1985-1986 SILR 136

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 3 of 1986

SOLOMON ISLANDS BROADCASTING CORPORATION

v

SOLOMON ISLANDS NATIONAL UNION OF WORKERS

High Court of Solomon Islands
(Wood C.J.)
Civil Case No.3 of 1986

8 January 1986 at Honiara
Judgment 9 January 1986

Employees strike to demand removal of General Manager - whether “trade dispute” within meaning of Trade Disputes Act 1981 - whether injunction will lie

Facts:

The employees of the plaintiff submitted a petition to its Board of Directors calling for the removal of the General Manager and Deputy General Manager alleging that they were unsuitable for their posts by reason of their alleged misuse of funds. The Board, however, found no valid grounds to dismiss them. As a result 75% of the employees of the plaintiff went on strike.

The plaintiff then filed an Originating Summons asking the Court to determine whether the non-removal of the officers and the resulting strike was a “trade dispute” within the meaning of the definition in the Schedule to the Trade Disputes Act 1981 and for an injunction restraining the defendant from taking strike action until the matter was determined.

The plaintiff argued that this matter was not a “trade dispute” because it had nothing to do with the terms and conditions of employment and that the strike seriously disrupted the operations of the plaintiff and therefore it would be in the public interest to restrain such action.

The defendant replied that this was a “trade dispute” within the meaning of paragraph (b) of the definition, that is, a dispute over the termination of employment of the officers, and that no injunction would lie because if the strike was lawful the Trade Disputes Panel would have jurisdiction to hear the matter and the defendant would have immunity from suit under s.24 of the Trade Unions Act and if the strike was unlawful the plaintiff’s remedy would be an action for damages for breach of contract.

Held:

1. Although normally a dispute over termination arises when management terminates an employee and strike action is taken to enforce his reinstatement, it is just as much a “trade dispute” within the meaning of the Act where termination and not reinstatement is demanded by the employees.

2. Whether or not the strike action was unreasonable is irrelevant. (Attorney General v. SIPEU Civil Case No. 109 of 1984).

3. An injunction would be wrong to grant. It was for the parties to refer the matter to the Trade Disputes Panel.

Accordingly, the action was dismissed with costs.

Cases considered:

Attorney General v. SIPEU Civil Case No. 109 of 1984

John Muria for the Plaintiff
Andrew Nori for the Defendant

Wood CJ: Employees of the plaintiff Corporation on December 6, 1985 submitted a petition to the Board of Directors of the plaintiff corporation calling for the removal of the General Manager. Mr A. Wickham and the Deputy General Manager, Mr P. Mae on the ground that they were unsuitable for the posts they are holding. In a lengthy and detailed submission the employees have made numerous and specific charges against the General Manager and his deputy which if substantiated would constitute very serious allegations against them.

On December 19, 1985 the Board of Directors met to consider this petition and requested the Auditor General to investigate the allegation concerning misuse of funds and to report his findings to the Board. Having received the Auditor General’s report the Board met again on January 2, 1986 and came to the conclusion that there was no valid ground to justify the dismissal or removal of the General Manager or his deputy. This decision was communicated to the defendant union as a result of which all but 13 employees of the plaintiff corporation went on strike on Monday January 6, 1986.

The plaintiff the same day filed an originating summons asking this Court to determine whether or not the non-removal of the General Manager and the Deputy General Manager of the Solomon Islands Broadcasting Corporation by its Board of Directors which resulted in the staff of the Corporation who are members of the Defendant Union going on strike can be regarded as a trade dispute within the meaning of “trade dispute” as defined in the Schedule to the Trade Disputes Act 1981. Also on the same day they filed an application to this Court for an order that the defendant be restrained from taking strike action or continuing the same until the trial or determination of the matter between the parties to this action.

The facts giving rise to the action are not in dispute. In support of his summons Mr Muria has submitted that the right to hire and fire the General Manager and deputy is expressly provided for under s.10 of the Broadcasting Act 1976 and the question of the removal of the General Manager or his deputy is solely within the discretion of the Corporation. The employees as such have no right to dictate to the Corporation that any of the officers of the Corporation should be dismissed or removed from office and it is no concern of theirs. The strike action taken by about 75% of the Corporation’s workers is seriously disrupting radio broadcasts and it would be in the public interest to restrain them from continuing each action. Mr Muria further submitted that there was no trade dispute between the parties as defined by the Trade Disputes Act 1981 as the dispute as such has nothing to do with the terms and conditions of employment or the physical conditions in which employees are required to work.

Mr Nori’s submissions were firstly that whether or not there was a trade dispute as defined by the statute an injunction cannot lie to restrain any person or body of persons from taking strike action. The distinction between a “lawful” and an “unlawful” strike is that when the strike is “lawful” then the Trade Disputes Act 1981 will apply. In other words the Trade Disputes Panel will have jurisdiction to hear the matter and inter alia the Union will be protected against civil action by s.24 of the Trade Unions Act Cap. 76. On the other hand if it is an “unlawful” strike then the plaintiff can sue the defendants in damages for breach of contract. Perhaps not surprisingly Mr Muria argues that it is not a “trade dispute” and Mr Nori that it is. In support of his contention Mr Nori argued that it is paragraph (b) of the definition of a trade dispute which is relevant to this case which reads as follows-

“A dispute between employees and employers, or between groups of employees, which is connected with one or more of the following matters-

(b) engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more employees.”

Mr Nori submits that the General Manager and his deputy are clearly employees of the Corporation as indeed are the striking workers. The dispute is between these two groups of employees concerning the termination of employment of one group.

Normally of course this situation arises where management dismisses an employee or employees and strike action is taken to try and enforce their reinstatement. If this were the situation there would be no argument other than that it was a trade dispute. However much it may be considered unreasonable for the workers to demand the dismissal of the two top executives in the Corporation it is in my judgment just as much a trade dispute as the alternative where reinstatement is demanded and not dismissal. Perhaps a closer analogy would be where the strike action is called to dismiss an employee because management has employed a non-union member. On that basis I have little if any doubt that the action taken is in furtherance of a trade dispute between the parties. Whether or not the Union’s action was reasonable is irrelevant, see Attorney General v. SIPEU Civil Case No. 109 of 1984 judgment dated July 26, 1985 at pages 4 and 5. However if the matters referred to in the defendant’s petition can be substantiated their action may well be commendable. My own view for what it is worth, is that there should be an independent enquiry into the activities of the persons concerned.

In any event my judgment is that there is a trade dispute between the parties as defined by the Trade Disputes Act 1981 and I decline to grant plaintiff an injunction which in my judgment would be wrong to grant. It is for either party or the Minister now to refer the matter to the Trade Disputes Panel.

This action by the plaintiff is dismissed with costs.