1985-1986 SILR 173

IN THE COURT OF APPEAL OF SOLOMON ISLANDS

Civil Appeal No. 1 of 1985

TRI-ED ASSOCIATION

v

SOLOMON ISLANDS COLLEGE OF HIGHER EDUCATION

Solomon Islands Court of Appeal
(Sir John White P., Kapi and Connolly JJA)
Civil Appeal No.1 of 1985

11 January 1986 at Honiara
Judgment 1 May 1986

Trade Unions Act s.2(3) - Crown and non-Crown employees in same union - whether respondent a Crown instrumentality - whether staff of respondent employed by Crown - test whether employment relationship exists - Constitution s.13 (freedom of association) - whether s.2(3) of Trade Unions Act void as against Constitution s.13 - whether s.2(3) reasonably justifiable in a democratic society - onus - locus standi - advisory opinion

Facts:

The appellant was originally formed as a staff association for the staff of King George VI School, the Teacher Training College and Honiara Technical College, the staff of all three schools being employees of the Crown. Later the S.I. College of Higher Education was formed by the College of Higher Education Act 1984 as an independent body and took over the functions of the latter two schools.

The appellant then sought recognition from the respondent to represent its academic staff but the respondent resisted on the grounds that the membership of the appellant was against s.2(3) of the Trade Unions Act which forbids the mixing of Crown and non-Crown employees in the same trade union and that the staff of the respondent were employed by the respondent and not by the Crown.

The dispute went before the Trade Disputes Panel which found that the staff of the respondent were employed by the respondent and not by the Crown and therefore the appellant could not represent the staff of the respondent.

The appellant then appealed to the High Court which upheld the decision of the Panel and further held that the provision of the Act restricting the right of public officers to associate with non-Crown employees was constitutional and reasonably justifiable in a democratic society. See Tri-Ed Association v. S.I. College of Higher Education (Civil Case No. 55 of 1985). Hence this appeal.

Held:

1. (Per Sir John White). The four tests of whether an employment relationship exists are (1) the power of selection of employees, (2) the payment of wages, (3) the right to control the work to be done and (4) the right to suspend or dismiss; the most important test being the right to control (Fridman’s Modern Law of Employment at p.20, citing Short v. J. and W. Henderson Ltd. (1946) 39 B.W.C.C. 62 per Lord Thankerton, followed).

2. (Per Sir John White). In the present case general day to day control of the staff was exercised by the respondent which also paid their wages. Although the Teaching Service Commission had the powers of appointing, suspending and dismissing members of the respondent’s academic staff, those powers were exercised in conjunction with the Council of the respondent. Accordingly, the members of the academic staff were not employed by or under the Crown.

3. (Per Connolly JA). The College of Higher Education Act 1984 is not repugnant to 116B of the Constitution in that s.11(o) of that Act confines the controlling power of the Council of the respondent over its academic staff to the control of academic discipline, not general discipline, and s.116B speaks only of “control” generally and not of “disciplinary” control specifically. Moreover, the power to control vested in the Teaching Service Commission, though unlimited in its terms, is permissive, not exclusive, therefore the governing bodies of various schools may lawfully exercise day to day control over their staff, subject to the power of the Commission to intervene in a particular case should it see fit.

4. (Per Connolly JA). That a third party has the power to appoint, dismiss or require dismissal or to direct or control does not necessarily lead to the conclusion that the third party is the employer. (Halsbury’s Laws of England (4th ed.) para. 502, notes 2 and 3 as to appointment and dismissal, note 4 as to direction and control, approved). Accordingly, the members of the respondent’s academic staff could not be regarded as Crown employees.

5. (Per Connolly JA). By its own constitution the appellant had no power to have as its members the staff of the respondent, therefore it could not represent them and thus the Panel could have disposed of the matter shortly. The Court, however, must dispose of the questions of law raised in the appeal because if the constitutional point, whether s.2(3) of the Trade Unions Act infringes the right of public officers to freedom of association, were to be resolved in the appellant’s favour, it could amend its constitution to extend coverage to the respondent’s staff.

6. (Per Connolly JA). The restriction set forth in s.2(3) of the Trade Unions Act on the right of public officers to associate in a trade union with non-Crown employees is a valid exception to the right of freedom of association by virtue of s.13(2) (c) of the Constitution unless it is shown not to be reasonably justifiable in a democratic society.

7. (Per Connolly JA). The test of reasonableness should be applied to each statute individually and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. Considerations relevant for the purposes of the Constitution of Solomon Islands, however, include the nature of the right infringed, the underlying purpose of the restriction, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition and the conditions prevailing at the time. (In re Supreme Court Reference No.2 of 1982 (1982) PNGLR 214 per Kapi J.A., citing State of Madras c. V.G. Row (1952) S.C. 196 per Patanjaoli Sastra C.J. of the Supreme Court of India at p. 200, followed).

