“ ‘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 that contract within three months after the termination of the contract.”

Under s. 4 (1) also “employer” is defined to mean “a person who has entered into or works under a contract of service or apprenticeship, whether:

(a)      by way of manual labour, clerical work or otherwise,

(b)      the contract is expressed or implied, oral or in writing;

...

and includes a person whose usual occupation is that of such an employee.”

The section includes a definition of “employer” as meaning “a person, firm or association employing one or more employees ..., and includes:

(a)      The Government of Papua New Guinea ...”

Finally, “industrial matters” is defined in s. 4 and I shall set out the relevant portion. The expression means “all matters pertaining to the relations of employers and employees and, without limiting the generality of the foregoing, includes ... (k) the right to dismiss or to refuse to employ, or the duty to reinstate in employment, a particular person or class of persons; ... and includes all questions of what is right and fair in relation to an industrial matter having regard to the interests of the persons immediately concerned and of Papua New Guinea as a whole”.

The applicant’s first submission was that there could be no industrial dispute within the stated meaning unless there was at the date the dispute was reported to the Secretary, an existing contract of employment. Reliance was placed upon sub-par. (g) which was framed as an express exception to the general rule, but I do not consider that any assistance can be gained from that sub-paragraph as to the meaning of the general words preceding it. Further the refusal to renew the contract, as Mr. Smith described the dispute, was not a dispute arising from the contract within the meaning of sub-par. (g) because it is not suggested that that contract contained any provision for renewal, and it is plain that the substance of Mr. Smith’s complaint is the refusal to grant another contract.

However, upon the provisions of the Commonwealth Conciliation and Arbitration Act (1904-1952), it has been held that the definition of employer and employee, which are substantially to the same effect as the Papua New Guinea Act, do not necessarily require the existence of an employment contract. The Queen v. Findlay; Ex parte the Commonwealth Steamship Owners’ Association[cccxciv]³. In that case Dixon C.J. stated that “on the very definition of ‘employer’ and ‘employee’ the relations between those who are usually employers and employees in the industry are included”. It is true that it is only the definition of “employee” in Papua New Guinea which includes those words, but it was that definition which was one of the matters upon which Rich J. relied in a passage cited by the Chief Justice to support the proposition that “the words ‘employers’ and ‘employees’ are used in the Act not with reference to any given contract between specific individuals, but as indicating two distinct classes of persons to operating in industry, and proceeding harmoniously in times of peace, and contending with each other in time of dispute”. The conclusion is also supported by reference to the general words pertaining to the relations of employer and employee to be found in the definition of “industrial matters”, with which an industrial dispute must, by its definition, be connected. Certainly in the case of a dispute of the nature defined in sub-par. (k) involving a dismissed employee or one refused employment, there can be no existing contract of employment. There is much force in Mr. Griffin’s other submissions that if the limitation contended for by the applicant was to be implied the provisions of the Act would be defeated by an employer dismissing an employee before the latter could give the statutory notice, that disputes commonly occur in practice over long service leave after the termination of the employment, and there is significance in the use of the word “employee” when referring to the power of reinstatement of a dismissed person under s. 54 (4) of the Industrial Relations Act. Accordingly, in my opinion, the first submission fails.

