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Queen v Trade Disputes Panel [1997] SBHC 117; HCSI-CC 287 of 1997 (22 December 1997)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 287 of1997

THE QUEEN

-v-

TRADE DISPUTES PANEL AND EARTHMOVERS (SOLOMONS) LIMITED

High Court of Solomon Islands
(Muria, CJ.)
Civil Case No. 287 of 1997

Hearing: 1 December 1997
Judgment: 22 December 1997

Mr. Charles Ashley for Applicant
Mrs. Loa Damena Tepai for Respondent

MURIA CJ: On 27 November 1997 the High Court granted leave to the company, Earthmovers (Solomons) Limited, to issue proceedings by way of prohibition seeking an order prohibiting the Trading Disputes Panel from further proceeding in the case before it between Earthmovers (S.I.) Limited -v- Solomon Islands National Union of Workers (TDP Case No. L9/14 of 1997). In addition, the Court also ordered that all proceedings in the action in relation to recognition and wage increased claims in respect of the terminated employees be stayed until after the hearing of the motion or further order from the Court.

The applicant Union (Solomon Islands National Union of Workers) (“the Union”) now seeks firstly to be made a party in this action, Civil Case No. 287/97; secondly to set aside the Order of 27 November 1997; thirdly or in the alternative to vary that order by setting aside only that part of the order relating to staying of the proceedings before the Trade Disputes Panel.

In support of his application, Mr. Ashley argued that the Trade Disputes Panel should be allowed to proceed with the hearing before it and that the High Court proceedings brought by the company should not be used to prevent the Panel from exercising its lawful functions. On the other hand Mrs. Tepai argued that the issues before the Panel are those of wage increase and recognition. As such, she urged, the Panel could not effectively deal with those issues until the High Court deals with the question of the contractual relationship between the company and employees i.e. employer - employee relationship.

The law confers power on the Trade Disputes Panel to deal with disputes between employees and employers in connection with terms and conditions of employment, terminations of employment or membership of a trade union and other matters set out under the definition of “trade dispute” in the Trade Disputes Act, 1981. On 31 October 1997 this matter was referred to the Trade Disputes Panel by the Minister for Commerce, Employment and Tourism pursuant to s.4 (2) of the Trade Disputes Act. Issues of dispute between employer (“the Company”) and the employees in this case include that of “recognition” and a wage increase of 11.8%. However as the referral by the Minister was made after the company terminated the employees, the question of the status of the employees as well as that of their termination have also been included in the referral to the Panel.

In the meantime the company instituted proceedings in the High Court in CC244/97 seeking the Court’s determination on the question of the status of the employees and their termination from employment. On that basis the Panel in its pre-liminary hearing decided that it should only deal with the questions of recognition and wage increase and leave the issues of legality of the strike and termination in abeyance pending the High Court’s decision on those issues.

However by Notice of Application dated 21 November 1997 and filed on 28 November 1997, the applicant company sought and was granted an order granting it leave to issue prohibition proceedings, prohibiting the panel to further proceed with the matter before it (TDP Case No. L9/14 of 1997). The two issues of recognition and wage increase before the Panel were also ordered to be stayed pending the outcome of the prohibition proceedings before the High Court.

Mrs. Tepai submitted that as the order of the Court was only a leave, there is no authority to set it aside. The simple answer to that argument is that this Court has inherent power to set aside any order other than a final one. In this case the order granting leave was made ex parte and this Court has the power to set aside that order. Normally application to set aside an ex parte order is made to the Judge dealing with the case itself. However the Judge dealing with the matter is unavailable and hence I have to deal with it, in view of the need to have this matter resolved quickly.

The question to be determined in this application, however, is whether justice will be served if the order granting leave be set aside or varied to allow the Panel to continue dealing with the matters presently before it.

It is, in my view, important to bear in mind the particular circumstances of this case when considering that question.

On 25 August 1997 the Union submitted a log of claims on behalf of its members who were employees of the company. This log of claims consists of the question of recognition of the Union as the legal representatives of the employees; the question of 11.8% wage increase; and the question of collective agreement to be signed after formal negotiation. There had been no settlement reached on the claims and so on 2 September 1997 the Union sent a letter to the company giving 28 days notice for its members to go on strike. At the expiry of that notice, the financial members of the Union went on strike. In response to that, however, the company terminated the striking employees on 9 October 1997.

On the same day the company took out an Originating Summons in the High Court (CC244/97) seeking a number of declarations one of which relates to the employment status of the sacked employees with the company.