8. (Per Connolly JA). Applying these considerations, there are good reasons why generally speaking Crown employees should not be allowed to associate in trade unions with non-Crown employees. (Tri-Ed Association v. S.I. College of Higher Education (Civil Case No. 55 of 1985) followed. Moreover, the restriction does not preclude membership in a trade union entirely, it only prevents Crown employees from joining unions open to non-Crown employees and a Union composed only of Crown employees can look after the interests of its members just as well as a mixed union. Accordingly, it was not shown that s.2(3) was not reasonably justifiable in a democratic society.

9. (Per Kapi JA). The appellant could not represent the staff of the respondent because by its constitution its membership was not open to respondent’s staff. Nor could the respondent approve membership of its staff in the appellant because by s.19 of the College of Higher Education Act the respondent only has the power to approve the formation of a union to ensure discipline and a healthy academic atmosphere and not the formation of a trade union. In effect, the appellant was seeking an amendment of its constitution to include in its membership the staff of the respondent, but such an amendment can only be allowed by the Registrar of Trade Unions upon application under s.35 of the Trade Unions Act. Accordingly, neither party had standing to raise the legal issues under the Trade Unions Act; only the Registrar of Trade Unions would have been competent to do so.

10. Moreover, there was no trade dispute between competent parties under the Trade Disputes Act 1981 because the members of the appellant were not employees of the respondent. Accordingly, the Panel had no jurisdiction to decide on the questions of law before it and it followed that neither did the High Court or Court of Appeal because neither court is empowered to issue advisory opinions.

11. (Kapi JA). Accordingly, any advisory opinion expressed by the Court will be persuasive only and not binding.

12. (Kapi JA). On the question of whether the staff of the respondent were Crown employees, even if the Teaching Service Commission were held to be the employer, the staff would not be Crown employees because the Commission is a constitutional body apart from the Crown as s.137(4) of the Constitution provides that no such commission shall be subject to the direction or control of any other person or authority.

13. (Kapi JA). On the question of whether s.2(3) of the Trade Unions Act is constitutional, there is a presumption of constitutionality and the onus of proof that a statute is not reasonably justifiable in a democratic society is on the party alleging it is not. (Cheranci v. Cheranci (1960) NRNLR 24 and Kachusu v. Attorney General (1969) Zambia Law Journal 44 followed).

Accordingly, the appeal was dismissed.

Cases considered:

Short v. J. and W. Henderson Ltd (1946) 39 B.W.C.C. 62
Cassidy v. Ministry of Health (1951) 2 KB 343
In re Supreme Court Reference No.2 of 1982 (1982) PNGLR 214
State of Madras c. VIG. Row (1952) S.C. 196
Tri-Ed. Association v. S.I. College of Higher Education Civil Case No. 55 of 1985
Cheranci v. Cheranci (1960) NRNLR 24
Kachusu v. Attorney General (1969) Zambia Law Journal 44

Also considered:

Fridman’s Modern Law of Employment
Halsbury’s Laws of England (4th ed.) Vol. 16

Andrew Radclyffe for the Appellant
Reginald Teutao for the Respondent

Sir John White P.: This appeal is from a decision of the learned Chief Justice dismissing an appeal to the High Court from a decision of the Trade Disputes Panel on a preliminary question whether the appellant was entitled to represent the respondent’s academic staff. The Trade Disputes Panel had decided that the appellant was not entitled to represent the academic staff for the purposes of the Trade Disputes Act 1981.

The facts and the issues are set out fully in the judgment of the learned Chief Justice. Briefly, when the appellant was first constituted as an association or union the membership comprised the professional staff at King George VI School, Solomon Islands Teacher’s College and Honiara Technical Institute. In 1984, however, the College of Higher Education Act was passed. The long title states it is an Act “to establish an autonomous body….. for providing higher education….”. It was common ground that pursuant to the Act the functions of Solomon Islands Teachers College and Honiara Technical Institute were assumed by the respondent. It was also common ground that the professional staff of King George VI School, Solomon Islands Teachers’ College and Honiara Technical Institute were employed by the Crown. The respondent contended, however, that from the passing of the College of Higher Education Act 1984, s.2(3) of the Trade Unions Act, as amended in 1976 precluded the appellant from representing the members of the respondent’s academic staff on the grounds that they were employed by the respondent and were not employed by or under the Crown. Section 2(3) reads as follows:-

“(3) No employee employed by or under the Crown shall join a trade union which a person not so employed may join, and no trade union shall represent or accept as members both persons who are and persons who are not so employed.