It is convenient here to deal with the applicant’s submission that the matter complained of in whole or in part was not an industrial matter within the meaning of the Industrial Relations Act. The question is whether the refusal to renew a contract of employment is a refusal to employ under sub-par. (k). I must say that at the hearing it seemed to me that the legislation could not have been intended to have such an operation, but further consideration has led me to the contrary conclusion. Before the Tribunal, the applicant’s case was that Mr. Smith was limited to his legal rights. As it was put, “the Government is not legally bound to renew any contract, and it is not bound to give any reasons for such non-renewal”. But the provision has a wider operation as appears from a helpful passage from the judgment of Walsh J. in North West County Council v. Dunn[cccxcv]⁴, in which the High Court was dealing with a provision contained in the Industrial Arbitration Act 1940-1969 (N.S.W.) which is similar to sub-par. (k). Walsh J. said, “In the provisions by which the right to dismiss or refuse to employ or reinstate in employment is declared to be an ‘industrial matter’, the term ‘right’ has been treated as not referring solely to a legal right, but as referring to the propriety, as a matter of fairness and justice, of doing in particular circumstances that which an employer has a legal right to do.” Thus the applicant’s argument based on legal rights was no answer to the claim. There are cases to be found under the Industrial Arbitration Act of New South Wales involving the right to dismiss, (see New South Wales Industrial Laws, 3rd ed., Mills at pp. 133 to 137), but no case was cited by counsel bearing on the refusal to employ. There is an obvious explanation for this for it is recognized under the New South Wales Act that to deprive an employer of his right to choose his own employees is a serious matter (Winsor’s case, cited Mills supra at p. 135), and cases in which a person refused employment could show therein unfairness or injustice must be rare. The fact that Mr. Smith sought renewal of his existing contract or the grant of a new contract rather than employment say as a temporary officer was not argued as a circumstance taking the case outside a refusal to employ, nor do I consider that in the circumstances of this case it could be so argued. It was not contended that the contracts were otherwise than in common form or subject to any but usual conditions or that the renewal of a contract was not the normal basis of employment for overseas officers. Accordingly, in my opinion, the dispute reported by Mr. Smith was an industrial dispute connected with an industrial matter of the kind stated in sub-par. (k).

It was next argued that the Industrial Relations Act had no application to officers of the Public Service whose sole rights in relation to their employment, it was argued, are to be found in the Public Service (Papua New Guinea) Act 1963, the Act in force at the date of the claim. Reference was made to North West County Council v. Dunn[cccxcvi]⁵ and especially to the passage in the judgment of Barwick C.J., in which the Chief Justice said, “The concept of an arbitral tribunal requiring the reinstatement of the employee of such a council (viz., as the appellant), a statutory body under a statutory duty to employ only those who are necessary for its operations ..., is in itself sufficiently odd to make one wonder whether the power to order reinstatement, should in any case extend so far.” However, the decision in that case turned on the effect on another Act, the New South Wales Local Government Act which contained special provisions for council employees. In the present case, the Industrial Relations Act by its terms applies to and in relation to the Government of Papua New Guinea (s. 6 (1)), except as to matters to which the Arbitration (Public Service) Act 1952 (now the Public Services Conciliation and Arbitration Tribunal Act 1969) applies (s. 6 (2)). It was not argued by counsel that any provisions of that latter Act were applicable. The provisions of the Public Service (Papua New Guinea) Act, upon which counsel for the applicant relied, viz. Div. VII and ss. 31 and 32 do not carry the matter further for they relate merely to disciplinary matters and the abolition of excess offices. Hence this submission also fails.

My brother Prentice J. refers in his judgment (which I have read in draft) to the Teaching Service Conciliation and Arbitration Act 1972 and in particular to s. 12 (2). But that Act was not referred to in argument so we have not had the usual assistance from counsel on the point. So far as s. 12 (2) is concerned the effect of it, it seems to me, is to clarify the position that, of the Acts possibly appropriate for application to the conditions of service of “members of the Teaching Service”, viz. the Public Services Conciliation and Arbitration Act 1969, the Teaching Service Conciliation and Arbitration Act 1971, and the Industrial Organizations Act read with the Industrial Relations Act, it should be the latter two Acts which should remain applicable to those conditions (with stated exceptions). There is also a significant departure from the language used in s. 12 (1). The section is thus rather confirmatory of the general application of those two Acts to members of the Teaching Service, and its terms do not seem to be apt to override the express provisions of s. 6 (1) of the Industrial Relations Act making the Act applicable to the Government.

It was not argued either before the Tribunal or in this Court that if the Board had jurisdiction its decision on the facts could be challenged. Indeed, in my opinion, the Tribunal’s finding on the facts that no new binding contract between the parties had come into existence, and its decision on the law that it was “entitled to apply the fundamental test as to whether the particular set of facts indicate that the employer has abused his right to fail to re-employ an employee, and whether there has been oppression, injustice or unfair dealing in the whole of the circumstances” and also its finding on the facts in favour of Mr. Smith, were each entirely correct.

