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PNG Trade Union Congress v Minister for Finance & Planning, National Provident Fund Board and Kosi [1988-89] PNGLR 14 (25 November 1988)

Papua New Guinea Law Reports - 1988-89

[1988-89] PNGLR 14 - PNG Trade Union Congress v Minister for Finance & Planning, National Provident Fund Board and John Kosi 

[1988-89] PNGLR 14

N697

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

PAPUA NEW GUINEA TRADE UNION CONGRESS

V

THE MINISTER FOR FINANCE AND PLANNING AND NATIONAL PROVIDENT FUND BOARD AND JOHN KOSI

Waigani

Woods J

14 November 1988

25 November 1988

ADMINISTRATIVE LAW - Judicial review of administrative acts - Appointment to statutory board - Minister to call for nominations for employee representatives - No prohibition on advertising - No prohibition on dealing with separate organisations - Not confined to umbrella organisations - Forged nomination invalid - National Provident Fund Act (Ch No 377), s 6(1)(d).

The National Provident Fund Act (Ch No 377) provides for a National Provident Fund which is run by a Board of Trustees constituted under s 6 of the Act and including:

“(1)(d) three persons representing employees of affected establishments, appointed by the Minister from a list of names submitted to him from such organisations of employees as in the opinion of the Minister represents the employees ...”

Held

(1)      There is nothing in s 6(1)(d) or in the Act which prohibits the Minister from seeking nominations from employee organisations by way of public advertisement, or from consulting with separate worker organisations rather than with an umbrella organisation such as the Trade Union Congress, earlier practice to the contrary notwithstanding.

(2)      Where the nomination of an employee representative was a forgery there was no proper submission of the employee’s name by an organisation of employees for the purposes of s 6(1)(d) of the Act and an appointment based on that invalid nomination should be declared void.

Judicial Review

This was an application for judicial review of a decision of the Minister for Finance and Planning to appoint the third respondent to the Board of Trustees of the National Provident Fund.

Counsel

I M Wartovo, for the applicant.

A S K Palai, for the first respondent.

Cur adv vult

25 November 1988

WOODS J: This is a review of the decision whereby the Minister for Finance and Planning appointed the third respondent John Kosi to the Board of Trustees of the National Provident Fund.

The National Provident Fund Act (Ch No 377) (the Act) provides for a National Provident Fund which is run by a Board of Trustees. Section 6 of the Act sets out the constitution of the Board:

“Section 6.    Constitution of the Board.

(1)      The Board shall consist of the following trustees:

(a)      The Secretary for Finance ...

(b)      The Director, who shall be the Secretary; and

(c)      not more than two persons who shall be officers of the Public Service, appointed by the Minister; and

(d)      three persons representing employees of affected establishments, appointed by the Minister from a list of names submitted to him from such organisations of employees as in the opinion of the Minister represents the employees ...

(e)      three persons representing employers of affected establishments, appointed by the Minister from a list of names submitted to him from such organisations of employers as in the opinion of the Minister represents the employers.”

Early in 1987 the Management Board of the Papua New Guinea Trade Union Congress made a recommendation to the Minister for Finance for the appointment of the General Secretary of the Congress to the Board of Trustees of the National Provident Fund to fill the vacancy left by the resignation of worker representative Reginald McAllister. No action was taken by the Minister on that recommendation. Then early in 1988 the Minister advertised in the daily newspapers calling for nominations from employee organisations for consideration to the Board of Trustees. The Trade Union Congress duly responded to that advertisement and whilst making objections to the way the advertisement was done and referring to what they believed to be the accepted practice, made appropriate nominations.

In due course, in April 1988, the Minister nominated John Kosi to the Board of Trustees, apparently upon the nomination of the Papua New Guinea Waterside Workers and Seaman’s Union.

The Trade Union Congress as a body representing many employee organisations is objecting to this appointment on two main grounds.

First, I should mention that I am satisfied as to their status to come to the Court and seek this review. They are quite clearly a party interested and aggrieved, being a body representing many employee organisations, and no-one has raised any objection to their presence before me.

The first main submission is that s 6 of the Act does not require the Minister to advertise for nominations from employee organisations and that in doing so he was departing from the established practice in not directly addressing the Papua New Guinea Trade Union Congress for such nominations. The submission is based on the fact that the Trade Union Congress is the umbrella organisation for most worker organisations in the country.

First, I find no prohibition on advertising in the Act. With respect to the second leg of this submission, whilst I might agree that to by-pass the Trade Union Congress in matters like this could lead to a breakdown of feelings of trust and understanding between worker organisations and the Government, there is nothing in the section which requires the Minister to deal only with the Trade Union Congress.

The section clearly says “such organisations of employees as in the opinion of the Minister represents the employees” and I must find that this means the Minister can consult with the separate worker organisations and is not bound to consult only with the umbrella organisation. Whilst what has been put to me as the established practice seems to be a sensible and fair approach, it is not stated as the required procedure by the law. I therefore cannot uphold this submission.

The second submission is that the appointment of John Kosi was based on a false nomination and therefore as John Kosi’s name was not, in fact, submitted by an employee organisation his appointment is invalid. The evidence before me is that John Kosi’s name was submitted to the Minister in a letter purported to have been written by the General Secretary of the Papua New Guinea Waterside Workers and Seaman’s Union. However, that letter is a forgery as Koae Sale, the Acting General Secretary at the time, has sworn that that is not his signature on the letter and he denies ever having nominated John Kosi. I am satisfied that the letter is a forgery. In the circumstances therefore it is clear that there has been no proper submission of Mr Kosi’s name by an organisation of employees and therefore he cannot be said to be a person representing employees of affected establishments. I therefore find that the Minister’s appointment should be reviewed and declared void.

I declare the appointment of John Kosi as a member of the Board of Trustees of the National Provident Fund to be void and the position to which he was appointed to be vacant.

Appointment declared void Positions declared vacant

Lawyers for the applicant: I M Wartovo & Co.

Lawyer for the first respondent: State Solicitor.