Provided that nothing in this subsection shall apply to any employee employed by or under the Crown whose emoluments are not paid from the personal emoluments sub-head of any head in the annual estimates of expenditure of the Government.”

The appellant contended that the members of the respondent’s staff are employed not by the respondent but by the Teaching Service Commission constituted under s.116B of the Constitution. That section reads as follows:-

“116B (1) Power to make appointments to the offices to which this section applies (including power to confirm appointments) and to remove and to exercise control over persons holding or acting in such offices is vested in the Teaching Service Commission.

(2) The Teaching Service Commission may, subject to such conditions as it thinks fit, delegate any of its powers under this section by directions in writing to any member of the Commission or to any public officer or to any provincial government officer.

(3) Before making any appointment to a school set up by a Provincial Assembly or a Church or other body, the Teaching Service Commission shall consult the relevant education authority.

(4) This section applies to teachers in primary schools, secondary schools and institutes of tertiary education.”

The appellant contended, in the alternative, that s.2(3) of the Trade Unions Act was in conflict with s.13 of the Constitution and was accordingly void or, if not void, was “not reasonably justifiable in a democratic society”. S.13 of the Constitution reads as follows:-

“13. (1) Except with his own consent no person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to political parties or to form or belong to trade unions or other associations for the protection of his interests.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision-

(a) in the interests of defence, public safety, public order, public morality or public health;

(b) for the purpose of protection the rights or freedoms of other persons; or

(c) that imposes restrictions upon public officers,

and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.”

In presenting the case for the appellant Mr Radclyffe did not contend that the respondent was an instrumentality of the Crown. Having had the opportunity of reading in draft the judgments of the other members of the Court, I respectfully agree that the concession was correct.

Mr Radclyffe’s contention was that in applying the indicia of a contract of service it was clear that under s.116B of the Constitution the power to make appointments to the offices to which the section applies, and to remove and to exercise control over such persons, is vested in the Teaching Service Commission. He submitted that while under the College of Higher Education Act 1984 s.11(2)(e) the respondent’s Council was responsible for “the salary structure and other conditions of service of members of the academic staff and the administrative staff” that responsibility excluded “the matters specified in s.116B of the Constitution”. It was submitted that the responsibility (under s.11(2)(o) for “the regulation and control of the academic discipline among the staff and the administrative staff ... including the power to take disciplinary action against the members of the administration staff and to impose such penalties as may be prescribed by the Statutes was intended to be reconcilable with the powers vested in the Commission by s.116B. Mr Radclyffe conceded that notwithstanding the powers vested in the Teaching Service Commission the respondent has many of the characteristics of an employer, including the day to day control of the College. Accepting that the principles of the common law as to who is the employer applied, and that the evidence was not in dispute, it was submitted that the test of employment should be regarded as practical, entitling him to contend that the day to day control was subject to the Commission’s power to intervene and override the respondent.

Mr Teutao contends that on analysis of the College of Higher Education Act 1984 the respondent was the employer of the academic staff. It was submitted that the Statute made it clear the administrative staff, which was not affected by s.116B(1) of the Constitution, was employed by the respondent and that when the circumstances were considered the academic staff was also employed by the respondent, and not the Teaching Service Commission. It was argued that the provisions of the Act showed that the intention was to transfer to the respondent’s Council all responsibilities for the control of the academic staff with the exception of the powers vested in the Teaching Service Commission was required to consult the respondent before making appointments and it was submitted that before the Commission dismissed a member of the academic staff or took any disciplinary action such steps would depend on reports and submissions made by the respondent.

The indicia of employment are stated in Halsbury 4 Ed. Vol. 16 para 501, see also Fridman’s Modern Law of Employment at p. 20 and I quote the latter:

“(a) The master’s power of selecting his servant.

(b) The payment of wages or other remuneration.

(c) The master’s right to control in a general manner the work to be done.

(d) The master’s right of suspension or dismissal.”

We were referred also to the following passages in Halsbury 4 Ed. Vol 16 para 502:

“Whether or not, on any given case, the relationship of employer and employee exists is a question of fact, although the contract is a matter of law.”

“A person may be the employee of another even if a third party has the power of appointing or dismissing him or requiring his dismissal.”

There was no dispute that this was a correct statement of the law.

In Fridman at p.20 the importance of control and the tests of service are considered. The learned author there says:-

“Looked at ... the most important test of service is whether the person alleged to be a servant was under the control of the alleged master, in other words the question to be answered is whether the master retained the power of controlling the work to be done by the servant .... The greater the amount of direct control ... the stronger the grounds for holding it to be a contract of service.”