It remains now to deal with the two final objections to the award. They are that contrary to s. 26b of the Industrial Relations Act the award does not relate in whole or in part to industrial matters only and that the award contravenes s. 27 of the Act. Both objections are related to the form of relief granted under the award. The Board’s decision was that Mr. Smith should have been granted renewal of his contract of two years from 5th July, 1973, and so ordered. The award, in effect, was one of re-employment or reinstatement together with the right to receive as from 6th October, 1973 salary and certain allowances as an officer regarded as being on duty during the period of employment so ordered. The other claims concerning the car and personal inconvenience were very properly disallowed as too remote.

Now there is no express power conferred upon an arbitral tribunal to order either the reinstatement or the employment of an employee. But under the similar provision contained in the New South Wales Industrial Arbitration Act it is accepted that there is power to order certainly the reinstatement of an employee. (North West County Council v. Dunn[cccxcvii]⁶ per Walsh J. at p. 260). In my opinion a similar power both as to reinstatement and, by analogy, employment should be assumed to be conferred under the Industrial Relations Act by reason of the plenary power conferred on a tribunal “to deal with an industrial dispute” under s. 13.

Upon the question of retrospectivity s. 27 provides as follows:

“An award made by a Tribunal under this Ordinance shall not have effect from a date before the date upon which notice under section 19 of this Ordinance was given to the parties, except with the consent of all parties to the dispute or:

(a)      unless the Tribunal for any special reason otherwise determines; and

(b)      with the consent of the Administrator in Council.”

In my opinion s. 27 is wide enough to cover not only awards between employers and employees generally but also an award such as the present one between an individual employer and employee. It was not suggested that Mr. Smith could bring himself within either of the exceptions to the section. Mr. Griffin’s argument that the award is not retrospective because it merely declares the existing rights of Mr. Smith and liabilities of the applicant does not seem to me to go to the point.

Some assistance as to the effect of an order under which salary is ordered to be paid during a period when under the legislation an award cannot take effect, is to be found in the notes concerning the cases of Re Steel Works Employees (B.H.P. Co. Ltd.) Award[cccxcviii]⁷, and Tinning v. Moran[cccxcix]⁸ to be found in New South Wales Industrial Laws, Mills, 3rd ed. at pp. 134 and 332 respectively.

In my opinion, the effect of s. 27 is that the obligation of the applicant under the award to make any payments to Mr. Smith either by way of salary or allowances cannot in law arise except in respect of the period after 6th June, 1974, the date of the statutory notice under s. 19. The consequence is that salary in respect of any period before that date and the allowances in respect of expenses which were all incurred before 21st November, 1973, the date of the claim, are not recoverable. But the words of s. 27 are not, in my opinion, apt to render the award void because of that defect. It is rather a matter to be dealt with by a court in any proceedings for monies due under the award. See Ela Motors Ltd. v. McCrudden; Ex parte Hoepper[cd]⁹ per Clarkson J. All that I wish to say before leaving this final submission is that the delay in the giving of the statutory notice, at any rate in respect of salary, has thus, in my opinion, serious consequences for Mr. Smith.

For all these reasons, in my opinion, the applicant has not shown that the award was made without jurisdiction, and the order nisi should be discharged.

PRENTICE J: Application has been made herein that an order nisi for a writ of certiorari issued on 3rd September 1974, be made absolute. It is sought thereby to quash the award of an Arbitration Tribunal purportedly made on 24th July, 1974 under the Industrial Relations Act 1962 as amended.