The thrust of Mr. Ashley’s argument is based on the Panel’s jurisdiction to deal with trade disputes referred to it under the provisions of the Trade Disputes Act. By section 4 of the Act, the Panel has been given the power to offer assistance to the parties to the dispute with a view to bringing about a settlement if that dispute is, in the opinion of the Panel, likely to be settled. On the other hand, if the Panel is of the opinion that the dispute is unlikely to be settled by negotiation, the Panel must inquire into it and make an award. That is the jurisdiction of the Panel and there is very little or no restriction at all on that jurisdiction under the Act. This same position had been highlighted also in SIPEU -v- SIG [1987] SILR 60 where it was said at page 62 after referring to section 4 of the Act:

“There is nothing in the Act to limit this jurisdiction. It does not limit the Panel’s power to hearing cases where there is no contract or where there is no breach of contractual obligations or where there is no other remedy available. Indeed until the panel has enquire into it, it may well not be able to say what is involved.”
Thus, as pointed out also in that case, Parliament purposely enacted the Trade Disputes Act, 1981 to provide a procedure to deal with disputes arising out of employment and the power to deal with such disputes has been conferred on the Panel.

Again one sees the broadening of the Panel’s jurisdiction through the enactment of the Unfair dismissal Act 1982. By section 6(1) and (2) the complaint of unfair dismissal may be lodged with the Panel. However where that dismissal was as a result of the trade dispute which had been referred to the Panel, the complaint of unfair dismissal may not be considered until the trade dispute has been dealt with. It will thus be observed that, not only that the Panel’s power to deal with employment related disputes widened, it also broaden the available remedies to the employee. See Solomon Taiyo Ltd -v- S.I. National Union of Workers (No. 1) [1985 – 1986] SILR 27.

The question of fairness or unfairness of the dismissal of the employees in this dispute is one of the matters referred to the High Court in CC244/97. But as it is clearly observed, the dismissal of the employees and whole problem in this case were a consequence of the trade dispute which had already since been referred to the Panel. It is therefore proper that the Panel must first deal with the trade dispute in the exercise of its powers under the Trade Disputes Act. This is the scheme envisaged by the Act and there is nothing to limit that save for the right of appeal against the Panel’s decision to the High Court.

Whilst it can be said that the company is entitled to come to the High Court and seek the orders sought in CC244/97 and CC287/97, I feel bound to give effect to the spirit of the law regarding employment related disputes in Solomon Islands as contained in the Trade Disputes Act 1981. For I do not think it is the intention of the legislature to create the Trade Disputes Panel, clothe it with powers to determine trade disputes but cannot exercise those powers simply because the parties or one of the parties have insisted on invoking the unlimited jurisdiction of the High Court. If it were so, it would make the Panel a dead statutory creature.

The Trade Disputes Act has established the Panel, conferred on it the jurisdiction to deal with all employment-related disputes within the meaning of the word “trade dispute,” laid down the procedure to be used by the Panel to deal with such disputes, empowered it to make awards and conferred on the parties the right to challenge the Panel’s decision by way of an appeal to the High Court. In respect of those matters, there is no restriction imposed upon the Panel. It is therefore right to assume that Parliament had not intended the Panel’s jurisdiction to be interfered with save on appeal.

One of the argument raised by Mrs. Tepai was that as the company now says that there is no longer an employment relationship between the company and its sacked employees, the Panel should not proceed further with the hearing of dispute between the parties until the High Court determines that issue. I cannot agree with that argument. The status of the sacked employees is a matter plainly within the Panel’s jurisdiction to determine and this Court will not interfere with that save on appeal.

Having considered the matter together with the argument advanced by Counsel for the parties, I feel that in the interest of a just resolution of this dispute that I make the following orders:

1. The Solomon Islands National Union of Workers be made a party to the High Court case CC287 of 1997.

2. The leave to issue prohibition proceedings against the Trade Disputes Panel granted on 27 November 1997 prohibiting it from further proceedings in the matter between Earthmovers (SI) Ltd -v- Solomon Islands National Union of Workers (TDP case No. L9/14 of 1997) is hereby set aside.

3. The order staying the proceedings in the action in relation to recognition and wage increase claims before the Panel be also set aside.

By way of a obiter remark, it should be noted that as the matters before the High Court in CC244 of 1997 are essentially the same issues before the Panel, the High Court may well decide against duplication of proceedings and halt all related proceedings before it (High Court). So that the Panel which has the jurisdiction to deal with the issues under dispute, properly consider and deal with all the issues under dispute and makes its decision. I feel this is the more appropriate way of dealing with a dispute of the kind we are concerned with here. Of course there is the right of recourse to the High Court under the Act

Order accordingly.

(GJB Muria)
CHIEF JUSTICE