The learned author cites Short v. J and W. Henderson Ltd (1946) 39 B.W.C.C. 62 and from the opinion of Lord Thankerton. He there states as the principal requirement of a contract of service the right of the master “in some reasonable sense to control the method of doing the work” and the factor of superintendence and control as decisive of the legal quality of the relationship. In Cassidy v. Ministry of Health (1951) 2 KB 343 which was referred to in argument the reasoning of Denning L.J. (as he then was) also illustrates the importance attached to the nature of control and the payment of salary or wages. In my opinion there is no doubt in the present case that control “in the reasonable sense” referred to by Lord Thankerton is exercised by the respondent. The powers of appointing, suspending and dismissing members of the academic staff are vested in the Teaching Service Commission but those powers are exercised in conjunction with the respondent’s Council, and the respondent pays the wages of the staff. In my view while the Teaching Service Commission appoints and may dismiss the members of the academic staff they give their service by agreement for reward to the respondent which has general control over the work to be done.

For these reason I conclude that the members of the academic staff are not employed by or under the Crown.

I have had the advantage of reading the reasons for judgment of Connolly JA on the second ground of appeal dealing with the appellant’s argument based on s.13 of the Constitution. I respectfully agree with those reasons and his conclusive and have nothing I wish to add.

For the reasons given in the judgments of the members of the Court the appeal is dismissed.

Connolly JA: This is an appeal from a judgment of the High Court of 26th June, 1985 which dismissed an appeal from a decision of the Trade Disputes Panel. The Panel had held, on a preliminary point, that the appellant (“Tri-Ed”) was not entitled to represent the academic staff of the respondent (“the College”). Shortly stated, the Panel’s reasons for coming to this conclusion was that, by virtue of s.2(3) of the Trade Unions Act, it is not lawful for Tri-Ed, which is a trade union, to represent as members both persons who are and persons who are not employed by or under the Crown. It is common ground that the professional staff of King George VI School are Crown employees and if it be the fact that the College’s professional staff are not, then, subject to a constitutional point which is raised, this ruling would be correct in law.

Tri-Ed was formed to represent the professional staff at King George VI School, Solomon Islands Teachers College and Honiara Technical Institute. It is common ground that in accordance with the constitution of Tri-Ed, membership of that Union is open to the professional staff of the three institutions just mentioned, and in its present state, to no others. It is accepted that not only the professional staff at King George VI School but the professional staff at the other two institutions were Crown employees. Section 2(3) has stood in its present form since 1976 and it reads as follows:-

“(3) No employee employed by or under the Crown shall join a trade union which a person not so employed may join, and no trade union shall represent or accept as members both who are and persons who are not so employed:

Provided that nothing in this subsection shall apply to any employee employed by or under the Crown whose emoluments are not paid from the personal emoluments subhead of any head in the annual estimates of expenditure of the Government.”

Section 2(3) presented no difficulty until 1984. In that year the College was brought into being and the College of Higher Education Act of that year was passed by the National Parliament. It does not appear that Solomon Islands Teachers College and Honiara Institute were formerly disbanded but their functions were in effect conferred upon the College and thereafter their academic staff became the academic staff of the College.

The first question which arises is whether the staff of the College are employed by or under the Crown. If they are then s.2(3) provides no impediment to Tri-Ed representing both the professional staff at King George VI School and the professional staff of the College. If they are not then for Tri-Ed to represent both groups of employees would be a breach of s.2(3), subject to the constitutional question to which I have refereed. If the College is a Crown instrumentality, then there would be much to be said for the view that its professional staff are Crown employees. This however, is not contended by Mr Radclyffe, who appeared for Tri-Ed and the College of Higher Education Act 1984 lends little support to such a autonomous body for providing higher education and very few of its provisions give any indication that is either subject to that ministerial control or subject to the of financial administration which characterise Crown instrumentalities.

Section 5(1) provides that the College is to have academic freedom in all matters of imparting higher education. It is managed and administered by a council, which is not subject to any minister, although many of its members are appointed by the Governor General on the recommendation of appropriate ministers. It is a statutory corporation and any property to be devoted to the use of the College is to vest in it. It has a substantial power to pass statutes which may, amongst other things, provide for the imposition of fines recoverable by the College in courts of competent jurisdiction. It is true that s.22 requires it to cause proper accounts to be kept and those accounts are to be audited by the Auditor General. By s.23 the Ministry of Finance is obliged to pay to the College in each financial year such grants as may be necessary for the purpose of enabling the College to adequately perform and discharge its functions and duties. The only hint of ministerial control lies in the fact that its powers of borrowing and investment are subject to the approval of the Minister of Finance. By s.27, nothing contained in the Education Act 1978 is to apply to the College, its officers, or the members of its academic or administrative staffs. In my opinion, the concession made by Mr Radclyffe was rightly made. If members of the academic staff of the College are to be categorised as Crown employees, it must be for some reason other than that the College is a Crown instrumentality.