The award had been made in favour of a Mr. F. J. Smith, a technical teacher formerly employed in the Department of Education. Mr. Smith was employed on a contract which was due to terminate on 6th July, 1973. He applied in 1972 for leave of absence which was to extend from 11th December, 1972 until 6th October, 1973; that is to a point three months and one day beyond the expiry date of his then contract. Apparently he was then intending to apply for an extension of his contract. On 27th September, 1972 his application for leave was approved. On 10th November, 1972 he applied for a six months’ extension of contract. On 27th November, 1972 a letter was written him by the Department inviting him to apply for a two year extension—this letter was handed to him on 8th December, 1972. Mr. Smith immediately indicated that he wished to make such an application. It is common ground that this notification by Mr. Smith was not an acceptance of an offer in law; but was itself an offer to be accepted or rejected by the Department as agent for the government. A decision was apparently taken by the appropriate officer on 12th December, 1972 not to grant Mr. Smith an extension of his contract. A letter advising him of this decision was written on 19th December, 1972. A similar letter was written on 15th January, 1973. Through a delay which does not appear to have been explained, both letters were received by Smith only on 28th January, the day before he left for a tour of Europe. By this time Mr. Smith had entered into an arrangement to buy an expensive car in Europe and had made other arrangements in regard to holidaying and schooling of his children.

Mr. Smith returned to Australia in July 1973. He went to Canberra, and in August he came to Port Moresby; both trips apparently were made to further submissions on his own behalf for an extension of contract. These submissions proving ineffectual, he wrote a letter by way of claim on 21st November, 1973. This letter has throughout been treated as the basis for Smith’s claim and as constituting the dispute which was submitted to arbitration.

In this letter Mr. Smith stated “the dispute arises from the refusal of the Department of Education to renew my contract after certain offers, proposals, promises and assurances were given to me regarding the renewal of my contract and of certain commitments I made, and of alterations to my position because of these promises”. In the last paragraph he refers to “this unfair stand by the Department of Education” causing him to suffer “mental anguish, distress and expense” for these matters, and “various commitments I have undertaken and subsequent liabilities arising from these commitments, together with the effect this matter had on my holiday, I feel I am due for some compensation”. The statement of claim attached gave particulars including a claim for seven weeks’ salary, various accommodation and travel expenses, children’s education expenses, re-settlement allowance, $6,000 extra costs of importing a car, $5,000 for personal inconvenience; a total of $16,215. At the hearing Smith indicated he wished to vary the loss of salary he claimed as “it has gone on longer than I expected....”

During the hearing Mr. Smith made it plain that his claim was not that his contract be renewed. “This is not the case” he stated; “I am fully aware that an employer does not have to employ someone if he does not want to. My concern is that I was led to believe that I would be employed till 1975....”

The Tribunal hearing the matter pursuant to reference under s. 24 of the Industrial Relations Act 1962 looks for its jurisdiction to that Act and to the Industrial Organizations Act 1962 as amended. A tribunal may be set up only in regard to an “industrial dispute” as defined, which for purposes of this application must be understood to mean “a dispute or difference between an employer and an employee or between employees and employees or between employers and employers 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 that contract within three months after termination of contract”. “Industrial matters” are defined as meaning “all matters pertaining to the relations of employers and employees and, without limiting the generality of the foregoing includes ... (certain categories (a) to (r) are set out) ... and includes all questions of what is right and fair in relation to an industrial matter having regard to the interests of the persons immediately concerned and of the Territory as a whole”. It is only when an industrial dispute as to an industrial matter exists that any of the procedure provided for by s. 23 of the Industrial Relations Act can be properly used, (Ela Motors Ltd. v. McCrudden; Ex parte Hoepper[cdi]¹⁰) and if the true position is that there is no industrial dispute, anything done by the Secretary, the Administrator or the Tribunal in purported exercise of any power conferred by s. 23 is beyond power. Ela Motors Ltd. v. McCrudden, Ex parte Hoepper[cdii]¹¹.

Assuming for the moment the relationship of employer and employee; was the dispute, if such it was, related to an “industrial matter”. Counsel for Mr. Smith submits that it was of a kind that came within any of the categories (a), (b), (c), (h) and (k) of the definition. It seems to me at once clear that the claim could not be considered to come within categories (a), (b), (c) and (h). Category (k) is “a right to dismiss or to refuse to employ, or the duty to reinstate in employment, a particular person or class of persons”.

No question of a right of dismissal or of reinstatement (which I take it would be a matter arising from a dismissal), in employment arose here; and I am satisfied that Mr. Smith admitted the defendant’s right not to grant further contract at the termination of his previous one. That he neither sought to raise nor could raise, any question of the right to refuse to employ within the meaning of the section. The nature of the claims made appears to be directed towards establishing a right to damages for compensation because Mr. Smith was led by the representations or conduct of departmental officers, to alter his position to his financial detriment. The only claim that can be referred is of course the one raised. If that raised does not constitute an industrial dispute about an industrial matter it is not open seemingly, to the Tribunal to give itself jurisdiction by allowing additions to the claim. Though in an industrial dispute once raised the Tribunal may go on to decide “the matters” in issue between the parties (Ela Motors Ltd. v. McCrudden; Ex parte Hoepper[cdiii]¹²), I am unable to appreciate how the claim made by Mr. Smith can be said to be a matter “pertaining to the relations of employers and employees”. I am of the opinion that the claim does not concern an industrial matter and that therefore the writ should go for this reason; subject to the matter of discretion raised by Mr. Griffin to which I shall refer later.

The second ground argued was that there was no “industrial dispute” within the meaning of the Act, even if an “industrial matter” were being ventilated by the claim. The Prosecutor asked leave to amend the second ground in the order nisi by the addition of the words “and there is no industrial dispute within the meaning of par. (g) of that definition” (this was agreed to by Mr. Griffin). But even without the addition of those words, the ground as stated seems to me to have been intended to raise this point.

Mr. Griffin contended that a present relationship of employer and employee between the parties to the dispute did not need to be established. He pointed to s. 54, sub-s. 4 of which provides that in proceedings to convict an employer of an offence against the section an employer may be ordered to reinstate an employee; and to the reference in the definition of “industrial matter” of the “duty to reinstate in employment”. He relied also on The Queen v. Findlay & Another; Ex parte the Commonwealth Steamship parte Owners’ Association[cdiv]¹³—a decision upon a rather different section in the Conciliation and Arbitration Act of Australia, in which the status of an employer and an employee is discussed. The fact that a court is given disciplinary powers and ancillary powers to reinstate by s. 54 sub-s. 4, does not I think, detract from the necessity generally that an employer employee relationship exists at the commencement of dispute to make it an “industrial dispute” under the arbitration provisions. A dispute of the “refusal to employ” kind no doubt could often be raised on behalf of categories of persons allegedly being victimized, by an organization of employees. Those words in (k) are not therefore without effect. By way of exception as I see it there is of course the special provision now limited by the 1973 amendment, in the case of a former employee claiming within three months of termination of his contract. But no question of right to dismiss or refuse to employ or of duty to reinstate in employment, arose here in the course of an industrial dispute and it seems that in reality, Mr. Smith would be required to bring himself within clause (g) of the definition of industrial dispute that allows redress specifically to an individual on his own behalf. Even assuming that a dispute had arisen from “a contract of employment” within three months of its termination; it could not be said either that the contract of employment was such that its particulars were being contested, or alternatively that the dispute contested the particulars of the said contract.

For these reasons I am of the opinion that an industrial dispute has not been shown such as would found jurisdiction in the Tribunal; and that the writ should run for this reason also.