What is contended is that an amendment of the Constitution which was made in 1982, and which established the Teaching Service Commission, has the result that the employer of the College’s academic staff is in truth the Teaching Service Commission. I am prepared to assume, for present purposes, that if this be a correct analysis, the Teaching Service Commission would fairly be regarded as an emanation of the Executive Government and thus a representative of the Crown in right of Solomon Islands. To understand the argument one must turn to s.116B of the Constitution which reads as follows:-

“116B.(1) Power to make appointments to the offices to which this section applies (including power to confirm appointments) and to remove and to exercise control over persons holding or acting in such offices is vested in the Teaching Service Commission.

(2) The Teaching Service Commission may, subject to such conditions as it thinks fit, delegate any of its powers under this section by directions in writing to any member of the Commission or to any public officer or to any provincial government officer.

(3) Before making any appointment to a school set up by a Provincial Assembly or a Church or other body, the Teaching Service Commission shall consult the relevant education authority.

(4) This section applies to teachers in primary schools, secondary schools and institutes of tertiary education.”

Plainly enough this provision empowers the Commission not only to make appointments of teachers in institutes of tertiary education and to remove them but also to exercise control over them. It is strongly argued that these powers represent so many of the indicia of the status of an employer that the Commission must be regarded as the employer of the College’s academic staff. This argument is plainly not without substance for, clearly enough, the draftsman of the College of Higher Education Act 1984 had s.116B of the Constitution very much in mind. Thus s.28 provides that nothing contained in s.7, which confers certain powers on the College, or s.11 which sets out the powers of the Council or any other provision of the Act, shall be construed as taking away the powers of the Teaching Service Commission under s.116B to appoint academic staff. Further, two provisions of s.11 reveal concern that there might be some repugnancy between the constitutional provision and the Act of 1984. Section 11(2)(e) and (o) provide for certain responsibilities of the Council in the following words:-

“(e) the salary structure and other conditions of service of members of the academic staff and the administrative staff (excluding the matters specified in section 116B of the Constitution);

.....

(o) the regulation and control of the academic discipline among the staff and the administrative staff and students, including power to take disciplinary action against the members of the administrative staff and to impose such penalties as may be prescribed by the Statutes;”

It is para. (o) which appears to me to reveal an attempt to reconcile the new Act with the constitutional provision. It is said that the word “academic” in the first line should not appear before “discipline” but before the word “staff” where that word first appears. This is said to be the form in which the provision was first drafted. However we must take the provision as it was enacted by the National Parliament, whether that makes perfect sense or not. Now the Constitution sets up a number of Commissions by Chapter 13 which has the general heading “The Public Service”. Each of those has powers similar to those conferred on the Teaching Service Commission by s.116B and in each case the power to exercise control is qualified by describing it as the exercise of disciplinary control. See s.116 in relation to the Public Service Commission, s.118 in relation to the Judicial and Legal Service Commission and s.121 in relation to the Police and Prisons Service Commission. Indeed it was somewhat faintly argued that the power to exercise control in s.116B(1) should be read as a power of a like nature to that exercised by the other Commissions. In my opinion, the application of well known principles of construction leads to precisely the opposite conclusion; but it at least explains the confining of the powers of discipline in the Council to academic discipline where the staff is concerned, contrasted with a power to take general disciplinary action against members of the administrative staff.