In my opinion it is not necessary to make a decision on the further ground taken that the award was made contrary to the Public Service Act. Whether a public servant, and specifically a member (or former member) of the teaching service has a right to arbitrate a claim against the Government would seem to depend upon the consideration of many statutes. The creation of offices, specification of qualifications, recruitment and appointment of officers, with special provisions as to teachers, is provided for by the Public Service Interim Arrangements Act No. 81 of 1973. For certain purposes of effecting changes in conditions, “public employers” and “public service organizations” (but not apparently individual members of the public service) may seek determinations before a special Tribunal—the Public Services Conciliation and Arbitrational Tribunal (s. 17 of the Public Services Conciliation and Arbitration Tribunal Act No. 39 of 1969 as amended covers the situation). Analogous provisions are made as to the teaching service by the Teaching Service Ordinance 1971 (No. 9 of 1972) whereunder the Teaching Service Commission is “to act as agent for the Administration in relation to the responsibilities of the Administration under this Act as an employer” (s. 14). Appeals by members aggrieved by decisions of teaching authorities, are allowed to the Commission, or to the Administrator from the Commission. Such decisions are final (s. 20). The Commission may re-admit a person who has ceased to be a member (s. 29 sub-s. 6). The National Education Board has certain responsibilities as to appointments to technical colleges (s. 45). By the Teaching Service Conciliation and Arbitration Act (No. 20 of 1972) a Special Teaching Service Tribunal is established to carry out the functions that would otherwise be dealt with by the Tribunal under the Public Service Conciliation and Arbitration Act of 1969-1971. By s. 12 (1) it is provided that “except as provided by this Act the Public Service Conciliation and Arbitration Act 1969 does not apply to or in relation to the conditions of service of members of the Teaching Service”. By sub-s. (2) thereof it is provided that “conditions of service of members of the Teaching Service other than the conditions of service referred to in sub-pars. (i) and (ii) of par. (j) of sub-s. (1) of s. 9 of this Ordinance shall be industrial matters within the meaning of the Industrial Organizations Ordinance 1962-1970, and claims to changes to those conditions of service shall be dealt with as industrial disputes under the Industrial Relations Ordinance 1962-1971”. Subparagraphs (i) and (ii) of par. (j) of sub-s. (1) of s. 9 refer to overseas or special conditions of service in relation to members of the teaching service employed by the Administration in its capacity as an education agency within the meaning of the Education (Papua New Guinea) Ordinance 1970-1971 and the responsibilities of the Administration to members of the Teaching Service as provided for in the Teaching Service Ordinance 1971. It will be seen that special machinery is provided for disputes involving teachers, but that in one class of dispute, in relation to conditions of service, specific provision is made that they be dealt with as industrial matters under the Industrial Organizations Act. One would therefore be inclined to find this an illustration of the maxim expressio unius est exclusio alterius. That the only occasion for an approach to a Tribunal appointed under the Industrial Relations Act to be made by a teacher, would be as to “conditions of service”. Accordingly that the provisions of the Industrial Relations Act as to ex-employees, or as to claims by employees relating to matters other than conditions of service, could not be raised in the fashion sought by Mr. Smith.

Insofar as the claim could be said to involve the right to re-employment or reinstatement, or to the extent that the Tribunal attempted to deal with the claim by making an order of “reinstatement” the remarks of Barwick C.J. in North West County Council v. Dunn[cdv]¹⁴ appear apposite:

“The concept of an arbitral tribunal requiring the reinstatement of the employee of such a council, a statutory body under a statutory duty to employ only those who are necessary for its operations, is in itself sufficiently odd to make one wonder whether the power to order reinstatement, should in any case extend so far. There can be no comparison whatever between the situation of a private employer and that of a statutory body under statutory duties and restraints with respect to employment of servants and to the termination of their employment. This is particularly so when it is realised that the question for the arbitral tribunal when asked to order reinstatement is not whether the employer had a right of dismissal available to him at the relevant time but whether the exercise of that right was so harsh in all the circumstances as to have amounted in an industrial sense to an abuse of the power.”

It would seem to me with respect, that where no question of dismissal arose, to purport to order a statutory body to grant a new contract at the termination of a contract would be even odder.

Mr. Griffin has submitted that if this Court were of the opinion that grounds exist for confirmation of the writ, nevertheless this Court should refuse to make the order absolute. The Prosecution has, by its conduct before the Tribunal he says, disentitled itself to relief. He submits that just as a party initiating proceedings cannot seek to have them quashed if they go against him (Permanent Trustee Company of New South Wales Limited v. Campbelltown Corporation)[cdvi]¹⁵, (the dicta of Menzies J.), so the government here having submitted to the jurisdiction (approbated), is not entitled now by obtaining a writ to quash (reprobate) the proceedings.