The notion that the Teaching Service Commission occupies the position of employer in relation to the academic staff of the College is however highly unreal. It is common ground that, whatever the extent of its constitutional powers may be, the Commission has nothing which resembles continuing contact with the teachers in primary schools, secondary schools and institutes of tertiary education. It was aptly described by Mr Teutao, who appeared for the College, as the employment agent of the Government. It was accepted that it never acts of its own motion but always in response to recommendations by the appropriate body which it is required to consult by s.116B(3) for making an appointment. It obviously has not the resources, even if it so desired, to exercise the type of control over the teachers of Solomon Islands which would lead to the conclusion that it is to be regarded as their employer. There is the additional factor, far from insignificant, that powers of the Commission extend to teachers in what are non-Governmental schools, for example those set up by Churches and other bodies. The reposing in the Commission of a power of control over teachers which is unlimited in terms, occasioned considerable discussion during the hearing of this appeal, but at the end of the day I am not persuaded that it leads to the conclusion contended for by counsel for Tri-Ed, or indeed to any repugnancy between the Act of 1984 and the Constitution. The power is in the Constitution and full effect must be given to the words of the Constitution: but it is to be observed that it is not expressed to be exclusive and that it is in terms permissive. I see no reason to doubt that the governing bodies of the various schools and institutes of tertiary education may lawfully exercise day by day control over their staff, academic as well as administrative, subject always to the constitutional power of control of the Commission should it see fit, in a particular case, to exercise it. Nor is there anything in the fact that a third person may have the power of appointing or dismissing or requiring dismissal or has powers of direction and control in relation to the work of an employee which necessarily leads to the conclusion that that third person is the employer. See as to appointment and dismissal the authorities cited in Vol 16, Halsbury’s Law of England (4th ed.) para. 502 notes 2 and 3; and as to powers of direction and control, the authorities cited in note 4 of the same paragraph. It is indeed a fundamental principle that whether in a given case the relationship of employer and employee exists is a question of fact. The facts which are common ground in this case do not suggest for a moment that the Commission currently exercises such control as to make it the employer of the academic staff of the College. It follows that the members of the academic staff cannot be regarded as employed by or under the Crown.

This brings me to the constitutional question, but before dealing with it, it is convenient to mention that when this matter came before the Panel, there would appear to have been no breach of s.2(3) of the Trades Union Act. This is because, at that stage and at present, by its constitution, Tri-Ed was not empowered to have as members the staff of the College. It could not therefore represent them and the matter could have been disposed of shortly by the Panel on this basis. As, however, this would hardly be helpful for the future, the Court heard full argument and should, in my opinion, rule upon the various questions of law which have been raised.

I have had the advantage of reading the judgment prepared by Kapi JA and I do not lose sight of the fact that the state of Tri-Ed’s constitution may well mean that the Panel had no jurisdiction, there being no trade dispute within the meaning of the Trade Disputes Act 1981. This would have provided an additional reason for the Panel’s rejection of the appellant’s application. It does not however, in my judgment, mean that the appeal to this Court should not be disposed of, the Court resolving the questions of law raised by the parties for and against the decision under appeal. Justification for doing so lies in the fact that, if the constitutional point is a good one, Tri-Ed could amend its Constitution so as to extend its coverage to the College’s staff relying on the constitutional point as an answer to s.2(3).

Among the fundamental rights and freedoms of the individual which are protected by Chapter II of the Constitution is the freedom of assembly and association. Section 13 of the Constitution reads as follow:-

“13. (1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to political parties or to form or belong to trade unions or other associations for the protection of his interests.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision –

(a) in the interests of defence, public safety, public order, public morality or public health;

(b) for the purpose of protecting the rights or freedoms of other persons; or

(c) that imposes restrictions upon public officers,

and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society”.

But for subs.2 each member of the staff of King George VI School would be free to associate in a trade union of his choice with, not only his fellow employees, but with the staff of the College and each of them. The effect of s.2(3) is to restrict this freedom to the extent that academics of King George VI School cannot be associated in a trade union with the staff of the College and vice versa. The result is that a restriction of freedom of association is placed upon the teachers of King George VI School who are public officers in that they hold offices of emolument in the Public Service. See s.144 of the Constitution. The restriction on these teachers leads to the consequential restriction on the freedom of association of all those who are here concerned and is a valid exception to the right of free association by virtue of s.13(2)(c) unless that provision is shown not to be reasonably justifiable in a democratic society.

The requirement that a law be reasonably justifiable in a democratic society is also to be found in s.50(2) of the Constitution of Papua New Guinea and was considered in re Supreme Court Reference No.2 of 1982 [1982] PNGLR 214. Kapi JA sitting as a Judge of the Supreme Court of Justice of Papua New Guinea regarded as applicable observations by Patanjali Sastri C.J. of the Supreme Court of India in State of Madras c.V.G. Row [1952] S.C. 196 at p. 200:

“It is important in this context to bear in mind the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned and no abstract standard, or general pattern, of reasonableness, can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.”

I would respectfully adopt this passage as stating considerations which are relevant for the purposes of the Constitution of Solomon Islands. The Panel in this case considered this question and observed of s.2(3):

“It does not preclude membership of a trade union, it prevents Crown employees from joining unions which are open to non-Crown employees. There is no reason to suppose that a Union so constituted of Crown employees only is any less able to look after its members’ interests than a mixed or non-Crown employee union. From its general knowledge the Panel knows of other democratic societies where similar restrictions apply (for example United Kingdom).”

On appeal to the High Court, Wood C.J. observed:

“There are very good reasons why generally speaking Crown servants should not be allowed to associate in trade unions with others who are not Crown servant. This is more obviously so in the case of Police, Prisons and armed forces which are expressly dealt with in s.2(2) of the Trade Unions Act but there are many other sensitive areas in the Crown Service where this is also undesirable. The man in the street may well wonder why academic and teaching staff should not be allowed to associate in a trade union merely because some are paid by the Crown and others are not but I must look at the restriction contained in s.2(3) of the Trade Union Act and ask if it is reasonably justifiable in a democratic society as applied to public officers as a class. I can only answer that in the affirmative.”

I see no reason to doubt the views expressed either by the learned Chief Justice or by the Panel. It follows, in my judgment, that it is not shown that s.2(3) is not reasonably justifiable in a democratic society and that the appeal should therefore be dismissed.

Kapi JA: This is an appeal against the decision of the Chief Justice brought pursuant to s.11(1)(c) of the Court of Appeal Act 1978 (No. 10 of 78). The background to the appeal is as follows:

The appellant sought recognition as a trade union with the council of the College of Education. This approval was refused by the Council. This resulted in the matter being referred to the Trade Disputes Panel for arbitration under the Trade Disputes Act 1981 (No.3 of 1981). The Panel gave a ruling on points of law which are now the subject of the appeal before us. The appellant then appealed to the High Court under s.13 of the Trade Disputes Act 1981. The High Court upheld the decision of the Trade Disputes Panel and the appellant has appealed against this decision.

During the course of argument, a preliminary point was raised as to the locus standi of the appellant. It was argued that the appellant is a trade union which represents the interests of the staff of King George the VI School, Solomon Islands Teachers College and Honiara Technical Institute and it has no standing in representing the staff of the College of Education and therefore cannot deal with the Council for the College of Education.

The three institutions referred to above, exist under the provisions of Education Act 1978 (26 of 78). Under s.3 of the above Act, the permanent secretary for education has the control of these institutions subject to any direction by the Minister under the Act. Conditions of employment and all related matters are also governed by the provisions of this Act. The staff of the three institutions formed the Tri-Ed Union and it has been registered as a trade union under the Trade Unions Act (ch.76). The membership of the union did not contravene s.2(3) of the Trade Unions Act (as amended). As all the staff of the three institutions were employed under the Ministry of Education, there is no dispute that they were all employed “by or under the Crown”.

However, a fundamental change has been made by the College of Education Act 1984 (2 of 84). This Act has created a new institution the College of Education under the control of a Council. (Section 9). Amongst other units established under the College are:

(a) The School of Education (Section 41(b)).

(b) School of Industrial Development (Section 41(d)).

(c) School of Natural Resources (Section 41 (e)).

It has been agreed by parties that these units encompasses the training previously given by the Solomon Islands Teachers College and Honiara Technical Institute.

It is clear that under these two Acts, two separate schemes of training teachers and other technical experts exist side by side. What has happened in reality is that all the training that was previously given by the Teachers College and the Technical Institute have ceased to operate under the Education Act 1978 but are now being carried out by the College of Education under the College of Education Act 1984. The teachers that previously taught at the college and the Institute are now staff of the College of Education. The legal effect is that all those teachers have ceased to be part of the staff of the Teachers College and the Technical Institute and are now part of the staff of the College of Education.

The appellant purported to include or represent the interests of the staff of the College of Education. They purported to do this by seeking approval from the Council of the College of Education. The Council of the College refused to approve this arrangement on the basis that it was in breach of s.2(3) of the Trade Unions Act (as amended).

On the one hand, the appellant cannot represent the interest of the staff of the College of Education, as its membership under its constitution is not open to the staff of the College. On the other hand, Council of the College of Education has no legal authority to give approval to any proposals to amend rules of membership of a trade union to include others who are not members. The Council of the College, however, has power to approve the formation of a union, association or council of students or students and staff of the College. See s.19 of the College of Education Act 1984. The nature of this body is to ensure discipline and healthy academic and corporate atmosphere amongst students and staff in the College. This is different from the formation and membership of a trade union under the Trade Unions Act (as amended).

The appellant is a trade union registered under the provisions of the Trade Unions Act (as amended). What the appellant purported to do, in legal effect, was an amendment or alteration of its rules on membership to extend to the staff of the College of Education. The procedure for this is provided for under s.35 of the Trade Unions Act (as amended). Under this Act, the Registrar of Trade Unions has the legal authority to allow or disallow amendments. It is clear from this that even the respondent has no standing in the matter.