I do not find myself persuaded that the conduct of the Government prior to and during the arbitration hearing was such as to disentitle it to relief. It is clear from the transcript that the representative of the Government was squarely challenging the jurisdiction of the Tribunal to proceed. I consider it unfortunate in the extreme that the points available to it were not stated in more detail and more forcefully. It seems surprising that in a matter of such consequence to the Government, it did not see fit to engage experienced counsel from the industrial Bars of the Australian State to argue the important and difficult issues involved. But bearing in mind the determined and active role which certain members of the Tribunal seemed to be playing in the proceedings, I do not think the Government representative’s conduct amounted to conduct of the kind that Professor de Smith suggests (Judicial Review of Administrative Action, 2nd ed., p. 432) would disentitle a party (here the Government), to relief.

I have not found it necessary to deal with the question of whether the grounds in the order nisi may be enlarged by amendment but I am not uninfluenced in regard to the matter of discretion to refuse the relief sought, by what I consider valid arguments exposing “total want of jurisdiction” on two other grounds, viz. (1) that the award did not relate to the matter in dispute, and (2) that the award, being retrospective in operation is contrary to the provisions of s. 27 of the Industrial Relations Act—the dispute not being within the exception allowed as to retrospectivity that is being one under par. (g) of the definition of “industrial dispute” allowed by the said s. 27. In my opinion these arguments also could well prevail, if amendments were allowed, or further proceedings brought.

I would wish that the order for a writ to remove to this Court and quash the award of the Tribunal dated 24th July, 1974, be made absolute.

RAINE J:  Since returning from circuit I have had the advantage of reading the judgments, in draft form, of my brethren. In my opinion Prentice J. has reached the correct conclusion, and I agree, for the reasons that he gives, that the Rule should be made absolute. It is with considerable regret that I reach this conclusion, because it offends against my sense of fairness.

There is one portion of my brother Prentice’s judgment with which I do not agree, and that is the suggestion that his Honour makes at the end of his judgment that the retrospectivity argument in relation to s. 27 of the Industrial Relations Act of 1962 could prevail against Mr. Smith. His Honour did not find it necessary to do more than make a tentative suggestion as to this, but appears to look with favour upon the applicant’s argument. With respect, I agree with my brother the Acting Chief Justice on this point. Had I not agreed with Prentice J., and the reasons he has given, I would have reached the same conclusion on the effect of s. 27 as has the Acting Chief Justice. In other words, I agree that the words of s. 27 do not render the award void, but would have only prevented Mr. Smith receiving salary or allowances prior to 6th June, 1974, the date of the statutory notice under s. 19.

Order nisi for certiorari made absolute and Award referred to therein quashed.

Solicitor for the applicant, the Government of Papua New Guinea: P. J. Clay, Crown Solicitor.

Solicitor for the respondent Arbitration Tribunal: P. J. Clay, Crown Solicitor.

Solicitors for the respondent Smith: McCubbery, Train, Love & Thomas.

[cccxciii]Infra p. 298.

[cccxciv][1953] HCA 81; (1953) 90 C.L.R. 621, at p. 630.

[cccxcv][1971] HCA 34; (1971) 126 C.L.R. 247, at p. 260.

[cccxcvi][1971] HCA 34; (1971) 126 C.L.R. 247, at p. 251.

[cccxcvii](1971) 126 C.L.R. 247.

[cccxcviii][1962] A.R. 334.

[cccxcix][1939] A.R. 148.

[cd][1973] P.N.G.L.R. 436.

[cdi][1973] P.N.G.L.R. 436.

[cdii][1973] P.N.G.L.R. 436.

[cdiii][1973] P.N.G.L.R. 436.

(1953) 90 C.L.R. 621.

[cdv][1971] HCA 34; (1971) 126 C.L.R. 247, at p. 251.

[cdvi](1960) 105 C.L.R. 401.

[cdvii] [1936] 2 K.B. 253, per Scott L.J., at p. 281.