It cannot be said that a trade dispute arose between the employees and employers under the Trade Disputes Act 1981 (No. 3 of 81). The members of the Tri-Ed Union cannot be said to be employees of the College of Education nor can it be said that the College is the employer of the members of the Tri-Ed Union. As things presently stand, the appellant and the respondent cannot be parties to a trade dispute relating to membership of Tri-Ed Union. The only valid objection the respondent could raise is that until the rules of membership of the Union are amended under the Trade Unions Act to include the staff of the College of Education. The Union cannot purport to act for the staff of the College of Education.

It would follow from the above reasoning that there could not have been a trade dispute for arbitration by the Trade Disputes Panel under the Trade Disputes Act 1981. The question arises as to whether or not this Court should determine this appeal on this issue alone and disregard the questions of law raised in the appeal. In principle it would not be proper for this Court to express an opinion on the legal issues raised on this appeal. To do so would be to act without jurisdiction. The jurisdiction of the Trade Dispute Panel on arbitration can only be exercised if there is a trade dispute between competent parties under the Trade Disputes Act 1981. The effect of my reasoning is that as there was no trade dispute between competent parties, the Panel had no jurisdiction to decide the questions of law before it. It would follow from this that the High Court and this Court would not deal with the legal issues raised at the arbitration hearing. For this Court to go ahead and express an opinion on the legal issues under these circumstances would be in effect, giving an advisory opinion. There is no provision under the Court of Appeal Act 1978 which gives this Court jurisdiction to give advisory opinions. The closest to this is s.14 of the Act under which the High Court may refer questions of law for an opinion by the Court of Appeal. However, this matter has not come before us under this provision. On the question of constitutional issues raised by the appeal, the Constitution of Solomon Islands does not have the equivalent of s.18 and 19 of the Constitution of Papua New Guinea. Under these two provisions, a question relating to the interpretation or application of any constitutional law may be referred to the Supreme Court by any court or tribunal or other authorised persons or body for its opinion. As I understand the adversary system of litigation which has been adopted and practised in the Solomon Islands, tribunals and courts only exercise jurisdiction where there are competent parties before them who have disputes over issues at law and equity. It is not the function of courts and tribunals to determine rights or legal issues which are not properly brought before them in litigation. In other words, courts and tribunals are not there to give legal advice or opinion on potential litigious points.

In addition, as I have pointed out already, the Registrar of Trade Unions would have been the competent party to have raised the legal issues under the Trade Unions Act. He has not been represented at all in any of the proceedings. Furthermore, the appellant may well have adopted a different procedure under s.35(4) of the Trade Unions Act on the same issues.

However, as the majority of the Court is inclined to express an opinion on the questions of law, I will express my opinion for whatever it may be worth. For reasons I have given above, it will not be binding but may only have persuasive value.

On the question of whether or not the staff of the College are employed by or under the Crown, I have read the draft judgment of Connolly, JA and I agree with his reasons and conclusions. In this regard, I would only add the following argument. Even if the staff of the College were held to be employed by the Teachers Services Commission, they would not be regarded as employed by or under the Crown. The Teaching Services Commission is a constitutional body separate from the Crown that is Her Majesty’s Government of Solomon Islands. It can not be described as an arm, department, agency or instrumentality of the Government of Solomon Islands. This view is supported by s.137(4) of the Constitution which states that no such commission shall be subject to the direction or control of any other person or authority. On any view the staff of the College cannot be said to be employed by or under the Crown.

On the constitutional issue, I have also read the draft judgment of Connolly, JA and I am in agreement with his reasons and conclusions. I only wish to add the following comments:

Both parties were agreed that in considering the question of whether or not s.2(3) of the Trade Unions Act (as amended) is reasonably justifiable in a democratic society, the onus was on the appellant to show that it was not. In some constitutions, the question of onus of proof on whether or not a regulation or law is reasonably justifiable in a democratic society is not expressly provided for. For example, the Federal Constitution of Nigeria 1962. However, the Courts in these jurisdictions have held that the onus is on the party who alleges that a regulation or a law is not reasonably justifiable in the democratic society. In other words, there is a presumption of constitutionality in the law. See Cheranci v. Cheranci (1960) NRNLR 24 and Kachasu v. Attorney General (1969), Zambia Law Journal 44. I doubt the wisdom and the correctness of these decisions especially when considering the fundamental rights provisions. On the other hand, there are constitutions which specifically provide for the question of onus in the Constitution itself. See s.38(3) of the Constitution of Papua New Guinea. It appears that in the Constitution of Solomon Islands, the question of onus of proof can be inferred from s.13 of the Constitution. The relevant words under this provision are:-

“Except so far as that provision or, as the case maybe, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.”

It is clear from the underlined words that a person who challenges a law as being inconsistent with this provision has the onus of showing that it is not reasonably justifiable in a democratic society. This is a conclusion reached from the construction of the provision itself.

Appeal dismissed.